SALES AGREEMENT AND LIMITED WARRANTY
SALES AGREEMENT. The terms of this Agreement govern all past, present and future sales by 101 Pipe & Casing, Inc. (''101 ''), to you, the Buyer. All sales are final. This document constitutes Buyer's agreement that any additional or different terms contained in Buyer's oral or written offer or acceptance shall not apply to any sales or other transactions between 101 and Buyer. In other words this document contains the sole and exclusive terms for this and all future sales. No agreement between 101 and Buyer shall create a third party beneficiary agreement. No general contractor or other third party may rely upon performance of this Agreement by 101.
QUOTATIONS. Quotations from 101 shall be considered an offer to sell, however quoted prices are subject to change after thirty days. Purchase orders from Buyer shall be considered acceptance of 101 's offer to sell as stated in 101 's quote, confirmation, or invoice. No verbal statements, promises, or understandings shall be binding on 101 or Buyer, until or unless confirmed in 101's written quotation, confirmation, or invoice and then the provisions of this Agreement shall constitute the sole and entire agreement.
PAYMENT. Payment is requested within 30 days of the date of the invoice. 101 shall be entitled to seNice charges (a time-price differential) on any invoice not paid within thirty days. Service charges shall be charged at the rate of 1.5% per month. Payments on any invoice that is 60 days or older shall be made to 101 at 16027 Ventura Blvd., Suite 503 Encino, California 91436. Invoices shall not be considered past due until the 90th day after the date of the invoice. However, failure to pay invoices within the requested 30 days may result in the cessation of credit sales or in the reduction of the amount of credit allowed. In the event Buyer fails to make payment on any invoice within 90 days of invoice date, Buyer shall be in breach of this Agreement and 101 may elect to declare Buyer's entire account immediately due and payable.
PRICE. An invoice will be mailed to Buyer after the goods are delivered. If Buyer believes that any price is incorrect, Buyer must notify 101 , in writing, within ten days of the date Buyer receives the invoice or the invoice price shall conclusively be presumed to be the agreed upon price. The notice must be sent to 101 by certified return receipt requested mail.
DELAYS. Any and all delivery dates given by 101 are estimates only. Buyer is cautioned to make allowance for delays and Buyer is warned that 101 shall not be liable to Buyer, nor to anyone else, for delays.
CLAIMS PROCEDURE. Buyer must make any claim for shortage, defect, nonconformity, damage, nondelivery, or for anything else to 101, in writing, by certified return receipt requested mail, within ten days of the date Buyer discovered or could have reasonably discovered the problem, but in no event later than thirty days from the date the goods are delivered (or, in the case of non-delivery, within thirty days of the date of the priced invoice). Buyer's failure to strictly comply with the claims procedure set forth in this section shall be a complete bar to any claim or to any setoff. Any suit against 101 must be filed within one year after the invoice date. Failure to file suit within one year shall be a complete bar to any setoff or to any recovery against 101.
RETURNS. Goods may not be returned to 101 for credit without 101's prior written consent. Buyer must examine the goods prior to processing, converting, altering or otherwise using the goods. If the claimed defect, non-conformity, or damage could have been discovered through the exercise of reasonable investigation and care before they were used, they may not be returned for credit.
REPRESENTATIONS AND WARRANTIES. There have been no representations or warranties made by 101 with respect to the goods listed on the front hereof, except that the goods conform to the description of quantity and kind. All implied warranties of merchantability and fitness for a particular purpose and all other implied warranties are excluded.
LIMITATIONS OF LIABILITY. Any liability of 101 which relates to the sale, fabrication, delivery, use or non delivery of any goods sold by or furnished by 101, whether arising out of or related in any way to any contract, negligence, strict tort, under any warranty or otherwise, shall be limited to 101's choice of any one of the following: (a) the repair of goods by 101; (b) the replacement of the goods; (c) the cancellation of the contract, Buyer's return of the goods to 101, and 101 's refund of the purchase price to Buyer; or, $10,000. These remedies are exclusive. In addition, 101 shall not, under any circumstances, be responsible for special, economic, consequential or incidental damages such as, but not limited to: loss of or damage to other property; loss of profits, revenue, or reputation; loss of purchased or replaced goods; or damages caused by delays, back-charges, or loss of use. The goods are sold as is.
ATTORNEYS’ FEES AND SUIT. In the event of a lawsuit brought by either Buyer or 101 related to the sale of the goods, the successful party shall be entitled to: attorneys’ fees in the amount of 40% (but not less than $1,500.00) of the claim, if the claim is $5,000.00 or less; or, attorneys’ fees in the amount of 33.3% of the claim, if the claim is over $5,000.00. If the defendant files an Answer (even if the Answer is allowed to be filed by the Court after a default has been entered and/or even if the Answer is immediately stricken), the successful party shall be entitled to reasonable attorneys’ fees. In addition, the successful party shall be entitled to request and receive post judgement collect cost and attorneys’ fees, whether the judgment awarding attorneys’ fees was based on the percentage formula or on the reasonable attorneys’ fee provision. Any suit, whether arising from contract, tort or otherwise, must be brought in the Los Angeles Superior Court (Northwest District, Van Nuys), or in the Federal District Court in Los Angeles. Buyer shall pay $50.00 to 101 for each check issued by Buyer and returned unpaid to 101. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of California.
SEVERABILITY. If any part of this Agreement is held invalid or unconscionable, that part shall be fully severable, and the remaining provisions shall remain in full force and effect.
ENTIRE AGREEMENT. This document, any signed written agreement, and any signed credit application, constitute the entire understanding between Buyer and 101 and supersede all prior oral representations, warranties, statements, promises and understandings with respect to the subject matter hereof, and may not be modified or terminated, except by a document, in writing, signed by the parties hereto. None of the parties hereto have made any promises and representations to induce any party to enter into this Agreement and no party hereto is relaying upon any promise or representation not contained in this Agreement, in a signed credit application, or in any other document referred to herein. In the event of a conflict, the provisions of this document are controlling.
WAIVERS. 101 may delay exercising or may omit to exercise any right or remedy, without waiving that or any other past, present, or future right or remedy, except in writing by 101. 101’s consistent waiver of any right or remedy shall not modify the terms of this Agreement, nor establish a “course of dealing” which could be construed as a waiver of any of the provisions of this Agreement.
COLLATERAL RECOVERY. If 101 seeks to recover payment from a collateral source (such as foreclosure against real property on a Mechanic’s Lien claim), 101 shall be entitles to deduct all of its costs and actual attorneys’ fees (whether or not some or all of those fees are included in a Court award or in a settlement agreement) from any recovery before determining the amount to be credited against Buyer’s account. Furthermore, the the event that 101 is unsuccessful in its attempt to recover from a collateral source, 101’s reasonable attorneys’ fees, incurred in the attempt, may be added to Buyer’s account. 101 may proceed against a collateral source at any time regardless of the aging of Buyer’s invoices.
INDEMNIFICATION. Buyer shall defend, indemnify and hold 101 harmess from and against any third party claims, based on tort or breach of contract related to the sold goods.
Copyright © 2005 by George Sykulski, PLC