Terms & Conditions of Sale
1. PAYMENT. Terms of payment are net 30 days from the date of invoice in United States Dollars unless agreed otherwise. Payments not paid within 30 days are subject to interest at a rate of 1.5% per month on past due balances. Credit cards may be used for payment, however additional fees may apply. All merchandise covered by this invoice remains property of DuraBrake Co. until paid for in full. If the financial condition of the Purchaser at any time does not, in the judgment of DuraBrake Co., justify continuance of the work to be performed by DuraBrake Co. hereunder on the terms of payment as agreed upon, DuraBrake Co. may require full or partial payment in advance. DuraBrake must approve all new accounts.
2. A bank charge of $40 will be charged on all checks returned for any reason, including insufficient funds.
3. CANCELLATION. A restocking fee of 20% plus shipping cost will be charged on any returned standard goods with an approved Returned Goods Approval (RGA). Custom parts are not returnable.
4. TAXES. Prices do not include any federal, state or local taxes, which are in addition to the purchase price and must be paid by the Purchaser. Any and all foreign duties and taxes are the responsibility of the Purchaser. Unless Purchaser furnishes DuraBrake Co. with a tax exemption certificate, any sales, use, excise or other similar taxes, where applicable shall be added to the quoted purchase price and invoiced by DuraBrake Co. to Purchaser.
5. DELIVERY. Unless otherwise stated elsewhere in this transmission, the purchase price is F.O.B. DuraBrake Co. location
6. FREIGHT AND INSURANCE. Products shipped at Purchaser’s risk where terms are F.O.B. DuraBrake Co. location. All freight and insurance charges are the responsibility of the Purchaser unless otherwise agreed to between DuraBrake Co. and Purchaser.
7. WARRANTY. DuraBrake Co. warrants all brake parts sold by DuraBrake Co., when properly installed and maintained to be free from defects in material and workmanship. The responsibility of DuraBrake Co., under this warranty, is limited to replacement of, or credit for any part which has failed within three months of the date of its application, and which has been returned to DuraBrake Co. location, freight prepaid, and found, upon examination, to be defective to the satisfaction of DuraBrake Co. This warranty shall not apply to parts which have been subjected to misuse, negligence, accident, or which have been misapplied or tampered with thereby affecting the reliability or stability of the part.
8. DEFAULT. If the Purchaser shall default in the performance of any of its obligations hereunder, then in addition to any and all other rights or remedies which DuraBrake Co. may have against Purchaser, Purchaser shall be liable to DuraBrake Co. for all court costs and attorney’s fees incurred in enforcing terms and provisions of this agreement. Court jurisdiction for defaulted invoices will be in Santa Clara County, CA.
9. PURCHASER’S RESPONSIBILITY AND INDEMNITY. It shall be the Purchaser’s responsibility to ensure that any equipment purchased from DuraBrake Co. is installed and operated in a proper and safe manner. Purchaser agrees to defend, indemnify and hold harmless DuraBrake Co. from and against all suits, claims, costs and expenses, including reasonable attorney fees, for personal injury, death or property damage arising from the purchase, ownership or use by the Purchaser, Purchaser’s agent, employees or independent contractors.
10. NON-LIABILITY OF DURABRAKE CO. DuraBrake Co. shall not be liable for its failure to perform hereunder due to any contingency beyond its reasonable control, including acts of God, fires, floods, wars, sabotage, accidents, labor disputes or shortages, government laws, regulations, ordinances or codes, inability to obtain material, material equipment or transportation and any similar or different contingencies. In no event, whether as a result of breach of contractor warranty or tort (including negligence), will DuraBrake Co. be liable for any incidental or consequential damages including, but not limited to, damages or loss of revenue, cost of capital, claims of customers for service interruptions or failure of supply, and costs and expenses incurred in connection with labor, overhead, transportation, installation or removal of products or substitute facilities or supply sources.
11. MODIFICATIONS. Purchaser acknowledges that these are the only terms and conditions of sale and are intended by the parties as a complete and exclusive statement of the terms of their agreement, and supersedes all prior agreement, written or oral, and upon issuance of DuraBrake Co.’s invoice or acknowledgement will become part of that invoice or acknowledgement. No course of prior dealings between the parties and no usage of the trade shall be relevant to determine the meaning of any agreement with DuraBrake Co. even though the accepting of acquiescing party has knowledge of the nature of the performance and opportunity for objection. Whenever a term defined by the Uniform Commercial Code is used herein, the definition contained in the Code shall control. Any variation for the terms here of contained in Purchases acceptance is hereby rejected. The Agreement of which these terms are a part can be modified or rescinded only by writing signed by both parties or their duly authorized agents.
12. CONSTRUCTION. These terms and conditions of sale and any agreement, of which they are a part, shall be construed in accordance with the laws of the State of California.
13. QUOTATIONS. Prices quoted on this invoice herein unless otherwise specified must be accepted within 30 days and may be subject to withdrawal, change, and prior sales following that time.
14. LIMITATION OF REMEDIES. No claim of any kind shall be greater in the amount than the purchase price of the merchandise in respect of which such damages are claimed, and failure to give notice of claim within 30 days from the date of delivery or the date fixed for delivery (in the event of nondelivery), shall constitute a waiver by purchaser of all claims in respect of such merchandise. The remedy hereby provided shall be the exclusive and sole remedy of buyer any right to consequential and incidental damages is excluded. All claims for shortages must be filed within one week from receipt date.
15. TIME FOR BRINGING ACTION. Any action by Purchaser for breach of any agreement of which these Terms are a part shall be commenced within one year after the cause of action has accrued.