Store Policy

Customer Care

 TERMS AND CONDITIONS

 

These terms and conditions of sale (these “Terms”) shall govern the sale of goods (“Goods”) by Sugar Bowl Babies, LLC and/or its affiliates (in either case, “Seller”) to the buyer named in Seller’s email, facsimile, sales order, invoice or other written communication (“Order”) referencing these Terms (a “Buyer”), to the exclusion of all other terms and conditions, regardless of provenance and whether conflicting or otherwise. 

 

The Order and these Terms (collectively, this “Agreement”) shall comprise the entire agreement between Seller and Buyer with respect to the sale of Goods by Seller, and shall supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties and communications, whether written and oral. These Terms shall prevail and control over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer submitted a purchase order or other such terms of its purchase of Goods, and Seller explicitly rejects any such additional, contrary, conflicting or inconsistent terms. Fulfillment of any portion of an order or request, if submitted, from Buyer, shall not constitute acceptance of any of Buyer’s terms and conditions and shall not supersede, amend or otherwise modify these Terms. Additionally, Seller has the right to reject an Order or modify an Order at any time, even after acceptance or partial performance, based on commercial, financial, or other reasons.  

 

Seller may, in its sole discretion, update these Terms from time to time and without notice. In the event that Seller updates these Terms, only those Terms in effect as of the date of an applicable Order shall be binding upon Buyer with respect to such Order.

 

  1. Delivery.

  2. The Goods will be delivered within a reasonable time after the later of the receipt of Buyer’s purchase order, if one has been submitted, or the acceptance by Buyer of an Order, subject to availability of Goods specified in such Order. Seller shall bear no liability for any delays, loss or damage in transit.

  3. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to Buyer’s delivery address specified in an applicable Order (the “Delivery Location”) using Seller’s standard methods for packaging and shipping such Goods, or, if different, the method of packaging and/or shipment set forth in an applicable Order (“Delivery”).

  4. If for any reason Seller or a shipping carrier (or their agent) is unable to deliver the Goods at the Delivery Location as a result of Buyer’s failure to provide appropriate delivery instructions, documents, licenses or other necessary authorizations, upon the first attempted delivery at the Delivery Location: (i) the risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered and (iii) Seller, at its option, may choose to store the Goods until Buyer picks them up at such location as Seller may designate, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, any costs of storing and insuring the Goods while held at such location).

  5. Non-Delivery.

  6. Seller shall bear no liability for any non-delivery of Goods (“Non-Delivery”) unless Buyer provides written notice to Seller of such non-delivery within three (3) days of the date when the Goods would in the ordinary course of events have been received.

  7. Seller’s liability for any Non-Delivery shall be limited to, in Seller’s sole discretion (i) the cost of replacement of Non-Delivered Goods within a commercially reasonable time, or (ii) the provision of an adjustment in Buyer’s favor of any invoice associated with the applicable Order.

  8. Terms of Shipment.

  9. Except as otherwise specified in an applicable Order, Delivery shall be made FOB Seller’s address as set forth in such Order.

  10. Title to and the risk of loss to Goods shall pass to Buyer upon delivery of the Goods at the Delivery Location.

  11. Buyer hereby irrevocably and unconditionally grants to Seller a security interest in and to, and a lien upon, all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this Section 3(c) shall constitute and be deemed a “purchase money security interest” under Section 42a-9-103a of the Uniform Commercial Code as adopted by the State of Connecticut.

  12. Inspection and Rejection of Non-Conforming Goods.

  13. Buyer shall inspect Delivered Goods upon receipt. Buyer will be deemed to have accepted Delivered Goods unless Buyer promptly, but in any event within ten (10) days of Delivery (the “Inspection Period”), provides written notice to Seller that such Delivered Goods do not conform to the Goods specified in an Order (“Non-Conforming Goods”), which notice shall include reasonable form of evidence of any such non-conformity.

  14. If Buyer notifies Seller following Delivery and within the Inspection Period that any Delivered Goods are Non-Conforming Goods, Seller shall, in its sole discretion, (i) replace such Non-Conforming Goods, at Seller’s expense (exclusive of shipping costs), with Goods conforming to the applicable Order, or (ii) credit or refund the price invoiced to Buyer for such Non-Conforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its sole expense and risk of loss, any Non-Conforming Goods to Seller’s return address as set forth in the applicable Order.

  15. Buyer acknowledges and agrees that the remedies set forth in Section 4(b) shall be Buyer’s exclusive remedies in the event of any Delivery of Non-Conforming Goods. Except as otherwise provided in Section 4(b), Buyer shall have no right to return conforming Goods Delivered in accordance with the terms of this Agreement.

  16. Seller shall have no obligation to provide, and Buyer shall have no right to seek, a refund for any Goods which are counter damaged or shop-worn.

  17. Price.

  18. Buyer shall purchase the Goods from Seller at the price or prices (the “Price” or “Prices,” as applicable) set forth in the applicable Order.

  19. Except as explicitly set forth in any applicable Order, all Prices are exclusive of any and all federal, state or local sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any taxing authority on any amounts payable by Buyer pursuant to an Order (collectively, “Taxes”). Buyer shall be responsible for the payment of any such Taxes as set forth in an applicable Order. 

  20. Seller may provide Buyer with a manufacturer’s suggested retail price for Goods appearing in an Order (an “MSRP”). Buyer shall have the right to sell such Goods at retail to its customers at a price it deems appropriate, in its sole discretion, notwithstanding Seller’s provision of an MSRP, and nothing contained in these Terms shall be construed as obligating Buyer to sell any Goods at or above an MSRP provided by Seller.

  21. Payment Terms.

  22. Buyer shall pay amounts due to Seller for Goods sold to Buyer upon placing an Order.

  23. Buyer shall pay interest on all late payments at the lesser of the rate of three and one-half percent (3.5%) 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, thirty-party collection agency costs and attorneys’ fees. Acceptance by Seller of any late payment shall not operate to excuse or otherwise relieve Buyer from its obligation to pay interest accrued thereon as of the date of such late payment. Seller’s acceptance of any late payments, whether or not such payments include interest accrued thereon, shall not be deemed to diminish or otherwise restrict or modify Seller’s rights or privileges set forth in these Terms. Seller shall have the absolute right, in additional to all other rights and remedies available under these Terms, at law or in equity, to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for sixty (60) days following written notice thereof.

  24. Without limiting the generality of the foregoing, Seller reserves the right to demand adequate assurance of performance pursuant to Sec. 42a-2-609 of the Uniform Commercial Code – Sales and to suspend its own performance, to the extent Seller has reasonable grounds for insecurity of Purchaser’s performance, including Purchaser’s payment obligation.

  25. Limited Warranty

  26. Seller warrants to Buyer that for a period of one (1) year from the date of shipment of the Goods (the “Warranty Period”), that such Goods will be free from material defects in material and workmanship.

  27. EXCEPT FOR THOSE WARRANTIES SET FORTH IN SECTION 7(a) OF THESE TERMS, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. 

  28. Notwithstanding Section 7(a), Seller shall not be liable for a breach of the warranty set forth in Section 7(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within five (5) days of the time when Buyer discovers or could have discovered the defect (a “Defect Notice”); (ii) Seller is given a reasonable opportunity after receiving a Defect Notice to examine such Goods and Buyer returns such Goods to Seller’s place of business at Seller’s cost for such examination; and (iii) Seller determines, in its commercially reasonable discretion, that such defects exist and that the Goods do not conform with the warranty provided in Section 7(a).

  29. Notwithstanding Section 7(c), under no circumstances shall Seller be liable for a breach of the warranty set forth in Section 7(a) if: (i) Buyer makes any further use of such Goods after giving a Defect Notice; (ii) a defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.

  30. Subject to Section 7(c) and Section 7(d) hereof, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods or (ii) credit or refund the Price of such Goods at the pro rata Order rate provided that Buyer returns any defective Goods to Seller.

  31. THE REMEDIES SET FORTH IN SECTION 7(e) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY, AND SELLER SHALL HAVE NO OTHER LIABILITY TO BUYER, FOR ANY BREACH OF THE WARRANTY CONTAINED IN SECTION 7(a).

  32. Limitation of Liability.

  33. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ASSERTED UNDER A THEORY OF BREACH OF CONTRACT, TORT 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.

  34. 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 OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.  

  35. The limitation of liability set forth in Sections 8(a) and 8(b) above shall not apply to any (i) liability resulting from Seller’s gross negligence or willful misconduct or (ii) any death or bodily injury resulting from Seller’s acts or omissions.

  36. Compliance with Law. Buyer shall comply with all laws, rules, orders, regulations and ordinances (“Laws”) applicable to this Agreement and to Buyer’s purchase and/or use or resale of the Goods. Buyer shall maintain in effect at all relevant times all licenses, permissions, authorizations, consents and permits necessary or required by Laws to carry out its obligations under this Agreement. If applicable, Buyer shall comply with all export and import Laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. 

  37. Resale Covenant. Buyer covenants to Seller that it is purchasing the Goods for resale directly by Buyer to Buyer’s customers through Buyer’s website or other standard sale channels (including retail sale), and that Buyer shall not sell or distribute the Goods through a third-party marketplace, including but not limited to any marketplace owned, established or maintained by Amazon Services LLC and/or its affiliates, Target, or Walmart, etc. (an “Amazon Marketplace”, “Target+”, “Walmart Marketplace”, etc.). Buyer further acknowledges that Seller’s brand is a “gated” or “restricted” brand on Amazon Marketplaces. In the event that Buyer breaches the covenant contained in this Section 10, Seller shall have the right to immediately terminate this Agreement without notice. In the event that Buyer does list, sell or distribute the Goods through an Amazon Marketplace in violation of this Section 10, Buyer agrees to indemnify, defend and hold harmless Seller from and against any and all liability of Buyer to Amazon Services LLC and/or its affiliates for any breach by Buyer of any terms, policies or conditions of use of an Amazon Marketplace by Buyer. Buyer further agrees that Seller shall have the absolute right, in additional to all other rights and remedies available under these Terms, at law or in equity, to injunctive relief for any violation of this Section 10.

  38. Retail Practices.

  39. Buyer represents to Seller that, in the event Buyer displays the Goods for retail in any physical location or store, (i) Buyer shall display the Goods in a reasonably prominent location and fashion consistent with Seller’s premium brand image; and (ii) Buyer shall not commingle the Goods with products or wares produced, manufactured or sold to Buyer by anyone other than Seller. 

  40. Seller may provide Buyer with Seller-branded shelving, racks, displays, demos/floor models, signage or other similar point of sale marketing materials (collectively, “Point of Sale Materials”). Seller may, in its sole discretion, provide Point of Sale Materials to Buyer free of charge; provided, however, that Seller shall indicate on an applicable Order the value of such Point of Sale Materials (the “Point of Sale Materials Value”). In the event that Seller provides Buyer with Point of Sale Materials, Buyer agrees to implement and use the Point of Sale Materials only for their intended use, that any Point of Sale Materials shall be displayed in a reasonable location and manner and that Buyer shall maintain the Point of Sale Materials in good, working order, and in a manner consistent with Seller’s premium brand image.

  41. In the event that Buyer breaches any of its obligations set forth in these Terms, Buyer shall pay to Seller the Point of Sale Materials Value for any Point of Sale Materials which were provided to Buyer by Seller free of charge pursuant to Section 11(b) hereof, and this value will be added to the Payment terms and obligations set forth above.

  42.  Amendment; Modification.These Terms may not be amended or modified except by a mutually executed writing which references these Terms and which is signed by authorized representatives of Buyer and Seller, setting forth such amendments or modifications hereof.

  43. Termination. In addition to any other remedies that may be provided under these Terms, at law or in equity, Seller may immediately terminate this Agreement, without notice, if Buyer: (i) fails to pay any amounts owed when due under this Agreement, and such failure continues for five (5) days after the date of such written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or any assignment for the benefit of its creditors.

  44. Waiver. No waiver by Seller of any of the provisions of this Agreement shall be effective unless such waiver is expressly set forth in writing and signed by Seller. Neither a failure to exercise nor any delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate as, or be construed or deemed to be, a waiver thereof. The exercise of any right, remedy, power or privilege hereunder by Seller shall not preclude the exercise of any other right, remedy, power or privilege available to Seller, either under this Agreement or at law or in equity.

  45. Assignment. 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 shall relieve Buyer of any of its obligations under this Agreement.

  46. No Third-Party Beneficiaries.This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns. Nothing herein, express or implied, shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

  47. Governing Law and Venue.This Agreement, and any dispute or conflict arising hereunder, shall be governed by and construed in accordance with the internal laws of the State of Connecticut without giving effect to the internal choice of laws rules thereof. In addition, to the extent a claim is brought in a court or other tribunal, for purposes of jurisdiction and venue, any litigation or dispute arising out of or concerning this Agreement, shall only be brought in the state of Connecticut. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.

  48. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (“Notices”) shall be in writing and addressed to the parties at the addresses set forth on the face of an applicable Order or to such other address that may be designated by the receiving party in writing from time to time. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), 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, Notices shall be effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

  49. Severability. If any term or provision of this Agreement is held or finally determined invalid, illegal or unenforceable by a court of competent 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.