Laffort USA Terms of Service

Laffort U.S.A., Inc. General Terms and Conditions 1. Sale of Sale of Sale of Goods. Laffort U.S.A., Inc. (“Seller”) shall sell to the buyer (“Buyer”) identified in the accompanying document of acceptance issued by Seller’s sales management department (“Document of Acceptance”) and Buyer shall purchase from Seller, the good or goods identified in the Document of Acceptance (“Goods”) upon the general terms and conditions set forth herein (these “Terms and Conditions”). No request for proposal, purchase order or other communication of Buyer (each, a “Buyer Communication”) shall impose any binding obligation on Seller unless and until accepted by Seller in a Document of Acceptance, and the decision to issue a Document of Acceptance may be granted or withheld in each instance by Seller in its sole discretion. No Document of Acceptance will be issued in respect of any Buyer Communication unless and until such Buyer Communication is provided to Seller in a writing signed by a duly authorized representative of Buyer. Buyer’s right to accept any offer from Seller to sell the Goods, or acceptance by Seller of any offer from Buyer to purchase the Goods, is made expressly conditional on Buyer’s assent to all of these Terms and Conditions. Seller hereby objects to and shall not be bound by any additional, different or conflicting terms (other than those contained in the Document of Acceptance), whether printed or otherwise, in any communication from Buyer to Seller, it being understood that these Terms and Conditions shall prevail notwithstanding any such additional, different or conflicting terms. The Document of Acceptance, together with these Terms and Conditions, is referred to herein as this “Agreement”. For the avoidance of doubt in the event multiple orders of Buyer are accepted by Seller by way of separate Documents of Acceptance, each such Document of Acceptance shall give rise to a separate Agreement. 2. Price. Subject to the following sentence, Buyer shall pay Seller the aggregate purchase price for the Goods as identified in the Document of Acceptance (the “Price”). If the price to Seller of any raw material, component, or service used in connection with the provision of the Goods is increased, or a surcharge on the same is imposed on Seller, Seller reserves the right to increase the Price and Buyer agrees to accept and pay such increase to the Price. When used herein with respect to a portion of the Goods identified in the Document of Acceptance, the term “Price” shall mean the aggregate purchase price for only that portion of the Goods. 3. Insurance Insurance Insurance. Unless otherwise specified in the Document of Acceptance, in no case shall the Price include the cost of insurance, or otherwise impose on Seller any obligation to obtain insurance for Buyer’s benefit. Notwithstanding the foregoing, if the method of delivery employed under Section 5 below involves the transportation of Goods by common carrier and the associated shipping charges do not include insurance, Seller may at its option procure insurance for the account of Buyer and Buyer shall reimburse Seller the cost of such insurance. 4. Taxes and Other Charges Taxes and Other Charges Taxes and Other Charges. The Price is exclusive of all federal, state, or local property, license privilege, sales, use, excise, value added and other taxes, all customs and import duties and all other governmental charges that may now or hereafter be applicable to, measured by, or imposed upon or with respect to the transaction(s) contemplated by this Agreement, the Goods, or the sale, value or use of the Goods (collectively, “Charges”). In addition to the Price, Buyer shall be responsible for all Charges and shall reimburse Seller when such Charges are payable by Seller, unless evidence of exemption therefrom acceptable to relevant governmental authorities is furnished by Buyer. 5. Shipping and ng and Delivery Delivery Delivery. Delivery dates are not guaranteed, but are estimated based on facts and circumstances in existence at the time of Seller’s issuance of the Document of Acceptance. Unless otherwise specified in the Document of Acceptance, delivery shall be made by common carrier designated in accordance with this Section 5. Seller shall arrange for shipment of the Goods to the destination designated by Buyer and shall endeavor in good faith to do so on the shipment date. Buyer shall have the right to specify the method of transportation for the Goods and the common carrier to be utilized. Absent such specification, Seller shall ship the Goods by a reliable common carrier of its own selection in order to meet the delivery schedule. The Goods shall be placed in suitably protected containers prior to shipment; subject to the foregoing, risk of loss or damage to any Goods shall pass to Buyer upon delivery of such Goods to the common carrier or, if delivery is to be made directly to Seller, upon tender of delivery to Seller. All costs of shipping and delivery shall be paid by Buyer. If Seller is unable for any reason to deliver all of the Goods identified in the Document of Acceptance to Buyer under this Agreement, Seller may allocate its available supply of similar goods and substantially similar goods among Buyer and any other buyers on such basis as Seller may deem fair and practical, without liability for any failure of performance under this Agreement. 6. Acceptance Acceptance Acceptance and Return and Return and Return. Immediately upon Buyer’s receipt of Goods, Buyer shall inspect the same and shall notify Seller in writing of any claim for shortages or nonconformity (which writing shall provide documentary evidence sufficient to support such claim). If Buyer shall fail to so notify Seller within three (3) days after the subject Goods have been delivered to Buyer, such Goods shall be deemed to conform to these Terms and Conditions and to have been accepted by the Buyer, subject only to Buyer’s rights under Section 10 hereof. Buyer will have no right to return any Goods without Seller’s prior written authorization. Any Goods returned by Buyer in accordance with this Section 6 shall be returned to Seller in the same condition as they were received by Buyer and otherwise in accordance with Seller’s then-current return policies. Buyer shall be responsible for all costs and expenses associated with any return of Goods in accordance with this Section 6 and shall bear the risk of loss or damage of such Goods until actually received by Seller. Seller, in its sole discretion, may reject any return of Goods made otherwise than in accordance with this Section 6. Seller’s sole liability, and Buyer’s sole remedy, with respect to any nonconforming Goods returned to Seller in accordance with this Section 6 shall be replacement of any nonconforming Goods without charge (which replacement Goods shall be subject only to Buyer’s rights under Section 10 hereof) or, upon the election of Seller, refund of the purchase price actually paid for such nonconforming Goods. 7. Terms of Payment of Payment of Payment. All shipments shall be accompanied by an invoice covering the Goods shipped. Unless otherwise specified in the Document of Acceptance, all amounts due to Seller by Buyer as set forth in this Agreement shall be payable by Seller in United States dollars at Seller’s principal place of business within thirty (30) days after the date of Seller’s invoice. For the avoidance of doubt, no discount to the Price shall be made for early payment without the express written consent of Seller. All amounts past due shall accrue interest from the due date at the rate of 1.5 percent per month (or such lesser rate as may be the maximum permissible rate under applicable law). Until all amounts due to Seller by Buyer as set forth herein have been paid in full, Seller shall retain and Buyer hereby grants to Seller a security interest in the Goods (together with any and all additions and replacements thereto and proceeds thereof), and Buyer shall not sell, lease or otherwise transfer the Goods, allow any liens or encumbrances to attach to the Goods, incorporate any of the Goods into any other product or use any of the Goods in any manner that materially reduces its useful life. Buyer shall provide in a timely manner all documents reasonably required by Seller to perfect and enforce such security interest. Title to the Goods shall pass to Buyer free and clear of all liens and encumbrances created under this Agreement upon full payment of all amounts due to Seller by Buyer under this Agreement. 8. Cancellation and Changes Cancellation and Changes Cancellation and Changes. Buyer may not terminate this Agreement or cancel or change any order to purchase the Goods, or any aspect thereof, without Seller’s prior written consent. In the event that Seller so consents to any such request of Buyer, Seller shall advise Buyer of the total charges for such cancellation or change, and Buyer agrees to pay such charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on Seller by its suppliers, and any other cost resulting from such cancellation or change. 9. Buyer’s Knowledge and Use of the Goods. Buyer represents that (i) it has reviewed Goods any written specification sheet or sheets relating to the Goods that may have been provided to Buyer by Seller or that otherwise may be made generally available to the public by Seller (collectively, “Seller Specifications”), (ii) it is familiar with the Goods and their characteristics, capabilities, effects, limitations and conditions of preservation and use, and (iii) it is not relying on any representation or warranty whatsoever relating to the Goods except for the limited warranty of Seller that is expressly set forth in Section 10 below. Without limiting the generality of the foregoing, Buyer assumes all risk that the Goods are inadequate for Buyer’s needs or the needs of Buyer’s customers. Buyer assumes the responsibility to identify and verify any and all risks of any nature that may be associated with the Goods or other products that may be produced in conjunction with or that otherwise incorporate the Goods, together with the responsibility to conduct any further research necessary to understand the scope of such risks. Buyer also assumes the duty to warn Buyer’s personnel, agents and customers of any risks involved in the use of the Goods or other products that may be produced in conjunction with or that otherwise incorporate the Goods. Buyer agrees to test, use, manufacture and market any products that are produced in conjunction with or that otherwise incorporate the Goods in accordance with the practices of a reasonable person who is an expert in the field and otherwise in strict compliance with all applicable laws and regulations, now or hereinafter enacted. 10. Limited Warranty Limited Warranty Limited Warranty. Seller warrants that all of the Goods delivered to Buyer shall conform in all material respects to the description of such Goods set forth in any Seller Specifications. THIS WARRANTY IS EXCLUSIVE, AND SELLER MAKES NO OTHER WARRANTY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Seller’s sole liability, and Buyer’s sole remedy, with respect to any breach of the warranty contained in this Section 10 shall be replacement of any nonconforming Goods without charge or, upon the election of Seller, refund of the purchase price actually paid for such nonconforming Goods, in either case following the return of such nonconforming Goods to Seller in accordance with Seller’s instructions. Any claim for breach of the warranty contained in this Section 10 must be made to Seller (if at all) in writing not more than ninety (90) days following the delivery of the Goods to Buyer as provided in this Agreement. The warranty contained in this Section 10 does not apply to any instance of nonconformity that is not caused by Seller (e.g., instances of nonconformity that are caused by acts of God, adulteration, mishandling, misuse or vandalism). 11. Limitation of Limitation of Limitation of Liability Liability Liability. (A) IN NO EVENT SHALL SELLER HAVE ANY LIABILITY TO BUYER, UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE GOODS OR THE ACQUISITION, USE OR DISPOSITION THEREOF, WHETHER AS A RESULT OF BREACH OF CONTRACT, TORT LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER ARISING BEFORE OR AFTER DELIVERY OF THE GOODS TO SELLER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PENAL LOSS OR DAMAGE OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, BODILY INJURY OR DEATH, DAMAGE TO OR LOSS OF USE OF EQUIPMENT OR FACILITIES, EXPENSES INVOLVING INTEREST CHARGES OR COST OF CAPITAL, EXPENSES INVOLVING ANCILLARY SERVICES, LOSS OF PROFITS OR REVENUES, OR CLAIMS OF BUYER’S CUSTOMERS, WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (B) IN NO EVENT SHALL THE LIABILITY OF SELLER UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE GOODS OR THE ACQUISITION, USE OR DISPOSITION THEREOF, WHETHER AS A RESULT OF BREACH OF CONTRACT, TORT LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER ARISING BEFORE OR AFTER DELIVERY OF THE GOODS TO SELLER, EXCEED THE PURCHASE PRICE ACTUALLY PAID BY BUYER FOR THE GOODS. 12. Force Ma Force Ma Force Majeure. Seller shall not be liable for any loss, damage or penalty as a result of any delay in or failure to deliver or otherwise perform under this Agreement due to any cause beyond Seller’s reasonable control, including, without limitation, any action or inaction of Buyer, embargo or other governmental act, regulation or request affecting the conduct of Seller’s business, fire, explosion, accident, theft, vandalism, riot, terrorist act, act of war, strike or other labor difficulty, lightning, flood, windstorm or other act of God, delay in transportation, or inability to obtain necessary labor, fuel, materials or other supplies. 13. Termination Termination Termination. In addition to any other right that may then be available to it under law or under this Agreement, Seller shall have the right to terminate this Agreement and, at its option, repossess any Goods previously shipped to Buyer, if (i) in Seller’s reasonable judgment, Buyer’s financial condition does not justify the terms of payment specified in this Agreement, unless Buyer immediately pays for all Goods which have been shipped, and pays in advance for any remaining balance of Goods remaining to be shipped; (ii) Buyer makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy, or similar officer is appointed to take charge of all or any part of Buyer’s property or business; (iii) Buyer is adjudicated bankrupt; or (iv) Buyer neglects or fails to perform or observe any of its obligations under this Agreement (or any other Agreement relating to a Document of Acceptance of Buyer that has been accepted by Seller) and such neglect or failure is not cured within five (5) days after written notice to Buyer. 14. Proprietary Proprietary Proprietary Information Information Information. Any and all technical data, business information or other non-public information transmitted to Buyer by Seller in connection with this Agreement (collectively, “Proprietary Information”) is and shall remain the exclusive property of Seller. Buyer acknowledges that all Proprietary Information is disclosed to it in confidence and on the condition that, without Seller’s prior written consent, such Proprietary Information shall not be reproduced or copied by Buyer, disclosed to any third party or otherwise used for the benefit of Buyer or any third party. Buyer agrees to take appropriate action (including by way of instructions or agreements with its employees who are permitted access to any Proprietary Information) to maintain the confidential and proprietary nature of such Proprietary Information and otherwise to fulfill Buyer’s obligations under this Section 14. Buyer agrees to return to Seller at any time upon Seller’s request any Proprietary Information (together with any copies, extracts or derivatives thereof) in its possession, custody or control. Buyer agrees that its obligations under this Section 14 shall be ongoing and shall not cease upon shipment of Goods to Buyer or upon the termination of this Agreement. Buyer acknowledges and agrees that the obligations and promises of Buyer under this Section 14 are of a unique nature giving them particular value. Buyer’s breach of any of the provisions contained in this Section 14 will result in irreparable and continuing damage to Seller for which there will be no adequate remedy at law and, in the event of such breach, Seller will be entitled to seek injunctive relief, or a decree of specific performance without any requirement to post bond or other security. 15. Marks, Publicity Publicity Publicity, Etc. Buyer acknowledges that Seller owns and shall retain all right, title and interest in the trademarks, trade dress, trade names, logos and any related registrations or applications of Seller (collectively, “Marks”) that are relevant to the Goods or otherwise to the subject matter of this Agreement. Buyer shall not use or permit to be used any Mark owned or controlled by Seller without the prior written consent of Seller; provided, however, that Buyer may disclose to any applicable governmental agency the name of Seller as the manufacturer of the Goods. All media releases, public announcements and public disclosures by either party relating to this Agreement or the subject matter of this Agreement, including, without limitation, promotional or marketing material, shall be coordinated with and subject to the final approval by both parties prior to release. Buyer shall not commit or permit to be committed any act tending to indicate that Buyer or any of its places of business is an affiliate, division, or subsidiary of Seller. Buyer acknowledges and agrees that the obligations and promises of Buyer under this Section 15 are of a unique nature giving them particular value. Buyer’s breach of any of the provisions contained in this Section 15 will result in irreparable and continuing damage to Seller for which there will be no adequate remedy at law and, in the event of such breach, Seller will be entitled to seek injunctive relief, or a decree of specific performance without any requirement to post bond or other security. 16. Indemnification by Buyer Indemnification by Buyer Indemnification by Buyer. Buyer agrees to indemnify and hold harmless Seller, its employees, agents, officers, directors, shareholders, successors and assigns, and each of them (collectively, the “Indemnified Parties”), from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that any Indemnified Party may sustain or incur as a result of any claim against such Indemnified Party based upon negligence, breach of warranty, strict liability in tort, contract, or any other theory of law brought by Buyer, its officers, agents, employees, successors or assigns, by Buyer’s customers, by auxiliary personnel or by any other third party, arising out of, directly or indirectly, or in any way related to (i) the sale of the Goods to the Buyer, (ii) the use or resale of the Goods by Buyer (including use in conjunction with or incorporation into any other product), (iii) any breach by Buyer of any of the provisions of this Agreement. 17. No Exclusive Relationship No Exclusive Relationship No Exclusive Relationship. This Agreement does not create, and it shall not be interpreted so as to create, an exclusive relationship between Buyer and Seller. Accordingly, unless otherwise provided in a separate agreement between Buyer and Seller, Seller shall be free to transact business with and to sell or otherwise provide goods (including goods that are similar to the Goods) and/or services to any third party. Likewise, unless otherwise provided in a separate agreement between Buyer and Seller, Buyer shall be free to transact business with and to purchase or otherwise acquire goods (including goods that are similar to the Goods) and/or services from any third party. 18. Miscellaneous Miscellaneous Miscellaneous. (A) These Terms and Conditions shall be construed and governed in all respects in accordance with the laws of the State of California (U.S.A.), excluding its principles of conflicts of laws. The parties agree that any legal, equitable or other action, claim or proceeding with respect to this Agreement (a “Proceeding”) shall be brought exclusively in the courts of the State of California located in San Francisco, California or the United States District Court for the Northern District of California. Each party irrevocably and unconditionally submits to the jurisdiction of such courts, waives any objection to the laying of venue of any Proceeding in any such court, and agrees not to plead or claim in any such court that any such Proceeding has been brought in an inconvenient forum. (B) This Agreement constitutes the entire agreement between Buyer and Seller with respect to the subject matter hereof and there are no representations, warranties, covenants, or obligations except as set forth herein. This Agreement supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether written or oral, between Buyer and Seller with respect to the subject matter hereof. This Agreement may be amended only in writing signed by duly-authorized representatives of Buyer and Seller. (C) Buyer shall not assign or otherwise transfer any or all of its rights or obligations under this Agreement without the prior written consent of Seller, and any purported assignment of such rights or obligations without such prior written consent shall be void. Seller may assign or otherwise transfer any of its rights or delegate any of its duties under this Agreement in its discretion without the prior consent of Buyer. (D) These Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns, or other legal representatives. (E) The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party. (F) If any action, suit or proceeding in law or equity is brought to enforce or interpret this Agreement (including any appellate proceeding or collection action), the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements, in addition to any other relief to which that party may be entitled. (G) The headings contained in these Terms and Conditions are for convenience of reference only and are not intended to have any substantive significance in interpreting this Agreement. (H) Buyer acknowledges and agrees that the provisions of Sections 1, 7, 9, 11 and 14 through 18 shall survive any shipment of Goods to Buyer or termination of this Agreement. (I) These Terms and Conditions are in the English language only, which language shall be controlling in all respects. No translation of these Terms and Conditions of Sale into any other language shall be of any force or effect in the interpretation hereof or in a determination of the intent of either party. (J) Any notice or other communication required or permitted hereunder shall be in writing, and shall be deemed to have been given when delivered personally or 48 hours after placed in the U.S. mails, postage prepaid, or via an express mail service (such as Federal Express, U.S. Postal Express Mail, UPS, or other like provider) and addressed to the other party at the other party’s address as set forth in the Document of Acceptance or, if no address for the other party is set forth in the Document of Acceptance, at the other party’s principal place of business in the United States. Any party may change its address for the purpose of receiving notice by providing notice of the new address to the other party in accordance with this Section 18(I). CG - 092509