1 Definitions
1.1 Agreement:
shall mean the agreement between the Customer and Oppo Merchandise Group for the sale, purchase and delivery of Products.
1.2 Customer(s):
shall mean any natural person or business entity with whom Oppo Merchandise Group and its employees deal in the course of its business, including visitors of the Oppo Merchandise Group website.
1.3 Defect(s):
shall mean any substantive defect of a Product in violation of any written specification by Oppo Merchandise Group, as a result of which the Product is not fit for its intended use, at Oppo Merchandise Group’s sole discretion.
1.4 Oppo Merchandise Group: Oppo Merchandise Group USA Inc., a Delaware corporation.
1.4 Party or Parties:
shall mean Oppo Merchandise Group and Customer, individually or collectively.
1.5 Product(s):
shall mean the Oppo Merchandise Group products provided pursuant to the Agreement, including but not limited to suits and apparel.
1.6 Terms:
shall mean these International Terms and Conditions.
2 Applicability
2.1 These Terms apply to all offers of Oppo Merchandise Group and exclusively govern the relationship between Oppo Merchandise Group and Customers, and any Agreement or other agreements between Oppo Merchandise Group and Customers, and any subsequent amendment to any agreement or the Agreement. These Terms shall be applicable even if Oppo Merchandise Group uses third parties to deliver Products.
2.2 No other Terms shall be binding upon Oppo Merchandise Group unless accepted by it in writing.
2.3 Oppo Merchandise Group reserves the right to amend these Terms at any time. New or amended general Terms shall be applicable upon thirty (30) days notice to Customer.
2.4 In case of inconsistencies between the terms of an Agreement and those contained in these Terms, those in the Agreement shall control.
3 Offers, Products, Prices and Taxes
3.1 All offers of Oppo Merchandise Group are non-binding and may be revoked at any time, unless Oppo Merchandise Group stated otherwise in writing. Any amendments made by Oppo Merchandise Group in writing shall entail a new offer, automatically revoking the previous offer. Any amendments by Customer of a Oppo Merchandise Group offer will be deemed a new offer by Customer, which Oppo Merchandise Group may accept or reject in its sole discretion. Offers will only be deemed accepted by Oppo Merchandise Group if it does so in writing.
3.2 Customer hereby understands and accepts that all samples, colors, drawings, models, figures, dimensions, weights or any other specifications for Products are estimates only, although Oppo Merchandise Group will use best efforts to ensure their accuracy. Small deviations, especially in color tones, cannot be deemed a Defect of the Product.
3.3 Product configurations and prices are subject to change at any time, and Oppo Merchandise Group shall at all times be entitled to modify price lists, brochures, printed matter, quotations and other documents.
3.4 All prices are exclusive of, and Customer shall pay, all taxes, duties, levies or fees, or other similar charges imposed on Oppo Merchandise Group or Customer by any taxing authority (other than taxes imposed on Oppo Merchandise Group’s income), related to Customer’s order, unless Customer has provided Oppo Merchandise Group with an appropriate resale or exemption certificate for the delivery location. In case of changes in law such that a tax is levied that is or becomes irrecoverable with a consequent increase to the costs to Oppo Merchandise Group of delivering the Products, whereby and to such an extent Oppo Merchandise Group is entitled to increase its prices accordingly and retro-actively.
3.5 The prices or fees quoted are in USD, or in another currency if stated by Oppo Merchandise Group in writing.
3.6 All Agreements for the delivery of Products shall be treated as separate agreements.
4 Payment
4.1 Where payment is not made within the terms agreed upon by the parties, contractual interest shall be owed at a rate of 1.5% a month, or the highest rate allowed by law, if lower, with effect from the first day following expiration of the payment term referred to in this article; part of a month shall be considered a full month.
4.2 Payments made by Customer shall always be used first to meet all the interest and costs owed and subsequently for the settlement of claims under the Agreement which have remained outstanding for the longest period of time, even when Customer specifies that the payment relates to another claim.
4.3 Customer shall not be entitled to refuse to discharge or to suspend the discharge of its payment obligations on account of an alleged Defect in the Products, or on any other account whatsoever.
4.4 Customer shall be liable for amounts which Oppo Merchandise Group incurs to collect payment, including without limitation, collection agency fees, reasonable attorneys’ fees and arbitration or court costs.
5 Orders, Shipping, and Delivery
All orders are subject to Product availability and Oppo Merchandise Group is entitled to make partial deliveries. Customer is aware that Products are shipped through third party carriers and that delivery times and dates are merely estimates. OPPO MERCHANDISE GROUP CANNOT BE HELD LIABLE FOR ANY DAMAGES BECAUSE OF DELAY IN DELIVERY OF PRODUCTS.
6 Inspection, Acceptance of Products, Returns
6.1 Claims in connection to shortages or errors in shipments, or obvious defects in Products, must be reported in writing to Oppo Merchandise Group within seven (7) business days of receipt of such shipment. If Customer fails to report timely, Oppo Merchandise Group will have no obligation to correct such shipments, unless Customer bears all the expenses thereof.
6.2 In the case of any alleged shortage or Defects, Customer shall allow Oppo Merchandise Group to inspect the Products subject to the alleged defect.
6.3 Notwithstanding the above, Oppo Merchandise Group will have no obligation to replace or repair any Products if the Products have been, washed or chemically cleaned, handled, processed or stored improperly by the Customer, or if the Products have already been processed and or if the Customer has not fully met its obligations under these Terms.
6.4 THE REMEDY FOR ALLEGEDLY DEFECTIVE PRODUCTS IS THE REPLACEMENT OF SUCH PRODUCTS OR PARTS OF SUCH PRODUCTS, AT NO COSTS FOR CUSTOMER, HOWEVER SHIPPING COSTS WILL BE FOR THE ACCOUNT OF CUSTOMER, UNLESS OTHERWISE AGREED UPON BY BOTH PARTIES. ALTERNATIVELY, CUSTOMER MAY CHOOSE TO RECEIVE A CREDIT UP THE PAID LIST PRICE OF THE DEFECTIVE PRODUCT(S) TOWARDS FUTURE PURCHASES.
6.5 Customer may return products within fourteen (14) days of receipt after giving advance written notice to Oppo Merchandise Group, if: (i) it is in new condition, suitable for resale in its undamaged original packaging and with all its original parts and (ii) it has not been used, installed, modified, rebuilt, reconditioned, repaired, altered or damaged. All returns shall be subject to the following deductions: (i) cost of putting items in saleable condition; (ii) transportation charges, if not prepaid; and (iii) handling and restocking charges. Discounted products may not be returned, unless agreed by Oppo Merchandise Group in writing. Custom made products may not be cancelled or returned, and no refund will be made.
7 Intellectual Property Ownership and Right of Use
7.1 All intellectual property rights, e.g., patents, copyrights, trademarks, designs, models, know-how and all proprietary and/or commercial rights and trade secret rights, tools, documentations, etc., in relation to the Products, are owned by Oppo Merchandise Group or its licensor(s). No transfer or other grant of rights is given to Customer, unless explicitly stated in writing. This applies even if Products have been specifically designed, developed or complied for Customer.
7.2 Customer may not, nor may enable and/or allow third parties to copy, display or distribute any Products, without Oppo Merchandise Group’s prior approval.
8 Cancellation, Termination and Suspension of Performance
8.1 Customer may cancel any order at no costs until notice of shipment of the Products has been sent.
8.2 If Customer believes that Oppo Merchandise Group has failed to perform under the Agreement, it must notify Oppo Merchandise Group in writing and allow two (2) weeks for Oppo Merchandise Group to cure if it has failed to perform.
8.3 If Customer fails to make payment of any amount due on the due date or Customer otherwise fails to perform its obligations under the Agreement or these Terms, or if Oppo Merchandise Group reasonably expects that Customer will not fulfill its obligations, Oppo Merchandise Group may in its sole and absolute discretion suspend performance under its Agreement with Customer and/or terminate the Agreement (in whole or part), with immediate effect, without being liable for any damages to Customer.
8.4 Notwithstanding the above and without any obligation to return any prepaid sums, Oppo Merchandise Group may terminate or suspend Oppo Merchandise Group’s delivery of Products at any time: (i) if Customer is in breach of these Terms and/or the Agreement; (ii) if Oppo Merchandise Group reasonably suspects that Customer is using Products to breach the law or infringe third party rights; (iii) if Oppo Merchandise Group reasonably suspects that Customer is trying to unfairly exploit or misuse the complaint policy, or any of Oppo Merchandise Group’s policies; (iv) if Oppo Merchandise Group reasonably suspects that Customer is using Products fraudulently, or that Products provided to Customer are being used by a third party fraudulently; (v) for a force majeure event that continues for more than ten (10) days upon notice; (vi) if Customer fails to pay any amounts due to Oppo Merchandise Group; (vii) if required due to change in laws/regulation by a regulator or authority with a lawful mandate, or by any of Oppo Merchandise Group’s partners; (viii) in respect to a particular Oppo Merchandise Group Product, upon thirty (30) days’ notice if Oppo Merchandise Group decides to cease offering that Product; (ix) and/or (x) Customer is in violation of any applicable laws or regulations.
8.5 Upon suspension and/or termination, all invoiced sums will become immediately due and payable. In the event of suspension of performance by Oppo Merchandise Group, Oppo Merchandise Group may at its sole discretion resell any Products ordered by Customer, at a public or private sale without notice to Customer and without affecting Oppo Merchandise Group’s rights to hold the Customer liable for any loss or damage caused by breach of contract by Customer.
9 Warranty
9.1 Oppo Merchandise Group warrants its Products against errors and defects in materials and workmanship for two (2) months from the date of factual delivery to the end-user/end-customer, or for five (5) months from the date of delivery to Customer, whichever comes first. During the aforementioned warranty period, Oppo Merchandise Group will use its best efforts to repair any Defects as may be found during such period. However, any such problems or malfunctioning encountered in the use of the Products, as arise out of user errors or inexpert use on the part of Customer or third party users, and any problems involving any such Defects as could have been brought to light in the context of the initial inspection as set forth in Section 6.1, or out of any other causes that are not attributable to Oppo Merchandise Group, shall be for Customer’s risk and account.
9.2 Any Products not manufactured by or on behalf of Oppo Merchandise Group, and/or supplied by third parties, but delivered by Oppo Merchandise Group to Customer, is only covered by the warranty provided by the manufacturer and/or supplier, if any, and is not covered by the Oppo Merchandise Group warranty set forth in Section 10.1.
9.3 THE REMEDY FOR ALLEGEDLY DEFECTIVE PRODUCTS HEREUNDER, IS THE REPLACEMENT OF SUCH PRODUCTS OR PARTS OF SUCH PRODUCTS, AT NO COSTS FOR CUSTOMER, HOWEVER SHIPPING COSTS WILL BE FOR THE ACCOUNT OF CUSTOMER, UNLESS OTHERWISE AGREED UPON BY BOTH PARTIES. ALTERNATIVELY, CUSTOMER MAY CHOOSE TO RECEIVE A CREDIT UP THE PAID LIST PRICE OF THE DEFECTIVE PRODUCT(S) TOWARDS FUTURE PURCHASES.
9.4 The warranties hereunder do not cover faults or damages arising from washing or dry cleaning, faulty, careless, or improper treatment, improper storage, unauthorized use or misuse of Products, and improper or defective environmental circumstances, or a failure caused by a product for which Oppo Merchandise Group is not responsible.
9.5 To the maximum extent permitted by applicable law, OPPO MERCHANDISE GROUP, its licensors, third party suppliers, and affiliates hereby disclaim all warranties, conditions, claims or representations with respect to the OPPO MERCHANDISE GROUP Products, whether express, implied or statutory or otherwise, including, but not limited to implied warranties or conditions of merchantability, quality, non-infringement, compatibility or of fitness for a particular purpose. No advice or information, whether oral or written, obtained from OPPO MERCHANDISE GROUP or elsewhere will create any warranty or condition not expressly stated in these Terms.
10 Liability and Limitation of Damages
10.1 Oppo Merchandise Group disclaims any and all responsibility or liability in relation to OPPO MERCHANDISE GROUP’S Products, Neither OPPO MERCHANDISE GROUP nor its officers or affiliates may be held liable whether in contract, warranty, tort (including negligence), or any other form of liability for any claim, damage, or loss, (and CUSTOMER hereby waives any and all such claims or causes of action), arising from or relating to all such Products.
10.2 In no event shall OPPO MERCHANDISE GROUP, its affiliates or its licensors be liable, however caused and whether arising under contract, warranty, tort (including negligence), product liability or any other form of liability, for any indirect, incidental, special, punitive or consequential damages, or any loss of income, business, sales, profits (whether actual or anticipated), loss of or corruption to data, or interruption of business.
10.3 Notwithstanding anything else in this agreement to the contrary, OPPO MERCHANDISE GROUP’S aggregate liability for all claims of any kind shall not exceed the total paid by CUSTOMER for the Products IN CONNECTION TO WHICH THE DAMAGING event occurred.
10.4 The limitations on OPPO MERCHANDISE GROUP’S liability above shall apply whether or not OPPO MERCHANDISE GROUP, its employees, licensors or its affiliates have been advised of the possibility of such losses or damages arising.
11 Indemnification
SUBJECT TO THE LIMITATIONS SET FORTH HEREIN, THE PARTIES AGREE TO INDEMNIFY, DEFEND AND HOLD THE OTHER PARTY, ITS PRESENT AND FUTURE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS BY ANY THIRD PARTY ARISING OUT OF, OR IN CONNECTION WITH THE MATERIAL BREACH OF THE AGREEMENT BY THE INDEMNIFYING PARTY.
12 Severability
If any provision of these Terms, the Agreement or any other agreement between the Parties, is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original meaning of the terms or agreement in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions shall remain in full force and effect.
13 Force Majeure
Oppo Merchandise Group will not be liable for any delay in performing or failure to perform any of its obligations under these Terms or the Agreement caused by events beyond its reasonable control. Oppo Merchandise Group will notify Customer promptly in writing of the reasons for the delay or stoppage (and the likely duration) and will take all reasonable steps to overcome the delay or stoppage.
14 Assignment
Customer is not permitted to assign, delegate or otherwise transfer the Agreement or any rights hereunder. Any such attempted assignment, delegation or transfer will be null and void. Oppo Merchandise Group is permitted at its sole discretion to assign the Agreement or any rights or obligations hereunder to any third party, without giving prior notice.
15 Entire Agreement
The Agreement and these Terms contain the entire agreement between Oppo Merchandise Group and Customer regarding Customer’s purchase of the Products, and supersedes and replaces any previous communications, representations or agreements, or Customer’s additional or inconsistent terms, whether oral or written.
16 No Waiver
The failure to exercise, or delay in exercising, a right, power or remedy provided by the Agreement or these Terms or by law shall not constitute a waiver of that right, power or remedy. If Oppo Merchandise Group waives a breach of any provision of these Terms or the Agreement, this shall not operate as a waiver of a subsequent breach or that provision or as a waiver of a breach of any other provision.
17 No Beneficiaries
Any agreement between the Parties is for the sole benefit of the Parties thereto and, except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person, other than the Parties thereto, any legal or equitable rights thereunder.
18 Governing Law and Arbitration
Unless stated otherwise in writing, any and all agreements between the Parties shall be governed by and construed in accordance with the laws of the State of New York, notwithstanding conflict of law principles, and without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods. All disputes and controversies arising out of or relating to these Terms or the relationship of the Parties shall be finally and bindingly resolved under the International Arbitration Rules of the American Arbitration Association in front of a sole arbitrator. The place of arbitration shall be New York, New York. The language of the arbitration shall be English. Any award, verdict or settlement issued under such arbitration may be entered by any party for order of enforcement by any court of competent jurisdiction. ANY CAUSE OF ACTION AGAINST OPPO MERCHANDISE GROUP, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.