Terms and Conditions of Sale
Seller hereby certifies that these goods were produced in compliance with all applicable requirements of sections 6, 7, and 12 of the Fair Labor Standards Act, as amended, and all applicable regulations and orders of the United States Department of Labor issued under section 14 thereof. ALL SALES ARE SUBJECT TO THESE TERMS AND CONDITIONS OF SALE. BUYER'S ACCEPTANCE OF SHIPMENT CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS OF SALE. THESE LIMIT SELLER'S LIABILITY.
Offer, Governing Provisions and Cancellation
This writing constitutes an offer or counter‑offer by Tecate Industries Inc. or Tecate Products, collectively known as the Tecate Group ("Seller") to sell the products and/or services described herein in accordance with these terms and conditions, is not an acceptance of any offer made by buyer, and is expressly conditioned upon assent to these terms and conditions. Buyer will be deemed to have assented to these terms and conditions unless Seller receives written notice of any objection within 10 days after buyer's receipt of Seller's Sales Acknowledgement or Invoice, whichever is received earlier. No additional or different terms or conditions will be binding upon Seller unless specifically agreed to by Seller in writing; failure of Seller to object to provisions contained in any purchase order or other communication from buyer shall not be construed as a waiver of these terms and conditions nor an acceptance of any of such provisions. No order may be cancelled or altered by buyer except upon terms and conditions acceptable to Seller, as evidenced by Seller's written consent. In the event of such an approved cancellation by buyer, Seller shall be entitled to payment of the full price, less the amount of any expenses saved by Seller by reason of the cancellation.
Prices and Payment
All prices are subject to change upon notice; and the price of products on order but unshipped will be adjusted to the price in effect at the time of shipment. Payment is due upon buyer's receipt of Seller's invoice, unless Seller requires payment in advance. Interest will be charged at the rate of 18% per year (but not more than the highest rate permitted by applicable law) on accounts more than 30 days past due.
Taxes and Other Charges
Any manufacturer's tax, occupation tax, use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and buyer shall be paid by buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee, interest or charge, buyer shall reimburse Seller therefore upon demand.
Delivery, Claims and Force Majeure
Delivery of products to a carrier at Seller's plant or other loading point shall constitute delivery to buyer; and regardless of shipping terms or freight payment, buyer shall bear all risk of loss or damage in transit. Seller reserves the right to make delivery in installments, unless otherwise expressly stipulated herein; all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve buyer of its obligations to accept remaining deliveries. Claims for shortages or other errors in delivery must be made in writing to Seller within 5 days after receipt of shipment and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by buyer. Claims for loss or damage to goods in transit must be made to the carrier and not to Seller.
All delivery dates are approximate. Seller shall not be liable for any damage as a result of any delay or failure to deliver due to any cause beyond Seller's reasonable control, including, without limitation, any act of God, act of buyer, embargo or other governmental act, failure to act, regulation or request, fire, flood, accident, strike, slowdown, war, terrorist act, riot, delay in transportation, or inability to obtain necessary labor, materials or manufacturing facilities. In the event of any such delay the date of delivery shall be extended for a period equal to the time lost because of the delay. Buyer's exclusive remedy for other delays and for Seller's inability to deliver for any reason shall be rescission of this agreement.
If the products are not shipped within 15 days after notification to buyer that they are ready for shipping, for any reason beyond Seller's reasonable control, including buyer's failure to give shipping instructions, Seller may store such products at buyer's risk in a warehouse or yard or upon Seller's premises, and buyer shall pay all handling, transportation and storage costs at the prevailing commercial rates upon submission of invoices therefor.
Seller may at any time make such changes in design and construction of products as shall constitute an improvement in the judgment of Seller. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers.
Seller warrants products that are supplied hereunder to be free from defects in materials and workmanship for a period of 90 days from date of shipment. If within such period any such product shall be proved to Seller's satisfaction to be defective, such product shall be repaired or replaced at Seller's option. Such repair or replacement shall be Seller's sole obligation and buyer's exclusive remedy hereunder and shall be conditioned upon Seller's receiving written notice of any alleged defect within the above warranty period and within 10 days after its discovery and, at Seller's option, return of such products to Seller, f.o.b. its factory. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED; AND SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
Any description of the products, whether in writing or made orally by Seller or Seller's agents, specifications, samples, models, bulletins, drawings, diagrams, engineering sheets or similar materials used in connection with buyer's order are for the sole purpose of identifying the products and shall not be construed as an express warranty. Any suggestions by Seller or Seller's employees or agents regarding use, application or suitability of the products shall not be construed as an express warranty unless confirmed to be such in writing by Seller.
Products may be returned to Seller only if and when buyer obtains Seller's advance written permission. Returned products must be securely packaged to reach Seller without damage and must be properly identified; any cost Seller incurs to put products in marketable condition will be charged to buyer.
Seller will, at its own expense, defend any suits that may be instituted by anyone against buyer for alleged infringement of any United States patent relating to any products furnished by Seller hereunder, if such alleged infringement consists of the use of such products, or parts thereof, in buyer's business for any of the purposes for which the same were sold by Seller, and provided buyer shall have made all payments then due hereunder and shall give Seller immediate notice in writing of any such suit and transmit to Seller immediately upon receipt all processes and papers served upon buyer and permit Seller through its counsel, either in the name of buyer or in the name of Seller, to defend the same and give all needed information, assistance and authority to enable Seller to do so. If such products are in such suit held in and of themselves to infringe any valid United States patent, then: (a) Seller will pay any final award of damages in such suit attributable to such infringement, and (b) if in such suit use of such products by buyer is permanently enjoined by reason of such infringement, Seller shall, at its own expense and at its sole option, either (i) procure for buyer the right to continue using the products, (ii) modify the products to render them non-infringing, (iii) replace the products with non-infringing goods, or (iv) refund the purchase price and the transportation costs buyer paid for the products. Notwithstanding the foregoing, Seller shall not be responsible for any compromise or settlement made without its written consent, or for infringements of combination or process patents covering the use of the products in combination with other goods or materials not furnished by Seller. The foregoing states the entire liability of Seller for infringement, and in no event shall Seller be liable for consequential damages attributable to an infringement.
As to any products Seller furnishes to buyer manufactured in accordance with drawings, designs or specifications proposed or furnished by buyer or any claim of contributory infringement resulting from the use or resale by buyer of products sold hereunder, Seller shall not be liable, and buyer shall defend and indemnify Seller against any award made against Seller for any and all infringements.
Consequential Damages and Other Liability; Indemnity
Seller's liability with respect to the products and/or services sold hereunder shall be limited to the warranty provided in the "Warranties" section hereof, and, with respect to other performance of this contract, shall be limited to the contract price. SELLER SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property or personal injury damages, penalties, special or punitive damages, damages for lost profits or revenues, loss of use of products or any associated equipment, cost of capital, cost of substitute products, facilities or services, down‑time, shut‑down or slow‑down costs, or for any other types of economic loss, or for claims of buyer's customers or any third party for any such damages. SELLER SHALL NOT BE LIABLE FOR AND DISCLAIMS ALL CONSEQUENTIAL, INCIDENTAL, INDIRECT AND CONTINGENT DAMAGES WHATSOEVER.
Buyer shall indemnify and hold harmless Seller against any and all losses, liabilities, damages and expenses (including, without limitation, attorneys' fees and other costs of defending any action) which Seller may incur as a result of any claim by buyer, its customers or others arising out of or in connection with the products and/or services sold hereunder and based on product or service defects not proven to have been caused solely by Seller's negligence.
Any sketches, models or samples submitted by Seller shall remain the property of Seller, and shall be treated as confidential information unless Seller has in writing indicated a contrary intent. No use or disclosure of such sketches, models and samples, or any design or production techniques revealed thereby, shall be made without the express written consent of Seller.
Any property of buyer placed in Seller's custody for performance of this contract is not covered by insurance, and no risk is assumed by Seller in the event of loss or damage to such property by fire, water, burglary, theft, civil disorder or any accident beyond the reasonable control of Seller.
Any dies, jigs or tools which Seller manufactures or acquires for performance of this contract shall remain the property of Seller, notwithstanding any charges therefor. Tool charges convey to buyer the right to have the tools used by Seller for performance of this contract, but they do not convey title or right of possession. Seller shall be responsible for routine maintenance and repair of such tools, dies and jigs. Major overhauls, replacements or changes shall be charged to buyer.
THIS CONTRACT AND THESE TERMS AND CONDITIONS SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SELLER AND BUYER, AND SHALL BE GOVERNED BY AND SHALL BE CONSTRUED ACCORDING TO THE INTERNAL LAWS OF THE STATE OF CALIFORNIA (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS). THERE ARE NO CONDITIONS AFFECTING THIS CONTRACT THAT ARE NOT EXPRESSED HEREIN. THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL NOT BE GOVERNED BY THE PROVISIONS OF THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.