SMART LEADER INDUSTRIES LTD

Terms and Conditions

TERMS AND CONDITIONS OF SALE

Following are the terms and conditions of  SMART LEADER Industries Limited (hereinafter “SMART LEADER”), a manufacturer of plastic components (hereinafter Components):

1. GENERAL

The terms and conditions of sale contained herein apply to all quotations made and all purchase orders entered into by SMART LEADER and acceptance by SMART LEADER of any order by confirmation or commencement of performance shall be on the basis of these terms and conditions of sale, even though no reference is made thereto at the time of acceptance. SMART LEADER’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of these terms and conditions of sale. Buyer’s assent to these terms and conditions of sale shall be deemed to be given by implication unless Buyer gives written notice of objection to SMART LEADER promptly under receipt of this document. Any changes in the terms and conditions of sale contained herein must specifically be agreed to in writing by an Officer of SMART LEADER before becoming binding on SMART LEADER.

2. ACCEPTANCE OF ORDERS

All orders from Buyer are subject to acceptance by SMART LEADER, and SMART LEADER reserves the right to accept or reject any orders in whole or in part. Any  quotation  or  proposal  is  subject  to  change  or  cancellation  by  SMART LEADER  at  any  time  without  notice  and  in  any event expires 30 days from its date, unless otherwise indicated  therein  or  extended  in  writing  by  SMART LEADER.  SMART LEADER’s quotation or proposal does not constitute an offer by SMART LEADER, and any order or orders placed thereon are not binding on SMART LEADER until SMART LEADER’s acceptance in writing has been sent to the Buyer.

3. ALL ORDERS FINAL AS PLACED

Once confirmed by the Buyer, either through verbal authorization, in writing or by electronic transmission, all orders as submitted and processed via the email, fax or mail are final. Any changes requested to be made to an order after confirmation is received may be charged a $50 change order fee, and most likely will require a change to be made to the schedule and completion dates for production.

Once confirmed, any errors, inaccuracies or omissions made during the placement and/or production of an order shall be the sole responsibility of the Buyer.

No cancellations of orders will be accepted after receipt of confirmation, except with the express written consent of SMART LEADER. For further details, please see provision 18.

4. PRICES

Prices quoted or acknowledged by SMART LEADER are firm for the quantities and valid for a period as set forth by the quotation document. If Buyer agrees to quote after the expiration of the validity of the quote document SMART LEADER will requote as needed; whereas the shipping schedules set forth in the quotation or order acknowledgement, are subject to revision if quantities and/or shipping schedules and/or production schedules are delayed by Buyer. All Prices are in United States dollars.

5. TAXES

Unless otherwise specifically provided for in quotation or order acknowledgement, the amount of any present or future sales, revenue, excise or other tax applicable to the products covered by this quotation or order or the manufacture or sale thereof, shall be added to the purchase price and shall be paid by Buyer, or in lieu thereof Buyer shall provide SMART LEADER with a tax exemption certificate acceptable to the taxing authorities.

6. TRANSPORTATION

All sales are made F.O.B. shipping point. SMART LEADER’s title passes to Buyer upon making delivery of material purchased hereunder to carrier at shipping point in good condition. All claims for loss or damage must be filed by Buyer with the carrier. Unless specific instructions are given by Buyer, SMART LEADER reserves the right to select carrier and routing.

Freight charges are included in the unit price quoted by SMART LEADER to the Buyer and based on ocean freight, unless otherwise noted or agreed upon in writing. Should the Buyer request a faster mode of transportation than that originally included in the unit price, the Buyer agrees to compensate the SMART LEADER for the additional cost thereof.

7. DELIVERY

Shipping dates are approximate and are based on prompt receipt from Buyer of all necessary information; SMART LEADER reserves the right to make partial shipments. For Components custom made to Buyer’s specifications, SMART LEADER reserves the right to deliver up to 5% more than the exact quantity ordered, and Buyer is obligated to pay for the full quantity shipped.

8. PAYMENT TERMS

Buyer agrees to pay for the products according to the Seller’s payment terms. SMART LEADER may invoice parts of an order separately. In the event Buyer fails to make any payment to Seller when due, Buyer’s entire account(s) with Seller shall become immediately due and payable without notice or demand.

Credit facilities are only available to Buyers who have had their application forms approved by SMART LEADER’s credit department. Payment is due within 15 days from the date of invoice, unless a different term is decided by SMART LEADER’s credit department.

9. DEFAULT

If the Buyer wrongfully rejects or revokes acceptance of the Components and/or services covered hereby, or fails to pay in full the price for the Components when due, or repudiates this order, SMART LEADER, shall have all the rights and remedies provided by law and, without limitation of the foregoing, may recover as damages, where permitted by applicable law, the price including a late payment and/or interest charge from due date at one and one-half percent (1-1/2%) per month on the unpaid balance, but not to exceed the maximum rate of interest permitted by law, and any costs of collections, including reasonable attorneys’ fees.  As to all partially manufactured products, SMART LEADER may, at its option, complete their manufacture, and hold Buyer responsible for their price.  Upon recovery of the price, the Components shall become the property of Buyer.

10. PROPERTY and RETENTION OF TITLE

  • References in this clause to the Buyer include the Buyer and any successors or assigns of the Buyer. Property in or title to the Components will not pass to the Buyer until the purchase price has been paid in full. Until such payment the Buyer must:
  • act in a fiduciary capacity in its relationship with SMART LEADER;
  • hold the goods as a bailee for SMART LEADER.
  • Until the purchase price is paid in full, SMART LEADER may, at any time after the purchase price is due to be paid in accordance with these terms and conditions, enter the Buyer’s premises to retake possession of the Components and the Buyer hereby irrevocably licenses SMART LEADER to do so.
  • If, despite (a), the Components are sold by the Buyer to any person before the purchase price for those Components is paid in full, without prejudice to any rights SMART LEADER may have against any person, the Buyer shall (only for the purposes of protecting SMART LEADER’s interests under this clause) be deemed to be acting as agent of SMART LEADER in selling the goods, and the Buyer must:

(i)          keep the proceeds of sale of the Components separate from any other assets of the Buyer;

(ii)        hold those proceeds for the benefit of any rights the Buyer may have against any person who purchases the Components with respect to that purchase including but not limited to the right to receive all moneys due by that person to the Buyer on any account, as trustee for SMART LEADER; and

  • if called upon by SMART LEADER to do so, immediately pay those proceeds to SMART LEADER or as SMART LEADER directs.
  • Any item which is added to or combined with the Components by the Buyer or any person at the direction or request of the Buyer becomes and remains the property of SMART LEADER until property in the Components passes to the Buyer in accordance with this clause.
  • If any of the following occur:
  • an administrator, receiver or manager is appointed for the Buyer;
  • the Buyer is served with a statutory demand;
  • the Buyer resolves, or is served with any application for orders to wind up the Buyer;
  • the Buyer proposes to enter into an arrangement with its creditors;
  • if an individual, the Buyer commits an act of bankruptcy;
  • the Buyer proposes to cease to carry on business.

The Buyer must immediately give SMART LEADER written notice of same.

  • If SMART LEADER receives notice or otherwise becomes aware of any of the events described in (e), notwithstanding any credit terms which may apply to the goods (or any of them) any right of the Buyer (or any person exercising the rights of the Buyer, to dispose of use or otherwise deal with the Components in the ordinary course of business or otherwise, terminates and;

(i)         the Buyer must immediately return the Components to SMART LEADER; or

  • (at the discretion of SMART LEADER); SMART LEADER may enter the premises of the Buyer and retake possession of the Components.
  • To the extent permitted by any law, the Buyer shall indemnify SMART LEADER and hold SMART LEADER harmless against any loss, damage, costs, expenses, penalties, fines or claims suffered by SMART LEADER arising from the exercise of the rights of SMART LEADER under this clause.

11. MINIMUM ORDER VALUE

SMART LEADER reserves the right to require minimum order quantities (hereinafter MOQ) and/or values.

12. INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT / PATENT

It is not the intention of SMART LEADER to manufacture any products, which is an infringement of a patented article.  SMART LEADER makes parts strictly to the specifications furnished by the Buyer. Therefore, SMART LEADER and its partners, vendors and assigns assumes no responsibility for researching or authenticating the rights held by any Buyer to any trademark, as it relates to any design or logo reproduced on behalf of a Buyer. Any and all liability for any act of trademark infringement rests with the Buyer. It is agreed that the Buyer shall defend and hold harmless SMART LEADER from any and all expense involved in any claims for damages from infringements of letters of patent by the use or sale of parts made by SMART LEADER, either as such, or as parts or units of complete entities.

13. PROPRIETARY RIGHTS.

The sale of Components hereunder to Buyer shall in no way be deemed to confer upon Buyer any right, interest or license in any patents or patent applications or design copyrights SMART LEADER may have covering the Components. SMART LEADER retains for itself all proprietary rights in and to all designs, engineering details, and other data and materials pertaining to any Components supplied by SMART LEADER and to all discoveries, inventions, patents and other proprietary rights arising out of the work done by SMART LEADER in connection with the Components or with any and all Components developed by SMART LEADER as a result thereof, including the sole right to manufacture any and all such Components. Buyer warrants that it will not divulge, disclose, or in any way distribute or make use of such information, and that it will not manufacture or engage to have manufactured such Components.

Buyer covenants that it will not attempt to “reverse engineer” or otherwise discover SMART LEADER’s intellectual property, patentable, patented or non-patented inventions, trade secrets, secret processes, or other confidential information embodied or contained in SMART LEADER’s Components.

14. LIMITED WARRANTY

SMART LEADER warrants merchandise sold by it to be free from defects in materials and workmanship, or in the case of custom-made merchandise or prototypes, the specifications agreed on, under proper storage and use, for a period of three (3) months from the date of the original shipment. Buyer’s approval of prototype shall be proof that the design meets the agreed specification.

SMART LEADER’s entire liability and obligation to Buyer under this warranty shall be expressly limited to the replacement or crediting, as SMART LEADER may determine at its sole discretion, of any defective or nonconforming merchandise for which Buyer has first given written notice to SMART LEADER of such defect or nonconformity in the manner as provided below. No claim under this warranty shall be valid unless within thirty (30) days of its receipt of any merchandise hereunder, Buyer shall furnish SMART LEADER in writing notice of any defect in materials and/or workmanship or any nonconformity with any applicable specifications, specifying in detail any such defect or non- conformity. Absent such timely notice, Buyer shall be deemed to have waived any such defect or nonconformity which could be determined based upon a reasonable inspection of such Plastic Components. With respect to orders contemplating a series of shipments of merchandise by SMART LEADER, unless Buyer notifies SMART LEADER in writing within thirty (30) days of the initial shipment of any nonconformity with any applicable specifications, then Buyer shall be deemed to have waived such nonconformity with respect to subsequent shipments involving the same specifications. Other than with respect to the replacement, or crediting of defective merchandise by SMART LEADER under the limited warranty as provided above, SMART LEADER shall have no obligation to Buyer with respect to any monetary damages by reason of such nonconformity or defect, and in no event shall SMART LEADER be liable to Buyer for any lost profits or consequential damages.

SMART LEADER shall have the option, exercisable in its sole discretion, of requiring the return to it the defective merchandise, transportation prepaid, for inspection. No warranty claim will be allowed which, in the opinion of SMART LEADER, resulted from merchandise being altered, or as a resulted from misuse, negligence or accident. In the event that some, but not all items of merchandise are defective within the terms of the limited warranty set forth above, replacement or crediting of defective merchandise at SMART LEADER’s option shall apply only to such defective items falling within the terms of such limited warranty and Buyer shall have no right to return or seek credit for any items not so defective.

THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE, AND SMART LEADER SHALL HAVE NO FURTHER OR ADDITIONAL OBLIGATION WITH RESPECT TO ANY COMPONENTS SOLD TO BUYER. ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY AND FITNESS FOR PURPOSE, ARE DISCLAIMED.

15. LIMITATION OF LIABILITY

SMART LEADER’s sole liability and Buyer’s exclusive remedy for damages from any cause whatsoever (and regardless of the form of action) shall be limited to the replacement or crediting, at SMART LEADER’s sole option pursuant to the limited warranty set forth above, of the specific Components that caused the damages or are the subject matter of, or directly related to the cause of action. In no event shall SMART LEADER be liable for damages caused by Buyer’s negligence of for any lost profits, or other incidental or consequential damages, including loss to other machinery or equipment of which a product of SMART LEADER is a part, even if SMART LEADER has been advised of the possibility of such damages.

16. NO OTHER WARRANTIES

No employee or agent of SMART LEADER is authorized to make warranties about the Components described in this agreement.  ORAL OR WRITTEN STATEMENT BY SMART LEADER’S EMPLOYEES OR AGENTS, INCLUDING VIA EMAIL, DO NOT CONSTITUTE WARRANTIES and shall not be relied upon by Buyer, and are not part of the agreement of sale.  The entire agreement of the parties is embodied in this writing and NO OTHER WARRANTIES are given beyond those set forth herein.  Buyer hereby acknowledges that it has not entered into this agreement in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein.

17. FORCE MAJEURE

SMART LEADER shall not be liable for any failure or delay in manufacture or delivery resulting from any cause beyond the reasonable control of SMART LEADER, including by way of illustration and not by way of limitation, compliance by SMART LEADER with any Government or military regulation, or from acts of God, fires, flood, explosion, or other casualty or accident, theft, climatic conditions, strikes, lockouts, factory shutdowns, or alterations, embargoes, outbreak of hostilities (whether or not war is declared), riots or other disorders, delays or shortages in transportation, or inability to obtain sufficient quantity of fuel, power, labor, manufacturing facilities of materials or other supplies from the usual sources of SMART LEADER.

Neither shall SMART LEADER be held to the price of the product in his quotation and/or order acknowledgement, in the event cost of materials needed for SMART LEADER’s manufacturing process of the product, as the result of events listed in this paragraph, and being beyond the reasonable control of SMART LEADER, would increase beyond what can normally be expected during the life of the contract. Should such cost increases occur, SMART LEADER and the Buyer agree to re-negotiate the price for the Cosmetic Product based on the actual cost increases to SMART LEADER for the Buyer’s Cosmetic Product as a result of said price increases of materials used in the manufacturing of the product in question.

Delays due to the act of God or other circumstances over which SMART LEADER has no control do not make SMART LEADER responsible for airfreight charges or other faster modes of transportation that the Buyer may request to make up for any delay caused by circumstances as described above.

18. CANCELLATION

Cancellation of orders will be subject to a Cancellation Charge equal to 20% of the Purchase Order Value, or the value of material and work performed on the cancelled Cosmetic Product at the time of cancellation, whichever is greater.

19. INSPECTION OF PRODUCTS

Components shall be inspected by Buyer upon delivery and services, upon performance.  Notice of rejection or claim for shortages, damaged product or other non-conformity must be submitted by the Buyer to SMART LEADER in writing within 14 days of shipment or performance, and must specify the particular respects in which the delivery, products, or services, as applicable, are non-conforming.  The Buyer shall have no right to exercise remedial rights until notice of non-conformity has been given to SMART LEADER and SMART LEADER afforded a reasonable opportunity to cure such non-conformity, if appropriate.

20. RETURN POLICY

NO RETURNS ARE ALLOWED ON ANY CUSTOMIZED OR DECORATED COMPONENTS.  Returns are allowed only on Stock Components (Stock Components are Components with no additional Silk Screening, Pad Printing, Anodizing, Frosting, Soft-Touch Painting, or any other additional decoration) only upon approval from SMART LEADER.

NO UNAUTHORIZED RETURNS WILL BE ACCEPTED. For Stock Components, Buyer must obtain a Return Material Authorization (RMA) Number from SMART LEADER prior to shipping any Stock Cosmetic Product back to SMART LEADER. All Returns to be sent prepaid by Buyer. At the discretion of SMART LEADER, unused and undamaged Stock Components may, under certain circumstances, be accepted back for credit or exchange. A restocking charge of 20% may apply. Please consult SMART LEADER.

21. CHARGE-BACK FEES

Buyer understands and agrees that all products purchased, produced and shipped are considered a final sale for which no refunds will be given or provided except as expressly provided herein. As such, Buyer agrees and acknowledges that by purchasing any Cosmetic Product from SMART LEADER, Buyer shall be solely responsible for and shall bear (and/or reimburse) SMART LEADER for any charge-backs or fees issued to SMART LEADER from any credit card company, merchant bank or other source of payment that is issued at the request of the Buyer outside of the expressly provided methods of return. Stated another way, should Buyer request a refund or charge cancellation from any credit card company, merchant bank or other source of payment processing against the purchase of SMART LEADER Components, and should said card company, merchant bank or other source thereafter impose any fee or direct any charge back fee or amount to SMART LEADER at the request of said Buyer, Buyer shall reimburse SMART LEADER for the amount of said charge back fee and the initial purchase amount (the “total amount”). By purchasing any Cosmetic Product from SMART LEADER, Buyer expressly authorizes SMART LEADER to direct the stipulated payment/charge to be made to Buyer’s credit card account (the same being the credit card account used in the initial purchase of said Cosmetic Product) in the amount of said “total amount” to SMART LEADER for such reimbursement, plus a twenty-five percent (25%) administrative fee to cover the costs and time involved with this process. Buyer acknowledges and agrees that the policy set forth in this paragraph provides for reimbursement to SMART LEADER for fees incurred, is fair and reasonable and is not a penalty clause or provision.

22. DISPUTES

This Agreement shall in all respects be governed by the laws of the State of California. The California state courts of Los Angeles County, California (or if there is exclusive federal jurisdiction, the United States District Court for the Southern District of California) will have exclusive jurisdiction and venue over any dispute arising out of this agreement, and Buyer hereby consents to the jurisdiction of such courts.  Disputes between the parties may be settled by arbitration according to the Rules of the American Arbitration Association with three arbitrators.

23. VALIDITY

No addition to, deletion from, or modification of any of the provisions of these Terms and Conditions of Sale shall

be binding  upon  SMART LEADER,  unless  made  in  writing  and signed by a duly authorized officer or employee of SMART LEADER.  Oral  statements,  warranties,  or  representations  made  by any agent or employee or representative of SMART LEADER are not authorized  by  SMART LEADER  and  shall  be  of  no  force  or  effect.  These  Terms  and  Conditions  of  Sale  are  the  final, complete  and  exclusive  statement  of  the  terms  of  the agreement between SMART LEADER and Buyer.  ANY DIFFERENT OR ADDITIONAL TERMS PROPOSED BY BUYER ARE OBJECTED TO AND HEREBY REJECTED.

A waiver by SMART LEADER of any default by Buyer or of any of these Terms and Conditions of Sale shall not be

deemed to be a continuing waiver or a waiver of any other default  or  of  any  other  of  these  Terms  and  Conditions  of

Sale,  but  shall  apply  solely  to  the  instance  in  which  the waiver is directed.

This agreement may not be assigned by Buyer without SMART LEADER’s written consent.

24. HEADINGS

The headings contained in this agreement are for convenience of reference only and shall in no way define or limit the provisions hereof.

25. SERVARABILITY

If any provision of these terms and conditions are deemed unenforceable, such provision shall be severed and in no way should affect the remaining provisions, which will remain in full force and effect.

26. BUYER’S UNDERSTANDING

Buyer represents and warrants: (A) that it has read and understood these terms and conditions, and (B) that these terms and conditions are fair and reasonable to Buyer.