The following are the terms and conditions (“Terms and Conditions”) for the sale of products (“Products”) by The Caster Guy LLC. (“The Caster Guy LLC”) to The Caster Guy LLC’s customers (“Customers”).
- Sales:All sales are expressly conditional on Buyer’s agreement to the standard terms and conditions on the two pages of this form. Any terms and conditions proposed by Buyer, which are inconsistent with or in addition to The Caster Guy LLC’s terms and conditions, are rejected, shall not be binding on Seller, and shall not be considered applicable to the sale or shipment of the merchandise referred to herein. Unless Buyer notifies Seller in writing to the contrary as soon as practicable after Buyer’s receipt hereof, acceptance of the terms and conditions hereof by Buyer shall be indicated, and, in the absence of such notification, the sale and shipment by Seller of the merchandise covered hereby shall be conclusively deemed to the subject to the terms and conditions hereof.
- Warranties:Goods sold by Seller are products of recognized manufacturers sold under their respective brand or trade name in accordance with their terms and conditions. Seller shall use its best efforts to obtain from each manufacturer, in accordance with the manufacturer’s warranty (copies of which will be furnished upon request) or customary practice, the repair or replacement of goods that prove defective in material, design, or workmanship. The foregoing shall constitute the exclusive remedy of Buyer and the sole obligation of Seller. Except as to title, SELLER GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR OTHERWISE. Seller shall not, under any circumstance be liable for any special, direct, indirect, incidental, exemplary, liquidated, or consequential damages to persons or property arising out of or connected with the transactions contemplated hereby or the design, manufacture, subsequent sale or use of the goods, including, but not limited to, loss or profit or revenue, loss of use of the products or any associated equipment, cost of capital, cost of substitute products, facilities, service or replacement power, down time costs, or claims of Buyer’s customers for such damages. Seller’s maximum cumulative liability relative to all other claims and liabilities, including that with respect to direct damages and obligations under any indemnity, whether or not insured, shall not exceed the cost of the goods or services paid for by Buyer giving rise to the claim of liability. If Buyer transfers title to or leases the products sold hereunder to any third party, Buyer shall indemnify and defend Seller and its suppliers against any such damages.
- Deliver, Title and Risk of Loss: Delivery dates are approximate and based upon receipt of all necessary information from Buyer and the timing of the manufacturer. Unless otherwise specified by Seller, delivery will be made and title will pass F.O.B. point of shipment to Buyer and each shipment or delivery shall be considered a separate and independent transaction. Risks of loss or damage passes to Buyer on delivery.
- Excusable Delays:Seller will notify Buyer promptly of any material delay and will specify the revised delivery timeframe as soon as practicable. Seller shall not be liable for delays in delivery or performance, or for failure to manufacture, third-party delays in manufacturing, failure to deliver or perform as a result of acts of God, fire, acts of civil or military authority, governmental priorities, strikes or other disturbances, floods, epidemics, war, riots, delays in transportation or car shortages or inability on account of causes beyond the reasonable control of Seller to obtain necessary materials, components, services or facilities, or any other cause beyond Seller’s reasonable control. In the event of any such delay there will be no termination and the date of delivery or performance shall be extended for a period equal to the time lost by the reason of the delay.
- Returns:Merchandise is not returnable without the written consent of Seller (RMA). Requests for permission to return must be made within thirty days (30-days) after receipt of shipment. Seller will assign an authorized number for approved returns which must appear on both the customer’s shipping container and the related debit memo. All authorized returns will be sent back to Buyer at Buyer’s expense unless otherwise noted on RMA. Return shipments must be prepaid and shipped in accordance with the instructions set forth on the return authorization form (RMA). Credit will be issued, less any transportation charges and service charges to cover handling, inspection, counting, repacking, etc., upon return of material in same condition as sold, and upon verification of quantities approved for return as stated on RMA. Return products are subject to a 15% restocking fee. Special Order items are non-returnable.
- Payments and Financial Conditions: Standard terms are Net 30-days from invoice date unless otherwise specified on Quotation, Order Confirmation and/or Invoice. A service charge of 1 1/2% per month, but not to exceed the highest amount lawfully allowed by contract in this state, shall be made on all sums due Seller which have not been paid within thirty (30) days from the invoice date, and Buyer agrees to promptly pay said service charge. If Seller commences litigation or employs attorneys to collect payment of any amounts due it from Buyer, Buyer agrees to pay all reasonable attorney’s fees and costs incurred by the Seller within thirty (30) days of demand made. Except to the extent otherwise specified by Seller in its quotation, prorata payments shall become due without setoff as shipments are made. If Seller consents to delay shipment after receipt of any specially ordered products, payment shall become due on the date when Seller is prepared to make shipment. In the event of any such delay, products shall be held at Buyer’s risk and expense. Any order for products by Buyer shall constitute a representation that Buyer is solvent and has the ability to pay its obligations as they become due. In addition, upon Seller’s request, Buyer will furnish a written confirmation to Seller’s satisfaction concerning its solvency at any time prior to shipment. If Buyer’s financial condition at any time does not justify continuance in Seller’s sole discretion of the work to be performed by Seller hereunder on the agreed terms of payment, Seller may require full or partial payment in advance. In the event of Buyer’s bankruptcy or insolvency, or in the event any proceeding is brought against Buyer, voluntary or involuntary, under any bankruptcy or insolvency laws, Seller shall be entitled to cancel any order then outstanding at any time during the period allowed for filing claims against the estate, and shall receive reimbursement for its proper cancellation charges in addition to any attorneys fees and costs incurred as a result. Seller’s rights under this paragraph are in addition to all rights as they are available to it at law or in equity.
- Disclosure of Information:Any information, suggestions or ideas transmitted by Buyer to Seller, or in performance hereunder are not to be regarded as secret or submitted in confidence except as may be otherwise provided in writing and signed by a duly authorized representative of Seller.
- Taxes:In addition to any price specified herein, Buyer shall pay the gross amount of any present or future sales, use, excise, value-added, or other similar tax applicable to the price, sale, or delivery of any product or services furnished hereunder or to their use by Seller or Buyer, or Buyer shall furnish Seller with a tax exemption certificate acceptable to the taxing authorities.
- Claims Against Seller:In order to give Seller a reasonable opportunity for investigation, any claim by Buyer against Seller based wholly or in part upon or any manner related to this agreement and/or merchandise sold hereunder shall be made in writing and delivered to Seller within (30) days after the date of sale or occurrence giving rise to the claim, whichever shall be later; otherwise such claims shall be waived. Each notice of claims shall set forth fully the facts on which the claim is based. Any action based on such claim or otherwise arising hereunder must be commenced and prosecuted within two years after the cause of action has accrued. The jurisdiction for the resolution of any disputes shall be the State of Nevada and the choice of law shall be Nevada law.
- General:Any products delivered by Seller hereunder will be produced in compliance with the fair Labor Standards Act of 1938 as amended and applicable. Seller will comply with applicable Federal, State, and local laws and regulations as of the date of any quotation, which relate to (i) non-segregated facilities and Equal Employment Opportunity (including the seven paragraphs appearing in Section 202 of Executive Order 11746 as amended) and (ii) Worker’s Compensation. Price and, if necessary, delivery will be equitably adjusted to compensate Seller for the cost of compliance with any other laws and regulations. The delegation or assignment by Buyer of any or all of its duties or rights hereunder without Seller’s prior written consent shall be void. Any representation, promise, course of dealing or trade usage not contained herein will not be binding on Seller. No modification, amendment, rescission, waiver or other change shall be binding on Seller unless agreed to and signed for in writing by Seller’s authorized representative. The validity, performance and all matters relating to the interpretation and effect of this agreement or any amendment hereto shall be governed by the Uniform Commercial Code as in effect in the State of Nevada. Waiver by Seller of any default by Buyer hereunder shall not be deemed a waiver by Seller of any default by Buyer which may thereafter occur.
- Paragraph Headings:Paragraph headings are inserted for convenience only and shall not be deemed to limit or affect the scope of the provisions contained therein.
