Terms and Conditions
1. ACCEPTANCE AND COMPLETE AGREEMENT. Any purchase order issued by Spreetail, LLC(“Buyer”) and accepted by you (“Seller”) (an “Order”) or other agreement between Buyer and you is expressly conditioned upon your acceptance of these Terms and Conditions. Any additional or different terms proposed by Seller are objected to and rejected unless expressly assented to in writing by Buyer.
2. PACKING AND SHIPPING. Seller agrees that all packing and shipping of goods sold by Seller toBuyer (“Goods”) are governed by Buyer’s Operations Guide agreed to by Seller by means of accepting an Order.
3. ORDERS PROCEDURE. Seller shall accept or reject an Order by confirming or rejecting the order by written confirmation (including electronic communication such as email or EDI) within (a) two (2)business days of receipt of the Order for domestic shipments or (b) five (5) business days of receipt of theOrder for import shipments (“Order Response”). If Seller fails to issue an Order Response within the applicable timeframe, the Order will be deemed accepted by Seller.
4. CANCELLATION. Buyer may cancel all or any part of this Order at any time prior to shipment. In addition, in the event any place of business or other premises of Buyer shall be affected by lockouts, strikes, riots, war, fire, civil insurrection, flood, earthquake, or any other casualty or cause beyond Buyer's control, which might reasonably tend to impede or delay the reception, handling, inspecting, processing or marketing of the goods covered by this Order by Buyer, its agents or employees. Buyer may, at its option, cancel all or any part of the undelivered order hereunder by giving written notice to Seller.
5. INVOICE AND PAYMENT. . A separate invoice shall be issued by Seller for each shipment of theGoods and shall contain the Order number, item number, description of goods or services, quantities, unit prices, date(s) rendered, and total purchase price. Each invoice must refer to one, and only one, purchase order. Buyer shall not be obligated to pay, and Seller waives all right to receive, payment for any invoice that is issued more than one hundred eighty (180) days after the relevant shipment. Payment terms are based on the receipt of goods (ROG) date for domestic shipments and the Bill of Lading (BOL) date for import shipments, in each case unless otherwise specified in the Order. All claims for money due or to become due from Buyer shall be subject to deduction by Buyer for any setoff or counterclaim arising out of this or any other of Orders with Seller.
6. TAXES. Buyer is responsible for all charges, costs, and taxes except for any taxes imposed on, or regarding, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
7. WARRANTIES. a. Seller warrants that: (i) Quality. All of the Goods delivered under an Order will conform to the requirements of the Order (including all applicable descriptions, specifications, and drawings), will be free from defects in material and workmanship and will be free from defects in design and fit for the 2intended purposes, and Seller's warranties shall be enforceable by Buyer's customers and Buyer; (ii)Compliance with Laws. In the performance of this Order, Seller will comply with all applicable foreign, andUnited States’ Federal, State, and local laws and ordinances and all lawful orders, rules, and regulations thereunder, including, without limitation, the State of California’s Proposition 65. If any Goods have an expiration date, or a known date when laws or regulations will prohibit or restrict sale of the Goods byBuyer as they were received from Seller (without any modification, additional labeling, etc.), such date shall not be within one year from the return of goods date for the last shipment under the Order.
b. Seller shall not act in any fashion or take any action that will render Buyer liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign CorruptPractices Act), which prohibits the offering, giving, or promising to offer or give or receiving, directly or indirectly, money or anything of value to any third party to assist it, them or Buyer in retaining or obtaining business or in procuring the goods or services.
c. This Section 7 and the parties’ respective obligations hereunder shall survive the termination or expiration of these Terms and Conditions.
8. INDEMNITY AND INSURANCE a. Indemnity. Seller agrees to indemnify, defend and hold harmless the Buyer and its affiliates and their respective directors, officers, managers and employees, from any and all claims, proceedings and liabilities, regardless of by whom such claim or liability may be asserted, for (i) personal injury (including death), (ii) alleging infringement of any intellectual property right, (iii) loss or damage to property arising from the fault or negligence of Seller, (iv) any failure of the Goods or services to comply with applicable foreign and United States state or federal laws or regulations, or otherwise that may result directly or indirectly from the use, possession or ownership of the Goods or from the services provided bySeller pursuant to an Order, except where such failure to comply with laws or regulations resulted fromBuyer’s mishandling of the products. With regard to Seller's obligation to defend, Seller shall provide legal counsel whom the Buyer shall not unreasonably withhold its approval of. Seller shall not settle or compromise any claim or action giving rise to claims in a manner that imposes any restrictions or obligations on Buyer without Buyer's prior written consent. If Seller fails or declines to assume the defense of such claim within fifteen (15) days after notice thereof, Buyer may assume the defense of such claim for the account and at the risk of Seller. The indemnification rights of Buyer contained herein are in addition to all other rights which Buyer may have at law or in equity or otherwise.
b. Insurance. Seller shall maintain products liability, property and casualty insurance that adequately protects Buyer against such damage, liabilities, claims, losses and expenses as are described in this Section 8. Seller’s insurance policies shall be written by insurance carriers with AM Best ratings ofA- or above that names Buyer as a primary/non-contributory additional insured. All insurance policies will contain a full waiver of subrogation, indemnity, defense or equitable or contractual contribution by the insurer against the additional insured and its successors and assigns. Seller agrees to submit certificates 3of insurance evidencing its insurance coverage. Seller will give Buyer thirty (30) days’ written notice of the expiration or cancellation of the foregoing insurance policies.
9. INSPECTION, REJECTION AND RETURN TO VENDOR. All the Goods are subject to final inspection and acceptance by Buyer at destination notwithstanding any payment or prior inspection at source. Buyer shall notify Seller if any Goods delivered hereunder are rejected, and at Buyer's election and Seller's risk and expense, such Goods shall be (a) returned to Seller at Seller’s expense or (b) repaired or replaced bySeller at Seller’s expense. Buyer may reject the Goods delivered only if they are, on visual inspection, deemed to be damaged or defective (including damage to outer packaging that will not allow Buyer to sell the Goods as new), are not properly labelled in compliance with applicable laws and Buyer’sOperations Guide, or do not conform to the SKU’s listed in the Order Response. For all the Goods that are returned to Seller for the foregoing reasons after payment therefor by Buyer, Buyer may elect either to receive (i) a credit with Seller for the next succeeding invoices or (ii) a cash payment for the returnedGoods payable upon receipt by Seller of such Goods. If Buyer elects (i) above, Buyer may, at any time prior to receiving such credit, elect to receive a cash payment from Seller, payable upon receipt by Seller of such Goods.
10. CHANGES AND DISCREPANCIES. Any discrepancies, omissions, or lack of clarity in drawings, specifications, or Orders, must be referred to the Buyer for written interpretation before this Order is processed. Buyer shall have the right, at any time before completion of the Order, to make reasonable changes in quantities, in delivery schedules, and in methods of shipment and packaging. If such changes cause an increase or decrease in price or in the time required for performance, Seller shall promptly notifyBuyer thereof in writing. Changes shall not be binding upon Buyer unless and until Buyer issues a revisedOrder to Seller.
11. INTELLECTUAL PROPERTY. a. Subject to the express rights and licenses granted by Seller in these Terms and Conditions,Buyer acknowledges and agrees that: (i) any and all Seller’s intellectual property rights are the sole and exclusive property of Seller or its licensors; (ii) Buyer shall not acquire any ownership interest in any ofSeller’s intellectual property rights under these Terms and Conditions;(iii) any goodwill derived from the use by Buyer of Seller’s intellectual property rights inures to the benefit of Seller or its licensors, as the case may be; (iv) if Buyer acquires any intellectual property rights in or relating to any Goods purchased under these Terms and Conditions (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either party; and (v) Buyer shall use Seller’s intellectual property rights solely for the purposes of performing its obligations under this agreement and only in accordance with theseTerms and Conditions and the instructions of Seller. It agrees not to engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products or any Seller trademark.
b. These Terms and Conditions do not grant either party the right to use the other party's or their affiliates' trademarks or intellectual property except as set out under this Section 11. Subject to theseTerms and Conditions, Seller hereby grants to Buyer a nonexclusive, non-transferable, and nonsublicensable (except to the marketplaces on which Buyer sells the Goods) license to use Seller’s trademarks and intellectual property solely on or in connection with the promotion, advertising, and sale of the Goods.
12. DEFAULT. Time is of the essence of this Order. Buyer may by written notice of default to Seller (a)terminate all or any part of this Order if Seller fails to perform, or so fails to make progress as to endanger performance of this Order in accordance with its terms, and does not cure such failure within a period often (10) days (or such longer period as Buyer may authorize in writing) after receipt of notice from Buyer specifying such failure; and (b) procure, on such terms as it will deem appropriate, goods or services similar to those so terminated. Seller will continue performance of this Order to the extent not terminated and will be liable to Buyer for any excess costs for such similar goods or services, and Buyer may charge to Seller any increased cost, or deduct such increased cost from any amounts paid or due under arising out of this or any other of Orders with Seller. As an alternate remedy, and in lieu of termination for default,Buyer, at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies inSeller's performance, in which case an equitable reduction in the Order price will be negotiated. If Seller for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of this Order, Seller will promptly notify Buyer in writing. If Seller does not comply with Buyer’s delivery schedule, Buyer may require delivery by fastest way and charges resulting from the premium transportation must be fully prepaid and absorbed by Seller. The rights and remedies of Buyer provided in this Section 12 will not be exclusive and are in addition to any other rights and remedies provided by the Uniform Commercial Code, by law, at equity or under this Order.
13. FORCE MAJEURE. Seller shall not be liable for any delay or failure to deliver any or all of the Goods in the event of delay or failure caused by governmental regulations, labor disputes, strikes, war, riots, insurrection, civil commotion, mobilization, explosion, fire, flood, accident, storm or any act of God, failure of crops or supplies, delays of common carriers, embargoes, or other causes beyond Seller's reasonable control. Similarly, Buyer shall not be liable for failure to take delivery of the Goods for any of the above causes, or other causes beyond Buyer's reasonable control if they render it commercially impracticable for Buyer to receive or use the Goods on a timely basis. Where either Seller or Buyer claims an excuse of nonperformance under this paragraph, it must give notice in writing to the other party. Seller shall not be obligated to sell, nor Buyer obligated to purchase, at a later date that portion of the Goods that Seller is unable to deliver or Buyer is unable to receive or use because of any of the aforementioned causes. NoGoods are to be tendered by Seller after expiration of the terms specified in an Order without written consent of Buyer.
14. ASSIGNMENTS. No assignment of any rights, including rights to money due or to become due hereunder, or delegation of any duties under an Order shall be binding upon Buyer until its written consent has been obtained.
15. CLEARANCE OF MATERIALS INTENDED FOR PUBLIC RELEASE. No news release, including photographs and film, advertisements, public announcement, denial, or confirmation of same or any part of the subject matter of these Terms and Conditions shall be made without prior written approval of Buyer.
16. APPLICABLE LAW. These Terms and Conditions and all other agreements between Buyer andSeller shall be governed by the laws of the State of Nebraska, without regard to the conflict of law provisions thereof and the United Nations Convention on Contracts for the International Sale of Goods shall not be applicable.
17. WAIVER. The right of Buyer to require strict performance of these Terms and Conditions shall not be affected by any prior waiver or course of performance.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter hereof, superseding all prior or contemporaneous agreements, representations, promises and understandings. By accepting an Order, Seller agrees that the terms and conditions contained herein shall apply to and govern that Order. Except as otherwise specified herein, any additional or conflicting terms contained in any other document shall be null, void and of no effect on either party. Notwithstanding the foregoing, these Terms and Conditions may be amended by Buyer from time to time.
Effective 8.23.2022
