CLABO USA, INC. GENERAL TERMS AND CONDITIONS OF SALE
- GENERAL – These General Terms and Conditions of Sale (the “Terms”), together with the sales quote (the “Quote”) govern, to the exclusion of all other terms, the sale of the Clabo USA, Inc. (the “Seller”) products (the “Products”) to the Customer. “Customer” is defined as the direct purchaser of the Products from Seller. The Terms shall prevail over any conflicting clauses contained in Customer’s general terms and conditions of purchase, which shall have no effect. The Terms supersede any and all previous agreements and understandings, whether written or oral, between the parties with respect to the subject matter. In the event of contradiction between the Terms and the Quote, the Terms shall prevail. No modification of these Terms shall be considered as accepted unless agreed to by the parties in a written amendment making reference to the provision so amended.
- CONFIRMATION OF ORDERS – Purchase orders (the “Orders”) and executed Quotes for the Products will only be binding on Seller upon Seller’s acceptance (the “Acceptance”) by either (i) Seller’s written order confirmation (the “Order Confirmation”) or (ii) Seller starting to carry out the Customer’s order.
- CANCELLATION OF ORDERS AND RETURN POLICY – All Orders and executed Quotes, once Accepted by the Seller, are final and cannot be cancelled. Products, once installed at Customer’s premises, cannot be returned. No Product shall be returned to or accepted for return by Seller without prior written authorization from Seller. All approved returns are subject to Seller’s inspection upon receipt. Credit will not be allowed for damaged or used material. Seller in its sole discretion, may apply standard restocking charges for the returned Products value. Standard restocking charges are 25% of Purchase Price (as defined below) for stocking models, and 50% of Purchase Price for built-to-order models. All Products authorized for return are to be shipped prepaid to Seller. Customer’s deposits are not refundable.
- SHIPMENT AND RISK OF LOSS – Shipping terms shall be FOB Hayward, California, and the risk of loss passes in accordance with such terms. All shipping and delivery dates are: (a) Subject to Customer providing complete shipping and delivery instructions in such a manner as to reach Seller at its main office in Hayward, California, timely before the date of any shipment and delivery specified in the Quote; and (b) to be considered approximate and not of the essence, since the ability of Seller to complete and deliver the Products ordered by such date may be dependent upon conditions over which Seller has no reasonable control or which it cannot predict exactly. In no event shall Seller be liable for any actual, special or exemplary damages of any kind, known and unknown, anticipated and non-anticipated, including without limitation, lost profits or lost production resulting from delays in production, shipment or delivery.
- NO LIABILITY FOR DELAY IN DELIVERY – Seller shall not be liable for damages or costs that Customer incurred for delay in delivery of the Products.
- PRODUCT FEATURES – Seller shall have the right to modify the designs and/or specifications of the Products in any moment without notice to the Customer. In the event of any such change, Seller shall have the right to supply the Products so modified.
- PACKAGING – Products will be supplied with Seller’s customary packaging.
- INSPECTION – Customer shall inspect the Products upon their arrival at the delivery destination and shall within eight (8) calendar days after delivery give written notice to Seller of any claim for damages, defects, differences in quantity or nonconformity. Failure to give such notice within said period shall constitute irrevocable acceptance of the Products and acknowledgment that the Products have been received by Customer in good condition and free of damages.
- TITLE AND RIGHT OF POSSESSION – Title to the Products shall remain with Seller until the Purchase Price has been paid in full.
- PAYMENT – The full purchase price for the Products (the “Purchase Price”) is due and payable according to the conditions set forth in the Quote. If any payment is not made when due, in addition to Seller’s other rights and remedies Customer shall be liable for late interest charge as set forth in the Quote. In case of dispute, Customer shall have no right to setoff or withhold any payment due.
Purchase Prices may be increased by Seller in the event of any variation in costs, even if after Acceptance.
- CUSTOMER DEFAULT – In addition to any other remedy available to Seller, if (i) Customer defaults in payment of any part of the Purchase Price when due, (ii) Customer fails to perform its obligations under the Terms and/or the Quote, (iii) Customer becomes insolvent or bankrupt or a petition for appointment of a receiver is filed by or against Customer, (iv) Customer makes an assignment for the benefit of its creditors, or (v) Seller reasonably deems that collection of the Purchase Price is insecure, then the full amount of the Purchase Price then unpaid shall become immediately due at the sole option of Seller, and if not paid immediately, Customer shall return the Products to Seller on demand and at Customer’s sole cost. Seller shall retain all payments of the Purchase Price made prior to such an event as liquidated damages and not as a penalty.
- INSTALLATION – Customer shall provide the carrier full and free access to the installation site, and suitable and safe space for the storage of the Products. Customer will unload, unpack and prepare the Products for installation. The installation shall be performed by Customer, its personnel, or by an independent contractor chosen by Customer at the Customer’s expense. Customer agrees that Seller shall not be held liable for damages to the Products caused by Customer’s personnel or chosen independent contractor during the installation.
Customer shall be the sole party responsible, at its expense, for the installation of the Products and for the preparation of the installation site, including any required structural alterations. The installation site shall be in compliance with all applicable safety, electrical, and building codes. The sufficiency of any installation site plans shall be the responsibility of Customer. Customer, at its expense, shall obtain all permits and licenses required by federal, state, or local authorities in connection with the installation and operation of the Products.
SELLER MAKES NO WARRANTY AND ASSUMES NO LIABILITY FOR THE FITNESS OR ADEQUACY OF THE SITE IN WHICH THE PRODUCT IS TO BE INSTALLED OR USED OR THE FITNESS OR ADEQUACY OF ANY DRAWINGS FURNISHED BY SELLER.
- LIMITED WARRANTY (a) The Products are guaranteed against defects in materials and workmanship for a period (the “Warranty Period”) of ninety (90) calendar days from delivery FOB. The Warranty Period for the model “Italiana” is twelve (12) months from delivery FOB. The limited warranty shall not apply if (i) the Products are not used for the intended purpose and are not installed, used, or maintained in accordance with the Installation and Maintenance Instructions provided by Seller (the “Seller Manual”), (ii) any such defect results from causes external to the Product after delivery or use of non-original spare parts, or (iii) the Product has been modified without the prior written consent of Seller. Seller’s obligation under this warranty shall be limited, at its sole option, to the repair or replacement of any defective Product. Seller shall not be responsible for the cost of removal or installation of any such product found to be defective or shipment of the replacement product. If requested by Seller, Customer shall return any Products found to be defective to Seller for inspection once an authorization number is granted from Seller. Normal wear items are excluded from this warranty. Seller shall not be liable under this warranty unless the complaint is submitted promptly after discovery of the defect, customer provides a detailed description of the problem, and Seller establishes to its sole satisfaction that the Product has been properly installed, maintained and operated. The remedy set forth in this Warranty shall be the Customer’s sole and exclusive remedy for claims that arise out of or relate to the Product. The Customer waives any other right or remedy, whether in contract (for breach of contract, breach of warranty or otherwise), in tort (for negligence, strict liability, misrepresentation or otherwise), in equity, under any statute, rule or regulation or upon any other basis. (b) SELLER HAS MADE AVAILABLE TO CUSTOMER THE SELLER MANUAL. ANY RESALES OR INSTALLATIONS BY CUSTOMER OF THE PRODUCTS TO THIRD PARTIES MUST BE ACCOMPANIED BY THE ORIGINAL SELLER MANUAL OR A COMPLETE REPRODUCTION OF THE SAME. CUSTOMER SHALL BE RESPONSIBLE FOR ANY DAMAGES WHICH MAY DERIVE FROM CUSTOMER’S FAILURE TO MAKE THE SELLER MANUAL AVAILABLE TO THIRD PARTY PURCHASERS. (c) NO OTHER WARRANTIES. THE WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED AND OF ALL OTHER WARRANTIES OR LIABILITIES OF ANY KIND. SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR SELLER ANY OTHER OBLIGATION, WARRANTY OR LIABILITY IN CONNECTION WITH THE PRODUCTS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, CUSTOMER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE AND SHALL NOT BE DEEMED TO HAVE MADE, AND HAS EXPRESSLY DISCLAIMED, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE FOR ANY PARTICULAR PURPOSE OF THE PRODUCTS OR ANY PART THEREOF. THE SELLER DISCLAIMS ANY WARRANTY IF THE PRODUCT HAS NOT BEEN PROPERLY INSTALLED, USED OR MAINTAINED, OR IF SPARE PARTS AND COMPONENTS NOT MANUFACTURED BY OR ON BEHALF OF SELLER HAVE BEEN USED.
- LIMITATION OF LIABILITY – NOTWITHSTANDING ANYTHING IN THE TERMS AND THE QUOTE TO THE CONTRARY, WHETHER SUCH LIABILITY IS A RESULT OF A BREACH OF CONTRACT, A BREACH OF WARRANTY, OR OTHERWISE, SELLER’S LIABILITY IS LIMITED TO THE VALUE OF THE PRODUCT, AND IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY PUNITIVE, INCIDENTIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES RESULTING FROM LOSS OF USE OF THE PRODUCT, LOSS OF PRODUCTION, OR LOSS OF PROFITS OR INCOME OR LOSS OF BUSINESS OPPORTUNITY. SELLER SHALL NOT BE LIABLE FOR DAMAGES OF CUSTOMER ARISING OUT OF DEFECTS CAUSED BY IMPROPER USE OF THE CUSTOMER’S PRODUCTS BY CUSTOMER OR REPAIRS INCORRECTLY CARRIED OUT BY CUSTOMER OR OTHER THIRD PARTY, FOR DAMAGES NOT CAUSED BY PRODUCTS SUPPLIED BY SELLER, OR DERIVING FROM THIRD PARTIES’ EQUIPMENT OR PARTS, AND SHALL NOT BE RESPONSIBLE FOR PROVIDING ANY TYPE OF SERVICES ON SUCH EQUIPMENT OR PARTS.
- INDEMNITY – Customer shall indemnify, defend and hold harmless Seller, and its officers, directors, employees and agents from and against any losses, liabilities, damages, demands, obligations, fines or civil penalties, expenses, costs, and fees (including, but not limited to, court costs and reasonable attorney’s fees) of whatsoever kind and nature (collectively, the “Losses”), imposed on, incurred by or asserted against Seller, its officers, directors, employees and agents, in any way relating to or arising out of (a) the use, operation, possession or disposition of the Products by Customer, (b) the willful misconduct or gross negligence of Customer or any of its officers, directors, employees or agents, or (c) the negligence of Customer or any of its officers, directors, employees or agents, to the extent that Losses are caused by such negligence.
- TRADEMARK; IP – Customer acknowledges Seller’s exclusive right, title and interest in and to the Seller trademarks and any and all Seller’s intellectual property rights pertaining to the Products. Customer shall not take any act or step impairing Seller’s intellectual property rights or do anything that may otherwise adversely affect the Seller’s intellectual property rights.
- FORCE MAJEURE – Seller shall not be responsible for delays or failure to fulfill any obligation under the Terms and the Quote due to strikes, fire, acts of nature, acts of God, embargoes, currency restrictions, labor shortages, war, terrorism, epidemics, civil riot, import or export restrictions, shortage of materials or labor, or any other cause beyond Seller’s reasonable control, even if Seller knew, had reason to believe, or was advised of the possibility of any such cause.
- SECURITY INTEREST – Customer hereby grants to Seller a purchase money security interest in the Products until all payments have been made. Customer hereby grants to Seller a first priority security interest in the Products until the Purchase Price has been paid in full. Seller shall have the right to file a UCC-1 Financing Statement to perfect a security interest on all or any portion of the Products, at any time.
- TAXES. DUTY AND PERMITS – Sales tax, value added, property, use, excise, occupational tax or any other Federal, state or municipal tax, duties or surcharges, permit fees, registration and inspection fees and costs have not been included in the Purchase Price, and Customer hereby assumes and agrees to pay and/or reimburse Seller for any of the above taxes, assessments, duties, or fees.
- WAIVER – The failure of either party to enforce at any time any of the provisions of the Terms and of the Quote shall not be construed to be a waiver of such provisions or of the right of such party thereafter to enforce any such provisions. The Terms and of the Quote are deemed to be fully set forth herein, and no agent, salesman, or other party, is authorized to bind Seller by an agreement or warranty not set forth herein. The parties’ status is that of independent contracting vendor and Customer. In the event any provision of these Terms or of the Quote proves to be invalid or unenforceable, such provision shall be disregarded and the non-conflicting valid provisions shall remain in full force and effect.
- GOVERNING LAW; DISPUTES; ATTORNEYS’ FEES – These Terms and the Quote shall be governed by and construed in accordance with the laws of the State of California, USA, exclusive of its conflict of law provisions. The Courts of California shall have exclusive jurisdiction over any dispute arising out of or in connection with this Agreement. The prevailing party shall be entitled to recover reasonable attorney’s fees and costs from the other party.
- ENTIRE AGREEMENT – These Terms and the Quote represent the entire integrated agreement between Seller and Customer, and supersede all prior negotiations, representations or agreements, express or implied. The Terms and the Quote may be amended only by written instrument signed by Seller and Customer.