Bulk Orders
   

 

TERMS & CONDITIONS OF SALE

 

  1. EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY, WARRANTIES OF NON- INFRINGEMENT, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE OR ANY OTHER MATTER. NO AGENT, EMPLOYEE OR REPRESENTATIVE OF SELLER HAS ANY AUTHORITY TO BIND SELLER TO ANY AFFIRMATION, REPRESENTATION OR WARRANTY.
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  3. 14.     Buyer is required to observe all relevant laws, regulations and requirements of governmental or other regulatory authorities relating to Buyer’s use of the Products. Seller assumes no liability for any infringement of intellectual property or violation by Buyer of any law, regulation or requirement relating to Buyer’s use of the Products. Seller shall have no liability for defects, whether hidden or apparent, resulting from the improper use, processing or treatment of the Products by parties other than Seller. Buyer shall be liable for any loss resulting from any failure to apply all professional standards, customary instructions and written instructions from Seller, if any, in relation to any of the Products.
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  5. 15.     Remedies. Any claim regarding breach of Warranty must be received by Seller before the expiration of the warranty period. Seller reserves the right to inspect and investigate the alleged breach prior to any remedy being provided. Seller may require Buyer to return the allegedly defective Product to Seller for inspection at Buyer’s cost. Seller reserves the right to charge reasonable amounts for travel and labor associated with investigation of invalid claims.   Seller’s sole liability for Products in the case of breach of Warranty, or under contract, tort or any other basis, is limited to either repair or replacement of the Product or a refund of the purchase price, at Seller’s sole option.  The foregoing are Buyer’s sole and exclusive remedies hereunder.
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  7. 16.     Intellectual Property. All specifications, documentation and any other intellectual property involved in the manufacturing the Products is the property of Seller or manufacturer as applicable, except to the extent Buyer has supplied specifications, drawings or other intellectual property to Seller. Seller assumes no liability whatsoever with respect to Buyer’s intellectual property.
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  9. 17.     Indemnification.
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  11. (i)       Buyer shall indemnify, defend and hold harmless Seller from all claims, liability, damages, and expenses (including attorneys’ fees) suffered by Seller, whether or not involving a third party claim, arising out of (a) Buyer’s breach, (b) Buyer’s possession, use, handling, storage, sale, processing or any disposition of the Products, (c) Buyer’s errors, omissions, negligence or other wrongful conduct of Buyer and its Buyers, users, agents or subcontractors, and (d) any liability, claim or expense incurred by Seller relating to Buyer or the Products sold to Buyer for which Seller is not expressly liable hereunder.
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  13. (ii)     In the event Seller makes a claim for indemnification under this TCS, Buyer shall have received from Seller: (a) prompt written notice of such claim (but in any event notice in sufficient time for Buyer to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable and without prejudice to Seller) of such claim; and (c) all reasonably necessary cooperation from Seller. Buyer may not settle any such claim without Seller’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
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  15. 18.     Limitations of Liability. SELLER SHALL NOT HAVE ANY LIABILITY TO BUYER OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS AGENTS, EMPLOYEES OR AFFILIATES FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES OF ANY DESCRIPTION, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR LOST PROFITS, WHETHER ARISING OUT OF WARRANTY (INCLUDING ANY IMPLIED WARRANTIES), BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE, OTHER TORT, OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER SELLER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.. IN NO EVENT WILL SELLER’S
  • AGGREGATE LIABILITY ARISING OUT OF RELATED TO THE PRODUCTS OR SERVICES, AS APPLICABLE, SOLD TO BUYER, EXCEED THE TOTAL AMOUNTS PAID BY BUYER FOR THE PRODUCTS UNDER THE APPLICABLE QUOTE PURSUANT TO WHICH THE CLAIM RELATES. No action may be brought by Buyer against Seller after one (1) year from the date hereof, and Buyer acknowledges and agrees that this provision shall be grounds for dismissal of any suit or claim asserted by Buyer after such time.
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  • 19.     Force Majeure. Seller will not be liable to Buyer for any delay or failure of delivery of any Products or other nonperformance caused in whole or part by any contingency or event beyond Seller’s reasonable control, including, without limitation, acts of any government, war, riots, acts of God, machinery breakage, or any shortage of or inability to secure labor, labor strikes, transportation facilities, fuel, energy, raw materials, supplies, or machinery at reasonable prices or from regular sources. In the event of the occurrence of any of the foregoing, Seller may distribute its available goods and material among its Buyers on such a basis as Seller deems fair and equitable, without liability to Buyer.  If such an event results in a continuous delay of fourteen (14) days either party may terminate this Agreement upon written notice to the other party (email sufficient) without incurring any liability, other than Buyer’s obligation to pay for all outstanding invoices for Products shipped and/or received prior to said termination date. 
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  • 20.     Confidentiality. Buyer agrees to: (i) hold Confidential Information (as defined below) in confidence and refrain from disclosing Confidential Information, or transmitting any documents or copies of documents, containing Confidential Information, to any other party except as permitted under the terms of this section; (ii) use Confidential Information only to assist Seller in its supplying the Products or services to Buyer and (iii) not disclose any Confidential Information except to Buyer’s employees and representatives who need such information for the purpose of fulfilling obligations contemplated by this Agreement, provided, however, that Buyer shall be responsible for any breach of the terms of this section by them. Buyer shall use at least the standard of care with respect to protecting Confidential Information that it accords its own proprietary and confidential information. Buyer shall notify Seller if it receives a court order or other legal process commanding production or disclosure of Confidential Information and Buyer shall cooperate with and assist Seller in obtaining a protective order. For the purposes of this Agreement, “Confidential Information” means any and all non- public information, in whatever format, regarding Seller and Seller’s business, including, without limitation, product designs and specifications, drawings, manufacturing methods and information, proprietary information, trade secrets, marketing information and plans, customer lists and other customer information, that Seller provides to Buyer, its employees, or that Buyer or its employees encounter, or obtain possession or knowledge of in the course of providing the Products or otherwise in connection with this Agreement.  Buyer’s obligations hereunder shall survive termination of this Agreement for a period of five (5) years, provided such obligation shall remain in force as long as permitted by applicable law as it relates to Seller’s trade secrets.
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  • 21.     Insolvency/Changes of Ownership.  If Buyer (a) becomes insolvent, (b) undergoes a change in ownership, (c) files or has filed against it a bankruptcy proceeding, (d) has a receiver appointed over it or all or any of its assets, or (e) takes any other action that Seller determines in its sole discretion adversely impacts the conditions under which credit was extended, then Seller will have the right to terminate all orders and contracts by notifying Buyer to that effect, without prejudice to Seller’s right to payment of the price of goods that are shipped, services provided and any damages Seller might suffer.
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  • 22.     Assignment. Buyer may not assign any Quote, order or this Agreement or any of its rights or obligations hereunder or thereunder to any third party without Seller’s prior written consent. For purposes of this provision, a merger, stock sale or other transfer by operation of law shall be deemed an “assignment” for which consent is required hereunder.
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  • 23.     Governing Law and Forum. This Contract will be interpreted according to the laws of the State of California without regard to its conflict of laws provisions. The parties expressly disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods. Buyer hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of California and of

  

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