Terms and Conditions of Sale
Offer, Governing Provisions and Cancellation
These terms and conditions of sale, together with the Sales Acknowledgment, Quotation or Invoice that references or incorporates them, constitute an offer or counter‑offer by Tecate Industries, Inc. dba Tecate Group ("Seller") to sell the goods and/or services described in Seller's Sales Acknowledgment, Quotation or Invoice to the customer to which this offer is addressed ("Customer") in accordance with these terms and conditions. This offer is not an acceptance of any offer made by Customer, and is expressly conditioned upon assent to these terms and conditions. ALL SALES ARE SUBJECT TO THESE TERMS AND CONDITIONS OF SALE. ACCEPTANCE OF SHIPMENT OR PAYMENT BY CUSTOMER CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS OF SALE. No additional or different terms or conditions will be binding upon Seller, and Seller objects to any and all additional and different terms or conditions contained in any purchase order, request for quotation or other forms or communications from Customer. These terms and conditions of sale, together with Seller's Sales Acknowledgment, Quotation or Invoice that references or incorporates them, shall be the binding "Contract" between Seller and Customer. No order may be cancelled or altered by Customer except upon terms and conditions acceptable to Seller, as evidenced by Seller's written consent. In the event of such an approved cancellation by Customer, Seller shall be entitled to payment of the full price, less the amount of any expenses saved by Seller by reason of the cancellation.
Prices and Payment
All prices are subject to change upon notice; and the price of goods on order but unshipped will be adjusted to the price in effect at the time of shipment. Unless otherwise provided on Seller's Sales Acknowledgment or Invoice, payment is due upon Customer's receipt of Seller's invoice. Interest will be charged at the lesser of (i) the rate of 18% per year, or (ii) the highest rate permitted by applicable law, on accounts that are past due.
Taxes and Other Charges
Any manufacturer's tax, occupation tax, use tax, sales tax, value-added tax, excise tax, duty, tariff, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and Customer shall be paid by Customer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee, interest or charge, Customer shall reimburse Seller therefor upon demand.
Delivery, Claims and Force Majeure
Unless otherwise agreed by Seller in writing: (i) for domestic U.S. shipments, shipping terms shall be F.O.B. (as that term is used in the Uniform Commercial Code) Seller's shipping point, freight collect; and (ii) for international shipments, shipping terms shall be EXW Seller's shipping point (Incoterms 2010). Delivery of goods to a carrier at Seller's plant or other shipping point shall constitute delivery to Customer; and regardless of shipping terms or freight payment, Customer shall bear all risk of loss or damage in transit. Seller reserves the right to make delivery in installments, unless otherwise expressly agreed by Seller; all such installments shall be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Customer of its obligations to accept remaining deliveries. Claims for shortages or other errors in delivery must be made in writing to Seller within 5 calendar days after receipt of shipment, and failure to make such claims within said time period shall constitute unqualified acceptance and a waiver of all such claims by Customer. Claims for loss of or damage to goods in transit must be made to the carrier and not to Seller.
All delivery dates are approximate. Seller shall not be liable for any damage, loss or penalty as a result of any delay in delivery or failure to deliver due to any cause beyond Seller's reasonable control, including, without limitation, any act of God, act of Customer, embargo or other governmental act, failure to act, regulation or request, fire, flood, hurricane or other severe storm, accident, strike, slowdown, war, terrorist act or threat, riot, delay in transportation, or inability to obtain necessary labor, materials, components or manufacturing facilities. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost because of the delay. Customer's exclusive remedy for other delays and for Seller's inability to deliver for any reason shall be rescission of this Contract with respect to undelivered quantities.
If the goods are not shipped within 15 calendar days after notification to Customer that they are ready for shipping, for any reason beyond Seller's reasonable control, including Customer's failure to give shipping instructions, Seller may store such goods at Customer's risk in a warehouse or yard or upon Seller's premises, and Customer shall pay all handling, transportation and storage costs at the prevailing commercial rates upon submission of invoices for such costs.
Seller may at any time make such changes in design, materials and/or construction of goods as shall constitute an improvement in the judgment of Seller. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers.
Seller warrants goods that are supplied under this Contract to be free from defects in materials and workmanship for a period of 90 calendar days from date of shipment. If within such period any such good shall be proved to Seller's satisfaction to be defective, such good shall be repaired or replaced or Seller shall credit Customer for the price paid by it for such good, at Seller's option. Such repair, replacement or credit shall be Seller's sole obligation and Customer's exclusive remedy, and shall be conditioned upon Seller's receiving written notice of any alleged defect within the above warranty period and within 10 calendar days after its discovery and, at Seller's option, return of such goods to Seller, F.O.B. Seller's factory (or DDP Seller's factory (Incoterms 2010) for international transactions). THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED; AND SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
Any description of the goods (whether in writing or made orally by Seller or Seller's employees or agents), specifications, datasheets, samples, models, bulletins, drawings, diagrams, engineering sheets or similar materials used in connection with Customer's order are for the sole purpose of identifying the goods and shall not be construed as an express warranty. Any suggestions by Seller or Seller's employees or agents regarding use, application or suitability of the goods shall not be construed as an express warranty unless confirmed to be such in a writing signed by Seller.
Goods ordered on a Non-Cancelable Non-Returnable ("NCNR") basis cannot be returned to Seller. Other goods may be returned to Seller only if and when Customer obtains Seller's advance written permission, upon terms acceptable to Seller. Returned goods must be securely packaged to reach Seller without damage and must be properly identified and marked with the Return Material Authorization (RMA) number issued by Supplier; any cost Seller incurs to put returned goods in marketable condition will be charged to Customer.
Limitations of Liability; No Consequential Damages; Indemnity
Seller's liability with respect to the goods and/or services sold under this Contract shall be limited to the warranty provided in the "Warranty; Disclaimer" section of these terms and conditions, and, with respect to other performance of this Contract, shall be limited to the Contract price. SELLER SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO THIS CONTRACT OR ANY GOODS SOLD OR SERVICES RENDERED BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property or personal injury damages, penalties, administrative fees, overhead, special or punitive damages, damages for lost profits or revenues, loss of use of goods or any associated products or equipment, cost of capital, cost of substitute goods, facilities or services, down‑time, shut‑down or slow‑down costs, or for any other types of economic loss, or for claims of Customer's customers or any third party for any such damages, costs or losses. SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR CONTINGENT DAMAGES, WHICH ARE DISCLAIMED BY SELLER.
Customer shall defend, indemnify and hold harmless Seller against any and all losses, liabilities, damages and expenses (including, without limitation, attorneys' fees and other costs of defending any action) which Seller may incur as a result of any claim by Customer, its customers or others arising out of or in connection with the goods and/or services sold under this Contract and based on product or service defects not proven to have been caused solely by Seller's negligence.
Any datasheets, drawings or samples submitted by Seller to Customer shall remain solely owned by Seller, shall be treated as Seller's confidential information unless Seller has in writing indicated a contrary intent, and shall be returned to Seller upon demand. No use or disclosure of such datasheets, drawings or samples, or any design or production techniques revealed thereby, shall be made by Customer without the express, prior written consent of Seller.
Any property of Customer placed in Seller's custody for performance of this Contract is not covered by Seller's insurance, and no risk is assumed by Seller in the event of loss of or damage to such property by fire, water, burglary, theft, civil disorder, accident or other cause.
Any dies, jigs or tools which Seller manufactures or acquires for performance of this Contract shall remain solely owned by Seller, notwithstanding any charges for such dies, jigs or tools. Tool charges convey to Customer the right to have the tools, dies or jigs used by Seller for performance of this Contract, but they do not convey title or right of possession. Seller shall be responsible for routine maintenance and repair of such tools, dies and jigs. Major overhauls, replacements or changes shall be charged to Customer.
Any and all disputes arising out of this Contract or its performance or breach, or out of goods sold or services rendered by Seller, that are not resolved through good-faith negotiations of the parties shall be resolved through binding arbitration in San Diego, California, U.S.A. under the rules of the American Arbitration Association. The arbitration proceedings shall be conducted in the English language by a single neutral arbitrator who is fluent in English. This provision shall not impair the right of either party to seek injunctive relief from any court of competent jurisdiction, pending and/or in aid of arbitration, in the event that party is confronted with a genuine risk that it will suffer irreparable injury before relief can reasonably be anticipated in the arbitral forum.
Fair Labor Standards Act Certificate
Seller hereby certifies that the goods sold under this Contract were produced in compliance with all applicable requirements of sections 6, 7, and 12 of the Fair Labor Standards Act, as amended, and all applicable regulations and orders of the U.S. Department of Labor issued under section 14 thereof.
THIS CONTRACT AND THESE TERMS AND CONDITIONS SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SELLER AND CUSTOMER, SUPERSEDING ANY AND ALL PRIOR ORAL AND WRITTEN NEGOTIATIONS AND UNDERSTANDINGS, AND SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE INTERNAL LAWS OF THE STATE OF CALIFORNIA, U.S.A. (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS). THERE ARE NO CONDITIONS AFFECTING THIS CONTRACT THAT ARE NOT EXPRESSED IN THIS CONTRACT. THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS CONTRACT SHALL NOT BE GOVERNED BY THE PROVISIONS OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
Revision: November 15, 2016