TERMS AND CONDITIONS OF SALE
1. PAYMENT: Unless otherwise stated on the reverse side hereof, terms of payment are net cash prior to shipment. If credit terms are agreed to in advance by Seller, a service charge of one and one half percent (1-1/2%) per month will be assessed on accounts more than 30 days overdue.
2. TAXES: All taxes assessed to this order are the responsibility of the Buyer, including but not limited to local, and regional sales taxes, or the Buyer is to provide Seller with valid exemption certificate. In the event that the Buyer either fails to pay the tax, or other charges as agreed, or fails to provide a valid exemption certificate, Buyer agrees to indemnify and hold Seller harmless from any liability and expense by reason of Buyer's failure. Such indemnification shall include, but not be limited to, legal, accounting, and other expenses relating to such failure.
3. DELIVERY: Unless otherwise agreed to by Seller, all shipments of the goods, wares and merchandise described on the reverse side hereof (the "Merchandise") shall be ExWorks, point of shipment. Seller shall not be liable to Buyer or any third party for failure or delay in delivering Merchandise, of such failure or delay results from: (a) strikes, lockouts or other disputes or unrest; (b) fire, explosion, flood, natural disaster or act of God; (c) war, civil disturbance, riots or armed conflict; (d) governmental action, order, condemnation, sequestration, confiscation or other act directly or indirectly affecting Seller's performance hereunder; (e) Seller's inability to obtain Merchandise; or (f) any other cause beyond Seller's control. It is the Buyer’s responsibility to purchase supplemental freight insurance.
4. USED EQUIPMENT: IT IS UNDERSTOOD THAT THE PURCHASE OF ANY USED EQUIPMENT IS "AS IS" AND "WITH ALL FAULTS."
5. WARRANTIES: UNLESS OTHERWISE EXPRESSLY AGREED TO IN WRITING BY THE SELLER, SELLER DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THE SALE OF MERCHANDISE TO BUYER, BOTH EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE AS THOSE TERMS ARE DEFINED IN THE UNIFORM COMMERCIAL CODE OF CALIFORNIA. SELLER HEREBY ASSIGNS THOSE WARRANTIES EXPRESSLY PROVIDED BY THE MANUFACTURERS OF NEW MERCHANDISE, IF ANY, TO BUYER. SELLER MAKES NO OTHER WARRANTIES WITH RESPECT TO NEW MERCHANDISE.
6. DAMAGES: SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER. UNDER NO CIRCUMSTANCES WILL SELLER’S LIABILITY TO BUYER EXCEED THE AMOUNT INVOICED BY SELLER TO BUYER, REGARDLESS OF THE NATURE OF BUYER’S CLAIM AND WHETHER BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
7. RESPONSIBILITY OF BUYER: It is Buyer's responsibility to provide proper safety devices and equipment, or such other means as may be necessary to safeguard operators of the Merchandise from harm, and to ensure that proper and safe operating procedures are followed by the operations thereof.
8. INDEMNITY: Buyer agrees to keep, save, protect, defend, indemnify and hold Seller harmless from and against all suits, claims, costs and expenses for personal injury, death or property damage arising from the purchase, ownership or use by Buyer or Buyer's agents, employees or independent contractors of the Merchandise, it being expressly understood that any claim arising from alleged manufacturing or design defects in new or used Merchandise shall be asserted only against its manufacturer. Provided that Buyer shall actually indemnify Seller in accordance with the foregoing, Seller shall assign to Buyer any rights of indemnity or contribution which Seller may have against persons or entities other than Buyer in connection with any claim for personal injury, death or property damage arising from the purchase, ownership of use of the Merchandise.
9. HAZARDS LIABILITIES: Buyer shall indemnify and hold harmless Seller, its agents, and its employees from and against any and all losses, expenses, demands, and claims made against Seller, its agents and employees by Buyer, any agent or employee of Buyer, and subsequent Buyers, any lessor or lessee, any agent or employee of any lessor or lessee, or any other person because of injury or illness or alleged injury or illness (including death) or property damage, actual or alleged, whether by the sole negligence of Seller, the current negligence of Seller with Buyer, any agent or employee of Buyer, any subsequent Buyers, any agent or employee of any subsequent Buyers, any lessor or lessee, any agent or employee of any lessor or less, or any other person otherwise arising out of, resulting from, or in any way connected with, the operation, maintenance, transportation, use or disposition of the Articles, including that caused by hazardous chemicals or other hazardous material on or in them, or of the possession, operation, maintenance, transportation, use or disposition of the Articles by subsequent purchasers, lessors, lessees or any other person, including that caused by hazardous chemicals or other hazardous materials on or in the Articles. Buyer agrees to defend any suit, action, or cause of action brought against Seller, its agents, or employees based on any such alleged injury, illness, or damage and to pay all damages, costs and expenses including, but not limited to, attorney's fees or legal expenses in connection therewith or resulting therefrom.
10. RETURNS OF MERCHANDISE: No returns of Merchandise by Buyer to Seller will be accepted without prior written permission of Seller. Buyer agrees to pay to Seller a reasonable restocking charge on returned Merchandise at a rate determined by Seller.
11. INSPECTION: Buyer shall, upon reasonable notice to Seller, have the right to inspect the Merchandise at point of shipment, unless otherwise agreed to by Seller.
12. REMEDIES: Buyer's failure to notify Seller of any claim within thirty (30) days after delivery of the Merchandise (or the date fixed for delivery in the case of non-delivery) shall constitute a waiver and release by Buyer of all claims arising against Seller in connection with the Merchandise. No action by Buyer for breach of any of the terms and provisions of this agreement shall be commenced subsequent to two (2) years after the cause of action has accrued.
13. DEFAULT: If Buyer shall default in the performance of any of its obligations hereunder, then in addition to any and all other rights or remedies which Seller may have against Buyer, Buyer shall be liable to Seller for all court costs and attorney's fees incurred in enforcing the terms and provisions of this agreement.
14. ENTIRE AGREEMENT: The terms and conditions contained herein, together with Seller's invoice, constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersede all previous communications or representations, including, without limitation (a) any description of the equipment on Seller’s website or in other marketing materials, and (b) Buyer's Purchase Order, if any, whether oral or written, between the parties with respect to the subject matter hereof. No agent, employee or representative of the Seller has any authority to bind the Seller to any affirmation, representation or warranty concerning the Merchandise subject hereto, and unless such affirmation, representation, or warranty in included in this agreement, it is not part of the basis of this bargain and shall not be binding upon or enforceable against the Seller. No course of prior dealings between the parties and no custom or usage of trade in the industry shall be used to interpret, construe, or supplement the terms and conditions hereof.
15. MODIFICATIONS: The agreement of which these terms are a part can be modified or rescinded only by a writing signed by both parties or their duly authorized agents.
16. CONSTRUCTION: The terms and conditions of this agreement shall be governed and construed in accordance with the laws of the state of California.