253INC dba TKtruss™ SF CA USA TERMS AND CONDITIONS OF SALE Revised 01/01/14
- ACCEPTANCE. Acceptance of this order by 253INC is expressly conditioned upon Buyer’s assent to these terms and conditions such that the rights of the parties shall be governed exclusively by these terms and conditions. Any attempt by Buyer to vary these terms through any document containing additional, different or inconsistent terms shall not be binding on Seller unless expressly accepted by an authorized representative of Seller in writing. No orders shall be binding upon 253INC unless accepted in writing by 253INC No person; agent or party may enter or modify this order unless acknowledged in writing by an officer of 253INC.
- INSPECTION. Buyer shall inspect all deliveries and, at the time of delivery, note any shipping damages and shortages on the original packing slip. Claims related to shipping damages and shortages must be registered by Buyer with the carrier within ten (10) days after shipping.
- WARRANTY. For a period of Five ( 5 ) years after delivery to Buyer (the “Warranty Period”), 253INC warrants that the goods manufactured by 253INC pursuant to this order will be free from significant defects in workmanship and material and that all services will have been performed in a good and workmanlike manner. OTHER THAN AS ABOVE, 253INC SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT. This warranty does not extend to repairs or alterations undertaken without 253INC’s written consent or for goods that are subject to misuse, abuse, negligence or accident or if the goods are not properly stored, maintained, installed or operated per 253INC’s instructions.
- WARRANTY CLAIMS. Buyer shall inspect all goods and services for defects within the Warranty Period and before further assembly or processing of the goods. Warranty claims must be made in writing to 253INC within the Warranty Period. 253INC’s obligation on valid claims and Buyer’s sole remedy is exclusively limited to, at 253INC’s option, any one of the following: (a) replacing F.O.B. 253INC’s plant any part proved to be defective, (b) remedying or repairing such defect or (c) issuing a credit in an amount not to exceed the purchase price of the defective good or service to be applied toward future purchases. In the case of parts purchased by 253INC from a third-party supplier, Buyer’s sole remedy shall not exceed the settlement 253INC is able to obtain from its supplier. No goods will be accepted for return unless an authorization has been assigned by 253INC.
- LIMITATION OF LIABILITY. Buyer acknowledges that the price of the goods and services is predicated on the enforceability of these terms, including the following limitation of liability, that the price would be substantially higher if 253INC could not limit its liability as herein provided, and that Buyer accepts this limitation of liability in exchange for the lower price. ACCORDINGLY, 253INC SHALL NOT BE LIABLE, WHETHER BASED IN CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ALTERNATIVE TORT REMEDIES OR ANY OTHER THEORY OF LAW OR EQUITY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGE TO EQUIPMENT, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF BUYER’S PROPERTY, PLANT EQUIPMENT OR SYSTEM, DOWNTIME COSTS OR CLAIMS OF BUYER’S CUSTOMERS. 253INC’S TOTAL AGGREGATE LIABILITY TO BUYER HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS OR SERVICES FROM WHICH ANY CLAIM OR DAMAGES MAY ARISE.
- INDEMNIFICATION. Buyer shall indemnify, defend and hold harmless 253INC, its officers, employees, affiliates, and business partners from and against all liability, loss, damage, cost and expense (including reasonable attorneys’ fees and disbursements) related to (a) any allegation, claim, action, suit or threat thereof, for the death or injury of any person(s) or damage or destruction of property caused by acts or omissions of Buyer or Buyer’s agents or representatives and (b) Buyer’s breach of or failure to perform its obligations in connection with this order.
- PAYMENT. Payment terms are as stated in the order acknowledgment. Payments retained due to back ordered material shall not exceed the value of the back ordered material. Payment shall be in U.S. dollars without set off, deduction or withholding unless authorized by 253INC. 253INC may assess finance charges on all past due amounts at the rate of eighteen percent (18%) or the highest rate permitted by law. Buyer shall be responsible for all costs incurred by 253INC in collecting payment or otherwise enforcing these terms, including without limitation, reasonable attorneys’ fees and disbursements.
- RISK OF LOSS. Title, risk of loss, and risk of damage to the goods shall pass to Buyer F.O.B. 253INC’s loading dock. Buyer shall pay all transportation and loading charges.
- CANCELLATION. Orders may be cancelled or changed by Buyer only if 253INC has not committed material or labor to that order. Cancelled or changed orders must be approved in writing by 253INC. Buyer shall be responsible for all reasonable costs incurred by 253INC in connection with cancelled or changed orders.
- SPECIFICATIONS. 253INC reserves the right to make changes in specifications that, in its discretion, are an improvement or are necessary due to the unavailability of materials. Tolerances shall not be held tighter than industry standards unless otherwise agreed in writing by 253INC. Any other Buyer specifications shall not apply unless expressly agreed to by 253INC and referenced in writing in this order.
- FORCE MAJEURE. 253INC shall not be liable for any delay, failure of delivery or other nonperformance attributable to circumstances beyond its reasonable control, including, without limitation, weather or other acts of God, war or emergency conditions, government orders, strikes, work stoppages, accidents, shut down or delay of suppliers, fires, explosions, embargoes, inability to secure transportation or contingencies arising from national defense activities. All delivery dates are estimates.
- PATENTS AND COPYRIGHTS. Subject to the limitations of Section 5, if 253INC determines that the goods are infringing or likely to be deemed infringing on any third party U.S. patent or copyright, 253INC may at its option (a) procure for Buyer the right to continue using the infringing goods, (b) replace the infringing goods with non-infringing goods, (c) modify the infringing goods or (d) credit the applicable portion of the purchase price toward future purchases by Buyer. The foregoing states 253INC’s entire liability for infringement. Buyer assumes all liability for infringement if goods were modified by Buyer or made to Buyer’s specifications.
- TAXES. In addition to the purchase price, Buyer shall pay all taxes (including without limitation, sales, excise, and use taxes) or similar charges associated with its purchase of the goods. Any such taxes/charges paid by 253INC shall be for Buyer’s account.
- ASSIGNMENTS; VALIDITY. This agreement is not assignable by Buyer without the prior written consent of 253INC, which consent may be withheld in 253INC’s sole discretion. If any provision(s) of this agreement shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby and the invalid, illegal or unenforceable provision shall be reformed so as to be valid, legal and enforceable while most closely approximating the intent of the parties.
- APPLICABLE LAW; WAIVER. This order shall be governed by the internal laws of the State of California, U.S.A., without regard to its conflicts of law principles. All disputes shall be resolved in the state or federal courts located in San Mateo County, California to which jurisdiction the parties irrevocably consent.
- ENTIRE AGREEMENT; WAIVER. This document constitutes the final expression of the parties and is the complete and exclusive statement of its terms. Catalogues, photographs, drawings, models, samples and other illustrations shall not form a part of this agreement unless expressly incorporated herein. Failure by 253INC to insist upon strict performance of any terms stated herein shall not be deemed a continuing waiver of such terms or any of 253INC’s rights hereunder.