Terms and Conditions
Unless otherwise expressly agreed to in writing signed by Sconix Outdoors LLC (Seller) and Buyer, this Agreement constitutes the entire agreement of the parties and supersedes all prior negotiations, proposals, agreements and understandings, whether oral or written, relating to the subject matter of this Agreement.
1. Acceptance of Orders – Seller’s acceptance of all orders and all offers and sales by Seller are subject to and expressly conditioned upon Buyer’s assent to the terms and conditions of this Agreement. The Agreement consists of these terms and conditions, Seller’s quotation, if any, and Seller’s order acknowledgement. Buyer’s acceptance of any offer by Seller must be made on such terms and conditions change header exactly as offered by Seller. Any of Buyer’s terms and conditions which are different from or in addition to those contained in this Agreement shall be of no effect unless specifically agreed to in writing by Seller. Commencement of performance or shipment shall not be construed as acceptance of any of Buyer’s terms and conditions which are different from or in addition to those contained in the Agreement. Acceptance by Buyer of Goods furnished by Seller shall be deemed Buyer’s assent to all of the terms and conditions of this Agreement.
2. Prices and Shipment – Unless specifically otherwise agreed, all prices for transactions with the United States are FOB Origin, and for international transactions, FCA Origin (in each case per Incoterms 2010). Buyer is responsible for all costs of shipping whether or not shipping is arranged by Buyer or Seller.
3. Taxes and Duties – Buyer is responsible for the payment of any use tax, sales tax, excise tax, duty, custom, 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 Buyer and Seller in addition to the prices quoted or invoiced except (in the case of sales or use tax) if Buyer provides Seller with an exemption certificate or other similar document acceptable to the relevant government authority and Seller.
4. Payment – Payment terms are net thirty (30) days after the date of Seller’s invoice. All payments are to be in United States dollars. Payment made from non-United States countries shall be made by wire transfer, with all applicable fees paid by Buyer.
5. Title, Delivery and Risk of Loss – Title and risk with respect to the Goods shall pass to Buyer upon delivery of Goods at the point of delivery. Buyer is solely responsible for the cost of any insurance against loss or damage in transit. If either (i) Buyer fails to accept delivery of any of the Goods or (ii) Buyer requests Seller to store the Goods, in either case for longer than [__] days after the same are ready for delivery Buyer shall pay Seller’s customary storage fees (payment of which shall be on condition of future delivery).
6. Changes – Either Buyer or Seller may at any time propose changes in the schedule or scope of Goods or Services. Seller is not obligated to proceed with any change until both parties agree upon such change in writing. The written change documentation will describe the changes in scope and schedule, and the resulting changes in price and other provisions, as agreed.
7. Inspection and Acceptance of Goods – Buyer has thirty (30) days from delivery by Seller to inspect and reject Goods. Failure to inspect and reject non-conforming Goods within this time period shall be deemed acceptance of Goods by Buyer with full responsibility for payment. If Buyer believes that the Goods are non-conforming, Buyer shall notify Seller in writing within this period to request a Return Material Authorization (“RMA”). If Seller issues the RMA, Buyer shall return the Goods to Seller as instructed. If Seller agrees that the Goods are non-conforming, Seller, at its own expense, will either repair or replace the non-conforming goods or, repeat the Services (if applied to Buyer Materials supplied by Seller). In this case Seller will be responsible for all costs of shipment (both to and from Seller). THE FOREGOING SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF BUYER WITH RESPECT TO ANY NON-CONFORMING GOODS. If Seller believes the Goods are not non-conforming, Seller will return the same to Buyer at Buyer’s expense together with written explanations for Seller’s conclusions with respect thereto.
8. Buyer Materials – If Buyer supplies Buyer Materials for the purpose of this Agreement, Buyer agrees that Buyer shall bear all and insure against all risk of loss at all times while such Buyer Materials are at Seller’s facility or under the direction and control of Seller. Unless caused by the gross negligence or willful misconduct of Seller, in no event shall Seller be liable for any loss or damage to the Buyer Materials.
9. Limitation of Liability – IN NO EVENT WILL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, COST OF CAPITAL, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, ANY LIABILITY OF BUYER TO A THIRD PARTY, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY OR PROPERTY DAMAGE. SELLER’S LIABILITY FOR DAMAGES HERE-UNDER SHALL IN NO CASE EXCEED THE CONTRACT PRICE FOR THE SPECIFIC PRODUCTS OR SERVICES THAT GIVE RISE TO THE BREACH. THESE EXCLUSIONS AND LIMITATIONS ON DAMAGES SHALL APPLY REGARDLESS OF HOW THE LOSS OR DAMAGE MAY BE CAUSED AND AGAINST ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY.
10. Limited Warranty – EXCEPT AS SPECIFIED IN SECTION 7 ABOVE, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR MERCHANT-ABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OR TRADE.
11. Intellectual Property Rights – Except as expressly agreed in writing by Seller, the sale of products or provision of services hereunder does not convey any express or implied license under any patent, copyright, trademark or other proprietary rights owned or controlled by Seller, whether relating to the goods sold, service provided, or any manufacturing process or other matter. All rights under any such patent, copyright, trademark or other proprietary rights are expressly reserved by Seller, including the exclusive right to determine whether or not and where a patent application shall be filed and the disposition of any rights thereunder.
12. Patent Indemnity – Buyer shall indemnify, defend and hold harmless Seller and its directors, officers, employees, agents and customers against all costs, losses, damages and liabilities of every kind, including reasonable attorney’s fees, arising from or related to claims that the manufacture, use, sale or disposal of Goods infringes any patent, trademark, copyright, trade secret or other intellectual property right if the alleged infringement concerns: (i) Goods that Seller made to Buyer’s specifications or designs; (ii) misuse or modification of the Goods by Buyer or its employees or agents; or (iii) use of the Goods in combination with other materials, goods, products, or services for which the Goods were not intended to be used.
13. Indemnification – Buyer shall defend, indemnify, and hold harmless Seller and it directors, officers, employees, and shareholders from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees, or expense (including reasonable attorney and professional fees and costs, and the costs of enforcing any right to indemnification hereunder) arising out of or occurring in connection with the negligence or willful misconduct of Buyer or its employees or agents, including but not limited to: (i) any misuse or modification of the Goods by Buyer or its employees or agents, (ii) any act (or failure to act) by Buyer or its employees or agents in contravention of any safety procedures or instructions that Seller provides to Buyer or its employees or agents, or (iii) the failure to store, install, operate, or maintain the Goods in accordance with instructions.
14. Fixture and Tools – Seller’s means of manufacture and title to set-ups, fixtures and tools required for performance in connection with this Agreement (“Manufacturing Materials”) are property interests of Seller and shall remain as such upon the completion of any Agreement. Seller reserves the right to alter, sell, destroy or otherwise dispose of Manufacturing Materials at any time after one year after the date of final delivery of Goods. Buyer shall not acquire any right, title or license to any Manufacturing Materials even if specifically purchased for the purposes of this Agreement and whether or not using funds provided by Buyer unless specifically agreed in writing to the contrary.
15. Technical Data – The term Technical Data means all data proprietary to Seller or its contractors or licensors, including, without limitation, all designs, drawings, reports, specifications blueprints, plans, software, schematics, manufacturing processes, techniques and documentation, data or other information obtained by Buyer from Seller [or developed or modified by Buyer] in connection with the performance of this Agreement. Technical data does not include any information already in the public domain. Buyer agrees that Seller (or as applicable, its contractors or licensors) shall at all times have exclusive title to and ownership of Technical Data. Buyer shall hold the Technical Data in strict trust and confidence and shall not use Technical Data except as contemplated hereunder. [not specified elsewhere]
16. Confidentiality - All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, designs, plans, drawings, documents, data, business operations, customer lists or pricing that Seller discloses to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as confidential in connection with the Agreement is confidential, solely for the use of performing the Agreement, and may not be disclosed or copied unless authorized in advance by Seller in writing. Neither Buyer nor Seller shall make any public announcement about the Agreement without prior written approval of the other party. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Buyer agrees to take reasonable measures to prevent disclosures of confidential information to third parties and not to disclose confidential information to a competitor of Seller. This section shall not apply to any portion of the confidential information that: (i) is or becomes generally available to the public other than as a result of disclosure by Buyer, its representatives or its affiliates; (ii) is or becomes available to Buyer on a non-confidential basis from a source other than Seller when the source is not subject to a confidentiality obligation to Seller; (iii) is independently developed by Buyer, its representatives or affiliates, without reference to the confidential information; or (iv) is required to be disclosed by law or valid legal process provided that the Buyer intending to make disclosure in response to such requirements or process shall promptly notify the Seller in advance of such disclosure and reasonably cooperate in attempts to maintain the confidentiality of the confidential information.
17. Export – Seller’s export of products and any related technical information may be subject to United States and/or other national or international laws and regulations controlling the export and re-export of technical data and products, or limiting the export of certain products to specified countries. Seller shall not be obligated to export, transfer or deliver any products or related technical information to Buyer if prohibited by applicable law or until all necessary governmental authorizations have been obtained. Seller shall not be liable for any expenses or damages resulting from failure to obtain or delays in obtaining any required government authorizations. Buyer shall comply fully with all export administration and control laws and regulations of the U.S. government and/or other national or international laws and regulations as may be applicable to the export, re-export, resale or other disposition of any products purchased from Seller.
18. Governing Law – This Agreement shall be governed by and shall be construed in accordance with the laws of the State of California irrespective of its rules regarding conflict of laws. Any litigation related to this Agreement shall be brought in a federal court in the Northern District of California and venued in San Francisco. The prevailing party in any such litigation shall be entitled to recover its costs and expenses of any such litigation including, without limitation, all expert witness fees and reasonable attorney’s fees and costs.
19. Audits – Seller considers the financial information supporting the cost and pricing data, if submitted as part of an Agreement, to be sensitive and proprietary and, therefore, not subject to audit by Buyer unless otherwise specifically agreed by Seller.
20. Termination – In addition to other remedies that Seller may have, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount due under this Agreement and such failure continues for ten (10) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files for petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
21. Force Majeure – Neither party shall be liable for any failure to perform or delay in performance of this Agreement to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, cyber or hostile network attacks, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond such party’s commercially reasonable control. If an excusable event occurs, the schedule for Seller’s performance shall be extended by the amount of time lost by reasons of the event plus such additional time as may be needed to overcome the effect of the event. If acts or omissions of the Buyer or its contractors or suppliers cause the delay, Seller shall also be entitled to an equitable price adjustment.
22. Severability – If any provision herein is held to be invalid or unenforceable for any reason, such provision or provisions shall, to the extent of such invalidity or unenforceability, be severed, but without in any way affecting the remainder of such provision or any other provision contained herein, which shall continue in full force and effect.
23. Waivers – The failure of either party to enforce any of its rights hereunder shall not constitute a waiver of such rights or of any other rights hereunder.
24. Assignments – Buyer shall not assign or transfer any rights or claims under this Agreement without the prior written consent of Seller, and any purported assignment made without such consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties.
25. Headings – The Section headings in these Terms are intended for convenience of reference only and shall not affect the interpretation of any provision.