INVOICE TERMS AND CONDITIONS (Wholesale Transaction w/ Web Payment)
I. TERMS OF PAYMENT
Electronic payments to be made via www.utility.design. In addition, Buyer shall pay all sales, use, customs, excise or other taxes presently or hereafter payable in regards to this transaction, and Buyer shall reimburse Seller for any such taxes or charges paid by Utility Design, Inc. (hereafter "Seller.") All sales are F.O.B. Seller’s warehouse.
II. DELIVERY, WEIGHT
Upon due tender of goods for delivery at the F.O.B. point all risk of loss or damage and other incident of ownership pass to Buyer, but Seller retains a security interest in the goods until purchase price is paid. All deliveries are subject to weight at shipping point which shall govern.
Seller warrants that goods sold hereunder are merchantable UNLESS manufactured in conformance with Buyer’s particular specification, and that Seller conveys good title thereto. IN NO EVENT WILL SELLER BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF CUSTOMER HAS NOT BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE EXPRESS WARRANTY STATED IN THIS PARAGRAPH IV, SELLER GRANTS NO WARRANTIES, EITHER EXPRESS OR IMPLIED HEREIN, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THIS STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF SELLER FOR DAMAGES INCLUDING BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES OCCURRING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY GOODS SOLD HEREUNDER. Seller specifically does not warrant the accuracy of sufficiency of any advice or recommendations given to Buyer in connection with the sale of goods hereunder.
Buyer shall be liable for Seller’s damages including loss of reasonable profits, caused by Buyer’s default hereunder. If Seller, upon Buyer’s default, repossesses or retains any goods sold hereunder, Seller’s damages shall be the contract price of the goods plus freight, storage, handling & all other disposal costs incurred, less the then-current reasonable scrap value of the goods.
If goods supplied are not merchantable, Seller at its option may replace them or refund the purchase price upon their return. Buyer shall not return goods until Seller has had reasonable opportunity to investigate goods, and then only after receiving Seller’s written shipping instructions. THIS SHALL BE BUYER’S EXCLUSIVE REMEDY. Buyer waives all claims arising from breach by Seller unless Seller receives written notice of breach from Buyer
within 90 days after Buyer receives goods. In no event shall Seller be liable for any special consequential, or contingent damages resulting from Seller’s Breach of Warranty, delay or performance or any other default hereunder. Buyer further agrees that Seller will not be liable for any lost profits nor or any claim for demand against Buyer by any other party.
VI. FORCE MAJEURE
Seller shall not be liable for any damages resulting from: any delay or failure of performance arising from any cause not reasonably within Seller’s control; accidents to, breakdowns or mechanical failure of machinery or equipment, however caused; strikes or other labor troubles, shortage of labor, transportation, raw materials, energy sources, or failure of usual means of supply; fire; flood; war, declared or undeclared; insurrection; riots; acts of God or the public enemy; or priorities, allocations or limitations or other acts required or requested by Federal, State or local governments or any of their sub- divisions, bureaus or agencies. Seller may, at its option, cancel this Agreement or delay performance hereunder for any period reasonably necessary due to any of the foregoing, during which time this Agreement shall remain in full force and effect. Seller shall have the further right to then allocate its available goods between its own uses and its customers in such manner as Seller may consider equitable.
VII. PATENT INDEMNITY
Seller shall defend and hold Buyer harmless for any action against Seller based in a claim that Buyer’s sale or use of goods normally offered for sale by Seller, supplied by Seller hereunder, and while in the form, state or conditions supplies constitutes infringement of any United States letters patent; provided Seller shall receive prompt written notice of the claim or action, and Buyer shall give Seller authority, information and assistance at Seller’s expense. Buyer shall defend and hold Seller harmless for any action against Seller or its suppliers based in a claim that the manufacture or sale of goods hereunder constitutes infringement of any United States letters patent, if such goods were manufactured pursuant to Buyer’s designs, specifications and /or formulae, and were not normally offered for sale by Seller; provided Buyer shall receive prompt written notice of the claim or action and Seller shall give Buyer authority, information and assistance at Buyer’s expense. Buyer and Seller agree that the foregoing constitutes the parties’ entire liability for claims or actions based on patent infringement.
VIII. WAIVER, MISTAKE
Seller’s waiver of any provision herein or any breach thereof, shall not constitute a waiver of any subsequent breach thereof, nor of any other provision herein. Seller may correct any errors herein, on any invoice issued to Buyer, or on its published price sheets, and such correction shall operate to amend this Agreement.
IX. CHOICE OF LAW
This contract is deemed to be made in the State of California. Buyer and Seller expressly agree this Agreement is to be governed by the Uniform Commercial Code as enacted and construed in the State of California.
X. CONFLICTING PROVISIONS
Buyer expressly WAIVES all provisions contained in any of Buyer’s correspondence or forms involved in this sale which negate, limit, extend or conflict with provisions herein and agrees that this Agreement constitutes the entire contract between Buyer and Seller except as expressly negated, limited or extended by Seller IN WRITING and signed by an officer of Seller.
XI. ARBITRATION FOR CLAIMS EXCEEDING $2,000.00
Any and all disputes relating to this Agreement or its breach in which the amount in controversy exceeds Two Thousand ($2,000.00) Dollars shall be settled by arbitration in the Ventura County, California in accordance with the then current rules of the American Arbitration Association, and judgement upon the award entered by the arbitrator may be entered in any Court having jurisdiction hereof. Costs of arbitration, including reasonable attorney’s fees incurred in arbitration as determined by the arbitrator, together with any reasonable attorney’s fees incurred by prevailing party in Court enforcement of the arbitration award after it is rendered by the arbitrator, shall be paid to the prevailing party by the party designated by the arbitrator or Court. The arbitrator is directed to strictly apply the law of the State of California.
Should one party either dismiss or abandon its claim or counter-claim before hearing thereon, the other party shall be deemed the "prevailing party" pursuant to this Agreement. Should both parties receive judgement or award on their respective claim, the party in whose favor the larger judgement or award on their respective claim, the party in whose favor the larger judgement or award is rendered shall be deemed the "prevailing party" pursuant to this agreement.
This provision shall in no way effect or limit any rights Seller may have to enforce any security granted by law including but not limited to statutory right to repossession, garageman’s lien, mechanic’s liens, stop notices, or suit on payment bonds.
XII. SERVICE CHARGE
A service charge equal to the lesser of two percent per month or the maximum charge
allowed by applicable law will be applied on past due accounts.
XIII. MINIMUM ADVERTISED PRICE
Seller has established a Minimum Advertised Price equal to $149.99 per piece (“MAP”) that all resellers of Seller’s products must follow. Buyer shall not promote, market or advertise the sale of Seller’s products below the MAP on any medium and under any circumstance.