Wholesale Terms & Conditions
1. Application. These Terms and Conditions (“Terms and Conditions”) apply to every purchase, sale, shipment and delivery of Products from YDL to Retailer and related transactions, unless otherwise agreed in writing by Retailer and YDL. In these Terms and Conditions, Retailer and YDL may be referred to individually as “Party” or collectively as “Parties.” These Terms and Conditions may be amended from time to time by YDL, at its sole option, and, except as agreed to in writing by YDL, such modifications will apply to any Order of Products placed after the effective date of such modification. The current version of these Terms and Conditions will be posted on YDL’s website. By clicking “accept” or “agree” to these Terms and Conditions, Retailer accepts these Terms and Conditions and agrees to be bound and abide by these Terms and Conditions, which may be modified by YDL from time to time.
2.1 “Affiliate” means a Person that, directly or indirectly, controls, is controlled by, or is under common control with another Person by virtue of equity ownership, by contract or by other means, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract, or otherwise.
2.2 “Applicable Law” means any federal, state, foreign, community, provincial, and local laws, ordinances, and codes, together with all rules, regulations, policies, and guides promulgated thereunder or pursuant thereto, applicable to the subject matter of these Terms and Conditions, including, without limitation, all applicable raw material, ingredients, components, chemicals, product manufacture, packaging, labeling, data privacy and security laws, recordkeeping, reporting, product transportation laws, intellectual property laws, environmental laws, labor laws, safety standards, consumer protection laws, marketing and advertising laws, laws relating to rebates, anti-trust laws, trade laws, laws relating to bribes, kickbacks, or other unlawful or corrupt payments, laws relating to gifts given or loans made to any Person to obtain or retain business or to gain an improper advantage, together with all rules, regulations, and guides promulgated under any such laws and any directives issued by governmental or intergovernmental authority.
2.3 “Branding Standards” means the standards, requirements, specifications, guidelines, policies, and procedures for displaying, advertising and marketing, merchandising, selling, transporting, delivering, and handling returns and warranty claims regarding the Products, as specified from time to time by YDL.
2.4 “Confidential Information” means all information and data, in any form whatsoever, whether or not designated as “confidential” by YDL, relating to YDL’s business, trade practices, trade secrets, processes, Products, designs, packaging, shipping and delivery procedures, customer data, quality standards, forecasts, methods of operation, compliance methods, sales, advertising, marketing, market opportunities, technology, software, know-how, providers, financial statements or other financial information, Subcontractors, business plans, or customers (including any copies or versions thereof), which may be communicated to Retailer, its Affiliates, or its representatives, or of which Retailer, its Affiliates, or its representatives may be apprised of, including, without limitation, information regarding Prices, Product Specifications, Branding Standards, or Customers.
2.5 “Consequential Damages” means damages and injury that result from a Party’s negligent performance of or other breach of these Terms and Conditions for: (a) lost profits, and (b) compensation for damages to reputation and goodwill including costs of or resulting from delays, financing, marketing materials and media time and space, and costs of changing, substituting, or replacing the same.
2.6 “Corrective Action Plan” means an action plan to be executed by YDL in the event of recall or a quality issue or abnormality caused by a process deviation of one or more defective Products.
2.7 “Customer” means a retail purchaser of Products for such purchaser’s own account or use. For the avoidance of doubt, “Customer” does not include any retailer, wholesaler, or other purchaser that Retailer knows, or has reason to suspect, intends to resell such Products, except that, notwithstanding the foregoing, “Customer” may include Retailer if Retailer intends to use and not resell the Products.
2.8 “Cybersecurity Incident” means any event or occurrence that results in unauthorized access to, or adversely affects the availability or integrity of, Confidential Information, which could not have been prevented by reasonable administrative, physical, and technical security measures.
2.9 “Effective Date” means the date a representative of Retailer affirms its acceptance to these Terms and Conditions by clicking “accept” or “agree” to these Terms and Conditions, or by the representative of Retailer providing its signature or electronic signature to these Terms and Conditions.
2.10 “Event of Default” has the meaning assigned to it in Section 15.2.7
2.11 “Force Majeure Event” means an act of nature, strike, riot, fire, explosion, flood, act of God, war, act of terrorism, civil unrest, embargo, Cybersecurity Incident, epidemic, pandemic, public health emergency, or any other similar cause that is beyond the reasonable control of a Party and that materially and adversely prohibits the applicable Party from performing under these Terms and Conditions. Financial inability of a Party will not constitute a Force Majeure Event.
2.12 “Intellectual Property” means all intellectual property rights or other proprietary rights throughout the world, whether registered or unregistered, whether arising or existing under contract, statutes, civil law, or common law, whether or not perfected, now or hereafter in force or recognized, including (1) patents, utility models and rights to inventions; (2) trademarks, service marks, logos, rights in trade dress and get-up, design rights, database rights, business names and domain names; (3) works of authorship, including, without limitation, copyrights, source codes, moral rights, and neighboring and related rights; (4) know how and trade secrets; (5) publicity and privacy rights; (6) goodwill and the right to sue for passing off or unfair competition; (7) any rights analogous to those set forth herein and any other intellectual property and proprietary rights; and (8) any application or right to apply for any of the rights referred to in subsections (1) through (7) above and rights to claim priority from such rights and all similar or equivalent rights or forms of protection which exist now or will exist in the future anywhere in the world; and (9) any and all renewals, divisions, continuations, continuations-in-part, re-issuances, re-examinations, extensions, restorations of any of the foregoing (as applicable).
2.13 “Marks” means YDL’s or its Affiliates’ trademarks, service marks, names, identifying symbols, logos, tag lines, domain names, URLs, or any other indicia of origin relating to, owned by, used, or associated with YDL or its Affiliates or the goodwill thereof. Other Marks of YDL or its Affiliates may be identified in the Branding Standards.
2.14 “Order” means any order submitted by Retailer to YDL for Products, including, without limitation, any modification of such Order agreed to by Retailer and YDL in writing. Any reference to an Order refers to the Order(s) applicable to the Product ordered by Retailer.
2.15 “Order Confirmation” means YDL’s written acknowledgement of receipt and acceptance of each Order.
2.16 “Person” includes natural persons, partnerships, firms, and other unincorporated bodies, corporate bodies, and all other legal persons however constituted.
2.17 “Price” means the then-current wholesale unit price for each Product as set forth by YDL.
2.18 “Product Specifications” means any document, instruction, or other guidance, issued by YDL, that indicates particular qualities, standards, characteristics, or specifications of a particular Product and may include, without limitation, a product description, artwork, labels, component raw material requirements or prohibitions, processing steps, process control points, packaging requirements, and shipping, handling and distribution requirements for the Product.
2.19 “Products” means the mats, towels, wheels, bags, blocks, balls, straps, bottles, and other products sold by YDL to Retailer.
2.20 “Retailer” means the Person purchasing Products from YDL.
2.21 “Shipping Point” means the shipping point to which YDL or its designee will deliver the Products as set forth in the applicable Order Confirmation or as otherwise agreed by YDL.
2.22 “Subcontractor” means any third party (including YDL’s Affiliates) that performs all or part of YDL’s obligations under these Terms and Conditions.15.1.
2.23 “Term” has the meaning assigned to it in Section 15.1.
2.24 “Work in Progress” means materials and parts used by YDL to make the Products ordered by Retailer pursuant to an Order, which are unique to the Products supplied under these Terms and Conditions and therefore unable to be used by YDL for products for YDL’s other customers.
2.25 “YDL” means Yoga Design Lab, Inc.
3.1 YDL appoints Retailer, and Retailer accepts such appointment, as a non-exclusive authorized retailer of Products during the Term as further described in these Terms and Conditions. During the Term, subject to these Terms and Conditions), Retailer may (a) purchase Products from YDL and resell such Products to Customers at Retailer’s retail stores, at Retailer’s yoga studios, through Retailer’s website(s), at events such as festivals, and via social media; (b) use YDL’s Marks only as specified in these Terms and Conditions, and (c) hold itself out as an authorized retailer of the Products.
3.2 Retailer may only use, sell, offer to sell, ship, and/or deliver Products to Customers. Retailer will not sell, offer to sell, ship, and/or deliver Products to any Customer, retailer, wholesaler, or other purchaser that Retailer knows, or has reason to suspect, intends to resell, or has in the past resold, such Products to third parties.
3.3 Retailer will not sell or offer to sell any Products via any third-party internet sales channels, including, without limitation, Amazon or eBay, without YDL’s prior written consent, which YDL may grant or withhold at its sole option.
3.4 Retailer will not solicit or engage in business or production with YDL’s suppliers for products similar or identical to YDL’s Products.
3.5 From time to time YDL may make available Products that have temporary or limited distribution. YDL will have sole discretion regarding how and where any such temporary or limited distribution products will be sold or distributed. Retailer acknowledges that it may not be among the retailers allowed to purchase and resell such Products. YDL also reserves the right to discontinue the manufacture or distribution of any or all Products at any time.
4. Product Sales and Product Specifications.
4.1 YDL will sell to Retailer the Products ordered by Retailer from YDL’s website, and accepted by YDL in accordance with the terms of these Terms and Conditions at the Prices determined by YDL in its sole discretion. The Prices may be modified from time to time by YDL in writing. Retailer shall charge Customers an amount no less than the MSRP for the applicable Product, to the extent permitted by Applicable Law, or as otherwise specified by YDL in writing.
4.2 All Products sold to Retailer hereunder will meet Product Specifications. Any modifications to the Product Specifications must be in writing and signed by the Parties; provided that if YDL determines that a change to the Product Specifications is needed to comply with Applicable Law, YDL will notify Retailer and will issue modified Product Specifications. Any outstanding Order will be fulfilled using Products satisfying the modified Product Specifications. Without limiting the foregoing, if YDL cannot obtain, produce and sell the Products to Retailer in accordance with any modified Product Specifications, then either Party may terminate these Terms and Conditions without liability to the other Party upon sixty (60) days written notice. For Products added during the Term, new Product Specifications will be established by YDL before production.
5. Advertising and Promotion; Inventory.
5.1 Retailer will fully comply with the Branding Standards. YDL may, at its sole option, amend or modify the Branding Standards from time to time, and Retailer will fully comply with any revised Branding Standards. Without limiting the foregoing, Retailer further agrees as follows:
5.1.1 Retailer will use its best efforts to promote the sale of Products to Customers at each of Retailer’s retail stores and/or yoga studios and through Retailer’s website(s).
5.1.2 Retailer will advertise, market, promote, and merchandise the Products by brand in accordance with YDL’s Branding Standards.
5.1.3 Retailer will use and display only the promotional materials, displays, merchandising, and point-of- purchase materials that YDL approves or may provide in connection with the advertising, marketing, or promotion of the Products, which displays and materials will remain the property of YDL.
5.1.4 Retailer will, at all times, comply with any minimum advertising pricing policies implemented by YDL during the Term. Subject to Applicable Law, YDL may, at its sole option, refuse to sell Products to Retailer at any time Retailer is not in full compliance with any minimum advertising pricing policies implemented by YDL.
5.1.5 Retailer will use Retailer’s best efforts to maintain an inventory of YDL’s Products sufficient to meet Customer orders, including Customer demand in response to advertising, marketing, or promotion of the Products by YDL or Retailer.
6. Order Confirmation; Changes to and Cancellation of Orders.
6.1 YDL will acknowledge receipt and acceptance of each Order. Written acceptance by YDL will be transmitted by an Order Confirmation in a reasonable period after receipt of the Order, which Order Confirmation will confirm the Product(s) and quantity.
6.2 Any changes to or cancellations of Orders that Retailer has submitted to YDL will not be binding on YDL until and unless accepted in writing by YDL. If such cancellation is without cause and the shipment of Products is already in transit to the Shipping Point, Retailer must reimburse YDL for the actual costs and expenses incurred to return the Products to YDL’s facility. Further, if the cancellation is without cause, upon receipt of documentation from YDL, Retailer will pay to YDL the costs incurred by YDL for Work in Progress that is specific to such Order(s). Regarding any Work in Progress related to a cancelled Order, YDL will either finish such Work in Progress and deliver the Products, deliver such Work in Progress, or dispose of the Work in Progress, as directed and in accordance with Retailer’s written instructions.
6.3 YDL reserves the right to cancel any Orders placed by Retailer, or to refuse or delay shipment thereof, if Retailer fails to comply with these Terms and Conditions.
7. Deliveries. Products purchased from YDL will be shipped to the Shipping Point according to DDP (Incoterms® 2010). YDL bears all risk and shipping, storage, and related costs associated with delivering the Products to Shipping Point. Title and risk of loss or damage to Products will pass to Retailer once Products are unloaded at Shipping Point. The time of delivery to the destination will be stated by YDL in the Order Confirmation according to YDL’s best estimate and will not be binding on YDL. YDL will notify Retailer as soon as possible if YDL anticipates a delivery delay. A delay in delivery to the Shipping Point will not entitle Retailer to cancel, unless delivery has not taken place within thirty (30) days from the Order Confirmation. If YDL fails to deliver Product in accordance with this Section 7, Retailer is entitled to cancel the applicable Order without liability as a result of such cancellation, provided that the subject Product has not yet been placed with a carrier for shipment to the Shipping Point. RETAILER WILL HAVE NO OTHER REMEDIES FOR BREACH AS A RESULT OF DELAY OR NON-DELIVERY OF PRODUCT AND IS NOT ENTITLED TO MAKE ANY CLAIM FOR DAMAGES, CONSEQUENTIAL LOSS OR OTHER INDIRECT LOSS DUE TO A DELAY IN THE DELIVERY OR NON- DELIVERY OF ANY PRODUCT.
8. Acceptance and Inspection of Orders. Upon receipt of Product from YDL, Retailer will promptly inspect the Product to confirm compliance with the Product Specifications. Retailer will promptly notify YDL of any shortage or failure to conform to Product Specifications, apparent defect, or other discrepancies in the Product received from YDL but in any case no later than ten (10) days after receipt, and YDL will, within ten (10) days of receipt of any such notice from Retailer, use reasonable efforts to correct such shortage, defect, or other discrepancy.
9. Prices; Taxes. Pricing terms will be determined by YDL in its sole discretion and made available to Retailer prior to Retailer’s Order of Products, quoted and payable in U.S. Dollars or other local market currency (GBP, EUR, CAD, AUD, JPY). Retailer will be liable for and pay any fees, taxes, and other charges, if any, imposed on the Products as customarily imposed. Each Party maintains responsibility for its own employment, income, property and similar taxes.
10. Invoices; Payment Terms. YDL will invoice Retailer and Retailer will pay for the Products at the point of purchase (e.g., on YDL’s website) and prior to shipment of the Products to the Shipping Point, unless the Parties otherwise agree in writing that YDL will invoice Retailer post-shipment of the Products.
11. Warranty. With respect to any Order accepted by YDL, YDL warrants that the Products will be: (1) free from material defect; (2) merchantable; and (3) free from any security interest or other claim, lien or encumbrance of any kind whatsoever against them. YDL’s sole obligation under this limited warranty is to replace and deliver the Product at YDL’s cost. Under no circumstances will damages to any Product be covered by YDL’s warranty described here that is the result of: (a) improper use, handling, or storage of the Products; or (b) any occurrence of mold including, but not limited to, the presence of “fungi” or other bacteria, whether in the building, structure or contents of any facility, caused by any event, cause or circumstance, whether occurring concurrently or sequentially, in connection with the use or failure to use HVAC and climate control technology; construction and repair of any facility; the occurrence of any flooding or water intrusion, build-up, leakage, sweating or corrosion; pollution; moisture; deferred or improper maintenance and repairs; climate changes; food and beverages; or Retailer’s action or inaction to prevent such occurrences. For the purposes of these Terms and Conditions, the occurrence of mold will not be deemed to be or otherwise constitute, a defect in the Product. The foregoing warranty is non-assignable (unless YDL expressly consents in writing); may be terminated by YDL in the event of a change of control regarding Retailer; and is of a duration of no more than one (1) year from the date of delivery of the Product to the Shipping Point. EXCEPT FOR THE ABOVE AND SUBJECT TO APPLICABLE LAW, YDL MAKES NO OTHER WARRANTY, PROMISE, OR OBLIGATION WITH RESPECT TO THE PRODUCTS. YDL DISCLAIMS ANY WARRANTY, PROMISE, OR OBLIGATION THAT THE PRODUCTS WILL BE FIT FOR ANY PARTICULAR USE OR PURPOSE, REGARDLESS OF WHETHER SUCH USE OR PURPOSE IS MADE KNOWN TO YDL OR NOT. THERE ARE NO WARRANTIES TO RETAILER THAT EXTEND BEYOND THE WARRANTIES SET FORTH IN THESE TERMS AND CONDITIONS. YDL HEREBY DISCLAIMS ALL OTHER WARRANTIES, PROMISES, AND OBLIGATIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES, PROMISES, AND OBLIGATIONS ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. Retailer will adhere to all Applicable Laws relating to the use and storage of the Products and environment of the warehouses or other storage facilities in which Products are stored. If and to the extent that these Terms and Conditions establish, with respect to the Products, warehouses and other storage facilities, environment or other matters covered in this Section 11, standards more strict than those prescribed by Applicable Law, Retailer will adhere to the stricter requirements of these Terms and Conditions.
12. YDL’s Intellectual Property. YDL will be the sole owner of all right, title and interest in and to any Intellectual Property created as a result of or related to Product Specifications and any improvements, modifications or derivative works of production and sale of the Products in compliance with the Product Specifications. YDL does not grant Retailer any ownership right with respect to any Intellectual Property created as a result of YDL’s supply of the Products to Retailer in accordance with the Product Specifications. Retailer does hereby, on behalf of itself and on behalf of its employees, without reservation, irrevocably sell, assign, transfer and convey, and will be deemed to have irrevocably sold, assigned, transferred, and conveyed to YDL, its successors, assigns and legal representatives, all right, title and interest (past, present, future, and throughout the world) in and to the Products, together with all corresponding Intellectual Property related to Product Specifications; and any and all claims, of any nature whatsoever, for past, present or future infringement or violation of such Intellectual Property. If Retailer has any rights to work product that cannot be assigned to YDL, Retailer unconditionally and irrevocably waives the enforcement of such rights, and if such rights cannot be waived, Retailer hereby grants to YDL a fully paid-up, exclusive, irrevocable, perpetual, worldwide license to display, copy, distribute, perform or use in any manner and to make derivative works of the work product. Retailer will assist YDL to register and record (as may be required by Applicable Law or as requested by YDL), and from time to time enforce, all Intellectual Property and other rights and protections relating to the work product created hereunder in any and all countries and other jurisdictions. Retailer will execute (and cause employees to execute) any documents and take any other actions reasonably necessary to effectuate the purposes of this Section 12. YDL’s Intellectual Property will not be impacted by any Event of Default or termination of these Terms and Conditions.
13.1 Retailer will have no ownership in and will refrain from making any claims or asserting any right or interest in the Marks. Retailer will have no right or authority to use, display, license, refer to, or in any way benefit from the Marks or Products in any manner, except as expressly authorized in these Terms and Conditions. Retailer will not, and YDL grants no permission for Retailer to, indicate in any manner whatsoever that Retailer or its retail stores or yoga studios are endorsed or sponsored by YDL. Notwithstanding the foregoing, YDL grants to Retailer a limited, royalty-free, non-exclusive, non-sublicensable, non-assignable, revocable license to use the Marks solely to further the advertising, promotion, marketing, and sale of the Products. Retailer may only use the Marks in strict accordance with the requirements of these Terms and Conditions and YDL’s Branding Standards.
13.2 Retailer grants to YDL a limited, royalty-free, non-exclusive, non-sublicensable, non-assignable, revocable license to use Retailer’s trade name, trademarks, and/or service marks in connection with the sale of Products.
13.3 The foregoing licenses granted in this Section 13 will terminate automatically without prior notice upon the expiration or earlier termination of these Terms and Conditions or if any Party (a) is adjudicated in any legal proceeding to be voluntarily or involuntarily bankrupt; (b) makes any assignment of assets or business for the benefit of creditors; or (c) a trustee or receiver is appointed to administer or conduct such Party’s business.
14. Confidential Information. The Confidential Information is valuable and proprietary property of YDL or its Affiliates. The disclosure of the Confidential Information to Retailer by YDL or developed by YDL or Retailer as a result of the Products supplied hereunder is induced by and in reliance on the covenants regarding confidentiality set forth in this Section 14. All Confidential Information will be subject to these Terms and Conditions. Retailer will limit its access and use of Confidential Information only to the extent required to exercise its rights or perform its obligations under these Terms and Conditions. Except as otherwise permitted in these Terms and Conditions, or in a separate writing signed by the Parties, Retailer will keep and maintain the Confidential Information in strict confidence and will not disclose any of the Confidential Information to any Person other than to bona fide employees, agents or professional advisors of Retailer who Retailer believes requires such Confidential Information on a need-to-know basis in the course of their employment or work with Retailer. If any unauthorized disclosure of the Confidential Information occurs or is suspected by Retailer, then Retailer will immediately notify YDL of the full particulars of such actual or suspected disclosure. Upon termination of these Terms and Conditions, Retailer will promptly: (a) return to YDL all Confidential Information in its possession, together with all the copies thereof and all documents based thereon; (b) cease to use, in any manner whatsoever, all of the Confidential Information; and (c) cause any employees, agents and advisors to return all Confidential Information.
15. Term; Termination.
15.1 Term. These Terms and Conditions will commence on the Effective Date and will continue in full force and effect until terminated in accordance with this Section 15 (“Term”).
15.2 Termination for Breach. If either Party breaches these Terms and Conditions (“Event of Default”), then the other Party will provide notice to the breaching Party of such default. If the breaching Party fails to cure its default within thirty (30) days following the breaching Party’s receipt of such notice from the non-breaching Party, then the non-breaching Party will have the right to terminate these Terms and Conditions immediately upon notice to the breaching Party.
15.3 Termination Upon a Force Majeure Event. If a Force Majeure Event materially and adversely affects either Party’s ability to perform its obligations under these Terms and Conditions and the Force Majeure Event continues for more than thirty (30) days, either Party may terminate these Terms and Conditions immediately upon notice to the other Party.
15.4 Termination for Convenience. Either Party may terminate these Terms and Conditions without cause upon sixty (60) days’ written notice to the other Party.
15.5 Obligations Upon Termination. Upon termination of these Terms and Conditions, Retailer will cease holding itself out in any way as an “authorized retailer” of YDL; will cease to use the Marks; will return, at Retailer’s expense, all Confidential Information as prescribed by YDL, and will promptly remove from Retailer’s stores or studios all displays, point-of-purchase materials, promotional materials, interior or exterior signage, Confidential Information, and any other materials bearing the Marks, images, or trade dress in the manner designated or prescribed by YDL. Retailer will continue to handle any Customer returns and warranty claims in accordance with Sections 11 and 17.
16. Subcontractors. YDL may use Subcontractors to provide any part of the Products or related services or performance of YDL under these Terms and Conditions.
17. Customer Returns. Retailer will handle all customer returns of damaged Products in accordance with YDL’s Branding Standards, YDL’s customer return policy, or as otherwise designated or prescribed by YDL in writing. Notwithstanding the foregoing, YDL will be responsible for handling warranty returns regarding Products that are YDL-branded products, and Retailer will fully cooperate with YDL in connection with warranty returns of YDL-branded products at the time and in the manner directed by YDL.
18. Indemnification; Product Recall.
18.1 YDL will indemnify, defend and hold harmless Retailer from all losses and expenses incurred in connection with any third-party claim that arises out of or is based upon any of the following: (a) any actual defect in the Products supplied by YDL to the extent the Product was handled and stored by Retailer in full compliance with these Terms and Conditions and YDL’s instructions regarding such handling and storage of Product; (b) YDL’s breach of its warranty described in Section 11; or (c) infringement of the Products upon any third party’s intellectual property rights.
18.2 Retailer will indemnify, defend, and hold harmless YDL from all losses and expenses incurred in connection with any third-party claim that arises out of or is based upon any of the following: (a) any unauthorized use of the Marks or other Intellectual Property in connection with the advertising, marketing, promotion, offer, sale, handling, storage, display, assembly, transportation, shipping, or delivery of the Products; (b) Retailer’s failure to comply with any of YDL’s warranties or the terms of any warranty program; or (C) Retailer’s negligent acts or omissions or other failure to comply with these Terms and Conditions, and any Branding Standards, or Applicable Law.
18.3 IF RETAILER, YDL, OR ANY GOVERNMENTAL AGENCY HAVING JURISDICTION IDENTIFIES A DEFECTIVE PRODUCT, WHETHER BASED ON INFORMATION RECEIVED THROUGH CUSTOMER COMPLAINTS, WARRANTY RETURNS, INSURANCE CLAIMS OR PAYMENTS, PRODUCT LIABILITY CLAIMS OR LAWSUITS, REPORTS OF PRODUCTION PROBLEMS OR PRODUCT TESTING, YDL WILL, AT ITS EXPENSE: (1) IMPLEMENT A CORRECTIVE ACTION PLAN THAT COMPLIES WITH APPLICABLE LAW AND IS ACCEPTABLE TO YDL; AND (2) NOTIFY ANY REQUIRED GOVERNMENTAL AGENCY OR AUTHORITY IN COMPLIANCE WITH APPLICABLE LAW AND SUBMIT ALL REQUIRED REPORTS IN COMPLIANCE WITH APPLICABLE LAW. RETAILER WILL FULLY COOPERATE WITH YDL WITH RESPECT TO ANY REPORTS OR CORRECTIVE ACTION PLAN UNDER THIS SECTION 18.3.
19. Limitation of Liability.
19.1 SUBJECT TO APPLICABLE LAW IN NO EVENT WILL YDL BE LIABLE TO RETAILER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT YDL WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
19.2 IN NO EVENT WILL YDL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT PAID BY RETAILER FOR PRODUCTS IN THE TWELVE (12) MONTH PERIOD (OR LESSER PERIOD) IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
20. Insurance. During the Term and for a reasonable time thereafter related to the normal lifetime of the Products (but not less than 5 years) Retailer will, at its own expense and at all times, carry insurance of the types, in the amounts and with the coverages customary for the Products. The policies must contain a standard separation of insureds provision. The relevant policies must also be endorsed to provide that coverage for YDL will be primary to and not contributory to any policies carried by YDL. Retailer must give thirty (30) days’ prior written notice to YDL of any material changes in or termination of such policies.
21. Anti-Terrorism and Anti-Bribery Laws. Retailer represents and warrants that neither Retailer nor any of its parents, Affiliates, representatives, agents or employees: (i) is identified, either by name or an alias, pseudonym or nickname, on the lists of “Specially Designated Nationals” or “Blocked Persons” maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (texts currently available at www.treas.gov/offices/enforcement/ofac/); (ii) is directly or indirectly owned or controlled by the government of any country that is subject to a United States embargo; (iii) acts, and none of them will act, directly or indirectly on behalf of the government of any country that is subject to a United States embargo; or (iv) has violated, and none of them will violate, any law prohibiting corrupt business practices, money laundering or the aid or support of persons who conspire to commit acts of terror against any person or government, including acts prohibited by the USA Patriot Act (text currently available at http://www.epic.org/privacy/terrorism/hr3162.html), U.S. Executive Order 13224 (text currently at http://www.state.gov/j/ct/rls/other/des/122570.htm), or any similar law. Retailer further represents and warrants that Retailer and its representatives, agents and employees are, and will remain, in full compliance with Applicable Law, including but not limited to laws prohibiting unfair, fraudulent or corrupt business practices in the performance of Retailer’s obligations under these Terms and Conditions and related activities, including but not limited to the making of any expenditures other than for lawful purposes or directly or indirectly offering, giving, promising to give or authorizing the payment or the gift of any money, or anything of value, to any Person, while knowing or having reason to know that all or a portion of such money or thing of value will be given or promised, directly or indirectly, to any government official, official of an international organization, officer or employee of a foreign government or anyone acting in an official capacity for a foreign government, for the purpose of (a) influencing any action, inaction or decision of such official in a manner contrary to his or her position or creating an improper advantage; or (b) inducing such official to influence any government or instrumentality thereof to effect or influence any act or decision of such government or instrumentality. Retailer further represents and warrants that no government official, official of an international organization, political party or official thereof, or candidate has any direct or indirect ownership or investment interest in the revenues or profits of Retailer. Retailer understands, and has been advised by its legal counsel regarding, the requirements of all Applicable Laws, including those referred to above, the United States Foreign Corrupt Practices Act (text currently available at http://www.justice.gov/criminal/fraud/fcpa/), the UK Bribery Act or any other local anti-corruption practices laws. Retailer hereby acknowledges the importance to the Parties’ relationship of its compliance with the requirements of this Section 21, including any applicable auditing requirements and any requirement to report or provide access to information to YDL or any government that is made part of any Applicable Law. The foregoing constitutes continuing representations and warranties, and Retailer will immediately notify YDL in writing of the occurrence of any event or the development of any circumstance that might render any of the foregoing representations and warranties false, inaccurate or misleading.
22. Force Majeure. Neither Party will be held responsible for failure to perform its obligations under these Terms and Conditions due to a Force Majeure Event to the extent and for the length of time that performance is rendered impossible or commercially impractical; provided, however, upon the occurrence of a Force Majeure Event, the Party that is unable to perform its obligations hereunder will promptly notify the other Party in writing of the existence, nature, and expected duration of the Force Majeure Event and use all reasonable efforts to overcome the effects of the Force Majeure Event and resume performance as soon as reasonably practicable. If the Force Majeure Event continues beyond thirty (30) days, either Party may terminate these Terms and Conditions and cancel any open Order(s).
23. Independent Contractor. Retailer is an independent contractor and not an employee, partner or agent of YDL. Neither Party will have authority to commit or create any liability on the part of the other in any manner whatsoever.
24. Third-Party Beneficiaries. These Terms and Conditions are solely for the benefit of the Parties and will not confer upon third parties any remedy, claims, actions or other right.
25. Severability. If any one or more of the provisions contained in these Terms and Conditions are deemed illegal or unenforceable, such provision: (a) will be construed in a manner to enable it to be enforced to the extent permitted by Applicable Law; and (b) will not affect the validity and enforceability of any legal and enforceable provision hereof.
26. Assignment. YDL may assign its rights and interest under these Terms and Conditions to any third party, including, without limitation, YDL’s Affiliate, without Retailer’s consent. Retailer will not assign its rights under these Terms and Conditions to any third party, including Retailer’s Affiliate, without YDL’s prior written consent. If Retailer merges with, acquires or is acquired by a third party, Retailer will promptly provide notice to YDL of such merger or acquisition and YDL will have the option to terminate these Terms and Conditions and/or cancel any open Order(s) without liability to Retailer.
27. Dispute Resolution.
27.1 Governing Law and Venue. The laws of the State of Delaware (without giving effect to any conflict of laws) will govern the Parties’ relationship and the interpretation and enforcement of these Terms and Conditions. The activities contemplated under these Terms and Conditions occur in Wilmington, Delaware. With respect to all suits, actions or other legal proceedings under these Terms and Conditions, each of the Parties submits to the exclusive jurisdiction of the laws and courts of Wilmington, Delaware. Retailer agrees that such courts are a reasonable venue and waives and agrees not to assert by way of motion, defense or otherwise, any claims that it is not subject to the jurisdiction of such courts, that such suit is brought in an inconvenient forum, or that the venue of the suit is improper.
27.2 Limitation of Actions. Any claims between the Parties must be commenced within two (2) years from the date on which the Party asserting the claim knew or should have known of the facts giving rise to the claim, or such claim will be barred.
27.3 JURY TRIAL WAIVER. Any legal action in connection with these Terms and Conditions will be tried to the Court sitting without a jury, and the Parties waive any right to have any action tried by jury.
28. Freedom of Action. These Terms and Conditions will not limit YDL’s right to develop, procure, market, sell, or distribute any products or services whatsoever through any channel of distribution or to any customer or through any provider or supplier, now or in the future, including any products which are the same as or which may be competitive with those Products which are the subject of these Terms and Conditions. YDL retains the right to sell or distribute the Products, and any other products or services, to any Person, including, without limitation, to Retailer’s competitors.
29. Survival. All terms which by their nature survive termination of these Terms and Conditions will survive such termination, including, without limitation: Section 11 (Warranty); Section 12 (YDL’s Intellectual Property); Section 13 (Marks); Section 14 (Confidential Information); Section 15 (Term; Termination) Section 17 (Customer Returns); Section 18 (Indemnification; Product Recall); Section 19 (Limitation of Liability); and Section 27 (Dispute Resolution).
30. Waiver. The failure of either Party at any time to require performance by the other Party of any of the provisions herein will not operate as a waiver of the right of a Party to require strict performance hereof at a later time.
31. Notices. Except as otherwise provided herein, all notices, requests, consents, and approvals under these Terms and Conditions will be in writing and will be deemed to have been properly given if and when personally delivered or 36 hours after being sent via certified mail, postage prepaid, return receipt requested, or 36 hours after being sent by Federal Express or other overnight courier service providing delivery confirmation, to the address of the Party as set forth in the most recent Order or at such other address as any of the Parties hereto from time to time may have designated by written notice to the other Party.
32. Entire Agreement. Unless expressly superseded in writing by another agreement between Retailer and YDL, these Terms and Conditions constitute the full, complete, sole, exclusive, and entire agreement and understanding of the Parties with respect to the subject matter hereof, and supersede any other agreement, understanding, or writing between the Parties, of whatever nature and form, written or oral, whether prior or otherwise contemporaneously executed, concerning the subject matter hereof, including, but not limited to, any agreement between Retailer and YDL’s predecessor, Yoga Design Lab, which is now an Affiliate of YDL. Further, no such prior or contemporaneous agreement, understanding, or writing will be submitted, considered, or used to facilitate the interpretation, understanding, or modification of these Terms and Conditions. In the case of any inconsistency or conflict between these Terms and Conditions and any Order submitted by Retailer to YDL, these Terms and Conditions will prevail over such Order and will govern the sales and deliveries of Products covered by such Order.
33. Consent to Electronic Communication. By purchasing product, Retailer is deemed to have executed these Terms and Conditions electronically. Retailer consents to electronically receive and access via email notices related to the Orders.