Standard Terms and Conditions for Commercial Sales
(a) These Standard Terms and Conditions of Commercial Sales (these "Sales Terms") are the only terms that govern the sale of products (the "Products") by Lineage Watch Co., a California corporation (the "Seller") to the purchasing entity named in the applicable Purchase Order (as defined below) (the "Purchaser"). Collectively, Purchaser and Seller are referred to as "Parties" and individually as a "Party."
(b) The Purchase Order issued by Seller to Purchaser (hereinafter, the "Order") and these Sales Terms (together, with an Order, this "Agreement") comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement supersedes any of Purchaser's general terms and conditions of purchase regardless of whether or when Purchaser has submitted its purchase order or such terms. Seller expressly rejects Purchaser's general terms and conditions of purchase, and fulfillment of Purchaser's order does not constitute acceptance of any of Purchaser's terms and conditions or serve to modify or amend these Terms. Acceptance of the Order Confirmation by Purchaser is a prerequisite to the purchase of the Products and shall operate as an acceptance of these Terms which are expressly incorporated into the Order.
(a) The Products will be delivered within a reasonable time of the estimation date indicated in the Purchase Order, subject to availability of the Products. Delivery dates given by Seller are estimates only and are subject to manufacturer timelines, shipping variations, and performance of Seller’s obligations. Seller shall not be liable for any delays, loss, or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Products to the location designated as the ‘Ship To’ address in the Order (the "Delivery Point") using Seller's standard methods for packaging and shipping such Products. Purchaser shall take delivery of the Products within five (5) days of Seller's written notice (email is sufficient) that the Products are available for delivery to the Delivery Point. Purchaser shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point. Purchaser is responsible for fees associated with not taking timely delivery of the Products, such as storage fees.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Purchaser. Each shipment will constitute a separate sale, and Purchaser shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Purchaser's purchase order.
3. Title and Risk of Loss. Title and risk of loss pass to Purchaser upon delivery of the Products at the Delivery Point. As collateral security for the payment of the purchase price of the Products, Purchaser hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Purchaser in, to, and under the Products, 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 applicable statutes of the State of California.
4. Amendment and Modification. Except for Section 2(b), 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.
(a) Purchaser shall inspect the Products five (5) days of receipt (the "Inspection Period"). Purchaser will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products (as defined below) during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. "Nonconforming Products" means only the following: (i) product shipped is different than identified in the Order; or (ii) product's label or packaging incorrectly identifies its contents.
(b) If Purchaser timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable third-party shipping and handling expenses actually incurred and paid by Purchaser in connection therewith. Purchaser shall ship, at its expense and risk of loss, the Nonconforming Products to Seller's facility. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Purchaser's shipment of Nonconforming Products, ship to Purchaser, at Purchaser's expense and risk of loss, the replaced Products to the Delivery Point.
(c) Purchaser acknowledges and agrees that the remedies set forth in Section 6(b) are Purchaser's exclusive remedies for Nonconforming Products. Except as provided under Section 6(b), all sales of Products to Purchaser are made on a one-way basis and Purchaser has no right to return Products purchased under this Agreement to Seller.
(a) Purchaser shall purchase the Products from Seller at the prices (the "Prices") set forth in the applicable Purchase Order.
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Purchaser. Purchaser shall be responsible for all such charges, costs, and taxes; provided, that, Purchaser shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel, or real or personal property or other assets. The Prices include standard packaging. The Prices exclude transportation and insurance costs which are the responsibility of the Purchaser.
(a) Purchaser shall pay Seller all amounts due within thirty (30) days after Seller invoices Purchaser for the same unless such other payment due date is indicated in the Purchase Order. All payments hereunder shall be in US dollars and made according to the payment methods provided in the applicable Purchase Order. Seller reserves the right to require pre-payment in its sole and absolute discretion.
(b) Purchaser shall pay interest on all late payments at the lesser of the rate of two percent (2%) per month or the highest rate permissible under applicable law. Purchaser shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement 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 Products if Purchaser fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof. Purchaser 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.
8. Limited Warranty. Seller warrants to Purchaser that:
(a) for a period of twenty-four (24) months from the date of delivery of the Products (the "Warranty Period"), the Products will materially conform to Seller's published specifications in effect as of the date of shipment under the corresponding Purchase Order; and
(b) Purchaser will receive good and valid title to the Products, free and clear of all encumbrances and liens.
The warranties under this section do not apply where the Products have been: (i) subjected to abuse, misuse, neglect, negligence, accident, abnormal physical stress or environmental conditions, use contrary to any instructions issued by Seller, or improper testing, installation, storage, handling, repair, or maintenance; (ii) reconstructed, repaired, or altered by anyone other than Seller or its authorized representative; or (iii) used with any third-party product, hardware, or product that has not been previously approved in writing by Seller.
9. Purchaser's Exclusive Remedy for Breach of Warranty. During the Warranty Period:
(a) Purchaser shall notify Seller, in writing, of any alleged warranty claim within five (5) days from the date Purchaser discovers, or upon reasonable inspection should have discovered, such alleged claim (but in any event before the expiration of the applicable Warranty Period);
(b) Purchaser shall ship the relevant Products within five (5) days of the date of its notice to Seller, at Seller's expense and risk of loss, to Seller's facility for inspection and testing by Seller;
(c) If Seller's inspection and testing reveals, to Seller's reasonable satisfaction, that such Products do not conform with the limited warranty set forth herein, Seller shall in its sole discretion, and at its expense (subject to Purchaser's compliance with this Section 10), either (i) repair or replace such Products, or (ii) credit or refund the Price of such Products less any applicable discounts, rebates, or credits; and
(d) If Seller exercises its option to repair or replace, Seller shall, after receiving Purchaser's shipment of such Products, ship to Purchaser, at Seller's expense, the repaired or replacement Products to a location designated by Seller.
(e) Purchaser has no right to return for repair, replacement, credit, or refund any Products except as set forth in this Section 10. In no event shall Purchaser reconstruct, repair, alter, or replace any Products, in whole or in part, either itself or by or through any third party.
(f) THIS SECTION 10 SETS FORTH THE PURCHASER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9.
10. WARRANTIES DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN Section 9, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. PURCHASER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER INDIVIDUAL OR ENTITY ON SELLER'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN Section 9 OF THIS AGREEMENT.
(a) IN NO EVENT SHALL SELLER OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(b) SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER PURSUANT TO THIS AGREEMENT PRECEDING THE EVENT GIVING RISE TO THE CLAIM/FOR SUCH ORDER.
12. Compliance with Law. Purchaser shall at all times comply with all laws applicable to the operation of its business, this Agreement, Purchaser's performance of its obligations hereunder, and Purchaser's use of the Products. Without limiting the generality of the foregoing, Purchaser shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Products and (b) not engage in any activity or transaction involving the Products, by way of shipment, use, or otherwise, that violates any law.
13. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Purchaser, if Purchaser: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Purchaser's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
14. No 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 by Seller operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Seller precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Seller.
15. Confidential Information. All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Purchaser, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Purchaser shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Purchaser at the time of disclosure; or (c) rightfully obtained by Purchaser on a non-confidential basis from a third party.
16. Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party's (the "Impacted Party") reasonable control, including, the following force majeure events (each, a "Force Majeure Event"): (a) acts of God; (b) flood, fire, earthquake, explosions, or other similar disasters or catastrophes, such as epidemics or pandemics; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) order or action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national, state, or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party.
17. Assignment. Purchaser's rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Purchaser without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Purchaser of any of its obligations under this Agreement.
18. 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.
19. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
20. Governing Law; Jurisdiction. This Agreement is governed by, and construed in accordance with the laws of the State of California without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. All legal proceedings shall be instituted in the state or federal courts of the State of California. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.
21. Notices. All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Confirmation or to such other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).
22. Severability. If any term or provision of this Agreement is determined to be 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.
