HUMANGEAR, INC. ("SELLER")
TERMS AND CONDITIONS OF SALE
1. ACCEPTANCE OF TERMS AND CONDITIONS. SELLER’S ACCEPTANCE OF BUYER’S ORDER IS EXPRESSLY LIMITED TO, AND MADE CONDITIONAL UPON, THE TERMS AND CONDITIONS CONTAINED HEREIN. BUYER’S ACCEPTANCE OF PRODUCTS DELIVERED BY SELLER WILL BE DEEMED TO BE BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS. ANY OF THE BUYER'S TERMS AND CONDITIONS THAT ARE IN ADDITION TO, OR DIFFERENT FROM, THOSE CONTAINED HEREIN WHICH ARE NOT SEPARATELY AND SPECIFICALLY AGREED TO IN WRITING, ARE HEREBY OBJECTED TO AND WILL BE OF NO EFFECT.
Only those orders accepted by Seller at its home office at 636 Shrader Street, San Francisco, CA 94117 will be binding upon Seller.
2. PRICES. Irrespective of any prices quoted by Seller or listed on Buyer's order, Seller's acceptance of any order is subject to the prices shown on Seller’s current price list, Seller’s order confirmation, proforma invoice, or commercial invoice. Said prices are firm and are not subject to adjustment.
3. TAXES. All prices are exclusive of all federal, state and local excise, sales, use and similar taxes. Such taxes will be paid by Buyer, or in lieu thereof, Buyer will provide Seller with a tax exemption certificate acceptable to the taxing authorities. When applicable, such taxes will appear as separate additional items on the invoice unless Seller receives a proper tax-exemption certificate from Buyer prior to shipment.
4. PAYMENT. Unless seller has extended credit to Buyer as described below, Buyer will pay Seller, at Seller's option, either by: Cash with Order, C.O.D., bank check, company check, or bank wire transfer.
Should Seller elect to extend credit to Buyer, payment must be received in full within thirty (30) calendar days (or other net terms granted) of the date of Seller's invoice or the date goods have been shipped to Buyer, whichever comes sooner. Seller reserves the right at any time to change the amount of or to withdraw any credit extended to Buyer.
Any payments received by Seller after thirty (30) calendar days may be subject to late charges of 5% per month, or fraction thereof, of the net amount due until all amounts due are paid in full. Buyer agrees to pay attorneys’ fees, management fees, and all costs and expenses of collection in the event of legal/or collection action.
5. TITLE AND DELIVERY. Seller will deliver products sold hereunder to Buyer F.O.B. Seller's factory or warehouse. Partial deliveries will be permitted. Upon such delivery to a carrier at Seller's factory, title to the products and all risk of loss or damage will pass to Buyer.
6. SHIPMENT. All shipping charges, expenses and insurance (if any) will be paid by Buyer.
Shipments will be made, at Seller's option, by Buyer’s requested shipment means, by Parcel Post, Railway Express, Air Express, Air Freight, or as otherwise determined by Seller.
Shipping dates are approximate and are dependent upon Seller's prompt receipt of all necessary information from Buyer.
a) By Seller. Seller will indemnify, defend, and hold harmless Buyer from and against, and shall compensate and reimburse Buyer for, any Damages (as defined and otherwise limited below) that are directly or indirectly suffered or incurred by Buyer as a result of, or are directly or indirectly connected with, any proceeding asserting the infringement of a valid United States patent, provided however, that the Seller will not be obligated to indemnify Buyer: (1) if the Seller can demonstrate that Buyer acted in bad faith and in a manner Buyer could not reasonably have believed to be in or not opposed to the best interests of the Seller; or (2) in an action by or in the right of the Seller. “Damages” shall include any loss, damage, injury, liability, claim, demand, settlement, judgment, award, fine, penalty, tax, fee (including any legal fee, expert fee, accounting fee or advisory fee), charge, cost (including any cost of investigation) or expense of any nature, but in no event shall such Damages exceed the amount of any value or other consideration paid by the Buyer to the Seller in the context of the transaction that gave rise to these indemnification provisions.
b) Notice/Cooperation by Buyer. Buyer shall, as a condition precedent to its right to be indemnified hereunder, give the Seller notice in writing within thirty (30) days of any claim made against Buyer for which indemnification will or could be sought hereunder. Notice to the Seller shall be directed at the address shown above (or such other address as the Seller shall designate in writing to Buyer). In addition, Buyer shall give the Seller such information and cooperation that the Seller requires and as shall be within Buyer’s power or control. Failure of the Buyer to provide the Seller with such information and cooperation that the Seller requires shall be grounds for cancellation of the indemnification provision of Section 7(a) above.
c) Selection of Counsel. In the event the Buyer seeks to invoke indemnification by the Seller under Section 7 (a), the Seller, if appropriate, shall be entitled to assume the defense of such proceeding, with counsel selected by the Seller. Should the Seller elect its rights under this Section 7 (c), the Seller shall provide written notice to the Buyer and after delivery of such notice, the Seller will not be liable to Buyer hereunder for any fees of counsel subsequently incurred by Buyer with respect to the same proceeding.
d) No Primacy of Indemnification. Should the Buyer have certain rights to indemnification, advancement of expenses and/or insurance provided by one or more other source (each a “Other Source”), the provisions of this Section 7 shall not invoke, give rise to, or otherwise suggest that the Seller is the indemnitor of first resort (i.e., its obligations to Buyer are primary and any obligation of the Other Sources to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Buyer are secondary).
e) Partial Indemnification. If Buyer is entitled under any provision of this Section 7 to indemnification by the Seller for some or a portion of the expenses, judgments, fines or penalties actually or reasonably incurred by him in the investigation, defense, appeal or settlement of any proceeding, but not, however, for the total amount thereof, the Seller shall nevertheless indemnify Buyer for the portion of such expenses, judgments, fines or penalties to which Buyer is entitled.
f) Exceptions. Any other provision herein to the contrary notwithstanding, the Seller shall not be obligated pursuant to the terms of this Section 7 to indemnify Buyer or to advance expenses in connection with any claim made against Buyer:
(i) Excluded Acts. Any acts or omissions or transactions from which a director may not be relieved of liability under applicable provisions of the laws of the state of Buyer’s incorporation;
(ii) Claims Initiated by Buyer. With respect to proceedings initiated or brought voluntarily by Buyer and not by way of defense; and
(iii) Lack of Good Faith. For any expenses incurred by the Buyer with respect to any proceeding instituted by Buyer to enforce or interpret the provisions of this Section 7, if a court of competent jurisdiction determines that each of the material assertions made by the Buyer in such proceeding was not made in good faith or was frivolous.
g) Dispute. It is the parties’ intention that if the Seller contests Buyer’s right to indemnification, the question of Buyer’s right to indemnification shall be for the decision of a court of competent jurisdiction, and neither the failure of the Seller (including its Board, any committee or subgroup of the Board, independent legal counsel, or its stockholders) to have made a determination that indemnification of Buyer is proper in the circumstances because Buyer has met the applicable standard of conduct required by applicable law, nor an actual determination by the Seller (including its Board, any committee or subgroup of the Board, independent legal counsel, or its stockholders) that Buyer has not met such applicable standard of conduct, shall create a presumption that Buyer has or has not met the applicable standard of conduct.
8. SECURITY INTEREST. Notwithstanding passage of title of products sold hereunder to Buyer F.O.B. Seller's factory, Seller will retain a security interest in the products until payment has been made in full by Buyer for such products. Buyer will perform all acts necessary to perfect and maintain such security interest.
9. WARRANTIES. Seller warrants to Buyer that Seller's standard products sold hereunder (and any services furnished therewith) which are not used in any medical or life support application will be free from defects in material and workmanship and will conform to the applicable specifications (if any) for a period of one year from the date of shipment.
Should products sold hereunder fail to meet the above applicable warranty, Seller, at its option, will repair or replace such products or issue Buyer a credit in an amount no greater than the sales price to the Buyer provided that: (a) Seller is notified in writing by Buyer within thirty (30) days after discovery of such failure; (b) Buyer obtains a Return Material Authorization (RMA) from Seller prior to returning any defective products to Seller; (c) the defective products are returned to Seller, transportation charges prepaid by Buyer; (d) the defective products are received by Seller for adjustment no later than four (4) weeks following the last day of the warranty period; and (e) Seller's examination of such products will disclose, to its satisfaction, that such failures have not been caused by misuse, abuse, neglect, improper installation or application, repair, alteration, accident or negligence in use, storage, transportation or handling.
SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ITS PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
The foregoing warranty provisions set forth the Seller's sole liability and the Buyer's exclusive remedies for claims (except as to title) based on defects in or failure of any products sold hereunder or services furnished hereunder whether the claim is based in contract, tort (including negligence), warranty or otherwise and however instituted. Upon the expiration of the applicable warranty for any products sold hereunder, all such liability will terminate.
The above warranty periods will not be extended by the repair or replacement of products pursuant to any of the above warranties. The above warranties will apply only to Buyer and will not apply to Buyer's customers or any other third parties.
10. LIMITATION OF LIABILITY. In no event, whether as a result of breach of contract, warranty or tort (including negligence) or otherwise, will Seller be liable for any special, consequential, incidental or penal damages, including but not limited to, loss of profit or revenues, loss of the product or any facilities, service or replacement power, down time costs or claims of Buyer's customers for such damages. If Buyer transfers title to or leases products sold hereunder to any third party, Buyer will obtain from such third party a provision affording the Seller the protection of the preceding sentence.
For all claims hereunder, whether a claim is based in contract, tort (including negligence), intellectual property infringement indemnity, or otherwise, Seller's total liability for any loss or damage arising out of or resulting from any products sold hereunder or services furnished hereunder will in no case exceed the price paid to Seller for the specific product(s) or service(s) which gives rise to the claim. Except as to title, all liabilities will terminate upon the expiration of the applicable warranty period specified in the above "Warranties" article.
11. U.S. GOVERNMENT CONTRACTS. If the products to be furnished hereunder are to be used in the performance of a U.S. Government contract or subcontract, no Government requirements or regulations will be binding upon Seller unless specifically agreed to by Seller in writing.
If the Government terminates such a contract or subcontract in whole or in part through no fault of or failure to perform by Buyer, this order may be canceled in writing in the same proportion and the liability of Buyer for termination allowances will be determined by the then applicable regulations of the Government regarding termination of contracts.
12. EXCUSABLE DAYS. Seller will not be liable for delays in delivery or performance due to any cause beyond its reasonable control, including, without limitation, acts of God, acts of Buyer, strikes or other labor disturbances, or inability to obtain necessary materials, components, services or facilities.
13. CANCELLATIONS OF STANDARD PRODUCTS. Should Buyer terminate any order accepted hereunder or should Seller terminate any order accepted hereunder due to Buyer's nonperformance of its obligations hereunder, then Buyer will pay Seller its reasonable termination charges within fifteen (15) days from the date of invoice of same.
Buyer may request rescheduling or cancellation by providing thirty (30) days’ written notice to Seller. BUYER UNDERSTANDS THAT SELLER IS NOT OBLIGATED TO ACCEPT SUCH NOTICE. However, if such notice is given and accepted by Seller, then Seller has the right to deliver and be paid by the Buyer for:
a) 100% of quantity of products scheduled for delivery within thirty (30) days following receipt of said notice.
b) 50% of quantity of products scheduled for delivery within thirty-sixty (30-60) days following receipt of said notice.
14. CANCELLATION OF PRODUCTS MANUFACTURED TO BUYER'S DESIGN OR SPECIFICATIONS. Charges for engineering, design, generation of data, lot charges or any other special charges that are not for product are non-cancelable except with prior written authorization from Seller.
Buyer may request rescheduling or cancellation of products by providing sixty (60) days' notice to Seller, provided however, that Seller is not obligated to accept such notice, but if such notice is given and is accepted by Seller, then Seller has the right to deliver and be paid by the Buyer for:
a) 100% of quantity of products scheduled for delivery within sixty (60) days following receipt of said notice.
b) 50% of quantity of products scheduled for delivery within sixty-ninety (60-90) days following receipt of said notice.
15. ASSIGNMENT. Any assignment by Buyer of this order, or of any rights or obligations in connection therewith, will be void without the written prior consent of Seller.
16. EXPORT TO NON-APPROVED COUNTRIES. Buyer agrees to take all reasonable and necessary precautions to prevent ultimate exportation of Seller's products to countries prohibited by rules or regulations of the United States Government and to obtain all export licenses and other governmental approvals necessary prior to the export of any Seller's products.
17. MISCELLANEOUS. The validity, performance and construction of these terms and conditions of sale and any sale hereunder will be governed by the laws of the State of California, except for that body of law relating to conflicts of law.
The validity, in whole or in part, of any provision herein will not affect the validity or enforce ability of any other provision herein.
Any representation, warranty, course of dealing or trade usage not contained or referenced herein will not be binding on Seller.
No modification, amendment, rescission, waiver or other change in these terms and conditions will be binding on Seller unless assented to in writing by Seller's duly authorized representative.
Seller reserves the right to manufacture and/or assemble its products in any of its worldwide facilities unless otherwise agreed to in writing with Buyer.
18. PHOTO AND IMAGE USAGE. Buyer agrees that humangear, inc. has the right to use all images and photos of humangear products sold to buyer for humangear’s marketing, advertising, etc. in perpetuity.