TERMS AND CONDITIONS
(a) These terms and conditions of sale (these “Terms“) are the only terms which govern the sale of the goods (“Goods“) by Kim Alpert and Girl Professional Luxe LLC (“Seller“) to the purchaser named on the invoice (“Buyer“).
(b) The invoice (the “Invoice” and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
(a) The goods will be delivered within a reasonable time after the receipt of Buyer’s payment. Seller shall not be liable for any delays, loss or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the address provided by Buyer (the “Delivery Point“) using Seller’s standard methods for packaging and shipping such Goods.
3. Title and Risk of Loss.
Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the full payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code.
4. Amendment and Modification.
These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
5. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within one (1) day of receipt (“Inspection Period“). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Invoice; or (ii) product contains a significant material defect that was not disclosed prior to the sale. For purposes of this Section 5(a), a significant material defect shall be defined as a defect that substantially prevents the Goods from operating or functioning as designed or according to its specifications. The term “significant material defect” does not include a defect that (a) has an insignificant or de minimis effect on the operation, design or functioning of the Goods; (b) affects only small section of the Goods that, as a whole, substantially operates, appears or functions as designed; or (c) has an insignificant or de minimis effect on the efficacy of the Goods received.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, credit or refund the Price for such Nonconforming Goods after Seller has received Nonconforming Goods from Buyer in the same condition as Buyer received them.
(c) Within three (3) days after Seller confirms the return, Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at 137 Montague Street #170, Brooklyn, NY 11201. The Goods must be in the same condition in which Buyer received them and must be in their original packaging, and all items that were included with the Goods must be returned as well, such as dustbags, cards, or boxes.
(d) If Buyer questions the authenticity of the Goods, Buyer must first seek authentication of the Goods through Zeko, Real Authentication, or Entrupy before attempting to return the Goods. Only if the Good is deemed inauthentic may it be considered a Nonconforming Good.
(e) Under no circumstances may Buyer initiate a “chargeback” or “payment dispute.” Further, Buyer waives all rights to any “chargeback” or “payment dispute.”
(f) Buyer acknowledges and agrees that the remedies set forth in this Section 5 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section 5, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
(g) Seller, in its sole discretion, may charge a 10% restocking fee for any Goods that Seller agrees may be returned.
(h) Seller reserves the right to refuse to make further sales to a Buyer who has rejected a delivered Good, a Buyer who has defamed Seller, or a Buyer who has attempted to initiate a chargeback, and to ban such a Buyer from attending future Seller sales or events.
(a) Buyer shall purchase the Goods from Seller at the price listed on the Invoice.
(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
7. Payment Terms.
(a) Buyer shall pay all invoiced amounts due to Seller within 24 hours of receipt of the Invoice. Buyer shall make all payments hereunder in US dollars either (1) via credit or debit card; (2) via Zelle; (3) via PayPal; or (4) via Wise. If Buyer fails to timely make payment, Seller reserves the right to rescind the Invoice and offer the Goods to another buyer.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller.
8. No Warranty.
(a) SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(b) Seller is not responsible for any new damage or wear to a Good after purchase.
9. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
(c) The limitation of liability set forth in this Section 9 shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for three (3) days after Buyer’s receipt of written notice of nonpayment; or (ii) has not otherwise performed or complied with any of these Terms, in whole or in part.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
12. Force Majeure.
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; and (g) national or global pandemic. The Impacted Party shall give notice within three (3) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of seven (7) days following written notice given by it under this Section 12, either party may thereafter terminate this Agreement upon three (3) days’ written notice.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
14. Governing Law.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.
15. Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Delaware in each case located in the City of Wilmington and County of New Castle, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of the Invoice or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Governing Law, Submission to Jurisdiction and Survival.