PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY
THE TERMS AND CONDITIONS OF PRODUCT SALES ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY YOU (“CUSTOMER”) ARE CONSIDERED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION AND REJECTION OF THEM IS HEREBY GIVEN.
BY ACCEPTING DELIVERY OF THE PRODUCTS BY ENGAGING ZOMAZZ (“SELLER”) OR TO PROVIDE PRODUCT(S), CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS UNLESS CUSTOMER AND SELLER HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
ANY GENERAL DESCRIPTION OF THE TYPES OF PRODUCTS AND PRODUCTS IN WHICH SELLER’S PRODUCTS ARE INCORPORATED ON ANY SELLER WEBSITE OR MOBILE APPLICATION DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN SELLER AND CUSTOMER.
Important Information About These Terms and Conditions
These Terms and Conditions constitute a binding contract between Customer and Seller and are referred to as either “Terms and Conditions” or this “Agreement”. Customer accepts these Terms and Conditions by making purchases from or placing an order with Seller or shopping on Seller’s Website (a “Site”) or otherwise requesting products (the “Products”). These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on a Site at the time Customer places an order or signs a Statement of Work will govern the order in question, unless otherwise agreed in writing by Seller and Customer.
Customer consents to receiving electronic records, which may be provided via a Web browser or e-mail application connected to the Internet; individual consumers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by contacting Seller. In addition, Internet connectivity requires access services from an Internet access provider. Contact your local access provider for details. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.
Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms and Conditions or any purchase order or invoice, or any document in electronic or written form that is signed and delivered by each of the parties. This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof. This is a very bold statement and will be a strong discussion point with the customer as almost every customer I have ever worked with has a specific set of terms and conditions spelled out on the actual PO or on a supplier specific internet page accessible from the web. How will we determine dominance on this issue when working with customers on PO’s. For example: OtterBox
THESE TERMS AND CONDITIONS AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN SANTA CLARA, CALIFORNIA, AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one (1) year after the cause of action has arisen. The rights and remedies provided Seller under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
Risk of Loss
Risk of loss and title to products shall pass to Customer upon delivery to the carrier, unless it is established that Seller was grossly negligent in its selection of the carrier used in connection with the particular shipment to Customer. Seller shall, as part of its regular shipping process, insure the Products for their replacement value to the extent allowable under its insurance policies, while the Products are in transit.
Customer agrees to cooperate with Seller in connection with performance of Seller’s duties by providing (i) timely responses to Seller’s inquiries and requests, and (ii) access to any information or materials reasonably requested by Seller which are necessary or useful as determined by Seller in connection with providing the Products, including, but not limited to, prompt responses to any questions or inquiries regarding technical or production matters, access to Customer’s production facilities, specifications and technical staff. Customer acknowledges and agrees that the Products are dependent upon the completeness and accuracy of information provided by Customer and the knowledge and cooperation of its agents or subcontractors (“Personnel”) engaged by Customer who are selected by Customer to work with Seller.
Seller will follow all reasonable Customer security rules and procedures, as communicated in writing by Customer to Seller from time to time, and shall, as appropriate, execute and deliver agreements intended to protect each parties’ intellectual property.
In connection with the delivery and utilization of Products, Seller may provide assistance to Customer, whether at Customer’s place of business, at Seller’s facilities or such other locations as Seller and Customer deem appropriate. When Seller provides such assistance, Seller will conform to Customer’s rules and procedures, to the extent Seller is advised in advance of such matters, and such rules and procedures do not substantially interfere with Seller providing such assistance. Seller shall use all reasonable efforts to provide this assistance during Customer’s normal business hours unless otherwise agreed by the parties.
Orders are not binding upon Seller until accepted by Seller. Customer agrees to pay the total purchase price for the Products, which may include shipping costs. Should Customer elect to use a carrier of its choosing, Customer shall pay such freight and shipping charges. Terms of payment are net thirty (30) days, unless agreed otherwise, in writing executed or agreed by both parties. If no payment schedule is provided, Customer will pay for the Products as invoiced by Seller. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice, subject to continuing credit approval by Seller. Seller shall issue an invoice to Customer. Seller may invoice Customer separately for partial shipments. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law. Customer will pay for, and will indemnify and hold Seller harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with any sale of the Products. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide Seller with the necessary supporting documentation. In the event of a payment default, Customer will be responsible for all of Seller’s costs of collection, including, but not limited to, court costs, filing fees and attorneys’ fees. In addition, if payments are not received as described above, Seller reserves the right to suspend all future shipments of Products until payment is received.
If this transaction involves an export of Products subject to the Export Administration Regulations, such items were exported from the United States by Seller in accordance with the Export Administration Regulations. Customer agrees that it will not divert, use, export or re-export such items contrary to United States law. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. The list of such countries subject to United States economic sanctions or embargoes may change from time to time but currently includes Cuba, Iran, Sudan, and Syria. Customer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under United States law to receive such items, including but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturers’ warranties for exported Products may vary or may be null and void for Products exported outside the United States.
All Products shall be developed and produced by Seller in accordance with its usual and customary manufacturing processes. Any specific designs, materials and other attributes in Products shall be agreed in advance by Seller and Customer in a set of specifications (“Specs”) which shall be agreed by both parties to this Agreement, prior to the production of any Products for which such Specs shall apply. To be binding upon Seller, all such Specs shall be signed off by a duly authorized representative of Seller. Most of the Products developed and produced by Seller are custom in nature. As a result, Customer shall be responsible for any and all raw materials, work in progress and unfinished Products, unless agreed in advance and in writing by Seller.
Customer warrants the Products sold to Customer will conform, in all material respects to any Specs which are agreed by and between Customer and Seller prior to delivery of the Products to Customer. Should there be no agreed Spec, then this warranty shall be that all Products shall be merchantable. This warranty shall continue for ninety (90) days from the date Seller ships the Products to Customer. Notwithstanding the foregoing, the warranty described above shall be void, and of no further force or effect, if any of the following occur; (i) the Products are exposed to excessive heat, (ii) Consumer or any party to which the Products are sold or otherwise transferred misuses or fails to use standard industry practices to achieve best utilization of the Products, or (iii) the Products are bent, folded or otherwise handled in a manner that undermines the products’ physical or chemical properties. The foregoing are the sole warranties offered by Seller. In purchasing the Products, Customer is relying on its Specs only, and unless stated to the contrary in the Specs, is not relying on any statements, specifications, photographs or other illustrations representing the Products that may be provided by Seller. SELLER HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY OF NONINFRINGEMENT. Customer expressly waives any claim that it may have against Seller based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any Product and also waives any right to indemnification from Seller against any such Claim made against Customer by a third party. Customer acknowledges that no employee of Seller is authorized to make any representation or warranty on behalf of Seller that is not in this Agreement.
Seller will not be responsible for and no liability shall result to Seller for any delays in delivery of any Product which result from any circumstances beyond Seller’s reasonable control, including, but not limited to, material used in the manufacture of the Product being unavailable, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency.
Pricing Information; Availability Disclaimer
Seller reserves the right to make adjustments to pricing for its Products for reasons including, but not limited to, changing market conditions, Product material discontinuation, Product material unavailability, and Product material price changes. All orders are subject to Product material availability. Seller will notify Customer of any such modifications in pricing, and all such changes shall take effect for orders delivered five (5) days after notification has been given as provided in this section. Therefore, except as expressly set forth in any agreed Specs, Seller cannot guarantee that it will be able to fulfill Customer’s orders.
Any credit issued by Seller to Customer for any reason must be used within two (2) years from the date that the credit was issued and may only be used for future purchases of Products. Any credit or portion thereof not used within the two (2) year period will automatically expire.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL SELLER, OR ITS SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS , EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S UTILIZATION OF THE PRODUCTS BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE. IN THE EVENT OF ANY LIABILITY INCURRED BY SELLER, THE ENTIRE LIABILITY OF SELLER FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR (B) $50,000.00.
Customer’s sole rights to the work product, materials, Products and other deliverables to be provided or created by Seller, including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) or discovered in the course of performance of this Agreement that are embodied in such work or materials (“Work Product”) will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to use such Work Products solely for Customer’s use, and then only to the extent consistent with the intended purpose(s) embodied in any agreed Purchase Order. Customer will have no ownership or other property rights thereto and Customer shall have no right to use any such Work Product for any other purpose whatsoever. Customer acknowledges that Seller may incorporate intellectual property created by third parties into the Work Product (“Third Party Intellectual Property”). Customer agrees that its right to use the Work Product containing Third Party Intellectual Property may be subject to the rights of third parties and limited by agreements with such third parties.
Each party anticipates that it may be necessary to provide access to information of a confidential nature of such party, their respective affiliates or a third party (hereinafter referred to as “Confidential Information”) to the other party in the performance of this Agreement. “Confidential Information” means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement, including but not limited to the terms and conditions of all Specs. Confidential Information will not include information which: (a) becomes known to the public through no act or omission of the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by agents, employees or subcontractors of the receiving party who have not had access to such information. To the extent practicable, Confidential Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
Each Party agrees to hold the other Party’s Confidential Information confidential for a period of three (3) years following the date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind but to use no less than a reasonable degree of care. Disclosures of the other Party’s Confidential Information will be restricted (i) to those individuals who are participating in the performance of this Agreement and need to know such Confidential Information for purposes of providing or receiving the Products or otherwise in connection with this Agreement, or (ii) to its business, legal and financial advisors, each on a confidential basis. Each party agrees not to use any Confidential Information of the other Party for any purpose other than the business purposes contemplated by this Agreement. Upon the written request of a party, the other party will either return or certify the destruction of the Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose Confidential Information of the other Party, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar protective measure and will use reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.
If Customer has previously executed a confidentiality agreement with Seller, that prior agreement shall override any inconsistent or contradictory terms contained herein.
Seller allows Customer to return Products on the terms and conditions, and only pursuant to the procedure set forth in this Agreement. Returns shall only be authorized if the Products (i) are shipped in excess to amounts provided in any Purchase Order accepted by Seller, (ii) if the Products fail to comply with any Specs agreed between Seller and Customer, (iii) fail to comply with the warranty set forth above, or (iv) are otherwise delivered in error by Seller.
An Incoming Inspection Report that lists quantity and type of defect of Products is required to be completed and submitted to Seller within 72 hours.
Prior to returning any Products, Customer shall contact Seller and as a pre-condition to obtaining a Return Merchandise Authorization (“RMA”), describe in detail to properly authorized Seller personnel the basis of Customer’s claim that it is entitled to return the Products. Should Seller reasonably determine that Customer is entitled to return one or more Products, Seller shall issue an RMA to Customer.
All returned Products shall be (i) shipped in proper packaging, so as to minimize any damage that could result from shipping Products to Seller, (ii) shipped in a condition that enables Seller to analyze the returned Products for defects, and (iii) include a part count.
On receipt of Products properly returned to Seller, Seller shall promptly replace all properly returned Products.
Either party may terminate the delivery of Products for cause if the other party fails to cure a material default in the time period specified herein. Any material default must be specifically identified in a written notice of termination. After written notice, the notified party will, subject to the provision of warranties herein, have thirty (30) days to remedy its performance except that it will only have ten (10) days to remedy any monetary default. Failure to remedy any material default within the applicable time period provided for herein will give cause for immediate termination, unless such default is incapable of being cured within the time period in which case the defaulting party will not be in breach (except for Customer’s payment obligations) if it used its reasonable efforts to cure the default. In the event of any termination of this Agreement, Customer will pay Seller for all materials Seller has obtained for use specific to Customer’s agreed Purchase Order(s) prior to the date of termination. In such event Customer will also pay Seller for any out-of-pocket demobilization or other direct costs resulting from termination. Upon termination, all rights and obligations of the parties under this Agreement will automatically terminate except for any right of action occurring prior to termination, payment obligations and obligations that expressly or by implication are intended to survive termination (including, but not limited to, limitation of liability, indemnity, confidentiality, or licensing of Work Product and this survival provision).
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims) arising from or relating to the Products, the interpretation or application of these Terms and Conditions or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or Seller’s advertising or marketing (collectively, a “Claim”) WILL BE RESOLVED, UPON THE ELECTION OF ANY OF SELLER, CUSTOMER OR THE THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association. If arbitration is chosen by any party with respect to a Claim, neither Seller nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Notwithstanding any choice of law provision included in these Terms and Conditions, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place exclusively in Santa Clara County, California. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to Seller arising out of the Products will be exclusively litigated in court rather than through arbitration.
Seller may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or assign the right to receive payments, without Customer’s consent. Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of Seller. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No provision of this Agreement will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between Seller and Customer is that of independent contractors and not that of employer/employee, partnership or joint venture. If any term or condition of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement. Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.