Terms and Conditions

TERMS AND CONDITIONS 

(Updated - May 2022)

These terms and conditions govern the purchase of any products (“Heather's Choice Products”) from Heather’s Choice LLC., an Alaskan limited liability company dba Heather's Choice®. By submitting a dealer application and/or any purchase order, you (hereinafter, “Dealer”) agree to be bound by these terms and conditions, as amended from time to time as provided herein. 

1. AGREEMENT

These terms and conditions, together with the purchase order and any other documents specifically adopted by reference in any such documents (the “Agreement”), constitute the entire agreement between the parties and supersede any previous oral or written representations, including but not limited to provisions in Heather's Choice quotations, proposals, acknowledgments or other documents. No course of dealing or usage of trade shall be applicable unless expressly incorporated in this Agreement. The terms of this Agreement may not be varied or modified in any manner, unless in a subsequent writing signed by an authorized representative of Heather's Choice. In the event the terms and conditions of any purchase order or any other agreement conflict with this Agreement, this Agreement shall control. 

2. PURCHASE; PRICES; TERMS OF PAYMENT; SHIPPING 

2.1 Purchase; Prices. Dealer agrees to purchase from Heather's Choice the Heather's Choice Products described, and for the price set forth, on any purchase order submitted by Dealer to Heather's Choice. No substitution of Heather's Choice Products may be made without Dealer’s consent and approval. Orders are subject to minimum quantity requirements of $150 listed on Heather's Choice current purchase order form.

2.2 Terms of Payment. The price for Heather's Choice Products purchased by Dealer shall be due and payable prior to the date Products shipped unless Heather's Choice and Dealer have agreed to alternative credit terms (Net 30). Any payments not received by Heather's Choice by the due date will be considered past due. In the event Dealer fails to make timely payment, Dealer's account will be placed on hold and no further purchases will be authorized until payment is made. Dealer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Heather's Choice in collecting such amounts. Heather's Choice reserves the right to suspend performance of its obligations hereunder (or under any other agreement with Dealer) in the event Dealer fails to make timely payment hereunder or under any other agreement with Heather's Choice. Heather's Choice retains a security interest in the purchased Heather's Choice Products until the purchase price has been paid in full. 

2.3 Taxes. Heather's Choice prices shall be exclusive of all federal, state or local sales, use or excise taxes levied upon, or measured by, the sale, the sales price, or use of goods required in the performance of this Agreement. Heather's Choice shall list separately on its invoice any such tax lawfully applicable to any such goods, and payable by Dealer, with respect to which Dealer does not furnish to Heather's Choice lawful evidence of exemption. 

2.4 Terms of Shipment. All shipments are made F.O.B. origin (Heather's Choice facility), and all risk of loss or damages to the Heathers Choice Products shall pass to Dealer when Heather's Choice delivers the Heather's Choice Products to an authorized carrier for shipment to Dealer. Partial and/or installment shipments are authorized and shall be paid for when due. Shipment schedules are approximate and Heather's Choice will use commercially reasonable efforts to complete shipment as indicated. Shipments are made in a commercially reasonable manner as determined by Heather's Choice; provided, however, that if Dealer has a preferred carrier and if carrier account number, carrier name and contact numbers is noted on any purchase order, Heather's  Choice will use commercially reasonable efforts to use such carrier. 

3. INSPECTIONS; RETURNS 

3.1 Inspections. All goods provided hereunder shall be subject to inspection at the point of destination, notwithstanding prior payment therefore by Dealer within five (5) business days of receipt. If, in Dealer’s judgment, acting reasonably and in good faith, any of the Heather's Choice Products are defective or otherwise not in conformity with the Dealer’s purchase order (including shipping discrepancies, shortages and/or invoice errors), Dealer shall notify Heather's Choice in writing within such five (5) business day period and, if applicable, may return the Heather's Choice Products as provided under Section 3.2 below. Failure to give timely notice, as provided above, shall be deemed irrevocable acceptance of the Heather's Choice Products. Claims for damage occurring during shipping shall be submitted by Heather's Choice directly to the shipping carrier if Heather's Choice was responsible for shipping, otherwise Dealer will submit any claims for damages during shipping directly to the shipping carrier used by Dealer. 

3.2 Returns. Product returns will be authorized for mis-shipments or defective goods by contacting Heather's Choice. To submit a return, Dealer must contact Heather’s Choice within 90 days of the invoice date. If the return is because the Heather's Choice Products are defective or otherwise not in conformity with the Dealer’s purchase order, Dealer will receive full merchandise credit and reimbursement for return shipping charges. If a return authorization is granted for any other reason, Dealer covenants and agrees to pay Heather's Choice a 20% restocking fee and Dealer will be responsible, at Dealer’s sole cost and expense, for return shipping charges. 

4. LIMITATION OF LIABILITY

4.1 Limitation of Liability.  HEATHER’S CHOICE SHALL NOT BE LIABLE TO DEALER OR ANY THIRD PARTY UNDER ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, EVEN IF HEATHER’S CHOICE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT. 

5. TERMINATION 

5.1 Termination. Heather's Choice shall have the right, in its sole and absolute discretion, with or without cause, to terminate this Agreement and any relationship with Dealer hereunder and cancel, suspend and/or withhold shipments of Heather's Choice Products. 

5.2 Effect of Termination. On termination of this Agreement for any reason, (a) any amounts owed to Heather's Choice under this Agreement before the termination will be immediately due and payable, (b) all rights and obligations of the parties under this Agreement shall immediately terminate, and (c) each party shall return to the other all property and confidential information of the other party in its possession or control. The termination of this Agreement, regardless of how it occurs, will not relieve Dealer of any obligations that have accrued before the termination. In addition, Heather's Choice shall have the right, in its sole and absolute discretion, to elect to repurchase any Heather's Choice Products previously purchased by Dealer that are unsold as of the date of the termination for an amount equal to the original purchase price of such products plus shipping. 

6. PRESENTATION OF BRAND; REVOCABLE LICENSE

6.1 Presentation of the Brand. Dealer agrees that all Heather's Choice products presented online or in print advertising must show, clearly and in focus, the current product images and the Heather's Choice logo, all of which are provided in the Heather's Choice asset folder. All Heather's Choice products must be identified with the Heather's Choice brand name and the current product name. 

6.2 Revocable License. Heather's Choice hereby grants to Dealer a revocable, non-exclusive, non-transferable license to use, solely for purposes contemplated under this Agreement, the Heather's Choice name and images. 

7. AUTHORIZED DEALER POLICY; MSRP POLICY 

7.1 Authorized Dealer Policy. Dealer covenants and agrees to refrain from selling Heather's Choice Products outside of its physical brick and mortar store(s), or from a URL not owned by Dealer, or outside Dealers country of residence, without prior written authorization from Heather's Choice, which Heather's Choice may withhold or condition in its sole and absolute discretion. Dealer shall disclose to Heather's Choice all URLs from which it sells Heather's Choice Products. Trans-shipping of Heather's Choice Products to retailers, wholesalers or e- commerce companies and/or selling products over online auction sites is strictly prohibited. Dealer is prohibited from advertising, marketing and/or selling Heather's Choice Products on any third party storefronts (i.e., Amazon, Ebay, Google, etc.) without prior written authorization from Heather's Choice, which Heather's Choice may withhold or condition in its sole and absolute discretion. Heather's Choice reserves the right to perform an audit of Dealer’s financial statements pertaining to sales of Heather's Choice Products to ensure compliance with this policy. 

7.2 Manufacturer's Suggested Retail Price (MSRP) Policy. Dealer acknowledges that Heather's Choice has adopted a Manufacturer's Suggested Retail Price (MSRP) Policy. Dealer further acknowledges that Heather's Choice, in its unilateral discretion, may choose not to do business with Dealer as to the products covered by the MSRP Policy if Dealer advertises below the MSRP. The MSRP may be changed or amended by Heather’s Choice at its sole discretion. Current lists of MSRP products are provided on the Heather's Choice wholesale catalog. Requests for an updated wholesale catalog can be sent via email to wholesale@heatherschoice.com. 

8. GENERAL

8.1 Assignment; Binding Effect; Third-Party Beneficiaries. Dealer may not assign its rights or delegate its duties under this Agreement without Heather's Choice prior written consent, and any purported attempt to do so without that consent is null and void. Subject to the foregoing, this Agreement will be binding on the parties and their respective heirs, personal representatives, successors, and permitted assigns, and will insure to their benefit. The parties do not intend to confer any right or remedy on any third party. 

8.2 Amendment. No addition, modification, amendment, or alteration to this Agreement shall be effective against the parties unless specifically agreed upon in writing and signed by the parties. Notwithstanding the foregoing, Heather's Choice shall be entitled, in its sole and absolute discretion, to modify these Terms and Conditions on the Heather’s Choice website at http://www.heatherschoice.com/wholesale, which shall constitute written notice to Dealer.

8.3 Notices. All notices, requests, consents, and other communications required or permitted under this Agreement to Heather's Choice shall be in writing and shall be sent by registered or certified mail, postage prepaid, or transmitted via email or via facsimile to Heather's Choice at its principal place of business or address set forth on this Agreement or any purchase order. 

8.4 Non-waiver. No waiver will be binding on a party unless it is in writing and signed by the party making the waiver. A party’s waiver of a breach of a provision of this Agreement will not be a waiver of any other provision or a waiver of a subsequent breach of the same provision. 

8.5 Severability. If a provision of this Agreement is determined to be unenforceable in any respect, the enforceability of the provision in any other respect and of the remaining provisions of this Agreement will not be impaired. 

8.6 Survival. All provisions of this Agreement that would reasonably be expected to survive the termination of this Agreement will do so, including without limitation Section 8.9. 

8.7 Time of Essence. Time is of the essence with respect to all dates and time periods set forth in this Agreement. 

8.8 Governing Law. This Agreement shall be enforced and interpreted in accordance with the laws of the State of Alaska, without giving effect to any conflict-of-law principle that would result in the laws of any other jurisdiction governing this Agreement. 

8.9 Indemnification. Subject to the limitation of liability set forth in Section 4.1 above, each party each agrees to indemnify and save harmless each other party from and against any and all losses, liabilities, expenses (including reasonable attorneys’ fees and other costs and expenses), claims, liens, damages or other obligations whatsoever that may actually and reasonably be payable by virtue of or which may actually and reasonably result from the inaccuracy of any of their respective representations or the breach of any of their respective warranties, covenants or agreements made in this Agreement or in any certificate, schedule or other instrument delivered pursuant to this Agreement. 

8.10 Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in The Municipality of Anchorage, Alaska and administered by any other arbitrator mutually agreed upon between the parties to the dispute. The determination of the arbitrator(s) shall be final and binding on the parties, and judgment on the award may be entered in any court having jurisdiction thereof. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrator(s), all of the prevailing party’s costs and fees incurred in connection with the arbitration. For this purpose, “costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees and attorneys’ fees. 

Heather’s Choice

5881 Arctic Blvd Unit 100

Anchorage, AK 99518

(907) 268-1147

wholesale@heatherschoice.com