Terms & Conditions - Wholesale

'47 Brand, LLC and Twins Enterprise Inc. (collectively referred to hereinafter as “’47”) offers certain goods bearing ’47 and Fan Favorite Trademarks (as defined below) (hereinafter the “Product” or “Products”) for sale to retailers that have been authorized by ’47 to make purchases of such Product (hereinafter the “Retailer” or “Retailers”). By submitting an order to ’47 for the purchase of Products (the “Order”), Retailer agrees that each such Order will be subject to and in all respects governed by the terms and conditions of sale (“the Terms and Conditions”) in effect at the time the Order is submitted. These Terms and Conditions, along with Retailer’s credit application (if applicable), shall hereby be incorporated into and become part of any Order submitted to ’47 by Retailer, and collectively shall form the agreement between ’47 and Retailer upon which all Orders are fulfilled. In the event that any provisions of an Order conflict with the Terms and Conditions provided herein, these Terms and Conditions shall prevail. ’47 reserves the right, in its sole and absolute discretion, to revise, amend, or otherwise update these Terms and Conditions (the “Updated Terms and Conditions”) from time to time and will provide Retailer with access to the Updated Terms and Conditions within five (5) business days of such Updated Terms and Conditions becoming effective. Prior to placing an Order, Retailer shall be responsible to review the then-current version of the Terms and Conditions (available at www.47brand.com under “Retailer Terms and Conditions” or by request from ’47). Retailer’s continued status as a ’47 Retailer is conditioned upon Retailer conducting its business in accordance with the Terms and Conditions and operating principles set forth herein. The Terms and Conditions that are current as of January 1, 2017 (the “Effective Date”) are set forth below.

1. ORDERS: All Orders submitted by Retailer are subject to acceptance by ’47 and are subject to and governed by these Terms and Conditions. The preparation of a purchase order by a sales representative of ‘47, the submission by Retailer of a purchase order to ‘47, or the acknowledgement by ’47 of receipt of a purchase order shall not constitute ‘47’s acceptance of that Order. ’47 may in its sole discretion accept all or any part of an Order or substitute comparable Product (hereinafter “Substitute Product”) for the items that were ordered, in either case by shipping Product. An Order shall only be deemed accepted, in whole or in part, by ’47 shipping Product to Retailer.  ’47 may at any time refuse to ship Product for any reason, even if ’47 has received payment for the applicable Product. ’47 will in its sole discretion determine which Products are made available to Retailer for Orders and determine how to allocate Product among Retailer and ‘47’s other Retailers. Accordingly, ’47 reserves the right to discontinue categories and lines of Product and to make changes in Products offered to any and/or all Retailers at any time. Unless Retailer complies with Section 5 of these Terms and Conditions regarding returns, Retailer will be deemed to have accepted any Substitute Product shipped by ’47 as part of an Order. ’47 may cancel an Order at any time, for any reason, even if ’47 has acknowledged, confirmed, or received payment for that Order. In the event that ’47 has received payment for an Order that is then cancelled at the discretion of ’47, ’47 will, at its sole election, either refund the payment or credit Retailer’s account for the amount of the cancelled Order. Retailer may not cancel an Order after its acceptance by ‘47. Any Order received by ’47 that conflicts with or that includes provisions (other than item and quantity) in addition to these Terms and Conditions will have no force or effect to the extent it is inconsistent with the Terms and Conditions contained herein or includes any additional provisions. ’47 will be entitled to accept any Order and to rely on any other written or telephonic request or notice given by a person that appears to be, in the reasonable business judgment of ’47, an employee or agent of Retailer. Hot Market, Playoff, Championship or any other order that is dependent upon a team winning a particular game is additionally subject to ‘47’s “Hot Market Waiver Agreement.” This waiver agreement will be provided to each Retailer at the time of order and must be completed before ’47 will accept such orders. The terms of any Hot Market Waiver Agreement completed by Retailer shall be incorporated into, and shall in no way replace, the Terms and Conditions outlined herein.

2. PRICES: ’47 may correct typographical or other errors in pricing, may reduce or cancel any discounts previously offered to Retailer, and may change its prices at any time. Any such corrections, reductions, cancellations, and changes shall be, in each instance, at the sole and absolute discretion of ’47. Each Order will be invoiced at the Product prices prevailing at the time that Order is fully recorded into ‘47’s central ordering system. Nothing contained herein shall obligate Retailer to resell the Product at any particular price or on any specific terms and conditions, notwithstanding Retailer’s adherence to ‘47’s Minimum Advertised Pricing Policy (the “MAP policy”) and Schedule of Manufacturer’s Suggested Retail Prices (the “MSRP Schedule”) as may be published from time to time by ‘47.

3. PAYMENT: Retailer will pay for all Product by the date specified on ‘47’s invoice for each Order, or if none is specified, within thirty (30) days after the date of that invoice. Any sum not paid when due is subject to a service charge of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is lower. The amount reflected in each ’47 invoice will be deemed to be valid unless Retailer disputes the amount of that invoice in writing within thirty (30) days after Retailer’s receipt of the invoice (the “Notice of Dispute”). Retailer will pay the undisputed portion of each invoice on its respective due date. For any amount that remains in dispute, the parties will act in good faith to resolve such disputed amount within thirty (30) days from the date ’47 receives the Notice of Dispute from Retailer. In the event that the parties cannot resolve the dispute within such thirty (30) day period, ’47 reserves its right to pursue all remedies available at law and equity to recover any outstanding amounts from Retailer. ’47 has the right to apply payments it receives from Retailer to any of Retailer’s outstanding invoices and to disregard Retailer’s instructions to apply payment to any specific invoice. In the event Retailer is indebted to ’47 or to any ’47 affiliate, that debt may be offset against any credits otherwise owing to Retailer.

4. SHIPPING; RISK OF LOSS; TITLE: ’47 will ship Product FCA, the ’47 Distribution Center or other shipping point designated by ’47 in its sole business discretion. ’47 is not responsible for any loss resulting from any delay in shipping or failure to ship.

5. RETURNS: Product that was shipped in accordance with the specifications in the Order is not returnable. If Retailer wishes to return Products based on a claim that they are defective or that any Substitute Product provided by ’47 is not comparable to the Product that was ordered, Retailer may submit to ’47 a request for return within thirty (30) days after delivery of those Products to Retailer. ’47 shall, in its sole and absolute discretion, decide which Product, if any, shall be approved for return (the “Approved Return Product”). ’47 will not approve return requests received by ’47 more than thirty (30) days after delivery of those Products to Retailer. ’47 will not issue any refunds or apply any credits for Product that is not Approved Return Product. Any Product returned to ’47 that is not Approved Return Product will be disposed of by ’47 in a manner it so chooses unless Retailer prepays shipping costs to return Product to Retailer. Retailer will ship all returns at its own expense and will retain title and risk of loss until receipt by ’47 at the designated return destination. Restocking fees may apply for any Approved Return Product.

6. AUTHORIZED RETAILER LOCATIONS: ’47 grants the Retailer the non-exclusive, non-transferable right to sell Products offered to Retailer by ’47 from time to time in accordance with these Terms and Conditions. Retailer will sell Products only at locations and through sales channels that have been approved by ’47 (hereinafter “Authorized Location” or “Authorized Locations”). Approval of all Authorized Locations shall be at the sole and absolute business discretion of ’47. Products may not be sold by Retailer at any other location without the prior written consent of ’47. Retailer covenants and agrees that the following standards will apply to all of Retailer’s Authorized Locations:

• Retailer may only sell Products under any store name and/or at any physical store location that has been approved by ‘47 as an Authorized Location.  Retailer acknowledges and agrees that ’47 may approve other retailers without regard to Retailer’s location, and nothing in these Terms and Conditions limits ‘47’s right to own and/or operate and/or appoint third parties to own and/or operate company store locations and/or “shop-in-shop” locations.
• Unless otherwise agreed to in writing by ’47, Retailer has no exclusive territory in respect of Products.
• All sales of Products must be at retail only. Retailer shall only sell Product to retail consumers physically present at such Authorized Location who are purchasing for their personal consumption and not for resale to an end consumer. Retailer may not sell or ship products to any other retailer or wholesaler without the prior written consent of ’47 which consent may be withheld in ‘47’s sole and absolute discretion.
• Retailer shall not engage in sales via the internet, unless otherwise approved in writing by ‘47 (in which case all internet sales shall be subject to Section 7 herein), and shall not accept orders or sell Product through the internet, e-mail or any other electronic channel. Notwithstanding the foregoing, Retailer may advertise Product through those channels to create or enhance consumer awareness of Product performance features and/or indicate the availability of Product at an Authorized Location so long as no sales are commenced through these channels and Retailer complies with all Advertising and Marketing guidelines (as defined below).
• Retailer will at all times maintain the Authorized Location(s) in a clean, safe and tidy manner and provide modern and adequate retail outlets necessary for the proper merchandising and selling of Product. The interior and exterior of each Authorized Location must be and remain tasteful and consistent with the standards and image of the ’47 brand.
• Retailer must, at all times during which Retailer is authorized to sell Product, display a representative assortment and selection of Products as determined by ’47 in its sole discretion. Retailer must engage in supportive merchandising practices for the Products and must display Products in a prominent and attractive manner in accordance with ’47 merchandising guidelines in effect from time to time. Retailer must exercise its best efforts to market and sell Products and must inform its sales personnel to be attentive, helpful courteous at all times, and knowledgeable regarding ’47 and the Products.
• Retailer must at all times remain solvent and in good credit standing with ’47.

7. INTERNET SALES. Retailer shall not engage in internet sales of Product (hereinafter “Internet Sales”) without the prior written consent of ’47, which consent shall be in the sole and absolute discretion of ‘47. If Retailer has been approved by ’47 to engage in Internet Sales, Retailer covenants and agrees that the following standards will apply to all of Retailer’s Internet Sales:

• Retailer is authorized to sell Product to retail consumers via Internet Sales only from the website or websites that have been authorized, in writing, by ’47 (hereinafter the “Authorized Website” or “Authorized Websites”). The Authorized Website(s) shall not be co-branded with the name or trademarks of any other person or entity and Retailer is hereby prohibited from using any ’47 trademark in any domain name or URL address.
• Retailer shall only use images of Product provided or otherwise approved by ’47 and all images shall be used in accordance with the Advertising and Marketing Guidelines contained herein.  
• Retailer will only deliver Product purchased through its Authorized Website(s) to consumers with mailing addresses in the United States, its territories and possessions. Retailer shall not permit any fulfillment house or any other third party to fill consumer orders placed through the Authorized Website(s).
• Retailer is prohibited, in any and all circumstances, from directly or indirectly selling Products to or through any other website or online sales platform, or through any auction website, including but not limited to, eBay or similar websites. The Authorized Website(s) will not link to, or provide data feeds to, any transactional website, or permit any transactional website to link to the Authorized Website(s). For purposes of these Terms and Conditions, a “transactional website” means a shopping portal, online marketplace, or other site which either (i) is capable of accepting orders from consumers, or (ii) creates the perception that orders are accepted on the site, even if the consumers are in fact redirected to other websites for order placement. The term “transactional website” specifically excludes websites which aggregate images and information about merchandise without conducting sales transactions.
• Retailer may not use any paid search criteria and/or adwords that utilize ’47, its Products and/or related trademarks, including but not limited to Facebook, Google Adwords, and Bing, Yahoo and AOL search engines, without ‘47’s prior written consent, which consent shall be withheld or conditioned in ‘47’s sole and absolute discretion. Retailer shall not use any ’47 trademarked terms in metadata unless otherwise directed by ’47.
• Retailer shall not engage in any advertising through third party affiliates or affiliate networks.
• The Authorized Website(s) will have features and functions that are standard in the industry, including the ability to: (i) confirm availability or unavailability of ’47 Product at the time the retail consumer places his or her order, (ii) accept all major credit cards, (iii) ship within standard time frames with a choice of overnight, second day air and ground delivery, and (iv) allow retail consumers to search the Authorized Website(s) and to navigate to a ’47 “concept shop” in the form of a web page featuring all Product that Retailer sells on the Authorized Website(s). Any   discounted Product must be presented to consumers on a discount page which is separate and apart from the main ’47 Product page.
• Retailer will at all times provide prompt, effective and courteous customer service by telephone for consumers purchasing Product from the Authorized Website(s) and for other visitors to that or those Website(s) who inquire about the Product. Retailer will be responsible for all credit and exchange of Product purchased on the Authorized Website.

8. ADVERTISING AND MARKETING GUIDELINES:

• With respect to Products, Retailer may only use advertising, promotional and/or marketing or sales materials that are specifically provided to Retailer by ‘47, or are otherwise approved by ’47 for use by Retailer. Retailer may not use 47’s name or any of its trademarks, logos, copyrights or other intellectual property in any advertising, marketing, promotional, and/or sales materials or otherwise without first obtaining written prior approval of ‘47. ‘47 may reject any advertising, marketing, promotional, and/or sales materials or practices proposed or utilized by Retailer, in the sole and absolute discretion of ‘47.
• Retailer shall not use ‘47 trademarks as part of any corporate or trade name or with any prefix, suffix, or modifying words, terms, designs or symbols other than logos authorized for use by Retailer under these Terms and Conditions or by other written permission from ‘47.

9. GENERAL RESTRICTIONS: Retailer will not directly or indirectly; (a) sell, consign or otherwise transfer Product (i) outside the United States (and, if Retailer makes sales of Product at a physical store location, other than at the Approved Location or Approved Locations); (ii) sell Product to another retailer, or to an e-retailer, distributor, or broker; (iii) sell product to a consumer where Retailer knows or should know, based on the circumstances of the transaction, that the Product is intended for resale or will likely be resold; (iv) purchase or sell, offer to sell, or distribute (including at no cost), counterfeit ’47 goods; (v) purchase authentic ’47 goods from any third party or sell or offer to sell Product on behalf of or for the account of, any other third party; (vi) if ’47 sets a launch date for a particular ’47 Product, sell that product prior to the date and time stated by ‘47; (vii) collect or use any sensitive personal data about consumers other than in compliance with industry best practices for security standards, and applicable law; (viii) mislead consumers with respect to prices, services, or any other aspect, characteristic, or feature of ’47 or Products; (ix) represent that the Authorized Location(s) or Authorized Website(s) are owned, operated, or controlled by ’47; or (x) use “’47” or any word related to “’47” by sight, sound or meaning in Retailer’s corporate, business or trade name.

10. NO DIVERSION. Retailer will not sell Products to any other entity or individual that Retailer knows or should have reason to believe is purchasing the Products other than for personal use. Retailer understands and agrees the Products may be coded, at times invisibly and without notice to Retailer, to facilitate tracing of Product. Retailer agrees that it will educate its employees regarding this prohibition and take reasonable steps to prevent diversion of Products in violation of these Terms and Conditions. Any breach of this provision or diversion of Product sold to Retailer, irrespective of actual knowledge of Retailer with respect to such diversion, will be cause for immediate termination of Retailer’s appointment hereunder and the cancellation, without penalty, of any open Orders placed by Retailer with ‘47. Recognizing that the diversion of Product is likely to cause confusion in the mind of consumers, the loss of business to ‘47, and significant reputational harm to ‘47, any such diversion by Retailer shall subject Retailer to damages of, at a minimum, three (3) times the price paid by Retailer for diverted Product. The parties agree that the foregoing minimum amount represents a reasonable estimate of the least amount of harm expected to result from such a diversion and not a penalty. In addition, ‘47 will be entitled to recover from Retailer any purchase price paid and other costs and expenses incurred by ‘47 to repurchase Product diverted by Retailer.

11. RETAILER’S REPRESENTATIONS, WARRANTIES AND OBLIGATIONS: Retailer represents, warrants, and covenants to ’47 on a continuing basis all of the following:
    • Retailer is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, and has the power and authority to execute, deliver, and perform its obligations in accordance with these Terms and Conditions;
    • Retailer shall obtain and maintain any and all permits, licenses, certifications, regulatory approvals and consents required in connection with its operation of the Authorized Location(s) and/or Authorized Website(s), and shall operate all Authorized Location(s) and/or Authorized Website(s) in a professional manner and in accordance with applicable law;
    • Retailer will institute or has instituted security measures to protect credit card and other personally identifiable information from unauthorized access and/or use in a manner consistent with industry best practices and applicable law;
    • Retailer will render full, prompt, effective and courteous customer service before, during and after the retail sale of Product;
    • Retailer will vigorously encourage the retail sale of Product;
    • Retailer will meet or exceed any minimum sales volume established by ’47 at any time and from time to time;
    • Retailer will establish and maintain, independently and in conjunction with ‘47, advertising and marketing policies and methods that emphasize the quality and performance of the Product and which are consistent with the Advertising and Marketing guidelines contained herein
    • Retailer will comply with applicable law in connection with performance of its obligations under these Terms and Conditions. As applied to these Terms and Conditions, “applicable law” or “applicable laws” shall mean all laws, statutes, ordinances, codes, rules and regulations which have been enacted by a government authority and are in force as of the Effective Date or come into force thereafter, in each case to the extent that the same are applicable to Retailer and to the performance by Retailer of its obligations under these Terms and Conditions.
    • Retailer represents and warrants, and each time Retailer submits an Order Retailer will be deemed to have represented and warranted, that (i) it wishes to purchase Product solely for business purposes and not for personal, family or household purposes; and (ii) the most recent financial information provided by Retailer is true, accurate and complete as of the dates indicated in that information and that there has been no material adverse change in Retailer’s business, prospects or financial condition since those dates.
    • Retailer represents to ’47 that Retailer’s management and executive teams have significant experience in the retail headwear and apparel industry and in operating retail headwear and apparel operations sufficient to support its operation of Authorized Location(s) and/or Authorized Website(s) as required in this Agreement and acknowledges that (i) it has received no assurances, express or implied, from ‘47 that any investment by Retailer in the promotion of Products and Authorized Location(s) and/or Authorized Website(s) will be recovered, that Retailer will generate income in excess of its investment in the promotion of Products and Authorized Location(s) and/or Authorized Website(s), that Retailer will obtain any amount of profits from the retail sale of Products, or that ‘47 will reimburse Retailer’s investment in the promotion of Products and Authorized Location(s) and/or Authorized Website(s) if Retailer is unhappy, and recognizes and appreciates the risks inherent in its efforts to sell Products as allowed hereunder; and (ii) it will not have or acquire by virtue of these Terms and Conditions and/or its role as a Retailer any rights, proprietary or otherwise, in its promotion or sale of Products, or in any Product goodwill, in either case created by its efforts hereunder. Retailer acknowledges that ‘47 has disclosed to Retailer all information and materials regarding 47’s business that are relevant to and necessary for Retailer’s performance of this Agreement in accordance with its terms.

12. INTELLECTUAL PROPERTY:

• Retailer acknowledges ‘47’s sole ownership of and exclusive right, title and interest in and to the name “‘47,” “’47 Brand,” “Fan Favorite,” the name “TWINS” and all other trademarks, copyrights, trade names, trade dress, company or business names, domain names, internet addresses, designs, symbols, and other ’47 marks (hereinafter “’47 Intellectual Property”) owned by ’47 or its affiliates. Retailer shall not, nor attempt to, register, adopt or use in any jurisdiction any ’47 Intellectual Property or any such trademarks, copyrights, trade names, trade dress, company or business names, domain names, internet addresses, designs, or symbols identical or confusingly similar with ’47 Intellectual Property. Retailer will not use any marks confusingly similar to the ’47 Intellectual Property or use the ’47 Intellectual Property in combination with any other trademarks.
• Retailer recognizes that the ’47 Intellectual Property possesses substantial goodwill and agrees that it will not use or display ’47 Intellectual Property in a manner that would disparage or damage them, or represent that it has any ownership in, or attempt to license, the ’47 Intellectual Property. All goodwill associated with Retailer’s use of the ’47 Intellectual Property will be owned exclusively by ‘47.
• Retailer will comply with ‘47’s latest trademark usage standards and guidelines, which ’47 may provide and circulate from time to time, as well as any other policies governing the use of (i) ’47 Intellectual Property, and (ii) product and images and other copyrighted materials.
• Upon request by ‘47, Retailer will submit to ‘47, for its review, any public statements about ’47 or advertising materials bearing ’47 Intellectual Property, Product images, or Product descriptions. If ’47 does not approve such materials in writing within five (5) business days, the materials shall be deemed rejected and Retailer shall cease any use of the rejected materials. Retailer shall not issue external press releases or publicity releases mentioning ’47 without ‘47’s prior written approval.
• Retailer shall immediately notify ’47 of any apparent or actual infringement or improper use of the ’47 Trademarks that comes to its attention, or claim by any person of any rights in ’47 Intellectual Property, and Retailer shall not communicate with any person other than ‘47 and its counsel in connection with any such infringement, improper use, or claim. ‘47 shall have the sole discretion to take or refrain from taking any action that ‘47 deems appropriate in connection with any possible or actual infringement, improper use, or claim described in this section. ’47 shall have the right to exclusively control any litigation, US Patent and Trademark Office or other proceeding that arises from such infringement, improper use, or claim or that otherwise relates to any ’47 Intellectual Property. Retailer shall execute any and all instruments and documents, render such assistance, and do all acts and things that ’47 or ‘47’s counsel considers necessary or advisable to protect and maintain 47’s interest in ’47 Intellectual Property. If any third party brings a claim, suit or proceeding against Retailer alleging that Retailer’s use of ’47 Intellectual Property in accordance with these Terms and Conditions infringes the trademark(s), trade name(s) and/or service mark(s) of such third party, then ‘47, at its own expense and in its sole discretion, and subject to Retailer’s compliance with these Terms and Conditions, shall: (i) defend, or a its option settle such claim, suit or proceeding; and (ii) pay any final non-appealable judgment entered or settlement against Retailer thereon; provided however that ’47 shall not be responsible for any compromise or settlement made without its prior consent. ’47 shall have no such obligation to Retailer unless: (a) Retailer gives ’47 prompt written notice of the claim; (b) ’47 is given the right to control and direct the investigation, preparation, defense and settlement of the claim; and (c) Retailer fully cooperates with ’47, at ‘47’s expense, in such defense and settlement.
• Retailer acknowledges and agrees that the ’47 Intellectual Property and the ’47 reputation for quality are extremely valuable to ‘47, and that ’47 does not authorize Retailer to sell any damaged or defective ’47 Product. Accordingly, Retailer agrees that ’47 Product which may be damaged or defective, for any reason, shall be, at ‘47’s sole election, either returned to ’47 or disposed of according to ‘47’s instructions. ’47 and its agents shall have the right to witness such destruction and Retailer shall provide authorized documentation, to the satisfaction of ’47, evidencing such destruction.

13. TERMINATION:

• ‘47 has no binding obligation to sell Products to Retailer unless and until it accepts Retailer’s purchase Order as provided in these Terms and Conditions. ’47 may terminate Retailer’s status as a Retailer, refuse to sell Products to the Retailer, reject in whole or in part any order, or cancel pending orders immediately upon written notice to Retailer for any reason. 47’s remedies hereunder are cumulative, and its exercise of any right or remedy hereunder is without prejudice to its other available rights and remedies. Nothing contained herein shall preclude 47’s right of termination pursuant to these Terms and Conditions. Retailer understands that after termination by ‘47, it shall have no right to continue to operate as a Retailer regardless of any undocumented continuation of the relationship with ‘47, or to be entitled to any compensation in connection with such termination.
• Failure or delay by ‘47 in taking action in respect to Retailer’s failure to comply with these Terms and Conditions shall not be deemed a consent by ’47 to such non-compliance or a commitment to waive any further non-compliance.   Any waivers or approvals made by ‘47 under these Terms and Conditions must be made in writing to be effective.
• In the event that ‘47 terminates Retailer’s status as a Retailer, or in the event that Retailer notifies ‘47 of its intention to cease ordering Product from ’47, within five (5) days following the termination and/or notification, Retailer shall provide ‘47 with a complete inventory of unsold Products on hand (“Remaining Inventory”), at which time ‘47 may provide written approval at 47’s sole discretion for Retailer to sell any Remaining Inventory to another authorized retailer for not more than its original purchase price. For any Remaining Inventory not resold to another authorized retailer, Retailer shall have a period of up to ninety (90) days from the date of such termination and/or notification in which to sell the Remaining Inventory (provided such sales are pursuant to these Terms and Conditions) (the “Sell-Off Period”), after which Authorized Retailer may no longer sell Products hereunder, and must immediately cease its use of any and all of ‘47’s trademarks and copyrights in connection with these Terms and Conditions. All ’47 advertising, promotion or marketing materials, whether displayed at retail or posted on Retailer’s website, must be returned to ’47 and/or removed from Retailer’s website (as applicable) within ten (10) days of the end of the Sell-Off Period.
• Any Remaining Inventory not resold to another authorized retailer, or timely sold off by Retailer, must be destroyed by Retailer at Retailer’s sole cost and expense. Retailer must provide ‘47 with an affidavit of destruction evidencing the same, signed by an officer of Retailer, in a form acceptable to ‘47.
• Without limiting the foregoing, ‘47 may terminate its relationship with Retailer upon Retailer’s breach of any of these Terms and Conditions, including, but not limited to, if it enters into bankruptcy proceedings.   ‘47 shall be entitled to recover all attorneys’ fees and expenses incurred in pursuing, enforcing and/or protecting its rights under these Terms and Conditions in any Retailer bankruptcy proceeding, including, but not limited to, filing proofs of claim, obtaining allowance of claims, pursuing, enforcing and/or protecting its rights with respect to assumption or assignment, or pursuing relief from the automatic stay under Bankruptcy Code section 362 to terminate these Terms and Conditions (to the extent not previously terminated by their terms, the parties, or operation of law).
• Retailer acknowledges that the manner and notice of termination set forth in these Terms and Conditions is reasonable and that, upon termination, no payment or indemnity for loss of goodwill, loss of profit, investments made, or otherwise shall be due to Retailer. NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER PARTY FOR DAMAGES OF ANY KIND ARISING FROM THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS.
• Sections 10, 11, 14, 15, 16, 17, 18, 19, 20 and 24 survive expiration or termination of these Terms and Conditions.

14. LIMITED REMEDY; DISCLAIMER OF WARRANTIES: If any Product is defective, ‘47’s sole and exclusive liability to Retailer will be, at ‘47’s election, in the case of a material defect, to either (a) replace that defective Product or (b) refund the amount Retailer paid ’47 for that defective Product. AS BETWEEN RETAILER AND ‘47, ’47 HEREBY DISCLAIMS ALL OTHER WARRANTIES (WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE), INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR USE FOR ANY PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. 

15. LIMITATION OF LIABILITY: . TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL ‘47 BE OBLIGATED UNDER THIS AGREEMENT OR LIABLE TO RETAILER, WHETHER UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST DATA OR COST OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION NEGLIGENCE), EVEN IF ‘47 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND COMPANY’S TOTAL, AGGREGATE LIABILITY TO RETAILER IN CONNECTION WITH THIS AGREEMENT SHALL BE DIRECT DAMAGES NOT EXCEEDING THE TOTAL AMOUNTS PAID BY RETAILER TO COMPANY HEREUNDER. Retailer acknowledges that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.

16. CONFIDENTIALITY:

1)       Non-Disclosure. Retailer acknowledges that it may have access to information owned or controlled by ’47 or ‘47’s Affiliates, disclosure of which would cause substantial or irreparable harm to ’47 (“Confidential Information.”) Confidential Information includes, but is not limited to, all information relating in any manner to 47’s contemplated new products, future product releases and services, marketing and advertising plans and campaigns, sales projections, creative campaigns and themes, financial information, budgets and projections, system designs, employees, management procedures and systems, equipment, production plans and techniques, product and materials specifications, product designs and design techniques, customer information (including purchase history and client identifying information), vendor information (including the identity of vendors and information concerning the capacity of or products or pricing provided by specific vendors) and any other non-public material disclosed to Retailer or to which Retailer gains access. Retailer shall protect ‘47’s Confidential Information by using the same degree of care with respect to such information that it would exercise with its own confidential information or trade secrets, but in any event no less than reasonable care. Retailer shall make Confidential Information available only to those employees of Retailer who need to know the information in connection with Retailer’s business, and shall not disclose Confidential Information to any third party. Confidential Information does not include information that Retailer can establish: (i) is in or (through no improper action or inaction by it or any affiliate, agent, or employee) enters the public domain, or (ii) was rightfully in its possession or known by it prior to receipt by ’47, without burden of confidentiality, or (iii) was rightfully disclosed to it by another person without restriction.

2)       Publicity Restrictions. Retailer will immediately notify ’47 in writing if it receives a request from any third party for an interview or statement about ‘47or ’47 Products. Retailer will not answer questions or give statements about its relationship with ’47 or discuss ’47 Products under circumstances where Retailer knows or has reason to believe that the purpose of the request is to create content for publication in film, television, radio, print or online media, including blogging. Retailer will not hold itself out as a representative of ’47 in any interview or statement whether or not it is recorded, and whether or not it is intended for such publication.

17. IDEA SUBMISSION. If Retailer chooses to submit to ’47 or share with ’47 any unsolicited product or marketing ideas, suggestions, proposals, comments or other materials (“Submissions”), Retailer agrees that (i) ’47 will consider the Submissions to be non-confidential and non-proprietary; (ii) the Submissions and their contents will become property of ’47, without the possibility of compensation; (iii) ’47 is under no obligations regarding the Submissions, including but not limited to any obligation to review, return any materials, acknowledge receipt of any Submissions or to commercially exploit Submissions in any territory; and (iv) ’47 may use, modify, redistribute or disclose the Submissions, in whole or in part, for any purpose and in any way, without the possibility of compensation to Retailer or any third party.

18. RESERVATION OF RIGHTS. As between the Parties, ‘47 owns and shall own all rights, title and interests, including all intellectual property rights, in and to its confidential information, its trademarks, trade names, logos and trade dress, and the intellectual property underlying or relating the Products and any developments, improvements, modifications, translations, or other derivative works relating to any of the foregoing, and ‘47 does not grant Retailer any right or license in or to any of the foregoing by implication or estoppel.

19. SEVERABILITY AND WAIVER: In the event any provision of these Terms and Conditions should be or becomes in whole or in part illegal, invalid, or unenforceable for any reason whatsoever or should violate any applicable law, such provision shall be severable from these Terms and Conditions and shall be deemed deleted from these Terms and Conditions; but the remainder of these Terms and Conditions shall be valid and binding as if such provision were not included herein. 47’s delay or failure to enforce or insist on strict compliance with any of the provisions of these Terms and Conditions will not constitute a waiver or otherwise modify the these Terms and Conditions, and 47’s waiver of any right related to these Terms and Conditions on one occasion will not waive any other right, constitute a continuing waiver or waive that right on any other occasion.

20. ATTORNEY’S FEES/GOVERNING LAW/FORUM SELECTION: Retailer will pay all costs, collection agency fees, expenses, and reasonable attorney fees (whether incurred prior to, at trial or on appeal) incurred by ’47 in connection with Retailer’s breach of these Terms and Conditions. These Terms and Conditions, and all disputes arising out of the Terms and Conditions or out of the relationship between ’47 and Retailer, will be governed by the laws of the Commonwealth of Massachusetts. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY. Retailer irrevocably consents to the jurisdiction of the state and federal courts located in the Commonwealth of Massachusetts in connection with any action arising out of or in connection with these Terms and Conditions and/or the relationship between the Parties and waives any objection that such venue is an inconvenient forum. Retailer will not initiate an action against ’47 in any other jurisdiction.

21. FORCE MAJEURE: If it becomes impossible for either Retailer or ’47 to perform its obligations under the Agreement as a result of fire, flood, earthquake, or other natural disaster, or other event beyond that party’s reasonable control, that party’s performance may be delayed for the duration of the force majeure event, except that nothing in this Section 21 will excuse Retailer from its payment obligations under these Terms and Conditions.

22. RESTRICTION ON ASSIGNMENT: Retailer will not assign any right conferred herein by ’47 without the prior written consent of an authorized ’47 representative, which consent shall be in the sole and absolute discretion of ’47. A change of control of Retailer by stock sale or gift, merger, operation of law, by contract or otherwise, will be deemed an assignment for purposes of this Section. Any attempted assignment or delegation by Retailer will be void. ’47 may grant, withhold or condition its consent to any assignment in ‘47’s sole discretion. If ’47 authorizes an assignment or delegation, that authorization will not release Retailer from any of its obligations under these Terms and Conditions unless (a) the authorization expressly releases Retailer; (b) the assignee or delegate agrees in writing to be bound by the Terms and Conditions contained herein; and (c) any agreement between Retailer and the assignee or delegate states that ’47 has the right to enforce Retailer’s rights against the assignee or delegate.

23. SET-OFF: In the event Retailer is indebted to ’47 or to any ’47 affiliate, that debt may be offset against credits otherwise owing to Retailer to reduce or eliminate the credit.

24. RELATIONSHIP: The relationship of ’47 and Retailer established by these Terms and Conditions is that of vendor-purchaser and nothing contained herein shall be construed to create a partnership, joint venture or any other relationship. Retailer may not represent that ’47 and Retailer are partners, joint venturers, principal and agent, or employer and employee, or hold out to any employee or prospective employee of Retailer that such person is or will be employed by ’47 or that his or her employment will be other than as an employee of Retailer. Retailer has no authority to and must not assume or create, in writing or otherwise, any obligation of any kind, express or implied, in the name or on behalf of ’47. Retailer shall not use any ‘47 trademarks in signing any contract, check, purchase agreement, negotiable instrument or other legal obligation, application for any license or permit, or in any manner that may result in liability of ‘47 for any debt or obligation of Retailer. Nothing in these Terms and Conditions are intended to establish a franchisor/franchise relationship under applicable law.

25. ENTIRE AGREEMENT: These Terms and Conditions contain the entire agreement and understanding between the Parties with respect to its subject matter and supersedes prior and contemporaneous oral and written agreements, commitments and understandings concerning that subject matter. These Terms and Conditions may be amended only by a writing signed by both Parties.

26. NOTICES: Any notice under these Terms and Conditions must be given in English and made by certified or registered mail or overnight commercial courier addressed to the respective parties’ addresses as set forth on the Order and to the attention of the parties’ representatives as listed on such Order. The effective dates of such notice shall be (a) five (5) days following the date mailed or certified or registered letters and (b) two (2) days following the date mailed for overnight letters. The addresses provided by either party may be changed at any time by giving prior written notice as above provided.

27. MISCELLANEOUS: The section headings appearing in these Terms and Conditions are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such paragraph or in any way affect such paragraph. If a party to these Terms and Conditions brings an action to enforce its rights under these Terms and Conditions, the prevailing party shall be entitled to recover its costs and expenses, including without limitation reasonable attorneys’ fees, incurred in connection with such actions, including any appeal of such action.