Entire Agreement. The following Terms and Conditions of Sale (“Terms”) becomes the complete agreement between and exclusively governs the sale of products (“Products”) by Green Toys, Inc. (“Green Toys”) to you (“Buyer”). Any offer in a quotation provided by Green Toys is conditioned on Buyer’s acceptance of these Terms and any acknowledgment provided by Green Toys of Buyer’s purchase order is conditioned on Buyer’s assent to these Terms in lieu of those on Buyer’s purchase order. These Terms shall take precedence over any of Buyer’s additional or different terms and conditions, to which notice of objection is hereby given. These Terms can be accepted through written acceptance or acceptance of or payment for the Products. No modification, alternation or amendment shall be effective unless in writing and signed by authorized representatives of both parties.
Price and Pricing Policy
Unless otherwise agreed to by the parties in writing, the prices to be paid by Buyer for the Products shall be those prices set forth on Green Toys’ price list in effect at the time of the order acknowledgement. Green Toys’ price list is available upon request. If prices are based upon Buyer’s purchase of specified quantities or by specified delivery dates for Products and Buyer does not purchase Products in such quantities or by such delivery dates, Green Toys shall determine and Buyer shall pay to Green Toys an appropriate per unit price adjustment. All prices are stated in U.S. Dollars.
Applicable taxes and other charges such as duties, customs, tariffs, and imposed or government-imposed surcharges, are not included in the price of the Product and will be stated separately on the invoice.
Green Toys retains the right to refuse to sell or discontinue sales of any product to any customer for any reason, including violation of Green Toys’ then-current Minimum Advertised Price Policy (“Pricing Policy”). If Green Toys determines that any Product is being sold by Buyer in violation of the Pricing Policy, Green Toys will cease shipment of the Product to Buyer. Green Toys will determine independently whether the Pricing Policy has been violated, and will notify Buyer of the cessation of future shipments of the Product.
Invoicing and Payments
Unless a pre-payment requirement has been agreed to by the parties, in which case Buyer shall pay the pre-payment amount, Buyer shall pay all invoices per the payment terms are stated on the invoice. All payments shall be made in U.S. dollars and are non-refundable. Green Toys reserves the right to terminate or modify terms of credit payments (and decline to make delivery of the applicable Product) when, in Green Toys’ sole and absolute discretion, Green Toys believes that payment may be at risk. Interest shall accrue daily on sums not paid when due at the lesser of a monthly rate of 1.5% or the highestrate permissible by law on the unpaid balance.
Buyer hereby grants a security interest in each Product furnished hereunder and the proceeds therefrom including accounts receivable, to secure full payment of the purchase price to Green Toys. Buyer agrees to execute any financing statements or other documents Green Toys requests to protect its security interest.
Buyer warrants to Green Toys that it is financially solvent on the date on which it places an order and expects to be solvent on the date of receipt of shipment. If bankruptcy or insolvency proceedings are instituted by or against Buyer, or if Buyer makes an assignment for the benefit of creditors, Buyer will be deemed in default of these Terms and Green Toys will have the right to terminate its obligations (including fulfillment of any orders) by written notice to Buyer; provided that such termination shall not affect Buyer’s obligations to pay any outstanding amounts hereunder.
Delivery and Shipment
Unless otherwise specified herein, all shipments shall be EXW (Incoterms 2000) Green Toys’ point of shipment. Title to the Products and risk of loss to the Products shall pass from Green Toys to Buyer, and the Products shall be deemed accepted as soon as the Products are made available to the common carrier at Green Toys’ point of shipment, the carrier acting as Buyer’s agent. Buyer shall pay all transportation and insurance charges. Buyer may specify a carrier upon Green Toys’ consent (which consent will not unreasonably be withheld). In the absence of specific instructions by Buyer, the carrier will be selected by Green Toys.
Green Toys will use commercially reasonable efforts to meet the delivery dates provided by Green Toys to Buyer (“Delivery Date”). Notwithstanding the foregoing, such delivery dates are non-binding estimates only and Buyer shall have no claim against Green Toys for any delays that may occur despite Green Toys’ application of its commercially reasonable efforts. Green Toys reserves the right to make deliveries in installments which shall not relieve Buyer of its obligation to accept and pay for remaining deliveries. Green Toys reserves the right to make shipments at any time up to five (5) days prior to the requested delivery date and Buyer shall not reject tendered Products for the sole reason of such early delivery.
Buyer agrees to examine, or cause to be examined, all Products shipped by Green Toys promptly upon receipt thereof, and to immediately file, or cause to be filed, a claim with the carrier upon delivery for any damage to or shortage in the Products, and to notify Green Toys within ten (10) days after receipt of the Products of any such claim pertaining thereto. All such claims shall be deemed waived unless presented to Green Toys in writing or by electronic transmission within ten (10) days after such receipt.
Changes/Cancellations. Buyer may cancel, or delay on a one-time basis, the order for any standard Product by providing Green Toys written notice to such effect, provided that Buyer provides such written notice no later than thirty (30) days prior to the scheduled Delivery Date, and, in the case of a delay, the delayed delivery date is no later than sixty (60) days after the scheduled Delivery Date. The price of any such rescheduled Product shall be the price in effect as of the date of the original purchase order. Buyer may cancel the order for any custom designed Product by providing Green Toys written notice to such effect, provided that Buyer provides such written notice no later than five (5) days after Buyer’s purchase order date. All orders are otherwise deemed noncancelable and non-refundable unless explicitly agreed to by Green Toys. In such case cancellation terms shall be mutually agreed to in writing by Green Toys and Buyer.
Force Majeure. Neither party shall be responsible for its failure to perform (except the payment of money owed) due to causes beyond its reasonable control such as acts of God, fire, theft, war, riot, embargoes or acts of civil or military authorities.
Ownership. Green Toys shall retain all right, title and ownership of all intellectual property rights associated with the Product. Buyer agrees that it will not remove, obscure, or alter Green Toys’ copyright, trademarks, patent numbers, and other proprietary notices and marks included with the Product. Buyer agrees that Green Toys’ price list is Green Toys confidential information. Buyer will not disclose and will not use any of Green Toys’ confidential or proprietary information for any purpose other than performance of this Agreement. Buyer will not use any Green Toys trademark or trade name, including GREEN TOYS as part of any other trademark or in any domain names (“”IP”). If Buyer does register any IP that include any Green Toys’ trademark, including GREEN TOYS, Buyer will immediately assign and/or transfer said IP to Green Toys. Buyer is responsible for all costs, including attorney's fees, necessary to enforce this provision.
Green Toys warrants to Buyer that each Product will be free from defects in materials and workmanship and each Product will substantially conform with Green Toys’ published specifications for such Product in all material respects for a period of 90-days after shipment (the “Warranty Period”). This limited warranty does not cover the results of theft, accident, normal wear and tear, abuse, neglect, vandalism, acts of God, use contrary to specifications or instructions, or repair or modification by anyone other than Green Toys. The warranty is void if the Product is repaired or modified by anyone other than Green Toys.
If a Product does not conform to the foregoing warranties, Buyer may, at its own risk and expense, return the allegedly defective Product (in the same packaging conditions in which it was delivered) directly to Green Toys during the Warranty Period, provided Buyer first notifies Green Toys in writing of the alleged defect and requests a return material authorization (“RMA”) number. Within five (5) days after its receipt of the RMA number, Buyer may ship to Green Toys, and shall include a notation of the RMA number, sufficient information to identify the original purchase order, and a brief statement explaining the alleged defect. Any Product returned to Green Toys without an authorized RMA number may be returned to Buyer, freight collect. Upon receipt of a Product, Green Toys, at its option and as Buyer’s sole and exclusive remedy for breach of such warranty, will repair or replace the Product and ship the repaired or replaced Product to Buyer at Green Toys’ expense and risk, or refund the purchase price for such Product. Any repair or replacement will not extend the Warranty Period. If Green Toys determines that any returned Product fully conforms to the foregoing warranties, Green Toys will return the Product to Buyer at Buyer’s expense and risk, along with a written statement setting forth the basis for Green Toys’ conclusion that the returned Product was not defective, and Buyer agrees to pay Green Toys’ reasonable costs of handling and testing. The right to return Products is extended only to Buyer, and Green Toys will not accept returns directly from Buyer’s customers or users of Buyers’ products.
EXCEPT FOR THE LIMITED EXPRESS WARRANTIES ABOVE, GREEN TOYS SPECIFICALLY DISCLAIMS ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF CONDUCT OR USAGE OF TRADE. SECTION 7(b) SETS FORTH BUYER’S EXCLUSIVE REMEDY, AND GREEN TOYS’ EXCLUSIVE LIABILITY, FOR ANY BREACH OF WARRANTY OR OTHER DUTY RELATED TO THE QUALITY OF PERFORMANCE OF THE PRODUCT.
LIMITATIONS ON LIABILITY. IN NO EVENT WILL GREEN TOYS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THESE TERMS OR THE PRODUCTS. GREEN TOYS TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS AND THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO GREEN TOYS BY BUYER UNDER THESE TERMS IN THE PREVIOUS 12 MONTHS.
Assignment. Buyer shall not delegate any duties nor assign any rights under these Terms without the prior written consent of Green Toys, and any such attempted delegation or assignment shall be void without Green Toys’ consent. Green Toys may assign these Terms without the prior written consent of Buyer.
Governmental Compliance. Buyer will comply with all federal, state, and local laws and regulations applicable to the performance of its obligations hereunder, including all export laws.
Applicable Law. These Terms and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different state. The parties agree that the
United Nations Convention on Contracts for the International Sale of Goods and any jurisdiction’s adoption of the Uniform Computer Information Transactions Act (or any similar law) will not apply to these Terms. Any action or proceeding arising from or relating to these Terms may be brought in a federal court in the Northern District of California or in state court in San Francisco County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
Injunctive Relief. Notwithstanding Section 9(c) above, Buyer acknowledges and agrees that actual or threatened breach of Green Toys’ intellectual property rights or confidential information rights may cause Green Toys irreparable damage for which the award of monetary damages would be inadequate. Consequently, Green Toys is not required to arbitrate and may seek to enjoin Buyer from all such actual or threatened breaches, in addition to any other relief to which Buyer may be entitled to receive at law or in equity.
Notices. All notices, consents and approvals under these Terms must be delivered in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the quotation, and will be effective upon receipt or
when delivery is refused. Either party may change its address by giving notice of the new address to the other party.
Interpretation. Failure by Buyer or Green Toys to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights. In the event that any provision contained in these Terms is determined to be invalid or unenforceable, in whole or in part, such provision will be enforced to the maximum extent permissible and the remaining provisions will remain in full force and effect. The headings of sections of these Terms are for convenience and are not to be used in interpreting these Terms. As used in these Terms, the word “including” means “including but not limited to.”
Entire Agreement. The Terms set forth herein represent the entire agreement between Green Toys and Buyer with respect to the subject matter hereof and Buyer agrees that all prior quotations, purchase orders, invoices, negotiations, understandings, representations and/or agreements of the parties relating to the subject matter hereof, whether oral or written, are merged herein and superseded in their entirety.