TOMS SHOES, LLC (“Seller”)
General Terms and Conditions of Sale
– These terms and conditions shall apply to any sale or delivery by Seller of goods or services, and any contract relating thereto, irrespective of whether any acknowledgment or invoice of Seller or any documentation accompanying these terms and conditions constitutes an offer by Seller to Buyer or an acceptance of Buyer’s prior offer to Seller. Offers to purchase goods by Buyer may be communicated orally, delivered in person or by telephone or in writing, delivered by regular mail, hand delivery, overnight courier, facsimile or electronic mail. Any additional or conflicting term from those in these terms and conditions in an offer or acceptance by Buyer is expressly objected to by Seller and shall not be deemed accepted by Seller or to be part of any contract with Seller unless Seller, in a duly executed writing, specifically refers to such additional or conflicting term that Seller accepts.
DELIVERY/RISK OF LOSS
– Unless otherwise stated on the face hereof or otherwise agreed to in writing, all goods are delivered F.O.B. point of shipment. Risk of loss and title shall pass to Buyer upon Seller’s delivery to the carrier. Transportation shall be at Buyer’s sole risk and expense, and any claim for loss or damage in transit shall be against the carrier only. Shipping dates are estimated. Failure to deliver within the time estimated shall not be a breach of contract on Seller’s part and in no event will Seller be responsible for, or Buyer be entitled to, any direct or indirect incidental, exemplary, or consequential damages, including, but not limited to, claims for labor or loss of profits arising out of or relating to any delay in delivery. If failure to deliver or perform by Seller is due to any reason, including without limitation an act of God, war, riot, embargo, act of civil or military authority, fire, flood, quarantine, storm, strike, labor dispute, delay in transport or supply, shortage of fuel, labor or material, or other cause beyond the reasonable control
– Buyer may not return goods without the prior written consent of Seller. Seller reserves the right to specify on what terms, if any, it will accept a return. Special goods and modifications of standard goods are not returnable. Transportation charges on returned goods must be prepaid. A charge of 10% will be made for returned goods and orders cancelled or terminated after preparation for shipment by Seller.
– Seller warrants that the goods provided by Seller will, at the time of delivery, conform to applicable specifications, subject to customary tolerances and variations. Buyer shall not enforce, or have any claim for breach of, any warranty while Buyer is in default of its payment terms. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF, AND SELLER HEREBY DISCLAIMS AND THERE SHALL BE EXCLUDED FROM THE RELATIONSHIP BETWEEN BUYER AND SELLER, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Samples supplied in connection with Buyer’s order are solely for the purpose of evaluating the suitability of the goods to be provided by Seller and, as such, are not intended to serve as warranties of any type, either express or implied.
REPAIR OR REFUND
– If the goods do not conform to the foregoing warranty at the time they are delivered and Buyer notifies Seller in writing within 5 days after delivery and before the related goods are altered in any way, Seller, at its option, shall either (a) repair or make available to Buyer a replacement of any defective goods or (b) refund to Buyer the price paid therefor. Unless otherwise agreed to in writing by Seller, Buyer shall set aside, protect, and hold such goods until Seller has an opportunity to inspect and advise of the disposition, if any, to be made of such goods. In no event shall any goods be returned, reworked, or scrapped by Buyer without the written authorization of Seller. Buyer’s exclusive remedy for the failure of Seller to furnish goods conforming to the aforesaid warranty is expressly limited to the repair, replacement or repayment provided for above. Seller shall not be liable for any damages or expenses beyond the actual cost of repair or replacement of goods under warranty, or the price paid by Buyer to Seller for such goods, whichever is less, nor for any incidental, exemplary, or consequential damages.
COMPLIANCE WITH LAWS
– Seller intends to comply with all laws applicable to the goods to be provided by it; provided, however, that any failure of Seller to so comply shall not be a defense to, or excuse Buyer from, performance by Buyer of its obligations to Seller.
PRICES AND FREIGHT
– All quoted prices, extras (including applicable surcharges), and all freight or transportation rates, are subject to change, without notice, to reflect Seller’s prices and extras, and applicable freight or transportation rates, in effect as of the date of shipment. Unless otherwise agreed, freight will be charged from the point of original manufacture or processing.
– Seller’s prices do not include any federal taxes, duties or levies, or any state or local sales, use, excise or similar taxes. Consequently, in addition to the price specified herein, the amount of any present or future sales, use, excise or other similar tax applicable to sale of goods or services hereunder, or to the use of such goods or services by Seller or by Buyer, shall be paid by Buyer upon request, or in lieu thereof Buyer shall provide Seller with a tax exemption certificate acceptable to the tax authorities.
CANCELLATION/CHANGE ORDER REQUESTS
– Seller requires a minimum of 45 days’ notice before a cancellation request will be considered. An order cannot be modified or cancelled by Buyer without the written consent of Seller and in no event shall any order be modified or cancelled for any portion thereof already processed, manufactured, or in process of manufacture, processing or performance, at the time the request for modification or cancellation is received by Seller, except upon terms, satisfactory to Seller, which protect and indemnify Seller against all losses, including, without limitation, all lost profits. Seller may cancel any order at any time by delivering written notice to Buyer of cancellation prior to shipment and refunding any payment made by Buyer for such order. Seller reserves the right, at any time, not to accept an offer to purchase goods from Buyer for any reason, including without limitation, lack of available inventory for sale through Seller’s wholesale channels.
– Seller reserves the right to partially fill any order if insufficient inventory is available.
– Unless otherwise agreed to in writing, payment must be made by credit card or wire transfer prior to shipment. If payment is to be made by major credit card, Seller reserves the right to charge a 3% surcharge on the invoice amount. Any past due amounts shall incur a service charge of 1.5% per month, or, if less, the maximum legal rate if less Buyer’s failure to pay on this or any other contract between the parties in a timely fashion will entitle Seller to hold shipment of accepted and/or completed orders until appropriate payment is made. It is understood and agreed that if the sales order/invoice is placed in the hands of an attorney or a collection agency due to non-payment, Buyer agrees to pay all collection expenses, including court costs, legal and administrative expenses and attorney’s fees and other fees paid or incurred by Seller. Any credit terms granted to Buyer are subject to ongoing satisfactory credit approval. Seller may, at any time or times, suspend performance of any order or require payment in cash, delivery of security and collateral or other adequate assurance satisfactory to Seller when, in Seller’s opinion, the financial condition of Buyer or other grounds for insecurity warrant such action.
– Buyer shall sell all goods purchased from Seller only to customers of Buyer’s retail operations at physical retail locations that have been specifically approved in writing by Seller. Buyer shall not sell any goods purchased from Seller through any internet website or other online presence without Seller’s approval. Without limiting the foregoing, Buyer shall not sell or transfer any such goods to any other retailer or wholesaler.
– Seller has sole trademark and other intellectual property rights on all goods, samples and graphic representations supplied or made available by Seller. Buyer is expressly forbidden from making copies of these or allowing copies to be made or modifying the marks or materials.
– Buyer may not assign any order or any interest therein without the prior written consent of Seller. Any such actual or attempted assignment without Seller’s prior written consent shall be invalid and ineffective and shall entitle Seller to cancel such order upon notice to Buyer.
ENTIRE AGREEMENT/MODIFICATION OF TERMS/SEVERABILITY
– These terms and conditions and related sales documents, including without limitation purchase orders and invoices generated by Seller constitute the entire contract between Seller and Buyer. Seller reserves the right to amend, modify or restrict these terms and conditions at any time. If any provision of these terms and conditions shall be held by a court of competent jurisdiction to be contrary to any law, the remaining provisions shall remain in full force and effect with such contrary or unenforceable provision limited or excluded to the minimum extent required under applicable law.
– These terms and conditions and related sales documents shall be governed by, and construed in accordance with, the laws of the State of California without application of the conflict of law principles thereof. Seller and Buyer agree that any dispute arising between Buyer and Seller shall be adjudicated in the state and federal courts located in Los Angeles County, California.
– Any failure by Seller to exercise any of its rights shall not constitute or be deemed a waiver or forfeiture of such rights or any other rights.
STATUTE OF LIMITATIONS
– Any cause of action brought by Buyer arising from the arrangement between Seller and Buyer or any breach of Seller’s obligations to Buyer must be commenced within one year after the event giving rise to the cause of action has occurred or it shall be deemed irrevocably waived and time-barred.