GENERAL TERMS AND CONDITIONS OF PURCHASE
In these General Terms and Conditions of Purchase, Buyer shall mean:
Hoebarth Corporation, a California corporation, dba California Metals.
These general terms and conditions of purchase (“Terms and Conditions”) shall govern and form an integral part of all agreements entered into and for all purchase orders placed by Buyer for the supply of goods and/or services by your company (hereafter referred to as “Supplier”). Each such agreement or purchase order shall be referred to herein as the “Agreement”. As used herein, the term “goods” shall include both tangible and intangible goods, including software, service requirements, spare parts and any related software and/or documentation that may accompany the goods. Reference to “goods” shall where appropriate be deemed to include services.
The term “Affiliate” of Buyer or Supplier shall mean any entity or person which: (i) is Controlled by Buyer or Seller; or (ii) Controls Buyer or Seller; or (iii) is under common Control Buyer or Seller. For this purpose, “Control” means that more than fifty percent (50%) of the controlled entity’s shares or ownership interest representing the right to make decisions for such entity are owned or controlled, directly or indirectly, by the controlling entity. An entity is considered an Affiliate only so long as such ownership or control exists.
These Terms and Conditions shall constitute all the terms and conditions of any Agreement between Buyer and Supplier relating to the purchase by Buyer and sale by Supplier of goods unless specifically agreed otherwise in writing by Buyer. Any terms and conditions set forth on any document or documents issued by Supplier either before or after issuance of any document by Buyer setting forth or referring to these Terms and Conditions are hereby explicitly rejected and disregarded by Buyer, and any such terms and conditions shall be wholly inapplicable to any purchase made by Buyer and shall not be binding in any way on Buyer. No Agreement constitutes an acceptance by Buyer of any other terms and conditions and Buyer does not intend to enter into an agreement other than under these Terms and Conditions. Any changes in these terms and/or the Agreement must be specifically agreed to by Buyer in writing.
Any purchase order of Buyer is expressly made conditional on Supplier’s assent to all of the terms contained in the purchase order without deviation. Acceptance by Supplier of a purchase order may be evidenced by (i) Supplier’s written or verbal assent or the written or verbal assent of any representative of Supplier, (ii) Supplier’s delivery of the goods, or (iii) other conduct by Supplier or any representative of Supplier consistent with acceptance of the purchase order.
2. Timing, Charges, and Informatino
Time is of the essence for the purposes of Supplier’s obligations under the Agreement. In the event Supplier for any reason anticipates any difficulty in complying with any agreed delivery date or otherwise in accordance with any requirement of the Agreement, Supplier shall promptly notify Buyer in writing. Supplier shall use its best efforts to accommodate any reasonable request by Buyer to reschedule confirmed delivery dates, or to change other parts of any Agreement. Upon Buyer’s request Supplier shall without delay provide information in writing concerning the status of any order, shipments due and payments and such other items relating to the business flow between Supplier and Buyer as Buyer may request. Supplier undertakes to inform Buyer immediately when it anticipates constraints on its capacity to supply goods as ordered by Buyer, in which case Supplier will provide suitable assurances to Buyer that its requirements will be adequately serviced.
All goods shall be delivered Delivery Duty Paid (“DDP”, latest version of Incoterms as issued by ICC, Paris, France) and risk and title to the goods (free and clear of any encumbrances) shall pass to Buyer on delivery, unless expressly otherwise agreed in writing by Buyer. Supplier shall make no deliveries before the agreed delivery date(s) and Buyer shall not be liable for any costs caused by or related to production, installation, assembly, commissioning or any other work related to such goods prior to delivery, except as explicitly agreed to by Buyer. Where the Agreement provides for installation, commissioning or any other work to be carried out by Supplier such work shall be executed with good workmanship and using proper materials. As a minimum requirement, such goods shall comply with all applicable quality and certification standards. Supplier shall pack, mark and ship the goods in such manner as to prevent damage during transport and which facilitates unloading, handling and storage. For all software, including without limitation device drivers, firmware and any necessary software for the proper operation and support of the goods (collectively “Software”), Buyer and its Affiliates are granted a perpetual, non-exclusive, non-transferable, irrevocable, royalty-free, worldwide right and license to use, reproduce, prepare derivative works of and distribute the Software in connection with Buyer’s distribution and support of the goods including without limitation distribution in electronic form (e.g. via Buyer’s website). Supplier agrees to provide all updates and modifications to the Software to Buyer during the term of the Agreement without additional charges. Any license fees for Software shall be included in the purchase price or any other amounts payable under the Agreement.
Without prejudice to any warranty extended, express or implied, by law, Supplier expressly warrants and represents to Buyer that all goods to be supplied to Buyer shall be new, of good quality, design, materials, construction and workmanship, and that all goods conform strictly to the specifications, approved samples, industry standards and all other requirements of the Agreement, and are suitable for the intended purpose. In the case of non-compliance with this warranty, Buyer may, at its discretion and without prejudice to any other right or remedy available under the Agreement or at law, reject the goods which do not comply with the provisions of the first sentence of this section 4 (hereinafter referred to as goods having a “defect” or “defective goods”) by written notice to Supplier. In the event of such rejection or if Buyer detects any goods having a defect after acceptance thereof, Buyer, at its option, shall be entitled to a full refund of the purchase price of the defective goods, or may require Supplier to remedy promptly the non-conformance or to replace the defective goods. In such event Supplier shall be responsible for and indemnify Buyer against and shall hold Buyer harmless from any and all cost of repair, replacement and transportation of the defective goods, as well as for all costs and expenses (including, without limitation, recall, inspection, handling and storage costs) and damage incurred by Buyer in connection with such defective goods. Risk to the goods shall pass to Supplier as from the notice of rejection. Supplier will provide out of warranty service to Buyer and its Affiliates at commercially reasonable prices for a period of five (5) years after the last date of manufacture of the goods.
5. Epidemic Defects
Supplier warrants that the goods will be free from epidemic defects. An ”epidemic defect” is a defect which appears in more than half a percent (0.5%), or any lower percentage as specified in the specifications, of the goods of the same or substantially the same type delivered by Supplier to Buyer or its Affiliates within the epidemic defect period as stated in the relevant specifications, or if no such period is stated, within any consecutive period of three (3) months, and which defect is either similar or substantially similar or has similar or substantially similar cause. In the event of an epidemic defect, Supplier shall urgently and at its costs and expense repair or replace goods delivered to Buyer which show such epidemic defect within the reasonably expected life time of such goods and Supplier shall further indemnify Buyer for all losses and damages incurred by Buyer, including without limitation all costs and damages in relation to recall of any goods or products in which the goods are used from the market (whether defective or not) in relation to the epidemic defect.
Subject to acceptance of the goods by Buyer, payment shall be made upon a properly submitted invoice at 60 days following the date on which the goods are delivered or (if applicable) installed and commissioned. Supplier shall accept payment for the goods regardless whether payment is made by Buyer or any of its Affiliates. Buyer shall, at all times, have the right to set-off any amounts owed by Supplier or any of its Affiliates to Buyer or any of its Affiliates against amounts owed by Buyer or any of its Affiliates to Supplier or any of its Affiliates. Supplier acknowledges and agrees that any debt of Buyer to Supplier may be paid on behalf of Buyer by any of its Affiliates and/or any third party designated by Buyer.
Supplier will treat such payment as if it were made by Buyer itself and Buyer’s debt to Supplier will automatically be satisfied and discharged for the amount paid by such Affiliate or third party.
All prices are inclusive of all taxes and duties except to the extent the same are to be borne by Buyer pursuant to the applicable Incoterms. All such taxes and duties deemed included in the price shall be borne by Supplier, and Supplier shall pay such taxes and duties itself or, where these have been paid by Buyer, reimburse Buyer for such taxes and duties. Supplier warrants that the prices for goods will not be less favorable than prices applicable to sales by Supplier to any other customer purchasing like quantities of substantially comparable products.
Buyer shall have the right to request information regarding the current location and status of any of its orders and Supplier shall furnish such information as soon as practicable. Payment, inspection, testing or acceptance of any goods by Buyer shall not relieve Supplier of any of its obligations under the Agreement, nor shall it constitute acceptance or approval of any goods or constitute or operate as a waiver of any defect, nonconformity or any rights or remedies available under the Agreement or at law.
9. Drawings, Tools and Materials
Any specifications, drawings, information, tools, molds, masks, jigs, dies and other materials furnished to Supplier or funded or paid for by Buyer (whether separate or as a part of the unit price), in whole or in part, shall (i) remain or become as of the moment of completion thereof, Buyer’s property, provided the risk therefor (including risks of loss or damage) remains with Supplier until delivery to Buyer, (ii) if use thereof by Supplier is allowed by Buyer, be used exclusively for the purposes of the Agreement, be properly used, maintained and kept in good working condition at Supplier’s expense, (iii) be clearly marked as Buyer’s property and be kept in separate storage when not in use, and (iv) be delivered to Buyer promptly on Buyer’s demand. Supplier shall inform any third parties who might seek recourse thereon of Buyer’s proprietary right; Supplier shall immediately inform Buyer of any such event. Supplier shall take out adequate insurance, mentioning Buyer as beneficiary, for all property of Buyer in the possession of Supplier.
Without prejudice to any other right or remedy available to Buyer under the Agreement or at law, Supplier shall indemnify and hold Buyer and its Affiliates and their successors and assigns, harmless from and against all liabilities, claims, suits, losses, damages, costs and expenses (including reasonable attorney’s fees), whether direct or indirect, arising from or relating to a third party’s claim arguing that the goods constitute(d) infringement, violation or misappropriation of any intellectual property right or other proprietary right of a third party.
Without prejudice to any other right or remedy available to Buyer under the Agreement or at law, Supplier (1) shall procure the right for Buyer to continue to use the goods at no extra costs to Buyer, and (2) agrees that it will indemnify and hold Buyer, its Affiliates and their successors and assigns harmless from and against all liabilities, including without limitation product liability, claims, losses, damages, costs and expenses (including reasonable attorney’s fees), whether direct or indirect (including, without limitation, loss of profits), arising from or relating to Supplier’s (or its officers’, employees’, agents’ or subcontractors’) failure to comply with any of its obligations under the Agreement.
11. Confidential Information
Supplier agrees to treat as confidential and to use only for the purposes of the Agreement all information, including but not limited to technical and commercial information, which is provided “as is” in whatever form or medium by or on behalf of Buyer and of its Affiliates and to give access to such information only on a need to know basis to its employees and not to transfer, publish, disclose or otherwise make available such information or any portion thereof to any third party without Buyer’s prior written consent. All information shall remain Buyer’s property and no licenses or rights are granted in any such information and Supplier shall, upon Buyer’s demand, promptly return to Buyer or destroy all such materials and information, not retaining any copies thereof, upon Buyer’s demand. Supplier shall not use the name, logo, trademark, or any other reference to Buyer, either direct or indirect, in press releases, advertisements, sales literature or other publications and shall not disclose the existence or the terms and conditions of the Agreement, without the prior written consent of Buyer.
Buyer may terminate all or any part of its obligations under any Agreement to purchase or accept goods at any time for its convenience upon written notice to Supplier. If Buyer provides the written notice to Supplier at least thirty (30) days prior to the specified shipping date of the relevant goods, Buyer shall have no liability for the termination. If Buyer terminates the Agreement on less than thirty (30) day notice, Buyer and Supplier will negotiate a reasonable termination charge, if any, based on all appropriate factors, including, without limitation, the percentage of work performed by Supplier prior to termination, Supplier’s ability to resell or reuse the goods or services, and market conditions prevailing at the time of termination.
Supplier has a duty to use its best efforts to mitigate any damages or losses resulting from a termination by Buyer. Buyer shall have the right to audit all elements of the termination charge and Supplier shall make available to Buyer on request, all books, records and papers relating thereto.
If Supplier fails to comply with any obligations of the Agreement, Supplier shall be in default without further notice being required. In the event of default, insolvency or bankruptcy proceedings are instituted against Supplier (including voluntary insolvency or bankruptcy proceedings), Supplier is liquidated or dissolved, any attachment is made over the assets of Supplier or on its behalf, Supplier makes an unauthorized assignment for the benefit of creditors, or any other person or entity than the person or entity having control over Supplier at the date of the Agreement acquires control over Supplier, Buyer shall be entitled to rescind or terminate the Agreement, in whole or in part, without prejudice to any other rights or remedies available to Buyer under the Agreement or at law (including, without limitation, the right to seek damages). If Buyer for any reason anticipates any difficulty for Supplier in complying with any obligations of the Agreement, Buyer shall be entitled to require Supplier to remedy such non-compliance within a period to be set by Buyer in its discretion.
All provisions of the Agreement destined to survive the dissolution, termination or expiration thereof shall survive such dissolution, termination or expiration.
13. Continuity of Supply
In the event that Supplier is in default under any Agreement, Buyer may notify Supplier of its intent to have the goods manufactured (or services performed) directly by Supplier’s designated manufacturer or subcontractor (hereafter “Subcontractor”) or by any third party designated by Buyer as stipulated below if such default is not remedied within fourteen (14) days or if within same period no precautions are taken by Supplier to Buyer’s reasonable satisfaction to prevent future defaults with the same or substantially similar cause. If Supplier does not remedy such default within such fourteen (14) day period, Buyer will have the right to have the affected goods manufactured or services performed directly for Buyer by the Subcontractor. At the same time Buyer provides notice to Supplier, Buyer will have the right to contact the Subcontractor and work with the Subcontractor to ensure that the Subcontractor will be ready to ship goods to or perform services for Buyer immediately if Supplier does not cure the default or does not take precautions to Buyer’s reasonable satisfaction to prevent future defaults with the same or substantially similar cause within the aforesaid period of fourteen (14) days. In the event that Supplier does not use a Subcontractor for production of the goods or performance of services or the Subcontractor is unable or unwilling to
manufacture and sell the goods directly to or perform services directly for Buyer, Supplier will immediately provide to Buyer all materials, specifications and other items necessary to enable Buyer, or a third party designated by Buyer, to manufacture, support, distribute, license and sell the goods or perform the services (“Materials”). In addition, Supplier grants to Buyer a worldwide, royalty free, irrevocable, non-exclusive right, under all necessary intellectual property rights, to: (i) use, execute, reproduce and prepare derivative works of the Materials for the purposes of making, manufacturing and supporting the goods and performing the services, (ii) distribute and sell such goods, and (iii) authorize third parties to do any of the foregoing on Buyer’s behalf. The Materials will be provided to Buyer’s third party manufacturer or service provider under a non-disclosure agreement and such third party manufacturer or service provider will only be permitted to use the Materials to manufacture the goods or perform the services for Buyer. Supplier agrees to extend its warranty and indemnity obligations as set forth under sections 4 and 10 of these Terms and Conditions, to any goods manufactured or services performed by Subcontractor or a third party pursuant to the provisions of this section 14.
14. Compliance with Law
Supplier represents and warrants to Buyer that the goods will and have been designed, manufactured and delivered and/or the services will and have been performed in compliance with all applicable laws and regulations (including, without limitation, environmental, health and safety laws and regulations and any Buyer’s policies or guidelines on the environment and banned substances from time to time informed to Supplier). In the event of dangerous or hazardous goods, Supplier shall provide to Buyer written and detailed specifications of the composition of such goods and of all laws, regulations and other requirements relating to such goods in order to enable Buyer to properly transport, store, process and use such goods.
15. Use of Trademarks, Tradennames
Supplier shall use any trademark, tradename or other indication in relation to the goods, whether owned by Buyer and/or its Affiliates, Supplier or any third party, only in accordance with Buyer’s instructions or prior written approval and solely for the purposes expressly specified by Buyer in writing. Supplier shall not have nor obtain any right, title or interest in or to any Buyer’s or its Affiliates’ owned trademarks, tradenames or other indications. All rights related to or resulting from the use by Supplier shall inure to the benefit of the Buyer and its Affiliates. Supplier herewith acknowledges all rights, title and interest of Buyer and/or its Affiliates in respect of and to the Buyer’s and/or its Affiliates’ owned trademarks, tradenames and other indications.
16. Subcontracting and Assignment
Supplier shall not subcontract, transfer or assign any of its rights and obligations under the Agreement to any third party or any of its affiliates without the prior written consent of Buyer. In case Supplier is permitted to subcontract any of its obligations hereunder, it shall remain fully responsible and liable for the proper performance of its obligations under any Agreement. Buyer may assign any Agreement to any of its Affiliates or to any third party in connection with any merger, acquisition, re-structuring, disposal, change of control, or sale or other transaction in relation to all or substantially all or part of Buyer’s business and/or assets upon notice to Supplier.
17. No Waiver
No waiver by Buyer of any breach of any condition, covenant or term of the Agreement shall be effective unless it is in writing and no failure or delay by Buyer in enforcing any provision of the Agreement or in exercising any right, power or privilege hereunder shall operate as a waiver thereof.
18. Export Restriction
Supplier agrees that it will not export or re-export, directly or indirectly, any of Buyer Confidential Information, goods, software and/or technology, without complying with all applicable international and national export control laws, to any country for which the United States of America or any other country, at the time of export or re-export requires an export license or other governmental approval, without first obtaining such license or approval. Supplier also agrees to inform Buyer whether or not the supplier product or technology is US controlled and/or controlled under the export control laws of its own country, and if so, what the export control classification number (ECCN).
19. Consequential Damages
IN NO EVENT SHALL SUPPLIER BE ENTITLED TO LOSS OF PROFITS, REVENUE, GOODWILL, OR PRODUCTION DOWNTIME, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF BUYER IS ADVISED OF THE SAME.
20. Governing Law and Dispute Resolution
The Agreement shall be governed by the laws of the State of California. All disputes arising out of or in connection with the Agreement shall first be attempted by Supplier and Buyer to be settled through consultation and negotiation in good faith and a spirit of mutual cooperation. All disputes that are not so settled within a period of thirty (30) days from the date the relevant dispute first arose may be submitted to the competent courts in Los Angeles County, California.
In the event that any provision(s) of the Agreement or these Terms and Conditions shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding, or action shall not negate the validity or enforceability of any other provisions hereof.
GENERAL TERMS AND CONDITIONS OF SALE
All sales of goods or services by Hoebarth Corporation dba California Metals, are made subject to the following terms and conditions, unless expressly stated otherwise in a separate document signed by both Hoebarth Corporation dba California Metals and Buyer. Hoebarth Corporation dba California Metals expressly objects to any different or additional terms, additions, revisions or modifications contained in Buyer’s purchase order or any other document or communication submitted by Buyer. Buyer’s acceptance of this offer is expressly limited to Buyer’s assent to the following terms and conditions:
1. Offer and Acceptance
The purchase order between Buyer and Seller is an offer by Hoebarth Corporation dba California Metals (“California Metals”) to sell the goods or services referenced in the purchase order between Buyer and California Metals (the “Products”) to Buyer. Buyer may accept this offer orally, in writing, or by performance, as long as Buyer’s acceptance does not alter these terms and conditions (“Terms”).
California Metals shall not be bound to any different, additional, or modified term, condition, or provision, unless such term, condition, or provision is specifically accepted by California Metals, in a separate writing, signed by both California Metals and Buyer. Buyer’s objection to any of these Terms must be set forth in a separate writing signed and dated by Buyer and delivered to California Metals prior to or contemporaneous with Buyer’s purchase order or other form of acceptance. Unless California Metals agrees to Buyer’s objection in writing, the objection is rejected and shall not become a part of the agreement. California Metals’ failure to object to any term or condition contained in any communication from Buyer shall not be deemed a waiver of these Terms, nor shall it be deemed an endorsement or acceptance of any term or condition set forth by Buyer. No course of dealing or custom and usage contrary to these Terms shall apply. Notwithstanding the foregoing, California Metals may correct any typographical or clerical errors, including, but not limited to, errors in price, specifications, quotations, or acknowledgments.
The offer contained herein shall lapse if Buyer fails to make a definite and seasonable expression of acceptance of these Terms within 15 days of the date of the purchase order between Buyer and Seller.
3. Entire Agreement
These Terms, and any additional or different terms expressly agreed upon in writing by both California Metals and Buyer, constitute the entire agreement between California Metals and Buyer with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, whether written or oral, relating to the purchase order between Buyer and Seller, including any terms and conditions on any of Buyer’s documents or purchase orders. This agreement shall be binding upon the parties and their successors and assigns. If any provision of this agreement is held to be invalid or unenforceable, that provision shall be severed from the agreement and the remainder of the agreement shall remain in full effect.
Prior to the acceptance of a purchaser order by both Buyer and Seller, all prices indicated in the purchase order between Buyer and Seller are subject to change without notice. Unless otherwise agreed, prices are quoted in U.S. dollars and do not include freight or delivery charges, taxes (sales, excise, use, ad valorem, etc.), or any export or import duties. Such charges may be prepaid by California Metals and added to Buyer’s invoice. Notwithstanding anything to the contrary contained herein or in any other California Metals or Buyer document, California Metals reserves the right to adjust any prices quoted hereon at any time or from time to time in order to reflect or account for any changes in such prices caused, necessitated by or resulting from any litigation, investigation, negotiation, policy, order, settlement, trade action, governmental policy or order or any other actions taken under the laws, rules, treaties and/or regulations (collectively, “Rules”) of any country or subdivision thereof, including but not limited to Rules relating to trade, export, import, commerce, taxation or national security.
5. Shipment, Delivery, Inspection
All shipments are E.X.W., with transportation expenses and insurance paid by Buyer. The risk of loss or damage to the Products in transit shall fall upon the Buyer, whose responsibility it shall be to file claims with the carrier and/or the insurance company. If California Metals pays for freight charges, California Metals shall select the method and carrier for delivery of all Products. If Buyer pays for freight charges, Buyer may, at its option, select the method and carrier for the delivery of all Products, but only upon written notification to California Metals. All scheduled or quoted delivery dates are approximate and based upon prompt receipt of all necessary information from Buyer. Buyer shall examine all Products promptly upon receipt.Buyer shall notify California Metals in writing, within 5 days of delivery, of any shortage or nonconformance. If rejection is intended, Buyer shall specify all grounds for rejection. Failure to provide California Metals with such notice shall be deemed an unqualified acceptance of the delivered Products by Buyer. California Metals also reserves the right to ship the product on multiple skids and/or shipments.
California Metals shall not be liable for loss, damage, or non-performance resulting from delays in receipt of final specifications or instructions from Buyer, events of force majeure, or other causes beyond California Metals’ reasonable control. Quantities are subject to availability. In the event of production difficulties or Product shortages, California Metals may allocate sales and deliveries at its sole discretion. In the event of such a delay, California Metals’ performance shall be excused and the delivery date shall be extended for a period equal to the time lost by reason of the delay.
The payment terms stated in the purchase order between Buyer and Seller are conditioned upon approval of the Buyer’s credit and may be withdrawn or amended by California Metals at any time. Upon request, Buyer shall furnish sufficient information to enable California Metals to assess Buyer’s creditworthiness. All payments shall be made in the currency in which the prices have been quoted. All invoices shall be due and payable 30 days from the date thereof. All payments shall be without deductions for back-charges, other accounts between California Metals and Buyer, or other similar circumstances, which shall be settled independently of the payment of the invoice. Payment shall not prejudice claims on account of omissions or shortages in shipment, but no such claim will be allowed unless California Metals is notified in writing within 5 days of receipt of the shipment of such omission or shortage. All amounts past due shall accrue interest at a rate of 1.5 % per month from the due date, until paid in full. In such event, California Metals may require that all subsequent deliveries be paid for in advance or upon delivery. California Metals shall also have the right to suspend deliveries or discontinue any of the work to be performed by California Metals until amounts past due are paid in full. Further, Buyer agrees to pay all attorney’s fees, litigation expenses and other costs allowable by law, incurred by California Metals to collect upon amounts owed by Buyer to California Metals.
8. Title and Security Interest.
Title shall not pass, and California Metals shall have a
security interest in all Products and the proceeds thereof, until California Metals receives payment in full. Buyer authorizes California Metals to file any and all financing statements and other documents required to perfect California Metals’ security interest, and Buyer agrees to cooperate in filing all such documents and statements. Buyer’s failure to pay the purchase price, when due, shall give California Metals the right to repossess the Product without liability. Furthermore, California Metals retains all other rights and remedies of a secured party under applicable law.
Buyer may cancel its order at any time upon written notice to California Metals, together with payment to California Metals for the purchase price less any costs saved by California Metals as a result of the cancellation.
10. Warranty, Disclaimers, and Remedies
. Subject to standard manufacturing variations, California Metals warrants that the Product furnished under the purchase order between Buyer and Seller, will comply with the specifications set forth in a Purchase Order or associated with the Product itself.
CALIFORNIA METALS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE AND ALL OTHER WARRANTIES.
Further, Buyer disclaims any reliance on any sales descriptions or
- representations made by any employee or agent of California Metals, or any brochure, catalog, pamphlet, advertisement, or other product or sales literature. Buyer agrees that California Metals’ employees and agents have no authority to issue or make any warranty other than the warranty to comply with California Metals’ specifications. No statements or recommendations made in any such advertisements or literature shall be construed as representations regarding any particular application or use of the Product.
- Buyer’s sole and exclusive remedy for breach of warranty or contract shall be the repair or replacement of a defective Product or, at California Metals’ option, a refund of the purchase price, provided that: (1) Buyer provides prompt written notice to California Metals of any alleged defect, and returns the Product to California Metals, freight prepaid; (2) the Product has not be altered or modified by anyone other than California Metals; and (3) the Product has been properly stored, installed, maintained, and used by Buyer. California Metals is not responsible for return Products lost in transit.
- Defective Products replaced by California Metals shall become the property of California Metals. Repaired or replaced Products will be shipped to the Buyer F.O.B. California Metals’ plant. If the Product sold is not manufactured or created by California Metals, California Metals will extend the warranty to Buyer that California Metals received from the original manufacturer or creator, to the extent assignable. California Metals is not responsible for any charges relating to warranty work that has not been authorized by California Metals in writing. Should California Metals provide Buyer with advice or assistance concerning any Product, free of charge, California Metals shall not be subject to any liability, whether in contract, tort (including strict liability and negligence), or otherwise.
11. Limitation of Liability
UNDER NO EVENT OR CIRCUMSTANCE SHALL CALIFORNIA METALS BE LIABLE TO CUSTOMER FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR PERSONAL INJURY, PROPERTY LOSS, OR ECONOMIC LOSS, ARISING DIRECTLY OR INDIRECTLY FROM ANY BREACH OF WARRANTY, BREACH OF CONTRACT, MATERIAL OR OTHERWISE, OR FROM ANY ACT OR OMISSION OF CALIFORNIA METALS’ EMPLOYEES OR AGENTS, TORTIOUS OR OTHERWISE. UNDER NO CIRCUMSTANCE OR THEORY OF LAW SHALL CALIFORNIA METALS’ LIABILITY FOR
ANY CLAIM BROUGHT BY BUYER EXCEED THE PURCHASE PRICE OF THE PRODUCT.
12. Patents and Intellectual Property
The sale of a Product by California Metals does not convey any license, by implication, estoppel, or otherwise, to use or practice any patent or other intellectual property of California Metals covering the Product or its parts. California Metals makes no warranty that the Products will be delivered free of the rightful claim of any third person by way of infringement or the like. Buyer shall indemnify, defend, and hold California Metals harmless against any damages, liabilities, costs and expenses (including reasonable attorney fees and court costs) arising out of any claim that the Product purchased infringes a valid United States patent, copyright, trademark, trade name, proprietary right, or claim of unfair trade or unfair competition, as a result of or arising from California Metals’ compliance with Buyer’s designs, specifications, or instructions, or relating to a system or combination in which the Product is only one component.
13. Assignment; Subcontracting
Any assignment by the Buyer of this agreement or any of Buyer’s rights or obligations under this agreement, without prior written consent of California Metals, shall be null and void, and shall entitle California Metals to cancel such agreement without liability. California Metals shall be permitted to engage one or more subcontractors and assign its duties and obligations under the Terms or any purchase order between Buyer and California Metals to any third-party in its discretion.
14. Disclosure of Information
Any information, suggestions, or ideas given by the Buyer to California Metals in connection with California Metals’ performance are not secret or confidential, except as may be otherwise agreed to, in a separate writing, signed by both California Metals and Buyer.
Any notice required or contemplated by this agreement shall be in writing and shall be delivered personally or sent by prepaid registered mail. Notice sent by registered mail shall be deemed received on the second day following the date mailed.
. No failure by California Metals to exercise any right accruing to it by virtue of the parties’ relationship or under contract between California Metals and Buyer shall operate as a waiver thereof or preclude the exercise of any other right or privilege of California Metals.
17. Governing Law, Venue, and Limitation of Actions
These Terms and the parties’ relationship shall be governed by and construed in accordance with the Uniform Commercial Code as adopted by the State of California, as if the relationship arose in or was to be performed entirely in California. Whenever a term defined by the Uniform Commercial Code is used in these provisions, the definition contained in the Uniform Commercial Code shall control. The exclusive venue and jurisdiction for the resolution of all disputes between the parties arising out of or in connection with this agreement shall be the state or federal courts located in Los Angeles County, California. Any action for breach of contract or any other claim arising out of the parties’ business relationship must be commenced within one year after the cause of action has accrued.