prior to
the cancellation of that order by the Distributor pursuant to Section 4.2(c),
OneUp Innovations may accept that order (i) by giving notice of acknowledgement
of such order to the Distributor in any manner provided in Section 5.4, or (ii)
by shipping the Products ordered, or any part thereof. Only those terms required
by this Section 4.2(a) shall become part of this Agreement. All other terms and
conditions contained on the Distributor's order or any other document submitted
by the Distributor are expressly rejected by OneUp Innovations.
(b) OneUp Innovations shall use commercially reasonable efforts to ship (or
cause to be shipped) all Products by the requested shipment dates, provided such
requested shipment dates allow for the minimum lead times, if any, set forth on
the OneUp Innovations Distributor Price List.
4.3 Identification; Delivery; Risk of Loss and Title. Identification of the
Products shall occur when the Products are shipped to the Distributor. Shipment
of the Products will be EXW OneUp Innovations' facility (the "Shipping Point").
OneUp Innovations shall put the Products in the possession of a carrier at the
Shipping Point, contract with the carrier for the shipment of the Products to
the destination designated in the Distributor's order, and obtain and promptly
deliver to the Distributor the documents, if any, necessary for the Distributor
to obtain the Products. OneUp Innovations shall bear the expense of putting the
Products in the possession of the carrier. The Distributor shall bear all other
costs of transportation and delivery, including without limitation, unloading,
storage, insurance and freight. Title to and risk of loss of the Products shall
pass to the Distributor at the Shipping Point when the Products are put in the
possession of the carrier by OneUp Innovations. Unless the Distributor otherwise
designates and arranges for the carrier, OneUp Innovations may designate such
carrier as it deems appropriate. Under no circumstances shall such carrier be
deemed an agent, employee, or representative of OneUp Innovations.
4.4 Shipment; Delay. OneUp Innovations shall use commercially reasonable efforts
to comply with all shipment date(s) requested by the Distributor. OneUp
Innovations may make partial shipments of the Products from time to time prior
to the requested shipment date(s). If OneUp Innovations is unable or fails to
comply with any shipment date(s) requested by the Distributor under any order,
the Distributor may cancel, reduce or reschedule such order in accordance with
Section 4.2(c) hereof. In no event shall OneUp Innovations be liable to the
Distributor for damages (however described or arising) for any failure to
fulfill or meet shipment date(s) requested by the Distributor. OneUp Innovations
shall use commercially reasonable efforts to notify the Distributor if OneUp
Innovations is unable or will fail to comply with such requested shipment
date(s).
4.5 OneUp Innovations' Warranties and Representations. OneUp Innovations
represents and warrants to the Distributor as follows:
(a) "Limited Warranty." In the event the Distributor is purchasing a Product for
its own use, OneUp Innovations will warrant such Product to the Distributor in
accordance with the OneUp