EPSON AMERICA, INC. TERMS AND CONDITIONS OF SALE

1. APPLICABILITY. The terms and conditions set forth herein (“Terms”) constitute the sole and entire agreement between Epson America, Inc. (“Epson”) and its customers (“Buyer”) with respect to any transaction between the parties for the purchase of Products. These Terms supersede all prior or contemporaneous understandings, agreements, negotiations and communications, both written and oral, with respect to such transaction between the parties. If the parties have entered into a separate sales agreement signed by both parties, the terms of that agreement shall have precedence over these Terms and any other terms of either party. EPSON’S REPRESENTATIVES DO NOT HAVE ANY AUTHORITY TO CHANGE OR MODIFY THESE TERMS.
2. ACCEPTANCE. In the event the parties have not entered into a sales agreement, Buyer’s purchase order shall constitute an offer by Buyer to purchase goods from Epson (the “Products”). Epson’s acceptance of Buyer’s offer shall occur upon written acknowledgement by Epson or upon shipment of all or a portion of the Products, whichever happens first. These Terms are the complete and exclusive statement of the terms of the agreement between Epson and Buyer as to the sale of Products to Buyer. Any terms contained on purchase orders, invoices, packing slips or other forms or writings which are contrary to or in addition to the provisions set forth herein are expressly objected to by Epson and shall be of no force or effect.
3. PRODUCTS. Epson does not grant to Buyer any exclusive rights with respect to distribution of the Products, and these Terms do not constitute a grant of specific territory, geographical area or particular market. Epson may change the Products or increase or decrease the number or type of products that are available for purchase hereunder at any time without notice to Buyer. In the event of such change, Epson shall have the right to cancel the unshipped balance of Buyer’s orders for the changed product upon prompt notice thereof to Buyer. Buyer shall have no claim against Epson for such cancellation. Subject to the terms and conditions of the applicable warranty, the Products delivered hereto conform to the applicable Epson specifications.
4. PRICES. The prices to be paid by Buyer for all Products purchased hereunder shall be Epson’s standard prices in effect on the date of Epson’s acceptance of Buyer’s order. No discounts or deductions or other programs are applicable unless in writing signed by Epson. Epson reserves the right to change its standard Buyer prices and to publish a new price list from time to time and at any time, without prior notice to Buyer. Should any new price result in an increase in the price of any Product, the increased price shall apply to any Buyer order placed after the effective date of the new price. Buyer is solely responsible for any prices it charges to its customers. Nothing in this Agreement shall in any way restrict Buyer’s freedom to sell Products at prices determined in accordance with its own judgment. Buyer shall be responsible for all sales, use, or other taxes (other than taxes on Epson’s income or ownership of property), applicable to Buyer’s purchase of Products. Buyer shall pay such taxes when invoiced by Epson or shall supply appropriate tax exemption certificates. Buyer is also responsible for any domestic or foreign forwarding agent or brokerage fees, duties, or other fees and any export licenses which may be necessary to export the Products.
5. ORDERS; SHIPMENT. All orders entered by Buyer under these Terms shall be placed by written purchase order submitted to Epson by Buyer or shall be confirmed in writing by Buyer within five (5) working days of oral placement to Epson, and shall refer to these Terms and shall specify (i) the quantity and description of Products; (ii) requested delivery date(s); (iii) applicable price; (iv) the location to which the Product is to be shipped; and (v) shipping instructions agreed to by Buyer and Epson. Buyer’s orders shall not be deemed accepted unless and until Epson confirms the order in writing or in lieu thereof, ships units of the Product, in part or in whole, covered by the order. All orders shall be subject to such minimum order requirements as may be in effect from time to time. Epson will attempt in good faith to meet agreed upon scheduled shipment dates. All shipment and delivery dates are approximate. Buyer acknowledges that Epson may, from time to time, be subject to shipping delays, including but not limited to manufacturer production or shipping delays. In such event, Buyer agrees that Epson may, in its sole discretion, allocate distribution of Epson’s Products among its customers, notwithstanding the effect such allocation may have on Buyer’s outstanding orders, and Epson will not be liable for any damages, however described or arising, for a good faith failure to fill any order or for delay in meeting a scheduled shipment date. Epson may provide reasonable notice to Buyer regarding any material delay in shipment. Epson may make partial shipments of Buyer’s orders. Such partial shipments shall be separately invoiced and paid for when due, without regard to subsequent shipments. Delay in shipment or delivery of any particular installment shall not alone relieve Buyer of its obligation to accept subsequent installments. Epson may provide reasonable notice to Buyer in the event of material delays in connection with partial shipment of an order. Title to Products and risk of loss and damage will pass to Buyer under FCA (Incoterms 2010) at Epson’s shipping point upon placement of Product into carrier’s possession. Buyer shall inspect the Products for conformity. Buyer shall be deemed to have irrevocably accepted the Products unless Buyer notifies Epson of any defect or material non-conformity within five (5) days of receipt of the Products. Freight charges shall be paid by Buyer in accordance with Epson’s freight policy then in effect.
6. PAYMENT. Payment terms shall be net thirty (30) days from date of invoice, subject to approval and continuation of credit by Epson. Buyer agrees to submit to Epson such financial information as may from time to time be reasonably requested by Epson for the establishment and continuation of credit terms. All invoices not paid when due shall bear interest at the highest rate allowed by law until paid in full. Epson reserves the right to exercise any of its lawful remedies if Buyer does not make payment when due. Without limiting the provisions of the immediately preceding sentence, Buyer’s failure to pay any invoice for the Products when due shall entitle Epson to delay shipment of orders placed by Buyer, in part or in whole, and, at Epson’s option, to cancel any pending order or orders placed by Buyer, in part or in whole. Epson shall have the right to offset and deduct from any amounts due Buyer all sums owing from Buyer to Epson. To secure the payment and performance of all obligations due and owing by Buyer to Epson hereunder, Buyer hereby grants Epson a Uniform Commercial Code purchase money security interest in Products purchased from Epson hereunder and the proceeds thereof. This Agreement constitutes a security agreement between Buyer, as debtor, and Epson, as secured party, under the Uniform Commercial Code, and Epson has the rights and remedies of a secured party thereunder. Buyer hereby appoints Epson as its attorney in fact to execute such financing statements as may be required, from time to time, to perfect the security interest granted herein. Epson may, upon default by buyer, require Buyer to assemble the Products and to make them available to Epson for repossession, and Epson shall be entitled to all reasonable expenses of repossession, including reasonable attorney’s fees incurred in connection therewith.
7. ELECTRONIC COMPONENT PRODUCTS. Custom or special electronic component Product orders and electronic component Products on allocation cannot be canceled at any time and cannot be returned at any time. Standard electronic component Product orders may only be canceled if Epson receives written notice from Buyer at least 60 days prior to the confirmed ship date. Electronic component Product orders may be rescheduled only upon Epson’s prior written approval, at Epson’s sole discretion and in no event shall the new ship date be more than 90 days after the original confirmed date. Buyer must submit written request to reschedule at least 60 days before the original confirmed ship date for consideration. Buyer shall be liable for all orders, whether or not Buyer’s request for rescheduling is approved by Epson.
8. WARRANTIES AND LIMITATIONS OF LIABILITY. Unless provided to the contrary in writing, Epson shall provide its standard limited warranty statement if any, to the Buyer in a shipment order, individual Product package, on Epson’s website(s), or as otherwise provided, which is the only warranty extended to Buyer covering any Product sold under these Terms. The sole and exclusive remedy for any Product that does not comply with Epson’s warranty is the repair or replacement, at Epson’s option, of any defective Product in accordance with the terms of Epson’s limited warranty statement. Epson’s warranty shall be void and shall not apply to the extent that any purported Product defect is based upon or due to any unauthorized use of the Product or use that is not otherwise covered by the warranty, including but not limited to damage not caused by Epson, the combination or use of the Product with hardware, software or other items not supplied or authorized by Epson or upon unauthorized alteration or modification of the Product. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, EPSON DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. IN NO EVENT WILL EPSON BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR SPECIAL DAMAGES OF ANY KIND, INCLUDING LOSS OF PROFITS, GOODWILL, BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY ARISING FROM OR RELATING TO THESE TERMS EVEN IF EPSON HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. EPSON’S ENTIRE LIABILITY UNDER THESE TERMS, INCLUDING FOR ANY LOSS, INCONVENIENCE OR DAMAGE, SHALL BE LIMITED TO THE AMOUNT PAID FOR THE EPSON PRODUCT UNDER THE PURCHASE ORDER GIVING RISE TO THE CLAIM OF LIABILITY. Any and all claims under these Terms must be brought within 6 months from the date of the occurrence that gave rise to the claim, excluding valid claims brought during the term of the applicable product warranty, or the claim is barred and forever waived.
9. REPRESENTATIONS AND WARRANTIES BY BUYER; INDEMNIFICATION. Buyer represents and warrants that it shall (i) comply with all applicable laws, rules and regulations, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977, as amended. Buyer shall indemnify, defend and hold Epson harmless from and against any and all claims, actions, liabilities, losses, costs and expenses (hereinafter collectively referred to as “Losses”) arising out of any action, suit or proceeding initiated or threatened by any person or entity, which Losses are the direct or indirect result of (i) the breach of these Terms by Buyer or any of its agents, representatives or employees, or (ii) Buyer’s use of any non-Epson products or services incorporating or utilizing the Products. Such indemnification shall include the payment of all reasonable attorneys’ fees and other costs and expenses incurred by Epson in defending and/or settling any such action, suit or proceeding.
10. TRADEMARKS AND TRADE NAMES. Buyer agrees and recognizes that it acquires no rights of ownership in or to the trademark “EPSON” or other Epson marks (“Marks”), alone or in combination with other words, by virtue of this Agreement, nor does Buyer acquire any right to use Marks by virtue of these Terms or any order, unless otherwise agreed to in writing by Epson and as applicable, shall be subject to Epson’s Trademark Usage Guidelines.
11. CONFIDENTIALITY. All non-public, confidential or proprietary information of Epson, including, but not limited to, specifications, samples, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Epson to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with any purchase order is confidential, and may not be disclosed or copied unless authorized by Epson in writing. Upon Epson’s request, Buyer shall promptly return all documents and other materials received from Epson. Epson shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
12. MISCELLANEOUS. Force Majeure. Delivery dates as set forth in any sales order or any confirmation thereof shall be deemed to be estimates only. Epson shall not be liable for delays in performance of any of its obligations under these Terms if such failure is caused by the occurrence of any contingency beyond its reasonable control, including but not limited to acts of God, strikes and other industrial disturbances, failure of raw material vendors, failure of transport, accidents, wars, riots, insurrections, or orders of governmental agencies. Performance shall be resumed as soon as possible after cessation of such cause. Waiver. No failure or delay on the part of either party in exercising any right or remedy hereunder will operate as a waiver thereof; nor will any a single or partial exercise of any such right or remedy preclude any other or further exercise thereof or of any other right or remedy. No provision of these Terms may be waived except in a writing signed by the party granting such waiver. Notice. Except as specified herein, all notices, communications and reports required or permitted pursuant to these Terms shall be in writing, and the same shall be given and shall be deemed to have been delivered and received on the date served, if personally delivered, and on the date of dispatch, if transmitted by telex, telecopier or cable, and three (3) days after mailing, if placed in the United States Mail, postage prepaid, addressed to the parties at the addresses set forth on the reverse side hereof or at such other addresses as may be specified hereunder in writing in accordance with this Section. Severability. In the event that any one or more of the provisions or parts of any provision, contained in these Terms shall for any reason be held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, the same shall not invalidate or otherwise affect any other provision hereof, and these Terms shall be construed as if such invalid, illegal or unenforceable provision, or part of any provision, had never be contained herein. Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of California. The venue of any litigation arising out of or in connection with these Terms shall be the County of Los Angeles, State of California, and the parties hereby consent to personal jurisdiction in all of the courts of said county. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. Section Headings. The section headings contained herein are for convenience only and are not intended to affect the meaning or interpretation of these Terms. No Agency. These Terms do not constitute Buyer a partner, employee, agent, franchisee of or joint venturer with Epson nor do these Terms authorize Buyer to represent or act for Epson in any manner. Buyer will have no right or authority to assume or create any obligation of any kind, express or implied, on behalf of Epson nor may Buyer bind Epson in any way whatsoever. Buyer acknowledges that it has not paid Epson any sum of money or any other consideration as a franchise fee or as a condition to signing these Terms. No Third Party Beneficiaries. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. Export Control. Products, components, software, and technical information (collectively, “Items”) supplied to Buyer by Epson or its affiliates may be subject to export and other foreign trade controls restricting the sale, re-export and/or transfer of such Items to certain countries or parties, including, but not limited to, licensing requirements under the U.S. Export Administration Regulations, trade sanctions administered by the U.S. Department of the Treasury, Office of Foreign Assets Control, and laws and regulations of foreign jurisdictions (collectively, “Trade Laws”). Buyer shall not resell, export, re-export, transfer, release, or otherwise dispose of any Items, directly or indirectly, except in compliance with Trade Laws. In case of doubt, Buyer shall seek appropriate information and assistance from Epson. Entire Agreement. The entire agreement between the parties is set forth herein and supersedes all prior discussions and agreements between the parties relating to the subject matter hereof. There are no representations, warranties, covenants, agreements or collateral understandings, oral or otherwise, expressed or implied, affecting these Terms which are not expressly set forth herein. These Terms shall not be supplemented or modified by any course of dealing or trade usage. Attorneys’ Fees. In the event of a delay of more than thirty (30) days in payment by Buyer of any invoice for Products sold to Buyer hereunder or in the event of any other breach by Buyer necessitating legal action, Epson shall be entitled to recover its costs and expenses of collection, if any, and all costs and expenses of enforcement of these Terms, including its reasonable attorneys’ fees and costs.