American Barbell, LLC, a California limited liability company ("AB") and the Company or Individual set forth on the last page of this invoice ("Customer") agree to the following terms and conditions:
- Customer's Terms and Conditions. This document, if deemed an acceptance of your offer, is expressly made conditional on assent to all of the terms and conditions of this document, including additional and different terms. If this document is deemed an offer or counteroffer, acceptance is expressly limited to the terms of this document. Customer's signature on this document or Customer's delivery of goods purchased pursuant to this document shall be an effective acceptance of AB's offer. Any proposal for additional or different terms, or any attempt by Customer to alter any of the terms of this document shall not operate as a rejection of this offer and this offer shall be deemed accepted by Customer without its additional or different terms. AB hereby notifies Customer of its objection to any terms or conditions in any of Customer's documents or other communications conveyed by Customer which terms or conditions are additional to, different from, or in conflict with the terms of this document.
- Confirming Orders. AB shall hold Customer responsible for any order that is duplicated by GP because Customer failed to mark the order "CONFIRMING ONLY" boldly on the face of the order.
- All shipments and Prices are quoted FOB origin. Title to all goods shall pass to Customer upon delivery to a common carrier or when Customer takes possession of goods at AB's place of business. AB shall not be liable for delay in delivery of for failure to perform due to causes beyond the reasonable control of AB. These causes shall include, without limitation, force majeure events (such as war, strike, riot, crime or an act of God), acts or omissions of Customer, civil or military authorities, delays in transportation, or inability to obtain necessary labor, materials or supplies. In the event of any delay, the contractual date of delivery, if any, shall be extended for a period equal to the time lost as a consequence of such delay, without penalty to AB or any liability on AB's part. AB shall have the right to deliver all goods covered hereby at one time or in portions from time to time, within the time for delivery provided in such order.
- Orders accepted by AB may be canceled by Customer only upon written consent of AB. In the event of cancellation or other withdrawal of any order, for any reason, and without limiting any other remedy which AB may have as a result of such cancellation or other withdrawal under the Commercial Code of California, reasonable cancellation and/or restocking charges not to exceed fifteen percent (15%) of invoice price, which shall include all expenses then incurred and commitments made by AB, shall be paid by the Customer to AB.
- If Customer shall fail to make payment on this or any other contract between Customer and AB in accordance with AB's terms, AB may defer future shipments until such payments are made, or may at its option, cancel the unshipped balance. AB reserves the right to refuse all orders deemed unacceptable by reason of financial responsibility or other sound business reasons. In addition to the prices payable for products, Customer expressly agrees to be liable for interest at the maximum allowable rate under applicable law on past due accounts, for collection costs, including attorneys' fees and costs, court and other costs involved in the collection of past due accounts.
- All orders will be shipped via common carrier, and, at the convenience of AB, Customer may request a shipping method, placement of values and carrier. In so doing, however, GP acts on Customer's behalf without responsibility on AB's part. Deliveries may be made in single or several lots at the discretion of AB.
- AB shall have no liability of any kind to Customer with respect to any actual or alleged infringement of any United States or foreign patent, trademark or similar right by either party.
- Customer's Acknowledgement. AB will not manufacture any product utilizing specifications, artworks and/or designs provided by Customer and/or created by the AB at the request and direction of the Customer (hereinafter "Customer Specifications") unless the Customer (i) makes the representations and warranties regarding the Customer Specifications contained in Section 9 of this invoice (collectively, the "Warranties"), and (ii) agrees to indemnify AB as provided in Section 10 of this invoice (the "Indemnification").
- Representations and Warranties. The Customer hereby makes the following representations and warranties to AB:
(a) Authority. This agreement has been duly authorized, executed and delivered by, and is valid and binding upon, the Customer, and enforceable in accordance with it terms. The Customer has the full right and authority to enter into and perform its obligations under this Agreement.
(b) Ownership of Rights. The Customer is now the legal owner, absolutely or through a valid existing license from the owner, and will be the owner at all times during which AB may manufacture products utilizing the Customer's Specifications, of all rights, including copyrights and/or trademarks which are necessary for the production of such goods.
(c) No Resulting Violation by AB. The manufacture of the products utilizing the Customer's Specifications will not result in an infringement of, conflict with, or other interference by AB or by the Customer with any rights whatsoever, including copyrights or trademarks, of any other person or entity.
(d) True and Correct Documents. The copies of any and all documents provided by the Customer to AB to verify the Customer's ownership of rights in the Customer's Specifications in accordance with Section 7 of this Agreement, are true, correct and complete copies of such documents, including all amendments or modifications thereto, as of the date of submission to AB. Furthermore, Customer covenants to inform AB of any amendments, modifications or termination of any such documents immediately.
- Company Continuing Indemnification of AB.
(a) Indemnification. The Customer shall indemnify, defend and hold AB, and each of its employees and agents, harmless from and against any and all liabilities, claims, actions, losses, expenses and costs, including attorneys' fees and costs, made or sustained by AB, or by any of its employees or agents, arising out of the breach (or any allegation or a claim by a third party which, if true, would constitute a breach) by the Customer of any of the Warranties. The Customer's Indemnification of AB provided herein shall remain in effect for the period of time AB might be liable for the manufacture of the products utilizing items covered by the Warranties.
(b) Defense. The Customer further agrees, at its sole expense, to defend any suit or action filed against AB based upon a claim or cause of action covered by the Indemnification. AB shall have the right at its election to participate in the defense of any such action or suit. In such case, the Customer shall pay all costs, expenses and attorney's fees incurred by AB in connection with such defense.
- Verification of Ownership of Rights. AB shall have the right, at any time, to request, and the Customer shall provide within five (5) days after such request, copies of such agreements, documents or other materials which, in the sole and absolute discretion of AB, verify that the Customer is the owner of the rights, AB shall have the right to terminate this agreement, and the AB shall not have any liability whatsoever.
- Prices on orders accepted are subject to Customer paying all Federal, State and local or foreign taxes or duties. The Customer will reimburse AB with the amount of any taxes in the nature of excise taxes now or hereafter imposed by the United States or the State or local government authority, and paid by AB.
- Error and Omissions. AB reserves the right to correct clerical errors and omissions.
- Integration and Assignment. This document contains the entire and only agreement between the parties with respect to products ordered, and there are no other promises, representations, or warranties, either expressed or implied. The provisions of this document shall not be changed or modified except for an instrument in writing signed by the parties hereto. Any assignment of this document and performance by the parties hereunder by Customer shall be void without AB's consent.
- Applicable Law; Personal Jurisdiction; Venue. This Agreement shall be construed in accordance with, and all disputes hereunder shall be governed by, the laws of the State of California. All parties to this Agreement agree to submit to personal jurisdiction in the County of San Luis Obispo, State of California, United States of America. Any dispute that arises under or relates to this Agreement (whether contract, tort or both) shall be resolved in the applicable Federal or state court in the County of Obispo, State of California, United States of America.
- CUSTOMER SHALL INSPECT ALL SHIPMENTS IMMEDIATELY UPON RECEIPT. Missing cartons, obvious damage to any carton or incorrectly shipped product should be noted by Customer on the delivery receipt before signing. Damage or loss should be reported at once to the carrier and an inspection requested. ALL CLAIMS FOR SHORTAGE OR DAMAGE MUST BE MADE WITHIN SIX (6) DAYS AFTER RECEIPT OF SHIPMENT. Customer must save damaged or pilfered cartons until the claims are settled. Claims for lost shipments must be made within 6 days of receipt of invoice or other notification of shipment.
- Returns or Exchanges. No returns or exchanges will be made unless the product is defective.
- Customer Reliance and Representation. AB assumes no responsibility for any errors that may occur in its printed advertising material. Any product recommendation is not binding and shall not eliminate Customer's responsibility to verify the suitability of the products for their particular application. By placing an order with AB, Customer hereby represents and warrants to AB that Customer has not relied on any statements by AB's personnel, and that Customer has independently determined through his own personal knowledge, that the products offered are compatible and suitable for the application for which intends.
- Compliance with Laws. Customer will comply with all applicable laws and regulations in connection with the sale and use of the products. Customer warrants that it will not sell or knowingly assist or participate in the sale of any products to users not approved to purchase the products under applicable U.S. laws and regulations. Customer will hold harmless and indemnify AB for any damages resulting to AB from a breach of this section by Customer or from any other acts or omissions of Customer.
I have read and agree to the above. By placing an order with American Barbell, LLC customers agree to these terms and conditions.