Vendor Terms and Conditions

The following Purchase Order Terms and Conditions (“Terms”) is an agreement between you (“Seller”) and Full Swing Golf, Inc. (“Purchaser”) (each, a “Party” and collectively, the “Parties”) that governs the terms of the purchase order (“Order”) with Purchaser for the goods and/or services as described in the Order.  The Terms shall apply to transactions for which a written agreement duly executed by both Parties does not exist.  If  such an agreement does exist, then the terms of that agreement shall be the terms that govern the transaction and the relationship of the Parties.

1. Acceptance of Terms: The Terms shall be deemed accepted upon Seller’s receipt of the Order and Seller shall be bound by the Terms herein, unless the Seller provides written notice of rejection, including specific reasons for such rejection, within three (3) days from receipt of the Order. Seller’s full or partial performance under this Order shall also constitute acceptance of these Terms.

2. Default:Time is of the essence for the Order. Purchaser may, by written notice of default to Seller, (a) terminate all or any part of this Order if Seller fails to perform, or so fails to make progress as to endanger performance of this Order in accordance with the Terms, and does not cure such failure within a period of five (5) consecutive days after receipt of notice from Purchaser specifying such failure; and (b) procure, on such terms as it will deem appropriate, goods or services similar to those so terminated. Seller shall continue performance of this Order to the extent not terminated and will be liable to Purchaser for any excess and/or remediation costs for such similar goods or services. As an alternative remedy, and in lieu of termination for default, Purchaser, at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Seller’s performance, in which case an equitable reduction in the Order price will be negotiated and, in the case of payments already having been made by Purchaser to Seller, be refunded to Purchaser within five (5) consecutive days after receipt of notice from Purchaser. If Seller, for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of the Order, Seller will promptly notify Purchaser in writing. If Seller does not comply with Purchaser’s delivery schedule, Purchaser may require delivery by the fastest way and charges resulting from the premium transportation must be fully prepaid and absorbed by Seller.

3. Price:The Order must not be filled at a price higher than shown on the face of the Order.  Purchaser will be entitled at all times to set off any amount owed at any time by Seller or any of its affiliates to Purchaser or any of its affiliates against any amount payable at any time by Purchaser in connection with the Order. No extra charges of any kind will be allowed, unless specifically agreed to in writing by the Purchaser. All applicable taxes arising out of transactions contemplated by the Order will be borne by Seller, except as otherwise specified by the Parties in writing. If Seller reduces its prices for such goods and/or services during the term of the Order, Seller shall correspondingly reduce the prices of goods and/or services sold thereafter to Purchaser under the Order.

4. Invoices, Payment, and Taxes: (a) Invoices shall be rendered on completion of services or delivery of goods and shall contain the Order number, item number, description of goods or services, quantities, unit prices, date(s) rendered, and total purchase price. Each invoice must refer to one, and only one, Order.

(b) Payment shall be made on the terms agreed upon between Seller and Purchaser.

(c) Delivery terms for title transfer are as agreed upon between Seller and Purchaser.  On Time Delivery of a product is defined as zero days late or 3 days early from dates called out on an Order.

5. Packaging:All goods must be packaged in the manner specified by Purchaser and shipped in the manner and by the route and carrier designated by Purchaser. If Purchaser does not specify the manner in which the goods must be packaged, Seller shall package the goods so as to avoid any damage in transit. If Purchaser does not specify the manner of shipment, route, or carrier, Seller shall ship the goods at the lowest possible transportation rates, consistent with Seller’s obligation to meet the delivery schedule set forth in the Order.

6. Inspection:All goods and services will be subject to inspection and test by Purchaser at all times and places, including, but not limited to, the period of manufacture and in any event prior to final acceptance. Final acceptance or rejection of the goods or services will be made as promptly as practical after delivery except as otherwise provided in the Order, but failure to inspect and accept or reject goods or services or failure to detect defects by inspection, will neither relieve Seller from responsibility for such goods or services as are not in accordance with the Order, nor impose liabilities on Purchaser for them. Purchaser’s payment for the goods shall not constitute its acceptance of the goods. If any of the goods or services are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of the Order, including any applicable drawings and specifications, then Purchaser, in addition to such other rights and remedies it may have by contract or by law or equity, at its sole discretion may reject and return such goods at Seller’s expense, require Seller to inspect the goods and remove nonconforming goods and/or require Seller to replace nonconforming goods or services with conforming goods or services. If Seller fails to make the necessary inspection, removal, and replacement in a time and manner satisfactory to Purchaser, Purchaser may at its option inspect, sort, and/or disregard the goods; Seller will pay any related costs.

7. Warranties:Seller represents and warrants that (a) all goods and services are free of any claim of any nature by any third person and that Seller will convey clear title to Purchaser, (b) all services are performed in a manner acceptable in the industry and in accordance with generally accepted standards, are free from all defects, are fit for the particular purposes for which they are acquired, and are provided in strict accordance with the specifications or other requirements (including performance specifications) approved or adopted by Purchaser, (c) all goods sold will be of merchantable quality, free from all defects in design, workmanship and materials, and fit for the particular purposes for which they are purchased and that the goods and services are provided in strict accordance with the specifications, samples, drawings, designs, or other requirements (including performance specifications) approved or adopted by Purchaser, (d) Purchaser’s inspection, test, acceptance, or use of the goods shall not affect Seller’s obligations under these warranties. Seller shall replace or correct, at Purchaser’s option and at Seller’s cost, defects of any goods not conforming to these warranties. If Seller fails to correct defects in or replace nonconforming goods within five (5) consecutive days from the date the Purchaser notifies Seller of the defect or defects, Purchaser may, on five (5) days prior written notice to Seller, either (i) make such corrections or replace such goods and charge Seller for all costs incurred by Purchaser, or (ii) revoke its acceptance of the goods in which event Seller shall be obligated to refund the purchase price and make all necessary arrangements, at Seller’s cost, for the return of the goods to Seller. All warranties of Seller herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by Purchaser. Any attempt by Seller to limit, disclaim, or restrict these warranties or any remedies of Purchaser, by acknowledgment or otherwise, in accepting or performing the Order, will be null, void, and ineffective without Purchaser’s written consent.

8. Purchaser’s Liability: Purchaser’s total liability in connection with these Terms and the Order to Seller and its respective owners and affiliated companies and their respective owners, officers, directors, members, employees, agents, successors, representatives, and assigns and from all causes of action in the aggregate shall not exceed amounts paid by Purchaser for the Order and directly related to any damage associated therewith.

9. Indemnification:To the fullest extent permitted by law, Seller agrees to defend, indemnify, and hold harmless Purchaser, and its respective owners and affiliated companies and their respective owners, officers, directors, members, employees, agents, successors, and assigns (collectively, “Indemnitees”) from any and all loss, liability (including strict liability in tort), claims, damages (including, but not limited to, Purchaser’s special, incidental, and consequential damages), lawsuits, actions, liens, fines, penalties, violations, judgments, settlements, costs and expenses (including attorneys’ fees, as well as those incurred in connection with enforcement of this indemnification), any of which may be made, sought, had, brought, or recovered against Purchaser, to the extent arising out of (i) Seller’s performance of services under these Terms or the Order and/or Purchaser’s purchase or use of the goods under the Order (including a patent or trademark infringement suit brought or threatened against Purchase  alleging infringement of any United States Letters Patent or infringement of any trademark, whether registered or not registered by reason of Purchaser’s purchase, use, or subsequent sale of the goods furnished by Seller); (ii) any breach of these Terms by Seller; or (iii) any other failure by Seller to perform hereunder.  The indemnification obligation under this Section shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable to Purchaser under workers’ compensation acts, disability benefit acts, or other employee benefit acts (“Released Claims”).  The provisions of this Section shall survive the expiration or earlier termination of these Terms.  Seller shall not enter into any settlement affecting an Indemnitee without the prior written consent and approval of such Indemnitee.  If Seller fails or refuses, for any reason, to assume the defense and indemnity obligations set forth in these Terms, or to prosecute the defense of a Released Claim, Purchaser and/or an Indemnitee shall have the right to assume and prosecute such defense with counsel of its own choosing, and Seller shall be liable for the full cost and expense of the defense and/or settlement of any such claim, demand, action, or proceeding.  Purchaser and/or Indemnitee shall have the right to use legal representation of its own selection and at its own expense to participate in Seller’s defense of a Released Claim, and/or independently resolve any such claim asserted against it.

10. Changes: Purchaser will have the right to make changes to the Order, including changes to drawings, designs, configurations, specifications, quantities, methods of shipment or packing and delivery schedules or location of delivery. If any such changes cause an increase or decrease in the cost of or the time required for the performance of any work under the Order, an equitable adjustment will be made in the contract price or delivery schedule, or both, and the Order will be modified in writing accordingly. Any claim by the Seller for adjustment must be in a detailed writing and delivered to Purchaser within five (5) days after the date Seller receives notification of change. Any change will be authorized only by a duly executed amendment to the Order.

11. Compliance with Laws:Seller represents and warrants that it is in compliance with and all goods and/or services supplied hereunder have been produced or provided in compliance with the applicable provisions of all federal, state, or local laws or ordinances and all related lawful orders, rules and regulations. Seller shall comply with any provisions, representations, or agreements, or contractual clauses required to be included or incorporated by reference or operation of law in any Order. Seller shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion, or delivery of any good and/or service.

12. Confidential or Proprietary Information: Each Party acknowledges that it may receive non-public information and trade secrets (collectively, “Confidential Information”) from the other Party in the course of performing the obligations set forth in these Terms. Confidential Information will be deemed to include any information either marked as “Confidential” or which, under the circumstances, ought to be treated as confidential. Each Party agrees to maintain the secrecy of the other Party’s Confidential Information and agrees not to use it except as required to perform its obligations under this Agreement and not to disclose it to anyone other than employees and representatives with a need to know, except as may be required by applicable law, or by court order.  Each Party agrees to take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, to keep confidential the Confidential Information.  Notwithstanding the above, Confidential Information will not include any information that (a) is publicly available at the time of disclosure or subsequently becomes publicly available through no fault of the receiving Party; (b) became known to the receiving Party prior to the disclosing Party’s disclosure of such information to the receiving Party; (c) became known to the receiving Party from a source other than the disclosing Party other than by breach of an obligation of confidentiality owed to the disclosing Party; or (d) is independently developed by the receiving Party.  The provisions of this Section shall survive the termination or expiration of this Agreement.

13. Insurance: During the pendency of these Terms, Seller agrees to maintain (i) all risk property damage insurance with limits of not less than the greater of: (y) the replacement value of the goods under the Order, or (z) One Million ($1,000,000) Dollars per occurrence and in the aggregate; (ii) Worker’s compensation and disability benefits insurance, and employers’ liability insurance complying with the laws of California; (iii) commercial general liability (“CGL”) insurance, including, but not limited to, coverage for products liability and breach of warranty both express and implied with combined single limits of at least One Million ($1,000,000) Dollars per occurrence and in the aggregate, and at least Five Million ($5,000,000) Dollars in excess or umbrella coverage issued on a follow-form basis to the CGL policy, and (iv) commercial automobile liability insurance including all owned, non-owned and hired vehicles with $1,000,000 limit of liability for bodily injury and property damage combined single limit per occurrence; all as unless otherwise specified and expressly agreed to in writing by Purchaser. All insurance policies provided for by this Section shall (i) be maintained at Seller’s sole cost and expense, (ii) be written by a nationally recognized insurance company authorized and qualified to do business in the State where the Site is located and rated “A-VIII” or better by A. M. Best & Company, (iii) be primary and non-contributory, (iv) include a waiver of subrogation in favor of Purchaser, and (v) (except for Worker’s compensation and employer’s liability insurance) name Purchaser as additional insureds thereunder. Evidence of such insurance coverage, as requested by Purchaser, shall be delivered to Purchaser contemporaneous with Seller’s acceptance of these Terms. If Seller fails to comply with the provisions of this Section, Purchaser shall have the right but not the obligation, to terminate the Order.  Notwithstanding anything to the contrary set forth herein, the risk of loss or damage to the goods identified in the Order shall be and remain with Seller until the time of acceptance of conforming goods by Purchaser hereunder.  All shipments shall be insured for full value of goods therein. Seller accepts full responsibility for financial reimbursement to Purchaser for all materials, lost, or damaged and not insured.

14. Termination:Purchaser may terminate all or any part of the Order for convenience at any time by written notice to Seller. Upon such termination, Purchaser’s liability will be limited to reasonable termination charges mutually agreed by Seller and Purchaser, provided that Seller must specify any proposed charges in writing within fifteen (15) days after termination. The Order shall terminate automatically, without notice, if Seller becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors.

15. Force Majure: Purchaser will not, under any circumstances, be liable for any delay in or default of any of its obligations hereunder when such delay or default is directly or indirectly caused by or in any manner arises out of any cause beyond its reasonable control and at no fault of its own, including, but not limited to, fire, flood, accident, act of God, war, embargo, strike, material or supply shortages, transportation delays, epidemic, pandemic, diseases, or quarantine, or measures of any governmental authority relevant to the aforementioned. Upon occurrence of such event, Purchaser agrees to notify Seller as soon as possible, and dates for Purchaser to complete performance under these Terms will be automatically extend for a period equal to the duration of the event and at a time that is reasonably practicable to resume performance.

16. Dispute and Governing Law: The Parties recognize that a bona fide dispute may arise under these, which may relate to either Party’s rights or obligations hereunder. Each Party shall use commercially reasonable efforts to resolve, in good faith, any dispute or claim arising out of or related to these Terms before resorting to arbitration. Any dispute, claim, or controversy arising out of or relating to this Agreement shall be determined by arbitration in San Diego County, California before one (1) arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered only in the state or federal courts located in San Diego County and then may be domesticated in sister states or foreign jurisdiction for the purposes of judgment collection. The Section shall not preclude parties from seeking provisional remedies in aid of arbitration from a court; however, in such a case, the sole and exclusive venue shall be the state or federal courts located in San Diego County, California. These Terms shall be deemed to have been executed in Carlsbad, California at the address of Purchaser set forth below and shall be governed and construed in accordance with the laws of the United States and the State of California.

17. Severability: If any provision of these Terms shall be held to be unenforceable by a court of appropriate jurisdiction, then such provision shall be enforced to the maximum extent permitted by applicable law and the remaining provisions of the Terms shall remain in full force and effect.

18. Entire Agreement: These Terms, in conjunction with the Order, constitutes the entire agreement between Purchaser and Seller relating to the subject matter and supersedes all prior or simultaneous representations, discussions, negotiations, or agreements, whether written or oral. These Terms may not be modified, except in writing and signed by both Seller and a duly authorized representative of Purchaser. To the extent these Terms conflict with the terms of any other documentation provided by Purchaser or Seller, these Terms shall control.