BOLLE BRANDS, INC.
RETAIL SALES TERMS AND CONDITIONS
These Bollé Brands, Inc. Retail Sales Terms and Conditions (the “Terms”) are issued by Bollé Brands, Inc. (“Bollé Brands”) and apply to Authorized Retailers of Bollé®, Serengeti®, and/or H2Optix® products (“Product(s)”) in the United States of America. By purchasing Products from Bollé Brands for retail sale, you (“Retailer”) agree to adhere to the following terms. These Terms supplement any then-current retailer agreement between you and Bollé Brands. Until such status is otherwise revoked by Bollé Brands, in Bollé Brands’ sole and absolute discretion, Retailer shall be considered an “Authorized Retailer” hereunder. Bollé Brands may review Retailer’s activities for compliance with these Terms, and Retailer agrees to cooperate with any such investigation, including, but not limited to, permitting inspection of Retailer’s facilities and records related to the sale of the Products.
In consideration of the covenants and promises contained herein, Retailer agrees as follows:
A. Retailer agrees to the terms of sales as listed below. Any modification to said terms must be approved by Bollé Brands in writing. Bollé Brands reserves the right to reject any order for any reason.
1. Shipping Terms. FOB Shipping Point. Transfer of title and ownership of the Products occurs upon shipment from the applicable Bollé Brands warehouse.
2. Right of Return. Bollé Brands’ standard warranty applies to the purchase by Retailer of the Products; however, Retailer does not have the right to return the Products in exchange for a credit or additional the Products for facts and circumstances that fall outside of Bollé Brands’ standard warranty provisions.
3. Payment Terms. Net 30 from the date of invoice if approved for credit. Otherwise payment must be facilitated by credit card or COD.
B. In addition to sales through Retailer’s brick-and-mortar stores (each a “Retail Location”), Retailer is permitted to sell the Products on the Internet only through Permissible Public Websites. A “Permissible Public Website” is a website that (i) is operated by Retailer in Retailer’s legal name; (ii) conspicuously states Retailer’s full legal name, mailing address, telephone number, and email address; (iii) does not give the appearance that it is operated by Bollé Brands or any third party; and (iv) does not include in its domain name (including any top-level domain or subdomain) any Bollé Brands trademark or product name nor a misspelling of any Bollé Brands trademark or product name. Bollé Brands reserves the right to terminate, at any time and in its sole discretion, its approval for Retailer to sell Products on the Permissible Public Websites, and Retailer must cease all such marketing and sales on the Permissible Public Websites immediately upon notice of such termination. Retailer’s approval to sell the Products on Permissible Public Websites is conditioned on adherence to the following terms and conditions:
1. Anonymous sales are prohibited. Retailer’s full legal name, mailing address, email address, and telephone contact must be included with any shipment of Products from the Permissible Public Websites or in an order confirmation email delivered at the time of purchase.
2. At Bollé Brands’ request, Retailer will reasonably cooperate in demonstrating and/or providing access to, and copies of, all web pages that comprise the Permissible Public Websites.
3. The Permissible Public Websites shall have a mechanism for receiving customer feedback and Retailer shall use reasonable efforts to address all customer feedback and inquiries received in a timely manner. Retailer agrees to provide copies of any information related to customer feedback (including any responses to customers) to Bollé Brands for review upon request. Retailer agrees to cooperate with Bollé Brands in the investigation of any negative online review associated with Retailer’s sale of the Products and to use reasonable efforts to resolve any such reviews. Retailer shall maintain all records related to customer feedback for a period of one year following the creation or submission of such a record, to the extent legally permitted. Nothing in this paragraph shall be construed to require Retailer to disclose identifying information about its customers to Bollé Brands.
4. The Permissible Public Websites shall be in compliance with all applicable privacy, accessibility, and data security laws, regulations, and industry standards.
5. Retailer shall be responsible for all fulfillment to its customers who order Products through Permissible Public Websites, any applicable taxes associated with such purchases of Products, and any returns of Products.
6. Unless separately authorized by Bollé Brands in writing, Retailer shall not use any third-party fulfillment service to store inventory or fulfill orders for the Products. Under no circumstances shall Retailer fulfill orders in any way that results in the shipped Product coming from stock other than Retailer’s.
7. In marketing the Products on the Permissible Public Websites, Retailer shall only use images of Products either supplied by or authorized by Bollé Brands and shall keep all Product images and descriptions up to date. Retailer shall not advertise Products not carried in inventory.
C. Retailer agrees to maintain the retail standards set forth below. Failure to maintain these standards may constitute a material breach by which Bollé Brands may revoke Retailer’s status as an Authorized Retailer.
1. The exterior appearance and the interior décor and overall appearance of any Retail Location shall be of high quality, good taste and consistent with the image of Bollé Brands.
2. The sales and promotional techniques of Retailer’s sales personnel and their personal appearance and demeanor shall be in accordance with Bollé Brands standards.
3. With respect to each Retail Location, Retailer shall place a minimum opening order as recommended by Bollé Brands. Further, each Retail Location shall maintain a fair representation of the Products consistent with the minimum opening order placed.
4. After Retailer opens a Retail Location and sells through the minimum opening order, no changes shall occur with respect to the above standards that in the opinion of Bollé Brands, adversely affects the image of Bollé Brands or the Products.
5. Throughout the term of its relationship with Bollé Brands, Retailer shall maintain accurate and up-to-date company information and must disclose all of its Retail Locations that carry the Products.
D. Retailer shall sell the Products solely to End Users. An “End User” is any purchaser of the Products who is the ultimate consumer of the Products and who does not intend to resell the Products to a third party. Additionally, Retailer shall not sell to anyone a quantity of the Products greater than that
generally purchased by an individual for personal use, and Retailer shall not sell or transfer any the Products to any person or entity for resale without Bollé Brands’ prior written consent. This includes sales to B2B accounts, wholesalers, freight forwarders/drop shippers for other retailers, or any other person or entity Retailer knows or has reason to know intends to resell the Products. Retailer further agrees not to directly or indirectly advertise or solicit sales or sell the Products via mail or the Internet, without Bollé Brands’ prior written approval (and signed by an authorized representative of Bollé Brands). Retailer agrees that it will educate its employees regarding this provision and take reasonable steps to prevent unauthorized sales of the Products. Retailer agrees to compensate Bollé Brands for reasonable damages for any violation of this section and to also reimburse Bollé Brands for the repurchase of the Products by Bollé Brands from any other entity to which or through which Retailer has diverted the Products.
E. As set forth in Section B of these Terms, Retailer is permitted to sell the Products online through Permissible Public Websites. However, the sale of the Products on any third-party marketplace websites (e.g. eBay, Amazon, Walmart Marketplace, Sears Marketplace), drop-ship accounts (e.g. Rakuten.com, Newegg.com, Overstock.com, Jet.com), classified websites (e.g. Craigslist.com, Facebook Marketplace), or via direct messages on Internet forums is strictly prohibited without Bollé Brands’ prior written consent.
F. Retailer agrees not to ship the Products to any customer located outside of the United States.
G. Retailer agrees to inspect the Products for damage or defect upon receipt and must offer to inspect the condition of each Bollé Brands Product at the time of sale to the end-user consumer. If any defect is identified, Retailer must not offer the damaged or defective product for sale, must report the defect to Bollé Brands at the Customer Service (phone number 800-222-6553) and may request a defective product return authorization number to return the defective product to Bollé Brands.
H. Retailer agrees to sell the Products in their original packaging. Relabeling, repackaging (including the separation of bundled products or the bundling of products), and other alterations are not permitted.
I. Retailer agrees to store the Products in a cool, dry place, and out of direct sunlight.
J. Retailer must be familiar with the special features of all the Products kept in inventory and obtain sufficient product knowledge to advise their end-user customers on how to use and properly care for the Products. Retailer must be available to respond to customer questions and concerns both before and after sale of the Products and should endeavor to respond to customer inquiries within 24 hours.
K. In the event of any recall of a Product, Retailer agrees to cooperate with Bollé Brands in disseminating safety or recall information to its customers.
L. Retailer acknowledges and agrees that Bollé Brands or its licensors own all proprietary rights in and to the Bollé®, Serengeti®, and H2Optix® brands, names, logos, trademarks, service marks, trade dress, copyrights, and other intellectual property (the “Bollé Brands IP”). Retailer is granted a limited, non-exclusive, non-transferable, revocable license to use the Bollé Brands IP for purposes of marketing and selling the Products as set forth herein. This license will be revoked immediately upon termination of Retailer’s relationship with Bollé Brands. Bollé Brands reserves the right to review and approve, in its sole discretion, Retailer’s use or intended use of the Bollé Brands IP at any time. Retailer’s use of the Bollé Brands IP shall be in conformance with any guidelines that may be provided by Bollé Brands and must be commercially reasonable as to the size, placement, and other manners of use. All goodwill arising from the use of the Bollé Brands IP shall inure solely to the benefit of Bollé Brands
or its licensors. Retailer shall not create, register, or use any domain name or any mobile application that contains any Bollé®, Serengeti®, and H2Optix® product name or any trademark owned by or licensed to Bollé Brands, nor a misspelling or confusingly similar variation of any Bollé®, Serengeti®, and H2Optix® product name or any trademark owned by or licensed to Bollé Brands.
M. Retailer agrees that it will not sell or display any products that infringe the Bollé Brands’ IP. To avoid consumer confusion, Retailer will not advertise, sell, or display non-the Products together with the Products in a manner that would create the impression that the non-the Products are made by, endorsed by, or associated with Bollé Brands.
N. Retailer agrees not to advertise or promote the Products in a way that is inconsistent with the advertising standards of Bollé Brands. Retailer will use all point of purchase or other promotional materials provided to Retailer by Bollé Brands in the manner as reasonably directed by Bollé Brands.
O. Retailer agrees that it will pay freight charges for Bollé Brands product displays distributed by Bollé Brands (“Display Features”); such freight charges shall be nonrefundable in nature. Retailer further agrees that all Bollé Brands product displays are and remain the sole property of Retailer while these Terms are in effect. If Retailer breaches its obligations under these Terms, then, at Bollé Brands’ option, all right, title and interest in and to the Display Fixtures shall revert to Bollé Brands and Retailer agrees, at its expense, to return the Display Fixtures to Bollé Brands.
P. Retailer agrees that its failure to abide by the terms of these Terms, or to make timely payments on its account, will result in termination of delivery of goods by Bollé Brands as well as potential liability for damages.
Q. If there is a breach or threatened breach of Sections B, D, E, F, G, H, I, J, K, L, M, or N of these Terms, it is agreed and understood that Bollé Brands shall have no adequate remedy in money or other damages and accordingly shall be entitled to injunctive relief and other equitable remedies; provided, however, no specification in these Terms of any particular remedy shall be construed as a waiver or prohibition of any other remedies in the event of a breach or threatened breach of Sections B, D, E, F, G, H, I, J, K, L, M, or N of these Terms.
R. This Agreement shall be governed by the laws of the State of California, without regard to conflict of law provisions. Retailer agrees that this Agreement was entered into and is to be performed in San Diego County, California and that the state or federal courts located in San Diego County, California shall have exclusive jurisdiction over the parties and any dispute arising hereunder. Retailer waives the right to have any dispute arising hereunder brought or tried in alternate jurisdictions and venues. Retailer further agrees that the prevailing party in any litigation concerning this Agreement or the breach thereof, shall be entitled to reasonable attorneys’ fees and costs in addition to any other damages awarded.
S. Terms of sale will be as indicated on the Bollé Brands order confirmation and/or invoices and/or as communicated to Retailer in writing. This Terms, in addition to any order confirmations shall be the governing document between the parties and shall be controlling in the event there is any conflict between them and any agreement created by Retailer, including vendor guides or purchase orders. Bollé Brands reserves the right to update, amend, or modify these Terms at any time. Unless otherwise provided, such amendments will take effect immediately, and Retailer’s continued use, advertising, offering for sale, or sale of the Products, use of the Bollé Brands IP, or use of any other information or materials provided by Bollé Brands to Retailer will be deemed Retailer’s acceptance of the amendments. From time to time, Bollé Brands may agree in writing to adhere to Retailer’s policy guides or policies which will supplement
these Terms; however under no circumstances shall Bollé Brands be liable or responsible for any vendor compliance charges.
T. Retailer acknowledges that it has received a copy of Bollé Brands’ unilateral Minimum Advertised Pricing (MAP) Policy.
U. These Terms are not assignable by Retailer. If Retailer violates these Terms, Bollé Brands reserves the right to terminate Retailer’s status as an Authorized Retailer with written or electronic notice. Upon termination of a Retailer’s status as an Authorized Retailer, Retailer shall immediately cease (i) selling the Products; (ii) acting in any manner that may reasonably give the impression that Retailer is an Authorized Retailer of Products or has any affiliation whatsoever with Bollé Brands; and (iii) using all Bollé Brands IP.
V. Upon termination of the relationship between Bollé Brands and Retailer, Retailer shall return all or part of Retailer’s remaining inventory, point of purchase and other promotional materials, if requested to do so by Bollé Brands.