TERMS AND CONDITIONS OF SALE

  1. Agreement. These Terms and Conditions of Sale are a part of the order or other written agreement ("Order") between the purchaser specified in the Order ("Purchaser") and They Need XYZ LLC. ("Seller") for Purchaser's purchase of products ("Products") from Seller.  The Order and these Terms and Conditions of Sale are sometimes referred to herein as this Agreement.  Seller will not be bound by, and specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) which is proffered by Purchaser in any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless Seller specifically agrees to such provision in a written instrument signed by Seller.  Seller's acceptance of any Order by Purchaser is expressly conditioned on Purchaser's agreement to these Standard Terms and Conditions of Sale.
  2. Purchase and Sale; Special Orders. Seller will sell to Purchaser, and Purchaser will accept and pay for, all Products ordered by Purchaser pursuant to an Order which has been accepted by Seller.  All Orders are subject to acceptance by Seller either in writing or by shipping Products.  Seller may accept any Order in whole or in part and Seller's shipment of less than all Products ordered will constitute acceptance only as to those Products shipped. Purchaser must accept and agree to any Order offer within 24 hours, or such offer will terminate and Seller will have no obligation to sell any Products to Purchaser.
  3. Delivery, Acceptance and Returns. Seller will use commercially reasonable efforts to meet any delivery date specified in the Orders, but will not be liable for any failure to meet such dates.  All Products delivered to Purchaser will be deemed accepted within ten (10) days of the date of shipment unless Purchaser provides Seller with written notice to Seller of its intent to reject the Products prior to the end of such ten (10) day period.  All fees and expenses, including packaging and shipment, of returned Products or any portion thereof will be at Purchaser's expense unless otherwise agreed to in writing by Seller and shipped by Purchaser F.O.B. Seller's place of business in California.
  4. Prices and Taxes. Purchaser will pay Seller the prices specified in the applicable Order or, if no price is specified in the Order, the price set forth in Seller's standard price list in effect on the date that the Order is accepted by Seller.  Seller reserves the right to change prices at time of order based on the availability and pricing of materials included in the Products, including, without limitation, prices for Products that may fluctuate due to market prices. If the Product manufacturer’s price for the Products increases by 10% or more before Purchaser accepts the Products in accordance with Section 3, at the Seller’s option, either (i) the Order may be cancelled or (ii) the Order will remain in force and the price increase above 10% will be borne equally by the Seller and the Purchaser. All prices are in United States dollars, F.O.B. point of shipment, and do not include any sales, use or other taxes.  Purchaser will pay or reimburse Seller for all shipping costs, customs, duties, taxes and other amounts payable to governmental authorities in connection with the applicable transactions, or will provide Seller with an exemption certificate satisfactory to Seller.  Purchaser assumes all liability for shortage, loss, delay or damage of Products in transit.  Purchaser agrees that it will keep the terms of sale and purchase price confidential and will not disclose the same to any third party without the prior written consent of Seller.
  5. Payment.  Unless otherwise stated in the invoice, Purchaser will pay the amount set forth on Seller's invoice in United States dollars at the time the Order is approved by Purchaser. In addition to other remedies available, Seller may cancel the Order if payment is not received within such 12 hours’ time period. Any wire or other fees associated with payment of invoices is the sole responsibility of Purchaser.  Purchaser will reimburse any costs or expenses (including, but not limited to, reasonable attorneys' fees) incurred by Seller to collect any amount not paid when due.  Seller may accept any payment in any amount without prejudice to Seller's right to recover the balance of the amount due or to pursue any other right or remedy.  No endorsement or statement on any payment, accompanying any payment or elsewhere will be construed as an accord or satisfaction.  
  6. DISCLAIMER AND RELEASE. Seller makes no warranty as to the quality, certification status or classification of any Products by any governmental authority. Products may NOT be returned or service fees refunded in accordance with our Return Policy. THIS IS SELLER’S SOLE EXPRESS WARRANTY, WHICH SUPERSEDES ANY PRIOR REPRESENTATIONS AND UNDERSTANDINGS CONCERNING THE PRODUCTS THAT YOU RECEIVE FROM SELLER.  OTHER THAN AS PROVIDED IN THIS SECTION, ALL PRODUCTS ARE PROVIDED "AS IS" AND SELLER, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, DISCLAIMS, AND PURCHASER HEREBY WAIVES, RELEASES AND DISCLAIMS, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF SELLER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF PURCHASER AGAINST SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCTS AND ANY OTHER GOODS OR SERVICES DELIVERED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO:  (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE (ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OF SELLER; AND (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR INFRINGEMENT.
  7. Excused Performance. Seller will not be responsible for or be considered to be in breach of or default under this Agreement on account of any cause beyond Seller's reasonable control or not occasioned by Seller's fault or negligence (including, but not limited to, Seller's inability to procure materials, parts, equipment or services).
  8. LIMITATIONS OF LIABILITY. SELLER'S LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE, AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF SELLER) WITH REGARD TO ANY PRODUCT OR OTHER GOODS OR SERVICES FURNISHED UNDER THIS AGREEMENT WILL NOT EXCEED THE PURCHASE PRICE PAID BY PURCHASER TO SELLER FOR THE SAME.  FURTHER, SELLER WILL NOT IN ANY EVENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, OR FOR LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS, ARISING OUT OF OR IN CONNECTION WITH ANY PRODUCT OR OTHER GOODS OR SERVICES FURNISHED UNDER THIS AGREEMENT.
  9. Title.  Title to the Products shall remain with Seller and Seller shall have a security interest in any good into which the Products are incorporated until such time as the Products have been completely paid for in accordance with this Agreement.  Purchaser hereby appoints Seller as its attorney-in-fact to execute all necessary documents to perfect Seller's security interest in the Products.  Seller reserves all other rights in and to the Products, including any patent, copyright, trademark, trade secret and other intellectual property rights.  No title to or ownership of any intellectual property rights related to any Product is transferred to Purchaser pursuant to this Agreement.  Purchaser will not attempt to reverse engineer any Product or component thereof or to otherwise misappropriate, circumvent or violate any of Seller's intellectual property rights.
  10. Credit Approval.  All shipments of Products are subject to the approval of Seller's finance department, and if such approval is not obtained or is withdrawn at any time by Seller's finance department, Seller will have the right to cease performance of any future or existing Orders and withhold delivery of any such deliveries without any penalty or liability of any kind, and all fees for any outstanding Orders will be immediately due and payable by Purchaser. 
  11. Unenforceable Provision. The invalidity or unenforceability of any provision of this Agreement will not affect the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision were replaced with a valid and enforceable provision as similar as possible to the one replaced.
  12. Nonwaiver. Any failure by Seller to insist upon or enforce performance by Purchaser of any of the provisions of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of Seller's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather the same will be and remain in full force and effect.
  13. Assignment. This Agreement will inure to the benefit of and be binding upon the parties and their respective successors, assigns and legal representatives.
  14. Applicable Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law principles.  The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.  
  15. Attorneys' Fees.  In any litigation or other proceeding between the parties arising out of or in relation to this Agreement, the prevailing party will be awarded, in addition to any damages, injunctions or other relief, such party's costs and expenses, including but not limited to reasonable attorneys' fees and costs.
  16. Entire Agreement. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements, between Seller and Purchaser with regard to the Products.  No amendment, modification, or waiver of this Agreement will be valid unless set forth in a written instrument signed by the party to be bound.