Vivid Inc. Terms of Sale
STANDARD TERMS AND CONDITIONS FOR SALE OF GOODS
Vivid Inc. (hereinafter referred to as “SELLER”) and the “BUYER” identified on the reverse side of this Contract of Sale hereby agree to be bound by these terms and conditions in connection with the sale of goods described on the reverse side hereof. Any and all orders will be governed solely by the terms and conditions contained herein; these terms shall prevail regardless of any preprinted, conflicting, different or additional terms contained in any order submitted to Seller by Buyer. Furthermore, Seller hereby objects to any and all preprinted, different, conflicting or additional terms on any order submitted to Seller by Buyer and Buyer acknowledges receipt of the foregoing objection for all purposes. No term or condition may be amended or added to these terms and conditions by conduct of the parties or operation of law unless agreed to in writing and signed by an officer or other authorized representative of Seller.
1. Amount and Type of Goods. SELLER agrees to sell and BUYER agrees to buy the quantity and type of goods which are described herein or which comply with written specifications submitted by BUYER and accepted by SELLER (the “Goods”).
2. Price and Payment. The price of the Goods shall be as specified herein. Any deviation from quoted specifications requested by BUYER may result in price adjustments. All payments with respect to a valid and undisputed invoice shall be net 30 days from the date of invoice payable in United States Dollars. In the event BUYER disputes any portion or all of an invoice, it shall notify SELLER in writing of the amount in dispute and the reason for its disagreement within 10 days of receipt of the invoice. The undisputed portion shall be paid when due, and finance charges on any unpaid portion shall accrue, from the date due until the date of payment, to the extent that such amounts are finally determined to be payable to SELLER. There will be a finance charge equal to 10% per annum for payment made after the due date for such payment. It is agreed that under no circumstances shall SELLER be required to accept payment other than by the means and manner herein set forth. If, for any reason, payment cannot be made in accord with the terms hereof or terms agreed to in writing, BUYER shall immediately notify SELLER in writing of such fact and the reasons set forth. In such event and in addition to any other rights SELLER may have as provided by law or hereunder, SELLER shall have the option of canceling this Contract without penalty and without further obligation to BUYER. BUYER will promptly pay all sums when due. In the event of non-payment, BUYER agrees to pay in addition to the principal amounts due, all collection charges incurred by SELLER, including charges made by a collection agent and, in the event of suit or other legal action, reasonable attorney’s fees and court costs.
3. Taxes. Prices are exclusive of all federal, state and local excise, sales, use and similar taxes, if any. Customers purchasing for the resale within the State of California must furnish a resale certificate card. The certificate shall be signed by and bear the name and address of the BUYER, its resale permit number and shall indicate the general character of the tangible personal property sold by the BUYER in the regular course of business.
4. Delivery. The delivery of the Goods shall be made, in a single or in multiple lots, as specified herein and shall be made on or before the date specified herein, or within a reasonable time thereafter. The delivery schedule hereof shall be considered extended by a period of time equal to the time lost because of any delay which is due to causes beyond the SELLER’S control as enumerated in paragraph 18 hereof. All installments shall be separately invoiced and paid as billed without regard to future deliveries. Failure to pay for any installment when due shall excuse SELLER from making further deliveries. Delay in delivery of any installment shall not relieve BUYER of its obligation to accept remaining installments and to make payment therefore. All claims for delay shall be deemed waived unless presented to SELLER in writing within ten (10) days after delivery of each shipment. The goods shall be delivered to the place described herein.
5. Shipping. Goods are sold F.O.B. factory. Shipping, unless otherwise specified herein, will be the least expensive coatings transportation as determined by SELLER. SELLER will forward documents of title to the BUYER upon payment by BUYER. It is expressly agreed that BUYER shall not be entitled to the documents of title until such time as the invoices for the same have been paid in full.
6. Shipment Under Reservation. It is agreed that SELLER will maintain title and the right of possession in the Goods sold until such time as payment thereof is made by BUYER.
7. Packaging. SELLER will determine the type of container and arrange for suitable packaging for domestic transport and delivery of the Goods, and charges related thereto are included in the price for the Goods set forth herein and will be paid by SELLER. Special packaging may result in additional charges to BUYER.
8. Risk of Loss. The risk of loss of the Goods shall pass to BUYER as soon as the Goods are tendered to BUYER. It is agreed that SELLER will secure, at BUYER’S expense, adequate insurance coverage equal to the selling price of the Goods sold herein and both BUYER and SELLER agree that coverage equal to the selling price of the Goods sold herein shall be adequate and both BUYER and SELLER agree that in the event of loss or damage to the Goods, their sole remedy shall rest with such insurance coverage without regard to a breach or default and without regard to the adequacy of the recovery of insurance proceeds.
9. Casualty to Identified Goods. In the event that the Goods covered by this contract are destroyed or damaged, in whole or in part, prior to time the risk of loss passes to BUYER, this contract shall be avoided and SELLER excused from all obligations hereunder. If the loss is partial, BUYER shall have the right to accept that portion of the Goods which conform to the written contract.
10. Warranties. BUYER, in furnishing specifications to the SELLER, agrees to hold SELLER harmless against any claims by way of infringement or the like of which arise out of compliance with the specifications. The Goods sold hereunder, when operated within specifications, are warranted to be free from defects in workmanship and materials for a period of one (1) year after date of manufacturing and this warranty shall be limited to repair or replacement of the Goods. SELLER assumes no responsibility for the design characteristics of any unit or its operation. Except as provided herein, no other express warranty is given and no affirmation by SELLER in words or action, shall constitute a warranty. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED STATUTORY INCLUDING IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. Right of Inspection. BUYER shall have the right to inspect the Goods after delivery. Failure to give notice in writing to SELLER of any obvious defects or omissions within three (3) days after delivery shall constitute an irrevocable acceptance of the Goods.
12. Rejected Goods. In the event BUYER rejects any shipment of the goods within the time frame set forth in paragraph 11 above, and elects to accept only a part thereof, it is agreed that the portion of Goods rejected shall be returned to SELLER within ten (10) business days and shall be at the expense and risk of BUYER. SELLER shall have the right in its discretion either to replace the rejected Goods or to refund the purchase price applicable thereto.
13. Termination. If BUYER violates, or is officially charged with a violation of any law, regulation or ordinance which may govern the sale, handling or disposition of any of the Goods or if BUYER becomes insolvent, or makes any assignment for the benefit of creditors, or is adjudged bankrupt, or if a receiver or trustee of BUYER’S property is appointed, SELLER may, at sole discretion, terminate this contract and may refuse to make any further deliveries. In the event that any additional customs duty or tariff shall be imposed between the date hereof and the date of arrival at the appropriate point of entry into BUYER’S country, SELLER shall have the right to terminate this contract and any further deliveries thereunder unless BUYER, shall pay such additional duties or tariffs.
14. Identification. It is specifically agreed that identification of the Goods sold shall occur when the Goods are ready for shipment.
15. BUYER’S Remedies. In the event of breach of repudiation of this contract by SELLER, BUYER’S right to damages shall be limited to the difference between the contract and the market price of the Goods, and BUYER shall not have the right to “cover” and fix damages by contracting for substitute Goods. Further, SELLER shall not be liable, under any circumstances for the cost of processing, lost profits, injury to goodwill or any incidental or consequential damages as those terms are defined in the Uniform Commercial Code.
16. Exclusive Agreement. This contract constitutes the entire contract and exclusively determines the right and obligations of the parties hereto, any prior course of dealing, custom or usage of the trade or course of performance notwithstanding, and may not be modified except by a writing signed by SELLER’S authorized agent.
17. Non-Assignability. This contract shall not be assignable or delegable by either party hereto without the written consent of the other.
18. Force Majeure. SELLER shall not be responsible for delays in delivery or any failure to deliver due to causes beyond SELLER’S control including, but not limited to acts God, war, mobilization, civil commissions, riots, embargoes, domestic or foreign governmental regulations or orders, fires, pandemics, epidemics, floods, strikes, lockouts and other labor difficulties, or shortages of or inability to obtain shipping space or transportation.
19. Arbitration. All controversies and claims arising out of or relating to this contract, or breach thereof, shall be settled solely by arbitration held in Santa Clara, California, in accordance with the rules then obtaining of the American Arbitration Association and any judgment upon any award thereon may be entered any court having jurisdiction thereof. And demand for arbitration hereunder shall be made not later than ninety (90) days after delivery of the Goods.
20. Choice of Laws. This contract, and all of the rights and obligations of the parties hereto, shall be governed by the Uniform Commercial Code as enacted and in force in the State of California on the date of this contract. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT.
21. BUYER revisions. Any revision (including delivery dates) to this order requires a minimum of twelve (12) weeks prior written notice from BUYER and affirmative acceptance by SELLER. Orders arising hereunder may be changed or amended only by written agreement signed by both BUYER and SELLER, setting forth the particular changes on the price and time of delivery except that SELLER has the option to reject or cancel an order with no penalty if for any reason it becomes impractical or impossible to manufacture the ordered products. BUYER MAY NOT CANCEL THIS ORDER UNLESS SUCH CANCELLATION IS EXPRESSLY AGREED IN WRITING BY SELLER. In such event, Seller will advise Buyer of the total charge for such cancellation, and Buyer agrees to pay such charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on SELLER by its suppliers, and any other cost resulting from cancellation of this order by BUYER. Certification of such costs by SELLER’s independent public accountants, at the sole expense of BUYER, shall be conclusive on the parties hereto. CUSTOM ITEMS ARE NON-REFUNDABLE AND NON-RETURNABLE.