Terms and Conditions

THUNDERWEAR APPAREL, INC.’S TERMS AND CONDITIONS

1. Incorporation: These terms and conditions are a part of Thunderwear’s preliminary quote sheet.

2. Pricing: The unit costs in Thunderwear’s preliminary quote sheet reflect the costs of the goods landed in Los Angeles, California, via standard ocean shipment. Express air shipment is available upon Customer’s request at a premium. In addition, the unit costs in Thunderwear’s preliminary quote sheet reflect the goods as constructed at time of quote. Pricing is subject to change if original construction is revised at Customer’s request.

3. Delivery and Availability: Unless otherwise agreed, delivery of the goods is F.O.B. Los Angeles. All delivery dates in Thunderwear’s preliminary quote sheet or Customer’s purchase order are approximate only. Projected availability is subject to change if factory production is impacted or delayed by revisions to construction or delays by Customer in evaluating pre-production samples. Express air shipment is available upon Customer’s request at a premium if those impacts or delays require an expedited delivery.

4. Cancellation: If Customer cancels the order after issuance of a purchase order, Customer agrees to pay Thunderwear its costs incurred in connection with the order up to the date of cancellation, including but not limited to costs of pre-production sampling as well as any raw materials purchased or otherwise customized for the bulk order. If Customer requests that Thunderwear produce a sample of the goods before placement of a bulk order or issuance of a purchase order, and Customer declines to place a bulk order or issue a purchase order after receiving the sample, Customer agrees to pay Thunderwear for its sampling costs on a time and materials basis.

5. Warranty: Thunderwear warrants goods of its own manufacture against defects in materials and workmanship. Customer must give Thunderwear written notice of any alleged defect covered by this warranty within a reasonable period after discovery. Upon timely written notice, Thunderwear will, at its option, either replace the goods covered by this warranty or refund to Customer the purchase price of those goods. This is Thunderwear’s only warranty. Thunderwear expressly disclaims, and Customer waives, all other warranties, whether express or implied, including any warranties of merchantability or fitness for a particular purpose.

6. Limitation of Liability: Thunderwear is not liable for any lost profits, lost sales or consequential, incidental or special damages arising from or in connection with the order, the agreement or the contemplated transactions.

7. Indemnity: If the goods are designed or to be designed by Customer, Customer’s agent or anyone other than Thunderwear, Customer agrees to defend, indemnify and hold Thunderwear harmless from all claims and liabilities arising from or alleging infringement of intellectual property rights.

8. Force Majeure: Thunderwear is not liable for any damages or delays if those damages or delays arise from or are caused by conditions beyond Thunderwear’s control, including but not limited to acts of God, wars, insurrections, riots, strikes, rebellions, lock outs, severe weather, embargo, typhoons, go slows, tidal waves, and acts of government including customs examinations and denials or cancellations of licenses.

9. Contracting Parties: Thunderwear’s contract is with Customer only. No benefits, rights, duties or obligations as to third parties are intended by Thunderwear’s preliminary price quote or Customer’s purchase order.

10. Severability: If any provision of Thunderwear’s preliminary quote sheet, including these terms and conditions, is found to be unenforceable, that provision will be severed and the remaining provisions will continue to be enforceable.

11. Choice of Law: The order is to be interpreted in accordance with and governed by California law. Any legal action filed against Thunderwear in connection with the order must be brought in California.