Partner Retail Terms & Conditions
STANDARD TERMS AND CONDITIONS OF SALES
(Order Acknowledgement/Invoice)
1. Acceptance
These Conditions (as defined below) are between Turtle Wax, Inc. ("Seller") and the entity set out on the purchase order to which these Conditions relate ("Buyer"). The Seller's acceptance of the Buyer’s purchase order shall form a binding agreement between the Seller and the Buyer which shall incorporate these Conditions ("Order"). Each Order shall form a separate contract between the Seller and the Buyer. Seller may accept or reject any Order for any reason or no reason. The Seller's agreement to supply goods to the Buyer is strictly conditional on such sale being subject to these terms and conditions of sale ("Conditions"), which are in lieu of any additional or different terms contained in the Buyer’s purchase order or other document or communication pertaining to the Buyer’s order or the goods, and which the Seller may change from time to time subject to giving prior written notice. The Buyer’s assent to the Conditions contained in this document shall be conclusively presumed from the Buyer’s acceptance of all or any part of the goods on collection or delivery as applicable or from payment by the Buyer for all or any part of the goods. None of these Conditions may be added to, modified, superseded or otherwise altered, except by a written instrument signed by an authorized executive of the Seller. Failure of the Seller to object to any terms or conditions which may be contained in any document or form of the Buyer shall not be construed as a waiver of these Conditions, nor as an acceptance of any such terms and conditions.
2. Payment Terms
The price of the goods shall be as set out in the price list (which may be updated at the Seller’s discretion subject to the Seller providing the Buyer with reasonable advanced written notice), or if no price is stated, the price shall be calculated in accordance with the Seller's price list as applicable at the date of shipment or collection as applicable. Prices may include the cost of including standard overages to transport full pallets or containers as notified to the Buyer during the order confirmation process. Prices are ex-works Seller’s distribution center unless otherwise agreed to in writing between the parties. Full payment must be received in cleared funds within thirty (30) days from the date of the Seller's invoice. Any payments not made within 30 days of the date of invoice shall accrue along with an interest due thereon calculated at 1.5%/month or the maximum allowed by applicable country or state law (compounded), on the unpaid balance of any amount then past due. Such interest shall accrue from the due date until actual payment, whether before or after judgment. If any invoice remains outstanding after thirty (30) days, then the Seller may bring proceedings for recovery of such invoice together with all other unpaid invoices issued by the Seller at or prior to the date of any proceedings.
3. Taxes
In addition to paying the quoted purchase price, the Buyer is solely liable for all taxes, excises, tariffs, and levies in the Seller’s permitted territory which the Seller or Buyer may be required to pay under any applicable laws, upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption, or transportation of any of the goods, and the Buyer agrees to pay the amount thereof on the same terms as it shall pay the quoted purchase price.
4. Warranty
The Seller warrants that, on collection or delivery as applicable and for a period of 30 days thereafter, the goods supplied under this Order (the “goods”) shall conform to the product specification and Material Safety Data Sheet, both of which are available upon request. The foregoing warranty is the sole warranty provided by the Seller with respect to the goods. All other terms, warranties and conditions, whether express or implied, are, to the fullest extent permitted by law, hereby excluded. The Seller's liability for breach of the warranty hereunder is limited solely to the replacement of the defective goods, which shall be returned to the Seller, transport charges prepaid by the Buyer. The foregoing warranty shall apply to any replacement goods for any unexpired element of the original warranty period. The foregoing warranty is strictly subject to the Buyer promptly giving the Seller notice of a warranty claim (such notice to be within thirty (30) days from date of collection or delivery as applicable) and any failure by the Buyer to do so shall constitute a waiver by the Buyer of all claims in respect to any such warranty claim relating to such goods. The foregoing shall constitute the sole remedy of the Buyer and the sole liability of the Seller under this warranty. The Seller shall not be liable for the goods' failure to comply with the foregoing warranty where: (1) any defect arises from the Buyer's failure to follow the Seller's instructions or guidance for storage and handling or, where no such instructions or guidance are provided, good industry practice for the storage and handling of such goods; (2) the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage conditions; or (3) the goods differ from their description as a result of changes made to ensure they comply with applicable laws. For the avoidance of doubt, the Seller shall, prior to collection or delivery as applicable, be entitled to change any goods or the specification thereof to comply with any applicable laws.
Any descriptions, drawings, advertising or samples of the goods, including any illustrations, pictures or descriptions contained in the Seller's marketing materials (including literature and websites) shall not have any contractual force.
5. Limitation of Liability
Nothing in these Conditions shall limit or exclude the Seller's liability for (1) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (2) fraud or fraudulent misrepresentation; or (3) any matter in respect of which it would be unlawful for the Seller to exclude or restrict its liability.
Subject to the preceding and following paragraphs of this clause 5, the Seller's liability to the Buyer in respect of this Order, whether in contract, in tort, under any warranty, in negligence or otherwise, shall not exceed in any case the return of the amount of the purchase price paid by the Buyer in respect of the Order.
Subject to the first paragraph of this clause 5, under no circumstances shall the Seller be liable to the Buyer under or relating to the Order, whether in contract, in tort, under any warranty, in negligence or otherwise, for: (1) any special damages; (2) any indirect or consequential loss or damages; (3) any loss of profit (whether direct or indirect); (4) any loss of revenue; (5) loss of customers or customer; or (6) loss of goodwill.
The price stated for the goods is consideration for limiting the Seller's liability and the pricing set by the Seller reflects the level of risk it assumes under these Conditions.
No action, regardless of form, arising out of the Order may be brought by the Buyer more than one (1) year after the date of collection or delivery of the goods as applicable. Without limitation of the foregoing, in no event will the Seller be responsible or liable for (a) penalties or penalty clauses of any description, or (b) indemnification of the Buyer or others for costs, damages or expenses arising out of or related to the goods.
6. Claims
Claims by the Buyer for shortages, overages, or errors must be made within ten (10) days after the collection or delivery of the goods as applicable. If no such claims are made within this period, the Buyer shall be deemed to have accepted that the correct quantity of goods was collected or delivered. Goods are sold subject to the standard manufacturing practices of the Seller's suppliers. Goods purchased based on weight are subject to customary quantity variations recognized by practice in the industry.
7. Returns
No goods shall be returned for credit without first obtaining written consent from an executive officer of the Seller and a Return of Goods Authorization (RGA). Subject to clause 11, the Order is non-cancellable by the Buyer. Any returns approved by an executive officer of the Seller and accompanied by an RGA shall be at the entire cost of the Buyer including freight charges on a full indemnity basis to the Seller (unless otherwise approved by the Seller).
8. Shipment
Terms are as specified on the invoice. Scheduled dates of collection or delivery as applicable are determined from the date of the Seller’s acceptance of any order or orders placed by the Buyer and are estimates of approximate dates of collection or delivery, not a guarantee of a particular date of collection or delivery.
The Seller shall not be liable for any damages caused by failure or delay in collection or delivery of the goods, nor for any breach of these Conditions nor any delay in performing its obligations hereunder, if such failure or delay results from any war, embargo, riot, fire, flood, drought, earthquake, hurricane, monsoon, explosion, natural disaster, severe weather event, accident, mill condition, strike or other labor difficulty, an act of the Buyer or its representatives, an act of terrorism, civil unrest, embargo, sanctions, an act of God, epidemics, an act of a governmental authority (such as expropriation, condemnation, and changes in laws and regulations), transportation shortage or failure, inability to obtain sufficient fuel, labor, materials or manufacturing facilities, a failure or non-performance by any supplier to or subcontractor of the Seller, or any other circumstance beyond the reasonable control of the Seller ("Force Majeure Event"). The Seller will provide timely notice of the anticipated consequences and duration of the Force Majeure Event and will take reasonable steps to avoid or mitigate the consequences of the Force Majeure Event. The time for the Seller to perform its obligations is abated for the duration of the Force Majeure Event. If the Force Majeure Event extends over a period of ninety (90) days or more, either party may, but is not obligated to terminate any agreement between the Seller and the Buyer to purchase goods with immediate effect upon providing written notice to the other party. Further the Seller shall be under no liability for failure to
supply any Product if to do so would or, in its reasonable opinion, may result in the Intellectual Property Rights of any third party being infringed.
The Seller shall have no liability for any failure to make the goods available for collection or delivery as applicable including without prejudice to the generality of the foregoing to the extent that such failure is caused by a Force Majeure Event or the Buyer's failure to provide the Seller with adequate instructions or any other instructions that are relevant to the supply of the goods.
The Seller may make the Order available for collection or delivery in installments which shall be invoiced and paid for separately. Any delay in collection or delivery as applicable or defect in an installment shall not entitle the Buyer to cancel any other installment.
If the Buyer fails to take delivery of or collect the goods as applicable on the date on which the Seller notifies the Buyer that the goods are ready for collection or delivery, then the Seller shall store the goods until collection or delivery takes place and charge the Buyer for all related costs and expenses (including insurance). If five (5) business days after the day on which the Seller notified the Buyer that the goods were ready for collection or delivery as applicable the Buyer has not taken or accepted them, the Seller may resell or otherwise dispose of part or all the goods and, after deducting reasonable storage and selling costs, charge the Buyer for any shortfall below the price of the goods.
The Buyer agrees to be responsible for being knowledgeable as to all laws, regulations, and requirements within its permitted sales territory applicable to the goods. The Buyer acknowledges that the goods may be subject to export controls and sanctions under the United States Export Administration Regulations or regulations of the United States Office of Foreign Assets Controls (“OFAC”).
The Buyer agrees it will not in any form knowingly export, re-export, resell, ship or divert or cause to be exported, reexported, resold, shipped or diverted, any goods to any country, end-use, or end-user including, without limitation, (1) any person, entity, organization or other party identified on the United States Department of Commerce’s Denied Persons or Entity List, the United States Department of Treasury’s Specially Designated Nationals or Blocked Persons List, or the Department of State’s Debarred Parties List, as published and revised from time to time, and (2) any end-use involving
nuclear applications, chemical/biological weapons or missile, rocket systems or unmanned air vehicle applications.
Additionally, the Buyer agrees to abide by OFAC’s regulations on U.S. trade sanctions and embargoes with respect to the goods, as advised by Seller from time to time. OFAC sanctioned and embargoed countries and related regulations are referenced at http://www.treas.gov/offices/enforcement/ofac/programs/index.shtml.
The Buyer must ensure that the goods it sells comply with any local regulatory and registration obligations of the permitted territory where it offers the goods for sale.
9. Authorized Seller Program and Other Policies
Buyer agrees to comply with Seller’s Authorized Seller Program policies, as may be in effect from time to time and as applicable to Buyer. Seller may issue other policies from time to time related to the promotion, handling, or sale of the Products, and Buyer agrees to comply with such policies. Notwithstanding the foregoing, and for avoidance of doubt, any policy identified by Seller as a “unilateral” policy, including any unilateral pricing policy, shall not be included in this requirement. Seller does not seek and will not accept any agreement or assurance of compliance by Buyer with respect to any unilateral policy.
In addition to the remedies set out in clause 17 below, failure to comply with this clause 9 shall entitle Seller to, at its sole discretion, withdraw any discounts, rebates, support or other benefits that Buyer may be entitled to receive, or to withhold any outstanding shipments of the goods to the Buyer.
10. Risk and Retention of Title
Shipments, delivery, and performance of work by the Seller shall always be subject to the approval of and requirements of the credit department of the Seller, including the requirement that the Buyer pay all or part of the purchase price in advance.
The Buyer shall assume all risk of loss or damage upon the relevant carrier taking possession of the goods from the Seller. The Buyer shall not remove or obscure any identifying marks or notices on the goods and shall ensure that they are identifiable as being supplied by the Seller. The Buyer shall insure the goods against all applicable risks. The Buyer shall not sell the goods other than in the ordinary course of its business, and in compliance with Seller’s Authorized Seller Program policies. The Buyer shall provide all such information regarding the goods as the Seller reasonably requires. If the Buyer sells the goods (or any part of them) in the ordinary course of its business before the Buyer has made payment for those goods, the Buyer shall sell such goods as principal and not as the Seller's agent. The Seller reserves the right to repossess any goods in which the Seller retains title without notice if the Seller has reasonable cause to suspect that the Buyer may be unable to meet its obligations under the Conditions or if the Buyer suffers an Insolvency Event. The Buyer irrevocably authorizes the Seller to enter any premises where the goods are stored to repossess the goods in which the Seller retains title and/or to enter any premises during business hours to inspect the goods to ensure compliance with these Conditions. The Buyer will reimburse the Seller in full on an indemnity basis in respect of all costs of whatever nature incurred by the Seller to repossess all such goods.
The Buyer's right to possession of the goods (including its right to sell the goods in the ordinary course of its business as authorized by Seller) shall terminate and the Seller shall be entitled to terminate the Order immediately, or to suspend collection or delivery of the goods as applicable, by giving the Buyer written notice if:
A. The Buyer commits or permits any breach of these Conditions, including any Authorized Seller Program policy or other applicable policy issued by Seller;
B. The Buyer fails to pay any amount due to the Seller within fourteen (14) days of the due date for payment;
C. The Buyer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;
D. The Buyer commences negotiations with all or any class of its creditors;
E. A petition is filed, a notice is given, a resolution is passed, or an order is made, for or relating to the winding up of the Buyer;
F. A person becomes entitled to appoint a receiver over all or any of the assets of the Buyer or a receiver is appointed over all or any of the assets of the Buyer;
G. A creditor or encumbrancer of the Buyer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Buyer's assets and such attachment or process is not discharged within fourteen (14) days;
H. Any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses C to G above;
I. The Buyer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Buyer, notice of intention to appoint an administrator is given by the Buyer or any of its directors, a resolution is passed or petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer;
J. The Buyer's financial position is such as to justify the Seller's reasonable opinion that the Buyer's ability to fulfil its obligations under the Order has been placed in jeopardy; or
K. The Buyer suspends or threatens to suspend, ceases or threatens to cease to continue all or a substantial part of its business.
(The events listed in paragraphs B to K above shall together be referred to as "Insolvency Events.")
On termination of the Order for any reason, the Buyer shall immediately pay any unpaid invoices of the Seller and any accrued interest. Termination of the Order shall not affect the rights and remedies of the Buyer and the Seller which have accrued as at the date of termination. Any provision of these Conditions which are expressly or impliedly intended to come into or continue in force after termination shall remain in full force and effect.
The Buyer shall be liable for the Seller’s expenses incurred in exercising any remedies available to it, including reasonable legal fees and expenses.
11. Cancellation
Orders accepted by the Seller are subject to cancellation by the Buyer only upon the express prior written consent of the Seller. Upon such cancellation and consent, the Seller shall cease work and hold for the Buyer all completed and partially completed articles and work in progress and the Buyer shall pay the Seller: (1) for all work and materials that have been committed to and/or identified to the Buyer’s order; and (2) a cancellation charge as prescribed by the Seller, in addition to a reasonable profit to the Seller on the entire contract. Orders that have shipped to the Buyer may not be cancelled.
12. Indemnification
In addition to the foregoing, the Buyer agrees to indemnify and hold the Seller harmless from any claims, demand, liabilities, costs, expenses or judgements arising in whole or in part, directly or indirectly, out of the negligence, lack of care or breach of these Conditions by the Buyer or the Buyer’s customers, agents, employees or invitees involved in the receipt, use and/or resale of the goods supplied by the Seller. This indemnification shall include all costs, legal fees and other expenses paid or incurred by or imposed upon the Seller relating to the defense of any such claim.
13. Governing Law
The Order shall be deemed to have been made in the United States of America. The parties agree that the validity, interpretation and performance of the Order and any dispute or claim (including non-contractual claims) arising out of or relating to the Order shall be governed by the laws of the United States of America and the State of Illinois without regard to principles of conflicts of laws. The Buyer and the Seller hereby submit to the exclusive jurisdiction of the Courts of the State of Illinois for the resolution of any disputes or claims (including non-contractual claims) arising out of or relating to the Order. This shall be the sole and exclusive jurisdiction for adjudication of any rights and liabilities hereunder.
14. Delay
If the Buyer requests deferral of any collection or delivery as applicable, the Seller’s agreement to defer such collection or delivery shall not excuse the Buyer from its obligation to pay for the goods at the same times and in the same quantities as the original collection or delivery schedule, including interest due pursuant to these Conditions. In addition to adhering to the original payment schedule, the Buyer shall pay such storage charges as the Seller may assess for storing the goods awaiting such collection or delivery. If the Buyer requests deferral prior to commencement of production (if applicable), the Seller may require progress payments relating to expenses for materials and services incurred by the Seller in anticipation of production.
15. Intellectual Property
For the purpose of this contract, “Intellectual Property Rights” shall mean patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of confidential information (including know how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
All Intellectual Property Rights and all other rights in the goods shall remain with and belong to the originator of any such Intellectual Property Rights and the Buyer agrees that it will not take any actions, steps or do anything which would be a breach of the Seller’s Intellectual Property Rights. Nothing in these Conditions is intended to transfer to the Buyer any Intellectual Property Rights. The Buyer shall use the Seller’s trademarks consistently in accordance with the published Brand Identity Guidelines as they may be updated from time to time. The Buyer shall not attempt to register, as a trademark, service mark, domain name or social media account name, any of the Seller’s trademarks or any trademarks, service marks, domain names or social media account names confusingly similar to the Seller’s trademarks. Upon request by the Seller, it will immediately cease and desist from all use of the Seller’s trademarks (including those which form part of any Top-Level Domain Name), except as may be otherwise permitted in writing by the Seller.
16. Confidentiality
Each party undertakes that it shall not for a period of three (3) years after the date of this Order, disclose to any person or entity any confidential information concerning the business, affairs, customers, clients, pricing or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted as follows. Each party may disclose the other party's confidential information: (1) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or conducting its obligations under or relating to the Order. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause; and (2) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or relating to this agreement.
17. Remedies
The remedies available to the parties under these Conditions shall be without prejudice to any other rights, either under common law or under statute, which either may have against the other.
If a dispute arises out of or relating to the Order or the performance, validity or enforceability of it ("Dispute") then the parties shall follow the procedure set out in this clause. Either party shall give to the other written notice of the Dispute, within five (5) business days of the Dispute arising, setting out its nature and full particulars ("Dispute Notice"), together with relevant supporting documents. On service of the Dispute Notice, the contract managers or equivalent of each party shall attempt, in good faith, to resolve the Dispute. If the contract managers are for any reason unable to resolve the Dispute within five (5) business days of service of the Dispute Notice, the Dispute shall be immediately referred to the Managing Director or equivalent of the Buyer and of the Seller who shall attempt in good faith to resolve it and, if the Managing Director or equivalent of the Seller and the Buyer are for any reason unable to resolve the Dispute within five (5) business days of it being referred to them, the parties will attempt to settle the Dispute by mediation in accordance with the American Arbitration Association Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by AAA. To initiate the mediation, a party must serve notice in writing ("ADR notice") to the other party to the Dispute, requesting mediation. A copy of the ADR notice should be sent to AAA. The mediation will start not later than thirty (30) days after the date of the ADR notice.
No party may commence any court or arbitration proceedings in relation to the whole or part of the Dispute until ten (10) business days after service of the ADR notice, provided that the party or the other party's right to issue proceedings is not prejudiced by a delay.
If the Dispute is not resolved within fifteen (15) business days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of fifteen (15) business days, or the mediation terminates before the expiration of the said period of fifteen (15) business days, the Dispute shall be finally resolved by the courts of the State of Illinois.
18. General
If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Conditions.
Any notice or other communication given to a party under or relating to the Order and/or these Conditions shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next business day delivery service at its registered office. Any notice or communication shall be deemed to have been received: (1) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or (2) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting. Notice is not valid if sent by email or fax.
If the goods are marketed, promoted, or resold by a subsidiary or affiliate of the Buyer, the Buyer shall procure that such subsidiary or affiliated company complies with these Conditions and any breach of these Conditions by such subsidiary or affiliated company shall be treated to the full extent permissible under law as a breach of these Conditions by the Buyer.
These Conditions constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter except where said agreement explicitly states otherwise. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions.
Last updated 01/01/2025
