Terms and Conditions

Terms and Conditions of Sale

The following Terms and Conditions of Sale govern all of all products, tooling, components and/or goods (the “Products”) supplied by Maesa LLC, a company registered under the laws of California (“Supplier”), to the original purchaser only thereof (“Buyer”) in respect of quotations, offers, telephone orders, purchase orders, rendering/drawings, order acknowledgments/confirmations, invoices, contracts, and/or deliveries for the sale (“Purchase Order(s)”).  Unless modifications or additions are expressly accepted in writing by an authorized officer of Supplier, the provisions contained in a Purchase   Order   are   controlling   and   no   other   inconsistent   or   additional   provisions   shall   be   of   any   effect whatsoever.  Supplier’s acceptance of Buyer’s order is expressly conditioned on all of the terms and conditions contained herein, and such terms and conditions are the only terms and conditions upon which Supplier is willing to accept orders.  In the event of a conflict between a Purchase Order and the existing master supply agreement executed by the Supplier and Buyer pursuant to which the Products are supplied (“MSA”), the conflict shall be resolved by giving priority first to the MSA.

Orders.   All orders for Products shall be submitted to Maesa in writing, by mail, facsimile and/or electronic mail.   No telephone orders shall be accepted unless promptly followed by Buyer’s memorialization of such order remitted by regular mail, facsimile and/or electronic mail.  All previous orders and/or modifications of a previous order from Buyer to be used for a new order shall be in writing, submitted to Supplier by regular mail, facsimile and/or electronic mail and shall be subject to acceptance by Supplier, at Supplier’s discretion.  All orders for Products shall be subject to acceptance by Supplier, at Supplier’s sole discretion, which shall be in the form of any or one of the following: (a) a revised and/or confirmed quotation; (b) a drawing/rendering including specifics of the ordered Product to be supplied, with a Purchase Order attached; (c) Supplier’s order confirmation and/or acknowledgment; (d) Supplier’s invoice to Buyer; (e) Supplier’s delivery confirmation to Buyer; and/or (f) a contract signed by both Supplier and Buyer in respect of an order.

Price.   The price for all Products provided to Buyer shall be the price as set forth in the Purchase Order (as defined hereinabove, the “Purchase Price”). Unless otherwise noted on the Purchase Order, the Purchase Price does not include shipping, transportation, packing, or other costs associated with the shipment of the Products, which shall be borne by Buyer. The Purchase Price shall be paid in full by Buyer as stated herein-below (see Payment Terms).  In the case of multiple or future deliveries, prices are subject to revision by the Supplier at any time.

Payment Terms.

General.  Net thirty (30) days after the delivery date as set forth on the Purchase Order and/or invoice of such order, regardless of the method of deliver, i.e. Buyer pick-up or Supplier actual delivery (“Delivery Date”), unless otherwise indicated on a Purchase Order or Supplier quotation, and subject to approval by Supplier’s bank.

Tooling.   Unless otherwise specified in an MSA, Supplier holds title to all tooling, and at no time shall title pass to Buyer.

Pricing Adjustments.  All pricing is subject to review at any time by Supplier regarding any and all labor, material and/or freight related cost adjustments, and currency rate fluctuations.  Any pricing adjustments will be communicated by Supplier with thirty (30)-day advanced written notice to Buyer, and will impact any new Purchase Orders shipping on or after thirty (30) days after the date of such Pricing Adjustment notice.

Raw Material, Manufacturing, and Finished Goods Liability.  Without limiting Buyer’s obligations in any manner, Buyer will be responsible for any raw materials purchased by Supplier on behalf of Buyer after submission of Purchase Order.  Buyer shall also be responsible for any and all manufacturing costs borne by the Supplier and the cost of any finished Products should Buyer cancel the Purchase Order prior to transfer of risk of loss from Supplier to Buyer, as described in herein-below.

Limited Liability.  Buyer and any third party associated with Buyer are responsible for determining whether the components supplied by Supplier are suitable and safe either for resale or for the products and/or materials going in them, as the case may be.  SUPPLIER SHALL IN NO EVENT BE LIABLE TO BUYER, NOR SHALL BUYER BE ENTITLED TO RECOVER FROM SUPPLIER, FOR INJURY TO PERSONS OR DAMAGE TO PROPERTY, OR ANY OTHER LOSS OR DAMAGE WHATSOEVER, ARISING OUT OF OR IN CONNECTION WITH THE SALE, DELIVERY, ASSEMBLY, DISASSEMBLY, REPAIR, USE, OR INSTALLATION OF THE PRODUCTS (WHETHER ARISING FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT, PRODUCTS LIABILITY, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY), FOR ANY AMOUNT IN EXCESS OF THE AMOUNT ACTUALLY PAID BY BUYER TO SUPPLIER FOR THE PRODUCTS; PROVIDED, HOWEVER, IN NO EVENT SHALL SUPPLIER BE LIABLE TO BUYER OR ANY THIRD PARTY IN ANY MANNER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSSES ARISING OUT OF THE INOPERABILITY OF THE PRODUCTS OR LOST PROFITS EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY THEREFOR.   ANY ACTION FOR AN ALLEGED BREACH OF ANY CONTRACT OF SALE OR OF ANY WARRANTIES RELATING TO ANY PRODUCT SOLD BY SUPPLIER TO BUYER MUST BE COMMENCED BY BUYER WITHIN SIX (6) MONTHS OF THE DELIVERY DATE.

Indemnification.  Supplier may provide the Buyer with information regarding the purchased Product.  With regard to such occurrences, Buyer acknowledges that the Supplier is in no way responsible for the use of the Supplier’s Product by the Buyer or any of Buyer’s direct or indirect customers.  Buyer acknowledges that the Supplier cannot anticipate all conditions under which the Supplier’s Product may be used, and therefore Buyer agrees to conduct its own tests, including but not limited to industry-standard  compatibility testing,  to  determine  the  suitability  and  safety  of  the  Supplier’s  Product for  the  Buyers purposes.   Any information provided by the Supplier is without warranties, either expressed or implied (including, without limitation, any express or implied warranty of merchantability or fitness for a particular purpose), and Buyer agrees to indemnify and save Supplier harmless of any and all loss, costs (including, without limitation, reasonable attorney fees) and/or Claims (as defined herein-below) arising out of, or in connection with, or in relation to the use of the Supplier’s Product by the Buyer or any of Buyer’s direct or indirect customers.

Quality Assurance Inspections.  All pricing is based upon standard quality assurance inspection of the finished Product in accordance with the International Standard ISO 2859-1, sampling procedures for inspection by attributes, conducted by Maesa or its agents.  Should any other inspection criteria or testing requirements be required by the Buyer (i) the Buyer shall notify Supplier in writing of such requirements; and (ii) Supplier reserves the right to submit a revised quotation reflecting Pricing Adjustment(s) based on such additional requirements.

Freight/Delivery Terms.  Supplier shall deliver the Products at the place of delivery in accordance with the terms stated on the Purchase Order, MSA, or other agreement executed by Supplier and Buyer.  Delivered Product costs are based upon one shipment of the agreed to quantity.  Should the quantities shipped differ from the specified quantities, Supplier reserves the right to adjust the freight costs up or down depending on the actual quantity shipped.

Artwork.  Changes to artwork or package decoration, or the submission of any new artwork or package decoration may result in additional artwork and/or tooling charges, which Supplier shall, at Supplier’s sole discretion, present to Buyer with a new Purchase Order.

Limited Warranty.  Supplier warrants that the Products shall conform to the Supplier’s standard specifications in effect on the Delivery Date, or to the specifications agreed to with Buyer on the Purchase Order, MSA or other contract executed by Supplier and Buyer in respect of the supplied Products.  Supplier warrants that to its knowledge the Products do not infringe on any third party patents.  THE LIMITED WARRANTY CONTAINED IN THIS PARAGRAPH IS THE SOLE AND EXCLUSIVE WARRANTY OF SUPPLIER AND IS EXPRESSLY IN LIEU OF ANY OTHER OBLIGATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY DISCLAIMED.

Risk of Loss and Acceptance.  The risk of loss of the Products passes to Buyer when the Products on the Delivery Date, irrespective of whether Supplier is required to render additional services under the Purchase Order. Buyer is required to accept possession and title of all the Products on the Delivery Date, without prejudice to its warranty rights. Buyer shall examine the conformity of the Products with the specifications and/or samples within ten (10) business days of Delivery Date.  All claims by the Buyer, including, without limitation, claims for alleged defects, damage and shortage (“Claims”), must be made in writing and received by Supplier within ten (10) business days after Delivery Date, and any Claim made after the Products have been re-sold shall be null and void.  Claims concerning defects that could not be discovered within the above time limit despite accurate inspection of the Products (“Latent Claims”) must be made in writing and received by Supplier within ten (10) working days from discovery of the defects and, in any event, not later than ninety (90) days after Delivery Date. Any such Later Claims must, inter alia, set forth: (a) proof of date of Buyer’s receipt of Products, (b) defect, date of discovery of defect and circumstances of such discovery; (c) reasonable cause as to why such discovery could not have been effectuated by Buyer within ten (10) days of Delivery Date.   Failure of the Buyer to give notice of any Claim within the applicable time period shall be with prejudice and deemed an absolute and unconditional waiver for such Claim.  In case of proven defective Products, Supplier shall, at its choice, either replace or repair at its own cost such defective Products, or refund the Buyer the price paid for such defective Products.

Performance.   No liability shall result from any delay in performance or non-performance by Supplier caused by circumstances beyond its control, including, without limitation, acts of God, fire, flood, explosions, riots, wars, perils of the sea or air, labor strikes or troubles, machinery breakages, government actions or prohibitions, shortages of raw materials or energy at reasonable cost and/or traffic stoppages.

Compliance with Laws.  Buyer agrees that it shall be Buyer’s responsibility to comply with all applicable laws and regulations relating to the Supplier’s Products, once they have been purchased.

Assignment.  Buyer will not assign its rights or delegate its performance hereunder without the prior written consent of the

Supplier.

Governing Law.  All purchases shall be governed by the laws of the State of New York.

Dispute Resolution.  In the event of any dispute, controversy or Claim of any kind or nature arising under or in connection with these Terms and Conditions of Sale and/or the MSA, or provision contained therein (a “Dispute”), then upon the written request of either party, each of the parties will appoint a designated senior business executive whose task it will be to meet for the purpose of endeavoring to resolve the Dispute. The parties will, to the greatest extent possible, endeavor to resolve any Disputes through amicable negotiations. The designated executives will meet as often as the parties reasonably deem necessary in order to gather and furnish to the other all information with respect to the matter in issue which the parties believe to be appropriate and germane in connection with its resolution. Such executives will discuss the Dispute and will negotiate in good faith in an effort to resolve the Dispute without the necessity of any formal proceeding relating thereto. The specific format for such discussions will be left to the discretion of the designated executives but may include the preparation of agreed upon statements of fact or written statements of position furnished to the other party. No formal proceedings for the resolution of the Dispute may be commenced until the earlier to occur of (i) a good faith mutual conclusion by the designated executives that amicable resolution through continued negotiation of the matter in issue does not appear likely, or (ii) the 30th day after the initial request to negotiate the Dispute.  Failing an amicable settlement, any Dispute arising out of or in relation to the performance, interpretation, application, or enforcement of these Terms and Conditions of Sale, and provisions contained herein, including the existence, validity, interpretation, performance, termination or breach hereof and/or a breach of the MSA, will finally shall be determined by arbitration in New York, New York, before one (1) arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures [pursuant to JAMS’ Streamlined Arbitration Rules and Procedures]. Judgment on the award may be entered in any court having jurisdiction (as defined in the following paragraph). This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction, as agreed to in the following paragraph. Either party may commence mediation by providing to JAMS and the other party, a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS panel of neutrals, and in scheduling the mediation proceedings.  The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by either of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may initiate a cause of action with respect to the matters submitted to mediation at any time following the initial mediation session or forty-five (45) days after the date of filing the written request for mediation, whichever occurs first. The mediation may continue after the commencement of a court action if the parties so desire.  The provisions herein may be enforced by any court of competent jurisdiction (as defined in the following paragraph), and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including reasonable attorneys' fees, to be paid by the party against whom enforcement is ordered.

Subject to the preceding paragraph, each party hereto irrevocably and unconditionally consents to submit to the non-exclusive jurisdiction of the federal and state courts in New York County, New York for any actions relating to these Conditions of Sale and the transactions contemplated hereby, and/or the MSA (and each party agrees not to commence any action relating thereto, except in such courts).

Litigation; Waiver of Jury Trial.  In the event of and with respect to any lawsuit or proceeding brought  in connection with these Conditions of Sale and/or the MSA, each of the parties hereto irrevocably (A) submits to the exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Southern District of New York, (B) waives any objection it may have at any time to the laying of venue of any proceeding brought in any such court, (C) waives any claim that such proceeding has been brought in an inconvenient forum and (D) waives the right to object, with respect to such proceedings, that such court does not have jurisdiction over each party.   EACH PARTY HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION AS BETWEEN THE PARTIES DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THE TERMS, CONDITIONS, OR PROVISIONS CONTAINED HEREIN OR THE TRANSACTIONS CONTEMPLATED HEREBY OR DISPUTES RELATING HERETO. EACH OF THE PARTIES HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THE TERMS, CONDITIONS, AND PROVISIONS HEREIN BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS PARAGRAPH.

Attorney’s Fees.  In the event that any suit or action is instituted to enforce or confirm any terms, conditions, or provisions contained herein, the prevailing party in such dispute shall be entitled to recover from the losing party such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs, and expenses of appeals.