1. PRICING, DELIVERY AND PAYMENT. The prices for Product delivered under this Order do not include customs charges or duties, or sales, use, excise or similar taxes, or special packaging, or transportation, rigging, drayage, insurance charges and other costs associated with the delivery of Product to the destinations specified by the Customer unless specifically set out on the invoice as individual line items. Therefore Customer will pay directly to Seller (“Seller”), in addition to the prices specified in this Order, any amount set forth on Seller’s invoices for customs charges, duties and/or taxes (or provide applicable tax exemption certificates acceptable to the taxing authorities) and special packaging costs, and shall pay directly to the involved carrier(s) all such delivery related costs. All licenses or certificates required for import or export of the Product shall be the responsibility of and obtained at the cost of Customer. Seller’s terms are cash upon delivery, unless otherwise set forth in a distribution or reseller agreement. If credit terms are approved by Seller, Customer shall pay all invoices net thirty (30) days after date of shipment. If payment is not made when due, Customer shall be assessed a late charge equal to one and one-half percent (1-1/2%) of the past due balance for each month or partial month following the due date. Additionally, at sellers discretion, all discounts shall be removed and any amounts due shall be the current list price of such items, regardless of any other agreement or discount offered. All deliveries shall be made F.O.B. common carrier, Seller’s plant. Title and risk of loss or damage will transfer from Seller to Customer upon delivery of goods at the F.O.B. point. Customer shall notify Seller, in writing, within one (1) calendar day after delivery, of any claimed shortages, damage or of rejection of the delivery. Sufficient detail to establish grounds shall be included in any rejection.
2. PRODUCT SAMPLES. Product samples will be provided to licensed distributors of Seller’s product. Upon termination of a distribution arrangement, distributor shall return to Seller, at distributors expense, all samples previously provided to distributor by Seller in resalable as new condition. For any goods not returned in accordance with the above, Distributor will be invoiced for sample product at the same discount established for distributor for production goods. If invoice is not paid within 10 days of receipt, all discounts will be cancelled and prices for samples will revert to full List Price.
3. SECURITY INTEREST. Seller reserves, until full payment is received, a Purchase Money Security Interest in each Product Unit and the proceeds of any sale thereof. A copy of this Order may be filed as a Financing Statement with the appropriate state authorities to perfect the security interest of Seller.
4. CANCELLATION OF PRODUCT. Customer hereby acknowledges and agrees that all Product is custom manufactured for each individual Customer and once production has commenced there can be no cancellation of orders.
5. TERMINATION. This Order may be terminated by either party at any time: (a) if the other party has breached any material provision contained in this Order and has not cured the breach within thirty (30) days of receipt of written notice of the breach; or (b) if the other party petitions for relief under the Bankruptcy Act, if a receiver is appointed to conduct its business, if its makes an assignment for the benefit of creditors or if an involuntary bankruptcy petition is brought against it and has not been discharged within 30 days of date brought. Seller termination of this Order shall be without prejudice to any other remedies Seller may have. In the event Seller terminates this Order pursuant to Article 4, in addition to any other remedies available to Seller, Customer shall be obligated to pay for all Product shipped and shall accept delivery of and pay for all Product on order as of the date of termination. Customer’s obligation to pay all charges accrued as of the termination hereof shall survive such termination.
6. GENERAL PROVISIONS. These terms and conditions shall supersede all terms and conditions printed or implied on any purchase order issued by Customer. No other terms or conditions shall be binding upon Customer or Seller unless said terms and conditions are specifically accepted in writing by Customer and Seller. The failure of Customer or Seller to enforce at any time or for any period of time any of the provisions of this Order shall not constitute a waiver of such provisions. Seller shall not be liable for delays or failure to ship for causes beyond Seller’s control, affecting it or its suppliers, including, in part: natural disasters; war; Customer’s conduct; labor unrest; riot; governmental interference; unavailability or shortage of labor, materials, fuel or power through customary means at normal rates; failure or destruction of plant or equipment arising from any cause whatsoever; or failure of transportation. If any provision of this Order should be determined to be unenforceable or illegal, it shall be deemed severable from the other provisions, which shall remain valid and enforceable. The validity, performance and construction of this Order shall be governed by the laws of the state of California. Customer agrees to accept venue in, and accept the exclusive jurisdiction of, the courts sitting in the state of California. Any disputes arising out of the performance of this Order shall be settled in accordance with the rules of the American Arbitration Association. The arbitrator may award all costs of dispute resolution, including attorneys’ fees, to the prevailing party. Seller agrees that the Product to be furnished under this Order was produced in compliance with all applicable federal requirements with respect to fair labor standards and equal employment opportunity.
7. LIMITED WARRANTY ON PRODUCT. Seller warrants that all Products are warranted to be free of defects in material and workmanship for a period of two (2) years from the date of shipment. Products returned under the above warranty shall be either repaired or replaced at the sole discretion of Protech Leaded Eyewear, Inc., and is limited to the value of the Products on the date of the original shipment. All replaced parts and Product become the property of Seller. This limited warranty does not include service to repair damage to the Product resulting from customer’s negligence, misuse, modification of the Product, or use for purposed other than those intended by its manufacture. Seller’s obligations under this limited warranty are conditioned upon Customer’s compliance with Seller’s reasonable instructions and requests in connection with its performance of such obligations. Service under this limited warranty may be obtained by delivering the Product at Customer’s expense (using the original shipping container or its equivalent) during the warranty period to the manufacturer and providing proof of purchase date. Customer shall assume the risk of loss or damage in transit. Seller shall bear the cost for return of repaired or replaced Product under valid warranty claims to Customer by normal commercial means in the continental United States. For further information, refer to the Limited Warranty contained in Seller’s standard product literature, if applicable.
NOTE: All aprons must be inspected by the facility before they are put into service. No returns for aprons with alleged pinholes, tears, or cracks will be allowed more than seven (7) days after the aprons have been received by the end user. Protective core material is fragile, easily damaged and therefore great care is needed to protect the integrity of the core material. All aprons are inspected and free of defects when they are shipped. Pinholes, tears, cracks and other damage to the protective core material can be caused by many different factors, but if they are not there when the apron is received and inspected, then they are not the responsibility of the manufacturer and the warranty does not apply.
EXCEPT AS SET FORTH HEREIN AND IN THE LIMITED WARRANTY INCLUDED IN SELLER’S STANDARD PRODUCT LITERATURE, IF APPLICABLE, SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING OUT OF OR IN CONNECTION WITH THE SALE OR USE OF THE EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. OTHER THAN AS STATED ABOVE THE LIMITED WARRANTY SET FORTH IN THIS SECTION, COMBINED WITH THE LIMITED WARRANTIES CONTAINED IN SELLER’S STANDARD PRODUCT LITERATURE, IF APPLICABLE, SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER AND SHALL ESTABLISH THE SOLE AND EXCLUSIVE LIABILITY OF SELLER, ITS SUCCESSORS OR ASSIGNS IN CONNECTION WITH THE PRODUCT. IN NO EVENT WILL SELLER BE LIABLE TO CUSTOMER FOR ANY DAMAGES, INCLUDING SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE SUCH PRODUCT, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY CLAIM BY ANY OTHER PARTY. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR OF LIABILITY FOR SPECIAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY OR THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.