ALL TRANSACTIONS ARE GOVERNED BY SELLER’S TERMS AND CONDITIONS OF SALE. ANY PROPOSAL THAT INCLUDES DIFFERENT OR ADDITIONAL TERMS THAT VARY FROM OAI, LLC, LLC (“SELLER”) TERMS AND CONDITIONS OF SALE ARE OBJECTED TO AND DISALLOWED. NOTWITHSTANDING THE FOREGOING, ANY SUCH COUNTERPROPOSALS BY BUYER SHALL NOT OPERATE AS A REJECTION OF THE CONTRACT OF SALE, BUT AS A REJECTION OF THE ADDITIONAL OR DIFFERENT TERM(S)
1. Formation of Contract. An order is deemed by Seller to be an offer to purchase, which Seller may accept or reject in its sole discretion. Seller’s acceptance of an offer to purchase is binding on Seller only if made by written instrument or, if not by written instrument, by shipment of the products ordered (and acceptance by shipment shall only be binding as to the portion of the order actually shipped by Seller). Any automatic or computer-generated response to an order by Seller’s [internal electronic data exchange system] or otherwise shall not be deemed acceptance of an order. Seller’s acceptance is subject to Seller’s Terms and Conditions of Sale stated herein. All sales are final unless otherwise conveyed by Seller.
2. Payment. All payments shall be due and payable as set forth and specified on issued invoices. Purchaser will only be charged for products shipped. All amounts payable hereunder shall be paid when due, time being of the essence. If Purchaser is late in making payment, OAI LLC, may then charge purchasers credit card on file which purchaser has already provided on their credit card authorization form, rebate agreement with OAI LLC, and/or provided to OAI LLC’s merchant provider (Stripe), suspend production, shipment and/or deliveries, cancel orders, reject future orders, and/or charge a late payment fee, from due date until paid, at 1.5% rate per month or such lessor amount as is the maximum rate of interest allowed by law. Any invoices 120 day’s and older will immediately be sent to 3rd Collection agency. Purchaser shall reimburse OAI LLC, any and all reasonable cost, including collection agency and or attorneys’ fees, incurred by OAI LLC, in collecting any delinquent balance owed.
3. Credit. Seller may, but shall not be obligated to, grant credit terms to Buyer. Acceptance of any order is subject to final credit approval by Seller. Seller reserves the right, in its sole discretion and without prior notice, to suspend production, shipment and/or deliveries, cancel orders, reject future order, and may require cash payments in advance or security satisfactory to Seller if buyer is in delinquent status with Seller.
4. Cost of Delivery, Taxes and Other Charges. Buyer shall pay the costs of delivery of the products. Buyer shall pay all sales, use, excise or similar taxes, or other charges, which Seller is required to pay, or to collect and remit, to any Government (national, state, or local) and which are imposed on or measured by the sale.
5. Transfer of Property and Risk of Loss. Seller retains the right and title to the products sold to Buyer until Seller is paid in full for the products. Buyer shall obtain the right and title to the products upon payment to Seller of the purchase price and any taxes, excise or other charges. The risk of loss, including, but not limited to the risk of loss, theft, damage or destruction of the products, transfers to Buyer [F.O.B. Seller’s factory].
6. No Set-Off. Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Seller shall be made without Seller’s prior, express written approval.
7. Patents. Sellers reserves the right to discontinue deliveries of any products, the manufacture, sale or use of which would, in Seller’s opinion, infringe upon any U.S. patent, trademark or design now or hereinafter issued, registered, or existing and under which Seller is not licensed.
8. Confidential and Private Information. “Privacy Information” means any of OAI LLC’s, business information, related writings, designs and similar work or any other information which is disclosed by OAI LLC to Purchaser and marked or labeled as proprietary, confidential at the time of its disclosure. All Confidential Information shall be the sole property of OAI LLC, and OAI, LLC retains all rights, interest and title. Purchaser agrees to not disclose or provide any Confidential Information to any third party and shall take all precautions to prevent any such disclosures by its agents, employees, or contractors. Purchaser agrees that all intellectual property rights relating to Products, between Purchaser and OAI LLC, are solely owned by OAI LLC. OAI LLC’s sale of products to Purchaser only permits Purchaser a limited, non-transferable right, for Purchaser to use the quality of Products bought from OAI LLC, in accordance of this agreement. The act of OAI LLC, selling Products to Purchaser does not authorize Purchaser a license to OAI LLC’s, intellectual property.
9. Disclaimer of Warranties. THE WARRANTIES SET FORTH HEREIN OR IN SELLER’S WARRANTY DOCUMENTS WITH RESPECT TO A PRODUCT ARE THE ONLY WARRANTIES MADE BY SELLER IN CONNECTION WITH THE PRODUCTS AND THE TRANSACTIONS CONTEMPLATED AS A RESULT OF THIS SALE. SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS TO BUYER OR ANY OTHER PERSON OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, AND SELLER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PRODUCTS SOLD HEREUNDER ARE SOLD ONLY TO THE SPECIFICATIONS SPECIFICALLY SET FORTH BY THE SELLER IN WRITING. SELLER’S SOLE OBLIGATION FOR A REMEDY TO BUYER SHALL BE REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCTS PURCHASED, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES.
10. Limitation of Liability. No claim by Buyer of any kind including, but not limited to, claims for indemnification, whether as to quality or amount of product delivered or non-delivery, shall be greater in amount then the purchase price for the products in respect of which damages are claimed. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF THE PRODUCTS SOLD HEREUNDER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
10.1. Inspection. Buyer shall inspect the products promptly upon receipt for non-conformity (including but not limited to non-conformity for quantity, quality, and/or defects). Failure by Buyer to provide Seller with written notice of a claim within 3 business days from the date of delivery or, in the case of non-delivery, within 3 calendar days from the date of the invoice for the delivery, or, in the case of receipt of incorrect products, within 5 calendar days from the day purchaser received the products shall constitute a waiver by Buyer of all claims with respect to such products. If an error by Buyer results in the shipment of incorrect Products and is reported in writing to OAI LLC within 3 business days from the day Buyer received the Products, Buyer may request a Return Authorization. Where OAI LLC. determines that the Product cannot be shipped back safely, OAI LLC may, at its sole discretion, refuse to issue a Return Authorization or to issue any credit. Products must be returned within five (5) calendar days of receiving a Return Authorization and must be in the original sealed package(s) and unaltered. Upon receipt of Products that have Return Authorization, a credit for the original purchase price less shipping charges, if applicable, will be issued. (Not applicable for Advanced Skin Substitute)
11. Excuses for Non-Performance. If the manufacture, transfer, or receipt by either party of any products covered hereby is prevented, restricted, or interfered with by reason of any event beyond the reasonable control of the party so affected, such party shall be excused from making or taking deliveries hereunder to the extent of such prevention, restriction or interference, and neither party shall be liable to the other for default or delay in performing, except with respect to Buyer’s payment obligations.
12. Seller’s Rights. If Buyer should fail in any manner to fulfill the terms and conditions hereof, Seller may defer further shipments until such default is cured. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to Seller. If for any reason, the quantities of the products covered hereby or of any materials used in the production of the products reasonably available to Seller shall be less than Seller total needs for its own use and for sale, Seller may allocate its available supply of products among its existing or prospective purchasers and/or its own departments, divisions and affiliates in such manner Seller deems proper in Seller’s sole discretion, without thereby incurring liability on account of the method of allocation determined or its implementation or for failure to perform this Agreement.
13. Governing Law. This Agreement shall be construed, and the respective rights and duties of Buyer and Seller shall be determined, according to the laws of the State of Arizona, without giving effect to its principles of conflicts of laws. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
14. Dispute Resolution. Any dispute, controversy or claim arising out of or related in any way to these Terms and Conditions of Sale and/or any sale and purchase of products hereunder or any transaction contemplated hereby which cannot be amicably resolved by the parties shall be settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before a panel of [three (3)] arbitrators sitting in [insert state (specify county)]. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of Arizona. The decision of the arbitrators shall be in writing with written findings of fact and shall be final and binding on the parties. The arbitrator shall be empowered to award money damages, but shall not be empowered to award incidental damages, consequential damages, indirect damages, statutory damages, special damages, exemplary damages, punitive damages, or specific performance. Buyer will bear all costs for both parties relating to the arbitration proceedings irrespective of its outcome.
15. No Assignment. This contract between Buyer and Seller is not transferable by either party without the prior written consent of the other party, except that Seller may assign this Agreement without Buyer’s consent if the assignment is to a to an affiliate or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of Seller’s assets.
16. Compliance with Laws; Export Laws. Buyer and Seller shall comply with all applicable international, national, state, regional and local laws, and regulations with respect to their performance of this Agreement. Buyer agrees to adhere to all applicable US Export laws and regulations with respect to the products.
17. Miscellaneous. These Seller’s Terms and Conditions of Sale are the sole and exclusive statement of the parties’ understanding and agreement with respect to the transactions contemplated by this sale, notwithstanding any other terms that might be contained in any purchase order or other document received from Buyer or submitted to Seller. These Terms and Conditions of Sale constitute the entire agreement between the parties regarding the subject matter hereof and can only be modified or changed in writing and signed by authorized representatives of both parties. No waiver by Seller of any of Seller’s Terms and Conditions of Sale or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case. No waiver shall be deemed to occur as a result of the failure to enforce any term or condition of these Seller’s Terms and Conditions of Sale. If any clause or portion hereof shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining clauses or portions shall remain in full force and effect. The paragraph headings are for convenience only and shall not be used in interpreting or construing these Seller’s Terms and Conditions of Sale.