OMIT, LLC ("OMIT") is in the business of manufacturing, marketing, distributing and selling clothing and related accessories. The retailer whose name appears below ("Retailers") is in the business of selling clothing and related products. Retailer desires to purchase OMIT products ("Products") for resale directly to the consumer only, subject to the following terms and conditions of sale (the "Terms and Conditions"), to which Retailer agrees to be bound.
Retailer shall place its orders for Products on purchase order forms approved by OMIT. Orders are subject to approval or rejection by OMIT in its sole and absolute discretion. Any alterations or cancellations of orders are subject to acceptance and confirmation by OMIT in writing. Once an order is confirmed by OMIT, Retailer may cancel such order within 72 hours without charge. Any cancellations of confirmed orders after such 72-hour period shall be subject to a 20% cancellation fee.
Unless otherwise agreed by OMIT in writing, all sales of Products shall be F.O.B. OMIT's distribution center in Irvine, California. Delivery to the carrier at OMIT's distribution center constitutes delivery to Retailer. If Retailer is granted credit by OMIT (which may be granted or denied in OMIT's sole and absolute discretion), payment terms are net 30 days from date of invoice. Otherwise, Products are sold on a C.I.A. or C.O.D. basis.
Unless otherwise directed by OMIT in writing, Retailer shall mail all payments to OMIT at: OMIT, LLC, 9600 Toledo Way, Irvine, CA 92618. Retailer shall include a remittance notice with all payments. All C.I.A. and C.O.D. shipments are to be paid in cash, cashier's check, company check or certified check only, unless the order is prepaid or arrangements are made and approved in writing by OMIT before the order is shipped. All payments shall be made in U.S. currency. A service charge of up to 1.5% per month (18% A.P.R.), or the maximum amount allowed by law, will be applied to all past due invoices. A 10% handling charge will be charged on any returned check, subject to a minimum charge of $25.00. Unless otherwise specified by OMIT, payments shall be applied first to accrued service charges (if any) and then to the oldest unpaid invoice.
All orders received and accepted by OMIT are automatically provided a 45 day completion date unless otherwise specified. OMIT shall not be liable for any failure to deliver hereunder. OMIT shall have the right to deliver all Products ordered at one time or in partial shipments within the time of delivery as provided on the order unless the order is specified to ship "complete." OMIT reserves the right to refuse any requests for partial shipments. OMIT will ship back orders for Products unless written cancellation is received from Retailer at least five (5) days prior to shipment or a cancellation date is indicated on the order. Should OMIT's production be curtailed, OMIT reserves the right to fill any order placed by Retailer and accepted by OMIT in proportion to its production of such Products. If OMIT is unable to manufacture any style contained in any order placed by Retailer and accepted by OMIT, OMIT shall not be responsible for non-delivery of such style. In addition, OMIT may change the design of any Product at any time without notice and without obligation to make the same or any similar change to Products previously purchased or shipped to Retailer. Retailer must report to OMIT any shipping discrepancies or claims for defective Products within five (5) days of delivery. Carton shortages and freight damage must be reported immediately to the carrier. OMIT shall not be responsible for any such shortages or carton damage but will provide reasonable assistance to Retailer for claims it brings against the carrier. Retailer expressly waives any rights to claim shipping discrepancies or carton or freight shortages unless it has expressly complied with the terms of this paragraph. Retailer shall pay OMIT a 20% restocking fee on any refused shipments. If Retailer requests its shipping agent or carrier to hold a shipment of Products and as a result of such a request such Products are returned to OMIT by such shipping agent or carrier, Retailer shall be charged a 20% restocking fee.
Deductions not authorized in advance by OMIT in writing will not be accepted, including but not limited to, advertising, co-op, or pricing support. Any allowances must be assigned a chargeback authorization number and approved, in writing, by a Vice President or President of OMIT.
OMIT accepts returns only when there has been an error on OMIT's part as evidenced by the original packing list and confirmed by the returned Products and only for duplicate orders or defective or damaged Products. OMIT does not accept color or size exchanges. Any other requested returns must be approved in advance in writing by a Vice President or President of OMIT. OMIT may in its sole and absolute discretion reject any such other requested returns. Other returns that are accepted by L-RG will be charged a restocking fee of $5.00 per unit returned, plus a $100.00 handling fee. All Product returns must be approved by OMIT in writing. Retailer must receive a return authorization number (RA#) prior to attempting to return any Products to OMIT. Any defective or damaged Products shall be clearly marked with masking tape next to the flaw. Retailer shall include the RA # on the outside of the carton, next to the mailing label, and shall include a copy of the invoice indicating the item being returned inside the carton. Retailer shall ship any returned Products freight prepaid to [OMIT's distribution center in Irvine, California]. OMIT will refuse any unauthorized or freight collect returns. Authorized returns will be credited back to Retailer, including the original discount terms, or Retailer shall receive replacement Products, within 10 business days of receipt by OMIT. OMIT reserves the right to exchange similar Product if the identical Product is not available for replacement. OMIT may refuse any returned Product that is damaged through improper packing or improper display methods at Retailersí location. Discounted, discontinued and "Second" sales of Products are FINAL SALE ONLY. NO RETURNS.
OMIT warrants that Products, at the time of shipment, are free from defects in workmanship and materials. OMIT reserves the right to inspect any Products alleged to be defective before making a decision regarding the validity of any warranty claim. The warranty described in this paragraph shall be in lieu of any other warranty, express or implied, including but not limited to, any implied warranty of merchantability for a particular purpose. Retailer specifically waives all rights to make claims against OMIT for any loss, damage, or expense of any kind or nature, including damages caused directly or indirectly by Products other than for the return of Products in accordance with these Terms and Conditions. OMIT's liability under these Terms and Conditions or with respect to Products, regardless of the form of action, shall in no event exceed the price paid by Retailer for such Products. In no event shall OMIT be liable for costs of procurement of substitute products or services, lost profits, or any special, indirect, consequential, or incidental damages, however caused and on any theory of liability, arising in any way out of these Terms and Conditions. This limitation shall apply even if OMIT has been advised of the possibility of such damages, and notwithstanding any failure of essential purpose of any limited remedy provided herein.
Sales of Products by OMIT to Retailer are made on the express condition that such Products are to be sold by Retailer directly to retail consumers only, and only at such retail store locations authorized by OMIT and listed below. Without limiting the generality of the foregoing, without OMIT's prior written approval, which it may withhold in its sole and absolute discretion, Retailer may not sell Products (i) to any other retailer or distributor; (ii) to any party who Retailer knows or should know intends to resell Products; or (iii) online or through any internet auction site. Furthermore, Retailer shall not at any time purchase Products from any party other than OMIT.
Retailer expressly acknowledges and agrees that these Terms and Conditions and any know-how, designs, business plans, pricing and similar information of OMIT are proprietary and confidential and shall not be disclosed to any third party by Retailer.
Retailer acknowledges and agrees that OMIT is the exclusive owner of the trademarks under which the Products are sold (the "Marks"). Retailer shall inform OMIT of any infringement and/or counterfeiting that Retailer has knowledge of and will not personally aid or encourage others to register, contest, or impair any of the Marks. No other merchandise shall be sold or offered for sale by Retailer under any of the Marks and Retailer shall make no use of any of the Marks or portions or derivatives thereof as Retailer's trade name or corporate name. Retailer has no rights to the use of any of the Marks except as such Marks may appear on Products purchased hereunder or on such advertising, marketing, promotional and/or merchandising materials which OMIT may provide Retailer as hereinafter provided. All sales, marketing, promotional and merchandising materials provided by OMIT to Retailer, including but not limited to, permanent fixtures, signage, POP items and the like, shall remain the property of OMIT and may be removed from Retailer's store(s) at any time at the sole and absolute discretion of OMIT. All such materials are on loan to Retailer for use in Retailer's authorized retail locations only. Following termination of the relationship between Retailer and OMIT created hereby for any reason, Retailer shall immediately discontinue the use of the Marks in any advertising or use in any manner that might confuse or mislead the public into thinking that Retailer is a OMIT retailer and Retailer shall immediately return to OMIT all advertising, marketing, promotional and/or merchandising materials OMIT provided to Retailer. Retailer shall reimburse OMIT for any attorney's fees and other expenses incurred by OMIT for any legal action required to enforce this provision.
All advertising and promotions (including, without limitation printed advertisements, circulars, point of purchase displays, etc.) by Retailer which include Products or any of the Marks must be approved in writing in advance by OMIT. No advertising of Products may include double pricing (i.e., price comparison such as was/is or suggested retail/actual retail or similar type comparisons). There shall be no co-op advertising of Products unless approved in each instance in advance in writing by OMIT. Retailer shall comply with all of OMIT's product guidelines, standards and requirements, including but not limited to those with respect to sales promotion, display and merchandising affecting the image of Products or the Marks.
OMIT may terminate its relationship with Retailer immediately should Retailer fail to comply with any of these Terms and Conditions, or upon thirty (30) days notice, for any other reason. The relationship of the parties and Retailer's right to purchase and sell Products hereunder shall immediately terminate upon (i) the commencement of any proceeding under any bankruptcy, insolvency, or similar law by or against Retailer or any principal of Retailer or any guarantor of Retailer's obligations hereunder, (ii) the appointment of a receiver of any part of Retailer's inventory subject to a Form UCC-1 filing by OMIT, or (iii) the attempted assignment of this Agreement by Retailer without OMIT's prior written consent. Termination of the relationship shall not relieve or release either party from making payments that may be owing to the other party hereunder or otherwise. Upon termination Retailer shall immediately deliver by registered or certified mail a detailed list of all first quality inventory of Products then in Retailerís possession. OMIT shall have an option within 30 days of receipt of such list to repurchase such inventory at the price originally paid by Retailer, prior to Retailer offering such inventory for sale to any third party.
These Terms and Conditions shall apply to all transactions between OMIT and Retailer. In the event of any conflict between these Terms and Conditions and the terms included in any document or form submitted by Retailer to OMIT, these Terms and Conditions shall prevail. The relationship between OMIT and Retailer established by this arrangement is that of independent contractors. Retailer shall not be deemed an agent, employee or representative of OMIT. Retailer shall provide OMIT upon request with a valid state resale certificate. Retailer shall be solely responsible for any sales, excise, use, property or other tax, tariff, duty or assessment levied by any governmental unit or agency with regard to its purchase of Products and shall indemnify and hold OMIT harmless from any taxes not paid by Retailer. If any of these Terms and Conditions are held invalid by any law, rule, order or regulation of any government or by the final determination of any state or federal court, such invalidity shall not affect the enforceability of any other provisions not held to be invalid. Any disputes arising between Retailer and OMIT shall be governed by the laws of the State of California and the exclusive venue for any action hereunder shall be in the federal or state courts located in Orange County, California. OMIT shall be entitled to attorneys' fees and other costs incurred in enforcing these Terms and Conditions, including, without limitation, the collection of any amounts owed to OMIT by Retailer.