WE'D LOVE TO HEAR FROM YOU
Whether you have a question about what products you can customize, how we can help you with your next big event, or anything else, our team is ready to answer all of your questions.
Whether you have a question about what products you can customize, how we can help you with your next big event, or anything else, our team is ready to answer all of your questions.
These terms and conditions of purchase (these "Terms") are the only terms which govern the purchase of goods ("Goods") by Wild Marketing Group, Inc., a corporation formed under the laws of Wisconsin, U.S.A, or one of its controlled affiliates ("Buyer"), from the seller named on the Buyer purchase order making reference to these Terms ("Seller"). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of such contract shall prevail to the extent they are inconsistent with these Terms. The purchase order making reference to these Terms (the "Purchase Order") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties regarding the purchase of the Goods, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral; provided that this Agreement shall not supersede or otherwise affect any non-use, non-circumvention and non-disclosure agreement between the parties or their affiliates, or other similar agreement(s) containing confidentiality and other restrictive covenants for the benefit of Buyer, or Buyer's code of conduct as may be in effect from time to time, each of which shall remain in full force and effect. These Terms prevail over any of Seller's general terms and conditions of sale regardless of whether or when Seller has submitted its sales confirmation or such terms. This Agreement expressly limits Seller's acceptance to the terms of this Agreement. Fulfillment of this Purchase Order constitutes acceptance of these Terms.
Seller shall deliver the Goods in the quantities and on the "Factory Ready" date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the "Factory Ready Date"). If no Factory Ready Date is specified, Seller shall notify buyer immediately and request a Factory Ready Date. If Seller fails to deliver the Goods in full on the Factory Ready Date, Buyer may assess a late charge equal to 15% of the invoice price of the late Goods, which charge may be satisfied by Buyer offsetting such amount from the amount otherwise due and payable by Buyer to Seller. Such late charge is in addition to Buyer's other rights and remedies, in which shall include the right to terminate this Agreement immediately by providing written notice to Seller. In addition, Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller's failure to deliver the Goods on the Factory Ready Date.
For clarity, the "In Hands Date" on the Purchase Order is for use by the Buyer only.
Seller shall deliver all Goods to the address specified as the "FOB" or "Ship To" location in the Purchase Order (the "Delivery Point"). See Shipping Terms herein for further clarification. Seller shall pack all Goods for shipment according to Buyer's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller's risk of loss and expense.
Seller acknowledges that time is of the essence with respect to Seller's obligations hereunder and the timely delivery of the Goods.
If Seller delivers more or less than the quantity of Goods ordered, Buyer may reject all or any Goods. Any such rejected Goods shall be returned to Seller at Seller's sole risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted accordingly.
If shipment of the Goods will originate outside the United States, delivery shall be made F.O.B the shipment port (or such other "FOB" location) specified in the Purchase Order, unless otherwise specified in the Purchase Order. If shipment of the Goods will originate within the United States, Seller is responsible for shipment and delivery to the "Ship To" location specified in the Purchase Order, unless otherwise specified in the Purchase Order.
Title and risk of loss passes to the Goods will pass to Buyer when Seller completes its shipment and delivery obligations in accordance with the applicable shipping terms. Without affecting the foregoing, Seller shall insure the Goods to the point at which Seller will have completed its delivery obligations full replacement value and freight costs. At Buyer's request, Seller shall (a) file claims with its insurance carrier for Goods lost or damaged before Seller completes its delivery obligations and (b) provide reasonable assistance in pursuing payment of such claims. Without limiting the first sentence of this Section 5, Seller shall reimburse Buyer for the portion of any such valid claim Seller's insurer denies or otherwise fails to pay Buyer.
Buyer or its designee has the right to inspect the Goods before, on or after the Factory Ready Date. Buyer or its designee, at Buyer's sole option, may inspect all or a portion of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) accept the rejected Goods at a reasonably reduced price; (b) require replacement of the rejected Goods at Seller’s expense; or (c) return the rejected Goods at Seller's expense and receive a full refund for all amounts paid by Buyer in respect of such rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to Section 13. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller's obligations under the Agreement, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
The price of the Goods is the price stated in the Purchase Order (the "Price"). If no price is included in the Purchase Order, the Price shall be the price set out in Seller's published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Seller in accordance with the payment terms set forth in the applicable Purchase Order, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in US Dollars.
(a) Seller warrants to Buyer that all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements; (c) be free and clear of all liens, security interests or other encumbrances; and (d) not infringe or misappropriate any third party's patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer.
(b) The warranties set forth in this Section 9 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer's discovery of the noncompliance of the Goods with the foregoing warranties. If Buyer gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer.
Seller shall defend, indemnify and hold harmless Buyer and Buyer's subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with any of the following: (a) any defect in the Goods purchased from Seller, and without limiting the foregoing, any recall of Goods arising from any defect or any other action or inaction of Seller; (b) the negligence or willful misconduct of Seller and/or its employees or agents in the performance of this Agreement; and (c) Seller’s breach of this Agreement, including any of the warranties of Seller contained in this Agreement.
Seller shall, at its expense, defend, indemnify and hold Buyer and any Indemnitee harmless against any and all Losses arising out of or in connection with any claim that Buyer's or Indemnitee's use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party, in each case except to the extent such infringement or misappropriation arises from any specific designs provided by Buyer. In no event shall Seller enter into any settlement with respect to any such infringement or misappropriation without Buyer's or Indemnitee's prior written consent.
Seller shall comply with all applicable laws in connection with its performance of this Agreement.
Buyer may cancel or suspend all or any uncompleted or undelivered portion of a Purchase Order: (a) for cause if Seller (1) fails to make any delivery as scheduled, (2) breaches any provision of this Agreement, (3) becomes financially insecure, (4) becomes insolvent, (5) files, or has filed against it a voluntary or involuntary petition with bankruptcy or similar court, (6) has a receiver appointed therefore, (7) makes an assignment for the benefit of creditors, or (8) goes out of business or ceases production; or (b) without cause upon written notice to Seller. Upon receipt of such notice, Seller shall, unless the notice directs otherwise, immediately discontinue all work and placing of all orders for materials, facilities and supplies in connection with the performance of such Purchase Order (or portion thereof) and shall proceed to cancel promptly all existing orders and terminate all subcontracts insofar as such orders or subcontracts are chargeable to such Purchase Order. If Buyer has canceled or suspended all or any portion of a Purchase Order without cause pursuant to the preceding sub. (b), Buyer will reimburse Seller for Seller's expenses (which shall not include lost profits or loss of business opportunity, or other indirect, incidental or consequential damages) in respect of such cancelled Purchase Order (or portion thereof) which (x) were reasonably incurred by Seller prior to such cancellation and (y) (i) for which Seller cannot receive a refund from its vendors and (ii) where Seller cannot reasonably repurpose the purchased material for an alternative order for products produced by Seller. For avoidance of doubt, the foregoing Buyer reimbursement obligation shall not apply if Buyer has canceled or suspended all or any portion of a Purchase Order pursuant to the preceding sub. (a) of this section 13. Any claim by Seller for expense reimbursement under this paragraph must be asserted in writing within thirty (30) days after the cancellation or suspension is ordered, and must state the amount of such claim in detail. Seller's right to be reimbursed for such expenses pursuant to this paragraph shall be Seller's sole and exclusive remedy in the event of Buyer's cancellation or suspension of all or any portion of a Purchase Order.
No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement 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.
All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer's request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller's prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer's assets.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or 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.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Wisconsin. Any controversy or claim arising out of or relating to this Agreement will be determined by binding arbitration before a single, neutral arbitrator in accordance with the International Arbitration Rules of the International Centre for Dispute Resolution. The place of the arbitration will be Chicago, Illinois and the language of the arbitration will be English. Judgment on any arbitration award may be entered in any court of competent jurisdiction, and the parties intend that any arbitration award will be enforceable in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. All fees and expenses of the arbitration will be borne by the parties equally. However, each party will bear the expense of its own counsel, experts, witnesses, and preparation and presentation of proof. Neither party nor the arbitrator may disclose the existence, content or results of any such arbitration without the prior written consent of both parties. This arbitration provision will survive if this Agreement should be adjudged null and void or should be canceled or terminated for any reason.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), 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, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any 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.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any 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.
These Terms may be amended or modified only in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
