Terms and Conditions of Sale
TERMS AND CONDITIONS OF SALE
All orders received by The Gund Company, Inc. (“Seller”) from Buyer (regardless of the media) are deemed to incorporate and be subject to these terms and conditions of sale (these “Terms”).
These Terms, and the terms of any individual purchase orders, may not be modified except by a written document signed by Seller’s duly authorized representative. These Terms will be sent to Buyer at the time of account origination or periodically as required. Notwithstanding the foregoing, Seller reserves the right to amend these Terms at any time. Unless Buyer objects to any of these Terms in writing within ten (10) days of receipt of notice of these Terms, Buyer will be deemed to have accepted these Terms. These Terms shall prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such general terms and conditions of purchase. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
1. Delivery. Except as otherwise provided in specific purchase orders, Seller shall tender delivery of an order by placement with carrier for shipment and delivery to Buyer. Title and risk of loss in respect of the goods passes to Buyer upon delivery of the goods to Buyer’s location. As collateral security for the payment of the purchase price of the goods, Buyer hereby grants to Seller a purchase money security interest in all of Buyer’s right, title and interest in, to and under the goods, wherever located, and all proceeds (including insurance proceeds) therefrom.
Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the goods at Buyer’s location. Seller shall not be responsible for freight transportation, duties, insurance, shipping, storage, handling, demurrage, or similar charges and Buyer shall bear the risk of any shortages of or inability to obtain shipping space or transportation. Seller shall not be liable for any delays, loss or damage in transit (except to the extent caused by improper packing by Seller).
All time and dates quoted by Seller for delivery of the goods are intended as estimates only. If for any reason Buyer fails to accept delivery of any of the goods, or if Seller is unable to deliver the goods at Buyer’s location because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) the goods shall be deemed to have been delivered, and (ii) Seller, at its option, may store the goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). Delivery will be deemed to have occurred at the date specified in the delivery documentation, which will be conclusive evidence of that fact and Seller will not be liable for any non-delivery unless Buyer notifies Seller in writing of non-delivery of goods (a) within 10 days of the due date for delivery or (b) within 10 days of the date when the goods would in the ordinary course of events have been received in the case of an alleged failure to deliver. Any liability of Seller for non-delivery of the goods shall be limited to replacing the goods within a reasonable time or adjusting the invoice respecting such goods to reflect the actual quantity delivered.
2. Inspection. If any specific purchase order provides for inspection or testing of the goods, such inspection or testing shall be made by Buyer within ten (10) days of receipt (the “Inspection Period”). Buyer will be deemed to have accepted the goods unless it notifies Seller in writing of any rejection within the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. Upon receipt of any such notice from Buyer, Seller shall be afforded a reasonable opportunity to inspect the goods.
In the event any portion of the goods delivered to Buyer is nonconforming, defective or is otherwise not in accordance with written contract specifications, Seller shall, in its sole discretion, (1) replace such goods with conforming goods, or (2) refund the portion of the purchase price for such goods. This shall be Buyer’s sole and exclusive remedy for defective or nonconforming goods. No goods shall be returned to Seller without Seller’s written consent and the use of Seller’s Return Authorization Procedure.
3. Price. Buyer shall purchase the goods from Seller at the prices set forth in the sales confirmation. Unless otherwise specified in the sales confirmation, all prices are exclusive of, and Buyer shall be responsible for, all shipping costs and all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer (excluding taxes imposed on Seller’s income). Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller’s invoice. Buyer shall pay interest on late payments at the lesser of (a) 1.50% per month and (b) the maximum rate allowable under applicable law. Buyer shall reimburse Seller for all costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses, whether or not there is litigation, and court costs) incurred in collecting any late payments. Buyer shall not withhold payment by reason of any right of set-off or claim or dispute, whether relating to Seller’s breach, bankruptcy or otherwise. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller.
4. Limited Warranty. Unless otherwise specified with respect to a particular good as provided by Seller in a writing signed by Seller, Seller warrants to Buyer for a period of 180 days from the date of original shipment to Buyer that the goods delivered to Buyer pursuant to these Terms shall be free from defects in materials and workmanship. Seller’s sole obligation under this warranty, and Buyer’s sole remedy, is limited to replacing or repairing, at Seller’s option, at its facility, any of the goods (except expendable parts thereof) that, within the warranty period, are returned to Seller and that are found by Seller to be defective in proper usage and not improperly stored, mishandled or abused. In lieu of repair or replacement, Seller may instead elect, in its sole and absolute discretion, to issue a credit to Buyer in the aggregate amount paid for such defective goods. Such repair, replacement or repayment will be made only upon return of the nonconforming goods, which may be returned at Seller’s cost only after inspection by Seller (which may be by Buyer returning a sample to Seller at Seller’s request) and Buyer’s receipt from Seller of definite shipping instructions. Buyer shall prepay transportation charges to Seller’s facility. If returned goods are repaired or replaced under terms of this warranty, Seller will prepay transportation charges back to Buyer and reimburse Buyer for any transportation charges incurred by Buyer in connection with the return to Seller of the properly rejected goods. These remedies are Buyer’s sole and exclusive remedy and Seller’s entire liability for any breach of this limited warranty.
EXCEPT FOR THIS LIMITED WARRANTY, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, AND THE LIMITED WARRANTY IS IN LIEU OF ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, ALL OF WHICH ARE HEREBY DISCLAIMED BY SELLER, INCLUDING, WITHOUT LIMITATION, ANY (1) WARRANTY OF MERCHANTABILITY, (2) WARRANTY OF NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, (3) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT ANY PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
5. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
EXCEPT AS RESULTING FROM SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR DEATH OR BODILY INJURY RESULTING FROM SELLER’S ACTS OR OMISSIONS, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ORDER HEREUNDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNT PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
6. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate these Terms and any purchase order between Buyer and Seller with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under; (ii) has not otherwise performed or complied with any of these Terms, 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 assignment for the benefit of creditors.
7. Compliance with Laws. Buyer shall comply with all applicable laws, regulations and ordinances, including any applicable export and import laws. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms and any purchase order between Seller and Buyer.
8. Confidentiality. All non-public, confidential or proprietary information of Seller disclosed by Seller to Buyer, whether or not marked, designated or otherwise identified as “confidential,” in connection with these Terms or a purchase order is confidential, solely for the purpose of fulfilling an order and may not be disclosed unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller’s confidential or proprietary information does not include information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
9. Governing Law and Venue. Any contracts between Buyer and Seller, including these Terms and any purchase order, are effective only when accepted by Seller. All matters arising out of or relating to such contracts shall be governed by and construed according to the laws of the State of Missouri, United States of America, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or based upon any contracts between Buyer and Seller, including these Terms and any purchase order, must be brought exclusively in the U.S. District Court for the Eastern District of Missouri or state court located in St. Louis County, Missouri. Buyer must institute any controversies, actions, or claims arising out of or relating to these Terms or a purchase order between Buyer and Seller within three (3) years after occurrence giving rise to the controversy or claim.
10. Import/Export. In the event that the order received by Seller from Buyer involves the export of goods outside the United States or import of goods from outside the United States to the United States, the following terms shall also apply:
a. Buyer (or Buyer’s designated export or import agent) shall be responsible for the timely application for, and obtaining and maintaining in Buyer’s name all necessary export or import licenses, exchange permits or any other authorization required by the governmental authorities in the jurisdiction to which export or from which import is made. Buyer and Seller agree to cooperate with each other when such cooperation is required for such licenses, permits or other authorizations and reasonably possible.
b. Seller shall not be liable if any governmental authorization is delayed, denied, revoked, restricted or not renewed, and Buyer shall not be relieved thereby of its obligations to pay Seller for goods or any other charges which are the obligation of the Buyer hereunder.
c. Except as otherwise provided in specific orders, all import or export duties, customs or other fees or charges shall be the sole responsibility of the Buyer.
d. All shipments of products by Seller outside of the United States are subject to export control laws and regulations. Buyer shall not make any disposition of U.S.-origin products purchased from Seller by way of transshipment, re-export, diversion or otherwise, other than in and to the ultimate country of destination specified on Buyer’s order, except as permitted by law.
11. Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under these Terms or a purchase order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable, including, but not limited to, acts of God, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, riots, strike, embargoes or industrial disturbances.
12. Severability. In the event that any provision or clause of these Terms is determined to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision or invalidate or render unenforceable such term or provision in any other jurisdiction, and to this end the provisions of these Terms.
13. Waiver. No waiver by Seller of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
14. Entire Agreement. These Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.