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Wholesale Terms of Service

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2018 WHOLESALE PRODUCT SUPPLY TERMS AND CONDITIONS

These 2018 WHOLESALE PRODUCT SUPPLY TERMS AND CONDITIONS (these “Terms”) set forth the terms on which BIRDWELL CALIFORNIA!, LLC dba Birdwell Beach Britches, a California limited liability company having its principal offices at 2129 S. Wright Street, Santa Ana, CA 92705 (“Birdwell”) agrees to supply you (“Customer”) with certain Birdwell products (each, a “Product” and, collectively, the “Products”) on a wholesale basis pursuant to certain purchase orders (each, an “Order” and, collectively, “Orders”) submitted by Customer to Birdwell, as further described below.

CUSTOMER MUST READ THESE TERMS CAREFULLY BEFORE SUBMITTING AN ORDER TO BIRDWELL FOR PRODUCTS. CUSTOMER’S SUBMISSION OF AN ORDER TO BIRDWELL CONFIRMS CUSTOMER’S UNCONDITIONAL ACCEPTANCE OF THESE TERMS. IF CUSTOMER DOES NOT FULLY ACCEPT THESE TERMS, CUSTOMER MUST NOT SUBMIT ANY ORDERS TO BIRDWELL, AND BIRDWELL SHALL HAVE NO OBLIGATION TO SUPPLY CUSTOMER WITH PRODUCTS.

THESE TERMS CONTAIN (A) A BINDING ARBITRATION PROVISION, WHICH INCLUDES A WAIVER OF CUSTOMER’S RIGHT TO BRING CLAIMS AS CLASS ACTIONS; AND (B) THE RIGHT FOR CUSTOMER TO OPT OUT OF THE FOREGOING PROVISIONS. SEE SECTION 5.R. OF THESE TERMS, BELOW, FOR DETAILS ON THESE PROVISIONS.

Birdwell may, in its sole discretion, modify these Terms at any time. Birdwell will inform Customer of any material modifications to these Terms by (a) posting notice thereof on the applicable Birdwell wholesale website where these Terms are contained (the “Birdwell Wholesale Portal”); and/or (b) providing notice thereof to Customer at the Customer email address provided by Customer to Birdwell in connection with the ordering process described in Section 4 of these Terms, below. Customer’s continued submission to Birdwell of Orders for Products after any such modification shall be deemed Customer’s acknowledgement and acceptance thereof, and, in such event, the most-recent version of these Terms shall govern Birdwell’s provision to Customer of Products pursuant to such Orders. If Customer does not agree to any such modification of the Terms, Customer must cease submitting Orders to Birdwell for Products.

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1. PRODUCT INFORMATION:

Relevant information about all Products (including, without limitation, current wholesale pricing) can be found at www.birdwell.com and/or on the Birdwell Wholesale Portal.

2. ORDER VOLUME REQUIREMENT:

An individual Order must meet or exceed a total of $700 USD to qualify for wholesale pricing. Orders for single Product units within a category or color, even if minimum Order total is met, are discouraged. Without in any way limiting any remedies available to Birdwell hereunder, at law or in equity, in the event that Birdwell determines (in its sole discretion) at any time that Customer has abused the wholesale pricing discount, Birdwell may terminate or suspend Customer’s wholesale relationship with Birdwell, either upon Birdwell’s provision of written notice to Customer (email notice acceptable) or by no longer accepting Orders from Customer. For all Product categories, Customer is encouraged to stock several Product units per color that is ordered. 1 Customer may order less than $700 USD of Products and/or Products that are not offered at wholesale pricing. However, such Product items must be purchased by Customer at full price. If Customer elects to order less than $700 USD of Products and/or Products that are not offered at wholesale pricing, a separate Order must be submitted by Customer to Birdwell directly through www.birdwell.com. Birdwell is unable to combine Product shipments in cases where multiple Orders are submitted in quick succession.

3. PRODUCT AVAILABILITY:

If the Birdwell Wholesale Portal does not have a listing for the Product category / type Customer is interested in ordering, then such Product is not available at wholesale pricing. If such Product has a listing, but a size is not available, then such Product is out of stock and unavailable for purchase. Product prices and Product color availability are subject to change. No preorders. No holds. Payment must be made in full prior to shipment. Orders will be fulfilled on a first come, first serve basis.

4. WHOLESALE PRODUCT ORDERING PROCESS:

  • Customer submits request to place an Order to wholesale@birdwell.com from Customer’s authorized email address. Customer will be required to create an account using such email address, and an associated Birdwell invoice for payment will be sent to such email address.
  • Customer will receive an invite via email to create a profile on the Birdwell Wholesale Portal.
  • Customer creates its account. Customer is solely responsible for saving its Birdwell Wholesale Portal password.
  • Customer creates its Order on the Birdwell Wholesale Portal.
  • Customer follows the steps detailed on the Birdwell Wholesale Portal and submits its Order for Birdwell’s review and acceptance (as further set forth in Section 5.A. of these Terms, below). Please allow a minimum of two (2) business days for Birdwell to complete its Order review process.
  • If such Order is accepted, Customer will receive an invoice via email with respect to which Customer will complete billing and shipping information.
  • Subject to these Terms (including, without limitation, Section 5.C., below), once such invoice is paid in full by Customer, Birdwell will ship the Products set forth in the Birdwell-accepted Order in accordance with Sections 5.A. and 5.C. of these Terms, below.
  • Except as otherwise expressly set forth herein, Orders not placed in accordance with the process set forth in this Section 4 of these Terms will not be accepted.

5. ADDITIONAL TERMS AND CONDITIONS:

  • Order Review and Acceptance. Subject to these Terms, Birdwell shall deliver the Products purchased (and fully paid for) by Customer pursuant to Orders issued by Customer (in accordance with the above-described wholesale Product ordering process) and accepted by Birdwell in accordance with this Section 5.A. Each Order must be submitted by Customer in accordance with the above-described wholesale Product ordering process and include, without limitation, the quantity of each Product category / type desired. Birdwell shall accept or reject each such Order by notice (accepted Orders are signified as such pursuant to Section 4.F. of these Terms, above; email acceptable for rejected Orders) to Customer within a commercially reasonable time after Birdwell’s receipt of such Order; provided that if no such notice is received by Customer, Birdwell shall be deemed to have rejected such Order. No Order is binding on Birdwell unless accepted by Birdwell as provided herein, and Birdwell reserves the right to reject any Order and allow/disallow sale of any Product at any point in time. After acceptance of any Order, Birdwell shall provide Customer with an estimated delivery date based upon the shipping method selected by Customer in connection with such Order. Birdwell shall use commercially reasonable efforts to cause the delivery of all Products on or before such delivery date, but any time quoted for delivery is an estimate only.
  • Cancellation of Orders. In addition to, and without in any way limiting, any other terms set forth herein, Birdwell may, without liability or penalty, cancel any Order submitted by Customer and accepted by Birdwell, in whole or in part, if Birdwell (i) discontinues its sale of Products or reduces or allocates its inventory of Products; or (ii) determines that Customer is in violation of its payment obligations under, or otherwise is in material breach of, these Terms at the time of cancellation.
  • Delivery, Title and Risk of Loss. Birdwell may, without liability or penalty, make partial shipments of Products to Customer. Each shipment constitutes a separate sale, and Customer shall pay for the Product units shipped pursuant to the payment terms contemplated by Section 4 of these Terms, above, whether the shipment is in whole or partial fulfillment of an Order. Products shall be picked up by a common carrier (to be specified by Birdwell) from Birdwell’s designated location (as specified by Birdwell from time to time) (the “Delivery Location”), which may be Birdwell’s designated warehouse facility or applicable co-manufacturer’s production facility. All deliveries of Products shall be made EXW (Incoterms 2010) Delivery Location. Risk of loss for Products shall pass to Customer upon delivery to the Delivery Location, at which point Birdwell shall be deemed to have completed good delivery to Customer. Transfer of title shall pass to Customer upon such common carrier’s pickup of the applicable Products at the Delivery Location. Customer shall be solely responsible for all duties, taxes, costs and procedures, and compliance with applicable international, national, state, local, or other industry or governmental authority laws, regulations, ordinances, orders (including executive orders), statutes, standards, rules, treaties, and other requirements (“Applicable Law”) associated with the domestic or foreign shipment of Products.
  • Prohibited Acts. Customer shall not, and shall not permit any of its affiliates, officers, directors, employees, agents or representatives to, and shall not authorize any third party to: (i) make any representations, warranties, guarantees, indemnities, similar claims, or other commitments (a) actually or ostensibly on behalf of Birdwell, or (b) to any customer of Customer regarding the Products that are additional to or inconsistent with these Terms or any written Product-related documentation provided by Birdwell to Customer; (ii) engage in any unfair, competitive, misleading, or deceptive practices respecting Birdwell or the Products; or (iii) resell any Products purchased by Customer hereunder in any digital / online channel (e.g., via Customer’s website(s)) without Birdwell’s prior written consent in each instance.
  • MAP Policy. Customer acknowledges that the advertising of Products is subject to Birdwell’s Minimum Advertised Price (“MAP”) Policy, which is set forth on www.birdwell.com and/or on the Birdwell Wholesale Portal and is incorporated herein by this reference.
  • Confidentiality.
    • All information furnished to Customer by Birdwell and/or its designated representatives, whether orally or by means of written material, including, without limitation, plans, specifications, financial or business data or projections, or any other forms of business information (the “Confidential Information”): (a) shall be deemed proprietary to Birdwell and shall be held by Customer in strict confidence; (b) shall not be disclosed or revealed or shared with any other person or entity except those individuals or entities specifically authorized by Birdwell in writing, advance; and (c) shall not be used other than for purposes of, and in connection with, Customer’s performance under these Terms.
    • All Confidential Information and other written material provided to Customer by Birdwell and/or its designated representatives hereunder shall be and at all times remain the exclusive property of Birdwell. All Confidential Information and other written material provided to Customer by Birdwell and/or its designated representatives hereunder, and any copies thereof, shall be promptly returned or destroyed (as specified by Birdwell) upon request of any designated representative of Birdwell, and in any event shall be returned or destroyed (as specified by Birdwell) within thirty (30) days after the effective date of expiration or termination of Customer’s wholesale relationship with Birdwell pursuant to these Terms.
    • If Customer should receive any legal request or process in any form seeking disclosure of, or if Customer should be advised by counsel of any obligation to disclose, Confidential Information, Customer shall provide Birdwell with prompt prior notice of such request or advice (email acceptable) so that Birdwell may seek a protective order or pursue other appropriate remedies to protect the confidentiality of the Confidential Information. If such protective order or other remedy is not obtained, Customer agrees to furnish only that portion of the Confidential Information which is legally required to be furnished and, in connection with Birdwell, to use all reasonable efforts to assure that the information is maintained in confidence by the party to whom it is furnished.
    • In the event of breach of any of the provisions of this Section 5.E. by Customer, Birdwell shall be entitled to seek equitable relief, including in the form of injunctions and orders for specific performance, in addition to all other remedies available at law or in equity.
  • Mutual Representations and Warranties. Each party represents, warrants, and covenants to the other party that: (i) it is an entity duly incorporated or organized, validly existing, and in good standing in the jurisdiction of its organization/incorporation; (ii) it has all requisite power and authority to execute, deliver, and perform its obligations under these Terms; and (iii) the execution and performance of these Terms will not violate or constitute a breach of any agreement binding upon such party.
  • Disclaimers. THE FOREGOING WARRANTIES BY BIRDWELL ARE IN LIEU OF, AND BIRDWELL HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
  • ndemnification. Customer shall indemnify, defend and hold harmless Birdwell, its affiliates and its and their respective directors, officers, partners, principals, members, employees, agents, and representatives from and against all losses, costs, expenses, liabilities, damages, fines, or penalties, including court costs, reasonable attorneys’ and professionals’ fees and expenses and other litigation or settlement expenses (collectively “Losses”) sustained or incurred as a result of any claim, demand, or action (a “Claim”) made by a third party to the extent arising from (i) Customer’s breach (or alleged breach) of these Terms; (ii) Customer’s acts or omissions in connection with these Terms; (iii) Customer’s use of any Products purchased by, and delivered to, Customer hereunder; and/or (iv) Customer’s violation of Applicable Law in connection with these Terms; but, in any event, excluding any third party Claims and Losses to the extent caused by Birdwell’s breach of these Terms and/or the grossly negligent acts or omissions or willful misconduct of Birdwell in connection herewith.
  • Limitation of Liability. (i) IN NO EVENT SHALL BIRDWELL BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOST REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT BIRDWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE; AND (ii) IN NO EVENT SHALL BIRDWELL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO BIRDWELL HEREUNDER.
  • Force Majeure. Birdwell shall not be liable to Customer if and to the extent Birdwell’s performance hereunder is delayed or prevented by accident, fire, flood, lightning or other acts of God, or for delay or failure in performance when Birdwell’s supplies or facilities of production, manufacture, transportation, or distribution, which otherwise would be available, are impaired through compliance with the order of any governmental authority or acting authority, or when such delay or failure is due to any cause whatsoever reasonably beyond Birdwell’s control, whether or not similar to the causes herein enumerated.
  • Entire Agreement; Controlling Provisions. These Terms, together with any Orders, constitutes the entire agreement between Birdwell and Customer relating to the subject matter hereof. All prior or contemporaneous agreements, whether written or oral, between the parties or their agents and representatives relating to the subject hereof are merged into these Terms. Any preprinted terms and conditions set forth on any Order or in any quotation or order acknowledgement shall not be incorporated into these Terms or be construed to modify, amend, or alter the provisions of these Terms. In the event of a conflict between these Terms and any Order, these Terms shall govern.
  • Third-Party Beneficiaries; Exercise of Rights and Obligations. Nothing expressed or referred to in these Terms will be construed to give any person or entity other than the parties to these Terms any legal or equitable right, remedy or claim under or with respect to these Terms or any provision hereof, except such rights as shall inure to an indemnified party hereunder or to a successor or permitted assignee pursuant to the terms hereof. Notwithstanding anything in these Terms to the contrary, Birdwell, at its option, may exercise any of its rights or remedies under these Terms and/or perform any of its duties or obligations hereunder by itself or through any of its affiliates or contractors, including, without limitation, any contract manufacturer or shipper in conformity with the provisions of these Terms.
  • No Waivers. No delay in exercising, or failure to exercise, a right or remedy hereunder shall impair that or any other right or remedy or be construed as a waiver of any such right or remedy.
  • No Joint Venture. Nothing contained in these Terms shall be deemed or construed as creating a joint venture or partnership between the parties. Neither party shall have the power to control the activities or operations of the other party, and their status is, and at all times shall continue to be, that of independent contractors with respect to each other. Neither party shall hold itself out as having authority or relationship in contravention of this Section.
  • Severability. If any provision of these Terms is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not). If an unenforceable provision is modified or disregarded in accordance with this Section, the rest of these Terms are to remain in effect as written, and the unenforceable provision is to remain as written in any circumstances other than those in which the provision is held to be unenforceable.
  • Applicable Law; Jurisdiction. These Terms shall be governed by and construed according to the internal laws of the State of California (other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of California), including, without limitation, in connection with the arbitration of any dispute or Claim arising out of or relating to these Terms pursuant to Section 5.R. of these Terms, below. Subject to Section 5.R. of these Terms, below, any litigation under these Terms shall be brought and maintained in the appropriate courts in Orange County, California, and the parties consent to personal jurisdiction in the State of California.
  • Arbitration. Birdwell and Customer agree to arbitrate disputes and Claims arising out of or relating to these Terms or any other subject matter under these Terms.
    • The arbitration shall be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and the arbitration shall be administered by the AAA; provided, however, that the arbitrator(s) shall be knowledgeable in industry standards and practices and the matters giving rise to the dispute, that the power of the arbitrator(s) shall be limited to interpreting these Terms as written and that the arbitrator(s) shall state in writing the reasons for the award and the legal and factual conclusions underlying the award. The place of arbitration shall be Orange County, California. The AAA Rules and fee information are available at www.adr.org, by calling the AAA at 1-800- 778-7879. THESE TERMS MEMORIALIZE A TRANSACTION IN INTERSTATE COMMERCE. THE FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THESE ARBITRATION PROVISIONS.
    • CUSTOMER AGREES THAT, BY ENTERING INTO THESE TERMS, BOTH PARTIES WAIVE THE RIGHT TO A TRIAL BY JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION. BOTH PARTIES AGREE THAT CLAIMS MAY ONLY BE BROUGHT IN SUCH PARTY’S INDIVIDUAL CAPACITY AND NOT ON BEHALF OF, OR AS PART OF, A CLASS ACTION OR REPRESENTATIVE PROCEEDING. If this specific paragraph is found to be unenforceable, then the entirety of the arbitration provisions set forth in these Terms shall be null and void and rendered of no further effect with respect to the specific Claim at issue.
    • Any arbitration award over $75,000 may be appealed to a three-person panel appointed by the same arbitration institution that rendered the original award. Any such appeal must be filed within thirty (30) days and the appeal will be decided, based on that institution’s appeal rules, within one hundred twenty (120) days of filing. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which may exist under the Federal Arbitration Act. The parties may agree that arbitration will be conducted solely on the basis of the documents submitted to the arbitrator(s), via a telephonic hearing, or by an in-person hearing as established by AAA Rules. The parties agree that the arbitrator(s) must give effect to the provisions of these Terms.
    • Customer may opt out of the arbitration provisions set forth in these Terms. If Customer does so, neither Customer nor Birdwell may require the other to participate in an arbitration proceeding. To opt out, Customer must notify Birdwell in writing at the address set forth below within thirty (30) days of the date that Customer first became subject to this arbitration provision.

      BIRDWELL CALIFORNIA!, LLC
      2129 S. Wright Street
      Santa Ana, CA 92705
      Attn: Wholesale Terms Arbitration Opt-out

      Customer’s written notice must include Customer’s name and address, as well as a clear statement that Customer wishes to opt out of the arbitration provisions set forth in these Terms.
    • If the prohibition against class action and other Claims brought on behalf of third parties contained in this Section 5.R. is found to be unenforceable, then all of this Section 5.R. will be null and void. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE EVENT SOME OR ALL OF THE ARBITRATION PROVISIONS SET FORTH IN THESE TERMS ARE DETERMINED TO BE UNENFORCEABLE FOR ANY REASON, OR IF A CLAIM IS BROUGHT THAT IS FOUND BY A COURT TO BE EXCLUDED FROM THE SCOPE OF THESE ARBITRATION PROVISIONS, BOTH PARTIES AGREE TO WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY TRIAL BY JURY. For purposes of the foregoing sentence only, in the event such waiver is found to be unenforceable, it shall be severed from these Terms, and rendered null and void and of no further effect without affecting the rest of the arbitration provisions set forth herein.
    • Notwithstanding the mandatory arbitration provisions of these Terms, each of Birdwell and Customer reserve the right to seek and obtain injunctive or other equitable relief necessary to enforce their legal rights, including, without limitation, non-monetary claims associated with these Terms. Birdwell and Customer stipulate and agree that the proper forum for such injunctive or other equitable relief shall be as set forth in Section 5.Q. of these Terms, above, which shall have exclusive jurisdiction over such Claims.

BIRDWELL CALIFORNIA!, LLC dba Birdwell Beach Britches Minimum Advertised
Price Policy
Last Updated January, 2018

BIRDWELL CALIFORNIA!, LLC dba Birdwell Beach Britches (“Birdwell”) has adopted the following minimum advertised price (“MAP”) policy for the advertising of Birdwell products by Birdwell dealers (“Dealers”). As always, the law allows you to sell Birdwell products at any price and through any means you see fit, and this MAP policy should not be construed as an attempt to change that in any way. The purpose of this MAP policy is to announce that Birdwell, in its sole discretion, may elect not to continue to supply products in the future to Dealers who directly or indirectly advertise Birdwell products in contravention of this MAP policy. Birdwell has adopted this policy to strengthen its dealer network, which will allow Birdwell to compete more effectively with other manufacturers.

Attached to this MAP policy you will find a list of the Birdwell products that are covered by this policy. Birdwell’s current minimum advertised retail price also is listed for each product. Birdwell reserves the right to modify the listed products and MAP prices and its policies from time to time and will inform you in writing of any changes. This policy applies to products sold over the Internet and through brick and mortar outlets.

The purpose of this policy is to make clear that Birdwell, in its exclusive discretion, may decide not to continue to supply products in the future to any Dealer who advertises the products covered by this MAP policy for sale at prices below the MAP price then in effect for that product.

In addition, Birdwell may, at its discretion, elect not to continue to supply products in the future to Dealers who directly or indirectly:

  • Use a phrase such as “Will Not Be Undersold”, “Guarantees A Lower Price” or “We Will Beat Any Price,” or words to that effect as applicable to Birdwell products, except that general advertising using such phrases does not violate this policy as long as information on Birdwell products in the advertising makes it clear that such discounting does not apply to those Birdwell products;
  • Advertise the sale of Birdwell products pursuant to promotional arrangements involving discounted gift cards, or “cash back” and similar discount programs that provide a discount or rebate when a certain sales threshold is reached, except that general advertising for these and similar promotional programs does not violate this MAP policy so long as information on Birdwell products in the advertising makes it clear that such discounting does not apply to those Birdwell products;
  • Use terms such as “Call”, “New”, “Call for Price”, “Discount”, “Special”, “Sale”, “Negotiate”, and the like when advertising Birdwell products;
  • Leave the price “blank” or do not indicate the suggested retail prices when advertising Birdwell products covered by this policy;
  • Packaging the sale of Birdwell products with other products (whether manufactured by Birdwell or otherwise) that are sold at a discount or provided to the customer for free;
  • Offer a discount on the purchase of any Birdwell product for any type product return or exchange; or
  • Without the written approval of Birdwell, offer Birdwell products for sale through any Internet website or any third-party Internet website, including, but not limited to, auction sites such as eBay and shopping sites such as amazon.com.

Only Dealers who have (a) received written approval (email acceptable) from Birdwell and (b) agreed to Birdwell’s 2018 Wholesale Product Supply Terms and Conditions (the “Terms”), are authorized to advertise, solicit customers for, or sell (subject to the Terms) Birdwell products over the Internet. The Terms contain the requirements for authorized Dealers to sell Birdwell products over the Internet.

Notwithstanding the foregoing, Birdwell in its exclusive discretion may institute a special national or regional promotion through which Birdwell will fund a discount or rebate, or provide free products of Birdwell’s choosing, to those customers who demonstrate or purchase a Birdwell product. In conjunction with any such special promotion, Birdwell Dealers will be permitted to advertise the existence of the special promotional and the specific terms included within it. Advertising for a special promotion established by Birdwell will not violate this policy. Birdwell’s MAP policy will remain in effect during the term of the special promotion, and Dealers will continue to be bound by this policy with respect to all advertising that does not refer expressly to sales of products that are the subject of the special promotion.

For purposes of this MAP policy, “advertising” means any method of distributing information to solicit interest from customers, including ads and promotions placed with television, radio, newspapers, magazines or flyers, as well as advertising or promoting Birdwell products through wholesale catalogues or computer network services (including web pages and other methods of advertising over the Internet). To comply with this policy, the MAP price must be listed next to the featured product in all advertising.

The laws of the United States allow you to charge whatever price you feel is appropriate based upon the retail environment and your individual situation. These laws also allow Birdwell to establish, announce and adhere to policies Birdwell feels protect its best interests. If Birdwell determines that Birdwell products have been advertised by you in contravention of this MAP policy, or in any way which Birdwell feels, in Birdwell’s sole discretion, does not serve the best interest of Birdwell, Birdwell may choose to terminate your distribution relationship with Birdwell under the Terms. Birdwell may also automatically cease participation in any cooperative advertising program or other advertising and promotion program with you.

This MAP policy is a Birdwell business policy and no sales associate or representative is authorized to interpret it, waive it, or discuss it. This MAP policy is entirely unilateral. All Dealers are responsible for establishing their own retail prices and are, of course, free to price Birdwell products at whatever price they choose.

BIRDWELL, CALIFORNIA!, LLC dba Birdwell Beach Britches
Attachment to Minimum Advertised Price Policy
Last Updated January, 2018

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