This Master Services Agreement (“Agreement”) together with any underlying purchase order (each, a “Purchase Order”) govern each sale of products (“Products”) by Tyndale Enterprises, Inc. (“Company”) to the purchaser (“Purchaser”). Any provisions or conditions submitted by Purchaser which are inconsistent with, or in addition to, this Agreement or the relevant Purchase Order shall not be binding on Company unless such provisions or conditions have been reduced to writing and signed by a duly authorized representative of Company. If the provisions of this Agreement and a Purchase Order are inconsistent, the provisions contained in this Agreement shall supersede those in the Purchase Order.
1.0 ACCEPTANCE OF GOODS. Purchaser shall have sixty (60) days from the date of receipt of any Product(s) to notify Company that Purchaser is rejecting such Product(s) based on any defect or lack of compliance with the requirements and specifications in the related Purchase Order, in which case Company, at its sole discretion, shall either 1) replace each defective Product promptly after the return of the defective Product(s), 2) repair such Product(s), or 3) refund the full amount paid by Purchaser for each defective Product upon the return of the defective Product(s). Such notification shall be in writing and shall state the nature of the defect or lack of compliance. Purchaser shall have sixty (60) days to return all or a portion of any non-custom Products for any reason for a full refund.
1.2 Condition of Products. ANY PRODUCTS RETURNED MUST BE UNWASHED, UNWORN, AND UNALTERED. THE COMPANY WILL NOT ACCEPT RETURNS OF ANY PRODUCTS THAT HAVE BEEN WASHED, WORN, OR ALTERED.
2.1 Price. Purchaser will pay Company the price stated in the relevant Purchase Order for Products purchased. The price is exclusive of any appropriate state and local sales, withholding, use, excise, privilege or similar taxes. ALL PAYMENTS SHALL BE DUE WITHIN 30 DAYS OF THE DATE OF INVOICE.
The initial term of this agreement will be for 12 months from the first order date. Prices will remain fixed on a per calendar year basis. At the beginning of each calendar year product prices will be adjusted.
2.2 Interest. Company reserves the right to charge interest at a monthly rate of 1.5% on overdue payments, calculated on a weekly basis, and to suspend the production or delivery of any further Products until payment is made. Purchaser agrees to pay all reasonable collection and attorneys’ fees should the account be placed for collection.
2.3 Freight. Prices displayed online are exclusive of shipping, customs, tariffs, duties, tax and other fees.
2.4 Logo. Prices displayed online are exclusive of logo fees requested by Purchaser to customize garments.
3.1 Company warrants that the Products shall conform to the specifications and descriptions set forth on the garment tag and the relevant Purchase Order and be merchantable, new, and fit for the purpose intended as stated in such Purchase Order.
3.2 If the Products provided by Company fail to conform to the warranties set forth above, Company shall, at its sole expense and at Company's option, promptly repair, replace or refund the nonconforming Products in accordance with the provisions of Section 1.0 hereof.
3.3 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY PROVIDES NO REPRESENTATIONS, CONDITIONS, OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PRODUCTS (OR ANY SERVICES PERFORMED RELATED TO THE PRODUCTS).
3.4 Any warranty provided by Company is conditioned upon the following: (a) user adhering to all washing and care instructions provided by Company, (b) the Products being used for the Product’s intended purpose as stated in the Product label, and (c) the Product not being modified, altered, or repaired by a third party. If Purchaser or the ultimate user fails to follow the requirements of this Section 3.4, then any warranty provided by Company is void.
4.1 Purchaser guarantees that any Products or materials directly specified by Purchaser shall be free from claims of patent, copyright and/or trademark infringement. Purchaser shall indemnify, hold harmless and defend Company for actual or alleged infringement of any patent, copyright, or trademark resulting from the use of Products and materials directly specified by Purchaser and pay and discharge all judgments, decrees and awards rendered therein and bear all expenses and legal fees associated therewith.
4.2 Company shall defend, indemnify and hold harmless Purchaser and its affiliates and their officers, directors, employees, agents, servants, successors and assigns (“Purchaser Representatives”) from and against any and all losses, claims, demands and/or liability for damage to property, injury or death of any third party or any other loss or damage incurred by Purchaser Representatives, including all expenses, legal or otherwise, arising out of or connected with the sale of any Products to Purchaser, except to the extent caused by any modification of any Product, the breach of this Agreement or any Purchase Order by Purchaser, the negligence of Purchaser or any Purchaser Representative or use of the Products sold hereunder in violation of law or not for their intended purpose as set forth on the Product label. Without intending to limit the foregoing sentence, any injuries, deaths, damages, losses or liability caused by (a) Purchaser’s work procedures, (b) the failure of an officer, employee, contractor, servant or agent of Purchaser to follow Purchaser’s work procedures, (c) items purchased from providers or vendors other than Company, (d) the failure of Purchaser to institute, perform, or follow proper arc flash hazard analysis or analogous or similar tests required to determine the appropriate materials or Products to be purchased, or (e) failure to adhere to Company’s washing and care instructions shall be the sole negligence of Purchaser.
5.1 Liability of Company ceases and risk of loss or damage passes to Purchaser when shipment is tendered to carrier for deliveries f.o.b origin.
5.2 Neither party hereunder or under any Purchase Order shall be liable for any indirect, special, punitive, incidental, liquidated, or consequential damages of whatever nature or any lost profits (whether direct or indirect), loss of income, loss of business or contract, loss of anticipated savings, loss of goodwill or loss or corruption of data, howsoever caused.
5.3 In no event shall the total and cumulative liability of either party to the other hereunder or under any Purchase Order for any claims or claims hereunder exceed the aggregate amounts paid or payable by Purchaser and its affiliates hereunder or under any Purchase Order.
6.0 FORCE MAJEURE
6.1 Any delay or failure of either party in the performance of its required obligations hereunder shall be excused if and to the extent caused by fire, flood, unusually severe weather, explosion, riot, war, sabotage, disease, terrorism, strikes or labor unrest, or other similar causes as long as: 1) such events are beyond the party's reasonable efforts to prevent, avoid or mitigate, 2) said party uses every reasonable effort to mitigate, and 3) prompt online notification of such delay or suspension is given by such affected party to the other if possible.
6.2 If Company is delayed in performance of its obligations due to a force majeure event, the time for performing shall be extended for a period of time reasonably necessary to overcome the effect of such delay.
7.1 Choice of Law/ Jurisdiction. The laws of the Commonwealth of Pennsylvania shall control all aspects of this Agreement and all Purchase Orders. All actions, whether sounding in contract or in tort, relating to the validity, construction, interpretation and enforcement of this Agreement and any Purchase Order shall be instituted and litigated in the courts located in Bucks County, Pennsylvania and in no other. Purchaser submits to the jurisdiction of such courts of the Commonwealth of Pennsylvania regardless of choice or law.
7.2 Entire Agreement. This Agreement together with any underlying Purchase Order embodies all the understanding of the parties and supersedes all prior and contemporaneous agreements, commitments, understandings and writings as to the order. Acceptance of the Products described in the Purchase Order by Purchaser means that Purchaser understands and accepts all the terms and conditions contained in this Agreement. Either party's waiver of any breach or failure to enforce any of the terms and conditions in this Agreement and/or any Purchase Order at any time shall not be in any manner a limit or waiver of such party's right thereafter to enforce or compel strict compliance with every term and condition hereof.
a. This Agreement constitutes the agreement between Purchaser and Tyndale Enterprises, Inc. and shall take precedence over any other agreement in the event of a conflict.
7.3 Independent Contractor. Company’s relationship to Purchaser is that of an independent contractor, and neither Company nor any of its subcontractors, nor any employees of Company or its subcontractors are employees of Purchaser. Purchaser assumes sole and complete responsibility for the employment, compensation, control, and conduct of its employees. This Agreement is not intended to create an agency relationship, partnership, or joint venture between the parties.
7.4 Agreement Term. The term for this Agreement is one (1) years with the option to renew annually.
7.5 Release of Information. Purchaser shall not, without the prior written approval of Company, make any news releases, public announcements, denials, or confirmations of any part of the subject matter of this Agreement, or disclose any privileged or confidential information, including pricing details, obtained in connection with this Agreement to any third party without the prior written consent of Company.
7.6 Recognition. Purchaser agrees that Company may use Purchaser’s name and logo on Company’s promotional materials.
ACCEPTANCE OF CONDITIONS
Receipt of this Agreement is hereby acknowledged, and Purchaser agrees to be bound to same.