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1. ACCEPTANCE OF INVOICES & MERCHANDISE
Buyer's acceptance of these terms and conditions shall be
indicated by any of the following, whichever first occurs: (a) Buyer's
making of an offer to purchase Product from Minerva; (b) Buyer's written
acknowledgment hereof; (c) Buyer's acceptance of any shipment of any
part of the items specified for delivery (the "Products"); or (d) any
other act or expression of acceptance by Buyer. Minerva's acceptance is
expressly limited to these terms and conditions in their entirety
without addition, modification or exception, and any term, condition or
proposals hereafter submitted by Buyer (whether oral or in writing)
which is inconsistent with or in addition to these terms and conditions
is objected to and is hereby rejected by Minerva. Minerva's silence or
failure to respond to any such subsequent or different term, condition
or proposal shall not be deemed to be Minerva's acceptance or approval
thereof.
2. DELIVERY
Unless otherwise agreed in writing, delivery shall be
made in accordance with Minerva's shipping policy in effect on the date
of shipment. The current Minerva shipping policy can be located at
www.minervabeauty.com/shipping.htm.
Domestic: For all domestic transactions, unless otherwise stated on
the front of the invoice, title to the Products and all risk of loss or
damage with respect to the Products shall pass to Buyer upon delivery by
Minerva to the carrier or Buyer's representative at Minerva's
distribution center. : For all domestic transactions, unless otherwise stated on the front of
the invoice, title to the Products and all risk of loss or damage with
respect to the Products shall pass to Buyer upon delivery by Minerva to
the carrier or Buyer's representative at Minerva's distribution center.
International:
For all international transactions, Minerva assumes no
responsibility for charges related to customs clearance in the country
of delivery, customs duties, VAT or any other charges or taxes within
the country designated for delivery by the Buyer. Title shall pass to
the Buyer upon delivery to the Buyer or Buyer’s representative.
Delivery is subject to the payment provisions set forth
herein and to Minerva's receipt of all necessary information and
documentation from Buyer including all import certificates, exemption
and/or resale certificates, licenses and other documents as may be
required from Buyer for export of the Product. Buyer shall promptly
notify Minerva, in no event later than two (2) business days after
delivery, of any claimed shortages or rejection as to any delivery.
Such notice shall be in writing and shall be reasonably detailed,
stating the grounds for any such rejection. Failure to give any such
notice within such time shall be deemed an acceptance in full of any
such delivery. Minerva shall not be liable for any shipment delays
beyond the reasonable control of Minerva which affect Minerva or any of
Minerva's suppliers, including, but not limited to, delays caused by
unavailability or shortages of Products from Minerva's suppliers;
natural disasters, acts of war; acts or omissions of Buyer; fire,
strike, riot, or governmental interference; unavailability or shortage
of materials, labor, fuel or power through normal commercial channels at
customary and reasonable rates; failure or destruction of plant or
equipment arising from any cause whatsoever; or transport failures.
3. PRICE AND PAYMENT
Buyer shall bear all applicable federal, state, municipal
and other government taxes (such as sales, use and similar taxes), as
well as import or customs duties, license fees and any other similar
charges, however designated or levied on the sale or delivery of the
Products or measured by the purchase price paid for the Products.
Minerva's prices set forth on the front side of the invoice do not
include such taxes, fees and charges. Exemption certificates must be
presented to Minerva prior to shipment if they are to be honored.
Payment Terms:
Unless otherwise specified, the payment terms are
prepaid. All unpaid invoices shall bear interest at an amount equal to
1-1/2% of the outstanding balance per month (or the maximum rate of
interest allowed to be contracted for by law, whichever is less),
commencing upon the date payment is due. Buyer's failure to make timely
payment may result in such action as commencement of proceedings for
collection, revocation of credit, stoppage of shipment, delay or
cessation of future deliveries, repossession of unpaid delivered goods
and termination of any one or more sales agreements. Notwithstanding
any "net" payment provisions specified on the invoice, Minerva shall
have no continuing obligation to deliver Products on credit, and any
credit approval may be withdrawn by Minerva at any time and without
prior notice. Minerva retains (and Buyer grants to Minerva Beauty, Inc.
by submitting a purchase order) a security interest in the Products to
secure payment in full and compliance with these terms and conditions of
sale. Buyer agrees to execute any additional documents necessary to
perfect such security interest.
Collections:
In the event the sales invoice shall be placed by Minerva in the hands
of an attorney or collection agency for the purpose of collection, with
or without litigation, or for the purpose of enforcing Minerva's
security interest in the Products, the Buyer agrees to pay any and all
costs associated with such placement, including, without limitation,
attorney's fees and costs incurred prior to, during, or subsequent to
trial, and including, without limitation, collection, bankruptcy, or
other creditor's rights proceedings.
Currency:
If a sale is to occur, or the Product is to be shipped,
outside of the United States, Buyer acknowledges and agrees that the
amount due Minerva is contracted in U.S. Dollars and that payment in
U.S. Dollars is of the essence. Any payment by Buyer in local currency
or the receipt by Minerva of local currency as a consequence of
enforcement procedures against Buyer will be deemed an authorization for
Minerva to use that local currency to purchase U.S. Dollars or, if such
purchase is prohibited by local law, an authorization to purchase
appropriate bonds or other instruments and export them from the Buyer's
country in order to convert the currency into U.S. Dollars and apply the
proceeds to the payment of any amounts owed to Minerva by Buyer. Any
deficiency as a result of conversion of payment into U.S. Dollars shall
be the responsibility of Buyer.
4. RETURNS
Any return of the Products purchased hereunder, whether
for stock balancing purposes or because such Products are claimed to be
defective, shall be governed by Minerva's Product Return policies in
effect on the date of the invoice, or as otherwise provided by Minerva
to Buyer in writing. Minerva’s Product Return policies are located at
www.minervabeauty.com. Minerva reserves the right to modify or
eliminate such policies at any time. Although Minerva's policies may
permit Buyer to return Products claimed to be defective under certain
circumstances, Minerva makes no representations or warranties of any
kind with respect to the Products. MINERVA HEREBY DISCLAIMS ALL
REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY,
NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. MINERVA WILL NOT
BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH OF WARRANTY.
The right to return defective Products, as previously described, shall
constitute Minerva's sole liability and Buyer's exclusive remedy in
connection with any claim of any kind relating to the quality, condition
or performance of any Product, whether such claim is based upon
principles of contract, warranty, negligence or other tort, breach of
any statutory duty, principles of indemnity or contribution, the failure
of any limited or exclusive remedy to achieve its essential purpose, or
otherwise. In the event Minerva issues a return authorization to Buyer
allowing Buyer to return Product to Minerva, Buyer will deliver the
Product to Minerva's address in the United States, if so required by
Minerva, and Buyer shall bear all applicable federal, state, municipal
and other government taxes (such as sales, use and similar taxes) as
well as import or customs duties, license fees and similar charges,
however designated or levied, on any replacement Product to be shipped
by Minerva to Buyer.
5. LIMITATION OF LIABILITY
MINERVA shall not be liable under any circumstances for
any special, consequential, incidental, PUNITIVE or exemplary damages
arising out of or in any way connected with the agreement to sell
Product to Buyer or the Product, including, but not limited to, damages
for lost profits, loss of use, lost data or for any damages or sums paid
by Buyer to third parties, even if MINERVA has been advised of THE
possibility of such damages. The foregoing limitation of liability
shall apply whether any claim is based upon principles of contract,
warranty, negligence or other tort, breach of any statutory duty,
principles of indemnity or contribution, the failure of any limited or
exclusive remedy to achieve its essential purpose, or otherwise.
6. GENERAL
These terms and conditions shall constitute the final,
complete and exclusive agreement of the parties with respect to all
sales by Minerva to Buyer and shall supersede all prior offers,
negotiations, understandings and agreements. Unless Buyer and Minerva
have executed a written agreement which specifically modifies,
supersedes and/or replaces these terms and conditions, it is expressly
agreed that no prior or contemporaneous agreement or understanding,
whether written or oral, shall contradict, modify, supplement or explain
these terms and conditions. No additional or different terms or
conditions, whether material or immaterial, shall become a part of any
sales agreement unless expressly accepted in writing by an authorized
officer of Minerva in the United States. Any waiver by Minerva of one
or more of these terms and conditions or any defaults hereunder shall
not constitute a waiver of the remaining terms and conditions or of any
future defaults. No failure or delay by either party in exercising or
enforcing any right hereunder shall operate as a waiver thereof or
preclude any other exercise or enforcement of its rights. Any provision
of these terms and conditions that is prohibited or unenforceable under
the laws of the State of Georgia shall be ineffective to the extent of
such prohibition or unenforceability, without impairing or invalidating
the remaining provisions of these terms and conditions. All sales
agreements shall be deemed made in, and shall be governed by, the laws
of the State of Georgia. The venue for any disputes arising out of any
sales agreement shall be, at Minerva's sole and exclusive option,
Gwinnett County, Georgia or the courts with proper jurisdiction at
Buyer's location. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE
1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE
OF GOODS, IF OTHERWISE APPLICABLE.
7. RESALE
a) Buyer acknowledges, represents and warrants that it currently
complies with, and at all times shall comply with, and shall not act to
contravene, relevant laws, codes, and regulations applicable to the
purchase and sale of Products under these terms and conditions.
Buyer further acknowledges and agrees that the goods,
design, and technology subject to these terms and conditions are subject
to the export control laws and regulations of the United States,
including, but not limited to, the Export Administration Regulations
("EAR"), and sanctions regimes of the U.S. Department of Treasury,
Office of Foreign Asset Controls. Buyer shall not, without prior U.S.
government authorization, export, reexport, or transfer any goods,
design, or technology subject to these terms and conditions, either
directly or indirectly, to any country subject to a U.S. trade embargo
or to any resident or national of any such country, or to any person or
entity listed on the "Entity List" or "Denied Persons List" maintained
by the U.S. Department of Commerce or the list of "Specifically
Designated Nationals and Blocked Persons" maintained by the U.S.
Department of Treasury.
b) Buyer recognizes that some Product sales are limited
to a specified territory and shall not sell Products outside that
territory. Such sales may constitute copyright or trademark
infringement. Products purchased by Buyer may also be subject to
additional usage restrictions or authorizations imposed by the Product
manufacturer or publisher. Buyer is responsible for ensuring compliance
with any such restrictions or authorization. |
