ALL SALES MADE BY OSTERHOUT GROUP, INC. (D.B.A. OSTERHOUT DESIGN GROUP) ("SELLER") ARE MADE ON THE FOLLOWING TERMS AND CONDITIONS. BY ACCEPTING OR USING PRODUCTS OF THE SELLER THE BUYER ("BUYER") AGREES AS FOLLOWS:
Prices are exclusive of all federal, state, municipal, or other government, excise, sales, use, occupational, or like taxes or duties now in force or enacted in the future, excepting only taxes based on Seller's net income. Any such tax, fee, or charge of any nature whatsoever imposed by any governmental authority on, or measured by, the transaction between Seller and the Buyer shall be paid by the Buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee, or a charge, at the time of sale or thereafter, the Buyer shall reimburse Seller therefor.
Delivery will be made F.O.B. Seller's plant, San Francisco, California. The time of delivery is the time the product to be delivered is picked up by the carrier.
Title to the products shall pass to the Buyer upon delivery thereof by Seller to carrier (F.O.B. San Francisco, California) and upon delivery the Buyer shall be responsible for and bear the entire risk of loss or damage to the products.
In the absence of specific shipping instructions, Seller will ship by the method it deems most advantageous. Transportation charges will be collected from Buyer upon delivery, or if prepaid, will be subsequently invoiced to Buyer. Unless otherwise indicated, Buyer is obligated to obtain insurance against damage to the material being shipped. Unless otherwise specified, products shall be shipped in standard commercial packaging. When special or export packaging is requested or, in the opinion of Seller, required under the circumstances, the cost of the same, if not set forth on the invoice, will be separately invoiced.
Seller hereby reserves, and Buyer grants to Seller, a purchase money security interest in the products sold and the proceeds thereof. In the event of default by Buyer of any of its obligations to Seller, Seller shall have the right to exercise all rights of a foreclosing secured party under the Uniform Commercial Code, including without limitation the right to repossess the products sold hereunder. In such event, Buyer agrees to assemble and otherwise make the products available to Seller at such location as may reasonably be specified by Seller. Buyer agrees that a copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage, in order to perfect Seller's security interest. On request of Seller, Buyer will execute financing statements and other instruments Seller shall reasonably request to perfect its security interest.
Terms are net on delivery Sellers plant. Accounts thirty (30) days past due will be subject to a monthly charge at the rate of one and one-half percent (1.5%) per month or the maximum permitted by law, whichever is less. Orders from customers with invoices that are sixty (60) days overdue (i.e., not paid within sixty (60) days of invoice date) will be accepted only on a C.O.D. or cash-with-order basis until credit is re-established to Seller's satisfaction.
Buyer acknowledges and agrees that, as between Buyer and Seller, all intellectual property rights in and to the design and manufacture of the products, including without limitation all intellectual property rights in the computer software or firmware that is embedded in the products (“Embedded Software”), shall be and remain the property solely of Seller. All software that is not embedded in the products, including without limitation updates to Embedded Software, is provided under separate software license that may be accessed via Seller's Web portal, http://developer.osterhoutgroup.com . By selling the products to Buyer, Seller is conferring solely to Buyer only the right to use the products in accordance with Seller's user documentation and other operating instructions. Subject to Buyer's payment in full for the products, Seller hereby grants to Buyer a nonexclusive, fully paid-up, royalty-free non-transferrable, non-sublicensable license to use the products and Embedded Software solely in connection with the use of the products. Buyer shall not reverse engineer, disassemble, decompile, or otherwise deconstruct, examine the products or Embedded Software or remove the Embedded Software from the products, and any attempt to do so shall immediately void this license, subject Buyer to damages, and subject Buyer to liability as an infringer of Seller's rights in the product or Embedded Software. The products are offered for sale and are sold by Seller subject in every case to the condition that such sale does not convey any license, expressly or by implication, estoppel or otherwise, under any patent or other intellectual property with respect to which Seller can grant licenses, including without limitation intellectual property rights covering the products, its design, or any assembly, circuit combination, method or process in which any such products are used as components other than those licenses stated in this Section 6. Seller expressly reserves all its rights under such patent or other intellectual property claims.
Seller warrants that the products sold will be free from defects in material and workmanship and perform to Seller's applicable published specifications for a period of one (1) year from date of delivery to Buyer. The liability of Seller hereunder shall be limited to replacing or repairing, at its option, and return shipping, any defective products which are returned F.O.B. Seller's plant, San Francisco, California (or, at Seller's option refunding the purchase price of such products). In no case are products to be returned without first obtaining permission and a customer return order number from Seller. Equipment or parts which have been subject to abuse, misuse, accident, alteration, neglect, unauthorized repair, or installation are not covered by warranty. Seller shall make the final determination as to the existence and cause of any alleged defect. No liability is assumed for expendable items such as batteries, lamps and fuses. This warranty is the only warranty made by Seller with respect to the goods delivered hereunder, and may be modified or amended only by a written instrument signed by a duly authorized officer of Seller and accepted by Buyer.
SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SELLER EXPRESSLY EXCLUDES AND DISCLAIMS ANY WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
SELLER'S LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF THIS AGREEMENT AND/OR SALE AND USE OF THE PRODUCTS SHALL BE LIMITED TO REFUND OF THE PURCHASE PRICE. IN NO EVENT SHALL SELLER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY THE BUYER. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR PROFIT) WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE. THIS EXCLUSION AND LIMITATION OF LIABILITY ALSO APPLIES TO ANY LIABILITY WHICH MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST BUYER. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF SELLER ARISING OUT OF THIS AGREEMENT AND/OR SALE AND BUYER ACKNOLWEDGES AND AGREES THAT ITS REMEDIES AS SET FORTH ELSEWHERE IN THIS AGREEMENT PROVIDE A REASONABLE AND ADEQUATE REMEDY FOR ANY DEFECTS IN THE PRODUCTS OR SELLER'S ACTS, NEGLIGENCE OR PERFORMANCE HEREUNDER.
Buyer acknowledges and agrees that the use of the products other than in accordance with Seller's operating instructions can involve substantial risk of property damage or personal injury, up to and including death of the user or of third parties. Buyer assumes all liability for all such property damage or personal injury. Buyer agrees to and does hereby indemnify and hold harmless Seller from and against any and all claims, loss, cost and liability, including without limitation attorneys' fees, arising from any such property damage or personal injury or from any third party claim respecting any such property damage or personal injury.
BUYER ACKNOWLEDGES THE INHERENT RISKS IN THE USE OF THIS PRODUCT AND SHALL AVOID USING THIS PRODUCT WHILE DRIVING MOTOR VEHICLES OR OPERATING HEAVY MACHINERY UNLESS SPECIFICALLY AND EXCLUSIVELY USING SOFTWARE DESIGNED FOR THESE APPLICATIONS.
DO NOT WEAR PRODUCTS WHEN UNOBSTRUCTED VIEW IS NECESSARY FOR SAFETY.
Seller shall not be liable for any loss, damages, or penalty resulting from delay in delivery when such delay is due to causes beyond the reasonable control of Seller, including but not limited to supplier delay, force majeure, act of God, labor unrest, fire, explosion, or earthquake. In any such event, the delivery date shall be deemed extended for a period equal to the delay.
Seller shall have the right to make substitutions and modifications in the specifications of products sold by Seller provided that such substitutions or modifications will not materially affect overall product performance.
A sale may be cancelled only prior to delivery at Seller's plant for a refund.
Delivered items may be returned unopened in their original container and within fifteen (15) days of delivery for a refund by following the return material authorization procedure under the Limited Warranty article. In the case of a return item, title will not transfer to Seller until the item has been received and inspected at Seller's plant. Product returns are subject to a restocking fee of fifteen (15) percent of the total purchase price and which will be offset against any refund amount due.
Refunds for cancelled or returned items will be initiated immediately on transfer of title to Seller, the way Buyer's refund is processed depends on the original payment method. Refunds may be issued by check and mailed through the United States Postal Service (USPS) within seven (7) days of cancellation or return item.
If Buyer shall become bankrupt or insolvent or compounds with his creditors or commences to be wound up or suffers a receiver to be appointed, Seller shall be at liberty by notice in writing to cancel this contract without judicial intervention or declaration of default of Buyer, without liability to Buyer and without prejudice to any right or remedy which shall have accrued or shall accrue thereafter to Seller.
The terms and conditions as set forth herein shall constitute the entire agreement between Seller and the Buyer. Seller shall not be bound by any terms of Buyer's order which are inconsistent with the terms herein set forth. Acceptance by Buyer of these terms may be made either by written acceptance, or by receipt by Buyer of delivery of any products described on the face of this document and failure by Buyer to return the same within fifteen (15) days following delivery of such products as herein provided. This contract shall not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the contract by its express terms. The failure by Seller to enforce at any time any of the provisions of this contract, or to exercise any election or option provided herein, shall in no way be construed as a waiver of such provisions or options, nor in any way to affect the validity of this agreement or any part thereof, or the right of Seller thereafter to enforce each and every such provision. Buyer hereby acknowledges that he has not entered into this agreement in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein.
The contract between the parties is made, governed by, and shall be construed in accordance with the laws of the State of California. The California state courts of San Francisco County, California (or, if there is exclusive federal jurisdiction, the United States District Court for the Northern District of California) shall have exclusive jurisdiction and venue over any dispute arising out of this agreement and sale, and Buyer hereby consents to the jurisdiction of such courts.