Terms & conditions

Updated November 2018


1. General. These Terms and Conditions shall govern the sale of Hero's products to Buyer.  Buyer shall be bound by these Terms and Conditions upon the earliest to occur of: (i) Buyer's written agreement to be bound hereby, (ii) Buyer's payment of any portion of Hero's invoiced amount, or (iii) Buyer's acceptance of delivery of any product from Hero. These Terms and Conditions take precedence over any additional or different terms or conditions of Buyer (including, without limitation, any purchase order attached hereto), to which notice of objection is hereby given.  In the event of a conflict between these Terms and Conditions and any such additional or different terms or conditions of Buyer, these Terms and Conditions shall control.  In no event shall Hero's delivery of any product hereunder be deemed or construed as an acceptance of any additional or different terms or conditions of Buyer.

2. Price and Payment Terms. Unless otherwise agreed to in writing by Hero, (i) all prices quoted are F.O.B. Hero's designated shipping point, (ii) all payments shall be in U.S. Dollars, and (iii) Buyer agrees to pay all invoices no later than thirty (30) days after the invoice date.  The price quoted does not include finishing of molded parts, other than the polish derived directly from the molding process.  All overdue accounts shall accrue a service charge of 1.5% of the unpaid balance per month, compounded annually (or such lesser rate as may be permitted by law), until the account is paid in full.  Hero will also charge Buyer a fee equal to the lesser of $50 or 5% of the invoice amount for each time any Buyer check does not clear Buyer's bank due to insufficient funds.  Regardless of any prior approval of credit for an order, Hero may at any time require full or partial payment in advance.  Hero may at any time and without liability suspend performance until receipt of any requested advance payment or security satisfactory to Hero.  Until payment in full of all amounts owed to Hero by Buyer hereunder, Hero shall have a purchase money security interest in all products, materials and works-in-progress of Buyer, including all additions and replacements and proceeds thereof.  Buyer agrees to execute, file and deliver, and authorizes Hero to execute and file, any UCC-1 financing statements in any jurisdictions as Hero deems appropriate to maintain and perfect its security interest hereunder.

3. Delivery.  Hero shall use its commercially reasonable best efforts to deliver product in accordance with any reasonably requested delivery schedule.  Where strict compliance with such requested delivery schedule is not commercially reasonably possible, Hero will make delivery as soon as commercially reasonably possible.  Hero shall not be liable for delay in delivery or for failure to give notice of any delay.  Buyer acknowledges that Hero may ship up to plus or minus 10% of the quantity of product ordered without obtaining any approval from Buyer, and Buyer agrees such shipment shall be considered complete and Buyer agrees to pay Hero in full for all product delivered, including all product delivered in excess or short of the ordered amount.  Buyer shall have no right to delay the delivery or shipment date, and Hero may charge storage charges for any goods which it holds for Buyer.

4. Taxes and Other Charges.  Hero's prices are exclusive of any federal, state, local or foreign sales, use, withholding excise or similar taxes or any United States or foreign customs duties or other charges that may be assessed, charged, imposed or levied by any public authority on the manufacture, sale, delivery, use or other handling of the products sold hereunder.  Any such taxes or charges shall be paid by Buyer.

5. Title; Risk of Loss; Shipment.  Title, risk of loss and damage shall pass upon delivery of the product purchased hereunder to common freight carrier or to Buyer's representative at Hero's designated F.O.B. shipping point.  Buyer shall (i) reimburse Hero for all shipping charges paid by Hero plus an administration surcharge of 20% of such charges or (ii) directly arrange for and pay its own shipping charges, provided that Buyer provides Hero with Buyer's shipping account information prior to shipping.  All product shall be packed for shipment and storage in accordance with standard commercial practices.  In no event shall Hero assume any liability in connection with shipment, nor shall the common carrier be deemed an agent of Hero.  Any claims for damage or loss in transit must be made against the carrier by Buyer.

6. Inspection / Acceptance of Goods / Returns / CREDITS.  Buyer shall inspect all goods and samples within fifteen (15) days after receipt by Buyer.  All claims for shortages, defects, or other non-conformities shall be made in writing by Buyer within fifteen (15) days after receipt by Buyer.   Failure to notify Hero in writing of any claim within such fifteen (15) day period shall constitute an irrevocable acceptance of the goods or samples (as applicable) and an admission by Buyer that such goods or samples comply fully with all terms, conditions and specifications of the corresponding order.  Credit will not be allowed on any parts which have been altered or defaced in any manner or are otherwise not in saleable condition.  Hero’s sole liability for any product which is defective or materially differs from the applicable specifications is, at Hero's option, the repair or replacement of such product or return of such product for credit in the amount paid to Hero for such product.  Products shall be deemed acceptable if they conform in all material respects to samples accepted (or deemed accepted) by Buyer without regard to whether such sample varies from the applicable specifications. Hero shall in no event be liable for consequential or incidental damages nor more than the amount actually paid by Buyer to Hero for the merchandise sold hereunder. Buyer shall have no right to return any goods without Hero's consent (as evidenced by a Return Material Authorization ("RMA") number issued by Hero to Buyer).  If Hero (in its sole discretion) issues to Buyer an RMA number to return any goods, Buyer shall pay Hero a restocking fee equal to 20% of the total costs of such goods.

7. Limited Warranty / Disclaimer of Warranties.  Unless otherwise agreed to in writing by Hero, Hero hereby warrants that all products will conform in all material respects to the applicable product specifications as determined in accordance with industry standards, as published from time to time by The Society of the Packaging Industry (the "Minimum Industry Quality Standards").  This warranty extends to only Buyer and not any subsequent purchaser or user of the products.  Hero will, at its option, replace, repair or issue Buyer a credit for any product which does not meet or exceed the Minimum Industry Quality Standards.  No further warranty of any kind is express or implied.  Hero hereby expressly disclaims all other warranties, express or implied, with respect to all product delivered hereunder, including but not limited to any implied warranty (i) of merchantability, (ii) of fitness for a particular purpose, and (iii) arising out of course of dealing, custom or usage of trade.  Buyer's remedies with respect to the sale, delivery or resale of any product delivered by Hero hereunder, whether in contract, in tort (including negligence, products liability and strict liability), under any warranty or otherwise, shall be exclusively as set forth above. Under no circumstances shall Hero have liability hereunder for any damages exceeding the amount actually paid by Buyer hereunder, or for incidental, indirect, special, punitive or consequential damages, including but not limited to for loss of profits or revenue, loss of use, or claims of buyer's customers, notwithstanding (a) that Hero may have been advised of the possibility of such damages, losses or claims or (b) the failure of any remedy of its essential purpose.  Under no circumstances shall any failure of Hero to replace, repair or credit Buyer's account for any defective product affect the foregoing disclaimer of consequential damages. Hero in no way warrants that the products sold hereunder will be compatible for use with any other product or component, or that the products sold hereunder will be suitable for Buyer's or any third party's intended use, and assumes no responsibility therefor.

8. Force Majeure.  Hero shall not be liable for failure to perform its obligations hereunder due to events beyond its reasonable control, including, but not limited to, strikes, parts or materials shortages, manufacturing difficulties, riots, wars, actual or threatened acts of terrorism, fires, acts of God, delays of carriers or suppliers, and acts in compliance with any applicable law, regulation or order (whether valid or invalid) of any governmental body.

9. Assignment; Amendment.  Buyer may not assign its rights or obligations hereunder without Hero's prior written consent, and any assignment in violation of this provision shall be null and void.  No change or modification of any of these Terms and Conditions shall be valid or binding on Hero or Buyer unless such change or modification is in writing and signed by an authorized representative of both parties.

10. Indemnity.  Buyer acknowledges that it is Buyer's responsibility to ensure that any final product incorporating Hero's goods is manufactured, packaged, used and sold in a safe and careful manner.  Buyer assumes all risk associated with the use of Hero's products, and Buyer shall indemnify, hold harmless and defend Hero and its directors, officers and employees from and against any claim, action, loss or judgment (including attorneys' fees) which arise as a result of the use, manufacture, sale, handling or other distribution of Hero's products, including any products incorporating any Hero product.

11. Period for Commencement of Claim.  Notwithstanding any statute of limitations to the contrary, in no event shall Buyer be entitled to commence any action for breach of any warranty, express or implied, or for any loss or damage related to the services or goods sold by Hero more than one year after the date of Buyer's receipt of such services or goods.

12. Governing Law; Jurisdiction and Venue.  These terms and conditions shall be governed by and construed in accordance with California law without regard to any conflict of laws principles.  In the event of any litigation hereunder, the parties submit to the exclusive jurisdiction and venue of the Superior Court of California for the County of San Francisco or the United States District Court for the Northern District of California, and Buyer consents to the personal jurisdiction of and laying of venue in any such court, and waives any objection based on lack of personal jurisdiction or forum non conveniens.

13. Attorneys' Fees.  In the event Hero initiates a collection action hereunder, Buyer shall reimburse Hero for all of its costs (including, without limitation, all of its attorneys' fees and/or collection agency fees) incurred in connection therewith.  In the event any party initiates any legal action regarding these Terms and Conditions, the prevailing party in any such action (including, without limitation, any mediation or alternative dispute resolution the parties may agree upon) shall be entitled to recover its reasonable attorneys' fees and costs. 

 14. Severability.  If any provision of these Terms and Conditions is held to be unenforceable or invalid, the remaining provisions shall remain in full force and effect.