Purchase Order Terms and Conditions

Effective Date: January 1, 2018



The purchase order, together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the “Agreement”), constitutes the entire and exclusive agreement between FGX International Inc. (“FGX”) and the supplier  identified in the purchase order  (the “Supplier”). FGX’s purchase order submission is conditioned on the Supplier’s agreement that any terms different from or in addition to the terms of the purchase order, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing, shall not form a part of the Agreement, even if Supplier conditions its acceptance of the purchase order or the Agreement on FGX’s agreement to such different or additional terms. Supplier’s electronic acceptance, acknowledgement of the purchase order, or commencement of performance constitutes Supplier’s acceptance of these terms and conditions. The Agreement does not constitute a firm offer within the meaning of Section 2-205 of the New York Commercial Code, and may be revoked at any time prior to acceptance.



2.1 “Deliverables” means the materials and goods specified in the Agreement to be delivered on or before the Delivery Date.

2.2 “Delivery Date” means the date(s) specified in the Agreement by which the Supplier must deliver the Work.

2.3 “FGX Materials” means any materials, graphics, designs, specifications, drawings or Intellectual Property Rights, whether owned, licensed or sourced by FGX, provided to Supplier by FGX to be used in association with any Work.

2.4 “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all related improvements; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues now or afterwards in force (including any applicable rights).

2.5 “Preexisting Materials” means any of FGX’s or Supplier’s Intellectual Property Rights or tangible personal property created either before the date of, or outside of, this Agreement.

2.6 “Products” means tangible goods specified in the Agreement for delivery on or before the Delivery Date.

2.7 “Services” means the services the Supplier shall perform for FGX as specified in the Agreement.

2.8 “Subcontractor” means a third party performing Work under an agreement (a “Subcontract”) with the Supplier.

2.9 “Supplier Personnel” means Supplier’s employees, consultants, agents, independent contractors and Subcontractors.

2.10 “Third Party Intellectual Property” means a third party’s Intellectual Property Rights which the Supplier uses or incorporates into the Work.

2.11 “Work” means collectively the Deliverables, Products, and Services specified in the Agreement.



3.1 Supplier shall immediately notify FGX if the Supplier’s timely performance under the purchase order is, or is likely to be, delayed. FGX’s acceptance of Supplier’s notice will not constitute FGX’s waiver of any of Supplier’s obligations.

3.2 If Supplier delivers Work after the Delivery Date, FGX may reject such Work.

3.3 FGX shall hold any Work rejected under this Agreement at Supplier’s risk and expense including without limitation, storage charges and insurance charges FGX incurs on Supplier’s behalf. FGX may, at its sole discretion, destroy or sell at a public or private sale any rejected Work for which FGX does not receive return shipping instructions within a reasonable time, and apply the proceeds, if any, first toward any such expenses.

3.4 In the absence of any provided specifications, Supplier shall preserve, pack, package, and handle the Deliverables and Products so as to protect the Deliverables and Products from loss or damage and in accordance with best commercial practices. Additionally, Supplier shall observe the requirements under any local laws and regulations relating to hazardous work, including, without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage and disposal.

3.5 Supplier shall include with each Deliverables and Products delivery a packing list identifying the purchase order number, the FGX part number for each of the Products (if applicable), a description and the quantity of each of the Deliverables and Products, and the shipment date.

3.6 Unless FGX expressly instructs otherwise, Supplier will deliver all Work to the delivery point specified by FGX. Seller assumes responsibility for all shipping and delivery charges to the delivery point including, without limitation, customs, duties, costs, taxes, and insurance. Risk of loss for the Deliverables and Products does not pass to FGX until acceptance in accordance with Section 6.

3.7 FGX reserves the right to cancel any portion of this order if not filled as specified, and change the scheduled delivery date to the designated F.O.B. location. If the order calls for partial shipment, FGX may suspend future shipments. FGX may cancel all or any portion of this order if the confirmation of delivery dates and quantities is not received within 10 days of the purchase order’s date. FGX may also cancel all or any portion of this order if the Supplier’s confirmed delivery date is not in agreement with FGX’s requested delivery date.

3.8 In the event that any portion of the merchandise covered by this Agreement arrives at the F.O.B. location after the date specified in the purchase order, the Supplier agrees to pay all additional costs required to expedite merchandise in order to achieve the expected arrival date at FGX, including without limitation, air freight and other expedited shipping. In the event the merchandise also misses the expected arrival date at FGX, Supplier agrees to pay FGX a sum equivalent to 1% of the cost of the delayed goods per day for each day beyond the expected arrival date at FGX as well as any resulting damages incurred by FGX, such as, but not limited to, charge backs, cost differences, duty charges and penalties assessed by customers.

3.9 Supplier shall not deliver to the F.O.B. location prior to the specified date unless otherwise notified by FGX. Any deliveries shall be made in accordance with the delivery date specified in the purchase order. In the event that any portion of the merchandise covered by this Agreement arrives more than 3 days prior to the agreed upon delivery date, Supplier agrees to pay FGX a sum equivalent to all, actual or imputed, storage charges incurred for each day prior to the acceptable delivery date specified.



4.1 Unless otherwise specified in the Agreement, the price for the Work includes all taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges. Supplier shall, at FGX’s request, break-out from the price all such taxes and other charges, in its invoices. Supplier shall use its best efforts to assist FGX in all legal efforts to minimize the taxes resulting from the performance of the Agreement.

4.2 FGX will pay Supplier the price in accordance with the payment terms set forth in this Agreement following the later of: (i) the Delivery Date; (ii) the date of FGX’s acceptance of all of the Work; or (iii) FGX’s receipt of a properly prepared invoice. A properly prepared invoice must include the purchase order number and, if required in the Agreement, Supplier’s certification of conformance of the Work to the requirements. Payment will be in U.S. Dollars unless the parties otherwise agree in writing. FGX may at any time set-off any amounts Supplier owes FGX against any amounts FGX owes to Supplier or any of its affiliated companies.

4.3 Supplier agrees that if the price is omitted from the order, its charges will not be higher than the supplier’s lowest prevailing prices on the date of shipment. If the price is omitted from the order, Supplier’s acknowledgment should indicate the price at which the Work will be sold.

4.4 Taxes, if any, shall be shown as a separate item on invoices. FGX reserves the right to issue, in lieu of payment of such tax, a tax exemption certificate acceptable by the federal government.



5.1 Unless otherwise specified in the Agreement and except as provided in Section 5.2, FGX is the sole and exclusive owner of all Deliverables and Supplier hereby irrevocably assigns and transfers to FGX all of its worldwide right and title to, and interest in, the Deliverables, including all associated Intellectual Property Rights other than Preexisting Materials and Third Party Intellectual Property.

5.2 Unless otherwise specified in the Agreement, each party owns all right, title, and interest in and to any of its Preexisting Materials. Supplier hereby grants FGX a perpetual, irrevocable, worldwide, transferrable, royalty-free, nonexclusive license, with the right to sublicense and authorize the granting of sublicenses, to use and reproduce Supplier’s Preexisting Materials in the Deliverables to the extent necessary for FGX’s exercise and exploitation of its rights in the Deliverables.

5.3 Unless otherwise specified in the Agreement, Supplier hereby grants to FGX a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, transferable, sub-license to use all Third Party Intellectual Property Rights incorporated into, required to use, or delivered with the Work. Supplier will deliver copies of the above releases and licenses to FGX upon FGX’s request.

5.4 All tools, dies, moulds, jigs, and fixtures furnished, paid for, or charged against FGX or which have had their cost amortized will be delivered to FGX F.O.B. the Supplier’s plant immediately upon request. Supplier warrants that said dies, tools, moulds, jigs, or fixtures, will not be used for any work or for producing any material or parts other than for FGX without its written permission.



6.1 FGX may reject any or all Work not conforming to the applicable requirements. At FGX’s option, and Supplier’s cost, FGX may (i) return the nonconforming Work to Supplier for a refund or credit; (ii) require Supplier to replace the non-conforming Work; or (iii) repair the non-conforming Work so that it meets the requirements. As an alternative to (i) through (iii), FGX may accept the non-conforming Work conditioned on Supplier providing a refund or credit in an amount FGX reasonably determines represents the diminished value of the non-conforming Work. FGX’s payment to Supplier for the Work prior to FGX’s timely rejection of such Work as non-conforming does not constitute FGX’s acceptance. Supplier agrees to pay FGX for any resulting damages incurred by FGX as a result of any non-conformance, such as, but not limited to, charge backs, cost differences, duty charges and penalties assessed by customers.

6.2 FGX will not accept overshipments except where FGX gave written permission before shipment.



7.1 As used in this Section 7, “Change” means a change FGX directed or caused within this Agreement’s general scope.

7.2 FGX, by written order (“Change Order”), may make Changes in accordance with this Section 7.

7.3 Supplier shall within 5 calendar days of receiving a Change Order, submit a request for equitable adjustment, if any, specifying the adjustment in the price or time for performance resulting from the Change.

7.4 The parties shall negotiate an amendment to the Agreement or the applicable purchase order to incorporate a Change Order providing for an equitable adjustment to the price, time for performance, or both.

7.6 Supplier shall proceed with the Changed Order as directed, notwithstanding that the parties have not negotiated the amendment to this Agreement or the applicable purchase order to incorporate the equitable adjustment.



8.1 Supplier represents and warrants that:

(i) it has the full power to enter into this Agreement and to perform its obligations under this Agreement;

(ii) it has the right and unrestricted ability to assign the Work, including ownership, to FGX including, without limitation, the right to assign any Work performed by Supplier  Personnel and Subcontractors;

(iii) except for any FGX Materials, the Work, and FGX’s use of the Work, do not and will not infringe upon any Third Party Intellectual Property rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory, or common law;

(iv) Supplier shall not disclose to FGX, bring into FGX’s premises, or induce FGX to use any confidential or proprietary information belonging to anyone other than FGX or Supplier which is not covered by a non-disclosure agreement between FGX and Supplier;

(v) the Work will conform to the specifications, drawings, samples, or other description furnished or adopted by FGX and will be of good material and workmanship and free from defects and be fit and sufficient for the purpose intended;

(vi) the Supplier will comply with all policies, standards, guidelines, regulations, and other directives issued by FGX from time to time;

(vii) it will not use or disclose any information that may identify an individual (“Personal Data”) that is processed for or on behalf of FGX, except to the extent necessary to perform under the purchase order; and

(viii) The Work and FGX’s use of the work is not, and will not be, subject to any liens or encumbrances. All materials used in connection with the Work will be of the highest standard reasonably suitable for similar goods of the type of Work. The Work will comply with all applicable government rules and laws, guidelines, codes, regulations, and warranties (express or implied) including, without limitation, those contained in the United States. Supplier follows reasonable and proper procedures for testing such that the work complies with the aforementioned applicable governmental rules.

8.2 The representations and warranties made by Supplier under this Agreement shall run to FGX, FGX’s affiliates and to FGX’s customers and users of the Work.

8.3 FGX warrants and represents to Supplier that it has the full power to enter into this Agreement and to perform its obligations under this Agreement.




9.1 Supplier may not assign any of its rights or delegate any of its obligations under this Agreement without FGX’s prior written consent. FGX may, at its option, void any attempted assignment or delegation undertaken by Supplier without FGX’s prior written consent.

9.2 Supplier may not subcontract any of its rights or obligations under this Agreement  without FGX’s prior written consent. If FGX consents to using a Subcontractor, Supplier shall: (i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify FGX for all damages and costs of any kind, subject to limitations in Section 12 (Indemnification), incurred by FGX or any third party and caused by the acts and omissions of Supplier’s Subcontractors’ and (iii) make all payments to its Subcontractors. If Supplier fails to timely pay a Subcontractor for work performed, FGXI will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify, and hold FGX harmless for all damages and costs of any kind, without limitation, incurred by FGX and caused by Supplier’s failure to pay a Subcontractor.

9.3 To the extent allowed by applicable law, no person who is not a party to the Agreement shall be entitled to enforce or take the benefit of any of its terms whether as a result of applicable legislation, custom, or otherwise.



10.1 The Agreement shall remain in effect until either the Agreement is terminated or the Work is completed and accepted.

10.2 FGX may terminate this Agreement at any time, for no reason or for any reason, upon 15 days written notice to Supplier. Upon receiving such termination notice, Supplier shall inform FGX regarding the extent to which it completed performance as of the date of notice, and supplier will collect and deliver to FGX whatever Work then exists, unless otherwise agreed to by the parties. FGX will pay Supplier for all Work performed and accepted through the effective date of the termination, provided that FGX will not be obligated to pay any more than the payment that would have become due had Supplier completed and FGX had accepted the Work. FGX will have no further payment obligation in connection with any termination.

10.3 FGX may immediately terminate this Agreement upon written notice to Supplier if there is a direct or indirect change in ownership of the Supplier or a sale of substantially all of the assets of the Supplier.

10.4 FGX may terminate this Agreement, immediately by delivering written notice to the Supplier upon the occurrence of any of the following events: (i) a receiver is appointed for Supplier or its property; (ii) Supplier makes a general assignment for the benefit of its creditors; (iii) Supplier commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, if such proceedings are not dismissed within 60 days; or (iv) Supplier liquidates, dissolves, or ceases to do business in the ordinary course.

10.5 FGX may terminate this Agreement immediately by delivering written notice to Supplier for any material breach not cured within 30 days of receiving notice of the breach. FGX shall have no further payment obligation to Suppler under any terminated Agreement if FGX terminates the Agreement under this Section 10.5.

10.6 Any obligations or duties which, by their nature, extend beyond this Agreement’s expiration or termination shall survive the expiration or termination of the Agreement.



11.1 Confidential Information (“Confidential Information”) shall mean all information (i) marked as confidential at the time FGX discloses it; or (ii) unmarked but treated as confidential at the time of FGX’s disclosure; or (iii) disclosed, whether inadvertently or not, whether by direct or indirect oral or written communication or mistake, to the Supplier and the Supplier knows or has reason to know such information is FGX’s confidential, trade secret, or proprietary information.

11.2 Supplier shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to Supplier’s Personnel that have a need to know such Confidential Information, provided that Supplier shall first have entered into a confidentiality agreement with Supplier’s Personnel requiring such individuals to maintain the Confidential Information in confidence and not disclose or use it for any other purpose

11.3 Supplier shall afford Confidential Information the same security and care in handling and storage as the Supplier provides for its own confidential and proprietary information and data. Except as may subsequently be agreed otherwise in writing, the Supplier agrees not to duplicate or otherwise copy and to return immediately at FGX’s request all Confidential Information including, without limitation, any plans, design, documents, or other tangible items (including electronic media) copied or derived from and containing Confidential Information.

11.4 Supplier shall not be liable for use or disclosure of any such Confidential Information that: (i) is in the public domain at the time of disclosure or becomes a matter of public knowledge through no fault of the Supplier; or (ii) is known, as demonstrated by written documentation, to the Supplier at the time of disclosure; or (iii) is rightfully received by Supplier from a source other than FGX without a duty of confidentiality; or (iv) is independently developed, separate from the activities undertaken pursuant to this Agreement, and such development can be verified through written documentation.

11.5 In the event that Supplier is confronted with legal action to disclose Confidential Information received under this Agreement, the Supplier shall promptly notify FGX in writing and shall reasonably assist FGX in obtaining a protective order requiring that any portion of the Confidential Information required to be disclosed be used only for the purpose stipulated in a court order, or for such other purposes as required by law.

11.6 The parties shall treat the Agreement’s terms, conditions, and existence as Confidential Information.

11.7 Supplier shall obtain FGX’s written consent prior to any publication, presentation, public announcement, or press release concerning its relationship as a supplier to FGX. Furthermore, Supplier shall not utilize any of FGX’s Intellectual Property Rights in any manner without first obtaining FGX’s prior written approval in each instance.



12.1 As used in this Section 12, a “Claim” is any claim, demand, loss, damage, liability, cost or expense (including professional fees and costs incurred) for which Supplier may be obligated to defend, indemnify, and hold FGX harmless.

12.2 Supplier shall defend, indemnify and hold FGX, its subsidiaries and affiliates, and each of their employees, officers, directors, and agents, harmless from and against any and all Claims as incurred, arising out of or in connection with any (i) act or omission of Supplier (including Subcontractors) in the performance of the Work; (ii) except in connection with any FGX Materials, any infringement of a third party’s Intellectual Property Rights or any other rights, (iii) breach of any representations, warranties, or covenants by Supplier in this Agreement; and (iv) negligent or willful acts or omissions by the Supplier resulting in personal injury (including death) or damage to tangible property.

12.3 If a third party enjoins or interferes with FGX’s use of any Work, then in addition to Supplier’s obligations under Section 12.2, Supplier will use its best efforts to (i) obtain any licenses necessary to permit FGX to continue to use the Work; (ii) replace or modify the Work as necessary to permit FGX to continue using the Work; or if (i) and (ii) are not commercially reasonable, then (iii) promptly refund to FGX the amount paid for any Work for which a third party enjoins or interferes with FGX’s use of the Work.








Supplier will secure and maintain insurance providing coverage for liabilities to third parties for bodily or personal injury and damage to property in amounts sufficient to protect FGX in the event of such injury or damage, and will be in compliance with any and all applicable laws, regulations or orders addressing the employer’s liabilities to its employees for injuries and disease suffered in connection with employment. Supplier further will maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to Supplier in the jurisdiction(s) in which Supplier’s operations take place.



Supplier represents and warrants that it will comply with all applicable local, state, and federal laws and regulations pertaining to its performance of its obligations under this Agreement.

Supplier affirms that it has not and agrees that it will not, in connection with the transactions contemplated by this Agreement or in connection with any other business transactions involving FGX, make or promise to make any payment or transfer anything of value, directly or indirectly, (i) to anyone working in an official capacity for a government entity (including employees of government corporations) or a public international organization; (ii) to any political party, official of a political party or candidate; (iii) to an intermediary for payment to any of the foregoing; (iv) to any officer, director, employee, or representative of any actual or potential FGX customer; (v) to any FGX (or its affiliates) officer, director, or employee; or (vi) to any other person or entity if such payment or transfer would violate the laws of the country in which it is made. It is parties’ intent that no payments or transfers of value shall be made which have the purpose or effect of public or commercial bribery, acceptance of any acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business.

Supplier acknowledges that FGX’s policy and the laws of other countries where applicable, including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act, prohibit, among other things, FGX and anyone acting in its behalf to make or offer payment, promise to pay, or authorize the giving of anything of value to: (i) any officer or employee of, or anyone acting in an official capacity for, a political party, party official or candidate; or (ii) any person, whole knowing or having reason to know that all or a portion thereof will be offered, given, or promised, directly or indirectly, to anyone described in (i) above, for the purpose of: (a) influencing any act or decision by such person in his official capacity, or (b) inducing him to use his influence with a government to affect, either by action or inaction, any act or decision of such government to obtain or retain business for any person.



This Agreement will be construed in accordance with, and all disputes will be governed by, the laws of the State of New York, without regard to its conflict of laws rules. The parties specifically waive application of the UN Convention on Contracts for the International Sale of Goods. Supplier irrevocably consents to the personal jurisdiction of the state and federal courts located in New York County, New York and irrevocably waives any claim it may have that any proceedings brought in such courts have been brought in an inconvenient forum.



17.1 Any notice given under this Agreement will be in writing and addressed to the party at the address stated in the front of the purchase order. Notices will be deemed given and effective (i) if personally delivered, upon delivery; (ii) if sent by an overnight service with tracking capabilities, upon receipt; or (iii) if sent by certified or registered mail, within five days of deposit in the mail.

17.2 If there is a conflict between or among a purchase order, these Purchase Order Terms and Conditions, and any documents attached to and incorporated by reference, the conflict will be resolved as follows:

17.2.1 First, in favor of these Purchase Order Terms and Conditions;

17.2.2 Then, in favor of the purchase order; and

17.2.3 Then, in favor of all other documents attached or incorporated by reference.

Notwithstanding anything to the contrary in the Agreement, if a master agreement covering procurement of the Work described in the Agreement exists between Supplier and FGX, the terms of such master agreement shall prevail over any inconsistent terms included in this Agreement. Furthermore, in the event Supplier is a party to an agreement with any of FGX’s affiliated companies the terms of which may cover FGX, the terms of this Agreement shall prevail as it relates to Work described in this Agreement for FGX.

17.3 If any court of competent jurisdiction holds that any of this Agreement’s provisions are illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the Agreement will not be affected or impaired, and all remaining terms of this Agreement remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties.

17.4 A party’s election not to insist on strict performance of any requirement of this Agreement will not operate or be construed to waive any future omission or breach, or any other provision of the Agreement.

17.5 FGX’s remedies within this Agreement are cumulative and in addition to any other further remedies provided in law or equity. No waiver of a breach of any provision of this contract shall constitute a waiver of any other breach or of such provision.

17.6 This terms and conditions may be amended by FGX at any time.