Standard Domestic Purchase Order Terms and Conditions POTC

Transcription

1 Standard Domestic Purchase Order Terms and Conditions POTC Vendors must adhere to all instructions contained in Famous Footwear s (BG Retail, LLC d/b/a/ Famous Footwear) Product Routing Guide in addition to the following: 1. Warranties. Vendor represents and warrants to Famous Footwear that: (a) all goods are merchantable and fit for the use and purpose for which they are intended, and that they are free from any defects or matter injurious to person or property; (b) Vendor shall comply and has complied with all applicable local, domestic, foreign and other laws, rules, regulations, ordinances, requirements and other standards as in effect as of the date of acceptance of such goods by Famous Footwear, and that such goods or the sale thereof by Famous Footwear does not and will not violate any such laws; (c) all customs laws applicable to the export of the goods from country of manufacture or assembly, and import laws applicable to the entry of the goods into the United States and, if applicable, any other country of importation, and all country of origin requirements set forth therein; (d) the goods shall, where applicable, be accompanied by such other material necessary for the goods or Famous Footwear to comply with the laws, rules, regulations, ordinances, requirements and other standards referred to in clause (b) above; (e) all goods shipped pursuant to the purchase order meet all industry and Famous Footwear requirements and quality standards; and (f) any product design presented to Famous Footwear by Vendor is Vendor s original creation and will not infringe or violate any patent, trademark, trade name, copyright or other intellectual or other property right, United States or foreign. 2. Indemnification. Vendor agrees to defend, indemnify and hold Famous Footwear and its affiliated companies and their respective officers, directors, employees and agents harmless from any and all claims, actions, proceedings, liabilities, losses, damages, penalties, fines, costs and expenses (including reasonable attorneys fees and expenses) arising out of or related in any way to (a) the design, manufacture or shipment of any goods covered by the purchase order; (b) the purchase or use of the goods by customers of Famous Footwear or by any other person or entity; (c) the breach or failure to perform by vendor under any provision of the purchase order or the purchase order terms and conditions; or (d) the breach of any vendor representation, warranty or covenant set forth in the purchase order or the purchase order terms and conditions. The foregoing notwithstanding, Vendor shall not settle any such claims, actions or proceedings without Famous Footwear s prior written consent, and Famous Footwear may, at its sole option, provide for its own defense and Vendor shall pay any and all of the liabilities, loses, damages, penalties, fines, costs and expenses (including reasonable attorneys fees and expenses) incurred by Famous Footwear in the protection of its interests. 3. Insurance. Vendor shall procure and maintain in effect at all times suitable products and contractual liability insurance coverage, with BG Retail, LLC named as additional insured for products liability, in adequate amounts, providing for the investigation, defense and satisfaction (by settlement or otherwise), of any claims, suits, liabilities, damages, costs and expenses asserted against or incurred by Famous Footwear and shall, upon request, furnish Famous Footwear with certificate evidence. 4. Production Code of Conduct (PCOC). Vendor acknowledges and agrees that the products will be manufactured in accordance with Caleres s Production Code of Conduct. 5. Consent to Jurisdiction and Governing Law. Vendor expressly agrees that any and all disputes, claims or litigation arising from or related in any way to a purchase order shall be resolved exclusively by the courts in the State of Missouri. Vendor waives any objections against and expressly agrees to submit to the personal jurisdiction of the courts of the State of Missouri, County of Saint Louis, and the U.S. District Court for the Eastern District of Missouri. It is further agreed that each purchase order is entered into in Missouri and that it shall be construed and enforced in accordance with the laws of the state of Missouri, exclusive of any choice of law rules.

2 Standard Import Purchase Order Terms and Conditions POTC 1. Seller s Acceptance of Terms and Conditions. Purchaser issues this purchase order ( Order ) to the seller named in the Order ( Seller ) subject to these Standard Purchase Order Terms and Conditions ( Terms and Conditions ), and Seller hereby agrees to and accepts these Terms and Conditions. Seller further agrees that these Terms and Conditions apply to the Order whether the Order is issued by Purchaser in hard copy document form, electronically or in any other manner. Seller expressly agrees that these Terms and Conditions are incorporated into, and are a material part of, the Order, and references to the Order in these Terms and Conditions shall be read as references to the Order incorporating these Terms and Conditions. These Terms and Conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns, including Vendors, Beneficiary, Factories, Invoicing Parties & Agents. 2. Scope of Terms and Conditions. These Terms and Conditions will remain in full force as part of the Order, subject to any amendments or modifications made from time to time in accordance with these Terms and Conditions, until the Order is cancelled by Purchaser. Notwithstanding the foregoing, cancellation of the Order will not release Seller from any liabilities or obligations, or affected the continued operation of any other provisions, which are stated to, or which by their nature should, survive termination. 3. Complete Agreement. Seller agrees that the Order constitutes the complete and exclusive statement of all the terms and conditions expressly agreed by Seller and Purchaser relating to the purchase and supply of the merchandise identified in the Order (the "Merchandise"). The Order embodies all the understandings between the parties hereto in relation to the Merchandise. Any promises, agreements, or representations or obligations which may have been made previously or undertaken by either party in relation to the Merchandise and not set out herein are cancelled and shall be of no force or effect. 4. Amendment. The Order may not be changed, modified, abrogated, amended, added to or superseded except in writing signed, or an electronic transmission sent, by Purchaser s duly authorized representative; provided, however, that no Purchaser representative s signature upon any Seller form or invoice sent in response to the Order shall constitute Purchaser's acceptance of or consent to any terms or conditions therein that differ from or add to these Terms and Conditions. 5. Pricing and Payment. Seller represents and warrants that the prices charged to Purchaser for the Merchandise are not in excess of prices charged to other customers for similar quantities of like items under similar delivery requirements, and Seller agrees to deliver the Merchandise to Purchaser at the prices and with the discounts and on the other price terms appearing on the Order, or at any lower prices, better price terms or discounts prevailing or quoted on or before the date on which title to the Merchandise is transferred from Seller to Purchaser. The prices stated on the Order include all duties, imposts and taxes applicable to the Order, including without limitation, any goods and services tax, value added tax, custom duties and stamp duties. Such duties, imposts and taxes, if any, must be stated separately on Seller s invoice, and such invoice must be a correctly rendered valid tax invoice as required by applicable laws. Seller agrees to the invoicing and payment processes set forth in the attached Schedule A. 6. Inspection. Seller agrees that Purchaser, or its duly designated representative, may from time to time, upon reasonable notice, inspect Seller s facilities, the Merchandise, and any suppliers and/or processes to ensure compliance with the Order.

3 7. Samples. Upon acceptance of the Order, Seller shall provide to Purchaser such quantity of samples of Merchandise as may reasonably be requested by Purchaser. 8. Right to Reject Merchandise. Notwithstanding Purchaser s pre-delivery inspections, if any, acceptance of all Merchandise shall be subject to final inspection by Purchaser, its agents or customers, and Purchaser reserves the right to reject all or any part of the Merchandise that: (a) fails to conform to the Order in terms of quantities, styles, materials sizes, or colors; (b) is not as represented or warranted; (c) fails to conform to the approved confirmation sample; or (d) is shipped before or after the shipment date specified in the Order. 9. Quality, Timing and Purchaser s Remedies. Seller acknowledges that the quality of the Merchandise and timing of delivery is of the utmost importance and goes to the essence of the Order. Purchaser shall be the sole judge as to whether any Merchandise delivered meets Purchaser s quality standards and timing requirements. In addition to, but in no way constituting a limitation upon, any and all other rights and remedies of Purchaser at law or as reserved to it herein, Purchaser may, if it determines any Merchandise not to strictly comply with all applicable terms, conditions, specifications and express and implied warranties: (i) reject such Merchandise and return or hold the rejected Merchandise at Seller's risk and expense with the right to charge Seller the cost of shipping, unpacking, examining, repacking, warehousing, reshipping, and any duties, fees and other related expenses incurred by Purchaser in relation to such Merchandise, (ii) refuse to accept delivery of all or any part of the Merchandise, (iii) cancel the Order or any part of the Order or cancel the whole or any part of any other order issued by Purchaser to Seller ( Other Orders ), (iv) refuse to accept delivery of merchandise covered by any Other Orders that remain unfulfilled, (v) cancel any one or more of the Other Orders, and/or (vi) accept delivery of such Merchandise that complies with the Order and refuse delivery of the balance of the Merchandise. If Purchaser has not already offset such charges provided for in this paragraph against amounts due to Seller (e.g. by deducting from next available payment(s) to Seller), Seller shall pay to Purchaser such charges within ten (10) days of Seller's receipt of the charge from Purchaser. 10. Non-Conforming Merchandise. Purchaser shall not be deemed to have accepted the Merchandise until it has had a reasonable time after receipt of the Merchandise to inspect it for non-conformity or defects and has expressly notified Seller of its acceptance. Such a period shall be extended to afford Purchaser an adequate opportunity to inspect the Merchandise if, in Purchaser s judgment, the complexity of the Merchandise, the quantity received, or any other circumstances makes such extension reasonable. Any unpacking or handling of the Merchandise incident to the Purchaser's inspection shall not indicate Purchaser's acceptance of the Merchandise. Purchaser's inspection of the Merchandise shall not relieve Seller of its obligations hereunder or of any liability for latent defects. At Purchaser's discretion, such inspection may include preliminary, final, and/or random inspections to ensure that the Merchandise is in good order and in accordance with Purchaser's instructions and specifications. The warranties in these Terms and Conditions constitute assurances to Purchaser that all of the Merchandise shall be in good order and conform to the Purchaser's instructions and specifications and the terms of the Order, and Purchaser shall be deemed to have relied upon those assurances whenever it accepts the Merchandise. Purchaser reserves the right to revoke acceptance of the Merchandise whenever it discovers any non-conformities, even if the time for inspection has passed. In no event shall payment constitute acceptance of non-conforming Merchandise.

4 11. Partial Shipments. No partial shipments of individual order numbers are allowed, unless authorized in writing by a representative of Caleres. 12. Breach by Seller. Purchaser reserves the right, without cost or penalty, to cancel all or any part of the undelivered portion of the Order or to refuse to accept delivery if Seller breaches any of the terms and conditions of the Order, including, without limitation, warranties of Seller, or if Seller does not make deliveries as specified by the Order. Purchaser also reserves the right to cancel the Order without cost or penalty in whole or in part in the case of war, civil strife, government appropriation, strike, fire, earthquake or other casualty or circumstances beyond its reasonable control materially affecting its or Seller s premises or business, or in the case of Seller's insolvency, bankruptcy, or cessation of business operations. 13. Rejected Merchandise. If Purchaser cancels the Order for any reason, or returns any Merchandise covered by the Order to Seller pursuant to rejection or revocation of acceptance, Seller shall not resell such Merchandise that was labeled, packaged or tagged with any trademark, name or symbol without first obtaining Purchaser s permission in writing. In any event, Seller shall not resell such Merchandise and/or its boxes until it removes or obliterates any mark, name, symbol, tag, label, packaging or other identifying item. 14. Waiver. The acceptance by Purchaser of any Merchandise shall not be deemed a waiver (whether or not Purchaser shall demand strict compliance by the Seller with respect to subsequently-delivered Merchandise) by Purchaser of its right to refuse any further Merchandise nor of its other rights or remedies in the event that the Seller should subsequently fail to comply strictly with the terms, conditions or specification of any Order, express or implied, with respect to any further installment or installments of the Merchandise. Acceptance of all or any of the Merchandise shall not be deemed a waiver of Purchaser s right to claim damages, including manufacturing costs, all landed related costs, loss of profits or goodwill, or other special damages, including but not limited to consequential, incidental, and/or punitive damages, sustained by Purchaser. In the event that Purchaser, expressly or impliedly, waives any right or fails to strictly enforce any provision of the Order, such waiver shall not operate as or be deemed to be a waiver of any other or subsequent right, breach, or term of the Order. 15. Intellectual Property Ownership. In the event that Purchaser provides the Seller with patterns, samples, specifications and other instructional material or information to be used by the Seller to manufacture the Merchandise (including any specification sheets, photos and/or packing instructions issued with or incorporated into the Order), such property and information shall at all times remain the sole property of Purchaser. Seller hereby agrees that such property and information will be used solely in furtherance of fulfilling the Order, and shall under no circumstances be communicated in any manner whatsoever to any third party or used by the Seller in any way for its own benefit or for the benefit of any third party, except with express authority obtained from Purchaser, in writing. 16. Trademarks. Suppliers will protect Purchaser s trademarks and any other parties to the extent that any and all rejects determined to be unacceptable for final delivery to Purchaser by any quality inspector will have the trademarks removed or obliterated before leaving the Beneficiary's premises. This also applies to any portions of a purchase order canceled. Any violation of this trademark integrity clause may represent a trademark infringement and in respect of which Beneficiary shall be deemed to be liable.

5 17. Warranties. Seller represents and warrants that the Merchandise sold to Purchaser complies with all applicable laws, statutes, regulations, rules, ordinances, standards and codes currently in force or hereafter enacted, applicable to its manufacture, assembly, packaging, labeling, transportation and quality. Seller further represents and warrants to Purchaser and its customers, in addition to all warranties implied by law, that (i) all invoices, declarations, affidavits, letters, papers or other statements, written or oral, pertaining to the Merchandise are complete, accurate and contain no material omissions or fraudulent or false information and (ii) each item of Merchandise described in the Order, together with all related packaging, labeling and other printed matter and all related advertisements furnished or authorized by Seller shall: a) be fit and safe for the purposes for which it foreseeably may be used and for the ordinary purposes for which it is manufactured, merchantable, free from defects in design, workmanship and materials, and of good quality; b) be properly registered and marked with the country of origin, as required under applicable law; c) Conform strictly to all specifications, drawings, models, samples or other descriptions used by Seller or required by Purchaser. 18. Anti-Corruption. Seller warrants that Seller shall comply with Purchaser s anti-corruption policy, as updated from time to time. Seller will provide Purchaser with assurances and official documents that Purchaser s customers may periodically request to verify Seller s compliance with this obligation. 19. Assignment of Intellectual Property Rights. In the event Seller at any time obtains or claims any rights in trademarks, copyrights, designs or other industrial or intellectual property rights owned by Purchaser or its affiliated companies, Seller shall transfer such rights to Purchaser or its affiliate, as directed by Purchaser, and provide all required assistance related to such transfer. Seller hereby appoints Purchaser as its power of attorney to do all things necessary for the transfer of such rights. 20. Indemnification. Seller agrees to defend, indemnify and hold Purchaser, its affiliates, parent, subsidiaries, employees, licensees, agents and contractors (the "Indemnitees"), harmless to the fullest extent permitted by applicable law, from and against any and all claims, actions, suits, investigations, government action, liabilities, damages, costs or expenses (including but not limited to attorneys' and experts fees and costs) asserted against, or suffered or incurred by, the Indemnitees that may have been caused, or alleged to have been caused, directly or indirectly by (i) Seller's act or omission, including but not limited to Seller s manufacture, design, labeling, testing, inspecting, placarding, packaging and/or shipping, (ii) Seller's failure to comply strictly with these Terms and Conditions and all other terms of the Order, (iii) use of the Merchandise by Purchaser's customers or others, including but not limited to any end-user, purchaser or consumer of the Merchandise, (iv) any governmental action relating to the Merchandise, (v) any actual or alleged infringement of any rights specified in these Terms and Conditions, or (vi) any breach of the warranties and representations of Seller contained herein. Seller shall promptly notify Purchaser of any defect in the Merchandise, illegality or claim, suit or investigation as described in this paragraph of which Seller becomes aware. 21. Transfer of Title and Risk of Loss. Seller represents and warrants that it conveys good title to all Merchandise, and that such transfer is rightful and that goods shall be delivered free from any security interest or other lien or encumbrance; and, at Seller's sole cost and expense, Seller covenants

6 and agrees to defend, indemnify and hold Indemnitees, harmless from and against any and all claims, suits, liabilities, damages, costs or expenses (including but not limited to attorneys' and experts fees and costs) asserted against or suffered or incurred by Purchaser because of any actual or alleged defect in title to Merchandise. Title to and risk of loss of Merchandise shall pass to Purchaser only following the Purchaser s receipt of the Merchandise and final acceptance of the Merchandise by Purchaser and its customer. 22. Purchaser s Right to Set-off. Purchaser may set off against any amounts payable to Seller all present and future indebtedness of Seller to Purchaser arising from any transaction or occurrence. 23. Chargebacks. Seller agrees and acknowledges that, in Purchaser s sole and absolute discretion, Purchaser may claim/ chargeback to, or (without limiting paragraph 21) take a credit against any outstanding amounts due to Seller for (i) the amount of any loss, damage, increased transportation charges or other costs and expenses, including, but not limited to those for held, rejected or returned Merchandise (e.g., costs of shipping, unpacking, examining, repacking, reshipping, storage and other similar expenses) or chargebacks or credits taken against Purchaser by its customers resulting from Seller s late delivery or delivery of non-conforming or defective Merchandise. These remedies shall not be exclusive, and Purchaser reserves all of its rights at law and equity and any other remedies reserved to itself herein. 24. Cancellation. Purchaser may cancel the Order or any part of the Order for any reason at any time subject to reimbursing Seller for its reasonable, documented direct nonrecoverable costs for labor and materials expended on the canceled Order or part of the Order prior to cancellation. 25. Insurance. Seller shall carry general liability insurance having standard coverages, including products liability, in an amount at least equivalent to $1 million United States dollars, workers compensation insurance (if available in Seller s jurisdiction) and transit insurance coverage to cover the period until title and risk of loss shall pass to Purchaser. 26. Subcontracting. Seller shall not assign or subcontract the Order, or portion thereof, without the express written consent of Purchaser. Such consent shall not relieve Seller of any obligation to comply with the terms and conditions of the Order. Seller agrees to ensure that all subcontractors are bound by these Terms, and Purchaser will indemnify, defend and hold Seller harmless for any acts or omissions, or other violations of these Terms and Conditions, by any subcontractor in connection with the Order. 27. Early Payment Interest. In the event Purchaser makes payment to Seller for any payments due pursuant to the Order prior to the date payment is required under the Order, Purchaser shall be entitled to payment of anticipation interest. Such payment shall be made in the form of a discount to present value of the amount of such early payment. 28. Confidentiality. Seller agrees that any information pertaining to Purchaser s or its affiliates business that comes into Seller's possession shall be treated as a trade secret and confidential and shall not be divulged by Seller to any third party or used by Seller other than in connection with the Order. Unless otherwise agreed in writing, information supplied to Purchaser by Seller shall not be treated as confidential and Seller shall have no rights against Purchaser with respect thereto. Seller shall not use Purchaser's or its affiliates names, trademarks, service marks, trade names, distinctive words, logos, pictures or designs owned or created by, or licensed to, Purchaser or its affiliates or used on or in connections with the Merchandise, or any variation thereof, nor shall the Seller sell to

7 any third party any Merchandise which bears such names, trademarks, service marks, trade names, distinctive words, logos, pictures or designs. 29. Survival. Seller's representation and warranties herein shall survive the delivery of Merchandise to the Purchaser and any resale of Merchandise by Purchaser, or by Purchaser's subsidiaries, affiliates and/or customers. 30. Transshipments. Seller agrees that the transactions under the Order shall not involve transshipments of merchandise for the purpose of mislabeling, or evading any quota or country of origin restrictions. 31. Enforceability. Should any of the provisions of the Order be declared by any court or tribunal of competent jurisdiction to be invalid or otherwise unenforceable, such decision shall not affect the validity or enforceability of any remaining provisions thereof. 32. Production Code of Conduct Standards (PCOC). Seller understands and agrees that the Purchaser s Production Code of Conduct, its Manufacturer/Supplier s Certification, and any similar codes and certification of any of Purchaser s customers in connection with the Order, as updated from time to time, are incorporated into the Order and made a part thereof by reference. 33. Anti-Terrorism (C-TPAT). With respect to the U.S. Customs Trade Partnership Against Terrorism Act ( C-TPAT ), Seller shall comply with Purchaser s C-TPAT Supply Chain Security Program for Foreign Factory or Purchaser s customer s C-TPAT program if applicable to the Order, including the right to conduct audits and inspections of Seller s operations, which program(s) are incorporated into this Order and made a part thereof by reference. 34. Independent Contractor. Seller provides the Merchandise to Purchaser as an independent contractor. Nothing in the Order may be construed to create the relationship of principal and agent between Seller and Purchaser. 35. Transfer. Neither party shall assign or transfer this Agreement, its rights, claims, interest, or monies due or to become due hereunder, without the prior written approval of the other party. No assignment shall relieve the assignor of its duties and obligations under this Agreement. 36. Governing Law and Consent to Jurisdiction. The Order and the rights and obligations of the parties under it shall be governed by and construed in accordance with the laws of Hong Kong. Seller expressly agrees to be subject to the jurisdiction of Hong Kong and any court or tribunal with jurisdiction over any matter or dispute pertaining to the Order and the rights and obligations of the parties under it. By accepting an Order, all Parties referenced in Section 1 are agreeing to these terms.

8 SCHEDULE A 1. Required Documents. After presentation of Merchandise in the ecvision/amber Road system, Vendor/Invoicing Party/Beneficiary will submit the commercial invoice in the system along with the required documents. Required documents must be presented to Purchaser via the ecvision/amber Road system and designated freight forwarder no later than five (5) days from date of cargo delivered. 2. Document Review and Payment. Upon receipt of the ecvision/amber road Invoice sent status, Purchaser will review for compliance with the Order terms and the terms and conditions contained herein. Purchaser will notify Beneficiary on a timely basis of discrepancies noted in performing the review. Purchaser and Beneficiary will use their best efforts to resolve on a timely basis any discrepancies noted. Once Purchaser and Beneficiary have resolved discrepancies, Purchaser will authorize payment of the Beneficiary's commercial invoices covering purchase orders requested for payment based on the ecvision/amber Road system invoice. 3. Wire Transfer. Payment will be made by wire transfer payment directly to Beneficiary s designated bank account upon completion of procedures above and based on Beneficiary providing in writing to Purchaser on Beneficiary s stationery, signed by an appropriate officer the appropriate validated wire instructions. 4. Wire Changes. Beneficiary/Vendor shall have full responsibility to inform Purchaser in writing of any changes in bank wire instructions required in 2.3. Beneficiary/Vendor acknowledges that if the information given to Purchaser as required in 2.3 is not accurate, Beneficiary/Vendor bears the risk of loss of the value of the wire transfer payment. 5. Payment. Purchaser will initiate a wire transfer payment based on the Order s payment terms which are typically Net30. Payment is triggered after receipt of the ecvision/amber Road Payment Request being SENT along with the required documents, and satisfactory resolution of any noted discrepancies. Payments are batched to send once a week on the next following Monday. If the payment day falls on a holiday honored by Purchaser or its bank, wire transfer payment will be initiated on the first preceding day which a wire transfer payment can be initiated. See link for details: Sourcing Guide 25 Fees & Penalties 6. Invoice Processing Fee. Purchaser reserves the right to deduct a processing fee for each commercial invoice presented to the purchaser for payment. Multiple Packing lists can be consolidated to reduce commercial invoices. The Document Handling Fee should not be stated on the commercial invoice, thus the value of the goods should not be reduced. Instead, the Document Handling Fee is automatically calculated in the ecvision/amber Road invoice. See link for details: Sourcing Guide 25 Fees & Penalties 7. Case Label Fee. This fee is not stated on the commercial invoice but automatically reduced from payment for each ecvision/amber Road case label. See link for details: Sourcing Guide 25 Fees & Penalties 8. Late Shipment Penalty Discount. Purchaser reserves the right to deduct a Late Shipment Penalty Discount for each pair of shoes that is not shipped by the XF/NLT (not later than) date.

9 The Late Shipment Penalty Discount is calculated as 1% times the gross F.O.B. times the number of days late per purchase order on any given Commercial Invoice. This assessed penalty will be taken as a deduction against the payment to the supplier for the orders that the penalty applies to. The penalty must be noted on the Commercial Invoice, following the total F.O.B. PO line that is net of any preshipment negotiated discounts. 9. INCO terms. Shipping terms will be per the Order s INCO terms. Beneficiary will bear the risk of loss or damage in transit to the applicable designated freight forwarder. 10. Open Account Basis. This Agreement shall continue in force and govern all purchase transactions conducted on an open account basis between Beneficiary and Purchaser unless modified in writing and signed by either parties or their duly authorized agents.