ANY ORDER SOLD BY NINE DEGREES SOUTH, INC. AS WELL AS ANY ACCEPTANCE BY NINE DEGREES SOUTH, INC. OF A PURCHASER'S ORDER IS EXPRESSLY MADE CONDITIONAL UPON PURCHASER'S ASSENT TO THESE TERMS AND CONDITIONS OF SALE AND NO OTHERS PURCHASER’S TAKING DELIVERY OF ANY PRODUCT OR PAYMENT OF ANY INVOICE SHALL BE CONCLUSIVE EVIDENCE OF SUCH ASSENT.
Reference: Nine Degrees South, Inc., will henceforth be referred to as NDS.
Orders: All orders are subject to acceptance by an authorized official of NDS. The order or orders will be deemed to occur only upon the tendering of delivery of the products that are the subject of such order to the carrier for delivery to Purchaser. Order acceptance by NDS is limited to the terms stated herein and in any special retail dealer agreement. Such terms and conditions shall control irrespective of any inconsistent, different or additional terms and conditions, whether printed or otherwise, set forth in any communication from Purchaser to NDS, including without limitation in any Purchaser purchase order, confirmation, routing guide or manual revision and NDS hereby rejects any such inconsistent, different or additional terms or conditions unless otherwise specifically agreed to in writing by NDS without limiting the foregoing. NDS further rejects terms and conditions inconsistent with, different from or additional to those contained herein which are contained on any website of Purchaser for which access is conditioned on acceptance of such terms and conditions.
A functional acknowledgment sent on receipt of an electronic order does not constitute acceptance of electronic data order.
Minimum Order Size: Any orders accepted for a packing level of less than twenty four (24) units shall be subject to a twenty-dollar ($20) handling charge.
Special Orders: Will not be accepted or processed knowingly by NDS. If Purchaser, places a special order in the context of and with a standard order for retail inventory, it will be considered non-returnable to NDS for any reason.
Prices: No employee, NDS sales representative or any other party other than an officer of NDS is authorized to alter NDS pricing and other terms and conditions of sale. All prices are subject to change without notice from NDS. Orders will be billed at prices prevailing at the time of order as reflected on NDS then current price list. NDS will not recognize any terms outside of its standard programs except as specifically agreed in writing by NDS. The amount reflected in a NDS invoice will be deemed accepted and binding upon Purchaser unless Purchaser notifies NDS in writing of a dispute within fourteen (14) days of the date of the invoice.
Payment Terms: Terms of payment shall be net thirty (30) days from the invoice date. Purchaser shall not set off against or deduct from any amounts due to NDS hereunder all or any part of any amounts owed or alleged to be owed by NDS to Purchaser. Chargeback's will not be accepted by NDS unless agreed to in writing between NDS and Purchaser. A service charge of 1 1/2 % per month will be charged on all past due invoices plus costs of collection (including attorneys' fees). This is an annual percentage rate of 18%.
Each Order placed by Purchaser and accepted by NDS shall be considered an independent transaction, and payment therefore shall be due accordingly. If NDS, in its sole discretion, at any time is unsatisfied with Purchaser's financial responsibility, or believes it needs further assurance that Purchaser will pay for outstanding orders, NDS shall be entitled to require Purchaser to pay for its orders on a cash-in-advance basis. If Purchaser is in default under any agreement with NDS or fails to comply with any written rule or policy of NDS, then NDS shall have the right, without prejudice to any other legal remedy, of canceling all outstanding orders, until payment of all obligations of Purchaser to NDS is received in full. NDS shall retain a security interest in the goods covered by an order and the proceeds thereof, with Purchaser agreeing to execute all documents which may be necessary or appropriate to protect and perfect NDS security interest therein.
Collection Agency: NDS shall have the option to sell the Purchaser's debt to a collection agent.
Audit Claims: NDS invoices will not be subject to any audit claim by Purchaser unless Purchaser notifies NDS within fifteen (15) days after the date such invoice is due.
Delivery: NDS will choose a nationally recognized delivery company unless agreed to in writing to use a carrier of Purchaser's choice. NDS reserves the right to make partial shipments within the shipping window indicated on the order by the Purchaser. Partial deliveries will be billed upon shipment.
Changes in Orders: Changes in orders will be considered only within process of order confirmation. Once the Purchaser, via fax, letter or email, has approved the Order Confirmation form no more changes will be accepted.
Order Termination by Purchaser: Non-Logoed orders may be cancelled by the Purchaser only upon written authorization by a NDS official at Corporate Headquarters in Bellevue, WA. The cancellation will be considered if requested no later than one (1) business day after order confirmation. Any orders to be logoed must be canceled by the Purchaser one (1) business days after receipt of the logo confirmation. Any product that has the Purchaser's logo affixed cannot be cancelled and will be accepted by the Purchaser for payment. Purchaser's cancellation must be received by Fax or Email.
No Transshipments: Resale or transshipment of NDS merchandise to unauthorized location is expressly prohibited. Violation of terms and conditions of sale may result in cancellation of existing orders and/or termination of Purchasers business relationship with NDS. It is understood and agreed that said prohibition of transshipment includes without limitation sales via the internet and other media, fulfillment of sales originating from electronic media, as well as sales through mail, direct order or catalogues, unless expressly authorized by a NDS corporate officer at Bellevue, WA. Office.
Change of Ownership or Buyer for Retail Establishment: In event of a partial or total change in ownership or authorized Buyer for Purchaser, will honor any orders in process under the terms and conditions of this agreement to conclusion of shipment and payment.
The new owners will apply to NDS for a contractual relationship through the headquarters in Bellevue, Washington.
Representative Amount of the Line: NDS sells only to retail outlets, which carry a representative amount of the line, deemed appropriate by NDS and to market the line in proper display and sales methods. Failure on the part of a retailer to do contravenes the terms and conditions of this agreement and may result in the cancellation of existing orders and termination of Purchaser's relationship with NDS.
Distribution Channels: NDS reserves the right to limit the distribution of some product lines or segments to certain selected distribution channels.
Design Changes: NDS reserves the right to discontinue product lines and to make changes offered in products at any time.
Allocations: Acceptance of orders and shipments are subject to allocation by NDS in times of product shortages in response to factors deemed most appropriate by NDS at the time.
Merchandising of Products: Customer agrees to provide prompt courteous service to its NDS consumers and proper display of the product.
Shortages: All claims for lost or damaged shipments must be made directly to the delivering carrier. Shortages due to packing errors or shortage in cartons (cases) must be reported to NDS Account Service Representative at NDS Bellevue headquarters within fifteen (15) days of receipt of the product.
Return Goods Policy: All returns are subject to pre-authorization by NDS Account Service Representative. Credit will not be issued on items not pre-authorized for return. The returned item will be assessed under the terms of the Limited Warranty to be accepted by NDS. If a return meets the aforementioned criteria it will be credited to the customer's account at full value less a fifteen (15) percent restocking charge. All returned logoed product will become the property of NDS to be disposed of by NDS as deemed necessary. Any returns from a billed order does not constitute relief of Purchaser to pay for any and all retained product in accord with Terms and Conditions.
Customer Routing and Logistic Requirements: NDS will not be bound to terms, directives or requirements set forth by Purchaser through Routing and Logistic Guides unless NDS agrees to do so in writing. Purchaser may incur charges for Value Added Services (labeling, ticketing and special packaging). Routing and Logistic Manuals must be sent to Corporate Headquarters in Bellevue, WA.
Limited Warranty: NDS warrants its products, at the time of shipment, are free from defects in workmanship and materials. THE WARRANTY DESCRIBED IN THIS PARAGRAPH SHALL BE LIEU OF ANY OTHER WARRANTY EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, AN IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Purchaser's remedies are exclusively limited to replacement of or credit for any defective product (at the option of NDS) but such replacement or credit shall be made only if the Purchaser follows the terms and conditions set forth herein under the “Return of Goods Policy” section.
Force Majeure: If a delivery date is specific, that date will be extended to the extent that deliver is delayed by reason of fire, flood, war, riot, strike, natural disaster or any event beyond NDS reasonable control and if, as a result of such a delay, the goods ordered are unavailable, NDS may substitute comparable goods.
General: This contract shall be construed and enforced in accordance with the laws State of Washington. The State of Washington courts (state and federal) will have exclusive jurisdiction of any controversy between Purchaser and NDS and to any court action brought by either party against the other outside of the State of Washington. Both NDS and Purchaser waive their rights to a jury trial in any controversy or court action between them. Any action for breach of contract must be commenced within one (1) year from the date of the delivery of the goods. Purchaser's rights under this contract may not be assigned, transferred, or sold by Purchaser without the prior written consent of NDS and such assignment will be void. NDS may assign this contract only to a parent, subsidiary, or an affiliated firm, or to another entity in connection with the merger, sale or transfer of all or substantially all of it's business. Subject to these restrictions, the provisions of the contract shall be binding upon and inure to the benefit of the parties, their successors, and permitted assigns. Terms and Conditions are subject to change by NDS without prior notice. NDS authorized retailer agreement and these Terms and Conditions of sale constitute the entire agreement between the parties with respect to the subject matter hereof and supercede all previous agreements or understandings between the parties with respect thereto. No additions to, deletions from, or modification of any of the provisions herein shall be binding upon NDS unless made in writing and assigned by a duly authorized representative of NDS, the terms and conditions herein being final, complete and exclusive statement of terms of agreement between NDS and Purchaser.
