Terms & Conditions of Sale
- TERMS. Prices quoted are valid for 30 days for the quantities listed on the Quote (unless otherwise noted in the Quote) and are subject to change without notice prior to acceptance, and are subject to acceptance by Seller. All Quotes are subject to these terms and conditions (“Agreement”) and orders are accepted and equipment is sold only upon the terms of this Agreement. Unless otherwise specified in writing by Seller, purchases are payable in advance or upon delivery (C.O.D.). Seller may require a deposit of 60% on special orders. This deposit is nonrefundable. If Seller grants credit terms, it shall be in a separate written document and become part of this Agreement. Past due balances shall be subject to a service charge (which shall become part of the purchase price for purposes of this Agreement) of the lesser of 1½% per month (18% per annum) of the balance (exclusive of service charges) or the maximum legal rate. Seller may cancel or delay delivery of Equipment if the Buyer fails to make payment for any product when due. Seller’s acceptance of partial payment shall not waive or be treated as settlement of any additional amounts Buyer owes.
- PRICE. The prices shown are F.O.B. origin. Buyer shall pay all shipping, insurance, license fees, custom duties, and similar charges which shall be added to purchase prices, and Buyer bears all risk of loss in transit. Prices are exclusive of Federal, State, and Local sales, use excise, and similar taxes, for which Buyer shall be responsible.
- CANCELLATION/RETURNS. Accepted orders cannot be canceled and Equipment cannot be returned without Seller’s written agreement, which may be withheld in Seller’s sole and absolute discretion. On any authorized returns, a 30% restocking charge will be charged. The buyer shall be responsible to return items in good, re-sellable condition. In the event that the order is not delivered, fair and reasonable costs of drawings, engineering work, or other work performed by Seller shall be paid by the Buyer.
- SECURITY INTEREST AND TITLE. Until Buyer performs all of its obligations to Seller, including, without limitation, full payment of the purchase price, Seller retains a purchase money security interest in the Equipment, including all accessories, replacements, and proceeds, to secure the performance of all of Buyer’s obligations. Buyer authorizes Seller to file any financing statement, applications for registration, or other documents advisable and to take any other action Seller deems desirable to perfect Seller’s security interest. In addition, Buyer appoints Seller its attorney-in-fact to sign and file or record for Buyer, in Buyer’s name, any such documents. Buyer shall keep the Equipment in good order and repair, lien-free until the full purchase price has been paid, and shall promptly pay all taxes and assessments upon the Equipment. The buyer shall not transfer any interest in the Equipment until the purchase price has been paid in full.
- DEFAULT. Failure of Buyer to perform any of its obligations hereunder, including, but not limited to full payment of the purchase price, insolvency, bankruptcy, assignment for the benefit of creditors or Buyer’s cessation of business, shall constitute a default under this Agreement and shall afford the Seller all remedies of a secured party under the Uniform Commercial Code.
- WARRANTY AND CODE COMPLIANCE. Warranty service will be performed in accordance with the Seller’s Limited Warranty, which is incorporated by this reference. Seller makes no representation or warranty regarding code compliance and shall not be responsible for compliance therewith.
- FORCE MAJEURE CLAUSE. The fulfillment of any order is contingent upon the availability of materials. Seller shall not be liable for delay in delivery or for non-delivery in whole or in part caused by the occurrence of any contingency beyond the control of either the Seller or suppliers to the Seller. If any contingency occurs, Seller may allocate production and deliveries among Seller’s customers as it deems appropriate.
- RISK OF LOSS. Risk of loss or damage to the Equipment shall pass to Buyer upon delivery (regardless of whether payment has been made). Confiscation or destruction of, or damage to, the Equipment following shipment shall not affect Buyer’s obligation to pay the full purchase price. The buyer shall inspect the Equipment upon receipt and must notify Seller within 24 hours in writing following delivery when there is evidence of shipping damage.
- ASSIGNMENT. Buyer may not assign this Agreement in whole or part without the written consent of the Seller. Any attempt to assign any duties, rights, or obligations of this Agreement without Seller’s consent shall be considered null and void.
- INDEMNIFICATION. Buyer shall hold Seller harmless from (a) any damage, injury, or claim arising from any fault or neglect of Buyer, Buyer’s employees, agents, and licensees, or any person, not a party hereto, (b) to the extent that Equipment is manufactured according to Buyer’s specifications and/or drawings, any charge that said Equipment infringes any patent or other proprietary right of any other person (c) Buyer’s breach of this Agreement.
- VALIDITY. If any provision(s) of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired.
- VENUE AND ARBITRATION. Except as expressly set forth below, any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association and judgment upon the award rendered by the arbitrator(s) may be entered in the court having jurisdiction thereof. The arbitration shall take place in Orange County, California. Notwithstanding the foregoing, claims for breach of payment obligations are not subject to binding arbitration and may be brought, and the parties agree to the jurisdiction venue for such actions in the state and federal courts located in Orange County, California. The prevailing party in any arbitration, litigation, or similar proceeding shall be awarded all of its attorneys’ fees and costs. No action arising out of, or in any way connected with this Agreement, the Equipment or any services rendered by Seller may be brought by Buyer more than one year after the cause of action has first accrued
- STORAGE. If the Buyer cannot take delivery within 15 days of completion, Seller reserves the right to charge reasonable storage fees. Seller shall deliver to Buyer notice of the amount of the fee. Buyer shall have 10 days from the date of notice to find and move the Equipment to its own storage facilities, or it shall incur and pay the fee. Buyer shall bear all costs associated with moving, freight, and handling of any such storage.
- PLANS. The Quote, this Agreement, the plans, and Seller’s specifications are intended to supplement one another. In case of conflict, the Seller’s specifications and Quote shall control the plans, and the provisions of this Agreement shall control all. If the work is called for on the plans, by the city or other jurisdiction, but not mentioned in the quotation, such work shall be done by others. At the Buyer’s request, Seller can provide a quote for any such items.
- BUYER’S REMEDIES. Seller’s liability to Buyer under this Agreement (or otherwise) shall not, in any event, exceed the total purchase price Buyer has actually paid for the Equipment, less the purchase price for any Equipment delivered to and accepted by Buyer. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATED TO THE SALE OR USE OF THE EQUIPMENT.
- Confidentiality. All confidential information furnished by Seller to Buyer shall be kept confidential by Seller, and Seller shall not make use of such confidential information, except for purposes authorized by this Agreement. Seller retains full ownership of and interest in all inventions, designs, copyrights, and processes relevant to the Equipment. Copyright in all drawings, specifications, and manuals created or issued by or on behalf of Seller belong to Seller and are confidential. The buyer may not reproduce the same or divulge the same to any third party without Seller’s prior written consent. If any Equipment is designed, manufactured, or processed either wholly or in part to the Buyer’s specification, the Seller shall retain all intellectual property rights related to such changes, processes, and designs.
THIS AGREEMENT along with Seller’s Quote constitutes the complete and exclusive statement(s) of the Agreement between the parties and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter.
Buyer’s application for credit from seller, ordering of any products or services from Seller, payment of any sums to Seller or acceptance or retention of any Equipment or services shall be deemed to be Buyer’s acceptance of the terms. Seller’s failure to object to any contrary terms contained in any communication from Buyer will not constitute a waiver of these terms. The buyer may use Buyer’s own purchase order form, or any similar document for convenience and record-keeping purposes only. Any terms set forth in such standard forms that are different from or in conflict with the terms hereof shall be of no force or effect and are expressly rejected by Seller. Seller’s agreement to sell the Equipment to Buyer is expressly conditioned upon Buyer’s agreement to this Agreement, notwithstanding any terms and conditions in Buyer’s purchase order form to the contrary. Any acknowledgment by Buyer of this Agreement shall be limited to the terms of this Agreement, and any provision of such acknowledgment which in any manner differs from the provision(s) of this Agreement shall be no force or effect. All litigation, suits, and arbitration shall be held in the County of Orange, State of California.
This Agreement may only be amended in writing, executed by an officer of the Seller and of Buyer. Any changes may be made only in accordance with Seller’s written change order process. .4817-9002-0628.1