GENERAL CONDITIONS OF SALE

 1.     SCOPE OF CONTRACT

(A)   ALL ORDERS FOR THE MERCHANDISE SHIPPED TO YOU (“BUYER”) ARE SOLD UPON THE FOLLOWING EXPRESS TERMS AND CONDITIONS FOR RESALE PURPOSES ONLY FROM BUYER'S LOCATIONS SPECIFIED BY SELLER OR LISTED ON OUR INVOICES, AND SUCH TERMS AND CONDITIONS SHALL CONSTITUTE THE ENTIRE CONTRACT BETWEEN BUYER AND TORY BURCH FAR EAST LIMITED AND ITS AFFILIATED COMPANIES (“SELLER”) WHEN ACCEPTED BY BUYER OR BY DELIVERY OF THE MERCHANDISE.  THIS CONTRACT CAN ONLY BE MODIFIED BY A WRITING SIGNED AND APPROVED BY BUYER AND SELLER.  ALL ORDERS ARE SUBJECT TO CREDIT APPROVAL AND ACCEPTANCE BY SELLER'S MANAGEMENT.  SELLER AND BUYER EXPRESSLY AGREE THAT SELLER MAY MODIFY THESE TERMS AND CONDITIONS OF SALE FROM TIME TO TIME, AND SUCH MODIFICATIONS SHALL BE BINDING UPON BUYER ON WRITTEN NOTICE TO BUYER. 

 

(B)   If any of the terms and conditions herein conflict with terms and conditions specified by Buyer or affixed to a form or order blank used by Buyer, then ACCEPTANCE OF BUYER'S ORDER IS MADE ONLY UPON THE EXPRESS UNDERSTANDING AND CONDITION THAT THE TERMS AND CONDITIONS HEREIN SHALL GOVERN AND CONTROL THE CONTRACT BETWEEN BUYER AND SELLER, irrespective of whether Buyer accepts these terms and conditions by a written acknowledgment, by implication, or by acceptance of or payment for merchandise ordered hereunder.  Seller's failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of any or all of the terms and provisions herein as part of the terms and conditions of sale.

 

(C)   The placement of an order by Buyer for Seller’s goods is construed as a mere contractual proposal and shall not constitute a binding agreement.  Any order placed pursuant to this contract is deemed to be irrevocably made by Buyer for a period of 4 months, unless sooner withdrawn in writing prior to acceptance by Seller, starting from the date of receipt of such order.  Seller has no obligation to accept the contractual proposal made by the Buyer.   The acceptance and/or shipment of any order does not create any rights to products other than as expressly set forth in the accepted order, and does not obligate Seller to accept, or you to place, orders in the future.  Nothing contained in this contract shall imply any partnership, joint venture or agency relationship between the parties in any territory or jurisdiction. 

 

2.     DISCLAIMER OF WARRANTIES

(A)   SELLER MAKES NO GUARANTY OR WARRANTY, EXPRESS OR IMPLIED, OF THE GOODS SOLD HEREUNDER OR OF THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF SUCH GOODS.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SELLER SHALL HAVE NO LIABILITY FOR DEFECTS IN MATERIAL OR WORKMANSHIP.

 

(B)   Seller shall not be liable for normal manufacturing or finishing defects or for customary variations from quantities or specifications.  The physical or chemical characteristics or qualities are not guaranteed unless and except to the extent specifically provided herein.  Merchandise is sold subject to the imperfections of natural and other, if any, fibers.  This sale is not a sale by sample.

 

3.     LIMITATIONS ON SALE BY BUYER

 

(A)   SELLER EXPRESSLY RESERVES THE RIGHT TO LIMIT THE AMOUNT OF MERCHANDISE DELIVERED TO ONLY SUCH QUANTITIES AS ARE NECESSARY TO MEET THE REASONABLY EXPECTED DEMAND AT BUYER’S STORE LOCATIONS.

 

(B)   BUYER ACKNOWLEDGES THAT THE MERCHANDISE COVERED BY THE TERMS AND CONDITIONS OF THIS CONTRACT IS BEING SOLD BY SELLER TO BUYER FOR PURPOSES OF RESALE TO THE ULTIMATE CONSUMER ONLY. BUYER SHALL BE EXPRESSLY PROHIBITED FROM SELLING THE MERCHANDISE PURCHASED HEREUNDER TO A RETAILER OR OTHER DEALER IN LIKE MERCHANDISE, OR TO ANY PARTY WHO BUYER KNOWS, OR HAS REASON TO KNOW, INTENDS TO RESELL THE MERCHANDISE.

 

(C)   BUYER AGREES THAT IT WILL ONLY SELL THE MERCHANDISE COVERED HEREHUNDER AT RETAIL LOCATIONS AGREED TO BY SELLER IN WRITING.  BUYER FURTHER ACKNOWLEDGES THAT IF THE OWNERSHIP OR MANAGEMENT OF ANY APPROVED RETAIL LOCATION CHANGES OWNERSHIP, AS A RESULT OF THE TRANSFER OF CAPITAL STOCK, ASSETS OR OTHERWISE, THE PRE-EXISTING RELATIONSHIP BETWEEN BUYER AND SELLER IS NOT AUTOMATICALLY CONTINUED.  SELLER RESERVES THE RIGHT TO REVIEW THE FINANCIAL CONDITION OF THE NEW OWNERS AND ITS MARKETING NEEDS IN YOUR AREA BEFORE DETERMINING WHETHER TO CONTINUE OR CANCEL THE RELATIONSHIP.

 

(D)   BUYER WILL NOT, UNLESS OTHERWISE EXPRESSLY AGREED TO BY SELLER IN WRITING OR PERMITTED BY LAW, PROMOTE OR SELL THE MERCHANDISE BY MEANS OF THE INTERNET OR ANY ELECTRONIC MARKETPLACE.  IN THE EVENT THAT BUYER IS PERMITTED TO PROMOTOE OR SELL MERCHANDISE BY SUCH MEANS, IT SHALL NOT USE ANY INTELLECTUAL PROPERTY OF SELLER TO PROMOTE THE SALE OF MERCHANDISE ABSENT SELLER’S PRIOR WRITTEN PERMISSION.   

 

4.     DELIVERY

(A)   Seller agrees to deliver the merchandise to a carrier for transportation to Buyer and to arrange for transportation thereof to the destination selected by Buyer.  Absent an agreement to the contrary, Seller shall designate the carrier.  Buyer assumes all risk of loss from the time the merchandise is deposited with the carrier.  The merchandise shall be delivered D.D.P  or F.O.B. Seller's warehouse (as specified on the invoice), in whole or in part, and each delivery shall be deemed completed when the merchandise is so delivered.  All F.O.B freight, express and delivery charges shall be paid as a separate item by the Buyer and shall not be subject to any discount. 

 

(B)   Delivery to a carrier shall constitute a delivery and passing of title to the Buyer, subject, however, to Seller's right of stoppage in transit.  The carrier shall act solely as Buyer's agent, and all claims for damage must be filed with carrier.  The Seller may, at its option, make delivery from some point other than the warehouse where the merchandise is packaged, and add to the price thereof a charge for transportation from the warehouse to such point where delivery is made.  In such event, the total transportation to be paid by the Buyer for delivery shall not exceed the published common carrier rate from the warehouse to the destination specified by the Buyer.

 

(C)   If strike, embargo or any other cause beyond Seller's reasonable control prevents delivery to Buyer or delivery to a carrier, title passes to the Buyer as soon as merchandise has been set aside by Seller and invoiced to Buyer.  In such event, payment shall be made in accordance with the invoice as though the merchandise has been shipped.

 

(D)   Buyer is to furnish exact shipping dates and or destinations for the merchandise.  If Buyer fails to furnish such shipping instructions at least thirty (30) days in advance of such delivery then title passes to the Buyer when merchandise has been set aside and invoiced and Buyer agrees to make payment at maturity of the invoice so rendered.  Notwithstanding the foregoing, Seller may terminate this contract totally and partially for said failure and sell the goods without previous notice or authorization from Buyer.  Merchandise invoiced and held at any location for Buyer shall be held at Buyer's risk and expense, and Seller may charge for insurance and storage at prevailing rates.      

 

(E)   Deliveries against all orders are subject to credit approval by Seller at time of shipment.  Delivery which does not vary more than thirty percent (30%) greater or less than the quantity of merchandise contracted for, and delivery of substitutes, shall constitute compliance under this contract.  Partial delivery shall be accepted by Buyer and paid for at the contract prices and on its terms. If the sale of the merchandise shown on the face hereof is a reorder, delivery of merchandise which is a reasonable commercial match to the initial shipment constitutes full compliance with this sales contract.  Delivery of merchandise previously ordered by Buyer which has been canceled by Seller for whatever reason and then reinstated by Seller shall be deemed delivery hereunder.

 

(H)   Twenty (20) days of grace shall be allowed the Seller on each delivery.  Thereafter, shipment or tender of delivery prior to receipt of written cancellation shall constitute good delivery.  Any defect in quality or delays in delivery shall affect only the particular portion of delivery so defective or so delayed and shall not affect the balance of this contract.  Any delivery in dispute shall be paid for on the due date as provided in this contract, without defect, defense or counterclaim and regardless of controversies relating to other delivered or undelivered merchandise.

 

(I)    Where the Buyer has declared or manifested an intention that it will not accept delivery in accordance with the provisions of this contract, no tender by Seller shall be necessary, but Seller may, at its option, give notice in writing to the Buyer that the Seller is ready and willing to deliver in accordance with the provisions of the contract, and such notice shall constitute a valid tender of delivery.

 

5.     CREDIT AND PAYMENT

(A)   All invoices are payable in the currency as stated (Euros or US Dollars).  No discount may be taken unless specified on the face of this contract and payment is made on or before the due date.  Any check or remittance received from or for the account of the Buyer may be accepted and applied by Seller or its agent against any indebtedness or obligation owing by Buyer as shown by the books and records of Seller or its agent, without prejudice to or without the discharge of the remainder of any such indebtedness or obligation, regardless of any condition, proviso, statement, legend or notation appearing on, referring to, or accompanying such check or remittance.

 

(B)   Seller or its agent may, at any time and from time to time, in its sole discretion, limit or cancel the credit of the Buyer as to time and amount and, as a consequence, may require anticipation or demand payment in cash before delivery of any unfilled portion of this contract.  Upon failure of Buyer to make any such payment within ten (10) days after demand, or in the event of any default, breach or repudiation by Buyer of any contract with Seller, or if Buyer shall become insolvent, call a meeting of its creditors, or make an assignment for the benefit of its creditors, or if a bankruptcy, insolvency, reorganization or arrangement proceeding shall be commenced by or against Buyer, Seller may cancel this and any other contract with Buyer (in which event Buyer shall remain liable for damages), defer any shipments hereunder, declare forthwith due and payable all outstanding bills of Buyer under this or any other contract, sell all or any part of the undelivered goods (including but not limited to goods paid for by the Buyer), without notice, at public or private sale, the Buyer to be responsible for the costs and expenses of such sale and for any deficiency, (the Seller having the right to become the buyer of such goods at any such sale) and bill all or any part of the undelivered goods to the Buyer as of contract dates or delivery.  Approval of credit for one or more deliveries of contract shall not be deemed a waiver of the provisions of this paragraph.  Any property of Buyer, including but not limited to merchandise billed and held (whether paid for or not) at any time in Seller's (including any parent, subsidiary or affiliate company of Seller) possession, either as principal or agent, shall be deemed held as security (with a security interest therein granted by Buyer) for, and may at Seller's option be set-off against any and all of Buyer's obligations to Seller or any parent, subsidiary, affiliate, principal or agent of Seller.

 

(C)   If, in Seller’s unilateral opinion, Buyer’s credit becomes impaired, Seller may suspend deliveries until such time as Seller has received full payment for all goods already delivered or in process and is satisfied (in its sole discretion) as to Buyer’s creditworthiness for future deliveries.  If Seller suspends deliveries pursuant to this paragraph, and later proceeds with such deliveries, the delivery dates set forth in the purchase order shall be extended for an amount equal in time to the duration of suspension of deliveries.

 

(D)   In the event that buyer fails to make timely payment to Seller for any amounts due and owing, Seller shall have the right to terminate any outstanding purchase orders or unfulfilled portion thereof, and any other agreement between Seller and Buyer.  In such event, Seller may charge a twenty  percent (20%) cancellation fee on any outstanding purchase orders or the unfulfilled portion of such orders.  In the event that Buyer refuses delivery to avoid fulfillment of a purchase order, or refuses to provide instructions on re-delivery, Seller may charge Buyer a twenty  percent (20%) restocking fee.

 

6.     TERMS OF PAYMENT

(A)   Unless otherwise agreed on the face hereof, payment is to be made by bank wire.  If Seller agrees to accept payment by check, then checks are subject to collection and the date of collection shall be deemed the date of payment.  A charge will be made on all delinquent accounts at the rate of 1 1/2% per month (or such lower rate as may be the maximum allowable by law).

 

(B)   If in the opinion of Seller the financial condition of Buyer warrants such action, Seller may at any time before or after dispatch of the goods demand prompt and full payment or require other security or further assurance of due performance; in the event such demand is not satisfied within a reasonable time Seller may deem the contract repudiated and shall be entitled, in addition to all other remedies, to reimbursement of expenses incurred.

 

(C)   Should any dispute arise with respect to the merchandise covered by any invoice rendered under this contract, Buyer shall nevertheless pay all invoices covering merchandise not in dispute, without offset.

 

 

7.     CASUALTY AND AVAILABILITY OF RAW MATERIALS

Seller shall not be liable for any delay in the delivery of any part of the merchandise hereunder and shall not be held responsible for any losses resulting if the fulfillment of any terms or provisions hereof shall be delayed or prevented by revolutions or other disorders, wars, acts of enemies, strikes, fires, floods, acts of God, Government regulations, delay or inability to obtain labor, materials or goods through the Seller's usual and regular sources, insufficient orders, casualty, accident, economic downturns, or any other condition beyond the reasonable control of Seller.  In such event, Seller may, in its discretion, without notice to Buyer, at any time and from time to time postpone with permission of the Buyer the delivery dates under this contract for a time which is reasonable under all the circumstances or make partial delivery or cancel all or any portion of this and any contracts with Buyer.

 

8.     CANCELLATION OF CONTRACT

(A)   In case of circumstances which materially alter the economic aspects or the substance of the contract or seriously interfere with the operation of Seller or any of Seller's suppliers, and also in case it should be subsequently proved impossible for Seller to carry out its part of the contract, Seller shall have the right to cancel the contract in whole or in part.  Buyer shall not be entitled to damages as a result of any such whole or partial cancellation, or for any other reason.  Buyer's sole remedy shall be as provided below under "Claims by Buyer" and "Returns". 

 

(B)   No cancellations by Buyer shall be permitted after the purchase order confirmation is received by Seller.  If any cancellation (total or partial) is requested after the purchase order is received by Seller, that cancellation may be accepted by Seller in its sole and complete discretion, in which case Seller may apply a cancellation fee of thirty percent (30%) of the cancelled amount.  Without limiting the generality of the foregoing, Buyer cannot modify, cancel, or otherwise alter purchase orders after receipt by Seller without Seller’s written consent.  In the event that Seller in its sole and complete discretion gives such written consent, it may do so on such additional negotiated conditions which will protect Seller from loss.

 

9.     CLAIMS BY BUYER

All claims for patent defects or latent defects are barred and waived unless Buyer gives written notice to the Seller within thirty (30) days from the date of receipt of the goods claimed to be defective.  In said notice, Buyer must clearly specify the grounds and the nature of the objection and the amount of allowable damages claimed.  Seller shall within ten (10) days thereof be furnished with representative samples for the goods claimed to be defective and shall have the opportunity to inspect and test the goods claimed to be defective.  Goods rejected by Buyer may be replaced by Seller within a reasonable time after rejection has been agreed to by Seller.

 

10.   RETURNS      

No returns will be allowed without the written permission from Seller nor will it be accepted without a return authorization number issued by Seller on each carton returned.  All returns are subject to a fifteen 15% restocking fee. 

 

11.   LIMITATIONS OF SELLER'S LIABILITY

THE LIMIT OF LIABILITY OF SELLER FOR A BREACH OF ANY OF THE TERMS, CONDITIONS OR PROVISIONS OF THIS CONTRACT SHALL NOT IN THE CASE OF DEFECTIVE GOODS OR PERFORMANCE EXCEED THE DIFFERENCE IN VALUE ON THE CONTRACT DATE OF DELIVERY BETWEEN THE GOODS OR PERFORMANCE SPECIFIED AND THE GOODS OR PERFORMANCE ACTUALLY DELIVERED, BUT IN NO EVENT SHALL SUCH VALUE EXCEED THE RETURN OF THE PURCHASE PRICE OF THE APPLICABLE GOODS.  IN NO INSTANCE SHALL BUYER BE ENTITLED TO CLAIM CONSEQUENTIAL DAMAGES OR PROSPECTIVE PROFITS OR SPECIAL OR INDIRECT DAMAGES OR LOST REVENUE PROFIT OR GOODWILL, NOR SHALL SELLER BE LIABLE IN ANY INSTANCE FOR LOST PROFITS OR SPECIAL OR INDIRECT DAMAGES OR PROFITS ON CONTEMPLATED USE BY REASON OF BREACH OF CONTRACT OR WARRANTY BY SELLER, DEFECTIVE GOODS, DEFECTIVE OR LATE DELIVERY, OR NON-DELIVERY.  IN NO EVENT SHALL SELLER BE LIABLE FOR ANY DAMAGES BY REASON OF BUYER'S INABILITY TO OBTAIN SUBSTITUTE GOODS IN THE OPEN MARKET.

 

12.   DEFAULTS BY BUYER

(A)   If Buyer is in default in payment or otherwise in any respect on this or any other order or contract with Seller, Seller may defer shipment until such default is removed, and/or may cancel any undelivered portion of this or other orders; and/or all outstanding bills or invoices to Buyer shall, at Seller's option, become due and payable forthwith.  If Seller defers shipments because of Buyer's default, deliveries are tendered after the time for delivery specified in the contract has expired. Seller may resell the goods ordered by Buyer, and if any of the goods or containers thereof shall be covered by any patent or copyright or have been stamped or labeled with Buyer's label, design, trademark or trade name, Seller shall have the right to resell such goods and containers with any stamp or label affixed, and Buyer hereby grants to Seller, its successors and assigns an irrevocable license for such purpose.

 

(B)   Buyer shall be liable for all costs and expenses, incurred by Seller, including attorney's fees, arising out of, or in connection with, any default by Buyer in payment or in any of the other terms and conditions of this contract.

 

(C)   In the event of litigation relating in any way to these Terms and Conditions of Sale or to merchandise delivered by Seller to Buyer, Seller reserves the right to reclaim all goods delivered by Seller that have not been paid for by the Buyer.

 

13.   RIGHTS OF SELLER

Seller shall not be limited in its right and remedies against Buyer for any cause whatsoever to those set forth herein, but shall have such other rights and remedies as may be available to it.  The paragraph headings on this page are for reference purposes only and shall not affect the meaning or interpretation of the contract.

 

14.   DESIGN PROTECTION

No rights in and to pattern or design of goods covered by this contract pass to Buyer, except as an integral part of the goods, and Buyer, as special inducement to Seller, agrees not to cause or permit, either directly or indirectly, any such pattern or design to be copied or reproduced.

 

15.   TRADEMARKS AND TRADE NAMES

No right to the use of any trademark, trade name, trade dress, copyright, image, nor any other intellectual property (“IP”) of Seller passes to Buyer under this contract and Buyer agrees to refrain from using either directly or indirectly any of Seller's IP , unless specifically authorized in writing by Seller.  Notwithstanding the foregoing, Buyer may notify its customers that it sells Seller’s goods in advertisements and by providing its own images of Seller’s goods.  The acceptance and/or shipment of any order, or the provision of visuals, promotional and POP materials, signage and logos, does not create any intellectual property rights accruing to Buyer.

 

16.   JURISDICTION AND APPLICABLE LAW

In the event of any dispute between the parties arising out of or related to this agreement, any such dispute shall be adjudicated by the parties only in the courts of New York, located in the county of New York  and in the United States of America and the parties further consent that any process or notice of motion or other application to or filings with said courts or a Judge thereof may be served outside the State of New York by certified or registered mail or by personal service within the time periods provided by law or the court..  This contract shall be governed by the Uniform Commercial Code and by the internal laws of the State of New York without giving effect to its conflict of law provisions.  If any provision of this contract is held invalid under an applicable statute or rule of law, such invalidity shall not affect other provisions of this contract, which can be given effect without the invalid provisions, and to this end the provisions of this agreement are declared to be severable.  Notwithstanding the above, such invalid provision shall be construed, to the extent possible, in accordance with the original intent of the parties.

 

17.   WAIVER

No waiver by Seller any default shall be deemed a waiver of any subsequent default.  Any replacement (as hereinabove provided) or adjustment of a delivery shall cure any defects with respect to that delivery and any default so cured shall be deemed not to have occurred.  No modification of this contract shall become effective unless in writing signed by an authorized representative of Seller.

 

18.   ASSIGNMENT

No rights of Buyer under or arising out of this contract may be assigned without the express written consent of Seller.

 

19.   NOTICES

All communications provided for hereunder shall be in writing and shall be mailed or delivered to the Seller, on the address provided herewith, or to the Buyer, on the order of sales form made pursuant to this contract.