The terms below will govern the sale of merchandise relating to Everlasting Comfort (“Merchandise”) by Upper Echelon Products (“Seller”) to Wholesale Reseller (“Customer”) for resell in accordance with Section 5.3 under this agreement.
1. Prices and Payment.
1.1 Prices. Merchandise prices and minimum order quantities of Merchandise are set forth on Schedule A. Seller may change wholesale prices without prior notice.
1.2 Payment. Customer will be invoiced before Merchandise is shipped. One half of the amount owed is due via PayPal to wholesale@upperechelonproducts.com before shipping. The remaining balance is due within fourteen (14) days of the date Customer receives Merchandise. Late payments incur a finance charge of two percent (2%) of the unpaid invoice balance per month, starting fifteen (15) days after the due date. Seller may withhold fulfillment of Customer’s additional purchase orders until past due payments, including any finance charges, are received in full.
2. Shipping.
Customer will be responsible for all Merchandise shipping and handling expenses, including (if applicable), customs clearance, import/export fees, freight risks and insurance, and Customer may be required to act as the importer of record for international shipments. Seller will pay for the shipping and handling of the Merchandise and Customer will reimburse Seller within fourteen (14) days of shipment. Customer must notify Seller of any claimed shipping error or damage within five (5) days of receipt of Merchandise. Customer’s failure to give such notice within that five-day period shall be deemed a waiver of Customer's claim for incorrect or damaged shipments.
3. Returns and Credit.
3.1 Returns. Within ten (10) days of Customer’s receipt of Merchandise, Customer may return Merchandise that does not conform to Seller’s product specifications damaged or shipped incorrectly if notice of condition is given within five (5) days of receiving the merchandise. Returns will be credited to Customer’s account or replaced.
3.2 Credits. If Customer refunds or exchanges any Merchandise because it is damaged, Seller will credit the Customer’s account for the next purchase order. Customer must provide notice within fourteen (14) days of refund/exchange and provide pictures of the damaged Merchandise.
4. Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANDISE. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED BY SELLER. IN NO EVENT SHALL SELLER BE LIABLE FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS OF CUSTOMER.
5. Miscellaneous.
5.1 Buyer-Seller Relationship. The relationship created by this agreement is solely a buyer-seller relationship. This agreement does not make either party the employee, agent, or legal representative of the other for any purpose whatsoever.
5.2 Governing Law; Dispute Resolution. This agreement shall be governed by Texas law. Any dispute arising from this agreement shall first be addressed by the parties through informal dispute resolution procedures conducted in good faith. If the parties do not resolve the dispute within thirty days of the date of the first dispute resolution meeting, the parties agree to mediate the dispute in a mutually agreed-upon place with a mutually agreed-upon mediator, the costs of which shall be borne equally by the parties. In the event the dispute is not resolved through mediation, the dispute shall be settled by binding arbitration before a single arbitrator in Austin, Texas in accordance of the rules of the American Arbitration Association, and the parties agree that judgment upon the award rendered by the arbitrator shall be entered in a court of competent jurisdiction sitting in Austin, TX.
5.3 Resale Restrictions. Customer expressly recognizes and agrees to resell Merchandise only through (1) websites (a) that are wholly owned by Customer or its subsidiaries and (b) list the Merchandise at prices in excess of Seller’s minimum product prices online; and (2) physical, “brick-and-mortar” retail outlets owned or leased by Customer (i.e. that are not online or otherwise “virtual”).
5.4. Permission to Use the Marks for Resale. Subject to the other terms and conditions of this Agreement, Seller grants to Customer the limited ability to use and sell the Merchandise to third parties using Seller’s Marks. Nothing in this Agreement shall be deemed to grant to Customer any ownership in, license to, or other rights in the Mark, in any intellectual property (including, but not limited to, any design or formula for any Product), or any other property of Seller.
5.5 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. Any Party delivering an electronic signature agrees that such electronic signature is the legally binding equivalent to such Party’s handwritten signature and has the same validity and meaning as such Party’s handwritten signature. Such Party further agrees that such Party will not, at any time in the future, repudiate the meaning of such electronic signature or claim that such electronic signature is not legally binding.