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These Wholesale Terms and Conditions (these “Terms”) are between Artifact Uprising, LLC, a Colorado limited liability company (“Seller”), and the buyer (the “Buyer”) identified on the purchase order (each, a “Purchase Order”) governed by these Terms. These Terms govern all purchases of Goods (as defined below) by Buyer, and hereby incorporate by reference all ordering documents issued by Buyer or Seller relating to the purchase of the Goods (including, but not limited to, each Purchase Order and any related invoices). By submitting a Purchase Order to Seller, you agreed to be bound and abide by these Terms, located at https://www.artifactuprising.com/wholesale-terms.
1. Sale of Goods; Order Process. Seller shall sell to Buyer and Buyer shall purchase from Seller the goods set forth on a Purchase Order (the “Goods”). To place an order for the Goods, Buyer shall submit a Purchase Order to Seller; upon receipt of a Purchase Order, Seller will invoice Buyer for the Goods ordered in the Purchase Order. Each Purchase Order must be for the minimum quantities and priced in accordance with the Wholesale Purchase Pricing and Specifications provided to Buyer by Seller. When sold by Buyer to end customers, all Goods must be presented and packaged in accordance with the Wholesale Purchase Pricing and Specifications. Seller shall not list the Goods for sale at a price below the Seller’s current suggested retail price for the Goods, which is listed on the Wholesale Purchase Pricing and Specifications and which may be adjusted by Seller at any time with written notice to Buyer. Once Buyer submits a Purchase Order to Seller, and Seller invoices Buyer for the Goods, the order is considered accepted and final; for avoidance of doubt, no cancellations will be allowed or authorized after Seller issues the invoice to Buyer.
2. Delivery. The Goods will be delivered in accordance with the following shipping time frames:
Shipment date is measured from the date on which the Buyer has paid Seller’s invoice for the Goods in full. Seller shall not be liable for any delays, loss or damage in transit. Seller shall use its standard method for packaging such Goods and make the Goods available for pick up at Seller’s place of business, warehouse, or shipping location (the “Delivery Point”) by Buyer’s selected carrier, addressed to ship to the address provided by Buyer on the Purchase Order. Unless otherwise set forth on the applicable invoice, Goods are shipped with Incoterms® EXW. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been made available for pick up at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. Non-Delivery. The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business, warehouse, or shipping location is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Goods shall be limited to delivering the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
4. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
5. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within 3 days of receipt (”Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in these Terms; or (ii) product’s label or packaging incorrectly identifies its contents. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price paid for such Nonconforming Goods. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at an address to be provided by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Seller’s expense and risk of loss, the replaced Goods to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided in this Section, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under these Terms to Seller; provided, however, that Seller endeavors to protect the reputation of both Buyer and Seller; if the end customer finds an issue related to manufacturing defects during the first 30 days after sale of the Goods, Seller will work with Buyer and the end customer to find a resolution.
6. Pricing. Buyer shall purchase the Goods from Seller at the price(s) set forth on the Wholesale Purchase Pricing and Specifications. All prices are exclusive of all shipping costs, 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 and taxes; provided, however, that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
7. Payment Terms. Buyer shall pay all invoiced amounts due to Seller on receipt of Seller’s invoice. Buyer shall make all payments hereunder by wire transfer or other payment method set forth on the invoice and in US dollars. 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 Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
8. No Setoff. Buyer shall not, and acknowledges that it will have no right, under these Terms, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing ) to Seller or any of its affiliates, whether under these Terms or otherwise, against any other amount owed (or to become due and owing) to it by Seller or its affiliates, whether relating to Seller’s or its affiliates’ breach or non-performance of these Terms or any other agreement between Buyer or any of its affiliates, and Seller or any of its affiliates, or otherwise.
9. Limited Warranty. Seller warrants that the Goods will be free of material defects. In the event that any of the Goods are not free of material defects, Seller must notify Buyer within the Inspection Period and must adhere to the process set forth in Section 5. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
10. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (iv) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
11. Compliance with Law. Buyer is in compliance with and shall comply with all applicable laws, regulations and ordinances. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms.
12. Termination. In addition to any remedies that may be provided in these Terms, Seller may terminate a Purchase Order and/or any ordering document issued in accordance with these Terms with immediate effect upon written notice to the other party, if the other party: (i) fails to pay any amount when due under these Terms or any ordering document issued hereunder; (ii) has not otherwise performed or complied with any of the terms of these Terms or any ordering document issued hereunder, in whole or in part; or (iii) 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. Upon termination of any ordering document issued hereunder, Buyer shall remain obligated to purchase Goods for which it previously placed an order.
13. Confidential Information. All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing (including wholesale pricing), discounts or rebates, disclosed by Seller 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 these Terms, is confidential, solely for the use of performing under these Terms, and may not be disclosed or copied unless authorized by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
14. Entire Agreement. These Terms, including and together with all Purchase Orders, invoices, and/or other ordering documents, constitute the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
15. Notices. All notices, requests, consents, claims, demands, waivers and other communications under these Terms or any Purchase Order shall be in writing and addressed to the other party at the address set forth on the Purchase Order submitted by Buyer.
16. Amendments. These Terms may be amended or replaced from time to time by Seller. Any Purchase Order or other ordering document submitted after such amendment is made will represent an agreement by Buyer to be bound by the amended Terms.
17. Governing Law; Choice of Forum. These Terms and all Purchase Orders, invoices, other ordering documents, and/or any transaction arising hereunder shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to the conflicts of laws principles thereof, and any enforcement action in any way relating to the subject matter hereof, may be brought solely in the state and federal courts located in Denver, Colorado, and the parties consent to the exclusive jurisdiction of such courts. In the event of any adjudication of any dispute under these Terms and all Purchase Orders, invoices, other ordering documents, and/or any transaction arising hereunder, the prevailing party in such action will be entitled to reimbursement of its reasonable attorneys’ fees and related costs by the other party.
18. Force Majeure. Any delay or failure of Seller to perform its obligations under these Terms or any Purchase Order, invoice, or other ordering document issued hereunder will be excused to the extent that the delay or failure was caused directly by an event beyond such party’s control, without such party’s fault or negligence and that by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities).