TERMS AND CONDITIONS OF SALE AND WARRANTIES
The following terms and conditions shall apply to all transactions and agreements for the sale of goods and products to include replacement parts to fit existing original equipment manufacturer display merchandisers and coolers by Tan Scholnick Industries LLC dba SimplySourceful ("Company") to Buyer. By entering into the role of Buyer, Buyer agrees and accepts all terms and conditions set forth below.
Prices, including any and all applicable taxes and shipping charges, for goods and products as shown on the face of each purchase shall be paid immediately upon order unless other arrangements have been put in place with Company prior to order.
2. TERMS OF CREDIT
If prior credit arrangements have been made before order has been placed, those agreed upon credit terms are in place for each order. All credit terms are net 30 days from date of order. Company reserves the right to revoke or revise credit terms if Buyer fails to make timely payment or Buyer’s financial condition has materially deteriorated. Goods and products may not be returned for credit unless prior authorization is obtained and an authorization number have been issued by Company. A 2% per month charge will be assessed on past due amounts.
3. SHIPMENT OF GOODS; RETURNS
Commercially reasonable efforts will be made to ship all goods, products, or services on the scheduled shipment dates. Company shall not be liable for any claims or consequential damages arising from a failure to meet scheduled shipping dates. If Buyer refuses shipment or delivery of any goods, products, or services pursuant to an acknowledged order, Buyer will be responsible for full price of items and shipping regardless of acceptance of goods and products. If any good or product is defective or otherwise nonconforming, Company reserves the right to cure or make a conforming delivery at the ship-to location. Shipping terms and price will be specified on the face of the order or invoice. Unless otherwise instructed by Buyer in writing, Company shall select the method of shipment to the specified delivery address of Buyer.
4. TITLE AND RISK OF LOSS; SECURITY INTEREST
Title to goods and risk of loss or damages thereto passes to Buyer upon completion of loading of goods on carrier at Company’s facility. Buyer will be liable for any additional charges such as damage, storage, and labor incurred by its failure to promptly unload shipments. All claims by Buyer for damages to the goods incurred during shipping shall be made to the carrier. Buyer grants a security interest to Company in all such goods to secure payment of all amounts due.
Company warrants: (i) all products will conform to and perform in accordance with the applicable specifications issued by the Company, provided that the installation, maintenance, servicing, and repairs of such products are performed in accordance with manufacturer's recommendations; (ii) Sealed glass units have a 10 year warranty from the date of order. (iii) All other parts including workmanship on doors, frames, shelving, posts have a 1 year parts warranty. Company is not responsible for freight charges. THE ABOVE WARRANTIES ARE THE COMPANY’S SOLE WARRANTIES AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO INJURY TO PERSONS OR PROPERTY.
6. ACCEPTANCE OF PRODUCTS BY BUYER/CLAIMS
Upon delivery, all shipments must be inspected for damage, loss, shortage or deficiencies prior to acceptance from the carrier. If damage, shortage or deficiency exists with respect to any shipment or service and it is not concealed, Buyer shall secure a notation of such damage or shortage from the delivering agent on the freight bill or delivery receipt, as applicable. If any damage, defect or deficiency is concealed, Buyer must notify Company thereof within five (5) days of delivery and hold the merchandise for inspection by Company. Any claims for visible loss, damage, or deficiency must be filed by Buyer with Company in writing immediately upon receipt of the materials. All claims of Buyer that materials delivered do not conform to the accepted order shall be handled as claims for breach of warranty and Buyer shall be limited to those remedies available for breach of warranty.
7. CLAIMS BY BUYER
After submission of any claim by Buyer, Company, or delegates Company deems appropriate, shall be afforded a reasonable opportunity to inspect the goods and work. All claims not made in the time period and manner specified above shall be deemed waived. All actions, claims or defenses by Buyer shall be deemed waived unless commenced and asserted in writing. No claims for visible, external damage to or shortage of goods will be allowed unless they are accompanied by an inspection report or signed delivery receipt noting such loss or damage signed by a representative of the carrier and forwarded to the Company within thirty (30) days of the delivery date.
Unless otherwise provided for herein Company and Buyer shall indemnify and hold harmless each other from any and all claims, actions, costs, expenses, damages and liabilities, including attorney fees and costs, resulting from death, bodily injury, or damage to real or personal property caused by the negligence or misconduct of their respective employees or authorized agents in connection with their activities arising out of any Order. Neither party shall indemnify the other against claims, damages, expenses, or liabilities to the extent attributable to the acts or omissions of the other party.
9. LIMITATION OF LIABILITY
Notwithstanding anything to the contrary provided herein, in no event shall the Company be liable for any special, incidental, or consequential damages, including without limitation product loss, loss revenue, or profits, punitive damages whether claimed under contract, warranty, negligence, strict liability, or other legal theory. Should Company nevertheless be found liable for any damage, such damages shall be limited to the purchase price of the product or goods as shown on the face of the order.
Existing or active Orders may not be canceled after receipt by Company unless agreed to in writing by Company. Cancellation will be granted only on terms indemnifying Company against any loss resulting from such action. At minimum, Buyer will be liable for all cost incurred on the order through the cancellation date. Company shall not change or cancel existing or active orders without written consent by Buyer.
If Buyer defaults or fails to make payment for the purchase of any good or product or if a petition in bankruptcy if filed by or against Buyer, Company will take action to recover lost payment and may refuse to make further shipment of goods. The prevailing party in any action arising out of a default or breach of any Order or these terms and conditions shall be entitled to an award for such party’s attorneys’ fees and all related costs and expenses incurred in the action. Such changes may increase price of item(s) ordered as well as shipping costs.
12. FORCE MAJEURE
Company’s duty to perform and the price of all goods or products are contingent upon the non-occurrence of an Event of Force Majeure. If the Company is unable to perform any material obligation pursuant to order due to an Event of Force Majeure, the order shall at Company’s election (i) remain in effect, but Company’s obligations shall be suspended until the uncontrollable event terminates, or (ii) is terminated by Company upon 10 days notice to Buyer, in which event Buyer shall pay Company for work performed to the date of termination. An “Event of Force Majeure” shall mean any cause or event beyond the control of the Company including acts of God, acts of terrorism, war, flood, earthquake, tornado, storm, fire, civil disobedience, riots, labor disputes, material shortages, sabotage, restraint by court order or public authority (whether valid or invalid), and action or non-action by or inability to obtain or keep in force necessary governmental authorizations, permits, licenses, certificates or approvals if not caused by Company.
13. ENTIRE AGREEMENT
Each order and sale invoice constitute the entire agreement between Company and Buyer with respect to the sale and purchase of goods, any installation services, and any extension of credit. If the parties agree to amend or modify any terms and conditions, such amendment or modification must be expressly agreed upon in writing between Buyer and Seller before the order is placed.
14. GOVERNING LAW
Each order between Company and Buyer, and all other claims or disputes that arise between parties,whether sounding in contract or accordance with the laws of the State of California. Company and Buyer expressly and irrevocably consent to the exclusive jurisdiction of the courts of the State of California to determine all claims between the parties, regardless of whether said claims are contract claims, warranty claims, tort claims, patent claims, trademark claims, or copyright claims. Company and Buyer also expressly agree and consent to file any claim, dispute, or lawsuit arising between the parties exclusively in the State or Federal Courts located in Ventura, County of Ventura, State of California. Service of process on Buyer may be made by certified or registered mail addressed to the Buyer.
If any provision of the terms and conditions specified herein be deemed invalid or unenforceable, the remaining terms and conditions shall be construed as though such provision does not appear herein and shall be otherwise fully enforceable. Modification must be within a written agreement duly executed by an officer of Company and Buyer before order is placed. The terms specified herein shall control in the event of any variance between these terms and any terms contained in an order.
The section headings contained herein are inserted for convenience only and shall not be considered in any questions of interpretation or construction of any agreements between Company and Buyer.