Terms and Conditions
NOTICE: Sale of any Services is expressly conditioned on Buyer’s assent to these Terms and Conditions. Any acceptance of GMA LABS’s offer is expressly limited to acceptance of these Terms and Conditions. No Buyer form shall modify these Terms and Conditions, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of these Terms and Conditions. Any order to purchase products or receive services shall constitute Buyer’s assent to these Terms and Conditions. Unless otherwise specified in the quotation, GMA LABS’s quotation shall expire thirty (30) days from its date and may be modified or withdrawn by GMA LABS before receipt of Buyer’s conforming acceptance.
1. Definitions.
“Buyer” means the entity to which GMA LABS is providing Services under the Contract.
“Contract” means either the contract agreement signed by both parties, or the purchase order signed by Buyer and accepted by GMA LABS in writing, for the sale of Services, together with these Terms and Conditions, GMA LABS’s final quotation, the agreed scope(s) of work, and GMA LABS’s order acknowledgment. In the event of any conflict, the Terms and Conditions shall take precedence over other documents included in the Contract.
“Contract Price” means the agreed price stated in the Contract for the sale of Services, including adjustments (if any) in accordance with the Contract.
“Services” means the services GMA LABS has agreed to perform for Buyer under the Contract.
“Terms and Conditions” means these “General Terms and Conditions for the Sale Services”, together with any modifications or additional provisions specifically stated in GMA LABS’s final quotation or specifically agreed upon by GMA LABS in writing.
2. Shipping and Custom Terms.
(a) The cost of shipping is due separately upon the charge from shipping carriers.
(b) countries charging different custom and storage fees during the importation of samples. This cost will be chargeable to the Buyer separately
3. Cancellation of Purchase Order.
The buyer may cancel its order only with the prior written consent of GMA LABS, which GMA LABS may withhold in its sole discretion. All type approval services will be subject to a 50% payment to GMA LAB's cancelation charges. The cancellation cost of the testing services needs to be evaluated and calculated case by case.
4. Payment Terms.
(a) The terms of payment are NET30 following the date of the invoice.
(b) The buyer shall pay a late fee on all late payments at the rate of 10% for every late moth. The late fee is prorated daily. Buyer shall reimburse GMA LABS for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs. In addition to all other remedies available under these Terms and Conditions or at law (which GMA LABS does not waive by the exercise of any rights hereunder), GMA LABS shall be entitled to suspend the delivery of any service if Buyer fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.
(c) The buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with GMA LABS, whether relating to GMA LABS’s breach, bankruptcy or otherwise.
(d) If Buyer disputes any invoice or portion thereof, it shall notify GMA LABS in writing within thirty (30) days of receipt of said invoice, detail the reason for the dispute, and pay all undisputed amounts. All charges, not timely disputed in writing shall be deemed to be undisputed and shall be due and payable as set forth above.
5. Limitation of Liability.
(a) IN NO EVENT SHALL GMA LABS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT GMA LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL GMA LABS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO GMA LABS FOR THE PRODUCTS SOLD HEREUNDER OR, AS TO SERVICES, FOR THE AMOUNTS PAID TO GMA LABS FOR SERVICES PERFORMED HEREUNDER.
6. Indemnification.
Subject to Article 10 hereof, each of Buyer and GMA LABS (as an “Indemnifying Party”) shall indemnify the other party (as an “Indemnified Party”) from and against claims brought by a third party, on account of personal injury or damage to the third party’s tangible property, to the extent caused by the negligence of the Indemnifying Party in connection with this Contract. In the event the injury or damage is caused by joint or concurrent negligence of Buyer and GMA LABS, the loss or expense shall be borne by each party in proportion to its degree of negligence. For purposes of GMA LABS’s indemnity obligation, no part of the Products is considered third party property.
7. Adequate Assurance.
GMA LABS reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance of performance from Buyer without liability to GMA LABS in the event of: (i) Buyer’s insolvency, (ii) Buyer’s filing of a voluntary petition in bankruptcy, (iii) the appointment of a receiver or trustee for Buyer or (iv) the execution by Buyer of an assignment for the benefit of creditors. GMA LABS reserves its right to suspend its performance until payment or adequate assurance of performance is received and also reserves its right to cancel Buyer’s credit at any time for any reason.
8. Intellectual Property Rights.
(a) GMA LABS is unable to guarantee that no patent rights, copyrights, trademarks, (user) rights, trade models or any other rights of third parties are infringed by goods received from suppliers and/or buyers via GMA LABS or third-parties via them, including but not limited to goods, models and drawings for the manufacture and/or delivery of certain Products.
(b) In the absence of a written agreement to the contrary, GMA LABS holds the copyrights and all rights of (industrial) property to the offers it has made and the designs, images, drawings (test) models, software, templates and other goods that it has issued.
9. Termination.
In addition to any remedies that may be provided under these Terms and Conditions, GMA LABS may terminate this Contract with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Contract and such failure continues for thirty (30) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
10. Amendment and Modification.
These Terms and Conditions may only be amended or modified in a writing which specifically states that it amends these Terms and Conditions and is signed by an authorized representative of each party.
11. Waiver.
No waiver by GMA LABS of any of the provisions of this Contract is effective unless explicitly set forth in writing and signed by GMA LABS. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Contract operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
12. Confidential Information.
All non-public, confidential or proprietary information of GMA LABS, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by GMA LABS to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Contract is confidential, solely for the use of performing this Contract and may not be disclosed or copied unless authorized in advance by GMA LABS in writing. Upon GMA LABS’s request, the Buyer shall promptly return all documents and other materials received from GMA LABS. GMA LABS shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
13. Force Majeure.
GMA LABS shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of GMA LABS including, without limitation, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
14. Assignment.
Buyer shall not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of GMA LABS. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Contract.
15. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Contract shall be construed as creating any agency, partnership, joint venture or other forms of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
16. Governing Law.
All matters arising out of or relating to this Contract are governed by and construed in accordance with the internal laws of the State of California.
17. Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or relating to this Contract shall be commenced in the federal courts of the United States of America or the courts of the State of California in each case located in the City of Irvine and Orange County.
18. Notices.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Contract or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Contract, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
19. Severability.
If any term or provision of this Contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.
20. Survival.
Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms and Conditions including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Indemnification, Submission to Jurisdiction/Arbitration and Survival.
21. Complete Agreement.
These General Terms and Conditions constitute the entire agreement between Buyer and GMA LABS relating to the subject matter hereof and supersede all prior and contemporaneous discussions, understandings, and agreements related to the subject matter hereof.
22. Language.
This Contract and all related documents is in the English language.