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TERMS AND CONDITIONS AGREEMENT – UNITED STATES OF AMERICA

 

  1. Terms:

The Applicant agrees that any purchase of Sunshades Eyewear USA LLC (Sunshades) products (Goods) from Sunshades to the Applicant as Purchaser (Purchaser) will be governed by Sunshades’ Eyewear USA LLC (Sunshades) Terms and Conditions of Sale applicable at the time of order and by any credit terms required by Sunshades. These Terms and Conditions of Sale may be varied from time to time by Sunshades by sending to the Purchaser by fax or pre-paid post revised Terms and Conditions of Sale which will (subject to any other agreement made with the Purchaser) govern all orders placed from the next day after faxing if faxed or 3 days after posting if posted.

  1. Payment

(a) All orders must be paid in cash before delivery unless credit has been approved by Sunshades. Payments must be by wire transfer, ACH, check or credit card unless otherwise agreed by Sunshades. If Sunshades agrees to payment by check, the Goods may not be dispatched until the check has been cleared.

(b)All payments must be made in the nominated currency as indicated on the invoice and Sunshades reserves the right to convert to United States Dollars. All credit card payments will be converted to United States Dollars and all bank charges / conversion fees are the responsibilities of the Purchaser. Sunshades reserves the right to increase the price to compensate for any loss incurred as a result of currency movements between order and delivery. International Bank Charges shall be the responsibility of the Purchaser.

(c) Where Sunshades allows credit, except where otherwise agreed by Sunshades, all accounts are payable Net 30 days from the date of delivery.

(d) If any payment is not made by the Purchaser to Sunshades on the due date thereof, the Purchaser shall, without prejudice to Sunshades’ other rights, pay Sunshades a default charge at the rate of 1% per month or part thereof from the due date for payment until the date payment is made.   In the event that the default charge is in excess of what is allowed, the default charge shall be at the maximum rate permitted by law.

(e) Purchaser shall indemnify Sunshades against all costs (including but not limited to attorneys’ fees and own client costs, commercial agents, commissions, fees, insurances, accounting costs, loss of profit and all interest) incurred by Sunshades as a result of payment default and the action taken by Sunshades in respect of the same.

(f) Sunshades reserves the right, and without prejudice to its other rights hereunder and at law, to cancel orders or to suspend or discontinue deliveries of Goods if:

(i) The Purchaser does not adhere to these Terms and Conditions of Sale or the credit terms, if credit terms are given; or (ii) Sunshades is unable to manufacture for any reason outside its control a particular style or styles of Goods included in the order.

  1. Pricing and Orders:

(a) The Purchaser must place written orders with Sunshades for the supply of Goods. All orders must specify the type and quantity of Goods to be delivered, the place of delivery and the required delivery date.

(b) If Sunshades is unable to obtain production of Goods in sufficient quantity to meet a specified order, Sunshades may (at its option) fill the order in proportion to the quantity produced or cancel the order by giving written notice to the Purchaser.

(c) Sunshades shall use reasonable efforts to fill orders accepted by it but shall in no event be liable or responsible to the Purchaser for any failure or inability to supply Goods ordered by the Purchaser.

(d) Once placed, no order may be cancelled by the Purchaser except in writing and then only with the prior written consent of Sunshades, which it may refuse in its sole and absolute discretion.

(e) Sunshades reserves the right to withdraw any Goods or any ranges of Goods from sale from time to time notwithstanding that such Goods may be displayed in lists of Goods available for purchase.

(f) Prices are Ex Works (EXW) excluding tax as defined under Incoterms 2010 and are subject to change without notice. All new prices are effective as of the date of the newly published price list and will apply to all shipments shipped after effective date.

(g) All references to retail prices are recommendations only and there is no obligation to comply with the recommendation.

  1. Title to Goods:

(a) The Purchaser shall assume full risk of loss or damage to Goods immediately upon delivery but title will not pass to the Purchaser in respect of any Goods until all amounts payable by the Purchaser in respect of any Goods (or on any other basis) have been paid. Until such payment has been made the Purchaser agrees to hold the Goods as bailee

for Sunshades and shall label and store the Goods in a manner which clearly shows the ownership of Sunshades.

(b) If the Purchaser fails to make any payment when due or if Sunshades has reasonable grounds to believe that the Goods have been or will be destroyed, damaged, endangered or removed from the normal place of business of the Purchaser, or that the Purchaser is unable to pay its debts when they fall due, Sunshades may (without prejudice to any other right) withhold delivering further Goods and repossess and dispose of any Goods already delivered or ordered and may at any reasonable time enter any premises in which the Goods may be located to do so.

(c) If any question arises as to the ownership of any Goods the onus shall be on the Purchaser to prove that in respect of those Goods that title has passed to those Goods. All Goods in the Purchaser’s possession shall be deemed to belong to Sunshades unless the Purchaser can prove otherwise.

(d) Production of a copy of this Agreement shall constitute evidence of Sunshades’ authority to enter any such premises and remove the Goods at its discretion.

  1. Uniform Commercial Code (UCC):

(a) Defined terms in this Clause have the same meaning as given to them in the UCC.

(b) Sunshades and the Purchaser agree and acknowledge that these Terms and Conditions constitute a Security Agreement and give rise to a Purchase Money Security Interest (PMSI) under the UCC in favor of Sunshades over the Goods supplied or to be supplied to the Purchaser as Grantor pursuant to these Terms and Conditions.

(c) The Purchaser will do all things necessary to enable the perfection, re-perfection, and/or maintenance of perfection of the Security Interest granted by the Purchaser to Sunshades under the Terms and Conditions including granting Sunshades the right to, without prior notice, enter premises under the Purchaser’s control and re-take possession of the Goods and to register its interest in the Goods supplied to the Purchaser as Grantor under these Terms and Conditions on the UCC as Collateral.

(d) To the extent permissible at law, the Purchaser:

(i) waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Purchaser to Sunshades.

(ii) agrees to indemnify Sunshades on demand for all costs and expenses, including legal costs and expenses on a, associated with the:

(A) registration or amendment or discharge of any Financing Statement registered by or on behalf of Sunshades; and

(B) enforcement or attempted enforcement of any Security Interest granted to Sunshades by the Purchaser.

(iii) agrees to waive its right to do any of the following under the UCC:

(A) receive notice of an intention to seize Collateral;

(B) receive notice of disposal of Collateral;

(C) receive a Statement of Account if there is no;

(D) receive a Statement of Account following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged;

(E) receive notice of retention of Collateral;

(F) redeem the Collateral;

(G) in the event the Goods are to be delivered to a country other than the United States, the Purchaser undertakes to register Sunshade’s security interest in the Goods pursuant to the relevant law of the jurisdiction where the Goods are delivered and to provide proof of this registration to Sunshades.

(H) receive a verification statement.

(e) Sunshades and the Purchaser agree not to disclose the existence or content of these Terms and Conditions other than:

(i) as permitted under these Terms and Conditions;

(ii) as required by law;

(iii) to enforce these Terms and Conditions or the PMSI;

(iv) to any legal or financial advisers of a party; or

(v) with the prior written consent of the other party, which must not be unreasonably withheld.

(f) To the extent permitted by the UCC, Sunshades’ rights, powers and remedies under these Terms and Conditions

prevail to the extent they are inconsistent with the provisions of the UCC.

  1. Freight and Delivery:

(a) All shipments are Ex Works (EXW) as defined under Incoterms 2010. Sunshades will arrange delivery (either partial or in full) to a place nominated by the Purchaser. The Purchaser will pay the costs of delivery as invoiced by Sunshades.

(b) Sunshades shall have the sole and absolute discretion as to the choice of carrier and method of carriage of the Goods. Should the Purchaser nominate their own carrier, then all risks and associated costs of delivery including insurance will be borne by the Purchaser.

(c) In the event that the Purchaser alleges that any of the Goods have not been delivered as ordered it shall give written notification of such alleged non-delivery to Sunshades within 7 days of the date of invoice relating to those Goods with a full description of the alleged non-delivery.  Any failure to provide such written notice will waive any rights of Purchaser to claim non-delivery of any Goods.

(d) Sunshades shall not be responsible for any claims or damages resulting from any delay in delivery, nor will Sunshades be liable for any failure to perform which results from governmental regulations, or strike, lockouts, or any other industrial disputes, accident, fire delays in manufacture or transportation, act of God or any other cause beyond the control of Sunshades.

(e) Sunshades reserves the right to invoice Goods prior to their delivery in the event that such delivery has been delayed at the direction or request of the Purchaser. Storage and Insurance costs resulting from such delay may also be invoiced by Sunshades to the Purchaser.

  1. Returns

(a) Sunshades’ policy is to only accept returns when there has been an error on Sunshades’ part as evidenced by the original packing list and confirmed by the returned Goods. For example, duplicate order, mis-shipments, defective or damaged Goods where the defect or damage has been caused by Sunshades must be notified within 7 days of receipt of Goods.   Any failure to provide such written notice will waive any rights of Purchaser to claim a return of any Goods.

(b) All returns must be approved and an authorisation number obtained and marked on the outside of the carton prior to Goods being returned to Sunshades.

(c) All return requests must be accompanied by the invoice number on which the Goods were shipped.

(d) All returned Goods must be shipped freight pre-paid to an address nominated by Sunshades unless otherwise agreed. Unauthorised and freight collect returns will be refused and returned to the Purchaser and freight will be charged to the Purchaser.

(e) All approved returns will be credited back to the Purchaser including the original discount terms, or Goods replaced from stock at Sunshades’ discretion.

(f) Sunshades has the right to refuse any returned Goods that are damaged through improper packing OR improper display methods at the Purchaser’s location.

(g) The Purchaser may not return any Goods bought as discontinued lines, seconds or discontinued sales.

(h) All credit return Goods must be returned in saleable condition including packaging.

(i) If Sunshades approves the return of Goods for any reason other than where required as set out in these Terms and Conditions or under applicable law, Sunshades will give a credit to the Purchaser against future purchase of Goods. Under no circumstances will any cash refunds be given in these circumstances. The Purchaser acknowledges that Sunshades has no obligation to accept return of Goods and approve credits other than where required as set out in these Terms and Conditions or under applicable law.

 

  1. Warranty and Repairs

Sunshades’ liability in respect of a breach of a consumer guarantee or any express warranty provided by Sunshades for Goods not of a kind ordinarily acquired for personal, domestic or household use is limited to, to the extent permissible by law and at Sunshades’ option;

(a) the replacement of the Goods or the supply of equivalent Goods;

(b) the repair of the Goods;

(c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or

(d) the payment of the cost of having the Goods repaired.

To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms and Conditions are excluded and waived and Sunshades is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Purchaser for:

(a) any increased costs or expenses;

(b) any loss of profit, revenue, business, contracts or anticipated savings;

(c) any loss or expense resulting from a claim by a third party; or

(d) any damage or fault in performance arising out of incorrect or inappropriate operation of the Goods by the Purchaser;

(e) any special, indirect or consequential loss or damage of any nature whatsoever caused by Sunshades’ failure to comply with its obligations.

  1. Marketing

(a) Sunshades, under the terms of these Terms and Conditions, may issue the Purchaser marketing material including Point of Sale Stands. The Purchaser understands that the stand or any other Point of Sale material will remain the property of Sunshades and shall only be used for Sunshades Goods. Sunshades reserves the right to collect the stand

or any other Point of Sale material at the cost of the Purchaser if it is found that they are used for improper purposes. Sunshades further reserves the right to charge the customer for any damage caused by misuse or mistreatment of Marketing Material.

(b) The Purchaser consents to Sunshades forwarding marketing and promotional material from time to time to the Purchaser including by email.

  1. Distribution

The Purchaser must not:

(a) supply the Goods to any other person or company outside the country to which the Goods are shipped pursuant to an order made under these Terms and Conditions (Territory);

(b) supply the Goods to any other person or company inside the Territory with a view to the resale of the Goods outside the Territory; or

(c) supply, sell or assist in the sale of Goods in or through any swap meet, flea market, mail order, catalogue or on or through the internet unless otherwise agreed with Sunshades.

  1. Intellectual Property

(a) Sunshades is the owner and/or licensee of various trademarks and all other copyright design and other intellectual property rights associated with the Sunshades Goods sold to the Purchaser (IP Rights). The Purchaser acknowledges that, it has no right or interest in any of the IP Rights and that it will not use or deal with the Sunshades Goods or the IP Rights, other than by selling or promoting the sale of the Sunshades Goods in a way which does not damage the image or reputation of Sunshades or its Goods.

(b) If the Purchaser defaults under any of the Terms and Conditions or under any credit terms, the Purchaser must, if requested by Sunshades, at any time:

(i) immediately stop marketing and selling Sunshades’ Goods;

(ii) immediately stop displaying or using any material (including packaging, point of sale and advertising material) containing any IP Rights and destroy or return that material as directed by Sunshades;

(iii) give Sunshades a detailed inventory of all Sunshades’ Goods in its possession or control, within 3 days of request;

(iv) return to Sunshades (at the Purchaser’s expense) any Sunshades’ Goods not paid for; and/or

(v) sell and deliver to Sunshades or its nominee any other Sunshades Goods as nominated by Sunshades for the price at which Sunshades sold the Goods to the Purchaser less an allowance for any damage to the Goods.

  1. Confidentiality

(a) The Purchaser acknowledges that Sunshades has disclosed and may from time to time disclose to the Purchaser certain confidential information and documentation of Sunshades relating to Goods and their marketing (Confidential Information).

(b) The Purchaser must only use the Confidential Information solely for the purposes contemplated under any relevant sales contract and not during the continuation of such sales contract or thereafter, disclose to any third party the Confidential Information unless required by Law or with the prior written consent of Sunshades.

  1. Credit Assessment

(a) If any Goods are supplied to the Purchaser on credit, Sunshades may need to disclose to a credit reporting agency certain information about the Purchaser as listed below. The Purchaser authorises Sunshades to disclose such information to a credit reporting agency for credit assessment purposes.

(b) Subject to Sunshades’ obligations under applicable laws, Sunshades may give the information referred to below to a credit reporting agency to obtain a consumer credit report about the Purchaser or to allow the create report agency to create or maintain a credit information file about the Purchaser. The Purchaser agrees that Sunshades may disclose a credit report about it to any credit provider, debt collecting agency or Sunshades’ Insurers for the purposes of assessing the Purchaser’s credit-worthiness or to collect any overdue payments (as the case may be).

(c) Sunshades may disclose the following information relating to the Purchaser as per above:

(i) Name and Address

(ii) Credit Limits

(iii) Overdue Amounts

(iv) Dishonoured Payments

(v) Payment History

(vi) Serious Credit Infringements

(vii) Stop Supply Notices.

(d) The Purchaser agrees that Sunshades may obtain information about the Purchaser from any business which provides information about the commercial credit-worthiness of persons for credit assessment purposes.

(e) Sunshades may refuse to supply the Goods to the Purchaser on credit on the basis of Sunshades’ Credit Assessment.

(f) The Purchaser agrees to advise Sunshades of any changed circumstances affecting the credit transactions including, but not limited to the transfer of ownership of the Purchaser’s business, change in the ownership or control of the Purchaser (including any change in shareholding, constitution of the Board or of the partnership if applicable) and any detrimental change in the Purchaser’s financial circumstances.

(g) Sunshades reserves the right (in its sole and absolute discretion) to decline to provide credit to the Purchaser at any time, including but not limited to where the Purchaser would exceed any credit limit set by Sunshades. Credit arrangements shall be subject to limits set from time to time by Sunshades, and the Purchaser acknowledges that Sunshades may without any notice period reduce the amount of or terminate any credit account or limit given to any Purchaser.

  1. Privacy

(a) The Purchaser agrees to Sunshades collecting, using and disclosing information about the Purchaser for various purposes, including to:

(i) assess credit worthiness;

(ii) supply the Goods to the Purchaser and the management of the Purchaser’s account;

(iii) implement these Terms and Conditions in any Sales Contract; and

(iv) comply with relevant laws.

  1. Force Majeure

Sunshades shall not be liable for any delay or failure to perform its obligations if such failure was caused by any event for which Sunshades could not reasonably have exercised control.

  1. Assignment

The Purchaser may not assign its rights or obligations under these Terms and Conditions without Sunshades’ prior written consent.

  1. Severability

In the event that any or part of these Terms and Conditions shall be determined invalid, unlawful or unenforceable to any extent such Terms and Conditions shall be severed from the remaining Terms and Conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.

  1. Governing Law

These terms and conditions of Sale, and the security interest provided for these terms and conditions, are expressly governed by the laws of the State of California and both Sunshades and the Purchaser submit to the exclusive jurisdiction of the Courts of Los Angeles County, California.