1. Each order placed by you ("customer”) and accepted by LEBATEX, INC. (“LebaTex”) is a sale subject to these Terms and Conditions and indicates your agreement to these terms and conditions.
2. Orders. All orders are subject to acceptance by LEBATEX, availability of product and prior sale of product to other Customers. Such acceptance is conditioned upon Customer’s acceptance of these terms and conditions. Upon acceptance by LEBATEX, each order will constitute a binding agreement for LEBATEX to sell and ship, and for Customer to purchase and pay for, the Products specified, under the terms and conditions of the order. LEBATEX will confirm acceptance of the Customer’s order either by written acknowledgement of such order or by shipment of the Products. If such written acknowledgement is incorrect in any respect, Customer will notify LEBATEX by telephone, e-mail or telefax, within one (1) business day of receipt thereof.
3. Terms. All LEBATEX product is sold F.O.B. shipping point. Risk of loss with respect to any products shall pass to the Customer at the said F.O.B point.
4. Sales Tax. Customer represents and warrants that, Customer has and will maintain a valid sales tax permit for each taxing jurisdiction in which it sells or offers for sale the Products, (b) Customer will promptly remit to the appropriate taxing entity all sales taxes imposed on the sale of the Products, and (c) Customer will indemnify and defend LEBATEX and hold LEBATEX harmless from, all claims and liabilities for such sales taxes.
5. All payments shall be made in U.S dollars. Customer shall be responsible for all duties, freight, taxes, shipping and handling. Payment terms are cash before delivery unless otherwise specified on the purchase order. Any sums not paid are subject to a 5% late fee and a service and handling charge of 2% per month or the maximum rate allowable by law, whichever is lower. Customer will pay any costs, fees and expenses (including attorneys’ fees) which LEBATEX may incur in any manner of collection of any sums past due.
6. All orders for Custom Fabrics will require a 50% deposit. Custom orders are non-cancelable and non-refundable. Notwithstanding the foregoing, in the event of a cancellation by a Customer, whether a Custom Fabric or otherwise, Customer will be responsible, in addition to LEBATEX’S other rights and remedies, for a 35% cancellation and restocking fee plus freight and handling for returns. All orders are subject to industry standard overages/shortages of up to 10%. Customer will only be billed for product shipped.
7. Customer shall seek LEBATEX’S written consent before using any of LEBATEX’S designs, copyrights or Trademarks1 sales and marketing. In no event shall Customer claim ownership in any LEBATEX design, copyright, Trademarks or intellectual property of any kind.
8. Customer shall seek LEBATEX’S written consent before entering into any agency, sub- distribution or similar agreements with third parties for the sale and distribution of any products sold hereunder.
9. Customer shall comply with all applicable rules and regulations necessary for the sale of any LEBATEX products and shall be fully responsible to ensure that the products are fit for sale, suitable for the end-user and the intended end-use, or fit for sale by the Customer in its locale, territory or distribution channel. LEBATEX makes no representations or warranties.
10. All information disclosed by LEBATEX to Customer including, without limitation, any information the Customer may observe, LEBATEX’S contacts, business, designs, lines and any intended use or sale of its designs and fabrics shall be deemed to be confidential information (“Confidential Information”). Except as required for the customer’s performance under this Agreement, the Customer shall not use or disclose to any third party any Confidential Information. The Customer shall take any appropriate security precautions requested by LEBATEX. Customer further promises and agrees not to, directly or indirectly, in any way and by any means, solicit any company, mill or vendor discussed between LEBATEX and Customer, or that is included in any way within the subject manner of their business relationship, which Customer was not, prior to this Agreement, previously conducting business.
11. Customer agrees that compliance with these terms is necessary to protect the business and goodwill of LEBATEX. Customer agrees that in the event of a breach, LEBATEX shall be entitle in injunctive relief, and to recovery of all reasonable sums and costs, including attorneys’ fees, incurred by LEBATEX to enforce the provisions of the purchase order or theses terms and conditions.
12. LEBATEX reserves the right to subcontract all its duties and obligations. Customer may not assign any purchase order or contract for sale of Products without LEBATEX’S written consent.
13. Loss or Damage in Transit. LEBATEX will not be responsible for product lost or damaged in transit, or shortages and condition. Customer will be responsible for checking its shipment upon delivery for any shortages and condition. Any shortages or evidence of damage to LEBATEX product must be noted on carrier’s delivery receipt and reported directly to the carrier’s local office.
14. Limitation of Liability. LEBATEX’S damages shall be limited to the actual cost of material or product only. Further, LEBATEX will not be liable for replacements, lost profits, consequential damages, loss of profit, expenses, overhead, interruption of business, or any other special or incidental damages suffered by Customer
15. Any quality claims on the Fabric must be made in writing within 10 days of receipt of product. In any event, no claim or allowance will be granted after the product has been cut, in the event Customer fails in any way to comply fully with LEBATEX’S Care and Maintenance Instructions or other LEBATEX instructions, or in the event Customer uses product for purposes for which it is not specifically intended or designed. Slight variations in color or repeat may occur, which shall not give rise to a claim by Customer. LEBATEX is not responsible for changes or damages caused to product that have been further processed by Customer or others. It is the Customer’s responsibility to select appropriate product for a particular end use. Certain fabrics, prints and dyes (such as those used on denim jeans) may migrate to lighter colors of vinyl and polyurethane products. This phenomenon is increased by humidity and temperature and is irreversible. LEBATEX will not assume responsibility for dye transfer caused by external conditions or contaminants.
16. Delivery Window. Unless LEBATEX otherwise agrees in writing, Customer will accept any delivery of Products within two weeks before or after the agreed upon delivery date.
17. Force Majeure. If delivery dates are specified for Product, that date will be extended to the extent that delivery is delayed by reason of employment strike, carrier strike, natural disaster, or any event beyond LEBATEX’S control. If, as a result of such a delay, the product ordered is unavailable, LEBATEX may substitute comparable product after receiving Customer’s approval.
18. Severability. The invalidity or unenforceability of any provisions for these terms and conditions will not affect any other provision of these terms and conditions, and the remaining provisions shall continue with the same force and effect as if such invalid or unenforceable provision had not been inserted herein.
19. Amendment. No modification of these terms and conditions shall be binding upon the Customer unless it is in writing and signed by LEBATEX.
20. Governing Law; Submission to Jurisdiction and Dispute Resolution. These terms and conditions shall be governed by and constructed in accordance with the law of the State of New York. Any dispute, controversy, or claim, in whole or in part, arising out of or relating to this Agreement, including any claims that this Agreement, or any part thereof, is invalid, illegal or otherwise voidable or void, will be settled by arbitration conducted in White Plains, New York, by one arbitrator in accordance with the Commercial Rules of Arbitration of the America Arbitration Association (“AAA”), and judgment upon any award rendered in such arbitration may be entered in any court having jurisdiction thereof.
21. Entire Agreement. All oral or written statements, representations, and agreements of the parties superseded by this Agreement, which alone fully and completely expresses their agreement. This contract has been entered into after full investigation.
1“Trademarks” shall mean the trademarks, trade names, symbols, slogans, emblems, logos or other designs used or which will be used in connection with the Products.