Terms and Conditions

Tailgate Tikes LLC Retail and Wholesale Terms and Conditions of Sale

The purchasing party, the (“Buyer”) by entering into a purchase agreement or sale of goods of Tailgate Tikes LLC the (“Seller”) Retail Products (collectively the “Retail Products”, and individually a “Retail Product”), packaged as provided from time to time, at the price and quantity listed on the invoice, agrees to the terms and conditions of sale (“Terms and Conditions”) as provided below:

Trademarks and Other Insignia. At all times hereunder and hereinafter, all labels supplied to and possessed by Seller bearing Buyer trademark, logo, or other insignia shall be deemed to be and remain the property of Buyer.  Further, all labels bearing the trademark, logo or other insignia of Buyer’s customer shall be deemed to be and remain the property of Buyer’s customer.

As between the parties, it is agreed and understood further that if Buyer asks Seller to apply any trademark not owned by Seller to Retail Products, then:  (i) Buyer or Buyer’s customer, as the case may be, has the full right and title to such trademark or trademarks used in accordance with this Agreement and in connection with the Retail Products: (ii) that Buyer has authority to authorize Seller to apply such trademarks to the Retail Products; and that (iii) Seller agrees not to contest or deny the validity of, or the right or title of Buyer or Buyer’s customer in or to such trademarks(s), and shall not encourage or assist others directly or indirectly to do so, during the lifetime of this Agreement or at any time thereafter.

At all times hereunder and hereinafter, all labels bearing Seller’s trademarks, logos, or other insignia shall be deemed to be and remain the property of Seller.  Further, nothing in these Terms and Conditions shall be construed to give Buyer any right, title or interest in or to Seller’s trademarks, logos or other insignia.

Retail Product Quality. Seller will not be responsible or liable for any liability behavior, conduct or events including, but not limited to the following, which occur respecting a Retail Product after such Retail Product leaves Seller’s facility misuse or mishandling of the Retail Product. Seller represents and warrants that no Retail Product constituting, or being a part of, any shipment or other delivery now or hereafter made to Buyer by Seller, will, at the time such Retail Product leaves Seller’s facility, be adulterated or misbranded, defective or otherwise unsatisfactory owing to faulty material or workmanship.  This warranty will survive delivery to, and inspection, acceptance and payment by, Buyer.

LIMITATION OF WARRANTIES.  THERE ARE NO WARRANTIES, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF, INCLUDING, BUT NOT LIMITED TO, ANY WRITTEN OR ORAL EXPRESS WARRANTIES, OR ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

Retail Product pricing.  The Price for the Retail Product shall be the price listed on the invoice, and shall be F.O.B. Seller’s facility, unless otherwise agreed to in writing.

Payment. Payment terms for each Retail Product shall be NET THIRTY (30) DAYS from the invoice date unless otherwise agreed to in writing.  Payments for partial shipments shall become due pro-rata as the Retail Products are shipped. No deductions from the invoice are allowed without prior approval and acceptance in writing from the Seller. 

Overdue accounts shall bear interest at the rate of one and a half percent (1.5%) per month, compounded monthly until paid in full.  If Seller must hold one or more Retail Products for shipment more than seven (7) days after the specified shipment date on the invoice, Buyer will be billed on the original shipping date and must pay the purchase price within eleven (11) days thereafter, and Seller may store the Retail Products in a warehouse at Buyer’s expense for handling and storage costs.

All of Seller’s costs of collection and reasonable attorney’s fees incurred in connection with the collection of any overdue account shall be paid promptly by Buyer to Seller, and Seller shall be entitled to recover such amounts in a court of competent jurisdiction. 

Delivery of Retail Product. The delivery of the Retail Product shall be F.O.B. Seller’s facility, and Seller shall have no further obligation respecting any Retail Product after the Retail Product leaves Seller’s facility, unless otherwise agreed to in writing.

Independent Contractor. These Terms and Conditions shall not constitute or give rise to a partnership between the parties.  All activities by Seller under the terms of this Agreement shall be carried on by Seller as an independent contractor and not as a partner or agent of Buyer.

Indemnification.  Buyer shall, within ten (10) days after receiving notice thereof, notify Seller of the commencement of any legal proceedings against Buyer or Buyer’s customers relating to a Retail Product or Retail Products manufactured by Seller, and shall permit Seller, at Seller’s sole discretion, to participate in the defense of such proceedings.

IF Seller SUPPLIES TO Buyer ONE OR MORE Retail Products, AND Seller SUPPLIED SUCH Retail Product OR Retail Products IN VIOLATION OF Seller’s OBLIGATION IMPOSED BY THESE TERMS AND CONDITIONS, BUYER'S EXCLUSIVE REMEDIES AGAINST Seller SHALL BE AS FOLLOWS:  (i) Buyer MAY REQUIRE Seller TO REPLACE TO Buyer ANY SUCH DEFECTIVE Retail Product, OR (ii) IF Buyer RETURNS ANY SUCH DEFECTIVE Retail Product OR Retail Products TO Seller AT SELLER’S FACILITY, Buyer MAY REQUIRE Seller TO RETURN TO Buyer THE PRICE PAID BY Buyer FOR SUCH DEFECTIVE Retail Product OR Retail Products.  Seller WILL HAVE NO OBLIGATION TO REPLACE TO Buyer, OR REIMBURSE THE COST OT Buyer OF, ANY SUCH DEFECTIVE Retail Product OR Retail Products.  Seller WILL HAVE NO OBLIGATION TO REPLACE TO Buyer, OR REIMBURSE THE COST TO Buyer OF, ANY Retail Product WHICH BECOMES DEFECTIVE THROUGH NEGLIGENCE, FAULT OR OTHER ACTION OR INACTION OF Buyer, BUYER'S CUSTOMER OR ANY PARTY OTHER THAN Seller.  Seller's MAXIUMUM LIABILITY SHALL BE PRODUCT REPLACEMENT AT Seller's OPTION.  ALL OTHER REMEDIES AT LAW OR IN EQUITY ARE WAIVED BY Buyer.

IN ADDITION TO THE LIMITATION OF BUYER'S REMEDIES CONTAINED, IN NO EVENT SHALL Seller BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR ANY Retail Product SHIPPED PURSUANT TO THEM. 

So long as Seller has complied with its duties hereunder respecting a particular Retail Product.  Buyer shall indemnify Seller and hold Seller harmless from and against all losses, damages and costs, including reasonable attorney’s fees, consequential damages, or incidental damages incurred by Seller arising out of any claims or actions relating to such particular Retail Product and arising in connection with or pursuant to those Terms and Conditions and Buyer agrees to defend or settle such claims or actions at its own expense provided Seller gives Buyer prompt notice of such claims or actions and cooperates fully with Buyer in defending or settling the same (including the absolute right to settle on such terms as Seller may elect).

Survival of Obligations.  Notwithstanding anything contained in these Terms and Conditions to the contrary, but subject to any written master agreement between the parties which is executed by an officer of each party, upon delivery of any Retail Product by Seller to Buyer, the parties agree that the following shall survive such delivery for three years: (i) all representations, warranties, covenants and guarantees made by either party hereunder, and (ii) the indemnification provisions contained in those Terms and Conditions.

Liens.  Buyer may not lien or subrogate any open invoices or product which remains unpaid. Seller shall maintain title to goods until the invoice is paid in full.

Assignments.  Neither Seller nor Buyer may assign any of its rights or delegate any of its duties or obligations under these Terms and Conditions to any third party without the prior written consent of the other party hereto.

Force Majeure.  If either party hereto is prevented from complying, either totally or in part, with any of the terms or provisions of these Terms and Conditions, by reason of fire, flood, storm, strike, lockout or other labor trouble, riot, war, rebellion, accidents, acts of God, and/or other cause or casualty beyond the reasonable control of the party prevented from complying, then upon written notice to the other party, the requirements of such terms and provisions as are affected, and to the extent so affected, shall be suspended during the period of such disability;  provided however, that the party prevented from complying shall make all reasonable efforts in good faith to remove such disability as soon as possible.  During such a period, the party not prevented from complying as aforesaid may seek to have its needs (which would otherwise be met hereunder) met by or through others without liability hereunder.

Slotting Fees, Stock Fees or Any Fee for Placement of Goods.

Stocking Fees.  As between the parties, it is agreed and understood that if Buyer asks Seller to pay any stock fee, slotting fee or any cost to the Seller for placement on the shelf of Buyer’s stores and for sale to Buyer’s customers, then the following is agreed upon and understood between Buyer and Seller as a condition of the initial and subsequent sales to the Buyer from the Seller.  The Seller will pay Buyer reasonable slotting fees, shelf fees, placements fees in goods or Retail Product credits on initial and subsequent orders as agreed between Buyer and Seller.   Seller’s Retail Product will be placed on Buyer shelf in return for receipt of any fee, credit or payment identified by notice from Seller Buyer hereby agrees to keep Seller’s Retail Product on the shelf for a minimum of 12 months from date of first sale in Buyer’s stores (commitment period).  In the event Buyer terminates, discontinues or does not purchase or continue to purchase or issue a notice of dis-continuance or termination of Seller’s Retail Product less than 12 months from date of first sale in Buyer’s stores (commitment period) Seller is entitled to a full refund of any payment in real monies or goods, Retail Products or services that Seller made to Buyer as a slotting fee, Retail Product fee or any type of fee Buyer received during the (commitment period) as solely determined by the Seller.  Buyer to remit promptly any monies due as determined by Seller.  A Notice of Claim sent to Buyer from Seller will be notification to Buyer.

Invoices or Notice of Claims.  Are due from Buyer upon Buyer receipt thereof and Buyer shall pay such invoices in accordance with the Terms and Conditions of Seller.  Failure to pay Seller in accordance with the Terms and Conditions of Seller shall constitute a material breach of this agreement made hereto by the Buyer and Seller as a condition of sale.

Off-Set.  Any amounts, whether due or to become due to this Agreement shall be subject to OFF-SET or SET OFF against any amount owed to Buyer by Seller to the full extent of all damages, liabilities and expenses for which Seller becomes entitled to indemnity from Buyer pursuant to this Article or otherwise.

General provisions.

Binding Agreement.  These Terms and Conditions shall be binding upon and inure to the benefit of the parties, their successors, and permitted assigns.

Merger; Amendment.  Unless there is a written agreement between the parties which is executed by an officer of each party, these Terms and Conditions constitute the entire agreement and understanding between the parties regarding the subject matter set forth herein, and merges all prior or contemporaneous discussions, understandings, and agreements between parties with respect to the said subject matter.  These Terms and Conditions may not be amended except in a writing duly executed by authorized representatives of the parties.

Applicable Law and Choice of Forum.  The parties affirm that these Terms and Conditions have been entered into in the State of Texas and shall be governed by and construed in accordance with the laws of the State of Texas, notwithstanding any state’s choice of law rules to the contrary.  Further, the parties expressly agree that any and all actions concerning any dispute arising under these Terms and Conditions shall be filed and maintained only in a state or federal court physically located in the State of Texas, and each party hereby consents and submits to the jurisdiction of such state or federal court.

Headings.  The headings contained in these Terms and Conditions are inserted for convenience of reference only and are not intended to be part of or affect the meaning or interpretation of these Terms and Conditions.

Severability.  The invalidity or unenforceability of any particular provision of these Terms and Conditions shall not affect the validity or enforceability of any other provisions hereof, and these Terms and Conditions shall be construed in all respects as if such invalid or unenforceable provisions were omitted.

No Waiver.  Any waiver of any provision of these Terms and Conditions must be in writing.  No waiver of any provision of these Terms and Conditions will constitute a waiver of any other provisions hereof (whether or not similar) or a continuing waiver.  The performance by any of the parties hereto of any act not required of it under the provisions of these Terms and Conditions will not constitute a waiver of the parameters for and limitations on its obligations under these Terms and Conditions, and no such performance shall stop such party from asserting such parameters or limitations as to any further or future performers of its obligations.

Acceptance of Terms and Conditions.  These Terms and Conditions pursuant to which any Retail Product is being sold and shipped may or not be materially changed or added to by the Buyer without written agreement with Seller.  Seller may amend its Terms and Conditions from time to time in the ordinary course of its business activities with the Buyer.  Acceptance of the Retail Product shall constitute acceptance of these Terms and Conditions, and such acceptance shall be limited to accepting these Terms and Conditions in their entirety as a condition of each transaction.