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Terms And Conditions
(a) These terms and conditions of sale (these "Terms") are the only terms which govern the sale of goods ("Goods") by Boxercraft, Inc and its associated entities ("Seller") to the individual or entity named in the Purchase Order (defined below) ("Buyer"). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
(b) All orders are subject to acceptance by Seller. Upon Seller's acceptance of Buyer's purchase order (the "Purchase Order"), Seller agrees to supply the quantity and type of Goods set forth in the Purchase Order upon these Terms. Seller's invoice (the "Invoice"), coupled with the International Terms and Conditions of Sale Addendum (If applicable) and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties with respect to the subject matter hereof, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties and communications, both written and oral. This Agreement may not be amended except by written agreement signed by Buyer and Seller.
(c) No additional or different terms or conditions or any modifications, changes or amendments to this Agreement shall be binding upon Seller unless specifically agreed to in writing by Seller. Any additional or different terms already or hereafter proposed by Buyer, whether in the Purchase Order or other communication or otherwise, are hereby rejected and shall not apply. The lack of objection by Seller to any additional, modifying or deleting provisions contained in any communications from Buyer shall not be construed either as a waiver of, or as an acceptance by Seller of any deviation from, the terms of this Agreement.
(a) All delivery dates are estimates only. Seller shall use reasonable efforts to comply with any delivery dates in the Purchase Order, if any. Claims for shortages and other error in delivery must be made in writing to Seller within 72 hours after delivery of Goods and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer.
(b) Delivery shall be made FOB Seller's warehouse (the "Delivery Point"). Buyer shall take delivery of Goods within 2 business days of Seller's written notice that Goods have been delivered to the Delivery Point.
(c) Seller reserves the right to make delivery in installments. Installments shall be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries.
3. Risk of Loss and Title.
Risk of loss for and title to Goods shall pass to Buyer upon delivery of such Goods at the Delivery Point.
Buyer may not cancel an order or any portion thereof within 30 days of the requested delivery date on the Purchase Order unless Seller provides written consent, in Seller's sole discretion. Buyer may not return an order or any portion thereof unless approved Return Authorization Number is provided by Seller's sole discretion. Once returns are authorized, they are to be shipped prepaid in reusable condition, excluding damaged or defective Goods. If Goods returned are in otherwise reusable condition but Buyers retail tags and stickers are affixed to the garment, a 10% restocking fee will be charged. If Goods are deemed to not be reusable, the products will be returned to the customer unprocessed. All claims of any nature (including shortages) must be made within 72 hours after receipt of goods. All sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller. Buyer assumes sole responsibility that any Goods ordered by the Buyer are sufficient and suitable for the Buyer's intended use and that of any person or entity who ultimately is authorized to use Goods ("End User").
Buyer shall purchase Goods from Seller at the price (the "Price") set forth in the Invoice. The Price and other amounts are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for and shall indemnify and hold Seller harmless from and against, all such charges, costs and taxes.
6. Payment Terms.
Buyer shall pay all invoiced amounts due to Seller according to the terms set forth in the Invoice and if none then within 30 days from the date of the Invoice. Buyer shall make all payments hereunder in U.S. dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including attorneys' fees. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy or otherwise. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), if Buyer fails to make payment to Seller of any amounts within 5 days of when due hereunder, Seller may refuse to make further deliveries to Buyer or otherwise suspend performance and may withdraw credit terms (if any) and require payment in full or impose additional credit terms.
7. Purchase Money Security Interest.
As collateral security for the payment of the Price for Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds and proceeds from the sale of Goods) of the foregoing. The security interest granted under this Section constitutes a purchase money security interest under the UCC. Buyer hereby irrevocably authorizes Seller from time to time to file a copy of any initial financing statements, continuation statements and any amendments thereto to perfect its security interests and to provide any other information required to make any such filings. Buyer shall provide Seller with 45 days' prior written notice of any name change, change in place of business, or, if more than one, its chief executive office, or its mailing address, its organizational number, type of organization, jurisdiction of organization or other legal structure. Buyer hereby appoints Seller as Buyer's attorney-in-fact for the purposes of carrying out the provisions of this Section and taking any action and executing any instrument which Seller may deem necessary or advisable to accomplish the purposes hereof, which appointment is irrevocable and coupled with an interest. Buyer agrees to cooperate with Seller and take all necessary actions, including executing any and all additional documents requested by Seller, to cause Seller to receive all rights and remedies it may have under this Section, under the UCC and otherwise at law, in equity or under this Agreement.
All Goods sold to Buyer, or sold by Buyer to End Users, are limited to the Limited Warranty (as defined below) in effect as of the date of order acceptance for each good. TO THE FULLEST EXTENT PERMITTED BY LAW [AND EXCEPT FOR ANY LIMITED WARRANTY EXPRESSLY SET FORTH IN THIS SECTION 8 (IF ANY)], SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Because Seller's policy is one of continuous improvement, Seller reserves the right to change specifications and design of Goods at any time.
10. Intellectual Property.
(a) All intellectual property rights in, or relating to, Goods, including any enhancements made by Seller to Buyer's specifications, are owned by Seller or its licensors and nothing in this Agreement shall have the effect of transferring the ownership of such intellectual property rights to Buyer.
(b) Seller shall, at its own expense, defend, indemnify and hold Buyer harmless from and against any liability, damages, penalties, fines, judgments, amounts paid in settlement and reasonable costs and expenses (including attorneys' fees, court costs, accountants' fees and fees of expert witnesses) (collectively, "Losses"), arising out of claims brought against Buyer by a third party alleging that any Goods infringe such third party's U.S. patent existing as of the date of the Purchase Order, copyright, trademark or other intellectual property rights, provided that Buyer promptly notifies Seller of such claim and provides all necessary and required information and reasonable assistance regarding such claim. Seller will have sole authority to defend, negotiate or settle such claim. With regard to any Goods that are determined by a non-appealable or non-appealed decision of a court of competent jurisdiction to be infringing, or that Buyer has been enjoined from using by a court of competent jurisdiction, Seller may (in its sole and absolute discretion): (i) obtain for Buyer the right to continue to use such Goods, (ii) replace or modify Goods so that such Goods no longer infringe or (iii) provide a refund to Buyer for the Price paid for such Goods and accept the return of such Goods. Seller will have no obligation under this Section 10(b) to the extent that the alleged infringement arises from any third party products, any alteration or modification to Goods not authorized by Seller or the use or combination of Goods with other products that were not supplied or approved by Seller. THE FOREGOING STATES SELLER'S ENTIRE LIABILITY FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT ARISING UNDER THIS AGREEMENT OR RELATED TO GOODS.
11. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER OR ITS AFFILIATES BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER'S OR ITS AFFILIATES' AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE PRICE PAID TO SELLER FOR GOODS SOLD HEREUNDER. The limitation of liability set forth this Section 11(b) shall not apply to (i) liability resulting from Seller's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller's acts or omissions.
Buyer shall, at its own expense, maintain and carry any desired shipping insurance insuring Goods while being delivered to Buyer. Buyer acknowledges that Seller shall not be required to provide any shipping insurance on Goods while being delivered to Buyer.
Buyer shall indemnify, defend and hold harmless Seller against any Losses that Seller may sustain or incur resulting from, arising out of or relating to any claim: (a) that any Goods manufactured according to Buyer's designs or using intellectual property provided by Buyer infringe upon the intellectual property, proprietary or other rights of any third party (except where caused by a modification by Seller), (b) of loss or damage resulting from Goods manufactured according to Buyer's designs or using intellectual property provided by Buyer or (c) the negligent or more culpable act or omission of Buyer or its agents or End Users.
14. Confidential Information.
All non-public, confidential or proprietary information of Seller, including specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement ("Information") is confidential, is solely for the use by Buyer in performing this Agreement and may not be disclosed or copied by Buyer unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all Information to Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is public at the time of disclosure to Buyer.
15. Resale Restriction.
Buyer agrees that neither Buyer nor its affiliates shall sell, resell, distribute, transfer or offer for sale Goods, directly or indirectly, through any website or e-commerce business without the prior written consent of Seller. Buyer shall not sell or offer for sale Goods to any third party, directly or indirectly, that Buyer knows will sell or offer to sell Goods through any website or e-commerce business.
(a) Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of Goods under this Agreement or any resale of Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
(b) In no event shall Seller be liable to the extent its performance of any obligations (including delivery) is delayed or prevented, directly or indirectly, due to causes beyond its reasonable control, including pandemic, war, strikes, lockouts, embargoes, terrorism, insurrection, riots, inability to obtain labor, governmental actions, delays in manufacture or transportation, restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, telecommunication breakdown or power outage, breakdown of machinery, accidents, fires, floods or other natural disasters or acts or omissions of Buyer or its agents.
(c) Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Seller may assign any of its rights or delegate any of its obligations under this Agreement in its sole discretion. Any purported assignment or delegation in violation of this Section is null and void. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity (including End Users) any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(d) The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
(e) All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with laws of the State of Georgia, without regard to the conflicts of law principles thereof. The parties agree that all litigation between Seller and Buyer which may arise out of or in connection with this Agreement or any transaction between them shall be subject to the exclusive jurisdiction of the courts of the State of Georgia, or of the federal courts sitting therein, and each party hereby irrevocably consents to the personal jurisdiction of such courts and venue. Nothing contained in this Agreement shall prevent Seller from applying to the appropriate court located anywhere for an injunction or like remedy to restrain Buyer from committing any breach or anticipated breach of this Agreement and for consequential relief.
(f) "Including" means "including without limitation" and does not limit the preceding words or terms. The words "or" and "nor" are inclusive and include "and". The singular shall include the plural and vice versa.
(g) Any remedies provided to Seller under this Agreement shall be cumulative and non-exclusive, and Seller shall be entitled to seek any other rights to which it may be entitled at law or in equity.
(h) All notices, consents and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Invoice. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). A Notice is effective only upon receipt of the receiving party.
(i) No waiver by Seller of any term this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. If any term of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term of this Agreement or invalidate or render unenforceable such term in any other jurisdiction.