TERMS OF SERVICE

Terms and Conditions Agreement:  

Purchase and Sale of Goods. Subject to the terms and conditions set forth in this Agreement, Seller hereby agrees to sell to Buyer the Products described in the invoice (collectively referred to as "Subject Goods" and individually referred to as "Subject Good"), subject to (i) receipt by Seller of a written or oral order from Buyer ("Purchase Order"), and (ii) delivery to Buyer of written confirmation by Seller of such Purchase Order ("Confirmation"). In the event of any conflict or inconsistency between the Purchase Order and Confirmation, the Confirmation shall prevail. In the event of any conflict between the Confirmation and this Agreement, this Agreement shall prevail as to those terms and conditions which are in conflict only.

Base Price. As consideration for the Subject Goods, Buyer shall pay to Seller Seller’s standard prices which are in effect as of the order date (collectively referred to as "Base Prices" and individually referred to as "Base Price"). Base Prices shall be published from time to time and provided to Buyer. Seller reserves the right to change the Base Price or Base Prices at any time without prior notice to Buyer.

Disclaimer of Express Warranties. The Subject Goods shall be sold to Buyer subject to the Seller's standard warranty relative to such goods at the time such goods are shipped to Buyer, but no other express warranty is made in respect to the Subject Goods. If any model or sample was shown Buyer, that model or sample was used merely to illustrate the general type and quality of the Subject Goods and not to represent that the Subject Goods would necessarily conform to the model or sample.

Disclaimer of Implied Warranties. THE WARRANTIES SET FORTH IN SECTION 5 ABOVE ARE IN LIEU OF, AND SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE SUBJECT GOODS, AND ANY OTHER MATERIALS, PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Limitations on Liability. SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM, RELATING TO OR IN CONNECTION WITH THE SUBJECT GOODS PURCHASED HEREUNDER INCLUDING, (i) ANY LOSS OR DAMAGE TO PERSONS OR PROPERTY, (ii) ANY EXEMPLARY, PUNITIVE CONSEQUENTIAL, INCIDENTAL OR OTHER SIMILAR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, LOSS OF USE OF EQUIPMENT, OR LOSS OF CONTRACT, OR (iii) ANY THIRD PARTY CLAIM AGAINST BUYER. IN THE EVENT THAT SELLER IS FOUND LIABLE TO BUYER, THAT LIABILITY SHALL BE LIMITED TO THE ACTUAL PURCHASE PRICE PAID BY BUYER FOR THE SUBJECT GOOD OR SUBJECT GOODS WHICH GIVE RISE TO SELLER'S LIABILITY. NO ACTION BETWEEN BUYER AND SELLER, REGARDLESS OF FORM, ARISING FROM, RELATING TO OR IN CONNECTION WITH THE SUBJECT GOODS PURCHASED HEREUNDER MAY BE BROUGHT BY EITHER PARTY MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION HAS ARISEN.

Packaging of Goods. Seller shall package goods in accordance with its usual and customary practices.

Relationship of Parties. Nothing contained herein shall be deemed or construed by the parties hereto or by any third party as creating the relationship of (i) principal and agent, (ii) a partnership, or (iii) a joint venture between the parties hereto; it being understood and agreed that neither any provisions contained herein nor any acts of the parties hereto shall be deemed to create any relationship between the parties hereto other than the relationship of seller and buyer.

Sale of Goods Only. Buyer acknowledges that Seller owns all intellectual property rights, including, with out limitation, all copyrights, patents and trademarks, in and to the Subject Goods ("Intellectual Property"), and that nothing in this Agreement shall give Buyer any right, title or interest in or to the Intellectual Property, except as expressly set forth herein. Buyer agrees that it will do nothing inconsistent with Seller's ownership of the Intellectual Property, and shall not claim adversely to Seller, or assist any third party in attempting to claim adversely to Seller, with regards to such ownership. Buyer agrees that it will not challenge the title of Seller to the Intellectual Property, or oppose any registration thereof. Furthermore, Buyer will not register, nor attempt to register, any trade name or trademark which, in whole or in part, incorporates or is confusingly similar to the Intellectual Property.

Quality Standards and Right of Inspection. Buyer shall comply with the installation manual of seller, as amended from time to time. Buyer shall not use the Subject Goods in any manner that would reflect adversely on the image of quality symbolized thereby. In order to ensure compliance with the terms of Section 10 of this Agreement, Assignor and its authorized agents and representatives shall have the right, but not the obligation, with prior notice to the Buyer, to enter upon the premises of any office or facility operated by or for Buyer with respect to the Subject Goods at all reasonable times and in a manner that does not unreasonably interfere with the business and affairs of Buyer, to inspect and monitor (i) the goods and/or services being offered by Buyer which incorporate the Subject Goods, and (ii) Buyer's advertising, marketing and promotional program and materials as they relate to the Subject Goods.

Allocation of Costs. Each party hereto shall bear its own fees, charges and expenses incurred in connection with the negotiation and execution of this Agreement.

Terms Confidential. The terms of this Agreement shall be confidential and shall not be disclosed to any person or entity not a party to this Agreement by BUYER, except the disclosing party's attorneys, accountants, and investors who are bound by the confidentiality provisions set forth herein, unless prior written consent is obtained from the other party, or unless a court or administrative agency of the United States or a state thereof orders such disclosure, provided, however, that in the event that such disclosure is required, the parties will use good faith efforts to maintain the confidentiality of any terms of this Agreement which are not so required to be disclosed.

Arbitration. Any controversy or claim arising under or related to this Agreement shall be settled by confidential arbitration to be held in Yolo County, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association before a single arbitrator selected in accordance with those rules, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

Binding Effect. This Agreement shall be binding upon the parties hereto and their successors, assigns, representatives and beneficiaries.

Cumulative Remedies. The remedies set forth in this Agreement shall be cumulative to the extent permitted by law and in addition to all other remedies available at law, in equity or otherwise. As such, they may be exercised partially, concurrently or separately. The exercise of one remedy shall not be deemed to preclude the exercise of any other remedy.

Entire Agreement. This Agreement contains the parties' entire agreement and supersedes any prior oral or written agreements between them with respect to the subject matter contained herein. There are no representations, agreements, arrangements, or understandings (oral or written) between the parties relating to the subject matter of this Agreement which are not fully expressed herein.

Governing Law. This Agreement, together with the parties' respective rights and obligations hereunder, shall be governed by and construed in accordance with the laws of the State of California.

Jurisdiction and Venue, Each party hereto consents to be subject to the exclusive jurisdiction of the California courts in and for the County of Yolo, California, as to any matter arising under or pertaining to this Agreement.

Prevailing Party's Fees. If any party commences an action against another party to interpret or enforce any terms of this Agreement, or because of the other party's breach of any provision in this Agreement, the losing party shall pay to the prevailing party reasonable attorneys' fees, costs and expenses incurred in connection with the prosecution or defense of such action, whether or not the action is prosecuted to a final judgment.

Severability. If a court of competent jurisdiction finds any provision in this Agreement to be invalid, such invalidity shall not affect the remainder of the Agreement; the invalid provision shall be deemed severed therefrom and the remainder of the Agreement shall remain enforceable in accordance with its terms and of full force and effect.

Waiver. A party's waiver of any breach of any provision contained in this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of such provision or any other provision contained in this Agreement.