Terms & Conditions
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Standard Terms and Conditions of Sale
The Terms and Conditions of Sale appearing below govern the sale of goods and/or services sold or supplied by Payne USA, referred to herein as "Seller" while the Buyer is referred to herein as "Buyer." The parties agree that even if these Terms and Conditions of Sale do not accompany every product sold by Seller, these Terms and Conditions of Sale shall govern all sales made by Seller until such time as new terms and conditions are provided by Seller to Buyer.
Section I. Purchase Orders and Acceptance
1.1. Purchase Orders. Buyer shall purchase the products from Seller by issuing a written purchase order signed by an authorized representative indicating the specific Products, specifications related thereto, quantity, price, total purchase price, shipping instructions, requested delivery dates, "bill to" and "ship to" addresses, tax exempt certifications, if applicable, and any other special instructions. Any contingencies contained on any purchase order issued by Buyer shall not be binding on Seller and purchase orders shall not be binding on Seller until such order is accepted in writing by Seller's authorized representative. Every purchase order contains a minimum seventy-five dollar ($75.00) order requirement and any purchase orders for less than $75.00 will be automatically charged the minimum $75.00.
1.2. Acceptance. Any terms, conditions, or exceptions that are presented to Seller prior to or at the same time of performance of this Agreement (such as on Buyer's purchase order or Buyer's standard form contract) that in any way deviate from these terms and conditions are deemed to be material alterations of Seller's offer and are rejected by Seller unless expressly agreed to in writing by Seller's authorized representative. Buyer shall be deemed to have accepted Seller's terms unless Buyer notifies Seller to the contrary in writing within three (3) days after receiving Seller's acknowledgment. Without limiting the generality of the foregoing, acceptance of purchase orders by Seller shall be contingent upon the availability of materials.
Section II. Description of Goods
The only specifications that are a part of this Agreement are those written specifications acknowledged in writing by Seller and which Seller has initialed and attached to the applicable acknowledgement of Buyer's purchase order.
Section III. Cancellation
3.1. Cancellation. Buyer may cancel a purchase order only with Seller's prior written consent. If Seller does not provide written consent to cancel a purchase order, the Buyer will be obligated to pay the full contract price.
3.2. Cancellation Of Orders For Specially Manufactured Goods. If Buyer, with Seller's written consent, cancels a purchase order that contains an order for products that were to be specially manufactured, Buyer is responsible to pay for all expenses incurred by Seller, including any raw materials and other non-cancelable commitments, such as commitments for the products' procurement, or a minimum 25% cancellation charge, whichever is greater.
Section IV. Quotations and Prices.
All purchase orders require a valid purchase order number and written confirmation prior to acceptance by Seller. All purchase orders will be billed at the price of the product ordered in effect at the time of order, unless otherwise specified in the quotation. Quotations are valid for thirty (30) days unless otherwise specified and represent no obligation on the part of Seller until the quotation in the purchase order is acknowledged and accepted by Seller. The price and performance of orders are subject to resource availability and costs within the control of Seller at the time of manufacture. All prices are subject to change, without notice, at any time prior to Seller's acceptance of a purchase order, to prices prevailing at the time of acceptance. Unless otherwise stated in writing by Seller, all prices quoted shall be exclusive of, and Buyer shall be responsible for, the costs of transportation, insurance, taxes (including, without limitation, any sales, use, or similar tax), license fees, customs fees, duties and other charges related thereto. All clerical errors are subject to correction. Any price discrepancy on orders will require a revised purchase order from Buyer.
5.1 Payment. Subject to the provisions of Seller's credit policy, payment terms are net 30 days from date of invoice unless otherwise noted on the invoice. Thereafter, interest shall accrue on unpaid amounts at the lesser of the maximum rate allowable under law or at the rate of 1.5% per month. All payments must be made in currency of the United States of America. Buyer shall be liable for Seller's costs of collection, including, without limitation, reasonable attorneys' fees.
5.2. Delays. If there is a delay in completion of shipment of any order, due to any change requested by Buyer or as a result of any delay on Buyer's part in furnishing information required for completion of the order, the price agreed upon at time of acceptance of order is subject to change.
Section IV. Delivery and Shipment
6.1. Terms. This is a shipment contract. All shipments shall be made by F.O.B. Shipment at Seller's manufacturing plant at Temecula, California, unless otherwise specified by Seller in writing.
6.2. Shipping. The shipping dates will be established by Seller upon receipt of orders from Buyer. The promised delivery date is the best estimate possible based on current and anticipated factory loads of when the product will be shipped. The Seller assumes no liability for loss, damage or consequential damage due to delays in the change of shipping dates. Delivery of goods to a carrier at Seller's manufacturing plant or other shipping point specified by Seller in writing shall constitute delivery. Title to products purchased under this Agreement and the risk of loss of such products shall pass to Buyer at the point of delivery to the carrier or other entity specified per Incoterms 2000. Transportation shall be at Buyer's sole risk and expense and any claim for loss or damage in transit shall be against the carrier only. A Buyer's purchase order must specify a preferred carrier or the order will be shipped via best way, pre-pay, and added to the invoice. Additional charges will be incurred by Buyer for special processing for Export Orders and drop shipments outside of the United States of America.
6.3. Rescheduled Delivery. Rescheduled deliveries will be subject to acceptance by Seller. If any such reschedule represents a delay in shipment, the purchase price shall become due and owing within 5days after the products are ready for shipment and Buyer will be responsible for any and all costs incurred by Seller associated with the delay. Any such reschedule made within 10 days of the original scheduled shipping date will be subject to an additional charge of 1.5 percent of the total invoice amount. If such reschedule represents an acceleration of the delivery date, Seller shall use its best efforts to meet the request and any extra costs incurred to meet the new delivery date shall be added to the purchase price of the products.
6.4. Partial Shipments. Seller reserves the right to make partial shipments.
6.5. Compliance With Regulations. To the extent applicable, Buyer agrees to comply with relevant hazardous materials shipping regulations when reselling any good classified as a hazardous material. Buyer agrees to comply with all United States export controls and regulations and will not sell, ship to, or otherwise involve Seller's goods with any banned country or denied party on any banned list in violation of United States export controls and regulations. Buyer shall notify Seller if any products ordered are intended for use in a military application. If Buyer provides components, molds, or other technology bearing a classification other than EAR-99, Buyer shall notify Seller prior to providing such items.
Section VII. Inspection and Returns
7.1. Inspection And Acceptance. Upon receipt of the goods, Buyer shall promptly and without delay examine the goods as to their condition, quality and quantity. Unless the Buyer notifies Seller in writing to the contrary within eight (8) business days from the date of receipt of the goods, the goods shall be deemed to have been duly received and accepted as to condition, quality and quantity, without any damage that a reasonable inspection of the goods would yield.
7.2. Returns. Goods can be returned no later than one (1) year from the date of purchase, verified by invoice. Authorization and shipping instructions for the return of any saleable goods must first be obtained from Seller; otherwise, return shipments will be refused. Goods that are specially manufactured cannot be returned. Transportation charges on returned goods must be pre-paid and are Buyer's sole obligation. Goods may be returned for credit only. Returned goods must be carefully packed so as to reach Seller without damage. A 25% restocking charge will be deducted from any credit memorandum issued for returned goods. If the goods are returned due to some fault of Seller, full credit will be issued, including whatever transportation costs Buyer may have incurred, provided the return has been authorized by Seller in writing and is in accordance with the packing and shipping instructions provided by Seller.
Unless otherwise provided in a warranty for the specific product purchased, Seller hereby warrants that all goods purchased hereunder shall be free from material defects in material and workmanship for a period of one (1) year from the date of shipment to Buyer. The foregoing warranty shall not be valid if the product or component parts have been subjected to abuse, misuse, accident, alteration, neglect, unauthorized repair or installation. The foregoing warranty is also contingent upon the proper use of the product and expires immediately upon the modification or enhancement of the product by anyone without the express written consent of the Seller.
Upon discovery of any defect in material or workmanship within one year from the date of shipment, Buyer shall notify Seller within five (5) days of Buyer's discovery of such defect. If such goods are proven to be materially defective to Seller's, and only Seller's, reasonable satisfaction, then such defective goods shall be repaired or replaced at Seller's sole option. In the event the goods cannot be repaired or replaced, Seller shall issue a credit to Buyer for the purchase price of the defective goods.
Such repair, replacement, or issuance of credit shall constitute a fulfillment of all liabilities with respect to such goods. The warranty for all goods sold by Seller but manufactured by others shall be the warranty provided by such manufacturer for such goods. Seller shall take all commercially reasonable efforts (other than the payment of money) to provide the manufacturer's warranty to Buyer.
THIS LIMITED WARRANTY IS THE EXCLUSIVE WARRANTY PROVIDED BY SELLER. SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND THERE IS EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BUYER'S SOLE REMEDY SHALL BE REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCTS, OR, IF THE PRODUCT CANNOT BE REPAIRED OR REPLACED, TO RECEIVE CREDIT FOR THE PURCHASE PRICE OF THE DEFECTIVE PRODUCT. Seller is not liable for damage to goods, property or persons arising out of the improper installation of such goods; modification, repair or tampering of such goods by anyone other than Seller; misuse of the goods; or utilization of the goods under conditions exceeding specifications for such goods.
Section IX. Limitation of Liability
SELLER SHALL HAVE NO LIABILITY TO ANY PERSON WHETHER THE PURCHASER OR A THIRD PARTY FOR PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONTINGENT, OR CONSEQUENTIAL DAMAGES OF ANY DESCRIPTION OR LOSS OF USE, REVENUE, OR PROFITS, WHETHER ARISING OUT OF WARRANTY OR OTHER CONTRACT, NEGLIGENCE OR OTHER TORT, OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Unless specifically provided in a writing executed by the Seller and the Buyer, any equipment (including, but not limited to, jigs, dies, tools, molds and patterns) made for the manufacture of customer specified goods or products shall be, and remain, the sole property of Seller notwithstanding that Buyer may have been charged for all or part of the cost thereof.
Section XI. Engineering and Design Changes.
Seller reserves the right to make design, specification, and/or engineering changes to its products without prior notification to Buyer. Title to, and full and unrestricted ownership and right to use all designs, specifications and engineering information provided by Seller shall at all times be and remain vested in Seller.
Section XII. Miscellaneous Provisions
12.1. Governing Law. Except where inconsistent with the express provisions of these Terms and Conditions, any contract for the sale of goods and these Terms and Conditions of Sale, shall be governed by the construed in accordance with the Uniform Commercial Code as adopted in the State of California. This Agreement shall be deemed to have been made in and shall be construed in accordance with and governed by the laws of the State of California, without regard to the conflict of law provisions thereof, and shall be subject to the exclusive jurisdiction of the state and federal courts sitting in the State of California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
12.2. Severability. If any term or provision of this Agreement shall be held invalid or unenforceable to any extent, the remainder of this Agreement shall not be affected and each other term and provision of this Agreement shall be valid to the fullest extent permitted by law.
12.3. Modification. Any amendment, change or modification of this Agreement shall be effective only if it is made in good faith, in writing, and signed by the parties hereto.
12.4. Waiver. The failure of either party to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement by the other party shall not be deemed a waiver of that term, covenant or condition, nor shall any waiver or relinquishment of any right or power at any one time be deemed a waiver or relinquishment of that right or power for all or any other time.
12.5. Force Majeure. Seller shall not be under obligation or have any liability that may arise out of any delay in its performance or nonperformance caused directly or indirectly by fire, explosion, accidents, strikes, embargoes, floods, epidemics, quarantine restrictions, unusually severe weather, labor shortage, war, act of or authorized by any government, inability to obtain suitable material, equipment, fuel power or transportation, or act of God or arising from contingencies, occurrences or causes beyond the reasonable control of Seller. In the event of delay due to any of the foregoing, the estimated shipping date shall be extended for a reasonable time. Quantities sold hereunder affected by any of the foregoing circumstances may be eliminated without liability, but these Terms and Conditions shall otherwise remain unaffected.
12.6. Assignment. This Agreement shall not be assignable by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld.
12.7. Construction. The headings in this agreement are for convenience only and shall not affect its interpretation.
12.8. Entire Agreement. This agreement contains the entire agreement between the parties with respect to its subject matter and supersedes all previous agreements and understandings between the parties.
12.9. Attorneys' Fees. In the event either party brings an action in connection with the goods sold under these Terms or Conditions of Sale or any action in connection with collection of amounts due to Seller hereunder, the prevailing party shall be entitled to recover all of its costs and expenses, including reasonable attorneys' fees.