Conditions of Sales / Delivery

1. CONTRACT. The sale of goods described on the reverse side hereof is subject to the following terms and conditions (“Terms and Conditions”) which, together with the reverse side hereof, collectively constitute the entire contract (the “Contract”) to buy and sell the goods described therein (the "Goods"). In the event of any conflict between these Terms and Conditions and the terms and conditions on the reverse side hereof, these Terms and Conditions shall govern and control in all respects. This Contract sets forth the entire agreement and understanding of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements, and arrangements and understandings, written or oral, between the parties hereto. No representation, promise or inducement has been made by any party hereto that is not embodied in this Contract and no party shall be bound by or liable for any alleged representation, promise or inducement not expressly set forth herein. This Contract supersedes any purchase order or other like document of Buyer, if any, except that Seller will only look to Buyer’s purchase order for the basic terms relating to the Goods to be purchased (including model number and SKU), the quantity of the goods, the requested delivery date, the billing address and delivery address (“Basic Purchase Order Terms”). Any acceptance by Buyer which states additional or different terms shall be deemed material alterations to this Contract and notice of objection to said additional or different terms is hereby given pursuant to section 2207(2)(c) of the California Commercial Code. Other than the Basic Purchase Order Terms, any variations made to this Contract in any Buyer purchase order shall be null and void. Acceptance of a Purchase Order is effective only upon Seller’s written acknowledgment (including by e-mail) of the purchase order from Buyer.

2. ENFORCABILITY. The Contract shall become binding and enforceable against Buyer on the earlier of (a) when signed or accepted in writing by Buyer, its agent or broker; or (b) when signed and delivered by Seller to Buyer; provided that Buyer does not deliver a written objection to Seller of this Contract within ten (10) days after receipt by Buyer thereof; or (c) when Buyer has paid for or has accepted delivery or partial delivery of the Goods.

3. FORCE MAJEURE. Seller shall not be liable for any loss or damage with respect to the Goods on account of delayed delivery or non-delivery, in whole or in part, if such delayed delivery or non-delivery is caused by Acts of God, fire, strikes, floods, accident, riots, lockouts, industrial disturbances, war, blockades, embargoes, insurrection, actions of governmental authorities, non-governmental restrictions, curtailment of production at Seller's source and supply, or any cause beyond Seller's control. Seller shall have the right in the event of the occurrence of any of the above contingencies, in its sole discretion, to cancel the Contract without incurring liability to Buyer or, alternatively, Seller may deliver the Goods at such time as the Goods are reasonably available for delivery. If Seller, following the occurrence of any of the above contingencies, elects not to cancel this Contract, the time originally specified for delivery under this Contract shall be deemed extended for a period equal to Seller's disability.

4. DELIVERY. Unless otherwise set forth on the reverse side hereof, and subject to these Terms and Conditions: (i) shipment is considered timely if made within thirty (30) days of the date specified by Seller for shipment, (ii) the Goods are sold FCA FREE CARRIER (Seller's loading dock)(Incoterms 2020), and (iii) the shipping point and acceptance of shipment by a common carrier shall constitute a delivery to Buyer upon which title and risk of loss shall pass to Buyer. Notwithstanding the above, Goods invoiced and held at Buyer's request at any place, for whatever reason, shall be at Buyer's sole risk and account. Any delivery not in dispute shall be paid by Buyer regardless of any dispute as to any other merchandise. Prices on the Goods are exclusive of all city, state and federal taxes, which are the responsibility of Buyer.

5. DEFAULT. If any invoice is not paid when due, or upon the Buyer's breach of or default on any term or condition of this Contract or any other contract with Seller, all sums owing under this Contract shall, in the sole discretion of Seller, become immediately due and payable. Seller may, in its sole discretion, assess a penalty upon delinquent accounts at the rate of 1.5% per month or the maximum rate permitted by law, whichever is less. Buyer hereby grants to Seller a first priority purchase money security interest in any and all goods purchased from Seller, and in the proceeds from the sale thereof, to secure Buyer's obligations to Seller hereunder. Upon any default by Buyer hereunder, Seller shall have all the rights of a "secured party" under the California Commercial Code. If any invoice is not paid when due, Seller shall have the further right to defer delivery under this Contract, and any other contract between Buyer and Seller, until such payment is made and for a reasonable time thereafter, and/or Seller may cancel this Contract and any other contracts between Buyer and Seller. Nothing contained in this Section 5 shall limit the remedies otherwise available to Seller under the law.

6. NONCONFORMING GOODS. Seller shall not be liable for normal manufacturing defects, customary variations from quantities or specifications, or for inherent defects of or in the Goods. Claims for defective products, shortages, delays or failures in shipment or delivery, or for any other cause, shall be deemed waived and released by Buyer unless Buyer notifies Seller in writing within ten (10) days after the arrival of the Goods at the destination specified in this Contract or Basic Purchase Order Terms, indicating full particulars of the alleged defects, reasonable evidence supporting the claim, and Seller’s alleged responsibility for the claim under this Contract. If Buyer claims that Goods are defective in quality, they must be properly and promptly made available to Seller for its examination and, if Buyer does not permit and facilitate said examination, Buyer's claims shall be deemed waived and released. With respect to this Section 6, time is of the essence. If Buyer claims that between the time of loading at the point of origin and the time of delivery to Buyer, the Goods have been damaged, destroyed, or a shortage has occurred, Buyer shall use its best efforts to establish the cause and extent of such damage, destruction or shortage, and shall immediately notify Seller in writing and shall keep any such Goods that are destroyed, damaged or subject to shortage segregated and available for Seller's inspection. Seller shall not be responsible for any fees or costs associated with the return of conforming goods.

7. RIGHT TO POSSESSION. Seller shall have the right, for credit reasons or because of Buyer's default, to withhold shipments, in whole or in part, and to recall Goods in transit, retake the same, and/or repossess all materials that may be stored with Seller for Buyer's account, without the necessity of taking any other action, and Buyer consents that all Goods so recalled, retaken or repossessed shall become the absolute property of Seller or, at the option of Seller, retained as security by Seller until such time as Buyer's account is no longer delinquent or Buyer's breach is remedied to the satisfaction of Seller. The foregoing shall not be construed as limiting, in any manner, any of the rights or remedies available to Seller because of any default of Buyer.

8. WARRANTIES. Seller warrants that the Goods shall be free from material defect for a period of one (1) year from the date of delivery of the Goods to Buyer. ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED BY SELLER. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY ACTUAL OR ALLEGED CONSEQUENTIAL, SPECIAL AND/OR INCIDENTAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS OR LOSS OF BUSINESS. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER LESS SHIPPING AND OTHER COSTS OF BUYER. Buyer's exclusive remedy for breach of warranty, express or implied, shall be limited, to return of the Goods and refund of the purchase price of the Goods, or repair and replacement of the Goods, at Seller’s option.

9. QUOTATION AND PRICES. Quoted prices for the Goods are subject to change without notice. Acknowledged orders calling for future delivery will be billed according to the price for the Goods then in effect at the date and place of delivery. Reference is made to Section 13 – CLASSIFICATIONS OF ORDERED GOODS for further pricing information and requirements. If the cost to Seller of any undelivered portion of the Goods is increased by reason of legislation or by governmental or departmental regulations issued by governing authorities having jurisdiction over the Goods or materials incorporated into the Goods, then any such related increases shall be for the account of Buyer and, if paid or required to be paid by Seller, the amount thereof shall be added to and become a part of the invoice and shall be payable by Buyer to Seller.

10. BUYER SPECIFICATIONS. If the Goods have been manufactured in accordance with designs, labels, brand names or other specifications of Buyer, to the extent permitted by law and public policy, Buyer agrees to assume all obligations associated with the Goods, and shall hold Seller harmless, and shall defend and indemnify Seller, from and against all claims, losses, obligations, actions, costs and expenses, including expert fees and attorney’s fees at trial and on appeal, arising out of, or in any way connected with, the Goods, regardless of any active or passive negligence on the part of Seller, excepting, however, Buyer shall have no indemnity obligation to the extent of the gross negligence or intentional torts of Seller.

11. ORDER MODIFICATION AND CANCELLATION CHARGES. If this Contract is terminated, not performed or otherwise breached by Buyer prior to payment in full by Buyer for all of the Goods described in any accepted purchase order, Seller shall thereupon become immediately entitled to exercise any and all remedies in respect of Buyer’s termination, non-performance or other breach as set forth in the California Commercial Code.

Buyer and Seller agree that, with respect to custom solutions ordered, Seller, upon a termination or breach, will be entitled to be compensated on a percentage completion of the per unit contract price with the calculation including reasonable overhead, labor, materials fees (e.g., paid expedite or re-stocking) and materials used.

Buyer and Seller agree that, with respect to standard components ordered, Buyer may modify or cancel the order within 24 hours of placing the order without any cancellation charges. Any such changes must be communicated to Seller in writing and require Seller’s written acceptance. For all other standard components ordered, Seller will be entitled to be compensated with and paid a 30% restocking fee by Buyer based upon the sales price of the Goods.

12. CLASSIFICATIONS OF ORDERED GOODS. Goods sold by Seller to Buyer are classified as “STANDARD ORDERS”, “CUSTOM OR MADE-TO-ORDER”, and/or “BLANKET ORDERS”. These various classifications of orders are further described as follows:

• STANDARD ORDERS. Goods of a component nature that are generally available from Seller’s stock and represented as standard items in Seller’s publications (e.g., Catalogs, website, etc.).
• CUSTOM OR MADE-TO-ORDER. Goods that are not directly represented in Seller’s publications as finished goods with published part numbers or Goods that are unique in design or configuration and produced to Buyer’s specific requirements. This includes orders for configured Goods and will apply whether orders are placed directly by the Buyer using available customer tools or by another party operating on the Buyer’s behalf. Buyer bears full responsibility for ensuring that the design and configuration of Custom or Made-to-Order Goods meet Buyer’s requirements prior to placing an order. Seller guarantees that the Custom or Made-To-Order product will match the specifications provided by Buyer and will be free from manufacturing defects. If a manufacturing defect is detected, Seller will, in its sole discretion, either correct the defect or replace the product except for defects that arise from Buyer-provided specifications. Custom or Made-to-Order Goods are non-returnable.
• BLANKET ORDERS. Orders that are placed by Buyer and fulfilled by Seller over a specified period of time through the periodic release of Goods to Buyer. Blanket Orders may be for either (A) Standard, or (B) Custom or Made-to-Order Goods.

13. DELIVERY SCHEDULE AND ADDITIONAL CHARGES. Delivery of orders will vary based upon the classification of Goods ordered. Deliveries will be made as follows:

• STANDARD ORDERS. Shipments of Standard Orders for Goods that are available in existing stock will be scheduled according to the Buyer’s requested date or on another date mutually agreed upon by Buyer and Seller.
• CUSTOM OR MADE-TO-ORDER. Shipments of Custom or Made-to-Order Goods will be scheduled either according to Buyer’s requested date when such delivery is possible or on a date specified by Seller based upon material lead-times and production requirements specific to the Goods specified by Buyer. Dates for shipment will be communicated to Buyer. Buyer is responsible for acknowledging the order delivery schedule prior to commencement of work by Seller.
• BLANKET ORDERS. Blanket Orders for Goods may relate to either Standard Goods or Custom or Made-to-Order Goods. Buyer agrees that, for all Blanket Orders, Goods and services will be delivered or rendered to Buyer within twelve (12) months from the date of the applicable order. Any deliveries that extend beyond 6 months may be subject to price adjustments (See Section 9 - QUOTATIONS AND PRICING). Any changes or extensions to the delivery schedule are solely in the discretion of Seller. Buyer’s failure to accept their entire order within the 12-month delivery period will subject Buyer to additional charges associated with the storage and handling of Goods. The additional charges will consist of a recurring monthly fee of ten percent (10%) of the remaining value of the Goods, to be invoiced on a monthly basis, until the balance of the order is received by Buyer.

14. NON-RETURNABLE GOODS. Certain products or Goods sold by Seller are designated as “NON-RETURNABLE” and will be identified as such in order documentation. Non-returnable goods include products that are perishable, customized, made-to-order, or have a limited shelf life.

Acceptance of Non-Returnable Goods:
By placing an order for non-returnable goods, Buyer confirms its understanding that such items cannot be returned for a refund, exchange, or credit. Buyer accepts full responsibility for the selection, suitability, and compatibility of non-returnable goods with their intended purpose.

15. GENERAL PROVISIONS. This Contract shall be governed by, and construed, interpreted and enforced in accordance with, the laws of the State of California. All actions arising out of this Contract shall be brought only in the courts located within Contra Costa County. This Contract may be amended, modified, or superseded, and the terms or covenants hereof may be waived, but only by a written instrument executed by the parties hereto. The failure of either party at any time or times to require performance of any provision hereof shall in no manner affect such party's right at a later time to enforce the same or any other provision. No waiver by either party of the breach of any term or covenant contained herein, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant herein. Any term or provision of this Contract, which is prohibited, invalid or unenforceable, shall be ineffective to the extent (but only to the extent) of such prohibition, invalidity or unenforceability without invalidating or affecting any other term or provision hereof. In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against Buyer, or in the event of the appointment, with or without Buyer's consent, of a receiver, Seller shall be entitled to elect to cancel any unfilled part of this Contract without any liability whatsoever. All terms written on customer quotes supersede any terms in this Contract. Buyer shall not assign this Contract without the prior written consent of Seller to be granted or withheld by Seller in its sole discretion. This Contract has been negotiated between the parties and shall not be deemed to have been drafted by either party for purposes of construction. If there is a dispute regarding the terms of this Contract, or the Contract requires enforcement, the prevailing party shall be awarded its attorney’s fees and costs, including expert and investigation fees, at trial and on appeal. The headings of the sections hereof are intended solely for means of reference and shall not modify, explain or place any construction on any of the provisions hereof. No remedy or election hereunder or at law or in equity of Seller shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies hereunder or at law or in equity.