TERMS AND CONDITIONS OF SALE
HAWS USA, INC
1. INTRODUCTION/ORDER OF PRECEDENCE. These terms and conditions of this Agreement govern the sale of those products set forth on the Confirmation Form (“Products”) by HAWS USA, Inc. (“HAWS”), and take precedence over Customer’s additional or different terms and conditions, to which notice of objection is hereby given. HAWS has priced all of its Products based upon the provisions in this document. HAWS SHALL NOT BE BOUND BY CUSTOMER’S TERMS AND CONDITIONS. Execution of this order and every order by Customer or, if not so executed, the failure to object to HAWS’s terms and conditions in writing within five (5) business days of receipt, or the acceptance of Products purchased, shall constitute an acceptance of these terms and conditions.
2. PRICING; PAYMENT. In the event of a pricing error, or if the original manufacturer of the Products, increases the prices for the Products, HAWS reserves the right to charge the correct, then-current price. All orders must be pre-paid unless credit is approved. If HAWS extends credit to Customer, payment terms are net thirty (30) calendar days, pending credit approval, unless otherwise specified. HAWS reserves the right to charge interest on any late payments, computed on a daily basis from the due date until paid in full at the rate of one and one-half percent (1-1/2%) per month or the maximum rate permitted by law, whichever is less. In addition, Customer will pay HAWS’s costs, including attorney’s fees, associated with the recovery of any past-due payments owed by Customer to HAWS. All payments under these Terms shall be made in U.S. dollars unless otherwise agreed in writing by HAWS.
3. DELIVERY; ACCEPTANCE OF PRODUCTS. Blank or non-customized Products typically ship within 3-5 days after the order is processed, subject to availability. Dates may change without notice. All Products delivered hereunder shall be deemed accepted by Customer as conforming to this Agreement, and Customer shall have no right to revoke any acceptance, unless written notice of the claimed nonconformity or any order discrepancy is received by HAWS within five (5) days of delivery to the location set forth in writing by Customer, and all returned items must be received by HAWS within twenty (20) calendar days. Notwithstanding the foregoing, any use or alteration of a Product, including embroidering or monogramming, by Customer, its agents, service providers, employees, contractors or customers, for any purpose, shall constitute acceptance of that Product by Customer.
4. PERFORMANCE; FORCE MAJEURE. HAWS shall use reasonable efforts to observe the dates for performance of this Agreement, including delivery of Products. HAWS shall not be liable for any delay or failure to perform due to any cause beyond its control, including but not limited to strikes, acts of God, interruptions of transportation, terrorism, war, labor disturbance or shortage, manufacturer failures or delays, compliance with laws or regulations, or inability to obtain necessary materials. The delivery schedule shall be considered extended by a period of time equal to the time lost because of any delay beyond HAWS’s control. In the event HAWS is unable wholly or partially to perform because of any cause beyond its control, HAWS may terminate the order without liability to Customer.
5. PRODUCT IMAGES. HAWS warrants that it has not altered or enhanced any images shown on its web site or in its catalog to misrepresent the true nature of the product displayed. HAWS does not guarantee that all Products will be 100% consistent in color and material consistency. Minor variations in dye lots, and material thickness and finish are inherent to the manufacturing process. Customer hereby agrees to accept merchandise with such reasonable manufacturing variations. Hang tags and stickers may be incorrect, and Customer is responsible for verifying the correctness of all items.
6. CUSTOM EMBROIDERY; SPOILAGE; DAMAGE LIMITATIONS. For embroidered Products, Customer must provide an acceptable logo file in the format required by HAWS. If HAWS digitizes your artwork, additional fees may apply. Customer is solely responsible for providing artwork and approving any proofs or samples. HAWS will not be responsible for any defects in the embroidered Products to the extent resulting from Customer’s failure to provide appropriate artwork or file format or from any other cause unless due to the negligence or willful misconduct of HAWS. Customer represents and warrants that it owns or otherwise has sufficient rights in and to all logos, trademarks, copyright and other intellectual property that it provides to HAWS for embroidery or reproduction purposes.
HAWS is committed to providing quality embroidery services. However, HAWS reserves the right to allow for a 5% spoilage rate. Returns or credits for less than 5% spoilage will not be accepted or granted. In the event a delivery exceed the 5% spoilage reserve, HAWS will, upon return of the Products as authorized by HAWS, issue a credit memo to Customer for the cost of the embroidery services for each defective item in excess of the 5% reserve. In some instances, if there are defects on an embroidered Product that do not materially affect the use of the Product or the reproduction of the logo design and are within generally accepted industry standards, HAWS may not accept return of the Product for full credit, but may issue to Customer a discount or partial credit for affected pieces, as determined by HAWS in its reasonable discretion. Claims for spoilage must be made within five (5) days of delivery of the Product to Customer. In no event will HAWS liability to Customer for any errors or defects in embroidered Products exceed the aggregate cost paid by Customer for the embroidery services.
7. DISCLAIMER OF WARRANTY; RETURNS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, HAWS MAKES NO WARRANTIES REGARDING THE PRODUCTS, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES, OR ANY WARRANTY OF MERCHATABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Customer acknowledges and agrees that HAWS is not the original manufacturer of the Products and that any Products will be subject to the original manufacturer’s warranty, if any, to the extent such warranty may be passed through to Customer. In the event of any defect in a Product, HAWS sole obligation will be to work with the original manufacturer for resolution.
Returns may be made only after authorization has been secured from HAWS. All returns must be packaged carefully to prevent damage during transit. HAWS is not liable for goods damaged during transit. No refunds will be provided. If any Products are returned with authorization from HAWS, HAWS will either ship replacement goods to Customer or issue a credit memo to Customer for any such returned goods. This section provides for HAWS’ sole responsibility and liability and Customers’ sole remedy for any defective Products, subject further to the limitations described in Section 6 above. HAWS RESERVES THE RIGHT TO CHARGE A RESTOCKING FEE FOR ALL RETURNED PRODUCTS. No discontinued or custom items may be returned.
8. LIMITATION OF LIABILITY. IN NO EVENT SHALL HAWS BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF DATA OR LOST PROFITS AS A RESULT OF ANY FAILURE BY HAWS TO DELIVER THE PRODUCTS, ANY DEFECTS IN THE PRODUCTS OR SERVICES OR CUSTOMER’S USE OF, OR INABILITY TO USE, THE PRODUCT(S), EVEN IF HAWS IS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL HAWS’ LIABILITY EXCEED THE PRICE CUSTOMER PAID FOR THE AFFECTED PRODUCT(S). CUSTOMER REPRESENTS THAT IT IS ACQUIRING THE PRODUCT(S) FOR LAWFUL PURPOSES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN ANY WAY RELATED TO THE SUBJECT MATTER OF THESE TERMS OR PRODUCTS FURNISHED BY HAWS MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED.
9. INDEMNIFICATION. Customer hereby agrees to defend, indemnify and hold harmless HAWS and its directors, officers, owners, employees, agents, service providers and contractors and manufacturers and vendors from and against all claims, actions, demands, damages, liabilities, losses and expenses (including reasonable attorneys’ fees) arising from or in connection with Customer’s breach of any of the terms, conditions, representations or warranties in this Agreement, any unauthorized use of any third party’s trademarks, copyrights or other intellectual property, or any use, resale or distribution of Products by Customer.
10. TAXES. Prices are exclusive of all sales, use, and similar taxes. If orders are taxable, Customer will notify HAWS at the time of order and reach agreement whether the tax will be withheld as sales tax by HAWS or accrued as use tax by Customer. If sales taxes are not applicable, Customer will furnish an exemption certificate to HAWS upon request.
11. TITLE, RISK OF LOSS AND SHIPMENT. HAWS shipments are FOB HAWS facility or drop-shipped directly from the applicable vendor. HAWS shall retain a purchase money security interest and right of possession in the Products until Customer makes full payment. Title and risk of loss or damage to Products shall pass to Customer at the FOB point. Unless otherwise directed by Customer, HAWS will declare minimum value on goods shipped to obtain lowest freight charges. Transportation, insurance and freight charges are Customer’s responsibility; such charges are generally prepaid by HAWS and these charges are added to the applicable invoice for payment.
12. CANCELLATION OF ORDERS. Customer understands that once it has executed an order or confirmation, HAWS does not guarantee that it will be able to make changes to, delay or cancel the order without Customer incurring additional charges. Orders for Products may not be cancelled, delayed or changed without the prior authorization of HAWS. Customer will be responsible for payment of any such charges if it requests any change, delay or cancellation of its order.
13. DEFAULT AND TERMINATION. If Customer breaches any of its obligations under this Agreement, including but not limited to its obligation to pay for Products purchased from HAWS, and fails to cure such breach within ten (10) days after written notice, then HAWS may, upon written notice to Customer: (a) terminate its obligations under these Terms; (b) suspend its performance and withhold shipments, in whole or in part; and whether or not pursuant to the order set forth on this Confirmation Form or any other Confirmation Form or agreement between the parties (c) terminate any extension of credit to Customer and declare all sums owing to HAWS immediately due and payable, and/or (d) recall Products in transit, retake same and repossess any Products held by HAWS for Customer’s account, without the necessity of any other proceedings. The foregoing remedies are non-exclusive, and HAWS may exercise any remedies available to it under applicable laws and these Terms.
14. ASSIGNMENT. Customer may not assign or transfer this Agreement or any of its obligations or rights hereunder without the prior written consent of HAWS, and any attempted assignment made without such consent shall be null and void. Any consent of HAWs to the assignment of this Agreement shall be conditioned upon (i) HAWs determination that the assignee is financially stable and able to meet the contractual commitments of Customer; and (ii) the written assumption of Customer’s obligations, including payment obligations, under this Agreement by assignee. Notwithstanding the foregoing, in the event of any assignment, HAWS reserves the right to modify or withdraw any credit terms previously extended to Customer. This Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties.
15. ENTIRE AGREEMENT. CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT INCLUDING THESE STANDARD TERMS AND CONDITIONS OF SALE, AND AGREES TO BE BOUND BY IT, that it is the complete and exclusive statement of the agreement between the parties and expressly supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter hereof. No waiver of any breach or of any provision of these terms shall constitute a waiver of any other breach or provision. The parties hereto agree that no waiver, alteration, or modification of any of the provisions hereof shall be binding upon a party unless in writing and signed by a duly authorized representative of both parties.
16. EXPORT RESTRICTIONS. Customer acknowledges and agrees that the export of Products purchased by Customer hereunder, including Specialty Brand Products, is prohibited. Customer shall be solely responsible for any export of Products in violation of this Agreement.
17. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws, other than choice of law rules, of the state of North Carolina. The United Nations Convention for International Sales of Goods shall not apply to this Agreement. Customer agrees that sole jurisdiction and venue for any dispute arising under this Agreement shall be in a state or federal court in Wake County, North Carolina.
18. SPECIALTY BRAND POLICIES AND REQUIREMENTS. Customer may be permitted to purchase certain Specialty Brand Products from HAWS. Specialty Brand Products include all Products from the following: Carhartt®, Kuhl®, Dickies®, Ariat® and any other brands listed on HAWS site, catalog or order from as Specialty Brands. If Customer is purchasing Specialty Brand Products, Customer hereby acknowledges and agrees that the manufacturers of the Specialty Brand Products (“Brand Manufacturers”) have an interest in protecting the trademarks and other intellectual property of the Brand Manufacturers and that such Brand Manufacturers have authorized distributors and sales channels. Customer agrees to adhere to the following policies and requirements with respect to all purchases by Customer of Specialty Brand Products. HAWS reserves the right to reject or cancel orders from any Customer for Specialty Brand Products if HAWS in its sole discretion believes that such Customer or order is not in compliance with these policies. Customer further agrees that HAWS may post or publish other Specialty Brand Policies on its website, including as may be specifically applicable to one or more Specialty Brands, and that all such posted or published policies are incorporated herein.
a. Customer shall not: (i) advertise, promote, distribute, sell or market the Specialty Brand Products in any way that may be harmful, disparaging, injurious or misrepresentative of the Specialty Brand or use any illegal, deceptive, undesirable, or improper advertising, marketing or selling practices, including without limitation, predatory pricing, bait and switch practices or negative selling practices, in connection with its use, distribution or sale of any Specialty Brand Products.
b. Customer shall be permitted to sell or resell the Specialty Brand Products only to Customer’s end-user customers, including for such end-user customer’s employees and other related parties for personal use and not for resale. Customer shall not otherwise, directly or indirectly, resell, distribute, redistribute, transfer, consign, or otherwise provide or facilitate the provision of any Specialty Brand Product to any reseller, distributor, seller, retailer, wholesaler (including on-line, big box or other stores, outlets or sites). Customer shall only distribute and transfer the Specialty Brand Products to end-user customers, not for resale. In no event may Customer sell, distribute or promote, or allow the sale, distribution or promotion, of any Specialty Brand Product through eBay, Amazon, Craigslist or any other third party retail sites, or warehouse clubs or other mass retailers.
c. All Specialty Brand Products must include Customer’s logo, insignia or other image (or other custom logo), unless otherwise expressly stated in HAWS catalog or website.
d. Customer represents and warrants that any image, logo or insignia provided to HAWS for use on a Specialty Brand Product shall not infringe the trademark, copyright or other intellectual property, privacy or publicity right of any person or entity and shall not disparage, devalue or otherwise cause harm to the Specialty Brand. HAWS reserves the right to refuse use of any image, logo or insignia for any reason in its sole discretion.
e. Customer shall not export Specialty Brand Products outside of the United States, unless otherwise expressly indicated on the HAWS catalog or website.
f. Some Specialty Brands may have additional policies or restrictions, as may be set forth on the HAWS website or catalog, and Customer agrees to abide by all such policies and restrictions.
g. In the event of any violation by Customer of any of these policies, at the request of HAWS, Customer shall, at its own expense and without credit or refund, return to HAWS all Specialty Brand Products purchased by Customer.
HAWS reserves the right to modify or amend these Specialty Brand policies and requirements unilaterally at any time, with or without prior notice. Such modifications or amendments will be effective upon posting to HAWS website. Customer shall indemnify and hold HAWS harmless from and against any claims, actions, liabilities, losses or other damages resulting from Customer’s failure to adhere to these Specialty Brand Policies, including any claims or damages payable to or demanded by the Specialty Brands.
Effective Date: 11-22-2015