Top Shelf Holdings, LLC
Terms and Conditions of
Sale
General
 All buyers must meet or agree to the terms and conditions set forth in the Top Shelf Holdings, LLC (Top Shelf¯) Reseller & Policy and the following Terms and Conditions of Sale in order to purchase products from Top Shelf.
The following Terms and Conditions of Sale ("Terms and Conditions") shall apply to and be deemed a part of the sale of goods ("Goods") by Top Shelf, (the "Company") to any person or entity (collectively, the "Buyer"). No addition or modification to these Terms and Conditions shall be valid and enforceable unless specifically agreed to in writing by an officer of the Company. No terms or conditions appearing in Buyer's order form or any other document furnished by or on behalf of Buyer (whether before or after the date of Buyer's order) that are in variance with, additional to, or in conflict with these Terms and Conditions shall be binding upon the Company, and any such terms or conditions in variance with, additional to, or in conflict with these Terms and Conditions shall be deemed rejected by Company and waived by Buyer. Company's agreement to sell Goods to Buyer is expressly conditioned on Buyer's assent to these Terms and Conditions.
Company reserves the right to revise its Terms and Conditions at any time. Buyer is advised to keep up to date with the contents of Company's current Terms and Conditions prior to any purchase of Goods.
Compliance With Laws
Buyer agrees to comply with all laws and regulations applicable to the purchase, transport, use, storage, sale, lease and/or disposal of the Goods, including without limitation, to the extent applicable, the U.S. Export Administration Act and all regulations thereunder.
Orders
All orders shall be subject to acceptance by Company. Company reserves the right to cancel some or all of its entire sale of Goods to Buyer at any time prior to shipment. New Buyers may be requested to complete and submit a credit application, and then be approved by Company prior to placing orders. Buyer's orders shall be subject to these Terms and Conditions, whether or not the order so states. Orders may be subject to Company's minimum order requirements. Goods must be ordered in multiples of case packs, where applicable. All sales are subject to availability of Goods. Orders may not be modified or changed by Buyer unless approved in writing by Company.
Price
and Payment
The price and payment terms for the Goods and all trade pricing and discounts (if any) granted to Buyer are listed on the current Top Shelf Sales & Reseller Policy and/or price sheets or Top Shelf web site. Unless otherwise stated, prices are, and payment shall be, in U.S. Dollars. All of the Company's prices, discounts and credit policies are subject to change by Company without notice to Buyer. Unless otherwise approved in writing by an officer of Top Shelf, 100% of invoice amount shall be due 30 days after delivery. Notwithstanding the foregoing, the Company reserves the right to require Buyer to pay by letter of credit and/or provide such payment security as may be acceptable to the Company in its sole discretion. Invoices which have not been paid when due shall bear interest until paid in full at the lesser of (a) eighteen percent (18%) per annum or (b) the highest rate of interest permitted by applicable law. Buyer shall not set off amounts due to Company against claims against Company.
Taxes
and Fees
Buyer shall pay all taxes, fees and costs including, but not limited to any manufacturer's tax, retailer's occupation tax, use tax, sales tax, excise tax, value added tax, duty, customs agent or broker's fees, inspection or testing fee, freight costs, insurance, consular fees or any other tax, fee or charge of any nature whatsoever, including interest, imposed on, in connection with or measured by any transaction between Company and Buyer, in addition to the prices quoted or invoiced.
Company's Rights
Notwithstanding the foregoing, terms of payment on all orders are subject to the prior written approval of Company's credit department. If Buyer does not pay Company any amount due for the current order or any other prior order when such amount is due, or if Buyer defaults in the performance of any agreement with Company, Company may, without liability to Buyer and without prejudice to Company's other lawful remedies (i) terminate Company's obligations for the current order; (ii) declare immediately due and payable all Buyer's obligations to Company, including those for any prior orders; (iii) change credit terms with respect to any further work or orders (including but not limited to placement of Buyer on pre-payment or C.O.D. status); (iv) suspend or discontinue any further work or orders; and/or (v) repossess the Goods. Buyer agrees to reimburse Company for all costs and fees including, but not limited to attorneys' fees and repossession fees, incurred by Company in collecting any sums owed by Buyer to Company.
Credit
Standing
Company's obligation to deliver Goods to Buyer for accepted orders is conditioned upon maintenance by Buyer of credit standing at least as high as when Buyer's order was accepted, and upon Buyer's prompt payment when due of any sum owing by Buyer to the Company for any order or under any agreement between them. If, in Company's opinion, the prospect of receiving full payment for Goods ordered is impaired, Company may halt shipment, but Buyer shall remain liable to pay for any such Goods shipped.
Delivery and Freight Terms
All dates quoted for shipment of the Goods are estimates only and are not guaranteed. Company may make partial deliveries of the Goods. Company will endeavor to meet the quoted shipment dates, but shall have no liability for any delay in shipment or delivery, and shall be held harmless from any damage or loss incurred by Buyer due to such delay in shipment or delivery. Delivery dates given by Company are based on prompt receipt of all necessary information regarding the order. Failure by Company to meet any delivery date does not constitute a cause for cancellation and/or for damages of any kind. Time for delivery shall not be of the essence. Company shall deliver the Goods F.O.B. any of the Company's warehouse facilities as designated by Company (collectively the "Facility"). All risk of loss, damage or delay, and title to Goods shall pass from Company to Buyer upon Company's delivery of the Goods from the Facility. Buyer shall be responsible for any expedited shipping costs. IN NO EVENT SHALL COMPANY BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOST PROFITS OR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES DUE TO ANY PROBLEMS OR DELAYS IN SHIPMENT OR DELIVERY.
Inspection, Rejection and Returns
Buyer agrees to fully inspect all Goods at the time of delivery. In the event that such inspection reveals any damage in the Goods, Buyer shall have the right to reject such Goods and, in such event, shall notify the Company and the carrier immediately of any such damage. If Buyer fails to notify the carrier and the Company in writing of any such damage within ten days of delivery, Buyer shall be deemed to have accepted the Goods delivered. Such acceptance shall constitute an irrevocable acceptance of the Goods by Buyer and a waiver of any and all claims Buyer may otherwise have had against the Company with respect to such Goods. In addition, the Company must be advised of all shortages, in writing, within ten days of receipt of Goods. The Company shall not accept Goods for return after such Goods are accepted by Buyer unless Company consents in writing. Company may withhold such consent for any reason in its sole discretion.
Cancellations, Changes and Returns
All undelivered Goods may be cancelled by Buyer only upon written approval of an authorized representative of Company. In the event of any cancellation of an order by Buyer, Buyer shall pay to Company its reasonable costs and expenses, plus Company's usual rate of profit for similar work. Company reserves the right to change the price, terms of payment and delivery dates for any Goods affected by any alterations or modification to which it consents. Goods may not be returned prior to the Company's written consent and issuance of a return authorization number. Authorized returns are subject to a 20% restocking fee, plus any import or export costs and costs associated with transportation, packaging and insurance. Returned Goods must be of current manufacture, unused, in resalable condition, and securely packed to reach Company without damage.
The
Company's Limited Warranty is described below, and the Company offers no other
warranty.
Our
Limited Warranty and Warranty Period
When we use the terms "we," "us" and "our," we are referring to the Company, and when we use the terms "you" and "your" we mean the original end-user customer. Our products are guaranteed to be free from defects in material and workmanship under normal and intended use for a period of 90 days from the date of your purchase.
Repair/Replacement/Credit
If our product fails to meet our limited warranty during the warranty period, we will, at our option, repair or replace the product free of charge, or provide you with a credit equal to the purchase price of the defective product.
What
Our Limited Warranty Does Not Cover
We offer this limited warranty only when the product is used by the original end-user customer. We offer no other warranty. Additionally, while our warranty is excellent, there are other limits to it. We offer NO WARRANTY in cases of damage in transit, inadequate care, abuse, abnormal use, misuse, accidents, normal wear and tear, damage due to environmental or natural elements, failure to follow product instructions, immersion in water (except for products specifically identified by us in writing as intended for water use), battery leakage or improper storage or maintenance of the products.
Disclaimer of Other Warranties
THE EXPRESS WARRANTIES IN THE PRECEDING SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. However, to the extent applicable law does not permit disclaimers of certain implied warranties, such warranties are limited to the warranty period identified above. Some states and countries do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.
Limitation on Damages
IN NO EVENT SHALL WE BE LIABLE FOR INCIDENTAL, COMPENSATORY, PUNITIVE, CONSEQUENTIAL, INDIRECT, SPECIAL OR OTHER DAMAGES. OUR AGGREGATE LIABILITY WITH RESPECT TO DEFECTIVE PRODUCTS IS LIMITED TO THE MONIES PAID TO US FOR THE DEFECTIVE GOOD. Some states and countries do not allow the exclusion or limitation of incidental, consequential or other damages, so the above limitation or exclusion may not apply to you.
State
Variations
This warranty gives you specific legal rights, and you may also have other rights which vary based on state, province or country.
Contact Us
If you have a warranty claim or request, any customer care questions, please contact via our website www.topshelfholdings.com or call us at 1-877-853-6644.
No
Waiver
The failure of Company at any time to require performance by Buyer of any provision of these Terms and Conditions shall in no way constitute a waiver of that provision or affect the full right of Company to require such performance by Buyer at any time after such failure, nor shall any waiver by Company of a breach by Buyer of any provision of these Terms and Conditions constitute a waiver of any succeeding breach by Buyer of the same or any other such provision.
Assignment
Neither party may assign any of the rights or duties under any sales agreement or these Terms and Conditions without the prior written consent of the other party provided, however, that Company may assign its rights or duties under any sales agreement or these Terms and Conditions in whole or in part to any of its affiliates and/or perform through subcontractors. Subject to the foregoing, these Terms and Conditions shall inure to the benefit of, and be binding upon, the parties' successors and assigns.
Governing Law; Consent to Jurisdiction; Time to Commence
Action
These Terms and Conditions, and any agreement for the sale of Goods, shall be governed by and construed, governed and enforced in accordance with the substantive laws of the Commonwealth of Virginia without regard to conflicts of law principles. Sales of Goods made pursuant to these Terms and Conditions shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Any cause of action, claim, suit or demand by Buyer allegedly arising from or related to these Terms and Conditions or any sale of Goods by Company or the relationship of the parties shall be brought in a Court situated in the Commonwealth of Virginia. IN CONNECTION WITH ANY CAUSE OF ACTION, DEMAND, CLAIM, MATTER OR DISPUTE ARISING OUT OF OR RELATING TO THE SALE OF GOODS TO BUYER OR THE RELATIONSHIP BETWEEN BUYER AND COMPANY, COMPANY AND BUYER EACH (A) CONSENT TO THE JURISDICTION AND VENUE OF ANY COURT (FEDERAL OR STATE) SITUATED IN RICHMOND, VIRGINIA, AND WAIVE ANY OBJECTION TO IMPROPER VENUE OR FORUM NON CONVENIENS, AND (B) CONSENT TO SERVICE OF PROCESS BY CERTIFIED OR REGISTERED MAIL, POSTAGE PREPAID, ADDRESSED TO COMPANY OR BUYER AT ITS LAST KNOWN ADDRESS. Nothing contained in these Terms and Conditions shall limit or affect the right of Company to commence an action in any other jurisdiction, or to the right of Company and Buyer to serve legal process in any other manner permitted by law. ANY ACTION AGAINST COMPANY FOR ANY CLAIM RELATED TO OR ASSERTED UNDER THIS SALES AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION SHALL HAVE ACCRUED.
Severability
If any provision of these Terms and Conditions shall be prohibited by or be invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions.
Force
Majeure
Company shall not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, terrorism, third-party criminal acts, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding Company's available supply or any other cause beyond Company's control. In the event of any delay in delivery, failure to fill orders or other default or damage caused by any of the foregoing, Company may, at its option and without liability, prorate its deliveries, cancel all or any portion of any order and/or extend any date upon which performance is due hereunder.
Corrections and Changes
Company reserves the right to correct clerical or similar errors relating to price or any other term contained in any price list, quotation, Sales Policy, order, acknowledgment or any other sales document.
Quotations
Written quotations are void unless accepted within 45 days from date of issue. Other Company publications are maintained as sources of general information and are not quotations or offers to sell.
Indemnification and Recalls
Buyer hereby releases and agrees to indemnify, defend and hold harmless Company, its shareholders, directors, officers, agents, employees, affiliates, successors, assigns and third-party suppliers (collectively "Company's Indemnified Parties") from and against any and all direct and indirect claims, debts, actions, causes of action, liabilities, loss, suits, demands, fines, penalties, judgments, omissions, damages or expenses whatsoever, including, without limitation, attorneys' fees and costs (collectively "Damages") incurred by or against Company or any of Company's Indemnified Parties due to or arising out of, in connection with, resulting from or relating to (i) any misrepresentations or fraudulent omissions by Buyer or any of Buyer's shareholders, directors, officers, agents, employees, affiliates, successors, or assigns (collectively "Buyer's Parties"); (ii) any breach by Buyer of these Terms and Conditions or any warranties, representations, or covenants contained in any order or sales agreement; (iii) violation of any law by Buyer or Buyer's Parties; (iv) any intentional, reckless, negligent or other act (or failure to act) of Buyer or any of Buyer's Parties; (v) products, specifications, designs, approvals or instructions provided by Buyer or Buyer's Parties to Company; (vi) improper application, maintenance or use of the Goods by Buyer or Buyer's Parties; and (vii) any warranty provided by Buyer's Parties that is different from or additional to the limited warranty, if any, provided to the original end user customer by Company. Prior to settling any claim for Damages, Buyer will give Company an opportunity to participate in the defense and/or settlement of such claim. Buyer shall not settle any claim for Damages without Company's written consent.
In the event of any recall affecting the Goods, Company shall have the right to control the recall process and Buyer shall fully cooperate with Company in connection with the recall.
Trademarks
For so long as Buyer is in compliance with its obligations hereunder, Company grants Buyer the nonexclusive, nontransferable, nonsublicensable right to use Top Shelf trademarks (the "Trademarks"), including Top Shelf, Top Shelf Toys, Heritage Playsets and iggiBig, solely for the purpose of advertising, soliciting sales of, and selling Goods purchased by Buyer in accordance with these Terms and Conditions. The license granted above applies only to the use of those Trademarks associated with particular Goods purchased by Buyer from Top Shelf. The license does not grant Buyer the right to use a Trademark in connection with a product not purchased by Buyer from Top Shelf or with a product not associated with that particular Trademark. Buyer agrees that it shall not use or incorporate any Trademark as part of Buyer's business name (whether incorporated or not), trade name, domain name, or other trademark. Nothing in these Terms and Conditions shall be construed to give Buyer any right to use any of the Trademarks on or in connection with the sale of any goods or services other than Goods, and Buyer agrees not to make, or allow any of its agents or affiliates to make, any such use. Any use of Company's trademarks or other intellectual property shall be subject to the Company's prior written approval, and such restrictions as Company may, in its sole discretion, impose from time to time. Company may revoke this license at any time in its sole discretion. Buyer's use of the Trademarks, and any and all goodwill associated therewith, shall inure to Company's benefit. Buyer agrees that neither it nor its affiliates will seek to register any Trademark, or any other trademark, service mark, or trade dress owned by Company or its agents or affiliates, and if Buyer or any of its agents or affiliates does obtain such a registration, Buyer or its agents or affiliates shall immediately assign the same to Company. Buyer acknowledges and agrees that Company owns all right, title, and interest in and to the Trademarks. Buyer will not sell any of the Goods except in connection with such Trademarks, and will not repackage the Goods in any manner and resell such Goods utilizing a different trademark, unless expressly authorized in writing by Company. Buyer will not change, cover or obscure any Trademark in any manner, including without limitation to, writing on or altering the Trademarks, placing a sticker or tag over the Trademarks, or otherwise. Buyer and its affiliates agree to take all steps which Company may from time to time consider to be necessary to perfect or protect Company's rights in the Trademarks including, without limitation, executing all necessary assignments, declarations, and other documents requested by Company from time to time. Upon expiration or termination of the Buyer's right to use the Trademarks for any reason, Buyer and its affiliates shall take such steps and execute such documents as Company requests to cause Company to own all rights in the Trademarks and to terminate any rights Buyer may have to use the Trademarks. Buyer shall inform Company promptly of any potential or actual infringement of any of Company's Trademarks and shall provide all assistance and information required by Company, at Company's expense, in connection with any such infringement. |
