TERMS & CONDITIONS
ANY PURCHASE MADE BY REPUBLIC BRASS SALES (RBS or Buyer) BY MEANS OF A PURCHASE ORDER ISSUED BY REPUBLIC BRASS SALES IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS AND ACCEPTANCE OF A PURCHASE ORDER FOR THE PURCHASE OF GOODS ISSUED BY REPUBLIC BRASS SALES CONSTITUTES THE SELLER'S AGREEMENT TO THESE TERMS AND CONDITIONS IN ADDITION TO ANY OTHER PROVISIONS ON THE RBS PURCHASE ORDER:
CORONA VIRUS IMPACT: Given the existence of the coronavirus pandemic, Republic Brass Sales will use its best efforts to manufacture, staff and service this project to meet the scheduled delivery date(s). However, Republic Brass Sales reserves its right to extend the delivery date/time if Republic Brass Sales is unable to perform or its subcontractors or suppliers fail to perform on time due to illness, supply shortages or governmental restraints on business, travel and/or assembly. In the event of such a suspension/delay, Republic Brass Sales shall not be in default for failure to perform and shall not be liable for loss, damage, detention, or delay. To the extent that the project is suspended by the Buyer, Republic Brass Sales reserves its right to seek additional costs associated with the suspension.
CONTROLLING PROVISIONS: No terms and conditions other than the terms and conditions specified in the RBS Purchase Order (including the terms of this document) shall be binding upon RBS unless accepted in a writing signed by the Buyer's Manager. All terms and conditions contained in any oral or written communication between Buyer and Seller, including, without limitation, Seller's purchase order, which are different from or in addition to these terms and conditions are hereby rejected and shall not be binding on Buyer, whether or not they would materially alter these terms and conditions, and Buyer hereby objects thereto. All prior proposals, negotiations, and representations, if any are merged into the Purchase Order and the terms and conditions contained therein.
TERMS: Seller agrees to deliver the items (the “Goods”) described in the Purchase Order, together with all necessary certifications as required by Buyer or any intended end user. Seller is aware that it may be required to provide certification of compliance with applicable military specifications and agrees to provide all necessary certifications. The Goods delivered shall be as described in the Purchase Order and shall be new unless the Purchase Order specifically states otherwise. (“New” means that the item has never been placed in commerce and, in particular, is not surplus material.) Unless specifically stated otherwise, the Goods shall be delivered no later than thirty (30) days after date of the Purchase Order. TIME IS OF THE ESSENCE with regard to any delivery date and the delivery date may not be extended unless in a writing issued by Buyer. Unless otherwise agreed, Buyer's payment is due thirty (30) days after acceptance of the Goods.
WARRANTIES: Notwithstanding any purported limitation of warranties by Seller, Seller specifically warrants to Buyer at the time of the delivery of the Goods to Buyer that: (a) the Goods are as described in the Purchase Order and, unless specified otherwise in the Purchase Order; are new; (b) the Goods are merchantable; and (c) the Goods are fit for the use intended.
REMEDIES OF BUYER: Upon default by Seller Buyer shall have all rights and remedies under the provisions of the California Commercial Code or any other applicable law, if any. In addition, Seller agrees to reimburse Buyer all attorney fees and court costs incurred by Buyer in connection therewith, whether or not litigation is filed. Seller agrees that of any of the following shall constitute an event of default which shall enable Buyer, at its option, to cancel any unexecuted portion of the order giving rise to this order or to exercise any right to remedy which it may have by law: (a) the failure of the Seller to perform any term or condition contained herein, including a failure to timely delivery any Good: (b) any failure of Seller to give required assurances of performance: (c) the insolvency of Seller, an assignment by Seller for benefit of its creditors, the appointment of a receiver for Seller or for the material covered by this order, the entry of an Order for Relief in a bankruptcy case, or the filling of any petition to adjudicate Seller a debtor under the bankruptcy laws: (d) the death, incompetence, dissolution or termination of existence of Seller: (e) a failure by Seller to provide adequate assurance of performance within ten (10) days after a justified demand by Buyer or if Buyer, in good faith believes that Seller's prospect to performance under this agreement is impaired. All rights and remedies of Buyer herein are in addition to, and shall not exclude, any rights or remedies that Buyer may have by law.
GOVERNING LAW: All transactions shall be governed in all respects by the laws of the State of California (excluding choice of law provisions) and all actions commenced shall be brought in a court of the competent jurisdiction residing in San Diego, County, California, USA.
DELIVERY: TIME IS OF THE ESSENCE with regard to the delivery dates set forth in this Purchase Order. Seller shall defend, indemnify, and hold Buyer harmless from any cost, liability, action or proceeding (including Buyer's) attorney's fees arising from or relating to any claim, demand, action or proceeding against Buyer by a third-party end user based upon a delay in delivery or inability to deliver to the end user any of the Goods identified in this Purchase Order. Seller specifically acknowledges that it has been advised that RBS is not purchasing the Goods for its own use but for resale and that RBS may have sold the Goods to a third party in reliance upon Seller's timely performance under this Purchase Order.
INDEMNFICATION: Seller shall defend, indemnify and hold harmless Buyer and it's agents and/or employees against any loss, damage, claim, suit, liability, judgment or expense (including without limitation, attorney's fees) arising out of or in connection with any injury, disease or death of persons (including without limitations, Seller's employees, and agents) or damage to or loss of any property or the environmental, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, use or repair of the products by Seller or of the information, designs, services, or other work supplied to Seller, whether caused by the concurrent and/or contributory negligence of Seller, Buyer, or any of their agents, employees or suppliers.
ACCEPTANCE: Buyer shall have the right of inspection prior to any acceptance. For Goods delivered to Buyer, Buyer shall have a minimum of five (5) days from the date of receipt for inspection. For Goods delivered to a third party, Buyer shall have at least ten (10) days from the date Buyer is notified of the third party's receipt of the Goods.
SHIPMENTS: All products are shipped F.O.B. point of shipment. Risk of loss shall transfer to the Buyer upon tender of good to Buyer's representative, or common carrier.
TAXES: The amount of any sales, excise, or other taxes, if any, applicable to the products shall be added to the purchase price and shall be paid by Seller.
SEVERABILITY: These terms and conditions of sale shall not be construed against the party preparing them but shall be construed as if alI parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had nave been made a part of hereof. The remaining provisions herein shall remain in force and effect and shall not be affected by such illegal, invalid or severed provisions.
SET-OFF: Seller shall not be entitled to set-of any amounts due Buyer against any amount due Seller in connection with this transaction.
NON-WAIVER: Buyer's failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of Buyer's rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by Buyer's Manager.
ENTIRE AGREEMENT: This document constitutes the entire, complete, and exclusive agreement between the parties and contains all the agreements and conditions of this sale, no course of dealing or usage of trade shall be applicable unless expressly incorporated herein. The terms and conditions contained herein may not be added to, modified, superseded, or otherwise altered except by written modification signed by the Buyer's Manager. All transactions shall be governed solely by the terms and conditions contained herein.