TWSBI Retailer Agreement (MAP)
Those terms and conditions of sale (the "Terms") contained herein below apply to all quotations made and purchase orders received by TWSBI, or any of its respective affiliates, (hereinafter collectively referred to as the "Seller or TWSBI") and are the exclusive binding agreement between the parties regarding the products sold by Seller ("Products"). THE ACCEPTANCE OF ANY OR ALL OF THE BUYER'S ("BUYER") PURCHASE ORDERS IS CONDITIONAL UPON BUYER'S ASSENT TO THE TERMS BELOW IN LIEU OF THE TERMS CONTAINED IN BUYER'S PURCHASE ORDER, UNLESS TERMS WERE PREVIOUSLY, EXPLICITLY AGREED TO IN A SEPARATE WRITING SIGNED BY BUYER AND SELLER. Seller hereby rejects all provisions contained in communications from Buyer that conflict with or are inconsistent with the terms contained herein. Seller’s failure to object to any of the provisions contained in Buyer's documentation shall not be deemed a waiver of these provisions. Seller also objects to any provisions contained in communications from Buyer that increase Seller's risk, liability, obligations, or exposure beyond that set forth herein, unless included in a contract signed in writing by a duly authorized representative of the Seller. In the event of any conflict, discrepancy or inconsistency between the below Terms and any terms or conditions, invoice, acceptance, acknowledgment or other document submitted by Buyer, the Terms below shall govern.
1.Prices/Taxes. Buyer will be billed at the prices stated at the time of order acceptance. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions, which are not part of the original price quotation. Unless otherwise specified or required by law, all prices will be quoted and billed exclusive of customs, duties or taxes, and Buyer shall be responsible for all such applicable duties and taxes (exclusive of taxes on Seller's income). If exemption from such taxes is claimed, Buyer must provide a certificate of exemption at the time the Purchase Order is submitted to Seller, and Buyer agrees to indemnify Seller for any unpaid taxes in the event such exemption is not applicable.
- Terms of Payment. Subject to the remaining provisions of this Section 2, terms of payment shall be in accordance with the agreement in place between Buyer and Seller. Payment is due before shipment. Buyer agrees to accept partial shipments in satisfaction of a single Purchase Order; when partial shipments are made, pro-rata payments shall become due in accordance with the designated terms for each shipment. If Buyer fails to comply with these payment terms, Seller reserves the right to withdraw credit, suspend or cancel performance under any or all Purchase Orders or agreements and all Buyer’s obligations to Seller shall become immediately due and payable. Buyer shall have no right to withhold or offset any amount due to the Seller under these Terms because of a claim that the Buyer may have against Seller. Buyer shall pay to Seller all costs and expenses incurred by Seller in seeking collection of any amounts owed by Buyer to Seller.
- Title and Delivery. Except as otherwise agreed to by the parties in writing, Shipment shall be FOB Seller's location and the manner of shipment shall be at Seller's option. Buyer shall be responsible for all shipping charges, including but not limited to shipping, transportation, duties and insurance costs, regardless of whether or not the shipping agent has been retained by Buyer or Seller. Title to all Products and risk of loss thereof, including damages or theft in transit, shall be at Seller’s risk, regardless of freight payment terms and whether such shipping agent has been specified by Buyer or Seller. Buyer agrees that the receipt date of the Products by Buyer is at Buyer’s warehouse or distribution center, regardless of the date that the title of the Products passes to Buyer. Buyer shall inspect the Products upon delivery and shall notify Seller within ten (10) days of any damage or defective Products or under-shipment by Seller. All claims for loss or damage during shipment must be filed by Buyer with the carrier and Seller. The sale of any of Seller's products to Buyer in no way conveys to Buyer, either expressly or by implication, any intellectual property license whatsoever, except as may be granted by the Seller in the materials which accompany the Products upon delivery to the extent required to enable Seller to sell the Products. Seller expressly reserves its rights under any such claim, and asserts that additional restrictions may apply to the use of the Products, as set forth in the in the materials which accompany the Products.
- Warranty/Disclaimers. ALL CLAIMS FOR ALLEGED DEFECTS IN THE PRODUCTS SHALL BE DEEMED WAIVED UNLESS MADE IN WRITING AND DELIVERED TO SELLER. SELLER'S SOLE LIABILITY WITH RESPECT TO THE PRODUCTS SHALL BE LIMITED TO THE REPAIR, REPLACEMENT OR REFUND OF THE PURCHASE PRICE OF ANY DEFECTIVE PRODUCTS. THE SELLER, IN ITS DISCRETION, SHALL DETERMINE, ON A CASE BY CASE BASIS, WHETHER REPAIR, REPLACEMENT OR REFUND WILL BE THE REMEDY CONCERNING ANY SUCH DEFECTIVE PRODUCTS., SUCH REPAIR, REPLACEMENT OR REFUND SHALL BE SELLER'S SOLE LIABILITY AND THE SOLE REMEDY THAT BUYER, ITS CUSTOMERS OR ANY USERS OF THE PRODUCTS SHALL HAVE AGAINST SELLER WITH RESPECT TO THE QUALITY, PERFORMANCE OR USE OF ANY OF THE PRODUCTS. SELLER SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND WHATSOEVER. BUYER ACKNOWLEDGES AND AGREES THAT THE PROVISIONS CONTAINED IN THIS WARRANTY CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO IT WITH REGARD TO THE PRODUCTS. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS SECTION, SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES WHICH, BUT FOR THIS PROVISION, MIGHT ARISE FROM COURSE OF DEALING, CUSTOM OR TRADE AND INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO THE PRODUCTS FURNISHED BY SELLER HEREUNDER. Notwithstanding anything to the contrary herein, this Warranty does not cover normal wear and tear, stains, discolorations, scratches, or damage caused by improper maintenance, improper use, neglect, abuse, or damage caused by any accident, fire, theft, flood, other causes beyond Seller’s control, or damage resulting from repairs or manipulations carried out by unauthorized or unqualified repair/service personnel; (ii) covers each part only and (iii) shipping and handling charges may apply except where prohibited by law. This warranty also does not cover ink refills exhausted in the course of normal use, damaged fountain pen nibs, emblems and other customized decorations.
- Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, MULTIPLE OR OTHER DAMAGES WHATSOEVER RESULTING FROM SELLER'S PERFORMANCE OR FAILURE TO PERFORM UNDER THESE TERMS OR THE FURNISHING, PERFORMANCE OR USE OF ANY PRODUCTS SOLD PURSUANT HERETO, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, THE NEGLIGENCE OF SELLER OR OTHERWISE. IT IS AGREED, HOWEVER, THAT IN NO EVENT SHALL SELLER'S LIABILITY EXCEED THE U.S. DOLLAR AMOUNT EQUAL TO THE AMOUNT PAID BY BUYER FOR THE COST OF THE PRODUCTS PAID BY BUYER UNDER THE APPLICABLE INVOICE GIVING RISE TO A CLAIM. THE DAMAGE LIMITATIONS PROVIDED IN THIS AGREEMENT AND THE REMEDIES STATED HEREIN SHALL BE EXCLUSIVE AND SHALL BE BUYER'S SOLE REMEDY. THIS LIMITATION ON LIABILITY SHALL SURVIVE FAILURE OF ANY ESSENTIAL PURPOSE.
- Rescheduling/Cancellation. An order pursuant to these Terms shall not be rescheduled or cancelled by Buyer (in whole or in part) except with the prior written consent of Seller. Buyer may not cancel for Seller's breach unless Buyer has provided Seller with thirty (30) days prior written notice alleging such breach and such breach has not been remedied by Seller within such time period.
- Returns. Any Product return shall be returned to Seller ONLY upon assignment of a Return Merchandise Authorization (RMA) by Seller. Any Product returned to Seller without a RMA will be refused and returned to Buyer at Buyer's expense. Returns will not be accepted by Seller for any reason other than for: (i) verifiable Product defects or damage occurring within the terms of the warranty set forth above or (ii) mishandled shipments directly caused by Seller. Return requests involving mishandled shipments must be brought to Seller's attention within five (14) days of original ship date. Seller reserves the right to reject any request regarding mishandled shipments submitted more than five (14) days after the original ship date.
- Buyer Covenants. Buyer covenants and agrees that it shall only sell Products under Buyer’s name. Buyer will indemnify and will hold Seller harmless from and against any claim, loss or liability arising out of any breach of the foregoing covenants contained in this section.
- TWSBI GUIDELINES. Buyer covenants and agrees that it shall, at all times, comply with the following (a) inspect all Products and remove any defective Products from their inventory; (b) report any and all such defects to TWSBI; (c) store and sell TWSBI Products in accordance with any TWSBI guidelines, including but not limited to the requirement that TWSBI Products offered for sale by Buyer shall not, without TWSBI’s prior written consent, be commingled or consolidated with competing products purchased by, or offered for sale, by any other party. (d) disclose their sources of TWSBI Products, as requested at any time by TWSBI; (e) assist with Product recalls and other consumer safety information efforts; (f) provide ongoing customer support to consumers to ensure the quality and performance of TWSBI Products; (g) refrain from relabeling, repackaging, or altering TWSBI Products and their contents; and (h) comply with all TWSBI rules governing advertising and online sales.
- Force Majeure. Seller shall not be liable for any loss, delay or failure to perform resulting from any circumstance, direct or indirect, reasonably beyond its control. In addition, Seller shall be so excused in the event it is unable to acquire from its usual sources and on term it deems to be reasonable, any material necessary. In the event that there should be a shortage of any TWSBI Product, Seller may apportion its available TWSBI Product among itself, its affiliates and all its customers in such manner as TWSBI in its sole discretion deems fair and reasonable. Any delivery date may be extended, at Seller's option, to the extent of any delay resulting from any force majeure event.
- Confidential Information. Any documentation or data supplied by Seller to Buyer and marked "confidential" is proprietary and confidential to Seller. Seller retains for itself all proprietary rights to all designs, engineering details, and other data pertaining to any TWSBI Product sold. Buyer agrees to use its best efforts to maintain the confidentiality of any proprietary documentation, data, or price quotes (whether marked "confidential" or not) supplied to it and not to disclose or use such documentation, data, or price quotes in any manner inconsistent with the purpose for which it was disclosed.
- General. Neither Buyer nor Seller shall assign this order or any interest therein or any rights thereunder without the prior written consent of the other party. These Terms shall be governed by and construed according to the laws of the State of California, without regard to conflict of laws provisions. Each party consents to the exclusive jurisdiction in the state and federal courts located within the State of California and sitting in the County of Los Angeles. No modifications to these terms and conditions herein shall be enforceable except when in writingand signed by both parties, unless otherwise expressly stated herein. Any provision hereof which is prohibited or unenforceable shall, as to such jurisdictions, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity of such provision in any other jurisdiction. No waiver of any breach of any provision of these Terms shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. These Terms constitute the entire agreement between Buyer and Seller with respect to the Products purchased, and supersedes all prior or contemporaneous negotiations, understandings and agreements.
TWSBI MINIMUM ADVERTISED PRICE POLICY
TWSBI customer loyalty and brand name value are maximized when its high quality products are marketed, sold, and serviced by knowledgeable sales personnel with the resources to provide quality service both before and after the sale. In a very competitive industry, TWSBI success versus other brands is dependent upon customer loyalty and high brand name value. It has been TWSBI’s experience that those retailers who advertise products at discounted prices often fail to provide adequate service both before and after the sale. This results in a reduction of customer satisfaction and brand name value; impedes the ability of quality retailers to sell TWSBI products; and harms TWSBI ability to compete against other brands. Such retailers “free ride” on other TWSBI retailers who must charge higher prices to support quality service and the promotion of TWSBI products.
To preserve its reputation for providing customers with high value products and strong after- sales support, and to further enhance the TWSBI brand image and competition in the marketplace, TWSBI instituted a minimum advertised price standard for TWSBI products. This Minimum Advertised Pricing Policy (“MAP Policy”) applies to retailers, including catalogs and internet retailers (collectively, “Resellers”), who resell TWSBI pens to end users located in the United States. Therefore, until further notice, it is the policy of TWSBI that:
- TWSBI will assign a Suggested Retail Price and a Minimum Advertised Price (“MAP”) to its products. The Minimum Advertised Price reflects TWSBI’s unilateral determination to permit retailers to advertise the sale of TWSBI products below such price will erode TWSBI’s product image, diminish the brand of TWSBI, and encourage “free riding” on the service and investment of other TWSBI retailers. Therefore, no advertisements may offer TWSBI products for sale for less than the Minimum Advertised Price.
- This MAP policy shall apply to all forms of advertising, including but not limited to: • Print ads (inserts, magazines, newspapers, etc.) • Broadcast (radio and TV) • Direct mailers, including email • Faxes • Newsletters (whether in print or electronic form, and whether specifically requested or not) • Internet displays, including banner ads, broadcast emails, automatic emailed price lists, social media, destination pages and third-party sites • Billboards.
- Retailers who advertise TWSBI products for sale at a price below the Minimum Advertised Price, or at a “call or email for price,” shall be deemed to have violated this policy.
- Retailers who advertise give-aways or discounts on merchandise in connection with the purchase of a TWSBI product shall be deemed to have violated this MAP Policy if the price of the TWSBI product, minus the market value of the advertised giveaway or discount, is less than the Minimum Advertised Price. TWSBI sponsored or approved promotions are an exception to the rule.
- Retailers who advertise a flat percentage off the marked price or distribute coupons giving the holder a flat percentage off the marked price on TWSBI products, or who engage in any similar advertising practice, shall be deemed to have violated this Policy if the advertised price of the TWSBI product, minus the market value of the advertised give-away or discount, is less than the Minimum Advertised Price. TWSBI requests to be specifically excluded from coupon or promo code offers.
- Any statements in a retailer’s advertising that undermines or attempts to undermine this Policy, including any direct statements about TWSBI MAP policy, shall be deemed to be a violation of this Policy.
- It is not the purpose or intent of this Policy to restrict, coerce, or force a retailer to charge a particular price for any TWSBI product. The Policy is not a contract or agreement, or an offer to form a contract or agreement. TWSBI does not ask for, and will not accept, any agreement about an account’s compliance with this Policy. This Policy simply describes the manner in which TWSBI chooses, in its sole discretion, to advertise its products and promote the brand.
- Pricing listed on an internet site is considered an “advertised price” and must be comply with this MAP Policy. Pricing associated with an intent to purchase (added to shopping cart or order), the price becomes the selling price, must comply with MAP policies.
- This MAP Policy is solely within TWSBI’s discretion and authority acting through the duly authorized agents of TWSBI. No employee or sales representative of TWSBI has any authority to discuss, modify or grant exceptions to this MAP Policy. Any representation or action by any employee, sales representative or persons not specifically authorized to discuss, modify or grant exceptions to this MAP Policy under this paragraph is unauthorized and invalid. All questions about this MAP Policy should be in writing and directed via U.S. Mail to TWSBI MAP Policy Administrator 3904 Del Amo Blvd. #804, Torrance, CA 90503, No oral communications about this MAP Policy are authorized. The MAP Policy Administrator shall be solely responsible for determining whether a violation of the policy has occurred, communicating decisions to Resellers regarding the policy and receiving any communications regarding sanctions imposed under this MAP Policy. Any action taken by TWSBI under this MAP Policy shall be without liability to TWSBI.
- From time to time, TWSBI may choose to offer special promotions on certain products. In such an event, we reserve the right to modify or suspend this MAP Policy in whole or in part by notifying all Resellers of the duration and nature of the change. TWSBI further reserves the right to adjust the MSRP or MAP price with respect to all or certain products at its sole discretion. Such changes shall apply equally to all Resellers.
- Intentional and/or repeated failure to abide by this MAP Policy will result in sanctions unilaterally imposed by TWSBI. The level of sanctions will be determined by TWSBI in its sole discretion and may include indefinite termination. TWSBI does not intend to do business with Resellers who degrade the image of TWSBI and its products or the brand considered as a whole. TWSBI need not provide prior notice or issue warnings before taking any action under this MAP Policy.
- Any advertisement that violates any of the policies contained herein may result in the immediate termination of the Retailer’s authorization to sell the product that is the subject of the advertisement.
- TWSBI reserves the right to change or discontinue this Policy at any time, and no account has any right to rely on the continued existence of this policy or any effort by TWSBI to enforce it.
- TWSBI always reserves the right to choose those retail accounts or Resellers with which it will do business and the right to accept or reject any purchase order from any account at any time.
- TWSBI Sales Representatives are strictly prohibited from discussing this Policy with any account. TWSBI Sales Representatives are strictly prohibited from seeking or accepting any assurance of account compliance with this Policy.
- TWSBI will not discuss the business dealings of any account with any other account.
- TWSBI Sales Representatives are not permitted to discuss or influence pricing policies with retailers. This policy addresses advertised pricing only, and retailers must make their own decisions regarding what they will actually charge for TWSBI products. TWSBI Sales representatives have been instructed to limit their activities with respect to this Advertising Price Policy to distributing a copy of the Policy to a retailer and informing the retailer of TWSBI Suggested Retail Prices and Minimum Advertised Prices for TWSBI products. Should you have any questions regarding this policy and its enforcement, please contact MAP Administration at TWSBI, via email at email@example.com.
- The terms of this MAP Policy are confidential and should not be disclosed to other parties. We trust you understand this MAP Policy is also designed to avoid destructive intra- brand conflict and to ensure that resellers have the incentive to invest resources into services for