Terms & Conditions

Agreement
1. The Terms and Conditions are expressly limited to the terms and conditions set forth herein unless expressly modified with reference hereto in any of the Order Documentation. All terms set forth on Customer’s purchase order or otherwise proposed by Customer are hereby objected to and shall be void unless expressly agreed to in a writing signed by MAKESafe. These Terms and Conditions and the Order Documentation into which the Terms and Conditions have been incorporated contain the entire agreement of the parties (“Agreement”) and all proposals, negotiations, representations or agreements made or entered prior to or contemporaneously herewith, whether oral or in writing, are expressly superseded.
Prices, Taxes and Clearances
1. All prices for MAKESafe’s Goods are set forth in the applicable Order Documentation. Prices for Goods are EXW MAKESafe’s plant of manufacture unless otherwise specified in writing by the parties.
2. Prices are stated in United States Dollars and payment shall be made in United States currency.
3. Prices do not include sales, use, excise or any similar taxes. Any tax or other governmental charge upon the production, sale, shipment, or use of the Goods which MAKESafe is required to pay or collect from Customer shall be paid by Customer to MAKESafe unless Customer furnishes MAKESafe with a tax exemption certificate acceptable to the applicable taxing authority.
4. Customer shall be responsible for obtaining any necessary governmental clearances, including any import and/or foreign exchange license, which may be required by the federal, any state or any foreign government, or any subdivision or agency of any thereof.
5. Prices specified are for standard packaging only. Any special packaging requested by the Customer, including special protection for export shipment, will be at the Customer’s expense.
Payment
1. Customers with established credit may purchase for immediate processing of orders. Customers not previously established with credit may apply for open-account status. Payment of the purchase price for the Goods (including any applicable sales or use tax) is, unless otherwise indicated, due and payable thirty (30) days from the date of invoice with respect thereto. Thereafter, the unpaid balance of the total purchase price shall bear interest at the rate of one and one-half percent (1.5%) per month until paid in full.
2. Invoices shall be dated as of the date of shipment. If Customer fails to pay any undisputed amounts when due or if Customer becomes subject to insolvency or bankruptcy proceedings, MAKESafe may require payment in cash or satisfactory security prior to further deliveries, upon providing written notice and a (e.g., 10-day) opportunity to cure. Failure to comply within the cure period may result in suspension or termination of deliveries without prejudice to MAKESafe’s other rights.
3. Orders received without suitable credit information must be prepaid in full prior to shipment.
4. MasterCard, Visa and American Express cards are accepted. MAKESafe reserves the right to charge an additional fee, not to exceed 3.0%, for any credit card transactions.
Risk of Loss, Title and Shipment
1. Risk of loss and title to the Goods shall pass to Customer as specified by the applicable Incoterm in effect for the sale. Unless otherwise agreed, MAKESafe shall ship the Goods in accordance with Customer’s instructions. If no instructions are provided, MAKESafe may select the carrier at its discretion. Shipping dates are approximate and contingent upon timely receipt of all necessary information. Any freight charges prepaid by MAKESafe shall be reimbursed by Customer with the purchase price.
Force Majeure
1. MAKESafe shall not be liable for any delay in delivery of Goods, or failure to deliver Goods, due, directly or indirectly, to any cause beyond MAKESafe’s reasonable control, including, but not limited to, acts of God, fires, floods, strikes or other labor disputes, accidents, machinery or equipment breakdowns, acts of sabotage or terrorism, riots, wars, inability to obtain raw materials, components, fuel or supplies, delay in transportation or lack of transportation facilities, or any restrictions or delays imposed by or caused by policies of any federal, state, foreign or other governmental legislation, rules, regulations or orders. In the event of any such delay or failure, the Agreement shall not terminate but the required date of shipment of the Goods shall be extended for a period equal to the time lost because of any such failure or delay.
Cancellation
1. Customer may cancel orders only with MAKESafe’s written consent. In the event that such consent is given, customer will be responsible for: (i) payment for completed goods ready for delivery, and (ii) reasonable costs incurred by MAKESafe for work in progress, materials, and tooling. MAKESafe may accept cancellations without charge at its discretion.
Expiration
1. This Agreement shall expire upon the completion of all orders under the Order Documentation. Notwithstanding the foregoing, in the event of expiration of this Agreement, Sections 3, 5, 8, 9, 10, 13, 14, 15, 16 and 18 of this Agreement shall survive.
Inspection and Acceptance
1. Upon delivery of the Goods to Customer’s designated shipping destination, Customer shall promptly inspect the Goods for conformance to the Agreement. Any claim for shortage or discrepancy must be made in writing and received by MAKESafe within 10 days after Customer’s receipt of the Goods along with documentation supporting the claim.
2. All other claims, including claims for alleged defective products, to the extent they are not disclaimed by MAKESafe under this Agreement, must be made by Customer in writing and received by MAKESafe within 20 days after Customer’s receipt of the Goods along with documentation supporting the claim.
3. All claims not made in writing, whether received by MAKESafe within the applicable time specified above, shall be deemed waived.
Returns
1. Returned merchandise must be authorized by MAKESafe in advance, at which time a Return Materials Authorization (RMA) number or other identifying reference will be issued. No returned merchandise will be accepted unless accompanied by a MAKESafe issued reference, with said reference clearly identified on the outside of the shipping container. Material returned without an RMA number may be refused by our shipping department.
2. Customer is responsible for the condition of any returned products until it is received and processed by MAKESafe. Received returns are evaluated by MAKESafe to ensure they meet the condition specified by the customer. Based on the condition of the returned product(s), MAKESafe reserves the right to:
  1. apply a restocking charge (not to exceed 25%) for any returned material not found to be defective, or
  2. reduce the Customer credit based on the condition of the returned item, or
  3. return the item to the customer with no credit issued.
3. No returns for credit will be considered more than 30 days from date of receipt by Customer.
Limited Warranties
1. Subject to other restrictions in this Agreement, MAKESafe makes to Customer the following sole and exclusive warranties with respect to Goods:
  1. with respect to Goods that are manufactured based on Customer specifications, at the time of shipment by MAKESafe, the Goods sold under the Agreement that are manufactured by MAKESafe pursuant to such specifications conform to such specifications set forth in the applicable Order Documentation; and
  2. at the time of shipment by MAKESafe, the Goods sold under the Agreement that are manufactured by MAKESafe are free from defects in material and workmanship.
  3. MAKESafe’s warranty is for a period of 1 year, and begins from date of shipment from MAKESafe to the original purchaser.
2. If MAKESafe breaches either of the warranties set forth above, and written notice thereof is received by MAKESafe from Customer within the applicable time period, Customer’s sole and exclusive remedy and MAKESafe’s only obligation shall be, as MAKESafe in its sole and exclusive judgment shall determine, the replacement of the nonconforming Goods, or an adjustment to the purchase price for the nonconforming Goods or the repair of the nonconforming Goods. All transportation charges related to replacement or repair of Goods shipped to MAKESafe’s plant or facility (or other place at MAKESafe’s direction) shall be prepaid by Customer. MAKESafe shall be responsible for reasonable transportation charges back to Customer for Goods that have been replaced or repaired by MAKESafe. Any replacement Goods or repaired Goods shall be subject to these Terms and Conditions.
3. THE EXPRESS WARRANTIES SET FORTH HEREIN ARE THE ONLY WARRANTIES APPLICABLE TO THE SALE OF GOODS BY MAKESafe TO CUSTOMER PURSUANT TO THE AGREEMENT, AND THEY EXCLUDE ALL OTHER EXPRESS, ORAL OR WRITTEN WARRANTIES, AS WELL AS ANY WARRANTIES IMPLIED BY LAW WITH RESPECT TO THE GOODS, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PURPOSE, NOTWITHSTANDING ANY DISCLOSURE TO MAKESafe OF THE INTENDED USE OF THE GOODS.
4. MAKESafe’s warranties under this section are void if repairs or modifications of the Goods are made by anyone other than MAKESafe. Without limitation of the foregoing, MAKESafe assumes no responsibility for and shall have no obligations to Customer because defects in any materials furnished by, or any faulty workmanship provided by, any party other than MAKESafe.
5. MAKESafe reserves the right to improve its products through changes in design or material without being obligated to incorporate such changes into products of prior manufacture. Customer cannot rely on any such changes as proof of insufficiency or inadequacy of prior designs of the Goods or material contained in the Goods.
6. If Customer grants to an end user of the Goods (or any other customer of Customer) any warranty that is greater in scope or time than the warranty and claims period stated herein, MAKESafe shall not be liable beyond the scope of the limited warranty, the claim period, the damages and the remedies provided for under this Section.
7. Solely to the extent transferable, MAKESafe assigns and transfers to Customer the original manufacturer’s warranty on Goods sold hereunder that are not manufactured by MAKESafe.
LIMITATION OF LIABILITY
1. MAKESafe WILL NOT BE LIABLE FOR AND IS NOT (AND SHALL NOT BE) RESPONSIBLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOSS OF LIFE, PERSONAL INJURY, LOSS OF INCOME (BUSINESS OR PERSONAL), DAMAGE OR LOSS (INCLUDING ANY INCREASED COSTS SUFFERED OR INCURRED BY CUSTOMER) RESULTING FROM CUSTOMER’S INABILITY TO USE THE GOODS OR CUSTOMER’S (OR ITS CUSTOMER’S) INABILITY TO USE ANY EQUIPMENT, OR ANY INCREASED OPERATING COSTS OR LOSS OF PRODUCTION OR OTHER COSTS INCURRED BY CUSTOMER (OR ANY CUSTOMER OF CUSTOMER) IN REMOVING, REINSTATING OR REPAIRING ALLEGEDLY DEFECTIVE OR NONCONFORMING GOODS, DELAY DAMAGES OR ANY OTHER SUCH DAMAGES, WHETHER ARISING FROM CAUSES SIMILAR TO OR DISSIMILAR TO THOSE ENUMERATED (COLLECTIVELY, “SPECIAL DAMAGES”).
2. MAKESafe DISCLAIMS ANY LIABILITY FOR FAILURE OF PERFORMANCE OR MALFUNCTION OF THE GOODS SUPPLIED BY MAKESafe PURSUANT TO THE AGREEMENT WHICH IN MAKESafe’s OPINION IS THE DIRECT OR INDIRECT RESULT OF ANY ACTION OR INACTION BY CUSTOMER OR ANY PARTY OTHER THAN MAKESafe (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMER OF CUSTOMER OR OTHER USER OF THE GOODS) INCLUDING, WITHOUT LIMITATION, ABUSE, NEGLECT, ACCIDENT, IMPROPER INSTALLATION, MODIFICATIONS OR REPAIRS NOT MADE BY MAKESafe, INCORRECT OR INAPPROPRIATE USE OR APPLICATION, FAILURE TO MAINTAIN, UNSUITABILITY OR INCOMPATIBILITY WITH OTHER PRODUCTS OR EQUIPMENT NOT SUPPLIED BY MAKESafe, OR THE PRESENCE OF NON-RECOMMENDED FLUIDS OR OTHER CONTAMINANTS.
3. NOTWITHSTANDING ANY PROVISION HEREOF WHICH MAY BE OR APPEAR TO BE TO THE CONTRARY, IN NO EVENT SHALL MAKESafe’s LIABILITY IN RESPECT TO ANY CLAIM OR ACTION OF ANY KIND ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, USE OR REPAIR OF THE GOODS OR COMPONENT PARTS THEREOF OR THE SERVICES RENDERED BY MAKESafe PURSUANT TO THE AGREEMENT, OR ANY BREACH BY MAKESafe OF ANY TERM OF THE AGREEMENT, EXCEED THE PRICE FOR THE GOODS OR COMPONENT PART THEREOF OR SERVICE WHICH GIVES RISE TO SUCH CLAIM OR ACTION. CUSTOMER ASSUMES ALL OTHER LIABILITY FOR ANY LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THE USE OF THE GOODS, EITHER ALONE OR IN COMBINATION WITH OTHER PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY \”SPECIAL DAMAGES\” OR ANY LOSS, DAMAGE OR INJURY TO CUSTOMER (OR TO CUSTOMER’S EMPLOYEES OR PROPERTY OR TO THE EMPLOYEES OR PROPERTY OF ANY CUSTOMER OF CUSTOMER OR OTHER USER OF THE GOODS) DUE TO THE ACTS OR OMISSIONS OF CUSTOMER, ITS AGENTS, EMPLOYEES OR CUSTOMERS, IN THE INSTALLATION, MAINTENANCE, USE OR OPERATION OF SUCH GOODS.
4. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, INCLUDING ANY INDEMNIFICATION OBLIGATION, MAKESafe SHALL HAVE NO OBLIGATION TO CUSTOMER FOR ANY LIABILITY ARISING FROM (A) ANY PERSONNEL (INCLUDING ANY 3RD PARTY CONTRACTOR) OF CUSTOMER (I) PLACING ANY BODY PART IN MACHINERY, (II) OPERATING MACHINERY WITHOUT PROPER EYE, FACE OR BODY PROTECTION, (III) OPERATING OF MACHINERY WITHOUT APPROPRIATE TRAINING, (IV) OPERATING OF MACHINERY THAT HAS NOT BEEN MAINTAINED IN A MANNER CONSISTENT WITH INDUSTRY STANDARDS, (V) OPERATING MACHINERY THAT HAS BEEN TAMPERED, REWIRED OR BYPASSED BY CUSTOMER OR ANY THIRD PARTY OR (B) A MECHANICAL DEFECT, MALFUNCTION OR FAILURE IN MACHINERY OR COMPONENT THEREOF OR OTHERWISE RESULTING FROM CUSTOMER’S BREACH OF THE AGREEMENT.
5. THE PARTIES ACKNOWLEDGE THAT THE ALLOCATION OF RISKS AND BENEFITS UNDER THIS AGREEMENT IS BASED ON, AND THE FEES PAID UNDER THIS AGREEMENT WOULD BE GREATER IN THE ABSENCE OF, THE LIMITATIONS DESCRIBED ABOVE. THIS SECTION WILL SURVIVE TERMINATION OF THIS AGREEMENT.
Compliance with Law
1. MAKESafe represents that Goods delivered by MAKESafe pursuant to the Agreement will comply with the Fair Labor Standards Act of 1938, as amended.
Indemnification; Intellectual Property
1. Notwithstanding any provision contained herein to the contrary, Customer agrees to indemnify and hold MAKESafe harmless from any and all damages, costs and expenses relating to any claim arising from the Goods on the Customer’s premises including but not limited to (a) any person whether employed by customer or otherwise, intentionally or unintentionally (i) placing any body part in machinery, (ii) operating machinery without proper eye, face or body protection, (iii) operating of machinery without appropriate training, (iv) operating of machinery that has not been maintained, or is not operated, in a manner consistent with, OSHA, ANSI and other applicable industry standards, (v) operating machinery that has been tampered, rewired or bypassed by Customer or any third party or (b) a mechanical defect, malfunction or failure in machinery or component thereof or otherwise resulting from Customer’s breach of the Agreement.
2. In the event any Goods to be furnished under the Agreement are to be made in accordance with drawings, samples or manufacturing specifications designated by Customer, Customer agrees to hold MAKESafe harmless from any and all damages, costs and expenses relating to any claim arising from the design, manufacture or use of such Goods or arising from a claim that such Goods furnished to Customer by MAKESafe, or the use thereof, infringes upon any intellectual property rights, including, without limitation, Letters Patent or trade secrets, foreign or domestic, and Customer agrees at its own expense to undertake the defense of any suit against MAKESafe brought upon such claim or claims. In the event, any Goods to be furnished under the Agreement are solely the design of MAKESafe, MAKESafe agrees (subject to the last sentence of this Section) to hold harmless Customer and its customers against damage awarded by a court of final jurisdiction in any suit or suits for the infringement of any intellectual property rights or the violation of any trade secrets because of the sale or use of such Goods furnished by MAKESafe under the Agreement. Customer agrees to notify MAKESafe as soon as practicable of any charge or suit alleging any such infringement or violation, and agrees that the foregoing agreement by MAKESafe to indemnify shall not apply unless MAKESafe shall have been so notified and given the opportunity to take over the defense thereof, and further, such agreement to indemnify shall not apply if (i) the claimed infringement is settled without the consent of MAKESafe unless required by a final unappealable decree of a court of competent jurisdiction, or (ii) the infringement or violation results from the use of any Goods delivered pursuant to the Agreement in combination with a product not delivered thereunder where such infringement or violation would not have occurred from the use of the Goods alone delivered pursuant to the Agreement. Notwithstanding the foregoing, any obligation on MAKESafe’s part to indemnify Customer shall be limited solely in amount as provided for in Section 9 above.
3. The Parties agree that any work performed hereunder shall not be considered a “Work for Hire”, and that for purposes of 17 U.S. Code Section 201(b) MAKESafe owns all rights comprised in any copyright obtained or obtainable by MAKESafe; provided that this Section 12.2 shall not give MAKESafe and rights with respect to pre-existing works owned and provided by Customer to MAKESafe pursuant to this Agreement.
Proprietary Rights Reservations
1. All information of every kind and nature (except for such information as may be established to be in the public domain or which Customer may establish to be the property of Customer) related to the design, engineering, production, process, method, device, technique, formulas, plans, diagrams, drawings, compilations, patterns, tools, dies or fixtures in connection with or related to any component, device, material or other goods, products or services manufactured, provided or delivered pursuant to the Agreement are proprietary in favor of MAKESafe. Such information has been developed at great expense to MAKESafe and may contain trade secrets of MAKESafe. Customer shall not reproduce, disclose, distribute or utilize same without MAKESafe’s prior express written consent (which consent may be granted or denied in MAKESafe’s sole discretion) or as required by judicial or governmental action and Customer shall exercise reasonable care to hold such information in confidence.
Confidentiality; Non-Solicitation
1. The Parties acknowledge that each may disclose (the “Disclosing Party”) certain valuable confidential and proprietary information to the other (the “Recipient Party”). “Confidential Information” means all written (in whatever form or media embodied) or verbal information provided by the Disclosing Party to the Recipient Party concerning the Disclosing Party or its business, products or services that is not generally known to the public including information relating to the Disclosing Party’s business affairs, customers, vendors, trade secrets, prices, products, services, accounting, marketing, finances, business systems and computer programs, and any other information designated as such by a Disclosing Party at the time of disclosure. All Confidential Information is the sole and exclusive property of the Disclosing Party. The restrictions set forth herein shall apply during the Term and after the termination of this Agreement.
2. Confidential Information shall not consist of information that:
  1. (i) can be shown through written documentation to have been known by Recipient Party without restriction on disclosure or use prior to disclosure by Disclosing Party;
  2. (ii) is or becomes information within the public domain (through no fault of Recipient Party);
  3. (iii) is independently developed by Recipient Party without reference to or knowledge of Confidential Information of the Disclosing Party;
  4. (iv) is rightfully received from third parties not subject to an obligation of confidence to the Disclosing Party; or
  5. (v) the release of which is pre-approved by Disclosing Party in writing.
3. The Recipient Party shall not use, reproduce or disclose, directly or indirectly, to any third party at any time any Confidential Information of the Disclosing Party. Recipient Party shall hold all Confidential Information of the Disclosing Party in strict confidence. Recipient Party shall not use such Confidential Information in any manner, except in connection with performance under the Agreement or other written agreements between MAKESafe and Customer relating to such Confidential Information.
4. Recipient Party agrees that Confidential Information of Disclosing Party will not be disclosed or made available to any person for any reason whatsoever, other than on a “need to know basis” and then only: (i) to Recipient Party’s employees and subcontractors and professional advisors who are subject to confidentiality restrictions with respect to Confidential Information; (ii) as required by applicable law; or (iii) as otherwise expressly permitted by the Agreement. Prior to any disclosure of Disclosing Party’s Confidential Information as required by applicable law, Recipient Party shall (1) notify Disclosing Party of any, actual or threatened legal compulsion of disclosure, and any actual legal obligation of disclosure immediately upon becoming so obligated, and (2) cooperate with Disclosing Party’s reasonable, lawful efforts to resist, limit or delay disclosure.
5. Recipient Party acknowledges that any remedy at law for the breach or threatened breach of this Section may be inadequate to fully and properly protect Disclosing Party, and therefore, the Parties agree that Disclosing Party shall be entitled to injunctive relief in addition to other available remedies, provided however, that nothing contained herein shall be construed as prohibiting Disclosing Party from pursing any other remedies available in law or in equity for such breach or threatened breach.
6. Upon the termination or expiration of the Agreement, or at any time upon Disclosing Party’s request, Recipient Party shall return immediately or destroy (at Disclosing Party’s sole discretion) all Confidential Information of Disclosing Party in the possession of Recipient Party or in the possession of any third party over which Recipient Party has or may exercise control.
Default
1. The occurrence of any of the following events shall constitute Customer’s default under the Agreement: (i) Customer’s failure to make timely payment of any sum owing to MAKESafe under the Agreement; (ii) institution of any proceedings by or against Customer under any bankruptcy, insolvency or similar law; (iii) appointment or application for a receiver for Customer; (iv) an assignment by Customer for the benefit of creditors; (v) failure of Customer to furnish MAKESafe, upon MAKESafe request, with a written representation reaffirming Customer’s solvency (it being understood that the Agreement constitutes a representation by Customer that it is solvent); or (vi) MAKESafe deems itself insecure with respect to performance by Customer under the Agreement.
2. Upon Customer’s default, hereunder, MAKESafe may, upon written notice to Customer, cancel any remaining obligations of MAKESafe under the Agreement, in which case, at MAKESafe’s option:
  1. (i) Customer shall pay for all Goods delivered and for all Goods completed or in process pursuant to the Agreement;
  2. (ii) With respect to any Goods for which MAKESafe has not received full payment, MAKESafe may stop delivery, retake (or retain) possession of such Goods wherever located (all without notice, demand or legal process) and retain, lease or resell (at public or private auction or otherwise) such Goods without accounting to Customer and any payments received by MAKESafe from Customer may be retained as liquidated damages;
  3. (iii) MAKESafe may declare any outstanding balance immediately due and owing and collect same from Customer without further notice or demand, together with interest at the maximum rate permitted by law; and/or
  4. (iv) Refuse to deliver any Goods except on a cash basis.
Miscellaneous
1. No waiver by MAKESafe of any default shall be deemed a waiver of any subsequent default unless the same shall be signed in writing by MAKESafe.
2. If any provision of the Agreement is held to be invalid under applicable law, such invalidity shall not affect the remaining provisions of the Agreement.
3. The provisions of the Agreement shall be binding upon and inure to the benefit of the respective representatives, successors and assigns of the parties hereto, including, without limitation, a debtor-in-possession; provided, however, that no interest herein may be assigned by Customer without the prior written consent of MAKESafe.
4. No waiver, alteration or modification of the terms and conditions hereof shall be valid or binding upon MAKESafe unless made in writing and signed by MAKESafe.
5. This Agreement shall, for all purposes, be governed by and construed under the laws of the State of California as applied to agreements between California residents entered into and to be performed entirely within the State of California. Without limitation of the foregoing, Customer irrevocably agrees that all actions or proceedings in any way, manner or respect arising out of or from, or relating to, the Agreement shall be litigated only in California state courts having situs in San Diego County, California or in the United States District Court for the District of California. Customer consents and submits to the jurisdiction of any local, state or federal court located within said county and state, and waives any and all objections to jurisdiction that Customer may have under the laws of the State of California or the United States, including any claim or objection that any such court is an inconvenient forum. Further, Customer hereby waives, to the fullest extent permitted by law, all rights to have any dispute or claim arising under the Agreement litigated before a jury.