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SPY RETAIL SALES TERMS AND CONDITIONS

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 SPY in writing. SPY reserves the right to reject any order for any reason. For purpose of this Agreement, “SPY Products” are defined as those particular SPY products which Retailer is authorized to sell in the United States.

  1. Shipping Terms. FOB Shipping Point. Transfer of title and ownership of SPY Products occurs upon shipment from the SPY warehouse in Carlsbad, CA.
  2. Right of Return. SPY’s standard warranty applies to the purchase by Retailer of SPY Products; however, Retailer does not have the right to return SPY Products in exchange for a credit or additional SPY Products for facts and circumstances that fall outside of SPY’s 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. Retailer is permitted to sell SPY Products on the Internet through Permissible Websites. A “Permissible 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 SPY or any third party; and (iv) does not include in its domain name (including any top-level domain or subdomain) any SPY trademark or product name nor a misspelling of any SPY trademark or product name. SPY reserves the right to terminate, at any time and in its sole discretion, its approval for Retailer to market and sell Products on the Permissible Websites, and Retailer must cease all such marketing and sales on the Permissible Websites immediately upon notice of such termination.

C. Retailer agrees to maintain the retail standards set forth below. Failure to maintain these standards may constitute a material breach by which SPY may terminate this Agreement for cause.

  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 SPY.
  2. The sales and promotional techniques of Retailer’s sales personnel and their personal appearance and demeanor shall be in accordance with SPY standards.
  3. With respect to each Retail Location, Retailer shall place a minimum opening order as recommended by SPY. Further, each Retail Location shall maintain a fair representation of SPY 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 SPY, adversely affects the image of SPY or the SPY Products.
  5. Throughout the term of its relationship with SPY, Retailer shall maintain accurate and up-to-date company information and must disclose all of its Retail Locations that carry SPY Products.

D. Retailer shall sell SPY Products solely to “end users.” An end user is any purchaser of SPY Products who is the ultimate consumer of the products and who does not intend to resell the SPY Products to a third party. Additionally, Retailer shall not sell to anyone a quantity of SPY Products greater than that generally purchased by an individual for personal use, and Retailer shall not sell or transfer any SPY Products to any person or entity for resale without SPY’s 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 SPY Products. Retailer further agrees not to directly or indirectly advertise or solicit sales or sell SPY Products via mail or the Internet, without SPY’s prior written approval (and signed by an authorized representative of SPY). Retailer agrees that it will educate its employees regarding this provision and take reasonable steps to prevent unauthorized sales of SPY Products. Retailer agrees to compensate SPY for reasonable damages for any violation of this paragraph and to also reimburse SPY for the repurchase of SPY Products by SPY from any other entity to which or through which Retailer has diverted SPY Products.

E. As set forth in Section B, Retailer is permitted to sell SPY Products online through Permissible Websites. However, the sale of SPY 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 SPY’s prior written consent.

F. Retailer agrees not to ship SPY Products to any customer located outside of the United States.

G. Retailer agrees to inspect SPY Products for damage or defect upon receipt and must offer to inspect the condition of each SPY 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 SPY at SalesSupport@spyoptic.com and may request a defective product return authorization number to return the defective product to SPY.

H. Retailer agrees to sell SPY 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 SPY Products in a cool, dry place, and out of direct sunlight.

J. Retailers must familiarize themselves with the special features of all SPY Products kept in inventory and obtain sufficient product knowledge to advise their end-user customers on how to use and care for SPY Products properly. Retailers must make themselves available to respond to customer questions and concerns both before and after sale of SPY Products and should endeavor to respond to customer inquiries within 24 hours.

K. In the event of a recall of a SPY product, Retailer agrees to cooperate with SPY in disseminating safety or recall information to its customers.

L. Retailer acknowledges and agrees that SPY owns all proprietary rights in and to the SPY brand, name, logo, trademark(s), patent(s), copyright(s) and other intellectual property (the “SPY Trademarks”). Retailers are granted a limited, non-exclusive, non-transferable, revocable license to use the SPY Trademarks for purposes of marketing and selling SPY Products. This license will be revoked immediately upon termination of Retailer’s relationship with SPY. SPY reserves the right to review and approve, in its sole discretion, Retailer’s use or intended use of the SPY Trademarks at any time. Retailer’s use of the SPY Trademarks shall be in conformance with any guidelines that may be provided by SPY and must be commercially reasonable as to the size, placement, and other manners of use. All goodwill arising from the use of the SPY Trademarks shall inure solely to the benefit of SPY.

M. Retailer agrees that it will not sell or display any products that infringe SPY’s trademarks or patents. To avoid consumer confusion, Retailer will not advertise, sell, or display non-SPY Products together with SPY Products in a manner that would create the impression that the non-SPY Products are made by, endorsed by, or associated with SPY.

N. Retailer agrees not to advertise or promote SPY Products in a way that is inconsistent with the advertising standards of SPY. Retailer will use all point of purchase or other promotional materials provided to Retailer by SPY in the manner as reasonably directed by SPY.

O. Retailer agrees that it will pay freight charges for SPY Product displays distributed by SPY; such freight charges shall be nonrefundable in nature. Retailer further agrees that all SPY Product displays are and remain the sole property of Retailer while this agreement is in effect. If Retailer breaches its obligations under this Agreement, then, at SPY’s option, all right, title and interest in and to the Display Fixtures shall revert to SPY and Retailer agrees, at its expense, to return the Display Fixtures to SPY.

P. Retailer agrees that its failure to abide by the terms of this Agreement, or to make timely payments on its account, will result in termination of delivery of goods by SPY as well as potential liability for damages.

Q. If there is a breach or threatened breach of Paragraphs B, D, E, F, G, H, I, J, K, L, M, or N of these SPY Retail Sales Terms and Conditions (the “Terms”), it is agreed and understood that SPY 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 Paragraphs 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 SPY order confirmation and/or invoices and/or as communicated to Retailer in writing. This Agreement and 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. This Agreement may not be modified without the express written consent of SPY. Retailer agrees that this Agreement is to be retroactive to the date Retailer was originally opened as an account, and supersedes all prior agreements between the parties, if any. From time to time, SPY may agree in writing to adhere to Retailer’s policy guides or policies which supplement this Agreement; however under no circumstances shall SPY be liable or responsible for any vendor compliance charges.

T. Retailer acknowledges that it has received a copy of SPY’s Minimum Advertised Pricing (MAP) policy.

U. This agreement is not assignable by Retailer and either party may terminate this Agreement upon thirty (30) days’ prior written notice to the other party.

V. Upon termination of the relationship between SPY 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 SPY.