OnPoint Manufacturing, Inc.
Terms and Conditions
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. AS USED IN THESE TERMS AND CONDITIONS, "YOU" OR "YOUR" REFERS TO YOU AS THE CLIENT OF ONPOINT MANUFACTURING, INC. AND "OPM" OR "OUR" REFERS TO ONPOINT MANUFACTURING, INC.
1. PRODUCTION ARRANGEMENT. Prior to submitting any Production Orders (as defined herein) and upon request by OPM, you agree to timely deliver to OPM at its manufacturing facility (the "Facility"), at your sole cost and expense, items necessary for the production process, including, but not limited to, all raw materials (fabric, thread, etc.) necessary to produce the Finished Products (the "Raw Materials"). Production Requirements are detailed in Section 2.
2. PRODUCTION REQUIREMENTS. The following list of items are required for an initial estimate and production (the "Client Items"):
(a) One Product Sample fully constructed, and one with cut pattern pieces with all necessary notions, ready to sew
(b) Digital Patterns (Accumark 7.0 or higher)
(c) A Tech Pack
(d) Order of sewing operations (if available)
(e) Sales projections and seasonality fluctuations
(f) Time frame for finished products
(g) Raw materials needed
(h) Signed Pattern Release Consent Form
3. PRODUCTION ORDERS. All Production Orders accepted by OPM are final, non-cancellable, and subject to these Terms.
(a) Upon receipt of all of the agreed upon Client Items, to OPM's satisfaction, OPM will provide you with instructions for submitted orders for Finished Products to OPM (each a "Production Order"). Upon receipt of a Production Order, you accept that all sales are final, a Production order can only be canceled in writing, and Production Orders are your sole responsibility once the order has left our facility.
(b) OPM accepts a Production Order by confirming the Production Order in writing, via the Client Ordering Portal, or by delivering the applicable Finished Products to you or your designee in the Production Order, whichever occurs first. OPM may reject a Production Order or cancel a previously accepted Production Order, which it may do without liability or penalty, and without constituting a waiver of any of OPM's rights or remedies under these Terms and Conditions or any Production Order, by providing written notice to you specifying the applicable date of rejection or cancellation.
4. DELIVERY; TITLE AND RISK OF LOSS. All shipments will be made at your expense, with risk of loss or damage to the Finished Products passing to you upon delivery to the carrier at the Facility. OPM shall not be bound to tender delivery of any quantities for which you have not given proper written delivery instructions. Notwithstanding any contrary provision contained in these Terms and Conditions, OPM shall not be required to store Finished Products or Raw Materials for you longer than five (5) days after giving you notice. Risk of loss of Raw Materials will pass to OPM after such Raw Materials have been unloaded at the Facility. Risk of loss of Raw Materials will remain with OPM until the earlier of (i) Finished Products are produced therefrom and (ii) five (5) days after written notice from OPM.
5. RETURNS. You acknowledge that upon completion of a Production Order, delivery of said Production Order will be shipped and delivered within a timely manner once complete within a specific time frame, with no guarantee of a specific date, day or time. OPM will only accept returns in cases of manufacturing defects in the item produced by OPM, as determined by OPM in its sole discretion. Any claims submitted for review under our return policy must be received within thirty (30) days of the earliest of delivery or your taking possession of the order. In addition, OPM will not take returns on: (a) your customer returns; (b) overstock or overruns; or (c) products damaged, lost or stolen during transit to destination.
6. CLIENT REPRESENTATIONS AND WARRANTIES.
(a) You represent and warrant to OPM that: (a) any Client Items and all other materials and items (including without limitation items bearing one or more of the Client Trademarks, as defined in Section 6(b) below) delivered or made available by you (or your suppliers) to OPM under these Terms and Conditions (for purposes of these Terms and Conditions, all of the foregoing are collectively referred to as the "Client Warranted Items") will conform to the product, performance and quality specifications set forth in the applicable specifications agreed upon by OPM (the "Specifications"); (b) the Client Warranted Items will comply fully with all other requirements set forth in these Terms and Conditions and all statutory, regulatory, contractual and other legal requirements; and (c) as to items which are or may be subject to intellectual property right claims, including without limitation patent, copyright, trademark, trade dress, and all other intellectual property rights, such items are properly and lawfully being used by you and provided to OPM for use in accordance with these Terms and Conditions, and such uses do not and will not violate any rights of any person or entity. This warranty shall be considered as a separate warranty for each lot, shipment, item and container of any of the Client Warranted Items.
(b) You intend to market, sell, offer for sale, and advertise the Finished Products for sale under your own trademarks, service marks, trade names, slogans, labels, logos, titles, insignias and other commercial symbols and product identifications (collectively, the "Client Trademarks"). You represent and warrant to OPM that the Client Trademarks are owned by you.
(c) You shall be responsible for the form and content of all labels, trademarks, trade dress and liners, and you hereby represent and warrant to OPM that all such items shall comply fully and completely with all statutory, regulatory, contractual and other legal requirements applicable at any time to all or any of them. You, at your own expense, will furnish OPM in a timely manner with appropriate liners, trademarks, trade dress, and labels as are needed by OPM to meet its production, packaging, labeling, and shipping obligations hereunder.
(d) You represent and warrant that you have read and understand, and agree to be bound by, all of the provisions of these Terms and Conditions, without modification. You shall be deemed to have accepted these Terms and Conditions upon any of the following events: (a) you submit any Production Order to OPM; (b) you confirm in writing, including electronic writing, that you agree to proceed with any Production Order; or (c) OPM's tender of delivery of the Finished Products to you. You represent and warrant that you have the full right, power, and authority to enter into these Terms and Conditions and to perform its obligations hereunder, and that the representative entering into these Terms and Conditions is authorized to enter into these Terms and Conditions on your behalf.
(e) You hereby represent and warrant to OPM that the representations and warranties set forth in this Section 6 are true and accurate as of the Effective Date of these Terms and Conditions. You hereby agree that such representations and warranties will be deemed reaffirmed as true and accurate each time you submit a Production Order.
7. FORCE MAJEURE. OPM shall not be liable or responsible to you, nor be deemed to have defaulted under or breached these Terms and Conditions, for any failure or delay in fulfilling or performing any obligation under these Terms and Conditions when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of OPM including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage.
8. INSPECTION AND REJECTION OF NONCOMFORMING FINISHED PRODUCTS. You will have a reasonable opportunity to inspect the Finished Products and will be deemed to have accepted the Finished Products within five (5) days of your (or your designee identified in the Production Order) receipt of the Finished Products unless you notify OPM in writing of any Nonconforming Products during such five (5) day period and furnish written evidence or other documentation as required by OPM. If you timely notify OPM of any Nonconforming Products, OPM will, in its sole discretion, (i) repair such Nonconforming Products to make them conforming Finished Products, or (ii) credit or refund the production fees for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by you in connection therewith. You shall ship, at your expense and risk of loss, the Nonconforming Products to the Facility or otherwise as directed by OPM in writing. You acknowledge and agree that the remedies set forth in this Section are your exclusive remedies for the delivery of Nonconforming Products. "Nonconforming Products" means only the Finished Products shipped by OPM that do not meet the Limited Production Warranties set forth in these Terms and Conditions, subject to commercially reasonable deviations.
9. RAW MATERIALS. OPM shall have the right, for a period of thirty (30) days after receipt of Raw Materials, to reject and return to you, at your expense, any Raw Materials that do not meet the specifications set forth in the Specifications applicable to such Raw Materials, or that have patent or visible damage. You, at your own expense, shall supply to OPM at the Facility Raw Materials at such times and in such quantities as are necessary to enable OPM to perform its obligations in accordance with the terms hereof. You shall give OPM reasonable advance notice, in writing, of the proposed delivery date for each shipment of Raw Materials being delivered to OPM under these Terms and Conditions; such notice shall specify the material(s) being delivered, the quantity of each, and your best estimate of the delivery date. OPM shall be entitled to rely on statements of contents, quantities and certificates of analysis pertinent to such Raw Materials, and in no event shall OPM be required or expected to test or analyze any of the Raw Materials
10. LICENSE. You grant to OPM a limited, royalty-free, fully paid up, non-exclusive license in any intellectual rights owned by you for the purpose of manufacturing the Finished Products ordered by you or on your behalf.
11. PRICE; PAYMENT TERMS. You shall pay the production fees to OPM at the price(s) and on the payment terms set forth in the Production Order, or if unspecified, such other written agreement between you and OPM regarding payment terms. If neither the Production Order nor such other written agreement specify payment terms, any payment shall be immediately due and payable upon delivery. OPM accepts all major credit cards, checks, certified checks or cash payment. The prices and charges stated on the face of the Production Order may not include state or federal excise, sales or use, or other taxes (if any) now in effect or hereafter levied by reason of this transaction. All such taxes shall be your responsibility. After 15 days past the due date for any payment, OPM may charge a monthly finance fee of 1.5% on the outstanding balance. In addition to the production fees, you shall promptly pay all ad valorem personal property taxes on Raw Materials and Finished Products that are assessed against the owner of such property. You shall at all times be deemed to be the owner of all Raw Materials.
12. LIMITED PRODUCTION WARRANTIES. OPM warrants that each Finished Product delivered by OPM to your carrier (or your customers) under these Terms and Conditions will, at the time of such delivery, conform to the product specifications set forth in the applicable Specifications, subject to commercially reasonable deviations. This warranty shall be considered as a separate warranty for each Finished Product delivered by OPM hereunder. OPM's warranties provided in these Terms and Conditions shall apply to each Finished Product produced by OPM after Commercial Production for that Finished Product begins; "Commercial Production" is defined as production of a Finished Product after OPM has confirmed in writing to you that OPM has completed the necessary pilot runs and scale up runs for that Finished Product, and that OPM is capable of meeting the Specifications for the requested production of that Finished Product. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 12, OPM MAKES NO WARRANTY OF ANY NATURE WHATSOEVER, EXPRESS OR IMPLIED, CONCERNING FINISHED PRODUCTS OR ANY OTHER MATERIALS OR SERVICES SUPPLIED BY OPM TO OR FOR DESIGNER OR ITS CUSTOMERS, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR NON-INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE DRESS, OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. The provisions of Section 12 shall survive the expiration or termination of these Terms and Conditions.
13. DEFAULT AND REMEDIES.
(a) The following shall be considered an "Event of Default": (i) you fail to pay any amount when due under these Terms and Conditions; (ii) you have not otherwise performed or complied with any provision of these Terms and Conditions, in whole or in part; (iii) you breach any representation or warranty in these Terms and Conditions, or (iv) you become insolvent, file a petition for bankruptcy or commence or have commenced against you proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Upon the occurrence of an Event of Default, all amounts owing under these Terms and Conditions shall immediately become due and payable.
(b) If an Event of Default occurs and is continuing, OPM may take any of the following actions: (i) terminate OPM's relationship with you, (ii) modify the payment terms applicable to any Production Order, (iii) send your account to a collection agency, or (iv) exercise any other remedies available under applicable law. You agree to pay all costs incurred by OPM in exercising its remedies or otherwise enforcing the provisions of these Terms and Conditions including, without limitation, reasonable attorneys' fees, whether or not suit is brought, and all court costs and legal expenses.
14. LIMITATION OF LIABILITY. In no event shall OPM be liable to you or any third party for any claims arising out of or related to these Terms and Conditions for any loss of use, revenue or profit, or for any consequential, indirect, incidental, special, exemplary, or punitive damages whether arising out of breach of contract, tort or otherwise, regardless of (i) whether such damages were foreseeable, (ii) whether OPM has been advised of the possibility of such damages, or (iii) whether any agreed or other remedy fails of its essential purpose. In no event shall OPM's aggregate liability arising out of or related to these Terms exceed the total of the amounts paid by you to OPM for the Finished Products on which such liability is based.
15. INDEMNITY. You hereby agree to release and hold harmless, indemnify and defend OPM, with legal counsel selected by OPM, its present and future officers, directors, officials, employees, agents, subsidiaries, affiliates, successors and assigns from any liability (including without limitation liability for negligence or strict liability), claims, losses, suits, demands, penalties, fines, forfeitures, damages and costs (including attorneys' fees) caused by, arising out of or relating to (i) the Finished Products, (ii) the design of Finished Products supplied or the design of the packages or containers in which Finished Products are shipped, if such Finished Products' packages or containers are made in compliance with your designs or specifications, (iii) any breach of any covenant, representation, or warranty made by you or other Event of Default, or (iv) any act or omission of you or your successors, assigns, agents, representatives or employees. The indemnification and warranty provisions of these Terms and Conditions shall survive the expiration or termination of these Terms and Conditions.
16. INSURANCE. You represent and warrant to OPM that you have procured, and will maintain throughout the duration of these Terms and Conditions, at your expense, commercial liability insurance policies sufficient to cover your indemnification obligations under these Terms and Conditions, and that such policies will name OPM as an additional insured and waive any right of subrogation of the insurers against OPM. Upon OPM's request, you shall deliver copies of any such policies to OPM and evidence of OPM's designation as an additional insured party.
17. GOVERNING LAW AND VENUE. These Terms and Conditions shall be construed, interpreted, and enforced in accordance with the laws of the State of Tennessee, without giving effect to any choice or conflict of law provision or rule (whether of the State of Tennessee or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Tennessee. You and OPM hereby agree that if any lawsuit, action, or legal proceeding is initiated by a party to these Terms and Conditions regarding any dispute, claim, or cause of action arising from or related to these Terms, then such lawsuit must be filed in a federal district court or a state court located in Nashville, Davidson County, Tennessee, and each party hereby agrees and irrevocably submits to the exclusive venue and personal jurisdiction of such courts in any such lawsuit, action or legal proceeding.
18. CONFIDENTIALITY. Unless otherwise agreed in writing by OPM, you shall not disclose the pricing or other details of these Terms and Conditions to any third party.
19. WAIVER. No waiver by OPM of any of the provisions of these Terms and Conditions is effective unless explicitly set forth in writing and signed by OPM. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms and Conditions operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
20. ASSIGNMENT. You shall not assign any of your rights or delegate any of your obligations under these Terms and Conditions without the prior written consent of OPM. Any purported assignment or delegation in violation of this Section 20 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms and Conditions. These Terms and Conditions shall be binding upon and shall inure to the benefit of you and OPM and the respective successors in interest and permitted assigns of you and OPM.
21. SEVERABILITY. If any term or provision of these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
22. SURVIVAL. Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of any Production Order.
23. RELATIONSHIP. It is not the intent of the parties hereto to form any partnership or joint venture or for either party to be an agent of the other. OPM shall, in relation to its obligations under these Terms and Conditions act as an independent contractor.
24. INTERPERTATION. For purposes of these Terms and Conditions: (i) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (ii) the word "or" is not exclusive; and (iii) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to these Terms and Conditions as a whole.
25. ENTIRE AGREEMENT. These Terms and Conditions, including any Production Order accepted by OPM, shall constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and shall supersede any prior agreements, negotiations, understandings, representations, statements and writings relating thereto. These Terms and Conditions shall not be amended or modified unless such amendment or modification is made in writing and executed by each party hereto; provided, however, OPM may unilaterally amend these terms and conditions by providing notice to you. You hereby acknowledge and agree that any Production Order submitted by you after your receipt of notice of the amended terms and conditions shall be subject to such amended terms and conditions. These Terms and Conditions shall take precedence over any additional or different terms and conditions furnished by you, to which notice of objection is hereby given. Fulfillment of your order does not constitute acceptance of any of your terms and conditions and does not serve to modify or amend these Terms and Conditions or constitute a waiver thereof.