PLEASE READ THESE WEBSITE USAGE TERMS AND CONDITIONS VERY CAREFULLY.

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1.   SCOPE. This agreement (“Agreement”) governs any sales, quotations issued and purchase orders accepted by C-Hero, LLC (“Seller”) for the sale of its products (“Products”). This Agreement will apply whether or not it are enclosed with the Products sold hereunder.

 

2.   ORDERING. Buyer may make a purchase (1) by submitting a written purchase order (“PO”) signed by Buyer’s authorized representative, or (2) by other means agreed upon by the Parties. No PO order will be binding on Seller until Seller accepts Buyer’s order and sends Buyer a written order confirmation (email sufficient) (“Order Confirmation”), which will confirm the quantity of Products purchased and the selling price, and will specify a shipment date (“Order Shipment Date”).  Seller’s acceptance of Buyer’s order is exclusively governed by this Agreement in lieu of any terms and conditions in Buyer’s order or in any other Buyer communication.  Seller hereby rejects any terms or conditions in Buyer’s order or in any other Buyer communication that conflict with or that purport to add to or modify these Terms and Conditions. 

 

3.   ORDER CANCELLATION AND RESCHEDULING. Cancellation of an order is permitted only if Seller receives Buyer’s cancellation notice at least 30 days prior to the Order Shipment Date.  Buyer may reschedule an order one time only, provided that Seller receives Buyer’s written request to reschedule no less than 10 days prior to the Order Shipment Date and Buyer’s requested shipment date is no more than 30 days after the Order Shipment Date.  Buyer may not cancel or reschedule partial orders.

 

4.   SHIPMENT AND DELIVERY.

 

A.  Point of Sale. For orders within the U.S., Seller will ship the Products FOB Seller’s point of shipment.  For orders outside the U.S., Seller will ship the Products Ex-Works (Incoterms 2000) Seller’s point of shipment. Seller will pack the Products in accordance with its standard practices.  Unless Buyer provides Seller with specific instructions, Seller will select the carrier.  Buyer will be responsible for all freight, packing, insurance and other shipping-related costs and expenses.  Title to the Products and risk of loss will pass to Buyer upon Seller’s delivery of the Products to the carrier.

 

B.  Shipment Times. All scheduled shipment dates, including the Order Shipment Date, are estimates only.  Seller will make reasonable efforts to meet the scheduled shipment dates, but will not be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery, nor will the carrier be deemed an agent of Seller.  Seller will have the right to ship the Products in installments and separately invoice Buyer for such installments.  Seller will have the right to allocate its available inventory of the Products among its buyers in such manner as Seller deems equitable.  Seller will have the right to delay or suspend shipment of the Products if Buyer fails to make any payment as provided herein or if Buyer fails to meet Seller’s credit or financial requirements.

 

5.   INSPECTION AND ACCEPTANCE; RE-STOCKING FEE. The Buyer will have 10 days following receipt of a shipment of the Products to reject them in writing within such period.  If Buyer rejects the Products, Buyer must provide Seller with the specific reasons for such rejection and provide Seller a reasonable opportunity to inspect the Products.  If Buyer fails to notify Seller in writing of its acceptance or rejection within such 10 day period, then the Products will be deemed accepted.  Buyer may return Products to Seller only upon Seller’s prior written authorization. Seller may charge Buyer a re-stocking fee of up to 15% of the purchase price of any Product Buyer rejects hereunder.

 

6.   PRICE. The prices for the Products will be as specified in an Order Form,  Prices are stated in U.S. dollars and are exclusive of sales tax. Unless Buyer timely provides Seller with a tax-exemption certificate acceptable in the appropriate taxing jurisdiction, Seller will include all Taxes as separate items on Seller’s invoice, which will be payable by Buyer pursuant to Section 7.  Buyer will indemnify and hold Seller harmless from and against any liabilities, interest, penalties or fees assessed against Seller arising from any failure by Buyer to pay any Taxes.

 

7.   PAYMENT TERMS. Except as otherwise set forth in the Order Form, all invoices issued by Seller will be due and payable 30 days from the invoice date.  Seller may require payment in advance or require Buyer to obtain an irrevocable letter of credit.  All payments will be made in U.S. dollars, free of any currency controls or other restrictions.  All amounts not paid when due will accrue interest at the lower of 1.0% per month or the highest rate permissible by applicable law.  Buyer may not setoff against Seller’s invoices any amounts that Buyer claims are due to it. 

 

8.   LIMITED WARRANTY AND DISCLAIMERS.

 

A.  Warranty. Seller warrants that for the later of: (1) one year after the date of shipment, or (2) one year after Buyer’s completion of Seller’s eTraining, up to two years, the Products will be free from defects in materials and workmanship under normal use.  As Seller’s sole liability and Buyer’s sole and exclusive remedy for any breach of the limited warranty set forth herein, Seller will, at its option and expense, repair or replace any Product returned to Seller during the warranty period that does not comply with such warranty, as confirmed by Seller.  Replacement Products will be warranted for the remainder of the original warranty period or ninety (90) days, whichever is longer.  All Products that are replaced become the property of Seller.  Seller shall not be responsible for Buyer’s or any third party’s material integrated with any Product. whether under warranty or not.  Buyer must obtain authorization from Seller prior to returning any Products to Seller and Buyer will bear the cost of returning Products to Seller.  If Seller determines that a Product returned by Buyer complies with the warranty set forth herein, then Buyer will also bear Seller’s cost of shipping the Product back to Buyer.

 

B.  Disclaimers. Seller will have no obligation to the extent that any failure of a Product to comply with the limited warranty set forth in subsection (a) above results from or is otherwise attributable to: (i) negligence or misuse or abuse of the Product; (ii) use of the Product other than in accordance with Seller’s published specifications or user manual; (iii) modifications, alterations or repairs to the Product made by a party other than Seller or a party authorized by Seller; (iv) any failure by Buyer or a third party to comply with environmental and storage requirements for the Product specified by Seller, including, without limitation, temperature or humidity ranges;  (v) use of the Product in combination with any third-party devices or products that have not been provided by Seller; or (vi) Buyer’s failure to successfully participate in Seller’s eTraining, available at https://www.c-hero.com/e-training.

 

C.  THE LIMITED WARRANTY SET FORTH HEREIN IS IN LIEU OF, AND SELLER SPECIFICALLY DISCLAIMS, ANY AND ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SELLER OR ELSEWHERE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.  THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.

 

9.   INDEMNITY

 

A.  By Seller. Seller will defend or settle, at its expense, any action or suit brought against Buyer to the extent based on a third-party claim that any Product provided by Seller to Buyer infringes the Intellectual Property rights of such third-party (“IP Claim”), and Seller will pay any damages awarded in final judgment against Buyer or agreed to in settlement by Seller that are attributable to any such claim, provided that Buyer: (i) promptly notifies Seller in writing of the claim; (ii) gives Seller sole control of the defense and any related settlement of the claim; and (iii) gives Seller, at Seller’s expense, all reasonable information, assistance and authority in connection with the defense and settlement of the claim.  Seller will not be bound by any settlement or compromise that Buyer enters into without Seller’s express prior consent.

 

B.  Replacement. If a Product becomes, or in Seller’s opinion be likely to become, the subject of a claim against Buyer, as specified in subsection (a) above, then Seller may, at its sole option and expense: (i) procure for Buyer the right to continue using the Product; (ii) replace or modify the Product to avoid the claim; or (iii) if options (i) and (ii) cannot be accomplished despite Seller’s reasonable efforts, then Seller may accept return of the Product from Buyer and grant Buyer credit for the price of the Product as depreciated on a straight-line five (5) year basis, commencing on the date of receipt by Buyer of such Product.

 

C.  Indemnity Exclusions. Seller will have no obligation under this Section 9 for any claim to the extent that it results from: (i) the combination, operation or use of a Product with or in equipment, products, or processes not provided by Seller; (ii) modifications to a Product not made by or for Seller; (iii) Buyer’s failure to use an updated or modified Product provided by Seller; (iv) Seller’s compliance with Buyer’s designs, plans or specifications; (v) Buyer’s use of a Product other than in accordance with Seller’s published specifications, user manual, or e-training instructions; or (vi) Buyer’s misuse of the Product or error in using the Product.  The foregoing clauses (i) to (vi) are referred to collectively as “Indemnity Exclusions”.

 

D.  Exclusive Remedies. The foregoing provisions of this section 9 set forth seller’s sole and exclusive liability and obligations and buyer’s sole and exclusive remedy for any IP Claims.

 

E.   By Buyer. Buyer will defend or settle, indemnify and hold Seller harmless from any liability, damages and expenses (including court costs and reasonable attorneys’ fees) arising out of or resulting from any third-party claim based on or otherwise attributable to an Indemnity Exclusion.

 

10. LIMITATIONS ON LIABILITY. IN NO EVENT WILL SELLER BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE PURCHASE, SALE, USE, OPERATION OR PERFORMANCE OF THE PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  SELLER AND BUYER HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS AND CONDITIONS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  IN NO EVENT WILL SELLER’S LIABILITY TO BUYER ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO SELLER BY BUYER FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IF IT IS DETERMINED BY A COURT OF COMPETENT JURISDICTION THAT THIS LIMITATION IS UNENFORCEABLE, IT IS THE INTENTION OF THE PARTIES THAT SUCH RESTRICTION MAY BE MODIFIED OR AMENDED BY THE COURT TO RENDER IT ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY LAW.

 

11. GENERAL PROVISIONS

 

1. Governing Law; Venue. These Terms and Conditions will be governed and construed under the laws of the State of California, excluding its conflict of laws principles.  The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.  Any legal action or proceeding arising under this Agreement not subject to Arbitration will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.

2. Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco before one arbitrator. The arbitration shall be administered by JAMS under its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

3. Assignment. Buyer may not assign or transfer these Terms and Conditions, or any order accepted by Seller hereunder, in whole or in part, by operation of law or otherwise, without Seller’s express prior written consent.  Any attempt to do so, without Seller’s consent, will be null and of no effect.

4. Force Majeure. Seller will not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.

5. No Waiver. The failure by Seller to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.  Any waiver, modification or amendment to this Agreement will be effective only if in writing and signed by duly authorized representatives of each party.\

6. Severability. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in force.

7. Entire Agreement. This Agreement constitutes the complete and exclusive agreement between Seller and Buyer regarding its subject matter and supersedes all prior or contemporaneous quotations, agreements, communications or understandings, whether written or oral, relating to its subject matter. 

8. Notices. All notices required or permitted to be given under this Agreement will be in writing and will be deemed given: (i) upon actual delivery, if made by personal service; (ii) three (3) days after mailing, if made by U.S. certified or registered mail; and (iii) one (1) business day after delivery to the courier or overnight delivery service, if made by courier or overnight delivery service.  All notices will be addressed as set forth on the purchase order or Order Confirmation, as the case may be, or to such other address as the party who is to receive the notice so designates by written notice to the other.

 

Webmaster

C-Hero®, LLC
336 Bon Air Center, Suite 115
Greenbrae, CA 94904

Effective Date: March 1, 2024