1. Acceptance: This Sales Orders is Selective Esthetics acknowledgment of Buyer's purchase order and shall constitute the terms and conditions of sale or such other terms and conditions as may be approved in writing by Selective Esthetics. The terms and conditions contained in this Sales Order constitute the acknowledgment in any purchase order (contract) relating to the subject matter hereof.
2. Prices: The prices stated herein are F.O.B. the designated plant of Selective Esthetics. Buyer is responsible for payment, in addition to the stated prices, of any taxes, insurance, imposts, duty, cartage or similar charges. If Buyer requests special packaging or handling, such shall be provided at additional costs to Buyer. Prices are subject to change without notice-
3. Payment: All payments for material delivered under this order are payable only in US dollars. All terms are from the date of invoice or shipment, whichever is sooner. Buyer's credit shall be subject to Selective Esthetics' continuing approval. In the event Buyer's credit position in the opinion of Selective Esthetics, is unsatisfactory or becomes impaired, the payment, security or guarantee demanded, or if Buyer is in default in any payment or any proceedings, voluntary, or involuntary, are instituted by or against the buyer in Bankruptcy or insolvency or under any provision of the US Bankruptcy Art, or for the appointment of a receiver or trustee or an assignee for the benefit of creditors. Selective Esthetics may cancel this order, refuse to deliver and undelivered goods and Buyer shall immediately become liable to Selective Esthetics for unpaid price of all goods delivered, all goods in process of manufacture, all tools and dies, and for any and all other damages, including loss of reasonable profits caused by Buyer's default. Selective Esthetics may charge Buyer interest at the maximum legal rate of interest on the unpaid invoices from the due dates thereof, together with all cost of collection, including reasonable attorney's fees. The foregoing rights are without prejudice to any other lawful remedy, including, without limitation, the right to claim any goods received on credit by the Buyer while solvent.
4. Deliveries: Selective Esthetics shall not be liable for, nor deemed in default by reason of, any delay or failure in its performance hereunder, and in particular, when any such delay or failure is caused in whole or in part by any act of God or order of any governmental agency, riot, strike, civil commotion, fires, or Selective Esthetics inability to obtain labor or manufacturing facilities, or any other cause, direct or indirect, beyond Selective Esthetics control. Delays caused by Buyer or material shortages, energy or fuel shortages or restrictions, or order of any governmental agency, shall also constitute excusable cause for delay with appropriate schedule adjustment, and additionally, Buyer shall be liable for equitable price adjustment resulting there from.
5. Patents, Trademarks and Proprietary Data: All right and title to Patent, Trademarks and Proprietary Data (hereinafter referred to as "data") shall be in and remain exclusively with Selective Esthetics. Buyer or any other party shall not have any rights in data of Selective Esthetics except pursuant to separate written acknowledgment by Selective Esthetics nor shall buyer permit any party to use Selective Esthetics data for production or procurement or products covered by or similar to this Sales Order without first obtaining specific written authorization of Selective Esthetics.
6. Changes: No change shall be made to this Sales Order without the written consent of Selective Esthetics. Subject to the foregoing, Buyer by written order, may make changes in deliver schedule, or packing of articles. If any such change causes an increase of decrease in amounts due under this contact, or in the time required for its performance, an equitable price adjustment shall be made and the contact shall be modified accordingly. Any claim for adjustment hereunder may be asserted up to one (1) year after final payment for the work being performed by Secretive Esthetics for Buyer hereunder.
7. Cancellation: Selective Esthetics reserves the right to cancel this order in the event of a breach of any of the terms hereof by the Buyer- Orders may be canceled by buyer only upon the condition that Buyer assumes immediate and full liability for all costs incurred by Selective Esthetics, including, but not limited to, material, labor, non-recurring costs, overhead, and profit . All cancellation charges are to be determined at the time of cancellation.
8. Warranty: Selective Esthetics warrants its products delivered hereunder to be free from defects in materials and workmanship. This Warranty shall run to the Buyer and/or its customers. The liability of Selective Esthetics hereunder is limited to replacing or repairing any parts of parts which have been returned to Selective Esthetics and which are found to be defective. At Selective Esthetics' discretion, Selective Esthetics shall either replace or repair any part of parts, returned to Selective Esthetics which, to Selective Esthetics satisfaction, are shown or found to be defective; provided that such part of parts are so returned at the expense of buyer within thirty (30) days after such defect is discovered. The Buyer and/or its customers shall pay all transportation costs and other handling costs incurred by Selective Esthetics for all products returned. Selective Esthetics shall have the sole right to determine whether such parts shall be repaired or replaced. IN NO EVENT SHALL Selective Esthetics BE LIABLE FOR COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. The Warranty shall terminate three (3) months after delivery to Buyer. This Warranty shall not apply to any product which shall have been improperly used or subjected to misuse or neglect or which has been repaired or altered except by Selective Esthetics accredited representative, nor to any product which has been subjected to accident No Warranty is given with respect to any apparatus, instrument, component or accessory not manufactured by Selective Esthetics. Such items will carry Selective Esthetics Supplies Warranty. THE AFORESAID WARRANTIES ARE EXPRESSLY IN LIEU OF ANY AND ALL WARRANTIES OR REPRESENTATIONS, EXPRESSED OR IMPLIED WARRANTIES OF FITNESS AND MERCHATABILITY, to the Buyer, or the User of said products and no agreement extending this Warranty will be binding upon Selective Esthetics unless in writing and signed by a duly authorized officer or representative of Selective Esthetics notwithstanding any other provisions. Buyer's sole remedies with respect to accepted products are limited to this Warranty Provision.
9. Returned Goods: The standard condition for returned goods are:
(1) shipped prepaid to correct address with return authorization number
(2) return authorization number prominently shown on packaging. No returned goods will be accepted without Selective Esthetics previously issued authorization number.
10. Confidential Information: Buyer agrees and warrants that it will not disclose nor make available to any third party; data, information, or other details pertaining to this sales order or any additional purchase orders resulting herefrom, without first obtaining the written consent of Selective Esthetics.
11. Seller's Patent Disclaimer: Selective Esthetics makes no warranty that the goods are, or will be free, of the claims of any person by way of patent, copyright, trademark infringement, or the like. Buyer assumes all risks (including the risk of suit) that the goods or any use of the goods infringe existing or subsequently issued patents, copyrights, trademarks, or the like.
12. Transportation: Selective Esthetics assumes no responsibility for delay, breakage or damage of any of the articles being produced hereunder after same have been delivered in good condition to any carrier, or such carrier's agent of forwarder. Air freight or air express shipments will be shipped F.O.B. shipping point. Selective Esthetics plant, and the costs of transportation costs to be borne by the Buyer. All products not specifically designated otherwise above are sold F.O.B. shipping point, and the cost of transportation thereof shall be borne by the Buyer, all risk of loss, damage, or other shall retain a security interest in said material's until payment is received in full.
13. Applicable Law: This sales order shall be construed and enforced in accordance with the laws of the State of California.
14. Limitation of Liability: Selective Esthetics shall not be liable for any special, consequential, collateral or indirect damages of any nature whatsoever alleged to rise, directly or indirectly, or arising, directly or indirectly out of the performance of this purchase order.
15. Indemnification: Buyer shall indemnify and hold harmless Selective Esthetics it's officers, employees, agents and invitees from and against all claims, judgments, liabilities, loses, injuries, and damages of every nature (including costs and expenses incident thereto) caused by the act or omissions to act by the Buyer. It's officers employees, agents, invitees, or vendors directly or indirectly arising out of the performance of this purchase order or goods shipped under this purchase order.
16. Provision Effectively: If any provision of this purchase order is determined to be ineffective or invalid, all other provision of said purchase order shall remain effective and valid provided the of the remaining valid and effective provisions is not frustrated.
17. Order of Precedence: In the event of any conflict between the terms of Buyer's purchase order and this Sales Order, then the following order of precedence shall govern:
(1) Terms on the Back of this Sales Order.
(2) Distributor Agreement between Buyer and Selective Esthetics (where applicable).
(3) Terms of Buyer's purchase but only if specifically agreed to in writing by Selective Esthetics.
18. Complete Agreement: this Sales Order contains the entire understanding between the parties on the subject matter agreed upon and supersedes all prior discussions, undertakings, or agreements, oral and written, relating to the same subject matter. Such purchase orders cannot be modified except by an instrument in writing, specifically identified as a purchase order (contract) amendment, signed by authorized representative of Buyer and Selective Esthetics.