Terms and conditions

1. SELLER warrants that Product will conform to the SELLER’s specifications. SELLER MAKES NO OTHER WARRANTY REGARDING QUALITY OR PERFORMANCE OF THE PRODUCT. THERE IS NO IMPLIED WARRANTY THAT THE PRODUCT WILL BE MERCHANTABLE OR FIT FOR BUYER’S PARTICULAR PURPOSE.
2. SELLER’s sole liability and BUYER’s exclusive remedy for non-conforming goods shall be refund of the purchase price, including direct costs incurred by BUYER for shipping, storing, handling or disposing of non-conforming goods.
3. BUYER shall pay all taxes, excises, fees or charges with respect to the sale or transportation of the Product.
4. Payment terms are net 30 days from date of invoice. Past due balances are subject to a late payment charge of 1 ½% per month, or the maximum amount permitted by applicable law, whichever is less. BUYER shall pay all charges, costs and legal fees incurred in collecting amounts owed.
5. BUYER represents that it is not insolvent, as that term is defined in the Uniform Commercial Code (U.C.C.).
6. BUYER acknowledges that it has received and is familiar with SELLER’s labeling and literature concerning Product, and BUYER agrees to forward such information to its employees, independent contractors, and others who handle and use the Product for Buyer.
7. BUYER has independently determined the suitability of the Product for BUYER’s use.
8. BUYER will comply with all laws, rules and regulations pertaining to handling of the Product, and BUYER assumes all risks and liability arising out of its use, storage, handling and resale of the Product.
9. BUYER agrees to defend, indemnify and hold SELLER harmless against claims by any third party (including BUYER’s employees and customers) arising out of BUYER’s use, storage, handling or resale of the Product.
10. BUYER shall confirm the accuracy of all shipments, as to Product identity, quantity and quality upon receipt and BUYER waives all claims therefore unless made in writing and delivered to SELLER within ten (10) days after receipt of goods.
11. BUYER accepts SELLER’S point-of-shipment weights and measurements, unless proven incorrect. On sales made F.O.B. delivered basis, no allowances for shortage or damage will be made by SELLER unless BUYER furnishes acknowledgment from the carrier that same occurred in transit. On all sales made F.O.B. SELLER’S plant or warehouse, BUYER will, in the event of loss or damage in transit, file its own claim with carrier.
12. Neither BUYER or SELLER shall be liable for any delay in performance or non-performance for any cause beyond the reasonable control of the party affected, whether or not foreseeable by the party affected. Except as otherwise provided herein, U.C.C. Section 2-615 shall govern the rights of both parties hereto in the event of such delay or non-performance.
13. IN NO EVENT WILL SELLER BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES FROM ANY CAUSE OR FOR ANY REASON WHATSOEVER, IRRESPECTIVE OF WHETHER THE CLAIM ARISES FROM ACTUAL OR ALLEGED BREACH OF WARRANTY, INDEMNIFICATION, BREACH OF CONTRACT, PRODUCT LIABILITY, CONTRIBUTION OR ANY LEGAL THEORY AND IN NO EVENT WILL SELLER BE LIABLE FOR LOST PROFITS, COSTS OR LOSSES NOT ASSOCIATED WITH DIRECT PHYSICAL DAMAGE TO PROPERTY FOR ANY CLAIMS MADE UNDER OR RELATED TO THE SALE OF PRODUCTS OR SERVICES TO BUYER. IN NO EVENT SHALL SELLER’S LIABILITY EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES THAT ARE THE SUBJECT OF ANY CLAIMS MADE BY BUYER.
14. If at any time the financial responsibility of BUYER, or the credit risk involved, shall become unsatisfactory to SELLER, SELLER may require cash or satisfactory security prior to subsequent shipments or deliveries hereunder. The election by SELLER to require such cash or security shall not affect the obligation of BUYER to take and pay for the contracted materials. BUYER agrees to pay all costs and expenses, including reasonable attorneys’ fees, incurred by SELLER in the collection of any sum payable by BUYER to SELLER.
15. A final, complete, and exclusive statement of the entire contract is contained herein, including the face hereof, and no parol evidence, course of dealing, conduct, performance, or usage of the trade shall be relevant to supplement or explain it.
16. Any action on behalf of BUYER for breach of the contract must be commenced within one year after the cause of action has accrued.
17. The parties will submit any dispute related to this Agreement to arbitration in Stockton, California before one arbitrator under the American Arbitration Association’s Commercial Arbitration Rules. A party may seek interim relief from any court having jurisdiction without waiving any remedy under this Agreement. The arbitrator may not award punitive damages or other damages not measured by actual damages, or limit, expand or otherwise modify the terms of this Agreement. A party may enter a judgment on an award in any court having jurisdiction. The prevailing party is entitled to an award of reasonable attorney fees. This Agreement is governed by the laws of the state of California.

SALES TERMS AND CONDITIONS 11/29/2010