Standard Wholesale Terms and Conditions
All sales of Goods and any provision of Services by Sweaty Betty to Customer are governed by and subject to these standard terms and conditions of sale, as they may be amended from time to time by Sweaty Betty, which form a binding agreement between Sweaty Betty and Customer (the "Agreement"). This Agreement incorporates by reference all additional terms and conditions stated in applicable price lists, product catalogs, order acknowledgments, electronic data interchange directives, the Sweaty Betty engagement criteria for trading partners and sources and other documentation furnished by Sweaty Betty to Customer ("Additional Terms"). These standard terms and conditions govern in the event of any conflict or inconsistency with any Additional Terms, except that these standard terms and conditions are superseded by any conflicting terms on Sweaty Betty's price list or on invoices issued to Customer by Sweaty Betty. This Agreement is a complete and exclusive statement of the terms and conditions of the agreement between Sweaty Betty and Customer with respect to the subject matter hereof. Any changes to this Agreement, other than amendments made by Sweaty Betty in the normal course of business, are binding and enforceable only if made in writing and signed by an authorized officer for both parties. Sweaty Betty does not agree to and rejects any terms contained in Customer's purchase orders or other documents that are additional to or different from these terms. Terms that are printed on or contained in a purchase order or other form prepared by Customer additional to, in conflict with or inconsistent with these terms shall be inapplicable and shall have no force or effect. If Customer has not otherwise agreed to these terms, Customer's acceptance of delivery of, or full or partial payment for, the Goods will constitute Customer's acceptance of these terms and conditions.
All orders for Goods must be in the form of a purchase order submitted by Customer to Sweaty Betty's Customer Service Department, at 69-79 Fulham High St London SW6 3JW. All orders are subject to final approval by Sweaty Betty. Upon approval, Sweaty Betty may issue an order acknowledgment to Customer. Following approval by Sweaty Betty, orders may not be changed or canceled without the written approval of Sweaty Betty. Customer may request cancellation of a purchase order by submitting a written request to Sweaty Betty's Customer Service Department. Customer will reimburse Sweaty Betty for all expenses and losses resulting from any Customer change or cancellation.
The prices of Goods will be those prices published in Sweaty Betty's price list in effect on the date Sweaty Betty accepts the order for the Goods, or as otherwise agreed by the parties in writing. Prices are subject to change without notice. Prices quoted are exclusive of all taxes and charges of any kind, including without limitation, sales, excise, use and property taxes. Sweaty Betty will add all taxes and charges to the invoice and Customer agrees to pay all applicable taxes or charges levied by any tax authority, excluding any taxes based upon Sweaty Betty's income.
Full payment for all Goods is due in accordance with the terms and payment procedures stated in the order acknowledgment or invoice issued by Sweaty Betty to Customer. All payments shall be made in agreed-upon currency. Discount terms for early cash payments will apply only as specified in the invoice. Invoices not fully paid by the specified payment date are deemed overdue and unpaid balances will accrue interest at the rate specified in the applicable price list, or if no rate is specified, at the rate of two (2) percent above the prime rate published by Bank One or at the highest rate permitted by law, if lower. Sweaty Betty will be entitled to suspend performance of any order or obligation to Customer until Customer's account is current. If at any time Sweaty Betty determines that Customer's financial condition, payment practices or credit rating does not justify a sale on credit, Sweaty Betty may require advance payment (C.I.A.). Customer will reimburse Sweaty Betty for all expenses, including reasonable attorneys' fees, incurred in the collection of any delinquent account or in enforcing its rights under these terms and conditions
Title to and risk of loss of the Goods will pass to Customer upon delivery of the Goods to Customer or the carrier at the shipping point. Customer grants Sweaty Betty a security interest in the Goods and will keep the Goods properly stored, insured and identifiable as subject to Sweaty Betty's lien until full payment is made by Customer for the Goods. Sweaty Betty reserves the right to enter Customer's premises to repossess Goods for which payment is overdue. Notwithstanding the foregoing, Customer is entitled to sell the Goods and pass good title thereto to any unaffiliated third party; provided however, that such right will automatically cease if Customer becomes insolvent or if a petition in bankruptcy or receivership (or any similar legal or administrative proceeding) is filed by or against Customer, if any trustee or receiver is appointed for assets of Customer, or if Customer makes an assignment for the benefit of creditors
Sweaty Betty will deliver Goods to Customer FOB shipping point by the method of shipment and routing determined by Sweaty Betty, except as otherwise specifically agreed in writing between Sweaty Betty and Customer. Customer will pay Sweaty Betty for all delivery charges as established by Sweaty Betty and stated in the invoice. Shipments are subject to the standard limitations on loss or liability imposed by the carrier, except to the extent Customer submits an advance written request for higher loss coverage as available from the carrier at Customer's cost. Any delivery dates specified in an order acknowledgment are estimates only and time is not of the essence. Sweaty Betty may deliver all of the Goods at one time or in portions from time to time. All deliveries are subject to modifications or cancellation due to events beyond Sweaty Betty's reasonable control, including acts of God, compliance with any law, order, rule or regulation of any governmental or other authority, delay in transportation, labor disputes, strikes, failure of equipment or systems, or shortages of any labor or materials or services ("force majeure"). If Sweaty Betty cannot deliver the Goods on the estimated delivery date due to an event of force majeure or if Sweaty Betty has reasonably endeavored to deliver the Goods on the estimated delivery date, the estimated time of delivery will be extended accordingly and Sweaty Betty will not be liable for any loss of profit or property, or for any direct, indirect, special, incidental, consequential or other damages caused by any delay or failure to deliver. If Customer causes or requests a delay in the manufacture or delivery of any Goods, Customer will reimburse Sweaty Betty for all resulting damages, including without limitation, payment of reasonable storage expenses for the Goods during the period of delay or interruption.
Sweaty Betty recommends that Customer resell the Goods to the public at the retail prices quoted from time to time in the applicable catalog or recommended retail price list, excepting only genuine seasonal sales or other occasional promotions conducted by Customer.
Claims for credits and chargebacks will be considered by Sweaty Betty only if: (i) received by Sweaty Betty within sixty (60) days of ship date or reasonable delivery of the specific goods that are the subject of such claim, and (ii) submitted to Sweaty Betty with a complete description identifying the specific goods and the reason that Customer is claiming such credit or chargeback. Credits and chargebacks may be denied by Sweaty Betty in Sweaty Betty's sole discretion and, without limiting the foregoing, will be denied without review if not submitted within the sixty (60) day period with required descriptions.
Customer is only permitted to resell the goods to end-users as "first quality" goods at retail locations approved by Sweaty Betty, and will sell Products only in quantities typical of purchases for individual use. Customer is prohibited from selling any Goods at a retail location not approved by Sweaty Betty or to any party that Customer knows or has reason to suspect intends, directly or indirectly, to resell the Goods or transport the Goods elsewhere for resale. Resale or transshipment of Goods to an unauthorized location or to another business is prohibited. Customer shall immediately notify Sweaty Betty of any parties seeking Goods for resale or transport in violation of this Agreement. Customer will inspect all Goods for damage before offering them for sale and will not sell any Goods (including packaging materials) that are damaged, defective, "irregular", "seconds", or otherwise fail to qualify as "first quality" unless Sweaty Betty has specifically authorized such sales in writing. Customer will not sell any Goods through catalogs other than those prepared by Sweaty Betty, television shopping channels, discount venues including "outlet" or "factory direct" malls or flea markets or through other direct marketing methods including direct mail or door-to-door solicitation except as specifically authorized by Sweaty Betty in writing. Customer is prohibited from promoting, advertising or selling any Goods through the Internet, computer "web sites" or "home pages", computer on-line transactions or similar technology developed in the future, except as specifically authorized in a signed Internet Agreement between Sweaty Betty and Customer. Sweaty Betty may withhold or revoke its consent to any of the above at any time in its sole discretion.
Sweaty Betty warrants that upon delivery the Goods will be free from defects in material and workmanship under proper and normal use, and that all Goods and Services will be produced and furnished in accordance with applicable laws and regulations, including the Fair Labor Standards Act of 1938, as amended (the "Warranty"). Goods shall be considered "defective" if the defect materially impairs the value of the Goods for their intended use.
Sweaty Betty will repair or replace any Goods that do not comply with the Warranty, provided that written notice of the defect is received by Sweaty Betty within thirty (30) days of the appearance of such defect and in no event more than one (1) year after delivery of the Goods to Customer. If notice is not given within such period, any claim for breach of warranty shall be conclusively deemed to have been waived and Sweaty Betty shall not be liable under this Warranty.
All sales are final and no return of nondefective Goods will be accepted without prior written authorization from Sweaty Betty. If Sweaty Betty determines that it erred on the quantity, style or other aspect of the initial shipment of Goods, Sweaty Betty will authorize the return of saleable Goods and will forward Customer an authorization number provided the request for return authorization is made within thirty (30) days of Customer's receipt of the merchandise shipped in error. Upon receipt of authorized stock returns marked with the applicable authorization number, Sweaty Betty will credit Customer's account with the price initially charged for the returned Goods plus the amount expended by Customer on freight.. If Customer ships nondefective merchandise to Sweaty Betty without first obtaining Sweaty Betty's written authorization, such shipment will be refused by Sweaty Betty's Return Goods Department and returned to Customer at Customer's expense, and return freight will be charged to Customer.
Prior return authorization from Sweaty Betty for defective Goods (worn or unworn) is required. If a return is approved, Sweaty Betty will authorize the return of saleable Goods and will forward Customer an authorization number. Defective Goods should be shipped in cartons marked "DAMAGED" or "DEFECTIVE" and if worn, also marked "WORN" and be marked with the applicable authorization number. Sweaty Betty's Quality Assurance Department will inspect returned Goods upon receipt and determine whether such Goods are actually defective.
If inspection reveals no legitimate reason to issue credit, Sweaty Betty will inform Customer that there is "No Credit" and such Goods will be immediately disposed of unless: (i) Customer has specifically requested that all "No Credit" Goods be returned to Customer, or (ii) Customer has enclosed a note with the Goods requesting that specific Goods be returned if "No Credit" can be allowed. Return of "No Credit" Goods shall be at Customer's
In the case of defective but unworn Goods, Sweaty Betty will credit Customer's account with the price initially charged for the Goods plus the amount expended by Customer on freight. In the case of defective but worn Goods, Sweaty Betty will credit Customer's account with an amount equal to a percentage of the amount initially charged Customer for the Goods, plus the amount expended by Customer on freight. This percentage will be 100%, 50% or 0% based on the estimated normal degree of wear (exclusive of the defect) remaining in the Goods when returned, as determined by Sweaty Betty's Return Goods Department.
All authorized stock returns and all returns of defective Goods must be shipped in compliance with Sweaty Betty's returned goods procedure to the following address or such other address as communicated to Customer in writing and will not be accepted at any other location: Sweaty Betty at Torque California Drive, Castleford, WF10 5QH UK.
Sweaty Betty's liability for any defect in the Goods, whether based on contract, tort, warranty, strict liability, or any other theory, shall not exceed the purchase price of the defective Goods. THE WARRANTY IS THE EXCLUSIVE WARRANTY PROVIDED BY SWEATY BETTY WITH RESPECT TO THE GOODS AND SERVICES AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDY OF REPAIR OR REPLACEMENT SET FORTH ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES. SWEATY BETTY SHALL HAVE NO LIABILITY TO CUSTOMER FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS OR OTHER ECONOMIC INJURY DUE TO ANY DEFECT IN THE GOODS OR ANY BREACH OF THIS AGREEMENT BY SWEATY BETTY. SWEATY BETTY SHALL NOT BE LIABLE TO CUSTOMER IN TORT FOR ANY DEFECT IN THE DESIGN OR MANUFACTURE OF THE GOODS. No representative, agent or dealer of Sweaty Betty has authority to modify, expand, or extend the Warranty, to waive any of the limitations or exclusions of the Warranty, or to make any different or additional warranties with respect to any Goods or Services furnished by Sweaty Betty.
Customer acknowledges Sweaty Betty's ownership of all trademarks, service marks, copyrights, imprints, rights of publicity, patents, design patents, registered designs, industrial designs, trade dress, product design, trade secrets and other intangible rights relating to the Goods (collectively "Sweaty Betty Intellectual Property") and acknowledges that Customer shall have no right, title or interest whatsoever in any Sweaty Betty Intellectual Property. Any use of Sweaty Betty Intellectual Property in the promotion or sale of Goods will inure to the sole benefit of Sweaty Betty, shall be subject to Sweaty Betty's approval and shall strictly conform to sales and advertising guidelines as established from time to time by Sweaty Betty. Customer grants Sweaty Betty an irrevocable, unrestricted and fully paid license of any intellectual property (such as designs, copyrightable advertising or promotional materials) developed in connection with the Goods and agrees to provide, and obtain from all third parties, all assignments or "work for hire" certifications necessary to secure Sweaty Betty's rights to all such intellectual property.
No claim, suit or other proceeding may be brought by Customer for any breach of the Warranty or in any way arising out of this Agreement or relating to the Goods after one (1) year from the date the cause of action accrues
This Agreement between Sweaty Betty and Customer shall be governed by and construed in accordance with the laws of England. By entering into this Agreement with Sweaty Betty, Customer irrevocably submits to the exclusive jurisdiction of the courts of England, and the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Sweaty Betty is an independent contractor under this Agreement. Nothing in this Agreement shall be deemed to make Sweaty Betty or its employees or agents an employer, employee, partner or joint venturer of Customer.
Customer may receive or have access to certain nonpublic or proprietary information regarding Sweaty Betty or its business, operations, plans, strategies, products, or pricing, including the terms of this Contract (collectively, the "Confidential Information"). Customer agrees to (a) keep the Confidential Information strictly confidential, (b) not to disclose the Confidential Information to any third party, and (c) not use such Confidential Information itself for any purpose other than performing its obligations and exercising its rights under this Agreement. In the event that Customer is required by law to disclose any Confidential Information, Customer shall first notify Sweaty Betty and reasonably assist Sweaty Betty in resisting such requirement. Customer shall maintain appropriate security safeguards reasonably necessary to prevent unauthorized persons from accessing, using, disclosing, or otherwise committing any act that could breach or compromise the privacy, availability, integrity, or content of the Confidential Information. Customer shall transmit and store any and all Confidential Information using a commercially supported encryption solution. This paragraph shall survive expiration or termination of this Agreement.
If any provision of this Agreement is invalid or unenforceable under any applicable law, the provision shall be ineffective to that extent and for the duration of the illegality, but the remaining provisions shall be unaffected. Customer shall not assign any of its rights nor delegate any of its obligations under this Agreement without the prior written consent of Sweaty Betty. This Agreement shall be binding upon and enforceable by and against Customer and Sweaty Betty, and their respective legal representatives, successors, and assigns. Any provisions of this Agreement which would by their nature survive expiration or termination of this Agreement will so survive.
Sweaty Betty has all rights and remedies given to sellers by applicable law, and Sweaty Betty's rights and remedies are cumulative and may be exercised from time to time by Sweaty Betty. No waiver by Sweaty Betty of any breach of the Agreement by Customer shall be effective unless in writing nor shall a waiver of a breach operate as a waiver of any other breach. Sweaty Betty shall not lose any right because it has not exercised that right in the past.