1. As used herein the term “Seller” shall mean Haphit and the term “Buyer” shall mean the person or entity desiring to purchase goods from Seller. The terms and conditions of sale contained herein apply to all quotations made and purchase orders entered into by Seller. These terms and conditions may in some instances conflict with some of the terms and conditions stated in the Buyer’s purchase order form and other communications to Seller. Therefore, Seller’s acceptance of Buyer’s order is made only on the express understanding and condition that insofar as the terms and conditions of this order acknowledgement and acceptance conflict with any terms and conditions of Buyer’s order, the terms and conditions stated herein shall govern, irrespective of whether Buyer accept these conditions by written acknowledgement, by implication, or by acceptance and payment for goods ordered hereunder. Seller’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of the provisions of any invoice.
2. Prices for all of Seller’s products shall be accordance with Seller’s product price list in effect on the date of shipment unless otherwise specifically agreed to between Buyer and Seller. The Amount of all transportation charges from Seller’s shipping location and of all taxes and other charges now and hereafter imposed by any governmental authority upon the manufacture, production, sale, purchase, delivery, possession or resale of the products specified herein, which may be paid by Seller of for which Seller may be liable, shall be the responsibility of the Buyer and shall be paid to Seller in addition to the purchase price of the products, unless otherwise agreed in writing.
3. All goods are payable in advanced payment unless credit arrangements have been made with Seller.
4. All sales are made F.O.B. the Seller’s warehouse. Subject to Seller’s right of stoppage in transit, delivery of products to a carrier at the shipping point in good condition shall constitute delivery to Buyer and risk of loss shall thereupon pass to Buyer provided, however, title shall remain in Seller until Buyer makes payment in full for any such products. In the absence of shipping instructions, Seller shall select a carrier who shall be deemed to act as Buyer’s agent, notwithstanding any payment by Seller of freight changes made for Buyer’s account. Seller shall have no liability for any events occurring during shipment: any claims for damages or loss shall be filed with the carrier. Delivery of any installment of products within 30 days after the date specified shall be deemed timely unless Seller receives written notice of cancellation prior to shipment. Delivery of a quantity which does not vary by more than 10% from the quantity specified by Buyer shall constitute full performance of such delivery. Late delivery of one installment shall entitle Buyer to cancel that installment only.
5. All shipping dates are approximate. Seller will exercise reasonable efforts to fill all orders according to the agreed schedule(s): provided, however, Seller shall not be responsible for any failure to perform or delay in performing which is directly or indirectly due to any governmental or military regulation or requirement, act of God, war, riot, embargo, fire, flood, strike or other labor dispute, unavailability of materials or transportation facilities, or any other unforeseen circumstances or causes beyond the Seller’s control. Any affected delivery date shall be deemed extended for a period of time equal to the delay incurred.
6. Seller warrants that the product sold shall be free from defects, except those reasonably likely to result from the quality required or permitted, in material and workmanship for 1 year unless otherwise stated from the date of receipt by Buyer. Seller’s duty and Buyer’s remedy under this warranty is limited to Seller’s correcting any such defect reported to Seller within the warranty period by, at Seller’s option, repair or replacement, provided that Buyer is not otherwise in default. Exchanged parts become Seller’s property. Seller does not agree under this warranty to bear the cost of repairs or replacements due to vandalism, abuse, misuse, neglect, normal wear and tear, modifications not executed by Seller, improper handling by others, or any causes beyond Seller’s control. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY RELATING TO INTELLECTUAL PROPERTY INFRINGEMENT OF SELLER’S ?PRODUCTS.
7. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY ?KIND INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT, LOSS OF GOOD WILL, LOSS OF BUSINESS OPPORTUNITY, ADDITIONAL FINANCING COSTS, OR LOSS OF USE OF ANY EQUIPMENT OR PROPERTY, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), IN WARRANTY OR OTHERWISE. BUYER’S REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND SELLER’S LIABILITY WITH RESPECT TO ANY CONTRACT, OR ANYTHING DONE IN CONNECTION THEREWITH SUCH AS PERFORMANCE OR BREACH THEREOF, FROM THE MANUFACTURE, SALE, DELIVERY, INSTALLATION, REPAIR OR USE OF ANY PRODUCT FURNISHED UNDER THIS CONTRACT, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), IN STRICT LIABILITY, IN WARRANTY OR OTHERWISE, SHALL NOT EXCEED THE PRICE FOR THE PRODUCT.
8. Buyer shall be deemed to have accepted the products unless notice of rejection is given within a reasonable time, which is agreed to be within 15 calendar days after receipt. Buyer expressly waives any right to revoke acceptance thereafter. Claims of late delivery are barred unless made prior to receipt of products and the receipt of any product shall constitute waiver of any claim that such items are delivered late. No return of products will be accepted by Seller without a return authorization number (RMA#) which may be issued in Seller’s sole discretion.
9. In the event of Buyer’s default in payment for the products purchased hereunder, Buyer shall be responsible for all reasonable costs and expenses incurred by Seller in collection of any sums owing by Buyer (including reasonable attorney’s fees), and Seller may decline to make further shipments to Buyer without in any way affecting its rights under this Agreement. If, despite any such breach by Buyer, Seller elects to continue to make shipments, such shipments shall not constitute a wavier of any breach by Buyer or in any way affect Seller’s legal remedies arising from such breach. Should Buyer elect to cancel its order, Buyer shall be liable to Seller for reasonable cancellation charge which shall include without limitation all costs and expenses incurred by Seller in connection with procuring and filling Buyer’s order, which shall not exceed the actual resale price of the products cancelled. If Buyer becomes bankrupt or insolvent or files or has filed against any petition in bankruptcy, or makes an arrangement for the benefit of its creditors, or suffers a receiver or similar part to be appointed, Seller shall be entitled to cancel this Agreement without judicial intervention or declaration of default of Buyer and without prejudice to any remedy which shall thereafter accrue to Seller.
10. The sale of Products does not convey to Buyer any license or other right with respect to any patent, patent claim, other intellectual property, or other information which is identified as confidential by Seller or that a reasonable person would consider confidential by the nature of the information or the circumstances of its disclosure. Seller expressly reserves all of its rights to any such patent, patent claim, intellectual property or confidential information. Buyer agree to notify Seller promptly in writing of any third party claims that any Seller’s product(s) infringes that party’s intellectual property rights. Any invention created in the course of seller’s producing product under this order shall be seller’s property.
11. Neither Buyer nor Seller shall be liable to the other party hereto for any loss, damage or delay due to any cause beyond Buyer’s or Seller’s reasonable control, ?including, but not limited to, acts of government, strikes, lockouts, fire, explosion, theft, floods, riot, civil commotion, war, malicious mischief, or ?acts of God.
12. If this product is produced in accordance with Buyer’s specification, Seller’s sale of a product in accordance with Buyer’s specification does not create any relationship of exclusivity between the parties and Seller may sell similar products to others.
13. In consideration of Seller’s investment to achieve a product meeting Buyer’s specifications, Buyer’s purchase order represents a binding commitment to buy the quantity stated during the period stated. Failure to honor this commitment shall be a breach of contract and Seller shall be entitled to the full measure of damages, including lost profits.
14. Seller reserves the right to unilaterally terminate any offer or contract with Buyer at any time prior to shipment if performance of the contract may violate, in Seller’s judgment, any applicable laws or regulations relating to the export of products or technology.
15. Seller shall in no case be liable for negligence or under and product liability theory or similar legal theory. In no event shall Seller be liable for incidental or consequential damages, even if advised of the possibility of such damages or if such damages were foreseeable.
16. This agreement shall be governed by the laws of the State of Delaware of USA (or U.S. Federal Law if such law preempts Delaware Law), without regard to conflicts of law provisions.
17. If any legal action or any arbitration or other proceedings are brought for the interpretation or enforcement of this Agreement, or any rights of the parties with regard to this Agreement, or any related agreement, or because of an alleged dispute, breach, or default, the successful or prevailing party shall be entitled to recover its actual attorney’s fees and expenses and any costs associated with any enforcement proceedings.