GENERAL TERMS AND CONDITIONS OF SALE
- Formation of Contract
1.1 These terms and conditions are a complete statement of the agreement between GOTHAM BAGS, LLC (“SELLER”) and any purchaser of goods through this website (the “Buyer”) and supersedes all statements regarding the order and may be supplemented or amended only by separate written agreement.
1.2 Terms and conditions of Buyer (additional to or varying from those herein) shall not be binding on Seller unless expressly agreed to in writing or Seller. Payments from any Buyer without open accounts shall be made prior to shipment.
1.3 No offers or arrangements on orders shall be binding on Seller unless confirmed by Seller in writing. Seller’s quotations do not constitute binding offers unless expressly so stated.
- Prices, Packing and Insurance
2.1 Prices are F.O.B. at Seller’s United States shipping point and do not include handling, insurance, assembly or any sales or other taxes.
2.2 If requested by Buyer in writing prior to shipment and at Seller’s sole option, Seller will insure the products ordered hereunder at Buyer’s expense against transport risks.
- Payment terms
3.1 Payment from any Buyer shall be made upon the placing of any order for goods.
3.2 All payments shall be made free of charges, deductions, set-offs and withholdings of any kind. All costs of collection incurred by Seller including reasonable attorney’s fees shall be borne by
3.3 Prompt payment is of the essence of this contract and a default in any payment will, at the election of Seller, operate as breach of the entire contract. Past due payments shall bear interest, compounded monthly at a rate of 3% above the rate of interest quoted from time to time by Citibank of New York as its “prime” or “base” rate.
3.4 If the credit of Buyer shall at any time, in the sole judgment of Seller, become impaired, Seller may at its option and without incurring any liability, divert or prevent the discharge of shipments en route to Buyer and cancel any unfilled portion of the contract, or require Buyer to give such security as Seller may specify to ensure payment or require payment in advance before making any further shipment. Seller shall not be required to discharge shipments or make delivery until any security or advance payment so-required by has been given or paid, and may divert shipments and/or cancel the unfilled portion of the contract if such security or payment shall have not been given or made by Buyer within the time specified by Seller. All costs and expenses incurred by Seller as a result of its exercise of any right or option under this paragraph shall due and owing from Buyer to Seller.
4.1 Unless otherwise specified in writing, delivery will be F.O.B. at Seller’s United States shipping points. Risk of loss or damage shall pass to Buyer when products are put in possession of the carrier even if payment terms other than F.O.B. at Seller’s shipping point are agreed upon. Seller may make partial deliveries. Delivery dates are approximate and will be calculated from the date that Seller shall have received all information necessary to permit Seller to proceed with work immediately and without interruption and all down payments or other security agreed upon. Late delivery can be the basis for a damage claim only if (i) Seller has agreed in writing to a firm delivery date and to a specified sum for liquidated damages in the case of delay; and (ii) Buyer shall have timely and fully performed all its contractual obligations hereunder. Seller is not required to accept changes requested after the order confirmation. Requests for change must be submitted in writing and received in time to be implemented. If Buyer requests changes to any products ordered, and Seller accepts said changes in writing, any prior agreement as to firm deliver dates shall be deemed extended by the time necessary to effect such changes and such changes shall be at Buyer’s cost. Orders may not be canceled by Buyer without the written consent of Seller. If orders containing Customer’s Own Material (COM) are canceled after production has begun, the COM cannot be returned or credited. A cancellation or restocking charge of up to the total amount of the order is applicable on orders canceled.
4.2 If any or all goods ordered are not delivered when ready due to the request of Buyer or cannot be delivered when ready for any reason referred to in Section 5 below, Seller shall have the right to invoice Buyer at any time thereafter and to place such products in storage. In such event (i) Seller’s delivery obligations shall be deemed fulfilled and title and all risk of loss or damage shall thereupan pass to Buyer; (ii) any amount otherwise payable to Seller upon delivery shall become due to payable upon presentation of invoices and Seller's certification as to such cause, (iii) all expenses incurred by Seller, such as for preparation for and placement into storage, handling, storage, inspection, preservation and insurance, shall be due to payable by Buyer upon demand; and (iv) the warranty period referred to below shall commence.
At any point prior to deliver of the goods to Buyer, Seller may, at Seller’s sole option, cancel any order placed by Buyer and refund any funds paid by Buyer for the Goods. In such an event, Buyer’s remedies against Seller shall be strictly limited to the recovery of any sums actually paid by Buyer to Seller for the Goods that were not refunded and in the event of such a cancellation, Buyer shall not be entitled to make or recover any sum arising out of any claim for other any additional compensatory or any consequential, punitive, or special damages.
- Damage Claim
6.1 All of Seller’s products are carefully inspected prior to shipment. Since Seller is not responsible for damage in shipment or in storage, Buyer should carefully inspect all items upon delivery and note any damage on the delivery receipt. All claims for damage must be reported in writing to the carrier in accordance with applicable regulations and time limits. All claims against Seller for defects errors or shortages must be made by Buyer by registered letter within 72 hours of delivery, time being of the essence. Failure to make a timely claim shall result in an irrevocable waiver of the right to claim that any of the goods were damaged.
- Limited Warranty
Seller warrants that it will repair of replace free of charge any product found to be defective which shall have been reported to Seller in writing within 1 year after delivery (or date of tender if products must be stored), except product or components which are (i) consumed in normal operation or subject to rapid wear due to their composition or utilization; (ii) damaged by natural wear and fear or natural influences; (iii) damaged by improper or careless handling, overloading, or inappropriate use in Seller’s sole reasonable discretion; and (iv) damaged by adjustments, modifications or repair work performed without Seller’s prior consent. Slight variations in color and shape may appear in certain product due to natural shading differences of individual textiles or leathers and are not covered by this warranty.
EXCEPT AS PROVIDED IN THIS ARTICLE 7, THIS WARRANTY SHALL BE IN LIEU OF ALL WARRANTIES. WHETHER WRITTEN. ORAL, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING OR USAGE OF TRADE ARISING IN CONTRACT OR IN TORT
AND THE AFORESAID REMEDY IN PARAGRAPHS 6 AND 7 HEREOF SHALL BE EXCLUSIVE WITH RESPECT TO DEFECTIVE PRODUCTS.
- Limitation of Liability
Except as provided in Articles 6 and 7, Seller shall not be liable for any costs, expenses or damages, including any special, incidental or consequential damages, incurred by Buyer or any third party, resulting from Seller’s performance of its obligations hereunder or the breach thereof. In no event shall Seller’s total liability on any claim, whether in contract, tort (including negligence) or otherwise, arising out of, connected with, or resulting from the manufacture, sale, delivery, resale, replacement or use of any product exceed the price allocable to the goods or component thereof which gives rise to the claim.
- Governing Law
Any order or agreement resulting here from shall be governed by and construed in accordance with the laws of the State of New York without giving effect to its rules of the conflict of laws.
Buyer may not assign its rights or obligations arising hereunder or any contract resulting from this form without Seller’s written consent. Any attempt to assign any such rights or obligations without such consent is void. A waiver of a breach of any provision hereof will not constitute a waiver of any other breach hereof.