RPLANET EARTH – GENERAL TERMS AND CONDITIONS OF SALE
1. Agreement of Sale.
1.1 These general terms and conditions of sale (these “General Terms”) shall apply to sales by rPlanet Earth Los Angeles, LLC with its offices in Vernon, California (“Seller”) of products (“Products”) to the purchaser (“Buyer”) identified in any credit application, quote or acknowledgement that accompany these General Terms or to which these General Terms are attached, either physically, via an electronic link or otherwise. The agreement of sale between Seller and Buyer with respect to Buyer’s purchase of any Products from Seller (with respect to each such purchase, the “Agreement of Sale”) shall consist solely of (i) the designation or identification of the Product (by Seller product number or other means acceptable to Seller), the quantity thereof ordered and any related Specific Terms (as hereinafter defined) that are set forth in Buyer’s purchase order or similar document or communication (“PO”) and reflected in Seller’s acknowledgement or acceptance thereof (“Acknowledgement”), (ii) any other Specific Terms set forth in any specifications, documentation, manuals or other materials or information heretofore provided by Seller to Buyer or published or otherwise made available to Buyer by Seller, and (iii) these General Terms. Other than the Specific Terms that are in the PO and reflected in the Acknowledgement, no terms, conditions or provisions in any PO or other communication from Buyer shall be part of any Agreement of Sale or of any force or effect whatsoever.
1.2 If these General Terms conflict with any Specific Terms, these General Terms shall control and the conflicting Specific Terms shall be of no force or effect, except and solely to the extent that such conflicting Specific Terms specifically refer to the inconsistent General Terms by subject matter and section number and state that they supersede such inconsistent General Terms.
1.3 “Specific Terms” means Product specifications (including tolerances), Product unit price, lead time (target Delivery date), shipping terms (including, without limitation, the Delivery address) and duration of warranty.
1.4 Once an order has been accepted by Seller, Buyer cannot cancel an order without the written permission of Seller. Buyer’s purported cancellation of any such order in violation of this Section 1.4 shall be deemed to be Buyer’s repudiation and breach of the Agreement of Sale, upon which Seller (i) shall be relieved of any obligation to deliver Products under the Agreement of Sale and (ii) may pursue any and all remedies under the Agreement of Sale, at law or in equity for such repudiation and breach.
2. Delivery.
2.1 Buyer acknowledges that production yields for Product runs may vary and, accordingly, that Delivery of any number of Products between ninety percent (90%) and one hundred ten percent (110%) of the quantity ordered shall be deemed to be permitted under the Agreement of Sale and satisfaction in full of Seller’s Delivery obligations thereunder. Buyer’s payment obligation under the Agreement of Sale shall be based upon the number Products actually Delivered in accordance with this Section 2.1 and the per-unit Product price set forth in the Agreement of Sale.
2.2 Seller shall make commercially reasonable efforts to fulfill its Delivery obligations under the Agreement of Sale on or before the target Delivery date provided therein. If Seller becomes aware that it is unlikely, notwithstanding such commercially reasonable efforts, to complete Delivery on or before the target Delivery date, it shall promptly notify Buyer thereof. Buyer and Seller shall then promptly confer and mutually agree upon a revised target Delivery date. If Buyer so requests, Seller shall make partial Deliveries to the extent reasonably practicable. Buyer acknowledges that lead times and Delivery dates in the Agreement of Sale are estimates and that Seller shall not be deemed to be in breach hereof or have any liability whatsoever as a result of late Delivery. Unless otherwise specified in the Specific Terms, any lead times for Delivery therein shall be deemed to run from the date of the Acknowledgement.
2.3 All Products shall be deemed to be accepted upon Delivery, provided that nothing in this Section 2.3 limits Buyer’s rights under the Product Warranty (as hereinafter defined).
3. Warranties.
3.1 Seller warrants that the Products shall substantially conform to the specifications therefor incorporated into the Agreement of Sale pursuant to Section 1 of these General Terms (the “Product Warranty”). The Products shall be deemed to substantially conform to such specifications notwithstanding any deviations in dimension, weights or other specifications that are within applicable tolerances incorporated into the Agreement of Sale pursuant to Section 1 of these General Terms or that do not materially impair the usefulness of the Products for their reasonably intended purpose. Damage, defects or deviations with respect to any Product arising after Delivery shall not be deemed to be a violation of the Product Warranty if caused in whole or part by accident, abuse, misuse or negligence, including, without limitation, exposure to direct sunlight, excessive moisture, or temperatures or other environmental conditions that are outside of the range (if any) recommended by Seller or, absent such a recommendation, that are outside of the range that is generally deemed reasonable for warehouses storing similar items.
3.2 The duration of the Product Warranty shall be the duration incorporated into the Agreement of Sale pursuant to Section 1 of these General Terms or, if no such duration is incorporated into the Agreement of Sale, then ninety (90) days from Delivery.
3.3 Buyer may submit a claim for violation of the Product Warranty by written notice to Seller provided at any time before expiration of such warranty. Buyer will reasonably cooperate with Seller’s efforts to confirm the reported violation and, if such violation is confirmed, to identify the reason therefor, including by shipping to Seller such number of Products as Seller may request for inspection and evaluation and providing such information (e.g., case codes for the cases containing defective Products) as Seller may reasonably request. If Seller confirms that a violation of the Product Warranty has occurred, Seller shall, in its sole discretion, replace such nonconforming Products or refund to Buyer the purchase price paid by Buyer for such Products. This Section 3.3 states Seller’s sole obligation and Buyer’s sole and exclusive remedy for any breach of the Product Warranty.
3.4 Except for the Product Warranty, Seller expressly disclaims all warranties, express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Without limiting the foregoing, Seller does not warrant that the Products will meet Buyer’s requirements or be suitable for Buyer’s intended purpose. Subject only to the Product Warranty, no oral or written information or advice given before or after the date of the Agreement of Sale by Seller, any authorized representative of Seller or any other person will create or be deemed to be any warranty whatsoever with respect to the Products or otherwise, and Buyer shall rely on any such information or advice at its sole risk.
3.5 As between Seller and Buyer, Buyer shall bear all risks associated with the use of Products. Accordingly, Buyer shall be responsible for inspecting the Products to confirm that they conform to the Product Warranty and are safe and otherwise suitable for their intended use. Buyer warrants that it shall not use any Products that violate the Product Warranty or that are not safe and otherwise suitable for all uses thereof and that no use of any Product shall violate any law or regulation or the rights of any person or give rise to any liability. Buyer shall indemnify Seller and hold Seller harmless from and with respect to any loss, damage, claim, cost or expense (including, without limitation, reasonably attorneys’ fees) arising out of or in connection with any violation of such warranty from Buyer.
4. Shipment.
4.1 If the Agreement of Sale specifies that delivery shall be FOB Seller’s facility, otherwise indicates that Buyer shall be responsible for shipping, or is silent regarding shipping, then Buyer shall pay all costs of shipping the Products, and title to the Products and the risk of loss thereof or damage thereto shall pass to Buyer when they are received by the carrier (or Buyer if Buyer picks up the Products at Seller’s facility itself). In that event, Seller shall be deemed to have satisfied its Delivery obligations with respect to any Product when it notifies Buyer that such Products are ready to be picked up by the carrier (or Buyer).
4.2 If the Agreement of Sale specifies that delivery shall be FOB Buyer’s or recipient’s facility or otherwise indicates that Seller shall be responsible for shipping, Seller shall pay all costs of shipping the Products, and title to the Products and the risk of loss thereof or damage thereto shall pass to Buyer when they are received at the mutually agreed delivery address.
4.3 Whenever Seller permits Buyer to pick up Products at Seller’s facilities, Buyer must arrange pick-up at such location in advance and in accordance with Seller’s requirements.
5. payment terms.
Subject to Section 9 of these General Terms, Seller may issue an invoice to Buyer for Products upon Delivery thereof, and if Buyer is granted a line of credit by the Seller, Buyer shall pay each invoice within thirty (30) days. Payment terms are net 30 days. If no line of credit is extended, Buyer agrees to pay invoice in full prior to shipment. Except as may be otherwise specifically and expressly provided in the Agreement of Sale, prices in the Agreement of Sale are exclusive of, and Buyer shall pay (or, at Sellers option, reimburse Seller for), any sales, use, value added or similar taxes or assessments. Late fees shall accrue at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law on any invoiced amounts that are not paid when due, and Buyer shall promptly pay any such late fees.
6. Limit of Liability.
6.1 Neither Seller, nor Seller’s affiliates, nor Seller’s and its affiliates’ respective suppliers or service providers, nor any of their respective officers, directors, owners, employees, agents, suppliers and representatives (collectively, the “Seller Parties”) will, under any circumstances, be liable for any special, incidental, consequential or exemplary damages, including, but not limited to, damages for loss of use, business, opportunities or profits, arising out of or in connection with the Agreement of Sale, the Products or any use thereof, even if any Seller Party has been advised of the possibility of such damages.
6.2 To the maximum extent permitted by applicable law, in no event will the aggregate liability of the Seller Parties for any claims relating to the Agreement of Sale, the Products, or any use thereof, whether sounding in contract, tort or any other theory of liability, exceed, in the aggregate for all claims, the amounts paid by Buyer to Seller for the Products with respect to which such liability shall accrue.
7. Force Majeure.
Seller shall not be deemed to be in breach of the Agreement of Sale or bear any liability for any delay in performing or non-performance of its obligations under the Agreement of Sale if such delay or non- performance is caused by accident, mechanical breakdown of facilities, fire, flood, natural disasters, strike, labor trouble, riot, revolt, war, acts of governmental authority, computer system failures, unavailability of materials, energy or components, delays in transportation or other causes beyond the reasonable control of Seller. Seller’s obligations may be suspended, without liability, for so long as such event or the effects thereof continue, but the supply relationship shall otherwise remain unchanged. The decision of Seller as to the quantities of the Products affected shall be final and binding.
8. Confidentiality.
With respect to each party to the Agreement of Sale, “Confidential Information” means information of such party that such party designates as confidential in a manner that puts or should put the other party to the Agreement of Sale on notice of the confidential nature thereof. Neither party to the Agreement of Sale will use the Confidential Information of the other such party for any purpose other than to perform its obligations and exercise its rights under the Agreement of Sale. Neither such party will disclose the Confidential Information of the other such party, except that it may disclose such information to its employees for the purpose of using such information as authorized hereunder, but only after it notifies such employees of the confidential nature of such information and of the restrictions regarding the use and disclosure thereof. Notwithstanding the foregoing, neither party’s obligations of confidentiality under this Section 8 shall apply to any information (i) that is publicly known, (ii) that it independently develops, without reference to any non-public information of the other party, or (iii) that it rightfully receives from a third person without incurring any obligations of confidentiality. The parties’ obligations hereunder shall survive any expiration or termination of the Agreement of Sale.
9. Non-performance.
9.1 Seller may demand, by written notice to Buyer, prepayment, the provision of security or other reasonable assurances of Buyer’s due performance if facts become known to Seller that constitute reasonable grounds for insecurity with respect to Buyer’s performance of its payment or other obligations under the Agreement of Sale. Seller may suspend all performance under the Agreement of Sale, including all activities associated with such performance, during the period beginning upon its demand for such assurances and ending upon receipt of such assurances reasonably satisfactory to Seller, without incurring any liability for any resulting failure of or delay in its performance under the Agreement of Sale. Without limiting any of Seller’s other rights or remedies, Buyer’s failure to provide such assurances promptly shall be deemed be Buyer’s repudiation and breach of the Agreement of Sale, upon which Seller (i) shall be relieved of any obligation to deliver Products under the Agreement of Sale and (ii) may pursue any and all remedies under the Agreement of Sale, at law or in equity for such repudiation and breach.
9.2The foregoing rights shall be cumulative, alternative and in addition to any right or remedy Seller may have under these General Terms or by law or in equity.
10. PerformancebyAffiliates.
At Seller’s option, Seller may delegate any of its obligations under the Agreement of Sale to its affiliates, and such affiliates may issue invoices to Buyer under the Agreement of Sale for the performance of such obligations.
11. Assignments and Third Party Rights.
11.1 Buyer shall not transfer, assign or delegate any of its rights, obligations or duties of performance to any third party without Seller’s prior written consent, which Seller may elect to grant or withhold in the exercise of its sole and absolute discretion, and any purported transfer, assignment or delegation in violation of this Section 11.1 shall be null and void ab initio and of no force or effect.
11.2 No persons other than the parties to the Agreement of Sale shall have any right (whether under any statute or otherwise) to enforce any provision thereof.
12. Non-waiver.
Failure to exercise or delay in exercising any rights under the Agreement of Sale shall not constitute a waiver thereof. All waivers must be in writing and shall apply only for the specified purpose and in the specific instance specified in such writing.
13. Severability of Provisions.
If any provision of the Agreement of Sale should be held invalid or unenforceable, the validity and enforceability of the remaining provisions shall not be affected.
14. ApplicableLawandDisputeResolution.
14.1 The Agreement of Sale shall be governed by and construed in accordance with laws of the State of California applicable to contracts entered into and performed in California by residents thereof. The United Nations Convention on Contracts for the International Sale of Goods (1980) shall not apply to the Agreement of Sale or the parties’ supply relationship.
14.2 Any dispute, controversy or claim arising out of or relating to the Agreement of Sale, the supply relationship, or the breach, termination, enforcement, interpretation, or validity thereof (whether contractual or non-contractual in nature), including the determination of the scope or applicability of the Agreement of Sale to arbitrate, shall be determined by arbitration before one (1) arbitrator. Such arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and shall take place in Los Angeles County, California. Judgment on the award of the arbitrator may be entered in any court having jurisdiction.
15. Amendments.
The Agreement of Sale shall not be amended except by a writing executed by Buyer and Seller.
16. Essential Purpose.
The parties acknowledge and agree that the provisions of these General Terms that limit liability, disclaim warranties, or exclude consequential damages or other damages or remedies are essential provisions of the Agreement of Sale that are fundamental to the parties’ understanding regarding allocation of risk. Accordingly, such provisions shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach or other occurrence. Without limiting the generality of the foregoing, Buyer agrees that all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause any exclusive remedy under the Agreement of Sale to fail of its essential purpose.
17. Survival.
For avoidance of doubt, Sections 1, 3.4, 3.5, 5, 6, 8, 11, 12, 13, 14, 15 and 16 of these General Terms shall survive any termination or expiration of the Agreement of Sale and shall remain fully effective and enforceable thereafter.