THE WORLD EMBLEM SALES TERMS AND CONDITIONS
Contract. The terms and conditions set forth herein represent all the promises, covenants, agreements, conditions, and understandings between WORLD EMBLEM (‘Seller’) and the Purchaser with respect to this sale and purchase and supersede all prior and contemporaneous agreements, understandings, inducements or conditions express or implied oral or written relating hereto except as contained in this contract. The terms and conditions set forth herein cannot be modified, amended added to, or otherwise changed unless such modification, amendment, additions or change is reflected in writing signed by both seller and the Purchaser. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any term expressed in this contract. Any terms and conditions specified on the Purchaser’s purchase order or any other communications which are in conflict with or in addition to the terms and conditions contained herein shall be superseded by the terms and conditions herein, and shaII not be binding upon Seller unless expressly accepted in writing by Seller, Sellers failure to object to terms in any communication from Purchaser will not be a waiver of the terms hereof. THE TERMS AND CONDITIONS CONTAINED HEREIN SHALL BE DEEMED ACCEPTED AND AGREED TO BY PURCHASER WITHER UPON ACCEPTANCE OF DELIVERY OF ANY OR ALL MERCHANDISE.
Warranty. Seller warrants that all products manufactured by Seller and sold hereunder are free from defects in materials and workmanship. The liability of Seller under this express warranty is limited to replacement of the defective products, provided Seller is given prompt notice of defect. The ongoing shall constitute the exclusive remedy of the Purchaser. In no event shall Seller be liable for any damages whatsoever, including, but not limited to consequential damages resulting from defective products. SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH HEREIN, AND HEREBY SPECIFICALLY NEGATES ANY IMPLIELD WARRANTY MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS SOLD HEREUNDER: In order to return a product purchased hereunder in connection with the assertion at a claim under the foregoing express warranty, the Purchaser must obtain a return authorization from Seller prior to returning such product and must pay the costs of return transportation. Such transportation costs will be reimbursed to the Purchaser by the Seller only upon verification of the property of the claim by seller. No such claim shall be allowed if made more than ten (10) days from the date of receipt of shipment by Purchaser. Purchaser waives all claims for damages, replacements and losses that arise from the application or laundering process. If product is not as ordered, Seller will replace the items at no cost along with the freight expense. If product is missing from a shipment, Purchaser has ten (10) days from the date of receipt of shipment by Purchaser to request a refund or replacement for the missing item.
Pricing. The prices set forth herein constitute the effective prices, except as set forth below. Notwithstanding any prior written quotations of prices, oral quotations or prices set forth in any purchase order. Prices are subject to change, at the discretion of Seller, in accordance with prices at the time of shipment. High stitch counts, additional colors and special components may and most times will alter the sale price that is posted online. Pricing may/will be adjusted at time of order or invoicing.
Terms of Payment. Where Seller has extended credit to Purchaser, terms of payment shall be on account from date of invoice. The amount of credit or terms of payment may be changed or credit withdrawn by Seller at any time. lf no credit has been extended by Seller, a valid credit card or cashier’s check (if credit card is not permitted) shall be required to hold the entire amount of the order plus applicable taxes and estimated shipping costs. Past due invoices are subject to a monthly service charge at 1.5%. Purchaser agrees to pay all expenses incurred in collecting delinquent accounts, including attorney’s fees.
If the goods are delivered in installments, Purchaser shall pay for each installment in accordance with the terms of payment hereof. Payment shall be made for the goods without regards to whether Purchaser has made or may make any inspection of the goods. If shipments are delayed by Purchaser; payments are due from the date when Seller is prepared to make shipments. Goods held for Purchaser are at Purchaser’s sole risk and expense.
If the financial condition of the Purchaser at any time does not in the sole judgment of Seller, justify continuance of the work to be performed by Seller hereunder on the terms of payment agreed upon Seller may require full or partial payment in advance or shall be entitled to cancel any order that is outstanding and shall receive reimbursement for its reasonable and proper cancellation charges. In the event of bankruptcy or insolvency of the Purchaser or in the event any proceeding is brought against the Purchaser, voluntarily or involuntarily, under the bankruptcy or any insolvency laws, Seller shall be entitled to cancel any order that is outstanding at any time during the period allowed for tiling claims against the estate and shall receive reimbursement for its reasonable and proper cancellation charges. The rights of Seller under this paragraph are cumulative and in addition to all rights available to Seller at law or in equity.
Title. All of Sellers products purchased hereunder are shipped F.O.B., Seller. Title to the products and all risk of loss or damage with respect thereto shall pass to and be borne by the Purchaser upon delivery by Seller to the carrier. All shipping and insurance charges shall be borne by the Purchaser when requested and where prepaid by Seller shall be included in the invoice for the products shipped. To secure payment by the Purchaser of the amounts due to Seller under this or any other contract between Seller and the Purchaser hereby grants to Seller a security interest in the goods purchased hereunder. The Purchaser agrees to execute delivery and file any financing statements, security agreements or other documents, and to do any and all acts, which are requested by Seller to perfect, continue, or evidence such security interest and any other security interests granted to Seller hereunder. Should the Purchaser fail to execute, deliver or title such documents or fail to do such acts promptly upon request by Seller, the Purchaser hereby appoints Seller as the Purchasers attorney-in-fact to do so, at the option of the Seller, all acts which Seller may deem necessary to perfect and to continue perfected any security interest created pursuant to this Agreement.
Transportation. Seller shall exercise its best efforts to use the type of transportation specified by Purchaser on the purchase order. If none is specified, or if the specified type is unavailable or otherwise commercially impractical, Seller’s sole discretion shall utilize any reasonable appropriate type of transportation. If Purchaser has a shipping account set up with Seller, Purchaser shipping account may be charged. In the absence of shipping account information, or if the specified type is unavailable or otherwise commercially impractical, Seller’s sole discretion shall utilize any reasonable appropriate type of transportation and Purchaser invoiced for the shipping and handling costs involved.
Delivery Date. Delivery dates acknowledged by Seller are estimates or the date on which the products will be shipped and are not binding. Failure to deliver pursuant to said delivery dates for any reason whatsoever whether in Seller’s control or not, shall not be cause for cancellation by Purchaser or for the assertion of damages of any kind whatsoever including but not limited to consequential damages against Seller. Seller shall exercise the best efforts to notify the purchaser of any material delay in delivery.
Taxes. Applicable federal, state and local taxes, now or hereafter enacted, in connection with the purchase hereunder are included in the price and will be added to the invoice to be paid by the Purchaser, unless, with respect to taxes due to a particular taxing authority, the Purchaser provides Seller with a valid tax exemption certificate number indicating that the sale of the product is not subject to such taxation.
Substitution and Modifications of Goods. Seller may modify the specifications of goods designed by Seller and substitute goods manufactured to such modified specifications for those specified herein provided such goods substantially conform to this contract.
Variation in Quantity. Purchaser shall accept delivery of shipments containing amounts of goods exceeding ten percent (10%) of the actual amount ordered. The Purchaser will not be charged for this overage.
Product Tolerance. Purchaser understands and accepts that products may present variations between each other, and the sample, due to natural causes during the production process. All the comments, values, tolerances and standards indicated by World Emblem are not appealable; in consequence the embellishment that doesn’t fulfill them would be considered as a non-conformance and rejected. Only a written and documented instruction given by the Purchaser, previously approved by Seller’s General Management and the Quality Assurance Management, could contradict or omit the specifications here indicated.
Material Furnished by Purchaser and CSGs (Customer Supplied Goods). If materials are to be furnished by Purchaser to Seller to enable Seller to perform hereunder, Purchaser shall furnish materials of adequate quality and in sufficient amounts to provide for reasonable spoilage of 2% to facilitate performance by Seller. Seller assumes no risk of loss due to fire, flood, theft or otherwise for such materials and Purchaser shall be responsible therefore. Any designs to be added to Material must first be approved by the Purchaser prior to any work being performed and may from time to time affect the delivery date. Purchaser is required to agree to the Terms & Conditions in order to place an order with Seller. Purchaser shall specify the designs and garments for decoration. Seller is not liable for any errors in the information provided by Purchaser. Purchaser is aware that damage may occur in the decoration process through no fault of the Seller. Every care is taken to ensure that all Goods submitted for decoration by Purchaser are returned in the condition in which they were received. It shall be understood that items are subjected to a mechanical process. Purchaser allows Seller 2% spoilage to account for this process. Credits for damages garments will apply for all damages in excess of the allowed 2%. Purchaser agrees to the maximum per item replacement cost of twenty dollars ($20) per garment. The Purchaser is liable for all shipping fees to and from Seller facility unless otherwise specified in the contract. Goods will not be insured in transit unless the Purchaser specifically requests insurance. Costs of insurance and delivery must be borne by the Purchaser and will be included in the freight charge on the invoice. Seller shall not be liable for claims arising from loss or damage of goods in transit. Maximum refund on any shipment lost or damaged by the carrier is $100.00. Seller is not liable for garments delivered to Seller that are damaged on or before receipt inspection. Any damage that has occurred in transit is the responsibility of the Purchaser. Purchaser agrees CSGs received without orders will be held a maximum of thirty (30) days and then returned at Purchaser expense.
Governing Laws. These terms and conditions shall he constituted and enforced in accordance with the laws of the State of Florida.
Patent Infringement Claims. The Purchaser agrees to promptly notify Seller of the assertion against the Purchaser, in litigation or otherwise, of any claim or patient infringement respecting any Sellers products purchased hereunder, Seller shall have the right (but not the obligation) to assume control at any litigation arising out of such claims, including the settlement thereof, in the event such notice is given to Seller and the Purchaser provides all necessary cooperation assistance requested by Seller and allows Seller to so conduct the litigation, Seller shall indemnify and hold the Purchaser harmless from and against any such claim relating to any of Seller’s standard products. The Purchaser shall indemnify and hold Seller harmless from and against any such claim relating to the use of Sellers products in a system application of the Purchaser, and in any such claim arising out of compliance by seller with specifications furnished by the Purchaser. In the event claims set forth in the preceding sentence are assorted against Seller, he will promptly notify the Purchaser of the assertion thereof and will permit the Purchaser to assume control of the litigation. The Purchaser agrees to furnish SeIIer all information and assistance necessary to defend any claim of patient infringement.
Government Contracts.Seller shall use its best efforts to comply with all provisions which are mandatorily imposed on the Purchaser by any applicable Federal Statute but only in the event the Purchaser informs Seller in writing of all such requirements.
Cancellation. Notwithstanding anything to the contrary, Seller may not cancel this contract whole or in part (including but not limited to reduction of quantities to be delivered) at any time prior to manufacturing commencement or from time to time at his discretion.
Non-Exclusive Remedies. No remedy or right herein conferred upon or reserved to, Seller is intended to be for the exclusion of any other remedy or right, but each and every such remedy or right shall be cumulative and shall be in addition to every other remedy or right given hereunder hereafter existing at law or in equity.
Assignment. Any assignment of this contract or any rights hereunder, by the Purchaser without written consent of Seller shall be void. The provisions of this contract are for the benefit of the parties hereto and not any other person, corporation, firm, organization or any other entity.
Force Majeure. Seller shall not be liable for any failure to discharge its obligations hereunder due to strikes, differences with workmen, accidents, fires, shutdowns of its manufacturing plant or plants supplying it, orders or requirements of the United States Government embargoes, inability to secure transportation facilities or other contingencies beyond the control of Seller, including but not limited to those arising out of or due to National Defense activities, or emergency conditions.
Samples. It is the responsibility of the Purchaser to order, inspect and approve a sample prior to production. The Purchaser has exactly 10 days from the date that the sample is shipped out to approve the sample or the production will automatically be released and processed and the Purchaser will be liable for the production costs. The Seller will attempt to notify the Purchaser through email and phone to receive approval, but it is the sole responsibility of the Purchaser to approve or disapprove the sample within the 10 day time frame. All approvals are the sole responsibility of the Purchaser and should be inspected and executed before the order is placed. If Purchaser places an order for production based solely on artwork without receiving and approving a physical sample, Purchaser is held liable for all charges, damages and claims. Purchaser understands there are significant deviations between artwork/digital images to the final product. If Purchaser bypasses this recommended process, Purchaser is liable for all production charges and waives the right to damages, replacements or claims. Seller is not liable for any issues with the design once it is applied to the garments.