- The terms and conditions of sale set forth herein (“Purchase Terms and Conditions”) apply to all quotations issued and purchase orders accepted by Yoobi Sales, LLC (“Seller”) for the sale of its products (“Products”), except in the case that Seller and buyer (“Buyer”) have executed a written agreement. These Terms and Conditions will apply whether or not they are enclosed with the Products sold hereunder.
Order Submission & Acceptance. If Buyer desires to purchase Products from Seller, Buyer will submit (electronically, by mail or hand delivery) a written purchase order signed by an authorized representative of Buyer, which must include the following: (1) Product name; (2) Product identifier (sku #); (3) quantity; (4) unit price; (5) requested delivery dates; and (6) special shipping terms, as applicable. No order will be binding on Seller unless and until Seller accepts Buyer’s order, Buyer’s payment is processed, and Seller sends Buyer a written order confirmation that may be sent via email at Seller’s discretion (“Order Confirmation”), which will confirm the quantity of Products purchased and the selling price, and will specify a shipment date (“Order Confirmation Shipment Date”). Seller’s acceptance of Buyer’s order is expressly conditioned on Buyer’s unconditional assent to these Terms and Conditions in lieu of any terms and conditions in Buyer’s order or in any other Buyer communication. Seller hereby rejects any terms or conditions in Buyer’s order or in any other Buyer communication that conflict with or that purport to add to or modify these Terms and Conditions. All such terms and conditions will be deemed stricken and will be null and of no effect.
Minimum Order Requirements. Standard bulk orders must be placed in quantities of at least 50 units of a single Product, in a single color, in a complete case pack (g. if the case pack of a Product contains 72 units then 72 units is the minimum purchase requirement). Custom orders must be placed in in quantities of at least 200 units of a single Product, in a single color, in a complete case pack. Case pack sizes vary by Product.
Custom Orders. Seller reserves the right to approve or deny any customization to the Products requested by Buyer in its sole discretion.
Order Processing. Processing time for customized Products is typically 4-6 weeks from the date of the Order Confirmation. Order processing for non-customized, in-stock Products is typically 5-7 business days.
C. ORDER CANCELLATION AND RESCHEDULING
- After an Order Confirmation is sent to Buyer, Buyer may not cancel such order without the written consent of Seller, which may be withheld in Seller’s sole discretion. Buyer may not cancel or reschedule partial orders. Buyer must contact Seller to request any modifications in regards to types of Products, quantities, delivery schedules, methods of shipment or other matters, each of which require Seller’s written consent, which consent may be withheld in its sole discretion.
D. SHIPMENT AND DELIVERY
- For orders within the U.S., Seller will ship the Products FOB Seller’s point of shipment. For orders outside the U.S., Seller will ship the Products Ex-Works (Incoterms 2000) Seller’s point of shipment. Unless otherwise agreed in writing, Seller will pack the Products in accordance with its standard practices. Unless Buyer provides Seller with specific instructions, Seller will select the carrier. Buyer will be responsible for all freight, packing, insurance and other shipping-related costs and expenses. Title to the Products and risk of loss will pass to Buyer upon Seller’s delivery of the Products to the carrier.
- Buyer acknowledges that all scheduled shipment dates, including the Order Confirmation Shipment Date, are estimates only. Seller will make reasonable efforts to meet the scheduled shipment dates, but in no event will Seller be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery, nor will the carrier be deemed an agent of Seller. Seller will have the right to ship the Products in installments and separately invoice Buyer for such installments. Seller will have the right to allocate its available inventory of the Products among its buyers in such manner as Seller deems equitable. Seller will have the right to delay or suspend shipment of the Products if Buyer fails to make any payment as provided in these Terms and Conditions or if Buyer fails to meet Seller’s credit or financial requirements.
E. INSPECTION AND ACCEPTANCE
- Buyer will have a period of ten (10) days following receipt of a shipment of the Products to inspect the Products and must accept or reject them in writing within such period. If Buyer rejects the Products, Buyer must provide Seller with the specific reasons for such rejection and provide Seller a reasonable opportunity to inspect the Products. If Buyer fails to notify Seller in writing of its acceptance or rejection within such ten (10) day period, then the Products will be deemed accepted. Buyer may return Products to Seller only upon Seller’s prior written authorization.
- The prices for the Products will be as specified in an Order Confirmation, a written quote from Seller, or Seller’s standard price list, as applicable. Prices are stated in U.S. dollars and are exclusive of all applicable sales, use, excise, withholding, value-added and other taxes, duties and charges (collectively, “Taxes”). Unless Buyer timely provides Seller with a tax-exemption certificate acceptable in the appropriate taxing jurisdiction, Seller will include all Taxes as separate items on Seller’s invoice, which will be payable by Buyer pursuant to Section 7 hereof. Buyer will indemnify and hold Seller harmless from and against any liabilities, interest, penalties or fees assessed against Seller arising from any failure by Buyer to pay any Taxes.
G. PAYMENT TERMS
- Buyer must pre-pay the price applicable (including any sales taxes and surcharges) and shipping charges as of the time Buyer submits the order for the Products. Buyer must be at least eighteen (18) years of age to submit any payment. Payments may be made by wire payment, ACH payment, check or by credit card. Credit card processing requires Buyer to submit a credit card number and associated payment information including all of the following: (i) name as it appears on the card, (ii) credit card number, (iii) credit card type, (iv) the date of expiration, and (v) any activation numbers or codes needed to charge the card. By submitting credit card information to Seller or its third-party credit card processor, Buyer hereby agrees and authorizes Seller and/or its processor to charge Buyer’s card at Seller’s convenience but within thirty (30) days of credit card authorization. Seller will automatically bill your credit card or other form of payment submitted as part of the order process for the Products. Seller does not provide price protection or refunds in the event of a price drop or promotional offering.
H. LIMITED WARRANTY AND AVAILABILITY
Limited Warranty. Seller warrants that the Products shall be, as of the date of shipment of merchantable quality. As Buyer’s sole and exclusive remedy for any breach of the foregoing warranty, Seller will provide a refund or replace any Product it determines to be defective within forty-five (45) days of that determination. Any claims under the warranty shall be brought within thirty (30) days of the shipment date or be forever barred. Seller’s limited warranty does not apply to Products that have been customized or are not Seller branded, even if packaged or sold with Seller Products.
Disclaimer of all Other Warranties, Express or Implied. THE ABOVE WARRANTIES ARE IN LIEU OF ANY OTHER WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO PRODUCTS SUPPLIED UNDER THIS AGREEMENT. COMPANY SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY.
Product Recalls. If (i) any governmental agency having applicable jurisdiction shall order any corrective action with respect to the Products, including, without limitation, any recall or (ii) Seller determines to undertake any recall of the Products supplied hereunder, Buyer shall use its best efforts to cooperate with and follow the direction of Seller. Seller shall promptly reimburse Buyer for the invoice amount with respect to any recalled Products, including any shipping charges. To the extent that it is necessary to communicate with any third party, including but not limited to any governmental entity or regulatory body, the media, or any customer, concerning any recall or other corrective action, unless otherwise agreed by Seller, a Seller representative shall be the sole contact person concerning the remedial action.
Product Availability. Under no circumstances shall the Seller be responsible to Buyer or any other party for its failure to fill accepted orders, or for its delay in filling accepted orders.
Limitation of Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER (OR ANYONE CLAIMING UNDER OR THROUGH THE OTHER) FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE PURCHASE, SALE OR RESALE OF THE PRODUCTS BASED ON ANY LEGAL THEORY (INCLUDING LOSS OF PROFITS OR OTHER ECONOMIC ADVANTAGE) EVEN IF NOTICE IS GIVEN OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT IF THE LAW OF ANY JURISDICTION APPLICABLE TO THIS AGREEMENT DOES NOT PERMIT SUCH DAMAGES TO BE COMPLETELY DISCLAIMED, THIS CLAUSE SHALL BE INTERPRETED AS NECESSARY TO GIVE COMPANY THE FULL BENEFIT OF ANY DISCLAIMER OR LIMITATION OF SAID DAMAGES AS PERMITTED UNDER SUCH LAW. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY TO COMPANY UNDER THIS AGREEMENT FOR CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, ANY PRODUCTS OR THE RESALE OR USE THEREOF EXCEED AN AMOUNT EQUAL TO THE AGGREGATE DOLLAR AMOUNT OF PURCHASES OF PRODUCTS BY COMPANY IMMEDIATELY PRECEDING THE DATE ON WHICH COMPANY MAKES THE CLAIM.
- Buyer acknowledges and agrees that it is not authorized to solicit orders, distribute, resell, advertise, promote or display the Products to any third party without the express written consent of Seller.
- Buyer shall be solely responsible for, and shall indemnify and hold the Seller free and harmless from, any and all claims, damages or lawsuits (including the Seller’s attorneys’ fees) arising out of the acts of Buyer, its employees or its agents, including, without limitation, claims by third parties against the Seller as a result of or which arise from or in connection with the customization of any Products requested by Buyer, including without limitation: (i) infringements arising from combinations of the Products with non-Seller products or non-Seller intellectual property, or (ii) trademark infringements involving any marking or branding of any third-party.
K. GENERAL PROVISIONS
- These Terms and Conditions will be governed and construed in accordance with the laws of the State of California, excluding its conflict of laws principles. The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods. Any legal action or proceeding arising under these Terms and Conditions will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
- Buyer may not assign or transfer these Terms and Conditions, or any order accepted by Seller hereunder, in whole or in part, by operation of law or otherwise, without Seller’s express prior written consent. Any attempt to do so, without Seller’s consent, will be null and of no effect.
- Seller will not be responsible for any failure or delay in its performance under these Terms and Conditions due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.
- The failure by Seller to enforce any provision of these Terms and Conditions will not constitute a waiver of future enforcement of that or any other provision. If for any reason a court of competent jurisdiction finds any provision of these Terms and Conditions invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms and Conditions will remain in full force and effect.
- These Terms and Conditions constitute the complete and exclusive agreement between Seller and Buyer regarding its subject matter and supersedes all prior or contemporaneous quotations, agreements, communications or understandings, whether written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of these Terms and Conditions will be effective only if in writing and signed by duly authorized representatives of each party.
- Buyer will not export or re-export, directly or indirectly, the Products, or any technical information related thereto, or any direct products thereof, to any destination or person prohibited or restricted by the export control laws and regulations of the United States, without the prior authorization from the appropriate governmental authorities.
- All notices required or permitted to be given under these Purchase Terms and Conditions will be in writing and will be deemed given: (i) upon actual delivery, if made by personal service; (ii) three (3) days after mailing, if made by U.S. certified or registered mail; and (iii) one (1) business day after delivery to the courier or overnight delivery service, if made by courier or overnight delivery service. All notices will be addressed as set forth on the purchase order or Order Confirmation, as the case may be, or to such other address as the party who is to receive the notice so designates by written notice to the other.