SELLER’S ACCEPTANCE OF BUYER’S PURCHASE ORDER IS EXPRESSLY MADE CONDITIONAL ON BUYER’S ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS OF SALE, WHICH ARE IN LIEU OF ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED IN BUYER’S PURCHASE ORDER OR OTHER DOCUMENT OR COMMUNICATION PERTAINING TO BUYER’S ORDER OR THE GOODS. BUYER’S ASSENT TO THE TERMS AND CONDITIONS CONTAINED IN THIS DOCUMENT SHALL BE CONCLUSIVELY PRESUMED FROM BUYER’S ACCEPTANCE OF ALL OR ANY PART OF THE GOODS OR FROM PAYMENT BY BUYER FOR ALL OR ANY PART OF THE GOODS. NONE OF THESE TERMS AND CONDITIONS MAY BE ADDED TO, MODIFIED, SUPERCEDED OR OTHERWISE ALTERED, EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED EXECUTIVE OF SELLER. FAILURE OF SELLER TO OBJECT TO ANY TERMS OR CONDITIONS WHICH MAY BE CONTAINED IN ANY DOCUMENT OR FORM OF BUYER SHALL NOT BE CONSTRUED AS A WAIVER OF THESE CONDITIONS, NOR AS AN ACCEPTANCE OF ANY SUCH TERMS AND CONDITIONS.
Shipment and Partial Shipment
Delivery terms are F.O.B. Destination as specified in the Ship To location on Seller’s Invoice. Buyer shall assume all risk of loss or damage upon delivery by Seller to the Ship To location. Scheduled dates of delivery are determined from the date of Seller’s acceptance of any order placed by Buyer and are estimates of approximate dates of delivery, not a guaranty of a particular date of delivery. As products are ordered by Buyer and become available, Seller may make partial shipments and each shipment shall be invoiced separately. Partial shipments shall not relieve Buyer from its obligation to accept shipment of the remainder of the order.
Delay.
If Buyer requests deferral of deliveries, Seller’s agreement to defer delivery shall not excuse Buyer from its obligation to pay for the goods at the same times and in the same quantities as the original delivery schedule, including interest due pursuant to these terms and conditions. In addition to adhering to the original payment schedule, Buyer shall pay such storage charges as Seller may assess for storing the goods awaiting delivery.
Acceptance by Buyer.
Products shall be deemed accepted by Buyer on the date they are received by Buyer unless, within fifteen (15) days after receipt, Buyer gives Seller written notice that the products are not accepted and specifies in detail the reasons therefor. Seller may then, at its sole discretion, proceed to make any necessary corrections, in which case such corrective action by Seller shall be Buyer’s sole remedy for non-acceptance of a product. Upon completion and acceptance of such corrections, the products shall be deemed accepted by Buyer. Under no circumstances shall Buyer be entitled to revoke Buyer’s acceptance of the product.
Returns and Order Cancellations.
No Goods shall be returned for credit without first obtaining written consent from an executive officer of Seller. Upon such consent, Seller shall cease work and hold for Buyer all completed Goods and materials that have been purchased by Seller and/or Seller’s suppliers for the purpose of fulfillment of Buyer’s order plus a cancellation charge as prescribed by Seller. Upon consent for return, authorized returns require a Return Material Authorization (RMA) number. RMA number and instructions for return will be provided upon Seller’s consent for return. Each returned product is subject to a re-stocking fee of twenty percent (20%) of the purchase price.
Security Interest.
Shipments, deliveries and performance of work by Seller shall at all times be subject to the approval of and requirements of the credit department of Seller, including the requirement that Buyer pay part or all of the purchase price in advance. Seller retains a purchase money security interest in all Goods not paid for in full, notwithstanding that the goods have been delivered to Buyer, and Buyer hereby authorized Seller to execute and file financing statements describing the Goods, and other document which may be requested by Seller to evidence its security interest.
Claims.
Claims by Buyer for shortages or errors in delivery must be made within five (5) days after the delivery of the Goods. Goods are sold subject to the standard manufacturing practices of Seller’s suppliers.
Payment Terms.
Seller shall invoice Buyer for the purchase price of each of the products and/or services rendered pursuant to this Quotation. The invoice shall include charges (as applicable) for freight, handling, taxes and other amounts payable to Seller. All amounts specified on the invoice shall be paid by Buyer to Seller within thirty (30) days from the date of the invoice or pursuant to such other terms as Seller may agree. Seller may require payment in advance of all or any part of the purchase price of any product or service. Payments not made by Buyer on or before the due date shall bear interest at one and one-half percent (1-1/2%) per month or the maximum rate permitted by law, whichever is less. Such interest shall be in addition to and without limitation of any other rights or remedies which Seller may have under this Quotation by applicable law. Buyer agrees to pay any attorney’s fees and costs incurred by Seller in enforcing its rights under this sale. Buyer is responsible for all applicable sales, use and/ or excise taxes for the purchase of products and/or services. Taxes are in addition to the sales price unless Buyer presents a valid tax exemption certificate.
Governing Law.
Any transaction arising from this Quotation shall be deemed to have been made in Reno, Washoe County, Nevada and therefore shall be governed by the laws of the State of Nevada without regard to conflicts of interest laws. Buyer and Seller hereby submit to the exclusive jurisdiction for the resolution of any disputes.
Warranty.
THE WARRANTY IS SELLER’S SOLE WARRANTY WITH RESPECT TO THESE GOODS. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. SELLER’S LIABILITY FOR BREACH OF WARRANTY HEREUNDER IS LIMITED SOLELY TO THE REPLACEMENT OF THE DEFECTIVE GOODS, WHICH SHALL BE RETURNED TO SELLER’S PLANT; AND THE FAILURE TO GIVE NOTICE OF A WARRANTY CLAIM WITHIN TEN (10) YEARS FROM DATE OF DELIVERY SHALL CONSTITUTE A WAIVER BY BORROWER OF ALL CLAIMS WITH RESPECT TO SUCH GOODS. THE FOREGOING SHALL CONSTITUTE THE SOLE REMEDY OF BUYER AND THE SOLE LIABILITY OF SELLER UNDER THIS WARRANTY.
LIMITATION OF LIABILITY.
SELLER’S LIABILITY TO BUYER, WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED IN ANY CASE THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE PAID BY BUYER AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES. THE PRICE STATED FOR THE GOODS IS CONSIDERATION FOR LIMITING SELLER’S LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS QUOTATION MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE DATE OF DELIVERY. WITHOUT LIMITATION OF THE FOREGOING, IN NO EVENT WILL SELLER BE RESPONSIBLE OR LIABLE FOR (A) PENALTIES OR PENALTY CLAUSES OF ANY DESCRIPTION, OR (B) INDEMNIFICATION OF BUYER OR OTHERS FOR COSTS, DAMAGES OR EXPENSES ARISING OUT OF OR RELATED TO THE GOODS.
Force Majeure.
Seller shall not be liable for any damages caused by failure or delay in shipping the goods described herein, if such failure or delay is due to any war, embargo, riot, fire, flood, accident, mill condition, strike or other labor difficulty, an act of Buyer, an act of God, an act of a governmental authority, transportation shortage or failure, inability to obtain sufficient fuel, labor, materials or manufacturing facilities, or any other cause beyond the reasonable control of Seller.
Indemnification.
In addition to the foregoing, Buyer agrees to hold Seller harmless from any claims, demands, liabilities, costs, expenses or judgments arising in whole or in part, directly or indirectly, out of the negligence or lack of care by Buyer or Buyer’s customers, agents, employees or invitees involving the use of the Goods supplied by Seller. This indemnification shall include all costs, attorney’s fees and other expenses paid or incurred by or imposed upon Seller in connection with the defense of any such claim.
Default.
In the case of default or breach by Buyer in the performance of any or all of the provisions of this agreement, Seller may cancel any outstanding order from Buyer and declare all obligations immediately due and payable, and shall in addition have all remedies afforded by the Uniform Commercial Code as enacted in Nevada, and any other applicable law. Buyer shall in addition, be liable for Seller’s expenses incurred in exercising any remedies available to it, including reasonable attorney’s fees and legal expenses. All unpaid obligations shall bear interest at the contract rate provided under terms of payment above.
