Introduction

This Terms and Conditions of Sale Policy applies to SKYE International, Inc. products and services purchased directly from SKYE International, Inc.. As all policies herein are subject to change, check our website at www.skye-betterliving.com for the latest policy. If you have questions about this policy please contact us at 1-877-888-SKYE.

Effective date: September 1, 2009.

Standard terms and conditions of sale

Goods sold by SKYE International, Inc. (hereinafter “Skye”) are expressly subject to and conditioned upon the terms and conditions set forth below. Any different or additional terms set forth by Buyer, whether in Buyer’s purchase order or another communication, are expressly objected to and will not be binding on Skye unless agreed to in writing by an authorized officer of Skye. All periods of days set forth herein are calendar days unless otherwise stated.

Sales and payment terms. Unless otherwise agreed in writing by Skye, terms are net 30 days. Past due accounts will be subject to the maximum legal rate of interest or 1.5% per month, whichever is less. If a delinquent account is sent to collections, Buyer is responsible for all collection and attorney fees. All payments are to be made in US dollars. If a Buyer’s account becomes past due, Skye may ship products on a cash in advance basis, or may refuse shipments until the account is paid in full.

Acceptable forms of payment. All remittances must be in a single payment in the full amount of the invoice (adjusted for any debit memos) and must be in accordance with the following requirements:

• Wire or electronic fund transfer (referencing invoice number) and Buyer must be the originator of wire.
• Buyer company check (drawn on company account with company name).
• Irrevocable letter of credit (referencing invoice number).

Third-party checks, bank checks, and foreign drafts will be accepted only if approved in advance in writing by the CFO of Skye and must have accompanying documentation that references invoices being paid.

Security interest. Buyer hereby grants to Skye, and Skye reserves, a purchase money security interest in each product sold by Skye to Buyer in the amount of its purchase price. Any such security interest shall be satisfied by payment in full of the invoiced amount. Buyer agrees to execute any and all such documents, including financing statements, as may be necessary for Skye to perfect such security interest. Notwithstanding the foregoing, a copy of this Agreement may be filed on behalf of Skye with the appropriate authorities at any time after signature by Buyer as and for a financing statement.

Prices. Products will be invoiced at prices in effect as of date of shipment (invoice date). Prices are not necessarily valid for other current and future sales. Any and all invoice errors must be disputed within 30 days of invoice date and are subject to correction by Skye. Prices exclude any present or future federal, state, provincial, local, or other governmental taxes, duties, and tariffs applicable to the sale, transportation, or use of products purchased, all of which taxes, duties, and tariffs shall be paid by Buyer. International sales are subject to applicable transportation and import duties, licenses, and fees, or as agreed to by the purchase order. All prices are FOB shipping point.

Change in buyer’s financial condition. Skye reserves the right to cancel an order or require full or partial payment if (1) solvency of Buyer is in question, (2) Buyer files for bankruptcy, (3) there is an appointment of trustee or receiver for Buyer, or (4) execution of Buyer by creditors. Skye also reserves the right to cancel Buyer’s credit at any time.

Delivery, title, and risk of loss. All products are shipped F.O.B., point of shipment. Risk of loss shall transfer to the Buyer upon tender of goods to Buyer, Buyer’s representative, or common carrier. The cost of any special packing or special handling caused by Buyer’s requirements or requests shall be added to the amount of the order. If Buyer causes or requests a shipment delay, or if Skye ships or delivers the products erroneously as a result of inaccurate, incomplete or misleading information supplied by Buyer or its agents or employees, storage and all other additional costs and risks shall be borne solely by Buyer. Claims for products damaged or lost in transit should be made by Buyer to the carrier, as Skye’s responsibility ceases upon tender of goods to Buyer, Buyer’s representative or common carrier.

Excusable delays. Skye shall use commercially reasonable efforts to deliver all products ordered by Buyer as soon as reasonably practicable. In the event of interruption of any such delivery due to causes beyond the reasonable control of Skye, including but not limited to fire, labor disturbances, riots, accidents, or inability to obtain necessary materials or components, Skye shall have the right, in its sole discretion and upon oral or written notice to Buyer, to delay or terminate such delivery. Upon receipt of such notice, Buyer shall have the option to change or terminate such orders.

Damages, Shortages and Errors. Claims for damage, shortage or errors in shipping must be reported within one (1) day following delivery to Buyer. Buyer shall have seven (7) days from the date Buyer receives any products to inspect such products for defects and nonconformance which are not due to damage, shortage or errors in shipping and notify Skye, in writing, of any defects, nonconformance or rejection of such products. After such seven (7) day period, Buyer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Buyer shall have no right to reject the products for any reason or to revoke acceptance. Buyer hereby agrees that such seven (7) day period is a reasonable amount of time for such inspection and revocation. Buyer shall have no right to order any change or modification to any product previously ordered by Buyer or its representatives or cancel any order without Skye’s written consent and payment to Skye of all charges, expenses, commissions and reasonable profits owed to or incurred by Skye. Specially fabricated or ordered items may not be canceled or returned, and no refund will be made. The sole and exclusive remedy for merchandise alleged to be defective in workmanship or material will be the replacement of the merchandise subject to the manufacturer’s inspection and warranty.

Recommendations by Skye. Buyer acknowledges that Skye does not make and specifically negates, renounces and disclaims any representations, warranties and/or guaranties of any kind or character, expressed or implied, with respect to (i) the use, design, application, operation, merchantability, physical condition or fitness of any of Skye’s products for a particular purpose, (ii) the maintenance or other expenses to be incurred in connection with the products, (iii) the engineering, design, fabrication work or any other work or service (whether gratuitous or for payment) supplied by Skye and/or its agents, suppliers and employees or (iv) the accuracy or reliability of any information, designs or documents furnished to Buyer; other than technical specifications published from time to time by Skye. Skye neither assumes, nor authorizes any person to assume for it, any other obligation in connection with the sale of its products. Any recommendations made by Skye concerning the use, design, application or operation of the products shall not be construed as representations or warranties, expressed or implied. Failure by Skye to make recommendations or give advice to Buyer shall not impose any liability upon Skye.

Limited warranty.

a. Skye warrants that its products are free from defects in workmanship and materials, and will conform to Skye’s published specifications, subject to the terms of this limited warranty. With respect to any product furnished by Skye, the foregoing shall apply only to failures to meet said warranty that appear within the applicable warranty period set forth in Skye’s applicable published Limited Warranty(as published on our website). The warranty extends only to Buyer and end-user and does not extend to any other party. Skye is not responsible for conditions or applications over which Skye has no control. Defects or problems as a result of such conditions or applications are not the responsibility of Skye. Such conditions include normal wear and tear; catastrophe; fault or negligence of the user or a party other than Skye; improper installation, application, storage, maintenance, or use of products; other causes external to products; or failure to conform to any applicable recommendations of Skye. The warranty does not cover, and Skye does not warrant, batteries of any type used in connection with other products furnished. To the extent that any product includes software or firmware, whether included in a product furnished hereunder or provided separately, Skye warrants that such software/firmware will, at the time of delivery by Skye and for a period of 90 days thereafter, conform in all material respects to Skye’s documentation relating to such software/firmware.

b. If any product fails to meet the limited warranty, Skye shall, at its option, correct any such failure by repairing any defective or damaged parts of damaged product, or make available, FOB shipping point, any necessary repaired or replacement parts. Skye reserves the right to replace any product under warranty with new, refurbished or remanufactured product. Skye will not be responsible for labor costs of removal or reinstallation of products. The repaired or replaced product is then warranted under the terms of the limited warranty for the balance of the term of the warranty or for 90 days, whichever is longer. For any warranty claim, Buyer must contact Customer Service and request authorization to return the product (see “Return Material Authorization” below).

c. The preceding subsections of this limited warranty set forth the exclusive remedies for claims based on any defect, failure, malfunction, or any other performance or nonperformance of any product, whether the claim is in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, and however instituted. Upon expiration of the applicable limited warranty period, any liability of Skye in connection with such exclusive remedies shall terminate, and Buyer and end-user shall have 30 days after the warranty period to give written notice of any defects, failures, malfunctions, or other performance or nonperformance issue that appeared during the warranty period. Except as set forth in the section entitled “Patents,” the foregoing limited warranty is exclusive and in lieu of all other warranties, whether written, oral, implied, or statutory. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY.

Advanced replacement. Advance replacement products are new, refurbished or remanufactured products at Skye’s discretion. Skye will send advance replacement product to replace defective equipment that has failed upon initial install for up to 365 days. Advance replacements will be invoiced at shipment and credited upon receipt of the defective product. Invoices will remain outstanding if the returned product does not qualify under the replacement terms. If the defective product is part of a kit, Buyer shall return only the defective product (i.e., Buyer shall not return the remainder of the kit) and Skye will replace only the defective product through advance replacement. Advanced replacement is not available for custom, special or nonstandard products.

Non-warrantyRepair. Buyer will be charged for all repairs and shipping costs for non-warranty equipment. Payment is accepted by purchase order or credit card. Factory repairs are granted an extended warranty of 90 calendar days from the date of shipment.

Return Material Authorization. Contact a Skye customer service center and request authorization to return the product. If the request is granted, Customer Service will issue a return material authorization (RMA) acknowledgement form. Return the product in the original or equivalent packaging, freight prepaid, to the designated Skye location, with the RMA acknowledgement form attached on the outside of the package. Do not return product for repair, replacement, credit, or restock without prior authorization of Skye. If product is returned without authorization, it will be returned (without repair) to the sender upon receipt at Buyer’s expense. Custom, special or nonstandard products will be returned at Skye’s discretion only.

Credit Returns. No returns for credit or refund will be accepted unless Buyer has obtained a return material authorization as described in the section entitled “Return Material Authorization”. Skye will refund or credit new, standard production items that are unused and in original shipping cartons for a period of 30 days from the original date of shipment; however any returned product is subject to a 15% restocking fee. Returns for refund or credit beyond 30 days from original shipment date will be denied. Products purchased as part of a kit must be returned in their entirety (i.e., the entire kit must be returned, not separate parts) to receive refund or credit. Refund or credit is not available for custom, special or nonstandard products. Buyer must use credit within six (6) months of the date of issue. All returns are subject to Skye inspection and approval.

Software license. As used in this document, the term “Software” means: a) machine-readable object code; or b) a computer program or compilation of data that is fixed in any tangible medium of expression or any storage medium from which the program may be perceived, reproduced, or otherwise communicated, only with the aid of a machine or device. Furthermore, the term “Software” shall include, without limitation, any proprietary software provided for the ordinary operation of the products, any optional software to enhance the operation of the Products, and any upgrades or revisions of this material Skye provides in fulfillment of a specific written commitment or otherwise. Nothing herein shall be deemed to create an obligation on the part of Skye to provide any support, upgrades, or revisions to any software other than pursuant to a separate written obligation to do so. Buyer is granted a limited license for any Software and related user documentation delivered by Skye, whether as part of any product or provided separately. Buyer is not granted a license for any other software or documentation. This license allows Buyer to use the Software and user documentation only on the products on which it is installed at the time of delivery or, if the Software is supplied separately, in connection with products supplied by Skye. Buyer must obtain a supplementary license from Skye (which Skye may or may not grant in its sole discretion) before using the Software in connection with any other equipment or for any other purpose.

Buyer shall have no other rights under this license. Buyer may not distribute copies of the Software or documentation to others or electronically transfer the Software from one computer to another over a network. The Software contains trade secrets of Skye. In order to protect such trade secrets, Buyer may not modify, decompile, reverse-engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. Buyer may not modify, adapt, translate, rent, lease, loan, resell for profit or other purpose, distribute, network, or create derivative works based upon the Software or any part thereof. All Software and user documentation is protected by the copyright laws, works of authorship, and patents of the United States of America and by applicable international treaties. No license under such rights is transferred to Buyer, except as specifically provided above. All Software provided by Skye remains Skye’s property. If Buyer receives any Software that renders other Software that Buyer then has redundant, Buyer must return the redundant Software to Skye.

Patents. Skye warrants that Skye products furnished hereunder shall be delivered free of any rightful claim of any third-party for infringement of any United States patent. If notified promptly in writing and given authority, information, and assistance, and contingent upon Buyer not taking any position adverse to Skye in connection with such claim, Skye shall defend, or may settle at its expense, any suit or proceeding against Buyer so far as based on a claimed infringement which would result in a breach of the warranty stated in this section, and Skye shall pay all damages and costs awarded therein against Buyer due to such breach. In case any product or part thereof is in such suit held to constitute such an infringement and the use for the purpose intended of said product or par is enjoined, Skye shall, at its expense and option, either procure for Buyer the right to continue using said product or part, or replace same with a non-infringing product or part, or modify same so it becomes non-infringing, or remove the product and refund the purchase price (less reasonable depreciation for any period of use) and any transportation costs separately paid by Buyer. The foregoing states the entire liability of Skye for patent infringement by the products or any part thereof. This does not apply to any product or part specified by Buyer or manufactured to Buyer’s design, or to the use of any product furnished hereunder in conjunction with any other product in a combination not furnished by Skye as a part of this transaction. As to any such product or part, or use in such combination, Skye assumes no liability whatsoever for patent infringement, and Buyer will hold Skye harmless against any infringement claims arising there from.

Limitation of Liability

a. Skye’s liability to Buyer on any claim of any kind, whether as a result of breach of contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise, for any loss or damage arising out of, connected with, or resulting from the transaction, or from Skye’s performance or breach thereof, or from the design, manufacture, sale, resale, installation, repair, operation, or use of any products furnished herein, shall in no event (except as specifically provided for under the “Patents” section) exceed the price paid by Buyer for the products which give rise to the claim. Any such liability shall terminate upon the expiration of the applicable warranty period, provided, however, that Buyer’s rights to prove title in the products purchased from Skye shall not terminate.

b. In no event, whether as a result of breach of contract, warranty, indemnity, tort (including negligence and strict liability), or otherwise, shall Skye or its suppliers be liable for any special, consequential, indirect, incidental, exemplary or punitive damages, including but not limited to: loss of profit or revenues; loss of use of the products or any associated equipment; damage to associated equipment; cost of capital, substitute products, facilities, or services; downtime costs; or claims of Buyer’s customer for such damage.

Proprietary information. Buyer agrees that Skye has and claims various proprietary rights in the hardware, firmware, software, and the integration of ancillary materials, knowledge, and designs that constitute Skye products, and that Buyer will not directly or indirectly cause any such proprietary rights to be violated.

Custom products. Intellectual property resulting from the development of custom products (including but not limited to hardware, software, and technical documentation) for a buyer are exclusively the property of Skye and may not be reproduced, redistributed, or resold by Buyer without prior written permission, or the proprietary rights therein are specifically transferred to Buyer from Skye.

Design changes. Skye reserves the right to make changes in design of any of its products without incurring any obligation to notify Buyer or to make the same change to units previously purchased.

Export laws. Buyer agrees to comply with all applicable export laws, assurances, codes and license requirements, and controls of the United States, Canada and other applicable jurisdictions in connection with the use and resale of Skye products including without limitation Buyer’s acceptance of responsibility for the payment of any relevant taxes or duties, etc.

Taxes. The amount of any sales, excise or other taxes, if any, applicable to the products shall be added to the purchase price and shall be paid by Buyer unless Buyer provides Skye with an exemption certificate acceptable to the taxing authorities. Any taxes which Skye may be required to pay or collect under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the products, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of the Buyer, who shall promptly pay the amount thereof to Skye upon demand.

Severability These terms and conditions of sale shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance herefrom.

Set-Off. Buyer shall not be entitled to set-off any amounts due Buyer against any amount due Skye in connection with this transaction.

Non-Waiver. Skye’s failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of Skye’s rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by an authorized Skye Officer.

Entire Agreement This document constitutes the entire, complete, and exclusive agreement between the parties with respect to the subject matter hereof and contains all the agreements and conditions of sale; no course of dealing or usage of the trade shall be applicable unless expressly incorporated herein.

Governing law. The internal substantive laws of the state of Arizona shall govern this transaction.