TERMS AND CONDITIONS OF SALE
‘Supplier' means Wild & Wolf, Inc., a Delaware corporation with offices at 432 Park Avenue South, 15th Floor, New York, New York 10016, USA;
‘Customer' means the person, firm or company placing a verbal or written Order accepted by the Supplier;
‘Delivery Date’ means the date and time specified in the Order and agreed by the Supplier;
‘Goods’ means the goods specified in the Order, including any consignment thereof which the Supplier is to supply in accordance with the Order;
‘Order’ means the order for the purchase and sale of Goods and placed by the Customer with the Supplier;
‘Price’ means the price contained in the Wild & Wolf, Inc. price list applicable at the date of the Order or as otherwise agreed in writing between the Supplier and the Customer;
‘Pro-forma’ means that full payment must be made in advance of delivery of the Goods;
‘Relevant Information’ means details of the Customer including the full name of the corporation, proprietor, addresses, telephone number, bank details and two trade references; and
‘Terms’ means these Terms and Conditions of Sale.
- ORDER SIZE AND DELIVERY CHARGES
2.1 For orders to most parts of mainland USA and Canada:
2.1.1 The minimum opening Order is $250. Thereafter, the minimum re-order is $150, unless Supplier has granted an exception. The Supplier reserves the right to increase the minimum Order and re-order amounts from time to time and as of 1st January 2019 the minimum opening Order will be $300 and the minimum re-order amount will be $250.
2.1.2 Unless an Order is clearly marked ‘NO BACK ORDER’, Supplier will ship all back Orders of $75 and over. Back Orders under $75 will be cancelled.
2.1.3 For each Customer Order and Back Order, the Supplier charges a flat shipping fee of 12% of order value for all orders in mainland USA. For shipping of orders to Alaska, Hawaii, and Canada the fee is 14% of order value. The shipping fees mentioned above include transport, and packing. Risk of loss for all Goods ordered by Customer shall pass to Customer on Supplier’s shipment to the shipping carrier. Unless otherwise agreed in writing, Supplier may, in its sole discretion, select the shipping method and the carrier. Details of the insurance cover for the Goods being shipped to the Customer can be supplied on request by the Supplier; the Customer is however also advised to check that this is adequate for its needs and take out additional cover if it feels this is necessary.
3.1 All prices are exclusive of local taxes, applicable from time to time or any other duties or charges. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to its purchase of the Goods, include any sales or use taxes (“Transaction Taxes”). Customer shall pay or reimburse Supplier for Transaction Taxes that Supplier is required to collect on transactions with Customer under this Agreement. The preceding obligation is without prejudice to any statutory obligation that either party may owe to a taxing authority. If Supplier is subject to audit by any taxing authority and Suppler did not collect Transaction Taxes from Customer, Customer shall provide Suppler with documentary evidence that Customer has paid the Transaction Taxes to the relevant taxing authority promptly on Supplier’s request.
3.2 The Supplier reserves the right, by giving notice to the Customer at any time before the Delivery Date, to increase the Price to reflect any increase in cost to the Supplier due to any factor beyond the Supplier’s control.
4.1 Unless otherwise agreed in writing, the first Order placed by the Customer shall be on a pre-payment basis. The Supplier accepts all major credit cards and encourages Customers to make payment via credit card for faster processing of their Orders. Thereafter the Supplier may, in its sole discretion set up account facilities on net 30 day terms for the Customer upon satisfactory receipt and approval of the Relevant Information. The Relevant Information will be used for the sole purpose of enabling the Supplier to assess the Customer’s status and credit worthiness. The Customer agrees to the use of the Relevant Information for this purpose.
4.2 Customer invoices must be paid within 30 days following the invoice date. If the Customer fails to pay the Supplier the full amount by the due date then without prejudice to any other remedy available to the Supplier, the Supplier reserves the right to implement:
4.2.1 Charging the Customer reasonable attorneys’ fees and collection costs incurred to collect such due but unpaid amounts.
4.2.2 Cancelling any contracts with the Customer or suspending any further deliveries to the Customer under this or any other contract until such due but unpaid amounts are paid.
4.2.3 Reverting to payment on a Pro-forma basis as to any other contract with the Customer at any time thereafter.
4.2.4 Taking any other action that Supplier deems necessary, in its sole discretion, to protect its interests.
- FORCE MAJEURE
The Supplier reserves the right to cancel an Order or suspend or delay delivery of it without being liable for any loss or damage if supply of the Goods is prevented or delayed by reason of war (whether declared or not), civil strife, riots, adverse weather conditions, fire, flood, labour disputes, accidents or any other causes or circumstances beyond its control.
- SHORTAGES, DISCREPANCIES, LOSS IN TRANSIT AND STANDARDS
6.1 Customer shall promptly inspect all Goods once delivered and shall notify Supplier of any claim by the Customer based on damage to the Goods caused in transit within 10 days of delivery and confirmed in writing within 15 days of delivery.
6.2 If the Customer does not notify the Supplier any claim in accordance with Section 6.1, (i) Customer hereby waives any rights to and shall not reject the affected Goods, (ii) the Supplier shall have no liability for any such damage, and (iii) the Customer shall be bound to pay the full amount as if the Goods had been delivered in accordance with the Order.
6.3.1 The Goods bought from Supplier’s US sales office have been specified and produced to US & Canadian standards; the Goods bought from Wild and Wolf’s UK sales office have been specified and produced to UK & EU standards; and the Goods bought from its Australian sales office have been specified and produced to Australian Standards. Supplier recommends that if Customers want to ship their Goods outside the sales territory, they contact the Supplier who can advise if the Goods are compliant for the destination territory.
6.3.2 The Supplier can supply evidence where requested that Goods of this type pass these standards: test reports supplied will be a maximum 12 months old for toys and 24 months old for all other products, based on the “Goods Ready Date”. If the Customer requires its particular Goods to be tested, or a more recent report, the Customer will have to pay an additional charge.
6.3.3 If the Customer requires the Goods to comply with any standards outside US, CAN, EU or AUS requirements, it must advise the Supplier in detail at the quotation stage. The Supplier will confirm whether or not the Goods can comply with such standards and will also notify the Customer of any necessary additional test costs in connection with this. If such additional test costs are agreed by the Customer, such costs will be notified to the Customer and must be paid for by the Customer by return.
6.3.4. It is the Customer’s responsibility to:
18.104.22.168 Pay for the agreed testing to their market standards (if different from US/CAN/EU/AUS. See also paragraph 6.3.3. above.)
22.214.171.124 If new labeling is needed to comply with other territories’ legislation, then the Customer is responsible for this and for the translation, as appropriate.
6.3.5 Any advance samples required for additional testing required by the Customer must be specified at time of quotation (how many needed etc.) – so the Supplier can advise of extra costs/whether possible.
6.3.6 The Customer must let the Supplier know at the time of quotation if release of Goods to freight forwarder is dependent on results of additional tests and also how long is required between receipt of samples and results of testing.
6.3.7 The Supplier will supply an English version of the General Conformity Certificate on request and translations are the Customer’s responsibility to arrange.
Customer shall not have the right to return any Goods unless Supplier has authorized Customer to return those Goods in writing. If Customer wishes to return any Goods, Customer may contact Supplier as the address above. Any unauthorized returns will not be accepted and returned at the Customer’s expense.
- RETENTION OF TITLE
8.1 All Goods remain the titled property of the Supplier until full payment has been received in accordance with these Terms.
8.2 Until such time as the title to the Goods passes to the Customer, the Customer shall (i) keep the Goods separate from the other personalty of Customer and any third party, and (ii) ensure the Goods are properly stored, protected and insured, and clearly identified as the Supplier’s property.
8.3 If the Goods are lost, destroyed or damaged before Supplier receives full payment in accordance with these Terms, then the Customer must hold the proceeds of insurance relating to the Supplier’s order pending payment and in a separate bank account.
8.4 Until such time as the title in the Goods passes to the Customer, the Supplier shall be entitled at any time to require the Customer to deliver up the Goods to the Supplier and, if the Customer fails to do so forthwith, to enter or appoint a third party on the Supplier’s behalf to enter upon any premises or the Customer or any third party where the Goods are stored and to repossess the Goods immediately.
- LIMITED WARRANTIES; LIABILITY
9.1 EXCEPT AS EXPRESSLY SET FORTH IN SUPPLIER’S QUOTATION, ORDER ACKNOWLEDGEMENT OR SEPARATE WRITTEN AND SIGNED AGREEMENT, SUPPLIER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED. AT SUPPLIER’S DISCRETION, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE CONFORMANCE OF ANY GOODS FURNISHED BY SUPPLIER UNDER THIS AGREEMENT SHALL BE LIMITED TO EITHER: (1) REPLACEMENT OF SUCH GOODS, OR (2) REPAYMENT OF OR CREDIT AGAINST THE PURCHASE PRICE OF SUCH GOODS UPON AUTHORIZED RETURN THEREOF. The employees and representatives of Supplier are not authorized to make any statement or representation as to the Goods inconsistent with this Agreement and no such statements made will be binding upon Supplier or be grounds for any claim.
9.2 TO THE FULLEST EXTENT PERMITTED BY LAW, SUPPLIER’S LIABILITY, WHETHER IN CONTRACT, IN TORT, STRICK LIABILITY, UNDER WARRANTY, IN NEGLIGENCE, UNDER, ARISING FROM, OR IN CONNECTION WITH THESE TERMS OR THE GOODS SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS. TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL SUPPLIER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, DEMURRAGE CHARGES, COSTS OF SHIPMENT, DOWNTIME, LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOST SALES, DAMAGE TO EQUIPMENT, OR CLAIMS OF CUSTOMER’S CUSTOMERS OR OTHER THIRD PARTIES FOR DAMAGES OR PENALTIES, WHETHER OR NOT CUSTOMER IS LEGALLY OBLIGATED TO PAY THEM. CUSTOMER’S SOLE REMEDY FOR BREACH OF THESE TERMS SHALL BE LIMITED TO EITHER: (1) THE OBLIGATION TO REPAIR OR REPLACE, AT SUPPLIER’S SOLE DISCRETION, ONLY THOSE PORTIONS OF THE GOODS PROVEN TO HAVE FAILED TO MEET IN MATERIAL RESPECTS THE SPECIFICATIONS ON SUPPLIER’S QUOTATION, ORDER ACKNOWLEDGEMENT, OR SEPARATE WRITTEN AND SIGNED AGREEMENT AT THE TIME OF SHIPMENT FROM SUPPLIER’S FACILITY, OR (2) REPAYMENT OF OR CREDIT AGAINST THE PURCHASE PRICE OF THE GOODS. SUPPLIER AND CUSTOMER EXPRESSLY AGREE TO THIS ALLOCATION OF RISK AND THE PRICE STATED FOR THE GOODS IS CONSIDERATION FOR THE LIMITATION ON SUPPLIER’S LIABILITY. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXCLUSIVE REMEDY DESCRIBED IN THIS SECTION FAILS ITS ESSENTIAL PURPOSE.
Supplier has a General Liability policy with AIG for $2m for each occurrence and in the aggregate.
- BANKRUPTCY OR DEFAULT
11.1 Without prejudice to any other remedy available to the Supplier, the Supplier shall be entitled to cancel any other contract with the Customer or suspend any further deliveries to the Customer without any liability to the Customer, and if any Goods have been delivered but not paid for, all sums owing from the Customer to the Supplier shall become immediately due and payable if;
11.2 The Customer makes any voluntary arrangement with its creditors or becomes bankrupt or becomes subject to an administration order or goes into liquidation); or
11.2.1 A Debtor (with or without lien) takes possession, or a receiver is appointed, for any of the property or assets of the Customer; or
11.2.2 The Customer ceases, or threatens to cease, to carry on business; or
11.2.3 The Supplier reasonably believes that any of the events mentioned above is about to occur in relation to the Customer.
- DATA PROTECTION
The Supplier may transfer information about the Customer to its bankers/ financiers for the purposes of providing services for the following reasons: obtaining credit insurance, making credit reference agency searches, credit reports, assessment and analysis (including credit scoring, product and statistical analysis), securitization or protecting the Supplier’s interests.
- DISPUTE RESOLUTION AND ARBITRATION
13.1 In the interest of resolving disputes between Customer and Supplier in the most expedient and cost effective manner, and except as described in Section 13.2, Customer and Supplier agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. CUSTOMER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THESE TERMS, CUSTOMER AND SUPPLIER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
13.2 Exceptions. Despite the provisions of Section 13.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
13.3 Arbitrator. Any arbitration between Customer and Supplier will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Supplier. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
13.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Supplier’s address for Notice is the address set forth above. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, Customer or Supplier may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by Customer or Supplier must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards Customer an amount higher than the last written settlement amount offered by Supplier in settlement of the dispute prior to the award, Supplier will pay Customer the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
13.5 Fees. If Customer commences arbitration in accordance with these Terms, Supplier will reimburse Customer for its payment of the filing fee, unless Customer’s claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, NY, but if the claim is for $10,000 or less, Customer may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of Customer’s billing address. If the arbitrator finds that either the substance of Customer’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Customer agrees to reimburse Supplier for all monies previously disbursed by it that are otherwise Customer’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
13.6 No Class Actions. CUSTOMER AND SUPPLIER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER’S OR SUPPLIER’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Supplier agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
13.7 Enforceability. If Section 13.6 is found to be unenforceable or if the entirety of this Section 13 is found to be unenforceable, then the entirety of this Section 13 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 14 will govern any action arising out of or related to these Terms.
- INTERPRETATION AND VALIDITY
The contract and the Terms shall be governed by and construed in accordance with the laws of the state of New York (without regard to its conflicts of law provisions), and the Customer and the Supplier hereby submits to the exclusive jurisdiction of the New York state and federal courts. In the alternative, the Supplier, in its sole discretion, may choose a court of competent jurisdiction to make such determinations.
[Updated 6 Dec 2018]
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