Please read carefully these Terms and Conditions (the “Terms and Conditions,” or the “Terms”) before working with The Vanity Project LLC (“TVP,”Vor the “Designer/Distributor”). The access to and use of the services provided by TVP is conditioned upon acceptance of and compliance with these Terms.
These Terms set forth the understanding and agreement of the Parties with respect to: (a) Designer’s/Distributor’s design/production of apparel and other promotional items (the “Product”ror “Products”); and (b) the fulfillment/distribution of the Products by TVP to a purchaser of Products (a “Buyer”) through e-commerce or online sources as set forth below.
TVP and Buyer hereby agree as follows:
I. DESIGN/PRODUCTION SERVICES
1.1 Design Development. The Parties understand and agree that Designer/Distributor will be principally responsible for the development and presentation to the Buyer of designs for the Products, which will be reviewed by Buyer, and which Buyer may approve, disapprove or modify in its sole discretion, in accordance with the Terms.
1.2 Design and Creative Consulting Fee. As compensation for the designs and creative consulting services rendered under this Section 1, the Company shall pay an hourly design fee (the “Design Fee”), which shall become due upon the performance of such design work , as agreed upon by the Parties via email or other written communication.
1.3 Intellectual Property. All right, title and interest in and to the samples, sketches, design, artwork, logos and other creative materials furnished to Buyer by Designer/Distributor (the “Design Concepts”) shall be the sole property of Designer/Distributor, until such time as Buyer has provided payment of the Design Fee, at which point the Design Concepts shall be assigned to and shall become the sole property of Buyer.
1.4 Design Fee Credit. Upon reaching a minimum total purchase of 144 units of apparel, Designer/Distributor will provide Buyer with a credit in the amount of two (2) hours of design work. For purchases of items other than apparel, TVP may provide a design credit that will be agreed upon by the Parties in email or other written communication.
1.5 Logistics Consultation. Upon the request of Buyer, Designer/Distributor may provide consulting services with respect to the logistics of distribution of the Products, at an additional fee to be discussed and agreed in writing between the Parties.
2.1. Production Pricing. Designer/Distributor shall charge no more than the agreed production price as set forth by the Parties in email or another form of written communication, such as an estimate or order confirmation. Buyer understands and agrees that printing rates, fabric prices, and other material prices are subject to change due to market force, provided that Designer/Distributor will notify Buyer of any price changes at least thirty (30) days prior to instituting a change. If Buyer desires to stop offering a product due to a price change, Designer/Distributor will remove such product from Buyer’s offerings.
2.2. On-Demand Production. For on-demand, digitally printed products, the production price per product is available at www.tvp.nyc/on-demand-items and will be provided to Buyer in writing or email (website price includes picking and packing fee, but does not include TVP’s service fee, which is a per-item fee deducted from each sale as agreed in advance by the Parties via email or other form of written communication). Pre-produced inventory will incur a separate fulfillment fee, which will be billed after shipping the item.
2.3. Choice of Products. Designer/Distributor offers a number of garment styles within its fulfillment system that are available for Buyer to select for printing. For each such style, Designer/Distributor will provide Buyer with printing costs for each item, and Buyer, in its sole discretion, may determine the retail price to the customer.
2.4 Unavailability of Products. In the event that an order will be delayed due to a Product’s being back ordered, defective, or discontinued, Designer/Distributor will notify Buyer. At that time, Buyer will have the option to:
1. Hold the order until all item(s) are available for shipping.
2. Cancel the item(s) causing the delay, and request shipment of the remaining item(s)
3. Email the desired change in style, color, or size, based on availability.
4. Cancel the entire order.
2.5. Substitution of Products. For many Products there may be comparable brands/styles that can be substituted for the ordered Product, however, Designer/Distributor will never substitute garments unless previously approved by Buyer.
III. PRODUCT DISTRIBUTION
3.1. Shipping Costs. Buyer must select a shipping option, either for bulk shipments or individual fulfillment to customers. In the event of the need for any changes to the shipping program associated with Buyer’s fulfillment account, Designer/Distributor will notify Buyer at least thirty (30) days in advance. Buyer may request to change the shipping program associated with its fulfillment account at any time; provided that such change will not be implemented until the beginning of the following calendar month. For either pre-printed or on-demand products, shipping costs are additional and billed directly to the customer or to Buyer, depending on Buyer’s preference. Depending on the program Buyer chooses, TVP will provide Buyer with a written estimate for bulk shipping costs or costs for individual product fulfillment.
3.2. Packaging of Products. Designer/Distributor agrees to professionally package all items prior to shipping, including but not limited to, integrating Buyer’s branding sticker into the shipping label, if Buyer elects this option. Designer/Distributor shall be responsible to maintain necessary packaging supplies on hand to allow for orders to be fulfilled in a timely manner. Buyer shall be responsible to provide and/or pay for any Buyer-specific packaging materials (i.e., marketing materials, return labels, mailers, boxes, etc.).
3.3. Handling Fee. As set forth by the Parties in email or other written communication, Buyer will be billed a standard handling fee covering the price of packaging and standard branding activities, however, Designer/Distributor may require an additional fee for any packaging requirements that fall outside the normal established process, as discussed and agreed by the Parties.
3.4. Liability and Shipping Insurance. Once Designer/Distributor has printed and shipped an order to the specifications provided by Buyer, Designer/Distributor no longer retains any liability for the delivery of the order to the customer. An order is considered to be shipped at the point the carrier picks up the shipment from a Designer/Distributor facility. If Buyer desires shipping insurance, Buyer must mark the individual order as such in the original submitted order file, Buyer will be billed for additional insurance costs, and Designer/Distributor will assume liability for delivery. FOR ANY UNINSURED ORDER, BUYER IS RESPONSIBLE FOR PAYING FOR ALL REORDERING, REPRINTING, AND SHIPPING /RESHIPPING EXPENSES, REGARDLESS OF CUSTOMER DELIVERY STATUS OR SHIPMENT DAMAGE, PROVIDED COURIER SHIPMENT TRACKING INDICATES SHIPMENT WAS SENT BY DISTRIBUTOR AND PROCESSED BY COURIER.
3.5 The goods will be imported on behalf of the consignee/ebuyer. The consignee authorizes the (name of eTailer/supplier) to import the goods on his behalf. Further, the consignee/buyer agrees that (name of the eTailer/supplier) may delegate the obligation to import the goods on his behalf to a subcontractor (e.g. customs broker). The consignee will pay the taxes & duties in addition with the purchase price of the goods
3.6. Returns & Refunds. Designer/Distributor shall accept responsibility for any unwashed and unworn items deemed to be defective, and shall rectify, replace or refund the Customer. If Buyer believes an item to be defective, Buyer shall supply Designer/Distributor with proof of defect by returning the garment in question to Designer/Distributor for inspection. If Designer/Distributor agrees there is a material defect, Designer/Distributor is responsible for all material and printed image defects, and for order accuracy (item not being the ordered style/color/size/image). Items are printed according to industry standards, and if requested, Designer/Distributor will notify Buyer of the type of ink and method used, and the characteristics common to each method. Designer/Distributor is not liable for the result of any characteristic of a particular method that Buyer may misconstrue as a defect. If an item is deemed to be defective for any of the reasons mentioned above Designer/Distributor agrees to replace item with proper style/color/size and ship back to customer at no charge to Buyer or Customer. If a Customer refuses replacement, Buyer will receive credit for the cost of the item. If Designer/Distributor determines that the item in question is not defective, Designer/Distributor will contact Buyer to determine course of action. In some cases this may require the returned item to be shipped to Buyer, at Buyer’s expense, for inspection.
3.7 Returns & Refund Policy for E-Commerce. Buyer must determine its own policy for returns and exchanges of products. TVP will not be responsible for paying for return shipping of any product. Buyer can choose to allow or not allow returns and/or exchanges. TVP will charge buyer $2.50 per item to process a return or exchange as well as the cost of shipping out the new item in the event of an exchange. Buyer can choose to pay for this cost or require that customer’s pay this cost. TVP will execute buyer’s wishes on the returns and exchange policy.
IV. E-COMMERCE PRODUCTION
4.1 Design and Development; Launch. Designer/Distributor will design and develop in accordance with these Terms, an e-commerce website(s) for Buyer (the “Buyer Stores”). The Buyer Stores will be generally comparable in quality, ease of use and performance as then-current industry standards for e-commerce websites that sell products and services similar to those then offered through the Buyer Stores. Buyer Stores will contain at a minimum the functionality and features of the third-party platform and plan chosen by the Buyer, along with such other functionality and features as may be agreed upon by the Parties. The Parties will work together in good faith and use commercially reasonable efforts to cause each Buyer Store to launch as soon as practicable after the Effective Date.
4.2 Design Templates; Look and Feel; Approval Rights. Buyer Stores will be comprised of a series of templates (the “Design Templates”) developed by Designer/Distributor and Buyer, which will define the format and layout of a page on Buyer Stores and establish the placement and size of content type blocks (i.e., text, graphics, promotions, advertising, navigation bar and images). The characteristics of Buyer Stores will be consistent with any existing website owned and/or operated by Buyer, or as otherwise agreed upon by the Parties. Buyer will provide Designer/Distributor with any content necessary for the operation of Buyer Stores in such format as may be agreed upon by the Parties. Buyer shall have the right to approve the content, and the overall look and feel, of Buyer Stores in advance of its respective launch date, such approval not to be unreasonably withheld or delayed. Subsequent to launch date for each Buyer Store, no material changes to the Buyer Stores will be made without the approval of the Parties.
4.3 Hosting, Maintenance and Operations of Buyer Stores. Designer/Distributor will host, maintain and operate the Buyer Stores in accordance with these Terms, either on Designer/Distributor’s marketplace at www.tvpmarket.com or on a separate URL chosen by the Buyer. The equipment and software used by Designer/Distributor to host and operate Buyer Stores, and the security provided by Designer/Distributor with respect to the Buyer Stores, will be hosted by a third party (such as Shopify or Squarespace, two of the industry leaders in e-commerce hosting). The hosting platform will be agreed upon by the parties in email or other written communication and will contain at least generally comparable to then-current prevailing industry standards for e-commerce websites that sell products and services similar to those then offered through the Buyer Stores. Buyer Stores will be operated at URLs designated by the Buyer, and at such other URLs as may be agreed upon by the Parties (together, the “Designated URL’s). Buyer agrees that Designer/Distributor will be enabled to provide all domain name server services for the Designated URLs for the Buyer Stores. If Buyer notifies Designer/Distributor that it reasonably believes Designer/Distributor’s use of any of Buyer’s intellectual property on the Buyer Stores is not consistent with the quality or goodwill of such intellectual property, then Designer/Distributor will use commercially-reasonable efforts to alter such use so that it is consistent with such quality or goodwill.
4.4 Order Processing and Fulfillment. Designer/Distributor will be responsible for all aspects of order processing and fulfillment for the Buyer Stores, including those functions set forth by the Parties in email or other written communication. The order processing and fulfillment services provided by Designer/Distributor with respect to the Buyer Stores will be generally comparable in quality as then-current prevailing industry standards for e-commerce websites that sell products and services similar to those then offered through the Buyer Stores.
4.5. Collection of Sales Proceeds; Distribution. For any proceeds from the sale of merchandise and related services through the Buyer Stores collected and processed by Designer/Distributor through TVP Market, Designer/Distributor will account to Buyer and distribute payments within thirty (30) days after the end of each quarter through a report, showing in reasonable detail, the calculation of such payments. For any proceeds from the sale of merchandise and related services through the Buyer Stores collected and processed by Buyer, Designer/Distributor will invoice Buyer for such merchandise and related services.
V. TERM; TERMINATION
5.1 Term. The Agreement shall commence on the Effective Date, and continue until terminated pursuant to the terms of Paragraph 5.2.
5.2 Termination. At any time, and for any reason or no reason, either party may terminate this agreement by providing the other party with written notice of its intent to terminate, with such termination being effective sixty (60) days following receipt of notice.
5.3 Fees Upon Termination. Upon termination of this Agreement pursuant to Paragraph 5.2, any fees accrued but not yet paid to Designer/Distributor shall be payable by Buyer on or before the effective date of such termination.
5.4 Obligations Upon Termination. Upon termination of this Agreement pursuant to Paragraph 5.2, neither party shall thereafter have any obligation or liability to the other, except any obligation or liability: (a) resulting from any default or breach of this Agreement occurring prior to the date of termination; or (b) settlement of compensation in accordance with Paragraph 5.3.
5.4 Survival. The Parties agree that relevant provisions of these Terms will survive termination, including but not limited to the provisions of Article 6 regarding non-circumvention and trade secrets.
VI. NON-CIRCUMVENTION; TRADE SECRETS
6.1 Contacts with Subcontractors. Buyer agrees not to contact or initiate contact at any time for any purpose, either directly or indirectly, any subcontractor whose identity was revealed, either directly or indirectly, through the efforts of Designer/Distributor. Buyer further agrees not to undertake any transaction or a series of transactions of any kind with such subcontractor for a period of two (2) years following termination of these Terms.
6.2 Trade Secrets. Buyer recognizes and acknowledges that much of the business information communicated to Buyer by Designer/Distributor through the course of business conducted in furtherance of these Terms may be considered a trade secret of Designer/Distributor. Buyer thus agrees to preserve the secrecy of said information, including but not limited to, the identities of any and all designers, vendors, consultants, and other subcontractors engaged in a commercial relationship with Designer/Distributor. This provision shall be enforced from the date of this agreement, and for a period of five (5) years thereafter.
6.3 Applicability of Agreement. Buyer agrees that the provisions of this paragraph extend to its employees and officers. Said principals further agree to provide the requisite internal security of the subject data within its organizations.
7.1 Product Indemnity. Buyer shall defend, indemnify, and hold Designer/Distributor harmless from and against any claims, demands, liabilities, or expenses (including attorney’s fees and costs) for any injury or damage, including, but not limited to, any personal or bodily injury or tangible property damage, arising out of or resulting in any way from any alleged defects in the material, workmanship, or performance of Products, or any other alleged act, omission, or misrepresentation by Buyer.
7.2 Intellectual Property Rights/Infringement Indemnity. Buyer shall defend, indemnify and hold Designer/Distributor harmless from and against any claims, demands, liabilities, or expenses (including attorney’s fees and costs) incurred by Designer/Distributor arising from the alleged infringement of any patent, copyright, trademark, trade secret or other proprietary right by reason of the manufacture, sale, marketing, or use of Product in accordance with the terms of these Terms. Upon threat of claim or claim of infringement, Buyer may, at its expense and option: (i) procure the right to continue using any part of Product; (ii) replace the infringing Product with a non-infringing Product of similar performance; or (iii) modify Product to make it non-infringing. Designer/Distributor shall have no liability under this Section 11.2 for any claim of infringement arising from modification of the Products, as authorized by Buyer or otherwise, or for any claim of infringement arising from use of the Products with materials not furnished by Designer/Distributor.
7.3 Multi-Media Indemnity. For Product incorporating multimedia elements, Buyer shall defend, indemnify and hold Designer/Distributor harmless from and against any claims, demands, liabilities, or expenses (including attorney’s fees and costs) incurred by Designer/Distributor to the extent it is based upon a claim that the Product either: (i) violates a third party’s right of publicity and/or right of privacy; or (ii) contains any obscene, defamatory or libelous matter.
7.4 Limitation of Liability. Neither party shall be liable to the other for lost profits of business, indirect, consequential or punitive damages, whether based in contract or tort (including negligence, strict liability or otherwise), and whether or not advised of the possibility of such damages. This limitation is not intended to limit liability for personal injury or death as a result of a defect in a Product in those jurisdictions where the law does not allow this limitation.
VIII. GENERAL PROVISIONS
8.1 Relationship of the Parties. Nothing herein contained shall be construed to place the parties in the relationship of partners, joint venturers or commercial co-venturers, and neither the Designer/Distributor nor the Buyer shall have any power to obligate or bind the other in any manner whatsoever, except as otherwise provided for herein.
8.2 Notices. Any notice that either party is required to give the other party must be in writing and may be given: (i) by electronic means; (ii) by personal delivery to an officer of the party; or (iii) by mailing the same by registered or certified mail to the party to whom the notice is directed at the address of such party as set forth at the beginning of these Terms, or such other address as the Parties may hereinafter designate.
8.3 Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of New York.
8.4 Cooperation. Each party agrees to execute and deliver such further documents and to cooperate as may be necessary to implement and give effect to the provisions contained herein.
8.5 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform which results from causes outside its reasonable control.
8.6 Attorneys Fees. In the event there is any dispute concerning the terms of these Terms or the performance of any party hereto, and any party hereto retains counsel for the purpose of enforcing any of the provisions of these Terms or asserting the terms of these Terms in defense of any suit filed against said party, each party shall be solely responsible for its own costs and attorney’s fees incurred in connection with the dispute irrespective of whether or not a lawsuit is actually commenced or prosecuted to conclusion.
8.7 Section Headings. Section headings are for convenience only, and shall not be used in construing the Terms.
8.8 Incorporation of Attachments. Any attachment referred to hereinabove and attached hereto is hereby incorporated herein by reference as if set forth herein in full.
8.9 Severability. A judicial determination that any provision of these Terms is invalid in whole or in part shall not affect the enforceability of those provisions found to be valid.
8.10 No Implied Waivers. If either party fails to require performance of any duty hereunder by the other party, such failure shall not affect its right to require performance of that or any other duty thereafter. The waiver by either party of a breach of any provision of these Terms shall not be a waiver of the provision itself or a waiver of any breach thereafter, or a waiver of any other provision herein.
8.11 Binding Effect/Assignment. These Terms shall be binding upon and shall inure to the benefit of the Parties hereto, and their respective representatives, successors and permitted assigns. These Terms shall not be assignable by either party, without the express written consent of the other party, which consent shall not be unreasonably withheld. Any attempted assignment in violation of this provision will be void.
8.13 Entire Agreement. These Terms constitute the entire agreement between the Parties regarding its subject matter, and supersede any and all previous proposals, representations or statements, oral or written. Any previous agreement between the Parties pertaining to the subject matter of these Terms is expressly terminated. Any modifications to these Terms must be in writing and signed by authorized representatives of both Parties.