STANDARD SALES ORDER TERMS AND CONDITIONS
These Standard Terms and Conditions (the “Terms”) shall govern the sale of goods (“Goods”) by Spin Master, Inc. and its Affiliates (in either case, the “Seller”), to the buyer named in Seller’s email, facsimile, sales order, invoice, or other written communication (“Order”) referencing these Terms (the “Buyer”, and together with Seller, the “Parties”, and each, a “Party”). “Affiliate” means each Party and any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such Party.
The Order, these Terms, and the currently-effective Seller Authorized Reseller Policy (“Authorized Reseller Policy”), which can be found here and which is incorporated by reference (collectively, this “Agreement”) shall comprise the entire agreement between Seller and Buyer with respect to the sale of Goods by Seller, and shall supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties and communications, whether written or oral. This Agreement shall prevail and control over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer submitted an Order or other such terms of its purchase of Goods, and Seller explicitly rejects any such additional, contrary, conflicting or inconsistent terms. In the event of any direct conflict between the then-current Authorized Reseller Policy and these Terms, the following order of precedence shall control and apply: first, these Terms, and second, the then-current Authorized Reseller Policy. Fulfillment of any portion of an Order or request, if submitted, from Buyer, shall not constitute acceptance of any of Buyer’s terms and conditions and shall not supersede, amend or otherwise modify this Agreement. Additionally, Seller has the right to reject, terminate or otherwise modify an Order at any time, even after acceptance or partial performance, and whether based on commercial, financial, or other reasons. Buyer may not revoke, terminate, or modify a Purchase Order without Seller’s prior written consent. If Seller accepts the Order, Buyer is obligated to purchase all Goods set out in the Order at the price set out therein.
Seller may, in its sole discretion, update this Agreement (being the Terms and/or the Authorized Reseller Policy) from time to time. Seller shall provide Buyer with at least fifteen (15) days’ prior written notice of any material amendment to these Terms.
Delivery.
The Goods will be delivered within a reasonable time after the later of the receipt of Buyer’s Order, if one has been submitted, or the acceptance by Seller of an Order, subject to availability of Goods specified in such Order. Seller shall bear no liability for any delays, loss or damage in transit.
Unless otherwise agreed in writing by Seller, Seller shall deliver the Goods to Buyer at one of Seller’s U.S. warehouses or as specified in an applicable Order (the “Delivery Location”) using Seller’s standard methods for packaging and shipping such Goods, or, if different, the method of packaging and/or shipment set forth in an applicable Order accepted by Seller (“Delivery”). Buyer will pay all shipping and handling and any reasonable storage costs for Delivered Goods that it fails to collect in a timely manner. For clarity, “Delivered Goods” shall mean Goods delivered pursuant to Section 1.
If for any reason Seller or a shipping carrier (or their agent) is unable to deliver the Goods at the Delivery Location as a result of Buyer’s failure to provide appropriate delivery instructions, documents, licenses or other necessary authorizations, upon the first attempted Delivery at the Delivery Location: (i) the risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered and (iii) Seller, at its option, may choose to store the Goods until Buyer picks them up at such location as Seller may designate, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, any costs of storing and insuring the Goods while held at such location).
If Buyer fails to observe or perform any of its obligations (including, without limitation, payment by Buyer of any sum payable to Seller) under this Agreement, Seller may suspend shipment or Delivery of any Goods to Buyer.
2. Non-Delivery.
Seller shall bear no liability for any non-delivery of Goods (“Non-Delivery”) unless Buyer provides written notice to Seller of such Non-Delivery within three (3) days of the date when the Goods would, in the ordinary course of events, have been received.
Seller’s liability for any Non-Delivery shall be limited to, in Seller’s sole discretion (i) the cost of replacement of Goods related to such Non-Delivery within a commercially reasonable time, or (ii) the provision of an adjustment in Buyer’s favor of any invoice associated with the applicable Order.
3. Terms of Shipment.
Except as otherwise specified in an applicable Order or invoice as provided by Seller, Delivery shall be made EXW (Incoterms® 2020) at Seller’s shipping point.
Title, risk of loss and damage passes on Delivery to the Delivery Location and in accordance with the applicable universally accepted Incoterms.
Buyer hereby irrevocably and unconditionally grants to Seller a security interest in and to, and a lien upon, all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this Section 3(c) shall constitute and be deemed a “purchase money security interest” or its equivalent under applicable Law and shall be perfected and enforced in accordance with applicable Law. Buyer further agrees to execute and deliver such additional documents and take such further actions as Seller may reasonably request to effectuate the purposes of this Section 3(c), including the perfection, priority, continuation or enforcement of Seller’s security interest.
4.Inspection and Rejection of Non-Conforming Goods.
Buyer shall inspect Delivered Goods upon receipt. Buyer will be deemed to have accepted Delivered Goods unless Buyer promptly, but in any event within ten (10) days of Delivery (the “Inspection Period”), provides written notice to Seller that such Delivered Goods are not the Goods specified in an Order (“Non-Conforming Goods”), which notice shall include reasonable form of evidence of any such non-conformity.
If Buyer notifies Seller following Delivery and within the Inspection Period that any Delivered Goods are Non-Conforming Goods, Seller shall, in its sole discretion, (i) replace such Non-Conforming Goods, at Seller’s expense (exclusive of shipping costs), with Goods conforming to the applicable Order, or (ii) credit or refund the price invoiced to Buyer for such Non-Conforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its sole expense and risk of loss, any Non-Conforming Goods to Seller’s return address as set forth in the applicable Order.
Buyer acknowledges and agrees that the remedies set forth in Section 4(b) shall be Buyer’s exclusive remedies in the event of any Delivery of Non-Conforming Goods. Except as otherwise provided in Section 4(b), Buyer shall have no right to return Goods Delivered in accordance with the terms of this Agreement.
Seller shall have no obligation to provide, and Buyer shall have no right to seek, a refund for any Goods which are counter-damaged or shop-worn.
If Buyer intends to liquidate, discontinue or otherwise dispose of the Goods for any reason, Seller may buy back any or all Goods from Buyer. Buyer will give Seller with at least fifteen (15) days prior notice in the event of such liquidation and will give Seller adequate opportunity to re-purchase such Goods at the same price set out in the Order.
5.Price and Minimum Order Value.
Buyer shall purchase the Goods from Seller at the price or prices (the “Price” or “Prices,” as applicable) set forth in the applicable Order.
Seller will charge, and Buyer will pay, all sales or other taxes as required by applicable Law, unless Buyer provides Seller with a sales exemption certificate.
Buyer must purchase at least a minimum of $500 worth of Goods per Order.
6.Payment Terms.
Unless otherwise expressly stated on an applicable invoice, all fees and charges shall be payable in advance and are due prior to Delivery of the Goods.
To the extent permitted by applicable Law, Buyer shall pay late payment fees on all late payments at the rate of one-half percent (1.5%) per month, calculated daily and compounded monthly (18% per annum), or the maximum rate permitted by applicable Law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, third-party collection agency costs and attorneys’ fees. Acceptance by Seller of any late payment shall not operate to excuse or otherwise relieve Buyer from its obligation to pay interest accrued thereon as of the date of such late payment. Seller’s acceptance of any late payments, whether or not such payments include late payment fees accrued thereon, shall not be deemed to diminish or otherwise restrict or modify Seller’s rights or privileges set forth in these Terms.
Without limiting the generality of the foregoing, Seller reserves the right to demand adequate assurance of performance pursuant to Sec. 42a-2-609 of the Uniform Commercial Code – Sales and to suspend its own performance, to the extent Seller has reasonable grounds for insecurity of Buyer’s performance, including performance of Buyer’s payment obligations to the extent applicable.
7. Buyer’s Representations and Warranties.
Buyer represents and warrants to Seller that, (i) it has full power, right, and authority to enter into this Agreement; (ii) its intellectual property, if any, or its use of such intellectual property under any agreement entered into with Seller does not infringe any third party patents, copyrights, trademarks, trade secrets, or other intellectual property rights and there are no suits or proceedings pending or threatened which allege any infringement by Buyer of such intellectual property rights; (iii) the Goods will be lawfully marketed, advertised, promoted, sold and distributed; (iv) Buyer will not act in a manner that reasonably reflects adversely upon the good name of Seller; and (v) Buyer shall comply with all applicable laws, rules, orders, regulations, and ordinances of any governmental authority (collectively, “Law(s)”) (and if applicable, all export and import Laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer) applicable to this Agreement and to Buyer’s purchase and/or use or resale of the Goods and Buyer shall maintain in effect at all relevant times all licenses, permissions, authorizations, consents and permits necessary or required by Laws to carry out its obligations under this Agreement.
8. Limited Warranty.
To the extent permitted by applicable Laws, and in respect of U.S. domestic sales only, Seller warrants to Buyer that for a period of one (1) year from the date of shipment of the Goods (the “Warranty Period”), that such Goods will be free from material defects in material and workmanship.
EXCEPT FOR THOSE WARRANTIES SET FORTH IN SECTION 8(a) OF THESE TERMS, SELLER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Notwithstanding Section 8(a) (if applicable), Seller shall not be liable for a breach of the warranty set forth in Section 8(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within five (5) days of the time when Buyer discovers or could have discovered the defect (a “Defect Notice”); (ii) Seller is given a reasonable opportunity after receiving a Defect Notice to examine such Goods and Buyer returns such Goods to Seller’s place of business at Seller’s cost for such examination; and (iii) Seller determines, in its reasonable discretion, that such defects exist and that the Goods do not conform with the warranty provided in Section 8(a) (if applicable).
Notwithstanding Section 8(c), under no circumstances shall Seller be liable for a breach of the warranty set forth in Section 8(a) (if applicable) if: (i) Buyer makes any further use of such Goods after giving a Defect Notice; (ii) a defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
Subject to Section 8(c) and Section 8(d) hereof, with respect to any such Goods that breach the warranty set forth in Section 8(a) during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods or (ii) credit or refund the Price of such Goods at the pro rata Order rate provided that Buyer returns any defective Goods to Seller.
THE REMEDIES SET FORTH IN SECTION 8(e) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY, AND SELLER SHALL HAVE NO OTHER LIABILITY TO BUYER, FOR ANY BREACH OF THE WARRANTY CONTAINED IN SECTION 8(a).
Buyer will not liquidate or resell defective Goods. In Seller’s option and sole discretion, Buyer will (i) destroy all defective Goods and will never sell such Goods for salvage by any means, or (ii) return such defective Goods to Seller.
9. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SELLER IS NOT LIABLE FOR LOSS OF USE, REVENUE, OPPORTUNITIES, REPUTATION, OR PROFIT OR DIMUNITION IN VALUE, ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES WHETHER UNDER BREACH OF CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DAMAGES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD PURSUANT TO THE APPLICABLE ORDER AT ISSUE.
10. Indemnification.
Buyer will indemnify, defend and hold harmless Seller and its past, present, and future parent companies, Affiliates, subsidiaries, predecessors, successors, assigns, and each of their respective officers, directors, members, managers, employees, agents, representatives and insurers(together, the “Indemnitees”), against and in respect of any claims, damages, losses, charges, liabilities, payments, penalties, costs or expenses (including, without limitation, reasonable legal and other professional fees) imposed on or incurred by the Indemnitees as a result of or in connection with: (a) any negligent action, omission or willful misconduct of Buyer; (b) the manner in which the Goods are advertised, marketed, promoted or sold by Buyer; (c) any breach of any representation or warranty, term or obligation under this Agreement or any other agreement signed with Seller; or (d) Buyer’s use or display of Point of Sale Materials. Notwithstanding the foregoing, Seller shall have the right, at its option and at Buyer’s sole cost and expense, to assume control of the defense of any such claim. Buyer shall not settle, compromise or otherwise resolve any such claim without Seller’s prior written consent, which may be granted or withheld in Seller’s sole discretion. Buyer shall fully cooperate with Seller in the defense of any such claim and shall promptly reimburse Seller for all defense costs incurred.
11. Waiver of Jury Trial.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
12. Retail Practices.
Buyer represents and warrants to Seller that, in the event Buyer displays the Goods for retail in any physical location or store, that in each such case, (i) Buyer shall display the Goods in a reasonably prominent location and fashion consistent with Seller’s premium brand image; and (ii) Buyer shall not commingle the Goods with products or wares produced, manufactured or sold to Buyer by anyone other than Seller. Seller will provide Buyer with current Goods information and/or content, including images of the Goods, to be used in any advertisement of the Goods, which are preapproved by Seller in writing (“Seller Content”). During the term (which, for clarity, shall mean the period commencing on the Effective Date and continuing until terminated in accordance with this Agreement), Seller grants Buyer a limited revocable, non-exclusive, non-transferable, non-sublicensable and royalty-free license to use, copy, display, perform and distribute Seller Content, and to use all trademarks or trade names that have been preapproved by Seller in writing and are included in the Seller Content, in each case for the sole purpose of marketing, advertising, promoting and selling the Goods consistent with this Agreement. This limited license will cease upon termination of Buyer’s status as an “authorized” retailer of the Goods. Buyer will not use any mark confusingly similar to Seller’s trademarks nor use Seller’s trademarks in a misleading manner. Buyer will not apply for and/or register any of Seller’s trademarks or anything confusingly similar thereto. Buyer will use Seller’s trademarks in accordance with Seller’s guidelines as may be provided from time to time and will not alter or modify the trademarks or use them in any manner that might disparage or injure Seller’s reputation. All right, title, and interest in and to Seller’s Goods information, Seller Content and intellectual property will remain exclusively with Seller.
Seller may provide Buyer with Seller-branded shelving, racks, displays, demos/floor models, signage or other similar point of sale marketing materials (collectively, “Point of Sale Materials”). Seller may, in its sole discretion, provide Point of Sale Materials to Buyer free of charge; provided, however, that Seller may indicate on an applicable Order the value of such Point of Sale Materials (the “Point of Sale Materials Value”). In the event that Seller provides Buyer with Point of Sale Materials, Buyer agrees to implement and use the Point of Sale Materials only for their intended use, that any Point of Sale Materials shall be displayed in a reasonable location and manner and that Buyer shall maintain the Point of Sale Materials in good, working order, and in a manner consistent with Seller’s premium brand image.
In the event that Buyer breaches any of its obligations set forth in this Agreement, Buyer shall pay to Seller the Point of Sale Materials Value for any Point of Sale Materials which were provided to Buyer by Seller free of charge pursuant to Section 12(b) hereof, and this value will be added to the payment terms and obligations set forth above.
13.Force Majeure.
If Seller is prevented, hindered or delayed in the performance of any obligation under these Terms by a Force Majeure Event, such obligation will be suspended during the continuance of such Force Majeure Event, and Seller will not be deemed to have breached these Terms, provided that Seller promptly notifies the other Party and uses commercially reasonable efforts to mitigate such failure or delay. “Force Majeure Event” means any circumstances or causes beyond Seller’s reasonable control. Seller may terminate these Terms or any affected Orders if such failure or delay continues for a period of 30 days or more without any penalties or fees.
14. Confidentiality.
Each Party, to the extent that the Parties have not entered into a non-disclosure agreement, will, and will cause its Affiliates to, hold in strict confidence and take all steps necessary to protect and prevent the disclosure of any information imparted to it (the “Receiving Party”) by the other Party or its Affiliates (the “Disclosing Party”) which pertains to any aspect of the Disclosing Party’s business that: (i) is identified to the Receiving Party as confidential information by the Disclosing Party; (ii) is not the subject of general public or industry knowledge, including without limitation, Seller’s price list and the terms of this Agreement; or (iii) that could otherwise reasonably be considered to be confidential information. This provision will survive the expiry or termination of this Agreement. If the Parties have entered into a non-disclosure agreement, then the terms of such agreement shall govern.
15.Termination.
Notwithstanding anything else in the Agreement, Seller shall have the right to terminate this Agreement for convenience at any time, upon ten (10) days prior written notice to Buyer. In addition to any other remedies that may be provided under this Agreement, at Law or in equity, Seller may immediately terminate this Agreement, without notice, if Buyer:
(i) fails to pay any amounts owed when due under this Agreement, and such failure continues for five (5) days after the date of such written notice of nonpayment;
(ii) has not otherwise performed or complied with this Agreement, in whole or in part; or
(iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or any assignment for the benefit of its creditors. Upon termination of this Agreement, Seller may, in its discretion, cancel all outstanding and unfulfilled Orders.
17. Waiver.
No waiver by Seller of any of the provisions of this Agreement shall be effective unless such waiver is expressly set forth in writing and signed by Seller. Neither a failure to exercise nor any delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate as, or be construed or deemed to be, a waiver thereof. The exercise of any right, remedy, power or privilege hereunder by Seller shall not preclude the exercise of any other right, remedy, power or privilege available to Seller, either under this Agreement or at Law or in equity.
18. Assignment.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation shall relieve Buyer of any of its obligations under this Agreement. Seller shall have the right to freely assign this Agreement hereunder without the consent of the Buyer.
19. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the Parties hereto. For clarity, except as expressly provided herein, nothing in this Agreement shall be construed to give any person or entity (other than the Parties hereto and their respective legal representatives, successors and permitted assigns and as expressly provided herein) any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenants, conditions or provisions contained herein, as a third-party beneficiary or otherwise; provided, that the Indemnitees shall have the right to enforce their rights under Section 10 and shall be third-party beneficiaries of the provisions of Section 10. Nothing herein, express or implied, shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
22. Governing Law and Venue.
This Agreement, and any dispute or conflict arising hereunder, shall be governed by and construed in accordance with the internal Laws of the State of New York without giving effect to the internal choice of Laws rules thereof. In addition, to the extent a claim is brought in a court or other tribunal, for purposes of jurisdiction and venue, any litigation or dispute arising out of or concerning this Agreement, shall only be brought in the State of New York. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
23. Cumulative Remedies.
All rights and remedies available to Seller under this Agreement are cumulative and are in addition to, and not in lieu of, any other rights or remedies available to Seller at Law or in equity. The exercise of any one remedy by Seller shall not preclude the exercise of any other remedy.
24. Notices.
All notices, request, consents, claims, demands, waivers and other communications hereunder (“Notices”) shall be in writing and addressed to the Parties at the addresses set forth on the face of an applicable Order or to such other address that may be designated by the receiving Party in writing from time to time. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), e-mail (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, Notices shall be effective only (a) upon receipt by the receiving Party, and (b) if the party giving the Notice has complied with the requirements of this Section.
25.Severability.
If any term or provision of this Agreement is held or finally determined invalid, illegal or unenforceable by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.