SELLER TERMS & CONDITIONS
As consideration for the sale of goods described herein from John Howard Company, Inc. (“Seller”), Buyer agrees as follows:
1. Incorporation. Seller’s terms and conditions are incorporated in the Order Confirmation and govern the Buyer’s purchase of Seller’s products (“Products”).
2. Acceptance of Products. Buyer shall immediately inspect the Products. Unless Buyer notifies Seller by written notice within ten (10) days of receipt of any claim for overages or shortages exceeding 10% or defects in the Products, such Products shall be deemed to be finally inspected, checked and irrevocably accepted by Buyer.
3. Payment Terms. Payment in full is due from Buyer in accordance with the terms set forth on the face of Seller’s invoices. A service charge shall accrue on all past due accounts at the rate of 1-1/2% per month (18% per annum), or the highest rate allowed by applicable law, whichever is less.
4. Delivery. Shipping and delivery terms are stated on the Order Confirmation. Title to the Products shall be deemed to have passed to Buyer when the Products are delivered to the carrier; thereafter, risk of loss shall be borne by Buyer.
5. Returns. Buyer shall not cancel, revoke acceptance of or return Products except for claims arising under the warranty below. No Products may be returned for credit without Seller’s express written permission, as evidence by the issuance of a return authorization. Risk of loss or damage to Products returned to Seller shall remain with Buyer until they are received by Seller.
6. Warranty. Seller warrants that the Products shall be of merchantable quality, free of defects and conform to all applicable specifications. If any Product is found not to be of merchantable quality, Seller shall replace such product or provide a refund, which shall be Buyer’s sole remedy hereunder. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. The warranty of merchantability shall not apply if and to the extent that Products have been subjected to excessive or abusive use, or any casualty event, including without limitation, water damage, fire, flood, earthquake or any other act of God. SELLER DISCLAIMS ANY KNOWLEDGE OF BUYER’S INTENDED USE AND MAKES NO WARRANTY THAT THE PRODUCTS BEING PURCHASED ARE SUITABLE FOR BUYER’S PARTICULAR USE.
7. Indemnification. Buyer shall indemnify, defend and hold harmless Seller, its agents, affiliates, customers, officers and employees from and against any claims, demands, liabilities, penalties, losses, damages (including special or consequential), charges, settlements, judgments, costs and expenses (including reasonable attorneys’ or experts’ fees) incurred by or awarded against Seller relating to Products sold to Buyer and arising directly or indirectly out of Buyer’s acts or omissions, negligence, defects; failures to warn, labeling or disclosures associated with any Products supplied hereunder; breaches of express or implied representations or warranties; violations of laws or regulations relating to the purchase or use of the Products; or any claims that the goods provided hereunder infringe or violate any patent, trademark, copyright, trade dress or any other intellectual property right of any third party.
8. Applicable Law, Jurisdiction and Venue. The purchase and sale of Seller’s Products hereunder shall be governed by the laws of California; federal and state courts in California shall have exclusive jurisdiction over disputes between Buyer and Seller; and venue shall be in the courts of San Bernardino County, California.
9. Attorneys’ Fees. In the event of any controversy, claim or dispute between the parties arising out of or relating to this purchase and sale of Products, the prevailing party shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for attorneys’ fees in that litigation, which shall be determined by the court in that litigation.
10. Entire Agreement. The purchase order and order confirmation contains the entire agreement between the parties. Any prior agreements, promises, negotiations or representations not expressly set forth in this agreement are of no force nor effect. Any amendment to this agreement shall be ineffective unless it is in writing and signed by the party to be charged.
11. Severability. If any term, provision, covenant or condition of the agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.