Dated as of June 22nd, 2020
All orders accepted by Ahida Correale, LLC (“we”, “us” or “Supplier”), and all sales transactions are expressly subject to the following terms and conditions of sale (these “Terms”), which may not be varied or added to except as expressly set forth in a written contract signed by an authorized representative of Supplier. Except as expressly agreed in writing by Supplier, these Terms shall prevail over any conflicting or additional terms or conditions contained in any other documentation related to the subject matter of these Terms and expressly exclude any terms and conditions contained in any purchase order or other document issued by any purchaser, which shall not be binding on Supplier. Any and all prior proposals, negotiations and representations, if any, are merged herein. No failure of Supplier to raise objections to any inconsistent or additional terms shall constitute a waiver of these terms and conditions of sale.
We welcome orders by email or other method of transmission made available by us. We may, in our sole discretion, accept or reject any purchase order.
We may accept any purchase order by confirming the order (whether by written confirmation, invoice, or otherwise) or by delivering any applicable products, whichever occurs first.
Each purchase order should specify the following information: (a) a list of products to be purchased; (b) quantities ordered; and (c) the delivery point.
No purchase order is binding on us unless accepted as provided in these Terms.
We may, in our sole discretion, without liability or penalty, cancel any order accepted by us, in whole or in part.
All orders received and accepted are considered binding legal obligations subject to these Terms.
Prices shown on any published price lists and/or other published literature issued by Supplier are not unconditional offers to sell, and are subject to change without notice. Prices shall be subject to adjustment to those in effect at the time of acceptance. All prices are FCA Supplier’s facility, per Incoterms® 2010 Rules.
Each buyer must pay all amounts due to Supplier, including costs of shipment and any requested insurance, for any order at the time the order is placed and in advance of Supplier’s shipment of any applicable products. Each buyer must make all payments in United States dollars in immediately available funds as instructed by Supplier.
SHIPPING CHARGES, INSURANCE AND TAXES:
Each buyer must pay for shipping charges and insurance costs for any order. For the avoidance of doubt, unless requested to do so in writing and confirmed to a buyer in writing, Supplier is under no obligation to procure insurance on any buyer’s behalf, and in all cases, each buyer shall pay all premiums and costs incurred in connection with procuring any such requested insurance. All prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by a buyer under these Terms. Each buyer is responsible for all such charges, costs, and taxes; provided, that, no buyer shall be responsible for any taxes imposed on, or regarding, Supplier’s income, revenues, gross receipts, or real or personal property or other assets.
Unless expressly agreed to by Supplier in writing, Supplier shall select the method of shipment of and the carrier for the products. Supplier may, in its sole discretion, without liability or penalty, make partial shipments of products. Unless expressly agreed to by the Supplier, Supplier shall deliver any products to the delivery point specified in an order, using Supplier’s or manufacturer’s standard methods for packaging and shipping the products. Title and risk of loss to products passes to the buyer on Supplier’s delivery of such products to the carrier Supplier’s facility. Any time period quoted for delivery is an estimate only. Notwithstanding anything to the contrary set forth in these Terms, Supplier is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery. No delay in the shipment or delivery of any product relieves a buyer of its obligations under these Terms, including accepting delivery of any remaining installment or other orders.
ACCEPTANCE AND NONCONFORMING PRODUCTS:
Each buyer shall inspect any products received under within five (5) business days of receipt of the products and either accept or, if any product does not conform to the make listed in the applicable purchase order, reject such products. A buyer will be deemed to have accepted any products unless it provides notice to Supplier in writing of any nonconforming products within such five (5) business day period and furnishes written evidence or other documentation as required by Supplier. If a buyer timely notifies Supplier of any nonconforming products, Supplier shall determine, in its sole discretion, whether the products are nonconforming products. If Supplier determines that the products are nonconforming products, it shall either, in its sole discretion, (a) replace the nonconforming products with conforming products, or (b) refund the price for the nonconforming products. A buyer shall return, at its expense and risk of loss, all nonconforming products to Supplier’s facility. If Supplier exercises its option to replace nonconforming products, Supplier shall, after receiving a buyer’s shipment of nonconforming products, ship to such buyer the replaced products to the delivery point named in such buyer’s original order. Subject to the limited warranty set forth in these Terms, the remedies set forth in this section are Reseller’s exclusive remedy for the delivery of nonconforming products.
Undelivered parts of any order may be canceled by the buyer only with the written approval of Supplier. Supplier may, in its sole discretion, without liability or penalty, cancel any order accepted by us, in whole or in part.
Supplier or its licensers are the sole and exclusive owners of any and all industrial and other intellectual property rights relating to Supplier or its products, including, without limitation: (a) patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor’s certificates, petty patents, and patent utility models); (b) rights in and to United States and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world; (c) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website, and URLs; (d) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works and other specifications and documentation; (e) all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein; and (f) all other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction throughout in any part of the world. No buyer shall not acquire any ownership interest in any of Supplier’s intellectual property rights in connection with any purchase of Supplier’s products. Any goodwill derived from the use by any buyer of Supplier’s intellectual property rights inures to the benefit of Supplier or its licensors, as the case may be. If Buyer acquires any intellectual property rights in or relating to any product purchased pursuant to these Terms (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to Supplier or its licensors, as the case may be, without further action by such buyer. Each buyer shall use Supplier’s intellectual property rights solely in accordance with these Terms, any other written agreement between Suppler and such buyer, and the instructions of Supplier.
Supplier warrants that its products will be free from defects in materials or workmanship for a period of six (6) months after original purchase. This limited warranty does not apply where any product: (a) has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Supplier; (b) has been reconstructed, repaired, or altered by persons other than Supplier or its authorized representatives; or (c) has been used with any third-party product, hardware or product that has not been previously approved in writing by Supplier. Supplier’s liability for any defective or nonconforming goods shall be limited to either, at the sole discretion of Supplier, (1) the replacement of defective or nonconforming goods, or (2) cancellation of the invoice and return of the purchase price for any defective or nonconforming goods. All claims for breach of a warranty must be received by Supplier no later than the expiration of the applicable warranty period of a product.
Products purchased pursuant to these Terms may contain, be contained in, incorporated into, attached to or packaged together with the products manufactured by a third party. Notwithstanding anything to the contrary set forth herein, third party products are not covered by the limited warranty set forth herein. For the avoidance of doubt, Supplier makes no representations or warranties regarding any third party products.
THIS PROVISION SETS FORTH EACH BUYER’S SOLE REMEDY AND SUPPLIER’S ENTIRE LIABILITY FOR ANY BREACH OF ANY WARRANTY RELATING TO THE PRODUCTS.
EXCEPT FOR THE LIMITED EXPRESS WARRANTY SET FORTH IN THIS SECTION, NEITHER SUPPLIER NOR ANY PERSON ON SUPPLIER’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (I) MERCHANTABILITY; (II) FITNESS FOR A PARTICULAR PURPOSE; (III) TITLE; (IV) NON-INFRINGEMENT; OR (V) PERFORMANCE OF PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND THE PRODUCTS ARE PROVIDED TO EACH BUYER AS IS, WHERE IS. SUPPLIER SHALL HAVE NO LIABILITY FOR PATENTS, TRADEMARKS, TRADE DRESS, OR COPYRIGHT INFRINGEMENT OR MISAPPROPRIATION OF TRADE SECRETS WITH RESPECT TO ANY GOODS DELIVERED.
LIMITATIONS OF LIABILITY:
IN NO EVENT SHALL EITHER SUPPLIER OR ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, PARTNERS, SHAREHOLDERS, AGENTS, ATTORNEYS, THIRD-PARTY ADVISORS, SUCCESSORS, AND PERMITTED ASSIGNS BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THESE TERMS, REGARDLESS OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SUPPLIER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SUPPLIER BY THE APPLICABLE BUYER THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF A BUYER’S REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE.
Upon default by a buyer, such buyer shall reimburse Supplier for all attorney fees and court costs incurred in connection Supplier’s enforcement of these Terms, including in the event that Supplier raises any provision of these Terms as a defense. All rights and remedies of Supplier herein are in addition to, and shall not exclude, any rights or remedies that Supplier may have under applicable law. In the event it becomes necessary to incur any expense for collection of any overdue account, reasonable collection charges, and reasonable attorney fees, will be added to the balance due from buyer.
Except as otherwise may be expressly agreed in writing by Supplier, these Terms, together with those portions of any purchase order and all attachments thereto that are not superseded hereby, shall constitute the entire, complete, and exclusive agreement of the parties with respect to the sale of goods. No course of dealing or usage of the trade are applicable unless expressly incorporated herein. No additional or different terms and conditions appearing on the face or reverse side of any purchase order used or supplied by the buyer shall become a part of these Terms. All other prior or contemporaneous representations, warranties, covenants, or agreements with respect to the subject matter are hereby superseded.
All notices, requests, consents, claims, demands, waivers, and other communications to Supplier under must be in writing and addressed to the other Supplier at its address set forth below (or to any other address that Supplier may designate from time to time in accordance with this provision). Unless otherwise agreed herein, all such notices must be delivered by personal delivery, nationally recognized overnight courier or certified, registered mail (in each case, return receipt requested, postage prepaid) or email (with confirmation of transmission). Except as otherwise provided in these Terms, a notice is effective only (a) on receipt by Supplier, and (b) if the buyer has complied with the requirements of this Section.
Notice to Supplier:
30012 Via Rivera, Rancho Palos Verdes, CA 90275
If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
No waiver under these Terms is effective unless it is in writing, identified as a waiver to these Terms and signed by an authorized representative of the party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from these Terms: (a) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under these Terms; or (b) any act, omission, or course of dealing between the parties.
No buyer may assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Supplier. Any purported assignment or delegation in violation of this provision is null and void. Subject to the foregoing, these Terms are binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
THIRD PARTY BENEFICIARIES:
These Terms are for the sole benefit of Supplier and the applicable buyer of products governed hereby, and their respective permitted successors and assigns. Nothing in these Terms, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
CHOICE OF LAW:
These Terms and all matters arising out of or relating to these Terms, are governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of laws provisions thereof to the extent these principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or any sale governed hereby.
CHOICE OF FORUM:
Supplier and each buyer irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to these Terms, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the Eastern District of Missouri or the courts of the State of Missouri sitting in Saint Louis County, and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of these courts and agrees to bring any action, litigation, or proceeding only in the United States District Court for the Eastern District of Missouri or the courts of the State of Missouri sitting in Saint Louis County. Each party agrees that a final judgment in any action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
WAIVER OF JURY TRIAL:
Supplier and each buyer acknowledges and agrees that any controversy that may arise under these Terms, is likely to involve complicated and difficult issues and, therefore, each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Terms or the transactions contemplated hereby.
Supplier shall not be liable or responsible to any buyer, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms, when and to the extent the failure or delay is caused by or results from acts beyond Supplier’s reasonable control, including the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) pandemic or epidemic; (e) requirements of law; (f) actions, embargoes, or blockades in effect on or after the date of these Terms; (g) action by any governmental authority; (h) national or regional emergency; (i) strikes, labor stoppages or slowdowns or other industrial disturbances; and (j) shortage of adequate power or transportation facilities.