MW WHOLESALE TERMS AND CONDITIONS
1. Acceptance and Delivery. Seller shall not be responsible for any delay in its performance beyond its control or beyond the control of its suppliers. The parties agree that, unless otherwise agreed to in writing and signed by both parties, shipping dates are approximate and that time is not of the essence. All orders by Buyer constitute offers to purchase which are subject to acceptance or rejection by Seller in Roseville, Minnesota and any contract for the sale of goods by Seller is formed and performed in Minnesota. Seller’s acceptance of any order from Buyer is expressly conditional upon Buyer’s assent to the terms and conditions set forth herein and Seller expressly limits its acceptance of Buyer’s order to such terms and conditions and any additional or different terms proposed by Buyer, whether oral, written or electronic are expressly rejected. The minimum order amount is $300. Orders are shipped FOB Omaha, Nebraska from Seller’s fulfillment center. All sales are final and products sold are not returnable.
2. Payment Terms. Payment terms shall be governed by the terms on the face of this order or invoice and the credit terms extended by Seller, if any, and any such credit terms may be revoked at any time. Buyer grants Seller permission to investigate applicable credit references including, bank, commercial and consumer credit checks. Buyer understands that credit information regarding Buyer may be provided by Seller to credit reporting agencies or upon our request as a reference. Payment shall be due and payable on the date so specified. Past due balances remaining unpaid will be subject to a delinquency charge at the rate of 1½ percent per month or the maximum rate permitted by law, whichever is less; and Buyer shall pay all Seller’s costs of collection of past due amounts, including but not limited to attorney fees and court costs. If credit terms are extended to Buyer, Buyer hereby grants a security interest in the merchandise purchased by Buyer and all proceeds from the sale or disposition of such merchandise and appoints Seller as Buyer’s attorney-in-fact to execute on Buyer’s behalf any Uniform Commercial Code financing statements Seller deems reasonably necessary to perfect Seller’s security interest. Buyer agrees to pay $40.00 per check on all returned or NSF checks. Seller agrees and acknowledges that Buyer tenders payment for each order and Seller is authorized to charge Buyer's credit card or other charge account (whether Seller or a third party is the creditor) only as of the day Seller ships the order and only in respect to the merchandise shipped. Seller has no authorization or right to payment prior to the day Seller ships the merchandise ordered by Buyer.
3. Warranty and Risk of Loss. Seller shall, at its election, either repair, replace, or refund the purchase price, exclusive of shipping and handling charges, for any merchandise which is defective in workmanship or material and for which Buyer makes a claim within five (5) days after receipt of the merchandise. When making such a claim, Buyer must submit both the original packing slip and the defective merchandise itself (or a sample thereof), unless these conditions are waived by Seller in writing. This paragraph constitutes Seller’s sole obligation as to the merchandise, and the Buyer acknowledges that this paragraph sets forth Buyer’s exclusive remedy for any breach of warranty or other duty related to the merchandise or quality thereof. Any refund for merchandise shall not include shipping and handling, unless otherwise agreed by Seller in writing. At its discretion, Seller may charge a restocking fee, not to exceed twenty-five percent (25%) for returned merchandise. Buyer bears all risk of loss from the time the merchandise is loaded onto common carrier to be shipped to Buyer, regardless of whether Seller pays freight. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, OR WITH RESPECT TO ANY APPROVALS, CHARACTERISTICS, CERTIFICATIONS, INGREDIENTS, BENEFITS, USES, STANDARDS, QUALITY OR GRADE OF ANY MERCHANDISE, OR ARISING BY CUSTOM OR TRADE USAGE AND, SPECIFICALLY, MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE MERCHANDISE ARE HEREBY SUPERCEDED, EXCLUDED AND DISCLAIMED. THE EXPRESS WARRANTY CONTAINED IN THIS PARAGRAPH CONSTITUTES THE SOLE AND EXCLUSIVE WARRANTY MADE BY SELLER AND IS IN LIEU OF ALL OTHER WARRANTIES. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, EVEN IF SELLER IS ADVISED OF THE POSSIBILITY OF THE SAME IN ADVANCE. SELLER’S AGGREGATE LIABILITY IS LIMITED TO THE AMOUNT ACTUALLY PAID BY BUYER.
4. Product Descriptions. Seller periodically adds, changes, modifies and updates its catalogs and website, including without limitation these Terms and Conditions. Seller tries to be as accurate as possible, but makes no warranties or representations that (a) the content, including product descriptions, prices and depictions, are accurate, complete, reliable, current or error-free, (b) any merchandise has any particular approvals, certifications, characteristics, uses, ingredients, or benefits, or (c) any merchandise is of or meets any particular standard, certification, quality or grade, Seller assumes no liability with respect to any of the forgoing. If a product purchased is not as described or expected, Buyer’s sole remedy is to return it in unused condition.
5. Nonwaiver of Defaults. Each shipment made under any order shall be treated as a separate transaction, but in the event of any default by Buyer, Seller may decline to make further shipments without in any way affecting Seller’s rights under such order. If, despite a default by Buyer, Seller elects to continue to make shipments, or accept further orders from Buyer, such action(s) shall not constitute a waiver of any default by Buyer, or in any way affect Seller’s legal or equitable remedies for any such default, or of any default at any prior or subsequent time. Any refund, credit, gift certificate or discount due Buyer may be offset against amounts owed to Seller.
6. Dispute Resolution. Buyer agrees that any action brought by Buyer to resolve any claim, dispute or controversy of any nature arising out of or related to any order or transaction between Buyer and Seller or any merchandise sold or distributed by Seller or any policy, statement, representation, advertisement, promotion, offer, customer information of Seller, or these Terms and Conditions shall be brought in a court of competent jurisdiction in Ramsey County, Minnesota and Buyer hereby consents to the exclusive jurisdiction of such courts. All such claims, disputes or controversies shall be resolved individually and not as part of any class action or class arbitration and the right to commence or participate in any class proceedings is specifically waived by Buyer.
7. Compliance with Laws and Indemnification. In addition, if Buyer intends to resell, distribute or export any product, Buyer agrees to bear all responsibility for compliance with the laws, rules and regulations of the jurisdiction in which the product is resold or to which the product is distributed or exported, and Buyer agrees to indemnify, defend and hold harmless Seller from and against any and all costs, damages, liability, fines, penalties and expenses (including attorney fees) arising out of any such resale, distribution or exportation.
8. Electronic Communications. WHEN BUYER PROVIDES SELLER WITH BUYER’S EMAIL ADDRESS OR TELEPHONE NUMBER, SENDS SELLER EMAILS OR VISITS THE SELLER’S WEBSITE OR SOCIAL MEDIA CHANNELS, BUYER IS COMMUNICATING WITH SELLER ELECTRONICALLY AND CONSENTS TO RECEIVE COMMUNICATIONS FROM SELLER ELECTRONICALLY. SELLER MAY COMMUNICATE WITH BUYER BY TELEPHONE, EMAIL, TEXT, FACSIMILE, SOCIAL MEDIA OR BY POSTING NOTICES ON SELLER’S WEBSITE. BUYER EXPRESSLY CONSENTS TO RECEIVE ANY SUCH COMMUNICATIONS AND AUTHORIZES SELLER TO DELIVER OR CAUSE TO BE DELIVERED ADVERTISEMENTS OR TELEPHONE MESSAGES USING AUTOMATIC DIALING SYSTEMS OR PRERECORDED VOICE TO THE TELEPHONE NUMBERS BUYER PROVIDES, AND BUYER HEREBY WAIVES ANY CLAIMS BASED ON SUCH COMMUNICATIONS. BUYER AGREES THAT ALL NOTICES, DISCLOSURES, AGREEMENTS OR OTHER COMMUNICATIONS SELLER PROVIDES ELECTRONICALLY SATISFY ANY LEGAL REQUIREMENT THAT SUCH COMMUNICATIONS BE IN WRITING.
9. MAP Policy. Seller has established a minimum advertised price policy in order to protect the goodwill, integrity and quality of Seller’s brands. Resellers of Seller’s products may not, directly or indirectly, advertise a price lower than the Minimum Advertised Price (“MAP”). The MAP is the amount equal to the retail price set forth on the mindware.com website (which is subject to change from time to time in its sole discretion and without prior notice). The MAP policy applies to sales on any medium or channel of commerce. The MAP policy will be enforced in Seller’s sole discretion and Seller may take any action deemed appropriate with respect to any reseller that violates the MAP policy. Under the policy and without limitation, Resellers shall not (a) make any statement or other indication, or permit others to make any statement or other indication, that a price lower than the MAP is or may be available; (b) display or have reserved bid or other acceptable prices less than the MAP on auction websites; (c) advertise Seller’s products with any additional discount, coupons, gift card, or other promotion the effect of which is to reduce the advertised price below the MAP; or (d) combine the product price and shipping and handling in order to meet the MAP. Resellers are free to establish their resale pricing, but failure by a reseller to comply with the MAP policy may result in the termination of any reseller agreement or any other remedies available including, but not limited to, cancelling or delaying fulfillment of such reseller’s orders, denying discounts or favorable pricing to such reseller, or limiting order quantities. The complete MAP policy is available on Seller’s website.
10. E-Commerce Reselling. Sales of Seller’s product on Amazon.com or other third party platform by any reseller is prohibited. Seller also prohibits the sale of Seller’s products on Walmart.com, Target.com and other big box retailer websites without Seller’s prior written consent. In addition, resellers are prohibited from selling, directly or indirectly, to customers, or shipping Seller’s products to locations, outside of the United States without Seller’s prior written consent.
11. California Prop 65 Compliance and Notice. Buyers who are retail sellers of consumer products and intend to resell any product in California or to California residents are provided this notice: THE PACKING SLIP OR INVOICE ACCOMPANYING THE SHIPMENT OF PRODUCT PROVIDES INFORMATION REGARDING WHICH, IF ANY, PRODUCTS SELLER SHIPS TO BUYER MAY RESULT IN EXPOSURE TO ONE OR MORE OF THE PROP 65 LIST OF CHEMICALS, INCLUDING THE EXACT NAME OR DESCRIPTION OF THE PRODUCT, AND INCLUDES THE PROP 65 WARNING NECESSARY FOR LABELING, SHELF SIGNS, TAGS OR OTHER WARNING METHOD FOR RETAIL SALE OF THE PRODUCT. SELLER'S CONFIRMATION OF DELIVERY OF THE SHIPMENT TO BUYER CONSTITUTES CONFIRMATION OF RECEIPT OF THIS NOTICE BY BUYER UNLESS BUYER NOTIFIES THE SELLER IN WRITING WITHIN 15 DAYS OF THE DATE OF ANY SUCH SHIPMENT. BUYER UNDERSTANDS AND AGREES THAT IF BUYER INTENDS TO RESELL ANY OF THE PRODUCTS BUYER IS SOLELY RESPONSIBLE FOR THE PLACEMENT AND MAINTENANCE OF WARNING MATERIALS, INCLUDING WARNINGS FOR PRODUCTS BUYER SELLS OVER THE INTERNET. Buyer agrees to provide Seller with written notice prior to placing any order if Buyer intends to distribute any product into the state of California and acknowledges and agrees that any such distribution of product into the state of California may require appropriate Proposition 65 (Title 22 of the California Code of Regulations) warning labels. If Buyer fails to provide such notice or fails to provide appropriate Proposition 65 warnings and distributes any product into the state of California, Buyer agrees to indemnify, defend and hold harmless Seller from and against any and all costs, damages, liability and expenses (including attorney fees) arising out of any alleged Proposition 65 violations.
12. Miscellaneous. No amendment, modification or addition to these terms and conditions shall be binding unless expressly agreed to in writing and signed by Seller. These terms and conditions shall be binding upon Buyer, its permitted successors and assigns, and shall inure to the benefit of Seller. Any waiver by Seller of any part herein shall not constitute a waiver of any other part. These terms and conditions shall be construed under and governed by the substantive laws and not the choice of law rules of the state of Minnesota. Buyer consents to and agrees that any state or federal court in Ramsey County, Minnesota shall have personal and subject matter jurisdiction over Buyer and this Agreement; that Minnesota has the most significant contacts with this Agreement, to the exclusion of any other state; and that any legal dispute brought by either Buyer or Seller relating to this Agreement will be instituted in Ramsey County, Minnesota pursuant to section 6 above. Buyer expressly consents and agrees to receive communications regarding any order or transaction from Seller by electronic mail and facsimile.