SALES TERMS AND CONDITIONS – PRESPERSE CORPORATION
GENERAL TERMS. All sales by Presperse, Corporation (“Presperse”) are subject to these terms and conditions (the “Terms”). These Terms and Conditions are incorporated by reference into, and form an integral part of, all contracts or agreements between Customer and Presperse, together with the terms of sale (the “Terms of Sale”) in the invoices issued by Presperse for goods and services purchased by Customer from Presperse. Neither these Terms and Conditions nor any Terms of Sale can be altered absent the written agreement of Presperse in its sole discretion. Presperse rejects any additional or conflicting terms contained in any purchase order or other document or communication previously or hereafter provided by Customer to Presperse, and Presperse’s acceptance of any order shall not be construed as an acceptance of any such additional or conflicting terms unless expressly accepted in writing by Presperse in its sole discretion.
Any decisions with respect to the extension or continuation of credit availability shall be at the sole discretion of Presperse. Notwithstanding anything to the contrary herein or in the Application or any other document, Presperse may terminate credit availability at its sole discretion.
PRICES. Prices are subject to change without notice. Unless otherwise agreed in a signed writing of the parties, orders will be invoiced at Presperse’s published price at the time of shipment. If the price should be increased by Presperse before delivery of the goods to a carrier for shipment to Buyer, then Buyer shall be billed by Seller on the basis of such increased price.
ORDERS. All orders are subject to acceptance by Presperse. Simultaneously with placing an order, Buyer represents and warrants that it is solvent at the time the order is placed, and acknowledges that Presperse is relying primarily on that representation in shipping goods on credit terms, notwithstanding that Presperse may make other credit checks or require other assurance or security for payment of the purchase price. Orders placed by Customer may be cancelled by Customer only if agreed to by Presperse and upon payment of reasonable charges based on expenses incurred and commitments made by Presperse prior to Presperse’s receipt of notice of such cancellation.
PAYMENT TERMS. Terms are net 30 days from date of invoice, past due thereafter. Buyer shall make all payments hereunder in immediately available funds by check or wire transfer and in invoiced currency. Interest will accrue on the past due unpaid balance, at the higher of 1.5% per month or the highest rate permitted by law. Chargeback’s and other deductions from payments will not be allowed until credit memos are issued by Presperse. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Presperse, whether relating to Presperse’s breach, bankruptcy or otherwise.
SECURITY INTEREST: BUYER’S INSOLVENCY. Until payment is received in full by Presperse, Buyer hereby grants to Presperse a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the goods sold hereby, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New Jersey Uniform Commercial Code (“UCC”). In order to perfect the security interest, Buyer hereby grants to Presperse a power of attorney to execute and file financing statements in Buyer’s name. In addition, if Buyer becomes insolvent, makes an assignment for the benefit of creditor(s), files or suffers the filing or a petition in bankruptcy, then to the extent Presperse does not receive cash payment at the time of delivery, Presperse at its option may cancel this agreement and may refuse to ship or deliver goods to Buyer. If any of the conditions in the previous sentence exists, whether such fact is known or unknown to Presperse, title to any goods sold hereunder shall not be transferred to Buyer until full payment is made to Presperse. Presperse shall retain full power to dispose of such goods for its own account, and Buyer and its successors or legal representatives shall have no claim for such goods or the proceeds of such goods. Nothing in this Section 5 shall be deemed to limit or restrict the rights of Presperse as a seller under the UCC.
DAMAGED GOODS. Presperse is not responsible for damage in transit unless the incoterm is DAP/DDP/DDU. Upon receipt by Buyer, all goods must be inspected carefully. All other claims with respect to quality or quantity of the goods must be made in writing to Presperse within 10 days after Buyer receives the goods, or such claims will be barred, and the goods will be deemed unconditionally accepted by Buyer. If any claim is made, Presperse must be given an adequate opportunity to investigate the claim. Buyer’s failure to comply with the terms of this Section 6 and with all other terms set forth herein shall render null and void all claims of Buyer against Presperse.
DELIVERY. Unless o t h e r w i s e i n d i c a t e d herein or expressly agreed otherwise in writing, all shipments shall be made FCA/ExWorks (as defined in Incoterms 2020) from Presperse’s t h i r d p a r t y warehouse(s). Presperse is not responsible for failure or delay in shipping or delivering goods ordered if such failure is due to an act of God, war, labor difficulties, accident, or any other causes of any kind whatsoever which are beyond the control of Presperse. DELIVERY DATES ARE NOT GUARANTEED. Presperse has the right to extend shipment dates and to make partial deliveries: payment for each partial delivery shall be due pursuant to Section 4 above. The goods shall be deemed delivered when Presperse or Presperse’s 3rd party warehouse notifies Buyer or Buyer’s carrier by email or buyers portal that the goods are available for pickup, and from and after the date of such notification.
Warranties / Limit Thereof. EXCEPT TO THE EXTENT OTHERWISE AGREED IN WRITING BY PRESPERSE IN ITS SOLE DISCRETION, PRESPERSE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND GUARANTIES, EXPRESS OR IMPLIED, OR ARISING UNDER LAW OR EQUITY OR CUSTOM OF TRADE, INCLUDING, WITHOUT LIMITATION: WARRANTY OF MERCHANTABILITY, WARRANTY OF PERFORMANCE, AND WARRANTY THAT THE GOODS ARE FIT FOR ANY PARTICULAR PURPOSE. CUSTOMER HEREBY ACKNOWLEDGES THE FOREGOING DISCLAIMER.
THIRD PARTY CLAIMS. Buyer will indemnify, defend and hold Presperse harmless (including reasonable attorney fees and costs), from and against any claim by any third party for loss, injury or damage alleged or suffered by such third party as a result of the use or misuse of goods delivered and accepted by Buyer hereunder.
BUYER’S REMEDIES. Buyer shall not make any claim of any kind, whether in tort or contract, as to goods delivered or for non-delivery of goods, in an amount greater than the purchase price of the allegedly damaged or undelivered goods. The remedy hereby provided shall be the sole and exclusive remedy of Buyer; any right of Buyer to consequential or incidental damages is hereby excluded. Notwithstanding the foregoing, if Presperse is timely notified of non-conforming goods and Buyer returns such goods (at Buyer’s sole risk and cost), at the sole option of Presperse, Presperse may replace such non-conforming goods with conforming goods or credit Buyer’s account. IN NO EVENT SHALL PRESPERSE BE RESPONSIBLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
SELLER’S REMEDIES. If Buyer fails or refuses to perform its obligations hereunder, Presperse may exercise all of the rights and obtain all of the remedies of a seller under the UCC, including without limitation cancellation of this agreement and orders for future delivers, and may recover from Buyer all of its damages, including without limitation attorney fees and costs of collection (which shall be deemed liquidated at the rate of 35% of the total owed by Buyer to Presperse), and costs of transportation. All partial payments may be retained by Presperse.
NOTICES. All notices required or permitted under this document shall be in writing, sent by certified mail, return receipt requested or by a recognized overnight delivery service with proof of delivery, to Presperse at the address set forth on the reverse side hereof, and to Buyer at the address set forth on its order. All notices shall be deemed delivered when received or refused by the addressee.
JURISDICTION. The laws of the State of New Jersey shall apply to all actions brought under these terms of sale, and the courts of that State and the Federal District Court in New Jersey shall be the sole forum for resolution of disputes arising hereunder.
SURVIVAL. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of Buyer’s order.
Claims and RETURNS. Goods cannot be returned unless Presperse approves the return and provides an authorization (RMA), If approved by Presperse material must be returned within two (2) week from the date of Presperse’s authorization to return. A copy of the bill of lading shall be emailed to Presperse Corp. upon date of shipment. A 25% restock fee will be applied if Presperse agrees to take back material that is a non-quality issue. No deductions may be taken by Customer and no debit memoranda will be issued by Customer without the prior written approval of Presperse.
No Assignment. Customer shall not assign its rights or delegate its obligations in connection with these Terms and Conditions or any other agreement between Customer and Presperse, unless otherwise agreed to in writing by Presperse. Default / Adequate Assurance.
If Customer fails to pay or perform any obligation due to Presperse when due, Presperse, in its sole discretion, may declare all outstanding invoices issued to Customer to be immediately due and payable and Presperse may withhold further deliveries to Customer and/or cancel all agreements between Customer and Presperse.
If Customer fails to pay or perform any obligation due to Presperse when due, Company may charge Customer a finance or delinquency charge at the highest rate allowed by law (or, in the sole discretion of the Company,at the rate indicated on the invoice or any other written agreement between the Company and Customer).
All costs incurred by Presperse in enforcing any contract or agreement between Customer and Company, including but not limited to attorneys’ fees and costs of collection, will be added to Customer’s account as and when incurred and will be due and payable immediately.
If Presperse anticipates that Customer will not or cannot perform any of its obligations to Presperse, Customer shall, upon request by Presperse, provide adequate assurance, satisfactory to Presperse in its sole discretion, of the due and future performance by Customer, and Presperse, at its sole discretion, may suspend the performance of any of its obligations until such assurance is given by Customer and accepted by Presperse.
If (i) Customer fails to give such assurance to Presperse within seven business days or such other time as Presperse may specify, (ii) proceedings in bankruptcy or insolvency or similar proceedings are instituted by or against Customer, (iii) a trustee or receiver for Customer is appointed, or (iv) Customer goes into dissolution or liquidation or assigns a substantial part of its assets for the benefit of creditors, Presperse may treat any such event as Customer’s breach of any contracts or agreements between Presperse and Customer, and Presperse shall be entitled to all remedies stipulated in these Terms and Conditions, any Terms of Sale, any other applicable agreement between Customer and Presperse, and applicable law.
The exercise by Presperse of any remedy available under these Terms and Conditions, any Terms of Sale, or any other agreement between Customer and Presperse, at law, or in equity shall not constitute an election of remedies or a waiver of any other rights or remedies to which Presperse is or may be entitled, and is without prejudice to any other remedies available to Presperse.
Warranties / Limit Thereof. EXCEPT TO THE EXTENT OTHERWISE AGREED IN WRITING BY Presperse IN ITS SOLE DISCRETION, Presperse EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND GUARANTIES, EXPRESS OR IMPLIED, OR ARISING UNDER LAW OR EQUITY OR CUSTOM OF TRADE, INCLUDING, WITHOUT LIMITATION: WARRANTY OF MERCHANTABILITY, WARRANTY OF PERFORMANCE, AND WARRANTY THAT THE GOODS ARE FIT FOR ANY PARTICULAR PURPOSE. CUSTOMER HEREBY ACKNOWLEDGES THE FOREGOING DISCLAIMER.
Force Majeure. If performance by Presperse of its obligations under these Terms and Conditions or any other contract or agreement with Customer is prevented by force majeure (being an act, event, or circumstance, whether or not reasonably foreseeable, that directly or indirectly affects the activities of Presperse or any other person or entity connected with the sale, manufacture, supply, shipment, or delivery of any goods or services—including but not limited to acts of God, flood, typhoon, earthquake, tidal wave, landslide, fire, plague, epidemic, quarantine restriction, perils of the sea; war or threat of the same, civil commotion, blockade, arrest or restraint of government, requisition of vessel or aircraft, acts or threats of terrorism; strike, lockout, sabotage, other labor dispute; explosion, accident, or breakdown in whole or in part of machinery, plant, transportation, or loading facility; contamination by radioactivity or chemical substances; governmental request, guidance, order, intervening law, or regulation; unavailability of transportation or loading facility; curtailment, shortage, or failure in the supply of fuel, electric current, other public utility, or any raw materials; bankruptcy, insolvency, interruption or cessation of operations of the manufacturer or supplier of goods (or any component part thereof), or supplier of services, that are the subject of such contract or agreement; boycotting of goods; substantial change of the present international monetary systems; or any other act, event, or circumstance whatsoever beyond the reasonable control of Presperse), then Presperse shall not be liable for loss or damage, or failure or delay in performing its obligations and may, at its sole discretion, extend the time of shipment or delivery of the goods or services or cancel unconditionally and without liability any unfulfilled purchase order or other contract for such goods or services.
Credit Card Payments. Presperse may agree to accept payments via credit or debit card, consistent with all applicable payment network rules. In the event Presperse accepts payments via credit card, Presperse will impose a surcharge at the time of payment not to exceed 4% or Presperse’s cost of acceptance of such credit card payments, whichever is less, and Customer agrees to pay the applicable surcharge at the time of payment irrespective of whether such surcharge is referenced in Customer’s purchase order. Payments made by credit card are deemed to occur in the State of New Jersey.
Set-off, Rebates, Recoupment and Counterclaims (and Limitation Thereof).
Any rebate, refund or other indebtedness owed by Presperse to Customer is due only with respect to invoices that are paid according to terms.
Any rebate, refund or other indebtedness owed by Presperse to Customer may be recouped and/or setoff and applied by Presperse against any indebtedness or liability owed by Customer to Presperse at any time and without notice to the undersigned.Notwithstanding the foregoing, and for the avoidance of doubt, Customer must pay for any goods or services in full, notwithstanding and without application of any set-off,counterclaim, recoupment and/or other similar rights that Customer may have against Presperse.
Presperse and each of its direct and indirect parents, subsidiaries, and other affiliates (the “Company Parties” and each a “Company Party”) and Customer and each of its direct or indirect parents, subsidiaries, and other affiliates (the “Customer Parties” and each a “Customer Party”) agree that any Company Party may offset any debt owing by any Company Party to any Customer Party against any debt owing by any Customer Party to any Company Party.
Customer represents and warrants that—as of the date of the Application and as of the date of each order placed with Presperse—Customer is solvent, able to pay its debts as they come due, and has not filed, or been the subject of, any bankruptcy petition or other insolvency proceeding under federal or state law. In the event that the foregoing representation may become false at any time during the course of the business relationship between Customer and Presperse or while Customer owes any obligations to Presperse, Customer agrees to immediately notify Presperse of the reason for which the foregoing representation has become false and any relevant facts in connection therewith.
Customer agrees to promptly notify Presperse of any material change in the information contained in the Application(including, without limitation, any changes to the Customer’s ownership, corporate form, or name), and, if requestedby Presperse from time to time, Customer shall provide its current financial statements and other information requested by Presperse.
These Terms and Conditions may be executed in counterparts (including by electronic signature/submission), each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by electronic means (including, without limitation, by facsimile or by attachment to an e-mail) shall be effective as delivery of a manually executed counterpart of this Agreement.
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