SAND CLOUD HOLDINGS LLC
Sand Cloud Holdings LLC (“Sand Cloud”) does business with its customers (“Customer(s)”) under the terms and conditions set forth herein. These Terms and Conditions of Sale (“Terms”) supersede those contained in any Customer order, request for quotation, acceptance or other purchasing documents concerning any Sand Cloud products (“Products”) which are inconsistent with, different from or in addition to the terms and conditions stated herein. Each party to these Terms may be referred to as a “Party” and/or collectively as the “Parties.”
- ORDERS: New orders are accepted through Company’s website (www.sandcloud.com) or by submitting a request for invoice at firstname.lastname@example.org. All Customer orders must be in writing, are subject to acceptance by Sand Cloud, and are based on these Terms or any variation thereof.
No verbal orders will be accepted. Any statement in an order document that is not expressly approved or acknowledged in writing by Sand Cloud will not be considered a part of the agreement between the Parties.
Please send orders to:
Sand Cloud Holdings LLC
Attn: Sales Department 4629 Cass Street, Suite 52
San Diego, CA 92109
- FORMS OF PAYMENT: Sand Cloud requires that all sales be prepaid by credit card unless additional terms are agreed to by the Parties in writing. Custom Orders require payment of 50% of the total invoice upon placing the Custom Order, and the remaining 50% of the total invoice will be due and processed upon shipment of the Product(s). Partial payment for Products is subject to approval by Sand Cloud at its sole and absolute discretion. Sand Cloud does not accept cash on delivery (C.O.D.) orders. For Customers who pay by credit card for regular orders, the credit card charge will be authorized at the time the order is sent by Sand Cloud to the Sand Cloud distribution facility for processing. Merchandise and applicable freight charges will be invoiced when the order is processed and then the Customer credit card will be charged for the full amount due as stated on the invoice, once shipped.
Orders which require shipment to multiple locations shall be considered by Sand Cloud to be individual orders for shipping and invoicing purposes. Sand Cloud may, in its sole discretion, cancel any order at any time or delay shipment of Products if Customer fails to pay any current or past due amounts. Customer shall be in breach of these Terms for non-payment of any sums and is subject to a service charge of the lower of five percent (5%) or the maximum rate allowed by law, on a per month basis. If any payment is not made in full by the due date indicated on the invoice Sand Cloud may deduct any outstanding amounts from any monies owed to the Customer on any account whatsoever, without affecting any other right Sand Cloud may have. No payment shall be deemed to have been made until Sand Cloud’s account is credited with such payment and the applicable service charge if any. The Customer may not withhold, delay or make any deduction from, or set off against, any payment due to Sand Cloud for any reason, except for good faith disputes pursuant to Section 10 below. Customer shall pay all costs, expenses and reasonable attorney’s fees that Sand Cloud may incur for collecting delinquent or dishonored payments.
- ORDER QUANTITY: All new customer accounts are subject to approval by Sand Cloud in their sole and absolute discretion. Each individual wholesale resale location must be approved by Sand Cloud in writing.
- Standard Wholesale Orders. Standard Wholesale Orders are for Product orders of fifteen (15) or more Product units. These Product orders are submitted directly through Sand Cloud’s Shopify store (https://www.sandcloud.com). In order to receive wholesale pricing Customer must contact Sand Cloud at email@example.com to receive a wholesale discount code to use at checkout on Shopify. Once the Customer places an order through Sand Cloud’s Shopify page, Sand Cloud will process that order within a reasonable time and prepare the Product(s) for shipment. The Customer has twenty-four (24) hours to provide a notice of dispute for the invoice processed by Shopify, otherwise it will be deemed approved and will be processed for payment.
- Custom Orders. Custom Orders are for Product orders of over three hundred (300) units. Custom Orders are defined as Products that are not sold on Sand Cloud’s website and are made specifically for the Customer requesting them. Customers must contact Sand Cloud directly at firstname.lastname@example.org for Custom Order pricing and information. Once Customer and Sand Cloud have come to an agreement as to the terms of the Custom Order, Sand Cloud will then send an invoice to the Customer memorializing the terms of the order including the amount due to Sand Cloud, a mock-up sample of the Customer Order, and the deadline for payment. The Customer has twenty-four (24) hours after approving the invoice and remitting payment to provide a notice of dispute for the Custom Order invoice, otherwise it will be deemed approved and will be processed for payment.
- Standard Orders. All other Product orders are placed through Sand Cloud’s website and the Terms described herein govern the processes for those Products.
- FINANCE CHARGE/COSTS OF COLLECTION: A condition of credit is payment of all purchases in accordance with these Terms. If Customer fails to pay Sand Cloud for Product orders when due, then, in addition to any other remedies available to Sand Cloud allowed by law for that Customer default, Customer will pay Sand Cloud an additional monthly financing charge equal to the lesser of (a) one and one-half percent (1.5%), and (b) the maximum monthly interest rate allowed by law, of any portion of Customer’s account not paid within the terms stated on the invoice due, chargeable during each month that payment remains outstanding and Sand Cloud’s reasonable expenses of collection, including but not limited to attorneys’ fees, experts’ fees, and court costs. An invoice is considered past due after sixty (60) days.
- TAXES: Prices for Products exclude all taxes, including, but not limited to, sales, excise, or use taxes. Customer shall be responsible for and shall pay any and all sales, use, ad valorem, excise, VAT, consumption and/or any other taxes imposed on either Party by virtue of Customer’s order, except for taxes based on Sand Cloud’s net income. Sand Cloud will invoice Customer, and Customer shall be responsible for, any of the taxes that Sand Cloud is legally obligated to collect from Customer.
- PRICES AND PAYMENT: Customer will pay Sand Cloud the prices as stated on the invoice for any Products ordered by the Customer. All delivery charges, applicable value added, consumption, sales, use, excise or similar type taxes are the Customer’s sole responsibility. All prices are wholesale and applicable for domestic trade only. United States Customers are strictly prohibited from selling or distributing Sand Cloud Products outside of the United States. Payment must be submitted through Shopify for Standard Orders and Standard Wholesale Orders, or via credit card or personal check for Custom Orders.
Sand Cloud shall have the right to change Product prices charges to Customer at any time without prior notice, except with respect to orders which have been accepted by Sand Cloud prior to such price modifications.
- CHANGES, RETURNS AND CANCELLATIONS:
Requests for order changes and cancellations for Standard Orders and Standard Wholesale Orders must be in writing to email@example.com and received by Sand Cloud within twenty-four (24) hours of the order being submitted. Any changes requested after twenty-four (24) hours cannot be guaranteed. In order to begin a cancellation, please include the order number and “cancel order” in the subject line. Custom Orders cannot be changed once payment has been remitted.
Any claims for damaged Products must be made within thirty (30) days of receipt of the Products. The Customer must notify Sand Cloud within thirty (30) days of delivery of any alleged defects or damage by sending an email to firstname.lastname@example.org stating clearly in writing what the alleged damage or defect is along with photographic evidence. If the Customer fails to comply with this provision, the Products shall be deemed to be free from any defect or damage. Customer must inspect Products upon receipt. Failure to make a claim within thirty (30) days of receipt constitutes acceptance of the Products as-is. Customer is solely responsible for all freight and insurance charges and any other costs associated with, or involved in, the shipment of Products to Sand Cloud. If the Products received by Customer are incorrect or faulty Sand Cloud will refund the standard shipping charges to the Customer. Sand Cloud, in its sole and absolute discretion, will determine whether its Products are defective and either replace the Products or refund the price of the Products.
No order may be canceled and no Products may be returned without Sand Cloud's prior written consent. Standard Orders and Standard Wholesale Orders may be returned within thirty (30) days of receipt of the Products by sending an email to email@example.com requesting authorization in writing for the return. All Custom Orders are final sale and no returns or exchanges are allowed. Any returns which are received by Sand Cloud without a confirmed Sand Cloud return authorization will be refused and returned to Customer at Customer’s expense. Products returned are not to exceed the quantity authorized. All returns must have freight prepaid and no C.O.D.’s will be accepted. Any returns which Sand Cloud agrees to accept must be forwarded (delivery prepaid by Customer) to 1068 1/2 Tourmaline Street, San Diego, CA 92109. If a return requires repackaging or re-stocking, an appropriate expense will be charged to the Customer. Customer is solely responsible for all freight and insurance charges and any other costs associated with or involved in the shipment of Products to Sand Cloud. Credits or replacement Products will be issued only after the Products are inspected and approved and will be based on Customer’s cost, less a fee for repair, refurbishment, repackaging and restocking equal to 5%. Partial returns will be charged back on a prorated basis.
Unauthorized Product Return:
Unauthorized Product returns consist of Product inadvertently returned or Product that is returned as defective by the Customer without proper notice given to Sand Cloud authorizing the return. No credit will be issued for unauthorized Product returns unless Sand Cloud has provided prior written authorization. Sand Cloud reserves the right to charge a processing fee on any of the above Product received by its returns center.
- DELIVERY: Unless otherwise agreed to by the Parties, Sand Cloud will choose the carrier for shipping Products and the prices for Products will include the payment by Sand Cloud of ground transportation costs but will exclude all other charges including, but not limited to, charges for insurance, customs, duties, tariffs and special packaging. Freight charges apply and will be added to the Customer order and invoice upon processing. Sand Cloud’s responsibility for delivery will cease when the carrier signs for shipment to the destination as specified. Sand Cloud may make partial shipments on Customer orders, which may be separately invoiced and shall be paid for when due, without regard to subsequent shipments. Delay on shipment or delivery of any particular portion of an order shall not relieve Customer of its obligation to accept the remaining portion of that order. Sand Cloud shall be entitled to make partial deliveries and failure to deliver part of any order shall not entitle the Customer to reject the Products. Regardless of the Party paying freight charges, all risk of loss or damage in transit will be borne by Customer. All claims for damage to, or loss of, Products must be made by Customer directly to the carrier or the insurance company of the carrier (as the case may be). Sand Cloud will use reasonable efforts to meet requests for specific shipping dates agreed upon by both parties. Regardless of the date of actual shipment, Customer will not be excused from its obligation to pay for Products when shipped, or from any of its other obligations hereunder. SAND CLOUD SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHERWISE, FOR FAILURE TO FILL ORDERS, DELAYS IN DELIVERY, ANY ERROR IN THE FILLING OF ORDERS OR OTHERWISE.
If the Customer fails to accept delivery of the Products, Sand Cloud shall, without prejudice to its other rights, be entitled to store the Products at the Customer's sole risk and expense and the Customer shall pay all storage and additional delivery costs incurred until such delivery is accepted by Customer. In the event the delivery is rejected because the Customer alleges such Products are defective or damaged, then the provisions of Section 7 shall apply.
- TERMINATION: Sand Cloud shall have the right, in its sole discretion, to terminate these Terms or any other agreement with the Customer or withhold delivery of any Products if the Customer: a) fails to pay any monies owed to Sand Cloud by the due date on the invoice; or b) commits any breach of these Terms or any other agreement with Sand Cloud; or c) violates Sand Cloud’s unilateral minimum advertised price (MAP) policy; or d) executes an assignment for the benefit of its creditors; or e) commits any act of bankruptcy or goes into liquidation; or f) has a receiver, administrative receiver or administrator appointed over all or part of its assets; or g) has a third party impose or attempt to collect from Sand Cloud or suffers any similar or analogous act. In the event of delivery being withheld as a result of any of the above, Sand Cloud shall be entitled as a condition of resuming delivery to require pre-payment of all Products ordered.
- PAYMENT DISPUTES: If a payment dispute arises, the Customer will pay the undisputed portion of their order on a timely basis and notify Sand Cloud in writing of the Customer’s basis for withholding payment of any disputed amount. Upon receipt of Customer’s dispute notice, Sand Cloud and Customer shall work together in good faith to resolve such dispute in a prompt and mutually acceptable manner. Charges that are agreed to be correct by the Parties shall be considered past due if not paid in full within ten (10) days after such agreement. If the dispute is not resolved within twenty (20) days after Sand Cloud’s receipt of Customer’s written dispute notice, the Parties will resolve such dispute through binding arbitration in accordance with Section 27 of these Terms.
- CHANGES IN PRODUCTS AND POLICIES. Sand Cloud may at any time, in its sole and absolute discretion, add, change or cease making available any Product without notice to Customer, and Customer shall have no claim against Sand Cloud for failure to furnish Products of the design or type previously sold. In addition, Sand Cloud may at any time change its financial requirements or policies without incurring any liability to Customer, including, without limitation, Sand Cloud’s unilateral MAP policy which can be found on Sand Cloud’s website.
- DEFAULTS: If Customer becomes delinquent in payment obligations or other credit or financial requirements established by Sand Cloud, or if Customer is in default of any of the terms or conditions hereof or of any agreement with Sand Cloud, or violates Sand Cloud’s unilateral MAP policy, or if in the opinion of Sand Cloud, Customer’s credit becomes impaired, Sand Cloud shall have the following rights and remedies as well as those provided by applicable law:
(a) Sand Cloud may declare all sums immediately due and payable, notwithstanding any credit terms previously granted or in effect.
(b) Sand Cloud may refuse any order placed by Customer.
(c) Sand Cloud may cancel any accepted orders or delay shipment of any order.
(d) Sand Cloud may require as a condition of continuing to do business with Customer, that Customer execute a promissory note(s), security agreement(s), financial statement(s) and such other instruments as Sand Cloud, in its sole discretion, deems necessary for its protection.
(e) If credit has been previously extended by Sand Cloud to Customer, and Sand Cloud elects to make additional sales to Customer, Sand Cloud may require payment on a cash-in-advance basis or providing a letter of credit acceptable to Sand Cloud.
(f) In the event that collection of sums due from Customer to Sand Cloud is referred to an attorney or if suit is brought to collect such sums or to enforce rights of Sand Cloud, Customer agrees to pay all costs and reasonable collection or attorneys’ fees incurred in any collection suit or proceeding and in executing on any judgment based on Customer’s obligations.
- NON-EXCLUSIVE SALES: All sales are made to Customer on a non-exclusive basis.
- LIMITED WARRANTY: SAND CLOUD HEREBY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY WITH REGARD TO ANY CLAIM OF INFRINGEMENT, INCLUDING THOSE THAT MAY BE PROVIDED IN SECTION 2-312 (3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE RESPECTING PRODUCTS IS EXPRESSLY EXCLUDED.
- SPECIAL CONDITIONS OF SALE: Sand Cloud reserves the right to refuse to sell Products to any Customer that has advertised or sold, or is currently advertising or selling, promotional, sample, bootleg, grey market or counterfeit Products.
- LIMITATION OF LIABILITY: THE LIABILITY OF SAND CLOUD, IF ANY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER, REGARDLESS OF LEGAL THEORY, WILL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THOSE PRODUCTS WITH RESPECT TO WHICH SUCH CLAIM IS MADE. UNDER NO CIRCUMSTANCES WILL SAND CLOUD BE LIABLE TO CUSTOMER FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATIVE TO THE PRODUCT OR ANY ORDER OF PRODUCTS INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR COMPENSATION, REIMBURSEMENT OR LOSS OF PRESENT OR PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS OR COMMITMENTS, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOODWILL, COST OF CAPITAL, OR FOR ANY OTHER REASON WHATSOEVER, INCLUDING BUT NOT LIMITED TO, THE CLAIMS OF ANY THIRD PARTY. This limitation of liability will in no way affect Customer’s right to seek appropriate relief at law arising from or incident to any death, personal injury or property damage which is in any way connected to Sand Cloud’s gross negligence, willful misconduct or strict liability in tort with respect to Products and their use.
- INDEMNITY: Customer agrees to indemnify Sand Cloud from and against any and all costs, fees, liabilities, expenses (including, without limitation, attorneys’ fees and costs) and damages arising out of claims based upon its resale of the Products, or condition of such Products, including without limitation, any claim of fraud, misrepresentation, infringement of intellectual property or any other rights associated with the resale of the Products or the condition of such Products. Sand Cloud will notify Customer promptly of any claim for which Sand Cloud seeks indemnification and will afford Customer the opportunity to participate in the defense of such claim, provided that Customer’s participation will not be conducted in a manner prejudicial to Sand Cloud’s interests, as reasonably determined by Sand Cloud.
- CERTIFICATION: Customer certifies that it has read the sections entitled Limited Warranty and Limitation of Liability contained in these Terms, that they have been expressly negotiated and that they have become part of the basis of its bargain with Sand Cloud.
- ASSIGNMENT; RESERVATION OF RIGHTS: Sand Cloud may assign these Terms, in whole or in part, in its sole discretion. Customer agrees and acknowledges that it may not assign or transfer its rights under these Terms unless Sand Cloud provides its written consent for such assignment or transfer. Any rights not expressly granted herein are reserved by Sand Cloud.
- TRADEMARKS: Customer will have no right to, or interest in, any trademarks or trade names or other intellectual property owned, used or claimed now or in the future by Sand Cloud and their affiliates or licensors.
- FORCE MAJEURE: Sand Cloud and Customer will be excused from any default in their obligations hereunder, other than the payment of money due, resulting from any act or event beyond their reasonable control or responsibility, including, but not limited, acts of God, accident, fire, flood, storm, riot, war, terrorism, act of foreign or domestic enemy, sabotage, explosion, strike, lockout, labor disturbance, national defense requirement, governmental action, law ordinance, rule or regulation, whether valid or invalid, inability to obtain or curtailment of electricity or other types of energy, raw material, labor, component products or transportation, failure of normal sources of supply or any similar or different contingency which would make performance or timely performance under these Terms commercially impracticable. The Party relying on any of these acts or events of force majeure must give the other notice thereof promptly after it becomes known to that Party. If any of these acts or events of force majeure exceed sixty (60) days, then either Party may, as its sole remedy, cancel outstanding orders to the extent not previously fulfilled by giving the other notice, and neither Party will be liable to the other for damages resulting from such cancellation.
- NOTICES: Any notice given hereunder will be deemed to be sufficiently given when sent in writing by certified or registered mail or other rapid forms of transmission where the receipt is acknowledged to the Parties at their respective addresses set forth herein or as those addresses may be subsequently changed by giving notice. The date of mailing or transmission of any notice hereunder will be deemed the date on which that notice has been given.
- EXPORT: Except as is permitted in a signed agreement, Customer will not export any Products to any other countries. Sand Cloud expressly reserves the right to refuse to sell to any Customer who sells Products to any person or entity outside the country of Customer’s approved location and/or sells Products to any person or entity whom it knows, or reasonably should know, is reselling Products outside of Customer’s approved location as indicated on their initial invoice.
- WAIVER: Either Sand Cloud’s or Customer’s waiver of the other’s default in its obligations under any term or condition hereunder will not in any way limit or affect that Party’s right to enforce and compel strict compliance with that term or condition at any other time or with any other term or condition.
- REMEDIES: All remedies provided for in these Terms shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise.
- INVALIDITY: If any term or condition of these Terms is held invalid or unenforceable by any court, in whole or in part, that term or condition will be construed and enforced to the greatest extent possible and the validity of the remaining terms and conditions will not be affected thereby.
- CHOICE OF LAW; VENUE. These Terms and ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND SAND CLOUD, including their affiliates, contractors, and agents, and each of their respective employees, directors, and officers (a “Dispute”) will be governed by, subjected to, and construed according to the laws of the State of California, without regard to conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. Any controversies or disputes arising out of these Terms or their interpretation shall be resolved in the following sequential manner: First, upon receipt of notice of a dispute from either Party, the Parties shall meet and confer in person or by telephone to attempt to resolve the dispute; Second, if the Parties are unable to resolve the dispute within ten (10) days of the notice of dispute, the Parties shall submit the matter to non-binding mediation with a neutral third-party mediator of their mutual choice, or if the Parties cannot mutually agree on a mediator, then the Parties shall utilize the National Conflict Resolution Center in San Diego, California, or a successor organization; and lastly, if the prior two alternative dispute resolution methods do not resolve the conflict within a reasonable time under the circumstances, or 90 days, whichever is later, then the Parties agree that the dispute shall be settled by arbitration at the offices of Judicial Arbitration and Mediation Services, Inc. (“JAMS”), or a successor organization, for binding arbitration in San Diego County by a single arbitrator who shall be a former California Superior Court judge with experience related to the dispute. The arbitrator may grant injunctions or other relief in such dispute or controversy. All awards of the arbitrator shall be binding and non-appealable. Judgment upon the award of the arbitrator may be entered in any court having jurisdiction. The arbitrator shall apply California law to the merits of any dispute or claims, without reference to the rules of conflicts of law applicable therein. Any judgment upon award may be entered in any court having jurisdiction thereof. The prevailing Party in any such court action shall be entitled to an award of reasonable attorneys’ fees.
RULES AND PROCEDURE OF THE ARBITRATION SHALL BE THOSE RULES AND PROCEDURES THEN IN EFFECT WHICH CAN BE FOUND AT: HTTPS://WWW.JAMSADR.COM/ADR-RULES-PROCEDURES/ (“ADR RULES”). THE PARTIES HEREBY ACKNOWLEDGE THAT THEY EACH HAVE HAD THE OPPORTUNITY TO ACCESS AND/OR REVIEW THE ADR RULES AND AGREE TO BE SUBJECT TO THE ADR RULES.
- ENTIRE AGREEMENT: These Terms and any appendices hereto supersede, terminate and otherwise void any and all prior written and/or oral agreements between the Parties with respect to the Products. There are no warranties, representations, or understandings of any kind, or description whatsoever made by either Party to the other, except such as expressly set forth herein.