This Purchase Order is subject to approval by an executive officer or manager of Vendor. If the Goods are obtained by Vendor from an independent manufacturer or reseller, the sale of the Goods to Purchaser is contingent on availability of the Goods. Vendor will confirm availability upon Purchaser’s request. Unless otherwise stated in the Purchase Order, Vendor may fulfill the Purchase Order in whole or in part if available quantities are limited.
Payment of the Total Purchase Price shall be due in accordance with the terms set forth in the Purchase Order and shall be made directly to Vendor at its office address designated on Vendor’s invoices.
The Purchaser shall pay and report: (a) all federal, provincial, state and local taxes, however designated, levied or based on account of the purchase price of the Goods or on account of the acquisition or ownership or use of the Goods by the Purchaser (exclusive only of taxes based on net
income derived by Vendor); and (b) all foreign taxes, export or import tariffs and custom duties, however designated, levied or based in connection with the sale conducted hereby, the purchase price
of the Goods, or the acquisition or ownership or use of the Goods by the Purchaser. The responsibility for reporting and paying any and all such charges shall be Purchaser’s, and Purchaser shall hold Vendor harmless from al claims and liability arising in connection with Purchaser’s failure to report or pay such taxes.
Vendor shall devote reasonable effort to schedule delivery for the time set forth in the Purchaser Order or such other time as Vendor may confirm for Purchaser, but schedules are not guaranteed. In no event shall Vendor be liable to Purchaser for any delay or impact costs or
damages. Vendor shall direct the Goods for delivery to Purchaser at the location set forth in the Purchase Order. If for any reason Purchaser fails to accept delivery of the Goods, or if Vendor is unable to deliver the Goods due to Purchaser’s failure to provide appropriate instructions, documents, licenses or authorizations: (a) the risk of loss of the Goods shall pass to the Purchaser; (b) The Goods shall be deemed to have been delivered; and (c) Vendor, at its option, may store the Goods until Purchaser picks them up, whereupon Purchaser shall be liable for all related costs and expenses (including, without limitation, storage and insurance charges).
5.INSPECTION ON ARRIVAL
Purchaser shall inspect the Goods within seven (7) days after arrival of the Goods at Purchaser’s location. Failure of Purchaser to notify Vendor in writing within seven (7) days after arrival at Purchaser’s location of any Non-Conforming Goods shall be considered as
acceptance of the Goods. Any such acceptance shall be without prejudice to any warranties provided by the original manufacturer of the Goods. Non-Conforming Goods shall mean: (a) those Goods shipped that are different than those identified in the Purchase Order; or (b) those Goods with labels or packaging that incorrectly identify the Goods’ contents. Goods may not be rejected by Purchaser if the Purchaser has opened, damaged or tampered with the Goods. If Purchaser timely notifies Vendor of any Non-Conforming Goods, Vendor, in its sole discretion may: (a) replace the Non-Conforming Goods with conforming Goods; or (b) credit or refund the Purchase Price for the Non-Conforming Goods, together with any reasonable shipping and handling expenses incurred by Purchaser in connection therewith. Purchaser shall be responsible for packaging and returning any rejected Non-Conforming Goods to the Vendor, with delivery and insurance prepaid by Purchaser, unless Purchaser is instructed
to hold said Goods for repair or replacement. If Vendor exercises its option to replace Non-conforming Goods, Purchaser shall be responsible for packaging and returning the Non-Conforming Goods to the Vendor, with delivery and insurance prepaid by Purchaser, unless Vendor instructs Purchaser otherwise. After receiving the Non-Conforming Goods from Purchaser, Vendor shall ship, at Purchasers expense and risk of loss, the replaced Goods to Purchaser’s location. Purchaser acknowledges and agrees that the remedies set forth in this section are Purchaser’s exclusive remedies for the delivery of Non-Conforming Goods and that except for said remedies, all sales of Goods to Buyer are NON-CANCELLABLE and NON-RETURNABLE.
To the extent that the original manufacturer makes any warranties covering the goods, Vendor assigns those warranties to Purchaser, subject to the conditions and limitations provided
by the manufacturer. Vendor will cooperate with Purchaser, at Purchaser’s cost, to process any warranty claim, but Vendor assumes no other responsibility for such warranties. THE FOREGOING ASSIGNMENT OF WARRANTIES IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER ARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS WARRANTY ARISING FROM ANY DESCRIPTION OR SPECIFICATION PROVIDED FOR THE GOODS, OR ANY SAMPLE OR MODEL PRESENTED TO PURCHASER OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR TITLE. PURCHASER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES OF VENDOR PERTAINING TO THE GOODS.
VIII. EXCLUSIVE REMEDY: THE EXCLUSIVE REMEDY OF PURCHASER FOR ANY CLAIM BASED ON THE CONDITION, PERFORMANCE, DEFECT OR NONCONFORMITY OF THE GOODS SHALL BE TO MAKE A CLAIM TO THE ORIGINAL MANUFACTURER FOR THE WARRANTIES (IF ANY) PROVIDED BY THE ORIGINAL MANUFACTURER. IN NO EVENT SHALL VENDOR BE IABILE FOR DAMAGES OF ANY KIND, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, OR UNDER ANY OTHER THEORY (INLUDING NEGLIGENCE).
Vendor shall not be liable for loss, injury or damage of any kind to any person or entity resulting from any use, condition, performance, defect or failure in the goods. Purchaser agrees to indemnify and hold harmless Vendor and its owners, employees and agents from
and against any and all losses, injuries, damages and expenses Purchaser, its employees, agents, customers or licensees may suffer or sustain in respect thereof and to defend and to assume responsibility therefore, except as may arise from the sole negligence of Vendor.
Purchaser agrees that Vendor and its assigns shall have a security interest in the goods until the Purchase Price set forth herein shall have been fully paid by the Purchaser. The Purchaser agrees that this Purchase Order shall be a security agreement as defined by the Uniform Commercial Code in effect in the jurisdiction in which the Goods are located and that it will execute a financing statement at the request of Vendor, in order that Vendor or its assigns may record its security
interest in the Goods.
The Purchaser represents that all permits, licenses and authorizations necessary for the purchase and intended use of the Goods shall be obtained. The Purchaser shall give all notices and comply with all laws, ordinances, rules, regulations and lawful orders of any public authority bearing on the intended use of the Goods. XII. CANCELLATION: Purchase Orders accepted by Vendor may not be cancelled by Purchaser.
10.REMEDIES ON DEFAULT
In the event Purchaser defaults in any of the terms and conditions of this Purchase Order or a petition for bankruptcy is filed by or against the Purchaser, then, to the extent permitted by applicable law, Vendor shall have the right to exercise one or more of the following
remedies: (a) To declare the entire amount of the unpaid Total Purchase Price due and payable, together with interest thereon at the lessor of 18% per annum or the then highest allowable legal rate per annum; (b) Without demand or legal process, the Purchaser hereby authorizes Vendor’s agents to enter into the premises with the Goods may be found and take possession and remove the same and specifically waives any claim or right of action for trespass or damages in connection with Vendor’s exercise of such right. Vendor shall have the right to sell, lease or retain the Goods in complete or
partial satisfaction of any outstanding claim and to t retain all prior payments in respect of the Total Purchase Price made hereunder. Notwithstanding the taking of possession by Vendor of the Goods, the
Purchaser shall remain liable for the Total Purchase Price together with the expenses of retaking, storage, repairing and reselling the Goods and reasonable attorney’s fees incurred by Vendor in connection with such taking; and/or (c) To terminate this Purchase Order as to any and all of the Goods. All remedies of Vendor hereunder are cumulative and may, to the extent permitted by law, be exercised concurrently or consecutively and jointly or severally, and the exercise of any one remedy shall not be
deemed to be an election of such remedy to preclude the exercise of any other remedy. No failure on the part of Vendor to exercise, and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by Vendor of any right or remedy hereunder preclude any other or further exercise of any partially exercised right or remedy.
Neither this Purchase Order nor any right granted hereunder may be assigned by Purchaser without Vendor’s prior written consent, and any assignment without such consent shall be void.
Vendor shall not be liable for any loss or damage of any kind or for any consequences thereof resulting from delay or inability to deliver caused by strikes, lockouts, fire, theft, shortage, inability to obtain materials or shipping space, breakdowns, delays or carriers, manufacturers, or suppliers, acts of God, governmental statutes, proclamations or regulations, riot, civil commotion, war, malicious mischief, receipt of necessary information from Purchaser, or by any cause beyond Vendor’s reasonable control.
This Purchase Order shall be governed by and construed in accordance with the laws of the State of California.
No amendment to this Purchase Order, including any Change Order, shall be binding on either Vendor or Purchaser unless such amendment is in writing and executed by an officer of the party hereto sought to be bound thereby.
As a condition precedent to any claim or back-charges against Vendor, Purchaser shall pay the price due and payable hereunder including any charges with respect to Change Orders. If Purchaser does not make timely payment of any amount due and payable hereunder, Vendor (without prejudice to any other remedy) shall be entitled to interest on any past-due amounts at the lower of eighteen percent (18%) per annum or the highest rate permitted by law, plus reimbursement of all costs incurred in collecting such amounts (including court costs and reasonable attorneys’ fees).