1. Agreement. These Terms of Sale exclusively govern all sales of goods (including, but not limited to, all quotations, purchase orders, order acknowledgments and invoices) by Seller to Buyer regardless of whether Buyer purchases such goods through the medium of purchase orders, releases or other similar document or form (whether written, electronic or by telephone order confirmed in writing by Seller) or otherwise. These Terms of Sale are expressly made conditional on Buyer’s assent to all of the terms and conditions as they appear in these Terms of Sale. Acceptance of these Term of Sale is limited to and must be on the exact terms and conditions as they appear in these Terms of Sale. Purchase Orders, if accepted by seller, are accepted subject to the terms and conditions set forth herein. Seller objects to and rejects any different or additional terms or conditions proposed by Buyer whether or not contained in any of Buyer’s purchase orders, on Buyer’s website or otherwise submitted by Buyer, and such additional or different terms and conditions shall be deemed material alterations and shall be void and unenforceable. Buyer’s acceptance of goods identified and/or referenced on the reverse side of this statement constitutes acceptance by Buyer of Seller’s Terms of Sale as provided for and contained herein.
2. Payment Terms: Except as noted on face, 1% 10 days, net cash 30 days. Payment due date shall be based on the date of the invoice. Any delinquent account shall bear interest at the rate of 1.5% per month. Seller shall have and reserves the right to increase the price of goods to reflect any increase in the costs to Seller including, but not limited to, any raw material price increase, foreign exchange rate fluctuation, increases of costs of labor, materials or other costs of manufacturing, and/or other specifications for the goods. The Buyer’s failure to timely pay for goods according to these Terms and Conditions shall be deemed a material breach of the parties’ agreement and shall therefore relieve Seller of any obligation to sell, deliver and/or ship additional goods to Buyer under this or any other agreement between Buyer and Seller.
3. Defects. Buyer agrees to inspect the goods immediately upon receipt of goods from Seller. If, prior to use, fabrication or alteration by Buyer, any item of goods not subject to abuse or misuse proves to be defective within 30 days following the date of shipment, and if Buyer gives written notice to Seller of the alleged defect within 5 days of receipt of the defective good(s), the Seller shall at Seller’s option, either repair or replace the defective item, at Seller’s expense. This paragraph sets forth Buyer’s sole and exclusive remedies for any defect in the goods.
4. THE SELLER WARRANTS ONLY THAT THE PRODUCTS PURCHASED HEREUNDER ARE OR WILL BE PRODUCED IN ACCORDANCE WITH THE PARTIES’ AGREED UPON SPECIFICATIONS. BUYER’S EXCLUSIVE REMEDY FOR ANY CLAIMED DEFECT SHALL BE THE REPLACEMENT OF ANY DEFECTIVE PRODUCT SOLD TO BUYER. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE GOODS AND, IN PARTICULAR BUT WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MAKES NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, SELLER SHALL HAVE NO TORT LIABILITY TO BUYER WITH RESPECT TO ANY OF THE GOODS AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO THOSE ARISING FROM ANY PRODUCT DEFECT, DELAY, NONDELIVERY, RECALL OR OTHER BREACH, WHETHER KNOWN OR UNKNOWN, WHETHER OR NOT SUCH DAMAGES ARE THOSE OF A PARTY OR ANY OTHER PERSON OR ENTITY AND EVEN IF SELLER SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. WITHOUT LIMITING ANY OTHER LIMITATIONS OF DAMAGES CONTAINED HEREIN, IN NO EVENT SHALL SELLER’S LIABILITY ON ANY CLAIM ARISING OUT OF OR CONNECTED WITH THE GOODS EXCEED THE PURCHASE PRICE PREVIOUSLY PAID BY BUYER TO SELLER FOR THE GOODS IN QUESTION.
5. Quantities. Seller may overrun or underrun the agree-upon quantities by up to 10%, and Buyer shall pay Seller at the unit price for quantities that Seller delivers within these limits. Any claim by Buyer that Seller failed to deliver the agree-upon quantity of goods (subject to any adjustment under the preceding sentence) must be submitted to Seller in writing within thirty (30) days after Buyer receives the goods. If Buyer fails to do so, then it shall be conclusively presumed that the proper quantity was delivered.
6. Blanket Purchasing Agreement. If the agreement between Seller and Buyer is a blanket purchasing agreement under which Buyer will from time to time issue to Seller “releases” with respect to portions of the goods, then, except to the extent that Seller otherwise expressly agrees in writing, when Buyer issues a release for any of the goods, Seller shall be permitted to ship all of those goods within __ days after Seller received the release, notwithstanding any contrary provision in the release.
7. Intellectual Property. All rights therein relating to the goods provided by Seller or otherwise contained in any item or documentation relating thereto, including, but not limited to, all drawings, designs, know-how, specifications, inventions, developments, processes, copyrights, trade secrets, trademarks, patents, service marks, engineering details and other data information, will remain the property of Seller.
8. Cancellation. Buyer has no right to cancel its agreement to purchase the goods from Seller. If, however, Seller agrees in writing to permit cancellation, then Buyer shall immediately pay to Seller a cancellation charge in an amount equal to the purchase price (including any tooling charge) less allowances (in amounts determined by Seller) for (i) the realizable value to Seller of any standard components purchased or ordered by Seller before cancellation, (ii) the realizable scrap value to Seller of the remaining material and tooling purchased, fabricated or ordered by Seller before cancellation, and (iii) any direct labor costs saved by Seller by reason of the cancellation. If Buyer fails to pay or perform any indebtness or obligation owing to Seller (whether or not related to the sale of goods described on the reverse side), then Seller may consider Buyer’s failure to be an anticipatory repudiation of any or all outstanding contracts providing for Seller to sell goods to Buyer, and Seller may, without liability to Buyer, cancel any or all of those outstanding contracts and refuse to ship products without liability for any damages associated with Seller’s refusal to ship.
9. Indemnity. Buyer shall indemnify and hold harmless Seller with respect to all damages, losses, claims and expenses, including consequential and incidental damages and attorney fees, that Seller incurs as a result of any breach by Buyer of any of its obligations under these Terms of Sale or any claimed unfair competition or patent, trademark or copyright or other infringement or any other claim resulting from Seller’s manufacture of the goods to Buyer’s specifications.
10. Force Majeure. Seller shall not be liable or deemed in default for any late deliveries hereunder or for any other delays or failure to perform where the late delivery, delay or failure to perform has been occasioned by acts of God, fire, embargo, labor or industry disruptions or disturbances, weather, shortage of materials, strikes, civil disordered, acts of terrorism, war, epidemics, computer malfunctions, vendor allocations, accidents, governmental, regulatory or legal action or orders, delays caused by Buyer (including, but not limited to, Buyer’s failure to promptly comply with the terms of payment), failure to secure materials from usual sources of supply, acts or omissions on the part of carriers, force majeure or any other circumstances beyond Seller’s control not hereinabove enumerated.
11. Complete Agreement. The terms on the reverse side and these Terms of Sale contain the entire agreement between Buyer and Seller. Any change or amendment to the terms contained herein must be in writing and signed by both parties.
12. Title. The title in goods sold shall be retained by Seller until the products are paid for in full. If the payment is not made when due, Seller may, at is option and without notice, enter the premises where the products may be located and repossess the goods. This reservation of title in Seller and the right to repossess shall be in addition to any and all other remedies Seller may have under law or equity. Any and all of the above mentioned remedies may be used at the same time and the use of any of these shall not constitute a waiver of the right to use any other available remedies.
13. Levies and Taxes. Any exercises, levies or taxes which Buyer may be required to pay or collect under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any of the material covered hereby shall be the responsibility if Buyer, and Buyer agrees to pay the amount thereof to Buyrer.
14. Arbitration. Disputes arising out of or related to the sale of goods under this invoice shall be construed in accordance with the Laws of the State of California. All disputes, controversies and disagreements arising out of or related to the sale of goods and/or the Terms of Sale contained herein shall be submitted to binding arbitration according to the Commercial Rules of the American Arbitration Association. The place and venue for any arbitration proceeding shall be Orange County, California. Any action by Buyer against Seller for breach of this Agreement or any other claim arising out of or relating to the goods or their design, manufacture, sale or delivery must be brought within one year after the cause of action accrues. The Seller shall, if it files any legal action or demands arbitration, and it prevails in any such action or arbitration, be entitled to an award of reasonable attorney fees and costs.