TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale shall constitute the complete agreement between Kadyluxe, llc (hereafter “Seller”), and its customer, distributor and/or retailer, named on the Order Form for which this agreement is attached to (hereafter “Purchaser”). This Agreement shall supersede all prior oral and written agreement of any kind made by the parties and their representatives. All terms and conditions contained in Purchaser’s orders or elsewhere which are different from, in addition to, conflict with, or vary from this agreement are hereby void and shall not be binding on Seller unless expressly agreed to in writing, signed at Seller’s principal office in Denver, Colorado, by a duly authorized Officer of Seller in a document making specific reference to this agreement and specifically stating that it ‘amends’ this agreement.
Acceptance of Order
Seller’s acceptance of any order is expressly conditioned upon the Purchaser’s consent to the terms and conditions of sale set forth herein. All orders are subject to acceptance by Kadyluxe, llc.
Shipments and deliveries shall at all times be subject to approval of Purchaser’s credit and Seller at any time may require payment in advance or satisfactory security or assurance that invoices shall be promptly paid when due. If Purchaser fails to make payment by the due date, Seller reserves the right, in addition to any of its other rights and remedies, to withhold further deliveries and/or terminate any order, backorder and/or contract with Purchaser without any penalty regardless of any prior agreements between Purchaser and Seller. Any unpaid amount shall become immediately due and payable.
Except as otherwise provided, NET30 or Credit Card upon delivery are the terms of payment accepted by the Seller.
Credit approval by our credit department is required for open account terms. Please submit at least three credit references with initial order to expedite approval. Unless credit is approved and the account is verified, any purchase order received will not be deemed to be accepted.
All goods are shipped and invoiced F.O.B. (free-on-board) factory or warehouse location (unless otherwise agreed). Purchaser must provide their courier account details and instructions to Seller prior to shipment date to insure on-time delivery. If not specified by Purchaser, Seller will use discretion forwarding by Federal Express, U.P.S., or any other reasonable shipping method.
Concealed damage may occur from handling by carriers, and the amount of damage shall be collectible by Purchaser from the carrier upon presentation of a proper claim with the carrier. If Purchaser discovers damage upon unpacking of the shipment, Purchaser must inform the delivering carrier and request an inspection regarding the concealed damage. The carrier will furnish proper forms for the claim. DO NOT
ATTEMPT TO RETURN DAMAGED MERCHANDISE TO SELLER. The carrier is
responsible for the shipment when it is picked up from Seller’s factory and/or warehouse.
All claims must be made within ten (10) days after receipt of merchandise. The risk of damage or loss falls upon Purchaser immediately upon the goods leaving Seller’s factory or warehouse.
Seller shall not assume any responsibility for claim or damage due to default or delay in production or delivery of any or all portions of any order which are out of Seller’s control including but not limited to: accident or breakdown of Seller’s plant machinery or equipment; embargoes; fire; riots; delays from suppliers or carriers; government restrictions, prohibitions, or allocations. In no event shall Seller be liable for any consequential, special, or contingent damages arising out of Seller’s default or delay in the completion of this order. Purchaser shall verify and inspect shipments. Discovery of a shortage due to packing errors must be reported in writing within 10 days of receipt.
Reports can be made via email to firstname.lastname@example.org. Adjustments will be made if reported within the specified time frame. Any rush order charges will be passed along to the Purchaser.
Pack & Holds
Pack & Holds must be requested in writing 30 days prior to shipment. Pack and holds must be approved in writing by the Seller and are subject to a handling fee of $20.00 per shipment.
Return of Merchandise
The Seller reserves the right to approve returns due to manufacturing defects, late shipments, or other legitimate reasons. The Seller must authorize all returns in advance. The purchaser must request a Return Authorization (RA) number to return merchandise. RAs have a 30-day expiration date. For all returns to Seller, freight must be pre-paid by the Purchaser. All returns will be subjected to inspection and if deemed satisfactory, approved for credit against the original invoice. All returns must be made within 14 days from the delivery date and all merchandise must be unwashed and unworn. All hangtags must be attached to garment. Outgoing shipping charges are not refunded and garments are subject to inspection. All discounted items, undergarments (body suits included) and accessories are FINAL SALE.
Restriction or Revocation of Acceptance
Absent written approval from Seller accepting a return, any attempt by Purchaser to revoke acceptance after receipt of any shipment shall constitute a breach of this Agreement.
Seller’s warranty is limited to shipping a replacement for any defective item provided that a written claim is made within 10 days from the receipt of goods, which in any event shall not exceed the price of the goods sold. This warranty is in lieu of any and all other warranties and liabilities expressed or implied, including but not limited to any warranty of merchantability or fitness for any purpose. Damage to the product through accident, misuse, abuse, modification, misapplication, or by improper service or installation voids this warranty.
Limitation of Liability
Seller shall not be liable for any consequential, special, or contingent damages arising from breach of warranty, breach of contract, negligence or any other legal theory. Seller shall also not be liable for any consequential, special, or contingent damages arising directly or indirectly from any defect in goods or from the use thereof, nor is any other person authorized to assume for Seller any such liability. Such damages include but are not limited to: loss of profits or revenue, loss of the use of goods or any associated goods or equipment, cost of any substitute goods, downtime costs, capital costs, or claims by Purchaser’s customers for such damages arising out of the use of the products sold. The remedies set forth in this Agreement shall be the exclusive remedies available to the Purchaser and in lieu of all other remedies. Any suit or action arising out of or relating to this Agreement or the breach thereof must be commenced within one (1) year after the cause of action has occurred. The foregoing shall not limit the time within which any suit or action can be brought to collect an unpaid balance due by Purchaser or to enforce a judgment to collect any amount awarded thereunder.
Purchaser’s Agreement to Defend
If any goods sold or supplied to Purchaser by Seller are not maintained and operated in accordance with recommended procedures, specifications, requirements, and/or instructions, Purchaser agrees to release, defend, protect, and hold Seller harmless against all suits at law and in equity. Seller shall not be liable for any costs, legal fees, expenses, damages, claims, and demands arising out of such suit.
Any applicable federal, state, local, or other government tax or charge on the sale or shipment of the goods covered by this Agreement shall be added to the price and paid by Purchaser. Purchaser understands that Seller is not responsible for any such taxes, including interest and penalties thereon, and is not responsible for any costs and expenses in connection therewith.
Neither this agreement nor any of the rights, duties, or obligations of any party hereunder may be assigned or delegated by Seller or Purchaser except with the prior written consent of Seller or Purchaser, as applicable. This agreement shall not confer any rights or remedies upon any person or entity other than the parties hereto and their respective permitted successors and assigns. In the event an attempted assignment is made in violation of this provision, the rights of Purchaser under this Agreement shall automatically terminate without notice.
No failure or delay on the part of Seller in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power preclude any other or further exercise of any other right or power. No modification or waiver of any provision of this agreement nor consent to any departure therefrom shall in any event be effective unless the same shall be in writing and signed by Seller, and then such waiver or consent shall be effective only in the specific instance and for the purpose given.
If any legal action is brought to enforce or interpret the provisions of this agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees from the other party. These fees, which may be set by the court in the same action or in a separate action brought for that purpose, are in addition to any other relief to which the prevailing party may be entitled.
This agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed, and interpreted in accordance with the laws of the State of Colorado. If any legal action is necessary to enforce the terms and conditions of this Agreement, the parties agree that the Superior Court of Colorado, County of Denver, shall be the sole venue and jurisdiction for the adjudication of such action. Purchaser hereby submits to said jurisdiction.
Purchaser agrees to pay all costs of collection. In the event Purchaser fails to pay any overdue balance including any other applicable charges, a 1.5% interest charge per month, or to the extent permitted by law, will be assessed on all overdue balances.
Credit Terms & Conditions
For the purpose of establishing and maintaining credit, Purchaser declares that the foregoing statement and information contained on this application are true and correct statements of the Purchaser’s current financial condition. Purchaser agrees to notify Seller immediately in writing of any material change in financial condition, change of ownership, or legal name (including any change in DBA or AKA). Purchaser authorizes Seller to make an inquiry into any information concerning financial or credit information from creditors, banks, credit unions, or credit reporting services which Seller deems relevant for the purpose of establishing and maintaining credit. Purchaser authorizes any creditor, bank, credit union, or credit reporting service to release such information.
Purchaser understands that Seller will rely on the accuracy of all matters set forth in this application in determining whether to extend credit.
Seller, at its sole discretion, reserves the right at any time to withdraw credit or not extend credit to Purchaser.
Invoices are to be paid according to the terms stated in this invoice. Late payments shall
incur a penalty of 10% per annum and will be added to all past due invoices. Late payment will result in termination of discount pricing. No discounts will be allowed to any customer having an overdue balance. Deduction of payments for any reason will not be allowed until credit memo is issued.
This agreement shall be binding on the respective parties and their respective heirs, legal representatives, successors, and assignees.
If any provision in this agreement is held to be unenforceable in whole or in part for any reason, the remainder of that provision and of the entire agreement will nevertheless remain of full force and effect.
This agreement contains the entire understanding of the parties with respect to its subject matter. This agreement supersedes all prior agreements and understandings between the parties, whether written or oral, with respect to the subject matter hereof. There are no representations, agreements, or understandings, oral or written, between and among the parties hereto, relating to the subject matter contained in this Agreement, which are not fully expressed herein. This agreement may be amended or modified only by a written instrument duly executed by each of the parties.