Terms and Conditions of Sale
General: The following terms and conditions shall apply for the purchase of all products from the Seller on the face of this Invoice or Packing List and supersede all prior, contemporaneous, and subsequent discussions and writings. No modification of these term and conditions shall be of any force unless such modification is in writing and signed by the Seller and Buyer. Purchase of the products hereby acknowledges acceptance of the following terms and conditions. All orders are accepted on the terms and conditions herein, and are not intended to be modified, changed, or superseded by any other document. This document contains all of the terms and conditions with respect to the sale and purchase of Seller's products. Seller can change its applicable terms and conditions at any time unless otherwise explicitly stated on the face hereof or in an effective prior written contract. If Buyer issues a purchase order or any other document relating to the purchase of products from Seller, such document issued by Buyer shall be considered to be for Buyer's internal use only. If any of the provisions of Buyer's purchase order or other writings are in conflict with the terms and conditions herein, the terms and conditions herein shall govern. The terms and conditions herein are not assignable or transferable by Buyer, in whole or in part, except with the written consent of Seller. The terms and conditions herein hereby bind the parties to all the terms and conditions contained herein. If any provision is held to be unenforceable, such holding shall not affect the enforceability of any other provision of the document. The failure of a party to enforce any provision of the terms and conditions shall not constitute a waiver of such provision, or the right to enforce such provision, or a waiver of any prior or subsequent breach of the terms and conditions. The prevailing party shall be entitled to reasonable attorneys' fees and costs in any action or proceeding to enforce the terms and conditions herein. The terms and conditions herein shall be governed by and construed under and in accordance with the laws of the State of California and the United States.
Orders: Orders are subject to acceptance by Seller. When in the opinion of Seller there is a period of shortages of supply of said products for any reason, Seller may allocate its available supply among any or all if its various customers upon such basic as it shall deem fair and practicable, with no liability on its part for failure to deliver the quantity or any portion therein specified.
Pricing: Prices are subject to change without notice. All prices are in U.S. Dollars. Receipt of any Price List does not constitute an obligation to sell.
Domestic Payment: Payments accepted by cash, checks, or wire transfers. No COD’s. $25.00 Returned Check Charge charged for returned checks.
International Payment: Prepayment of all orders originating or shipping out of the United States is required. Wire transfers are the accepted method of payment.
Credit: Net 30 days with pre-approved credit. Any amount past due 30 days shall accrue interest at the rate of 1.5% per month (18% per annum) or the highest rate permitted by law, whichever is lower, until all amounts due have been paid in full. Buyer authorizes seller to obtain information, as necessary, through trade references, bank reference, credit reporting agencies, or other sources in the evaluation of credit worthiness. Buyer agrees to notify seller in writing of any pending changing in ownership or change of location or any other changes which may materially affect the credit extended, payment of any balance due, or the terms and conditions of sale to seller. In the event Buyer fails to fulfill the terms of payment, seller may decline to make further deliveries except upon receipt of cash or satisfactory security. Buyer shall pay all reasonable costs, fees, including attorney's fees, and expenses incurred by Seller in collecting monies due or to become due hereunder. Any payments received shall be applied to first, to all attorneys' fees and costs of collection incurred by Seller, whether or not any court action has been filed; next, to interest; and then to principal.
Taxes: Buyer shall pay all taxes, excises, fees or changes with respect to the sale or transportation of all products. Buyer shall reimburse Seller for all taxes, excise or other charges which Seller may be required to pay to any government (national, state or local) upon the sale, production or transportation of the products sold hereunder.
Freight: All shipments are FOB Los Angeles, California, Seller's plant. Freight charges can be prepaid and added. Buyer shall have the right to select the carrier of its choice, and to specify the method of transportation. Buyer is solely responsible and liable for all charges, fees and costs incurred in the shipment of products, regardless of the choice of carrier.
Shortages: Seller must be notified in writing of any product shortage within 3 days of receipt of products. Any claim made beyond the 3 days period will not be honored.
Damage Claims: Damages may occur during handling. It is Buyer's responsibility to make a careful inspection of the evidence of loss or damage, both apparent and concealed. For loss or damage in transit, report to Seller immediately and retain damage products and shipping container for our instructions. For loss or damage by motor freight, freight forwarders, railway express, rail or air shipments, secure a notation of any loss or damage on your copy and on the carrier's copy of the delivery receipt, retain products and shipping containers and call carrier immediately for an inspection and file a claim with the carrier.
Claims: Buyer must notify Seller in writing of any claim of non-conforming products within 3 days of receipt of products. All other claims must be communicated to Seller in writing within 30 days after use or resale by Buyer. If the Buyer and Seller are unable to resolve any disputes, Buyer must institute legal action against Seller within 1 year of shipment. Under no circumstances shall Seller be liable for special, incidental, consequential or other damages, losses or expenses whatsoever, including, without limitation, damages or loss of business profits, business interruption, or any other pecuniary loss.
Returns: Returns will not be accepted without prior written authorization and return authorization number. Authorized returns must be in a clean, marketable condition, and must be returned freight prepaid. All returns are subject to a 20% restocking charge. All discontinued products and all products invoiced over 12 months prior is non-returnable. Custom and Private Label merchandise may not be returned. We reserve the right to reject credit requested for products returned without prior authorization.
Performance: Performance of Seller will be excused in case of act of God, war, riots, fire, explosions, floods, strikes lockouts, injunctions, inability to obtain fuel, power, raw materials, labor, containers or transportation facilities, accidents, breakage of machinery or apparatus, national emergency or because performance is made impracticable by the occurrence of any other unforeseeable contingency, or because of compliance in good faith with any applicable foreign or domestic governmental statute, regulation or order whether or not it later proves to be invalid, preventing the manufacture, shipment or acceptance of a shipment of the product, or preventing any manufacture of a material upon which the manufacture of the products is dependent. Any delivery so suspended shall be canceled without liability.
Warranty: All products are warranted to work properly when used as directed. Seller makes no further warranty, expressed or implied. Conditions of use are beyond Seller's control and therefore users are responsible for, and assume all risks and liability of their use and handling. In no event shall Seller be liable for direct, indirect, incidental, special, punitive, exemplary, speculative or consequential damages. It is Seller's option to either repair or replace defective products. Determination will be the sole discretion of the Seller. Buyer's exclusive remedy hereunder shall be the reimbursement of the purchase price of the product, or the replacement of defective product, with respect to which any claim is made whether such claim is in respect to product delivered or non delivery, and whether or not based on negligence, breach of warranty or strict liability in tort. Seller warrants that the product delivered hereunder shall be free of any rightful claim of infringement or the like unless the products are manufactured or products produced in compliance with specifications furnished by Buyer; however, Seller does not warrant against infringement or the like by reason of the use thereof in combination with other material or in operation of any process.
Hazardous Products: Buyer acknowledges that products sold herein may be hazardous to human health and buyer assumes all risk and liability for the use of the product. Buyer shall familiarize themselves and keep informed, without reliance on Seller, with respect to any hazards to persons or property involved in handling and use the products. The Buyer shall advise its employees, independent contractors, and others who handle and use the products for the Buyer, and shall advise others, including without limitation to the customers of the Buyer, who are foreseeable ultimate users of the products, of the hazards of the products. Due to the possible hazardous nature of the products sold hereunder, it is recognized that the buyer purchases such products solely at the Buyer's risk, and that in no event shall the Seller be liable for direct, indirect, incidental, special, punitive, exemplary, speculative or consequential damages, Buyer's exclusive remedy hereunder shall be the reimbursement of the purchase price of the material with respect to which any claim is made whether such claim is in respect to product delivered or non delivery, and whether or not based on negligence, breach of warranty or strict liability in tort. Buyer assumes complete responsibility for all risks and liability, and agrees to defend, indemnify and hold Seller and its employees and agents harmless from all liability, including without limitation to claims by Buyer, by Buyer's employees and customers, and any third parties, from all claims, demands, actions, and causes of action, including attorneys' fees and actual costs incurred as a result thereof, on account of injury to any person or any property damage, arising out of the handling, transportation, storage, possession, processing, further manufacture or other use or resale of the products sold by Buyer after the products are delivered to Buyer or upon Seller's delivery to carrier at shipping point, whether or not such products are handle, stored, or used singly or in conjunction with other products; provided, however, this paragraph shall not operate to relieve Seller from liability resulting solely from Seller's negligent acts omissions. It is expressly understood that any technical or safety advice furnished by Seller with reference to the use of products is supplied gratis, without consideration, and Seller assumes no obligation or liability for the accuracy or sufficiency of advice given or results obtained. All such advice being given and accepted at buyer given and accepted at Buyer's risk. Buyer agrees that products will be used, handled, stored, transported and disposed of in such a manner as is necessary for the safety and protection of persons, property and the environment, and accordance with Seller's recommendations and governmental laws and regulations. Buyer agrees to instruct its employees with respect to, and make certain that they know and understand, procedures necessary to enable them to comply with the requirements set forth herein and to make certain that they are adequately trained to handle emergency situations arising from the use, handling storage, transportation and disposition of the products. Buyer further agrees to deliver the most recent edition of such product literature to its customers and to maintain a written record of such deliveries. Buyer shall only sell to those who, in the best judgment of buyer, can handle, use, store, transport and dispose of products safely.
Buyer's Responsibility: Buyer assumes sole responsibility that the labeling, use, and/or transportation of the products, including but not limited to the preparation of any printed graphic material on any Custom Ordered Products, by or at the request of Buyer or its customer comply with all applicable laws and do not infringe upon the property rights of others; any and all parts, closures, packaging, seals or other components used by Buyer or its customers comply with all applicable laws; and the products are suitable for Buyer's intended purposes and, as used by Buyer, will comply with all applicable laws. Buyer shall indemnify, defend and hold Seller harmless from any claims, demands, costs, liabilities, including actual attorneys' fees, incurred relating in any way whatsoever to the labeling, use, and/or transportation of the Products, including all attorneys' fees incurred investigating, settling, or defending any claim, whether or not any court action has been filed.
Controlling Document: All products sold by Seller shall be subject to the terms and conditions set forth in the terms and conditions herein. In the event of a conflict between any of the terms and conditions contained herein and any other terms or conditions of any Purchase Order, or any other document, the terms and conditions contained herein shall control.
Waiver of Jury Trial: Buyer and Seller hereby waive the right to have any disputes relating in any way whatsoever to the subject matters of these terms and conditions resolved, in whole or in part, by a trial by jury and agree that any such disputes shall be resolved before a judge of a court of competent jurisdiction in Los Angeles County, California. Buyer hereby consents to jurisdiction of such courts and service of process by Certified Mail, addressed to Buyer, at the address shown in Buyer's Credit Application, or on the reverse side of this document.
Patent Indemnification: Seller shall protect and indemnify Buyer against all claims for damages or profits, including all reasonable costs incurred by Buyer in connection therewith, arising from infringement of patents, copyrights, or trademarks.