WHOLESALE AGREEMENT
WHOLESALE AGREEMENT
This Agreement (the “Agreement”) is entered into by Spiraledge, Inc., doing business as Sporti (“Sporti” or “we”) and _____________ (“Wholesaler” or “Customer”). This Agreement will govern Wholesaler’s opportunity to purchase and sell our line of swimming apparel products and related accessories (the “Products”) solely to retail end users from Wholesaler’s retail store. Please contact us at wholesale@sporti.com if you have any questions about placing your order.
The terms of this Agreement are subject to change by us at any time by posting a revised Agreement on our Website. By purchasing Products from us, Wholesaler agrees to be bound by the Agreement in effect at the time Wholesaler places its order. We will not accept any attempt to impose any terms or provisions not included within this Agreement or which contradict or vary the terms of this Agreement.
Article 1. No Minimum Orders
We do not require any minimum orders for our products.
Article 2. Payment and Order Terms
2.1 Unless otherwise agreed in writing, payment for the Products shall be made at the time the order is placed, via credit card or wire transfer. There will be a $35.00 charge for electronic fund transfer rejections for any reason.
2.2 We make no guarantees regarding availability of the Products or shipping dates. Our shipping dates will depend on the order quantity and the type of Products purchased. If we are unable to supply you with any Product(s) ordered, we will inform you of this by email as soon as is reasonably practicable upon becoming aware of any such issues, and we will not process the order unless and until you confirm to us by email that you wish us to proceed and the details of any changes required to be made to your order. If we are able to, we will offer you the nearest alternative or if you would prefer, we will refund you the full amount that you have paid in respect of the relevant Products as soon as is reasonably practicable.
2.3 We must agree to any changes in orders in writing via email.
2.4 All sales are final, subject to any returns pursuant to Section 6. 2 hereof.
2.5 We may refuse to accept or cancel any order or delivery of Products at any time by giving written notice to Wholesaler. We will not be liable for any loss or damage whatsoever arising from any such cancellation. In the event of such a cancellation, we will refund to the Wholesale any amounts due.
2.6 We may change the specifications or design of any Product at any time. In such event, Wholesaler may cancel its order for the Products; provided, however, such cancellation must be made within ten (10) days after notification of such changes is delivered to Wholesaler and prior to shipment of its order.
Article 3. Duties, Taxes and Fees
The payment of all state and local sales taxes is the responsibility of the Wholesaler. Where applicable, the payment of all customs duties, expenses, fees and licenses is Wholesaler’s responsibility.
Article 4. Sale of Products
Wholesaler shall sell the Products only at physical retail stores. Wholesaler shall not sell or distribute any Products to wholesalers, resellers, dealers, distributors, catalog vendors or any other entity which does not operate physical retail stores exclusively. Wholesaler shall not resell any Products on online platforms such as Amazon.com, Ebay.com, or similar stores or auction sites.
Article 5. Shipping
Unless otherwise agreed to in writing, we will arrange for the delivery of the Products to Wholesaler. Wholesaler will pay all insurance, shipping costs and expenses related to the delivery of the Products. All of such costs and expenses will be included within the invoice for the Products unless the parties otherwise agree in writing. Risk of loss of the Products shall pass to Wholesaler when the Products are delivered to the carrier by us.
Article 6. Notice of Defects. Exchanges. Returns
6.1 Notice of Defects. It is the responsibility of the Wholesaler to inspect the Products promptly upon their receipt and to confirm that the Products conform to the items that were ordered. In the event that the Products are non-conforming or are defective, Wholesaler must make any claims within ten (10) days after receiving the Products.
6.2 Returns. If the Products are defective, Wholesaler shall have the right to return the Products. In such cases, Wholesaler shall have thirty (30) days after its receipt of the Products to return the defective Products. Before returning any Products, Wholesaler must obtain prior authorization from us. Products may not be returned without first obtaining authorization. Wholesaler may request authorization by calling our customer service department at ______________ or emailing us at wholesale@sporti.com. We will provide the return label and pay the shipping charges for returned Products. All returns must include the Return Authorization (RA) sheet in the shipment and the RA# must be included on the return label.
6.3 If a non-defective return is approved, we will issue you a Return Authorization Number (RA#). All returns must include the Return Authorization (RA) sheet in the shipment and the RA# must be included on the return label. The purchaser is responsible for all shipment costs and will be responsible for a 15% restocking fee.
6.4 Modification of Products. If Wholesaler modifies the Products or the tags in any way, we will not accept their return.
Article 7. Samples and Images.
Product information and images displayed on the sporti.com/wholesale website are for general informational purposes only, may contain errors, and are subject to change. We make no warranty that Product information and images on the swimoutlet.com will be accurate in all respects. Also, depending on the screen quality and settings of your computer or mobile device, product color or finish you see on your computer or mobile device may differ from actual product color or finish, and we make no warranty that the Product color or finish you see on your computer or mobile device will accurately reflect actual Product color or finish. We do not warrant that the quality, weight, designs or color of the Products correspond to any specific description, image or sample.
Article 8. Intellectual Property
8.1 Wholesaler may use the trademarks set forth in Exhibit A (the “Trademarks”) for advertising the Products and no other purpose. We grant Wholesaler a personal, non-exclusive, non-transferable, and non-assignable license to use the Trademarks solely for the purposes of marketing the Products under this Agreement. Wholesaler shall not use the Trademarks in any way that is detrimental to Sporti’s goodwill, reputation or image.
8.2 The license of Trademarks under this Article may be revoked at any time by delivery of written notice to Wholesaler or upon termination of this Agreement. In such case, Wholesaler shall immediately stop all use of the Trademarks.
8.3. Wholesaler shall not (i) claim ownership of or attempt or register any Trademarks in any country or state; (ii) do anything which would adversely affect the validity of the Trademarks in any jurisdiction; (iii) infringe the Trademarks; or (iv) attack the validity of the Trademarks. Wholesaler must notify Sporti of any infringement or potential infringement that it becomes aware of during the term of this Agreement. Sporti may take such action or actions as it may deem necessary to protect its title to the Trademarks.
Article 9. Promotional Materials
Wholesaler may use our product photography, graphics and marketing assets to market and sell the Products. We will provide Wholesaler with these assets through a digital account. We encourage Wholesaler to use these assets in its physical locations, on its social media platforms and in its marketing campaigns.
Article 10. Limitation of Liability and Warranty
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AND WE EXCLUDE AND DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
THE LIABILITY OF SPORTI ARISING OUT OF SUPPLYING OR SELLING THE PRODUCTS UNDER THIS AGREEMENT, OR THEIR USE BY WHOLESALER OR ITS CUSTOMERS, AND WHETHER BASED UPON BREACH OF CONTRACT OR EXPRESS OR IMPLIED WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS. THE REMEDIES SET FORTH ABOVE SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF WHOLESALER AND ITS CUSTOMERS. UNDER NO CIRCUMSTANCES SHALL SPORTI BE LIABLE TO WHOLESALER OR ITS CUSTOMERS FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, WHETHER BASED UPON LOST GOODWILL, LOST PROFITS, PROPERTY DAMAGE, LOSS OF USE, EXPENSES OF RECALL, OR OTHERWISE.
Article 11. Express Warranties
Sporti hereby represents and warrants that the Products purchased by Wholesaler:
(a) substantially comply with all federal and state laws, rules and regulations that apply to the goods, including the following: The Consumer Products Safety Act, Consumer Product Safety Improvement Act of 2008, Flammable Fabrics Act, Federal Food Drug and Cosmetics Act, Child Protection and Toy Safety Act, Hazardous Substances Labeling Act, Poison Prevention Packaging Act of 1970, Textile Fiber Products Identification Act, Federal Wool Products Labeling Act, Federal Trade Commission Act, Fur Products Labeling Act, and California’s Proposition 65;
(b) have been designed, manufactured, sold and delivered in substantial compliance with all applicable industry safety standards; and
(c) are new and are of first-class quality and material.
Article 12. Termination.
12.1 We reserve the right to terminate this Agreement by giving written notice to Wholesaler if: (a) Wholesaler has failed to comply with a written notice given by us specifying a breach of the Agreement and Wholesaler has not remedied the breach within fourteen (14) days; or (b) at our option upon fourteen (14) days notice.
12.2. We shall not be liable to Wholesaler solely by reason of the termination of this Agreement for any reason whatsoever, including, but not limited to, direct, indirect, special, consequential or incidental damages sustained by reason of such termination in respect of sales of the Products or otherwise.
Article 13. Choice of Law.
This Agreement shall be governed by California law. The parties agree that any legal proceeding arising out of this Agreement shall be brought in the courts of the State of California, County of Santa Clara or, if it has jurisdiction, in the United States District Court for the Northern District of California.
Article 14. General Provisions.
14.1 Assignability. Wholesaler may not assign or sublicense any of its rights or delegate any of its duties hereunder without our prior written consent. Any attempted assignment or sublicense in violation of this provision shall be void.
14.2 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior negotiations and agreements between the parties concerning its subject matter.
14.3 Notices. All notices hereunder shall be in writing and shall be deemed to have been delivered to the recipient: (i) upon delivery by hand, on a business day and at the address of the recipient set forth herein; (ii) three (3) days after deposit if sent by First Class United States mail, postage prepaid, to recipient at the address set forth below; (iii) upon receipt if sent by registered or certified United States mail, postage prepaid, return receipt requested, to the recipient at the address set forth below; or (iv) upon sending of an email to the recipient with acknowledgment of acceptance by recipient.
If to Sporti:
If to Wholesaler:
or to such other address as a party shall notify the other party in accordance with the provisions of this Section.
14.4 Severability. In the event that any one or more of the provisions in this Agreement should be held by a court or administrative body to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions contained herein shall not be impaired thereby, and this Agreement shall be interpreted and construed as if such provision had never been contained herein.
14.5. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document.
14.6 Expenses. Each party shall be responsible for all expenses incurred by it in connection with this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
Spiraledge, Inc., doing business as Sporti
Name: ______________________________ Title: _______________________________
Signature: ___________________________ Date: _______________________________
Wholesaler
Name: ______________________________ Title: _______________________________
Signature: ___________________________ Date: _______________________________
