Conditions of Sales / Delivery
1. CONTRACT. The sale of goods described on the Invoice is subject to the following terms and conditions (“Terms and Conditions”) which, together with the Invoice, collectively constitute the entire contract (the “Contract”) to buy and sell the goods described therein (the "Goods"). In the event of any conflict between these Terms and Conditions and the terms and conditions on the Invoice, these Terms and Conditions shall govern and control in all respects. This Contract sets forth the entire agreement and understanding of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements, and arrangements and understandings, written or oral, between the parties hereto. No representation, promise or inducement has been made by any party hereto that is not embodied in this Contract and no party shall be bound by or liable for any alleged representation, promise or inducement not expressly set forth herein. This Contract supersedes any purchase order or other like document of Buyer, if any. Any acceptance by Buyer which states additional or different terms shall be deemed material alterations to this Contract, and notice of objection to said additional or different terms is hereby given pursuant to section 2207(2)(c) of the California Commercial Code.
2. ENFORCEABILITY. The Contract shall become binding and enforceable against Buyer on the earlier of (a) when signed or accepted in writing by Buyer, its agent or broker; or (b) when signed and delivered by Seller to Buyer; provided that Buyer does not deliver a written objection to Seller of this Contract within ten (10) days after receipt by Buyer thereof; or (c) when Buyer has paid for or has accepted delivery or partial delivery of the Goods.
3. FORCE MAJEURE. Seller shall not be liable for any loss or damage with respect to the Goods on account of delayed delivery or non-delivery, in whole or in part, if such delayed delivery or non-delivery is caused by Acts of God, fire, strikes, floods, accident, riots, lockouts, industrial disturbances, war, blockades, embargoes, insurrection, actions of governmental authorities, non-governmental restrictions, curtailment of production at Seller's source and supply, or any cause beyond Seller's control. Seller shall have the right in the event of the happening of any of the above contingencies, at its sole discretion, to cancel the Contract without incurring liability to Buyer, or delivery the Goods at such time as the Goods are reasonably available for delivery. If Seller, following the happening of any of the above contingencies, elects not to cancel this Contract, the time originally specified for delivery under this Contract shall be deemed extended for a period equal to Seller's disability.
4. DELIVERY. Unless otherwise set forth on the reverse side hereof, and subject to these Terms and Conditions, (i) shipment is considered timely if made within thirty (30) days of the date specified by the Seller for shipment, (ii) the Goods are sold FCA FREE CARRIER (Seller's loading dock)(Incoterms 2000), and (iii) the shipping point and acceptance of shipment by a common carrier shall constitute a delivery to the Buyer upon which title and risk of loss shall pass to Buyer. Notwithstanding the above, Goods invoiced and held at Buyer's request at any place, for whatever reason, shall be at Buyer's sole risk and account. Any delivery not in dispute shall be paid by Buyer regardless of any dispute as to any other merchandise. Prices on the Goods are exclusive of all city, state and federal taxes
5. DEFAULT. If any invoice is not paid when due, or upon the Buyer's breach of or default on any term or condition of this or any other contract with Seller, all sums owing under this Contract shall, in the absolute discretion of Seller, become immediately due and payable. Seller may, in its absolute discretion, assess a penalty upon delinquent accounts at the rate of 1.5% per month or the maximum rate permitted by law, whichever is less. Buyer hereby grants to Seller a first priority purchase money security interest in any and all goods purchased from Seller, and in the proceeds from the sale thereof, to secure Buyer's obligations to Seller hereunder. Upon any default by Buyer hereunder, Seller shall have all the rights of a "secured party" under the California Commercial Code. If any invoice is not paid when due, Seller shall have the further right to defer delivery under this Contract, and any other contract between Buyer and Seller, until such payment is made and for a reasonable time thereafter, and/or Seller may cancel this Contract and any other contracts between Buyer and Seller. Nothing contained in this section shall limit the remedies otherwise available to Seller under the law.
6. NONCONFORMING GOODS. Seller shall not be liable for normal manufacturing defects, customary variations from quantities or specifications, nor for inherent defects of or in the Goods. Claims for defective products, shortages, delays or failures in shipment or delivery, or for any other cause, shall be deemed waived and released by Buyer unless Buyer notifies Seller in writing within ten (10) days after the arrival of the Goods at the destination specified in this Contract, indicating full particulars, reasonable evidence supporting the claim, and Seller’s claimed responsibility for the claim under this Contract. If Buyer claims that Goods are defective in quality, they must be properly and promptly offered to the Seller for its examination, and if Buyer does not permit and facilitate said examination, Buyer's claims shall be deemed waived and released. With respect to this Section 6, time is of the essence. If Buyer claims that between the time of loading at the point of origin and the time of delivery to Buyer, the Goods have been damaged, destroyed, or a shortage has occurred, the Buyer shall use its best efforts to establish the cause and extent of such damage, destruction or shortage, and shall immediately notify Seller thereof in writing, and shall keep any such goods which are destroyed, damaged or subject to shortage segregated and available for Seller's inspection. Seller shall not be responsible for any fees or costs associated with the return of conforming goods.
7. RIGHT TO POSSESSION. Seller shall have the right, for credit reasons or because of Buyer's default, to withhold shipments, in whole or in part, and to recall Goods in transit, retake same, and/or repossess all materials which may be stored with Seller for Buyer's account, without the necessity of taking any other action, and Buyer consents that all merchandise so recalled, retaken or repossessed shall become the absolute property of Seller, or at the option of Seller, retained as security by Seller until such time as Buyer's account is no longer delinquent or Buyer's breach is remedied to the satisfaction of the Seller. The foregoing shall not be construed as limiting, in any manner, any of the rights or remedies available to Seller because of any default of Buyer.
8. WARRANTIES. Seller warrants that the Goods shall be free from material defect for a period of one (1) year from the date of delivery of the Goods to Buyer. ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED BY SELLER. In no event shall Seller be liable to Buyer for any actual or alleged consequential, special and/or incidental damages, including but not limited to loss of profits or loss of business. Buyer's exclusive remedy for breach of warranty, express or implied, shall be limited to return of the Goods and refund of the purchase price of the Goods, or repair and replacement of the Goods, at Sellers option. In no event shall Seller be liable to Buyer, for any reason, in an amount which is in excess of the amount actually paid by Buyer to Seller for the Goods.
9. QUOTATION AND PRICES. Prices are subject to change without notice. Orders calling for future delivery will be billed according to the price then in effect at the date and place of delivery. If the cost to the Seller of any undelivered portion of the Goods is increased by reason of legislation hereafter enacted, or by governmental or departmental regulations issued by governing authorities having jurisdiction over the Goods or materials incorporated into the Goods, such increase shall be for the account of the Buyer, and, if paid or required to be paid by the Seller, the amount thereof shall be added to and become a part of the invoice and shall be payable by the Buyer.
10. BUYER SPECIFICATIONS. In the event that the Goods have been manufactured in accordance with designs, labels, brand names or other specifications of Buyer, to the extent permitted by law and public policy, Buyer agrees to assume all obligations associated with the Goods, and shall hold Seller harmless, and shall defend and indemnify Seller, from and against all claims, losses, obligations, actions, costs and expenses, including expert fees and attorney’s fees at trial and on appeal, arising out of, or in any way connected with, the Goods, regardless of any active or passive negligence on the part of Seller, excepting, however, Buyer shall have no indemnity obligation to the extent of the gross negligence or intentional torts of Seller.
11. GENERAL PROVISIONS. This Contract shall be governed by, and construed, interpreted and enforced in accordance with, the laws of the State of California. All actions arising out of this Contract shall be litigated in the courts located within Contra Costa County. This Contract may be amended, modified, or superseded, and the terms or covenants hereof may be waived, but only by a written instrument executed by the parties hereto. The failure of either party at any time or times to require performance of any provision hereof shall in no manner affect such party's right at a later time to enforce the same or any other provision. No waiver by either party of the breach of any term or covenant contained herein, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant herein. Any term or provision of this Contract which is prohibited, invalid or unenforceable shall be ineffective to the extent (but only to the extent) of such prohibition, invalidity or unenforceability without invalidating or affecting any other term or provision hereof. In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against Buyer, or in the event of the appointment, with or without Buyer's consent, of a receiver, Seller shall be entitled to elect to cancel any unfilled part of this Contract without any liability whatsoever. Buyer shall not assign this Contract without the prior written consent of Seller. This Contract has been negotiated between the parties, and shall not be deemed to have been drafted by either party for purposes of construction. In the event there is a dispute regarding the terms of this Contract, or the Contract requires enforcement, the prevailing party shall be awarded its attorney’s fees and costs, including expert and investigation fees, at trial and on appeal. The headings of the sections hereof are intended solely for means of reference and shall not modify, explain or place any construction on any of the provisions hereof. No remedy or election hereunder or at law or in equity of Seller shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies hereunder or at law or in equity.