TERMS AND CONDITIONS OF SALE
Terms and Conditions. These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the goods ("Goods") and any related services ("Services") by Refrigeration Supplies Distributor ("Seller") to the buyer of such Goods and/or Services ("Buyer"), and are deemed incorporated into any sales order confirmation to which they are attached or with which they are provided (including, without limitation, through incorporation by reference through Seller's website). These Terms and any accompanying invoice or sales order confirmation (collectively, the "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representation and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms. ANY ADDITION, CHANGE, OR DELETION BY BUYER TO THESE TERMS IN ANY PURCHASE ORDER OR OTHERWISE SHALL BE DEEMED A MATERIAL ALTERATION AND IS EXPRESSLY REJECTED BY SELLER. These Terms apply to any replacement Goods provided by Seller hereunder.
Payment Terms. Terms of sale are Net 30 from the earlier of the date of delivery of the Goods or date of Seller's invoice, unless expressly stipulated otherwise in writing. Buyer shall make all payments hereunder by check or wire transfer of immediately available funds and in US dollars. A service charge of 1-1/2% per month (APR 18%) may be charged on all past due balances. In the event of any breach or default by Buyer on the terms and conditions of sale set forth herein, Seller may employ any company, corporation, agency or attorney to collect any and all amounts owing from Buyer to Seller, including but not limited to purchase price, service charges, delivery charges and taxes; and Buyer shall pay to Seller all costs, expenses and fees, including reasonable attorneys' fees, incurred by Seller in the enforcement of the said terms and conditions of sale. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy or otherwise.
Disclaimer of Warranty. SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, AS TO THE CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY OTHER MATTER CONCERNING THE GOODS OR THE SERVICES AND BUYER ACCEPTS THE MATERIALS AS IS. SELLER DOES NOT ADOPT OR AFFIRM ANY OF THE WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, MADE BY ANY OF THE MANUFACTURERS OF ANY OF THE GOODS. Seller will extend to Buyer, on a "pass through" non-recourse basis, any warranty provided by the manufacturer of the purchased Goods to the extent permissible. EXCEPT AS PROVIDED ABOVE, GOODS AND SERVICES WILL BE PROVIDED TO BUYER ON AN "AS IS" BASIS AND SELLER DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT) WITH RESPECT TO THE GOODS AND SERVICES.
Limitation of Liability. SELLER SHALL NOT BE LIABLE FOR ANY INDIRECT, LOST PROFITS OR LOST REVENUES, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES EVEN IF SUCH DAMAGES WERE FORESEEABLE OR IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER'S AGGREGATE LIABILITY WITH RESPECT TO THE SALE OF ANY GOODS OR PROVISION OF ANY SERVICE SHALL IN NO EVENT EXCEED THE PRICE PAID BY THE BUYER FOR SUCH GOOD AND/OR SERVICE.
Delivery; Shipment. All sales of the Goods are EXW (Ex works, Incoterms 2010 or later update), Seller's point of origin (shipping paid by Buyer), and the time of delivery shall be the time when the Goods are placed into the possession of the designated carrier for delivery to Buyer. Delivery dates are not guaranteed and delinquency in delivery will not constitute grounds for charge back, set off, or other damages or claims of damage against Seller unless specified delivery dates are requested by Buyer and expressly agreed to in writing by Seller. Methods and routes of shipment shall be selected by Seller but Seller shall not assume any liability in connection with shipment or constitute any carrier as Seller's agent. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Goods shipped whether such shipment is in whole or partial fulfillment of Buyer's purchase order. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller's notice that the Goods have been delivered, or if delivery is unsuccessful because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). Buyer shall be responsible for initiating any proof of delivery request and/or making all claims with carriers, insurers, warehousemen and others for missed delivery, loss, damage, or delay. Any liability of Seller for non-delivery of Goods shall be limited to replacing such Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
Acceptance. Buyer shall inspect the Goods within ten (10) days of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. No Goods, whether claimed to be defective or nonconforming, shall be returned to Seller, without Seller's express written authorization for such return. If Buyer timely notifies Seller of any nonconforming Goods, Seller shall, in its sole discretion, after making a determination that Buyer may return such Goods, either (i) replace such nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall be responsible for any costs to uninstall Goods unless otherwise expressly agreed by Seller. Buyer shall ship the nonconforming Goods to Seller's origin of shipment at Seller's cost but with risk of loss passing to Seller only upon delivery to Seller's original point of shipment. If Seller exercises its option to replace nonconforming Goods, Seller shall, after receiving Buyer's shipment of nonconforming Goods, ship to Buyer, the replaced Goods, EXW (Ex works, Incoterms 2010 or later update), Seller's point of origin, but with shipping costs paid by Seller. Buyer acknowledges and agrees that the remedies set forth in this Section 6 are Buyer's exclusive remedies for the delivery of nonconforming Goods. Except as provided under this Section 6, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller. Materials normally carried in inventory of the location of this branch which have been delivered as ordered may be returned ‘unused', within 30 days from the date of purchase for credit only upon Seller's prior authorization. All such returned materials must be accompanied by a copy of the original invoice or purchase order, a n d a restocking charge determined by Seller and not to exceed 25%. In addition to 'unused', the materials must be in resalable condition or in its original packaging. Return of special order merchandise may be allowed, subject to a restocking charge, at the sole discretion of the Seller.
Risk of Loss; Security. The title and risk of loss or destruction of, or damage to the materials shall be on the Buyer from and after shipment by Seller (see Section 5 hereof). As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code.
Force Majeure. Seller shall not be liable to Buyer for any loss or damage suffered by Buyer, directly or indirectly as a result of Seller's failure to perform, or delay in performing any obligation under this order where such a failure or delay is caused by labor troubles (including, without limitation, strikes, slowdowns and lockouts), civil disturbance, war, acts of terrorism, weather, Government regulations, inability to obtain or revocation of export or import licenses, interruptions of or delay in transportation, materials shortages, power failures, accident, or other cause of like or different character beyond Seller's control.
Price. Buyer shall purchase the Goods and Services from Seller at the price specified in the applicable invoice. All prices do not include tax. Taxes will be added, in all cases, unless an exemption certificate is on file with the Seller. Buyer shall pay the amount of any applicable sales, use, compensating, intangibles, gross income or like tax, import duties and similar charges levied by any governmental authority in connection with this order. Seller may also separately invoice shipping costs to Buyer.
Seller takes exception to and hereby objects to all hold harmless and indemnity provisions, either express or implied, set forth in Buyer's purchase order that seek to impose liability on Seller.
Alternates. No alternates quoted hereunder are guaranteed equal to the specified materials and alternates are subject to the approval of Buyer's specifying agent unless otherwise agreed in writing.
Representations by Buyer. By executing this Agreement, the Buyer represents to the Seller that as of the date hereof the Buyer has not ceased to pay its debts in the ordinary course of business, that it can pay its debts as they become due and that it is solvent within the meaning of applicable federal bankruptcy laws.
Liens. Material furnished for use in the improvement of real property may be subject to the mechanics' lien laws of the jurisdiction in which the material is used.
Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Governing Law. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of California.
Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Limitation of Liability, Compliance with Laws, Governing Law, Submission to Jurisdiction, and Survival.
CA Civil Code
On January 1, 2012, California Civil Code Section 1714.43, or the California Transparency in Supply Chains Act of 2010 ("the Act"), went into effect. Any "retail seller" or "manufacturer" doing business in California and having at least $100 million in annual worldwide gross receipts is subject to the Act. As Refrigeration Supplies Distributor "RSD" is neither a retail or manufacturing concern as defined in the Act we have taken no action with respect to the Act.