1. ENTIRE AGREEMENT:
a. This Agreement constitutes the entire agreement between the parties and represents the complete and entire understanding between Level-5, (“Seller”) d/b/a Level-5, Duarte, CA and the Customer (“Buyer”), with respect to the subject matter of this Agreement.
b. This Agreement supersedes all prior written and verbal negotiations, representations, guarantees, warrantees, promises, statements, or agreements between the parties or any statement or representation made or furnished by any other person representing or purporting to represent either party.
2. ACCEPTANCE:
a. No orders for equipment, machinery, parts, or other products (collectively “Products”) or Services shall be binding upon Seller until accepted in writing by an authorized official of Sellers home office in Duarte CA, and in all events any sale by Seller to Buyer is expressly conditioned upon Buyer’s acceptance of the terms and conditions set forth herein.
b. Acceptance of the Buyer’s order is expressly limited to and conditional upon the incorporation of the terms set forth below. Orders submitted on Buyer’s purchase order or other documents that contain terms or conditions modifying, adding to, or inconsistent with these Terms or Conditions are unacceptable to Seller, and are hereby rejected to the extent of such inconsistency or modification.
c. Seller assumes no responsibility for furnishing other equipment or material shown in any plans or specifications for a project to which the Products or Services ordered herein pertain. Seller’s published or quoted prices, terms and conditions are subject to change without notice.
d. All quotations are subject to correction for clerical errors. If Buyer accepts or uses the Products covered hereby, Buyer shall be deemed to consent to accept and consent to these Terms and Conditions of Sale.
e. If these Terms and Conditions of Sale are not acceptable to the Buyer, Buyer must so notify Seller immediately, in writing, prior to placing an order.
3. CHANGES AND CANCELLATION:
a. Orders accepted by Seller are not subject to change or cancellation by Buyer after materials have been ordered or manufacturing commences, except with Seller's written consent and upon payment of an appropriate charge to cover the cost or loss incurred by Seller.
b. Unless otherwise agreed in writing, such charge shall not be less than twenty percent (20%) of the price of the goods subject to the change or cancellation.
4. DELIVERY, RISK OF LOSS, SHIPMENT, AND ACCEPTANCE:
a. Delivery and performance dates specified herein or otherwise communicated to Buyer are approximate only and are based on conditions at the time Seller accepts Buyer’s purchase order.
b. Delivery of Products to a carrier at Seller's plant or other loading point shall constitute delivery to Buyer and any further cost and responsibility thereafter, for claims, delivery, loss or damage, including placement and storage at installation site, shall be borne by Buyer.
c. In the absence of specific instructions by Buyer, the carrier will be selected by Seller. In no event shall Seller be liable for any delay in delivery by the carrier, nor shall the carrier be deemed an agent of Seller.
d. All supervision and labor for Services provided by Seller shall be on the basis of eight (8) hours per day, Monday through Friday, inclusive. If it is mutually agreed that other working periods are required, Buyer shall pay the additional charges, allowances and any other costs resulting therefrom.
e. Dates for the furnishing of Services or delivery, shipment and installation of Products are estimated dates only, and are figured from the date of receipt of complete technical data and approved drawings as such may be necessary.
i. In estimating such dates, no allowance has been made, nor shall Seller be liable directly or indirectly for any of the following delays whether they affect Seller or any of its suppliers or subcontractors: delays of carriers or delays from labor difficulties, shortages, strikes or stoppages of any sort, fires, accidents, failure or delay in obtaining materials or manufacturing facilities, acts of government affecting Seller directly or indirectly, bad weather, any causes beyond Seller’s reasonable control, or any causes designated Acts of God or force majeure by any court of law.
ii. In the event such delays arise, Seller shall be granted a reasonable time to resume performance and the estimated delivery date shall be extended accordingly.
iii. Seller shall not be liable for any damages or penalties whatsoever, whether direct, indirect, special or consequential, resulting from its failure to perform or delay in performing.
iv. If shipping or progress of the work is delayed or interrupted by the Buyer, directly or indirectly, the Buyer shall pay Seller for all additional charges resulting therefrom.
f. Seller reserves the right to make partial shipments and to submit invoices for partial shipments. Seller also reserves the right to ship overages of weight, length, size and/or quantity (not to exceed ten percent (10%)) or as quoted, unless Buyer advises Seller in writing not to ship quantity variances prior to or at the time of Buyer’s order.
g. Goods not expressly rejected in a writing delivered to Seller within five (5) days of delivery shall be deemed to have been accepted
5. PRICES:
a. Unless otherwise agreed in writing, all prices and charges specified herein are based on U.S. dollars, FOB origin and are effective for:
i. The time period set forth in Seller’s written quotation for the goods; or
ii. Thirty (30) days from the date of the quotation. Transportation shall be by common carrier, at Buyer’s risk and expense, with the transportation, insurance, and related charges added to the quoted price. Should the delivery date be postponed by Buyer, Seller shall have the right to adjust the price of the undelivered goods to Seller’s price at the time of shipment.
b. All supervision and labor for Services provided by Seller shall be on the basis of eight (8) hours per day, Monday through Friday, inclusive. If it is mutually agreed that other working periods are required, Buyer shall pay the additional charges, allowances and any other costs resulting therefrom.
c. Unless otherwise noted in the quotation, service time of factory-trained service personnel is not included and may be charged extra.
6. PAYMENT TERMS; ORDERS; QUOTES; INTEREST:
a. Terms of payment are within Sellers sole discretion, and unless otherwise agreed to by Seller, payment must be received by Seller prior to Seller acceptance of an order.
b. Payment for the products will be made by credit card, wire transfer, or some other prearranged payment method unless credit terms have been agreed to by Seller.
c. Invoices are due and payable within the time period noted on your invoice, measured from the date of the invoice. Seller may invoice parts of an order separately. All sums not paid when due shall accrue interest daily at the lesser of a monthly rate of 1.5% or the highest rate permissible by law on the unpaid balance until paid in full.
d. Seller shall have no continuing obligation to deliver Products on credit, and any credit approval may be withdrawn by Seller at any time and without prior notice. Seller retains (and Buyer grants to Seller by submitting a purchase order) a security interest in the Products to secure payment in full and compliance with all sales agreements, and Buyer agrees to execute any additional documents necessary to perfect such security interest. In the event the sales invoice shall be placed by Seller in the hands of an attorney for the purpose of collection, with or without litigation, or for the purpose of enforcing Seller's security interest in the Products, the Buyer agrees to pay any and all costs associated with such placement, including, without limitation, attorney's fees and costs incurred prior to, during, or subsequent to trial, and including, without limitation, collection, bankruptcy, or other creditor's rights proceedings.
e. Payments for orders accepted in the United States shall be made in U.S. Dollars.
f. Unless otherwise noted in the quotation, published or quoted prices are net F.O.B. Seller’s factory (location of factory determined by Products ordered).
g. All orders are subject to additional job specific terms/specifications. Please refer to the “Additional Terms/Specifications” sheet that accompanies every quote.
7. TAXES:
a. Buyer shall bear all applicable federal, state, municipal and other government taxes (such as sales, use and similar taxes), as well as import or customs duties, license fees and similar charges, however designated or levied on the sale of the Products (or the delivery thereof) or measured by the purchase price paid for the Products. (Seller's prices set forth on the front side of the invoice do not include such taxes, fees and charges.)
b. If Buyer is exempt from any taxes, Buyer shall furnish to Seller an appropriate tax exemption certificate in a form acceptable to the taxing authority.
8. WARRANTY:
a. Seller warrants that on the date of shipment all goods manufactured by Seller shall be free from defects in material and workmanship under normal use and service.
b. No warranty extended by Seller shall apply to:
i. any goods which have been modified or altered by persons other than Seller
ii. any goods subjected to any misuse, neglect, improper storage or handling, installation or accidental damage
iii. any goods manufactured by a third party.
c. Seller's exclusive obligation under this warranty is, at Seller’s option, to repair the defective goods, to supply replacement goods free of charge (FOB origin or factory, appropriately), to refund to Buyer the purchase price paid for the defective goods, or to grant credit for the value of any goods found to be defective under this warranty in installment sales. Seller shall not reimburse or make any allowance to Buyer for any labor charges incurred by Buyer for re-placement or repair of any goods unless such charges are authorized in advance by Seller.
d. This warranty is made on the condition that Buyer gives Seller immediate written notice of any defect (notice must be delivered to Seller within five (5) days from the date of delivery), that Buyer gives Seller access to the goods and Buyer’s relevant records and data, and that Seller’s inspection reveals that Buyer’s claim is valid under the terms of this warranty. No re-turns will be accepted by Seller unless accompanied by Seller’s Return Material Authorization.
e. With respect to third party goods, Seller’s only warranty to Buyer is that such goods are free of any rightful claims of their manufacturer. To the extent any warranties extended to Seller by their manufacturer are transferable; Seller shall transfer such warranties to Buyer.
f. THIS WARRANTY APPLIES TO THE GOODS ONLY AND NOT TO ANY COMBINATION OR ASSEMBLY OF THE GOODS OR ANY SERVICES OF SELLER. SELLER MAKES NO WARRANTY OTHER THAN THE WARRANTY SET FORTH HEREIN AND THE WARRANTY ON PATENTS. SUCH WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. INSURANCE:
Prior to full payment of the purchase price, Buyer shall keep insured, Products shipped to Buyer by Seller under policies naming Seller as coinsured party with such provisions, for such amounts and with such insurers as shall be satisfactory to Seller and, upon Seller’s request, Buyer shall furnish evidence of such insurance satisfactory to Seller.
10. OSHA, SAFETY DEVICES, F.M., F.I.A., ETC.:
Products are not required to conform to any standards, except OSHA, unless the same are set forth in the quotation. Where conformance is part of the installation, Seller will furnish any required equipment or appurtenances, beyond those specifically indicated in the quotation only when mutually agreed upon in a written agreement signed by Seller.
11. LIMITATION OF LIABILITY:
Seller shall in no event be liable for any direct, indirect, special or consequential damages whatsoever, whether grounded in tort (including negligence), strict liability or contract, and under no circumstances will Seller’s liability exceed the contract price for Products and Services upon which liability is claimed. Any action by Buyer against Seller must be commenced within one year after the cause of action has accrued.
12. GAS HAZARD:
Certain equipment quoted herein may be of a special gaseous atmosphere type. Also, certain materials may generate explosive gas while being processed in the equipment. It is generally known that gas may be a hazard to health and/or explosive under certain conditions. Seller shall not be responsible for personnel hazard and/or explosion damage when gas is used or present.
13. DRAWINGS, ETC:
a. All specifications, drawings, design, data, information, ideas, methods, patterns and/or inventions, made, conceived, developed, or acquired by Seller incident to procuring and/or carrying out its contract will vest in and inure to Seller's sole benefit. Buyer agrees to hold in confidence and not to give, loan, disclose, exhibit or sell to any other party or interest, outside of its own company, any drawing, photograph, specification or other technical information furnished by Seller or any reproduction thereof. Such charges as may be made for patterns, etc., cover use only. All such equipment shall remain the property of and in Seller's possession.
b. Drawings are not subject to Buyer’s prior approval. Buyer agrees to hold in confidence and not to give, loan, disclose, exhibit or sell to any other party or interest, outside of its own company, any drawing, photograph, or specification furnished by Seller or reproduction thereof. Such charges as may be made by Seller for patterns, etc., cover use only. All such equipment shall remain the property of and in Seller’s possession.
c. Tracings and reproducible drawings are not provided by Seller, unless expressly stated in the quotation.
d. Seller may take photographs of its installed equipment for record purpose but agrees not to use them for sales or advertising without the written consent of the Buyer.
14.
APPLICABLE LAW:
a. All sales agreements shall be deemed made in, and shall be governed by, the laws of the State of California.
b. Any suit or action brought to enforce, or challenge any of the terms or conditions of this Agreement shall be brought solely in Las Angeles, California; without reference to principles of conflicts of law and excluding any application of the United Nations Convention on Contracts for the International Sale of Products.
15. ASSIGNMENT:
Buyer's rights and obligations hereunder may not be assigned without Seller’s prior written consent.
16. SEVERABILITY:
In the event that any term or provision of this Agreement is held by a court or tribunal of competent jurisdiction to unenforceable, then the remaining provisions of this Agreement shall remain in full force and effect.
17. NON-WAIVER:
Seller’s failure at any time to require strict performance by Buyer of any of the provisions herein shall not waive or diminish its right thereafter to demand strict compliance therewith or with any other provision. Waiver of any default shall not waive any other default.
18. GENERAL:
a. These terms and conditions shall constitute the final, complete and exclusive agreement of the parties with respect to all sales by Seller to Buyer and shall supersede all prior offers, negotiations, understandings and agreements.
b. Unless Buyer and Seller have executed a master contract which specifically supersedes and replaces the terms and conditions herein, it is expressly agreed that no prior or contemporaneous agreement or understanding, whether written or oral, shall contradict, modify, supplement or explain the terms and conditions contained herein.
c. No additional or different terms or conditions, whether material or immaterial, shall become a part of any sales agreement unless expressly accepted in writing by an authorized officer of Seller in the United States.