Terms & Conditions Terms and Conditions for Online and Retail Sales These terms and conditions (“Terms”) govern the sale of all Rosy Rings products (“Products”) by Rosy Rings to buyer (“Buyer”). The accompanying order form, confirmation (provided on request) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted a purchase order or other terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not modify or amend these Terms. 1. Orders. Buyer must fill out and submit to Rosy Rings an order form for each purchase of Products. Minimum initial orders are $350. Minimum reorders are $150. Backorders for under $30 are automatically cancelled. Buyer may purchase tester Products, one tester per case pack of like Products may be ordered. Testers are 25% – 50% off wholesale cost. Resale of testers is prohibited. Testers are unavailable for Candleholders, Limited Edition Oval Botanical Candles, Travel Tins (including Holiday), and Votive Gift Sets. 2. Sales/Resales. Products may only be sold in stores and on websites approved in advance by Rosy Rings. If Buyer owns multiple store locations, whether physical storefront or internet site, each location and website is subject to approval by Rosy Rings prior to the sale of any Products from that location. Third-party sales to any other retailer whether online (Amazon, Ebay or similar) or a physical location is prohibited without prior written approval from Rosy Rings. Selling Products on any third party site under a different name is strictly prohibited. Rosy Rings monitors online sales and will immediately terminate its business relationship with any Buyer doing this. Rosy Rings has the right to revoke any specials or promotional items for customers not adhering to term agreements. This includes any orders submitted without proper payment information, invalid credit card information, and past due invoices. Customers may sell discounted seasonal items for no longer than a month. 3. Marketing/Promoting Products. Rosy Rings will make available images and Product information that Buyer may require for print and online promotional purposes. Should Buyer require additional images, Buyer should contact Rosy Rings. Any imagery, text, photos, or other artwork created by or on behalf of Buyer to promote the Products must be approved by Rosy Rings prior to use. Please allow a minimum of two weeks for approval. The foregoing images, information and artwork may only be used in connection with Rosy Rings Products, only during the duration Buyer actively offers the Products for sale/resale and Buyer is not in breach of these Terms. Buyer must represent all Rosy Rings Products with Rosy Rings trademarks, logos and full product names in all promotional materials. Buyer is prohibited from repackaging, reproducing or reformulating any Rosy Rings products without the express prior written consent of Rosy Rings. 4. Prices. Buyer shall purchase Products from Rosy Rings at the prices (the “Prices”) set forth in Rosy Rings’ published price list attached hereto or as Rosy Rings accepts Buyer’s purchase order. Prices are subject to change without notice. If the Prices are increased by Rosy Rings before delivery of the Products to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Rosy Rings on the basis of such increased prices. All Prices are exclusive of all applicable taxes, duties and charges of any kind imposed by any Governmental Authority. Buyer shall be responsible for all such charges, costs and taxes, except for taxes on Rosy Rings’ income or other assets. Rosy Rings may only be sold in retail stores and/or websites approved by Rosy Rings. For fairness to all Rosy Rings customers, Rosy Rings has adopted a MSRP policy. Rosy Rings’ minimum suggested retail pricing is a 100% markup of the wholesale cost. Rosy Rings reserves the right to decline orders from any Buyer not adhering to this policy. 5. Payment Terms. New accounts must submit a credit application. Initial orders must be paid by credit card. Rosy Rings accepts American Express, Discover, MasterCard & Visa. Standard terms for reorders are Net 30 from the date of invoice, upon request and Rosy Rings’ approval. Rosy Rings will include a 3% surcharge for all term invoices paid for with a credit card. Past due accounts are subject to interest at the rate of 1% per month (12% per annum). No orders will be filled for accounts with past due balances. Buyer shall reimburse Rosy Rings for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Rosy Rings. 6. Delivery. Rosy Rings ships out of Denver, Colorado, and is unable to drop ship Products. Products will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability. Rosy Rings shall not be liable for any delays, loss or damage in transit. Unless otherwise agreed in writing by the parties, Rosy Rings shall deliver the Products to Buyer’s designated place of delivery as set forth in the applicable order form (“Delivery Point”) using Rosy Rings’ standard methods for packaging and shipping. Rosy Rings may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. If for any reason Buyer fails to accept delivery of any of the Products or if Rosy Rings is unable to deliver the Products at the Delivery Point because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Rosy Rings, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). 7. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Products at the Delivery Point. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Rosy Rings a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Colorado Uniform Commercial Code. 8. Amendment and Modification. These Terms may be amended or modified by Rosy Rings at any time. Any such amendment or modification shall be effective immediately upon delivery of written notice to Buyer. 9. Inspection and Rejection of Nonconforming Products. Buyer shall inspect the Products within 15 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Rosy Rings in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by Rosy Rings. “Nonconforming Products” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents. Returns will not be accepted without prior written authorization. When making a claim due to Nonconforming Products, Buyer must save all original boxes and packing materials for 10 days from the date Buyer provides written notice of such claim. Rosy Rings shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Rosy Rings facility at the address set forth above. If Rosy Rings exercises its option to replace Nonconforming Products, Rosy Rings shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided in this Section, all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Rosy Rings. In the event Buyer receives a return authorization for other Products, returned Products that are not defective are subject to a 25% restocking fee. 10. Limited Warranty. Rosy Rings warrants to Buyer that the Products will materially conform to the specifications set forth in Rosy Rings’ published specifications in effect as of the date of shipment under the corresponding purchase order and will be free from defects in material and workmanship. EXCEPT FOR THE WARRANTY SET FORTH HEREIN, ROSY RINGS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR 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. In the event of a breach of the limited warranty set forth herein, Rosy Rings shall, in its sole discretion, either repair or replace such Products (or the defective part) or credit or refund the price of such Products at the pro rata contract rate provided that, if Rosy Rings so requests, Buyer shall, at Rosy Rings’ expense, return such Products to Rosy Rings. THE REMEDIES SET FORTH HEREIN SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION. 11. Limitation of Liability. IN NO EVENT SHALL ROSY RINGS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) 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. 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 (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNT PAID BY BUYER TO ROSY RINGS FOR THE GOODS SOLD HEREUNDER or $100.00, WHICHEVER IS LESS. The limitation of liability set forth in this Section shall not apply to (i) liability resulting from Rosy Rings’ gross negligence or willful misconduct and (ii) death or bodily injury resulting from Rosy Rings’ acts or omissions. 12. Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Rosy Rings may terminate this Agreement if any governmental authority imposes countervailing duties or any other penalties on Products. 13. Termination. In addition to any remedies that may be provided under these Terms, Rosy Rings may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (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 assignment for the benefit of creditors. 14. Waiver. No waiver by Rosy Rings of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Rosy Rings. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. 15. Confidential Information. All non-public, confidential or proprietary information of Rosy Rings, including but not limited to specifications, samples, designs, plans, drawings, documents, data, business operations, customer lists, pricing or discounts, disclosed by Rosy Rings to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Rosy Rings in writing. Upon Rosy Rings’ request, Buyer shall promptly return all documents and other materials received from Rosy Rings. Rosy Rings shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. 16. Force Majeure. Rosy Rings shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Rosy Rings. 17. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Rosy Rings. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. 18. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. 19. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or 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. 20. Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the County of Denver, State of Colorado, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. 21. Notices. All notices, requests, claims, demands, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in this Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), 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, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section. 22. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any 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. 23. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, and Survival. Click to download Terms & Conditions.