GELTOR, INC. (“SELLER”) GENERAL TERMS AND CONDITIONS OF SALE
1. EXCLUSIVE TERMS, CONDITIONS AND LIMITATIONS OF OFFER. These General Terms and Conditions of Sale (the “Terms”) set forth the terms and conditions of Seller’s sale of goods and/or services (collectively the “Products”) to the buyer (“Buyer”). Neither these Terms nor any commencement of work necessary to sell such Products is an acceptance of any offer of Buyer. Seller’s agreement to enter into any order and/or supply the Products to Buyer is based upon Buyer’s acceptance of the terms and conditions stated in these Terms to the exclusion of all other terms, and notwithstanding any different or additional terms or conditions in the Buyer’s order or any other purchase documents (which are hereby expressly rejected by Seller), Buyer agrees that the terms and conditions in these Terms shall apply, supersede and take precedence over all such different or additional terms or conditions, and shall constitute the entire agreement between Seller and Buyer. These Terms cannot be superseded, modified, altered, or added to except by a subsequent written instrument signed by an authorized officer of Seller that explicitly refers to these Terms and identifies the particular provision that is intended to be superseded, modified, altered, or added to. All orders become binding (the “Order(s)”) upon receipt of Buyer’s acceptance of a written quote provided by Seller (the “Quote”) or upon acceptance of Buyer’s purchase order by Seller (the “Purchase Order”) at its office in Emeryville, California. Buyer shall have no right to cancel any accepted Order without the prior written consent of Seller.
2. PRICES. The Prices charged for Products shall be Seller’s current prices as indicated in the Order.
3. DELIVERY; SECURITY INTEREST. Any time or date stated for shipping or delivery is an estimate only and the Seller shall not be liable for failure to ship or deliver at the specified time or on the specified date, nor shall such failure on the part of the Seller be deemed to be a breach of these Terms, or any Order or part thereof. Overruns or underruns of up to ten percent (10%) shall constitute due performance of any Order. Delivery of Product shall be Ex Works (Incoterms 2020) Seller’s facility and title to and risk of loss of all Products will pass to Buyer upon Seller making the Products available for pickup at its facility, unless otherwise specified in writing. Buyer hereby grants to Seller a purchase money security interest in the Products sold hereunder and the proceeds, including insurance proceeds, thereof in any form, to secure payment of the purchase price. In the event of default by Buyer of any of its payment obligations to Seller, Seller will have all of the rights of a secured creditor under the Uniform Commercial Code, including without limitation the right to repossess the Products sold hereunder without liability to Buyer. In such event, Buyer agrees to make the Products available to Seller so that Seller can repossess them without a breach of the peace. A copy of these Terms may be filed with appropriate authorities at any time as a financing statement in order to perfect Seller’s security interest. On request of Seller, Buyer will execute financing statements and other instruments that Seller may request to perfect its security interest.
4. PAYMENT. Order invoices shall be issued upon shipment of Products and are due and payable within thirty (30) days from the date of invoice. All invoices must be paid in accordance with the terms on the face thereof without deductions, set offs, counterclaims, back charges or any other charges whatever and the obligations of Buyer to Seller shall remain unimpaired regardless of disputes which may arise between Buyer and other persons or entities. Each shipment shall constitute a separate and independent transaction and Seller may recover for each such shipment without reference to any other. If Buyer is in default with respect to any terms or conditions of these Terms, then, in addition to any other legal remedy available to Seller, Seller may, at its option, defer further shipments hereunder until such default is remedied, or, Seller may decline further performance under any Order. If, in the judgment of Seller, the financial responsibility of Buyer shall at any time become impaired, then, in addition to any other remedy available to Seller, Seller may decline to make further deliveries under these Terms or any Order, except upon receipt, before shipment, of payment in cash or satisfactory security for such payment. The representations and agreements of Buyer in any application for credit from Seller are hereby incorporated by reference. Amounts unpaid after the payment term shall accrue interest compounded monthly at the annual rate of 18% or the maximum legal rate, if less. Buyer shall be responsible for, and shall reimburse Seller for, all fees and costs of collection hereunder (including but not limited to attorneys’ fees and court costs).
5. LIMITED WARRANTIES. Determination of the suitability of the Product(s) supplied hereunder for the uses and applications contemplated by Buyer and others shall be the sole responsibility of Buyer, which is relying on its own skill and judgment in the selection of the Product(s) and for the determination of the efficacy and effect of the Product(s) in Buyer’s products, usage, and applications. Buyer hereby represents and warrants that the Buyer is solely purchasing the Product(s) for use in further manufacturing of its own products, and Buyer understands and agrees that it will not transfer or resell any Product to any third party other than to its own wholly-owned corporate affiliates for use by them in further manufacturing of Buyer’s products on Buyer’s behalf.
(a) Seller warrants that the Product, on the date of production, will comply in all material respects to Seller’s Product specification. BUYER’S SOLE REMEDY, AND SELLER’S SOLE OBLIGATION, WITH RESPECT TO A BREACH OF THIS SECTION SHALL BE, AT THE SELLER’S SOLE OPTION, THE REPLACEMENT OF THE NONCONFORMING PRODUCT WITH A PRODUCT THAT MEETS SUCH WARRANTY OR REFUND OF THE PURCHASE PRICE PAID FOR THE PRODUCT. Other than for a breach of this section, Product may not be returned, refunded, or exchanged.
(b) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5(a) ABOVE, SELLER MAKES NO OTHER WARRANTIES, AND HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Buyer acknowledges that it is not entering into and shall not enter into any order based on any warranty other than those express warranties above. Buyer acknowledges that any product literature or studies related to the Product(s) made available to Buyer by Seller are provided for the general convenience of Buyer and do not constitute a warranty of the performance, suitability or efficacy of the Product(s) when used by Buyer.
(c) BUYER ASSUMES ALL RISK AND LIABILITY FOR ALL LOSS, DAMAGE OR INJURY TO PERSON OR PROPERTY, INCLUDING WITHOUT LIMITATION POLLUTION, ENVIRONMENTAL DAMAGE AND RESTORATION LIABILITY, RESULTING FROM (i) THE USE OF SAID PRODUCT IN MANUFACTURING PROCESSES OR IN COMBINATION WITH OTHER SUBSTANCES, OR OTHERWISE, (ii) THE HANDLING AND DISPOSAL OF THE PRODUCT, AND (iii) RAW MATERIAL FURNISHED BY THE BUYER. Buyer acknowledges that Seller has not and will not substantially participate in the design of Buyer’s product or in the integration of the Product(s) into the design of Buyer’s products, usages, or applications.
6. LIMITATION OF REMEDIES, DAMAGES AND TIME LIMIT OF CLAIMS. Notwithstanding anything herein to the contrary, all claims by Buyer relating to these Terms, the Products or any order relating to the Products, including with respect to allegedly nonconforming or defective Products, shall be made by Buyer in writing within thirty (30) days of receipt of shipment of such Product, after which the Product shall be deemed accepted for all purposes and Seller shall have no liability for same or otherwise relating to these Terms or such order (regardless of the form or basis of any action) and Buyer shall be deemed to have waived any otherwise applicable statute of limitations. Claims with respect to Products must be verified by an authorized representative of Seller, and Buyer must obtain authorization and shipping instructions from Seller prior to returning any Products. Risk of loss of same shall remain with Buyer until delivery to Seller.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY (i) FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS, GOOD WILL OR MARKET RECOVERY OF FINISHED GOODS (EVEN IF SELLER IS ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES), OR (ii) IN THE AGGREGATE IN EXCESS OF AMOUNTS ACTUALLY RECEIVED BY SELLER FOR THE PRODUCTS AT ISSUE UNDER THE APPLICABLE ORDER, REGARDLESS OF THE FORM OR BASIS OF ANY ACTION.
7. TAXES. Buyer shall reimburse Seller for all taxes, increases in or new taxes, excises, or other charges which Seller may be required to pay to any governmental authority (national, state, provincial or local) upon, or measured by, the sale, production, transportation or use of any Product sold hereunder.
8. COMPLIANCE WITH LAWS. Seller and Buyer shall comply with applicable laws and regulations in all materials respects, including without limitation those regarding product registration and regulation; environmental health and safety; transportation; customs and trade; anti-bribery and export controls; and any consumer fraud acts, and deceptive and unfair trade practices acts. Buyer agrees to comply with all applicable U.S. export control laws and clearance requirements, including but not limited to the Export Administration Regulations (15 C.F.R. Part 700) and the Foreign Trade Regulations (15 C.F.R. Part 30) in the export, reexport, transfer, and use of the Products.
9. INDEMNITY. Buyer acknowledges and agrees that it has expertise and knowledge in the proper handling, processing, storage, transportation, sale, labeling, use and disposal of the Products. Buyer shall assume full responsibility for proper handling, processing, storage, transportation, sale, labeling, use and disposal of the Products after shipment to Buyer, and shall defend, indemnify and hold harmless Seller and its affiliates, officers, directors, shareholders, employees, agents and representatives from and against all losses, liabilities, claims, damages, demands, actions, costs and expenses (including without limitation attorneys’ fees and court costs) (collectively, “Losses”) arising out of or relating to same, including without limitation Losses arising out of or relating to the manufacture, supply, design, sale, marketing, labeling, distribution or use of any product using or incorporating the Products.
10. PATENTS; TRADEMARKS; UNPATENTED INFORMATION. If any Products sold hereunder are to be prepared or manufactured according to Buyer’s specifications or designs, Buyer shall defend, indemnify and hold harmless Seller and its affiliates, officers, directors, shareholders, employees, agents and representatives against any claims or liability for violation of any intellectual property rights, including patent, trade secret or trademark rights, owned or controlled by third parties in the United States or in any other country on account of such preparation or manufacture. The sale of Products shall not expressly or impliedly grant to Buyer any right or license of any kind under any patent, patent application, or other industrial property right owned or controlled by Seller or its affiliates, other than the limited right to use such Products as sold hereunder; notwithstanding anything else, Buyer shall not reverse engineer or otherwise attempt to discover the formulas or ideas underlying any Products.
11. FORCE MAJEURE. Neither party shall be liable for its failure to perform hereunder (other than Buyer’s obligation to make payments hereunder) if said performance is made impracticable due to any circumstances beyond the reasonable control of the party affected, including but not limited to, acts of God, acts of terrorism, fires, floods, wars, sabotage, accidents, pandemics, epidemics, labor disputes or shortages, plant shutdown, equipment failure, voluntary or involuntary compliance with any law, order, rule or regulation of government agency or authority, or inability to obtain raw materials or necessary inputs or services including without limitation power, fuel, equipment or transportation.
12. CUMULATIVE REMEDIES. Except for those provisions in these Terms that expressly limit Buyer’s remedies, no remedy conferred by any provision of these Terms is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given in these Terms or existing at law or in equity, by statute or otherwise.
13. ASSIGNMENT; SEVERABILITY. Neither these Terms nor any right or obligation hereunder may be assigned or transferred (including by operation of law) by Buyer without the prior written consent of Seller, and any attempt to do so shall be void. Subject to the foregoing, these Terms shall inure to the benefit of and be binding upon the trustees, successors, and allowable assigns of the parties. If any Section of these Terms, or any part thereof, is determined to be invalid or illegal by any court or administrative agency of competent jurisdiction, then that part shall be limited or curtailed to the extent necessary to make such Section, or part thereof, valid, and all other remaining terms and conditions of these Terms shall remain in full force and effect.
14. WAIVER. Seller’s waiver of any breach, or failure to enforce any of the terms and conditions of these Terms, at any time, shall not in any way affect, limit, or waive Seller’s right thereafter to enforce and compel strict compliance with every term and condition hereof. The acceptance by the Seller of any payment after the specified due date shall not constitute a waiver of the Buyer’s obligation to make further payments on the specified dates. No waiver of any provision of these Terms by Seller shall be valid unless made in writing and signed by Seller.
15. TERMINATION. In the event of Buyer’s breach, bankruptcy, or insolvency, or if any proceeding is brought against Buyer under the bankruptcy or insolvency laws, Seller shall be entitled to cancel any or all Orders then outstanding and shall receive reimbursement for its cancellation charges, which include but are not limited to all costs, direct and indirect, for labor, materials, tools, overhead, and profit to which Seller would be entitled had the Order not been canceled. All payment obligations, disclaimers of warranty, limitations of remedies and liability, indemnities, and other terms that by their nature are intended to extend beyond termination of the applicable Order shall survive termination.
16. GOVERNING LAW. The Buyer and Seller agree that these Terms shall be deemed to have been made and executed in the State of California, United States and that any dispute arising under these Terms and/or the relationship of the parties shall be resolved in accordance with the laws of the State of California excluding any choice of law principles. The parties disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods.
17. DISPUTES. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled by arbitration in San Francisco County, California, using the English language, in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California. Use of the Products is not authorized in any jurisdiction that does not give effect to the provisions of these Terms, including without limitation, this section.