Terms and Conditions
As used herein: (a) “Seller” means Force 1 Decon/ T.E.A.M. CORPORATION shown on the reverse side of this order, and (b) “Buyer” means the party or parties accepting this order and any agent, officer, servant, employee or subcontractor of such party or parties.
This order becomes binding when accepted and is expressly conditioned on Buyer’s acceptance without addition or alteration. No modification of this Agreement shall be of any force or effect unless in writing and signed by the party to be charged. Seller rejects any additional or different terms that Buyer proposes or attempts to impose, and Seller’s acknowledgment or acceptance of purchase order forms stipulating different conditions shall not modify the terms and conditions hereof. Buyer shall be deemed to have accepted these terms and conditions (and objections to any terms and conditions shall be deemed to have been waived) if Buyer signs or receives the accompanying documentation as it corresponds to purchase order if Seller does not receive written notice within ten (10) days of the date of the invoice document, or upon Buyer’s acknowledgment of acceptance on the reverse hereof.
Buyer has the sole responsibility to determine the suitability of the goods described on the face hereof for Buyer’s contemplated use. Buyer assumes all risk and liability for loss, damage, or injury to buyer’s property or person arising out of the use or possession of the goods furnished hereunder.
Buyer shall pay all freight and transportation costs FOB point of shipment to Buyer. Seller shall select routing and carrier. Buyer is solely responsible for filing timely and proper claims against carriers if goods are lost or damaged in transit. Buyer assumes and shall bear all risk of loss or damage to any purchased goods provided under this order once the goods are delivered to the carrier. Seller assumes no responsibility for damage in transit.
In addition to the price quoted or invoiced, Buyer shall pay any tax, duty, custom, or other fee that any Federal, State, or local governmental authority imposes on this transaction. Buyer shall promptly reimburse Seller if Seller is required to prepay such monies.
Seller shall have no liability for any delays or nonperformance caused by circumstances beyond Seller’s control including, but not limited to, fire, flood, war, riot, civil commotion, government action, accident labor trouble or shortage, energy shortage, inability to obtain material, equipment, transportation delays, or acts of God.
Upon request, Seller will endeavor to furnish such technical advice as it has available in reference to Buyer’s use of its products.
Buyer expressly understands that any technical advice that Seller furnishes concerning the use of its products is given gratuitously, and Seller assumes no obligation or liability for the advice or results obtained, all such advice being given and accepted at Buyer’s risk.
TERMS OF PAYMENT & CONSIGNMENT
Buyer agrees to promptly pay all sums agreed to be paid hereunder, together with all costs incurred in the collection of any amount due by suit or otherwise, including reasonable attorneys’ fees. Unless otherwise noted on the face of this order, terms are that no invoice is considered to be an invoice but a memo-consignment until such time that payment is received in full. Until then all shippers are considered memo-consignment forms with invoices being due reminders of net cash thirty (30) days from the date. All shipments received by the buyer shall remain a memo consignment until such time Invoice provided is paid. A UCC shall be filed as the first action on shipped merchandise within 90 day period of invoice reminder. Shipments and deliveries hereunder shall at all times be subject to the approval of the Seller’s credit department. Seller’s published prices, extras, and payment terms are subject to change without notice and those in effect at the time of shipment shall apply. Seller reserves the right to divide an order into separate shipments and separately invoice such shipments, in which case each shipment shall be deemed a separate contract, and payment, therefore, shall be due in accordance with these terms and conditions. If Buyer fails to fulfill the terms of payment, or if Seller shall ever have any doubt as to Buyer’s financial responsibility, Seller may, at its option, and without limitation, (i) require full or partial payment in advance, as security against merchandise (ii) demand full payment and suspend further deliveries until payment is received, or (iii) decline to issue any product until consignment is satisfied with adequate financial security. Buyer’s failure to furnish payment upon demand shall constitute a repudiation of this contract, and Seller shall be entitled to receive memo-consignment as provided on this document. Seller shall not be liable for any of Buyer’s costs or expenses arising out of the exercise of any of Seller’s rights hereunder. Seller may accept at its own risk other products in place of memo-consignment as offsetting goods.
Buyer shall be liable for the payment of reasonable cancellation charges, which shall not be less than 10% of the price of the goods canceled, but shall include, without limitation, the following: (a) all costs and expenses that Seller incurs for or on account of the goods canceled and the cancellation; (b) any and all liabilities, costs, damages and expenses that Seller incurs by or as a result of commitments incident to the goods involved including, without limitation, commitments made or liabilities assumed to any supplier of such goods and materials used in such goods; and (e) any and all indirect charges as well ass reasonable profit. Cancellation Charges shall be primarily assessed to custom orders for memo-consignment, but a 20% restocking fee shall always apply.
Accepted orders cannot be canceled, in whole or in part, without the Seller’s written consent. If Buyer requests cancellation of orders for products which have been manufactured in whole or in part, such cancellation shall be at Seller’s option and subject to cancellation charges. Seller’s failure to meet estimated ship dates will not be sufficient cause for cancellation of orders.
NO WARRANTIES EXIST WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. SELLER DISCLAIMS AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO DESCRIPTION, QUALITY, PRODUCTIVENESS, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, OR ANY OTHER MATTER, OR AS TO THE GOODS PURSUANT TO THIS AGREEMENT.
Buyer’s exclusive remedy from claims arising from defective or nonconforming goods shall be limited to replacement thereof or refund of a portion of the purchase price, at Seller’s option. SELLER SHALL NOT BE RESPONSIBLE OR LIABLE FOR CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF OR OCCURRING IN CONNECTION WITH THE SALE, DELIVERY, USE, PERFORMANCE, OR SERVICE OF THE GOODS MEMO-CONSIGNED OR SOLD UNDER THIS AGREEMENT. SELLER SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR FOR ANY CLAIM OR DEMAND AGAINST SELLER BY ANY OTHER PARTY. IN NO EVENT WILL SELLER BE LIABLE FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SELLER’S AGREE GATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING FROM OR BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, OR OTHER CAUSE OF ACTION, SHALL IN NO CASE EXCEED THE PUR CHASE PRICE THAT BUYER PAYS FOR THE PARTICULAR GOODS INVOLVED.
Buyer grants to Seller a first priority purchase money security interest in all products purchased hereunder, and in each and every item thereof, including replacements, proceeds, and products thereof, to secure payment of all amounts and performance of all obligations due hereunder. Buyer shall execute, at Seller’s request, all financing statements that Seller deems necessary or desirable to perfect Seller’s security interest. Buyer authorizes Seller to sign on Buyer’s behalf and file, a copy of the security agreement or a financing statement with the appropriate authorities to perfect Seller’s security interest in all memo-consigned goods. Seller shall have all rights and remedies of a secured party under the UCC iii effect in any applicable jurisdiction.
No merchandise can be accepted for credit unless the Seller has previously authorized the return. Merchandise must be returned freight prepaid within thirty (30) days of receipt. A 20% restocking charge may apply to returned merchandise.
OPTION TO ACCELERATE
Seller shall have entire right on written notice to Buyer to demand immediate payment of amounts due hereunder if Seller believes in good faith that the prospect of Buyer’s payment or performance is impaired. Buyer’s acceptance of products shall constitute an express representation at Buyer is not then insolvent within the meaning of Title 11, United States Code or similar federal or state law.
The provisions of this Agreement are severable and if any provision is invalid, void, or unenforceable in whole or in part for any reason, tire remaining provisions shall remain in full force and effect.
Seller’s failure or refusal to insist upon strict performance of any provisions of this Agreement shall not be deemed a waiver of Seller’s rights or remedies, or a waiver by Seller of any subsequent default by Buyer in the performance of or compliance with the terms of this Agreement.
The captions in this Agreement are included for convenience and general reference only and shall not be construed to describe, define or limit the scope or intent of the provisions of this Agreement.
Buyer may not assign this Agreement in whole or in part and any attempted assignment shall be void and of no effect.
This instrument constitutes the entire agreement and understanding of the parties and supersedes all prior agreements and understandings relating to tire subject matter hereof. No agreements, understandings, restrictions, warranties, or representations exist between or among the parties other than those expressly set forth.
Claims for errors, shortages, defective goods, and any other claims of Buyer relating to the goods must be made in writing within fifteen (15) days after receipt of the goods and must refer to the date and number of the invoice. Seller shall have a reasonable opportunity to investigate all claims.
APPLICABLE LAW AND JURISDICTION
Buyer and Seller agree that interpretation of and performance under these contract terms conditions, as well as all other aspects of the transaction contemplated by these terms and conditions, shall be governed by the laws of the State of California without regard to California’s conflict or choice of law rules. Buyer and Seller further agree that any action at law, suit in equity, or other judicial proceedings with respect thereto must be brought and maintained in the federal or state courts of record situated in the State of California or as stipulated by Seller.
LATE PAYMENT AND PRODUCT COLLECTION COSTS
If Seller decides to place Buyer’s account for collection, Buyer shall pay all costs and expenses hereof including reasonable attorneys’ fee. Should Buyer fail to pay any amount that Buyer is required to pay Seller, Buyer shall pay to Seller interest on the delinquent payment from the due date thereof until paid at the rate of 1.5% per month (18% per year), but in any case not to exceed the maximum lawful rate under any applicable law.
Any provisions required to be included in a contract of this type by any applicable federal, state, or local law ordinance or governmental rule, regulation, order, or over governmental requirement shall be deemed incorporated herein as if fully set out.