TERMS AND CONDITIONS
DEEP SURPLUS : STANDARD TERMS AND CONDITIONS
THIS SALES ORDER ACKNOWLEDGMENT IS MADE AND GIVEN ON THE EXPRESS UNDERSTANDING THAT THE FOLLOWING TERMS AND CONDITIONS APPLY TO THE SALE OF SELLER'S PRODUCTS. SELLER'S ACCEPTANCE OF ANY ORDER IS EXPRESSLY MADE CONDITIONAL UPON BUYER'S ACCEPTANCE OF THESE TERMS AND CONDITIONS, AND SELLER OBJECTS TO ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS, WHETHER CONTAINED IN BUYER'S FORMS OR OTHERWISE. SELLER WILL NOT BE DEEMED TO HAVE WAIVED THESE TERMS AND CONDITIONS OF SALE IF IT FAILS TO OBJECT TO PROVISIONS CONTAINED IN BUYER'S FORMS OR OTHERWISE. BUYER'S SILENCE OR ITS ACCEPTANCE OF SELLER'S GOODS CONSTITUTES ITS ACCEPTANCE OF THESE TERMS AND CONDITIONS OF SALE.
1. PAYMENT. The price of the goods and payment terms and method are reflected on the face of this Sales Order and include sales tax where applicable. All purchases are prepaid, unless other arrangements are made by Buyer with Seller. Buyer accepts Visa, MasterCard, American Express, Discover and PayPal. If any payment due under this Agreement from Buyer is not paid when due, then Buyer shall pay interest on such overdue amount at the rate equal 1½% per month or the highest legal rate under applicable law, whichever amount is lower.
2. DELIVERY AND RISK OF LOSS. Shipment shall be made F.O.B., Seller’s warehouse by UPS or other nationally known carrier and charged to Buyer at the rates charged to Seller by such carrier. Delivery dates depend upon the service selected by Buyer and are not guaranteed. Title to the goods and liability for loss or damage in transit or thereafter shall pass to Buyer upon Seller’s delivery of the goods to a carrier for shipment. For Indian reservations in California,, the ownership of the item purchased will transfer to the Indian purchaser upon delivery of the property on the reservation or rancheria. In-stock items are usually shipped the same day for orders received before 1:00 P.M. Pacific Time and out-of-stock items will ship upon receipt and processing in Seller’s warehouse.
3. TAXES. Sales tax is charged on all orders that are shipped to California unless Buyer is tax exempt. Tax exempt customers must submit current tax exemption certificates to Seller to be exempt from sales tax. Buyer shall be solely responsible for all taxes due or payable to any taxing jurisdiction as a result of the sale, installation, delivery or use of the goods provided to Buyer under this Sales Order and shall indemnify and hold Seller harmless from any such taxes and all interest and penalties assessed in connection with such taxes.
4. INSPECTION AND DISCREPANCIES. Buyer will make adequate inspection of the goods immediately after their receipt and will give Seller notice within 5 days of delivery of any variance or non-conformance in the received goods. Buyer's failure to so notify Seller will constitute a waiver of such variance or non-conformity. Claims for goods delivered damaged or defective shall also be filed with Seller within 5 days after date of shipment. Goods delivered damaged or defective due to the fault of the carrier will be handled by Seller directly with the carrier. Use of goods or failure to give notice to Seller within the time required by this Section shall constitute acceptance of the goods.
5. RETURNS. Buyer may return the goods within 90 days of receipt for any reason; provided goods are not damaged by Buyer and returned with all accessories, documentation and packaging. To return an item, Buyer shall contact Customer Service to obtain a Return Merchandise Authorization (“RMA”) number. An RMA number is required for all returns. Returns must be shipped prepaid and properly packaged. Buyer assumes the risk of loss to returned goods until the goods are received by Seller.
6. DELAYS. Unless a shipping or delivery date is specified as firm on the face hereof, or otherwise in writing signed by Seller, Seller will use reasonable efforts to fill the order in accordance with the estimated delivery or shipping date, but Seller will not be responsible for any delays in filling the order nor liable for any losses or damages resulting from such delays, and the order will not be subject to cancellation for such delays.
7. FORCE MAJEURE. Seller shall not be liable to Buyer or deemed to be in default on account of any delay in the delivery of any goods, or in the performance of any other act to be performed by Seller under this Agreement, due to causes beyond Seller’s control, including by way of illustration and not of limitation, acts of God or the public enemy, acts of government, civil war, insurrection or riots, fire, floods, explosions, earthquakes or other casualties, labor troubles causing cessation, slowdown or interruption of work, or delays by third party suppliers.
8.1 Assignment of Warranty. Seller shall, upon delivery, irrevocably assign to Buyer all of Seller’s rights under any warranty (express or implied) of the third party manufacturer, to the extent that such rights are assignable.
8.2 Disclaimer of Warranties and Guarantees. SUBJECT TO THE FOREGOING, SELLER DOES NOT MAKE, NOR SHALL IT BE DEEMED TO HAVE MADE, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ANY OTHER WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE GOODS OR ANY PART OR OTHER THING DELIVERED, SOLD OR TRANSFERRED HEREUNDER, INCLUDING, BUT NOT LIMITED TO:
(A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR USE OR FOR A PARTICULAR PURPOSE, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(B) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT IN STRICT OR ABSOLUTE LIABILITY OR ARISING FROM THE NEGLIGENCE OF SELLER, ACTUAL OR IMPUTED; OR
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF, OR DAMAGE TO, ANY OTHER PRODUCT OR PART THEREOF OR OTHER THING AS A RESULT OF THE USE OF THE GOODS, OR ANY LOSS OF USE, REVENUE OR PROFIT, OR ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
9. LIMITATION OF LIABILITY. Seller’s liability under this Agreement shall be limited to replacement of the goods or refund of the purchase price, at its election.
10. INDEMNIFICATION. Buyer hereby releases and will hold harmless, indemnify and defend Seller, its present and future officers, directors, officials, employees, agents, subsidiaries, affiliates, successors and assigns from and against any liability (including, without limitation, liability for negligence or strict liability), demands, suits, penalties, fines, forfeitures, claims, losses, damages, suits and costs, regardless of the basis of liability or legal principle involved, which any or all of them may suffer, incur, be responsible for or pay arising out of or relating to any goods supplied hereunder.
11.1 Validity. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction only, be ineffective to the extent of such prohibition or unenforceability, without invalidating the remaining provisions hereof.
11.2 No Waiver. The failure of either party to enforce any of the provisions of this Agreement, or to exercise any right herein provided, shall not be a present or future waiver of such provisions, nor in any way affect the validity of this Agreement or any part hereof.
11.3 Amendment. No provision of this Agreement may be changed, waived, discharged, or terminated except in writing signed by both parties.
11.4 Successors and Assigns. This Agreement and all warranties herein created or assigned shall be binding upon and shall inure to the benefit of, and shall be enforceable by, the parties hereto and their respective successors and permitted assigns.
11.5 Entire Agreement. This Agreement, together with the documents contemplated hereby, constitutes the entire Agreement between Buyer and Seller with regard to the subject matter hereof and supersedes any prior agreement with respect thereto.
11.6 Choice of Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, USA. All actions arising out of this Agreement shall be heard exclusively in the state and federal courts located in the County of Orange, State of California, USA and the parties hereby submit to the exclusive jurisdiction of such courts for the purpose of any such action.
11.7 Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed to have been given when sent by overnight courier or transmitted by facsimile or electronic mail, addressed to the party to which such notice is directed at its address on the front of this Agreement or to such other address as a party shall from time to time designate to the other party in writing for this purpose,
11.8 Terms and Conditions. The terms and conditions contained in this Agreement shall not be superseded and replaced by any proposed variation from or in addition to these terms and conditions appearing on any Purchase Order or other document unilaterally submitted by Buyer or Seller.
11.9 International Transactions. For shipments outside of the United States, (a) the United Nations Convention for the International Sale of Goods shall not apply, (b) terms of shipments shall be Ex-Works (Incoterms 2010) and all customs fees, import duties, cargo insurance, taxes and other charges imposed on the sale of the goods shall be paid by Buyer in addition to the stated price, (c) prices include Seller’s standard packaging and any additional expense required to satisfy Buyer’s packaging specifications or requirements shall be at Buyer’s expense, and (d) Buyer agrees to comply with all U.S. laws and regulations concerning exports.