1. TERMS AND CONDITIONS. These Terms and Conditions (collectively, “Terms”) apply to the sale and delivery by SITECH of the items set forth on the reverse side hereof. These Terms are incorporated into the reverse sale and delivery of the items described on the reverse side hereof (each, a “Product” and collectively, the “Products”). side hereof and, in combination therewith, constitute the entire agreement between the parties with respect to the The Terms and the provisions contained on the reverse side hereof may sometimes be referred to herein collectively as the “Agreement”. Except as otherwise may be provided herein, these Terms may be modified, amended or changed only by a writing signed by both Customer and SITECH. Any and all terms provisions submitted or which may be submitted by Customer which add to, conflict with, or otherwise modify or these Terms are expressly rejected, are invalid and unenforceable and shall have no force or effect.
2. ACCEPTANCE. All orders are subject to final acceptance by SITECH at its Bay Area or Oregon office described on the reverse side hereof, as applicable. SITECH’s acceptance of all orders is contingent upon approval of Customer’s credit. No waiver, alteration, or modification of the provisions hereof shall be binding on SITECH unless agreed to in writing by a duly authorized employee of SITECH.
3. PRICES. Prices set forth on the reverse side hereof relate specifically and solely to this order or proposal. SITECH reserves the right to correct any clerical errors in either price or terms. Any additional or subsequent orders shall be on the prices and terms on such order.
4. RISK OF LOSS; CLAIMS. Risk of loss of a Product shall transfer to Customer on the date of shipment for such Product. Any claims for shortages, damages or delays shall be made by Customer directly to and solely against the carrier. Upon written request of Customer, SITECH shall supply copies of invoices and transportation receipts and other reasonable information necessary for the filing of any such claim by Customer.
5. TAXES. Unless explicitly stated on the reverse side hereof, prices listed do not include any sales, use, excise property or similar taxes and import or export tariffs applicable to this order (collectively, “Taxes”) which may be assessed in connection with SITECH’s filling of this order. Customer shall be responsible for payment of all such Taxes when and as incurred. In the event SITECH advances or makes payment for any such Taxes, Customer shall reimburse SITECH for all such payments within 30 days of invoice for the same.
6. TERMS OF PAYMENT. TERMS ARE CASH UNLESS CREDIT IS APPROVED. With credit approval, payment is due Net 30 days from the purchase date. A monthly finance charge of 1.5% will be charged on all past due balances starting on the 10th day after the due date, together with any charges and expenses incurred by SITECH to recover all damages, costs and expenses owed to it, including, without limitation, all collection charges, reasonable attorneys’ fees and court costs.
7. DELIVERY. Customer agrees that all advance shipping dates set forth on the reverse side hereof are estimates only. SITECH shall exercise reasonable diligence to maintain delivery schedules as set forth on the reverse side hereof. SITECH assumes no liability for loss, damages or delay.
8. WARRANTIES. (a) EXCEPT AS OTHERWISE EXPLICITLY SET FORTH IN PARAGRAPH 8(b) BELOW, EACH PRODUCT IS PROVIDED “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and SITECH MAKES NO WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE, INCLUDING, WITHOUT LIMTIATION, WARRANTIES AS TO NON-INFRINGEMENT, ITTLE, PATENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING BY CUSTOM, TRADE USAGE, PROMISE, EXAMPLE OR DESCRIPTION; ALL OF WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED BY SITECH AND WAIVED BY CUSTOMER. SITECH’s representatives are not authorized to enter into any agreements outside these Terms or to make any warranties or representations of any each Product manufactured solely by SITECH to be free from defect in material and workmanship for the warranty kind with respect to the Product. (b) Notwithstanding anything in the foregoing to the contrary, SITECH warrants period for standard products as specified in the sales literature, owner’s manual and/or instruction materials in effect at the time the order is placed, excepting therefrom any defect or damage arising from or caused by the act or omission to act of Customer, its employees, contractors, subcontractors, consultants, agents, representatives, successors and assigns, affiliates or any person under the control of, acting under the direction of or for the benefit of Customer (collectively, “Customer’s Agents”). With respect to any Product subject this Paragraph 8(b), SITECH’s liability shall be limited to servicing or adjusting any Product returned to it for the purpose of service or adjustment and/or the replacement of any defective parts to the extent the defect or damage was not caused by or resulting from the act or omission to act of Customer or Customer’s Agents. The warranty granted herein shall be effective provided that Customer has complied with all applicable law in its possession, use, operation and handling of the Product, including, without limitation, payment in full for such Products and compliance with any policies regarding the return of such Product, including the provisions of Paragraph 9 below. The warranty described in this Paragraph 8(b) belongs and extends solely to the original Customer of the Product, provided the sale of any such Product was made to Customer directly by SITECH or its authorized dealer or distributor. (c) Any Product supplied by SITECH but manufactured by a third party is sold and delivered by SITECH to Customer subject to the disclaimer of warranties set forth in Paragraph 8(a) above and any warranty provided by the third party manufacturer for such Product. Any claims relating to this Paragraph 8(c) shall be directed to and made solely against the third party manufacturer of such Product only, subject to such manufacturer’s warranty and provisions set forth in the materials provided by manufacturer for such Product.
9. RETURNS. Returns of Product subject to the warranty described in Paragraph 8(b) shall be shipped prepaid by Customer unless otherwise approved in writing by an authorized employee of SITECH. SITECH shall not under any circumstances be responsible for any damage during shipment. Customer shall enclose a packing slip or writing with the Product setting forth Customer’s name, address and phone number and a clear description of the claimed defect or issue. Products repaired by SITECH under Paragraph 8(b) shall be returned to Customer by prepaid surface transportation, unless Customer specifically approves of such return by air shipment and Customer agrees to pay all costs for air shipment. All returns are subject to a restocking charge equal to not less than 10% of the price for such Product as forth on the reverse side hereof. No Product may be returned by Customer other than as expressly permitted under this Paragraph 9 without the express prior written authorization of SITECH.
10. INDEMNIFICATION. Customer agrees to indemnify, defend and hold harmless SITECH, its owners, employees, contractors, subcontractors, consultants, agents, representatives, parent SITECH, affiliates and successors and assigns (collectively, the “Indemnified Parties”) from and against any and all claims, demands, suits, liabilities, injuries (personal or bodily), causes of action, proceedings, losses, expenses, damages or penalties, including, without limitation court cots and reasonable attorneys’ fees (collectively, “Claims”) arising out of, resulting from, or in any way connected with its possession, use, operation or handling of any item.
11. LIMITATIONS OF LIABILITY. Notwithstanding anything contained to the contrary herein, except for any indemnification obligation herein, SITECH and Customer waive all Claims against each other (and against each other’s parent SITECH, affiliates, contractors, subcontractors, consultants, vendors, employees, agents and successors and assigns) for any consequential, incidental, indirect, special, exemplary or punitive damages (including, without limitation, loss of actual or anticipated profits, revenues or product; or loss of use), and regardless of whether any such Claim arises out of breach of contract, tort, product liability, contribution, strict liability or any other legal theory. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SITECH’s CUMULATIVE LIABLITY TO CUSTOMER EXCEED THE PRICE FOR THE PRODUCT GIVING RISE TO THE CLAIM.
12. CANCELLATION. No order accepted by SITECH may be cancelled by Customer unless written notice of cancellation is received by SITECH at least 30 days before the scheduled delivery date set forth on the reverse side hereof; provided, however, that Customer shall pay for all costs incurred by or assessed against SITECH for or in connection with any customization or special work performed on any portion of the order prior to receipt by SITECH of such written notice of cancellation. Unless due to a force majeure event, if SITECH fails to deliver a Product by the scheduled delivery date, and such failure continues for 30 days following receipt by SITECH of Customer’s written notice of intent to cancel, that portion of the order shall be deemed cancelled upon the expiration of the 30-day period.
13. TITLE; SECURITY INTEREST. Notwithstanding delivery of any Product or any other provisions of these Terms, title to a Product shall not pass to Customer until SITECH has received payment in full for the invoiced amount of the Product and payment of all other monies then due or owing to SITECH. Until such time as title passes to SITECH, Customer shall hold the applicable Product as SITECH’s fiduciary and bailee and shall keep the Product separate from those of Customer and third parties, properly stored, protected and insured and identified as SITECH’s property; provided Customer shall be entitled to possession of the Product as provided for herein.
14. SPECIFICATIONS. SITECH reserves the right to make changes to the specifications on any Product and to discontinue any Product or any models at any time, without notice to Customer. SITECH shall have no obligation to retain any Products previously sold or leased by SITECH to Customer and no obligation to incorporate any modifications requested by or made at the request of Customer on or to any Product that may have been previously rented, leased or sold by SITECH. Customer shall pay to SITECH a reasonable charge for any changes in specification to a Product made by, at the direction of or for the benefit of Customer involving, causing or requiring any additional engineering work, postponement or cancellation of an order, or delay in shipment of an order.
15. USE OF DATA. Customer shall treat as confidential all drawings and data submitted or provided by SITECH pertaining to price, size and design of any Product. Customer shall not disclose such drawing or data to any person under any circumstances, unless specifically approved in advance in writing by an authorized representative of SITECH. All such drawings and data is and shall remain the sole property of SITECH.
16. COMPLIANCE WITH LAWS. SITECH represents that the any of the Products manufactured by SITECH to be delivered under an order placed pursuant hereto will be produced in compliance with Sections 6, 7 and 12 of the Fair Labor Standards Act of 1938, as amended and with the regulations and orders of the United States Department of Labor issued under Section 14 thereof.
17. NO WAIVER. No course of dealing or failure of a party to strictly enforce any term, right or conditions of this Agreement shall be construed as a waiver of such term, right or condition. No express waiver of any term, right or condition of this Agreement shall operate as a waiver of any other term, right or condition.
18. GENERAL PROVISIONS. Words used herein, regardless of the number or gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine, or neuter, as the context requires. The provisions of this Agreement and the documents and instruments referred to herein, have been examined by the parties and no implication shall be drawn nor made against any party hereto by virtue of drafting this Agreement. The term “including” used herein shall mean “including, but not limited to”. The subject headings of the sections and subsections of this Agreement are included for purposes of convenience only and shall not affect the construction or interpretation of any of the provisions herein. Any reference to any customer or Customer PO or Customer order number contained on the reverse side hereof or made in connection with this Agreement is for identification purposes only and included for convenience of Customer.
19. RELATIONSHIP OF PARTIES. The sole relationship between the parties created by this Agreement is that of seller and Customer. Nothing contained in this Agreement shall be deemed, held or construed as creating a joint venture or partnership between the parties.
20. SEVERABILITY. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the parties agree that such provisions will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
21. NO ASSIGNMENT. Neither party may assign, convey or transfer this Agreement, or any portion thereof, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, except that SITECH may assign this Agreement or any portion thereof without the prior consent of Customer to a person or entity controlling, controlled by or affiliated with SITECH or its parent SITECH. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties hereto.
22. TIME OF ESSENCE. Time is of essence of this Agreement.
23. AUTHORITY TO EXECUTE. Each party represents and warrants to the other that this Agreement has been duly authorized, executed and delivered by and on behalf of each such party and constitutes the legal, valid and binding agreement of said parties. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart.
24. ATTORNEYS’ FEES. If any claim or action is brought by either party hereunder against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover from the non-prevailing party, in addition to any other relief granted, reasonable attorneys’ fees and the expense of litigation.
25. GOVERNING LAW; VENUE. (a) This Agreement and any attachments or documents related thereto shall be governed, construed and enforced in accordance with laws of the State of California, excluding conflict of law rules, for all sales made or accepted by SITECH at its offices within such state and with the laws of the State of Oregon, excluding conflict of law rules, for all sales made or accepted by SITECH at its office within such state. For agreements made or accepted by SITECH in the State of California, each party hereby irrevocably submits to the personal and exclusive jurisdiction of the state courts of Alameda County, California and the United States District Court for the Northern District of California, for the purposes of any action, proceeding, suit or claim arising out of this Agreement. For agreements made or accepted by SITECH in the State of Oregon, each party hereby irrevocably submits to the personal and exclusive jurisdiction of the state courts of Multnomah County, Oregon and the United States District Court for the District of Portland in Portland, Oregon, regardless of which office within such state said agreement was made or accepted by SITECH. (b) Each party irrevocably and unconditionally waives any objection to the laying of venue as described herein.