Conditions of Use
1. Terms of Sale The sale of goods by FIFTYEIGHT, INC. (Miami, USA) and any of its subsidiaries or agents (“58” or “Seller”) is subject to the terms and conditions contained herein. The terms and conditions contained herein take precedence over any terms and conditions which are proposed by a buyer of goods (“Buyer”), whether contained on a purchase order or otherwise. The terms and conditions contained herein, together with a purchase order and confirmation of such purchase order constitute the entire contract between the Buyer and 58 (as such, the “Agreement”) and shall supersede any and all other agreements and understandings between the parties with respect to the subject matter hereof. 58 hereby rejects any and all terms or conditions proposed by Buyer, whether or not contained in any of Buyer’s business forms (including any purchase order).
Buyer will submit purchase orders for goods. The purchase order will become binding when 58 sends a purchase order confirmation to Buyer. A separate invoice will be included with delivery of the goods.
2. Prices All prices are in Dollars (unless otherwise specified). The payment of any foreign, state, local and other taxes due on the sale of the goods is the responsibility of Buyer. If Seller must collect or pay upon the sale of goods any tax or there is any other tax upon Seller measured in whole or in part by the amount of such a sale, the price will be increased by an equal amount. Current import duty is included in the price, but any variation, temporary surcharge, or other charge applying to imported goods is not included and, if applicable, is at the cost of Buyer. All prices are “Ex Works” (Incoterms 2010) Seller’s warehouse. Loading and packaging will be charged separately. Unless Buyer and 58 have agreed on a fixed price, 58 shall be entitled to make reasonable price adjustments based on changes in wage costs, material costs and distributions costs for deliveries to be made no less than 3 months after purchase order confirmation.
Seller may, at its discretion, provide Buyer with pricing guidelines for resales (to the extent such resales are not prohibited under Section 10). Such guidelines shall be binding on Buyer, unless they provide unreasonable pricing limitations or are not enforceable under the laws of the State of Buyer’s domicile.
3. Terms of Payment
Unless otherwise stated in the purchase order confirmation, all prices are payable prior to shipment. The parties can agree in writing on different payment terms, which are binding upon inclusion in the purchase order confirmation. Buyer agrees to pay interest on overdue invoices of 8% per annum. 58 reserves the right to claim damages for late payment in addition to interest. Buyer shall not be entitled to any setoff rights, including based on other purchase orders.
4. Cancellation or Modification of Orders
Orders shall not be subject to cancellation or modification by Buyer in whole or in part (a) without 58’s written consent and (b) payment of a reasonable cancellation charge for applicable costs of purchased materials incurred or for which 58 is obligated prior to cancellation or modification. Notwithstanding the foregoing, Buyer may not cancel or modify any order under any circumstances, if special or custom products are ordered from 58.
Unless otherwise agreed in writing by the parties, 58 reserves the right to select the mode of transport and the identity of the carrier from Seller’s warehouse. Neither Buyer nor any consignee shall have the right to direct or re-consign any shipment to any destination other than that specified in the bill of lading without 58’s written consent. Buyer shall be responsible to pay for all shipping and transportation costs.
The delivery period specified in the order confirmation, if any, is dependent on Buyer complying with its obligations, including advance payment of the purchase price, if applicable.
Should Buyer not accept delivery, 58 shall be entitled to recover any additional expenses incurred as a result thereof.
6. Title and Risk of Loss
Title and risk of loss passes to Buyer upon delivery of the goods to the carrier at the location of 58.
7. Limited Warranty/Exclusive Remedy
58 warrants that the goods are free from defect in material and workmanship at the time of shipment. If the goods are mutually determined to be defective, then 58 will, at its option, replace the defective goods or, if only one or some goods of a purchase lot are defective, refund a pro rata portion of the purchase price for the defective goods. 58 shall have no obligation with respect to any defect in any of its goods unless it is notified within ninety (90) days after shipment of the goods stating the full particulars of the claim. THE FOREGOING WILL BE THE SOLE AND EXCLUSIVE REMEDY OF BUYER WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND 58 WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER. THIS LIMITATION APPLIES TO ALL GOODS DURING AND AFTER THE WARRANTY PERIOD. IN NO EVENT WILL 58 BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR COMMERCIAL LOSSES, EVEN IF 58 HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. To the extent the limitation or exclusion of liabilities or damages contained herein is not permitted under applicable law, this limited warranty will apply to the maximum extent allowed by applicable law.
8. Disclaimer of other Warranties
THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND ALL OTHER OBLIGATIONS OR LIABILITIES OF 58, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER WARRANTIES ARE DISCLAIMED AND EXCLUDED BY 58.
9. Limitation of Warranty
58 assumes no warranty liability with respect to defects in any goods caused by: (a) improper storage of the goods; (b) repairs to the goods by anyone other than 58 or its authorized agent; or (c) negligent or other improper use or handling.
10. Resale Restrictions
Without the express prior written consent of 58, Buyer may not:
(a) Resell any goods through e-commerce platforms, such as, without limitation, eBay.com; amazon.com; jet.com; or overstock.com;
(b) Resell any goods other than to retail customers (for the avoidance of doubt, and without limitation, any resale of goods in bulk to department stores, drugstores, convenience stores, or gas stations is prohibited hereunder); and
(c) Resell any goods to any countries other than the United States or for purposes of distribution to any countries other than the United States, including re-import into Germany or sales for purposes of re-importing into Germany.
It is hereby agreed and acknowledged that it may be impossible to measure in money the damages that Seller would suffer if Buyer fails to comply with any of the obligations herein imposed on it, and that in the event of any such failure, Seller will be irreparably harmed. Seller shall, therefore, be entitled (in addition to any other remedy to which it may be entitled in law or in equity, including for damages) to injunctive relief.
11. Buyer Intellectual Property
If words, symbols or designs are provided to 58 by Buyer for printing on a particular good then Buyer represents that the words, symbols and designs are either in the public domain or are the property of Buyer and do not infringe on the trademarks, copyrights or other intellectual property rights of others.
12. Credit Approval
58 may invoice Buyer and recover for each delivery as a separate transaction without regard to any other delivery. If Buyer is in default under any agreement with 58, or if, in 58’s sole judgment, the financial responsibility of Buyer is or becomes unsatisfactory, then 58 may at its option and without prejudice to any of its other remedies (i) defer or decline to make any shipments hereunder, except upon receipt of satisfactory security or cash payments in advance (even if the parties had previously agreed otherwise), or (ii) terminate any order of goods that may have been placed by Buyer. Buyer shall reimburse 58 for any costs incurred by 58, including reasonable attorney’s fees, to collect amounts due by Buyer to 58.
13. Force Majeure
58 shall not be liable for failure to perform or delays in performance caused by acts of God (including, without limitation weather-related events or earthquakes); war (declared or undeclared), riot or act of terrorism; fire, explosions or floods; strikes, work stoppages, slow-downs, or other labor difficulties; shortage of vehicles, fuel, power, material or labor; embargo or delay in transportation; accidents; compliance with any order or request by a government agency or official thereof; or any other event or contingency beyond its reasonable control. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be reasonably necessary to enable 58 to perform. 58, may, during any period of shortage due to any of the above contingencies, allocate its available supply of goods among itself and its customers in such manner as 58, in its reasonable judgment, deems fair and equitable.
In addition to any remedies that may be provided under these terms, 58 may terminate any purchase order for which partial shipment has been made with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under any purchase order; (ii) has not otherwise performed or complied with any of these terms, in whole or in part; (iii) is the subject of a transaction as a result of which the majority of its ownership interests are acquired by a person that directly or indirectly, competes with the business of 58, as reasonably determined by 58; or (iv) 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.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of 58. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under these terms and conditions.
16. Limitation of Actions
Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of this Agreement by 58 shall be barred unless commenced by Buyer within one year from the date of shipment.
17. Governing Law; Dispute Resolution
These terms and conditions, the Agreement and the relationship between the parties shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of laws provision or rule. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. Any controversy or claim arising out of or related to these terms and conditions, the Agreement or the relationship between the parties shall be resolved by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules.
18. Relationship of the Parties
Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, franchisor/franchisee relationship or any fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19. Third Party Beneficiary
This Agreement is 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.
If any provision of this Agreement shall be held to be unlawful or unenforceable, the remaining portions of this Agreement shall remain in full force and effect. No other Agreement or understanding shall modify this Agreement in any way or shall be binding upon 58 unless contained in a writing signed by 58’s authorized representative.
Valid as of 1 January 2019.