(a) All sales are made subject to Buyer’s payment of all applicable State, County, City and Federal use sales and excise taxes. Any such tax may be billed to the Buyer as part of the selling price, or may be separately billed at any time by the Seller, if the Seller is required by any taxing authority to collect or pay such tax.
(b) Are "Where is", unless otherwise specified.
(c) Buyer shall pay all transportation charges and any additional charges for special packaging which the Buyer requests.
(d) Are conditioned upon Buyer’s immediate acceptance and are subject to change without notice or withdrawal at any time. Protection against change or amount of change is only as specifically stated herein.
2. SHIPPING SCHEDULE:
(a) Subject to prior sale or confirmation by Seller at time of acceptance of order.
(b) Subject to unavoidable delays caused by strikes, accidents or other causes beyond our control including but not limited to acts and regulations by the Federal government.
(c) All shipping dates are approximate only and are subject to delays as provided at (b) above.
3. All quotations "Where is", unless otherwise specified. Delivery of goods to a carrier by Seller or supplier (s), consigned by Buyer or as a Buyer may direct, shall constitute transfer of title, ownership, possession and property in and to the goods at such point of delivery, and such carrier shall thereafter be deemed to be acting for Buyer and the goods shall thereafter be at Buyer’s risk. In the case of goods sold on leases, contract or other special arrangement, title shall be retained by Seller based upon terms of that agreement.
4. Orders placed pursuant to this quotation cannot be cancelled except with Seller’s consent. In the event of such consent, Buyer shall promptly upon receipt pay to Seller as follows:
(a) Contract price for all goods which shall be been completed prior to receipt of notice of cancellation.
(b) All actual costs made or incurred by Seller in connection with the uncompleted portion of the order plus normal profit of the total contract price as partial liquidated damages.
(c) Cancellation charges, if any, of Seller on account of its purchasing commitments made under the order.
5. The contract resulting from the acceptance of an order pursuant to this quotation shall be governed by and construed according to the laws of the State of California.
6. The terms of this quotation shall be accepted by the Buyer upon his issuance of a purchase order or verbal agreement. No terms or conditions set forth in any such purchase order which are at variance with the terms and conditions of this quotation shall constitute a part of this agreement except as provided under Paragraph 9 herein.
7. Waiver by Seller of a breach of any of the terms and conditions of this or any other agreement with Buyer shall not be construed as a waiver of any other breach. These terms and conditions constitute the entire agreement between Seller and Buyer and such agreement shall not be modified or amended except by a writing executed after the date hereof by an authorized officer of Seller. Seller shall not be bound by any terms of the Buyer’s purchase order forms or documents which attempt to impose conditions at variance with these terms and conditions.
8. Terms for payment, unless otherwise agreed in writing, are one-third payment upon acceptance of order and the balance paid prior to shipment. Any account unpaid after date due is subject to a service charge of 1.5 percent per month on the unpaid balance.
9. (a) The Seller warrants that the title conveyed under the terms of this contract shall be good and its transfer rightful; and that the goods shall be delivered free from any security interestor other lien or encumbrance whatsoever.
(b) Limitation Of Liability. It Is Understood And Agreed That Seller’s Liability Whether In Contract, In Tort, Under Any Warranty, In Negligence Or Otherwise, Shall Not Exceed The Return Of The Amount Of The Purchase Price Paid By Buyer And Under No Circumstances Shall Seller Be Liable For Special, Indirect Or Consequential Damages. The Price Stated For The Equipment Is A Consideration In Limiting Seller’s Liability. No Action, Regardless Of Form, Arising Out Of The Transaction Under This Contract, May Be Brought By Buyer More Than One Year After The Cause Of Action Has Accrued.
10. INDEMNIFICATION: Buyer agrees to indemnify, hold harmless and defend Seller from and against any and all claims, demands, liabilities, costs or lawsuits arising out of or in any way involving injury or accident occasioned by said equipment. Said agreement includes, but is not limited to, the duty to indemnify, hold harmless and defend Seller in any of the following situations: Claims involving or alleging improper or negligent design, maintenance, construction, reconstruction, repair, alteration or modification of the equipment by Seller, its agents or employees; claims involving allegations of failure, negligent or otherwise, on the part of the Seller to equip said equipment with safety devices or equipment as required by Federal, state or local government statutes, rules or regulations, or as is customary in the trade; and claims involving or alleging negligence by Seller, either alone or jointly with Buyer or any other person, firm or organization. Buyer specifically agrees to indemnify, hold harmless and defend Seller from any and all claims alleging negligence on the part of Seller and waives benefit of any law, rules or regulations contrary to, or in the limitations of this Agreement. If the Seller, in the enforcement of any part of this indemnity Agreement, shall incur necessary expenses or become obligated to attorney’s fees or court costs, the Buyer agrees to reimburse the Seller for such expenses. The covenants expressed herein shall be severable and the invalidity, now or in the future, of any of the covenants recited herein, shall not affect the validity of the remaining covenants.
Waiver by Seller of any breach of the terms and conditions of this contract shall not be construed as a waiver of any other breach. These terms and conditions constitute the entire agreement between the parties hereto and such agreement shall not be modified or amended except by a writing executed after the date hereof, by an authorized officer of the Seller.
12. WAIVER OF RIGHT TO JURY TRIAL/SUBMISSION TO JURISDICTION/DESIGNATION OF LAW AND FORUM:
In any action brought by Purchaser or any Successor or Assignee of Purchaser, arising out of or related to this Contract, or the equipment or goods sold hereunder, Buyer hereby waives its right to a trial before a jury. The parties agree that the laws of the State of California shall control in construing this Contract and in any such dispute and that all such actions brought arising out of or related to this Contract shall be brought in a court of competent jurisdiction located in San Diego County, California.
In the event Buyer files a petition in bankruptcy, is adjudicated a bankrupt, a petition in bankruptcy is filed against Buyer, Buyer becomes insolvent or makes an assignment for the benefit of creditors or other arrangement pursuant to any bankruptcy law, discontinues business or a receiver is appointed for Buyer, then in said event, at Seller’s election, Seller shall have no obligation to deliver the equipment or other goods.