General Terms and Conditions of Sales of Products

  1. The term “Seller” means UnaliWear, Inc., and/or its present and future subsidiaries. The term “Buyer” means the party placing the purchase order.
  2. The term “Products” means physical products sold by Seller, such as the Kanega watch.
  3. No contractual relationship between Seller and Buyer will arise until such time as Buyer has placed an order which has been accepted by Seller.
  4. Stenographic and clerical errors are subject to correction.
  5. Subject to the provisions hereof, all quotes submitted are firm for 30 days from the date of the quotation unless indicated differently on the face of the quotation or withdrawn earlier by written notice. Alterations or changes of quotations after 30 days may be made at the discretion of Seller without notice.

Orders are subject to all of Seller’s Standard Terms and Conditions printed below.

  1. SCOPE. The terms and conditions of sale contained herein, and as amended by Seller from time to time, apply to Seller’s quotations and purchase orders placed by Buyer. These terms and conditions may in some instances conflict with some of the terms and conditions on Buyer’s form of purchase order or otherwise specified by the Buyer or these terms and conditions may cover matters not addressed in Buyer’s documentation. Therefore, acceptance of Buyer’s order is made only on the express understanding and condition that insofar as the terms and conditions of this acceptance conflict with or cover matters not addressed in any terms and conditions of Buyer’s order or documentation, Seller’s terms and conditions govern the order, irrespective of whether Buyer accepts these conditions by a written acknowledgment, by implication, or by acceptance and payment for goods ordered. Seller’s failure to object to provisions contained in any communication from Buyer will not be deemed a waiver of the provisions of this acceptance. Any changes from the terms and conditions of sale contained herein must be specifically agreed to in writing by an authorized officer of Seller before becoming binding on Seller. All orders or contracts must be approved and accepted by Seller at its head office at 3410 Cherry Ln, Austin TX 78703.
  1. PRICES. Irrespective of any prices quoted by Seller or listed on Buyer’s order, an order is accepted only at the prices shown on Seller’s acknowledgment.

Prices listed on Seller’s acknowledgment are firm and not subject to audit or price redetermination or renegotiation, except Seller reserves the right to modify pricing for Products not yet shipped if the material prices have significantly changed and shall notify the Buyer thereof as soon as possible.  Buyer-specific packaging is subject to extra charge.

If Buyer fails to take delivery hereunder of the quantity of Product goods upon which a quantity discount price, if any, is based, Buyer will be back- billed an amount based upon the quantity actually delivered hereunder and upon the quantity pricing schedule in effect at the time the order was placed. Such charges shall be in addition to any cancellation charges.

Prices apply only if the quantity ordered hereunder is released within 12 months and shipments scheduled no more than 12 months from the date Seller received Buyer’s order. Otherwise, Seller’s standard prices in effect on the date of receipt by Buyer of the quantity actually shipped apply, and Buyer shall pay the difference in price, if any.

  1. TERMS AND METHOD OF PAYMENT. Unless expressly specified otherwise on Seller’s sales confirmation, where Seller has extended credit to Buyer, terms of payment shall be up front prior to product shipment. All payments shall be in U.S. Dollars, unless otherwise agreed in writing. Buyer will be charged 1.5% per month (but not more than is permitted under applicable law) on overdue accounts. If Buyer fails to make payment for goods delivered as herein provided, or if, in Seller’s opinion, a change in Buyer’s financial condition or other circumstances has created reasonable concerns as to Buyer’s credit worthiness, Seller may at any time limit or cancel the credit of Buyer as to time and amount and may demand payment in cash before delivery of any part of the goods. On any order on which credit is not extended by Seller, shipment or delivery shall be made at Seller’s election. Payment must be made for the goods without regard to whether Buyer has made or will make any inspection of the goods.
  1. INSPECTION. Upon receipt of goods, Buyer shall notify Seller of all discoverable defects, including quantity shortages, incorrect product, and visible defects, but no later than 30 days after receipt. No return of goods will be accepted by Seller without a Return Material Authorization (“RMA”) Number and returned goods must be in original manufacturer’s shipping cartons complete with all packing materials. In the event that Buyer does not either complete final inspection and accept the goods or present a rejection notice to Seller in writing within 30 days of delivery, the goods shall be conclusively deemed accepted. At that time, Buyer’s only recourse or remedy for non- conforming or defective goods shall be Seller’s standard warranty. Buyer’s inspection and/or acceptance tests shall be consistent with those customary in the industry for the goods furnished and is at Buyer’s expense.
  1. SELLER WARRANTY. UnaliWear’s warranty obligations for UnaliWear Products are limited to the terms set forth on this web site: https://www.unaliwear.com/kanega-watch-limited-warranty/.

SELLER’S OBLIGATION TO HONOR THESE WARRANTIES IS CONTINGENT UPON SELLER’S RECEIPT OF PAYMENT IN FULL FOR THE GOODS ENTITLED TO THIS WARRANTY. SELLER DISCLAIMS ALL OTHER WARRANTIES OR guarantees, whether express or implied, written or oral, with respect to the Products, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BUYER remedies are limited exclusively to repair or replacement of Products.  UnaliWear will not be liable for any incidental or consequential damages arising from the use, purchase or repair of this product, including damages from loss of data, loss of profits, and loss of use.

SELLER HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATION OR WARRANTY OTHER THAN AS PROVIDED ABOVE.

THE FOREGOING STATES THE ENTIRE WARRANTY LIABILITY OF SELLER.

  1. BUYER WARRANTY. Acceptance of goods is a warranty by Buyer that Buyer is solvent as of the date of shipment.
  1. TAXES. Prices exclude Value Added Tax. Any tax or government charge applicable to the goods sold hereunder now imposed or hereafter becoming effective during the term of any contract made hereunder, except for Seller’s franchise taxes and taxes on Seller’s net income, shall be added by Seller to the sales price where Seller has the legal obligation to collect or pay same, and shall be paid by Buyer unless Buyer provides Seller with a proper tax-exemption certificate. Buyer shall pay any duties, levies, taxes, brokerage fees or customs fees imposed in the Buyer’s country to shipments made under this contract.
  1. TITLE AND DELIVERY. Seller shall ship the goods Ex Works (Incoterms 2010) Seller’s designated factory or Seller designated location for pickup by Buyer or Buyer’s designee, unless otherwise agreed. Buyer shall be responsible for all shipping charges, including freight, insurance, taxes, import duties and any other related charges. In instances where the parties determine that Seller shall select the method of transportation and the carrier, unless otherwise stipulated by Seller in the applicable sales order acknowledgement or other shipping documentation, (i) Seller shall pay for the freight charges to bring the goods to the named destination; provided that Buyer shall reimburse Seller for all (or a portion of) such costs as set forth in the applicable invoice issued by Seller to Buyer, (ii) Buyer shall pay for all insurance, taxes, import duties and any other related charges, and (iii) Buyer shall be responsible for carrying out all customs formalities to import the goods, including acting as importer of record and paying any applicable costs and expenses incurred in connection therewith. In any event, title and risk of loss transfer to Buyer when Seller tenders the goods to a common carrier at the Seller designated location for shipment to Buyer.
  1. DELIVERY SCHEDULE. Buyer understands that any delivery schedule set forth herein or in any subsequent order or release is estimated only and is presented in good faith by Seller. Seller will use commercially reasonable efforts to initiate shipment and schedule delivery as close as possible to Buyer’s requested delivery schedule but shall not be liable to Buyer for failure to meet any delivery schedule or for the costs or procurement of substitute goods. Seller reserves the right to make deliveries in installments. Delivery of a quantity that varies from the quantity specified in Buyer’s order shall not relieve Buyer of its obligation to accept delivery and pay for the goods ordered. Delays or changes in schedules due to Buyer directed actions are subject to price adjustments.

Seller reserves the right to allocate production and deliveries among its various customers under any circumstances.

Buyer will be deemed to have waived any and all claims for shipments containing less than the number of goods indicated on the shipping documents unless written notice of such claims is received by Seller within 30 days after receipt of shipment.

 

  1. CANCELLATIONS. No cancellations or reschedules will be accepted within 30 days of the earliest requested ship date. All cancellations and reschedules of orders by Buyer between 31 and 120 days prior to the earliest requested ship date shall result in a charge to Buyer of all costs associated with such cancellation or reschedule as reasonably determined by Seller based on such factors as whether the product was manufactured specifically for Buyer, Seller’s ability to change its production schedule within the period of the notice provided by Buyer, whether Seller acquired or allocated particular supplies or equipment to meet Buyer’s order, or other reasons.
  1. NON-WAIVER DEFAULT. Each shipment made under any order will be treated as a separate sale and transaction, but in the event of any default by Buyer, if Seller elects to continue to make shipment, its action will not constitute a waiver of any default by Buyer or in any way affect Seller’s legal remedies for any such default.
  1. FORCE MAJEURE. Seller shall not be liable for delay in performance or failure to perform in whole or in part under these terms and conditions due to causes beyond the reasonable control of Seller, including, without limitation, strike, labor disputes, shortages of material, war, riot or civil commotion, acts of the public enemy, insurrection, sabotage, or fire, flood or other acts of God. The period for performance for the party affected by such a cause shall be extended by the duration of the condition, provided, however, if any such delay shall continue for more than 120 days from the start of the cause of delay, the quantities undelivered during such period of delay or to be delivered, may be canceled at Seller’s election without liability of Seller to Buyer by written notice to Buyer at any time.
  1. ASSIGNS. Any contract made hereunder is binding upon and inures to the benefit of the successors and assigns of the entire business and good will of either Seller or Buyer, or of that part of the business of either used in the performance of such contract but is not otherwise assignable. Seller may subcontract any part of the work or services to be provided hereunder as Seller deems necessary. Buyer affirms that there exists no third-party beneficiaries to Buyer’s rights hereunder unless Buyer specifically identifies such beneficiary on the face of Buyer’s order or Buyer’s acceptance of Seller’s quotation.
  1. MODIFICATION OF STANDARD TERMS AND CONDITIONS. No addition to or modification of any of the provisions herein or upon the face or reverse of any order shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller.
  1. LAW. This Agreement is governed by and construed under the laws of the State of Texas and the United States without regard to conflicts of laws provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. The sole jurisdiction and venue for actions related to the subject matter hereof is the state and U.S. federal courts in the State of Texas, located in Travis County, Texas, U.S.A.
  1. COMPLIANCE WITH LAWS. Buyer represents and warrants that it will comply fully with all applicable laws and regulations pertaining to its performance of its obligations under this order, including, without limitation, applicable employment, tax, EU and US export control and environmental laws relating in any way to the production, manufacture, sale, use and delivery of the Goods. In particular, Buyer shall not participate or encourage, directly or indirectly, the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality, to assist Seller or Buyer in obtaining or retaining business or in carrying out this order. Buyer’s failure to comply with the terms of this paragraph shall constitute a material breach of an order.
  1. EXPORT CONTROL. Buyer acknowledges that Seller will provide Buyer with technical data/technology, services, and/or, products, in finished or unfinished state that may be subject to U.S. export controls under the laws and regulations of the United States (collectively “Export Controlled Technology”). U.S. export control laws and regulations include, but are not limited to, the International Traffic in Arms Regulations (“ITAR”), 22 C.F.R. §§ 120 et seq., and/or the Export Administration Regulations, 15 C.F.R. §§ 730 et seq. Buyer warrants and agrees that it shall not export or reexport any Export Controlled Technology or any technical data/technology or product derived from the Export Controlled Technology, except pursuant to a U.S. government license or other approval, or upon determination that such export may be lawfully exported without prior approval under a license exception, exemption, or other authority. Buyer acknowledges and understands that Seller may need to apply for export licenses in order to ship Export Controlled Technology to Buyer. Buyer agrees to provide such information, assurances, documentation or take such other steps as necessary to assist Seller in obtaining any export licenses, including, but not limited to, execution of end-user certifications, document marking, and supplemental agreements with respect to control and handling of Export Controlled Technology. In compliance with U.S. regulations regarding Technology and Software under Restriction (“TSR”), Buyer hereby agrees that, without express approval of Seller (pursuant to issuance of an export license from the Bureau of Industry and Security), Buyer will not reexport or release any technology, direct product of the technology, Software, or source code related to the technology provided by Seller to Buyer to a national of a country specified in Country Groups D:1 or E:2 as set forth in 15 C.F.R. Part 740, Supplement No. 1 and as amended. Seller shall have no responsibility for delayed delivery or non-delivery resulting from (i) any governmental action under U.S. or other applicable law suspending or revoking a necessary export license or authorization, or (ii) any failure by Buyer to furnish reasonable assurance, upon request, of its compliance with applicable export requirements, or (iii) obtaining a necessary export license for the goods to be shipped hereunder.
  1. LIMITATION OF LIABILITY. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT SELLER’S LIABILITY HEREUNDER.

UNDER NO CIRCUMSTANCES WILL SELLER, ITS EMPLOYEES, OFFICERS OR DIRECTORS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE TO ANYONE UNDER ANY PRODUCT ORDER, SCHEDULE OR TERMS AND CONDITIONS HEREIN UNDER ANY CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT FORESEEABLE OR FORESEEN, FOR: (A) BUSINESS INTERRUPTION COSTS, COST OF REWORK, RETESTING, PROCUREMENT OF SUBSTITUTE GOODS, REMOVAL AND REINSTALLATION OF GOODS; OR (B) ANY SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LITIGATION COSTS, LOSS OF DATA, PRODUCTION OR PROFIT, GOODWILL, LOSS OF REVENUE, OR LOSS OF UNITS; REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THERE IS A TOTAL AND FUNDAMENTAL BREACH OF THESE TERMS AND CONDITIONS OR WHETHER ANY REMEDY PROVIDED HEREIN FAILS ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY FOR CLAIMS ARISING OUT OF OR RELATED TO ORDERS EXCEED THE TOTAL AMOUNTS PAID OR PREPAID TO SELLER FOR THE GOODS GIVING RISE TO SUCH CLAIMS. BUYER SHALL BE DEEMED TO ASSUME ALL LIABILITY FOR ANY AND ALL DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OR MISUSE OF THE GOODS BY BUYER, ITS EMPLOYEES, CUSTOMERS AND OTHERS. SELLER SHALL NOT BE LIABLE FOR AND BUYER AGREES TO INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY GOODS BY PARTIES OTHER THAN SELLER, OR USE IN COMBINATION WITH OTHER PRODUCTS.

  1. RELATIONSHIP OF PARTIES. Seller and Buyer expressly understand and agree that Buyer is an independent contractor in the performance of each and every part of this order, is solely responsible for all of its employees, agents and will indemnify Seller from any and all claims, liabilities, damages, debts, settlements, costs, attorneys’ fees, expenses and liabilities of any type whatsoever that may arise on account of Buyer’s activities or those of its employees or agents (including, without limitation, direct and indirect distributors or sub- distributors), including without limitation unauthorized representations or warranties (or failing to effectively disclaim all warranties and liabilities on behalf of Seller to the same extent as disclaimed herein) to its customers.
  1. BASIS OF BARGAIN. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS HEREIN ARE MATERIAL, BARGAINED FOR BASES OF ANY ORDER OR CONTRACT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER ANY ORDER OR CONTRACT AND IN THE DECISION BY EACH PARTY TO ENTER INTO SUCH ORDER OR CONTRACT.
  1. PACKAGING. Packaging for commercial shipment is included in the quoted price. When special or export packaging is specified involving a greater expense than the cost of commercial shipment included in the quoted price, a charge will be made to cover such extra expense. Reasonable care is exercised in packaging goods for shipment and no responsibility is assumed by Seller for delay, breakage, or damage after having made delivery to the carrier. All claims for breakage or damage must be made to the carrier; however, Seller will render reasonable assistance in securing satisfactory adjustment of such claims.
  1. CHANGES TO SPECIFICATIONS. Seller reserves the right to change the specifications of any goods without notice. If such changes to specifications are made, Seller assumes no obligation to provide the change on goods previously purchased or to continue to supply discounted goods. Seller may substitute goods manufactured to such modified specifications for those specified herein provided such goods substantially conform to the order or contract.
  1. PROPRIETARY DATA. Buyer agrees not to use or disclose drawings, specifications, technical information or other data furnished by Seller and identified by Seller as confidential or proprietary data without the prior written consent of Seller. Buyer agrees and acknowledges that any improvement or modification to such confidential or proprietary data shall be the sole property of Seller, regardless of whether any such improvement or modification was the creation of Buyer. Buyer further agrees to use all appropriate copyright and proprietary notices on all goods delivered hereunder regardless of their intended use. Buyer recognizes that such proprietary data is unique and consents to the remedy of injunction in addition to damages for violation of the terms of this provision.
  1. GENERAL. In the event of the appointment of a trustee, receiver, or liquidator for all or a portion of Buyer’s property, Buyer’s insolvency, any voluntary or involuntary petition in bankruptcy by or against Buyer, or appointment of an examiner to manage its affairs, business and property or if it takes or suffers any similar action in consequence of debt, Seller may terminate any order without further obligation or liability of Seller to Buyer.

In the event any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.

  1. NOTICE. Any notice or other communication required to be given under the terms of these terms and conditions will be deemed to have been given upon (1) personal delivery, (2) delivery by overnight courier upon written verification of receipt, or (3) confirmed electronic mail communication, and addressed to the party at its respective address as shown above (or at such other address as indicated in writing by such party).
  1. ENTIRE AGREEMENT. These terms and conditions are the entire agreement between the parties and supersede and terminate any prior agreements, understandings or representations, written or oral.

Document date: April 13, 2020.