TERMS AND CONDITIONS OF SALE

McFarlane Toys is herein referred to as "Seller" and the entity purchasing goods from Seller is herein referred to as "Buyer." These Terms and Conditions and Seller's invoice constitute the complete and exclusive statement of the terms of the agreement governing the sale of goods by Seller to Buyer. Buyer's acceptance of the goods will manifest Buyer's assent to these Terms and Conditions. Seller hereby rejects any additional contrary or inconsistent terms or conditions.

1. Prices. All prices are subject to change. Seller reserves the right to ship goods at the price in effect at the date of shipment. All prices are exclusive of taxes, transportation and insurance, which are to be borne by Buyer. Any current or future tax or governmental charge (or increase in same) affecting Seller's costs of production, sale, or delivery or shipment, or which Seller is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, use or consumption of goods, shall be for Buyer's account.

2. Minimum Purchase. The minimum quantity requirement set forth herein applies to all qualified current year purchase orders. The annual opening order shall be no less than 120 cases; either 20 cases per assortment, at a minimum of 6 assortments, or 10 cases per assortment at a minimum of 12 assortments.

3. Purchase Orders. All purchase orders must be in writing. Faxed purchase orders are acceptable with Buyer's authorized signature. All purchase orders must be for standard carton quantities. All purchase orders and invoices shall reference items sold, not dozens or cartons sold. All purchase orders are subject to acceptance at Seller's main office at 1711 West Greentree Drive, Tempe Arizona. Seller reserves the right in its sole discretion to refuse purchase orders.

4. Payment of Invoices. All invoices are due and payable in U.S. currency on the date indicated on each invoice. All invoices are subject to the terms and conditions set forth herein. Seller shall have the right among other remedies, either to terminate this agreement or suspend further performance under this and/or other agreements with Buyer in the event Buyer fails to make any payment when due, which other agreements Buyer hereby amends accordingly. Buyer shall be liable for all expenses, including attorneys' fees, relating to the collection of past due amounts. If any payment owed to Seller is not paid when due, it shall bear interest, at a rate to be determined by Seller, which shall not exceed the maximum rate permitted by law, from the date on which payment is due until it is paid to Seller. Payment of any invoice may not be withheld pending settlement of any claims or adjustments. Credit is extended only to creditworthy customers who continue to remain creditworthy during the period for which credit is extended. Seller reserves the right to revoke or amend any credit terms extended to Buyer, including credit terms extended to Buyer on any goods shipped by Seller to Buyer, if Seller, in its sole discretion, determines that Buyer is no longer creditworthy or that Buyer's ability to pay for goods shipped is or may be impaired for any reason. Seller may demand, at any time, immediate payment in cash of any or all amounts due and owing to Seller or may cancel any purchase order outstanding from Buyer if any change occurs or fact comes to Seller's attention which Seller determines may adversely affect the financial position, business, operations or prospects of Buyer. Seller will be entitled to recover from Buyer any costs or expense, including reasonable attorneys' fees and disbursements, incurred by Seller in enforcing its rights under these Terms and Conditions.

5. Cancellation. With the exception of purchase orders for custom goods, Buyer may cancel purchase orders by written notice to Seller, which such notice must be received by Seller no later than five (5) days prior to the scheduled shipment date for the goods ordered pursuant to such purchase orders, and upon payment to Seller of cancellation charges as determined by Seller, which include, among other things, all costs and expenses incurred and commitments made by the Seller and a reasonable profit thereon. Seller's determination of such termination charges shall be conclusive. Under no circumstances may Buyer cancel a purchase order for custom goods.

6. Freight Policy. All freight, express and delivery charges will be paid as a separate item by Buyer and will not be subject to discounts. Unless otherwise agreed to in writing by Seller, delivery of the goods will be made F.O.B. Seller's shipping point, which shall be either Seller's designated factory or Seller's distribution point, and risk of loss or damage to goods in transit will fall upon the Buyer, whose responsibility it will be to file claims with the carrier for shortages or damages. Seller is not responsible for any damages to the goods sustained in transit from Seller's designated factory or Seller's distribution center to the Buyer. No credit or deduction will be granted for shortages or damages. Seller may, at its discretion, assist Buyer in the filing of such claims. Such assistance will in no event be offered if within 30 days after the date the goods are shipped to the Buyer, Buyer does not provide Seller a legible copy of the carrier's freight bill signed by the carrier's representative, noting the discrepancies, along with a written report certifying that the freight was not received from any other source. Buyer will pay all sales and excise taxes. Partial deliveries will be accepted by Buyer and paid for at the then current price for such delivered items. All delivery dates are approximate and not guaranteed. If the shipment of the goods is postponed or delayed by Buyer for any reason, Buyer shall reimburse Seller for any and all storage costs and other additional expenses resulting therefrom.

7. Excuse of Performance. Seller will not be liable for delays in performance or for non-performance due to: (1) unforeseen circumstances or causes beyond Seller reasonable control; (2) acts of God, acts of Buyer, acts of civil or military authority, priorities, fires, strikes, floods, weather, sabotage, epidemics, quarantine restrictions, war, civil disturbances, riot, delays in transportation or car shortages; (3) Seller's inability to obtain labor, materials, components, or manufacturing facilities; or (4) any other commercial impracticability. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of any of the foregoing, but the balance of the agreement shall otherwise remain unaffected as a result of the foregoing. If Seller determines that its ability to supply the total demand for the goods, or to obtain material used directly or indirectly in the manufacture of the goods, is hindered, limited or made impracticable due to causes set forth above, Seller may allocate its available supply of the goods or such material (without obligation to acquire other supplies of any such goods or material) among its customers on such basis as Seller determines to be equitable without liability for any failure of performance which may result therefrom.

8. Disclaimer of Warranty and Returns. Goods are sold "AS IS." THERE ARE NO WARRANTIES PROVIDED BY SELLER, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE OF THE GOODS HAS BEEN DISCLOSED TO SELLER. Buyer assumes all responsibility for any loss, damage or injury to persons or property arising out of, connected with, or resulting from the use of the goods, either alone or in combination with other products/components. Seller does not accept returns. Buyer will not return defective goods unless explicitly directed to do so in writing by Seller. Buyer will permit Seller' agent to examine the goods at Buyer's premises. Without restricting the scope of the foregoing, if Seller should elect, at its sole discretion, to accept the return of goods, under no circumstances will credit be given for goods that are counter-damaged, shop worn, or damaged in transit.

9. Limitation of Liability. SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER'S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT IN NO EVENT SHALL SELLER'S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. The term "consequential damages" shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use or revenue, cost of capital or loss or damage to property or equipment. The term "liability" shall include, without limitation, any payment, loss or damage (including attorneys' fees and disbursements).

10. Defective Policy. After completing one full year of shipping, Buyer, at Seller's sole discretion, may become eligible for an allowance covering manufacturing defects, inventory markdowns and other miscellaneous costs. Eligibility is determined on a customer-by-customer basis, and is not guaranteed by Seller. If Seller grants Buyer any year-end allowances, in the event of a compromise settlement (either in or out of court) of and indebtedness owed by Buyer to Seller, such year-end allowances will be forfeited and cancelled. If provided by Seller, such an allowance shall not modify, amend or limit any other term or conditions set forth herein, including, without limitation, Sections 9 and 10.

11. Miscellaneous. Assortments of goods shall be determined by Seller. Seller does not guarantee specific goods weighting in any assortment, and reserves the right to alter assortments at any time without prior notification. Seller reserves the right to amend these Terms and Conditions of sale at any time and to perform annual reviews of the Buyer to determine adherence to these Terms and Conditions. These Terms and Conditions may not be altered or modified by Buyer except in a writing signed by Seller. No rights of Buyer hereunder or arising out of these Terms and Conditions may be assigned without the written consent of Seller. Buyer will pay to Seller all costs and expenses, including reasonable attorneys' fees and disbursements, incurred by Seller in collecting payments due from Buyer or in enforcing any of Seller's rights pursuant to these Terms and Conditions. These Terms and Conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of sale of goods to the Buyer. No change, modification, rescission, discharge, abandonment, or waiver of these Terms and Conditions shall be binding upon the Seller unless made in writing and signed on its behalf by a duly authorized representative of Seller. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these Terms and Conditions shall be binding unless hereafter made in writing and signed by the Seller, and no modification or additional terms shall be applicable to this agreement by Seller's receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected by Seller. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction. The validity, performance and all other matters relating to the interpretation and effect of this agreement shall be governed by the law of the state of Arizona without regard to such state's choice of law provisions. BUYER AND SELLER AGREE THAT THE PROPER VENUE FOR ALL ACTIONS ARISING IN CONNECTION HEREWITH SHALL BE ONLY IN ARIZONA AND THE PARTIES AGREE TO SUBMIT TO SUCH JURISDICTION. No action, regardless of form, arising out of transactions relating to this agreement, may be brought by either party more than two (2) years after the cause of action has accrued. The Convention for the International Sales of goods shall not apply to this agreement.

If you do not wish to pursue a direct account at this time, but are still interested in case purchases, please click here for a list of our wholesale distributors. updated November 17th, 2004