1. Applicability. These terms and conditions of sale (these “Terms”) and the terms in the Sales Confirmation are the only terms which govern the sale of the goods (“Goods”) by the seller named in the Sales Confirmation (“Seller”) to the buyer named in the Sales Confirmation (“Buyer”). The accompanying sales order (the “Sales Confirmation” and these Terms collectively, this “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, including, without limitation, Buyer’s general terms and conditions. Seller rejects any different or additional terms in any Buyer documents, including Buyer’s general terms and conditions and all such provisions are void and of no force and effect. Fulfillment of the Sales Confirmation does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
  1. Delivery. If the Shipping Terms on the Sales Confirmation are EXW (Delivery Location on the Sales Confirmation (INCOTERMS 2020): Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the Sales Confirmation. The Goods will be available for pickup upon notice from Seller to Buyer. Seller shall not be liable for any delays, loss or damage in transit. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the Delivery Location set forth in the Sales Confirmation (the “Delivery Location”) using the manufacturer’s standard methods for packaging. Buyer shall take possession of the Goods within three (3) days of Seller’s written notice that the Goods are available at the Delivery Point. Buyer shall be responsible for all shipping and handling costs and expenses from the point of delivery in accordance with the Shipping Terms. 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 Location, or if Seller is unable to deliver the Goods at the Delivery Location on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, 110% of all storage and insurance costs and expenses). If the Shipping Terms on the Sales Confirmation are any other Incoterm, costs and responsibilities shall be allocated as provided by such term. In the event that Buyer requests Seller’s assistance with making shipping arrangements that are the responsibility of Buyer, Seller may do so (in its sole discretion) provided that Buyer shall reimburse Seller for any and all costs and liabilities incurred by Seller not required by the Incoterm selected in the Sales Confirmation and Buyer agrees to indemnify and hold harmless Seller for all costs and liabilities associated with such assistance.
  1. Risk of Loss/Non-Delivery; Title. Title and risk of loss pass to Buyer upon delivery in accordance with the Shipping Terms. Seller’s documentation of quantity delivered is deemed absolute absent conclusive evidence to the contrary promptly provided by Buyer upon the delivery in accordance with the Shipping Terms. To the extent of any Seller liability, Seller may elect to replace the Goods within a reasonable time or adjust the invoice to reflect the actual quantity delivered, at Seller’s discretion.
  1. Quantity. If Seller delivers to Buyer a quantity of Goods of up to 20% less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to reject the delivery due to the shortfall and shall pay for such Goods at the price set forth in the Sales Confirmation adjusted pro rata. Seller shall have no right to reject quantities in excess.
  1. Title and Risk of Loss. Title and risk of loss passes 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. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code.
  1. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within 5 days of delivery in accordance with the Shipping Terms (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” refers to goods delivered that do not match the description of the Goods identified in the Sales Confirmation. If Buyer timely notifies Seller within the Inspection Period of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price paid for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to a location specified by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point. BUYER ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH IN SECTION 6 ARE BUYER’S EXCLUSIVE REMEDIES.
  1. Price. Buyer shall purchase the Goods from Seller at the price[s] (the”Price [s]”) set forth in the Sales Confirmation. All Prices are exclusive of all sales, use, export, import, customs and excise taxes, and any other similar taxes, duties, tariffs and charges of any amounts payable by Buyer, including but not limited to those imposed in connection with the Shipping Terms. Buyer shall be responsible for all such charges, costs and taxes and shall indemnify Seller for such amounts.
  1. Payment Terms. Buyer shall pay a non-refundable, non-cancellable deposit as stated in the Sales Confirmation within three (3) business days of executing the Sales Confirmation (which deposit is non-refundable and non-cancellable), with the remainder due to Seller within three (3) business days of the date of delivery in accordance with the Shipping Terms . Buyer shall make all payments hereunder in US dollars by wire transfer pursuant to the instructions in the Sales Confirmation. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend or cancel the delivery of any Goods if Buyer fails to pay any amounts when due hereunder. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
  1. No Seller Warranty. EXCEPT FOR THE WARRANTY UNDER SECTION 6 THAT THE GOODS MATCH THE GOODS IDENTIFIED IN THE SALES CONFIRMATION, SELLER MAKES NOT OTHER WARRANTIES REGARDING THE GOODS. SELLER HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES AND MAKES NO WARRANTY OR REPRESENTATION WHATSOEVER WITH RESPECT TO ANY OF THE GOODS, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY (a) OF MERCHANTABILITY; (b) OF FITNESS FOR A PARTICULAR PURPOSE; (c) OF TITLE; (d) AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; OR (e) AS TO THE DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL, EQUIPMENT OR WORKMANSHIP OF THE GOODS; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
  1. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, 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 RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER OR $5,000 WHICHEVER IS LESS.
  1. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
  1. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement 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, pandemic, supplier delays, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
  1. Governing Law/Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice of law provision. Any action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the County of Orange, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
  1. Miscellaneous. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right or remedy arising from this Agreement operates, or may be construed, as a waiver thereof. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. The relationship between the parties is that of independent contractors. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein shall confer upon any other person or entity any legal or equitable right or remedy. All notices and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the other party at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized courier (with all fees prepaid) or certified or registered mail (in each case, return receipt requested, postage prepaid) and effective upon receipt for personal delivery or delivery by courier and three (3) days after mailing for certified or registered mail. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party. Buyer agrees that the existence of this Agreement and its terms, and related negotiations, shall be kept in confidence and Buyer shall use the same efforts as it treats its own confidential information, and in all circumstances, no less than reasonable care. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary, a signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.