TERMS & CONDITIONS
1. Applicability. These terms and conditions of sale (the "Terms") are the only terms which govern the sale of the goods ("Goods") by Rastaclat, LLC, a Delaware limited liability company ("Rastaclat"), to the party identified on the accompanying Retailer/Distributor Application or any accompanying sales order (such party, "Buyer"). Notwithstanding anything herein to the contrary, to the extent there is any inconsistency between a written contract signed by both parties covering the sale of Goods covered hereby and the Terms, the terms and conditions of said contract shall prevail. The Terms also apply to all future transactions unless modified in a writing signed by all parties. These Terms, together with any sales order sent in response to a purchase order from Buyer, shall comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Buyer's acceptance of Goods delivered by Rastaclat in conjunction with this Agreement is an acknowledgment by Buyer of its acceptance of these Terms. Notwithstanding any terms of Buyer’s purchase order, these Terms shall control. Rastaclat may, in its sole discretion, accept or reject any purchase order. Rastaclat may accept any purchase order by confirming the purchase order by providing in writing to Buyer a sales order acknowledgment. No purchase order is binding on Rastaclat unless accepted by Rastaclat as provided in the Terms. Buyer must notify Rastaclat in writing within 7 days of receipt of Rastaclat’s sales order acknowledgment if it desires to update or modify Goods ordered. If Buyer does not notify Rastaclat of its desired updates or modifications within 7 days, the sale order acknowledgment will be deemed accepted by Buyer and no further updates or modifications may be made. All cancellations of Sales Orders in Production are subject to a 15% restocking fee.
2. Delivery. Rastaclat cannot guarantee delivery dates. Rastaclat will attempt to deliver Goods within a reasonable time after Rastaclat's receipt of Buyer's purchase order, subject, in each case, to the availability of finished Goods and Rastaclat's minimum shipping window of 30 days. Rastaclat reserves the right to change or discontinue styles, colors, sizes and/or fabrics. Rastaclat shall not be liable for any delays, loss or damage in transit. All claims for Goods damaged in transit must be made directly with carrier. Unless otherwise agreed in writing by the parties, Rastaclat shall deliver Goods to the location specified on the sales order (the "Delivery Point") using Rastaclat's standard methods for packaging and shipping such Goods. Buyer shall take delivery of Goods within seven days of Rastaclat's written notice that Goods have been delivered to the Delivery Point (“Delivery Notice”). Buyer shall be responsible for all loading costs, equipment and labor reasonably suited for receipt of Goods at the Delivery Point. Rastaclat may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer's purchase order. If Rastaclat delivers to Buyer a quantity of Goods of up to 10% percent more or less than the quantity set forth in the sales order, Buyer shall not be entitled to object to or reject Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the sales order adjusted pro rata.
3. Non-delivery. The quantity of any installment of Goods as recorded by Rastaclat on dispatch from Rastaclat's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Rastaclat shall not be liable for any non-delivery of Goods (even if caused by Rastaclat's negligence) unless Buyer gives written notice to Rastaclat of the non-delivery within seven days of the date when Goods would in the ordinary course of events have been received. Any liability of Rastaclat for non-delivery of Goods shall be limited to replacing Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
4. Shipping Terms. Unless otherwise specified in a sales order, delivery shall be made FCA Long Beach, California.
5. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of Goods at the Delivery Point. If Buyer fails to accept delivery of any of Goods on the date Rastaclat issues a Delivery Notice: (a) risk of loss to Goods shall pass to Buyer; (b) Goods shall be deemed to have been delivered; and (c) Rastaclat, at its option, may store Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). As collateral security for the payment of the purchase price of Goods, Buyer hereby grants to Rastaclat a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under Goods, 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 California Commercial Code.
6. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
7. Inspection and Rejection of Nonconforming Goods; Return Policy. Within five business days of receipt of Goods (“Inspection Period”), Buyer shall inspect such Goods and provide Buyer notice in writing of Nonconforming Goods. Buyer will be deemed to have accepted Goods unless Buyer provides such notice to Rastaclat during the Inspection Period. All return requests must reference the applicable sales order number prior to approval. "Nonconforming Goods" means only the following: (a) product shipped that is different than identified in Buyer's purchase order; or (b) a product for which the label or packaging incorrectly identifies its contents, excluding, in each case, samples and discontinued products, which are non-returnable. If Buyer timely notifies Rastaclat of any Nonconforming Goods, Rastaclat shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. A proper return authorization from Rastaclat is required before any returned Goods will be accepted. Unauthorized returns will not be accepted and will be returned to Buyer at Buyer's expense and risk of loss. If a return is authorized by Rastaclat, Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Rastaclat’s facility located at Black Mountain Fulfillment c/o RASTACLAT, 6650 Spencer St. Ste. 120, Las Vegas, NV, 89119. If Rastaclat exercises its option to replace Nonconforming Goods, Rastaclat shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Delivery Point. Rastaclat reserves the right to charge Buyer a 15% restocking fee and any applicable shipping charges Rastaclat incurs on cancelled, returned or refused orders, including pick-up orders. Buyer acknowledges and agrees that the remedies set forth above are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section 7, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Rastaclat.
8. Price. Prices are subject to change without notice. Buyer shall purchase Goods from Rastaclat at the prices in effect on the date Rastaclat delivers Goods to an earner for shipment to Buyer, as set forth in the sales order (the "Prices"). All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, taxes, duties and charges; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Rastaclat's income, revenues, gross receipts, personnel or real or personal property or other assets.
9. Resale of Goods. Except as may be otherwise set forth in a written contract between Buyer and Rastaclat, Buyer agrees that it will not resell or distribute a Good to any party other than a final purchaser that acquires a Good for its own internal use and not for resale, remarketing or distribution or incorporation into its own products (such purchaser, an "End User"). Buyer agrees that it will not distribute Goods using any e-commerce channel or platform, including Amazon, EBay Google Shopping or otherwise, without first obtaining the written approval of Rastaclat. Buyer agrees to comply with all release dates established by Rastaclat with respect to Goods and will not sale or distribute any Goods, whether online or in-store, prior to their established release date. If Buyer breaches its obligations under this Section 9, Rastaclat may terminate this Agreement immediately by written notice to Buyer.
10. Payment Terms. Buyer shall pay all invoiced amounts due to Rastaclat on the terms specified in the applicable sales order or, if no payment terms are specified, within seven days after Buyer's receipt of such invoice. Buyer shall make all payments hereunder in US dollars by cash, cashier check, company check, wire transfer, Visa, Master Card, American Express or PayPal. Rastaclat will charge a 2% processing fee for each order of $5,000 or more that is paid by credit card or PayPal. Buyer shall be responsible for all bank fees for wire transfers, insufficient funds charges, and the like. Any returned checks will be charged back to Buyer with the addition of a $50 processing fee. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Rastaclat for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees and fees of collection agents. In addition to all other remedies available under these Terms or at law (which Rastaclat does not waive by the exercise of any rights hereunder), Rastaclat shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for three days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any setoff of any claim or dispute with Rastaclat, whether relating to Rastaclat's breach, bankruptcy or otherwise.
11. Limited Warranty. RASTACLAT MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
12. Limitation of Liability. IN NO EVENT SHALL RASTACLAT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT RASTACLAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE IN NO EVENT SHALL RASTACLAT'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO RASTACLAT FOR GOODS SOLD HEREUNDER.
13. Indemnification. Buyer shall indemnify, defend and hold harmless Rastaclat and its officers, directors, employees, agents, successors and permitted assigns (collectively, "Indemnified Parties") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under the Terms and the cost of pursuing any insurance providers, relating to/arising out of or resulting from any claim of a third party or Rastaclat arising out of or occurring in connection with the products purchased from Rastaclat or Buyer's negligence, willful misconduct or breach of the Terms. Buyer shall not enter into any settlement without Rastaclat's and/or the applicable Indemnified Party's prior written consent.
14. Termination. In addition to any remedies that may be provided under these Terms, (1) Rastaclat may terminate any sales order with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under any sales order; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors
15. Intellectual Property. All intellectual property rights arising out of or relating to Goods and the Terms, including all trademarks, trade names, service marks, logos, trade dress, copyrights, patents, and other intellectual property rights (together, “Intellectual Property”), are and shall remain the exclusive property of Rastaclat. Buyer shall comply with the additional conditions regarding the use of Rastaclat Intellectual Property described in Schedule A headed “Using Rastaclat Intellectual Property.”
a. Rastaclat grants Buyer a non-exclusive, non-assignable, non- licensable license to use Rastaclat Intellectual Property only in a lawful manner and in connection with the advertising, display, promotion, and sale of Goods in accordance with the Terms. This license shall automatically terminate upon termination or expiration of the Terms, and Buyer shall immediately discontinue the use of all Intellectual Property and thereafter shall not use Intellectual Property in connection with its business, nor use any other name, trademark, design, title, or expression so resembling Intellectual Property as would be likely to confuse or deceive the public.
b. Buyer shall promptly inform Rastaclat of any action or conduct of any person which may infringe upon any of Rastaclat Intellectual Property rights. Rastaclat shall have the sole discretion as to whether to take legal action against any such infringement and any damages or other monies recovered on account of such infringement, whether by judgment, settlement, or otherwise, shall belong exclusively to Rastaclat. Buyer shall cooperate fully with Rastaclat in connection with any legal or other action taken by Rastaclat in connection with any such infringement.
16. Confidential Information. All non-public, confidential or proprietary information of Rastaclat, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Rastaclat to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with the Terms is confidential, solely for the use of performing Buyer’s obligations under the Terms or any sales order and may not be disclosed or copied unless authorized in advance by Rastaclat in writing. Upon Rastaclat's request, Buyer shall promptly return all documents and other materials received from Rastaclat. Rastaclat shall be entitled to injunctive relief for any violation of this Section 16. The obligations under this paragraph shall survive termination of the Terms and any sales order.
17. Force Majeure. Rastaclat shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached the Terms, for any failure or delay in fulfilling or performing any term of the Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Rastaclat including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
18. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under the Terms or any sales order without the prior written consent of Rastaclat. Any purported assignment or delegation in violation of this Section 18 is null and void. No assignment or delegation relieves Buyer of any of its obligations under the Terms. Rastaclat may at any time assign, transfer, delegate or subcontract any or all of its rights or obligations under the Terms without Buyer's prior written consent.
19. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
20. No Third-Party Beneficiaries. The Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
21. Governing Law. All matters arising out of or relating to the Terms and any sales order are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
22. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to the Terms and all sales orders shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the County of Los Angeles, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
23. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the sales order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid).
24. Severability. If any term or provision of the Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Terms including, but not limited to, provisions of Section 16, Section 21, Section 22 and this Section 25.
Agreement and Acknowledgement
Buyer has carefully read and agrees to these Terms. Buyer authorizes Rastaclat to verify the credit of the Buyer and/or the individual(s) whose signature(s) appears on this or the other documents specified above. Buyer authorizes its bank(s) and/or business references to release credit information of Buyer(s) as requested by Rastaclat.
Buyer or Representative of Company: