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1. Acceptance of a purchase order, or shipment of merchandise or performance of work in connection therewith, constitutes Seller’s agreement to: (a) the purchase order, (b) these terms and conditions.

2. Purchaser may utilize purchase orders in writing, by facsimile or by electronic transmission.

3. In the event Seller is unable to deliver any part or all of the merchandise, Seller agrees to notify the Purchaser immediately. Such notice will not limit the remedies available to Purchaser or the liability of Seller for nonperformance.

4. Purchaser or Purchaser’s agent may refuse delivery or return the merchandise F.C.A. Purchaser’s dock for:

A. Shipments (i) made before the earliest ship date or “Not Before Date,” or after the cancel date or “Not After Date,” specified in the purchase order, or (ii) shipped prior to or after the “Delivery Date” specified in the purchase order, time being of the essence of each purchase order;
B. Shipments of less than or in excess of quantities ordered;
C. Merchandise which is not according to sample or which is not specified in the purchase order;
D. Merchandise which has quality or safety defects and/or is recalled for any reason.

Any merchandise sent to Purchaser in excess of the quantities ordered will be subject to and governed by these terms and conditions. Purchaser will take commercially reasonable efforts to return the excess merchandise to Seller. If return of the excess merchandise is refused by Seller or the merchandise is otherwise returned to Purchaser: (1) Purchaser will own such excess merchandise; (2) Purchaser will not owe any purchase price or other amounts for such excess merchandise; and (3) Purchaser may dispose of such excess merchandise in any manner in its sole discretion.

5. All merchandise furnished under any purchase order shall be subject to inspection and testing by representatives of Purchaser, its customers or agents, and may be rejected and returned to Seller at Seller’s cost when found to be defective, or otherwise subject to return as set forth above, at any time prior to resale, or at any time after resale if Purchaser’s customer is allowed a refund or credit. Seller shall keep documentation confirming that merchandise complies with all terms of this purchase order and shall provide such documentation to Purchaser at Purchaser’s request. If a shipment, or any portion of a shipment, is determined by sampling procedures to include merchandise that is defective or otherwise subject to return as set forth above, the entire shipment or portion may be rejected and returned to Seller at Seller’s cost. At the option of the Purchaser in its sole discretion, any rejected or returned merchandise or shipment shall be subject to refund, repair by Purchaser or Seller, or replacement by Seller, at Seller’s cost. Payments for merchandise prior to inspection shall not constitute acceptance and Purchaser reserves the right to hold for Seller or return to Seller, at Seller’s expense, any rejected merchandise.

6. Seller warrants and certifies that the merchandise shipped under any purchase order is fit and safe for the use for which it was manufactured and that said merchandise or the resale thereof by Purchaser does not and will not violate any federal, state/provincial or local laws, regulations, orders or ordinances of the country of origin and the country of destination.

7. Seller warrants and certifies that it does not and will not in violation of applicable law, custom or practice (a) discriminate in hiring on the basis of race, color, national origin, gender, age, religion or sexual orientation or any other basis protected by law, (b) utilize, through its own operation or its supply chain, use in the operation of its business any involuntary labor of any kind including child labor, prison labor, state-sponsored forced labor, indentured or bonded labor, labor obtained through human trafficking, coercion or slavery, labor defined as forced labor under any United States law, or labor defined as forced by the ILO forced labor indicators and accompanying guidance, (c) fail to comply with the Fair Labor Standards Act (United States), if applicable, including posting in the workplace all required posters explaining workers’ rights under applicable wage and hour laws; (d) fail to comply with any applicable wage and hour laws, including those related to minimum wage, overtime, legally mandated benefits, the accurate recording of hours worked, or the use of industrial homework, or (e) participate in any payment or authorization practices in violation of any applicable anti-corruption, anti-bribery or anti-money laundering laws or regulations, including but not limited to the Federal Foreign Corrupt Practices Act (United States) or the Foreign Public Officials Act (Canada).
8. Seller warrants and certifies that the merchandise shipped under any purchase order, including packaging and labeling:

A. was produced and processed in strict compliance with all applicable federal, state/provincial or local laws, regulations, orders, testing requirements, and ordinances of the country of origin and the country of destination, including but not limited to environmental or hazardous substance, labor, trade sanctions, export, import/customs, and wage and hour (including minimum wage and overtime) laws and regulations;
B. does not and will not, and will be produced in a manner that does not and will not, infringe or violate any intellectual property or other proprietary
rights, including without limitation: any patent, trademark, service mark, trade dress, trade name, copyright, trade secret, right of privacy, license, publicity or moral right, or utilize any manufacturing or administrative process that would infringe or violate any such right, and Seller has not received any notification of and has no knowledge of any basis upon which a third party could claim or contest the intellectual property inSeller’s merchandise;
C. is accurately labeled and clearly identifies the country of origin.

9. Confidential Information and Privacy:

A. “Confidential Information” means information, in any format, that Purchaser designates as confidential or that reasonably should be understood to be confidential, proprietary or a trade secret given its nature and circumstances of disclosure. Confidential Information includes, but is not limited to, business and marketing plans, technology and technical information, product plans and designs, research and development activities, business processes, costs, pricing, recipes, formulas, profits, compensation, financial information, and Personal Information as it is defined in this Section.
B. “Personal Information” is a subset of Confidential Information and means any data that identifies or can be used to identify, contact or locate a natural person such as name, address, telephone number or email address.
C. Confidential Information (other than Personal Information) shall not include any information that (i) is or becomes publicly available without Seller’s breach of this Agreement, (ii) was known to Seller prior to its disclosure by Purchaser pursuant to the terms of this Agreement, (iii) Purchaser has approved for release, in writing, or, (iv) which has been independently developed by Seller prior to disclosure by Purchaser to Seller, by personnel having no access to the Confidential Information at the time. In any dispute between the parties with respect to these exclusions the burden of proof shall be on Seller with a standard of clear and convincing evidence.
D. Seller shall (i) only use Confidential Information as necessary to perform its obligations specified in these terms and conditions and to provide the merchandise to Purchaser or individuals as instructed by Purchaser (ii) not disclose Confidential Information to any third party without Purchaser’s prior written consent; and (iii) take security precautions, in the same manner it takes to protect its own confidential information, but in no event less than reasonable care or the measures required by applicable privacy and security laws or industry standards, to safeguard the Confidential Information.

10. Seller represents and warrants that the prices and terms specified in any purchase order are no less favorable to the Purchaser than any prices or terms upon which Seller sells or offers to sell to others goods substantially of the same kind as ordered by Purchaser. If at any time goods substantially of the same kind as ordered by Purchaser are sold or offered for sale by Seller to a third party (or to Purchaser or any affiliate of Purchaser in connection with the same sales event for Purchaser) at lower prices or on terms more favorable than those stated in the purchase order, the prices and terms in the purchase order shall be automatically revised to equal the lowest prices and most favorable terms at which Seller shall have sold or shall have offered such goods and payment shall be made accordingly, or at the option of Purchaser, the merchandise may be returned to Seller, at Seller’s cost, for a full refund of the purchase price. In the event Purchaser shall become entitled to such lower prices, Seller shall notify Purchaser of such lower prices, and if Purchaser shall have made payment at any price in excess thereof, Seller shall promptly refund the difference in price to the Purchaser. Seller agrees to meet any lower price offered by any competitor of Seller for goods substantially of the same kind as ordered by Purchaser or accept cancellation of the purchase order by Purchaser.

11. Purchaser reserves the right to cancel all or any part of any purchase order which has not actually been shipped by Seller in the event Purchaser’s business is interrupted because of strikes, labor disturbances, lockout, riot, hostilities, war, insurrection, civil disorders, national emergencies, embargoes, fire, flood, failure of communication or power supply, pandemic or other public health emergency, natural disasters, act of God, or the public enemy, or any other cause, whether like or unlike the foregoing, if beyond the reasonable efforts of the Purchaser to control. Seller’s timely performance under any purchase order shall not be excused or deemed to have been made impracticable by reason of any delay or failure to perform by Seller or any agent, subcontractor or supplier of Seller, caused by or related to any computer system incompatibility or inability to accurately process date and time data.

12. A waiver of or failure to perform any one or more of the conditions of any purchase order shall not constitute a waiver of or an excuse for nonperformance as to any other part of these terms and conditions or any purchase order.

13. In the event of any proceeding, voluntary or involuntary, in bankruptcy or insolvency by or against the Seller, or in the event of the appointment with or without Seller’s consent of a receiver or an assignee for the benefit of creditors, Purchaser may, at its option, cancel any purchase order as to any undelivered portion of the merchandise.

14. Seller agrees that all merchandise shipped under any purchase order may be advertised and sold by Purchaser (or any of Purchaser’s affiliates) at any retail facilities of Purchaser (or any of Purchaser’s affiliates), or by means of catalogs, the Internet, or any other electronic or other medium.

15. No claim, action or demand arising out of the transactions under any purchase order may be brought by Seller more than one (1) year after the cause of action has accrued.

16. Each purchase order is enforceable by Purchaser directly against Seller, regardless of whether the purchase order was submitted directly to Seller by Purchaser or was submitted to Seller by another party on behalf of Purchaser. No such other party shall have any authority to act for Purchaser, bind Purchaser to any agreements or modifications or otherwise act as agent for Purchaser. Seller shall not assign or transfer any purchase order, or any interest therein, without the prior written consent of Purchaser, and any attempted assignment made without such consent shall be null and void.