These Master Terms & Conditions were last updated on: June 21, 2019
The terms and conditions below ("Master Terms") govern any Account Setup Form or Order Form that references them, and any order placed by Retailer while these Master Terms are in effect.
“Agreement” means, collectively, the Account Setup Form, the Order Form, these Master Terms, and any attachments or addenda thereto.
“Intellectual Property” or “IP” shall mean drawings, physical samples, final Products, patent rights, know-how, trademarks, service marks, registered designs, copyrights, database rights, design rights, confidential information, applications for any of the above, and any similar right recognised from time to time in any jurisdiction, together with all rights of action in relation to the infringement of any of the above.
"Kusshi" or "Kusshi" means Kusshi, LLC a Texas Limited Liability Company.
“Line Sheet” means the document that lists all products available for sale to the Retailer and the wholesale pricing thereof.
"Products" means the variety of products offered by Kusshi for sale on the Line Sheet.
"Retailer" means the Kusshi customer that is a party to the applicable Account Setup Form or Order Form.
WHEREAS, Kusshi sells the Products and Retailer would like to purchase some Products from Kusshi from time to time in order to sell the Products to its own customers;
WHEREAS, the parties agree that the terms of the relationship between Kusshi and Retailer shall be governed by this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth, Kusshi and Retailer agree as follows:
Kusshi will ship all Products via ground service, unless otherwise requested in writing. The shipping costs shall be calculated at the time Retailer’s order is placed, based upon the weight of the Products purchased and the shipping method requested, and the Retailer shall be charged for these costs accordingly.
2. Payment Terms.
Retailer may purchase products using Visa, MasterCard, Discover, American Express, or Paypal. Payment is due at the time that the order is placed. The wholesale pricing of the Products are shown on the Line Sheet, which has been provided to the customer in advance. Kusshi may update the Line Sheet from time to time and all prices are subject to change without notice.
3. Returns/Claims Policy.
(a) Due to the significant discounts associated with wholesale orders, all sales are final and Kusshi will not accept returns of any Products, except as provided in subsection (c) below.
(b) Refused shipments of Products are subject to a 20% restocking fee, which shall be charged to the same account Retailer used to purchase the Products.
(c) If Retailer receives a Product that is defective or incorrect in some way, Retailer shall notify Kusshi of the specific problem in writing within seven (7) days of receiving such defective or incorrect Product, and Kusshi will ship a replacement to Retailer and will reimburse Retailer for any costs incurred for return postage of the defective Product.
This Agreement may be terminated by either party at any time and for any reason upon the giving of thirty (30) days prior written notice to the other party.
5. Limitations on Retailer’s Sales of the Products.
(a) The Retailer agrees not to sell the Products to any other third party, wholesaler or reseller that would resell the Products to any party, and not to market or sell the Products through any third party marketplaces including (without limitation) Amazon.com and Etsy, or through auction websites using a bidding process, including (without limitation) Ebay.com, Craigslist.com, or through co-op sales.
(b) The Retailer shall be authorized to sell the Products in the Territory specified on the Account Setup Form. If no Territory is specified, then the Territory shall be the United States. The Retailer shall be solely responsible for complying with all import and export laws and regulations relating to sales and shipments outside the United States.
(c) The Retailer agrees to use commercially reasonable efforts to promote the distribution and sale of the Products. To the extent the Retailer desires any marketing materials to sell the Products,such marketing materials shall be exclusively provided by Kusshi and must be used in a manner that is positive and promotes the distribution and sale of the Products, and in compliance with Kusshi’s Branding Guidelines which are posted on www.kusshi.com/pages/retailer-policies and may be updated from time to time.
(d) The Retailer agrees not to offer the Products for sale via any emails, text messages, instant messages or other electronic messaging where such messages are sent indiscriminately or to parties that did not solicit the message (also known as SPAM messages).
(e) The Retailer agrees not to make any statements about Kusshi to the media, including newspapers, magazines, radio, television, documentaries, interviews, internet sites, online forums, blogs, public speaking, expos, trade shows, or events, unless such statements have been approved in advance in writing by Kusshi.
(f) The Retailer agrees not to use the Products or otherwise associate the Products with pornography or other sexual acts or contexts.
6. Intellectual Property
(a) Kusshi grants Retailer a limited, non-exclusive, non-transferable, royalty-free, worldwide right and license to use Kusshi’s trade name and logo and such of Kusshi’s trademarks as are directly applicable (“Kusshi’s Marks”), solely for use by Retailer for the purpose of retailing and marketing the Products.
(b) Retailer grants Kusshi a limited, non-exclusive, non-transferable, royalty-free, worldwide right and license to use Retailer’s trade name and logo and such of Retailer’s trademarks as are directly applicable (“Retailer’s Marks”), solely for use by Kusshi for listing Retailer as an authorized Retailer of the Products.
(c) Except as expressly authorized by this Agreement, neither party will make any use of the other party’s Marks in a manner that dilutes, tarnishes or blurs the value of the other party’s Marks.
(d) All Intellectual Property rights related to Kusshi or the Products shall remain solely owned by Kusshi.
All notices, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the third business day after mailing if mailed to the party to whom notice is to be given by first class mail, postage prepaid, certified, return receipt requested, addressed to the party at the address listed at the end of this Agreement. Either party may change addresses for purposes of this paragraph by giving the other party notice of the new address in the manner described herein.
Each party will defend, indemnify, save and hold harmless the other party, its officers, directors, agents, and employees from any and all third-party claims, demands, liabilities, judgments, damages, costs or expenses, including reasonable attorney’s fees (“Liabilities”), resulting from the indemnifying party’s breach of any material duty, representation, or warranty contained in this Agreement, except there shall be no obligation to indemnify, defend, save and hold harmless where Liabilities result from the gross negligence or knowing and willful misconduct of the other party.
Retailer shall maintain insurance policies covering the risks for which it is obligated to provide indemnification under the immediately preceding paragraph in amounts which are reasonably acceptable to Kusshi. If requested by Kusshi, Retailer shall provide Kusshi with certificates of insurance evidencing that the insurance coverage required to be continually maintained in force is in force.
The Order Form may be simultaneously executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all of which together shall constitute one and the same instrument.
As used in these Master Terms and the Account Setup Form or the Order Form, the singular number shall include the plural, the plural the singular, and the use of the masculine shall include, where appropriate, the feminine and neuter.
This Agreement shall be governed by and construed in accordance with the laws of Texas. If any provision of this Agreement is determined to be invalid or unenforceable, it shall not affect the validity or enforcement of the remaining provisions hereof.
Retailer agrees to pay all taxes, including but not limited to use taxes, and all other expenses owed in connection with the sale of the Products to its customers. Retailer warrants that all Products purchased from Kusshi are for resale purposes and not for personal use.
12. Relationship of Parties.
The parties do not intend to enter into a joint venture, and the parties agree that Retailer is not an agent or affiliate of Kusshi.
Kusshi makes no warranties, either express or implied, with respect to the design, manufacture, quality, or merchantability of the Products, or the fitness of the Products for a particular purpose. Kusshi shall not be liable for any direct, indirect, punitive, special, incidental, or consequential damages, including without limitation, lost revenues or lost profits arising out of, or in any way connected with, Retailer’s use of the Products.
By executing the Account Setup Form or the Order Form, the parties agree to be bound by this Agreement.