CUTTER & BUCK TERMS AND CONDITIONS
As a condition to all orders placed with Cutter &
Buck (“C&B”), Customer hereby accepts and agrees to comply with these Terms
and Conditions, and agrees that such Terms and Conditions supercede those
contained in any purchase order or other document regarding the subject matter
hereof. These Terms and Conditions apply to all orders placed by Customer, in
whatever form received by C&B, including without limitation electronic and
telephone orders, and C&B’s acceptance of such orders are limited to these
Terms and Conditions. C&B HEREBY OBJECTS TO ANY DIFFERENT OR ADDITIONAL
TERMS IN BUYER’S ORDER, OR ANY OTHER DOCUMENT OR FORM TRANSMITTED ON BEHALF OF
BUYER.
CANCELLATION, AND CHANGE ORDER REQUESTS
Orders with a start shipment date within 30 days after the
order is placed with C&B are considered “at once” orders. After an “at
once” order is placed, no changes or cancellations will be permitted.
Orders with a start shipment date more than 30 days after
the order is placed with C&B are considered “future” orders. Once a future
order is placed, Customer will receive an acknowledgment of the order,
including styles, price, quantities and sizes ordered. Any request to cancel
all or any portion of a future order, will not be binding on Cutter &
Buck unless received within thirty (30) days of the date of C&B’s Order
Acknowledgment. Once that 30 day period has passed, the order will be
considered “in production,” C&B will commit resources for its fulfillment,
and no changes or cancellations will be permitted.
Any enhancement instructions or change order
requests (such as embroidery, ticketing, additional value added services,
special handling and/or changes to routing information), must be received by
C&B not later than 60 days prior to the order's start shipment date.
If instructions are NOT received by C&B 60 days prior to the start shipment
date, C&B reserves the right to ship the order to Customer without
enhancement, and/or to decline any change order requests.
SHIPPING
All shipments by C&B are F.O.B. point of shipment;
therefore, freight and insurance costs are the responsibility of Customer.
Customer is responsible for designating the mode of shipment and the name of
the carrier at the time of the order, and for procuring any desired insurance.
Any additional routing instructions shall be given in writing, not less than
five (5) business days prior to the order Start Date, to Customer Service, 701 N 34th Street, Suite 400, Seattle, WA 98103. C&B shall have the right to
choose an alternate mode of shipment if the mode designated is not available or
feasible. If no shipping instructions are received from Customer, C&B will
ship via “ground” transportation, insured for the full value of the goods at
Customer’s expense, which charges will be added to the invoice for the goods.
Only the proceeds of such insurance in excess of any amounts owed by the
Customer to C&B will be reimbursed to Customer.
Customer shall specify its preferred earliest shipment date
(“Start Date”) and its latest shipment date (“Complete Date”). C&B
reserves the right to ship goods in advance of Customer’s Start Date. In order
to meet Customer’s Start Date, C&B reserves the right to ship via air
carrier. Any change in shipment dates must be approved by C&B. C&B
shall have no responsibility whatsoever for the ultimate date of delivery if
C&B has shipped on or before Customer’s designated Complete Date. C&B
agrees that, if it ships goods after the Complete Date, C&B will accept
return of the goods so shipped; provided that C&B is notified within
fourteen (14) days of the date of such shipment or it shall be conclusively
presumed that Customer has accepted the order(s) shipped. A return
authorization form provided by C&B must accompany any such shipment
returned.
If at any time C&B believes, in its sole discretion,
that the financial condition or responsibility of Customer is, or is about to
become, impaired or is, or will be, inadequate to meet Customer’s obligations
to C&B, C&B reserves the right to suspend shipments, to change
Customer’s credit or payment terms and to take any other appropriate steps to
protect C&B’s interests. If Customer’s credit is withdrawn, C&B, at
its option, may require payment or security before accepting orders from Customer
or shipping goods to Customer.
C&B shall not be liable for any failure to deliver goods
where such failure has occurred due to circumstances beyond the control of
C&B.
RISK
OF LOSS
Possession and risk of loss are transferred to Customer when
ordered goods are placed in the possession of the carrier by C&B. A bill
of lading or other evidence of delivery to the carrier shall be conclusive
proof of proper shipment by C&B. All disputes as to goods that are lost or
damaged after delivery by C&B to the carrier shall be handled directly
between Customer and the carrier. Upon request, C&B will provide documents
within its possession that are necessary to substantiate a claim by Customer
against the carrier. If C&B has purchased insurance for the shipment on
behalf of the Customer, upon request, C&B will support Customer by filing
any claims for lost or damaged goods. The reimbursement for such claims will
be payable to Customer only if the original C&B invoice for said goods has
been paid in full.
PAYMENT
Customer shall pay in full in United States dollars in
immediately available funds for all goods shipped by C&B in accordance with
the terms of C&B’s invoice. If payment by check is accepted by C&B,
such payment shall not be considered to have been made until the check has
cleared collection. C&B does not offer a discount for anticipation. All
sums not paid when due shall be subject to delinquency charges equal to the
lesser of 1½ percent per month or the highest rate allowed by law, prorated
on a daily basis from the date such payment is due until paid.
RETURNS
AND RETURN AUTHORIZATION REQUESTS
C&B will only
accept, and give return credit for, goods authorized by
C&B to be returned and displaying a C&B Return Authorization label on
the carton. All requests for Return Authorization are to
be submitted in writing to: Cutter
& Buck Inc. Attn: Customer Service, 701 N. 34th Street, Suite 400, Seattle,
WA 98103 Requests
for Return Authorization are to be received by C&B within thirty (30) days
of shipment to Customer and should provide C&B style number(s), original
invoice number(s), quantity and unit price of goods in claim, reason for claim,
and claim or chargeback number(s). If return freight is authorized on the
Return Authorization to be paid by C&B, the goods must be returned by
carrier and mode specified by C&B. Any goods returned without a Return
Authorization label and any unauthorized goods that are
included with a Return Authorization will
not be credited and will be disposed of at the discretion of C&B. Return Authorization labels must be used within thirty (30)
days of the date of issuance.
At C&B’s discretion, a Dispose of Goods Authorization
may be issued by C&B to authorize credit for individual pieces that will
not be returned to C&B’s warehouse. C&B reserves the right to request
return of product for any claims. Absolutely no credit will be issued for
goods returned 6 months or more after delivery (except for goods returned for a
previously undiscovered defect in manufacturing).
CREDITS
Any credit claimed by Customer, including credit for
returned goods, must have supporting documentation included with or sent prior
to Customer’s payment. If credit documentation has not been received by
C&B within thirty (30) days of the receipt by C&B of the payment that
reflects the credit, the claim will be deemed invalid and repayment will be
expected in full All credits must be used within 6 months of the date the
credit was issued, or by the expiration date on the credit.
WARRANTY
AND DISCLAIMER
C&B warrants that the goods shipped pursuant to
Customer’s orders (i) are free from defects in materials and workmanship;
(ii) are labeled in accordance with and comply with the requirements of
applicable law; and (iii) will not infringe any patent, trademark, trade
name, copyright or other similar right.
EXCEPT AS SET FORTH ABOVE, C&B DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE,
USAGE OF TRADE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ALL WARRANTIES AS TO
MERCHANTABILITY OR THE FITNESS OF THE GOODS FOR ANY PARTICULAR PURPOSE.
C&B NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER
LIABILITY IN CONNECTION WITH THE SALE OR USE OF ITS GOODS.
C&B’S OBLIGATIONS AND ALL REMEDIES AND THE MEASURE OF
DAMAGES SHALL BE LIMITED EXCLUSIVELY TO REPAIR OR REPLACEMENT OF NON-CONFORMING
GOODS AT THE OPTION OF C&B. IN NO EVENT SHALL C&B BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES OR EXPENSES (INCLUDING WITHOUT LIMITATION,
TRANSPORTATION, LOST PROFITS OR DAMAGE TO PERSON OR PROPERTY), OR FOR ANY
DAMAGES OR SUMS PAID BY BUYER TO THIRD PARTIES, EVEN IF C&B HAS BEEN
ADVISED OF THE POSSIBILITY THEREOF.
DISTRIBUTION AND
RESALE
Customer represents and
warrants to C&B as follows: (i) Customer intends to sell the goods
directly to consumers or to corporate end users and does not intend to resell
to any other person or entity, including but not limited to any related company
that is not a C&B account, other dealers or resellers, warehouse clubs,
discount off-course golf shops, discount stores, off-price retailers, and
Internet retailers; and (ii) Customer is not acting as a diverter of the
goods.
TAXES
The amount of any present or future sales, revenue, excise
or other taxes, applicable to the goods sold by C&B to Customer shall be
added to the purchase price and shall be paid by Customer, or, in lieu thereof,
Customer shall provide C&B with a tax exemption certificate acceptable to
the applicable taxing authorities.
GOVERNING
LAW
These Terms &
Conditions and other documents between C&B and Customer shall be
interpreted in accordance with the applicable law of the State of Washington and shall not be subject to or governed by the U.N. Convention on Contracts for
the International Sale of Goods. If any claim or dispute should arise with
respect to any matter relating to these Terms and Conditions or other
documents, the claim or dispute shall be first submitted to mediation pursuant
to the Commercial Mediation Rules of the American Arbitration Association. If
the claim or dispute cannot be resolved by mediation, then (i) the parties
assent to personal jurisdiction in the State of Washington; (ii) the claim
will be brought and tried in either the United States District Court for the
Western District of Washington at Seattle or in the Superior Court for King
County, Washington; and (iii) the prevailing party will be entitled to
recover all reasonable attorneys’ fees and other costs incurred.
SECURITY
INTEREST
Customer hereby grants to C&B, as secured party, a
security interest in all goods sold to Customer and in all proceeds of said
goods, and C&B shall have the rights and remedies of a secured party under
Article 9A of the Uniform Commercial Code. C&B is hereby authorized
by Customer to file a UCC Financing Statement covering said goods and proceeds.
TRADEMARK,
TRADE NAME AND DOMAIN/WEBSITE NAMES
If Customer requests C&B to incorporate Customer’s name,
logo, design or artwork into any of the goods shipped by C&B, Customer
warrants that it is the sole owner of the entire right, title and interest in
and to all patent, trademark, trade name, copyright and other similar rights
related to such name, logo, design or artwork provided by or on behalf of
Customer to be so incorporated. Customer agrees it will not use any trademark
or trade name of C&B except in connection with goods shipped to Customer,
nor make any claim of ownership of any such trademark or trade name. Use or
registration of Cutter & Buck trademarks, including Cutter & Buck
logos, symbols, icons or any other potentially confusing variation thereof as
part of Customer’s name, trade name, product name, service name, website or
domain name is strictly prohibited.
INDEMNIFICATION
Customer shall indemnify, defend (with counsel acceptable to
C&B) and save harmless C&B from and against any claim, cause of action,
damage, loss or liability, including attorneys’ fees and costs, asserted
against or incurred by C&B by reason of, or arising out of or in connection
with: (i) any breach or alleged breach of any of these Terms and
Conditions, or the provisions of any order, Order Acknowledgment, or other
document between C&B and Customer; (ii) any act or omission of
Customer, or the employees, agents or subcontractors of Customer, in connection
with any order, Order Acknowledgment, or other document between C&B and
Customer; (iii) the use of any C&B merchandise by Customer or any
customers of Customer; or (iv) any infringement or alleged infringement of
any patent, trademark, trade name, copyright and other similar right related to
any name, logo, design or artwork provided by or on behalf of Customer to be
incorporated into any C&B goods. All indemnification obligations of
Customer hereunder shall survive termination or cancellation of any order.
MISCELLANEOUS
A waiver of any one or more of the conditions of these Terms
and Conditions by C&B with respect to one or more of Customer’s orders
shall not constitute a waiver of or an excuse for nonperformance as to any
other part of these Terms and Conditions nor shall it constitute a waiver of or
excuse for nonperformance as to the same condition with respect to any future
order.
