Terms

1. Acceptance – ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN, AND UPON BUYER’S ASSENT THERETO. NO VARIATION OF THESE TERMS AND CONDITIONS SHALL BE BINDING ON SELLER UNLESS AGREED TO IN WRITING AND SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF SELLER.
2. Changes – Orders arising hereunder may be changed or amended only by written agreement signed by both Buyer and Seller, setting forth the particular changes to be made and the effect, if any, of such changes on the price and time of delivery. Buyer may not cancel an order unless such cancellation is expressly agreed to in writing by Seller. In such event, Seller will advise Buyer of the total charge for such cancellation, and Buyer agrees to pay such charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on Seller by its suppliers, and any other cost resulting from cancellation of the order by Buyer which is permitted by Seller. Certification of such costs by Seller’s independent public accountants shall be conclusive on the parties hereto.
3. Delivery, claims, and delays – All sales are FOB Redondo Beach, CA, USA unless otherwise negotiated and agreed by both the Seller and the Buyer. If Shipping and Handling Charges are quoted or invoiced, they will be included in addition to the actual freight costs. For all shipments that utilize Seller’s freight account, risk of loss shall be borne by the Seller until delivery to the Buyer at the address indicated on the Purchase Order. The Buyer must report any shortages or damages to the Seller in writing and within five (5) working days of delivery. Any claims for shortages or shipping damages filed after five (5) working days of delivery will be automatically rejected and the Buyer will be liable to pay the invoice in full, regardless of any discrepancy in delivery. In the event the Buyer chooses to utilize its preferred shipping method, the Buyer will be liable for any losses related to shipping, including but not limited to those resulting from improper care and/or handling of Products. All orders shall be processed by the Seller and confirmed to the Buyer within three to five business days. If the Buyer does not receive a confirmation from the Seller within five (5) business days, the Buyer is advised to follow-up on the status of the Order with the Seller. Seller requires priority overnight shipping method to Buyer for all its temperature controlled products delivered within United States of America. For international shipments, international priority shipping methods are recommended. International Buyer should contact Seller for more information about shipments to international locations. Notwithstanding the foregoing, Seller reserves the right, in its sole discretion, to determine the exact method of shipment. Seller reserves the right to make delivery in increments, all such increments shall be separately invoiced and paid for when due according to the terms of the invoice, without regard to subsequent deliveries. Delay in delivery of any increment shall not relieve Buyer of Buyer’s obligations to accept remaining deliveries. Immediately upon Buyer’s receipt of any goods shipped hereunder, Buyer shall inspect the same and shall notify Seller in writing of any claims for shortages, defects or damages and shall hold the goods for Seller’s written instructions concerning disposition. If Buyer fails to notify Seller within five (5) days after the goods have been received by Buyer, such goods shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the Buyer. Seller shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond Seller’s reasonable control, including, without limitation, unsuccessful reactions, act of Buyer, embargo or other governmental act, regulation or request affecting the conduct of Seller’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation or improper storage in transit, or any temperature excursions during transport or following the arrival of the product, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices.
4. Allocation of goods – If Seller is unable for any reason to supply the total demands for goods specified in Buyer’s order, Seller may allocate its available supply among any or all Buyers on such basis as Seller may deem equitable, without liability for any failure of performance which may result therefrom.
5. Payment – Terms of sale are determined by the Seller. If the financial condition of Buyer results in the insecurity of Seller, in its sole and unfettered discretion as to the ultimate collect ability of the purchase price, Seller may, without notice to Buyer, delay or postpone the delivery of the products; and Seller, at its option, is authorized to change the terms of payment to payment in full or in part in advance of shipment of the entire undelivered balance of said products. In the event of default by Buyer in the payment of the purchase price or otherwise, of this or any other order, Seller, at its option, without prejudice to any other of Seller’s lawful remedies, may defer delivery, cancel this Contract, or sell any undelivered products on hand for the account of Buyer and apply such proceeds as a credit, without set-off or deduction of any kind, against the contract purchase price, and Buyer agrees to pay the balance then due to Seller on demand. Buyer agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees as well as other expenses of collection resulting from any default by Buyer on any of the terms hereof. Orders shipped on credit terms to Buyer are subject to a penalty fee for late payment as deemed necessary by the Seller in its sole discretion calculated pro-rata.
   Payment and Training on Lipoprint® Systems – Lipoprint System orders require full payment before shipment unless otherwise approved by the Seller. No shipments of Lipoprint Systems will be made until Seller is able to satisfy itself that Buyer has been or will be trained within a reasonable timeframe on the operation of the system and has demonstrated satisfactory proficiency therein.
6. Taxes and other charges – Any use tax, sales tax, excise tax, product import registration fee, duty, customs, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and Buyer shall be paid by Buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee or charge, Buyer shall reimburse Seller; therefore, or, in lieu of such payment, Buyer shall provide Seller at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
7. Pricing – Prices shown are in the currency of the United States of America (US Dollars) and are subject to change. The Buyer is advised to contact the Seller for current prices if such information is required prior to placing an order with the Seller. The Seller guarantees the written price quotations for the products for 30 days. Freight charges are subject to weekly revisions. When placing an order, the Buyer is advised to reference any quoted prices or the applicable quote/proforma invoice number. If Buyer places an order by telephone, Seller will confirm current price at that time and shall send a written confirmation within three to five business days.
8. Price Changes – Price changes will be automatically applied to the Buyer’s invoice.
9. Warranties – Seller warrants that its products shall conform to the description of such products as provided to Buyer by Seller through Seller’s catalog, analytical data, or other literature. THIS WARRANTY IS EXCLUSIVE AND SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE. Seller’s warranties made in connection with this sale shall be void if Seller has determined, at its sole discretion, that Buyer has misused the products in any manner, has failed to use the products in accordance with industry standards and practices, or has failed to use the products in accordance with instructions, if any, furnished by Seller. Seller’s sole and exclusive liability and Buyer’s exclusive remedy with respect to products proved to Seller’s satisfaction to be defective or nonconforming shall be limited to the replacement of such products without charge or refund of the purchase price, in Seller’s sole discretion, upon the return of such products in accordance with Seller’s instructions. SELLER SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF BUYER OR OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY SELLER’S GROSS NEGLIGENCE. In no event may any claim be brought following the date of expiration listed on the products, regardless of their nature.
   For the Lipoprint® System product only, this warranty covers any defective materials or workmanship for a period of one year from the date the product is shipped. The Buyer may extend the warranty terms for the Lipoprint System for an additional year by purchasing an extended warranty policy for 10% of the purchase price. The extended one-year warranty may be bought only at the time of purchasing the Lipoprint System and if the Buyer does not purchase the extended warranty prior to shipment of the unit, the Buyer waives its rights to do so at a later time. This warranty, including the extended warranty if purchased at Buyer’s full discretion, does not cover damage caused by misuse or use other than intended and described in the product instruction manual. Use of equipment other than that supplied by Seller voids all warranty. The Buyer is responsible for any international registration or importation charges, and all costs of shipping, customs duty, taxes and delivery for Lipoprint® System covered under this warranty.
10. Compliance with laws, regulations – Seller certifies that to the best of its knowledge its products are produced in compliance with applicable requirements of the Fair Labor Standards Act, as amended, and the Occupational Safety and Health Standards Act of 1970 and regulations, rules and orders issued pursuant thereto.
11. Buyer’s use of products – Seller’s products are intended to be used as stated on product labels for laboratory and/or research purposes and, unless otherwise specified in Seller’s catalog or in other literature furnished to Buyer, are not to be used for any other purpose, including but not limited to, to diagnose or aid in diagnosis of any diseases, in foods, drugs, cosmetics for humans or animals or by a general public consumer (B2C) or any other Buyer deemed unqualified and/or unauthorized by the Seller at its sole discretion. Buyer acknowledges that the products have not been tested by Seller for safety and efficacy in food, drug, cosmetic, general consumption (B2C) or any other unqualified/unauthorized and unapplicable use, unless expressly otherwise stated in Seller’s literature furnished to Buyer. Buyer expressly represents and warrants to Seller that Buyer will properly test, use and market any products purchased from Seller and/or materials produced with the products purchased from Seller in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted. Buyer further warrants to Seller that any material produced with products from Seller shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and shall not be materials which may not, under Sections 404, 505, or 512 of the Act, be introduced into interstate commerce. Buyer realizes that, since Seller’s products are, unless otherwise stated, intended primarily for laboratory and/or research purposes, they may not be on the Toxic Substances Control Act (TSCA) inventory. Buyer assumes responsibility to assure that the products purchased from Seller are approved for use under TSCA, if applicable. Buyer has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using products purchased from Seller. Buyer also has the duty to warn Buyer’s customers and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the products. Buyer agrees to comply with instructions, if any, furnished by Seller relating to the use of the products and to not misuse the products in any manner. If the products purchased from Seller are to be repackaged, relabeled, or used as starting material or components of other products, Buyer will obtain Seller’s written permission in advance to do so, which may be denied at Seller’s sole discretion. No products purchased from Seller shall, unless otherwise stated, be considered to be foods, drugs, medical devices or cosmetics.
12. Buyer’s Representations and Indemnity – Buyer represents and warrants that it shall use all products ordered herein in accordance with Paragraph No. 11 “Buyer’s Use of Products”, and that any such use of products will not violate any law or regulation. Buyer agrees to indemnify and hold harmless Seller, its employees, agents, successors, officers, and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that Seller may sustain or incur as a result of any claim against Seller based upon negligence, breach of warranty, strict liability in tort, contract, or any other theory of law brought by Buyer, its officers, agents, employees, successors or assigns, by Buyer’s customers, by end users, by auxiliary personnel (such as freight handlers, etc.) or by other third parties, arising out of, directly or indirectly, the use of Seller’s products, or by reason of Buyer’s failure to perform its obligations contained herein. Buyer shall notify Seller in writing within fifteen (15) days of Buyer’s receipt of knowledge of any accident, or incident involving Seller’s products which results in personal injury or damage to property, and Buyer shall fully cooperate with Seller in the investigation and determination of the cause of such accident and shall make available to Seller all statements, reports and tests made by Buyer or made available to Buyer by others. The furnishing of such information to Seller and any investigation by Seller of such information or incident report shall not in any way constitute any assumption of any liability for such accident or incident by Seller.
13. Patent disclaimer – Seller does not warrant that the sale and use of the delivered products will not infringe the claims of any United States or other patents covering the product itself or the use thereof in combination with other products or in the operation of any process.
14. Returns – Goods may not be returned for credit except with Seller’s permission, and then only in strict compliance with Seller’s return shipment instructions. Any returned item may be subject to a 20% processing fee.
15. Technical Assistance – At Buyer’s request, Seller may, at Seller’s discretion, furnish technical assistance and information with respect to Seller’s products. SELLER MAKES NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY SELLER OR SELLER’S PERSONNEL. ANY SUGGESTIONS BY SELLER REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF SELLER.
16. Miscellaneous – Seller’s failure to strictly enforce any term or condition specified in this document titled and hereinafter referred to as “Terms” or to exercise any right arising hereunder shall not constitute a waiver of Seller’s right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies under these Terms or any order are cumulative and are in addition to any other rights and remedies Seller may have at law or in equity. Any waiver of a default by Buyer hereunder shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter. If any provision of these Terms shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The paragraph headings herein are for convenience only; they form no part of the terms and conditions and shall not affect their interpretation. These Terms shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors, and assigns.
17. Governing Law – All disputes as to the legality, interpretation, application, or performance of these Terms or any order for the Seller’s products with any of its terms and conditions shall be governed by the laws of the State of California including its conflict of laws principles. Each party involved or affected directly or indirectly by these Terms or any order for the Seller’s products hereby agrees that any dispute arising between them which results in either party instituting court proceedings shall be litigated in either the Federal District Court or the District of California.

Terms & Conditions of OEM Sales

1. Payment – OEM orders require an advanced deposit prior to the start of manufacturing and the remaining prepayment at the time of shipment unless other arrangements are made with Seller’s management. Late payment fees may apply at the sole discretion of the Seller.
2. Delivery, claims, delays – Terms are FOB Redondo Beach, CA, USA unless otherwise negotiated and agreed by both the Seller and the Buyer. For all shipments that utilize Seller’s freight account, risk of loss shall be borne by the Seller until delivery to the Buyer at the address indicated on the Purchase Order. The Buyer must report any shortages or damages to the Seller in writing and within five (5) working days of delivery. Any claims for shortages or shipping damages filed after five (5) working days of delivery will be automatically rejected and the Buyer will be liable to pay the invoice in full, regardless of any discrepancy in delivery. In the event the Buyer chooses to utilize its preferred shipping method, the Buyer will be liable for any losses related to shipping, including but not limited to those resulting from improper care and/or handling of Products. All repeat OEM orders shall be processed by the Seller and confirmed to the Buyer within three to five business days. If the Buyer does not receive a confirmation from the Seller within five (5) business days, the Buyer is advised to follow-up on the status of the order with the Seller. Notwithstanding the foregoing, any new OEM inquiries or orders are subject to special preapproval by the Seller at its sole discretion. Seller requires priority overnight shipping method to Buyer for all its products delivered within United States of America. For international shipments, international priority shipping methods are recommended. International Buyer should contact Seller for more information about shipments to international locations. Furthermore, Seller reserves the right, in its discretion, to determine the exact method of shipment. If Seller and Buyer agree to deliver in increments, all such increments will be invoiced separately, and payment shall be due according to the terms of the invoice without regard to deliveries of future increments. It is hereby understood and accepted by the OEM Buyer, that the Buyer may not change or cancel any part of its OEM order after the issuance of the order confirmation and the start of production. If Buyer cancels any part of the OEM order after confirmation has been issued by the Seller, the Seller shall impose a penalty fee for the material and time spent on production thus far at the Seller’s sole discretion, calculated pro-rata. The invoiced amount for the cancellation shall not be subject to dispute and must be paid by the Buyer in full immediately after issuance. OEM orders are subject to manufacturing schedule and any delivery dates presented by the Seller are estimates only. Delay in delivery of any increment shall not relieve Buyer of Buyer’s obligations to accept remaining deliveries. Buyer has the right to use his own means of delivery at his expense. Immediately upon Buyer’s receipt of any goods shipped hereunder, Buyer shall inspect the same and shall notify Seller in writing of any claims for shortages, defects or damages and shall hold any such goods for Seller’s written instructions concerning disposition. If Buyer fails to notify Seller within five (5) days after the goods have been received by Buyer, such goods shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the Buyer. Seller shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond Seller’s reasonable control, including, without limitation, unsuccessful reactions, act of Buyer, embargo or other governmental act, regulation or request affecting the conduct of Seller’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation or improper storage in transit, or any temperature excursions during transport or following the arrival of the OEM product, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices.
3. Taxes and other charges – Any sales tax, use tax, excise tax, duty, OEM product import and registration fees, customs, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and Buyer shall be paid by Buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee or charge, Buyer shall reimburse Seller; therefore, or, in lieu of such payment, Buyer shall provide Seller at the time the order is submitted a certificate of exemption or other document acceptable to the authority imposing the tax, fee or charge.
4. OEM Prices – Because OEM products are not within Seller’s catalog, the special product prices quoted are estimates only and may reasonably change based on quantities and other factors, including but not limited to production schedules and expected delivery times.
5. Warranties – Seller warrants that its OEM products shall conform to the description of such products as provided to Buyer by Seller through analytical data, OEM product specifications which have been mutually agreed upon in writing by the Buyer and the Seller, or any other literature supplied by the Seller to the Buyer in reference to the OEM product. THIS WARRANTY IS EXCLUSIVE AND SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Seller’s warranties made in connection with this sale shall be null and void if Seller has determined, at its sole discretion, that Buyer has misused the products in any manner, failed to use the products in accordance with industry standards and practices, or has failed to use the products in accordance with instructions, if any, furnished by Seller. Seller’s sole and exclusive liability and Buyer’s exclusive remedy with respect to OEM products proved to Seller’s satisfaction to be defective or nonconforming shall be replacement of such products without charge or refund of the purchase price, in Seller’s sole discretion, within a reasonable timeframe as determined by the Seller, following the return of such OEM product in accordance with Seller’s instructions. SELLER SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF BUYER OR OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY SELLER’S GROSS NEGLIGENCE. All claims must be brought within the shelf life of the OEM product, regardless of their nature.
6. Compliance with laws, regulations – Seller certifies that to the best of its knowledge its products are produced in compliance with applicable requirements of the Fair Labor Standards Act, as amended, and the Occupational Safety and Health Standards Act of 1970 and regulations, rules and orders issued pursuant thereto.
7. Buyer’s use of OEM products – Seller’s products are intended primarily for laboratory or research purposes, as mutually agreed between Seller and Buyer, and stated on OEM product specifications, product labels and/or in other literature furnished to Buyer. The OEM products are not to be used for any other purpose, including but not limited to, to diagnose or aid in diagnosis of any diseases, in foods, drugs, or cosmetics for humans or animals or by a general public consumer (B2C) or any other Buyer deemed unqualified and/or unauthorized by the Seller at its sole discretion. Buyer acknowledges that the products have not been tested by Seller for safety and efficacy in food, drug, cosmetic, general commercial consumption (B2C) or any other unqualified/unauthorized and unapplicable use, unless otherwise stated in Seller’s literature furnished to Buyer. Buyer expressly represents and warrants to Seller that Buyer will properly test, use, and market any OEM products purchased from Seller and/or materials produced with or for the usage with the OEM products in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted. Buyer further warrants to Seller that any material produced with products from Seller shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and shall not be materials which may not, under Sections 404, 505, or 512 of the Act, be introduced into interstate commerce. Buyer realizes that, since Seller’s OEM products are, unless otherwise stated, intended primarily for laboratory or research purposes, they may not be on the Toxic Substances Control Act (TSCA) inventory. Buyer assumes responsibility to assure that the OEM products purchased from Seller are approved for use under TSCA, if applicable. Buyer has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using OEM products purchased from Seller. Buyer also has the duty to warn Buyer’s customers and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the OEM products. Buyer agrees to comply with instructions, if any, furnished by Seller relating to the use of the OEM products and not to misuse the OEM products in any manner. If the OEM products purchased from Seller are to be repackaged, relabeled, or used as starting material or components of other products, Buyer will verify Seller’s intended purpose of the products and obtain Seller’s written permission prior to implementing such actions, which shall not be unreasonably denied by the Seller. No products purchased from Seller shall, unless otherwise stated, be considered to be foods, drugs, medical devices or cosmetics.
8. Buyer’s Representations and Indemnity – Buyer represents and warrants that it shall use all products ordered herein in accordance with Section 8 “Buyer’s Use of Products”, and that any such use of products will not violate any law or regulation. Buyer agrees to indemnify and hold harmless Seller, its employees, agents, successors, officers, and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that Seller may sustain or incur as a result of any claim based upon negligence, breach of warranty, strict liability in tort, contract, or any other theory of law brought by Buyer, its officers, agents, employees, successors or assigns, by Buyer’s customers, by end users, by auxiliary personnel (such as freight handlers, etc.) or by other third parties, arising out of, directly or indirectly, the use of Seller’s products, or by reason of Buyer’s failure to perform its obligations contained herein. Buyer shall notify Seller in writing within fifteen (15) days of Buyer’s receipt of knowledge of any accident, or incident involving Seller’s products which results in personal injury or damage to property, and Buyer shall fully cooperate with Seller in the investigation and determination of the cause of such accident and shall make available to Seller all statements, reports and tests made by Buyer or made available to Buyer by others. The furnishing of such information to Seller and any investigation by Seller of such information or incident report shall not in any way constitute any assumption of any liability for such accident or incident by Seller.
9. Patent disclaimer – Seller does not warrant that the use or sale of the OEM products delivered to the Buyer will not infringe the claims of any United States or other patents covering the product itself or the use thereof in combination with other products or in the operation of any process.
10. Pre-shipment samples – The Buyer has the option of receiving a bulk Sample of the OEM product, before the completion of the manufacturing. The Buyer shall have ten (10) working days to evaluate the OEM Sample. Once the Buyer approves the OEM Sample, no further technical adjustments or revisions to the OEM product can be made.
11. Technical Assistance – At Buyer’s request, Seller may, at Seller’s discretion, furnish technical assistance and information with respect to Seller’s OEM products. SELLER MAKES NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY SELLER OR SELLER’S PERSONNEL. ANY SUGGESTIONS BY SELLER REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF SELLER.
12. Miscellaneous – Seller’s failure to strictly enforce any term or condition specified in this document titled and hereinafter referred to as “Terms” or to exercise any right arising hereunder shall not constitute a waiver of Seller’s right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies under these Terms or any order are cumulative and are in addition to any other rights and remedies Seller may have in law or in equity. Any waiver of a default by Buyer hereunder shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter. If any provision of these Terms shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The paragraph headings herein are for convenience only; they form no part of the terms and conditions and shall not affect their interpretation. These Terms shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors, and assigns.
13. Governing Law – All disputes as to the legality, interpretation, application, or performance of these Terms or any order for the Seller’s OEM products with any of its terms and conditions shall be governed by the laws of the State of California including its conflict of laws principles. Each party involved or affected directly or indirectly by these Terms, or any order agrees that any dispute arising between them which results in either party instituting court proceedings shall be litigated in either the Federal District Court or the District of California.