Agreement – These Terms and Conditions of Sale (these “Terms”) shall exclusively govern the sale, purchase, and receipt of all Products sold or provided by 21 Scrubs and all its current and future subsidiaries (“21 Scrubs”) to a buyer or recipient of such Products (“Customer”). “Products” include all goods and/or services offered for sale, sold, and/or provided by 21 Scrubs, including, without limitation, goods manufactured by or for 21 Scrubs under a brand owned or licensed to 21 Scrubs, goods manufactured by a third party and offered for sale in one or more states or territories exclusively through 21 Scrubs (“Exclusive Products”), and goods manufactured by a third party and offered for sale through 21 Scrubs on a non-exclusive basis (“Non-Exclusive Products”), and any ancillary personal services, technical services, consultation services or advice provided by 21 Scrubs, with or without compensation, in connection with any goods offered for sale by 21 Scrubs (“Product Services”).
These Terms shall become binding as the sole and exclusive agreement by and between Customer and 21 Scrubs upon: (i) 21 Scrubs’s approval of a Customer Agreement (which incorporate these Terms by reference) signed by Customer, (ii) Customer’s issuance of a request or order for Products to 21 Scrubs, (iii) the delivery of the Products to Customer, or (iv) Customer’s payment to 21 Scrubs in satisfaction of any invoice issued by 21 Scrubs. These Terms supersede and replace any other prior agreement and terms or conditions stipulated or referred by Customer in any document and are the sole terms and conditions regarding the purchase and sale of Products between Customer and 21 Scrubs. No other agreements regarding the sale, purchase, or receipt of Products between Customer and 21 Scrubs exist absent an amendment to these Terms that (i) expressly and specifically references these Terms and (ii) is signed by an authorized representative of 21 Scrubs. Any terms and conditions included in Customer’s communications, forms, purchase orders, or other documents shall not amend, supplement, or in any way modify or be considered an exception to these Terms even if 21 Scrubs fails to object to such terms and conditions which are hereby expressly rejected by 21 Scrubs. Trade custom, trade usage and past performance are superseded by these terms and conditions and shall not be used to interpret these terms and conditions.
Notwithstanding the foregoing, any additional terms and conditions included in a Customer Agreement (which incorporate these Terms by reference) signed by Customer (including any Personal Guaranty thereunder) shall be in addition to and unaffected by these Terms. Trade programs, policies, and end-user product warranties shall not be deemed an agreement between the parties absent an amendment to these Terms that (i) expressly and specifically references these Terms and (ii) is signed by an authorized representative of 21 Scrubs, and shall apply according to the provisions thereof; provided, that, in the event of any conflict in such provisions and these Terms, these Terms shall prevail to the extent necessary to resolve such conflict.
21 Scrubs may amend or supplement these Terms at any time and from time to time upon Notice to the Customer. “Notice” includes, without limitation, email notification to any Customer email address provided to 21 Scrubs by Customer, a email campaign via mass email forwarding software, written notice by mail to any Customer address provided to 21 Scrubs by Customer, posting to any 21 Scrubs website (without the requirement of individualized notice), inclusion of a URL on 21 Scrubs’s invoice or sales confirmation, or other notification issued by 21 Scrubs. The effective date of such amendment or supplement shall be the date indicated in the revision of these Terms, which shall not be earlier than the date of the Notice and shall only apply to the sale, purchase, and receipt of Products after such effective date. No oral or written arrangement, promise, or statement made by any personnel of 21 Scrubs shall be binding on 21 Scrubs.
SUPPLY TERMS
No Obligation to Supply – 21 Scrubs may refuse any order at any time for any or no reason without liability to Customer. Customer acknowledges that 21 Scrubs is not obligated to sell to or supply Customer absent, subject to these Terms, a confirmed purchase order.
Non-Exclusivity – Nothing herein is intended nor shall be construed as creating any exclusive arrangement with Customer. 21 Scrubs is not restricted from selling the Products to others in any way.
Product Offering – 21 Scrubs reserves the right to change, modify, improve, add, or discontinue Products at any time with or without notice.
Pricing – Products are sold at and Customer shall pay then-current prices in effect at the time the Products are shipped, which may be different than current catalog pricing. Customer should review the sales order acknowledgment for then-current pricing. Prices, discounts, and terms of sale are subject to change without notice.
Taxes – The prices of the Products exclude all taxes, costs, fees, levies, or other amounts imposed by any third party and shall be the responsibility of Customer.
Minimum Annual Purchases – In order to maintain a corporate account status, Customer’s Product purchases must meet or exceed $10,000 annually. If Customer does not order the minimum purchase requirement, 21 Scrubs may close Customer’s account.
Purchase Orders; Special Order Items – Purchase orders are non-cancellable by Customer once accepted by 21 Scrubs, which occurs when 21 Scrubs either (i) confirms acceptance of such purchase order in writing, or (ii) initiates performance of such purchase order. If 21 Scrubs agrees to cancel a purchase order after 21 Scrubs initiates performance of such purchase order, 21 Scrubs may condition cancellation upon the payment of a restocking fee, which Customer shall pay to 21 Scrubs upon demand. Purchase orders for special order items (including products with custom embroidery) are non-cancellable by Customer without exception. Special order items are Products which are available through 21 Scrubs but are not held in- stock in the 21 Scrubs’s distribution centre that services Customer. Customer is responsible for purchasing 100% of the quantity of special order items ordered from 21 Scrubs on a take or pay basis. Customer acknowledges that special items are not held in-stock and the inbound lead times for such Products are subject to the manufacturer’s lead times and are out of 21 Scrubs’s control. Special order items may require, at the sole discretion of 21 Scrubs, payment in advance up to 100% of the purchase price, which is non-refundable.
Accuracy of Information – 21 Scrubs has exercised care in providing proper information in connection with its Products, i.e., catalog information, but accuracy is not guaranteed. Customer is responsible for verifying all information in connection with the purchase of the Products, including that the description of the Product is accurate, prior to submitting a purchase order to 21 Scrubs and upon receiving the sales order acknowledgment or other confirmation provided by 21 Scrubs. 21 Scrubs may correct typographical, incomplete, or clerical errors and/or omissions for purposes of fulfilling Customer’s order, but does so without liability to Customer.
Lead Times and Unavailability – All orders are subject to 21 Scrubs’s standard lead times. The requested delivery period will be observed as possible and subject to availability and Customer acknowledges that such periods are estimates only. 21 Scrubs may make partial shipments and invoice Customer for such shipments which shall be paid by Customer as indicated on 21 Scrubs’s invoice.
PRODUCT TERMS
Use of 21 Scrubs’s Intellectual Property and Information – Customer may not use 21 Scrubs’s name, Product names, Product images, Product descriptions, 21 Scrubs’s trademarks, or other content provide by 21 Scrubs without 21 Scrubs’s express written consent. Use in all forms, including print, TV, radio, and digital must be pre-approved by 21 Scrubs in writing. Any approval provided by 21 Scrubs is (i) revocable at any time by 21 Scrubs, and (ii) shall be valid for the period of time indicated in 21 Scrubs’s written approval, but in no event shall such use exceed one (1) year from the date of approval. As between 21 Scrubs and Customer, all right, title, and interest in all intellectual property rights contained in or arising from the Products, 21 Scrubs’s name, Product names, Product images, Product descriptions, 21 Scrubs’s trademarks, or other content provide by 21 Scrubs belongs solely to 21 Scrubs or its licensor and Customer obtains no ownership or licence of such rights.
Confidentiality – All non-public documents, communications, pricing, trade programs, and other information relevant to 21 Scrubs’s supply of the Products are confidential information of 21 Scrubs. Customer shall have the obligations with respect to such confidential information as provided in the Customer Agreement, or if such Customer Agreement does not contain any applicable obligations restricting use and disclosure of 21 Scrubs’s confidential information, Customer hereby agrees not to disclose such confidential information to any party unless compelled by law or authority of a competent court.
Auctions and Discount Websites – Customer may only sell or offer for sale the Products through its own websites and shall not sell or offer for sale any 21 Scrubs Products on any auction or discount community websites or market places without express written permission from 21 Scrubs.
Complimentary Products – Customer may be provided Products free of charge or at a reduced cost which are intended to be used for sales representatives’ samples, or testing, and not for resale. If Customer resells such Products 21 Scrubs may invoice Customer for such Products and Customer shall pay such invoice.
Recalls and Product Notices; Restricted Products – Customer shall cooperate with 21 Scrubs or any third party manufacturer in connection with any product notices, recalls, or other action deemed necessary by 21 Scrubs, any third party manufacturer, or governmental authority, including, without limitation, disseminating information and bulletins regarding product issues, collecting and remitting products or information subject to such action, or other action reasonably requested of Customer. Customer shall not ship, offer, or sell any Product where such shipment, offer, or sale is prohibited by law or restricted by 21 Scrubs or any third party manufacturer.
Product Handling – Customer shall not adulterate, repackage, tamper, or otherwise alter any Product, Product packaging, or other characteristics of the Products and shall observe all SDS, regulations, safe handling, shipping, installation, environmental operating conditions, and storage instructions provided by 21 Scrubs or otherwise applicable to the Products.
Disclaimer – AS BETWEEN 21 Scrubs AND CUSTOMER AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, 21 Scrubs MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND TO CUSTOMER WITH RESPECT TO THE PRODUCTS OR TO THE QUALITY, SUITABILITY, OR ADEQUACY OF THE PRODUCTS FOR ANY PURPOSE OR USE, AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS TO THE EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Product Services – If Product Services are offered or given to Customer, such assistance or advice is given only as an accommodation to Customer. 21 Scrubs shall not be liable for the content of such assistance or advice or Customer’s use of such services nor shall any statement made by any of 21 Scrubs’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied, of any kind. Customer is responsible for determining its own needs for the operation of its business and the suitability of any Products. Quotes or designs provided by 21 Scrubs as part of Product Services are as-is, where-is, without any warranty of any kind and Customer acknowledges that such assistance, advice, or information may be incomplete and not guaranteed to be accurate.
Limitation of Liability – 21 Scrubs SHALL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUE, DIMINUTION IN VALUE, RECALL OR REWORK, ARISING FROM OR RELATING TO THESE TERMS, INCLUDING NON-PERFORMANCE, OR THE PRODUCTS, EVEN IF 21 Scrubs HAS NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. 21 Scrubs’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES NOT OTHERWISE EXCLUDED IN THE PRECEDING SENTENCE AND ARISING FROM OR RELATING TO THESE TERMS, INCLUDING NON-PERFORMANCE, THE PRODUCTS, OR THE MANUFACTURER, SALE, DELIVERY, RESALE, USE OR HANDLING OF ANY PRODUCTS, WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR OTHER THEORY OF LAW, SHALL NOT EXCEED THE LESSER OF (I) THE AMOUNT PAID BY CUSTOMER TO 21 Scrubs FOR THE PRODUCTS GIVING RISE TO THE CLAIM, OR (II) THE AGGREGATE AMOUNT PAID BY CUSTOMER TO 21 Scrubs FOR ALL PRODUCTS DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
Force Majeure – 21 Scrubs shall not be liable to Customer for the non-performance of any obligation arising from any act of God, flood, fire, explosion, breakdown of plant, earthquake, strike, lockout, labor dispute, casualty or accident, or war, revolution, civil commotion, acts of public enemies, blockage or embargo, or any injunction, law, order, proclamation, regulation, ordinance, demand or requirement of any government or of any subdivision, authority or representative or any such government, inability to procure or use materials, labor, equipment, transportation, or energy sufficient to meet manufacturing needs without the necessity of allocation, or any other cause whatsoever, whether similar or dissimilar to those above enumerated, beyond the reasonable control of 21 Scrubs or its suppliers.
DELIVERY TERMS
Delivery Terms – Risk of loss shall transfer from 21 Scrubs to Customer at the time the Products are tendered at the place of delivery identified in the sales confirmation provided by 21 Scrubs, or if none, the purchase order submitted by Customer. Title shall transfer from 21 Scrubs to Customer at the same point as the transfer of risk of loss.
Standard Freight Program – Unless an order is eligible for 21 Scrubs’s pre-paid freight program, freight will be charged and payable by Customer on all orders. Freight charges will be prepaid by 21 Scrubs and added to Customer’s invoice. Orders will generally be shipped from 21 Scrubs’s distribution center that is closest to the Customer’s ship to location. Exceptions may apply as determined by 21 Scrubs.
Additional Freight Charges – 21 Scrubs may charge fees, as determined by 21 Scrubs, which will be payable by Customer for: (i) additional freight/fees on express services or specific Products. The foregoing charges may be invoiced by 21 Scrubs before or after delivery of the Products, including by separate invoice. Customer shall pay all such invoices upon demand or as indicated on 21 Scrubs’s invoice.
Freight Damage and Shortages – At the time of delivery, Customer is responsible for identifying any damage to the Products or shortages and noting such damage or shortage on the delivery receipt. In the event time does not permit Customer to inspect the shipment at the time of delivery, Customer must note on the delivery receipt “subject to inspection and count” or “STIC” before signing for the order. If the delivery receipt is signed as complete / undamaged and at a later point damage or shortages are found, Customer shall bear all risk and cost of damage or shortage. Claims for damage or shortages must be reported to 21 Scrubs within one (1) business day. Claims reported after one (1) business day shall be deemed waived by Customer. Customer shall contact 21 Scrubs’s at hello@21scrubs.com.au with shipment and purchase order information to report a claim.
FINANCIAL TERMS
Credit Line – Customer may qualify for an unsecured line of credit upon 21 Scrubs’s (i) acceptance of a Account Application and Customer Agreement. This information will be kept strictly confidential. Absent a credit line extended by 21 Scrubs, payment terms are cash-in-advance. Strict compliance with the approved payment terms is a condition of any credit line extended by 21 Scrubs.
Payment Terms – Customer shall pay all invoices in accordance with the terms provided in such invoice.
Application of Payments – Payments received shall be first applied to finance charges accrued, then to costs or expenses incurred by 21 Scrubs that are the responsibility of Customer, then to invoices, each in descending order of due date.
Acceptable Forms of Payment – Customers may pay in the form of bank transfer.
Change in Terms – 21 Scrubs shall have the right to at any time and from time to time and with or without notice for any reason (i) place Customer on “Stop Ship” or “C.O.D.”, (ii) change payment terms and the amount of any credit line granted by 21 Scrubs. Past Due Accounts; Collections – A 1.5% per month finance charge, or the highest rate allowed by law, shall be assessed for all invoices over thirty (30) days past due. Customer shall have a fifteen (15) day grace period after the expiration of the thirty (30) day time period to make full payment. If the grace period expires (e.g. 45 days after the invoice due date elapses) without receipt of payment, finance charges will accrue as of the 31st day after the invoice due date. Accounts with balances aged over ninety (90) days may be turned over for collection by a third party collection agency. All costs expenses of collection of unpaid invoices, any default of Customer, or other obligation owed to 21 Scrubs, including attorney’s fees incurred by 21 Scrubs before trial, at trial, and on any appeal and including any fees incurred in any bankruptcy proceeding, shall be the responsibility and added to the balance due and owing.
Releasing Orders – Orders placed under accounts with past due balances will be held until the account becomes current even if the account is under the established credit limit. Payments must be received by 21 Scrubs in order for held orders to be released. Verbal assurances the payment has been sent are not sufficient for orders to be released. In this situation, payment may be made via wire transfer to expedite the shipment, once remittance received by email.
Disputed Amounts – In the event Customer disputes a charge on an invoice, full payment must be made on the undisputed amount. Customer may not withhold the entire payment amount because of disputed amounts. Any invoice paid short must include memo detailing the specific reason and justification for the short payment. 21 Scrubs and Customer will work in good faith to resolve any disputes within thirty (30) days. Disputes not resolved in thirty (30) days and remaining unpaid shall be deemed to be past due and owing.
Further Assurances – If 21 Scrubs believes Customer will not fulfill its obligations under any purchase order or these Terms, 21 Scrubs may suspend performance until Customer provides 21 Scrubs with adequate assurances or additional security of performance acceptable to 21 Scrubs.
Security Interest – Products delivered by 21 Scrubs but not paid in full remain the collateral of 21 Scrubs until full payment has been received from Customer. Customer grants 21 Scrubs a security interest in such Products and consents to 21 Scrubs causing the filing of financing statement and notifications to other creditors in connection with perfecting such security interest under applicable law. 21 Scrubs reserves the right to remove or repossess Products from Customer’s locations if Customer fails to remit timely payment to 21 Scrubs.
Return Policy – 21 Scrubs will only accept the return of a Product that is not a special order and does not contain custom embroidery is (i) in new, unused, and resalable condition, (ii) in original packaging (free of writing or marking), (iii) the current model of such Product and less than three months old, (iv) currently stocked and offered for sale by 21 Scrubs, and (v) listed on an Return Authorization issued by 21 Scrubs for such Product that is included with the return shipment as a packing slip. Products discontinued or closed out are not eligible for return. Customer must prepay the freight at Customer’s expense. If Products are received by 21 Scrubs in a condition other than what is described above, without an RMA Authorization, or the Products are damaged in shipment, 21 Scrubs shall not be obligated to provide Customer with any credit and the Product will be returned or destroyed at Customer’s expense which shall be invoiced and paid by Customer upon 21 Scrubs’s demand. 21 Scrubs will provide Customer a credit for the Products received by 21 Scrubs in compliance with the above equal to the net price paid for such Products by Customer, less a 20% restocking fee, which shall be applied to Customer’s account. Unless otherwise agreed by 21 Scrubs, the credit shall be non-refundable and applied to future purchases or amounts due on Customer’s account.
Customer changes mind – 21 Scrubs will not take “changed my mind” as a reason for returns once the product has been shipped.
Return Merchandise Authorization – Customer may obtain an RMA confirmation by contacting 21 Scrubs through one of the following methods by emailing hello@21scrubs.com.au or or by visiting the 21 Scrubs website Returns web page. Products returned to 21 Scrubs must include the RMA confirmation as a packing slip, or 21 Scrubs will reject the shipment. Customer is responsible for using appropriate packaging material in order to ship the Product safely back to 21 Scrubs. Any Product damaged in return transit to 21 Scrubs will be the responsibility of Customer and not accepted by 21 Scrubs for return even if an RMA confirmation has previously been issued.
MISCELLANEOUS TERMS
Governing Jurisdiction – The “Governing Jurisdiction” shall be: the state of South Australia. The parties agree that the federal, state, territories/local laws prevailing in the Governing Jurisdiction, except for any conflict of laws provisions that would result in the application of the laws of another jurisdiction, shall be used for the interpretation of a party’s rights and obligations and the resolution of any issues, claims, disputes, or actions between Customer and 21 Scrubs.
Information Privacy; Consent for Email and Text Communications – 21 Scrubs respects your privacy. In the course of processing any Customer’s Order or administering any Customer’s account, 21 Scrubs will collect information from Customer and third parties to the extent necessary to perform any legal obligation or 21 Scrubs policy, or for purposes that are disclosed to Customer at the time of collection, including for purposes of marketing the Products and Product Services to Customer. Please see 21 Scrubs’s privacy notice for a description of its information practices. Information collected will be maintained as required by applicable law and used for the purposes disclosed to Customer at the time of collection and/or as described in 21 Scrubs’s privacy notice. By applying for, using, or accessing services to facilitate the sale, purchase, and receipt of Products sold or provided by 21 Scrubs, Customer consents to the collection of its commercial and personal information, as applicable, and authorizes the disclosure of such information for purposes described above, in accordance with applicable law, including, without limitation, where Australia is the governing law. Your consent includes your acknowledgement that your personal information may be disclosed and used within the 21 Scrubs family of companies and its services providers, some of which are located within and outside of Australia
Compliance with Laws – Customer shall comply with all federal, state, and local laws and regulations applicable to its operation and the resale and/or use of the Products, including, without limitation, maintaining all licenses and permits in good standing with the relevant governmental authority.
Severability – In the event any provision herein is adjudged to be unenforceable, the offending provision shall be severed or construed by the court to effectuate the parties’ intent. The remaining provisions herein shall remain in full force and effect.
Assignment – 21 Scrubs may assign any right and delegate any obligation related to these Terms with or without notice or consent of Customer, including any purchase order accepted by 21 Scrubs. Customer may not assign any right or delegate any obligation related to these Terms without the written consent of 21 Scrubs.
English Language – It is the express wish of the parties that these Terms and all related documents, including notices and other communications, be drawn up in the English language only. At the time a customer is set up, such customer will receive notification of any deviations from these terms and conditions.