"Seller" means Ella+Mila, Inc. "Buyer" means the customer who has placed an order for Products from Seller. The goods covered by Buyer's purchase order are referred to as "Products".
Acceptance/No Other Terms and Conditions
Seller's acceptance of Buyer's purchase order is expressly limited to and made conditional upon Buyer's acceptance of the terms and conditions contained herein and in any quotation (if any) previously furnished to Buyer by Seller. Any other terms and conditions which are in addition to or different from those contained herein, which are not separately agreed to in writing (except additional provisions specifying quantity, description of Products and shipping instructions), are deemed material and are hereby objected to and rejected by Seller. Buyer shall be deemed to have agreed to all terms and conditions herein if any portion of the Products are accepted by Buyer. No modifications to these Terms and Conditions shall be effected by Seller's receipt or acknowledgement of a written purchase order from Buyer containing additional or different terms or conditions. These Terms and Conditions constitute the entire agreement of the parties with respect to the subject matter hereof.
Warranty/Limitation of Liability
Seller warrants that at the time of shipment, Products covered by Buyer's purchase order shall meet Seller's specifications and shall be free of all defects in design, workmanship or material. The above warranties are given in lieu of all of the warranties, either express or implied, and all other warranties are hereby disclaimed, including without limitation the implied warranties of merchantability and fitness for a particular purpose. In the event that the Products do not meet the foregoing warranties, or in the event that the Products are damaged during transit, Seller shall, at its option, replace the Products free of charge or refund the purchase price paid for those Products by Buyer. Such replacement or refund shall constitute Buyer's sole remedy for breach of the foregoing warranties and Seller shall have no additional liability. Seller's liability for damages under Buyer's purchase order or otherwise shall in no event exceed that part of the purchase price applicable to the Product with respect to which such damages are claimed. In no event shall the Seller be liable for any incidental, consequential, special, punitive or indirect damages attributable to the sale of the Products under this Agreement or any other matter arising out of or in connection with this Agreement. Buyer must notify Seller within seven (7) days following receipt of the Products if any Product is damaged or if a shortage occurs. Seller will not be responsible for any claim for damage or shortage not reported within such seven (7) day period.
Returns of Products
Buyer has ten (10) days following receipt of the Products to return any unwanted Products. Seller will not accept any returns after ten (10) days of sale. All returned Products must be packaged in Seller's original containers and must contain all original packaging and order form. Unless otherwise stated, specials, promotions or any products that are purchased using an incentive or coupon code are not eligible for a return or exchange. Customers that choose to exchange or return merchandise are responsible for the shipping cost of returned Product and the shipping cost of new Product, unless Ella+Mila shipped merchandise other than the merchandise stated on the original order form.
Unless otherwise specifically agreed upon in writing by Seller, all payments for Products shall be made in United States Dollars. Where Seller is extending credit to Buyer, shipment and delivery of Products shall at all times be subject to the approval of Seller's credit department. Should Seller at any time become concerned about Buyer's credit worthiness, Seller may change the terms of payment and/or require payment of cash in advance as a condition of shipment.
Seller shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any event or contingency beyond the control of either Seller or the suppliers to Seller, including but not limited to failure or delay in transportation; act of God, fire, explosion, flood, hurricanes or other unusually severe weather; strikes, walkouts or other disputes with workers; acts of any government or agency or subdivision thereof or judicial action; shortage of labor, fuel or raw materials; or any other event of similar or dissimilar nature that is not in Seller's reasonable control. In the event that any event of force majeure occurs, Seller may allocate available production and deliveries among Seller's customers in any manner that Seller deems fit. Buyer agrees to accept, as full and complete performance by Seller, deliveries in accordance with such determination as Seller may make. In no event shall Seller be required to purchase Products from third parties, nor will Seller be liable for any cost increases suffered by Buyer in purchasing Products from a third party.
Risk of Loss
Except where Seller arranges freight with a carrier of its own choosing, title to and risk of loss of all Products sold under Buyer's purchase order and these Terms and Conditions pass to Buyer upon Seller's delivery to a carrier at the point of shipment, whether or not Seller pays all or any part of the freight. Where Seller arranges freight with a carrier of its own choosing, title to and risk of loss of all Products sold under Buyer's purchase order and these Terms and Conditions shall pass through Buyer upon delivery by the carrier to Buyer's designated location.
Buyer acknowledges that Seller is selling the Products to Buyer for Buyer's personal use or for distribution through Seller's authorized channels of distribution. Buyer agrees that it shall not divert Products to other resellers that are not authorized distribution channels of Seller, including but not limited to mass retailers. In the event that Seller determines, in its discretion, that Buyer has diverted Product to non-authorized channels of distribution, Seller shall have the right to refuse to make further deliveries to Buyer, in addition to all other remedies available to Seller at law or in equity.
Minimum Resale Prices
Buyer covenants and agrees that it shall not resell, list or advertise the Products at prices lower than the Minimum Resale Prices for the Products established by Seller at the time of sale. If Seller determines, in its discretion, that Buyer has violated the immediately preceding sentence, Seller shall have the right, in addition to all other rights available to it at law or in equity, to discontinue making further deliveries of Products to Buyer.
Use of Seller's Trademarks and Website Images
It is understood and agreed that all trademarks, trade names, trade dress and other advertising and promotional materials used or developed by Seller in connection with the Products (including without limitation all text, images and other information found on Seller's website) shall at all times remain the sole and exclusive property Seller. All use of such materials shall inure to the benefit of Seller. Buyer shall not make any use of such materials for any purpose, including Buyer's efforts to resell the Products within Seller's authorized channels of distribution, except with the prior written approval of Seller. All use of text, images and other information found on Seller's website shall also be subject to the terms and conditions regarding use thereof found on Seller's website.
(a) Assignment. Buyer's purchase order and its rights and obligations thereunder may not be assigned by Buyer without the prior written consent of Seller.
(b) Governing Law. Buyer's purchase order and these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California, without regard to its choice of laws or conflicts of laws provisions.
(c) Waiver. No waiver by Seller of any of the terms of Buyer's purchase order and these Terms and Conditions shall operate to relieve Buyer from responsibility for any prior or subsequent breach of the terms of Buyer's purchase order and these Terms and Conditions. Failure by Seller at any time and from time-to-time to enforce any term or condition of Buyer's purchase order or these Terms and Conditions shall not be deemed to be a waiver thereof on the same or on subsequent occasions, nor a waiver of any other term or condition of Buyer's purchase order or these Terms and Conditions.