TERMS. Orders are subject to acceptance by the Buyer. 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 contract. 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) and the maximum legal rate. Seller may cancel or delay delivery of Equipment if 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. Prices and terms are subject to change without notice prior to acceptance. 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. Prices are exclusive of all Federal, State, and Local sales, use excise, and similar taxes, for which Buyer shall be responsible.
CANCELLATION/RETURNS. This Agreement 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. Buyer shall be responsible to return items in good, re-sellable condition. If 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 its obligations hereunder, 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 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. 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 Sellers 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 this 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 including but not limited to war, sabotage, acts of civil disobedience, failure or delay in transportation, an act of any government or agency or subdivision thereof, judicial action, labor dispute, fire, accident, explosion, epidemic, quarantine, restrictions, storm, flood, earthquakes, acts of God, shortage of labor, fuel, raw materials or machinery, or technical failure where Seller has exercised ordinary care in the prevention thereof. If any contingency occurs, Seller may allocate production and deliveries among Sellers’ customers as it deems appropriate.
RISK OF LOSS. Risk of loss or damage to the Equipment shall pass to Buyer upon delivery of the Equipment to the Buyer (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. 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, right, 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 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 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 contract, plans, and Allied Modular specifications are intended to supplement one another. In case of conflict, the Allied Modular specifications and quotation 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, the 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 THE 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. 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 Customer’s specification. The Seller shall retain all intellectual property rights related to such changes, processes, and designs.