1. Entire Agreement. These Terms and Conditions of Sale (which include any document(s) attached hereto or referencing these Terms and Conditions of Sale) (the "terms") constitute the entire, complete, and exclusive agreement between the parties with respect to goods ("Products") provided by SUNSPEL US, INC., a Delaware corporation (herein "Seller"), to any customer (herein "Buyer") as specified in these terms.  If these terms are different from, or contain terms and conditions in addition to, Buyer's purchase order or any other document provided by Buyer (including any modifications thereto) Seller expressly rejects such different or additional terms in Buyer's document, and Seller's provision of the Products is expressly conditioned upon Buyer's assent to these terms.  Notwithstanding any other acts or omissions of the parties, Buyer's acceptance of a Product constitutes Buyer's assent to all of these terms.  All orders for Products shall be deemed to be an offer by Buyer to purchase Products in accordance with these terms.

2. Order and Acceptance. No order received by Seller shall be a contract binding Seller unless accepted by Seller in writing, which shall be in Seller's sole discretion.  Seller may reduce the quantities of Products deliverable from the quantities set out in an accepted order based on Seller's reasonable judgment of stock availability for all customers.  Such a reduction shall be binding on Buyer shall not give Buyer a right to terminate the order.  Seller shall advise Buyer each time such a reduction is made.

3. No Cancellation. Buyer may not cancel or modify any accepted order without the written consent of Seller which Seller may withhold in its sole discretion.  Any such consent of Seller shall be conditioned on Buyer paying to Seller a cancellation fee of 50% of the total invoice value plus the amount of all losses (including loss of profits), costs (including costs of all labor and materials used or committed), damages, charges and expenses incurred by Seller as a result of the cancellation or modification.  

4. Price. The price at which the Products are sold shall be the price set forth in the accepted order, or if not so specified, at Seller's prices current at the time of order acceptance.  Unless Seller and Buyer otherwise agree in writing, the price is exclusive of delivery charges, insurance charges, sales and other applicable taxes, duties or levies, all of which are payable by Buyer in addition to the applicable price.

5. Payment. 

(a) Payment for Products will be due in advance of delivery except where credit terms have been agreed with Buyer in writing in Seller's sole discretion. Whether or not credit terms have been extended, the applicable time of payment shall be of the essence of any order or other contract to which these terms apply.

(b) Buyer shall not be entitled to make any deductions or set off of any amounts (including those for alleged damages) against payments due to Seller hereunder.

(c) If Buyer fails to make payment when due, in addition to Seller's other rights and remedies, Buyer shall (i) pay Seller interest on the outstanding amount at 3% above the per annum base or prime rate quoted daily by HSBC Bank calculated on a daily basis from the date payment becomes overdue until the date payment is received; and (ii) pay all expenses of collection of amounts due Seller from Buyer, including reasonable attorneys' fees. Seller may treat any failure by Buyer to make any payment within 10 days of the due date as an improper cancellation of this order.

(d) Payment shall be made by Buyer by bank transfer (which may include direct debit) or check as instructed by Seller from time to time. Payment shall be deemed to have been received only at such time as Seller's designated bank account irrevocably receives cleared immediately available funds.
Seller shall be entitled to allocate payments received from Buyer against any unpaid invoice issued to Buyer.

6. Security Interest. 

(a) Until the entire amount due Seller is paid, Buyer grants Seller a purchase money security interest in all Products, including the proceeds thereof, with all rights and remedies of a secured party in any jurisdiction, securing all amounts owed by Buyer to Seller at any time. Buyer authorizes Seller to file financing statements or such other documents appropriate to protect Seller's security interest.  Buyer shall not permit any other lien or security interest to be imposed on the Products.  If Buyer has granted a third party a blanket security interest in the type of collateral of which a Product would be characterized under the Uniform Commercial Code or applicable law, Buyer shall notify Seller of such fact in writing prior to shipment of Products. 
(b) Buyer shall maintain possession of and securely store the Products subject to the security interest separately from all other goods in Buyer's possession and marked in such a way that they are clearly identified as subject to Seller's security interest and easily removable by Seller. Buyer shall ensure that the Products are properly maintained in the condition in which they were delivered and shall make good any damage or deterioration.
(c) Prior to default by Buyer, Buyer may resell the Products in the ordinary course of its business. Buyer shall be deemed to have sold all Products of the kind sold by Seller to Buyer in the order in which they were invoiced to Buyer.
(d) Upon default in any payment for Products or any other default by Buyer under these terms, Buyer shall upon request deliver up to Seller such of the Products as have not been resold. If Buyer fails to do so Seller may, during business hours, without notice enter upon any premises owned, occupied or controlled by Buyer where the Products are situated or where Seller reasonably believes the Products are situated and repossess the Products, and Buyer grants Seller an irrevocable license for this purpose.
(e) Buyer shall insure and keep insured the Products at the full value thereof against "all risks" to the reasonable satisfaction of Seller from the time of delivery of the Products and shall whenever requested by Seller produce a copy of the policy of insurance.

7. Delivery.

(a) Delivery shall take place on the first to occur of the following as agreed between the parties: (i) delivery of the Products to Buyer at Seller's premises; delivery of the Products to Buyer's premises by Seller; or delivery of the Products to the agreed point of loading. Risk of loss passes upon delivery.
(b) Any delivery dates requested by Buyer or estimated by Seller are approximate only and time of delivery shall not be of the essence, nor may Buyer make it so without Seller's prior written agreement. Buyer shall not be entitled to any damages for delay. 
(c) If delivery dates are open or subject to Buyer's direction, and Buyer refuses to agree a reasonable delivery date, does not respect an agreed delivery date or does not tender payment or provide Seller with such documentation as it shall reasonably require in order to effect delivery, Seller may (i) either effect delivery at Buyer's expense by whatever means it thinks most appropriate or arrange storage at Buyer's risk and expense pending delivery or (ii) upon 24 hours prior notice to Buyer with the option to accept delivery within that timescale, treat Buyer's actions as a default and re-sell or otherwise dispose of the Products or part of them without prejudice to any other rights Seller may have against Buyer for breach of contract or otherwise. If Products are scheduled to be delivered and Buyer does not respect the delivery date, the price for the Products shall be due notwithstanding any applicable credit terms.
(d) Seller shall be entitled to deliver Products by installments and in such case each installment shall constitute a separate contract and any failure or defect in delivery of any one or more instalments shall not entitle Buyer to repudiate the contract as a whole nor to cancel any subsequent instalment.
(e) The Buyer must inspect the Products upon delivery and inform Seller in writing within 48 hours of any Products which are delivered in a damaged or defective state or of any shortfall in the quantity of any delivery. Any shortfall in the quantity of Products delivered from that stated in any contract to which these terms apply shall not give rise to a claim for damages for breach of contract solely as a result of such shortfall, but Buyer shall only be obliged to pay at the contract rate for the quantity of Products delivered.  Buyer cannot reject a lot based on defects of any part thereof.
(f) Non-delivery must be reported by Buyer by telephone within 48 hours of the agreed date of delivery and confirmed in writing within 5 days of the agreed date of delivery.

8. Warranty. Seller warrants that the Products are free from defects in materials and workmanship, subject to any minor variations in color, texture, shade and/or general appearance of the Products.  Except for the foregoing, Seller makes no representation or warranty of any type, express or implied, including any warranty of merchantability or fitness for a particular purpose, warranty of non-infringement or warranty arising from any course of dealing, course of performance or usage of trade.  Any claim for non-conformance with the foregoing warranty must be made by Buyer in writing within six months following delivery or it shall be waived.

9. Remedy. 

(a) Seller's sole obligation and Buyer's exclusive remedy with respect to any Products, whether arising in contract, tort (including negligence), strict liability, breach of warranty or otherwise, is limited to Seller, at its discretion, replacing or repairing the defective Products or issuing Buyer a credit equal to the price paid to Seller for such defective Products, and in no event will Seller's liability exceed the amounts actually received by Seller for any Product. Seller shall not be liable for the cost of substitute goods or cover.
(b) Seller will not under any circumstances, be liable for any special, indirect, punitive or consequential damages (even if Seller has been notified of the possibility of such damages) resulting from or related to a Product including, without limitation, any loss of profits, loss of opportunity or loss of goodwill by Buyer or any third parties.
(c) This exclusive remedy shall not be deemed to have failed its essential purpose so long as Seller is willing and able replace or repair a defective Product or, at Seller's option, to refund or credit the price received by Seller for the defective Product, within a reasonable time after Buyer demonstrates that a defect exists in accordance with the terms and limitations of the warranty. Seller may at its discretion require the return of defective Products for repair or replacement or the issuance of credit in the value of the Products concerned.

10. Return of Products. Buyer shall have no right to require Seller to take back and to give credit for non-defective Products delivered to Buyer.  If any return is required or permitted by Seller under Section 9(c) or otherwise, Seller will not be responsible for lost returns (except where lost by Seller).

11. Default and Termination. 

(a) Seller may terminate these terms immediately upon the bankruptcy or insolvency of Buyer, any material change in the control or ownership of Buyer or Buyer's breach of these terms, including without limitation any failure to make any payments due to Seller hereunder.

(b) Upon any such termination and without prejudice to any other remedies Seller might have:

(i) Buyer will pay the price for any Products delivered on or before the date of termination,
(ii) Seller may cancel or suspend any obligation to supply Products (including any outstanding orders and goods in transit), and
(iiii) Buyer's right to resell Products pursuant to Section 6(c) shall terminate.

(c) Termination will not alter or terminate any of the parties' obligations under any provision of these terms that by its nature extends beyond termination or cancellation which accrued prior to the date of termination.

12. Intellectual Property. Copyright, design, trademarks or other intellectual property rights in the Products will remain the sole property of Seller, and Buyer will not remove any Seller label or mark from any Product without Seller's prior written consent, copy the designs and/or specifications of the Products or any part thereof or otherwise use Seller's trademark without Seller's prior authorization in writing.  Buyer shall leave in position and not cover, deface or erase any notices or other marks (including serial numbers and notices that a patent, trade mark, design or copyright relating to the products is owned by Seller or a third party) which Seller may place on or affix to the Products.

13. Confidentiality.  Buyer shall keep confidential at all times any and all information, data and other items ("Information") received from Seller which are marked "Confidential" or which may by their nature reasonably be considered to be confidential.  This obligation shall not however apply to Information which is in or, without breach of this obligation, comes into the public domain or which is already in Buyer's possession without obligation of confidence.

14. Assignment. Buyer may not delegate or assign any duties or rights under these terms without Seller's prior written consent which may be withheld for any or no reason. Any such delegation or assignment in violation of this section is void.

15. Severability/Revision. Should any provision of these terms be held by a court of law, or other body having proper jurisdiction to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of these terms shall not be affected or impaired thereby and the parties agree that partial enforcement of these terms or revisions of the illegal, invalid or unenforceable provision is appropriate.

16. No Waiver. Enumeration of rights of Seller hereunder shall not be in limitation of any other rights allowed by law.  A failure by either Seller or Buyer to enforce any right conferred upon it by these terms shall not be deemed to be a waiver of such right or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.

17. Limitation of Actions. Any action against Seller arising out of this transaction shall be commenced within one (1) year from the date such cause of action has accrued, otherwise the same shall be barred.

18. Notices. To be effective, all notices and other communications under these terms shall be in writing and sent to the intended recipient by personal delivery or by recognized overnight courier at the party's address set out on its most recent order and/or invoice.  Each party may change its address for receipt of notice by giving notice of such change pursuant to this section.  Notice is given immediately upon personal delivery or the next business day following the date on which such notice is sent by overnight courier.

19. Governing Law. These terms shall be governed by and construed in accordance with the laws of the State of New York, without regard to its principles of conflicts of laws, and shall not be governed by the provisions of the United Nations Convention on Contracts for International Sales of Goods. The parties agree that all actions or proceedings between them shall be tried and litigated only in the state and federal courts located in the State of New York USA.

20. Entire Agreement. These terms shall constitute the entire agreement between Seller and Buyer with respect to the subject matter hereof, and any modification to these terms will be binding only if it is evidenced in writing, signed by an executive officer of Seller specifically referencing the provision(s) of these terms so modified. Buyer confirms that in entering into its contract with Seller it has not relied upon any matter not set out in these terms and acknowledges that, except in relation to fraudulent misrepresentation, Seller shall not have any liability for pre-contract statements, representations or similar.  These terms shall not confer any benefit upon any person who is not a party to the contract between Seller and Buyer.