GENERAL TERMS AND CONDITIONS FOR THE SALE OF PRODUCTS
1. Terms and Conditions of Sale Govern.
(a) These Terms and Conditions of Sale, in conjunction with and the online sales order (together, the “Agreement”) represent the final and complete agreement between Nanomedical Diagnostics, Inc. (“Company”) and the customer identified in the online sales order (“Customer”). This Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. No other terms or conditions in any way modifying or changing the provisions this Agreement (including any preprinted terms on Customer’s purchase order, regardless whether or when Customer has submitted its purchase order or such terms) shall be binding upon the Company unless made in writing and signed by Company. Fulfillment of Customer’s order does not constitute acceptance of any of Company’s terms and conditions and does not serve to modify or amend this Agreement.
(b) Notwithstanding the foregoing, this Agreement is not binding on Company until Company receives and accepts a copy of the online sales order confirmed by Customer. Once Company receives and accepts a copy of the online sales order signed by Customer, this Agreement and the order are binding and cannot be cancelled by Customer for any reason and the full purchase price amount set forth in the sales confirmation shall be due and payable by Customer to Company pursuant to the payment schedule set forth herein, unless otherwise agreed to in writing by Company.
Company shall deliver to Customer the products referenced in the online sales order (collectively, the “Products”) as further described in the Packing List provided to Customer, subject to availability of Products, which may consist of equipment, hardware, software, and peripherals (“Equipment”), as well as consumable or expendable products and materials that are used with the Equipment (“Consumables”).
3. Usage Restrictions; Internal Research Use Only.
(a) Customer hereby represents and warrants that Customer’s use of the Products hereunder is for Research Use Only. Customer understands that the Products have not received any certification, authorization, accreditation, registration or licensing from any applicable governmental authority or organization (e.g., U.S. Food and Drug Administration, Centers for Medicare & Medicaid Services approved accreditation organization, or comparable non-U.S. body) and have not been tested for safety and efficacy in food, drug, device, commercial or any other use. Customer shall not use the Products in any manner requiring any such authorization. Customer agrees to exclusively use Consumables in connection with the use of the Equipment, and no other similar consumables. Customer shall defend, indemnify and hold Company harmless for any and all claims arising out of Customer’s use of the Products for any purpose other than as authorized herein.
(b) THE COMPANY WILL NOT ACCEPT ANY RETURNS OF PRODUCTS USED IN CONJUNCTION WITH HAZARDOUS MATERIAL. CUSTOMER HEREBY ACKNOWLEDGES THAT DURING ANY LEASE OR TRIAL PERIOD, ANY USE OF BIO MATERIAL REQUIRING BIOSAFETY LEVEL TWO (BSL 2) OR HIGHER WILL CONSTITUTE AN IMMEDIATE PROCUREMENT OF THE PRODUCTS.
(c) CUSTOMER ACKNOWLEDGES THAT ANY RETURNS DURING THE TRIAL PERIOD WILL INCLUDE A CERTIFICATE OF DECONTAMINATION AND WILL FOLLOW THE BIO SAFETY RETURN POLICY TITLED “THE RETURN OF AGILE R100 DEMO UNITS” IN IT’S ENTIRETY. RETURNS ARE NOT DEEMED ACCEPTED WITHOUT A CERTIFICATE OF DECONTAMINATION PROVIDED IN A TIMELY MANNER.
(a) The Products will be delivered within a reasonable time after Company receives and accepts a copy of the Online Sales Order executed through the Nanomedical Diagnostics eCommerce portal by Customer, subject to availability of finished Products. Delivery or shipping dates, if any, set forth herein are approximate only. Company will endeavor to meet delivery schedules and shipping dates requested by Customer, but in no event shall Company incur any liability for any loss, damages, or expenses (consequential, special, or otherwise) incurred by Customer as a result of any delay in delivery for any reason.
(b) Unless otherwise agreed in writing by the parties in the online sales order, Company shall deliver the Products to the Shipping Point (defined below) using Company’s standard methods for packaging and shipping such Products. Customer shall take delivery of the Products within three (3) days of Company’s written notice that the Products have been delivered to the Shipping Point. Customer shall be responsible for all loading costs (including freight and insurance costs) and provide equipment and labor reasonably suited for receipt of the Products at the Shipping Point. Company shall not be liable for any delays, loss or damage in transit.
(c) If for any reason Customer fails to accept delivery of any of the Products on the date fixed pursuant to Company’s notice that the Products have been delivered at the Shipping Point, or if Company is unable to deliver the Products at the Shipping Point on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Customer; (ii) the Products shall be deemed to have been delivered; and (iii) Company, at its option, may store the Products until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
(a) The quantity of any installment of Products as recorded by Company on dispatch from Company’s place of business is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary.
(b) Company shall not be liable for any non-delivery of Products (even if caused by Company’s negligence) unless Customer gives written notice to Company of the non-delivery within three (3) days of the date when the Products would in the ordinary course of events have been received.
(c) Any liability of Company for non-delivery of the Products shall be limited to (in Company’s sole discretion) replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
6. Shipping Terms.
Unless indicated otherwise, Delivery shall be made EXW (Incoterms 2010), Company’s headquarters (“Shipping Point”), including without limitation, freight and insurance costs. If no delivery terms are specified on the online sales order, the method of shipping will be in the sole discretion of Company. Unless directed in writing otherwise by Customer, full invoice value will be declared for all shipments.
7. Title and Risk of Loss.
Title and risk of loss passes to Customer upon delivery of the Products at the Shipping Point. As collateral security for the payment of the purchase price of the Products, Customer hereby grants to Company a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Commercial Code.
8. Amendment and Modification.
This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
9. Inspection and Rejection of Nonconforming Products.
(a) Customer shall inspect the Products within two (2) days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Products unless it notifies Company in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by Company. “Nonconforming Products” means only the following: (i) product shipped is different than identified in Customer’s sales confirmation; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) Company will only inspect and accept Nonconforming Products that are returned under Company’s return procedures then in effect, which will be communicated by Company to Customer in connection with this Agreement. If Company reasonably verifies Customer’s claim that the Products are Nonconforming Products and that the nonconformance did not arise from Customer’s use, Company shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products at no additional cost to Customer, subject to the availability of Products, or (ii) credit or refund the price for such Nonconforming Products pursuant to the terms set forth herein. If, however, Company determines that the Products are not Nonconforming Products, or if Company reasonably determines that any nonconformities are due to Customer’s improper use thereof, Company will not replace such allegedly Nonconforming Products, and will not credit or refund the Prices (defined below) for such Products. NO RETURNS FOR NONCONFORMING PRODUCTS ARE ALLOWED AFTER THIRTY (30) DAYS FROM THE ORIGINAL SHIPPING DATE.
(c) THE REMEDIES SET FORTH IN THIS SECTION SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY WITH RESPECT TO THE PROVISION OF ANY NONCONFORMING OR ALLEGEDLY NONCONFORMING PRODUCTS. Except as expressly stated otherwise herein, all sales of Products to Customer are made on a one-way basis and Customer has no right to return Products purchased under this Agreement to Company.
(a) Customer shall purchase the Products from Company at the prices (the “Prices”) set forth in the Nanomedical eCommerce portal. Unless specifically stated to the contrary in the online sales order, quoted Prices and discounts are as listed on the site at time of purchase. Unless otherwise stated, prices are quoted EXW (Incoterms 2010), Shipping Point. Unless otherwise stated, Nanomedical reserves the right to change the list prices on the website at any time.
(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes (present or future); provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Company’s income, revenues, gross receipts, personnel or real or personal property or other assets.
11. Payment Terms.
(a) Unless otherwise provided in the online sales order, if Customer has approved credit with Company, Customer shall pay all invoiced amounts due to Company immediately upon confirmation of the online sales order from the date of Company’s invoice. If Company does not have Customer’s financial information and has not provided pre-approved credit terms for Customer, the payment must be made in via credit card and in US dollars. If Customer has approved credit terms, the payment may be made by cash with order, wire transfer of immediately available funds, or check in US dollars. Certain products require a down payment. Any payment terms other than set forth above will be identified in the online sales order. Notwithstanding anything herein to the contrary, all prepaid deposits and down payments are non-refundable. If a deposit is not received when due, Company reserves the right to postpone manufacturing of Products until payment is received. Company will not be responsible for shipment delays due to deposit payment delays.
(b) In Company’s sole discretion, Company retains the right to withhold shipping of the Products if the credit card payment is rejected by the Customer’s credit card company.
(c) Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Company, whether relating to Company’s breach, bankruptcy or otherwise.
12. Intellectual Property; Software License.
(a) To the extent that any Products provided under this Agreement contains software, whether pre-installed, embedded, in read only memory, or found on any other media or other form (“Software”), such Software and accompanying documentation are licensed to Customer, not sold and shall remain the sole and exclusive property of Company or third party licensors of Company. Company grants Customer a non-exclusive license to use the Software solely as provided in and in connection with the use of the Products in which such Software is contained and in accordance with any applicable user documentation provided with such Products and subject to the provisions of this Agreement. Certain of Company’s Products may include third party software such as computer operating systems. Licenses to such third party software are subject to the terms and conditions of any applicable third party software license agreements. Unless expressly stated otherwise, no license is granted by Company with respect to such third party software products that may be provided with the Products (if any). Company makes no warranties regarding any third party software that may accompany the Products or otherwise and such software is explicitly included in the definition of Third Party Products below.
(b) Customer shall not copy, modify, or disassemble, or permit others to copy, modify, or disassemble, the Software, nor may Customer modify, adapt, translate, reverse assemble, decompile, or otherwise attempt to derive source code from the Software. Customer shall not transfer possession of the Software except as part of, or with, the Products, and each such transfer shall be subject to the restrictions contained herein. Customer may not sublicense, rent, loan, assign or otherwise transfer the Software or documentation, and Customer shall retain on all copies of the Software and documentation all copyright and other proprietary notices or legends appearing therein or thereon. Company may terminate this license upon written notice for any violation of any of the terms of this license or any material breach of any provision of this Agreement. Customer shall immediately discontinue use of the Software upon any termination of this license or Agreement. This license shall terminate upon any termination of the Agreement.
(c) All patents, trademarks, copyrights or other intellectual property rights embodied in the Products, including without limitation the Software, are owned by Company and its licensors. Company and its licensors retain all right, title and interest in such intellectual property rights. Except as expressly set forth herein, no license rights or ownership in or to any of the foregoing is granted or transferred hereunder, either directly or by implication. ALL RIGHTS RESERVED.
(d) If Customer is the United States Government or any agency thereof, each of the components of the Software and user documentation are a “commercial item,” and “computer software” as those terms are defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all United States government Customers acquire only those rights in the Software and user documentation that are specified in this Agreement.
13. Other Services.
Company shall provide training, support and maintenance services (“Services”) to Customer if ordered separately by the customer. Company may also provide other field, laboratory, analysis or research services if set forth in a separate services agreement between the parties.
14. Installation requirements.
Customer is responsible for proper installation of the Products and any necessary equipment, software or hardware. Customer is responsible for ensuring that its hardware and software conform with Company minimum hardware and software requirements as made available to Customer.
15. Limited Warranty.
(a) Subject to the exceptions and upon the conditions set forth herein, Company warrants to Customer that for a period of one (1) year from the date of shipment, the Equipment will be free from material defects in material and workmanship (“Equipment Warranty Period”). All Consumables are warranted only for defect in material which are apparent upon receipt by Customer. The foregoing warranty is negated after the initial use. (“Consumable Warranty Period”). Collectively, the Equipment Warranty Period and the Consumable Warranty Period are the “Warranty Period”.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 15(A), COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS (INCLUDING ANY SOFTWARE) OR SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; (D) WARRANTY THAT THE PRODUCTS ARE FDA APPROVED, OR OTHERWISE APPROVED, SCIENTIFIC OR MEDICAL DEVICES; (E) WARRANTY THAT THE PRODUCTS ARE IN ANY WAY QUALIFIED FOR USE IN CLINICAL STUDIES OR FOR USE IN HUMAN DIAGNOSTICS; (F) WARRANTY THAT THE PRODUCTS HAVE BEEN TESTED FOR SAFETY OR EFFICACY; OR (G) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) Products manufactured by a third party and third party software (“Third Party Products”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third Party Products are not covered by the warranty in Section 15(a). For the avoidance of doubt, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; (D) WARRANTY THAT THE PRODUCTS ARE FDA APPROVED, OR OTHERWISE APPROVED, SCIENTIFIC OR MEDICAL DEVICES; (E) WARRANTY THAT THE PRODUCTS ARE IN ANY WAY QUALIFIED FOR USE IN CLINICAL STUDIES OR FOR USE IN HUMAN DIAGNOSTICS; (F) WARRANTY THAT THE PRODUCTS HAVE BEEN TESTED FOR SAFETY OR EFFICACY; OR (G) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Notwithstanding the foregoing, in the event of the failure of any Third Party Products, Company will assist (within reason and at Company’s sole discretion) Customer (at Customer’s sole expense) in obtaining, from the respective third party, any (if any) adjustment that is available under such third party’s warranty.
(d) Company shall not be liable for a breach of the warranty set forth in Section 15(a) unless Customer follows Company’s warranty return procedures communicated to Customer by Company in connection with this Agreement, and Company reasonably verifies Customer’s claim that the Products are defective and that the defect developed under normal and proper use. Moreover, Company shall not be liable for a breach of the warranty set forth in Section 15(a) if: (i) Customer makes any further use of such Products after giving such notice; (ii) the defect arises because Customer failed to follow Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; (iii) Customer alters or repairs such Products without the prior written consent of Company; or (iv) repairs or modifications are made by persons other than Company’s own service personnel, or an authorized representative’s personnel, unless such repairs are made with the written consent of Company in accordance with procedures outlined by Company.
(e) Subject to Section 15(d) above, with respect to any such Products during the Warranty Period, Company shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro rata contract rate, provided that, if Company so requests, Customer shall, at Customer’s expense, return such Products to Company.
(f) THE REMEDIES SET FORTH IN SECTION 15(e) SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 15(a). Representations and warranties made by any person, including representatives of Company, which are inconsistent or in conflict with the terms of this warranty, as set forth above, shall not be binding upon Company.
16. Limitation of Liability.
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, LOSS OF INFORMATION OR DATA, OR PERSONAL INJURY OR DEATH ARISING IN ANY WAY OUT OF THE MANUFACTURE, SALE, USE, OR INABILITY TO USE ANY PRODUCTS, OR ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO COMPANY FOR THE PRODUCTS OR SERVICES PROVIDED HEREUNDER.
17. Consumables Disposal Policy.
Customer hereby acknowledges and understands that the Consumables may require disposal in accordance with applicable law. When Customer is prepared to dispose of Consumables in Customer’s possession, Customer agrees to dispose of the Consumables in accordance with applicable law, biosafety rules and guidelines, Customer’s biohazard and waste disposal
policies, and in accordance with the Product user manual, and Customer shall certify to Company its compliance with the foregoing.
18. Compliance with Law.
Customer shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Customer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement. Products, services and technical data delivered by Company shall be subject to U.S. export controls. Customer shall obtain all licenses, permits and approvals required by any government and shall comply with all applicable laws, rules, policies and procedures of the applicable government and other competent authorities.
Company may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Customer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of the terms and conditions of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
No waiver by Company of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Company. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
21. Confidential Information.
All non-public, confidential or proprietary information of Company, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Company to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Company in writing. Upon Company’s request, Customer shall promptly return all documents and other materials received from Company. Company shall be entitled to injunctive relief for any violation of this Section. Confidential Information does not include information that is: (a) in the public domain through no fault of Customer; (b) known to Customer at the time of disclosure without restriction as evidenced by its records; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
22. Force Majeure.
Company shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Company including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage (each a “Force Majeure Event”), provided that, if the event in question continues for a continuous period in excess of ninety (90) days, Customer shall be entitled to give notice in writing to Company to terminate this Agreement.
Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section 23 is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
24. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Customer hereby grants to Company the right to display Customer’s name and logo on Company’s website and in presentations to prospective clients and investors for the purpose of referencing Customer as a client of Company’s Products and/or Services.
26. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
27. Governing Law.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
28. Dispute Resolution.
(a) If Customer is an entity formed under the laws of the United States of America, or any of its states, districts or territories (“U.S. Law”), then any dispute, legal suit, action or proceeding arising out of or relating to this Agreement shall be adjudicated and decided in the federal courts of the United States of America or the courts of the State of California in each case located in the City of San Diego and County of San Diego, California and each party irrevocably submits to the exclusive and personal jurisdiction of such courts in any such dispute, suit, action or proceeding.
(b) If Customer is an entity formed under the laws of any country, state, district or territory other than U.S. Law, then the parties irrevocably agree that any dispute, legal suit, action or proceeding arising out of or relating to this Agreement shall be submitted to the International Court of Arbitration of the International Chamber of Commerce (“ICC”) and shall be finally settled under the Rules of Arbitration of the ICC. The place and location of the arbitration shall be in Los Angeles, California, pursuant to the ICC’s Rules of Arbitration and shall be finally settled in accordance with said rules. The arbitration shall be conducted before a panel of three arbitrators. Each party shall select one arbitrator and the two arbitrators so selected shall select the third arbitrator, who shall act as presiding arbitrator. Notwithstanding the foregoing, if the matter under dispute is $500,000 or less, there shall only be one arbitrator who shall be mutually selected by both parties. If the party-selected arbitrators are unable to agree upon the third arbitrator, if either party fails to select an arbitrator, or in the case that only one arbitrator is required and the parties are unable to agree, then the International Court of Arbitration shall choose the arbitrator. The language to be used in the arbitral proceeding shall be English. The arbitrator(s) shall have no authority to issue an award that is contrary to the express terms of this Agreement or the laws of the State of California or applicable US Federal Law, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error. The arbitrator(s) shall be specifically empowered to allocate between the parties the costs of arbitration, as well as reasonable attorneys’ fees and costs, in such equitable manner as the arbitrator(s) may determine. The arbitrator(s) shall have the authority to determine issues of arbitrability and to award compensatory damages, but they shall not have authority to award punitive or exemplary damages. Judgment upon the award so rendered may be entered in any 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. In no event shall a demand for arbitration be made after the date when institution of a legal or equitable proceeding based upon such claim, dispute or other matter in question would be barred by the applicable statute of limitations. Notwithstanding the foregoing, either party shall have the right, without waiving any right or remedy available to such party under this Agreement or otherwise, to seek and obtain from any court of competent jurisdiction any interim or provisional relief that is necessary or desirable to protect the rights or property of such party, pending the selection of the arbitrator(s) hereunder or pending the arbitrator(s)’ determination of any dispute, controversy or claim hereunder.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be
in writing and addressed to the parties at the addresses set forth on the face of the sales confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, upon confirmation of delivery by nationally recognized overnight courier or upon forty-eight (48) hours after being sent by certified or registered mail (as applicable), and (b) if the party giving the Notice has complied with the requirements of this Section 29.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Compliance with Laws, Confidentiality, Governing Law, Dispute Resolution, Survival, and the restrictions on Software in Sections 12(b), (c) and (d).