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Terms and Conditions of Sale. (Rev. 140630)
1. ACCEPTANCE. All quotations and sales are made in accordance with the Terms and Conditions stated herein. Seller shall not be bound by Buyer’s terms and conditions, unless Seller expressly accepts in writing Buyer’s proposals. The failure of Buyer to object to these Terms and Conditions in writing or by electronic transmission within a reasonable period of time, or the acceptance or partial acceptance of the Products purchased, shall constitute an acceptance of these Terms and Conditions of sale.
2. DELIVERY, TITLE AND RISK OF LOSS. Seller’s acknowledgement of Buyer’s order shall not occur until Seller has scheduled delivery and notified Buyer in writing or by electronic transmission. All sales are FOB Seller’s shipping point unless otherwise specified in writing. Delivery dates are best estimates only. Seller reserves the right to make deliveries in installments and the contract shall be severable as to such installments. Delay in delivery or failure to deliver any installment shall not relieve Buyer of its obligation to accept and pay for remaining deliveries. Seller reserves the right to make shipments at any time within seven (7) calendar days prior to the scheduled delivery date and Buyer shall not reject such tendered articles for the sole reason of early delivery. Shipment of all Products shall be scheduled by Buyer within six (6) months from the date of Buyer’s order; all deliveries must be scheduled for completion within twelve (12) months of Buyer’s order unless Seller’s schedule date exceeds such period. Title to goods and risk of loss passes to Buyer at the shipping point when Seller delivers the Product to the carrier. In the absence of specific instructions from Buyer, Seller will select the carrier; nevertheless, the carrier will be Buyer’s agent and Seller shall not be responsible for loss of or damage to Products in shipment. Claims against Seller for shortages may only be made within ten (10) days after arrival of shipment (if deliveries are made in installments, a claim for shortage of any installment may only be made within ten (10) days of the arrival date of such installment). In no event shall Seller be liable for any increased costs incurred by Buyer, cost of cover, loss of profits, goodwill, or any incidental or consequential damages, by reason of any delay in delivery or failure to deliver.
3. PRICES AND PAYMENT. The purchase price and payment schedule shall be as specified in Seller’s invoice. A 1½% per month (18% per year) service charge shall apply to any delinquent payment, which becomes delinquent, if payment has not been made, on the first day after the date any such payment has become due.
4. TAXES. Applicable taxes, if any, on Products sold hereunder shall be borne by the Buyer. Buyer shall reimburse Seller for all taxes, licenses, or other charges by whatever name, which Seller may be required to pay to any government upon the sale or transportation of the Products sold hereunder.
5. SECURITY INTEREST. Seller retains a security interest in and right to take possession of the Products until Buyer makes full payment therefore.
6. CANCELLATION AND TERMINATION. (a) No cancellation for default of Seller shall be effective unless Seller shall have failed to correct such alleged default within thirty (30) days after receipt by Seller of written notice of default from Buyer. Seller shall not be liable for any delay or failure to perform due to any cause beyond its control and no such cause shall be considered a default by Seller. Such causes shall include, but are not limited to, war, riot, strike, act of God, act of Buyer, interruptions of transportation or inability to obtain the necessary labor, materials or facilities. In such cases, in Seller’s sole discretion, the delivery schedule shall be extended by a period of time equal to the time lost because of such delay. To the extent Seller becomes wholly or partially unable to perform due to causes beyond its control, Seller may terminate the order or any part thereof, in each case without liability to Buyer.
(b) Seller may, at its discretion, cancel any order accepted, or may decline to supply Products except upon receipt of cash or satisfactory security, if bankruptcy or insolvency proceedings are threatened or instituted, or in Seller’s reasonable opinion may be initiated, by or against Buyer or if Buyer cannot, in Seller’s reasonable opinion, meet its obligations in the normal course of business or if inaccurate or incorrect information is supplied by Buyer.
7. WARRANTY, LIMITATION OF LIABILITY AND INDEMNIFICATION. (a) Seller warrants that the Products conform to the specifications and technical data sheets applicable thereto and that they shall be free from defects in material and workmanship for a period of six (6) months from the date of invoice. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Seller’s sole obligation under this warranty is to replace any Products that may be nonconforming. Seller may modify the specifications of Products to be supplied to Buyer, provided that the modifications do not adversely affect the performance of the Products. (b) Buyer understands that the SA2000 Series line of Products shall not be used for any Defense Industry applications or any Fireworks industry applications without a prior express written consent from the Seller. The term “Defense Industry” includes any entity engaged in the production, sale, distribution, service and/or use of products for military application. The term “Fireworks Industry” includes any entity engaged in the production, sale, distribution, service and/or use of products for outdoors and/or indoors fireworks applications. (c) Without expanding on the foregoing warranty, the maximum liability of Seller under any warranty, express or implied, is limited to the purchase price of the Products. The Seller shall have no responsibility for damage to property or any other loss or injury, including incidental or consequential damages, resulting from the possession, operation or use of the Products, all such claims being expressly waived. The failure to give written notice of claim within ninety (90) days from the date of delivery or the date fixed for delivery (in the case of non-delivery) shall constitute a waiver by Buyer of all claims with respect to the Products. (d) BUYER SHALL INDEMNIFY, DEFEND, AND HOLD SELLER HARMLESS IN THE EVENT THAT ANY PERSON SHALL MAKE ANY CLAIM OR FILE ANY LAWSUIT AGAINST SELLER FOR FAILURE OR MALFUNCTION OF SELLER’S PRODUCTS IN ANY RESPECT, INCLUDING ANY SUCH CLAIM OR LAWSUITS FOR PERSONAL OR BODILY INJURIES, PROPERTY DAMAGE, OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES. BUYER SHALL INDEMNIFY SELLER FOR THE PAYMENT OF ALL DAMAGES, EXPENSES, COSTS AND ATTORNEYS’ FEES ARISING OUT OF ANY SUCH CLAIMS OR LAWSUITS. BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS REGARDLESS OF THE LEGAL BASIS FOR ANY SUCH CLAIMS OR LAWSUITS FILED AGAINST SELLER. THEREFORE, BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FOR ANY CLAIMS OR LAWSUITS FILED AGAINST SELLER PREMISED, WITHOUT LIMITATION, IN WHOLE OR IN PART, UPON: (1) THE ALLEGED PASSIVE OR ACTIVE NEGLIGENCE OF SELLER; (2) THE STRICT LIABILITY OF SELLER, INCLUDING ANY CLAIMS AGAINST SELLER PREMISED ON DESIGN DEFECT, WARNING DEFECT, OR MANUFACTURING DEFECT; (3) BREACH OF ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE BY SELLER; (4) BREACH OF ANY IMPLIED WARRANTY OF MERCHANTABILITY BY SELLER; AND (5) ANY OTHER CAUSE OF ACTION FILED AGAINST SELLER, WHETHER BASED ON TORT, CONTRACT, OR OTHERWISE. (d) IN CONSTRUING THIS AGREEMENT, “SELLER” INCLUDES SELLER AND ITS REPRESENTATIVES, OFFICERS, EMPLOYEES, AGENTS, INVITEES AND LICENSEES.
THE DUTY TO INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS EXTENDS TO CLAIMS OR LAWSUITS FILED BY ANY PERSON, EXPRESSLY INCLUDING WITHOUT LIMITATION ANY CLAIMS OR LAWSUITS FILED BY OR ON BEHALF OF BUYER’S EMPLOYEES, AGENTS, OR REPRESENTATIVES AGAINST SELLER.
8. INSURANCE. Buyer shall maintain in effect at all times a general liability insurance policy with coverage limits of no less than one million dollars ($1,000,000). This insurance coverage shall specifically cover Buyer’s obligations of indemnification under paragraphs 7(c) and (d) of these Terms and Conditions. For the avoidance of doubt, the reference to a minimum limit of coverage shall not be considered a limitation on Buyer’s obligation of indemnification.
9. PATENT AND COPYRIGHT INDEMNIFICATION. (a) Seller shall defend at its expense any actions against Buyer based on a claim that any Products furnished hereunder directly infringe a United States patent or copyright, and to pay costs and damages finally awarded in any such action, provided that Seller is notified promptly in writing of the action and, at Seller’s request and at its expense, is given (1) control of said action, and (2) all requested reasonable assistance from Buyer for the defense of same. If the use or sale of Products furnished hereunder is enjoined as a result of such action, Seller, at its option and at no expense to Buyer, shall obtain for Buyer the right to use and sell said Products or shall substitute reasonably equivalent Products to Buyer and shall extend this indemnity thereto, or Seller shall accept the return of the Products and reimburse the Buyer the purchase price paid therefore. This indemnity does not extend to any action based upon any infringement or alleged infringement of any patent or copyright by the combination of any Products furnished by Seller with any other products, nor does it extend to any Products of Buyer’s design or made to Buyer’s specifications. In no event shall Seller’s liability to Buyer with respect to a particular order exceed the aggregate sum paid to Seller by Buyer for the infringing or alleged infringing Products under said order. The foregoing states the entire liability of Seller for patent or copyright infringement.
(b) Buyer agrees to defend at its expense any actions against Seller based on a claim that any Products furnished hereunder from Seller to Buyer which were designed by Buyer or made to Buyer’s specifications infringe a United States patent or copyright and to pay costs and damages finally awarded in any such action, provided that Buyer is notified promptly in writing of the action and, at Buyer’s request and at its expense, is given (1) control of said action, and (2) all requested reasonable assistance from Seller for defense of same. This indemnity does not extend to any action based upon any infringement or alleged infringement of any patent or copyright by the combination of any products furnished by Buyer with other products. The foregoing states the entire liability of Buyer for patent and copyright infringement.
(c) The sale of the Products furnished hereunder does not convey any license by implication, estoppels, or otherwise, under any Patent or other property rights of Seller covering combinations of these Products with other products.
(d) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING THOSE ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF PATENTS OR COPYRIGHTS.
10. WARNINGS. Buyer acknowledges that there may be risks and liability resulting from the use of the Products and that Buyer has received and is familiar with Seller’s labeling and literature concerning such Products. Buyer specifically undertakes not to permit any persons not skilled and appropriately trained in the handling and use of the Products to handle or use the Products. Buyer will provide the information contained in Seller’s labeling and literature to Buyer’s employees and any others who may handle or use such Products.
11. TECHNICAL ASSISTANCE. Seller’s warranty shall not be enlarged, and no obligation or liability shall arise by reason of Seller’s rendering of technical advice and/or assistance, computerized data, facilities or service in connection with Buyer’s order or the Products ordered or furnished. Unless otherwise agreed in writing, all such technical advice and/or assistance will be provided gratis, and Buyer assumes sole responsibility for results obtained in reliance thereon.
12. CONFIDENTIAL INFORMATION. All drawings, diagrams, specifications, software and any other materials or information furnished by Buyer or Seller and identified in writing as confidential relating to the use and service of Products furnished or ordered hereunder, and the information therein, are proprietary. The Seller and the Buyer acknowledge that such materials and information have been developed at great expense and may contain trade secrets, and therefore agree that such materials and information may not be disclosed, reproduced or distributed except to employees who may require the use of the materials or information in the performance of their duties. All such materials and information (except materials and information as may be established to be in the public domain or disclosed pursuant to judicial or other government order) shall be received in confidence and Buyer and Seller shall hold such information in confidence and prevent its unauthorized disclosure. Since money damages are not an adequate remedy for breach of the duty of confidentiality, Seller and Buyer agree that equitable relief is appropriate to remedy breach of said duty.
13. ASSIGNMENT. Seller may assign this order or contract to any affiliated company. Buyer shall not assign this order nor any interest herein or any rights hereunder without the prior written consent of Seller, which consent shall not be unreasonably withheld.
14. ELECTRONIC TRANSMISSIONS. Any quotations, acknowledgements or other information that may be electronically transmitted from Seller to Buyer shall reference this form by number and its effective date, thereby incorporating by reference these terms and condition in such quotations, acknowledgements or other information. Any notice or other communication from Buyer to Seller that, under these terms and conditions, may be made by electronic transmission shall be effective only if addressed to Seller at email@example.com.
15. GENERAL. Buyer acknowledges that it has read and understood these terms and conditions of sale and agrees to be bound by them. These terms and conditions are the complete and exclusive statement of the agreement between the parties and expressly supersedes all proposals, either oral or written, all other communications between the parties relating to the subject matter hereof, and any terms and conditions of previous date. No addition to, or deletion from, nor the modification of any of the provisions of these terms and conditions of sale shall be binding upon Seller unless expressly acknowledged and accepted in writing by Seller. If the preprinted terms hereof conflict with any of the terms and conditions typed or handwritten by Seller upon this or any other document relating to this transaction, any such typed terms or conditions shall prevail over these preprinted terms, and any handwritten terms written by the Seller shall prevail over all typed or printed terms. Any change made by Seller will be deemed accepted by Buyer unless within ten (10) days after receipt of written notice of such change Buyer notifies Seller of Buyer’s exception to such change. A waiver by Seller of any default of any of the terms and conditions of sale shall not be deemed to be a continuing waiver or a waiver of any other default or of any other of these terms and conditions of sale, but shall apply solely to the instance to which the waiver is directed. Each provision of these Terms and Conditions is severable; if any provision is held by a court of competent jurisdiction to be invalid or otherwise unenforceable; such unenforceability shall be as narrowly construed as possible, with the result that every other provision, section, sentence and phrase of these Terms and Conditions shall remain in effect.
16. CONTROLLING LAW. This contract of sale shall be governed exclusively by the laws of the State of California, except for its conflicts of law principles.