Terms & Conditions

Purchaser acknowledges that Purchaser is making this purchase after, and in complete reliance upon its full and entire inspection of the goods to be sold under this Sales Agreement (“Agreement”) and not by reason of any representation made by or in behalf of Seller as to the merchantability, specific attributes or otherwise, of the goods.

Purchaser assumes all responsibility for and risk of loss or damage to the goods upon delivery at Seller’s shipping point, notwithstanding the fact that Seller may have selected the carriers.

Until full payment of all obligations of Purchaser hereunder (whether represented by notes, open, account, judgment, or otherwise), Seller reserves title to all of the goods furnished hereunder, or hereafter in connection therewith, and the same shall be considered as personal property and subject to the Purchase Money Security Interest of Seller which is hereby granted by the Purchaser.

In any proceedings or action relating to a default by Purchaser, Seller shall be reimbursed (if permitted by law) for reasonable attorneys’ fees and costs incurred by Seller in respect thereof. No remedy herein provided for shall be applicable where not permitted by law.

If in Seller’s judgment, either before or after shipment of the goods, the financial condition of Purchaser is such as to indicate inability to pay its remaining obligations, if any, including those hereunder, as they mature, Seller upon giving written notice to Purchaser may require payment in full or of a specified part of the balance of the purchase price within ten (10) days after giving of such notice, irrespective of the terms of payment stated herein.

If, for any reason, Purchaser fails to accept and settle for the goods, Purchaser will, if Seller so elects and demands, forfeit to Seller, in lieu of the enforcement of this Agreement, as liquidated damages, a sum equal to the amounts already paid, as down payment or otherwise, by Purchaser to Seller and, if shipment has been made, freight from the facility where the goods were located and returned, loading and unloading expenses, and all other similar expenses actually incurred by reason of the shipment and attempted delivery of the goods.

Title to the products sold under this Agreement shall pass to Purchaser upon Seller’s delivery to carrier at the point of shipment unless such products are delivered by a carrier operated by Seller, in which case, title to the goods shall remain and be in the Seller and shall pass to the Purchaser upon delivery to Purchaser at Purchaser’s destination point or points. Purchaser agrees that it will incur no indebtedness whatsoever on behalf of Seller in the above-mentioned operation, nor employ any employees for on behalf of Seller.

If the Agreement covers goods not owned by Seller at this date, such goods are sold subject to Seller’s acquisition of possession and title.

Seller makes no warranty whatsoever with respect to the freedom of the goods from claims of infringement by third parties arising from trademarks or patent rights in said goods.

The remedies of Purchaser for any breach of any obligation arising hereunder, as herein set forth, shall be the sole and exclusive remedy therefore irrespective of any other remedies otherwise available pursuant to Uniform Commercial Code or otherwise in law or equity.

Purchaser shall pay, or upon receipt of invoice from Seller, shall reimburse Seller for, all sales, use, occupation, gross income, excise, and other taxes or charges levied or imposed on Purchaser, or required to be collected by Seller, or imposed on the goods or on Seller resulting from this transaction or any part thereof, irrespective of whether included on the face hereof at the time of entry of this order.

Purchaser agrees to indemnify Seller against all claims by Purchaser or by any third party, whether on account of negligence or otherwise, arising out of or resulting from any transaction involving, or condition of, the goods including but not limited to product liability or personal injury, actions brought by any individual. This provision shall not be applicable to any action brought by Seller’s employees.

If Purchaser delays shipment, payments are to be made as though shipment had been made as specified. The goods may be stored by Seller at Purchaser’s risk and expense.

Seller’s obligations hereunder are subject to delays incident to: labor difficulties; fires, casualties and accidents; acts of the elements; acts of the public enemy; transportation difficulties; inability to obtain the goods, materials or qualified labor sufficient to timely fill its orders, in which latter case Seller may apply or prorate shipments of its goods to or among its customers as in its judgment is reasonable in the circumstances; governmental interference or regulations, and causes beyond Seller’s control. If by reason of any of the foregoing events or conditions, shipment is delayed more than six (6) months beyond the period specified herein, either party may terminate this Agreement by written notice to the other and in that event Seller shall refund to Purchaser all payments previously made hereon, without interest (if other goods have been accepted by Seller as part payment and are not available for return to Purchaser, then Seller shall pay to Purchaser the agreed upon value thereof).

The Purchaser absolutely and unconditionally guarantees to Seller the prompt payment, when due, of all amounts owing Seller of whatever nature arising under this Agreement. Seller may decline to make deliveries under this Agreement, except for cash with order, and withdraw any credit terms and demand payment for any outstanding account owed by Purchaser to Seller, whenever Seller shall for any reason doubt the Purchaser’s financial condition and so advise Purchaser. If Purchaser fails to perform any of the terms of this Agreement, Seller may, at its option, defer shipment, until such default is made good, or may treat the default as final refusal to accept shipment under this Agreement.

If the Purchaser has accepted the goods tendered under this Agreement in any manner provided in the State of Arizona’s version, with amendments, of UCC §2-606, Purchaser shall have no right to revoke its acceptance of the goods.

Seller by written notice to Purchaser may adjust the price of the goods. On receipt of such notice, Purchaser shall have the option to accept such new price or terminate this Agreement. If within ten (10) days after receipt of any such notice Purchaser fails to notify Seller in writing of its acceptance, this Agreement shall be deemed terminated, in which case Seller shall refund to Purchaser all payments previously made hereon, without interest, (including the return of any trade-in goods or, at the option of Seller, the agreed upon value thereof).

Seller before or after acceptance hereof is authorized to insert in this order as a part hereof the serial or other identification numbers of the goods described herein, and the maturity dates of the promissory notes, if any, herein provided for.

Any or all of the Seller’s right or obligations hereunder may be assigned by Seller, without notice to Purchaser, and may be exercised by an assignee thereof. Purchaser shall not assert against any transferee, either of this Agreement or of the promissory notes, if any, any defense (other than actual payment), setoff, equity, or counterclaim which Purchaser may have or claim against Seller. Purchaser acknowledges that Seller uses varying trade styles and names in those jurisdictions in which it does business.

Each provision of this Agreement is severable and, in the event that any one or more thereof may be declared invalid, the remainder of this Agreement shall nevertheless remain in full force and effect.

This order is subject to acceptance by Seller at its home office. Thereupon, Seller shall mail to Purchaser a signed duplicate copy hereof. This Agreement constitutes the entire agreement between the parties, supersedes all prior agreements and representation, whether oral or written and may not be modified, amended, or changed except by written agreement between the parties. Any other terms or conditions or any purchase order or other instrument issued by Purchaser in addition to or inconsistent with the terms and condition of this Agreement shall not be binding upon Seller and shall not apply to this Agreement. The Agreement and the notes given hereunder shall be governed by the laws of the State of Arizona. Purchaser has retained a copy of this Agreement as signed by it.

The banking by Seller or other disposition of funds paid by Purchaser to Seller or the disposition by Seller of any trade-in goods offered by Purchaser to Seller hereunder shall not constitute an acceptance of this order by Seller.

Any controversy or claim arising under or in relation to this Agreement or any modification of it, shall be brought in accordance with the laws of Arizona without regard to Arizona choice of law or conflict of law internal laws. Any controversy or claim arising out of or relating to this agreement, or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. THIS MEANS THAT PURCHASER WAIVES HIS/HER/ITS RIGHT TO A JURY TRIAL.

Any waiver of any provision of this Agreement or any right by any party hereto at any time shall not be construed as a waiver or bar for any such right or provision at any future time by such party, unless so stated in writing. The waiver shall not be effective unless in writing and signed by the party to be charged.

This Agreement shall not be binding on Seller unless signed by an officer or manager of Seller, likewise no modification shall be binding on Seller unless in writing and similarly signed. Commencement of performance prior to compliance with the preceding sentence shall not be construed as a waiver of this Agreement.

Either party to this Agreement may assign its rights and delegate any of its duties, either in whole or in part.

Seller DISCLAIMS ANY IMPLIED WARRANTIES, except the implied warranty of merchantability. THERE IS NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

SELLER HAS MADE NO AFFIRMATION OF FACT AND HAS MADE NO PROMISE RELATING TO THE GOODS BEING SOLD WHICH HAS BECOME ANY BASIS OF THE BARGAIN MADE OR HAS CREATED OR AMOUNTED TO AN EXPRESS WARRANTY THAT THE GOODS WOULD CONFORM TO ANY SUCH AFFIRMATION OR PROMISE. NO DESCRIPTION OF THE GOODS BEING SOLD HAS BEEN MADE PART OF THIS BASIS OF THE BARGAN OR HAS CREATED OR AMOUNTED TO AN EXPRESS WARRANTY THAT THE GOODS WOULD CONFORM TO ANY SUCH DESCRIPTION. NO SAMPLE OR MODEL HAS BEEN MADE PART OF THE BASIS OF THE BARGAIN OR HAS CREATED OR AMOUNTED TO AN EXPRESS WARRANTY THAT THE WHOLE OF THE GOODS WOULD CONFORM TO ANY SUCH SAMPLE OR MODEL.

IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, REVENUES, BUSINESS OPPORTUNITIES OR INTERRUPTION OF BUSINESS) RESULTING FROM OR ARISING OUT OF THE DELIVERY, INSTALLATION, OPERATION, PERFORMANCE OR USE OF THE GOODS (OR NON-PERFORMANCE, DELAY IN OR FAILURE OF THE SAME), EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.