1. CONTRACT INFORMATION: If this Offer to Sell is issued by Seller prior to the issuance of a Purchase Order by Buyer, ACCEPTANCE OF THIS OFFER TO SELL IS EXPRESSLY LIMITED TO ACCEPTANCE BY BUYER OF ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN.
- (a) Any terms contained in Buyer’s Purchase Order or any other form or communication received from Buyer that are in addition to or different from the terms and conditions contained herein are expressly objected to and shall be deemed rejected by Seller, unless expressly accepted in writing by Seller. Unless Seller receives written notice from Buyer of any objection hereto within fifteen (15) days after the date of Buyer’s receipt of this Offer to Sell, and in all events prior to any delivery or other performance by Seller hereunder, any subsequent conduct of Buyer that expresses an intention to purchase the goods described herein shall constitute an unconditional acceptance by Buyer of all the terms and conditions of this Offer to Sell.
- (b) If Buyer issues a Purchase Order in response to or in acknowledgement of this Offer to Sell, which does not effectively state that it is expressly conditional on assent by Seller to all of the additional and different terms and conditions contained therein, and if this Offer to Sell and Buyer’s Purchase Order are in substantial agreement with regard to the “bargained terms” (Including, but not limited to, quantity, description, price, payment terms, shipping instructions, etc.), Buyer’s Purchase Order will constitute an acceptance of all of the terms and conditions of this Offer to Sell and the writings of the parties will establish a contract for the purchase and sale of the goods described herein.
- (c) If Buyer issues a Purchase Order in response to or in acknowledgment of this Offer to Sell, which effectively states that it is expressly conditional on assent by Seller to all of the additional and different terms and conditions contained therein, Seller does not affirmatively assent in writing to such terms and conditions, and Buyer accepts Seller’s performance hereunder, Buyer shall be deemed to have waived the express condition that all such additional and different terms and conditions be assented to by Seller. All Purchase Orders issued by Buyer will be subject to approval by Seller.
- (d) If this Offer to Sell is issued by Seller subsequent to the issuance of and in response to or in acknowledgment of a Purchase Order by Buyer, acceptance by Seller of such Purchase Order is expressly conditional on assent by Buyer to all additional and different terms and conditions contained here. If such Purchase Order effectively states that acceptance by Seller of such Purchase Order is expressly limited to the terms and conditions contained therein, Seller does not affirmatively assent in writing to such terms and conditions. If Buyer accepts Seller’s performance hereunder, Buyer shall be deemed to have waived the express condition that acceptance by Seller of such Purchase Order be limited to the terms and conditions contained therein.
2. CANCELLATION BY BUYER: Buyer shall not have the right to cancel or suspend all or any undelivered or unexecuted portion of this Offer to Sell. If, contrary to the prohibitions of this paragraph, Buyer expressly or, by Buyer’s actions or omissions, impliedly cancels or suspends all or any such undelivered or unexecuted portion of this Offer to Sell, Buyer agrees to make payment to Seller, immediately upon demand for payment by Seller, of all outstanding invoices (including charges for interest, packaging, and shipping) and of Seller’s expenses which in any way result from or are attributable to any such cancellation or suspension.
3. PACKAGING, LABELING AND SHIPPING: Unless and only to the extent otherwise agreed by Seller, Seller will package the goods, at Buyer’s expense, so as to avoid any damage in transit, identify the goods by displaying Buyer’s name and Purchase Order number on each unit or package shipped and ship the goods, at Buyer’s expense, at the then prevailing transportation rates for the mode of shipment requested by Buyer, if any, or selected by Seller. If the goods are shipped at Seller’s expense, Seller shall pay shipment charges based upon the transportation rates that are in effect for the designated route and carrier on the date of this Offer to Sell and Buyer shall pay Seller the difference, if any, between such shipment charges and the actual shipment charges incurred by Seller.
4. DELIVERY: Unless and only to the extent otherwise agreed by Seller, Seller shall deliver the goods to Buyer or Buyer’s agent EXW (Incoterms; a.k.a Ex-Works) at Seller’s plant or other point of shipment designated by Seller on the date of the availability of the goods for shipment, which date shall be determined in Seller’s sole discretion, or if applicable, at such other time and/or place as shall be specified pursuant to Buyer’s written instructions which are agreed to in writing by Seller. Regardless of whether Buyer or Seller is to pay shipment charges, Buyer hereby authorizes any truck, rail or other carrier to whom delivery of goods is made hereunder to act as Buyer’s agent for the purpose of acceptance of possession of such goods, allocation of risk of loss, and transfer of title. SELLER MAY, FROM TIME TO TIME, MAKE PARTIAL DELIVERIES OR CHANGE OR TEMPORARILY SUSPEND DELIVERY SCHEDULES. ESTIMATED DELIVERY DATES ARE APPROXIMATE AND ARE DEPENDENT UPON MANY FACTORS INCLUDING, BUT NOT LIMITED TO, SELLER’S ABILITY TO OBTAIN THE NECESSARY RAW MATERIALS, SELLER’S SUBCONTRACTORS, IF ANY, MEETING SCHEDULED DELIVERY DATES, AND SELLER’S PROMPT RECEIPT OF ALL INFORMATION NECESSARY TO PERMIT SELLER TO PROCEED WITH WORK IMMEDIATELY AND WITHOUT INTERRUPTION. SELLER SHALL HAVE NO LIABILITY FOR LIQUIDATED, INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE TO DELAYS IN DELIVERY OR DAMAGE OCCURING IN TRANSIT. Claims for loss or damage to goods in transit by common carrier must be made to such carrier and not to Seller. Claims for shortages, damages (other than those occurring in transit) or other errors in delivery must be made in writing to Seller within ten (10) days after receipt of each shipment. Failure to give such notice shall constitute acceptance of each such shipment and a waiver of all such claims by Buyer.
5. RISK OF LOSS AND TITLE: Risk of loss to goods will be borne by and title to goods will pass to Buyer from the point and at the time of delivery specified in paragraph 4 hereof.
6. FORCE MAJEURE: In the event of the existence, happening or continuance of any contingency preventing or substantially interrupting or curtailing the ability of Seller or Seller’s suppliers to perform the work required under this Offer to Sell including, but not limited to, fire, theft, accident, war, order, act, authority, regulation or request of or threat thereof by any federal, state or local unit of government or department or agency thereof, judicial action, industrial disturbance, shortage of labor, fuel, power, components, facilities or raw materials, delay of suppliers, act of or omission to act by Buyer, restriction or lack of transportation facilities, failure or delay in transportation, act of God, breakage or accident to machinery or equipment, involuntary or voluntary shutdown of Seller’s production facilities or any cause beyond the reasonable control of Seller, Seller shall not be under any obligation during the period of such prevention, interruption or curtailment to continue production or make delivery of any goods described herein. If any period of such prevention, interruption or curtailment to continue production or make delivery of any goods described herein is caused, in whole or in part, directly or indirectly, by an act of or omission to act by Buyer, Buyer shall pay to Seller all additional charges resulting there from. Seller will be entitled to an extension of time for performance of its obligations equal to the period of such prevention, interruption or curtailment. Upon the occurrence of any such contingency, Seller may, but is under no obligation to, allocate production and delivery among Seller’s customers. If Seller, in Seller’s sole discretion, determines that Seller’s performance hereunder would result in a loss to Seller on this sale, as computed under Seller’s normal accounting procedures, because of causes beyond Seller’s control, then Seller may terminate this Offer to Sell, in whole or in part, without liability for loss or damage of any nature whatsoever including, but not limited to, liquidated, incidental and consequential damages for any delay in the delivery of or failure to deliver the goods otherwise to be said to Buyer hereunder.
7. PRICES: Unless and only to the extent otherwise agreed by Seller, all prices for goods are exclusive of any charges for packaging, shipping, technical advice, or other necessary services incidental to Seller’s performance hereunder. All such charges will be made in accordance with rates established by Seller on or prior to the date on which the services to which they apply are rendered and are subject to change without notice at any time prior to such date. All prices for goods are subject to change without notice at any time prior to the date of the availability of the goods for shipment or, if applicable, such other time as shall be specified pursuant to Buyer’s written instructions, which are agreed to in writing by Seller, to prices prevailing on such date. If Seller’s price for the goods described herein is based upon delivery to and acceptance by Buyer of a specified quantity of goods, such price shall be subject to adjustment if Buyer does not accept the applicable quantities of goods at the times specified herein and Buyer will be invoiced at Seller’s price for such goods prevailing on the date of the availability of such goods for shipment without quantity discounts, if any, for the quantity of goods actually accepted by Buyer.
8. TAXES: All prices are exclusive of any applicable present or future domestic or foreign federal, state or local manufacturer’s, retailer’s, occupation, sales, use, excise or other similar taxes, duty, custom, inspection or testing fees, or any other taxes, fees, or charges of any nature whatsoever which may be imposed by any governmental authority on or which are measured by this transaction between Buyer and Seller. All such taxes shall be borne by Buyer and will be paid by Buyer to Seller upon submission of Seller’s invoices. In the event Seller is required to pay any such taxes, fees or charges, Buyer shall promptly reimburse Seller therefore upon submission of Seller’s invoices or, in lieu of such payment, Buyer shall provide to Seller at or prior to the time of contract formation an exemption certificate or other similar document acceptable to the governmental authority imposing such tax, fee or charge the effect of which is to exempt Seller from the duly to remit such taxes, fees or charges to such governmental authority.
9. CREDIT: All sales are subject to the approval of Seller’s credit department. Seller may, at any time and from time to time and without prejudice to Seller’s other legal and equitable remedies, suspend or terminate performance or delivery hereunder or require full or partial payment in cash or by letter of credit prior to delivery, security, guarantees or other adequate assurance satisfactory to Seller, when, in Seller’s opinion, the financial condition of Buyer or other grounds for insecurity warrant such action. In the event of Buyer: (i) becoming insolvent; (ii) being unable, or admitting in writing its inability, to pay its debts as they mature; (iii) failing to promptly lift any execution, garnishment or attachment of such consequence as will, in the judgment of Seller, impair the ability of Buyer to carry on its business operations; (iv) making a general assignment for the benefit of creditors or to an agent authorized to liquidate any amount of its property; (v) entering into an agreement of composition with its creditors; (vi) becoming the subject of an “order for relief” within the meaning of the U.S Bankruptcy Code; (vii) filing a petition in bankruptcy or for reorganization or to effect a plan or other arrangement with creditors under the provisions of the U.S Bankruptcy Code, or under any similar act in any domestic or foreign jurisdiction which may now be in effect or hereafter enacted; (viii) filing an answer to a creditor’s petition (admitting the material allegations thereof) for reorganization or to effect a plan or other arrangement with creditors; (ix) applying to a court for the appointment of a receiver for any of its assets; (x) having a receiver appointed for any of its assets (with or without the consent of Buyer) and such receiver not being discharged within sixty (60) days after his/her appointment; or, (xi) failing to make any payment hereunder when due, then the entire contract price hereunder, including, but not limited to, any and all charges for packing, shipping, and interest, shall immediately become due and payable without notice to Buyer.
10. INVOICES: Invoices will be rendered as of the date of the availability of all or any portion of the goods for shipment or, if applicable, at such other time as shall be specified pursuant to Buyer’s written instructions that are agreed to in writing by Seller or, if applicable, on the date specified in any invoice and or payment schedule agreed to by Seller.
11. PAYMENT: Unless Buyer and Seller agree to terms other than those specified herein, payment will be made in U.S. Dollars to the specified address noted on your invoice within thirty (30) days after the date of the availability of all or any portion of the goods for shipment or, if applicable, at such other time as shall be specified pursuant to Buyer’s written instructions that are agreed to by Seller in writing. Finance charges may apply on any overdue invoice. Finance charges are computed on the basis of 1.5% per month or 18% per annum, or the maximum amount permitted by law, whichever is less.
12. WARRANTIES: SELLER’S SOLE WARRANTY HEREUNDER SHALL BE TO PROVIDE COMMERCIALLY REASONABLE EFFORTS TO TRANSFER THE MANUFACTURER’S WARRANTY TO BUYER. THIS LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY SELLER AND, WHERE PERMITTED BY LAW, IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE OR NON-INFRINGEMENT, OR WARRANTIES AS TO THE ACCURACY, SUFFICIENCY OR SUITABILITY OF ANY TECHNICAL OR OTHER INFORMATION PROVIDED IN MANUALS OR OTHER DOCUMENTATION.
13. LIMITATION OF LIABILITY: (i) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SELLER SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO BUYER OR ANY THIRD PARTIES FOR LIQUIDATED, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR OTHER DAMAGES WHETHER IN AN ACTION BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SELLER IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. (ii) UNDER NO CIRCUMSTANCES SHALL SELLER’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR INDEMNITY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED TEN THOUSAND U.S. DOLLARS ($10,000 USD)). THIS LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS TO BUYER FOR CLAIMS OR DAMAGES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST SELLER IF MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED. (iii) IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THESE TERMS AND CONDITIONS WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH. (iv) NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, SELLER SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR EXCESS COSTS OF REPROCUREMENT.
14. NOTICES: All written notices, requests, demands, consents, certificates or other communications required or permitted to be given hereunder shall be sufficiently given when mailed by certified mail, return receipt requested, postage prepaid, addressed to Seller, Merlin Corporation, ______________________ and to Buyer at the most current address for Buyer in Seller’s possession. Either party may, by written notice provided ten (10) days in advance, at any time and from time to time, designate a different address to which notices shall be sent.
15. SUBCONTRACTING: Seller may, without the necessity of obtaining Buyer’s prior written consent, subcontract the production of all or any portion of the goods covered by this Offer to Sell.
16. WAIVER: No waiver shall be implied by Seller’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege granted to Seller hereby. No express waiver by Seller shall be construed as waiving any breach hereunder or the performance of any the terms or conditions hereof not specified in the express waiver, and then only for the time and to the extent stated therein. One or more waivers of any covenant, term or condition hereof shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition.
17. SEVERABILITY: If any covenant, term or condition hereof or the application thereof to any circumstance or person shall, to any extent, be held invalid or unenforceable by any court of competent jurisdiction, the remaining valid and enforceable covenants, terms and conditions hereof and the application of such invalid or unenforceable covenant, term or condition to circumstances or persons other than those as to which it has been held invalid or unenforceable shall not be affected thereby and each remaining valid and enforceable covenant, term and condition shall be valid and enforceable to the fullest extent permitted by law.
18. ENTIRE AGREEMENT: The terms and conditions contained in this Offer to Sell, together with all additional terms and conditions contained on all attachments hereto and all amendments hereof (collectively this “Offer to Sell”), shall constitute the complete and exclusive statement of the terms and conditions of the contract between Buyer and Seller for the purchase and sale of the goods to be purchased and sold hereunder and may hereafter be modified, amended or changed only by written instrument or change order executed by the duly authorized representatives of both Buyer and Seller. No statements, representations, writing, understandings or agreements by either party or any representative of either party, either in negotiations leading to this Offer to Sell or during the term hereof shall be binding or of any force or effect. No course of performance, course of dealing or usage of trade shall be relevant to explain or supplement this Offer to Sell.
19. STATUTE OF LIMITATIONS: ANY ACTION, WHETHER BASED UPON THEORIES OF BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, WITH REGARD TO THE GOODS OR SERVICES DELIVERED HEREUNDER MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
20. GOVERNING LAW: This agreement shall be governed and construed according to the internal laws of the State of California. The terms and conditions contained herein shall be applicable to sales of goods only, to mixed sales of goods and services (regardless of which factor predominates), and to sales of services only and, in either of the latter two cases, the term ‘goods’ as used herein shall be construed as including all services rendered hereunder, unless the context clearly indicates otherwise.
21. FORUM AND JURISDICTION: Seller and Buyer hereby agree that any legal action deemed necessary by either party to this Offer to Sell shall be brought in either the federal or state courts of the State of California, in or for Santa Clara County, California, and hereby consent to the personal jurisdiction of such courts in any such action over the parties hereto. If, contrary to the provisions of this paragraph, Buyer commences any legal action involving this Offer to Sell or the goods provided hereunder in any forum other than either of those specified above, Seller shall be entitled to the dismissal of such action based upon the agreement of the parties contained in this paragraph.