Merchandiser Sell Products
All purchase orders constitute a contract between Warnaco and Seller and will be governed by the following terms and conditions:
- Time of shipment is of the essence of this contract. Warnaco (“Buyer”) reserves the right to refuse any Merchandise and to cancel all or any part of a purchase order if Seller fails to ship all or any part of the Merchandise in accordance with the terms set forth herein. Acceptance of any part of the purchase order shall not bind Buyer to accept future shipments nor deprive Buyer of the right to return merchandise already accepted. Buyer’s trade name, trademarks and other identification shall be removed by Seller at Seller’s expense from all merchandise returned by Buyer.
- The term “Merchandise” wherever it appears in the contract shall mean Merchandise covered by the contract. Merchandise is wearing apparel or accessories intended for sale or intended for the manufacture of wearing apparel or accessories intended for sale, and any defect therein may occasion special damages to Buyer. Acceptance of all or any part of the Merchandise shall not be deemed to be a waiver of Warnaco’s rights either to cancel or return all or any part of thereof: a) because of failure to conform to this contract or to Buyer’s standards and specifications or inspection criteria; b) by reason of defects, latent or patent, or other breach of warranty; or c) because of failure to make any claim for damages, including manufacturing costs occasioned to Buyer. Such rights shall be in addition to any other remedies provided by law. Buyer shall have the right to sell nonconforming Merchandise or Merchandise in breach of warranty. Seller shall reimburse Buyer from such sale for the difference between the total expenses incurred by Buyer in connection with such sale and the proceeds received by Buyer from such sale.
- Seller represents and warrants that the products furnished hereunder shall be of good workmanship, design and materials and shall be free from all defects, including, but not limited to defects which create a “substantial product hazard” within the meaning of any governmentally established consumer product safety laws or regulations.
- Buyer may provide Seller with information, possibly including product samples and designs, pricing, and other proprietary information (collectively, the “Information”) for use in connection with production on behalf of Warnaco. The Information is the property of Warnaco. The Information shall remain the confidential property of Warnaco and Seller will not directly or indirectly, copy, reproduce or otherwise imitate the appearance, design, or construction of any of Warnaco’s products for its own use or benefit or for the use or benefit of any third party. The Information shall not be used or disclosed to any third party. Upon the completion of your review or upon the request of Warnaco, you will return to Warnaco all of the Information.
- Seller represents and warrants that it owns or has the legal right to any intellectual property that it may supply in connection with the manufacture of the Merchandise and that such ownership or right of Seller does not infringe on any third party’s right to such intellectual property in any way.
- Buyer and/or its agents shall have the right to examine any facility in which Merchandise will be produced, any work in process and all finished and packaged Merchandise. Such inspection shall not constitute a waiver of Seller’s responsibility. Any variance between the quantity ordered and the quantity shipped shall be subject to Buyer’s prior written approval. No Merchandise shall be shipped without certificate of inspection issued by Buyer or Buyer’s agent.
- Delivery and risk of loss or damage shall be established under Incoterms 2000 published by the International Chamber of Commerce.
- Buyer reserves the right to return all goods not in conformity with these representations and warranties by Seller. Further, Seller shall indemnify, defend and hold Buyer harmless from any and all claims, losses, actions or judgments and any expenses, costs, or damages incidental thereto arising out of the purchase, sale, use or possession by Warnaco of the Merchandise covered hereunder.
- Seller represents and warrants that the Merchandise has been manufactured in accordance with the samples furnished by Seller and approved by Buyer and/or the standards and specification and the inspection criteria furnished by Buyer. Seller represents and warrants further that the fabric, findings and other materials used in the manufacture of the Merchandise conform to the standards and specifications and the inspection criteria furnished by Buyer.
- Any dispute, controversy or claim arising out of or relating to this contract shall be settled by arbitration held in New York, New York before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon any award rendered in such proceedings may be entered in any court having jurisdiction as provided by law.
- Merchandise designed by Buyer shall not be manufactured or sold by Seller for its own use, or for the use of any individual, partnership, corporation or entity other than Buyer. Seller shall not release to parties other than Buyer any information relating to the Merchandise, or furnish to such parties any sample thereof, without the prior written consent of Buyer.
- Seller agrees to indemnify Buyer and hold Buyer harmless from and against all claims, liability, loss, damage or expense, including but not limited to attorney fees, arising from or by reason of any actual or claimed trademark, trade secret, trade name, patent or copyright infringement, or any other personal, contractual or proprietary right of any person or entity based thereon, with respect to any part of the Merchandise, and such obligation shall survive acceptance of the Merchandise and payment thereof by Buyer.
- All materials furnished by Buyer to Seller for use in the manufacture of the Merchandise shall be sold to Seller at cost plus expenses and shall be used by Seller only in the manufacture of Merchandise for Buyer. Seller shall maintain accurate records of such materials used. All such materials which are not used by Seller shall be returned promptly to Buyer.
- This contract shall be construed and interpreted and its performance shall be governed by the law of the State of New York, U.S.A. without respect to its choice of law provisions.
- This contract may not be modified or terminated orally, and no modification or termination or any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom such modification, termination or waiver is sought to be enforced, or by telex or cable from Buyer.
- The English language version of the contract shall be controlling.
- Without limiting any other rights or remedies of Buyer, if Seller fails for any reason whatsoever, including but not limited to events of force majeure, to deliver all of the Merchandise in conformity with this contract on or before the delivery date specified in the purchase order and in the event the Buyer elects to accept delivery of such Merchandise, the contract price for the goods shall be reduced prior to shipment thereof by an amount equal to the difference between (i) the estimated cost of shipping the goods by ocean freight to the designated port of entry and (ii) the actual cost of such other faster means of transportation as may reasonably be selected by Buyer for transportation of the goods to the designated port of entry so as to permit Buyer to maintain its schedule for distribution of the Merchandise to the extent possible under the circumstances.
- Seller certifies that it has complied with all laws and regulations governing the manufacture, distribution, and sale of products and services to be furnished hereunder.
- Seller acknowledges that all Merchandise, wrappers and containers must bear markings and labels in conformity with standards and specifications furnished by Buyer.
- Seller represents and warrants that the products to be furnished hereunder shall have been manufactured, assembled and made in full compliance with all applicable Federal, State and Local laws and any regulations and standards promulgated, including, but not limited to any law, regulation or standard relating to safety, wages, hours or other conditions of employment.
- Seller represents and warrants that all products provided hereunder conform to the requirements of all applicable Federal, State or Local statutes and regulations and standards issued thereunder including, but not limited to labeling, country of origin, product care, packaging, product safety, recycling and any other product specific rules. Seller further warrants that it will not engage in the illegal transshipment of products and that it will comply with the terms of special trade program. Seller further represents and warrants that it has filed with the applicable government agencies whatever continuing guarantees may be required by law and regulation.
- Seller represents and warrants that the Merchandise is not currently subject to any antidumping duty (“AD”) and countervailing duty (“CVD”) investigations and/or AD/CVD Orders. If AD and/or CVD investigations are initiated with respect to the Merchandise, and/or if AD/CVD Orders are published, Buyer has the right to cancel the purchase order pertaining to such Merchandise any time thereafter, without penalty, by providing Seller with written notice of such cancellation. In addition, Seller agrees to reimburse Buyer for any AD/CVD paid by Buyer to the government on Merchandise subject to this purchase order which is exported prior to publication of the final AD determination and purchased by Buyer prior to the preliminary AD determination in its initial AD Investigation.
Seller agrees to indemnify Buyer and hold Buyer harmless from and against all claims, liability, loss, damage or expenses, including, but not limited to attorney fees, arising from or by reason of any material misstatement or omission in export documents or in required certificates as to labor practices. Any such material misrepresentation or omission shall automatically constitute a breach of contract allowing for immediate cancellation of the order by Buyer and liability by Seller to Buyer for any and all loss, claim or damages incurred. Seller represents and warrants that the products to be furnished to Buyer are to be manufactured, assembled and made by it and, if applicable and previously approved in writing by Buyer, any subcontractor(s) in full compliance with the Warnaco Code of Conduct