This Terms of Sale ("Agreement"), is entered into as of the date set forth below, and entered into by and between Pizza Ovens LLc., a California corporation ("Seller") and ________________ ("Buyer").
1. Sale of Goods
Seller shall sell to Buyer and Buyer shall purchase from Seller those goods ("Goods") set forth in the Sales Order attached in the quantities and at the Prices (as defined below) and upon the terms and conditions set forth in this Agreement.
2. Terms of Agreement Prevail of Buyer's Sales Order
This Agreement is expressly limited to the terms of this Agreement and the Sales Order terms contained in the applicable Sales Order. The terms of this Agreement prevail over any terms or conditions contained in any other documentation and expressly exclude any of Buyer's general terms and conditions contained in any Sales Order or other document issued by Buyer. In the event of any conflict between the terms of this Agreement and the terms of any Sales Order or any other document issued by Buyer, the terms of this Agreement prevail.
3. Delivery; Title and Risk of Loss
3.1 The Goods will be delivered within a reasonable time after the Sales Order and this Agreement have been entered into and only after the Goods, including shipping charges, have been paid for in full, subject to availability of finished Goods. Goods designated by Seller as used and pre-owned Goods ("Used and Pre-Owned Goods") generally ship within 4-8 weeks from the date of full payment. New Goods availability is determined by the manufacturer and generally ships within 2-8 weeks from the date of full payment. Shipping and delivery days are estimates only and cannot be guaranteed. Seller shall not be liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver, delay in delivery or for any loss, or damage in transit, including without limitation, loss of revenue resulting therefrom.
3.2 Seller shall deliver the Goods to Seller's designated location as set forth in the Sales Order (the "Delivery Point") using Seller's standard methods for packaging and shipping such Goods. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Buyer shall pay all shipping and handling charges associated with the delivery of the Goods. Seller shall be responsible for offloading large pieces of equipment at the Delivery Point.
3.3 All Goods are delivered F.O.B. Title and risk of loss pass to Buyer upon Seller's transfer of the products to the carrier.
4. Inspection and Rejection of Nonconforming Goods
4.1 Damage may occur during shipment from Seller to Buyer, and Seller is not liable for such damage. Buyer is advised to inspect and examine the Goods as the Goods are being unloaded at Buyer's delivery address. If Buyer discovers damaged or missing goods, then Buyer should notify the freight company before signing the freight company bill or receipt. If Buyer discovers damage to the box, crate, or merchandise, which is visible, Buyer should refuse the delivery and contact Seller immediately. If Buyer later discovers damage to the Goods as concealed by the packaging, a claim will need to be filed by the Buyer against the freight company. Buyer is advised to document and photograph packaging and Goods damage.
4.2 Buyer shall inspect the Goods within seven (7) days of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. "Nonconforming Goods" means only the following: (i) product shipped is different than identified in this Agreement or Sales Order; (ii) product's label or packaging incorrectly identifies its contents; (iii) product does not fully conform to the specifications set forth in this Agreement or the Sales Order; or (iv) product materially exceed the quantity of Goods ordered by Buyer pursuant to the Sales Order.
4.3 If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods at the pro rata contract rate. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller's facility as set forth on the Sales Order. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Delivery Point.
4.4 Buyer acknowledges and agrees that the remedies set forth in Section 4.3 are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 4.3, all sales of Goods to Buyer are made on a one OC/470443-1 40326-001 3
Buyer shall purchase the Goods from Seller at the price[s] (the "Price[s]") set forth in the Sales Order attached. If the Price[s] should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then this Agreement shall be construed as if the increased Price[s] were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased Price[s]. Buyer shall pay for and hold Seller harmless from, all shipping charges and insurance costs. In addition, all Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority, in the United Sates or abroad, on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes. California State Sales Tax will be added to all Goods delivered to a California. The manufacturer of new Goods reserves the right to charge and collect additional sales tax, which shall be the sole responsibility of Buyer.
5.1 Discount for Registered Dealers
Dealers who are registered with Seller and can provide resale sales certificates to Seller, may be entitled to receive a dealer discount. This discount shall be given by Seller in their sole discretion.
6. Payment Terms
Buyer shall make all payments hereunder by wire transfer, check, cash, ACH, money order, or credit card (Visa, MasterCard, or Discover), and in US dollars. Buyer will be charged a 3.5% handling fee for all orders paid via credit card. The Goods must be paid by Buyer in full, including shipping charges, as set forth on a Sales Order, before the Goods will be shipped to Buyer.
7. No Setoff
Buyer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document, or law, to withhold, offset, recoup, or debit any amounts owed (or to become due and owing ) to Seller or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Seller or its affiliates, whether relating to Seller's or its affiliates' breach or non-performance of this Agreement or any other agreement between Buyer or any of its affiliates, and Seller or any of its affiliates, or otherwise.
Buyer shall not be entitled to cancel any Sales Order once the Goods have been delivered by Seller to the Delivery Point. If Buyer cancels any Sales Order prior to the delivery of the Goods by Seller to the Delivery Point, Buyer will be charged additional cancellation fees and shall be solely responsible for the, including but not limited to: a 30% restocking fee, all cancellation fees charged by the manufacturer, and a 3.5% fee for all Goods purchased via credit card.
a. The warranties under Section 9.1 do not apply to Used or Preowned Goods. All Used or Preowned Goods are sold AS IS and Seller makes no representations or warranties whatsoever about Used or Preowned Goods.
b. The warranties under Section 9.1 do not apply where the Goods have:
i. been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Seller;
ii. been reconstructed, repaired, or altered by POC/470443-1 40326-001 5
WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
e. The Seller shall not be liable for a breach of the warranty set forth in Section 9.1 unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within five (5) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller's place of business at Seller's cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer's claim that the Goods are defective.
f. The Seller shall not be liable for a breach of the warranty set forth in Section 9.1 if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller's oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
g. Subject to Section 9.2e and Section 9.2f above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part(s)) or (ii) credit or refund the Price of such Goods at the pro rata contract rate, provided that if Seller so requests, Buyer shall, at Seller's expense, return such Goods to Seller.
h. THE REMEDIES SET FORTH IN SECTION 9.20 SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9.1.
10. Limitation of Liability
10.1 IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (iv) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.2 IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
11. Compliance with Law.
Buyer is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
Buyer shall indemnify, defend, and hold harmless Seller and its officers, directors, managers, shareholders, members, partners, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees and the costs incurred by Seller: (a) for personal injury, products liability, death, property damage or lost revenues or profits resulting from the Goods sold by Seller under this Agreement; (b) in enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by Indemnified Party relating to/arising out of or resulting from any claim of a third party arising out of or occurring in connection with the Goods purchased from Seller; (c) due to Buyer's negligence, willful misconduct, or breach of this Agreement. Buyer shall not enter into any settlement without Seller's or Indemnified Party's prior written consent.
In addition to any remedies that may be provided in this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this; or (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part.
14. Confidential Information
All non-public, confidential, or proprietary information of Seller, including, but not limited to, any trade secrets as defined under either the California Uniform Trade Secrets Act or the federal Defend Trade Secrets Act, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Seller in writing.
Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
15. Entire Agreement
This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, regarding such subject matter.
Subject to the limitations and other provisions of this Agreement, the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth in the Sales Order (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by email, personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision.
No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party.
No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Buyer shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Seller. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations hereunder. Seller may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under this Agreement without Buyer's prior written consent.
22. Successors and Assigns
This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
23. No Third-Party Beneficiaries
This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
24. Choice of Law
This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
25. Choice of Forum
Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions in any forum other than the U.S. courts located in Los Angeles County, California.
26. Force Majeure
Any delay or failure of Seller to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond Seller's control, without Seller's fault or negligence and that by its nature could not have been foreseen by Seller or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities).
27. Attorney's Fees
The prevailing party in any action for enforce the terms and conditions of this Agreement shall be entitled to the recovery of attorney's fees and costs.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized."SELLER"
Pizza Ovens LLc.,
a California corporation
By_____________________ Dated: _______________________
By_____________________ Dated: _______________________