These Standard Terms and Conditions (the “Terms and Conditions”) of Calstrip Industries Inc. (“Seller”) are made part of each Purchase Order that expressly incorporates them. All references herein to the “Contract” shall mean the Purchase Order and the Terms and Conditions, and all references herein to the “Purchase Order” means the Buyer’s Purchase Order.
SECTION 1. GOVERNING TERMS All sales and purchases of the goods described in the Purchase Order (the “Goods”) shall be governed by the Terms and Conditions. BUYER IS HEREBY NOTIFIED THAT SELLER OBJECTS TO ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS CONTAINED IN ANY OTHER DOCUMENT WITH RESPECT TO THE SALE AND PURCHASE OF THE GOODS. [SELLER will not accept nor will it be bound by any offer to sell and purchase the Goods unless and until the Purchase Order is signed and returned by Buyer, without any additional terms, and no other form of acceptance shall be binding on Seller. Upon execution of the Purchase Order, Buyer accepts and shall be bound by the terms of the Contract.]
SECTION 2. PAYMENT, PRICES AND SHIPMENT Payment for the Goods is due and payable at net 30 days, unless otherwise stated in the Purchase Order. If payment by Buyer is not made when due, Buyer shall pay a service change on any overdue amount at the rate of 1-½% per month from the date of purchase without prejudice to any other rights of Seller.
Delivery of the Goods shall be deemed complete upon placing the Goods with Seller’s carrier, unless otherwise stated in the Purchase Order.
The delivery date, if any, set forth in the Purchase Order represents Seller’s best estimate. While Seller will endeavor to meet the delivery date, Seller shall not be liable for failing to do so provided, however, that if Seller is more than 60 days late in meeting a delivery date, Buyer may, as its exclusive remedy, terminate the Contract.] Except as provided in this Section 2, Buyer will in no event cancel the Contract.
SECTION 3. TAXES, DUTIES AND OTHER EXPENSES [Buyer assumes full responsibility for (including, without limitation, reporting and payment of) any and all sales or use taxes, import duties and other expenses relating to the sale and delivery of the Goods, and any and all other charges of like nature which may be imposed upon the Goods. Buyer shall maintain certificates of resale (which it shall furnish to Seller upon request) which will relieve Seller of the obligation to collect sales taxes for the sale of the Goods.]
SECTION 4. WARRANTY. [SELLER warrants to Buyer that, at the time of delivery, the Goods shall be free from defects in material and workmanship]. SELLER DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, BUYER FURTHER ACKNOWLEDGES THAT SELLER IS MAKING NO WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OR AGAINST INFRINGEMENT OR THE LIKE; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; OR (C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING IN WHOLE OR IN PART FROM STRICT LIABILITY OR THE NEGLIGENCE OF SELLER, ACTUAL OR IMPLIED.
The warranty in this Section 4 shall terminate five days after delivery of the Goods to Buyer. If deliveries are made in lots or installments, the warranty in this Section 4 shall terminate separately five days after the delivery of each lot or installment. Prior to such five day period, the warranty in this Section 4 shall be null and void if the Goods are not stored or handled appropriately by Buyer or misused, cut, altered or not properly maintained by Buyer.
If the Goods do not materially conform to the warranty set forth in this Section 4, and the warranty is not otherwise excluded as provided herein, Buyer must notify Seller in writing of such non-conformance within the five day warranty period. Upon receipt of such notice, Seller will schedule an inspection of the Goods. If the Goods do not comply with the warranty, Seller, in its sole discretion, shall either replace the defective Goods at no cost to Buyer or refund to Buyer the purchase price. SUCH REPLACEMENT OR REFUND REMEDY IS THE ONLY REMEDY AVAILABLE TO BUYER FOR ANY BREACH OF THE WARRANTY AND SHALL BE EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES OTHERWISE AVAILABLE TO BUYER AT LAW OR IN EQUITY.
SECTION 5 LIABILITY Notwithstanding the remedies set forth herein, Seller’s total liability, whether in contract or otherwise, arising out of or relating to the Goods shall not exceed the price paid by Buyer for the goods giving rise to the liability. WITHOUT LIMITING THE FOREGOING, SELLER SHALL NOT BE LIABLE FOR PROSPECTIVE PROFITS OR PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST TIME, LOST PROFITS, LOST SALES, DAMAGES RESULTING FROM DELAYED SHIPMENT OR THIRD PARTY CLAIMS) ARISING FROM OR RELATING TO THE GOODS, OR FOR ANY DELAY OR FAILURE TO PERFORM DUE TO CAUSES BEYOND ITS CONTROL INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, ACTS OF WAR, FAILURE OF SUPPLIERS TO PERFORM, GOVERNMENTAL REGULATIONS, NATURAL DISASTERS, OR FROM ANY BREACH OF WARRANTY, COVENANT OR CONTRACT BY SELLER ARISING OUT OF OR RELATING TO THE GOODS, IN EACH CASE, EVEN IF SELLER HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SECTION 6. RISK OF LOSS & TITLE Risk of loss, destruction or damage to or of the Goods shall pass to Buyer upon delivery of the Goods to [Seller’s carrier or, if earlier, to] Buyer, unless otherwise stated in the Purchase Order. Title to the Goods shall remain in Seller until fully paid for by Buyer. In the event of insolvency of Buyer prior to payment in full, or default in payment, Seller may [enter into Buyer’s premises and] reclaim the Goods, and Buyer waives all claim for damage in connection therewith. Repossession shall not preclude recovery of a deficiency from Buyer or waive any other remedies that Seller may have against Buyer.
SECTION 7. INSURANCE Buyer shall, at its sole expense, maintain proper insurance to cover the Goods (including, without limitation, product warranty and liability insurance).
SECTION 8. COMPLIANCE WITH LAWS Buyer shall comply with all laws and regulations governing or otherwise applicable to the Goods, including, without limitation, all laws and regulations governing competition, restrictive practices and sale of the Goods.
SECTION 9. GOVERNING LAW & DISPUTES The validity, construction and interpretation of the Contract, and the rights and obligations of the parties arising out of or relating to the Contract, shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict or choice of law provisions. Buyer submits to the jurisdiction of any state or federal court sitting in Los Angeles, California, in any action or proceeding arising out of or relating to the Contract and agrees that all claims in respect of the action or proceeding shall be heard and determined in any such court. In the event Seller brings any action to enforce the Contract, its shall be entitled to recover attorneys’ fees and other costs incurred in that action in addition to any other relief to which it may be entitled. In addition, Buyer shall be responsible for all other costs incurred by Seller in exercising its rights under the Contract.
SECTION 10. ENTIRE AGREEMENT The Contract constitutes the entire agreement between Seller and Buyer with respect to the subject matter hereof and may not be modified except by the party to be charged.
SECTION 11. NON-WAIVER OF RIGHTS; SEVERABILITY The failure of Seller to insist upon strict performance of the Contract or to exercise any rights or remedies shall not be construed as a waiver of its rights to assert any of the same or to rely on any such terms or conditions at any time thereafter. Each term of the Contract is severable. If a court, agency, or arbitrator having jurisdiction, as applicable, determines that any term hereunder is invalid or unenforceable under applicable law, that determination will not affect the other terms of the Contract, which other terms will continue to be enforced as if the invalid or unenforceable terms were omitted.
SECTION 12. CONSTRUCTION The section headings set forth in the Contract are for the convenience of the parties, and in no way define, limit, or describe the scope or intent of the Contract and are to be given no legal effect. The Contract shall not be construed or interpreted for or against any party because that party drafted or caused that party’s legal representative to draft any of its provisions. Time is of the essence to each and every provision of the Contract.
SECTION 13. ASSIGNMENT Buyer shall not assign the Contract and/or its rights or obligations hereunder without the prior written consent of Seller. The Contract shall bind and inure to the benefit of the parties and their successors and permitted assigns.
SECTION 14. FORCE MAJEURE A party shall not be liable for nonperformance or delay in performance (other than of obligations regarding payment of money) caused by any event reasonably beyond the control of such party including, but not limited to wars, hostilities, revolutions, riots, civil commotion, national emergency, strikes, lockouts, unavailability of supplies, epidemics, fire, flood, earthquake, force of nature, explosion, embargo, or any other Act of God, or any law, proclamation, regulation, ordinance, or other act or order of any court, government or governmental agency.