Terms and Conditions. These Terms and Conditions govern the sale of the NovaBay Pharmaceuticals, Inc. (“Seller”) Products and Services stated in the Sales Order (“Order”). The Order and these Terms and Conditions constitute the entire agreement between Seller and the entity named in the Order (“Buyer”) and supersede all prior written or oral communications, representations or understandings between the Parties about the Products or Services. These Terms and Conditions take precedence over and cancel any other, different or conflicting terms and conditions of Buyer’s purchase order.
Prices. Product prices do not include fees for crating, insurance or shipping, unless stated otherwise in the Order. Buyer is liable for, and agrees to pay, taxes imposed by any governmental authority on this sale, including sales, use, excise, value-added, withholding or other taxes, duties or fees. Subject to Sections 5 and 6 below, all sales are final.
Payment. Payment shall be by bank wire transfer or other means acceptable to Seller. Seller may charge up to 1.5% interest per month on late payments.
Delivery. Unless otherwise stated in the Order, shipments will be made Ex-Works Seller’s facility. Title and risk will pass in accordance with the agreed upon Incoterms 2010. Seller will use reasonable efforts to deliver the Products in keeping with its estimated ship date, but does not guarantee delivery dates.
Cancellation. Cancellation of orders will be subject to a 20% restocking fee.
Limited Warranty. Seller warrants its Products from the date of shipment to be free from defects in workmanship and material, and in material compliance with all its published product specifications in effect on the date of shipment for a period of thirty (30) days. Seller also warrants its sterile products to be sterile for the period designated on the product label so long as the Product has not been opened or damaged. This express warranty does not cover damage resulting from misuse, neglect, accident, alteration, acts of God or failure to follow the procedures and instructions specified in Seller’s indication for use.
Returns. Products believed to be defective must be shipped to Seller within 30 days of the written claim at Buyer’s expense in accordance with Seller’s Return Policy. Seller will replace or refund any Product reasonably determined to be defective and return the unit via standard shipping at its expense.
Warranty Disclaimer. OTHER THAN AS SET FORTH IN SECTION 6, THE PRODUCT ARE PROVIDED TO BUYER IS ON AN “AS IS” BASIS AND SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, ABOUT THE PRODUCTS AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
Limited Liability. EXCEPT FOR WILLFUL MISCONDUCT, FRAUD, PERSONAL INJURY OR DEATH, IN NO EVENT SHALL SELLER BE LIABLE FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR SAVINGS, LOSS OF USE OF ANY PRODUCT, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, ARISING OUT OF OR RELATED TO THIS SALES CONTRACT. SELLER’S MAXIMUM LIABILITY TO THE BUYER UNDER THIS SALE SHALL BE LIMITED TO THE PRICE BUYER PAID FOR THE PRODUCTS. BUYER EXPRESSLY AGREES TO THE LIMITS ON SELLER’S LIABILITY IN THIS SECTION AND ACKNOWLEDGES THAT, WITHOUT ITS AGREEMENT TO THESE LIMITATIONS, THE PRICES FOR THE PRODUCTS WOULD BE HIGHER.
U.S. Export Compliance. Buyer agrees not to export or re-export the Products to countries subject to embargoes or other U.S. trade sanctions, nor to prohibited or denied persons or entities, without proper government licenses. For more information, you may go to: http://www.treas.gov/ofac/ and http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern
Force Majeure. Each Party will be entitled to an extension of any obligation, except payment, for delay caused by an event which is beyond its reasonable control and could not by the use of diligence be overcome, including without limitation or interpretation, acts of war (whether declared or not), fire, flood, sabotage, shipwreck, embargo, explosion, labor unrest, strikes, lock-outs, works to rule or go-slows, accident, riot, act of a governmental authority, act of God or natural calamity.
Governing Law/Disputes. These Terms and Conditions and any dispute arising out of or related to this sale will be governed by the laws of the State of California, U.S.A., excluding its conflict-of-law provisions and the United Nations Convention on Contracts for the International Sale of Goods. Any dispute that cannot be resolved amicably shall be submitted to binding arbitration with the American Arbitration Association in San Francisco, California.