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This Wholesale Purchase Agreement Terms (the “Agreement”) is by and between EVELYN & KATE LLC (the “Supplier”) and the business or entity (the “Wholesaler”) that is submitting orders for products from Supplier’s website (the “Products”).  Supplier and Wholesaler are each a “Party,” and collectively, “Parties,” to this Agreement.  [By checking the box] or otherwise consenting to the terms and conditions described herein, Wholesaler agrees to be bound by this Agreement, which shall be effective as of the date of such consent (the “Effective Date”).

1. PLACEMENT OF ORDERS. Wholesaler will submit order(s) for Products via Supplier’s website ordering process at the following URL: https://evelynandkate.com/ (a “Purchase Order”).  All of Wholesaler’s Purchase Orders are subject to acceptance and approval by Supplier. 

2. ACCEPTANCE OF ORDERS. If any Wholesaler quotation or proposal is held to be an offer, then said offer is expressly rejected.   Acceptance of a Purchase Order is expressly limited to the terms of this Agreement and the Purchase Order. No purported acceptance of any Purchase Order on terms and conditions which modify, supersede, supplement, or otherwise alter this Agreement will be binding on Supplier, and such terms and conditions shall be deemed rejected and replaced by this Agreement unless accepted by Supplier in a signed writing and otherwise compliant with the terms of this Agreement.

3. PRODUCTION AND DELIVERY.  Following receipt and approval of the accepted Purchase Order, Supplier will tender the Products in accordance with Supplier’s ordinary fulfillment process and lead time. In the event of any inability by Supplier to timely fill all or any portion of a Purchase Order after receipt of the Purchase Price, Supplier will notify Wholesaler as soon as practicable, such notice to specify the reasons for the delay, what portion of the Products covered by the Purchase Order that Supplier can deliver, and when the remaining portion of such Products will be delivered. In that event, Supplier will have the opportunity to cure such breach within a commercially reasonable time period. All payments by Wholesaler shall be in accordance with the terms of the Purchase Order, or as otherwise agreed to, in writing, between the Supplier and Wholesaler.

4. DELIVERY. Supplier will arrange for delivery of the Products to the address confirmed by Wholesaler.  

5. TITLE/RISK OF LOSS. Delivery of Products purchased by Wholesaler shall be Free Carrier (“FCA”) at Supplier’s shipping point.  Risk of loss and title shall transfer to Wholesaler upon tender of the Products by Supplier to the shipment carrier.  Any claims for loss or damage after risk of loss has passed as herein provided shall be filed with the carrier.

6. PAYMENT OF TAXES. Wholesaler agrees to pay all taxes of every description, federal, state, and municipal, that arise as a result of the sale of Products pursuant to a Purchase Order, excluding taxes on Supplier’s income.  Supplier will honor Wholesaler’s sales tax exemption in any State or jurisdiction where Wholesaler has such an exemption so long as: (a) Wholesaler provides all documents and information required by Supplier to prove Wholesaler’s exempt status, and (b) Wholesaler follows any point of sale instructions required by Supplier in connection with a sales tax exemption, including inputting Wholesaler’s tax ID number or other information as required.

7. INSPECTION. Wholesaler, upon receiving possession of the Products, shall have five (5) business days to inspect the Products to determine if the Products conform to the requirements of this Agreement.  If  Wholesaler, in good faith, determines that all or a portion of the Products are non-conforming, Wholesaler may dispute the shipment and begin the process of evaluating the Products.  Wholesaler must provide written notice to Supplier of the reason for rejecting the Products.  Supplier will have a commercially reasonable period of time from the date of written notice from Wholesaler to investigate possible issues and negotiate the possible return of the Products or to remedy such defects under the terms of this Agreement. 

8. PROMOTION AND SALE OF PRODUCTS.

(a) Supplier hereby grants to Wholesaler the non-exclusive rights to, and Wholesaler hereby accepts such appointment to, promote and/or re-sell the Products to end-users.  Notwithstanding the foregoing, Wholesaler may not modify or alter the Products in any manner whatsoever.

(b) The price of the Products will be set forth in a price sheet (the “Price Sheet”).  The Price Sheet may be available on Suppliers’ website or sales portal, or may be otherwise distributed to Wholesaler (and may be individualized for Wholesaler).  In any event, the price that Wholesaler pays upon completion of checkout on Suppliers’ website will be the final price for the Products.   

(c) In the event an end-user purchaser of the Products makes any Products-related inquiry or complaint directly to Wholesaler, Wholesaler shall direct the end-user to Supplier’s support page at https://evelynandkate.com/contact/.

(d) Neither Party shall make, or cause to be made, any press release or public announcement with respect of this Agreement or the transactions contemplated by this Agreement or otherwise communicate with any news media without the prior written consent of a duly authorized representative of the other Party unless otherwise required by law, and the Parties shall cooperate as to the timing and contents of any such press release, public announcement or communication.

9. MARKETING COLLATERAL.  

(a) If Supplier provides any point-of-sale or in-store displays or merchandising, Wholesaler agrees to display or distribute such items in good faith in a manner reasonably calculated to enhance the likelihood of end-user purchases of the Products.  Supplier is not obligated to provide any such materials or items.

(b) During the term of this Agreement, Wholesaler shall have the non-exclusive, revocable, non-transferable, non-sublicenseable right to use Supplier’s approved Trademarks in connection with the promotion and re-sale of Products; provided, however, that Wholesaler must obtain Supplier’s prior written consent to use Supplier’s Trademarks in catalogs, social media, promotional materials, websites, or other advertising or online materials.  As used herein, “Trademarks” shall mean any trademarks, copyrights, logos, product descriptions or product images.  Wholesaler hereby acknowledges that Supplier (or licensors of Supplier) is the sole owner of the Supplier Trademarks and the goodwill pertaining thereto and that nothing contained herein shall constitute an assignment of the Supplier Trademarks. Wholesaler agrees that it will not contest Supplier’s (or Supplier’s licensors’) ownership of the Supplier Trademarks and shall not, pursuant to this Agreement or otherwise:

(i) acquire any right, title, or interest in or to Supplier’s Trademarks;

(ii) use Supplier’s Trademarks in a manner that could, in the reasonable opinion of Supplier, dilute Supplier’s rights in the Trademarks, that could otherwise prejudice or invalidate a registration or application for registration of any of the Trademarks;

(iii) take any action that will, in any way, diminish, alter or adversely affect Supplier’s rights in Supplier’s Trademarks or the reputation of Supplier, or otherwise damage the goodwill attached to the Supplier Trademarks; or

(iv) apply to register or register any of the Supplier Trademarks or any trade name, trademark, service mark, domain name or logo that is confusingly similar to any of the Supplier Trademarks, without Supplier’s prior written consent.

10. RETURNED GOODS. Purchase Orders and/or Products purchased by Wholesalers are not eligible for returns or exchanges.  

11. WARRANTIES. WHOLESALER ACKNOWLEDGES THAT THE PRODUCTS PROVIDED HEREUNDER ARE PROVIDED “AS IS,” “WITH ALL FAULTS” AND WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED. SUPPLIER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, CONDITION, UNINTERRUPTED USE, OR COMPLIANCE WITH UNITED STATES FEDERAL OR ANY APPLICABLE STATE, LOCAL, INTERNATIONAL OR TERRITORIAL LAW.

12. LIMITED LIABILITY. UNDER NO CIRCUMSTANCES SHALL SUPPLIER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, NOR SHALL SUPPLIER BE LIABLE FOR LOSS OF GOODWILL, REVENUE, DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS INCURRED BY WHOLESALER, WHOLESALER’S END-PURCHASERS, OR ANY OTHER THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF SUPPLIER OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL THE LIABILITY OF SUPPLIER, OR ITS AFFILIATES, FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY PAID BY WHOLESALER TO SUPPLIER UNDER THIS AGREEMENT FOR THE PRODUCTS RELATED TO WHOLESALER’S CLAIM.

13. DEFAULT. Without limiting other grounds for default under this Agreement, the occurrence of any of the following shall constitute a material default under this Agreement, and in such case the non-defaulting Party may terminate the Agreement and any unfulfilled Purchase Orders immediately:

(i) The failure to make a required payment when due;

(ii) The insolvency or bankruptcy of either party; or

(iii) The subjection of any of either Party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.

14. FORCE MAJEURE. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either Party’s reasonable control (a “Force Majeure”), and if the Party unable to carry out its obligations gives the other Party prompt written notice of such event, then the obligations of the Party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, pandemics, epidemics, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or other labor disputes, or supplier failures.  The term Force Majeure shall not include any failure or alleged inability to make a required payment under this Agreement.  The excused Party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.

15. CONFIDENTIALITY. Wholesaler shall: (a) keep the existence of this Agreement as well as all Supplier Information confidential and disclose it only to those employees of Wholesaler who need to know such Supplier Information in order for Supplier to perform under this Agreement; and (b) use Supplier Information solely for the purpose of performing under this Agreement.  “Supplier Information” means all information provided to Wholesaler by Supplier or its representatives in connection with this Agreement, including without limitation, pricing and other terms of this Agreement, technical “know-how,” specifications, compositions, designs, sketches, photographs, samples, prototypes, manufacturing, packaging or shipping methods and processes, computer software and programs (including object code and source code), protocols, strategic business plans, results of testing, systems, financial information, product information, methods of operation, Wholesaler information, supplier information and other compilations of data.  Supplier Information also includes any materials or information that contains, or is based on, any Supplier Information, whether prepared by Supplier or any other person.  Upon termination of this Agreement, Wholesaler shall return to Supplier any Supplier Information in Wholesaler’s possession or under its control and shall not use Supplier Information for its own, or any third party’s, benefit.  Wholesaler’s confidentiality obligations shall survive termination of this Agreement, for so long as the Supplier Information remains confidential.  The Parties agree that, in addition to any other remedies that Supplier may possess, Supplier shall be entitled to seek injunctive or other equitable relief in the form of a preliminary and permanent injunction or other appropriate equitable remedies without having to prove damages or post a bond or other security, in the event of an actual or threatened breach of these confidentiality obligations by Wholesaler.

The foregoing confidentiality obligations do not apply to any information that: (a) is already lawfully in Wholesaler’s possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of Wholesaler; (c) is required to be disclosed by Wholesaler as a matter of law (provided that Wholesaler will use all reasonable efforts to provide Supplier with prior notice of such disclosure and to obtain a protective order therefor); or (d) is disclosed by Supplier with Wholesaler’s approval.

16. INDEMNITY.  Wholesaler shall indemnify, defend, and hold harmless Supplier and its affiliates’ officers, directors, agents, employees, and representatives from, against, and in respect of any and all claims, liabilities, damages and expenses (including actual attorneys’ fees) arising under or related to (i) the negligence or willful misconduct of Wholesaler, its affiliates and their respective employees, and agents, (ii) violation of any law or regulation, (iii) any breach of violation of this Agreement, or (iv) the improper distribution of the Products not in compliance with Supplier’s instructions and guidelines.  

17. ASSIGNMENT. Neither Party may assign or transfer this Agreement without prior written consent of the other Party, which consent shall not be unreasonably withheld, provided, however, that either Party is permitted to assign this Agreement in connection with the sale or transfer of all or substantially all of its business and assets.  Nothing in this Agreement, express or implied, is intended to or shall be construed to confer upon or give any person other than the Parties and their respective successors and permitted assigns, any legal or equitable right, remedy or claim under or with respect to this Agreement.

18. ENTIRE AGREEMENT. This Agreement, including any Purchase Orders governed by this Agreement, constitute the entire agreement of the Parties regarding the subject matter herein, and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the Parties.  This Agreement may be modified or amended only if the amendment is made in writing and signed by the Parties.

19. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a Court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

20. WAIVER OF CONTRACTUAL RIGHT. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.

21. APPLICABLE LAW, VENUE, ARBITRATION. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio without regard to conflicts-of-law principles that would require the application of any other law.  Subject to the arbitration provisions below, the Parties consent to the exclusive jurisdiction of the appropriate federal court in the U.S. District Court for the Northern District of Ohio, or of the state courts in Cuyahoga County, Ohio for any legal or equitable action or proceeding arising out of, or in connection with, this Agreement.  The Parties specifically waive any and all objections to venue in such courts.  All disputes arising under or in connection with this Agreement or any other document pertaining to this Agreement shall be finally settled by arbitration in Cuyahoga County, Ohio, in accordance with the rules of the American Arbitration Association, then existing, provided the discovery, as provided for under the Ohio Rules of Civil Procedure, shall be available to all parties to the arbitration.  This agreement to arbitrate shall be specifically enforceable, and the arbitration award shall be final, and judgment may be entered upon it in any court having jurisdiction over the subject matter of the dispute.  The costs and expenses of arbitration shall be borne and shared equally among the Parties.  In addition to and without limiting the foregoing, and except as required to permit a Court of law to grant injunctive relief to either Party, the Parties expressly agree that the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to decide any dispute relating to or arising from the validity, interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable, and to otherwise determine the arbitrability of any claim or dispute between the Parties and construe the scope of the arbitrator’s authority under this Section.

22. AGREEMENT AUTHORIZED. Each Party represents to the other that this Agreement has been duly executed by it, or its duly authorized officers or agents, and constitutes a valid, binding, and enforceable obligation of such party.

23. EFFECTIVE DATE/TERMINATION. This Agreement shall be effective as of the Effective Date.  This Agreement may be terminated at any time by either Party with thirty (30) days’ prior written notice by the terminating Party.  Supplier and Wholesaler agree that notwithstanding the termination of the Agreement, (i) any and all Purchase Order(s) that have been submitted by Wholesaler and accepted by Supplier prior to termination shall be binding on the Parties and shall continue to be governed by this Agreement until completion of the Purchase Order; and (ii) certain provisions which by their nature shall survive the termination or expiration of this Agreement, shall survive.