SALE AGREEMENT
This Sale Agreement (this “Agreement”) is made by and between Qosina Corp. (“Qosina”) and the person or entity (“Customer”) executing a purchase order, order form, acknowledgment or other transactional document that makes reference to this Agreement (any of the foregoing a “Transaction Document”; for the avoidance of doubt, such term does not include any Confirmation (as defined below). This Agreement is a binding legal agreement.
1. Transaction Documents. Qosina offers the items (“Products”) described in its print catalog (the “Catalog”) and on https://www.qosina.com (or such other URLs or web addresses as may be made available by Qosina from time to time; the foregoing collectively, the “Sites”) for sale at the prices set forth in the Catalog or on the Sites, as the case may be. Qosina may revise prices (“Prices”) for Products at any time. No Transaction Document issued by either party shall modify, amend, or supersede the provisions of this Agreement. Further, no browsewrap, clickwrap or similar instrument will modify or affect this Agreement. This Agreement may only be modified or amended by a writing duly executed by an authorized representative of each party hereto or as otherwise permitted under this Agreement. All Transaction Documents are accepted by the parties solely for the purpose of specifying the quantities, prices, and delivery schedules of the Products ordered, and any additional or different terms or conditions contained therein are null and void. Notwithstanding anything herein to the contrary, Transaction Documents may only set forth terms and conditions for subject matter not covered by this Agreement (“Special Terms”) provided that (a) such Special Terms shall govern only the transaction contemplated by relevant Transaction Documents, (b) such Special Terms do not conflict with the provisions of this Agreement, and (c) to the extent any Special Terms conflict with the provisions of this Agreement, the provisions of this Agreement shall control.
2. Placing Orders. To place an order for Products, Customer may transmit to Qosina, whether orally, in writing or by the submission of Transaction Documents, the quantity and type of Products Customer wishes to purchase. Orders will become binding when Qosina transmits an order confirmation (each a “Confirmation”) to Customer; provided, however, Qosina, in its sole discretion, may require Customer to submit to Qosina’s credit approval process before issuing any Confirmation or processing or shipping any Order in connection therewith. The details set forth on each Confirmation shall be definitive and shall control over any conflicting terms in any Transaction Documents or this Agreement (but only for the purposes of interpretation of that specific Confirmation). All Confirmations incorporate this Agreement by reference and are subject to all applicable provisions hereof. Confirmations may only be modified by further Confirmations issued by Qosina or by a writing duly executed by an authorized representative of each party hereto.
3. Payments. All invoices are due and owing upon delivery and must be paid within thirty (30) days of the date thereon. Any amounts outstanding subsequent to the foregoing thirty (30) day period shall be subject to a service charge of one and a half percent (1.5%) per month, or the highest allowable interest rate under applicable law, whichever rate is higher. Qosina may suspend shipments to Customer if Customer is not fully-up to date on payment obligations to Qosina hereunder. Customer is responsible for paying all taxes set forth on any invoice, including any sales, use, excise, valued-added, federal, state, local taxes or other surcharges or assessments. Customer will reimburse Qosina for all costs of collection hereunder, including reasonable attorneys' fees, court costs, and any other expenses incurred by Qosina in enforcing its rights under this Agreement.
4. Shipment; Title Transfer; Risk of Loss. Unless otherwise set forth in an applicable Confirmation, risk of loss and title to all Products purchased from Qosina passes to Customer upon Qosina’s delivery of the Products to the carrier (FOB carrier – Incoterms 2025). Customer may select to use a FOB carrier selected by Qosina or provide Qosina with its own preferred FOB carrier. All costs of shipping and handling shall be either paid directly by Customer through Customer’s Fedex account or Customer shall reimburse Qosina for any shipping and handling cost as itemized on the applicable Confirmation.
5. International Shipments. International Shipments are sent DAP (Incoterms 2025). If Customer is not located within the United States, Customer is responsible for compliance with all Export Laws and laws pertaining to import of Products in the jurisdictions to which Customer has directed shipments of Products hereunder, including determination of relevant Harmonized Tariff Schedule (“HTF”) and Export Control Classification Number (“ECCN”) classifications. “Export Law” means any law (statutory, common, or otherwise), constitution, treaty, convention, ordinance, equitable principle, code, rule, regulation, resolution, decree, executive order, or other similar act enacted, adopted, promulgated, or applied by any governmental authority, related to the export or re-export of goods, software and technology, including the U.S. Arms Export Control Act (22 U.S.C. Chapter 39), the Export Administration Act (50 U.S.C. app. §§ 2401-2420), the International Emergency Economic Powers Act (50 U.S.C. §§ 1701-1706), the Foreign Trade Statistics Regulations (15 C.F.R. Part 30), the U.S. Export Administration Regulations (15 C.F.R. Parts 730-774), U.S. International Traffic in Arms Regulations (22 C.F.R. Parts 120-129), and 31 C.F.R. Parts 500-599 and any applicable regulations promulgated or issued (and as amended from time to time) by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) and any successor organization thereto.
6. Tariff Fluctuations. Prices may be subject to the tariffs, duties, and taxes (collectively, “Tariffs”) applicable at the time of shipment. Any increases in Tariffs that affect the cost of Products, subsequent to the date of any Confirmation, are the sole responsibility of Customer. Accordingly, Qosina may, from time to time and in its sole discretion, issue surcharges in order to mitigate and/or recover increased operating costs arising from or related to, without limitation: (a) foreign currency exchange variation, (b) increased cost of third-party supplies, labor, and/or Products, (c) impact of government Tariffs or other actions and (d) any condition that increases Qosina’s costs, including without limitation increased labor, freight, material or supply costs or increased cost due inflation (collectively, “Surcharges”). Any Surcharges, as well as the timing, effectiveness, and method of determination thereof, will be separate from and in addition to any changes to Prices that are affected by any other provision in this Agreement.
7. EXCLUSIVE REMEDIES.
a. Incorrect Shipments. Customer shall notify Qosina of any mislabeled Products, or incorrect numbers of Products, within ten (10) days of Customer’s receipt of applicable shipment. Qosina and Customer will cooperate with respect to (i) return of mislabeled and excess Products and (ii) delivery of additional Products if relevant original shipments contained an insufficient number of Products. Customer may opt to keep excess Products, in which case Qosina will invoice Customer for such Products pursuant to all applicable provisions hereof. THE REMEDIES SET FORTH IN THIS SECTION ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIM OR DISPUTE ARISING FROM OR RELATED TO INCORRECT SHIPMENTS, INCLUDING THAT ANY SHIPMENT MATERIALLY DEVIATES FROM ITS APPLICABLE PACKING LIST FOR ANY REASON.
b. Returns. If, within ten (10) days of Customer’s receipt of Products, Customer reasonably determines that the Products materially deviate from applicable written specifications, Customer will send a rejection notice to Qosina and Qosina will supply Customer with an RGA (return goods authorization) number. Customer will ship such Products back to Qosina at Customer’s expense and will comply with all of Qosina’s reasonable instructions and procedures in connection therewith. All Products must be in the original packaging and sealed cartons, to the extent practicable. All returned Products must include a packing list and must be shipped freight prepaid. If, upon inspection by Qosina, Qosina confirms that such Products materially deviate from applicable written specifications, Qosina will either replace the rejected Products, or issue a credit therefore, at Qosina’s sole determination. No cash refunds will be made. THE REMEDIES SET FORTH IN THIS SECTION ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIM OR DISPUTE ARISING FROM OR RELATED TO PRODUCTS, INCLUDING THAT ANY PRODUCT MATERIALLY DEVIATES FROM ITS APPLICABLE WRITTEN SPECIFICATIONS FOR ANY REASON.
8. Force Majeure. Qosina will not be liable to Customer, and will be relieved of any such relevant obligation, for any delay, interruption or any failure to perform hereunder to the extent attributable to causes beyond Qosina’s reasonable control, including trade embargo, material tariff fluctuation, natural disasters, wars, riots, insurrection, terrorism, cybersecurity incident, internet disruptions, pandemics, strikes and labor disputes, governmental decrees or actions.
9. Confidentiality. “Confidential Information” means any non-public information disclosed by a party (including such party’s personnel and agents, together as “Discloser”) to the other party (including such party’s personnel and agents, together as “Recipient”) hereunder, either directly or indirectly, whether disclosed orally, in writing, by inspection of goods or materials, or otherwise. Recipient shall not use Discloser’s Confidential Information for any purpose other than in furtherance of this Agreement and the activities described herein or disclose such Confidential Information to any third party except as otherwise permitted hereunder. Recipient may disclose Confidential Information of Discloser only to those employees or consultants who have a need to know such Confidential Information and who are bound to retain the confidentiality thereof under provisions (including provisions relating to nonuse and nondisclosure) no less restrictive than those required by Recipient for its own Confidential Information. Recipient shall maintain Confidential Information of Discloser with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but no less than reasonable care under the circumstances, and Recipient shall be responsible for any act or omission of such personnel. Recipient shall promptly advise Discloser in writing of any misappropriation or misuse of Discloser’s Confidential Information of which Recipient becomes aware. This Section shall not prevent Recipient from disclosing Confidential Information of Discloser to the extent required by a judicial order or other legal obligation, provided that, in connection therewith, Recipient shall promptly notify Discloser to allow intervention (and shall cooperate with Discloser) to contest or minimize the scope of the disclosure (including application for a protective order). Each party may disclose the provisions of this Agreement as required by the applicable securities laws, including requirements to file a copy of this Agreement (redacted to the extent reasonably permitted by applicable law) or to disclose information regarding the provisions hereof or performance hereunder to applicable regulatory authorities. Further, each party may disclose the provisions of this Agreement: (i) in confidence, to legal counsel; (ii) in confidence, to accountants, banks and financing sources and their advisors; and (iii) in connection with the enforcement of this Agreement or any rights hereunder, provided that, in each case, Recipient remains responsible for such third parties’ compliance with the confidentiality obligations hereunder. Confidential Information does not include information which: (A) is already known to Recipient at the time of disclosure; (B) becomes publicly known and made generally available through no wrongful act or inaction of Recipient; (C) is rightfully received by Recipient from a third party without a duty of confidentiality; (D) is authorized for disclosure by Discloser prior to such applicable disclosure; or (E) is independently developed by Recipient without reliance on Discloser’s Confidential Information. Upon Discloser’s request, each party (as Recipient) shall deliver to Discloser, or destroy all of Discloser’s Confidential Information embodied in tangible (including electronic) form and certify in writing to Discloser that all such Confidential Information has been returned or destroyed. The provisions of the foregoing sentence shall not apply to Confidential Information incidentally stored in a party’s automated back-up systems, provided that such Confidential Information be held in accordance with the provisions of this Agreement and will be deleted pursuant to the applicable policies governing such systems. The provisions of this Section shall survive the termination or expiration of this Agreement.
10. DISCLAIMERS; WARRANTIES. CUSTOMER IS SOLELY AND EXCLUSIVELY RESPONSIBLE FOR SELECTION OF PRODUCTS AND FOR ANY DETERMINATIONS REGARDING THEIR FITNESS FOR ANY PARTICULAR USE. NOTWITHSTANDING ANY ORAL OR WRITTEN INFORMATION, OPINIONS, EVALUATIONS, CATALOG DESCRIPTIONS OR CONSULTATIONS OF ANY KIND FURNISHED BY QOSINA, CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT IT IS CUSTOMER’S SOLE RESPONSIBILITY TO SELECT AND EVALUATE THE PRODUCTS FOR USE IN THEIR INTENDED APPLICATIONS. QOSINA DISCLAIMS AND EXCLUDES ALL WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THIS AGREEMENT, THE PRODUCTS OR ANY OTHER TRANSACTIONS CONTEMPLATED HEREBY, OR WITH RESPECT TO THE ACCURACY, CURRENTNESS OR COMPLETENESS OF THE INFORMATION PROVIDED BY QOSINA, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION GIVEN BY QOSINA, ITS EMPLOYEES OR AGENTS SHALL CREATE ANY WARRANTY HEREUNDER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PRODUCTS ARE PROVIDED “AS-IS.” Customer assumes all liability and responsibility for selection and use of Products by Customer or by any third party that purchases or receives the Products (or products incorporating the Products) from Customer or Customer’s transferees (any of the foregoing as “Further Users”), and Qosina is not and shall not be liable or responsible in any way for any such selection or use. Customer will use, and will instruct its Further Users to use, any Products purchased from Qosina in a safe manner and in accordance with all applicable governmental rules and regulations. Exposure of Products to other materials, chemicals, sterilization or temperature extremes may cause changes in the Products material composition, rendering them unsuitable for use. Some Products contain latex, which may cause allergic reactions in some individuals. CUSTOMER ACKNOWLEDGES AND QOSINA DISCLAIMS ANY RESPONSIBILITY FOR THE FOREGOING. Customer represents and warrants that none of its owners (that hold, directly or indirectly, a fifty percent (50%) or greater interest in Customer, affiliate or subcontractor are blocked pursuant to any OFAC Regulations or appear on: OFAC's list of blocked persons pursuant to Executive Order or OFAC Regulations, as amended from time to time; OFAC's list of Specially Designated Nationals, as amended from time to time; or other lists of prohibited or blocked persons maintained by OFAC or by Executive Order, as amended from time to time.
11. INDEMNITY. Customer will indemnify, defend and hold harmless Qosina and its subsidiaries, divisions, and affiliates, and the owners, members, officers, managers, directors, principals, employees, agents and representatives of each of the foregoing, and each of the foregoing entity’s successors and assigns, from any and all losses, claims, damages, liabilities, costs, and expenses (and all other actions, suits, proceedings, or claims in respect thereof), including reasonable attorney’s fees, and any legal or other expenses incurred by Qosina (including in giving testimony or furnishing documents in response to a subpoena or otherwise, the cost of investigating, preparing or defending any such action, suit, proceeding, or claim, whether or not in connection with any action, suit, proceeding or claim for which it is a party), as and when incurred, directly or indirectly, caused by, relating to, based upon or arising out of any third party claim pertaining to use of, exploitation of or reliance on the Products. The provisions of this Section shall survive the termination or expiration of this Agreement.
12. LIMITATION OF LIABILITY. IN NO EVENT SHALL QOSINA BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR INFORMATION SYSTEM), EVEN IF QOSINA HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL QOSINA’S TOTAL AGGREGATE LIABILITY, UNDER ANY THEORY OF LIABILITY (WHETHER ARISING UNDER CONTRACT, TORT, WARRANTY, PRODUCTS LIABILITY, STRICT LIABILITY, INDEMNITY OR OTHERWISE), EXCEED THE AMOUNT PAID TO QOSINA UNDER THE CONFIRMATION GOVERNING THE PURCHASE OF THE PRODUCT GIVING RISE TO SUCH LIABILITY. IF CUSTOMER IS A CALIFORNIA RESIDENT, CUSTOMER WAIVES ITS RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
13. Binding Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement, the transactions contemplated hereby, the Products or the breach, termination, enforcement, interpretation or validity this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in New York County in the State of New York before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures or pursuant to JAMS’ Streamlined 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.
14. Applicable Law; JURY WAIVER. This Agreement shall be governed by the internal laws of the State of New York as if it fully executed, delivered and performed therein, without any reference to any conflict of law doctrine. Any dispute arising from or relating to this Agreement, including pertaining to arbitrability, the Products or any other transaction contemplated hereby that fails to be subject to binding arbitration set as forth in Section 13, for any reason, shall be adjudicated in any state or federal court in New York County, New York, and the parties hereto irrevocably consent to exclusive jurisdiction and venue in such courts. Each party hereto irrevocably waives any objection of forum non conveniens pertaining to the forum selection set forth herein. EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT, THE PRODUCTS OR ANY TRANSACTION CONTEMPLATED HEREBY. THIS WAIVER APPLIES TO ANY AND ALL CLAIMS, DEFENSES, COUNTERCLAIMS, OR THIRD-PARTY CLAIMS, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY TO ENTER INTO THIS AGREEMENT AND THAT EACH PARTY HAS HAD THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL REGARDING THIS WAIVER.
15. Claim Limitation. Each party hereby waives any and all rights to bring any claims or actions arising from or related to this Agreement, the Products or any other transaction contemplated hereby, in any forum more than one (1) year after the date on which such claim arises.
16. Notice. Any notice or communication permitted or required by this Agreement shall be deemed effective when personally delivered, three (3) days after such notice deposited registered or certified in the United States mail or deposited guaranteed delivery with a courier such as FedEx or UPS, properly addressed to the appropriate party at the mailing address set forth on applicable Transaction Documents, or effective on the date such notice is sent via electronic mail to the email address set forth on applicable Transaction Documents, unless the sending party receives a bounce back or out of office response.
17. Miscellaneous. Customer may not assign this Agreement without the prior written consent of Qosina and any such attempted assignment shall be null and void ab initio. Each party has had ample opportunity to consult with an attorney regarding this Agreement. The obligations of the parties shall be binding on and inure to the benefit of their respective heirs, successors, assigns, and affiliates. This Agreement may be amended only by a subsequent agreement in writing. No clickwrap, browse-wrap or similar agreement will modify this Agreement. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. No waiver hereunder shall be binding unless executed in writing by a duly authorized representative of the party to be bound thereby. Except as otherwise expressly set forth herein, all remedies, rights, undertakings, obligations and agreements contained in this Agreement will be cumulative and none of them, nor the exercise or failure to exercise any of them, will be in limitation of any other remedy, right, undertaking, obligation, or agreement of either party. This Agreement shall not be construed as creating a joint venture or other business relationship. This Agreement is for the sole benefit of the parties hereto and there are no third-party beneficiaries hereto. When the authorized representative of any party signs this Agreement, a duplicate copy or facsimile of such signed Agreement shall have the same force and effect as one bearing an original signature. This Agreement may be executed in counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. The captions and section headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement. The construction of this Agreement shall not take into consideration the party who drafted or whose representative drafted any portion of this Agreement, and no canon of construction shall be applied that resolves ambiguities against the drafter of a document. Neither the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) nor the Uniform Computer Information Transactions Act (“UCITA”) shall apply to this Agreement or its interpretation. Whenever the context so requires, each pronoun or verb used herein shall be construed in the singular or the plural sense and each capitalized term defined herein and each pronoun used herein shall be construed in the masculine, feminine or neuter sense. Whenever the words “include”, “includes” or “including” are used, they are deemed to be followed by the words “without limitation.” The words “herein,” “hereof” and other words of similar import refer to this Agreement as a whole and not to any particular section, subsection, paragraph, clause, or other subdivision. The word “or” is not exclusive. The symbol “$”, and all references to cash amounts, refer to United States dollars. This Agreement (including documents incorporated herein by reference) constitutes the entire agreement of the parties hereto and supersedes any prior written or oral agreements with respect to the subject matter hereof. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision. To the greatest extent possible, any invalid provision shall be automatically deemed modified to the least extent necessary to render it a valid provision which most closely approximates the intent and effect of the invalid provision and, together with all other provisions of this Agreement, shall continue in full force and effect. Any provisions of this Agreement that expressly continue or are intended to operate after the term of this Agreement shall survive the termination or expiration of this Agreement for any reason.