1. Exclusive Terms
All orders shall be governed by the following terms and conditions. These terms and conditions shall constitute the complete Agreement between the purchaser of the goods (herein called ‘Buyer’) and Cavity Sliders USA Inc. (herein called ‘Vendor’) and shall supersede all prior and contemporaneous oral and written statements of any kind whatsoever made by the parties and their representatives.
Vendor’s acceptance of any order is expressly conditioned upon Buyer’s assent to the terms and conditions contained in this Agreement. Any added, varied, or conflicting terms in Buyer’s Purchase Order, or elsewhere in any correspondence from Buyer, are hereby objected to and shall not bind Vendor. Buyer shall notify Vendor in writing, as soon as practicable after receipt of Vendors acceptance of Buyer’s order, of any objection to the terms of this Agreement. Buyer’s failure to notify Vendor of any objection shall conclusively indicate Buyer’s assent to and acceptance of all terms and conditions herein. Buyer expressly accepts the terms and conditions herein at the exact moment Vendor commences performance on any purchase order requiring or providing for Vendor to commence performance prior to Buyer’s receipt of Vendor’s written acknowledgment.
Vendor has the right to change, without notice, any prices and/or specifications contained in its catalog or any other writing that does not expressly prohibit such change.
Any applicable federal, state, local or other government taxes or charges on the sale or shipment of the goods covered by this Agreement shall be added to the price and paid by Buyer. Buyer agrees to hold Vendor harmless from all such taxes, including interest and penalties thereon, and any costs and expenses in connection thereupon.
5. Shipment, Freight and Delivery
Except as otherwise provided, all prices are F.O.B. Vendor’s warehouse in Los Angeles, California.
Except as otherwise provided, payment terms are net thirty (30) days from date of Vendor’s invoice. A late payment charge of one and one half percent (1.5%) per month (but not in excess of the legal maximum) may be added to all past due balances. Buyer is responsible for reasonable attorney’s fees, costs and expenses incurred in connection with the collection of past due balances. Buyer shall have no right of set-off. Buyer’s cancellation of orders for any items referred to in the Vendor’s current catalog is subject to a service charge to cover the costs of initial processing and/or production of the order.
7. Financial Responsibility
Shipments and deliveries of all items shall at all times be subject to approval of Vendor’s Credit Department. Vendor at any time may require payment in advance or satisfactory security or guarantee that invoices will be promptly paid when due. Prior to credit approval orders will only be shipped on the basis of payment in advance. Buyer should submit a completed credit application with its initial order to expedite credit approval. In addition to and without limiting Vendor’s existing rights and remedies, Vendor reserves the right to withhold further deliveries and/or terminate this or any other contract with Buyer, if Buyer fails to comply with the terms of this or any other Agreement. Upon Vendor’s termination of this Agreement, all unpaid amounts Buyer owes Vendor shall become immediately due and payable.
8. Buyer’s Agreement to Defend
Buyer agrees to defend, protect, and save Vendor harmless against all suits at law or in equity and from all costs of suit, reasonable legal fees, expenses, damages, claims, and demands arising out of or awarded in connection with any goods: (a) sold or supplied to Buyer by Vendor that are not maintained and operated in accordance with Vendor’s recommended procedures, or (b) sold or supplied to Buyer by Vendor to meet Buyer’s specifications, requirements, or instructions.
9. Notice of Accident or Malfunction
Buyer shall notify Vendor promptly and in any event within thirty (30) days of any accident or alleged malfunction involving goods manufactured or sold by Vendor. Buyer agrees to protect, defend, and save Vendor harmless (as provided in paragraph 8), in the event that Buyer fails to give such notice to Vendor and to so cooperate. Buyer agrees to provide reasonable support and cooperation to the Vendor in the investigation of any accident or alleged malfunction of involving goods manufactured or sold by Vendor.
Except as otherwise provided, Vendor warrants for a period of two (2) years from the date of shipment that the goods supplied to Buyer shall be of good materials and workmanship. Vendor makes no warranty with respect to the following: (a) materials not manufactured by Vendor, the use of which is suggested by Vendor’s general recommendations, application or installation procedures, or otherwise; (b) goods sold by Vendor to Buyer for other than resale; and (c) all display items sold by Vendor to Buyer. THE FOREGOING WARRANTIES ARE EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR WARRANTIES ARISING OUT OF COURSE OF DEALING OR CUSTOM OR TRADE. Vendor DOES NOT ASSUME, NOR AUTHORIZE ANY REPRESENTATIVE OR OTHER PERSON TO ASSUME FOR IT, ANY OBLIGATION OR LIABILITY OTHER THAN AS EXPRESSLY SET FORTH HEREIN.
11. Limitation of Remedies
Vendor’s obligations under the above warranties (contained in Section 10) are conditioned upon Vendor actually receiving notice from Buyer of the alleged defect within two (2) years from date of shipment and the allegedly defective goods revealing an actual defect upon examination by Vendor. Vendor shall not be liable for any labor or other expenses incurred by Buyer in the removal, repair, or replacement of the goods or any component part claimed to be defective, nor shall Vendor be liable for any expenses incurred by the Buyer in order to remedy any defect. Vendor shall not be liable for any consequential, special, or contingent damages or expenses, arising directly or indirectly from any defect in the goods, or from Buyers use or inability to use such goods. The discharge of Vendor’s warranty obligation hereunder shall constitute fulfillment of all liabilities of Vendor to Buyer, whether based on contract, negligence, or otherwise.
The remedies set forth herein shall be the exclusive remedies available to the Buyer and in lieu of all other remedies, and the liability of Vendor, whether in contract, in tort, warranty or otherwise, shall not exceed the price of the goods sold, supplied, or furnished by Vendor. Any suit or action arising out of or relating to this Agreement or the breach thereof must be commenced within two (2) years after the cause of action has accrued. The foregoing shall not limit the time within which any suit or action must be brought to collect an amount agreed to be paid by Buyer or to enforce a judgment or to collect any amount awarded to Vendor. The sole purpose of the stipulated exclusive remedy shall be to provide Buyer with a credit or replacement for, or repair of, defective parts in the manner provided herein. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Vendor is willing to credit Buyers account, repair, or replace the defective part(s) in the manner prescribed herein.
Buyer must make claim for credit due to shortage within five (5) days of the date of the shipment. Any shortage claim not made within this period is conclusively deemed waived by Buyer.
Buyer must receive a Returned Materials Authorization (RMA) prior to returning goods. Buyer must request an RMA within thirty (30) days of the date of the shipment in order to be considered. Vendor will not issue an RMA for special order, non-stock, obsolete or made-to-measure goods. All goods returned to Vendor must be in the original packaging and in resalable condition and must pass inspection before any credit is issued by Vendor.
14. Handling Charges for Returns
Buyer is subject to a handling charge of no less than twenty dollars ($20.00) and no more than twenty percent (20%) of the sales price of the returned goods. Defective goods, as verified by inspection, are not subject to a handling charge.
Vendor is not liable for any damages to goods sustained during shipment. Buyer is responsible for filing any damage claims with freight carriers and is subject to the rules of the freight carriers regarding the timing and processing of claims. IN NO EVENT WILL Vendor BE LIABLE TO BUYER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES, ARISING FROM ANY SOURCE, REGARDLESS OF THE NATURE OF THE CLAIM, EVEN IF Vendor HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
16. Defaults or Delays
Vendor shall not be liable for any default or delay in the production or delivery of all or any goods resulting either directly or indirectly from (a) accidents to, breakdowns, or mechanical failure of Vendor’s plant, machinery, or equipment; strikes or other labor troubles; labor shortages; fire; flood; wars; acts of the public enemy, acts of God; delays of suppliers; delays in transportation or lack of transportation facilities; embargoes; shortages of, or reductions in energy sources; priorities, allocations, limitations, restrictions, or other acts required or requested by Federal, state, or local governments, or any subdivision, bureau or agency thereof; or (b) any cause beyond the control of Vendor.
17. Governing Law
Both Buyer and Vendor execute all orders with reference to the laws of the State of California and the rights of all parties and the construction and effort of every provision of this Agreement shall be subject to and construed according to the laws of the State of California, without giving effect to any conflicts of laws principles that would obtain a different result.
18. Binding Effect
The provisions of any order shall bind and inure to the benefits of Vendor and Buyer and their respective successors and permitted assigns. However, neither this Agreement, nor any part thereof or right thereunder, may be assigned by Buyer without the prior written consent of Vendor.
The right of either party to require strict performance by the other party of any or all terms and conditions of this Agreement shall in no way be affected or impaired by prior waiver, forbearance, or course of dealing.
Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of the Agreement should be prohibited or invalid under appropriate law, that provision will be deemed deleted and the remaining provisions of the Agreement will remain in full force and effect. The subject headings of the sections of this Agreement are included for the purpose of convenience only and will not affect construction or interpretation of any of its provisions.
21. Intellectual Property Liability
The Buyer agrees that where the Vendor provides written instructions, written technical advice, drawings, designs, models, prototypes or samples the ownership (whether they are trademarked or not) shall remain the intellectual property of the Vendor and the Buyer agrees that it can only use the intellectual property in the use of the Goods or Services and that it will not give, sell or assign the intellectual property of the Vendor to any third party. Where the Vendor has followed plans, drawings, designs, specifications and instructions being oral or written provided by the Buyer, the Buyer shall indemnify the Vendor against damages, costs and expenses in respect of which the Vendor may become liable by following such plans, drawings, designs, specifications and instructions and including those arising from the infringement of patents, copyrights or trademarks by the Purchaser. If any claim is made against the Buyer in respect of infringement of copyright, patent or registered design (intellectual property) relating to the Goods supplied by the Vendor for the use of the Buyer, the Buyer shall advise the Vendor and follow the directions of the Vendor with regard to defence or security of the intellectual property and the Vendor will decide its course of action and indemnify the Buyer against all claims against infringement of intellectual property brought by any third party.