Baby Sense, produces several lines of high quality baby products and accessories. You, the Trade Customer, wishes to purchase, and Baby Sense has agreed to sell products from the lines designated on this Agreement (the “Products”) for resale only at the approved location(s) and or URL location.
The parties therefore agree as follows:
Terms & Conditions
Baby Sense appoints You, the Trade Customer as a non-exclusive retail Customer for the sale of its Products to customers, for use and not for re-sale, only from the retail store or URL location at the address initially submitted with application (Internet sales subject to the requirements set forth in Paragraph 5 & 6 below).
You, the Trade Customer accepts the distributorship appointment and agree to sell Baby Sense Products only in accordance with this Agreement. This Agreement does not make the you, the Trade Customer an agent or legal representative of Baby Sense. You, the Trade Customer is not granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of Baby Sense, or to bind Baby Sense in any manner.
2. Term of Agreement
The Agreement shall be for an initial term of twelve (12) months, effective as of the date first set forth above. This Agreement shall be renewed for successive terms, without any action by the parties, unless either party gives written notice of its election not to renew, no later than thirty (30) days prior to the expiration of the initial or successive term, whichever is applicable, or unless otherwise terminated pursuant to the terms and conditions of this Agreement.
3. Trade Customer Obligations
You, the Trade Customer agrees to use its best efforts during the term of this Agreement to sell and actively promote, to the maximum extent possible, the sale of Baby Sense’s Products. You, the Trade Customer shall at all times promote, advertise, and merchandise Baby Sense’s Products in such a manner as shall meet minimum standards of style and sophistication for the sale of premium goods and shall not detract from the value and image of the Products.
4. Store and Advertising Requirements
Baby Sense’s grant of distributorship requires that you, the Trade Customer continue to maintain the retail (non-residential) store or URL location identified supplied during application. Any television or print advertisement by Trade Customer of Products shall meet minimum standards of style and sophistication for the sale of premium goods and must not detract from the value and image of the Products. Baby Sense reserves the right to require you, the Trade Customer to modify or discontinue any advertisements that do not meet those standards. You, the Trade Customer may only use pictures of the Products supplied or pre-approved by Baby Sense in its advertisements.
5. Internet Sales
Provided you, the Trade Customer continues to maintain its store location and complies with the store requirements set forth in Paragraph 4 above. Baby Sense will authorize you, the Trade Customer to sell the Products over the internet only through a website operated by you, Trade Customer. Sales of the Products via auction-style websites are strictly prohibited. You, the Trade Customer may only use pictures of the Products supplied by Baby Sense on its website.
6. Resale on Amazon.com
In order to create a trusted experience for our customers and promote an accurate representation of the Baby Sense brand online, Baby Sense enrolled Baby Sense in the Amazon Brand Registry. Accordingly, only authorized sellers can list Baby Sense items, and use Baby Sense photography and marketing copy on the Amazon.com website. At this time, Baby Sense does not extended authorizations to its third-party Trade Customers to list Baby Sense products for sale on Amazon.com. This restriction applies to all Baby Sense products.
7. Price to You, the Trade Customer
The prices to be charged to you, the Trade Customer for the Products are set forth in the Baby Sense Products Order Form (“Price List”). Baby Sense may increase the price of any Product effective thirty (30) days after an updated Price List is sent to Trade Customer. Any increase in prices shall not affect any other right or obligation under this Agreement. In the event that any labor or material is required to be supplied by Baby Sense in an effort to comply with any special delivery conditions requested by Trade Customer, any and all costs and expenses incurred by Baby Sense for such labor or material shall be added to the invoice price of the Products involved.
8. Suggested Minimum Retail Price and Resale Policies (MAP)
Baby Sense carefully establishes suggested minimum advertised prices (MAP) for the Products. The Price List contains the current suggested minimum advertised prices for the Products. Updated Price Lists will be effective thirty (30) days after they are sent to you, the Trade Customer. Baby Sense does not seek and will not accept any agreement with you, the Trade Customer with regard to retail prices and compliance with this policy. You, the Trade Customer has the legal right to set their own resale prices for the Products. However, if Baby Sense has unilaterally determined, based on its own independent investigation, that Trade Customer is selling or transferring Products in violation of these suggested minimum advertised price (MAP) and resale policies, Baby Sense may unilaterally terminate this Agreement and immediately cease all further shipments of Products to Trade Customer.
Baby Sense employees and sales representatives are not permitted or authorized to discuss Baby Sense’s suggested minimum retail price and resale policies. All inquiries must be directed by email to: [email protected] Baby Sense will not accept or consider communications from Trade Customer regarding proposed alternative pricing or resale policies for Trade Customer, or reports of any alleged violation of Baby Sense’s suggested minimum retail price and resale policies by other Trade Customers.
9. Minimum Order Requirements
There are no minimum or pack size order requirements.
10. Purchase of Products
During the term of this Agreement, You, the Trade Customer agrees to purchase from Baby Sense such quantities of the Products as are required to maintain a supply of the Products sufficient to meet the demand of Trade Customer’s customers. Upon acceptance by Baby Sense, each purchase order hereunder shall constitute a binding agreement by Trade Customer to purchase and pay for the Products ordered by Trade Customer under the terms and conditions of this Agreement.
11. Acceptance of Orders
During the term of the Agreement, Baby Sense agrees to sell to You, the Trade Customer its Products subject to availability, demand of other Trade Customers and buyers, and inventory of Trade Customer on hand. All purchase orders for the Products received by Baby Sense hereunder are subject to Baby Sense’s acceptance in its sole and absolute discretion. You will be informed via email upon receipt of your order. Once your sales order has been processed a commercial invoice will be emailed to you detailing the order value including the shipping cost. The lead time in providing Products could vary depending on product availability. Delivery dates which Baby Sense may announce are estimated. Baby Sense shall have no liability if it is unable for any reason to supply the Products. The list of Products may be amended by Baby Sense in its sole and absolute discretion at any time.
12. Purchase Orders
You, the Trade Customer shall, from time to time, place orders with Baby Sense for such Products as Trade Customer requires in accordance with the terms and conditions of this Agreement. Each order shall be subject to the terms and conditions of this Agreement and shall specify, among other things, the quantity and description of each Product ordered. No term or condition that may be contained in an acknowledgment or other form of the Trade Customer shall prevail over the terms of this Agreement, notwithstanding Baby Sense’s acceptance of any payment by Trade Customer. In the event that any terms or conditions contained in Trade Customer’s order are inconsistent with the terms of this Agreement, such inconsistent terms or conditions in the order shall be null and void and shall not be binding on Baby Sense, regardless of whether such order is accepted by Baby Sense.
13. Out-of-stock resolution procedure
In the event of an ‘out-of-stock’ situation occurring, our customer service team will contact you. We’ll offer style changes and recommendations to complete your order and have it on it’s way to you in no time. We’ll do our best to ensure you’re happy with any changes that may occur, so you know what you’ll be receiving at all times.
14. Payment Terms
You, the Trade Customer shall tender to Baby Sense any and all payments required to be made before or upon shipment. At Baby Sense’s sole discretion, and upon approved credit, Baby Sense may grant Trade Customer credit terms. Baby Sense’s continuing obligations under this Agreement are conditional upon Trade Customer’s payment when due for all invoices.
Baby Sense makes use of a third-party shipping company and all costs are calculated according to an external pricing matrix. This shipping cost will then be stipulated on your commercial invoice. You are welcome to opt to use your own courier. Shipping and freight is for the you, the Trade Customer’s account. Unless otherwise agreed, the Products shall be delivered F.O.B. place of shipment, to the destination designated by Trade Customer. Baby Sense shall not be liable for any failure to deliver hereunder, where such failure has been occasioned by fire, embargo, strike, failure to secure materials from the usual source of supply, or other circumstances beyond Baby Sense ‘s control which prevents or unreasonably impedes Baby Sense from making deliveries in the normal course of its business.
16. Acceptance of Products
You, the Trade Customer shall be deemed to have inspected the Products within forty-eight (48) hours after delivery. Written notice shall be given to Baby Sense via email at [email protected] within such forty-eight (48) hours of any defects, omissions, damages, errors or shortage in the shipment. Failure to give written notice within forty-eight (48) hours after delivery shall constitute an irrevocable acceptance of the Products shipped and an admission that they fully comply with all terms and conditions of this Agreement and pertinent purchase orders and invoices.
Unless Baby Sense agrees otherwise, any and all rejected Products must be received by Baby Sense in an unused condition suitable for resale as new merchandise.
17. Right of Baby Sense to Alter Credit Terms
If you, the Trade Customer fails to perform its obligations to make payment when due under this Agreement, or if the credit of Trade Customer shall hereafter become impaired or its financial condition become such that, in Baby Sense’s sole and absolute discretion, any credit that has been extended to Trade Customer for the Products should be curtailed or eliminated, Baby Sense shall have the right to stop delivery of Products or, in its sole and absolute discretion, require payment upon shipment or C.O.D. for any and all Products.
18. Amendments to these terms and conditions:
Baby Sense reserves the right to amend these terms and conditions from time to time. Terms and conditions amendments and/or updates can be viewed on Baby Sense’s B2B / Trade shopping platform.
19. Exchange / Return Policy
Baby Sense guarantees the quality and craftsmanship of its Products. In the event a Product is returned by a customer to Trade Customer, it must be returned to Baby Sense for evaluation and will either be repaired or replaced, at the sole discretion of Baby Sense. This guaranty does not apply to damage caused by improper care, accidents or natural breakdown of the materials over extended time and use. To receive a return authorization, Trade Customer must contact Baby Sense’s customer service representative via email at [email protected] Returns will not be accepted under any other circumstances.
20. Use of Baby Sense Trademarks
Baby Sense grants to you, the Trade Customer the right to use in its advertising the trademark “Baby Sense,” and its variants (the “Trademarks”), only to the extent reasonable necessary in the sale of the Products as provided for herein. On termination of this Agreement, Trade Customer shall cease and desist from all use of the Trademarks in any way and will deliver up to Baby Sense all material and papers upon which the Trademarks appear. Trade Customer will not at any time adopt or use, without Baby Sense’s prior written consent, any word or mark which is likely to be similar to or confusing with the Trademarks.
Should Trade Customer fail to pay any invoice or otherwise default in the performance of this Agreement or materially breach any of its provisions, Baby Sense, at Baby Sense’s option, may terminate this Agreement immediately by giving written notification to Trade Customer. Upon termination of this Agreement in accordance with this Paragraph, Baby Sense shall have all remedies under law including, but not limited to, the right to seek injunctive relief or damages from Trade Customer.
22. Governing Law/Venue/Arbitration
This Agreement shall be deemed to have been executed and delivered within the State of Delaware, U.S.A., and the rights and obligations of the parties hereunder, and any action arising from or relating to this Agreement, shall be construed and enforced in accordance with, and governed by, the laws of the State of Delaware, U.S.A., without giving effect to conflict of laws principles. All claims, disputes and other matters in question between Trade Customer and Baby Sense arising out of or in any way related to this Agreement or the breach thereof shall be submitted to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall take place in Wilmington, Delaware, and each party hereto irrevocably consents to such jurisdiction and venue and waives any claim of inconvenient forum. This Agreement to arbitrate shall be specifically enforceable under the applicable law in any court having jurisdiction thereof. The award rendered by the arbitrators shall be binding, and final judgment may be entered upon it in accordance with the laws of the State of Delaware, USA.
23. Successors and Assigns
All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the Parties.
Baby Sense may assign this Agreement freely, in whole or in part. You, the Trade Customer may not, without the written consent of Baby Sense, assign, subcontract, or delegate its obligations under this Agreement, except that the Sales Representative may transfer the right to receive any amounts that may be payable to it for its Services under this Agreement, which transfer will be effective only after receipt by Baby Sense of written notice of such assignment or transfer.
Any notices to be given hereunder by either party to the other may be given either by personal delivery or in writing by certified mail, with return receipt requested. Mailed notices shall be addressed to the parties at the addresses submitted during application, or such substituted address of which a party has given notice. Notices delivered personally will be deemed communicated as of the actual receipt; mailed notices will be deemed communicated three (3) days after the day of mailing. Notices may not be sent via email, with the exception that Baby Sense shall be entitled to send updated Price Lists and notice to Trade Customer of a change in credit terms via email, which will be deemed communicated upon delivery.
26. Attorneys’ Fees, Costs and Disbursements
If any arbitration or action at law or in equity, including an action for declaratory relief, is brought with respect to the subject matter, enforcement, or interpretation of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, costs and disbursements, which may be set in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled.
27. Partial Invalidity
If any provision in this Agreement is held to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
28. Authority, Execution in Counterparts and/or by Facsimile
In the event Trade Customer is an entity, the party signing on behalf of Trade Customer hereby represents that they have authority to sign on behalf of and bind Trade Customer and, in the event the signing party does not have such authority, they hereby personally guarantee Trade Customer’s obligations hereunder. This Agreement may be executed in counterparts by the parties, and when each party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterparts, shall constitute one Agreement, which shall be binding upon and effective as to all parties. Facsimile signatures shall be binding as originals. A copy of Baby Sense’s signature on a copied Agreement shall also be binding.
This Agreement is the proprietary work product of Baby Sense and you, the Trade Customer hereby agrees to not disseminate this Agreement nor disclose its terms and conditions to any other manufacturer, supplier, or any other third party, except as otherwise required by law. Breach of this agreement of confidentiality shall be a non-curable default by Trade Customer under this Agreement.
30. Counterparts/Electronic Signatures
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, email, or other electronic medium shall have the same force and effect as an original signature.
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
33. No Implied Waiver
The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
34. Force Majeure
A Party shall be not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable:
a) notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and
b) use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.
35. Entire Agreement
This Agreement constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.