Application. These General Terms and Conditions for the sale of Goods (“Terms and Conditions”) will apply to all quotations and sales for goods, materials, and equipment by Sierra Nevada Sales, Inc., a California corporation (the “Seller”) and are hereby incorporated into the accompanying Sierra Nevada Sales Inc. Invoice (the “Seller’s Invoice”). All purchases by the customer identified in the Sales Invoice (individually, and, as the case may be, collectively with its employees, officers, members, affiliates, parents,and subsidiaries, the “Buyer”)are expressly limited and conditioned upon acceptance of these Terms and Conditions. Seller objects to and rejects any provision additional to or different from these Terms and Conditions that may appear in any other prior or later communication between Buyer and Seller or Buyer’s purchase order unless such provision is expressly agreed to by Seller in writing signed by the Seller.
Goods Defined. For purposes of these Terms and Conditions, the term “Goods” shall mean all goods, materials, and equipment identified in Seller’s Invoice.
Shipment and Risk of Loss. Unless otherwise stated in the Sales Invoice, Seller will make a good faith and commercially reasonable effort to deliver the Goods within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of the Goods. If Seller arranges the freight carrier to ship the Goods to Buyer, Seller shall be responsible for loss and damage of the Goods until the Goods are delivered to the address of Buyer identified on the Sales Invoice. If Buyer requests the Goods to be shipped with Buyer’s freight carrier, the risk of loss and damage to the Goods shall shift to Buyer upon Seller’s delivery of the Goods to Buyer’s freight carrier or upon availability for pick-up by Buyer. Seller may, in its sole discretion, without liability or penalty, make a partial shipment of the Goods in which case, each shipment from Seller shall constitute a separate sale,and the Buyer shall pay for the Goods shipped whether such shipment is in whole or partial fulfillment of the Buyer’s purchase order.In the event that Goods are misdelivered due to Seller’s conduct, causes,or other unforeseeable matters, Seller shall use commercially reasonable efforts to re-deliver the Goods at Seller’s sole expense. In the event the Goods are misdelivered due to inaccurate, incomplete or misleading information provided by Buyer to Seller, then Buyer shall reimburse Seller for any and all costs arising out of or related to Seller’s retrieval of the misdelivered goods and/or the re-shipment of the Goods to Buyer’s sole expense
Price. All prices are subject to change unless otherwise noted on the Seller’s Invoice. The Buyer shall purchase the Goods from the Seller at the price(s) (the “Price(s)”) set forth in the Seller’s Invoice. If the Price(s) should be increased by the Seller before delivery of the Goods to the Buyer, then these Terms shall be construed as if the increased price(s) was originally inserted herein, and the Buyer shall be invoiced by the Seller on the basis of such increased price(s). Unless Buyer arranges its own shipping of the Goods, in which case Buyer shall pay for all shipping costs;otherwise,all shipping costs shall be included in the Price of the Goods as set forth in the Seller’s Invoice. Any sales, excise,or other taxes, if any, applicable to the Goods shall be paid by the Buyer.
Special Packaging and Handling. The cost(s) of any special packaging or handling requested by the Buyer shall be included in the Seller’s Invoice.
Inspection, Acceptance, Rejection of Nonconforming Goods, and Returns.
All Goods shall be received by Buyer subject to Buyer’s reasonable inspection and rejection.The Buyer shall inspect the Goods within two (2) days of receipt (the “Inspection Period”). After the Inspection Period, Buyer will be deemed to have accepted the Goods unless it notifies the Seller in writing of any Nonconforming Goods prior to the end of the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) Goods shipped are materially different than specified in the Seller’s Invoice, or (ii) the label or packaging of the Goods incorrectly identifies its contents.
If the Buyer timely notifies the Seller of any Nonconforming Goods, Seller may, in its sole discretion and expense: (i) replace such Nonconforming Goods at Seller’s costs, or (2) credit or refund Buyer that portion of the Price and shipping costs allocable to such Nonconforming Goods. In the event Seller requests the Nonconforming Goods to be shipped back to Seller, Seller shall pay all costs associated with arranging for and shipping the Nonconforming Goods back to Seller’s warehouse at 812 Workman St.,Bakersfield, CA 93307. If the Seller elects to replace Nonconforming Goods, Seller shall, after receiving the return shipment of the Nonconforming Goods, ship the replacement Goods to Buyer in accordance with herewith.
Within thirty (30) days of the Sales Invoice, Buyer may return any Goods Seller routinely and continuously stocks if the Goods: (i) are in new condition, suitable for resale in undamaged original packaging and with all original parts; and (ii) have not been used, installed, modified, rebuilt, reconditioned, repaired, altered, or damaged.Buyer has no right to return special-order items without Seller’s advance written consent.All returned Goods which comply with this Section shall be subject to a restocking fee of thirty-five percent (35%) of the Price of the returned Goods. Special orders or Goods not routinely stocked by Seller (“Special Orders”) may be returned upon Seller’s advance written consent; provided the manufacturer of the Special-Order Goods is willing to accept the returned Goods and Buyer agrees to reimburse the Seller for any restocking, cancellation, or other fees charged to it by the manufacturer. The restocking fee associated with Special Order Goods or Goods that are not routinely and continuously stocked by Seller shall be subject to the manufacturer’s restocking fee, if any.Such manufacturer restocking fee ranges from thirty-five percent (35%) to eighty percent (80%) of the Price of the Goods (e.g., handling or restocking fees). All returned Goods must be pre-approved and shall be inspected upon receipt by Seller to determine the condition of the Goods are in compliance with this Section.
Cancellation or Modification. Except for Special Orders or Goods not routinely stocked by Seller, Buyer may cancel or modify an order at any time prior to shipment of the Goods.Upon cancellation of an order, Seller shall issue a refund to Buyer within thirty (30) days of Seller’s receipt of the written cancellation notice. After shipment of the Goods, Buyer may not cancel or modify an order without the written consent of Seller and payment by the Buyer of all applicable cancellation or restocking fees pursuant to Section 6.
Payment. Unless otherwise stated in the Seller’s Invoice, payment is due thirty (30) days after the invoice date. The Buyer shall pay Seller in US Dollars unless otherwise specified in the Seller’s Invoice. Interest shall be charged on all past due amounts owed by the Buyer at an interest rate of two and a half percent (2.5%) from the payment due date until paid in full, or the highest interest rate allowed by applicable law, whichever is less. Payment must be made via a financial institution that is not subject to the sanction laws of the United States, the European Union, or other applicable jurisdictions.
Warranties.
Manufacturer Warranty: Seller assigns to Buyer any and all manufacturer warranties extended by the manufacturer of the Goods (“Manufacturer Warranty”), and will use commercially reasonable efforts to assist Buyer with processing a claim pursuant to the Manufacturer Warranty.
Quality of Goods: Seller warrants to Buyer that the Goods materially conform to Seller’s published specifications in effect as of the date of shipment of the Goods.
Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(b) ABOVE, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF: (i) MERCHANTABILITY; (ii) FITNESS FOR USE; (iii) FITNESS FOR ANY PARTICULAR PURPOSE; (iv) TITLE; or (v) INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. THE SELLER MAKES NO REPRESENTATION, WARRANTY, OR PROMISE THAT THE GOODS WILL CONFORM TO ANY APPLICABLE LAWS, ORDINANCES, REGULATIONS, CODES OR STANDARDS. THE BUYER’S REMEDIES ARE SPECIFICALLY LIMITED TO THE MANUFACTURER’S REPAIR OR REPLACEMENT OF THE GOODS, AS APPLICABLE, AND ARE EXCLUSIVE OF ALL OTHER REMEDIES. SHOULD THESE REMEDIES BE FOUND INADEQUATE OR TO HAVE FAILED THEIR ESSENTIAL PURPOSE FOR ANY REASON WHATSOEVER, THE BUYER AGREES THAT RETURN OF THE AMOUNT PAID BY BUYER TO SELLER FOR THE GOODS INVOLVED SHALL PREVENT THE REMEDIES FROM FAILING OF THEIR ESSENTIAL PURPOSE AND SHALL BE CONSIDERED BY THE BUYER AS A FAIR AND ADEQUATE REMEDY.
Force Majeure. Force Majeure means any circumstances beyond the reasonable control of either party, including but not limited to acts of God, fire, explosion, breakdown of machinery or equipment, pandemics or epidemics, third-party supplier plant shutdown, strikes or other labor disputes of Seller’s suppliers or subcontracts, supply-chain disruptions, acts of terrorism or war, riots or other civil disturbances or voluntary or involuntary compliance with any law, order, regulation, recommendation or request of any governmental authority, inability to obtain the Goods through current suppliers, total or partial failure of any of the Seller’s usual means of transportation of the Goods, or for failure to obtain necessary governmental approvals, permits, or licenses. Neither party will have any liability, other than for the payment of monies owed, for their failure to perform any of their contractual obligations arising out of or in connection with events of Force Majeure.
Assignment. Seller shall not assign any of its rights or delegate any of its obligations under these Terms and Conditions without the prior written consent of the Buyer, provided, however, Buyer consent shall not be required to assign Seller’s rights and obligations hereunder to a party acquiring all or a substantial portion of Seller’s assets. Except as provided herein, any purported assignment or delegation in violation of this Section 13 is null and void. No assignment or delegation relieves the Buyer of any of its obligations herein.
Relationship of the Parties. Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or any other fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries. These Terms and Conditions are for the sole benefit of the parties hereto and their respective successor and permitted assigns,and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms and Conditions.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Seller’s Invoice or to such other address that may be designated by the parties in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), e-mail or facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided herein, a Notice is effective only (a) upon receipt of the receiving party and (b) if the party giving a Notice has complied with the requirements of this Section.Notice of change of any address, telephone or email address shall be given by written notice in the manner detailed in this Section.Rejection or other refusal to accept or, the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice.
Waiver. No waiver by the Seller of any of the provisions of these Terms and Conditions is effective unless explicitly set forth in writing and signed by the Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising herein operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
No Consequential Damages. Notwithstanding any other provision of these Terms and Conditions, Seller shall not be liable to Buyer for incidental, consequential, special, punitive,or indirect damages, including but not limited to loss of use, loss of profits, cost of capital,or increased operating costs, arising out of these Terms and Conditions or the Buyer’s use of the Goods, whether by reason of contract, indemnity, strict liability, negligence, intentional conduct, breach of warranty or from breach of these Terms and Conditions.The total liability of Seller for any damages or loss suffered by Buyer with respect to the Goods shall be limited to the Price allocable to the Goods determined to be defective, and in no event will the cumulative liability of Seller be in excess of the total payments received from buyer for the Goods, regardless of cause or any combination of cause whatsoever.
Alternative Dispute Resolution. The parties shall attempt in good faith to resolve promptly any dispute arising out of or relating to these Terms by negotiation and consultation between themselves. In the event the executives cannot resolve the dispute within thirty (30) days of being placed on notice of the dispute, the parties may submit the dispute to any mutually agreed to mediation service for mediation. The parties covenant that they will use commercially reasonable efforts in participating in the mediation and agree that the mediator’s fees, expenses, and costs incidental to the mediation will be shared equally between the parties. If the parties are unable to resolve the dispute in mediation, the parties may bring an action in court pursuant to Section 19.
Governing Law. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California,but without regard to any conflict of law’s provisions of that state which would have the effect of applying the law of another state or jurisdiction. Any action or proceeding hereunder these Terms and Conditions shall be brought exclusively in state or federal courts located in Kern County, California. Each Party consents to the personal jurisdiction and venue of the state and federal courts of Kern County and waives any objection that such courts are an inconvenient forum. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THESE TERMS AND CONDITIONS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Severability. These Terms and Conditions will be construed as if prepared jointly by the parties hereto,and any uncertainty or ambiguity will not be interpreted against any one party. If any provision of these Terms and Conditions is held to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions,or invalidate or render unenforceable such term or provision in any other jurisdiction.
Entire Agreement; Waivers. These Terms and Conditions supersede all prior negotiations, discussions, and dealings concerning the subject matter hereof and shall constitute the entire agreement between Buyer and Seller concerning the subject matter hereof. There are no understandings, inducements, commitments, conditions, representations,or warranties of any kind, whether direct, indirect, collateral, express or implied, oral or written, from either party to the other, other than as contained within these Terms and Conditions. No waiver by Buyer or Seller of any breach of any terms, conditions or obligations under the Contract shall be deemed a waiver of any continuing or subsequent breach of the same or any other terms, conditions, or obligations hereunder.To the extent these Terms and Conditions conflict with any terms and conditions contained in Buyer’s purchase order, Buyer hereby agrees that the Terms and Conditions set forth herein control the relationship between Buyer and Seller.
