THE WORLD EMBLEM SALES TERMS AND CONDITIONS
Contract. The terms and conditions set forth herein (these “Terms and Conditions”) represent all the promises, covenants, agreements, conditions, and understandings between WORLD EMBLEM INTERNATIONAL, INC. (“Seller”) and you (“Purchaser”) with respect to this sale and purchase. Unless Purchaser and Seller have otherwise agreed, these Terms and Conditions supersede all prior and contemporaneous agreements, understandings, inducements or conditions express or implied, oral or written, relating hereto. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any term expressed in these Terms and Conditions. Any terms or conditions specified in any purchase order or other communications which are in conflict with or in addition to these Terms and Conditions shall be superseded by these Terms and Conditions and shall not be binding upon Seller unless expressly accepted in writing by Seller. Seller’s failure to object to terms in any communication from Purchaser will not be deemed a waiver. THESE TERMS AND CONDITIONS SHALL BE DEEMED ACCEPTED AND AGREED TO BY PURCHASER IN ANY EVENT UPON ACCEPTANCE OF DELIVERY OF ANY OR ALL MERCHANDISE.
Warranty. Seller warrants that all products manufactured by Seller and sold hereunder are free from material defects in materials and workmanship. The liability of Seller and the exclusive remedy of Purchaser is limited to repair or replacement (at the option of the Seller) of the defective products, provided Seller is given prompt notice of defect, in no event more than thirty (30) days from the date of receipt of shipment by Purchaser.
Purchaser waives all claims that arise from (i) Purchaser or any third party’s application of any products purchased hereunder or (ii) damages resulting from the washing and laundering of any products purchased hereunder. To return a product purchased hereunder in connection with the assertion of a claim under the foregoing warranty, Purchaser must first obtain a return authorization from Seller and must pay the costs of return transportation. Such transportation costs will be reimbursed to Purchaser by Seller only upon Seller’s verification of the validity of the claim.
EXCEPT AS SET FORTH HEREIN, SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND HEREBY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS SOLD HEREUNDER. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. EXCEPT AS OTHERWISE PROVIDED, IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, REVENUE OR PROFIT, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FACE MASKS SOLD BY SELLER HAVE NOT BEEN CLEARED FOR MEDICAL USE BY THE U.S. FOOD AND DRUG ADMINISTRATION AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR MEDICAL GRADE EQUIPMENT. THESE PRODUCTS HAVE NOT BEEN EVALUATED FOR THE PREVENTION OF SPECIFIC DISEASES OR INFECTIONS, THE FILTERING OF SURGICAL SMOKE OR PLUMES, THE FILTERING OF SPECIFIC AMOUNTS OF BACTERIA, OR THE KILLING OR REDUCTION OF VIRUSES, BACTERIA OR FUNGI. EXCEPT WHERE SPECIFICALLY PROHIBITED BY LAW, SELLER MAKES NO WARRANTIES OF ANY KIND FOR FACE MASKS, INCLUDING WARRANTIES OF NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
Pricing. The prices set forth herein constitute the effective prices, except as set forth below, and supersede any prior written quotations of prices, oral quotations or prices set forth in any purchase order. Prices are subject to change, at the discretion of Seller, in accordance with prices effective at the time of shipment. Any custom requests or requirements by Purchaser, including but not limited to, high stitch counts, additional colors, 3D embroidery, application of product branding (i.e. hang tags, stickers, transfers, emblems, labels, tags) and/or special components may alter any posted sale price and will be subject to then current fees (“Additional Fees”). Additional Fees will be invoiced upon completion of the order(s).
Submission of Orders. Orders will be accepted on Seller’s primary or secondary websites or through Seller’s public API and/or e commerce procedures. Seller may, at its sole discretion, accept orders submitted by Purchaser through other means, however, in such cases, Seller will have no liability for errors in fulfillment or shipping so long as Seller uses commercially reasonable efforts to correctly fulfill or ship Purchaser’s order. Seller uses third party APIs for certain processes, the cost of which, in most cases, is included the price of the products and/services. In certain cases, however, a third party API will limit the number of API calls per month a customer orders. In such cases, if the number of attempts exceeds the number of orders completed and invoiced by Purchaser in a month by more than three times, Seller reserves the right to bill Purchaser $.10 per rejected order. In addition, depending upon how many overage calls are being made, Seller reserves the right to stop the order acceptance/processing until both parties understand the cause of the increase in API calls. Seller further reserves the right to charge a service fee of $10.00 per shipping address of Purchaser for such orders.
Terms of Payment. Where Seller has extended credit to Purchaser, terms of payment shall be on account from the date of invoice. If no credit has been extended by Seller, a valid credit card or cashier’s check (if credit card is not permitted) shall be required to hold the entire amount of the order plus applicable taxes and estimated shipping costs. Credit card payments may incur a surcharge of:
Past due invoices are subject to a monthly service charge at 1.5%. Purchaser agrees to pay all expenses incurred in collecting delinquent accounts, including attorney’s fees.
The amount of credit or terms of payment may be changed, or credit withdrawn by Seller at any time. If goods are delivered in installments, Purchaser shall pay for each installment in accordance with the terms of payment hereof. Payment shall be made for the goods without regard to whether Purchaser has made or may make any inspection of the goods. If shipments are delayed by Purchaser, payments are due from the date Seller is prepared to make shipments. Goods held for Purchaser are at Purchaser’s sole risk and expense.
The amount of credit or terms of payment may be changed, or credit withdrawn by Seller at any time. If the financial condition of the Purchaser becomes impaired or does not, in the sole judgment of Seller, justify continuance of the work to be performed by Seller hereunder on the terms of payment agreed upon, Seller may require full or partial payment in advance or shall be entitled to cancel any order that is outstanding and shall receive reimbursement for its reasonable and proper cancellation. In addition to the rights of Seller in the preceding sentence, in the event of the filing of a voluntary or involuntary petition in bankruptcy or under insolvency laws with respect to Purchaser, or if Purchaser makes an assignment for the benefit of creditors or otherwise acknowledges its inability to make payments of its obligations when due, Seller shall be entitled to cancel any order that is outstanding at any time during the period allowed for filing claims against the estate and shall receive reimbursement for its reasonable and proper cancellation charges. The rights of Seller under this paragraph are cumulative and in addition to all rights available to Seller at law or in equity.
To secure payment by Purchaser of the amounts due to Seller under this or any other contract between Seller and Purchaser, Purchaser hereby grants to Seller a security interest in the goods purchased hereunder. Purchaser agrees to execute, deliver and file any financing statements, security agreements or other documents, and to do any and all acts, which are requested by Seller to perfect, continue, or evidence such security interest and any other security interests granted to Seller hereunder. Should Purchaser fail to execute, deliver or title such documents or fail to do such acts promptly upon request by Seller, Purchaser hereby appoints Seller as Purchaser’s attorney-in-fact to, at the option of Seller, all acts which Seller may deem necessary to perfect and to continue perfected any security interest created hereby.
Title. All of Seller’s products purchased hereunder are shipped F.O.B. Seller’s place of manufacture as such term is defined in section 672.319 of the Florida Uniform Commercial Code unless otherwise agreed in writing by both Purchaser and Seller. All shipping and insurance charges shall be paid by Seller and shall be added to the invoice for the products shipped.
Transportation. Seller shall utilize any commercially reasonable type of transportation specified by Purchaser to ship the goods purchased hereunder. If Purchaser has a shipping account set up with Seller, Purchaser’s shipping account may be charged. If Purchaser does not specify shipping account information, or if the specified type is unavailable or otherwise commercially impractical, Seller shall utilize any commercially reasonable type of transportation and invoice Purchaser for the shipping and handling costs involved.
Delivery Date. Delivery dates are estimates of the date on which the products will be shipped and are not binding. Failure to deliver on a specified date for any reason whatsoever, whether in Seller’s control or not, shall not be cause for cancellation by Purchaser or for the assertion of damages of any kind whatsoever including but not limited to consequential damages against Seller. Seller shall exercise commercially reasonable efforts to notify Purchaser of any material delay in delivery.
Taxes. Applicable federal, state and local taxes, now or hereafter enacted, in connection with the purchase hereunder will be added to the invoice to be paid by Purchaser, unless, with respect to taxes due to a particular taxing authority, Purchaser provides Seller with a valid tax exemption certificate number indicating that the sale of the product is not subject to such taxation prior to order placement. If Purchaser’s tax exemption certificate expires, Purchaser is responsible for providing Seller with a new certificate number and will be charged all applicable taxes until such certificate number is provided.
Substitution and Modifications of Goods. Seller may modify the specifications of goods designed by Seller and substitute goods manufactured to such modified specifications for those goods specified herein, provided that such substituted goods substantially conform to those ordered by Purchaser.
Variation in Quantity. Purchaser shall accept delivery of shipments containing amounts of goods over or under 10% of the actual amount ordered. Purchaser may be charged for any overage delivered pursuant to this paragraph.
Product Tolerance; Samples. It is the responsibility of Purchaser to order, inspect and approve a physical sample of any goods ordered herein (a “Sample”) prior to production of such goods. Purchaser has ten business days from the date that the Sample is shipped to approve the Sample. If Purchaser fails to approve or reject a Sample provided in such time period, production will automatically be released and processed and Purchaser will be liable for all production costs. If Purchaser places an order for production based solely on artwork without receiving and approving a Sample, Purchaser will be responsible for all charges, damages and claims connected with that order. If Purchaser bypasses this process, Purchaser is liable for all production charges and waives the right to damages, replacements or claims. Seller is not liable for any issues with the design once it is applied to the garments or any other item. No Sample is made part of the basis for this contract, and no Sample, other than Samples made from goods shipped at the time of shipment, shall form any part of the basis for any claims against Seller hereunder. Purchaser understands and accepts that products may present variations between each other and any Sample provided. NO EXPRESS OR IMPLIED WARRANTIES ARE CREATED BY SELLER’S FURNISHING OF SAMPLES.
Customer Supplied Goods and Product Attributes. If unfinished goods or materials to be used for the goods are furnished by Purchaser to Seller to enable Seller to perform hereunder (“CSG”), Purchaser shall furnish CSG of adequate quality and in sufficient amounts to provide for spoilage rate of 2% (the “Spoilage Rate”). Seller assumes no risk of loss due to fire, flood, theft or otherwise for such CSG. Any designs to be added to CSG must first be approved by Purchaser prior to any work being performed. Purchaser shall specify the designs and garments for decoration.
Purchaser acknowledges that such designs may affect the delivery date. Seller is not liable for any errors in the information provided by Purchaser. Purchaser is aware that damage may occur in the decoration process and Seller will refund up to $20 for each unit of CSG shipped, proof of purchase price may be required during such process in excess of the Spoilage Rate (the “Replacement Charges”). In no event will the total Replacement Charges for then current calendar month exceed 5% of Purchaser’s prior month’s paid invoices.
Purchaser is liable for all shipping fees of CSG to and from Seller’s facility unless otherwise specified. CSG will not be insured in transit unless Purchaser specifically requests insurance, in which case the costs of such insurance will be borne by Purchaser and included in the freight charge on Purchaser’s invoice. Seller will not be liable for claims arising from loss or damage of CSG in transit. Seller is not liable for the quality of any CSG including defects in adhesion, fabric, logo errors, or any other material defect. Additionally, Seller is not liable for damage to CSG that occurred on or prior to receipt by Seller of the CSG.
Purchaser agrees that any CSG sent to Seller absent an active purchase order will be held at Seller’s facilities for a maximum of 30 days (the “CSG Holding Period”). Following the CSG Holding Period, Seller may, at Seller’s sole discretion and without notice, either return CSG to Purchaser at Purchaser’s expense or discard CSG in any way Seller chooses, which may include, but is not limited to destruction, recycling, or donation of CSG.
Seller may charge Purchaser convenience and handling fees for shipments of CSG in instances that require Seller to expend additional efforts to identify, handle or return CSG. Such fees will be added to the Purchaser’s invoice following completion of Purchaser’s order(s). The following fees for CSG may apply:
- Any shipment of CSG received by Seller without a corresponding CSG order or that is otherwise missing a barcode or corresponding sales order on the outside of the shipping container or carton may incur a $10.00 receiving fee.
- Any CSG requiring processing, including but not limited to unbagging, bagging, sorting, separating, folding, hanging, or removing from hangers may incur a convenience fee.
- Any CSG that is returned undecorated may incur handling fees in addition to any return shipping fees.
Purchaser represents and warrants that: (i) Purchaser has all necessary rights, licenses, consents, authorizations and other permissions to use CSG as well as any materials, specifications, production instructions, designs, artwork, branding or decoration provided by Purchaser (collectively, the “CSG and Purchaser Product Attributes”); and (ii) the CSG and Purchaser Product Attributes do not infringe or otherwise violate any third party intellectual property or other rights.
Purchaser agrees not to submit for use in Seller’s services any CSG and Purchaser Product Attributes that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, or that infringe on any intellectual property or other proprietary rights of any third party (“Offensive Content”). Seller may, but has no obligation to, monitor, edit or deny any CSG and Purchaser Product Attributes that it determines in its sole discretion are Offensive Content.
Returns, Refunds and Rights of Cancellation
Once an order has been released into production, it may not be modified or cancelled by Purchaser. Purchaser may, otherwise, cancel an order for goods only if Seller has failed to deliver such goods within 28 days after the due date specified in the order or, in the case of defective or nonconforming goods, at the earliest opportunity after Purchaser has discovered the fault or defect (provided that Buyer shall be deemed to have inspected any goods as soon as reasonably practicable after delivery and in no case longer than 10 business days after receipt). If Purchaser desires to cancel an order in accordance with this section, Purchaser must provide notice to Seller by email of its intent to cancel at email@example.com.
Other than with respect to defective goods, nothing in these Terms and Conditions shall give Purchaser the right to cancel any order for goods that have been made to the Purchaser’s specifications or are otherwise personalized for the Purchaser. If Purchaser cancels an order in accordance with this section, Seller will refund all sums paid by Purchaser (including initial and re-delivery charges (if any)) with respect to the cancelled order. All goods returned by Purchaser to Seller must be returned in their original packaging (which Purchaser should retain for this purpose) and must be in an unused condition.
Browser Support. Seller will support the latest major version as well as the version immediately previous to the latest version of each of the following browsers: Chrome, Microsoft Edge, Firefox and Safari. As some browsers update versions frequently, Seller will not publish an updated list of discrete versions supported by Seller.
Governing Laws; Jurisdiction; Waiver of Trial by Jury. The validity, interpretation and enforcement of these Terms and Conditions as well as any agreement incorporating these Terms and Conditions shall be governed by the laws of the State of Florida. To the fullest extent permitted by law, Purchaser hereby: (a) waives any right to immunity from such action or proceeding and waives any immunity or exemption of any property wherever located from garnishment, execution, levy, seizure or attachment prior to or in execution of judgment; (b) submits to the jurisdiction of the state and federal courts in the State of Florida for purposes of any such action or proceeding; agrees that the venue of any such action or proceeding may be laid in Broward County, Florida and waives any claim that the same is an inconvenient forum; and stipulates that service of process in any such action or proceeding shall be properly made if mailed by any form of registered or certified mail (airmail if international), postage prepaid, to the address then registered in Seller’s records for Purchaser, and that any process so served shall be effective 10 days after mailing. No provision shall limit Seller’s right to serve legal process in any other manner permitted by law or to bring any such action or proceeding in any other competent jurisdiction.
PURCHASER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THESE TERMS AND CONDITIONS, THE TRANSACTIONS CONTEMPLATED BY THESE TERMS AND CONDITIONS AND/OR THE RELATIONSHIPS ESTABLISHED AMONG THE PARTIES UNDER THESE TERMS AND CONDITIONS.
Infringement Claims. Purchaser agrees to promptly notify Seller of the assertion against Purchaser, in litigation or otherwise, of any claim of patent infringement respecting any of the products purchased hereunder. Seller shall have the right (but not the obligation) to assume control at any litigation arising out of such claims, including the settlement thereof. In the event such notice is given to Seller and Purchaser provides all necessary cooperation assistance requested by Seller and allows Seller to so conduct the litigation, Seller shall indemnify and hold the Purchaser harmless from and against any such claim relating to any of Seller’s standard products.
Notwithstanding the foregoing, Seller shall have no obligation or liability of any kind and Purchaser shall indemnify and hold Seller and its affiliates and its and their respective directors, officers, employees, contractors, agents and other representatives harmless from and against any claim, suit, liability, damages, costs and expenses (including, without limitation, reasonable attorney’s fees) arising out of or resulting from any allegation, claim or proceeding relating to the use of any of the CSG and Purchaser Product Attributes or the products, made, used or sold utilizing same, or the use of Seller’s products in a system application of Purchaser, and in any such claim arising out of compliance by Seller with specifications furnished by Purchaser, including without limitation, claims of infringement or other violation of third party intellectual property rights as well as product liability claims. In the event claims set forth in the preceding sentence are asserted against Seller, Seller will promptly notify Purchaser of the assertion thereof and will permit the Purchaser to assume control of such litigation.
Government Contracts. Seller shall use commercially reasonable efforts to comply with all provisions which are mandatorily imposed on Purchaser by any applicable federal statute, but only in the event the Purchaser informs Seller in writing of all such requirements at the time of entry into the contract.
Severability; Waiver. In the event any provision of these Terms and Conditions is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of these Terms and Conditions will remain in full force and effect. No failure by either party to take any action or assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right. The waiver of a breach of any provision of these Terms and Conditions shall not operate as or be construed to be a waiver of any subsequent breach of these Terms and Conditions. Any waiver shall operate as a waiver only with respect to the specific matter involved and in no way shall extend to any further matter.
Assignment. The rights and obligations of Purchaser under this Agreement may not be assigned or delegated without the written, signed consent of Seller. Any attempted assignment by Purchaser in violation of this paragraph will be void.
Force Majeure. Seller shall not be deemed to be in default of or to have breached any provision of these Terms and Conditions as a result of any delay, failure in performance or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, wars, terrorist activities, pandemics. strikes or other labor disputes, riots, shortages of labor or materials, fires, transportation contingencies, loss or malfunctions of utilities or computer (hardware or software) services, laws, regulations, acts or orders of any government or agency or official thereof, other catastrophes, or any other occurrences beyond the reasonable control of Seller.
Marketing Materials. The imagery and designs used by Seller on its website or in any marketing or promotional materials are intended solely to demonstrate the effects that can be achieved with Seller’s products and not to imply that the designs have been supplied to or endorsed by their owners.
Emails. By placing an order with Seller Purchaser agrees to receive promotional emails from Seller unless Purchaser specifically elects to unsubscribe from such emails.
Notice. Any notice given pursuant to these Terms and Conditions or any agreement which incorporates these Terms and Conditions shall be in writing and sent either (i) by certified mail or nationally recognized overnight courier (return receipt requested) to 4601 Sheridan St., Hollywood FL, 33021 or (ii) by email to the party for whom it is intended. Any notice given pursuant to these Terms and Conditions or any agreement which incorporates these Terms and Conditions shall be deemed to have been given or made on the date on which the addressee receives the same.
Headings. The paragraph headings used in these Terms and Conditions are included solely for convenience and should not be used to interpret or construe the provisions of these Terms and Conditions.
Use of Name. Purchaser grants to Seller the right to use Purchaser’s name on Seller’s list of business partners, which may be made available to third parties from time to time. Purchaser also grants to Seller the right to use Purchaser’s name in press releases with Purchaser’s written consent, which shall not be unreasonably withheld.
Binding Effect. All of the terms and provisions of these Terms and Conditions shall be binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective administrators, executors, legal representatives, heirs, successors and permitted assigns.
Amendment. No modification, amendment or addition to these Terms and Conditions, nor waiver of any of its provisions, shall be valid or enforceable unless in writing and signed by both parties. No changes or modifications of these Terms and Conditions shall be binding on either party hereto unless such change or modification is made in writing and accepted by both parties.