MUTUAL TRADING Co., INC.
SPECIAL ITEM ORDER
TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale (“Terms”) apply to all quotations, proposals, and other agreements between the Customer identified on the face of this Special Item Order (“Order”) and Mutual Trading Co., Inc., and its affiliates and subsidiaries (“LAMTC”), with respect to the special items (“Product”) described on this Order.
The Customer’s signature hereto or acceptance of delivery of the Product after receipt hereof shall constitute acceptance of these Terms. This offer is entire and not severable, is made subject to the conditions and provisions set forth on both sides hereof, and will expire unless accepted within ten (10) days from date hereof, unless such acceptance date is extended by LAMTC or the Product is delivered to the Customer. LAMTC will not recognize any separate purchase terms unless approved in writing by LAMTC. NO MODIFICATION OF THIS AGREEMENT SHALL BE EFFECTED BY CUSTOMER’S FORMS OR COMMUNICATION CONTAINING TERMS OR CONDITIONS AT VARIANCE WITH THOSE SET FORTH HEREIN, THE PROVISIONS OF THESE TERMS BEING CONTROLLING.
All invoices submitted by LAMTC to Customer shall be payable net within thirty (30) days after the date of said invoices. All payments due to LAMTC hereunder shall be paid in United States dollars to LAMTC, in accordance with the remittance instructions contained in the invoice. Notwithstanding any other terms and conditions in this Order, in the event that any payment due from Customer to LAMTC pursuant to this Order is not received and cleared by LAMTC as provided for hereunder, then in addition to all other rights and remedies available to LAMTC under law and hereunder, LAMTC shall be entitled to a payment by Customer of accrued interest on any unpaid balance from its due date until payment is made at the rate of one and one half percent (1.5%) per month or the highest interest rate allowable by law, whichever is less. Customer understands and agrees that its obligation to make payments to LAMTC shall be absolute and unconditional under any and all circumstances, whether or not LAMTC violates any of its obligations described herein or otherwise, and such payments shall not be subject to any defense, set-off, or counterclaim for any reason whatsoever.
Shipment and Delivery
This Order is for special items not normally carried by LAMTC in its inventory. Customer understands and expressly agrees that full payment for the Product must be made regardless of whether Customer accepts delivery of the Product. All shipping and handling expenses are the sole responsibility of Customer, and Customer shall reimburse LAMTC for any such charges and expenses incurred by LAMTC on Customer’s behalf. Delivery dates are estimates only and are based on normal shipping conditions (shipping conditions and actual ship dates may vary). Unless otherwise requested by Customer in writing and accepted by LAMTC, all products shall be delivered F.O.B. Customer’s place of business identified on the face of the Order. LAMTC will endeavor to meet all scheduled dates (including delivery dates) requested by Customer when ordering and accepted by LAMTC; provided, however, that LAMTC reserves the right to change any and all such scheduled dates subject to LAMTC’s availability schedule without notice and without liability to Customer. If shipment of Products is delayed at the request of Customer, then LAMTC shall be entitled to place the Products in storage for the account of Customer, and all expenses incurred by LAMTC in connection with the storage, handling, preservation, or insurance of the Products shall be paid by Customer upon presentation of LAMTC’ invoice. Non-delivery by LAMTC as to any Product shall not be deemed a breach of this Agreement. Any non-delivery shall not relieve Customer from its obligation to accept or be responsible for any subsequent or prior shipment. All shipments shall be packaged in accordance with LAMTC’ standard and customary packaging practices unless otherwise requested by Customer in writing and accepted by LAMTC. LAMTC retains the right, at its option, to cancel any Order from Customer, in whole or in part, without any resulting liability to Customer or any third party. Any delivery not in dispute shall be paid for regardless of other controversies relating to other delivered or undelivered products.
Except as otherwise expressly set forth herein, LAMTC shall not be liable for any delay or for any consequence of any delay in the delivery of any Products if such delay shall be due to any cause beyond its reasonable control, including, but not limited to, acts of God, acts of terrorism, acts of a public enemy, changes in law, wars, floods, fires, storms, strikes, lockouts, pandemics, viruses, delivery of nonconforming or defective material or supplies, significant interruptions of transportation, freight embargoes or failures, exhaustion or unavailability on the open market or delays in delivery of material, supplies, or services necessary for the performance of any provision hereof, or the happening of any material and reasonably unforeseeable act, misfortune, or casualty by which performance hereunder is delayed or prevented. If any such delay occurs, then (unless the cause thereof shall frustrate or render impossible or illegal the performance of this contract or shall otherwise discharge the same), LAMTC’s period for performing its respective obligations shall be extended by such period (not limited to the length of the delay) as LAMTC may reasonably require.
Limitation of Liability
LAMTC SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY LOST REVENUES, PROFITS, USE, CUSTOMERS, AGENTS OR DISTRIBUTORS) RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH ANY SALE, DISTRIBUTION, OR ANY USE OF ANY PRODUCTS OR FOR ANY FAILURE OF SUPPLY OF ANY PRODUCTS FOR ANY REASON, WHETHER OR NOT LAMTC HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT BE CONSTRUED TO APPLY ONLY TO DAMAGES OCCURRING AS A RESULT OF A BREACH OF PRODUCT WARRANTY, BUT SHALL APPLY TO ANY DAMAGES RELATED TO PRODUCTS PURCHASED AND SOLD HEREUNDER.
Except as provided in this paragraph, Customer shall accept all Products shipped in accordance with the terms and conditions of this Order. In order to reject a shipment, Customer must give written notice (each, a “Rejection Notice”) to LAMTC within five (5) business days after receipt of the shipment, together with a reasonably detailed written statement of its reasons for rejection. If no such notice is received, then Customer shall be deemed to have accepted the shipment of the Products and to have waived any and all claims with respect thereto. No claim of any kind (whether as to delivered Products or for non-delivery of Products, including claims of improper or defective Products and whether arising in tort or contract) shall be greater in amount than the purchase price of the Products in respect of which such damages are claimed.
In no case shall Customer return Products without first obtaining a Return Authorization (“RA”). Customer understands and agrees that this Order is for special items and the Products are non-returnable except for Products that were not ordered or that are defective due to LAMTC’s fault. Upon receipt of an acceptable Rejection Notice, LAMTC shall issue a RA to Customer. Delivery of returned Products to LAMTC must be arranged with LAMTC.
Governing Law; Forum; Enforcement
These Terms and any disputes between the parties arising in connection herewith shall be governed by and interpreted in accordance with the laws of the State of California applicable to contracts made and to be performed entirely within such State, without regard to (and without application of) its laws, rules, and principles regarding conflicts of laws. Customer hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any U.S. Federal or California State court sitting in Los Angeles County, California in any action or proceeding arising out of or relating to this Order. Nothing in this Order shall affect any right that LAMTC may otherwise have to bring any action or proceeding relating to this Order against Customer or its properties in the courts of any jurisdiction. Customer hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Order in any court referred to in the foregoing sentence. Customer hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. In the event LAMTC takes or maintains any action to enforce its rights hereunder and prevails, Customer shall reimburse LAMTC for its reasonable costs and expenses incurred, including, without limitation, reasonable fees and disbursements of counsel and other advisors and professionals.
Prices; Quotations; Other Charges
All prices are in United States dollars. Price quotations automatically expire at the close of business from the date issued and are subject to termination by notice within that period. Unless otherwise expressly provided in this Order, the prices quoted shall not include any charges for freight, transportation, customs or duties, tariffs, taxes (whether sales, use, import, or other taxes of any nature whatsoever), insurance, or any other charges relating to the sale, transportation, and shipment to, or use by, Customer of the products sold hereunder. Such charges and/or taxes shall be the sole responsibility of, and shall be borne exclusively by, Customer. Wherever applicable, any such charges and/or taxes will be added to the invoice as a separate charge to be paid by Customer. If LAMTC is required to pay any such charges and/or taxes, Customer agrees to reimburse LAMTC for any amounts so paid upon demand.
Title and Risk of Loss; Security Interest
Title to and risk of loss and damage for any shipment of products shall pass to Customer immediately upon the earlier to occur of deposit with a common carrier or delivery of such shipment to Customer or its designated agent. Customer hereby agrees that this Order grants to LAMTC an irrevocable and continuing security interest in any and all products shipped to Customer until the entire balance of the price of such products and all other monies then due from Customer to LAMTC are paid in full. LAMTC may execute, on behalf of Customer, all instruments, including financing statements and certificates necessary to perfect and/or file a security interest under the laws of any state and under the Uniform Commercial Code (“UCC”) without notice to Customer. Upon breach by Customer of any of the terms and conditions of this Order or under any of the invoices which may be issued pursuant hereto, LAMTC shall have all of the rights and remedies of a secured creditor under the UCC, including without limitation, the right to foreclose the security interest on the delivered products or proceeds thereof by any judicial procedure or take possession of the products, including the proceeds thereof from any sale. If Customer defaults on any payment or makes an assignment for the benefit of creditors, or if a proceeding in insolvency or bankruptcy is initiated by or against Customer, whether voluntary or involuntary, LAMTC shall have the right to withhold shipments, in whole or in part, and to recall products in transit, retake same, and remove and/or repossess products which may be stored for Customer’s account, without the necessity of taking any other proceedings, and to take such other action as may be necessary to protect its security interest, including any other remedies LAMTC may have by operation of law or otherwise.
The foregoing rights and remedies shall be in addition to, and not in lieu of, any other rights or remedies which LAMTC may have hereunder, by operation of law or otherwise.
Limited Warranty and Disclaimer
LAMTC WARRANTS THAT THE PRODUCTS SUPPLIED HEREUNDER SHALL MATERIALLY CONFORM AT TIME OF DELIVERY TO THE DESCRIPTION OF THE PRODUCTS PROVIDED BY LAMTC.
LAMTC’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR A BREACH OF WARRANTY WITH RESPECT TO ANY PRODUCT SHALL BE THE REFUND OF THE PURCHASE PRICE OF THE NONCONFORMING PRODUCT. FURTHERMORE, ANY SUCH WARRANTY SHALL BE NULL AND VOID AND SHALL NOT APPLY TO ANY PRODUCT WHICH IS (i) ALTERED, MODIFIED, DAMAGED, ABUSED, OR MISUSED (WHETHER INTENTIONALLY OR ACCIDENTALLY) OR (ii) NOTWITHSTANDING SUCH NONCONFORMITY, IS USED OR OTHERWISE ACCEPTED BY CUSTOMER OR CUSTOMER WAIVES ITS CLAIM FOR REJECTION UNDER THE PROVISIONS OF THIS AGREEMENT. THE FOREGOING WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, AND LAMTC DISCLAIMS ALL OTHER WARRANTIES, NOT REQUIRED BY APPLICABLE LAW, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE AND/OR A PARTICULAR PURPOSE.
Customer shall indemnify and reimburse LAMTC for, and hold LAMTC harmless from and against, and will compensate and reimburse LAMTC for, any and all damages, costs, expenses, losses, claims, demands, liabilities, awards, judgments, decline in value, lost opportunities, assessments, settlements, fines, penalties, charges and/or obligations (including, without limitation, charges, deficiencies, assessments, dues, fines, penalties, interest, amounts paid in settlement, and reasonable fess and disbursements of counsel) (collectively, “Damages”) arising from, relating to, or in any way sustained or incurred, directly or indirectly, (and regardless of whether or not such Damages relate to any third party claim), by LAMTC due to: (i) any breach by Customer of any of its representations, warranties, covenants, and agreements set forth herein; (ii) any negligent act or omission of Customer, or any of its directors, officers, employees, affiliates, agents, or representatives, with respect to any products purchased hereunder; (iii) Customer’s use, handling, storage, or re-sale of any product purchased hereunder; or (iv) any fraud or willful misconduct on the part of Customer; provided, however, that Customer shall not be liable for any such Damages to the extent arising from LAMTC’ gross negligence or willful misconduct.
If any part of this Order shall be held unenforceable, the remainder of this Order shall nevertheless remain in full force and effect and, to the extent permissible under applicable law, such unenforceable provision or provisions shall be deemed revised to the minimum extent possible to permit enforcement of such provision on terms as near as possible to such provision as originally drafted.
Relationship of the Parties
LAMTC and Customer are independent contractors under this Order. Nothing contained in this Order is intended nor is to be construed so as to constitute the parties as partners or joint venturers with respect to the agreement hereunder. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party to any other contract, agreement, or undertaking with any third party.
LAMTC’ remedies herein are cumulative and in addition to any other or further remedies available to it at law or equity.
LAMTC’ failure to enforce any right provided herein or to which it is entitled at law or equity will not constitute a waiver of that right or of any other rights to which it is entitled.
Entire Agreement; Modification; Waiver
These Terms contain the entire agreement of the parties regarding the subject matter hereof and supersede all prior quotes, orders, purchase orders, bills of lading, invoices, proposals, letters of intent, agreements, understandings, and negotiations regarding the same. No modification of this Order or any order placed hereunder shall be effective without LAMTC’ written consent. Except as otherwise provided herein, in no event shall this Order be deemed amendable or amended except by a writing specifically referencing this Order and signed by LAMTC and Customer. Any waiver by LAMTC of strict compliance with any provision of this Order shall not be deemed a waiver of any of LAMTC’ rights, privileges, claims, or remedies hereunder (with respect to such provision or any other provision hereof), nor of LAMTC’ right to insist on strict compliance with respect to such provision thereafter.