TERMS AND CONDITIONS OF SALE
TO INDEPENDENT STORES
The following terms and conditions apply to all
transactions between indiCo, LLC (“indiCo”) and
the entity identified as the customer on an order (“Customer”).
By placing an order with indiCo, Customer agrees to be bound and accepts these
terms and conditions of sale (this “Sales Agreement”),
which apply to all orders and purchases from indiCo. Please read these terms
and conditions carefully.
CUSTOMER ELIGIBILITY. Any independent store is eligible to purchase merchandise from indiCo. After creating an account, indiCo will confirm based upon publicly available information and Customer’s information whether the store is an independent store, including:
Independent stores do not include:
indiCo will respond promptly to a new account request; Customer may be contacted by indiCo for credit information at indiCo’s discretion. Customer will typically have access to view prices and place orders within 24 hours.
GENERAL. All sales by indiCo are made subject to this
indiCo expressly rejects any different or additional terms or conditions of
any prior agreements or anything contained in any documents submitted by Customer. Each
provision of credit, acceptance of any purchase order, and sale of any goods are expressly made conditional
on Customer’s assent to this Sales Agreement. Violations of this
may result in one or more of the following: the cancellation of existing orders, the termination of
Customer’s business relationship with indiCo, or appropriate legal action.
acceptance nor shipment of any order obligates indiCo to accept from
or Customer to place with indiCo, orders in the future.
indiCo and Customer agree that indiCo may modify this Sales Agreement from time to time, and such modifications shall be binding upon Customer upon written notice to Customer.
TERMS OF PAYMENT. Payment for goods received by Customer, its employees, or designees is due and payable pursuant to this Sales Agreement and as indiCo states on any invoice. indiCo may, at its discretion, charge a service fee of 1.5% per month or the maximum rate permitted by law on all payments for goods not received from Customer within the number of days specified on the applicable invoice. Customer shall be responsible for all costs, expenses, collections agency commissions, and reasonable attorneys’ fees that indiCo incurs in the collection of any past-due invoices payable by Customer. If, in indiCo’s sole discretion, Customer’s credit becomes impaired, indiCo may suspend deliveries until such time as indiCo has received full payment for all goods already delivered or in process and is satisfied (in its sole discretion) as to Customer’s creditworthiness for future deliveries. If indiCo suspends deliveries pursuant to this paragraph, and later proceeds with such deliveries, the delivery dates set forth in the purchase order shall be extended for a reasonable amount of time to allow for delivery. If Customer fails to make timely payment to indiCo for any amounts due and owing, indiCo shall have the right to terminate any outstanding purchase orders or unfulfilled portion thereof, and any other agreement between indiCo and Customer. If Customer refuses delivery to avoid fulfillment of a purchase order, or refuses to provide instructions for redelivery, indiCo may charge Customer all freight charges.
PURCHASE PRICE. The purchase price of goods shall be as stated on the face of the applicable indiCo sales order acknowledgment. All prices are subject to change without notice. Customer must notify indiCo in writing within 15 calendar days after receipt of an invoice of any price disputes. If Customer fails to notify indiCo within such 15 calendar day period, Customer shall be deemed to have accepted such invoice and all Customer claims with respect to such invoice shall be deemed waived.
FREIGHT TERMS. indiCo will prepay shipping costs for standard shipping on orders exceeding $50, except for store fixtures, other items specifically identified by indiCo to not be eligible for free shipping, and orders for shipment to Canada. indiCo is not responsible for, and Customer must accept the shipping costs associated with Customer’s deliveries unless otherwise agreed in a purchase order. indiCo will not accept freight deductions. All deductions will be re-submitted to Customer for payment. Any specific freight requests or accommodation waivers must be reviewed and approved by indiCo management prior to shipments.
RETURN POLICY. Returns will only be accepted for orders incorrectly processed by indiCo, or faulty or damaged current selling season goods where a clear manufacturer defect exists (in which case indiCo may request images and may, at indiCo’s discretion, instruct Customer to destroy the goods. All returns must be approved in advance in writing by indiCo or by phone. If the return is approved, indiCo will provide written instructions.
DELIVERY. All deliveries are “ex warehouse,” meaning the goods become the property of Customer upon transfer to the shipping company at the applicable indiCo distribution center. Customer assumes the risk of damage to or loss of product in delivery by indiCo to Customer. Customer must note any damage or loss to the carrier on carrier’s delivery receipt and notify the carrier within 5 days after discovery of any such damage or loss. Customer must report all shortages in shipments to indiCo and must file all claims for such shortages with the carrier of record. In reporting such shortages to indiCo, Customer must provide an invoice number and order number, as well as a list of the product at issue itemized by code, size, and quantity.
CANCELLATIONS. This Sales Agreement and any purchase orders must be signed and dated by an authorized representative of Customer. No cancellations or modifications are permitted after the purchase order is received by indiCo. If any cancellation (total or partial) is requested after the purchase order is received by indiCo, that cancellation may be accepted by indiCo in its sole and absolute discretion but shall be subject to Customer paying a cancellation fee to be determined by indiCo.
RESTRICTIONS ON SALES. Unless indiCo otherwise approves in writing, Customer is only permitted to sell indiCo products through its retail locations or through online stores operated by Customer, and not through any other physical or online location. Customer is only permitted to sell indiCo products to individual consumers and Customer must take commercially reasonable steps to assure that no sales are made to persons or entities other than individual consumers.
INTELLECTUAL PROPERTY. Neither the acceptance nor shipment of any order by indiCo creates any rights accruing to Customer to products other than as expressly set forth in this Sales Agreement. None of the acceptance of any order by indiCo, the shipment of any order by indiCo, or the provision of indiCo Display Materials (defined below) by indiCo creates any intellectual property rights accruing to Customer, and Customer agrees not to challenge the rights of indiCo, or any of its affiliated companies, in or to indiCo’s intellectual property.
LABELS AND MARKETING MATERIAL. Each product must be sold by Customer with the label affixed and without modifying or changing any indiCo name, trademark, or design. The label may not be used by Customer for any other purpose. indiCo may, in its sole and absolute discretion, provide Customer with fixtures, visuals, and promotional materials, signage and logos (collectively, “indiCo Display Materials”) from time to time. All indiCo Display Materials provided by indiCo to Customer shall be returned to indiCo within 30 days after indiCo’s request.
FORCE MAJEURE. indiCo shall not be liable for any failure or delay in delivery or in its performance under these terms and conditions due to any cause beyond indiCo’s reasonable control, including, without limitation, any act of war or civil insurrection, national emergencies, acts of God, fire, explosion, storm, earthquake, flood, embargo, riot, sabotage, industry-wide strikes, lockouts, labor difficulties, supplier failures, unavailability of materials, or governmental acts. Where a product scheduled for delivery becomes unavailable as a result of a force majeure event, indiCo may offer a substitute product for which a new purchase order will be required from Customer.
LIMITATION OF LIABILITY.
INDICO SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR INDIRECT DAMAGES (INCLUDING FOR LOST PROFITS OR ANTICIPATED PROFITS, CUSTOMER REPUTATION, LOST INCOME OR REVENUE, OR COST OF SUBSTITUTE GOODS) REGARDLESS OF THE CLAIM OR CAUSE OF ACTION, WHETHER OR NOT INDICO WAS AWARE OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER AGREES THAT IN NO EVENT SHALL INDICO’S LIABILITY FOR ANY CLAIM WITH RESPECT TO ANY PURCHASE ORDER BE MORE THAN THE COST OF THE GOODS SUBJECT TO SUCH PURCHASE ORDER.
indiCo shall not be responsible for any delay in delivery or cancellation of production. If Customer has prepaid for goods, Customer will be entitled to a pro rata refund for the portion of goods not delivered. indiCo reserves the right, in its sole and absolute discretion, to deliver partial orders and is not obligated to deliver whole orders. indiCo will attempt to notify Customer in a timely manner if any incidents arise in the manufacturing or supply process that are reasonably likely to adversely affect any Customer order.
ASSIGNMENT. This Sales Agreement may not be assigned by Customer without indiCo’s prior written consent. Notwithstanding the foregoing, either party may assign this Sales Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by Customer to assign this Sales Agreement in breach of this paragraph shall be void and of no effect.
MISCELLANEOUS. This Sales Agreement is governed by New York law without regard to its conflicts of law rules. indiCo and Customer consent to exclusive jurisdiction in Lorain County, Ohio in connection with all disputes related in any way to this Sales Agreement and consent to service of process by nationally-recognized overnight courier. If there is a dispute or litigation relating in any way to this Sales Agreement or to goods delivered by indiCo to Customer, indiCo reserves the right to reclaim all goods delivered by indiCo that have not been paid for by Customer. No provision of this Sales Agreement may be waived except in a writing signed by indiCo. indiCo’s failure to insist on timely performance of any Customer obligation will not constitute a waiver, and no waiver by indiCo of any breach or default by Customer will be deemed to be a waiver of any other breach or default. The terms and conditions contained in this Sales Agreement are severable. If there is a judicial determination that any term or condition in this Sales Agreement is unlawful or unenforceable, such term or condition shall be deemed enforceable to the extent permitted by applicable law and the remaining terms and conditions shall remain in full force and effect. The provisions of this Sales Agreement that by their nature are intended to survive termination shall survive.