General Terms and Conditions of Sale
THE SALES AND/OR DELIVERY OF PRODUCTS TO CUSTOMER ARE CONDITIONED UPON CUSTOMER’S ACCEPTANCE OF THESE GENERAL TERMS AND CONDITIONS ACCEPTANCE OF DELIVERY BY CUSTOMERS CONSTITUTES AGREEMENT BY CUSTOMER TO THESE GENERAL TERMS AND CONDITIONS.
EXCEPTION: IF SELLER HAS PREVIOUSLY SIGNED A SEPARATE CONTRACT WITH THE CUSTOMER SETTING FORTH ALTERNATE TERMS AND CONDITIONS FOR THE SALE OF PRODUCTS, THE SEPARATE CONTRACT SHALL GOVERN TO THE EXTENT THAT (1) THAT CONTRACT IS STILL IN EFFECT AND (2) ANY TERM IN THAT CONTRACT CONFLICTS WITH A TERM IN SELLER’S GENERAL TERMS AND CONDITIONS. WHERE THE TERMS DO NOT CONFLICT, SELLER’S GENERAL TERMS AND CONDITIONS SHALL STILL GOVERN.
- As used herein, the term “Seller” refers to Epik, Inc., a California corporation and the term “Customer” refers to any person placing an order for the Seller’s products (the “Products”). By submitting an order for Products, Customer acknowledges and agrees to the applicability of the General Terms and Conditions of Sale to such order except to the extent the same may from time to time be modified in writing by Seller. No orders shall give rise to a contract or any other obligation on the part of Seller until such time as Seller has accepted such order by issuance of a written order confirmation or delivery of Products ordered. Seller reserves the right to reject individual orders in whole or in part, and to make its acceptance of an order contingent upon the issuance in Seller’s favor of an irrevocable and divisible documentary letter of credit or other security.
- Delivery Terms
- All deliveries of Products shall be made pursuant to Seller’s terms and prices in effect as the date of the order of such Products. Seller reserves the right to make partial shipments. Any time periods applicable to Seller’s delivery of Products shall commence with Seller’s issuance of a written order confirmation.
- Seller’s deliveries are F.O.B. Seller’s warehouse, unless otherwise expressly stated in the order confirmation. The cost of shipping and packing is to be borne in all cases by the Customer unless otherwise expressly stated in the order confirmation. The risk of loss shall pass to the customer upon delivery by Seller of the Products to the railway, the carrier, or (if agreed upon in writing by the parties) another location. Any and all insurance of the Products against theft, loss, fire, water damage or other hazard shall be the responsibility of the Customer.
- In cases of force majeure or unforeseen events including, without limitation, traffic disturbances, fire, flooding, lack of workers, energy, or raw materials, strike, lock-out, measures of governmental authorities, war, or storms; Seller shall not be obligated to complete or even attempt the deliveries at the times agreed upon, and shall furthermore be entitled to suspend or cancel orders without granting indemnities nor have an obligation for later deliveries.
- Seller retains the title of property on all Products delivered until such time as all obligations on part of the Customer relating to the order, including but not limited to payment in full of all sums owing to Seller in connection with such order have been fulfilled. Customer hereby grants Seller a continuing first-priority security interest in and to all Products purchased by Customer and all proceeds thereof, and authorizes Seller to file in the name of and on such behalf of Customer such UCC financing statements (including continuation and/or amendatory statements) or other security instruments in such jurisdictions as Seller, in its sole discretion, deems appropriate.
- Customer shall notify Seller in writing of any defects or discrepancies alleged to exist with the respect to the Products, setting forth in detail the nature of the alleged defect or discrepancy, no later than thirty (30) days after Customer’s receipt of the Products in question or discovery of the defect or discrepancy, whichever occurs first; provided, however that Seller shall bear no responsibility for defects, discrepancies, or damages arising out of or in connection with any (1) utilization of Products which is not in conformity with the instructions for the Product use promulgated by Seller, (2) negligence, (3) improper unpacking or dunning on the part of Customer or third parties, (4) willful misconduct on the part of Customer or any third parties, (5) normal wear and tear, or (6) any other cause other than due to sole fault of Seller. Where a claim is made that Products are defective, the Customer shall make such Products available for inspection by Seller or its authorized agents, and shall comply with all instructions or directions of Seller. Notwithstanding any statement to the contrary herein, Seller assumes no responsibility for repair or replacement of alleged defects or deficiencies or damages alleged to exist or damages alleged to be suffered by a Customer, where the Customer has not compiled with Seller’s directives.
- Payment Terms
- Once credit terms have been established, and unless otherwise agreed in writing, all invoices shall be payable in full in U.S. Dollars without any deduction or setoff whatsoever within thirty (30) days of the invoice date. If no credit terms have been established, payment will be due in full prior to the shipment of any goods. In the event payment in full is not received by Seller within agreed upon terms, interest shall be payable on the amount outstanding at a rate of ten percent (10%) per annum.
- Collection and attorney’s fees and costs will be awarded to the prevailing party for any action or legal proceeding related to or arising out of theses General Terms and Conditions of Sale.
- NO OTHER WARRANTIES: To the maximum extent permitted by applicable law, SELLER DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE PRODUCTS (AND ANY ACCOMPANYING WRITTEN MATERIALS OR INSTRUCTIONS), EXCEPT AS EXPRESSLY SET FORTH IN THESE GENERAL TERMS AND CONDITIONS OF SALE. ASD
- Seller agrees to replace, at its own cost, any Products, which are shown by the Customer to be defective. Customer shall be responsible for the cost of returning such Products to the facility of the Seller.
- NO LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES To the maximum extent permitted by law, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, CONSEQUENTIAL DAMAGES; INCIDENTAL DAMAGES; LOSS OF GOODWILL; EXPENSES INCURRED IN REGAINING GOODWILL; DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION; OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Seller shall have no duty or obligation to indemnify, hold harmless; defend; obtain insurance for; or pay any taxes, fees, or fines for Customer or any third party. Any attempts by Customer or any third party to impose any such duties or obligations upon Seller shall be of no effect.
- Customer shall be responsible for ensuring that any Product packaging or labeling proposed or supplied by it complies with all applicable federal and local laws, including F.D.A. regulations. Seller reserves the right to refuse to ship Products if Seller learns that Products do not comply with any of these packaging or labeling requirements.
- Customer warrants that it will not sell or distribute (or knowingly permit the sale or distribution of) any Products in jurisdictions where the sale of such Products is restricted or forbidden.
- Seller’s waiver of any non-compliance on the part of the Customer of the terms and conditions contained herein, shall not affect or impair the right of the Seller to require compliance with such term or condition on any subsequent occasion or effect a waiver or any other term or condition.
- In the event any term or condition set forth herein is determined to be invalid or unenforceable, such invalid or unenforceable term, or condition shall be deemed to be stricken here from and shall thereupon be replaced by that valid and enforceable term or condition most nearly equivalent in economic effect to the provision so stricken. In no event shall such invalid or unenforceable term or condition affect the validity or enforceability of any other term or condition set forth herein.
- The exclusive jurisdiction for any claims arising from, or related to, the transactions contemplated hereby, shall be in the courts of the State of California, County of Alameda, or in any federal court located therein. These claims shall not be subject to mandatory arbitration. The Customer and the Seller further agree that the law of the State of California, but not California’s conflicts of law rules, shall apply in any and all claims relating to, or arising from the transactions contemplated hereby.