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Any acceptance of Buyer’s order by SMARTFIT INC., (“SFI”) is expressly contingent on Buyer’s agreement to the terms and conditions herein (“Terms”). Acceptance of, payment for, or use of any part of the product(s) to be delivered hereunder, or any authorization to proceed with delivery (oral or written), issuance of a purchase order, or any other form of Buyer’s acceptance of this offer shall constitute such assent by Buyer.

SFI specifically objects to and rejects any inconsistent terms or conditions offered by Buyer, which shall not be binding unless they are in writing and signed by an authorized representative of SFI; provided, however, that Buyer’s purchase order acknowledgment form (or its equivalent) shall not constitute such a writing, whether signed by an authorized representative of SFI or not (Buyer’s purchase order and its corresponding acknowledgment form, if any, shall be prepared only for the purposes of convenience in identifying the order).

PAYMENT. All prices are quoted in US dollars unless otherwise stated, exclusive of shipping, insurance, taxes, regulatory fees, and similar costs. Payment must be made in advance by credit card, check or wire transfer. Purchase orders are accepted upon credit approval. Payment by Buyer is due and payable IN FULL upon receipt of an invoice. Payments made later than thirty (30) calendar days after such receipt will be subject to a processing/collection charge of 11⁄2% per month, with a minimum $50.00 charge. Prices quoted are valid for forty-five (45) days, unless specifically stated otherwise. ET shall not be required to proceed with delivery of product(s) or if payments due on outstanding invoices have not been timely made.

EXPORT. All orders accepted for export are subject to issuance of an export license by the U.S. Government and subject to Buyer providing SFI with the relevant import certificate or any other document necessary to obtain such export license and/or to permit the import of the product(s) into the country of destination.

INSTALLATION AND ACCEPTANCE. Installation and initialization of the product(s) must be performed by SFI employees or others specifically trained and authorized by SFI, otherwise the warranty shall be void. Installation services are not included in the purchase price of the product(s) sold unless expressly stated in SFI’s quote/ proposal. Buyer shall complete all site preparation and operating environment requirements and shall obtain all required permits, licenses, etc., at its own expense before installation shall begin. Buyer shall identify and promptly resolve all physical and procedural conflicts at the installation site, without cost to SFI. The product(s) covered by this order shall be deemed finally inspected and accepted upon initialization of the product(s) and unless written notice of rejection is received by SFI. Such acceptance shall constitute acknowledgement of full and complete performance by SFI of all its obligations hereunder except as provided in the SFI Limited Warranty.

LIMITED WARRANTY. SFI warrants its product(s) delivered hereunder to conform to the applicable specifications, drawings and workmanship. This warranty shall continue in effect for a period of eighteen (18) months from the date of shipment. The sole responsibility of SFI under this warranty shall be to repair or replace (in place or elsewhere, at SFI’s option) any part or parts determined by SFI not to conform to the applicable specifications, drawings or workmanship; provided that written notice is given to SFI within ten (10) working days after discovery of the alleged nonconformity, but in any event within the warranty period. This warranty shall not apply to any product or part thereof which has been subject to misuse or neglect, damaged by accident, rendered defective by the performance of installation, repairs or alterations by anyone other than SFI. This warranty shall not apply to any third party products (see separate manufacturer warranties, which may apply to Buyer) supplied by SFI. This Warranty shall not apply to any material, part or parts furnished by Buyer or acquired from others at Buyer’s request and/or to Buyer’s specifications, nor to material, part or parts subject to a manufacturers’ warranty applicable to Buyer. THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS ARE EXCLUDED. THE WARRANTY CONTAINED HEREIN IS IN LIEU OF ANY AND ALL OTHER WARRANTIES OR REPRESENTATIONS WHETHER EXPRESS OR IMPLIED, AND OF ANY OTHER OBLIGATION OR RESPONSIBILITY OF SI TO BUYER, INCLUDING WITHOUT LIMITATION INCIDENTAL, CONSEQUENTIAL AND INDIRECT DAMAGES. No agreement or understanding bearing upon or extending the warranty or remedies set forth herein will be binding on SFI unless SFI has agreed thereto in writing.

OWNERSHIP AND LICENSE. In any and all instances that the terms “design”, “customization”, “development” or similar terms may be used in this or any related document, they are used in a broad, descriptive sense and, therefore, convey no contractual right in the design or copyright of any product(s) or software component to be delivered nor in the processes of product creation. Any and all engineering effort associated with this order is understood to be a derivative work and/or adaptive engineering of design concepts previously developed by SFI entirely at its own expense. No original research, design, or development is anticipated by this order. Under no circumstances shall this order be construed to be a grant or release of any ownership rights in any technology, all of which are hereby specifically reserved to SFI. Use and warranty of any software component is strictly governed by SFI’s END USER LICENSE AGREEMENT. The use, ownership, and warranty of third party software products sold to Buyer by SI, if any, shall be governed solely by the third party’s license agreement. CHANGES AND MODIFICATION IN DESIGN. SFI, its subcontractors, vendors and suppliers reserve the right to make any change or modification to the design of products without incurring any obligation to furnish or to install such changes or modifications on products previously or subsequently sold. Buyer shall make no design change.

LIMITED LIABILITY. To the maximum extent permitted by applicable law, SFI shall in no event be liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) however caused and on any legal or equitable theory of liability, and whether or not for breach of contract, negligence or otherwise, even if buyer has been advised of the possibility of such damages. These limitations will apply notwithstanding any breach of condition(s) or fundamental term(s) or for a fundamental breach. Under no circumstances shall SFI have any responsibility or liability for a third party’s warranty to buyer. In any case, SFI’s entire liability under any provision of this agreement shall be limited to the amount received by SFI from buyer for the parts, products, or software license provided pursuant to this agreement. This limitation of liability is cumulative with all such party’s expenditures being aggregated to determine satisfaction of the limit. 

DELIVERY. Buyer acknowledges that delivery dates, while given as accurately as conditions permit, are tentative only, and while SFI will use its reasonable best efforts to make deliveries as scheduled, SFI assumes no liability whatsoever for damages arising out of the failure to deliver the product(s) on the dates stated. All delivery and installation dates are predicated on prompt and timely receipt from Buyer of all necessary information and documentation.

CANCELLATION OR RESCHEDULING OF DELIVERIES. Buyer’s order, once placed and accepted, may be canceled only with SFI’s written consent, which will not be unreasonably withheld, and upon terms which will save SFI from loss. SFI may, but is not obligated to, accept a written request by Buyer to reschedule shipment of products. If rescheduling is accepted by SFI, the price shall be adjusted to include any additional costs incurred or price increases for the new schedule.

DEFAULT. If SFI fails to perform within the agreed time, Buyer has the right to terminate the order, in whole or in part, at no cost; provided that, within twenty (20) working days after receipt of the written notice of Buyer’s intent to terminate for default, SFI has not taken reasonable steps to cure such default.

LIMITED RIGHT TO RETURN. Except as provided under SMARTfit’s warranty, Buyer has no right to return any parts or products shipped to Buyer pursuant to this Agreement. If SMARTfit, in its sole discretion, agrees to accept the return of a part or product that has not been used, Buyer will pay shipping, insurance, and a 20% re-stocking fee.

CONFIDENTIALITY. Buyer shall safeguard and keep secure from disclosure to any third party all information, in whatever form, concerning SFI’s design, methods, techniques and software, and the design, operation and features of the product(s), disclosed to or observed by Buyer. Buyer acknowledges that all such information constitutes trade secrets of SFI. All inventions and improvements developed during the performance of any contract arising from this offer shall be the exclusive property of SFI. Buyer agrees not to object to, infringe on, or assist in any infringement of SFI’s existing or future trade secret or patent.

BANKRUPTCY. In addition to any other rights and remedies available at law or in equity, either party may cancel all or the unperformed portion of any open order in the event that the other party becomes insolvent or a bankruptcy petition is filed which is not vacated within thirty (30) days from the date of filing.

FORCE MAJEURE. If the either party is prevented directly or indirectly from performing this contract by act of God, the public enemy, war, revolution, blockades, strike, riot, earthquake, cyclone, flood, delay by carrier, subcontractor/ vendor action or omission, fuel shortage, embargo, walk-out or other labor disturbance, actual or potential, the operation of laws, interferences of civil or military authority, or other cause, existing or future, beyond the reasonable control of the party affected, interfering with the performance of work as herein contemplated, the party so prevented or interfered with shall be excused from performance hereunder, excluding the obligation to pay monies owed, provided prompt written notice is given to the other party.

INVALIDITY. The invalidity, in whole or in part, of the Terms or any provision or part thereof shall not affect the validity or enforceability of any other term or provision. WAIVER. The right of either party to require strict performance of the Terms shall not be affected by any prior waiver or course of dealing. Waiver of any breach shall not constitute a waiver of subsequent breach.

GOVERNING LAW; JURISDICTION. The validity of any contract or purchase order arising from this offer and of any of the Terms, as well as the rights and duties of parties arising out of the performance hereunder, shall be governed by California law, without regard to conflict of law provisions. Captions are for convenience only and shall not be used to interpret the Terms. Jurisdiction over and the venue of any dispute arising out of such rights and duties shall be exclusively in the Superior Courts of California, County of Ventura. Both parties hereby agree and consent to such personal jurisdiction and waive any and all objections thereto.

ASSIGNMENT. Neither party may assign this order without the prior written consent of the other, which consent shall not be unreasonably withheld.

ENTIRE AGREEMENT. These terms and conditions constitute the entire agreement between the parties and take precedence over any and all previous verbal or written communication in connection with this contract and any order.! U.S. GOVERNMENT CONTRACTS. Any product sold in connection with a U.S. Government contract is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (FAC 2005-25; 22 April 2008), and any software component consists of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (FAC 2005-25; 22 April 2008). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 227.7102 through 227.7102-3 (6 Sept. 2007), and 48 C.F.R. 227.7202 through 227.7202-4 (6 Sept 2007), all U.S. Government End Users acquire the product(s) and component software with only those rights set forth herein and in SFI’s END USER

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