Terms and Conditions for Sale for Commercial Customers

Effective Date: 12/17/2020

 

  1. Acceptance. By placing an order with TIBI, LLC ("TIBI"), you (or the company on whose behalf you are placing an order) (hereinafter, the "Customer") agree to be bound by these Terms and Conditions of Sale for Commercial Customers ("Terms"). Customers located in the United States are sometimes referred to herein as "Domestic Customers." Customers located outside the United States are sometimes referred to herein as "International Customers.”
  2. No Other Terms or Conditions. These Terms supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the sale by TIBI of products, garments, shoes, handbags, accessories and other goods ("Merchandise"). In addition, TIBI shall not be bound by any terms or conditions on any Purchase Order or other documentation submitted or provided to TIBI, it being understood that these Terms, as may be updated from time to time, are the only terms and conditions governing Customer’s purchase of Merchandise.
  3. Modifications of these Terms refers to the "Effective Date". TIBI shall have the right to modify or update these Terms at any time by posting such modifications or updates on its website at http://www.tibi.com/pages/wholesale- terms-and-conditions. The Customer's placing of an order after the effective date of such modification or update shall constitute customer's acceptance of the modified or updated Terms. Accordingly, before placing an order with TIBI, the Customer should check the foregoing URL to see if these Terms have been updated.
  4. Order Confirmations and Cancellations by Customer.
    1. Order Confirmation. All orders by the Customer are subject to acceptance by TIBI.
    2. Binding Orders. Because TIBI manufactures its Merchandise according to demand from Customers, all orders that are confirmed by TIBI, and not cancelled as provided in Sections 4(b)(i), (ii) or (iii) below, are binding upon the Customer as follows:
      1. If the Customer’s cancellation occurs prior to purchase by TIBI of any of the raw materials for manufacture of the Merchandise, the Customer shall remain responsible for Ten Percent (10%) of the full amount of the order;
      2. If the Customer’s cancellation occurs after the purchase of any of the raw materials for the Merchandise, but prior to TIBI’s production order to the factory for manufacture of the Merchandise, the Customer shall remain responsible for Fifty Percent (50%) of the full amount of the order; or
  • If the Customer’s cancellation occurs after TIBI’s production order to the factory for the manufacture of the Merchandise, the Customer shall be responsible for the full amount of the order.
  1. Payment.
    1. Payment Terms. All terms affecting payment are stated on or in purchase order acknowledgements, invoices, any signed customer application forms, and these Terms. Invoices must be paid by the due date specified on the Invoice.
    2. All payments must be received by TIBI in U.S. Dollars, and must be paid by wire transfer.
    3. Additional Payment Terms for Domestic Customers. Invoices that are not paid in full by the due date specified on the Invoice are subject to interest charges at a rate of 1.5% per month or the highest rate permitted by New York law, on the principal amount due until paid in full. If no due date is specified on the invoice, then payment in full shall be within the time frame specified in Customer’s Customer Account Application. No additional credit will be extended to any Domestic Customer account that is past due unless arrangements acceptable to TIBI are made in writing with TIBI’s Accounts Receivable department.
    4. Additional Payment Terms for International Customers. TIBI will issue an invoice or other notice to International Customers when the order is ready to ship. TIBI has no obligation to ship any Merchandise unless timely payment is made of all sums required to be paid by the Customer prior to shipping. The failure of Customer to make timely payment as aforesaid shall be deemed a Customer cancellation subject to Section 4.b.iii above.
    5. Additional Payment Terms for Domestic and International Customers. Notwithstanding any payment terms agreed to between TIBI and the Customer, TIBI has the right, in its sole discretion, to require payment in full of any order prior to shipping if the Customer: (i) has failed to make timely payments of all amounts due on any of its current or prior orders; or (ii) has provided to TIBI any materially false information with respect to its Customer Account Application; or (iii) breaches any of these Terms; or (iv) becomes insolvent; or (v) files or has filed against it a petition in bankruptcy or the equivalent thereof in any jurisdiction; or (vi) is, in TIBI's good faith judgment, unable to pay its debts in the ordinary course of business. Under any the foregoing circumstances, any failure by the Customer to make payment in full prior to shipping shall be deemed a Customer cancellation subject to Section 4.b.iii above.
  2. Personal Guarantee and Authorization for Domestic Customers.
    1. The person signing TIBI's Customer Account Application (the "Application"), whether signing on behalf of a corporation, limited liability company, partnership, or other entity, hereby personally guarantees payment for all Merchandise purchased by the Customer and is hereinafter referred to as the "Guarantor." In addition, by signing the Application, the Guarantor represents and warrants that s/he: (i) has the full right, power, and authority to sign the Application on behalf of the Customer; and (ii) is a principal of the Customer (i.e., an officer, director, partner, managing member or sole proprietor of or in Customer, as applicable.)
    2. Guarantor and Customer hereby authorize TIBI to seek credit information regarding each of them, including contacting the trade references and banks listed in the Application, and obtaining credit reports from third parties.
    3. All orders are subject to credit approval by TIBI.
  3. Cancellations by TIBI. TIBI may, in its sole discretion, cancel part or all of an order for any particular Merchandise if TIBI, in its sole judgement, is unable to manufacture sufficient quantities of such Merchandise to fulfill the Customer's order, or cannot maintain the intended quality of such Merchandise, or has decided for any reason to terminate manufacture of such Merchandise. In the event of a partial cancellation by TIBI, the Customer shall remain responsible for that portion of the order that was not cancelled by TIBI.
  4. Title and Loss. Title to all Merchandise passes to the Customer when shipped by TIBI. Accordingly, Customer shall be solely responsible for all losses to Merchandise, however caused, once it has shipped and is in transit to the Customer or its agent.
  5. Returns, Re-Orders, and Exchanges.
    1. The Customer must notify TIBI in writing within ten (10) days of receipt of order of any claim regarding defective merchandise. Notification must be given as provided in Section 10 below. Returns of merchandise, defective or otherwise, will only be accepted after TIBI has validated the reason for the return, and has authorized the return by providing Customer with a written return authorization. All authorized returns must be shipped at the Customer's cost to: TIBI, LLC. 50 Innovation Drive, Brunswick, GA 31525.
    2. Customer is solely responsible for all shipping costs, including duties and taxes, on all re-orders and authorized exchanges and returns.
    3. Whenever Customer is required or desires to give a notice to TIBI, the notice must be in writing and sent to the salesperson in charge of the Customer’s account (i) by email; or (ii) by certified mail, return receipt requested, or by FedEx, DHL, or other reputable express delivery company, addressed to such salesperson at TIBI, LLC, 100 Broadway, 16th Floor, New York, NY 10005.
    4. Any notice by TIBI of a demand for payment may be sent to the Customer via email to the Customer’s billing department or its Manager/Buyer. The Customer is solely responsible for maintaining valid email addresses at all times.
  6. Force Majeure. TIBI shall not be liable for any failure to perform its obligations in connection with any transaction where such failure results from any act of nature or other cause not reasonably within TIBI’s control, including but not limited to weather events, strikes, failure to procure raw materials, and delays caused by factories or shipping companies.
  7. Limitations on Liability. In no event, whether as the result of breach of contract, warranty, tort (including negligence and strict liability) or otherwise, shall TIBI be liable to the Customer for any special, consequential or incidental damages, including but not limited to loss of profits or revenues.
  8. If any provision of these Terms shall be held void, voidable, invalid or inoperative, the remaining provisions shall remain in full force and effect.
  9. Governing Law, Venue, Service, Legal Fees.
    1. These Terms and any dispute or controversy arising out of or related to these Terms, any order or Invoice, any credit matter relating to the Customer or Guarantor, or the relationship established by any of the foregoing between TIBI, on the one hand, and the Customer and/or Guarantor, on the other {"Claims"), shall be governed by and construed, interpreted and resolved in accordance with the laws of the State of New York, without regard to its choice of law provisions. All Claims shall be submitted exclusively to the federal or state courts of competent jurisdiction serving New York County, New York, and the Customer, Guarantor, and TIBI each hereby irrevocably consent and submit to such exclusive jurisdiction and venue, and waive any objection any of them may now or hereafter have with respect thereto.
    2. In any legal action commenced by TIBI to collect any amount due from the Customer and/or Guarantor (as applicable), the Customer and Guarantor hereby agree that the Summons and Complaint (including any Amended Complaint) filed by TIBI in such action may be served on the Customer or Guarantor , via certified mail, return receipt requested, FedEx, DHL, or any other reputable express delivery company that requires signature upon delivery, by sending same to the Billing Address provided by the Customer in the Customer Account Application, and the Customer and/or Guarantor (as applicable) hereby waive any objection that either of them may now or hereafter have with respect to the foregoing methods of service.
    3. The Customer or Guarantor (as applicable) shall pay all of TIBI’s out-of-pocket costs and expenses, including but not limited to costs of collection, reasonable attorneys’ fees, court costs, and legal expenses, incurred in connection with all efforts by Tibi to recover any of the monies owed by the Customer or Guarantor.