PURCHASE ORDER TERMS AND CONDITIONS

1.                        Parties:  “Buyer” means the entity issuing this Order and any affiliate, successor or assignee thereof.  “Seller” means the entity to which this Order is addressed.  “Goods” mean the goods described in the Purchase Order.

2.                        Order:  “Purchase Order” means the face document to which these Terms and Conditions are attached (the “Purchase Order”), together with these Terms and Conditions, and any other document incorporated by reference in, and/or attached to, or incorporated by reference in, the Purchase Order.  This Order shall be deemed accepted by Seller upon any of the following:  (a) written acceptance by Seller of this Order; (b) Seller’s delivery or shipment to Buyer of any or all of the Goods; (c) Seller’s performance of any work in connection with this Order; or (d) any other act or communication which constitutes an acceptance.  No other terms, whether preceding or subsequent to this Order, whether contained in a bid, estimate, acknowledgement, confirmation or invoice given by Seller, or otherwise, shall in any way modify or supersede any of the terms of this Order or be binding on Buyer.  The use of Seller’s or Buyer’s forms (other than this Order) is for convenience only and will have no effect on the terms and conditions of this Order.

3.                        Price and Payment:  The price stated in this Order constitutes the entire compensation payable to Seller for the Goods, and includes all charges for packing, hauling, storage, transportation to the point of delivery, taxes, and in the case of Goods shipped (a) on a landed duty paid (“LDP”) basis, all customs duties and (b) on a delivered duties paid (“ DDP”) basis, all customs, duties and delivery costs to the final place of delivery.  Neither the purchase price nor any other terms and conditions of this Order may be modified without Buyer’s prior written consent signed by an authorized representative of Buyer.

4.                        Changes:  Buyer may make changes within the general scope of this Order by delivering a written notice of change to Seller.  Seller must notify Buyer in writing within five (5) days after receipt of notice of change if the change will affect the delivery schedule or price for the Order.  Buyer must notify Seller in writing of Buyer’s acceptance of any change to the delivery schedule or price.  Buyer will not be responsible for any additional charge for such change, or for a change in delivery schedule, unless authorized in writing by an authorized representative of Buyer.  Seller shall not substitute or modify any Goods, or component parts of same without Buyer’s prior written consent.

5.                        Compliance With Law by Seller:  Seller warrants to Buyer that the Goods will conform to, and be processed, manufactured, sold, labeled, invoiced, shipped and imported in compliance with all applicable laws and regulations including, but not limited to, the Tariff Act of 1930, as amended, the Textile Fiber Products Identification Act, the Wool Products Identification Act, Foreign Corrupt Practices Act, the Fur Products Labeling Act, the Food and Drug Administration Act, the Fair Packaging and Labeling Act, the Flammable Fabrics Act, U.S. Customs laws, the Consumer Products Safety Act, Care Labeling regulations issued by the Federal Trade Commission, the California Health and Safety Code, and applicable statutes and regulations relating to shipment of hazardous substances.  Seller shall furnish Buyer with a continuing guaranty with the Federal Trade Commission and/or Consumer Product Safety Commission indicating that the products covered by this Order are properly labeled in accordance with the particular law and regulations pertaining thereto.

6.                        Packing and Marking:  Seller must package all Goods shipped under this Order in accordance with the requirements of this Order, or, if requirements are not specified, in accordance with standard commercial practices.  Each master carton in which Goods are shipped must contain a packing list indicating the Order number, description, quantity, item numbers, and other identifying information corresponding to the information in this Order.  All packages must be clearly marked in accordance with all laws and regulations applicable in the U.S.  In addition, each unit of the Goods must be labeled with the country of origin, weight and name of manufacturer.  All Goods for an Order must be shipped as one container and not broken up into several containers.

7.                        Documentation:  (a)  Seller shall transmit to Buyer by email with the following documentation for LDP and DDP transactions:  

Ocean Bill of Lading or Air Waybill

Commercial Invoice

Packing List

(b)        Seller shall transmit to Buyer by email the following documentation for F.O.B. transactions:

Ocean Bill of Lading or Air Waybill

Commercial Invoice

Packing List

Country of Origin certificate

Multi Country of Origin certificate (if appropriate)

7 part container inspection form w/pictures (only if full container loaded)

CPSC (consumer product safety certificate)

(The foregoing documents are sometimes referred to as the “Required Documents”.)  All Required Documents shall be transmitted by Seller to Buyer before the Goods are placed in the subject carrier, except as provided otherwise below.  Bills of Lading shall be transmitted by Seller to Buyer within seven (7) days after the Goods are placed on the subject vessel.  Air Waybills shall be transmitted by Seller to Buyer on the same day the Goods are loaded on the airplane.  If the Required Documents are not received for an F.O.B. transaction by the time the Goods are received at the place of delivery to enable the Goods to clear U.S. Customs on the date of delivery in the Purchase Order, the Goods shall, for all purposes of this Order, be deemed to have arrived “late” even if the Goods themselves arrived timely.

(c)        Seller represents and warrants to Buyer that the Required Documents, whether in written or electronic form, pertaining to the Goods, shall be complete, accurate and contain no omissions or false statements in violation of U.S. statutes or regulations, including, but not limited to, those issued by U.S. Customs and Border Protection;

(d)       All invoices must be written in the English language and state (i) the total quantities of each item or style being shipped, (ii) the style number or item identification (package profile number or stock code number) shown on purchase order, (iii) a commercial description of the Goods, including any registered names or trademarks on the Goods, (iv) the weight of each component material in the Goods, (v) the country of origin of the Goods, (vi) name, address, and manufacturer identification number of the manufacturer performing the origin conferring process, (vii) port of lading, (viii) destination port or airport, (ix) name of exporting vessel, and (x) the name of the airline and number of the flight;

(e)        Invoices shall be accompanied by a packing list setting forth the applicable package profile or stock code number, quantities and, as applicable, carton measurements, the gross and net weights of the products, and the carton number; and

(f)        In the event that Seller provides Buyer with fabric, materials, findings, labels and/or tags, or other items used in the production of the Goods (“assists”), the invoice shall state the kind and (if known) the value of the “assist” provided.

8.                        Risk of Loss:  Seller shall be exclusively liable for any losses incurred for Goods in Seller’s care, custody or control, and while in transit to the point of delivery specified in this Order.

9.                        Inspection:  Goods may be inspected and examined by Buyer or its designated agent at any time, either during, upon or after completion of production, whether at Seller’s premises or elsewhere.  Such inspection, or execution of an inspection certificate by Buyer, or its designated agent, shall not constitute Buyer’s acceptance of the Goods nor shall it signify conformity with the terms of this Order.  Upon request, Seller shall provide Buyer with written reports about Seller’s performance hereunder.

10.                    Testing:  Seller shall perform all necessary testing of the Goods to confirm their compliance with law and conformity to this Order. 

11.                    Labor Law Compliance:  Seller AND ITS AFFILIATES shall comply with all applicable labor laws in connection with the manufacture of the Goods.  Seller shall not employ any convict labor, forced labor, indentured labor, or child labor, directly or indirectly, in the manufacture of Goods under this Order.  Seller shall not discriminate on the basis of race, religion, sex, sexual preference, or on any other prohibited basis, in its hiring practices, or otherwise.  Seller shall indemnify and hold Buyer harmless from and against all liabilities, damages, loss and/or expenses, including, without limitation, reasonable attorneys’ fees and costs, relating to the breach of this paragraph by Seller and/or its affiliates.

12.                    Exclusivity:  The Goods are to be manufactured exclusively for Buyer;  The Goods shall not be shown or sold by Seller to any other party, whether Buyer’s customers or otherwise, without the prior written consent of Buyer.

13.              Performance:

a)                  TIME IS OF THE ESSENCE as to Seller’s performance of its obligations under the Order.  The failure by the Seller to strictly comply with the date(s) of delivery and/or other specifications, terms, conditions and/or express or implied warranties in this Order shall be deemed a material breach of the Order, entitling Buyer to (i) cancel the Order in whole or in part, or (ii) return, at Seller’s expense, Goods previously delivered.  Buyer shall not be liable for any price payable for Goods that were cancelled or rejected.  Such rights and remedies are without limitation of Buyer’s other rights and remedies set forth in these Terms and Conditions or available at law.

b)                  Seller shall be liable to Buyer for all losses, damages, expenses, demurrage charges, late charges, and loss of profits, incurred or suffered by Buyer and/or its customers as a result of any Seller breach, including, without limitation, charges by Buyer’s customers relating to late delivery.

c)                  In the event of cancellation of this Order by Buyer due to Seller’s breach, Seller shall immediately refund to Buyer any funds advanced by Buyer for any Goods that did not comply with this Order.

14.                    Instructions:  Seller shall follow all instructions of Buyer sent by email, fax, text or other means.  In the event Seller fails to follow Buyer’s instructions, Buyer shall be entitled to cancel the Order, in whole or part, and/or to hold Seller liable for all damages suffered by reason of Seller’s failure to follow Buyer’s instructions.

15.                    No Shipment of Cancelled Orders:  No Order cancelled by Buyer may be shipped without Buyer’s prior written approval.  Any cancelled Order that is shipped without Buyer’s approval shall be subject to charges payable by Seller to Buyer for all damages and reasonable attorneys’ fees incurred by Buyer relating to such shipment.

16.                    Amounts Ordered:  Seller shall ship the exact number of units of Goods ordered by Buyer.  Buyer shall not be responsible for payment for Goods in excess of the ordered amount.  Seller shall be liable to Buyer for its profits lost on Goods ordered by Buyer but not delivered by Seller, as well as for charges applied by Buyer’s customers therefor.  For pre-pack orders, only the approved assortment of Goods will be accepted by Buyer.  Seller shall not manufacture or ship Goods in excess of the amounts ordered by Buyer.  Buyer may, at its option, return to Seller, at Seller’s expense, any Goods which are supplied by Seller in excess of quantities ordered.

17.                    Approval:  This Order is subject to Buyer’s approval of fit, quality and testing of the Goods in accordance with the Order, and the compliance of the Goods in all respects with this Order.

18.                    Credits:  Buyer may apply as a credit against past, present and future Seller invoices and charges, Buyer’s damages, losses, legal fees and other monies due Buyer from Seller under this Order, including, without limitation, relating to or arising from Seller’s breach of the Order, and matters to be indemnified by Seller hereunder.

19.                    Intellectual Property:  Seller covenants that the Goods will not infringe on any intellectual property rights of any third party.  Seller shall defend, indemnify and hold harmless Buyer from and against all liabilities, damages, reasonable attorneys’ fees, losses and expenses, incurred by reason of the Goods’ infringement of any design, fabric patent, trademark and/or tradename not supplied by Buyer, in the production of, or on, the Goods, and/or in connection with Buyer’s sale, or the offer for sale, of the Goods.

20.                    Excess Charges and Delays:  Seller shall be liable to Buyer for any excess transportation charges, delays, expenses or claims resulting from any deviation in the delivery instructions contained in this Order.

21.                    Buyer’s Intellectual Property:  Seller agrees that all intellectual property supplied by Buyer in connection with the Goods, whether trademarks, designs, and other legally protectable matters (“Buyer IP”) belong, as between Seller and Buyer, exclusively to Buyer.  Seller shall never sell or transfer Goods bearing or using Buyer IP to any person or entity other than to Buyer.

22.                    Warranties:  Seller expressly warrants to Buyer that, in addition to any and all express and implied warranties provided under the Uniform Commercial Code, that the Goods:  (i) shall be provided in a competent, professional manner and in accordance with the highest standards and best practices of Seller’s industry; (ii) shall be free from defects in materials and workmanship, (iii) shall be merchantable and fit for their particular purpose; (iv) shall conform to and perform in accordance with all specifications, drawings, samples and other requirements applicable to this Order; (v) when shipped shall be free from all liens, security interests and encumbrances of any type whatsoever; and (vi) the weights, measures, and sizes of Goods set forth in Required Documents accurately describe same in compliance with U.S. law.

23.                    Indemnification:  To the fullest extent permitted by law, Seller shall defend, indemnify and hold harmless Buyer, its affiliates, employees, customers and agents from and against all damages, claims, loses, costs and expenses, including reasonable attorneys’ fees and lost profits (hereafter “Losses”) to the extent arising out of, or attributable to, the Goods, or from any act or omission of Seller, its agents, employees or subcontractors or which otherwise arises as a result of Seller’s performance of, or breach of, this Order, including, without limitation, relating to any injury to persons or property arising or resulting from any actual or alleged defect in the Goods or ser­vices or act of omission of Seller or Seller’s agents, employees or subcontractors with respect to the Goods.

24.                    Confidentiality:  All designs, drawings, samples, specifications, and other information furnished by Buyer, or any other person acting on behalf of Buyer, (i) shall be Buyer’s exclusive property, (ii) shall be held in strict confidence by Seller, (iii) shall not be disclosed to any other person or entity, and (iv) shall not be used by Seller for any purpose other than in connection with Seller’s  performance of this Order.  Seller consents to the entry of temporary, preliminary and permanent injunctive relief, and other equitable relief, in favor of Buyer to effect Seller’s compliance with this paragraph.  Seller shall not publicize the fact that Buyer has contracted Seller to manufacture Goods.

25.                    Termination:  (a) Buyer may, on notice to Seller, terminate this Order, in whole, or in part, for cause if the Seller fails to comply with any of the terms of this Order or is otherwise in default hereunder.  In such event, Buyer shall not incur any liability for any such termination and shall owe Seller no part (or all) of the Purchase Price to the extent the Order that has been so terminated.  Such termination shall be without prejudice to any other remedy Buyer may have.  Seller shall be liable to Buyer for any and all damages sustained by reason of the default that gave rise to the termination.
(b) Buyer may, on notice to Seller, terminate this Order in whole, or in part, in the event of any strike, lockout, fire, flood, earthquake, war, Act of God or other event negatively affecting Seller’s ability to perform on a timely basis its obligations under this Order. Buyer shall not incur any liability for any such termination and shall owe Seller no part (or all) of the Purchase Price to the extent the Order has been so terminated.  .

26.                    Entire Agreement:  This Order constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes all previous negotiations or agreements relating to the subject matter.  Seller shall promptly notify Buyer of any discrepancies or conflicts appearing in the Purchase Order and/or any attachment thereto.  This Order may only be amended by a written amendment signed by an authorized representative of both Buyer and Seller.

27.                    Assignments and Subcontracting:  Seller may not subcontract any part of this Order without Buyer’s prior written consent.  Seller may not assign this Order or amounts due hereunder without Buyer’s prior written consent.

28.                    Waiver:  Buyer’s failure to insist on performance of any of the terms of this Order, failure to exercise any right or privilege, or its waiver of any breach hereunder shall not effect a waiver of any other right or privilege, whether of the same or similar type.  No waiver shall be effective unless contained in a writing signed by an authorized representative of Buyer.

29.                    Remedies Not Exclusive:  The rights and remedies herein provided to Buyer in this Order shall be in addition to, and not in lieu of, any other rights or remedies at law.

30.                    Choice of Law:  This Agreement shall be construed and enforced under and in accordance with the laws of the State of New York, including, without limitation, the New York Uniform Commercial Code, without reference to conflict of laws principles.

31.                    Dispute Resolution and Prevailing Party:  Jurisdiction to resolve any dispute relating to this Order shall reside exclusively in the courts of competent jurisdiction located in the State of New York, County of New York, United States of America.  Seller consents to the jurisdiction of such Courts and to service of process by any manner recognized by those courts.  Both parties expressly waive trial by jury; disputes shall be resolved by a judge without a jury.  Such action shall be held in English.  No action shall be commenced by Seller against Buyer for breach of contract, nor shall any counterclaim or setoff be interposed by Seller, unless such action is commenced, or counterclaim or set off inter­posed, within one (1) year after the same accrues.  The prevailing party in any litigation shall be entitled to collect from the non-prevailing party the reasonable attorney’s fees and costs incurred by the prevailing party in such litigation and in connection with any proceeding to collect such funds.

32.                    CISG Not Applicable:  The parties hereto agree that the provisions of the United Nations Convention on the International Sale of Goods shall not be applicable to this Order.

33.                    Miscellaneous:  Captions preceding particular sections are for convenience only and are not to be construed as part of this Order or as limitation of the scope of a particular section to which they refer.  Notices under this Order may be provided electronically with evidence of receipt.  If any part of this Order is found to be unenforceable, the affected part shall be severed and the rest of this Order shall remain in full force and effect.

34.                    Language:  The parties have requested that this Agreement and all documents, communications and documents relating thereto shall be expressed in the English language.

The Order is hereby accepted by both parties.