General Terms & Conditions of Sale
Ardo medical, Inc. (“Ardo”)
The following General Terms and Conditions will apply to and shall govern the Ardo Authorized Reseller Agreement. By initializing each page of Exhibit A, the Reseller acknowledges the receipt and comprehension of the Terms and Conditions.
1. Payment and Ownership: Ardo requires payment at time of order by credit card, or pre-paid by check. Confirmation of check clearance prior to shipment is required. Ardo may change its payment or other financial requirements at any time, in its sole discretion. Ardo may extend payment terms with submission and approval of credit application, in which case payment is due 30 days net from the day of shipment. Ownership of the Products shall remain with Ardo until receipt of full payment. No intellectual property rights are assigned or sold. Prices are Ex Works Ardo’s warehouse (Incoterms 2010). Payments are considered late if they are submitted more than 5 days after the payment due date. Late payments are subject to compounded interest charges of 1.5% per month, calculated monthly on the 1 st of each month. Ardo reserves the right to retroactively charge interest for late payments.
2. Marketing and Advertising: Reseller agrees to use its best efforts to promote the good will and name of Ardo and the brand image of the Products. Ardo shall have the right to review and approve Reseller’s advertising and promotional materials which include any mention of the Products or use of any trademarks, logos or other Product identifiers prior to any distribution or publication of said materials, and Ardo shall have the right to require all reasonable modifications to such materials.
3. Listing and Publishing: If Reseller chooses to promote the Products through national media, Reseller must receive prior written approve of Ardo before publishing. This policy applies to all national Product listings including, but not limited to, catalog listings, Internet listings, and national advertisements.
4. Taxes: Reseller shall collect and pay all applicable sales and other taxes on Products purchased, held or sold by Reseller in accordance with applicable law. In addition, Reseller agrees to provide, without specific request, Ardo with a current reseller certificate or other exemption of sales or other local, regional, or state taxes
5. Agreement and Terms: Unless otherwise specifically agreed to by Ardo in writing, all transactions between Ardo and Reseller relating in any manner to the Parties’ business dealings hereunder shall be governed exclusively by the General Terms and Conditions stated in this Agreement, in Exhibit A, in the Price List(s), in any Ardo invoices and order acknowledgements or confirmations, in any separate security agreement(s) executed by the Parties, in any credit applications and other documents generated by Ardo, and in all Ardo marketing programs in effect and issued from time to time. Ardo hereby registers a continuing objection to any terms and conditions set forth in Reseller’s purchase orders or other business forms which are different from or in addition to this Agreement and the terms and conditions set forth in this Exhibit A. No such additional or different terms or conditions shall be of any force or effect whatsoever under any circumstances, notwithstanding any failure by Ardo to communicate further objections thereto. In the event of a conflict between this Agreement and any of the other Ardo documents referenced herein, the terms of this Agreement shall control.
6. Warranty: Ardo warrants to Reseller that the Products will be free from material defects in material and workmanship for 12 months after the shipment from Ardo to reseller or, in case of electric breast pumps, 12 months or 400 hours of operation, whichever is shorter. No product returns may be made by Reseller without prior issuance of a Return Material Authorization number (RMA) from Ardo. Under the warranty, Ardo undertakes, at its sole discretion, to repair or, replace the Product or to reimburse the purchase price for the defective Product to Reseller. It is the Reseller’s responsibility to arrange and pay the return shipment of the defective Product to Ardo. Repaired or replaced Products will be warranted hereunder only for the remaining portion of the original warranty period. Any guarantee or additional warranty, implied warranty (merchantability or fitness for a particular purpose) or any return due to reasons other than the above-mentioned is expressly excluded. Any removed parts from the Products shall become Ardo’s property. Excluded from Ardo’s warranty are all defects, which result from normal wear and tear or damaging external influences (e.g. electromagnetic, electrolytic, chemical, weather, air pollution), unapproved repairs, improper maintenance or storage, failure to observe the user’s manual or instructions for use, inappropriate handling, inappropriate shipping packaging.
7. Claims: All claims, except warranty claims, are null and void unless submitted in writing to Ardo within fourteen (14) days of when Products are received by Reseller. Warranty claims are null and void unless submitted in writing to Ardo within fourteen (14) days from when they first become known to the Reseller or the Reseller’s end customer.
8. Liability:Ardo’s liability to Reseller, and Reseller’s remedies with respect to defective Products, are expressly limited, at Ardo election, to (i) repair or replacement of any defective Products, or (ii) refund of Reseller’s purchase price if Ardo determines, at its sole discretion, it is not practical to repair or replace the Product. Ardo excludes any liability for technical or other support. Ardo’s maximum cumulative liability to Reseller under these General Terms and Conditions and under any purchase order, purchase order confirmation, or shipment is limited to the lesser of ten thousand US dollars (USD 10,000) or the total payment received by Ardo from Reseller for the Products giving rise to the liability or indemnity obligation. Any liability which is not expressly mentioned under the General Terms and Conditions and any liability, without limitation, for indirect or consequential damages, loss of profit, irrespective of the grounds on which it is based (including late, partial or no delivery, infringement of intellectual property rights, tort, contract or strict liability), is excluded by Ardo to the maximum extent authorized by law. Ardo’s liability applies only to Products that are sold to Reseller directly by Ardo. The use or sale of Products in jurisdictions subject to different regulations and standards than those in force at Ardo’s location, are at Reseller’s risk. Ardo reserves the right to control the defense and settlement of any claim, for which Ardo has an obligation to indemnify hereunder. Ardo shall not be liable for non-, partial, or bad performance due to any event beyond its reasonable control, including, but not limited to, acts of God, force majeure, floods, wars, fires, material shortages of suppliers, changes in government rules and regulations.
Ardo SHALL NOT, IN ANY CASE, BE LIABLE TO RESELLER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL DAMAGES
9. Indemnification: Reseller shall indemnify and hold harmless Ardo, its officers, directors, employees, and agents (“Ardo Indemnified Parties”), against any and all damages, liabilities, penalties, fines, costs, and expenses, including attorneys’ fees, arising out of claims, suits, allegations or charges asserted by any third party or parties against any Ardo Indemnified Parties as a result of any breach of this Agreement or these General Terms and Conditions by Reseller, its employees or agents, or any other act(s) or omission(s) of Reseller, its employees or agents; whether through negligence or intention.
10. Termination by Ardo: Ardo may terminate this Agreement for any reason, with or without cause, at any time upon thirty (30) days written notice to Reseller. Ardo may terminate this Agreement immediately by written notice to Reseller upon the occurrence of any of the following: (i) Reseller breaches any provision of this Agreement or the General Terms and Conditions; (ii) any change in control of the equity ownership of Reseller; (iii) in the case of Reseller being an individual, the death or incapacity of Reseller; (iv) dissolution or insolvency of Reseller; (v) any material change in the nature and location of Reseller’s business; (vi) any sale or other disposition of a material part of Reseller’s assets; or (vii) Reseller files or has filed for bankruptcy, makes a general assignment for the benefit of its creditors or has a receiver or trustee appointed for any material part of its business or properties.
11. Termination for Convenience: Either Party may terminate this Agreement for convenience at any time upon thirty (30) days written notice to the other Party. Termination of this Agreement by either Party automatically cancels all open Reseller orders (i.e. orders not already invoiced or scheduled for shipping). In any event, Ardo may limit shipments to Reseller during the final period to an amount not to exceed Reseller’s credit limit, taking into account outstanding amounts due to Ardo. Notwithstanding any credit terms made available to Reseller prior to termination, any Products shipped during the final period shall be paid for by wire transfer or certified or cashier’s check prior to shipment.
12. Repurchase of Stock from Reseller: Within ten (10) days following any termination of this Agreement, Reseller shall supply to Ardo a list of all new, unopened, undamaged, and non-obsolete Products then owned by Reseller. Ardo shall have the option to repurchase (but shall not be obligated to repurchase), any or all of such Products, upon providing written notice of its intention to Reseller within thirty (30) days after receipt of the Product list from Reseller. Upon receipt of notice that Ardo intends to exercise its repurchase option, Reseller agrees to cause those Products selected by Ardo for repurchase to be delivered to such place(s) in the United States as Ardo may designate. Ardo shall have the right to inspect all returned Products before establishing final disposition. Upon inspection, Ardo shall be entitled to reject and return to Reseller, freight collect, any Products which, in Ardo sole judgment, are in unacceptable condition. Reseller shall be credited for any accepted Products at the net invoice prices at which such Products were purchased originally by Reseller, less any allowances which Ardo may have afforded to Reseller because of such Products, less the costs of repair or repackaging, as may be necessary, and less a restocking charge of 25%.
13. Rights upon Termination: Any termination of this Agreement shall be without prejudice to any right that has accrued to either Party hereunder prior to such termination. Reseller agrees upon such termination and upon request by Ardo to immediately: (i) discontinue any and all use of the trademarks of Ardo and any trademarks associated with the Products, including such use in its advertising or business materials, (ii) remove or obliterate any and all signs which designate Reseller as an authorized Ardo Reseller or an authorized Reseller of the Products or which include any trademark of Ardo or any trademark associated with the Products, and cease holding itself out in any other manner, as an authorized Ardo Reseller or an authorized Reseller of the Products; and (iii) notify and instruct publications and others which may list or publish Reseller’s name as an authorized Ardo Reseller or authorized Reseller of the Products (including telephone directories, yellow pages and other business directories) to discontinue such listings.
14. Assignment: Reseller may not assign this Agreement without the prior written consent of Ardo.
15. Relationship: Ardo and Reseller agree that their relationship is that of seller and buyer only, and Reseller shall be considered an independent contractor at all times with respect to its relationship with Ardo. Nothing in this Agreement shall be construed as creating the relationships of employer and employee, franchiser and franchisee, principal and agent, partnership or joint venture between the parties hereto. Reseller acknowledges that it has paid no fee to Ardo in exchange for its appointment hereunder. Reseller, its employees and agents, under no circumstances, shall be considered employees or agents of Ardo, shall not represent themselves directly or by implication as such, and shall have no express or implied right or authority to assume or create any obligation on behalf of Ardo.
16. Force Majeure: Ardo shall not be liable under the provisions of this Agreement for its failure to perform its obligations hereunder due to events beyond its reasonable control including, but not limited to, acts of war or terrorism, fire, flood, explosions, acts of God, labor strikes, or labor shortages.
17. Governing Law and Arbitration: The rights of the parties shall be governed exclusively in accordance with the laws of the Commonwealth of Virginia without regard to its conflict of law’s provisions. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Commercial Code shall not apply. Any litigation arising under this Agreement or these General Terms and Conditions shall be brought before the courts of the Commonwealth of Virginia. The parties waive any right to a jury trial on matters arising from this Agreement or these General Terms and Conditions.
18. Arbitration: Any claim, controversy or dispute between the Parties, their agents, employees, officers, directors or affiliated agents (“Dispute”) arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in the Commonwealth of Virginia conducted by a single arbitrator (selected by mutual agreement of the Parties) engaged in the practice of law, under the then current Commercial Arbitration Rules of the American Arbitration Association. The arbitrator’s award shall be final and binding, is the only means of dispute resolution, and may be entered in any court having jurisdiction thereof.
19. Notice: Any notice required or permitted hereunder shall be deemed given upon one of the following: (a) personal delivery; (b) via reliable overnight courier, signature required; (c) via facsimile, with confirmation of receipt; (d) via e-mail; or, (e) via US mail, return receipt requested.
20. Entire Agreement: This Agreement together with any documents incorporated herein by reference constitutes the entire and final agreement between the parties relating in any manner to the subject matter hereof. Each Party to this Agreement acknowledges that no written or oral representations, inducements, promises or agreements have been made which are not embodied herein. IT IS THE INTENTION AND DESIRE OF THE PARTIES THAT THE EXPRESS PROVISIONS OF THIS AGREEMENT NOT BE SUBJECT TO VARIATION OR SUPPLEMENTATION BY IMPLIED COVENANTS OF ANY KIND. Any and all prior or contemporaneous written or oral agreements between the parties relating in any manner to the subject matter of this Agreement expressly are superseded and canceled by this Agreement. Except as otherwise provided in this Agreement, this Agreement may not be amended, modified or supplemented, except by a written instrument signed by both parties.
21. Severability: In the event that any of the provisions of this Agreement or the application of any such provisions to the parties hereto with respect to their obligations hereunder shall be held by a court of competent jurisdiction to be unlawful, invalid, void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The headlines of each paragraph are for convenience only.
22. Waiver: The waiver by either Party of any breach of this Agreement by the other Party in a particular instance shall not operate as a waiver of subsequent breaches of the same or different kind. The failure of either Party to exercise any rights under this Agreement in a particular instance shall not operate as a waiver of said Party’s right to exercise the same or different rights in subsequent instances.