Terms and conditions
1.) OFFER AND ACCEPTANCE. These Terms and Conditions (contained in the 32 numbered paragraphs) govern all purchase orders issued by or relating to Cotton Kreations Apparel, Inc. and/or any of its affiliates (each a “Purchase Order”) with respect to the business organization identified as the “Purchaser” on the order form attached to these Terms and Conditions. Such order form and these Terms and Conditions, collectively, constitute, the “Purchase Order”, and shall be the final expression of the terms and conditions of the sale of Goods between the parties. All of the materials referenced herein that are to be incorporated by reference are to be deemed part of this Purchase Order as well as the agreement for the sale of Goods that is created thereby upon acceptance by the Vendor. The “Vendor” (a “Seller” as defined in the Uniform Commercial Code) is the supplier of the “Goods,” each as also described in the attached order form. This Purchase Order is only an offer that is conditioned upon Vendor’s acceptance in accordance with its terms, only as presented, and this offer is deemed accepted as presented upon Vendor’s acceptance. Acceptance of any Purchase Order by the Vendor in writing or by delivery of Goods shall constitute the creation of an agreement for the sale of Goods. Accordingly, each and every Vendor has agreed or is deemed to agree to these Terms and Conditions. Additionally, no terms or conditions that are different than the terms and conditions contained in any Purchase Order that may be contained in any acceptance or other writing from the Vendor shall be deemed to form a part of the agreement for the sale of Goods. Purchaser does not consent to, or accept and hereby expressly objects to any Vendor attempt to change, reject or supplement any Purchase Order or to any effort to conditions its acceptance upon any such change, rejections or supplement to any Purchase Order and Purchaser’s objection to such effort shall not be waived by acceptance of any Goods or otherwise Vendor’s acceptance may be effected only by (i) written confirmation, (ii) shipment of conforming Goods in accordance with this Purchase Order, (iii) participation in an agreed upon inventory replenishment program and/or (iv) other Vendor performance in accordance herewith; provided that, if Vendor does not ship all Goods ordered hereunder on or before the “Cancellation Date” specified, then, in addition to any other Purchaser right under Applicable Law, as defined in Section 9, Purchaser reserves the right to declare that this Purchase Order has lapsed without Vendor acceptance with respect to Goods that were not shipped on or before the Cancellation Date and, therefore, is null and void as to those Goods. All Purchase Orders shall be deemed to be executory contracts until such time as the Vendor has fully and completely performed all terms and conditions associated with the sale of the Goods to the Purchaser.
2.) EDI TRANSACTIONS. Transactions under Purchase Orders generally are effected by electronic data interchange (“EDI”) and comply with the Vendor Standards as posted on PayPal.com and Stripe.com, including the requirements of these Terms and Conditions of UPS.COM AND USPS.COM. Vendor shall bear its own EDI-related costs, including costs for any equipment, software and services required for effective and reliable EDI transactions, including maintenance of security procedures sufficient to ensure that EDI transmissions are authorized and protected from improper access, which includes protection of its electronic signature. Such electronic signature must accompany all of Vendor’s transmissions to authenticate such communications and which shall be used consistently, together with appropriate security procedures that are reasonably sufficient to ensure that Vendor’s EDI transmissions are protected from improper access, to protect the integrity and confidentiality of Purchaser’s systems. Each party agrees that it shall not disclose to any unauthorized person the other party’s electronic signature. Vendor acknowledges that it has been advised that its use of paper documentation rather than EDI may subject Vendor to costs and administrative charges.
3.) DELIVERY. Unless Purchaser instructs otherwise in writing, Vendor shall deliver Goods in accordance with the terms stated in the applicable Purchase Order, other written documentation or as instructed by the applicable Cotton Kreations Apparel merchant. Risk of loss to Goods shall pass to Purchaser only after Purchaser accepts delivery of such Goods at the destination designated in the Purchase Order. Vendor agrees to deliver to Purchaser the Goods subject to all express warranties, the implied warranty of fitness for the purpose and the implied warranty of merchantability. Non-conforming tenders include untimely deliveries, as to which Purchaser may apply the provisions of Sections 1 and 4. In addition, Purchaser reserves the right to impose a reasonable charge for storage and/or additional handling due to untimely delivery. Further, Vendor’s failure to follow delivery instructions as set forth in a Purchase Order, including the Vendor Transportation Office requirements posted on USPS.com and UPS.com (which are incorporated by reference herein), serves as Vendor’s agreement to pay freight expenses with respect to such delivery and Purchaser reserves the right to charge Vendor for such expenses in any such event, together with any other amounts, costs and/or administrative charges as may be incurred by Purchaser or applicable to such failure. Upon Purchaser’s request, Vendor shall furnish Purchaser written proof of a delivery without charge. In addition, to the extent required by Purchaser, Vendor shall prepare and provide to Purchaser such periodic reports, tracking purchases made by Purchaser and, if directed Purchaser Affiliates, by item or as otherwise directed by Purchaser.
4.) NONCONFORMING TENDERS. If Vendor tenders Goods that do not conform to the terms of the Purchase Order, including Goods that, in whole or in part, are not (i) delivered timely; (ii) as represented or warranted; (iii) fit for the purpose for which they were sold or are defective; (iv) delivered in the quantity ordered; (v) in accordance with the applicable specifications upon which the Purchase Order was predicated; (vi) consistent with samples or (vii) in compliance with all other terms and conditions of the Purchase Order, such performance shall constitute a nonconforming tender. Further, if Vendor does not ship Goods in accordance with Purchaser’s requirements and as set forth in the applicable Purchase Order, then such failure also shall constitute a nonconforming tender, all Goods shall meet all applicable specifications, including any contained in descriptions, samples, catalogs, promotional material or other statements delivered or made to Purchaser. For Vendors providing Goods to Cotton Kreations Apparel backstage, Goods shall not include tickets with pricing stated. To the extent a Vendor includes a Manufacturer’s Suggested Retail Price (“MSRP”) on Vendor tickets for such Goods, the MSRP shall be the price at which Vendor has confirmed such Goods were offered for sale by retailers in a current or prior season. Vendor further understands that such MSRP is only suggested, and Retailer shall independently set its own prices. In the event of a nonconforming tender, Purchaser, at its sole option, may elect, as to any or all of the Goods in question and without any further authorization from Vendor to (i) accept the Goods, (ii) cancel the order, (iii) refuse to receive the Goods, and/or (iv) return the Goods to Vendor at Vendor’s expense. Regardless of which one or more of these options Purchaser elects, Vendor shall pay Purchaser such liquidated amounts, related costs and/or administrative charges as are set for the in the Purchase Order and/or elsewhere in Cotton Kreations Apparel Vendor Standards. Vendor acknowledges and agrees that Purchaser either (a) posting such amounts Vendor’s trial balance on cottonkreations.com within four (4) weeks of the later of its receipt of the nonconforming tender or discovery that the Goods were nonconforming, or (b) otherwise communication such information to Vendor in writing (electronically or otherwise), shall constitute commercially reasonable notice of the nonconforming tender, notwithstanding that all or any part of the nonconformity may have been remedied before such action. Where the nonconforming tender involves a latent condition, notice to the Vendor within four (4) weeks of Purchaser gaining actual knowledge of the condition and, accordingly, of the nonconforming tender, also shall be deemed commercially reasonable notice. Vendor hereby knowingly and expressly waives any right, should one otherwise have existed, to receive notice of the non-conforming tender earlier or in any manner other than as given by Purchaser. Purchaser’s receipt and/or acceptance of a nonconforming tender shall not waive any Purchaser claim or right in respect of such tender, whether provided under this document, by law or under equity and Purchaser hereby conditions any future acceptance of Goods constituting or included in a nonconforming tender on Purchaser’s rights as set forth in the Section 5, including the right to later reject or otherwise direct the disposition of such Goods. Purchaser, notwithstanding any other provision hereof, shall only be obligated to make payment for Goods that it elects to retain and, as to such retained Goods, the price payable shall be specified in the Purchase Order, subject to applicable offsets and/or recoupments, including offsets and/or recoupments for amounts attributable to the nonconforming tender. Vendor agrees and acknowledges that timeliness is of the essence of every Purchase Order and that its compliance with the requirements of this Purchase Order, and the balance of the Cotton Kreations Apparel Vendor Standards, including the requirements of the Vendor Transportation Office, likewise are of critical importance and that if vendor fails to comply therewith, it, in addition to having made a nonconforming tender, shall have materially breached this Purchase Order and that nothing contained in this Section 5 or elsewhere in this Purchase Order confers upon Vendor a right to cure without Purchaser’s written consent.
5.) TERMINATION BY PURCHASER. Purchaser has the absolute right of cancel a Purchase Order for any reason with respect to Goods that have not yet been shipped by giving Vendor written notice of such cancellation. If prior to Purchaser’s cancellation, Vendor has not breached any term or condition of the Purchase Order, Purchaser, solely at its option, either shall (i) purchase such Goods that Vendor especially manufactured for Purchaser prior to Purchaser’s cancellation under the applicable Purchase Order, but only to the extent the Goods are not suitable for sale to any other buyer, or (ii) compensate Vendor for reasonable and unrecoverable costs but only to the extent that such costs were actually incurred by Vendor in connection with such Goods prior to Purchaser’s cancellation, up to a maximum of up to fifty percent (50%) of Purchaser’s purchase price for such Goods.
6.) PAYMENT TERMS
- a. Vendor shall comply with this Purchase Order concerning payment, payment Instructions and
invoices, including by providing correct, current payment information and instructions. Vendor
shall be solely liable for its failure to comply with such requirements.
- b. In no event shall payment be due Vendor prior to the later of the date that (i) the Goods are
delivered and accepted and (ii) Purchaser receives Vendor’s invoice with respect to such Goods, except, as to Goods received prior to their applicable “Ship Not Before Date”, payment obligations shall not accrue prior to such Ship Not Before Date.
- c. Vendor agrees and acknowledges that all discounts extended by it under any Purchase Order or otherwise are intended to be trade discounts to which Purchaser is entitled, regardless of the timing of its payment for Goods.
- d. Purchaser expressly reserves the right to offset and/or recoup any amounts against any amount otherwise due Vendor all amounts claimed by Purchaser. If Purchaser and one or more “Purchaser Affiliates” (i.e., Cotton Kreations Inc. and it operating entities, including direct or indirect subsidiaries) are doing business with Vendor. Purchaser and/or each such Purchaser Affiliate shall have the right to transmit payment to Vendor for itself and on behalf of any one or more of the others.
- e. Payments to Vendor may be made on a consolidated basis that nets the aggregate debits, credits and allowances of Purchaser and Purchaser Affiliates.
- f. Upon Purchaser’s request, Vendor shall provide monthly reports, in a form that complies with Purchaser’s instructions, to track Goods ordered by Purchaser and/or Purchaser Affiliates.
- g. Purchaser hereby provides notice and Vendor accepts notice and agrees that non-conforming tenders may result in payment delays, any and all non-merchandise charges must be separately invoiced and under no circumstances shall Purchaser be liable for any interest charges or late payment fees.
- h. Purchaser may avail itself of any common law or statutory rights of offset and/or recoupment in connection with any obligation of the Vendor to the Purchaser (and/or any affiliate of the Purchaser) arising under any agreement for the sale of Goods or otherwise.
- i. To the extent that any Goods are delivered to Purchaser where payment is to be made upon the sale of the Goods by the Purchaser, such transaction shall be treated as a “sale or return” as defined in the Uniform Commercial Code. In such transactions, title to the Goods vests in the Purchaser upon delivery of the Goods.
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7.) PRICE REVISIONS. Pricing for Goods shipped under this Purchase Order shall be as specified, except as otherwise agreed by Purchaser in writing; provided that: (a) Vendor shall meet the lower prices of legitimate competition or accept cancellation of the Purchase Order with respect to the Goods ordered hereunder; (b) either party may seek an adjustment in the pricing for ordered Goods, with notice given at least sixty (60) days’ before the scheduled delivery date, for a reasonable cause, such as a change in the market for raw materials utilized in the production of such Goods, but a party seeking such an adjustment shall submit documentation evidencing the justification for such request that is reasonably sufficient to the other party and both parties shall reasonably cooperate to determine whether the price range request is justified by then exiting circumstances with any such adjustment to be effected only by a mutual, written confirmation; and (c) Purchaser may offset and/or recoup amounts
8.) DISPUTES AND REMEDIES. In the event of a dispute under this Purchase Order or in connection with any agreement for the sale of Goods, the parties shall endeavor to reach an amicable resolution but if unable to do so within thirty (30) days after receipt of a notice of dispute given by one party to the other, either party may seek any remedy provided for herein or otherwise available to it, including judicial resolution in accordance with Section 12. As to disputes concerning any amount invoiced by Vendor, Vendor shall provide to Purchaser, promptly after any Purchaser request therefore, all documents and/or information as Purchaser reasonably requests, including written proof of delivery. Vendor acknowledges that Purchaser may dispute any invoice, in whole or in part, and may withhold the disputed amount. Purchaser’s failure to pay such disputed amount shall not be a breach of the Purchase Order or otherwise subject Purchaser to any liability, charge or penalty if Purchaser posts the disputed amounts to Vendor’s trial balance no later than fifteen (15) days after the date that such amount otherwise would have been due and payable to Vendor. Purchaser shall be entitled, at all times, to offset any amount owing to it (or to any Purchaser Affiliate) from Vendor (or any Vendor Affiliate) against any amount otherwise payable to Vendor by Purchaser (or any Purchaser Affiliate). The provisions of this Section 8 do not limit Purchaser’s ability to cure any non-conformity or charge Vendor for related liquidated amounts by way of offset and/or recoupment or otherwise, costs and/or administrative expenses otherwise provided for, including as set forth in Section 4. In addition to any other right or remedy available hereunder, by law or in equity, Purchaser reserves the right to terminate this Purchase Order, in whole or in part, and return to Vendor, at Vendor’s expense, any Goods not in compliance herewith, including any that are the subject of any claim of infringement of any existing or alleged design, design patent, patent, trademark, trade name, copyright, trade dress, right of privacy or similar right of any person or entity and Vendor agrees to reimburse Purchaser fully for all expenses incurred in respect of such returned Goods. No action for breach of this Purchase Order may be commenced more than eighteen (18) months after the accrual of the cause of action except for Claims arising under Section 10, which shall be subject to the limitations period applicable thereto under Texas law. Vendor acknowledges and agrees that the above limitation of time in which to commence an action is reasonable, and further agrees to be bound thereby. In the event that Vendor fails to deliver Goods in accordance with the Purchase Order, then, in addition to any other rights and remedies available to the Purchaser, Purchaser may cover in order to procure substitute Goods, and Vendor will be liable therefore.
9.) DEFAULT. Vendor’s failure to comply with any term, covenant or obligation in this Purchase Order shall constitute a breach that, if not cured within five (5) days of Purchaser’s notice, shall constitute a Vendor default and entitle Purchaser to assert any right granted Purchaser by this Purchase Order and/or by law or in equity, including, but not limited to, the provisions of the Uniform Commercial Code as applicable in the State of Texas, including a right to terminate this Purchase Order, in whole or in part. Further, any of the following likewise shall constitute a Vendor default: (i) making a general assignment to benefit its creditors, (ii) commencement by or against Vendor of any proceeding seeking to adjudicate it a bankrupt or insolvent , (iii) commencing any action seeking liquidation, reorganization, adjustment or other relief under any law relating to bankruptcy or reorganization, (iv) the sale or other transfer of substantially all of the Vendor’s business or assets and/or (v) Vendor’s failure to perform or delay in performing an obligation hereunder by any cause beyond Vendor’s reasonable control, whether by flood, fire, tempest, earthquake, strikes, labor disputes, war, act of God, embargo, civil commotion, or government regulation. Vendor acknowledges that its timely and complete performance is an integral part of the consideration for Purchaser entering into this Purchase Order. Accordingly, Vendor further acknowledges that, at any time that Purchaser deems itself insecure with respect to Vendor’s performance of its obligations, Purchaser may demand, in its sole discretion, from Vendor such adequate assurances of future performance as Purchaser deems appropriate and, in the event that vendor either fails to timely provide such adequate assurance to Purchaser’s reasonable satisfaction or otherwise fails to do perform, Purchaser, in its sole discretion, may suspend its own performance or terminate this Purchase Order, in whole or in part, based on a deemed anticipatory breach by Vendor. In the event that the Vendor anticipatorily repudiates the Purchase Order or any agreement for the sale of Goods, the Purchaser will be entitled to all rights and remedies in law or in equity, including, but not limited to, the rights and remedies provided for in the Uniform Commercial Code as applicable in the State of Texas.
10.) INDEMNIFICATION. In consideration of Purchaser’s agreement to purchase the Goods, Vendor, to the fullest extent permitted by law, shall defend, indemnify and hold harmless Purchaser (which term “Purchaser” shall, for purposes of this Section 10, include all Purchaser Affiliates) from and against any and all actions, legal or administrative proceedings, debts, demands, interest, claims, suits proceedings, liabilities, damages, penalties, fines, costs and expenses (including defense costs and attorneys’ fees) and/or any other losses asserted against, incurred by or imposed upon Purchaser by reason of or as a result of any act or omission of Vendor, including any actual or alleged violation or breach of any of its warranties, representations, covenants or other obligations as set forth herein (each a “Claim”), including any Claim of infringement or alleged infringement of any existing or alleged design, design patent, trademark, trade name, copyright, trade dress, right of privacy or similar right of any person or entity, or any Claim as may be brought against Purchaser by any customer or other person or entity as to any purchase, possession, sale or resale, use or condition possession or resale of any and/or all Goods covered by this Purchase Order, from any patent or latent defects therein or the dangerous condition thereof, or by virtue of any misrepresentation or breach of warranty (express or implied) as to such Goods or otherwise relating to any transaction contemplated hereby, including as may relate to a subsequent sale of any Goods and the parties’ ongoing relationship without regard to any allegation as any negligent act or omission by any party or other person, utilizing counsel of Purchaser’s choice unless provided by an insurer, in which even counsel shall be reasonably
satisfactory to Purchaser, all as confirmed in writing. Vendor further agrees that the foregoing shall apply to any Claim related to the conduct of any Vendor Representatives, including Claims by or on behalf of any Vendor Representatives and/or any equipment and/or fixtures designed, sourced and/or in any manner provided, in whole or in part, by Vendor. Further, Vendor’s defense, indemnification and hold harmless obligations set forth herein shall apply with equal force and effect to Vendor’s responsibility in respect of any recall of Goods, whether voluntary or involuntary, including as requested or required by any governmental agency, including reimbursement of all costs and expenses as may be required of Purchaser to assure compliance with all Applicable Law, including as to Vendor Representatives, fixtures and equipment and/or recalls relating to Goods. Furthermore, Vendor may not settle such Claim without Purchaser’s consent and Purchaser may, at its sole option, require its own defense of any Claim, with Vendor to pay any and all of costs and/or expenses (including reasonable attorneys’ fees and expenses) incurred by Purchaser in the protection of its interests.
11.) LIMITATION OF DAMAGES. The Purchaser shall not be liable to Vendor for any special, incidental, exemplary or consequential damages arising from or as a result of any transaction hereunder, including by reason of any delay, omission or error in the electronic transmission or receipt of any document, even if such party has been advised of a possibility of such damages, except only pursuant to an obligation to indemnify.
12.) GOVERNING LAW. This Purchase Order shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to its doctrines regarding conflicts of law. Any action or proceeding arising out of, concerning or affecting, in whole or in part, this Purchase Order shall only be brought in a state or federal court in the State of Texas and within the County of New York to be resolved individually, without resort to any form of class action. Both parties consent to such jurisdiction, waive trial by jury in any such action and/or any complaint as to the convenience of such forum. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE ORDER OR ANY AGREEMENT FOR THE SALE OF GOODS. THIS WAIVER OF TRIAL BY JURY PROVISION IS A MATERIAL INDUCEMENT FOR THE PURCHASER TO ENTER INTO AN AGREEMENT WITH THE VENDOR.
13.) INTERRUPTION OF PURCHASER’S BUSINESS. Interruption of or interference with Purchaser’s business by a cause beyond Purchaser’s reasonable control, including fire, flood, tempest, earthquake, strikes, labor disputes, war, act of God, embargo, civil commotion or government regulation shall give Purchaser the option to cancel any unfilled portion of the Purchase Order, in whole or part, without any liability to Vendor.
14.) ENTIRE AGREEMENT. This Purchase Order, including the Cotton Kreations Apparel’s Vendor Standards and any material incorporated herein by reference, constitutes the entire agreement of the parties as to its subject matter and supersedes all prior representations or agreements, oral or otherwise, with respect thereto. No obligation to enter into any further transaction may be implied from this Purchase Order. This provision is applicable in all circumstances, without regard to whether this Purchase Order establishes a new transaction and/or confirms an existing arrangement or prior course of dealing.
END OF TERMS AND CONDITIONS