TERMS AND CONDITIONS OF SALE
1. EXCLUSION OF ALL WARRANTIES EXCEPT THAT GOODS ARE OF A SPECIFIED TYPE AND QUALITY. BendPak, Inc. EXPRESSLY WARRANTS THAT THE GOODS ARE OF THE TYPE AND QUALITY SPECIFIED IN THIS CONTRACT AND EXCEPT AS OTHERWISE PROVIDED IN THIS CONTRACT, THE QUALITY OF THE GOODS SHALL BE IN ACCORDANCE WITH BENDPAK INC’s SPECIFICATIONS. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES INCLUDING THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, EXPRESS OR IMPLIED, AND NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS GIVEN OR SHALL BE IMPLIED BY LAW. FINAL DETERMINATION OF THE SUITABILITY OF THE GOODS FOR THE USE CONTEMPLATED BY BUYER IS THE SOLE RESPONSIBILITY OF BUYER AND BENDPAK INC. HAS NO RESPONSIBILITY AND MAKES NO WARRANTY OR REPRESENTATION IN CONNECTION WITH THE DETERMINATION OF SUCH SUITABILITY. PURCHASERS OF CONSUMER PRODUCTS SHOULD NOTE THAT SOME STATES DO NOT ALLOW FOR THE EXCLUSION OF CONSEQUENTIAL DAMAGES OR THE LIMITATION OF IMPLIED WARRANTIES CONSEQUENTLY, THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT BE APPLICABLE. THIS WARRANTY GIVES THE BUYER SPECIFIC RIGHTS AND THE BUYER MAY ALSO HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE.
2. Terms Of Payment: Payment for all goods is due and payable upon delivery unless other arrangements have been agreed upon in advance and appear on the face of this contract, Interest will accrue and be payable on all accounts over thirty (30) days old, interest to be at the maximum rate permitted by law.
3. Revocable on Nonpayment. If the buyer fails to pay any amount to BendPak, Inc. when due, BendPak, Inc., may terminate this contract as to further delivery and no forbearance or course of dealing affects this right of BendPak, Inc. Notwithstanding any previous shipment on credit BendPak, Inc. may at any time demand payment on delivery or require payment on tender of shipping documents.
4. Acceptance of Terms. A quotation, order or contract is not binding until accepted in writing by and officer of BendPak, Inc. at its general office at 1645 Lemonwood Drive, Santa Paula, CA 93060. Until accepted in this manner, a quotation, order or contract is subject to change without notice.
5. Risk of Loss or Damage. The buyer bears the risk of loss or damage to or destruction of all the goods from the time of their delivery by BendPak, Inc. to the carrier for shipment to buyer. All claims for loss, damage or destruction attributable to shipping should be made directly to the carrier and BendPak, Inc. shall not be responsible for any such loss, damage or destruction.
6. Right of Inspection. Buyer shall have the right to inspect the goods at the time and place of delivery, and within fifteen (15) days after such delivery must give written notice to BendPak, Inc. 1645 Lemonwood Drive, Santa Paula, CA 93060, of any claim for damage on account of the condition, quality or grade of the goods, and must specify in detail the basis of such claim. Buyer’s failure to comply with the terms of this paragraph shall constitute irrevocable acceptance of the goods and bind buyer to pay the contract price for the goods. All clams must be made prior to the installation of the goods. If the buyer has accepted the goods tendered under this contract in any manner provided in UCC Section 2606, buyer shall have no right to revoke his acceptance.
7. DAMAGES. BendPak, Inc. IS NOT LIABLE TO ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF BendPak, Inc. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WHEN THE BUYER ACCEPTS THE GOODS UNDER THIS CONTRACT AND AFTER HE HAS AN OPPORTUNITY TO INSPECT THEM, BUYER IS PRECLUDED FROM ANY FURTHER REMEDY. BUYER ASSUMES ALL RISKS AND LIABILITY FOR LOSS DAMAGE OR INJURY TO PROPERTY OF BUYER OR OTHERS ARISING OUT OF THE USE OR POSSESSION OF THE GOODS SOLD UNDER THIS CONTRACT.
8. Cancellation. All product order cancellations must be approved by BendPak, Inc., and may be denied or subject to restocking fees and other charges.
9. Product Return. Product returns must be made within fourteen (14) days from date of purchase, unless otherwise indicated. All returns require authorization. Customer must call BendPak, Inc. go to the “Returned Merchandise” section found at http://www.bendpak.com.mx /policies for instructions. Returned product must be in original packaging, unused, undamaged, and in sellable condition. Proof of purchase is required in all cases. Product returns may be denied or made subject to restocking fees and other charges by BendPak, Inc.
10. Excuse for Nonperformance. All orders are accepted subject to strikes, riots, wars, labor troubles, floods, fires, accidents, delays, contingencies of transportation, government acts, orders and regulations and any other causes beyond the control of BendPak, Inc., and if any such cause prevents or interferes with the delivery of the goods ordered the buyer shall accept as full and complete fulfillment of the order such portion of the goods by the order as BendPak, Inc. is able, under circumstances, to procure and deliver in accordance with the order.
11. Waiver. No waiver of any breach of default under this contract operates as a waiver of any future default whether of a like or different character, except as otherwise provided herein.
12. Modification and Integration. This contract cannot be modified except by a writing signed by both parties. This contract constitutes the entire agreement between the parties relating to the sale of the goods and this contract prevails over any and all terms contained in buyer’s purchase orders or acknowledgments thereof unless explicitly stated to the contrary, in writing executed by both parties. The provisions of any Purchase Order or other instrument of buyer are superseded by the provision of this contract.
13. Choice of Law. This contract shall be interpreted and its validity and effect shall be determined in accordance with the laws of the state of California. Any litigation in any way related to this contract shall be brought in Ventura County, California.
14. Attorney’s Fees. In the event it becomes necessary for BendPak, Inc. to retain legal counsel to implement collection procedures or to undertake litigation or to otherwise protect its rights under the contract, buyer shall pay BendPak, Inc. a reasonable sum for attorneys fees and related costs whether or not litigation proceeds to final judgment.
15. Severability. If any provision of this contract as applied to any party or to any circumstance, shall be found by a court to be void, invalid or unenforceable, it shall not affect any other provision of this contract, the applications of any such provision in any other circumstance or the validity or enforceability of this contract.
16. Arbitration. Any controversy arising out of or relating to this agreement or the making, performance or interpretation thereof shall be settled by final and binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association then in effect.