In exchange for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged these Wholesale Retailer Standard Business Terms and Conditions (the “Agreement”) is entered into between Retailer and LYX, LLC, a Florida limited liability company d/b/a DELYX LTD® (“DELYX®”) as a condition of receiving the products of DELYX®. Retailer hereby agrees as follows, as of the date Retailer electronically accepts this Agreement (the “Effective Date”) via electronic signature and submission of this form.
I. RETAILER’S OBLIGATIONS AND RESTRICTIONS
A. Retailer may only sell on the URL or store location that is submitted through Retailer’s wholesale application and approved by DELYX®.
B. Retailer shall not utilize national or global selling platforms, including but not limited to such platforms as, AMAZON.com, EBAY.com, ETSY, JET and Shoptique for the re-sale of DELYX®’s products. Failure to comply with this obligation will result in termination of this Agreement and Retailer’s wholesale status being revoked.
C. Retailer shall include the “DELYX®” name in the online product title or in the product description of Retailer’s retail website upon which DELYX®’s products are being re-sold by Retailer.
II. MINIMUM ORDER VALUE FOR FIRST TIME RETAILER ORDERS
The minimum order value of Retailer’s first order with DELYX® is one-thousand U.S. Dollars ($1,000.00) wholesale.
III. RETAILER ORDERING PROCESS
Retailer must be registered with DELYX® as a qualified retailer to purchase products wholesale, which may, in the sole discretion of DELYX®, require a credit check. All orders must be placed and/or confirmed via the Wholesale Order Form.
A. Products purchased from DELYX® shall only be sold at the manufacturer’s suggested retail price (“MSRP”). In the event Retailer chooses to place the products for re-sale at a discount, Retailer shall discount the products by no more than fifteen percent (15%) below MSRP. Permission for special sale events beyond the fifteen percent (15%) discount by Retailer must be requested in writing to DELYX®, at least fifteen (15) days in advance, and will typically be granted, per DELYX® ‘s sole discretion, on a semi-annual basis.
B. All prices are listed in U.S. Dollars.
C. Retailer is responsible for all shipping costs.
D. Prices are subject to change without notice.
E. Retailer is solely responsible for all sales tax and all other taxes associated with the re-selling of DELYX® products, except for taxes on DELYX®’s net income.
V. PRODUCT RETURNS
Return requests must be made within fifteen (15) days of delivery date via email to firstname.lastname@example.org quoting invoice number and detailed reasons for return. No returns are accepted without DELYX®’s prior approval and delivery instructions. Shipping and shipping costs will be the responsibility of the Retailer. For any goods returned for reasons other than damage or defect, there is a re-stocking charge of forty percent (40%) of the original price. Returns or exchanges must be postmarked within five (5) days of DELYX®’s return approval. All merchandise must be returned un-opened and in its original packaging. DELYX® will not accept returned products that have been marked or labeled, in any manner, by Retailer.
VI. DAMAGES AND DEFECTS
Retailer shall inspect all shipments immediately upon receipt thereof. Retailer shall contact DELYX® via email to email@example.com within three (3) days of receipt of damaged or defective products. Returned products will not be accepted if it is held by Retailer for more than fifteen (15) days after receipt thereof.
VII. PAYMENT TERMS
A. Payment by Credit Card. DELYX® accepts the following major credit cards: MasterCard, Visa, Discover and American Express, as well as other international payment options, upon DELYX® approval. Orders will not be scheduled to ship until Retailer remits payment, in full, to DELYX®.
B. Credit Line and Invoicing at DELYX®’s Sole Option.
i. Credit Line. At DELYX®’s sole and absolute discretion, DELYX® may, on a case-by-case basis extend a credit line to qualified and established Retailers, as determined exclusively by DELYX®. After Retailer has completed a minimum total transaction amount of ten thousand U.S. Dollars ($10,000.00) with DELYX®, Retailer may obtain a credit application by request via email to DELYX® at firstname.lastname@example.org. Terms and conditions will be disclosed upon approval.
ii. Invoicing. For all items in current stock, Retailer Invoice must be paid in full prior to shipping. Retailer pre-orders or out of stock items will be invoiced fifty percent (50%) of the total at time of submission. DELYX® will invoice Retailer the remaining fifty percent (50%) at time of shipping. Products will not be shipped to Retailer until payment has been received, in full. Retailer’s account will be on hold until all outstanding balances are paid in full. For payments made via check, Retailer shall send payment to: DELYX, LTD Attn: Wholesale Account, 301 W. Platt Street, Suite 661, Tampa, FL 33606. Retailer’s payment by check must be received, and must successfully clear, two (2) weeks prior to ship date to allow time for processing. DELYX® will charge Retailer for reimbursement of all bank fees and other costs and expenses incurred due to checks returned due to insufficient funds or other reasons.
A. U.S. Shipping. Shipping within the U.S. is not included in the cost of DELYX®’s products. On all orders, within the U.S., freight will be charged on each invoice at an estimated rate of sixteen percent (16%) (U.S. Shipping addresses only) per invoice subtotal. A minimum charge of twenty-five U.S. Dollars ($25.00) will apply. Shipping is FOB Shipping Point from DELYX®’s Florida warehouse.
B. International Shipping. All orders that will be shipped internationally from DELYX®’s Florida warehouse shall be shipped at Retailer’s sole cost and expense.
IX. DELIVERY TIMEFRAMES (Pre-Orders or Out of Stock Items)
Retailer shall allow at least thirty (30) days from the time of Retailer’s order for the manufacturing of items, plus ten (10) days for delivery. Larger orders may require more time for delivery.
X. COMPLIANCE AND WARRANTY
A. Compliance with Laws. The parties warrant that each party will comply, at its own expense, with all federal, state, and local statutes, regulations, rules, ordinances and orders of any governmental body or agency which apply to the party’s obligations under this Agreement.
B. Authority. Retailer warrants that: (i) the representative executing this Agreement is duly authorized and has legal capacity to do so; (ii) the execution and delivery of this Agreement and the performance of Retailer’s obligations hereunder have been duly authorized; and (iii) this Agreement is a valid and legal agreement binding on Retailer and enforceable in accordance with its terms.
C. Warranties. THE WARRANTIES STATED ABOVE ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY THE PARTIES. DELYX® DOES NOT REPRESENT THAT THE PRODUCTS MEET RETAILER’S REQUIREMENTS OR THAT THE PRODUCTS WILL BE DEFECT-FREE. DELYX® DISCLAIMS, AND RETAILER HEREBY EXPRESSLY WAIVES, ALL OTHER REPRESENTATIONS, CONDITIONS, OR WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE. RETAILER MAY NOT MAKE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, ON BEHALF OF DELYX®, IN CONNECTION WITH THE PRODUCTS WITHOUT DELYX®’S EXPRESS PRIOR WRITTEN CONSENT.
From time-to-time during the term of this Agreement, the parties (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by the Receiving Party or any of its representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its representatives before being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed under applicable federal, state, or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction. The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement.
A. Indemnification. Each party (the “Indemnifying Party”) hereby agrees to indemnify, defend, and hold the other party (the “Indemnified Party”) harmless from and against any direct or third-party claims, losses, costs, damages, liabilities, judgments, settlements or regulatory actions, including costs, fines, expenses and reasonable attorneys’ fees to the extent arising from or relating to a breach of any of the obligations of the Indemnifying Party which the Indemnifying Party is obligated to perform under this Agreement. DELYX®’s obligation to indemnify, defend, and hold Retailer harmless shall not apply to the extent the claim, damages, infringement, misappropriation or violation is caused by the willful misconduct, negligence or unlawful act or omission of Retailer.
B. Indemnification Procedure. Upon becoming aware of any matter which is subject to the provisions of the Section above ("Claim"), the Indemnified Party must give prompt written notice of such Claim to the Indemnifying Party, accompanied by copies of any written documentation regarding the Claim received by the Indemnified Party. The Indemnifying Party shall compromise or defend, at its own expense and with its own counsel, any such Claim. The Indemnified Party will have the right, at its option, to participate in the settlement or defense of any such Claim, with its own counsel and at its own expense; provided, however, that the Indemnifying Party will have the right to control such settlement or defense. The Indemnifying Party will not enter into any settlement that imposes any liability or obligation on the Indemnified Party without the Indemnified Party's prior written consent. The parties will cooperate in any such settlement or defense and give each other full access to all relevant information, at the Indemnifying Party's expense.
XIII. LIMITATION OF LIABILITY
IN NO EVENT SHALL DELYX® BE LIABLE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR TORT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING FOR LOSS OF PROFITS, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT, CONTRACT, OR OTHERWISE. EXCEPT FOR CLAIMS RELATED TO CONFIDENTIALITY OR RETAILER’S PAYMENT OBLIGATIONS, NEITHER PARTY MAY ASSERT ANY CLAIM AGAINST THE OTHER RELATED TO THIS AGREEMENT MORE THAN TWO (2) YEARS AFTER SUCH CLAIM ACCRUED. DELYX®’S AGGREGATE LIABILITY TO RETAILER AND ANY THIRD-PARTY FOR ANY AND ALL CLAIMS OR OBLIGATIONS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY RETAILER TO DELYX® IN THE SIX (6) MONTH PERIOD PRECEDING THE EARLIEST DATE THE CLAIM ACCRUED.
XIV. ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
The parties agree that all claims relating to this Agreement, including all disputes arising out of, or related to, any products or services purchased from DELYX®, will be resolved entirely through confidential, binding individual arbitration, rather than in court and not on a class, consolidated, representative or collective action basis. Retailer may also assert individual claims in small claims court if Retailer’s claims otherwise qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. Retailer further agrees that it will not be a member of any punitive or actual class in a class action brought by anyone else, nor will it seek to become a class representative. In addition, the parties agree that each may bring suit in court to enjoin infringement or another misuse of intellectual property rights. Arbitration shall be initiated by the serving of a written notice of intent to arbitrate (an “Arbitration Notice") by one party upon the other. Within ten (10) calendar days of either party serving such Arbitration Notice or receiving it, DELYX® and Retailer shall agree on the selection of an arbitrator who can administer arbitration under the rules of the American Arbitration Association (“AAA”), applying its Commercial Arbitration Rules, and is listed as an arbitrator approved by the AAA, and who can arbitrate in Hillsborough County, Florida. If the parties cannot agree on an arbitrator, the AAA shall be authorized to appoint an arbitrator who meets the geographical criteria and has the requisite experience required to arbitrate commercial disputes. There shall only be one (1) arbitrator rather than a panel of three (3) arbitrators, unless the parties mutually agree to a panel of three (3) arbitrators. Within five (5) calendar days of the selection or appointment of an arbitrator, the parties shall cooperate to schedule arbitration within ninety (90) calendar days and shall conduct themselves in accordance with the AAA’s rules for arbitrating commercial disputes. Arbitration shall occur in the City of Tampa, Hillsborough County, Florida, unless otherwise mutually agreed upon by the parties. All communications associated with arbitration, the proceedings and the decision of the arbitrator shall be confidential. The decision of the arbitrator(s) shall be binding and may not be appealed by either party; however, the arbitrator shall be required to produce a written opinion explaining the decision and associated award, if any.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT RETAILER OR DELYX® WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
XV. APPLICABLE LAW
The law applicable to the interpretation and construction of this Agreement, and in any arbitration relating to any transaction (including purchases made on DELYX®’s website), shall be the Federal Arbitration Act, applicable federal laws and the laws of the State of Florida, USA, without regard to principles of conflict of laws, but subject to the Federal Arbitration Act and other federal law relating to the arbitrability of claims.
XVI. ATTORNEY’S FEES
The prevailing party in any dispute or legal action regarding the subject matter of this Agreement shall be entitled to recover attorney’s fees and costs.
This Agreement is effective unless and until terminated by either party upon thirty (30) days prior written notice to the other party. The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this Agreement for all purposes.
XVIII. GENERAL PROVISIONS
A. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties and supersedes any prior or contemporaneous agreements, communications and proposals, whether oral or written, between the parties.
B. Amendment. No amendment, change, or modification shall be binding unless executed in writing by all of the parties.
C. Waiver. No waiver by any party of any provision of this Agreement shall be deemed a waiver of any other provision, whether or not similar, nor shall any waiver be construed as a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
D. Remedies. All rights and remedies of the parties, under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies.
E. Assignment. Neither this Agreement nor any duties or obligations under this Agreement may be assigned by Retailer without the prior written consent of DELYX®.
F. Severability. In the event that any provision of this Agreement is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from this Agreement, such determination shall not affect the validity and enforceability of any other remaining provisions.
G. Survival. All rights and obligations of the parties under this Agreement that, by their nature, do not terminate with the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement, including but not limited to Sections VII., X., XI., XII., XIII., XIV., XV. and XVIII.
H. Notice. Notices provided under this Agreement must be in writing and delivered by: (a) certified mail, return receipt requested; (b) email with delivery and read receipt requested; or (c) delivery by a reputable overnight carrier service. Notices to DELYX® must be delivered to 301 W. Platt Street, Suite 661, Tampa, FL 33606, email@example.com, or at such other addresses as may be later designated by notice, with copy to (which shall not constitute notice) Hunter Business Law, Attn: Sheryl Hunter, 119 S. Dakota Ave, Tampa, FL 33606, firstname.lastname@example.org. The address for notice to Retailer shall be Retailer’s address of record as set forth within Retailer’s wholesale application.
I. Force Majeure. DELYX® shall not be liable for any failure to perform or delay in performance of its obligations under this Agreement resulting from the elements, acts of God or any other cause beyond DELYX®’s reasonable control.
J. No Third-Party Beneficiaries. This Agreement is made for the sole benefit of the parties hereto and each of their respective successors and assigns and no other person or persons shall have any right of action hereon.
K. No Setoff. Retailer shall perform its obligations under this Agreement without setoff, deduction, recoupment, or withholding of any kind for amounts owed or payable by Retailer whether under this Agreement, applicable law, or otherwise and whether relating to DELYX®’s breach, bankruptcy or otherwise.
L. Headings and Construction. The Section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any ambiguities in the interpretation of this Agreement shall not be construed against the drafting party.
M. Successors. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties hereto and each of their respective heirs, legal and personal representatives, successors or permitted assigns. However, nothing in this paragraph shall be construed as consent to a prohibited assignment.
N. Execution. Signatures transmitted by facsimile, electronically via the “I ACCEPT” function within DELYX®’s website or via PDF or similar file delivery method shall have the same effect as an original signature.