As a condition to all orders placed with Embroidery Concept & Design LLC ("ECD"), Customer hereby accepts and agrees to comply with these Terms and Conditions, and agrees that such Terms and Conditions supercede those contained in any purchase order or other document regarding the subject matter hereof. These Terms and Conditions apply to all orders placed by Customer, in whatever form received by ECD, including without limitation electronic and telephone orders and ECD'S acceptance of such orders are limited to these Terms and Conditions. ECD HEREBY OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS IN BUYER"S ORDER, OR ANY OTHER DOCUMENT OR FORM TRANSMITTED ON BEHALF OF BUYER.
CANCELLATION AND CHANGE ORDER REQUESTS
Orders with a start shipment date within 30 days after the order is placed with ECD are considered "at once" orders. After an "at once" order is placed, no changes or cancellations will be permitted.
Orders with a start shipment date more than 30 days after the order is placed with ECD are considered "future" orders. Once a future order is placed, Customer will receive an acknowledgment of the order, including styles, price, quantities and sizes ordered. Any request to cancel all or any portion of a future order, will not be binding on Embroidery Concept & Design LLCunless received within thirty (30) days of the date of ECD'S Order Acknowledgment. Once that 30 day period has passed, the order will be considered "in production," ECD will commit resources for its fulfillment, and no changes or cancellations will be permitted.
Any enhancement instructions or change order requests (such as embroidery, ticketing, additional value added services, special handling and/or changes to routing information), must be received by ECD not later than 60 days prior to the order's start shipment date. If instructions are NOT received by ECD 60 days prior to the start shipment date, ECD reserves the right to ship the order to Customer without enhancement, and/or to decline any change order requests.
All shipments by ECD are F.O.B. point of shipment; therefore, freight and insurance costs are the responsibility of Customer. Customer is responsible for designating the mode of shipment and the name of the carrier at the time of the order, and for procuring any desired insurance. Any additional routing instructions shall be given in writing, not less than five (5) business days prior to the order Start Date, to Customer Service, 201 Pond Avenue, Middlesex, NJ 08846. ECD shall have the right to choose an alternate mode of shipment if the mode designated is not available or feasible. If no shipping instructions are received from Customer, ECD will ship via "ground" transportation, insured for the full value of the goods at Customer's expense, which charges will be added to the invoice for the goods. Only the proceeds of such insurance in excess of any amounts owed by the Customer to ECD will be reimbursed to Customer. "Free shipping" or similar promotions do not remove the Customer's responsibility for insuring for the full value of the goods.
Customer shall specify its preferred earliest shipment date ("Start Date") and its latest shipment date ("Complete Date"). ECD reserves the right to ship goods in advance of Customer's Start Date. In order to meet Customer's Start Date, ECD reserves the right to ship via air carrier. Any change in shipment dates must be approved by ECD. ECD shall have no responsibility whatsoever for the ultimate date of delivery if ECD has shipped on or before Customer's designated Complete Date. ECD agrees that, if it ships goods after the Complete Date, ECD will accept return of the goods so shipped; provided that ECD is notified within fourteen (14) days of the date of such shipment or it shall be conclusively presumed that Customer has accepted the order(s) shipped. A return authorization form provided by ECD must accompany any such shipment returned.
If at any time ECD believes, in its sole discretion, that the financial condition or responsibility of Customer is, or is about to become, impaired or is, or will be, inadequate to meet Customer's obligations to ECD, ECD reserves the right to suspend shipments, to change Customer's credit or payment terms and to take any other appropriate steps to protect ECD'S interests. If Customer's credit is withdrawn, ECD, at its option, may require payment or security before accepting orders from Customer or shipping goods to Customer.
ECD shall not be liable for any failure to deliver goods where such failure has occurred due to circumstances beyond the control of ECD.
RISK OF LOSS
Possession and risk of loss are transferred to Customer when ordered goods are placed in the possession of the carrier by ECD. A bill of lading or other evidence of delivery to the carrier shall be conclusive proof of proper shipment by ECD. All disputes as to goods that are lost or damaged after delivery by ECD to the carrier shall be handled directly between Customer and the carrier. Upon request, ECD will provide documents within its possession that are necessary to substantiate a claim by Customer against the carrier. If ECD has purchased insurance for the shipment on behalf of the Customer, upon request, ECD will support Customer by filing any claims for lost or damaged goods. The reimbursement for such claims will be payable to Customer only if the original ECD invoice for said goods has been paid in full.
Customer shall pay in full in United States dollars in immediately available funds for all goods shipped by ECD in accordance with the terms of ECD'S invoice. If payment by check is accepted by ECD, such payment shall not be considered to have been made until the check has cleared collection. ECD does not offer a discount for anticipation. All sums not paid when due shall be subject to delinquency charges equal to the lesser of 1½ percent per month or the highest rate allowed by law, prorated on a daily basis from the date such payment is due until paid.
RETURNS AND RETURN AUTHORIZATION REQUESTS
ECD will only accept, and give return credit for, goods authorized by ECD to be returned and displaying an ECD Return Authorization label on the carton. All requests for Return Authorization are to be submitted in writing to: Embroidery Concept & Design LLC. Attn: Customer Service, 201 POND AVENUE, MIDDLESEX, NJ 08846. Requests for Return Authorization are to be received by ECD within thirty (30) days of shipment to Customer and should provide ECD style number(s), original invoice number(s), quantity and unit price of goods in claim, reason for claim, and claim or chargeback number(s). If return freight is authorized on the Return Authorization to be paid by ECD, the goods must be returned by carrier and mode specified by ECD. Any goods returned without a Return Authorization label and any unauthorized goods that are included with a Return Authorization will not be creditedand will be disposed of at the discretion of ECD. Return Authorization labels must be used within thirty (30) days of the date of issuance.
At ECD'S discretion, a Dispose of Goods Authorization may be issued by ECD to authorize credit for individual pieces that will not be returned to ECD'S warehouse. ECD reserves the right to request return of product for any claims. Absolutely no credit will be issued for goods returned 6 months or more after delivery (except for goods returned for a previously undiscovered defect in manufacturing).
Any credit claimed by Customer, including credit for returned goods, must have supporting documentation included with or sent prior to Customer's payment. If credit documentation has not been received by ECD within thirty (30) days of the receipt by ECD of the payment that reflects the credit, the claim will be deemed invalid and repayment will be expected in full All credits must be used within 6 months of the date the credit was issued, or by the expiration date on the credit.
WARRANTY AND DISCLAIMER
ECD warrants that the goods shipped pursuant to Customer's orders (i) are free from defects in materials and workmanship; (ii) are labeled in accordance with and comply with the requirements of applicable law; and (iii) will not infringe any patent, trademark, trade name, copyright or other similar right.
EXCEPT AS SET FORTH ABOVE, ECD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ALL WARRANTIES AS TO MERCHANTABILITY OR THE FITNESS OF THE GOODS FOR ANY PARTICULAR PURPOSE. ECD NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OR USE OF ITS GOODS.
ECD "S OBLIGATIONS AND ALL REMEDIES AND THE MEASURE OF DAMAGES SHALL BE LIMITED EXCLUSIVELY TO REPAIR OR REPLACEMENT OF NON-CONFORMING GOODS AT THE OPTION OF ECD. IN NO EVENT SHALL ECD BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES OR EXPENSES (INCLUDING WITHOUT LIMITATION, TRANSPORTATION, LOST PROFITS OR DAMAGE TO PERSON OR PROPERTY), OR FOR ANY DAMAGES OR SUMS PAID BY BUYER TO THIRD PARTIES, EVEN IF ECD HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
DISTRIBUTION AND RESALE
Customer represents and warrants to ECD as follows: (i) Customer intends to sell the goods directly to consumers or to corporate end users and does not intend to resell to any other person or entity, including but not limited to any related company that is not a ECD account, other dealers or resellers, warehouse clubs, discount off-course golf shops, discount stores, off-price retailers, and Internet retailers; and (ii) Customer is not acting as a diverter of the goods.
The amount of any present or future sales, revenue, excise or other taxes, applicable to the goods sold by ECD to Customer shall be added to the purchase price and shall be paid by Customer, or, in lieu thereof, Customer shall provide ECD with a tax exemption certificate acceptable to the applicable taxing authorities.
Customer hereby grants to ECD, as secured party, a security interest in all goods sold to Customer and in all proceeds of said goods, and ECD shall have the rights and remedies of a secured party under Article 9A of the Uniform Commercial Code. ECD is hereby authorized by Customer to file a UCC Financing Statement covering said goods and proceeds.
TRADEMARK, TRADE NAME AND DOMAIN/WEBSITE NAMES
If Customer requests ECD to incorporate Customer's name, logo, design or artwork into any of the goods shipped by ECD, Customer warrants that it is the sole owner of the entire right, title and interest in and to all patent, trademark, trade name, copyright and other similar rights related to such name, logo, design or artwork provided by or on behalf of Customer to be so incorporated. Customer agrees it will not use any trademark or trade names of ECD except in connection with goods shipped to Customer, nor make any claim of ownership of any such trademark or trade name. Use or registration of Embroidery Concept & Design LLCtrademarks, including Embroidery Concept & Design LLC logos, symbols, icons or any other potentially confusing variation thereof as part of Customer's name, trade name, product name, service name, and website or domain name is strictly prohibited.
Customer shall indemnify, defend (with counsel acceptable to ECD ) and save harmless ECD from and against any claim, cause of action, damage, loss or liability, including attorneys' fees and costs, asserted against or incurred by ECD by reason of, or arising out of or in connection with: (i) any breach or alleged breach of any of these Terms and Conditions, or the provisions of any order, Order Acknowledgment, or other document between ECD and Customer; (ii) any act or omission of Customer, or the employees, agents or subcontractors of Customer, in connection with any order, Order Acknowledgment, or other document between ECD and Customer; (iii) the use of any ECD merchandise by Customer or any customers of Customer; or (iv) any infringement or alleged infringement of any patent, trademark, trade name, copyright and other similar right related to any name, logo, design or artwork provided by or on behalf of Customer to be incorporated into any ECD goods. All indemnification obligations of Customer hereunder shall survive termination or cancellation of any order.
A waiver of any one or more of the conditions of these Terms and Conditions by ECD with respect to one or more of Customer's orders shall not constitute a waiver of or an excuse for nonperformance as to any other part of these Terms and Conditions nor shall it constitute a waiver of or excuse for nonperformance as to the same condition with respect to any future order.