These terms and conditions of sale (the “Terms”) constitute the entire agreement between APP GROUP INC. (“APP”), having a registered office located at 210 Eleventh Ave, Suite 100, New York, NY 10001 USA and you, the customer (“Customer” or “You”). These Terms apply without alteration or qualification, unless specifically modified in writing by APP. All orders placed with APP implies the acceptance, without restriction or reservation, by the Customer of the Terms. The Terms may be amended or modified by APP at any time with reasonable prior notice. These Terms shall prevail notwithstanding any inconsistency or additional terms and conditions or other document submitted by Customer.
1. GENERAL TERMS OF SALE
a. Each shipment of goods (“Products”) is to be treated as a separate and independent transaction for purpose of payment and settlement of claims.
b. To be valid, a purchase order must specify the quantity of Products sold, the agreed price, the payment and delivery terms, the place and date of delivery ("PO"). POs are final only when they have been accepted and confirmed in writing by APP ("Order Confirmation").
c. All sales are subject to availability of the Products and approval of Customer’s credit and/or method of payment.
d. Cancellations must be made via email to your sales representative no less than thirty (30) days following the receipt of the Order Confirmation to not incur penalty. Cancellations that do not comply with these conditions will incur a penalty of five percent (5%) of the total PO amount.
e. In case of unavailability of a Product, APP will inform You as soon as possible and offer You either a substitute Product of equivalent value, or the cancellation of your PO, at APP’s sole discretion.
f. In the event of cancellation of a PO pursuant to the section (e), all refunds, if any, to Customer will occur within thirty (30) days following the receipt of the cancellation notice.
All billing for Products listed in a PO will be at APP’s prevailing prices at the time of APP’s invoice for the Products listed therein. Stated prices are in USD and do not include any sales, use, value added, excise, goods and service, federal, state, local or other similar taxes. All such applicable taxes according to the laws in effect where the merchandise is delivered shall be paid by Customer, or in lieu thereof, Customer shall provide APP with an appropriate exemption certificate.
3. TERMS OF PAYMENT
a. Payment terms will be based on credit history of the Customer in accordance with the terms set forth by APP.
b. All payments shall be made in USD and according to the terms of the PO or upon thirty (30) days from the date of invoicing, unless the law provides a shorter period.
c. In case of late payment, APP will charge interest, equal to the maximum legal rate allowed in the Customer’s member state.
d. Customer shall make all payments hereunder by wire transfer, check or credit card, at APP’s option.
e. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with APP, whether relating to APP's breach, bankruptcy or otherwise.
f. Failure to pay any invoice in accordance with these Terms shall entitle APP to suspend further deliveries of Products both on the overdue PO and on any other PO from Customer.
4. DELIVERY OF GOODS AND PERFORMANCE OF SERVICES
a. The Products will be delivered within the shipping timeframe set forth in the Customer's PO. A delay in the execution or delivery of the Order shall in no case entitle the Customer for any damages.
b. APP reserves the right to make partial shipments. APP may cancel all or part of any PO at any time prior to shipment.
c. If APP delivers to Customer a quantity of Goods of up to five (5%) less than the quantity set forth in the PO, Customer shall not be entitled to object to or reject the Products or any portion of them by reason of the shortfall. Any liability of APP for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
d. The terms of delivery will be as indicated on the PO. APP's liability for delivery shall cease and all risk of loss or damage shall pass to Customer upon delivery to carrier or failing that, on the day of delivery of the Products to the Delivery Point regardless of any provision for payment of freight or insurance or the form of shipping documents.
e. APP shall deliver the Products to the Customer using APP's standard methods for packaging and shipping such Products at the location fixed by the PO in the Netherlands (the "Delivery Point"), unless otherwise agreed in writing by the parties. Customer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point.
f. Title to the Products passes to Customer upon complete payment of the PO. Any payment default and even partial payment may result in the Products being claimed back.
g. If for any reason Customer fails to accept delivery of any of the Products on the date of Delivery or if APP is unable to deliver the Products at the Delivery Point on such date because Customer has not provided appropriate instructions, documents, licenses or
h. authorizations: (i) risk of loss to the Products shall pass to Customer; (ii) the Products shall be deemed to have been delivered; and (iii) APP may store the Products until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
5. SHIPPING TERMS
a. The Customer must accept the Products no later than the delivery date as indicated on the PO, unless otherwise agreed by APP.
b. The Customer shall be responsible for all loading, shipping and insurance costs for purchased and returned Products if such expenses are prepaid by APP, Customer will be subsequently billed.
c. APP shall not be responsible for any loss, damage and/or pilferage of the Products sustained in transit. Claims of such nature should be made promptly by the Customer to the shipping carrier.
d. APP shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of APP including, without limitation, force majeure, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
e. If APP's performance of its obligations under these Terms is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, APP shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. INSPECTION AND REJECTION OF NONCONFORMING GOODS
a. Customer shall inspect the Products within seven (7) days of receipt ("Inspection Period"). Customer will be deemed to have accepted the Products without reserve unless Customer notifies APP in writing by registered mail with acknowledgment of receipt of any Nonconforming Products during the Inspection Period. "Nonconforming Products" means only the following: (i) product shipped is different than identified in Customer's PO; or (ii) product's label or packaging incorrectly identifies its contents.
b. If Customer timely notifies APP of any Nonconforming Products, APP shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products at APP’s cost, or (ii) credit or refund Customer the Price for such Nonconforming Products.
c. No claims for Nonconforming Products shall be authorized if: (i) Customer makes any further use of such Products after giving such notice; (ii) the defect arises because Customer failed to follow APP's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) Customer alters or repairs such Products without the prior written consent of APP.
a. The Customer may not return the Products for credit without APP’s written permission, as evidenced by a return authorization number (“RMA”) issued by APP.
b. Products must be returned within thirty (30) days of issuance of the RMA, unless otherwise agreed by APP.
c. Products to be returned must be unworn, unwashed, unaltered and free of any damage. Original tags must remain attached to the Products.
d. Products which have been in-store for a period of thirty (30) days or more cannot be returned.
8. SALE RESTRICTIONS
a. Customer acknowledges that APP sells its Products only to retailers for resale to consumers at retailers’ own boutiques and/or own website, if approved in writing. Sale or offer to sell from or at any other location or outlet or through any other distribution channel is expressly prohibited unless authorized by APP in writing. Failure to adhere to this policy is a violation of these Terms and will affect any future business with APP.
b. If the Products are identified in APP’s Core program which will be provided to the Customer each season, Customer must adhere to said program, unless otherwise approved by express written consent of APP.
8.1 ONLINE SALE RESTRICTIONS
a. Customer may offer to sell or sell the Products on Customer’s own website or on a third-party’s website provided that Customer has obtained APP's prior written consent and that the Products’ luxurious character is safeguarded. It is expressly prohibited to sell or offer to sell the Products on obvious online marketplace platforms unless authorized by APP in writing. For the avoidance of doubt, Customer shall not offer to sell or sell the Products on Customer’s own website or on a third-party’s website without
obtaining APP’s prior written authorization.
b.Failure to adhere to this policy is a violation of these Terms and will affect any future business with APP.
9. LIMITED WARRANTY
a. APP warrants that the Products are exempt from manufacturer defect in materials and workmanship and the provided warranty is therefore limited to failure of the garment under normal wear and use. APP’s liability is limited to the repair, replacement or, at APP’s discretion, credit or refund of the purchase price of the defective Products which are accepted by APP as being defective.
b. No claim under this warranty shall be valid unless Customer obtains an RMA and provides a detailed written notice of the defect(s) in materials and/or workmanship, specifying in detail any such defect(s) with supporting photographs.
c. The Customer shall have no right or authority whatsoever to assume, create, incur or otherwise effect any liability or obligation on behalf of or binding upon APP, including, without limitation making any express or implied warranties relating to the Products beyond the scope of any warranties made by APP herein. The Customer shall indemnify, defend and hold APP harmless against all claims, suits, losses, costs, damages, judgments and expenses, including reasonable attorney’s fees arising out of any breach of the provisions contained in this paragraph.
d. In the event of a warranty claim by the consumer to the Customer, the Customer must either make a claim under this section or redirect the consumer to APP’s end user warranty if applicable.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL APP BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS, REVENUE OR PROFIT OR DIMINUTION IN VALUE, 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 APP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL APP BE LIABLE FOR ANY DAMAGES SUFFERED OR ALLEGED BY THE CUSTOMER OR THIRD PARTIES FOR AN AMOUNT EXCEEDING THE AMOUNT OF THE DISPUTED ORDER.
11. INTELLECTUAL PROPERTY
a. Customer shall have no right to use any of APP Group Inc’s intellectual property including but not limited to trademarks, service marks, trade names, distinctive signs, copyrights, logos, pictures, patent, domain names, sketches, models and designs (“Intellectual Property”) except solely and directly in connection with the sale and/or advertising of APP’s Products in connection with the resale of such Products by Customer to consumers. APP expressly reserves the right to prohibit, restrict, or condition further in any way the use by Customer of any of the Intellectual Property.
b. Customer shall not remove from the Products or otherwise alter or interfere with any Intellectual Property on the Products or any packaging or other materials, and shall not place any other trademarks, signs, names, slogans or logos on the Products or other related materials.
c. Customer agrees that it will at no time, without express written approval from APP, sell, deliver, produce, advertise, or develop any products, other than the Products, that include incorporate or bear any of the Intellectual Property, and further agrees that it shall not sell or distribute any product that includes, incorporates or bears, in the sole opinion of APP, any feature, trademark, symbol, pattern and/or design that is confusingly similar to or which infringes upon the Intellectual Property, or in the sole opinion of APP, any designs, design concepts, sketches, prints, print screens, patterns, labels, tags and packaging designed by or provided by APP.
d. The in-store or online use of any APP’s Intellectual Property including, but not limited to photographic or marketing material that depicts APP’s imagery is subject to APP’s prior written approval.
a. Any confidential information disclosed by APP or the Customer remains the property of the disclosing party. Each party undertakes to keep confidential and to use the information exchanged only for the purposes of the execution of these Terms. In no event, whether during or after the execution of the PO, neither APP nor the Customer may, without the prior written consent of the disclosing party, use or disclose (directly or indirectly) any confidential information for the benefit of a third party.
b. For the purpose of this section, any information relating to the activity of one of the parties, such as technical, financial or commercial information is considered confidential.
13. PERSONAL DATA
a. The parties declare and guarantee that they have a personal data processing system in compliance with the applicable regulations.
b. They expressly undertake not to process the data which only purpose is for the fulfillment of the parties’ obligations resulting from the PO. APP and the Customer guarantee, as such, the confidentiality of the personal data that they may collect or process. They undertake respectively and expressly to ensure compliance with the applicable legal requirements.
c. The Customer acknowledges that any breach of the provisions contained herein will seriously prejudice the interests of APP. Upon Customer’s breach of the provisions contained herein, APP may choose to terminate its present commercial relation with the Customer.
d. The Customer may submit a complaint to APP Data Protection Officer by email at: firstname.lastname@example.org
In addition to any remedies that may be provided under these Terms, APP may terminate these Terms upon written notice to Customer, if Customer: (i) fails to pay any amount when due under these Terms and such failure continues for ten (10) days after Customer's receipt of written notice of nonpayment; (ii) has not performed or complied with 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.
15. SUBMISSION TO JURISDICTION
The present Terms and all matters relating hereto are governed by, and construed in accordance with, the laws of the state of New York, without regard to the conflict of law. Any legal suit, action or proceeding relating to these Terms must be instituted in the courts located in Manhattan, New York. Each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the PO 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 these Terms, 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.
a. Customer shall reimburse APP for all costs incurred arising out of Customer’s breach of any of these Terms, including but not limited to collection costs and reasonable attorney's fees.
b. None of the rights or obligations of Customer under these Terms may be assigned or transferred in whole or in part without the prior written consent of APP; APP shall be entitled at any time to assign its rights or obligations hereunder to any third party without Customer's prior written consent.
c. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or shall not be precluded from being enforceable in any other jurisdiction.
d. Failure of APP to exercise or execute any right or provision under these Terms shall not deem a waiver or relinquishment of any right granted herein or any other term or condition of these Terms.
e. The contractual relationship created between APP and the Customer shall not be considered as creating any relationship of subordination or dependence, especially economic dependence, between them, or conferring any form of exclusivity regarding the distribution of the Products. It cannot, at any time, be described as a contract of employment or subcontracting.
IN THE ABSENCE OF WRITTEN ACCEPTANCE OF THESE TERMS BY THE CUSTOMER, SUBMISSION OF A CONFIRMED PURCHASE ORDER TO APP CONSTITUTES ACKNOWLEDGMENT OF THE CUSTOMER HAVING READ AND UNDERSTOOD EACH TERM AND CONDITION STIPULATED HEREIN AND EXPRESSLY ACCEPTS TO BE BOUND BY THEM.
Last updated in May 2021
2. TYPE OF INFORMATION COLLECTED
When making a purchase, you are required to open an account and provide Us with the necessary Information to place your order. The Information that is collected includes your legal name, email address, shipping address, phone number, as well as financial information (such as your credit card number and expiry date), etc. This Information allows Us to contact you and deliver your purchase. You can request that We delete your Information at any time after your order has been processed and delivered by sending an email to email@example.com See more about this below.
3. STORAGE AND SAFEGUARD OF PERSONAL DATA
We will keep your personal information only as long as is reasonably necessary for the purposes described in the Policy or such longer period as may be required by law. We have implemented security measures to protect the Information you provide against unauthorized access and use. We store the Information on a secure server and take all reasonable steps to protect it from misuse, loss, unauthorized access, modification or disclosure.
4. USE OF THE INFORMATION
We use the Information to process your order, send you the purchased products and answer your inquiries. The information We collect allows Us to maintain contact with you to inform you of the status of your order, expected delivery dates, cancellation of styles, if applicable, and collection of payment. It allows Us to enhance and improve customer service, product options and performance, provide you with ongoing personalized service and information about Us, our products and services. We also use it to administer sales records; maintain internal accounting and administration; and note trends and statistics, always in an effort to improve the quality of our service and our products.
5. SHARING INFORMATION WITH THIRD PARTIES
We never rent or sell the Information about you to a third party. For delivery purposes, We disclose the Information to FedEx, UPS and other carriers. For sales tax compliance purposes (GST, QST, TVA, etc), We reserve the right to disclose the Information to a third party. We may disclose some of the Information to advertisers for marketing and promotional purposes, but none of which that could be used to identify you personally. Your name, email address, telephone number, and address are never disclosed to advertisers. We reserve the right to disclose the Information as required by law, in response to legal process and law requests, and as necessary to protect the property, interests and rights of APP and its affiliates.
6. EXERCISE PRIVACY RIGHTS
Changes and access to your personal information
If you want to access or change your Information, please send Us an email request to firstname.lastname@example.org
Right to object
At any time, you may withdraw consent and object to the use of your Information. In that case, We will keep the data until you choose to withdraw your consent but will not use the Information except to provide the products or services you requested.
Restriction on processing
We will inform our suppliers and subcontractors of the restrictions on data processing.
You can challenge our compliance with data protection obligations by filing a complaint at email@example.com. We will investigate the complaint in consultation with the relevant department which is responsible for the use of the data. Should the complaint be well-founded, We will take all appropriate measures to resolve the complaint and, if necessary, amend its practices as needed.
If you have any questions about our Policy and practices, please feel free to contact Us via email at firstname.lastname@example.org
The Policy may be supplemented by additional legal requirements in jurisdictions where We conduct business. This Policy is subject to change.
Last Updated in May 2021