Terms and Conditions
TERMS AND CONDITIONS OF SALE
IT IS HEREBY AGREED: The “Sales Contract” signed by Purchaser on the first page hereof, these Terms and Conditions of Sale, any attachments or exhibits to the Sales Contract, any security agreement (“Security Agreement”) signed by Purchaser and any addendum (an “Addendum”) signed by Purchaser and Seller (collectively referred to as this “Agreement”), constitute the entire agreement between Seller and Purchaser, and supersede all prior negotiations and agreements. Any understanding or representation not contained in this Agreement is expressly waived. Further it is agreed that no statement, promise or inducement made by either party hereto, or employee, agent, or salesperson of either party hereto, which is not contained in this Agreement shall be valid or binding; that no agent, salesperson or employee of Seller has any authority to make any promise, inducement or representation unless the same is inserted herein or contained in an Addendum hereto and specifically made a part of this Agreement. It is expressly understood that no representative, except an officer, of Seller has the power to modify the provisions of this Agreement in any respect, that Seller shall not be bound by, or liable to, Purchaser for any representation, promise or endorsement made by any agent or person in Seller’s employment not set forth in this Agreement, and that no modification or amendment of this Agreement shall be binding on Seller unless set forth in writing and signed by an authorized officer of Seller. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement, alter, or explain any term used in this Agreement. If a purchase order, order acknowledgement or other correspondence contains terms or conditions contrary to the terms and conditions contained in this Agreement, Seller’s acceptance and fulfillment of any order shall not be construed as assent to any such additional terms and conditions, nor will that constitute a waiver by Seller of any of the terms and conditions of this Agreement.
1. Purchaser hereby grants Seller a security interest in the goods specified in this Agreement (the “Goods”) and in any and all equipment, parts, accessories, attachments, additions and other goods, and all replacements thereof, now or hereinafter installed in, affixed to or used in connection with the Goods, to secure performance of all of Purchaser’s obligations arising under this Agreement, including the payment of interest and attorney’s fees, and if Purchaser sells or otherwise disposes of the Goods, Seller shall have a security interest in the proceeds of such sale or disposition until all amounts due from Purchaser to Seller have been paid in full (the “Collateral”). Seller shall have all the rights and remedies of a secured creditor under the Uniform Commercial Code and Purchaser authorizes the filing of a Form UCC-1 as necessary to perfect this security interest. Purchaser appoints Seller as Purchaser’s attorney-in-fact to prepare and file financing statements, continuation statement, statements of assignment, termination statements, and the like, as necessary to perfect, protect, preserve, or release Seller’s interest in the collateral. This power of attorney is coupled with an interest and may not be revoked or cancelled by Purchaser without Seller’s written consent. Until all amounts due under this Agreement have been paid in full by Purchaser, Purchaser shall not remove any of the Goods from the premises where they were originally installed without the prior written consent of Seller. In the event that Purchaser and Seller sign a separate Security Agreement, the terms of that agreement shall supersede and replace the terms of this Section 1
2. This Agreement is subject to strikes, labor disturbances, war, riots, insurrection, fire, pandemics, accidents, inability to obtain the necessary materials or labor, transportation curtailments, acts of Providence, of the Government or the public enemy, or by any law, statute, ordinance or any order, regulation, directive or recommendation of any governmental office or body acting under color of authority, or by any other cause or circumstance beyond the reasonable control of Seller, and delay from any such cause shall excuse delivery as long as such disability continues.
3. All orders shall be shipped f.o.b. point of shipment. Purchaser shall bear the risk of loss and be liable for any loss or damage sustained in transit and Purchaser shall not be entitled to any offset or deduction of any such loss or damage. Claims for damages in transit must be asserted by Purchaser against the carrier. Claims for loss, damage, deterioration, delay or shortage not due to the actions or neglect of the carrier shall be deemed waived unless made, in writing, to Seller within twenty four (24) hours after receipt of shipment.
4. If Purchaser wrongfully refuses to accept the Goods where delivery is tendered, or cancels the agreement Purchaser agrees to pay to Seller an amount equivalent to 35% of the total sale price specified in this Agreement as liquidated damages. The parties hereto agree that since it is difficult to determine actual damages in such cases, an amount equal to 35% of the sale price is a reasonable and proper amount as liquidated damages.
5. Purchaser hereby acknowledges that Seller is not connected with or recommends any third party financing institution in connection with financing, purchase or leasing the Goods. Any assistance in obtaining financing or any mention of financing arrangements for the purchase or leasing of any Goods is strictly for Purchaser’s information. Purchaser further agrees that Seller shall not be held as a party to or liable in any litigation or disagreement arising between Purchaser and a financing institution.
6. If Purchaser defaults in making any payment called for under this Agreement, Purchaser agrees to pay to Seller interest at the rate of one and a half percent (1.5%) per cent per month from the date when said payment was due until the date of the actual payment, calculated daily and compounded monthly, but in no event more than the maximum legal rate of interest.
7. If Purchaser defaults in making any payment or payments due under this Agreement, or defaults or fails to fulfill any obligation arising under this Agreement, Purchaser agrees to pay to Seller, all reasonable attorney’s fees, court costs and/or expenses incurred by Seller in collection of such payments or in the enforcement of such obligations.
8. All sales taxes, use taxes, permits, licenses and/or fees involving local, state, federal or other government agencies are the responsibility of Purchaser. Additionally, any submittals, engineering, architectural plans including fees charged by water/wastewater districts, air quality districts, utility companies or other regulatory agencies are the responsibility of Purchaser unless otherwise specified in writing in this Agreement. This sale shall not be conditional on Purchaser’s ability to obtain such permits or licenses or pay any such taxes or fees. The sales tax rate is based upon the delivery date. The rate on page 1 of this Agreement is based upon the current sales tax rate which is subject to change at any time. All sales taxes due will be charged to, and will be the sole responsibility of, Purchaser.
9. If Purchaser is purchasing the Goods for resale to a third party, Purchaser shall provide Seller with a valid resale certificate, which includes a valid Seller Permit number, shall represent and warrant to Seller that the equipment is being purchased for resale and shall be responsible for payment of the purchase price regardless of whether or not Purchaser receives payment from the third party.
10. If the delivery of the Goods is delayed due to the fault of Purchaser, its agents, or employees, or through delays in construction or otherwise which are the responsibility of Purchaser, or which are reasonably foreseeable by Purchaser, Purchaser shall be obligated to pay such amounts as would be due under this Agreement if delivery or installation were accomplished without said delay. Alternatively, at Seller’s discretion, Purchaser and Seller may enter into an Addendum allowing Purchaser to defer payment until actual delivery, provided, however that Purchaser shall pay to Seller interest at the rate of one and a half percent (1.5%) per cent per month upon the amount which would have been due, calculated daily and compounded monthly, but in no event more than the maximum legal rate for the term of such delay. All additional costs for offloading equipment, storage, reloading equipment, additional delivery costs or insurance resulting from the delay of the installation or delivery shall be the responsibility of Purchaser.
11. In the event Purchaser shall, for any reason, change the specification of the Goods in this Agreement, any restocking charge, additional freight costs, or other costs incurred by Seller by reason of such changes, shall be paid by Purchaser. Costs incurred through delays occasioned by such changes, shall be reimbursed to Seller in addition to delay charges as provided in Paragraph 10 above.
12. SELLER WARRANTS THAT THE GOODS ARE THE GOODS IDENTIFIED ON THE FIRST PAGE OF THIS AGREEMENT, BUT NO OTHER WARRANTY, EXPRESSED OR IMPLIED, IS MADE BY SELLER WITH RESPECT TO THE GOODS.
THE ONLY WARRANTIES, IF ANY, APPLYING TO THIS EQUIPMENT ARE THOSE GIVEN BY THE MANUFACTURER, AND ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WARRANTY OFFERED BY THE MANUFACTURER(S) WILL BE NULL AND VOID IF THE EQUIPMENT IS NOT INSTALLED TO MANUFACTURER SPECIFICATIONS OR NOT INSTALLED WITHIN A HUNDRED EIGHTY (180) DAYS OF DELIVERY TO PURCHASER OR A THIRD PARTY WAREHOUSE. ALL USED EQUIPMENT IS SOLD “AS IS” WITH NO WARRANTY UNLESS EXPRESSLY SPECIFIED IN A SEPARATE WARRANTY ADDENDUM SIGNED BY PURCHASER AND SELLER. If any model or sample was shown to Purchaser, such model or sample was used merely to illustrate the general type and quality of the goods and not to represent that the goods would necessarily conform to the model or sample. As a service, Seller furnishes manufacturers’ sales brochures and other literature free of charge to customers. Seller assumes no responsibility for the content of such literature.
13. PURCHASER SHALL NOT BE ENTITLED TO RECOVER FROM SELLER ANY INDIRECT DAMAGES, PUNITIVE DAMAGES, CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, DAMAGES FOR LOSS OF TIME, LOSS OF PROFIT, LOSS OF USE OR INCOME, DAMAGES TO MATERIALS OR PROPERTY, INCLUDING PURCHASER’S LINEN OR CUSTOMERS’ OWNED LINEN OR LAUNDRY. THIS AGREEMENT IS THE
SELLER’S TOTAL LIABILITY UNDER THIS AGREEMENT, WHETHER IN LAW, EQUITY, CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE PRICE PAID BY PURCHASER UNDER THE AGREEMENT FOR THE GOODS GIVING RISE TO THE CLAIM.
14. Purchaser shall indemnify, defend and hold Seller and each of its officers, agents and employees harmless from and against any and all losses, liability, claims and expenses (including reasonable attorney’s fees and expenses) for damage to or loss of property (including Purchaser’s property) or injury to or death of persons (including Purchaser, its agents, employees, licensees or invitee) directly or indirectly resulting from any cause on or about the premises where the equipment is installed or in connection with the operation of Purchaser’s business, or the use of the equipment.
15. Existing incoming water may have excessive calcium, magnesium, iron, minerals, total dissolved solids (TDS), below or above 7.0 to 7.8 pH range, or any other elements which affect the equipment performance and useful life. Seller shall not be responsible for any equipment failure or performance caused by the existing water conditions or damages to the equipment caused by Purchaser’s laundry washing chemicals or water treatment chemicals.
16. General Provisions.
16.1 Binding Effect. This Agreement and each and all of the provisions hereof shall be binding upon and shall inure to the benefit of the parties hereto, and their respective heirs, representatives, successors and permitted assigns.
16.2 Assignment. Seller shall have the right to negotiate or assign Purchaser’s payment obligations under this Agreement, the security interest evidenced by this Agreement and any note or other document or instrument which evidences any indebtedness secured by this Agreement, and Purchaser agrees that Seller may do so without any notice to Purchaser. In the event of any assignment or transfer by Seller of this Agreement, or any note or other debt instruments, the assignee shall automatically succeed to and be entitled to exercise all Seller’s rights and remedies under this Agreement. Purchaser may not sell, assign or otherwise transfer any of its rights and interests hereunder without the prior written consent of Seller, which Seller may withhold in its sole discretion. Any attempted assignment hereof by Purchaser without said prior written consent shall be void and of no force or effect.
16.3 Amendment. This Agreement may only be amended in a writing signed by both parties.
16.4 Waiver. The waiver by either party of a breach of any provision of this Agreement may only be made in writing signed by both parties and shall not operate or be construed as a waiver of any other provision or any subsequent breach of the same provision thereof.
16.5 Arbitration. The parties desire to resolve any disputes that may arise under this Agreement with greater efficiency and at a lower cost than in a civil lawsuit in a United States court. Accordingly, (a) Subject to the provisions of Section 16.7 hereof regarding provisional equitable remedies, all disputes arising under this Agreement will be resolved by submission to binding arbitration before the Judicial Arbitration and Mediation Service (“JAMS”) or any reputable arbitration and mediation service agreed to by the parties. (b) If Purchaser or Seller is unable to agree on a neutral arbitrator, Seller will obtain a list of arbitrators from JAMS or the other selected arbitration service. Purchaser (first) and then Seller will alternately strike names from the list until only one name remains; the remaining person shall be the arbitrator. Since Seller’s administrative headquarters are located in Alameda County, California, arbitration proceedings shall be held in the City of Oakland, Alameda County, California. Pre-hearing discovery shall be limited by each party to two (2) depositions, one (1) set of interrogatories, not to exceed thirty-five (35) in number, and one set of document requests not to exceed thirty-five (35) in number. Additional pre-hearing discovery may only be propounded on a showing of good cause and with leave of the arbitrator as it is the intent of the parties to resolve disputes promptly and less expensively than litigating disputes through civil courts. (c) Following the hearing, the arbitrator shall issue a written opinion and award that shall be signed and dated. The arbitrator’s opinion and award shall decide only those issues submitted and shall set forth the legal principles supporting each part of the opinion. The arbitrator shall only be permitted to render an award and remedies based upon existing law supported by the credible, relevant evidence that would otherwise have been available if the matter had been heard in a court of law. (d) All requests for arbitration made by Purchaser or Seller must be made in writing to JAMS with copies to the other party and must be received within the time period mandated by the appropriate statute of limitation had the claim been brought in a court of law. (e) Each party shall pay one-half of the costs of the arbitration and shall pay for its own discovery, witnesses, experts, and attorneys’ fees and costs unless the arbitrator awards otherwise in accordance with Section 16.14.
16.6 WAIVER OF JURY TRIAL: EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
16.7 Separate Representation; Interpretation. Purchaser acknowledges that it has had the opportunity to consult with separate and independent counsel of its own selection to the extent to which it has desired to do so in connection with the negotiation and execution of this Agreement. Purchaser has read and understands in full, and agrees to be bound by, each and every provision hereof. Purchaser also agrees that despite the fact that this Agreement has been drafted by counsel for Seller, no rule of construction or presumption against the drafter shall apply to the interpretation of this Agreement and the Agreement shall be construed according to its fair meaning.
16.8 Provisional Equitable Remedies. The parties acknowledge and agree that legal damages may not be an adequate remedy for any breach or attempted breach of this Agreement and agree that provisional equitable relief, including injunctive relief, may be required in appropriate circumstances. As an exception to the arbitration provided for in Section 16.5 above, should any dispute arise concerning the provisions of this Agreement, either party shall have the right to seek injunctive relief restraining any breach or attempted breach of this Agreement so as to preserve the rights of the parties, in a court of law as provided in Section 16.11 below, pending the institution of arbitration proceedings, and appointment of an arbitrator, which injunction may be modified, vacated or made permanent as a result of the arbitration award. The parties hereby waive any requirement for the securing or posting of any bond in connection with the obtaining of any injunctive relief pursuant to this Section 16.8.
16.9 Notices. Any notices to be given hereunder by either party to the other may be effected either by personal delivery in writing, by reputable overnight courier or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to Purchaser and Seller at the applicable address first set forth above, but each party may change its address by written notice in accordance with this paragraph. Notices shall be deemed given upon personal delivery, one (1) day after being sent by overnight courier, or three (3) business days after deposit in the United States mail, as provided above.
16.10 Severability. Nothing contained in this Agreement shall be construed as requiring the commission of any act contrary to law. If any part, Section, paragraph or clause of this Agreement shall be held to be indefinite, invalid or otherwise unenforceable by an court of competent jurisdiction, the entire Agreement shall not fail on account thereof, and the balance of this Agreement shall continue in full force and effect. If any tribunal or court of appropriate jurisdiction deems any provision hereof unenforceable, said tribunal or court may declare a reasonable modification hereof and this Agreement shall then be valid and enforceable, and the parties hereto agree to be bound by and perform the same, as thus modified.
16.11 Applicable Law; Venue; Jurisdiction. Any dispute arising under this Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of laws principles. Should any proceeding or action be undertaken that is not otherwise subject to binding arbitration as set forth in Section 16.5 and since Seller’s administrative headquarters are located in Alameda County, California, jurisdiction and venue shall be in the appropriate State or federal court located in the City of Oakland, Alameda County, California, and each party irrevocably consents and agrees to the jurisdiction and venue of the State and federal courts in such city.
16.12 Counterparts; Electronic Signatures. This Agreement may be signed by the parties on separate counterparts, each of which shall be deemed an original and a single instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. parties
16.13 Section/Paragraph Headings; Gender. The Section, paragraph and clause headings contained in this Agreement are for the convenience of the parties only, and shall not for any purpose whatsoever is deemed a part of this Agreement. All terms and words used herein shall be construed to include the number and gender as the context of this Agreement may require.
16.14 Attorney’s Fees. If the event of any litigation, arbitration or other proceeding or other dispute (other than mediation) related to or arising as a result of this Agreement, the prevailing party shall be entitled, in addition to any other damages assessed, to its reasonable attorneys’ fees and all other costs and expenses incurred in connection with resolving such dispute, including, without limitation, experts’ and consultants’ fees and costs. The prevailing party shall also be entitled to recover its attorneys’ fee and costs against the non-prevailing party for prosecuting or defending any appearances and supplemental proceedings until the final judgment is satisfied in full, and for any post-judgment proceedings to collect or enforce the judgment. Any such award of attorneys’ fees and costs shall become part of the final award, which may be submitted to any appropriate court of law to conform the award into an enforceable civil judgment.
16.15 Survival of Terms. The terms contained in this Agreement (including, without limitation, the terms contained in this Section 16 which, by their terms, require their performance by either party after the expiration or other termination of this Agreement, shall be enforceable notwithstanding such expiration or other termination of this Agreement for any reason whatsoever.