Purchase Terms and Conditions

1. ACCEPTANCE:

Any PURCHASE ORDER issued by Trademark Cosmetics, LLC ("TRADEMARK") under these terms and conditions shall (together with such terms and conditions) become a binding contract when accepted by acknowledgment of SUPPLIER or commencement of performance by SUPPLIER within the time frame therefore set forth in said PURCHASE ORDER. Any different or additional terms or conditions in any SUPPLIER quotation, acknowledgment, commencement, or invoice shall constitute a counteroffer and no contract shall exist unless accepted in writing by TRADEMARK. Notwithstanding the foregoing, if SUPPLIER has commenced performance prior to TRADEMARK’s written acceptance aforesaid, then said different or additional terms shall be deemed null and void and these terms and conditions shall prevail. TRADEMARK may, from time to time, change or supplement these terms and conditions. For avoidance of doubt, nothing in these terms and conditions is intended to supersede the terms of any agreements between TRADEMARK and SUPPLIER that pre-date these terms and conditions.

2. CHANGES:

TRADEMARK may, at any time, direct in writing additions, deletions, or changes to all or any part of the scope of the PURCHASE ORDER, and SUPPLIER agrees to perform such work as changed. If any such change causes an increase or decrease in the cost of or in the time required to perform such work, SUPPLIER shall submit detailed information substantiating such claims. If required, an equitable adjustment shall be made to the price or time of performance, or both, and the PURCHASE ORDER shall be modified in writing accordingly.

3. QUALITY:

All goods are subject to TRADEMARK's approval notwithstanding prior inspection or payment and, if not satisfactory or in accordance with specifications, may, at TRADEMARK's sole option, be returned to SUPPLIER at SUPPLIER's expense for transportation both ways or the amounts paid therefore by TRADEMARK promptly refunded to TRADEMARK. All services are subject to TRADEMARK's approval notwithstanding prior inspection or payment and, if not satisfactory or in accordance with specifications, may, at TRADEMARK's sole option, be performed at SUPPLIER's expense or the amounts paid therefore by TRADEMARK promptly refunded to TRADEMARK. SUPPLIER warrants that the goods sold pursuant to any PURCHASE ORDER (including without limitation any goods provided in connection with services) conform to all SUPPLIER drawings, specifications, samples and other written descriptions furnished to TRADEMARK, are new, unused and under all applicable manufacturers' warranties unless otherwise specified in the PURCHASE ORDER, are fit for the purpose(s) represented by SUPPLIER, and are merchantable, of highest quality and workmanship and free from defects. SUPPLIER shall promptly repair or replace, at no cost to TRADEMARK, any part of the goods TRADEMARK finds to be defective at any time within one (1) year of acceptance. In addition to the foregoing warranties, SUPPLIER shall pass to TRADEMARK any and all manufacturers' warranties. SUPPLIER warrants that the services pursuant to any PURCHASE ORDER shall be performed in a professional workmanlike manner, in conformity with standard practices and all applicable laws, rules and regulations, and shall be fit for the purpose(s) represented by SUPPLIER and of highest quality and workmanship. If TRADEMARK chooses to accept defective or nonconforming goods

4. PRICE:

The prices set forth in any PURCHASE ORDER shall not be increased without TRADEMARK's prior written consent. If a price is not stated for any goods and/or services in any PURCHASE ORDER, SUPPLIER shall invoice such goods and/or services at their then current list prices less any applicable price discounts. If, at any time during the performance of any PURCHASE ORDER, SUPPLIER shall quote or sell, at lower net prices, similar goods and/or services under similar conditions and (as to goods) in similar quantities, such lower prices shall be substituted for the prices identified in said PURCHASE ORDER.

5. INVOICING AND PAYMENT:

SUPPLIER shall issue an invoice to TRADEMARK on or at any time after the completion of the delivery and only in accordance with these terms and conditions. If authorized by the PURCHASE ORDER, or if SUPPLIER does not issue an invoice in due course, TRADEMARK may generate the invoice and proceed to payment accordingly. SUPPLIER shall notify TRADEMARK of any error on an invoice generated by TRADEMARK. TRADEMARK shall make payment for invoices received pursuant hereto (or the undisputed portions of such invoices) within sixty (60) days from receipt of a properly prepared invoice. Where, however, other payment terms appear on the front of any PURCHASE ORDER, payment shall be made in accordance with those terms and conditions.

6. SHIPMENT AND DELIVERY:

Shipment of all goods purchased pursuant hereto shall be effected as set forth in the PURCHASE ORDER. Unless otherwise expressly set forth in the relevant PURCHASE ORDER, SUPPLIER shall not charge TRADEMARK for insurance on shipments of goods, or for packing, crating, or drayage of goods. SUPPLIER shall notify TRADEMARK immediately of any situation that may delay or threaten to delay the timely delivery and/or performance of any PURCHASE ORDER. All or any portion of any PURCHASE ORDER may, at TRADEMARK's option, be canceled without liability by TRADEMARK, if delivery is not made as or when specified in said PURCHASE ORDER and these terms and conditions.

7. "HASSLE-FREE" RETURN/REPLACEMENT POLICY:

Any goods shipped by SUPPLIER in excess of the quantity designated in any PURCHASE ORDER or tolerance from quantity previously agreed to in writing may be returned by TRADEMARK at SUPPLIER's sole expense. For goods and/or services purchased pursuant hereto with a price (as to services) or unit price (as to goods) under $1,000, TRADEMARK shall be entitled to a “hassle-free” return/ replacement policy as follows: If an end user has not received the goods and/or services ordered or has deemed the goods and/or services delivered by the SUPPLIER to be unacceptable for any reason, the SUPPLIER shall immediately provide the correct goods and/or services upon notification, or (as to goods) at TRADEMARK's sole discretion, accept a return of the original goods shipped to TRADEMARK without question. In such a latter event, restocking fees, freight charges, or any other new or additional charges will not be imposed upon TRADEMARK. If replacement goods are available, they will be provided at the price set forth in the PURCHASE ORDER. The cost of any returned goods will be credited to TRADEMARK, and any costs associated with the return of goods to the SUPPLIER will be borne by the SUPPLIER.

8. FORCE MAJEURE:

Neither party shall be liable to the other for failure to perform when and as specified in these terms and conditions or in any PURCHASE ORDER if such failure to perform is caused by war, fire (outside of the reasonable control of the party claiming the force majeure), flood, strike, labor dispute, accident (outside of the reasonable control of the party claiming the force majeure), riot, act of God, act of governmental authority, or other contingencies beyond the control of the non-performing party interfering with said party's ability to perform its obligations hereunder.

9. ASSIGNMENT:

SUPPLIER shall not assign, in whole or in part, to any person, firm, corporation or governmental agency, its rights, interests or obligations under any PURCHASE ORDER placed pursuant to these terms and conditions without TRADEMARK's prior written consent.

10. RECORDS AND RIGHTS TO AUDIT:

TRADEMARK shall have the right to examine and audit the books and records of SUPPLIER at any reasonable time. Such books and records will be maintained for four (4) years in accordance with generally accepted accounting principles and will be adequate to enable determination and substantiation of: (1) the accuracy of any payments required to be made under the relevant PURCHASE ORDER; and (2) compliance with the provisions of the relevant PURCHASE ORDER. SUPPLIER shall ensure that all requirements in this SECTION are incorporated into all subcontracts at any tier.

11. RIGHTS TO DATA:

All drawings, plans, specifications, and data developed or produced under the relevant PURCHASE ORDER shall become the property of TRADEMARK.

12. PROPRIETARY INFORMATION:

In the course of providing goods and/or while performing services pursuant hereto and at any time subsequent, SUPPLIER will not, without prior written approval of TRADEMARK, use for itself or for others, or disclose to any third party, any confidential information, knowledge or data of or regarding TRADEMARK, concerning any product, apparatus, process, formula, manufacturing method, or manner of doing business that may be used, developed, or investigated by SUPPLIER or may come to SUPPLIER's attention in the course of providing the goods and/or performing the services (hereinafter individually and collectively referred to as "INFORMATION"). The obligations in this paragraph shall not apply to any information, knowledge or data already known to SUPPLIER or that, prior to the time of disclosure, are properly in the public domain.

SUPPLIER shall promptly notify TRADEMARK of any order or request by a governmental authority for INFORMATION and shall provide reasonable assistance requested by TRADEMARK in preparing and filing any request for confidentiality with such governmental authority.

13. INDEMNITY:

SUPPLIER hereby releases and shall indemnify, defend and hold harmless TRADEMARK, and its subsidiaries and affiliates, and representatives of all the foregoing from and against any and all suits, actions, legal or administrative proceedings, claims, demands, damages, liabilities, interest, reasonable attorney's fees, costs and expenses of whatsoever kind or nature, including those arising out of injury to or death of SUPPLIER's employees, whether arising before or after delivery of the goods or completion of the services pursuant hereto and in any manner directly or indirectly caused, occasioned, or contributed to in whole or in part, or claimed to be caused, occasioned or contributed to in whole or in part, by reason of any act, omission, fault or negligence whether active or passive of SUPPLIER, its subcontractors or anyone acting under its direction or control or on its behalf in connection with or incidental to the performance of any PURCHASE ORDER.

14. INSURANCE:

A. When SUPPLIER is performing services at a TRADEMARK site, SUPPLIER shall, in connection with each PURCHASE ORDER, at its sole expense, maintain in effect at all times during the performance of the services under the PURCHASE ORDER insurance coverage with limits as follows:

Worker's Compensation Limits
Statutory *
Applicable Federal Statutory (e.g. Longshoremen's) If Applicable
Employer Liability $1,000,000
*Worker's Compensation Insurance providing for payment of benefits to and for the account of employees in connection with the work covered under this PURCHASE ORDER as required by the statutes of the state or local country requirement where the work is being performed where the work is being performed. This shall include an Alternate Employer endorsement if TRADEMARK employees are directing the activities of contractor employees.
Commercial General Liability - Occurrence Form
Coverage for Bodily Injury/Property Damage-Each Occurrence, Personal and Advertising Injury, Products/Completed Operations, Contractual Liability $2,000,000
General Aggregate $2,000,000
Automobile Liability
Bodily Injury/Property Damage Combined Single Limit/Each Accident Covering Owned, Non-owned or Hired Automobiles $2,000,000
Excess Liability – Umbrella

15. LAWS, REGULATIONS, AND PERMITS:

SUPPLIER and all subcontractors of SUPPLIER shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a), and 60-741.5(a), if applicable. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors, including if applicable SUPPLIER, and its subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.

16. RELEASE AGAINST LIENS OR CLAIMS:

SUPPLIER shall promptly pay all claims of persons or firms furnishing labor, equipment or materials used in connection with the goods and/or the services pursuant to these terms and conditions. TRADEMARK may require SUPPLIER to submit satisfactory evidence of payment and of all such claims. If there is any evidence of any such unpaid claim, TRADEMARK may withhold any payment until SUPPLIER has furnished such evidence of payment and release, and SUPPLIER shall indemnify and defend TRADEMARK against any liability or loss arising from any such claim. SUPPLIER agrees that no mechanic's lien shall be filed by it or by any subcontractor against any TRADEMARK property or improvements and in any event, shall provide for the release thereof. The SUPPLIER shall do all things necessary to permit TRADEMARK to file and index, as and to the extent provided and permitted by law, an appropriate waiver of liens in the form required by TRADEMARK, in the proper venue before SUPPLIER commences any work under this PURCHASE ORDER. Where applicable law prohibits or fails to recognize waivers of liens, SUPPLIER shall provide and execute a partial release of liens, and an affidavit of payment for debts and claims, and all other properly executed waivers or releases as typically provided in the state where the goods are delivered and/or the services are performed.

17. NON-EXCLUSIVITY:

The parties understand and agree that neither these terms and conditions nor any PURCHASE ORDER shall create rights or obligations of exclusivity inuring to the benefit of SUPPLIER. Nothing in these terms and conditions or in any PURCHASE ORDER shall limit TRADEMARK's right to, at all times, purchase goods and services from other SUPPLIERS.

18. INDEPENDENT CONTRACTOR:

SUPPLIER is an independent contractor, and all persons employed by SUPPLIER in connection herewith shall be its employees and not employees of TRADEMARK in any respect.

19. HEADINGS:

The headings of the provisions of these terms and conditions are inserted for convenience only and shall not constitute a part hereof.

20. GOVERNING LAW:

These terms and conditions and any contract created by any PURCHASE ORDER placed hereunder shall be governed by the laws of the State of California without reference to any rules of conflict of laws.

21. SEVERABILITY:

In the event that any provision of these terms and conditions or any PURCHASE ORDER shall be found to be void or unenforceable, such findings shall not be construed to render any other provision of these terms and conditions or any PURCHASE ORDER either void or unenforceable, and all other provisions shall remain in full force and effect unless the provisions which are invalid or unenforceable shall substantially affect the rights or obligations granted to or undertaken by either TRADEMARK or SUPPLIER.

22. SUBSIDIARIES/AFFILIATES:

If a subsidiary or affiliate of TRADEMARK is identified in the “Ship to” address in the relevant PURCHASE ORDER, then: (1) said PURCHASE ORDER shall be and be deemed to have been placed by such subsidiary or affiliate; and (2) the references to TRADEMARK in the NOTE TO SUPPLIERS REGARDING TERMS AND CONDITIONS SECTION of said PURCHASE ORDER shall be and be deemed to be references to such subsidiary or affiliate; and (c) the references to TRADEMARK herein shall be and be deemed to be references to said subsidiary or affiliate; provided, however, the references to TRADEMARK in SECTIONS 12, 13, and 16 shall be and be deemed to be references to both such subsidiary or affiliate and all TRADEMARK entities.

23. NO CONFLICT MINERALS:

SUPPLIER acknowledges that TRADEMARK is endeavoring to avoid, whenever possible, the use or inclusion of Conflict Minerals in its Products, including the packaging and manufacturing processes therefor. Consequently, SUPPLIER hereby agrees to use reasonable commercial efforts to source any of the minerals included in the definition of the term Conflict Minerals and (i) used by SUPPLIER to manufacture products for TRADEMARK, (ii) incorporated into products manufactured for TRADEMARK by SUPPLIER or (iii) sold to TRADEMARK hereunder from sources which certify that the minerals provided by them are ultimately sourced from conflict-free smelters and are not and do not include any Conflict Minerals. Further, SUPPLIER agrees to provide any and all information reasonably requested by TRADEMARK and its Affiliates in connection with TRADEMARK’s and its Affiliates’ obligation to identify, assess and report on their use or non-use of Conflict Minerals.

24. ENTIRE AGREEMENT:

Subject to SECTION 1, the terms and conditions herein, together with the relevant PURCHASE ORDER, represent the entire agreement between TRADEMARK and SUPPLIER with respect to the goods and/or services set forth in said PURCHASE ORDER and supersede any inconsistent or additional provisions heretofore made by SUPPLIER. Neither these terms and conditions nor any PURCHASE ORDER placed by TRADEMARK hereunder may be altered except in a subsequent writing signed by TRADEMARK.