TERMS AND CONDITIONS OF USE
These terms and conditions (these “Terms and Conditions”) apply to all orders of products (the “Products”) from Persifor, LLC (“Seller”) by a buyer (“Buyer”). Persifor reserves the right to change, modify, alter or delete these Terms and Conditions from time to time in its sole discretion.
1. ACCEPTANCE OF ORDER BY SELLER. Seller shall not be deemed to have accepted any order (or any portion thereof) of Buyer, with respect to any Products, until such order shall have been approved by Seller at its home office. The acceptance by Seller of any order for any Products is based upon the express condition that Buyer agrees to accept and be bound by all of these Terms and Conditions. Buyer's order, acceptance, sale or delivery of, or payment for, any of the Products shall constitute Buyer's assent to these Terms and Conditions. These Terms and Conditions shall control irrespective of any inconsistent or additional terms and conditions, whether printed or otherwise, set forth in any communication between Buyer and Seller, or which otherwise would be deemed established by any course of dealing, course of performance or usage of trade, unless otherwise provided herein or specifically agreed to in writing by Seller.
2. ORDER CONFIRMATION; INVOICES. Upon receipt of an order for the Products, Seller may, at its option, acknowledge such receipt by forwarding to Buyer an order acknowledgement (an “Acknowledgement”). Opening orders must meet a minimum of $1,000. Any such Acknowledgment shall not be deemed to constitute Seller's acceptance of the order or any portion thereof; such acceptance shall only occur as provided in Section 1 hereof. To the extent that any terms and conditions set forth in any such Acknowledgment, or in any invoice delivered by Seller to Buyer in connection with any sale of the Products hereunder, are different from, inconsistent with or in addition to these Terms and Conditions, such terms and conditions, together with those herein which are not different from or inconsistent with those in such Acknowledgment or invoice, shall control and constitute the entire agreement and understanding of the parties with respect to the transactions contemplated hereby. Notwithstanding anything to the contrary herein, absolutely no cancellations of any orders is permitted within ninety (90) days of the anticipated date of shipment by Seller. In the event that Buyer requests a cancellation of an order within such 90-day period, Seller shall be permitted to grant or deny such request in its sole discretion, including conditioning such cancellation on the payment by Buyer of a cancellation fee of twenty percent (20%) of the order value. Any vendor returns (which includes “RTVs,” trunk shows and exchanges) to Seller must be made in writing and approved in writing by Seller. If approval is given, there will be a five percent (5%) restocking fee based on the value of goods returned and all shipping is Buyer’s responsibility.
3. SALE BY BUYER. Unless otherwise specifically agreed by the parties in writing, Buyer shall resell the products only to consumers, and only from those locations authorized by Seller in writing. For purposes hereof, 'consumers' is defined to mean individuals who purchase, use and dispose of products for personal purposes with no intent for resale. Such limitation is designed to serve Seller's need to preserve its sales and merchandising programs, which are themselves designed, among other things, to promote, maintain and enhance the image of the Products. Buyer also agrees that it shall not remove, obscure or obliterate any bar codes appearing on the Products. Violation of this provision shall constitute grounds for termination of an account. Seller has identified certain products that may not be advertised on the Internet (including without limitation websites, social networks, banner ads, broadcast e-mails, texting and sponsored links) at less than the minimum advertised price as established by Seller (“Internet Price Policy”). The Internet Price Policy was unilaterally adopted by Seller and is not an agreement or an offer to form an agreement with any third party. Seller will communicate the products subject to the Internet Price Policy to Buyer from time to time. Buyer remains free to sell products subject to the Internet Price Policy at any price it chooses, so long as they are not advertised on the Internet in violation of this policy. The Internet Price Policy was adopted by Seller to protect the premium image, and ensure the long-term viability, of its brand. To address any and all questions regarding this policy, please contact Seller.
4. PRODUCT CHANGES. Seller expressly reserves the right, at any time and without notice, to discontinue the production or change the specifications of any Product, and no such change in specifications shall affect any order of such Product by Buyer.
5. PRICES. Seller's prices are subject to change, at any time and without notice, and shall be those prices in effect for its products at the time of shipment. Unless otherwise agreed in writing, prices are FOB Seller's place of manufacture and/or distribution of the Products. Prices do not include any standard service charges of Seller which may be applicable to sales of the Products to Buyer, all of which Buyer shall pay. Buyer shall also pay and be exclusively liable for all costs of shipping, delivery, insurance and the like after Seller has effected delivery of the Products to the carrier. Seller reserves the right to impose a shipping and handling fee of a minimum of $20 on reorders of 3 items or less (or similar order value). Goods delivered by special delivery at Buyer’s request will be subject to the additional charges incurred.
6. CREDIT TERMS. Seller rarely grants credit terms. Seller's credit department has sole discretion to grant credit, including open or restricted terms, based on account evaluations, which may include credit checks, credit references and order and payment history.
7. PAYMENTS. Payments for all invoices must be received by Seller by the due date shown on the invoice, which in all cases must be in advance of shipping. Payments may be made by American Express, Visa, MasterCard, or, upon prior Seller approval, cash on delivery. All shipments subject to payment by cash on delivery must be fully-insured by Buyer in advance of shipment. Buyer shall not set off against or deduct from any amounts due to Seller all or any part of any amounts owed or alleged to be owed by Seller to Buyer or any damages or losses which Buyer may have sustained or allege to have sustained as a result of any breach or alleged breach by Seller of any obligation of any kind to Buyer (whether or not arising hereunder or in connection herewith). Accounts placed for collection will be charged reasonable attorney and legal fees, plus interest.
8. TAXES. Prices do not include tax or other governmental charges or assessments (including any taxes or other governmental charges, duties or assessments in connection with international shipments) upon the sale, shipment, production or use of any Products ordered or sold hereunder. Buyer shall be solely responsible for, and shall pay to Seller upon demand by Seller, any such tax, charge or assessment (other than any such tax on, or measured by, Seller's income).
9. TITLE AND RISK OF LOSS. Title to the Products supplied shall pass to Buyer when delivered to the carrier and, thereafter, except as otherwise specifically provided herein, all risk of loss and/or damage to the Products ordered hereunder shall be borne by Buyer.
10. DELIVERY. Seller shall attempt in good faith to deliver any Products in accordance with the instructions set forth herein, or on such other schedule as Seller may provide to Buyer in any Acknowledgment or other response to an order, but Seller shall not be responsible or liable for any delays or failures to so deliver. Seller expressly reserves the right to effect delivery of the Products ordered in any number of separate shipments. Delivery shall be effected using such modes of transport and such carriers as Seller, in its sole discretion, shall deem appropriate. During any period of shortage of any of the Products, Seller shall have the right to prorate and/or allocate its supply of such Product among its Buyers under any orders and contracts in any manner as Seller may deem appropriate. Seller shall in no event be responsible or liable for delay or failure to so effect delivery due to any cause which is unavoidable or beyond Seller's reasonable control and which prevents, impairs or adversely affects in any way Seller's performance hereunder, including but not limited to war, fire, flood, natural disaster, strike, labor dispute, act of God, disease, governmental action, civil disturbance, accident, or inability to obtain or use materials, labor, equipment facilities or transportation. Seller shall have the right, at its option without penalty or any liability for breach, to terminate all or any part of an order or to reschedule delivery within a reasonable time. Seller does not offer drop shipping. Any "rush" order will incur a $20 rush charge per box as well as any additional expedited shipping expenses. Shipping and handling charges will be added as a separate line item to final invoice and will include insurance, freight and handling. If Buyer’s shipping number is provided, Seller reserves the right to charge 5% handling fee based on value of goods.
11. INSPECTION BY BUYER; RETURN OF PRODUCTS; LIMITATION OF LIABILITY. Buyer shall carefully examine and check all deliveries of Products as they are received and report to Seller within seven (7) calendar days of delivery any alleged error, shortage, defect or nonconformity of any such products (a “Return Request”) in accordance with this Section 11. If Seller determines that the Return Request is warranted it will issue a return authorization to Buyer in connection with such Return Request (a “Return Authorization”) and Buyer shall promptly return the Products to Seller for inspection. Seller reserves the right to refuse delivery of any Products returned without a Return Authorization. Any failure by Buyer to examine and deliver a Return Request within seven (7) calendar days after delivery of the Products shall constitute a waiver by Buyer of any claim or right of Buyer against Seller arising hereunder or by laws with respect to any such error, shortage, defect or nonconformity reasonably discoverable by such examination and check. Any and all claims by Buyer for damage or loss in transit shall be made by Buyer against the carrier.
Liability of Seller under or in connection with any sale of the Products shall be limited, at the sole option of Seller, to the repair, replacement, or full or partial refund of the purchase price, of any of the Products or parts thereof. The risk of loss and freight charges to and from Seller in connection with any returned Products shall be borne by Buyer, but Seller shall bear the additional freight charges arising in connection with any returned Products determined to be valid returns as set forth above and shall bear the risk of loss or damage while such returned Products are in Seller's possession at its place of business.
The foregoing remedy shall constitute the sole and exclusive remedy of Buyer under or in connection with any sale of the Products. Except as specifically provided herein, Seller shall not be responsible or liable for any costs, expenses or damages of Buyer in connection with any disposal, removal, repair or replacement (including any attempts or actions relating thereto) of any allegedly defective Products or Products not returned in compliance with this section, and no charge or set off of any kind of specific written approval of Seller.
IN NO EVENT SHALL SELLER BE RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING IN ANY WAY IN CONNECTION WITH THE PRODUCTS, ANY SALE THEREOF, OR SELLER'S RELATIONSHIP WITH BUYER.
12. EXCLUSION OF WARRANTIES: IT IS THE SOLE AND EXCLUSIVE RESPONSIBILITY OF BUYER TO DETERMINE THE SUITABILITY OF ANY AND ALL PRODUCTS FOR BUYER'S USE. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF SELLER WHICH EXTEND BEYOND THE DESCRIPTION OF THE PRODUCTS. THIS EXCLUSION MEANS THERE IS NO IMPLIED WARRANTY OF MERCHANTABILITY AND NO IMPLIED WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE. THIS EXCLUSION ALSO MEANS THAT SELLER GRANTS NO IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, AND NONE SHALL ARISE OUT OF ANY SALE UNDER THESE TERMS AND CONDITIONS OR OUT OF EITHER PARTY'S CONDUCT.
13. SELLER'S TRADEMARKS. Buyer shall have no right to use any of Seller's trademarks or trade names, except solely and directly in connection with the sale or advertising of the Products in connection with the resale of such Products to consumers, and in all cases in accordance with Seller’s policies governing such usage.
14. WAIVER. Seller shall not be deemed to have waived any provision hereof, or any breach by Buyer of any provision hereof, unless specifically set forth in writing and executed by an authorized officer of Seller, and no waiver by Seller of any provision hereof or any breach by Buyer hereunder shall constitute a waiver of such provision or breach on any other occasion.
15. SEPARABILITY. The invalidity or unenforceability, in whole or part, of any provision, term or condition hereof shall not affect in any way the validity and enforceability of the remainder of such provision, term or condition of any other provision, term or condition hereof.
16. GOVERNING LAW. These Terms and Conditions and the transactions contemplated hereby shall be governed by, and construed and interpreted in accordance with, the laws of the State of Connecticut excluding its conflict of laws provisions and the courts located therein shall have exclusive jurisdiction to hear any disputes arising hereunder. These Terms and Conditions and any associated order or Acknowledgment constitute the entire agreement of the parties with respect to the subject matter hereof, and supersedes all other understanding whether oral or written.