1. Product Purchase; Delivery – (a) Purchase. In accordance with these Terms and Conditions (“Terms and Conditions”), Canary Global Inc., (“CGI”) agrees to sell to Customer (“Customer”), and Customer agrees to purchase from CGI, the product (“Product”) (i) set forth in any quotation provided by CGI to Customer or any purchase order provided by Customer (and accepted or acknowledged in writing by CGI), or (ii) otherwise made available by CGI for purchase by Customer (e.g., via any CGI -authorized e-commerce platform such as, without limitation, squarespace.com). No order by Customer will be binding on CGI until accepted or acknowledged by CGI in writing. Customer shall use the Products for its own use and Customer is strictly prohibited from otherwise distributing, transferring, or reselling the Product. Customer shall use the Products in accordance with all applicable laws, the Product labeling, and any written instructions from CGI. (b) Delivery; Payment. Unless otherwise agreed in writing by an authorized representative of CGI, shipping costs for all Products will be paid by Customer. Title to, and risk of loss for, any Product shall pass from CGI to Customer upon shipment of such Product from CGI’s facility. Product shall be deemed accepted by Customer upon delivery; provided, however, that such deemed acceptance shall not reduce or otherwise affect express Product warranties or Customer’s remedies set forth in elsewhere in these Terms and Conditions. Unless otherwise agreed by CGI, all payments for Product shall be made in U.S. dollars and shall be due thirty (30) days from invoice date.
2. Indemnification; Liability – (a) Indemnity. Each party (the “Indemnifying Party”) shall defend, indemnify, and hold harmless the other party (the “Indemnified Party”) from and against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) (“Loss”) in connection with any third-party claims, suits, or proceedings arising out of or relating to (i) breach of these Terms and Conditions or applicable law by the Indemnifying Party or (ii) the Indemnifying Party’s negligence or willful misconduct. The foregoing obligations shall be reduced to the extent that the Loss is attributable to the Indemnified Party’s (x) breach of these Terms and Conditions or applicable law or (y) negligence or willful misconduct. (b) Limitation of Liability. CGI’s entire liability and Customer’s remedies arising out of or related to sale of the Products, shall not exceed the purchase price received by CGI for the Products giving rise to such liability. IN NO EVENT SHALL CGI BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS OR BUSINESS OPPORTUNITIES OR ANY OTHER INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR RELIANCE DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE. THESE LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
3. Proprietary Rights and Confidential Information – CGI retains all proprietary rights in and to all intellectual property pertaining to the Products. Except as required for Customer to use the Product in accordance with the applicable instructions, the sale of Products hereunder does not grant to, convey or confer upon Customer, a license under any pre-existing property right, patent right, copyright, or other intellectual property right of CGI. Each party (as “Receiving Party”) acknowledges that, in connection with the purchase or use of Products by Customer or the performance by either Party of these Terms and Conditions, it may receive or obtain confidential or proprietary information and materials of the other party (as “Disclosing Party”) (the “Confidential Information”). The Receiving Party agrees: (i) to hold and maintain in strict confidence all Confidential Information of the Disclosing Party; and (ii) not to use any such Confidential Information except as may be necessary to perform its obligations under these Terms and Conditions. Receiving Party shall use at least the same degree of care to protect the Disclosing Party’s Confidential Information as it uses to protect its own confidential information of like importance, and in no event shall such degree of care be less than reasonable care. Receiving Party shall only provide Disclosing Party’s Confidential Information to those employees and representatives who have a need to know for the purposes of these Terms and Conditions. Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any third party, including third party contractors, without written authorization from the Disclosing Party. Product pricing and the provisions of these Terms and Conditions shall be deemed Confidential Information of CGI.
4. Warranty and Returns – (a) CGI’s Limited Warranties. CGI warrants that, at the time of shipment: (i) the Product is warranted against defects in materials and manufacturing, and will conform to CGI’s specifications, until its expiration (“use by”) date. Upon CGI’s confirmation of any breach of the foregoing warranty, CGI will, in its sole discretion, either repair or replace the Product or credit Customer’s account for the Product purchase price paid therefor. The express warranties set forth in these Terms and Conditions shall not apply to any Product which has been modified or altered in any way by anyone other than CGI, or to defects caused: (i) through no fault of CGI during shipment to or from Customer; (ii) by the use, operation or improper storage or handling in an application or environment other than that instructed by CGI; or (iii) by accident, negligence (other than by CGI or its agents), misuse or other causes other than normal use. EXCEPT FOR THE LIMITED WARRANTY STATED HEREIN, THE PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTIES, GUARANTEES, CONDITIONS OR REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. NOTWITHSTANDING THE FOREGOING, CGI DOES NOT EXCLUDE LIABILITY TO THE EXTENT THAT SUCH LIABILITY MAY NOT BE EXCLUDED OR LIMITED BY LAW. (b) Return Authorizations. Customer may submit a claim for any Products that do not conform to the express warranties set forth herein or that were shipped in error by requesting a Returned Materials Authorization (RMA) from CGI with an explanation of the alleged warranty breach or shipping error. Customer may not return Product to CGI without having obtained an RMA from CGI. Within ten (10) days of Customer’s receipt of an RMA, the Customer shall return applicable Products to CGI (freight prepaid by Customer). In the case of Product determined by CGI to have been properly returned by Customer pursuant to a valid warranty claim or a shipping error, CGI shall prepay shipping charges back to Customer and shall promptly reimburse Customer for any shipping costs incurred by Customer in connection with the return to CGI of such Products. In the case of improperly returned Products, Customer shall be responsible for all shipping cost in both directions. The parties acknowledge and agree that CGI’s reasonable determination as to whether Products fail to conform to the express warranties set forth herein or were shipped in error shall be binding on the parties. Except as expressly set forth under these Terms and Conditions, all Products delivered under these Terms and Conditions are non-returnable.
5. Miscellaneous – Customer represents that it will fully disclose any discounts, rebates or other incentive received from CGI (“Discounts”) when seeking reimbursement for such product from any government or private payor as may be required by law or contract and allow agents of any federal or state health care agency access upon request to invoices and other information concerning any Discounts. These Terms and Conditions shall be governed by and construed in accordance with the laws of California, without reference to principles of conflicts of laws. The exclusive venue for any dispute arising out of or relating to these Terms and Conditions shall be in the state and federal courts located in (or serving) Alameda County, California; the parties irrevocably consent to the personal jurisdiction thereof. Non-performance by either party shall be excused to the extent rendered impossible by strike, fire, flood, earthquake, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the nonperforming party, provided such party uses reasonable efforts to complete performance as soon as possible. Either party may assign these Terms and Conditions in connection with a sale of all or substantially all of the assets of the assigning party. If any provision herein is held to be illegal, invalid or unenforceable by a court of competent jurisdiction, the parties shall negotiate in good faith a substitute. All other provisions herein shall remain in full force and effect and be construed in accordance with the modified provision as if such illegal, invalid or unenforceable provision had not been contained herein. The failure of a party to enforce any provision of these Terms and Conditions shall not be construed to be a waiver of such party’s right to thereafter enforce that provision or any other provision or right. These Terms and Conditions contain the entire agreement between the parties with respect to the subject matter hereof and supersedes and prevails over any prior or contemporaneous understandings or agreements, whether written or oral, in respect of such subject matter, including, without limitation, any additional or conflicting terms in any purchase order submitted by Customer to CGI, which are expressly rejected by CGI and shall be of no effect. No waiver, modification, or addition to these Terms and Conditions will be binding unless authorized in writing by CGI.