Terms and Conditions
The undersigned certifies that the foregoing is true and correct. The undersigned further authorizes and agrees to release any and all credit information necessary to La Jolla Group, Inc/ Mountain
Khakis, INC. Overdue balances are grounds for non-shipment, in addition to any other rights or remedies of La Jolla Group, INC./ Mountain Khakis, INC. An annualized rate of 18% may be charged on
any late unpaid balances. Any costs and attorney fees incurred in the collection of unpaid accounts will be charged to the undersigned. Signed purchase orders, unless rejected by La Jolla Group, INC./ Mountain Khakis, INC. or its factor, are considered a contractual obligation. Any dispute concerning the relationship between La Jolla Group, INC./ Mountain Khakis, INC. and the undersigned customer of La Jolla Group, INC./ Mountain Khakis, INC. shall be litigated exclusively in the courts located in Orange County, California, and this agreement shall be interpreted under California law, without regard to conflicts of laws principles. I certify that the products purchased from La Jolla Group, INC./ Mountain Khakis, INC. are for resale.
In consideration of the mutual promises and agreements herein contained, it is hereby mutually agreed upon as follows:
The merchandise sold to Retailer hereunder shall be resold by Retailer only at the Retail Location(s) set forth on the last page hereof through face-to-face meeting between the Retailer's customers
and any of Retailer's personnel and not through mail orders, the Internet, or other sales methods unless authorized in writing by Mountain Khakis, INC. Notwithstanding any other provisions of this Agreement, Retailer shall not resell Merchandise to any third party for further or subsequent resale. In the event of any breach by Retailer of the preceding provisions of this paragraph 1, Mountain Khakis, INC., in addition to all its other remedies pursuant to this Agreement or provided by law, may demand the immediate return of any Mountain Khakis merchandise remaining in Retailer’s possession, at Retailer cost, and/or withhold further shipments of merchandise to Retailer notwithstanding Mountain Khakis, INC's prior acceptance of purchase orders thereof. Additionally, in consequence of the threatened damage to Mountain Khakis, INC.'s reputation and goodwill which may result from Retailer's breach of said provisions, Retailer agrees that Mountain Khakis, INC. cannot be reasonably or adequately compensated in damages for such breach, therefore, Mountain Khakis, INC. shall be entitled to injunctive relief which may include, without limitation, restraining Retailer from reselling the Merchandise other than as specifically provided for herein. Mountain Khakis, INC. shall not be obligated to sell Merchandise to Retailer for resale at any of its other Retail Locations, if any, other than Retail Location(s) identified on the last page hereof. Any new Retail Location must be approved in writing by Mountain Khakis, in advance.
Retailer may not advertise the Mountain Khakis brand or Mountain Khakis products via newspaper, radio, magazine, etc. without written permission from Mountain Khakis, INC. Mountain Khakis, INC. shall also have the right to pre-approve all such advertising layouts, copy, etc. in advance.
Nothing contained herein shall limit the right of Mountain Khakis, INC. to deal with other retailers, agents, representatives or distributors regardless of their proximity to the Retailer. Mountain Khakis, INC. makes every effort to comply with each customer's instructions as stated in their "Routing Packing, and Labeling manual." Therefore, Mountain Khakis, INC. will not accept any deductions from invoices due to any sort of PO/routing violations, unless previously agreed to. To clarify, Mountain Khakis, INC. must be placed on "exempt status" with regard to any and all "handling charges", or "penalty charges".
The preparation of a purchase order by a sales representative of Mountain Khakis, INC. or the submission of a purchase order to Mountain Khakis, INC. shall not constitute acceptance of such order until such time as it is formally approved by Mountain Khakis, INC. at its principal place of business. All purchase orders are subject to the terms and conditions of this Retailer Agreement. Any cancellation
of a purchase order by Retailer, or any part thereof, shall not be effective unless Mountain Khakis, INC. receives written notice of such cancellation at least 60 days prior to the scheduled shipping date. Retailer shall be obligated to pay to Mountain Khakis, INC. a restocking fee of 20% of the amount of the purchase order for the products purchased if the entire order is cancelled, or 20% of the amount reflected on the purchase order for the product items cancelled if only selected items on the purchase order are cancelled. Retailer shall have no right to cancel all or any part of a purchase order less than 60 days prior to the scheduled shipping date.
Retailer shall notify Mountain Khakis, INC. immediately upon discovery of any unauthorized use of the Mountain Khakis, INC. trademarks, insignias, or other means of identification, but the Retailer shall
not take any action of any kind with respect to any such use without the prior written authorization of Mountain Khakis, INC. Nothing contained herein shall grant the Retailer any right to the Mountain Khakis, INC. trademarks, insignias, or other means of identification except the right to display the Mountain Khakis, INC. logo at the Location (or other location as may be identified on the last page here of).
Disclaimer and limitation of liability: Mountain Khakis, INC. grants no warranties or conditions, express, implied statutory or otherwise, regarding the merchandise, its fitness for any purpose, its merchantability, or otherwise. Mountain Khakis, INC. shall not be liable for any special, consequential, punitive, incidental, or indirect damages, lost profits, the cost of procurement of substitution products or services however caused or on any theory of liability arising in any way out of this agreement. Retailer agrees that Mountain Khakis, INC’s liability under this agreement, regardless of the form of action, shall in no event exceed the price paid by the Retailer for the subject merchandise. This limitation shall apply even if Mountain Khakis, INC. has been advised in advanced of the possibility of such damages and notwithstanding any failure of essential purposes of any limited remedy provided for herein.
Mountain Khakis, INC. shall not be responsible for any delays or failure to perform caused by government orders or requirements, transportation conditions, riots, fires, weather, acts of God, or any other cause beyond the reasonable control of Mountain Khakis, INC.
The relationship of Mountain Khakis, INC. and Retailer established by this agreement is that of vendor- purchaser and nothing contained herein shall be construed so as to create a partnership, joint venture of franchiser-franchisee relationship. Retailer agrees that any and all information it receives from Mountain Khakis, INC. regarding pricing specific to Retailer for products sold to Retailer bearing the " Mountain Khakis" trademark ("Retailer Pricing") is proprietary and confidential information and constitutes a trade secret of Mountain Khakis, INC. Any such information regarding Retailer Pricing
shall be maintained in strict confidence and shall not be disclosed to any third party by Retailer or its personnel or agents without the express written consent of Mountain Khakis, INC. Any disclosure or unauthorized use of such information regarding Retailer Pricing will cause irreparable harm to Mountain Khakis, INC., and without limiting the other legal or equitable remedies to which Mountain Khakis,
INC. may be entitled, Retailer agrees that injunctive relief may be obtained against Retailer, and Mountain Khakis, INC. may immediately discontinue any discounts or other Retailer Pricing benefits. The provisions set forth herein may not be supplemented, modified or amended in any manner, except by an instrument in writing stating that it is a supplement, modification or amendment of these provisions and signed by each of the parties hereto.
Any controversy of claim arising out of our relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in the County of Orange, California, in accordance with the rules of American Arbitration Association then in effect and the prevailing party shall be entitled to recover his actual costs and attorney's fees paid or incurred in connection with the arbitration. Neither party hereto, nor any of their agents, have made any statement, promises or agreements verbally or in writing in conflict with the terms set forth herein. Any and all representations by either of the parties of their agents made during negotiations, which representations are not contained herein, shall not be binding upon either of the Parties hereto. This Agreement contains the entire Agreement between the parties. Time is the essence for this Agreement and all of the terms, provisions, covenants and conditions hereof.
Retailer shall comply with all applicable laws and regulations and obtain all permits and licenses or other forms of clearance from governmental or regulatory agencies necessary for the conduct of Internet/electronic commerce sales in accordance with this agreement. This shall include, but is not limited to, the collection and payment of all applicable sales taxes resulting from the sale of merchandise by Retailer.
Retailer may not assign any of Retailer's rights or delegate any of its obligations under this Agreement, without the prior written consent of Mountain Khakis, INC. All assignments of rights are prohibited, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law, or any other manner. A change of control is deemed an assignment of rights and "merger" refers to any merger in which Retailer participates, regardless of whether it is the surviving or disappearing entity. Any purported assignment of rights or delegation of obligations in violation of this section is void.
This agreement may be executed and delivered by facsimile or electronic signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
