1. Purchase Orders. Vendor has no obligation with respect to any order until accepted or confirmed by Vendor in writing. The parties may use standard business forms or other communications for ordering Products, but use of such forms is for convenience only and does not alter the provisions of this Application. In the event of any conflict between this Agreement and the terms and conditions of any purchase order or similar document pursuant to which Customer entered into this Agreement, the terms and conditions of this Agreement shall control.
2. Credit Terms. Unless otherwise notified by Vendor in writing, all payment terms are net 30 days from the date of the invoice for the Products. Vendor may, in its discretion, terminate the extension of credit to Customer at any time for any reason.
3. Security Agreement. In consideration of the extension of credit to Customer, Customer, on behalf of itself and its affiliates, grants to Vendor a purchase money security interest in all the Products purchased by Customer and its affiliates from Vendor (“Collateral”) to secure their payment and performance obligations to Vendor, including those under this Application or any purchase order or invoice. Customer authorizes Vendor to file any documents and take all actions that Vendor may consider appropriate to perfect and continue the security interest in the Collateral and realize upon the security interest. Customer agrees to comply with all of Vendor’s requests to perfect, maintain and continue the security interest in the Collateral and to confirm such interest. This provision is not applicable if the Customer opts for the Drop-Ship option.
4. Covenants. Customer shall (a) immediately pay any indebtedness when due, (b) pay Vendor’s costs of collecting the indebtedness, or realizing on the Collateral, and any expenditure of Vendor pursuant thereto including reasonable attorneys’ fees and expenses, (c) pay any deficiency after collection or realization on the Collateral,.(c) notify Vendor with at least 15 days prior notice of any changes in Customer’s legal name, state of formation or principal place of business, (d) not misuse or abuse the Collateral or allow it to deteriorate, (e) except with respect to sales to Customer’s customers in the ordinary course of business, sell, transfer or encumber the Collateral in any manner, (f) cause the Collateral to be maintained at any location other than Customers premises, (g) not to take any actions with respect to the Collateral that conflict with the rights granted to Vendor in this Application..
5. Nonpayment. If an invoice is not paid in full when due, Customer agrees to pay a late charge of 18% per annum (or the maximum rate allowed by law if less) on the past due amount from the date due until paid. If Customer has a past due account, then in addition to any other right or remedy available to Vendor at law or equity, Vendor may at its option: (a) terminate Customer’s credit, (b) cancel any unfilled orders, and/or (c) discontinue deliveries until the account is brought current and Vendor is assured of Customer’s ability to remain current in its accounts.
6. Freight. Freight cost shall be the responsibility of the Customer, F.O.B. shipping point. The Customer will pay any costs incurred with mis-shipments, including but not limited to, routing guide violations. Prior to the date of purchase, the risk of loss to the products purchased shall be on Vendor. The risk of loss shall pass to Customer on the date of purchase.
7. Insurance. The Customer shall maintain, at its own expense, all necessary insurance, including (without limitation) workers compensation, disability, unemployment insurance, public liability, product liability, property liability, property damage and automobile liability insurance against all losses, claims, demands, proceedings, damages, costs, charges and expenses for injuries or damage to any person or property arising out of or in connection with this Agreement or the Product, which are the result of the fault or negligence of Customer.
8. Defaults. If Customer (a) makes a false statement on the Application, (b) breaches its covenants or defaults in any of its obligations hereunder, including failure to make payments when due, or (c) or any guarantor of Customer’s obligations under this Application becomes insolvent, files a petition in bankruptcy or has an involuntary petition in bankruptcy filed against it, then Customer shall be in default under this Application and all sums owed by Customer shall become immediately due and payable in full without further notice or demand, and Vendor shall be entitled to exercise any and all remedies available to it at law or in equity, including, without limitation, its rights as a secured creditor of Customer. Without limiting the generality of the foregoing, in the event of a default, at Vendor’s discretion, (i) Customer agrees to put Vendor in possession of the Collateral on demand, (ii) Vendor may enter Customer’s premises and take possession of the Collateral without notice or demand and without legal proceedings, (iii) at the request of Vendor, Customer will assemble the Collateral and make it available to Vendor at a designated location, and (iv) Customer agrees that a period of 10 days from the date notice is sent, shall be a reasonable period of notification of a sale or other disposition of the Collateral.
9. Venue. The parties irrevocably submit to venue and exclusive personal jurisdiction in the federal and state courts in Santa Clara, California, for any legal action, and waive all objections to jurisdiction and venue of such courts.
10. Dispute Resolution. The parties will initially attempt to resolve any claim or controversy arising out of this Agreement through negotiations or non-binding mediation. Any dispute that cannot be amicably resolved within 90 days of the date of the initial notice of dispute may be submitted to the courts in Santa Clara County for resolution.
11. Rejected Goods. Customer agrees to notify Vendor in writing within seven (7) business days of receipt of Products if there are any defects, overstock, damages, or non-conforming goods (“Rejected Goods”). Customer will save the Rejected Goods for inspection by Vendor. If there are any Rejected Goods, Customer’s sole and exclusive remedies are the replacement of the Rejected Goods or the refund of payments for such Products, as determined by Vendor in its sole and absolute discretion. The Customer’s failure in informing Vendor of any Rejected Goods within 7 days will constitute an acceptance of the Products by the Customer.
12. Product Recall. In the event that a Product suffers a defect that renders it unsafe, fails to meet published specifications or is likely to cause any injury, damage or harm of any description (“Affected Product”), Vendor shall make best efforts to ensure that the requirements of any relevant Regulatory authority are fully complied with and that Affected Product is dealt with in accordance with any relevant consumer and/or safety laws and requirements and that Customer is notified of the recall within the appropriate time. The Customer cannot make any public statements regarding the Product Recall without obtaining Vendor’s prior written approval.
13. Limitation of Liability. EXCEPT FOR WARRANTY OF TITLE, Vendor MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE PRODUCTS, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). Vendor WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR SPECIAL, CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO LOST OPPORTUNITIES OR PROFITS), INCIDENTAL OR PUNITIVE DAMAGES EVEN IF Vendor SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
14. Indemnification. The Customer officially agrees to indemnify, defend, and hold harmless Vendor, its officers, employees and affiliates, and their respective successors from any liability, loss, cost, damage, expense, or payment (including reasonable attorney fees) incurred by Customer for its failure to pay tax bills, third party shipping invoices, custom house brokerage charges, duties, fuel surcharges, chargeback fees, return check fees, fraudulent orders, or customer refunds.
15. No Assignment. Except as provided below, neither party hereto may assign its rights or delegate its obligations hereunder without the prior consent of the other party, such consent not to be unreasonably withheld. Any such purported assignment or delegation, in the absence of such consent, will be void and without effect. A change in Customer’s form or organization, combination or merger with another entity by Customer shall be deemed an assignment requiring Vendor’s prior written approval. Vendor may assign this Application (or any of its rights and obligations under this Application or any purchase order): (a) to any of its affiliates, or (b) in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or any similar transaction.
16. Notice. Notices under this Application are sufficient if given by nationally recognized overnight courier service, certified mail (return receipt requested), facsimile with electronic confirmation or personal delivery to the other party at the address provided on the front of this Application.
17. Confidentiality. In the performance of this Agreement, each party may have access to confidential, proprietary or trade secret information owned or provided by the other party ("Confidential Information"). All Confidential Information supplied by one party to another pursuant to this Agreement shall remain the exclusive property of the disclosing party. The receiving party shall use such Confidential Information only for the purposes of this Agreement and shall not copy, disclose, convey or transfer any of the Confidential Information.
18. Intellectual Property Rights. Customer may include Vendor’s trademarks, service marks and trade names in its advertising and promotion of the Products.
Each party recognizes the other party’s ownership and title to certain trademarks, service marks, and trade names, whether or not registered. Neither party shall acquire any rights in the trademarks, service marks or trade names of the other nor will it do or suffer to be done any act or thing that could in any way impair the rights of the other party in and to such mark(s) and name(s). Title to Proprietary Information, including (without limitation) all ownership rights to patents, copyrights, trademarks, service marks and trade secrets in connection therewith, shall be the exclusive property of Vendor.
19. Invalidity. If any part of this Application is found invalid or unenforceable, that part will be enforced to the maximum extent permitted by law and the remainder shall remain in full force. A party does not waive any rights by failing to insist on compliance with any of the terms of this Application or by failing to exercise any right hereunder. Any waivers granted hereunder are effective only if recorded in a writing signed by the party granting such waiver.
20. Force Majeure. Neither party shall be responsible or liable in any way for failure or delay in carrying out the terms of this Application resulting from any cause or circumstances beyond its reasonable control, including but not limited to, fire, flood, war, labor difficulties, interruption of transit, inability to obtain materials or supplies, accident, explosion, civil commotion, and acts of any governmental authority.
21. Entirety. This Application together with the invoices and any purchase order constitute the complete and final agreement of the parties and supersede the parties ‘prior agreements, understandings and discussions relating to the subject of this Application. Except as expressly provided herein, no modification of this Application is binding unless it is in writing and signed by Vendor and Customer.
22. Drop-Ship Option. The Customer has the option to select Vendor’s drop-ship option, which thereby appoints Vendor as being responsible for shipping the products directly from its facilities to the Recipients.
a. Unless the parties have agreed to otherwise in writing, Vendor shall select the best and most economical carrier, at its own discretion, to ship the products, however, the carrier shall not be construed an agent of Vendor.
b. Unless otherwise agreed in writing any customs or import fees associated with Vendor shipping the products using this Drop-ship option shall be the responsibility of the Customer.
c. The Customer will bear the cost of freight and risk of loss.
d. The Vendor will ship the order within 48 hours of receiving the Recipients’ information. In case a Recipient cancels an order, the Customer is responsible of timely notifying the Vendor. However, in no case shall the Vendor be obligated to make any modifications or stop shipment once the product has been shipped out or is in the process of being delivered to the Recipient.
