Delivery Date. Shipping and delivery dates are approximations only. Seller is not responsible for delays in, or failure to complete, the production, shipment or delivery of Buyer’s order caused by any event beyond Seller’s control including, without limitation, acts of God; fire, accident or other casualties, inclement weather, mechanical failure; labor disruptions; change in order specification; inability to obtain fuel, materials or parts; failure of shipping facilities, or buyer’s acts or omissions.
Price stated herein or in Buyer’s order are based on present costs. Such prices are subject to increase by Seller at any time before delivery in respect to all or any portion of the products on order to the extent necessary to cover Seller’s increased costs applicable thereto. Such prices do not include reasonable and normal local preparation and delivery charges which Buyer will pay upon receipt of Seller’s invoice therefor.
Payment. A late payment charge of 2.0% per month is due on all overdue amounts.
Non-Conforming Orders and Goods. Buyer is responsible for examining all orders upon delivery. Goods delivered as ordered cannot be returned. No returns for shortages or variances in any order or for non-conforming goods will be considered by Seller unless presented to Seller in writing within 10 days of delivery date. Failure of Buyer to do so shall constitute a waiver of any claims for shortages, variances or non-conforming goods and Buyer shall have no further claim against Seller therefore. In any event goods cannot be returned to Seller without Seller’s prior written authorization, unless accompanied by Seller’s RETURNED GOODS AUTHORIZATION FORM and unless such goods are in new condition and in unmarked original packaging. As to any authorized and accepted return, Buyer shall be entitled only, at Seller’s option, to a replacement of or a merchandise credit for the returned goods.
Special Orders. Seller shall not fill special orders without its receipt from Buyer, in advance, of a completed and duly executed Seller’s special order ACKNOWLEDGEMENT form. The production, shipment or delivery of special orders cannot be canceled or delayed by Buyer and special order goods cannot be returned by Buyer without Seller’s prior written authorization. Any special order which is cancelled or returned is subject, in addition to all other terms or conditions which Seller may specify, to a 20% cancellation fee. Orders for special goods also are subject to Buyer’s acceptance of and payment for production overruns and underruns which are within 20% of the ordered quantity, In the event of an underrun, Seller shall not be obligated to fill the balance of the order and Buyer shall have no claim against Seller as a result thereof.
Limited Warranty. Goods manufactured by Seller shall conform to their description, shall be fit for the ordinary purposes for which such goods are used and shall be free of defects in material and workmanship at the time of shipment. SELLER MAKES NO OTHER WARRANTIES OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED. SELLER, AT ITS OPTION, MAY REPAIR OR REPLACE ANY GOODS SOLD BY SELLER IN WHICH EVENT SUCH REPAIR OR REPLACEMENT SHALL CONSTITUTE A FULL AND FINAL DISCHARGE AGAINST SELLER OF ANY AND ALL CLAIMS FOR DAMAGES OR LOSSES RESULTING FROM ANY CAUSE WHATSOEVER, WHETER BASED ON NEGLIGENCE, STRICT LIABILITY OR BREACH OF CONTRACT. THE LIABILITY OF SELLER IN ANY EVENT SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS AND SELLER SHALL NOT BE LIABLE FOR ANY OTHER DAMAGES INCLUDING, BUT NOT LIMITED TO, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
Right of Possession. Seller at all times shall have the right, for credit reasons or because of Buyer’s default, to withhold shipments. to recall goods in transit and otherwise to repossess and to store goods purchased by Buyer. All at Buyer’s expense. The foregoing shall not limit in any manner or be in lieu of Seller’s other legal and equitable rights and remedies under the Uniform Commercial Code or otherwise. Limitation of Actions. Any action against Seller shall be commenced within one year after the cause of action therefore has accrued. Failure of Buyer to commence an action within such period shall constitute a waiver and release thereof and Buyer shall have no further cause of action against Seller for such breach.
Waiver. The waiver by Seller of any breach of these terms and conditions shall not constitute or be deemed to be a waiver of any previous or subsequent breach thereof.
Collection. If Buyer fails to make payment in full when due, Buyer shall be responsible for all collection costs incurred by Seller including attorneys’ fees and court costs.
Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of California.
Entire Agreement. The terms and conditions stated herein constitute the entire agreement between Seller and Buyer and no contrary, additional or different terms or conditions shall be binding on Seller unless accepted in writing by an authorized representative of Seller.