1)      General: Any sale of products by BIO CYBERNETICS INTERATIONAL (hereinafter called “Seller”) is governed exclusively by these Standard Terms and Conditions of Sale (hereinafter called “Standard Terms”) which, unless otherwise agreed by an authorized officer of Seller in writing, shall be a part of the sales contract and Seller’s invoice and shall supersede any inconsistent terms on Buyer’s purchase order or any subsequent document or electronic transmission. Buyer’s acceptance of Seller’s products shall constitute Buyer’s acceptance of these Standard Terms. Any order placed with Seller is subject to acceptance and confirmation of acceptance by Seller to Buyer (“Order Acceptance Confirmation”). A binding sales contract will result when Seller accepts Buyer’s order, represented by an Order Acceptance Confirmation sent from Seller to Buyer. No terms and conditions contained in Buyer’s purchase order or any document or electronic transmission which contradict or conflict with these Standard Terms or Seller’s Order Acceptance Confirmation are binding upon Seller unless specifically agreed to in writing by an authorized officer of Seller.

2)      Shipment, Delivery, Delay, Force Majeure, Acceptance and Imports: Shipment and delivery dates are quoted in good faith and are approximate. Shipment and delivery dates are always subject to these Standard Terms, availability of products and components and Buyer’s timely compliance with these Standard Terms. Seller shall not be liable to pay any penalty for a delay in shipment, nor shall it be bound by any provision for the payment of a penalty of any nature whatsoever claimed by reason of any delay in shipment unless it has expressly consented to such penalty provisions in writing. In no event shall Seller be liable for any incidental, special, indirect or consequential damages caused by delay in shipment due especially, but not exclusively, to force majeure and other causes beyond its reasonable control. The term “force majeure” shall include, but is not limited to, war, blockade, civil disturbances, strikes and lockouts, labor shortages, component shortages, lack of supply, fire and other casualties, accidents and governmental acts (including regulations concerning export and import licensing and currency exchange), acts of God or acts of terrorism. Unless otherwise specified in writing signed by Seller, all shipments are F.O.B. at La Verne California U.S.A. and title and risk of loss shall pass to Buyer upon delivery to a carrier at such time and place of shipment. Transshipments will be allowed only when necessary due to special routing requirements. In the absence of specific shipping instructions from Buyer that are accepted in writing by Seller, Seller will use its discretion in selecting shipping services and routings. Seller shall not be liable for delay, damage, or breakage to the product(s) sold hereunder after delivery has been made to the carrier, and all claims for loss in respect thereof occasioned after such delivery shall be made to the responsible carrier. Changes in shipping schedules requested by Buyer will require written approval by Seller and the assumption by Buyer of all additional costs resulting therefrom. Buyer is responsible to timely procure all necessary import licenses in the country of destination and all permits required for the consummation of the transaction. Clerical errors in any element of a proposal, purchase order or contract are subject to correction by Seller.

3)      Pricing: Prices for the products are provided separately from these Standard Terms. Prices do not include excise, sales, use, gross receipts, value added, property or other taxes, broker fees, customs duties, levies and other similar charges which may be assessed or charged in connection with the sale, transportation, export/import or handling of the product(s) sold hereunder, and Buyer shall pay all such charges, and shall reimburse Seller in full on demand upon invoice for all such charges which Seller may be required to pay. All applicable federal, state or local sales, user or excise tax is the responsibility of Buyer and shall be in addition to the price or prices stated unless otherwise specifically stated.  Prices do not include insurance or freight charges for transportation, which charges shall be the responsibility of and paid by Buyer. All prices are in U.S. Dollars. F.O.B. at La Verne, California, U.S.A. The price(s) quoted by Seller are firm for 10 days from the date of order and assumes that Buyer will accept delivery of the items purchased within two (2) business days following the anticipated delivery date and Buyer agrees to take delivery within that time period. After the expiration of the initial 10-day period, the applicable prices are those in effect at the time an order is placed with Seller by the Buyer.

4)      Payment Terms: Payment for all products purchased from Seller must be made by Buyer within thirty (30) days after the date of Order Acceptance Confirmation, or as otherwise agreed in writing by Seller and Buyer. If, in the judgment of Seller, the financial credit of Buyer at any time does not justify continuance of production or shipment of any product(s) on the payment terms specified by Seller, Seller may require full or partial payment prior to shipment, or may terminate any order, or any part thereof, then outstanding. Finance charges at the rate of 1.5% per month (18% per annum or at the maximum legal limit, whichever is higher) shall be assessed on all balances unpaid for more than thirty (30) days after payment due date.  Failure of Buyer to make any payment when due shall give Seller the right to suspend delivery without any liability to Buyer until and unless such payment is made. In the event that any such default by Buyer continues for more than thirty (30) days after the due date, Seller may at any time thereafter cancel the order by written notice to Buyer (by mail, overnight delivery, facsimile transmission or email) and shall be entitled to recover the delivered products which have not been paid for in full in accordance with Seller’s security interest granted in paragraph 6 below. In the event Seller suspends the processing of Buyer’s order due to Buyer’s failure to make payment at the agreed time, any claim by Buyer against Seller for alleged delay in completion of the work shall be barred. Buyer shall pay any and all costs and expenses of collection including, without limitation, reasonable attorney’s fees, whether or not suit is instituted, incurred by Seller in the event collection of any delinquent balance is required.

5)      Cancellations and Returns: Except in the case where the product is clearly defective at the time of delivery by Seller to the carrier or where Buyer has been authorized in writing by Seller to return product for replacement or credit, Buyer is not authorized to return the product. Product returns will require written authorization by Seller and, if such product is determined not to have been defective at the time of delivery by Seller to the carrier, the payment of a restocking fee and the payment of any incurred fees, duties and shipping charges if returned in resalable condition. Seller will not accept any returned product if, among other reasons, (i) there has been any deterioration of the product due to Buyer’s or any third party’s failure to store and/or handle the product in a proper manner as specified by Seller and as may otherwise be required by applicable laws, rules or regulations or (ii) such product has been damaged or modified or such defect has been introduced after delivery by Seller to the carrier.

6)      Seller’s Security Interest: Buyer hereby grants to Seller, and Seller hereby reserves, a security interest in goods sold and the proceeds thereof, in the amount of the purchase price therefor. This security interest will terminate when Seller receives payment in full. Buyer hereby appoints Seller as its attorney-in-fact to execute, in Buyer’s name and on Buyer’s behalf, all documents as may be necessary to file a lien against all products of Seller delivered to Buyer but not yet paid for. Seller reserves all right with respect to delivered products permitted by law, including, without limitations, the rights of rescission, repossession, resale and stoppage in transit until the full amount due from Buyer in respect of the delivered products has been paid. Buyer shall be liable for legal expenses Seller might be obliged to incur to protect its rights hereunder.

7)      to Intellectual Property: Neither title nor any proprietary or ownership rights of any kind in or to any patents, copyrights, trademarks, trade secrets, know-how, processes, methods, drawings, designs, specifications, or any other intellectual property of Seller incorporated into or otherwise embodied within the products purchased by Buyer is sold or transferred to Buyer. Title and all proprietary and ownership rights in and to all intellectual property incorporated into or otherwise embodied within the products purchased by Buyer are expressly retained by Seller.

8)      Warranty Disclaimer; Limitation on Liability: EXCEPT FOR ANY WARRANTY EXPRESSLY STATED ON PRODUCT PACKAGING OR OTHERWISE PUBLISHED BY SELLER, SELLER MAKES NO WARRANTIES OR REPRESENTATION IN REGARD TO THE PRODUCT, EITHER EXPRESS OR IMPLIED, WHETHER ARISING UNDER STATUTE, COMMON LAW, COMMERCIAL USAGE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL SELLER BE LIABLE TO ANY PERSON OR ENTITY FOR ANY SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, MISREPRESENTATION OR OTHERWISE AND WHETHER RESULTING IN LOST PROFITS, LOST OPPORTUNITY, INTEREST ON MONEY BORROWED OR INVESTED, IMPAIRMENT OF GOODS, WORK STOPPAGE OR OTHERWISE, IN ANY WAY ARISING OUT OF ANY TRANSACTION TO WHICH THESE STANDARD TERMS APPLY. THE MAXIMUM LIABILITY OF SELLER HEREUNDER, WHETHER FOR A BREACH OF WARRANTY OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE DEFECTIVE PRODUCT.

9)      Mediation/Arbitration: Any controversy arising out of the interpretation and/or performance of this contract, except Buyer’s nonpayment of the sums due Seller, shall first be submitted to mediation in Los Angeles County, California to a single mediator acceptable to the parties. If the dispute is not resolved by mediation, it shall then be submitted to arbitration in Los Angeles County, California according to the Commercial Arbitration Rules of the American Arbitration Association before three (3) arbitrators unless the parties mutually agree on a lesser number.

10)    Marking and Packing: All goods will be packed properly for truck transportation. Strong cardboard cases and wood pallets will be used where applicable provided the cases will fit in a standard container to avoid possible loose case shipment. Special packaging and shipping charges will apply for certain oversize goods and/or export/ocean packaging.

11)    Export Controls: BUYER SHALL NOT EXPORT OR RE-EXPORT THE PRODUCTS FURNISHED HEREUNDER UNLESS BUYER COMPLIES FULLY WITH ALL LAWS AND REGULATIONS OF THE UNITED STATES RELATING TO SUCH EXPORT OR RE-EXPORT, INCLUDING, BUT NOT LIMITED TO, THE EXPORT ADMINISTRATION ACT OF 1979, AS AMENDED, AND THE EXPORT ADMINISTRATION REGULATIONS OF THE U.S. DEPARTMENT OF COMMERCE.

12)    Miscellaneous.  These Standard Terms, Seller’s invoice and Buyer’s order submitted to Seller (as modified hereby) constitute the final, complete and exclusive agreement between the parties as to the subject matter hereof. This Agreement may not be amended except by an amended purchase order, a change order or other written document signed by the authorized representatives of both parties. The validity, construction and interpretation of all documents relating to this sale, and rights and duties of the parties hereto, shall be governed by the laws of the State of California, United States of America, without reference to the choice of law principles thereof. Failure on the part of Seller to enforce any of its rights derived from this contract shall never be construed as a waiver of any of its rights. The invalidity of one or more of the clauses of these Standard Terms by any competent authority shall not affect the validity of the other clauses, which for this purpose are considered severable.