Terms & Conditions
Terms and Conditions Sales
1. TERMS OF CONTRACT; ENTIRE AGREEMENT: Provisions in any proposal, order, confirmation or other writing, of whatever kind inconsistent with or in addition to the terms and conditions of this Sales Contract (the "Contract'') shall not be binding on the other party unless approved in writing by the other party and making specific reference to such inconsistent or additional terms or conditions. This Contract and Trading Rules incorporated herein by reference (if any and to the extent they do not conflict with terms and conditions set fort herein, or on the face hereof), supersedes and modifies any other agreement of the parties entered into prior to or contemporaneous with this Contract, and is intended as a final, complete and exclusive statement of the entire agreement of the Buyer and Seller concerning the subject matter hereof.
2. INCREASED COST: Prices on any undelivered commodities under this Contract are subject to increase by Seller in the event of any governmental action or any cause beyond Seller's control affecting Seller's cost after the date of this Contract including but not limited to duties, taxes, other governmental charges assessments, freight and insurance costs.
3. CANCELLATION: In the event Buyer fails to perform or repudiates any of the terms and conditions of this or any other Contract with Seller (including payments when due or any installments of commodities hereunder), or in the event of proceedings under any law relating to bankruptcy, insolvency or the reorganization or relief of debtors involving Buyer, or in the event Buyer shall be insolvent or shall make a general assignment for the benefit of creditors or shall suffer a trustee or received to be appointed, Seller shall have the right, without limitation of its rights under the Uniform Commercial Code to cancel all or any part of this and any other Contract with Buyer, withhold shipment, and/or delivery, stop the commodities in transit and/or demand immediate payment of all outstanding invoices or other sales contracts, irrespective of their then stated maturity dated, and Buyer shall in each such case be liable to Seller for all losses, damages and expenses thereby incurred.
4. NO ASSIGNMENT: Neither party may assign this Contract, nor delegate obligations hereunder, without the express written consent of the other party.
5. WARRANTY: Seller warrants that the commodities which are the subject matter of this Contract are (a) of merchantable quality (b) meet the specifications and contract description set forth on the face of this Contract. and (c) are not adulterated or misbranded within the meaning of the Food, Drug and Cosmetic Act (the ''Act"), as amended, nor an article which may not be introduced into interstate commerce under the provisions of the Act. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED (INCLUDING IMPLIED WARRANTIES OF FITNESS FOR PARTICULAR PURPOSE AND MERCHANTABLITY), NOR INCORPORATED BY REFERENCE UNDER THE TRADING RULES (IF ANY), WHICH EXTEND BEYOND THOSE SPECIFICALLY STATED IN THIS PARAGRAPH AND ALL OTHER SUCH WARRANTIES ARE DISCLAIMED.
6. LIMITATION OF REMEDIES: Seller shall not be liable under any circumstances for special, indirect, consequential or incidental damages. of whatever kind or amount incurred, including, without limitation, loss of profits, production, use or resale opportunities. or other indirect economic losses, or for expenses incurred with respect to inspection, receipt transportation, storage, care or custody of commodities, or incurred in connection with cover. In no event shall the liability of a party to this Contract exceed the amount of the purchase price of the lot or shipment for which a claim is made, and interest thereon as provided for herein.
7. NO WAIVER: Seller's failure to insist on full performance of any term or condition of this Contract, or breach thereof, shall not be considered a waiver of that term or condition, or breach thereof in the future or as to any other term, condition, or right under this Contract.
8. ATTORNEY'S FEES AND EXPENSES: In the event that an action is brought to enforce or interpret the provisions of this Contract the prevailing party shall be entitled to recover its reasonable attorney's fees, costs, and expenses, incurred in contemplation of, preparation for, and prosecution or defense of such action.
9. FORCE MAJEURE: In the event of any prohibition of exportation or refusal to issue export license by any government, war, blockade, embargo, boycott, insurrection, mobilization. governmental direction, act or refusal to act, failure of suppliers or manufactures to deliver or delay of suppliers or manufactures in delivery, riot, civil commotion, revolution, strike, lockout, slowdown, sabotage, prolonged failure or shortage of electric current or fuel, inability to obtain shipping or freight space, inability to obtain transportation or transfer facilities, epidemic. quarantine, earthquake, fire, flood, typhoon, hurricane, peril, danger or accident at sea or other navigable waters, landslide, lightening, other act of God, radiation or explosion affecting the activities of Seller, manufacturers or any other persons firms or corporations directly or indirectly connected with the sale, manufacture, supply, shipment or delivery of the commodities, or any other similar or dissimilar cause or causes beyond the control of Seller, Seller shall not be liable for any default in performance of all or any part of this Contract. and Buyer shall accept any delivery which has been delayed due to any of the aforesaid causes made within reasonable time of the termination of the affecting cause, or at Seller's option, Seller may cancel all or any part of this Contract affected thereby.
10. DELIVERY/SHIPMENT: Seller may deliver the commodities in one shipment or in multiple shipments and/or may arrange transshipment. If the commodities are shipped in multiple shipments, each such shipment shall constitute a separate contract to which the terms and conditions hereof shall apply. The date of the Bill of Lading if any shall be conclusive as to the date of shipment. Default or delay by Seller in delivering the whole or any part of commodities under this Contract shall not affect any other portion thereof, nor shall it affect any other contract between the parties hereto.
11. DELINQUENCY, ETC.: In the event that Buyer shall be delinquent in payment when due of any part of the purchase price of commodities hereunder, interest at the rate of 2% per annum over the prime rate from time to time prevailing shall be payable upon any such unpaid balance, but in no event shall said interest charge exceed the maximum lawful interest rate. This provision shall not be deemed or construed as a waiver of Seller's absolute right to full payment of the purchase price on the due date(s) thereof. Any remittances received from or for account of Buyer in respect of this Contract may be accepted and applied by Seller without prejudice to or the discharge of Buyer(s) obligations hereunder, regardless of any condition. provision, or notation accompanying or appearing on such remittances.
12. FAIR EMPLOYMENT: For the limited purpose of providing the Buyer with a defense to any claim that the commodities were manufactured in violation of applicable laws and regulations regarding employment practices, Seller warrants that the commodities furnished under this Contract have been produced in compliance with the labor and employment laws of the country of origin, including laws that prohibit human trafficking and slavery.
13. ARBITRATION: Notwithstanding any other provisions of a Trading Rules incorporated in this Contract (if any), any controversy, claim, or dispute arising out of or relating to this Contract or a breach thereof, or the interpretation thereof shall be settled by arbitration. Such arbitration shall be held in San Jose California administered by and in accordance with the Commercial arbitration Rules of the American Arbitration Association and shall be conducted in the English language. The parties agree that any such arbitration award shall be final and binding upon them and that judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
14. GOVERNING LAW: This Contract shall be governed by the laws of the State of Califomia, excluding the United Nations Convention on Contracts for the International Sale of Goods.
15. PERSONAL GUARANTY: in consideration of Seller extending credit at Buyer’s request, the Buyer’s signee, personally guarantee prompt payment of any obligation of Buyer to Seller, whether now existing or hereinafter incurred , and he/she further agrees to bind him/herself to pay on demand any sum which is due by Buyer to Seller whenever Buyer fails to pay same, it is understood that this guaranty shall be an absolute, continuing and irrevocable guaranty for the Debt of Buyer. The signee expressly waive presentment, demand, protest, notice of protest, dishonor, diligence, notice of default of nonpayment, notice of acceptance of this guaranty, notice of the extending of any guaranteed Debt already or hereinafter contracted for/by Buyer, notice of any modification or renewal of any credit agreement evidencing the Debt hereby guaranteed, notice on any renewal or extension of such Debt, and the signee expressly consent to any modification or renewal of a credit agreement evidencing the Debt hereby guaranteed and to all renewals or extensions of such Debt. The signee further waives any right to require Seller to proceed against, or may any effort at collection of the Debt from the Buyer or any other party liable for such Debt. If there is an action or proceeding among the parties hereto to enforce this Agreement or any other rights of the parties, including payment of any obligation, the prevailing party will be entitled to recover reasonable attorneys' fees in addition to all other amounts. If more than one party signs this Guaranty as guarantor, each guarantor shall be jointly and severally liable for the Debt, and, in all instances herein, the singular shall be construed to include the plural.