SELLER’S TERMS AND CONDITIONS
- Acceptance: No purchase order, offer, or proposal, or any amendment thereto, shall bind Seller unless accepted in writing by Seller. It is understood that Seller’s acceptance relates only to the specific Products identified on the Seller’s invoice.
- Prices: The prices charged for Products shall be those indicated on Seller’s invoice.
- Taxes: In addition to the price of Products sold by Seller, Buyer assumes and agrees to pay Seller, and to hold Seller harmless from and against all sales, use, excise or other taxes or assessments imposed upon Products by any federal, state or local authority.
- Terms of Payment: Seller shall invoice Buyer upon shipment of Products, and payment shall be due on the term indicated on invoice. A service charge of one and one-half percent (1 1/2%) per month shall be payable, computed from the date of invoice, on all delinquent amounts owed Seller. All payments shall be made in U.S. dollars only. Without limiting Seller’s other rights, any check which is rejected by the bank for any reason shall be subject to a charge of $25.00.
- Security Interest: In consideration for the sale of Products to Buyer, Buyer grants to Seller a purchase money security interest in Products shipped by Seller to Buyer, which security interest shall extend to all parts, repairs, and accessories now or hereafter attached to such Products, and to all proceeds therefrom, including, without limitation, accounts receivable generated upon the sale of such Products by Buyer, to secure payment to Seller of all monies now or hereafter owed by Buyer to Seller in connection with the sale of Products to Buyer. Buyer agrees to execute and deliver whatever documents Seller may require in order to enable Seller to perfect its security interest. Buyer’s failure to pay all amounts owed to Seller in full as and when due shall constitute a default and shall give Seller all rights of a secured party under the California Uniform Commercial Code.
- Shipment Date: Unless otherwise agreed in writing, shipment dates specified by Buyer or Seller shall be approximate, and Seller shall incur no liability for failure to ship on such dates. Seller reserves the right to ship Products to Buyer in installments or separate lots.
- Changes in Financial Condition of Buyer: Each shipment shall constitute a separate sale and upon Buyer’s failure to give shipping instructions promptly or to pay for any shipment, Seller may, at its option, cancel or suspend performance of Buyer’s purchase order. If in Seller’s sole judgment Buyer’s financial condition deteriorates between the date of acceptance of Buyer’s purchase order and the date specified for shipment of Products, Seller may, at its option, require payment before shipment.
- Risk of Loss: Risk of loss on all Products shall pass to Buyer upon shipment from Seller’s factory or warehouse.
- Inspection of Product Upon Delivery: Buyer shall verify the piece count immediately upon delivery and any shortage or overage must be documented on the bill of lading. Buyer shall notify Seller the discrepancy if any by phone, facsimile or e-mail. Buyer shall inspect all Products within 48 hours following delivery of Products to Buyer’s place of business and within 48 hours shall give Seller written notice by facsimile of any claimed defect in such Products. Buyer agrees that such notice period is reasonable. Failure to give timely notice, as provided above, shall be deemed acceptance and approval of the condition of such Products.
- Nonconformity of Product: Buyer may not reject or revoke its acceptance of Products unless the nonconformity of such Products is substantial. No nonconformity or defect in any lot or installment shall constitute grounds for claiming breach of the entire purchase order or sales agreement, and any lots or installments whose conformity Buyer does not dispute shall be paid for in accordance with these terms and conditions, regardless of any dispute concerning other shipments or installments, or undelivered Products. Seller reserves the right to cure, by repair or replacement, any defective Products within a reasonable time after receiving written notice from Buyer specifying such claimed defects in reasonable detail. Products may not be returned without Seller’s written permission and a Return Material Authorization (“RMA”) number designated by Seller.
- Warranty: Seller agrees to warrant Products in accordance with the terms of its standard warranty for each Product, as delivered with such Products and as modified from time to time in Seller’s sole discretion. Seller’s sole obligation to Buyer shall be limited to the repair or replacement at Seller’s option, of defective Products returned to Seller in accordance with the terms of such warranties.
*THE FOREGOING REMEDIES ARE EXCLUSIVE. SELLER MAKES NO OTHER EXPRESS WARRANTY. SELLER DISCLAIMS, AND BUYER WAIVES ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER SHALL UNDER NO CIRCUMSTANCES BE LIABLE IN CONTRACT, IN TORT OR OTHERWISE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER OR NOT FORESEEABLE. NO EMPLOYEE OR REPRESENTATIVE OF SELLER IS AUTHORIZED TO MODIFY THIS WARRANTY, OR SELLER’S STANDARD WARRANTY FOR ANY PRODUCT. NOR SHALL ANY EMPLOYEE OR REPRESENTATIVE OF BUYER ALTER OR ATTEMPT TO ALTER THE TERMS OF SELLER’S STANDARD WARRANTY WITH RESPECT TO ANY PRODUCT SOLD OR OFFERED BY BUYER TO END-USERS.
- Excuse: Seller shall not be liable or responsible for delays or failure of shipment caused by Buyer or arising from any cause beyond Seller’s control, including, but not limited to labor controversies, embargoes, government regulations, trade restrictions, accidents, state of war, riots, fire, earthquakes, storms, failures of sources of supply or delay in receiving machinery or materials. Seller shall not be liable in any event for any consequential or special damages. A reasonable delay by Seller in making all or any part of any shipment shall not be grounds for cancellation of Buyer’s purchase order.
- Controversy: Any action at law, suit in equity, or judicial proceeding between Buyer and Seller shall be instituted only in the courts of the County of Orange, State of California. Buyer and Seller agree to wave jury trial and agree that the prevailing party shall recover reasonable attorney’s fees and court costs.
- Notices: All notices shall be in writing and be given by facsimile and confirmed by letter sent certified first-class mail. Notices shall be effective on the date sent by facsimile. If facsimile delivery is unavailable, notices shall be effective on the delivery date indicated on the certified mail return receipt.
- Amendment: The terms and conditions stated herein may be changed only by amendment or modification in writing signed by Seller.
- Attorney Fees: If any dispute arises between any parties doing business with iKrusher, Inc., the prevailing party will be entitled to attorney’s fees.
- Entire Agreement: The terms and conditions contained herein, and any attachments affixed hereto, constitute the entire agreement between Seller and Buyer with respect to the sale of the Products identified on the face hereof, and supersede all prior representations, understandings and agreements with respect to such sale. In the event of any conflict between the terms and conditions contained herein and those contained in Buyer’s purchase order, or other documents respecting such Products issued by Buyer, including any such which may be issued by Buyer after the date hereof, the terms and conditions contained herein shall control without the need for further rejection by Seller of such conflicting documents.