Buyer has submitted a purchase order to Novihum Technologies, Inc. (the “Seller”) in which Buyer offered to purchase goods from Seller of a certain type and quantity (the “Goods”). Seller expressly conditions its acceptance of Buyer’s offer to purchase the Goods on Buyer’s acceptance of Seller’s standard terms and conditions set forth herein (these “Terms”), notwithstanding any language in Buyer’s purchase order to the contrary, and Seller expressly rejects all of Buyer’s purchase order terms and conditions. The Seller’s confirmation of Buyer’s purchase order together with these Terms are referred herein collectively as the “Agreement.” By Buyer’s acceptance of all or any part of the Goods or payment by Buyer for all or any part of the Goods, Buyer agrees to these Terms.
§ 2 Price
(a) Price shall be determined by Seller in its sole discretion and may be changed any time by Seller upon notice to Buyer.
(b) All prices are exclusive of all sales, use and exercise taxes, and any other similar taxes, duties, tariffs and charges of any kind imposes by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; except, that, Buyer shall be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
(c) Prices specified are valid for delivery only to Buyer’s location at the agreed ship to address, unless otherwise specified in writing by Buyer.
§ 3 Delivery
(a) Seller shall deliver the Goods FCA at Seller’s shipping facility or, if a different INCOTERM is stated on the front page of Seller’s confirmation, the location determined by the stated INCOTERM (the “Delivery Point”), using Seller’s standard methods for packaging (if applicable) and shipping such Goods. Buyer shall be responsible for all unloading costs and provide equipment, transportation and labor reasonably suited for receipt of the Goods at the Delivery Point. For any international order, unless otherwise specified the INCOTERM as DDP and agreed to by the parties, Buyer shall be the importer of the record and solely responsible for clearing the Goods through customs and paying all applicable duties, taxes and charges.
(b) Seller shall not be liable for any delays, loss or damage in transit of any Goods after delivery to the Delivery Point. The Seller shall not be liable for any on-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within five (5) business days of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller’s for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice with respect to such Goods to reflect the actual quantity delivered.
(c) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, whichever is later:
(i) title and risk of loss to the Goods shall pass to Buyer;
(ii) the Goods shall be deemed to have been delivered; and
(iii) Seller, in its sole discretion, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
§ 4 Title and Risk of Loss; Purchase Price Security Interest
Title and risk of loss pass to Buyer upon delivery of the Goods upon delivery to Seller’s designated carrier. If an INCOTERM other than FCA is used for a particular purchase order, title and risk of loss shall pass to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. Upon Buyer’s default, Seller shall have the rights and remedies of a secured creditor as well as those of a seller of goods, under the Uniform Commercial Code and other applicable law, including but not limited to, the right to take possession of the Goods.
(a) Seller warrants to Buyer that for a period of one (1) year from the date of delivery of the Goods to the Delivery Point (the "Warranty Period"), such Goods will: (i) materially conform to descriptions and specifications (collectively, the "Specifications") published or agreed by Seller to Buyer in writing; (ii) be free from material defects in material and workmanship; and (iii) be free and clear of all liens and encumbrances.
(b) EXCEPT FOR THE WARRANTY SET FORTH HEREIN, SELLER MAKES NO OTHER WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(c) The Seller shall not be liable for a breach of the warranty set forth herein if: (i) Buyer makes any further use of such Goods after giving notice of the breach of warranty; (ii) damage to the Goods results from accident, or unreasonable or unintended combination of the Goods with a third party product; (iii) the Goods have been subject to misuse, abuse, negligence, improper installation, improper maintenance, improper repair, improper storage, improper commissioning, accident, alteration or any other change by anyone other than Seller, or if the original name and/or serial number and/or identification markings have been defaced, altered or removed; or (iv) damage to the Goods results from Buyer's failure to follow Seller's oral or written instructions as to any of the foregoing.
(d) With respect to any bona fide breach of warranty during the Warranty Period, Seller shall, in its sole discretion, either(i) repair or replace the affected Goods (or the defective part); or (ii) credit or refund the price of the affected Goods at the pro rata contract rate.
Returned Goods under warranty claims identified by Seller's product identification number, will be shipped by Buyer to Seller's designated production facility and shall be accompanied by a statement of reason for the return and an approval Return Material Authorization number as issued by Seller. Seller will pay for freight expenses where a warranty adjustment is made. Buyer remains responsible for payment for Goods not accepted for warranty adjustment and the freight and handling costs associated therewith.
(e) The remedies set forth above shall be the Buyer's sole and exclusive remedy and Seller's entire liability for any breach of the warranty set forth herein.
§ 8 Indemnification
To the maximum extent allowed by law, Buyer agrees to protect, indemnify and hold harmless Seller, its successors, assigns, employees, and agents of and from any claim, loss, damage, deficiency, action, demand, judgment, cost or expense (including attorney's fees) arising out of (i) Buyer's negligence, use, ownership, maintenance, transfer, transportation or disposal of the Goods, (ii) Buyer's violation or alleged violation of any federal, state, county or local laws or regulations, including without limitation, the laws and regulations governing product safety, labeling, packaging and labor practices, and (iii) Buyer's breach of these Terms. Seller's remedies under these Terms are cumulative and in addition to any other remedies available to Seller at law, in equity, by contract or otherwise. No purported limitation on Seller's remedies contained in any purchase order or other agreement, instrument or document provided by the Buyer shall operate to reduce Buyer's indemnification obligations hereunder.
§ 9 Limited Liability and Damages
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THE PURCHASE AND SALE OF THE GOODS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER OR SELLER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE PURCHASE AND SALE OF THE GOODS, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, EXCEED THE TOTAL SUM OF THE AMOUNTS PAID TO SELLER FOR THE GOODS COVERED BY PURCHASE ORDER UNDER WHICH THE CLAIM IS BASED.
§10 Compliance with Law
Buyer agrees to comply with and abide by all the laws and regulations of the United States and other countries and jurisdictions which may apply to the purchase and sale of the Goods, including but not limited to foreign trade, economic sanctions, export control, import, trade embargo, anti-money laundering, anti-corruption, counter-terrorism finance compliance, anti-boycott, and similar trade control rules, laws and regulations.
§ 11 Cancellation/Delayed Delivery
Orders accepted by Seller may not be canceled or deferred by Buyer unless agreed in advance in writing by Seller. For the avoidance of doubt, delivery of Nonconforming Goods or the breach of warranty provided for in Section 7(a) shall not entitle Buyer to cancel or defer the purchase order accepted by Seller. If Buyer becomes the subject of any bankruptcy or insolvency proceeding, Seller may, in its discretion and without prejudice as to its other lawful remedies, cancel or defer delivery and/or demand immediate payment of all of Buyer's outstanding invoices or account balances (plus any addition costs, expenses, losses or damages), including without limitation, lost profits, incurred by it as a result of such cancellation, delay, default or bankruptcy of Buyer.
§ 12 Intellectual Property
Buyer hereby acknowledges that Seller has all right, title and interest in and to, and is the sole and exclusive owner of (or has to its knowledge otherwise lawfully and validly obtained the right to use and employ, whether by license or otherwise) the Seller's patents, trademarks, "know-how," trade secrets, copyrights, technology and other information relating to the use, design, composition, development, manufacture, distribution, production and installation of the Goods (collectively, the "Seller's Intellectual Property"), including, without limitation, any patent or patent application which may hereafter be awarded or filed anywhere in the world in connection with any Seller Intellectual Property (further including without limitation products developed after the effective date of this agreement), and all improvements to the Seller Intellectual Property developed or acquired by Seller.
§ 13 Amendment and Modification
These Terms may only be amended or modified in writing that specifically states that it amends these Terms and is signed by an authorized representative of each of the Seller and the Buyer.
No waiver by Seller of any of the provisions of this Agreement and the Terms is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
§ 15 Confidential Information
All non-public, confidential or proprietary information of Seller, including but not limited to trade secrets, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," is confidential to Seller ("Seller Confidential Information"), and Buyer shall take commercially reasonable steps to maintain its confidentiality and prevent its disclosure to third parties. Buyer may use Seller Confidential Information solely in connection with its receipt and use of the Goods. Upon Seller's request, Buyer shall promptly return or destroy in accordance with Seller's instruction all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this section. This section does not apply to information that is: (i) in the public domain; (ii) known to Buyer at the time of the initial disclosure from Seller; or (iii) rightfully obtained by Buyer on a non-confidential basis from a third party.
§ 16 Force Majeure
Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war Is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), technical constraints, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage, or material changes in law or regulations affecting the Goods or Seller's ability to perform.
§ 17 Governing Law, Arbitration
a. All matters arising out of or relating to this Agreement and the sale of Goods are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule which could result in the application of the law of another jurisdiction and also excluding the application of the United Nations Convention on Contracts for the International Sale of Goods.
b. Any disputes, controversies or claims between Buyer and Seller arising out of or in connection with this Agreement shall be finally settled by arbitration. The arbitration shall be held in Fresno, California pursuant to the California Rules of Civil Procedure and Evidence and presided by a sole arbitrator from the Judicial Arbitration and Mediation Services (JAMS).