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wholesale terms and conditions

WHOLESALE AND CORPORATE TERMS AND CONDITIONS

Unless the Parties expressly agree otherwise in a signed writing, the following Terms and Conditions will govern any and all purchase orders submitted and invoices exchanged between the Parties. The Parties agree that the use of a purchase order to place orders for Goods or services (collectively, “Goods”) shall be construed to supplement the terms of these Terms and Conditions only to the extent that the additional terms are not inconsistent with these Terms and Conditions. These Terms and Conditions will be incorporated into all purchase orders and invoices between the parties, regardless of whether specific reference to these Terms and Conditions is made therein. As used herein, “Sugarfina” refers to Sugarfina, Inc. and its affiliates, subsidiaries, and parents, “you” refers to the customer ordering and/or receiving the Goods, and the “Parties” refers, collectively, to Sugarfina and to you, as a customer of Sugarfina.

1. PURCHASE ORDERS; TERMS

1.1. Cancellation of Purchase Orders. Your receipt of an electronic or other form of order confirmation constitutes your request for Goods or services. It does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We may require additional verifications or information. If you need to cancel an order following submission, please contact us immediately; Orders for which we have already commenced work to complete or fulfill are not cancellable.

We reserve the right at any time after receipt of your order to accept or decline your order for any reason, or to cancel an order that has already been accepted. Other than as set out in these Terms and Conditions, we shall not be responsible for any loss or damage of any kind, which you might suffer by reason of us declining to accept or for canceling your order.

1.2. Payment. You must pay in full by debit card, credit card, or corporate check in advance when you submit an order through our website, email, fax, or telephone. Payment will be collected at the time of placing the order. You authorize Sugarfina to charge your credit card on file with us for your orders and any additional charges that accrue. Unless agreed otherwise in writing by us, full payment must be received in advance before any Goods are prepared or dispatched. If any payment is subsequently withdrawn, disputed, charged back or reversed in any way, you will have to pay the full amount of the sale, plus an administration fee and any additional fees incurred by Sugarfina. If you are placing an order through a company, we may agree to credit terms via a separate written agreement. Please contact us to make arrangements.

1.3. No Refunds. As nearly all of our products are either edible or personalized, all sales are final and no refunds or store credit will be issued.

1.4. Cancellation. Orders cannot be canceled once Sugarfina has begun processing the order. In order to promptly deliver our candy as fresh as possible, the processing of an order commences almost immediately once you have submitted your order. However, should you wish to change or cancel your order, you are welcome to call us to check whether the processing of an order has commenced, and if it has not we may be able to accommodate your request to cancel and will do our best to meet your needs. Any changes to or cancellation of an order can only be made with Sugarfina’s prior written approval and additional charges may apply. Any agreement by Sugarfina to accommodate a cancellation request will be conditioned upon payment of any and all costs, charges and expenses already incurred by Sugarfina to that point, and you agree that such amounts may be deducted from any payments previously made to Sugarfina. Accordingly, we encourage you to carefully check your order before submitting it.

2. CUSTOM ORDERS

2.1. Quotes/Custom Orders/Changes. Price quotes are good for thirty (30) days. Custom pricing and design options are subject to change at any time. For custom orders, we require an upfront, non-refundable payment of $75 which will be credited against your full order should you proceed. Unless otherwise stated by Sugarfina, pricing for custom orders includes two rounds of reviews for custom artwork, so that you will have the opportunity to review a draft of the artwork and then review any revisions made based on your comments arising from your initial review. Additional design changes will incur an additional non-refundable $75 charge for each additional round of design drafts and review. Sugarfina will provide proofs of custom artwork that must be approved by you. Final designs will be reflected on a Custom Approval Form. Once that Form is submitted, Sugarfina will immediately begin production of the order and no further changes to the artwork will be permitted. By finalizing your order through the Approval Form, you are verifying that all information is accurate and according to your specifications. Sugarfina is not responsible for any errors in artwork or copy provided by you. Sugarfina is not responsible for any errors once such custom work has been approved by you.

2.2. Intellectual Property Artwork. By submitting content, images, or artwork (collectively, the “Artwork”) to us for custom work, you (i) represent and warrant that you have the complete and exhaustive right, title, and ownership in the Artwork, and no portion of the Artwork infringes or otherwise misappropriates any third party intellectual property or similar rights or claims, anywhere in the world, and (ii) will be deemed to provide Sugarfina with a perpetual, fully paid-up, non-exclusive, irrevocable and non-terminable right and license to use, exploit, and display the Artwork for purposes of completing the custom order and fulfilling the terms herein. We will not check the content of any images provided by you. However, if we believe any image does not comply with these terms, we reserve the right to refuse to use it, without any obligation or liability to you.

As part of the license provided herein, we may photograph products that we provide to you, including those decorated with or otherwise displaying or making use of the Artwork, and we may display these photographs on our website or other advertising media, for Sugarfina’s marketing and promotional purposes, unless specifically requested in writing by you not to do so.

3. DELIVERY

3.1. Delivery. Goods will be delivered within a reasonable time after receipt of an order, subject to availability of finished Goods. Delivery will be deemed to have taken place at the time Sugarfina places an order in the possession of any carrier service (e.g., UPS, USPS, or Federal Express) for customer delivery. Sugarfina is not responsible for lost, stolen or damaged Goods once an order leaves our possession. Unless expressly agreed otherwise, Sugarfina will select the method of shipment and the carrier for all ordered items.

If you choose a specific delivery date when placing your order, we will do our best to arrange delivery for that day. You acknowledge that requested delivery dates are non-binding estimates only and that you have no claim against us for any delays or early deliveries. Once your order is in the hands of the carrier we have no control over the delivery process and we recommend you choose a delivery date at least one day early to avoid disappointment. We reserve the right to make deliveries in installments which shall not relieve you from your obligation to accept and pay for remaining deliveries.

If for any reason you fail to accept delivery for any items, or if we are unable to deliver the items at the address specified on the order, (i) risk of loss to the items will pass to you, as the buyer, (ii) the items will be deemed to have been delivered, and (iii) we, at our option, may store the items until you pick them up, subject to your reimbursement for any storage-related costs or expenses.

Title and risk of loss will pass to you, as the buyer, upon delivery of Goods for shipment.

3.2. Summer Shipping (May - September). Our products are delicate and may not do well in higher temperatures. During the Summer months, Sugarfina typically releases a policy regarding its summer-shipping capabilities. All orders placed for delivery within that period are subject to that policy.

3.3. Inspection. You must inspect all deliveries immediately, and notify us immediately in writing of all claims for damages or defects. All claims relating to defects or shortage must be made within fourteen (14) days of delivery. Any such claims must be made in writing via email to your primary Sugarfina contact. Any rights to reject items expires after this 14-day period. If you timely notify us of any defective or damaged Goods, as your exclusive remedy, we will, in our discretion, either replace the Goods with similar items or credit you the purchase price.

3.4. Drop Ship. To ensure accuracy, all drop ship addresses will be used exactly as given by the client. Drop ship addresses must be provided on Sugarfina’s template. Client provided templates will not be accepted and Sugarfina will not translate customer-provided information onto the Sugarfina template. Sugarfina accepts no liability for packages believed to be returned or delivered to incorrect addresses, and all returned packages will be destroyed or otherwise disposed of at Sugarfina’s discretion.

Please note that order lead time commitments do not commence until all order information, including all drop ship addresses, have been received by Sugarfina.

4. MERCHANDISING MATERIALS; LICENSE

4.1. Signage and Merchandising Support. From time to time, Sugarfina may provide you with access to certain marketing-related materials for use in reselling the Goods, including signage, graphics, artwork, and other proprietary customer-facing materials (collectively, the “Merchandising Materials”). Sugarfina hereby grants to you a limited, terminable, non-exclusive right and license (the “Merchandising License”) to use the Merchandising Materials solely in connection with and for the specific purpose of marketing and selling the Goods, subject in all respects to the following:

4.1.1. The Merchandising Materials may not be altered, amended, defaced, manipulated, copied or appropriated for other purposes, without the express written consent of Sugarfina;

4.1.2. The Merchandising Materials may not be used for the benefit of any products or goods other than the Goods; and

4.1.3. Use of the Merchandising Materials and/or the Merchandising License must comply in all respects with any directions or instructions that Sugarfina may provide from time to time (including those set forth in any Brand Standards or Marketing Guidelines issued by Sugarfina), whether or not such directions or instructions are provided at the same time or in the same method as the Merchandising Materials.

4.2. Merchandising License Term. The term of the Merchandising License shall be until the earlier of (i) written notice of termination by Sugarfina (for any reason whatsoever and in its sole and absolute discretion), and (ii) six (6) months after your most recent purchase of Goods from Sugarfina. Upon conclusion of the term hereunder, the Merchandising License shall automatically terminate, without any further action of the Parties.

4.3. Ownership. Subject to the express rights and licenses granted in this Agreement, you acknowledge and agree as follows:

4.3.1. any and all Sugarfina’s intellectual property, including the “Sugarfina” mark and those reflected or referenced in the Marketing Materials (collectively, the “Intellectual Property”), is the sole and exclusive property of Sugarfina or its licensors;

4.3.2. you will not acquire any ownership interest in any of the Intellectual Property;

4.3.3. any goodwill derived from the use of the Intellectual Property inures to the benefit of Sugarfina or its licensors, as the case may be;

4.3.4. if you acquire any rights in or relating to any product (including any Goods) purchased under this Agreement (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to Sugarfina or its licensors, as the case may be, without further action by either Party; and

4.3.5. you will use the rights granted under the Merchandising License solely in accordance with this Agreement and the instructions of Sugarfina.

4.4. Negative Covenants. During and after the Term, you will not do any of the following:

4.4.1. Register or apply for registrations, anywhere in the world, for the Intellectual Property or any rights that are similar to, confusingly similar to, or otherwise incorporate the Intellectual Property;

4.4.2. Use any mark, anywhere, that is confusingly similar to the Intellectual Property, except as provided under the Merchandising License;

4.4.3. Engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or Sugarfina; or

4.4.4. Misappropriate any of the Intellectual Property for use as a domain name or internet search term, without prior written consent of Sugarfina.

5. RESALE PRICES; DISCOUNTING

5.1. Sugarfina’s brand and products are closely tied to a luxury experience. Liquidations, “close out sales,” or other material discounting of the Goods are not consistent with Sugarfina’s brand. Sugarfina will, therefore, cancel all orders and indefinitely terminate any supply relationship with a reseller that Sugarfina determines has advertised, offered, or sold Goods at a net retail sales price that is either offered in connection with a material discount or sale, or that is inconsistent with pricing guidelines that may be announced by Sugarfina from time to time. You are free to decide whether to offer such pricing and these terms do not constitute an agreement otherwise, but Sugarfina is also free to stop selling to you.

6. LIMITED WARRANTY; LIMITED LIABILITY; INDEMNIFICATION

6.1. Warranty. Sugarfina warrants that it has the right to provide its products, but otherwise the Goods are provided on an “as- is” basis, without warranty of any kind, express or implied, oral or written. In particular, but without limitation, no warranty is given that the Goods are suitable for the particular purposes intended by you. Except for the foregoing, you acknowledge and agree that (a) neither Sugarfina nor any person on Sugarfina’s behalf has made or makes any express or implied representation or warranty whatsoever, including any warranties of merchantability, fitness for a particular purpose, non-infringement, or performance of products to standards specific to the country of import, whether arising by law, course of dealing, course of performance, usage of trade or otherwise, all of which are expressly disclaimed, and (b) you have not relied on any representation or warranty made by Sugarfina, or any other person on Sugarfina’s behalf.

6.2. Limited Liability. In no event, at any time, shall the aggregate liability of Sugarfina exceed the amount paid by you to Sugarfina for the Goods or services being purchased and Sugarfina shall not be responsible for any lost profits or other damages, including special, direct, indirect, incidental, consequential or any other damages, however caused. Without limitation, to the fullest extent permitted by applicable law, Sugarfina shall not be liable for any claim arising out of the performance, non-performance, delay in delivery of or defect in the Goods, nor for any special, indirect, economic or consequential loss or damage however arising or however caused (including loss of profit or loss of revenue) whether from negligence or otherwise in connection with the supply, functioning, or use of the Goods sold by Sugarfina.

6.3. Indemnification. To the fullest extent permitted by law, you agree to indemnify, hold harmless, and defend Sugarfina, Inc., its affiliates, parents, and subsidiaries, and their respective agents, officers, directors, employees, partners, consultants, independent contractors, successors and assigns against any and all loss, claim of loss, injury, costs and damages arising from (i) your purchase, display, or use of Goods (except where such claims relate to breach of any warranties provided by Sugarfina), (ii) your breach of the terms hereof, or (iii) your or your representatives’ gross negligence or willful misconduct.

7. MISCELLANEOUS

7.1. Product Defects and Recalls. You will promptly notify Sugarfina of any identified material defects or suspected defects in the Goods, and will use commercially reasonable efforts to comply with any product recalls or inspection needs initiated by Sugarfina.

7.2. Choice of Law; Dispute Resolution. Any dispute arising from or relating to the Parties’ relationship and/or these Terms will be governed by the laws of the State of California, without regard to any applicable choice of law rules. If a dispute arising from or relating to the Parties’ relationship and/or these Terms cannot be resolved by the Parties through unsupervised negotiation, it shall be submitted for resolution through binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall take place in Los Angeles, California, before a single arbitrator. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The prevailing party in such arbitration shall be awarded its reasonable attorneys’ fees and costs. YOU AND SUGARFINA AGREE THAT ANY CLAIM ARISING OUT OF OR RELATED TO YOUR ORDER WITH SUGARFINA MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CLAIM ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

7.3. Integration; Severability. These Terms and Conditions shall constitute the entire agreement between you and Sugarfina regarding your order and the terms hereunder. If any provision of these Terms and Conditions is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms and Conditions, which shall remain in full force and effect.

7.4. Amendment. Sugarfina may amend these Terms and Conditions at any time and without notice, and it is your responsibility to review these Terms and Conditions for any changes. Your use of the Website following any amendment of these Terms and Conditions will signify your assent to and acceptance of its revised terms.