Westmont Industries Terms of Sale
1. Applicability
In the absence of any specific written agreement to the contrary between the parties, the standard terms of sale and delivery presented below shall apply to all sales of products and services by Westmont Industries and its affiliated entities (collectively, the "Company") to any purchaser.
2. Drawings and Descriptions
All information concerning weight, dimensions, capacity, technical and technological data, etc., and prices listed in catalogs, advertisements, photographic material, price lists, and the like are approximate. Such information shall only be binding if stated in the confirmation of the order issued by the Company or in any written agreement signed by the Company.
3. Prices and Orders
The Company shall be entitled to change its prices without advance notice. Without any written agreement, all sales shall be made in United States Dollars using the prices for products quoted by the Company and confirmed in writing. Prices quoted are ex-works from the Company's facility, are for products and standard packaging only, and are exclusive of all installation, warehousing, or other services or requests, and exclusive of all VATs, tariffs, duties, sales taxes, use taxes, regional taxes and fees and like levies or taxes. Any taxes, fees, or duties the Company may be required to pay or collect relating to the sale, delivery, processing, use, or transportation of the products shall be for the purchaser's account, who shall promptly reimburse the Company on demand. Prices reflect the currency exchange rates applicable at the time of the offer. The Company may amend them anytime to accommodate price/currency ratio changes. Prices quoted are open for the time stated in the quote or a maximum of thirty (30) days from the quotation date. They are based on estimated quantities, labor, material requirements, and other factors and are subject to adjustment by the Company from time to time.
Purchase orders are non-cancellable by the purchaser without prior written consent of the Company. Suppose the purchaser requests to cancel an order. In that case, the Company, at its sole and exclusive discretion, may apply a cancellation fee equal to the more significant work completed to date or fifteen percent (15%) of the sales/invoice price. No cancellations shall be allowed after the scheduled shipment or service date. In the event of any attempted cancellation or refusal to accept products or services, the purchaser shall indemnify the Company for any losses sustained by the Company because of such attempted cancellation or refusal to receive products or services.
4. Delivery
Delivery is Incoterms 2010 Ex-Works from the Company's facility. The risk of product loss passes to the purchaser at the time of delivery by the Company to the freight carrier at the point of shipment. The shipment will send at the risk and expense of the purchaser. The Company has no liability and shall not accept responsibility for loss or damage occurring in transit. Unless the Company has received specific instructions in advance, the Company shall be entitled to select the means of transport and delivery route. The purchaser assumes the responsibility to obtain adequate insurance on each shipment.
5. Freight policy
Unless otherwise agreed in writing, all transportation costs are the purchaser's sole responsibility.
6. Delivery Times
The delivery time quoted is approximate, with reservations for delays due to Force Majeure Events (as defined below). Should any Force Majeure Event occur, the delivery time will postpone for a period equivalent to the event(s) in question. Deliveries made on the delayed delivery date consider completed on time. Insofar as the delivery time states a specific number of days or weeks, this period shall be calculated from when the Company received all information required to implement the order from the purchaser. Insofar as the purchaser may fail to meet any payment obligations by or on the due dates of same, the delivery time shall postpone for a period equivalent to the duration in the delay of the payment in question. Insofar as uncertainties arise for reasons other than those mentioned above, such shall not entitle the purchaser to cancel any order either entirely or in part unless the delay in question can be considered significant and the Company fails to complete the delivery no later than fourteen days after having been notified to do so in writing by the purchaser. The Company reserves the right to delay shipment of verbal orders until it receives a written confirmation of the order.
7. Payment
All product payments will be paid in full before delivery until the credit establishes. Payment is acceptable in United States Dollars on or before the date stated on the invoice. If the invoice states no such date, the owed sum shall pay in cash on delivery. Upon written approval by the Company's credit department, invoices may be due thirty (30) days from the date of invoice or on such other terms as approved by the Company's credit department in writing. The credit department may decline to permit shipment of products until receipt of payment or written agreement upon terms and conditions satisfactory to the credit department in its sole discretion. Payments shall be due on a pro-rata basis if the Company makes partial shipments; delays in the delivery of a non-significant part of the shipment shall not entitle the purchaser to refrain from paying the total amount owing according to the agreements reached. Should the purchaser fail to make payment on time, in addition to collection costs, the Company shall charge interest on the sum owing at the lesser of (a) 1.5 percent (1.5%) per month or (b) the maximum percentage then permitted by law, in either case on the balance remaining from the time of delivery until receipt of payment. Suppose the Company retains a third party to collect overdue amounts. In that case, all collection costs resulting from such retainer, including, without limitation, legal fees and disbursements, shall be payable upon demand by the purchaser to the Company. Suppose the purchaser fails to accept or permit delivery on time for products delivered at a specific time. In that case, the Company can choose to either sell such products at the purchaser's expense, having notified the purchaser of its intention to do so, or to store the products at the purchaser's expense such that the purchaser is required to pay all costs linked to the period of storage. Irrespective of any delivery delays, the purchaser is, in all events, obliged to make the stipulated payment on or by the applicable due date. The purchaser bears the entire risk and costs for any items in storage.
8. Inspection
The purchaser is encouraged, immediately upon reception of the items purchased, to inspect the products received with good business practice. The purchaser shall have no right to inspect any products before delivery unless permitted by the Company at its discretion. The purchaser should make any product inspection within seven (7) days after they arrive at the purchaser's receiving point. Failure to make an inspection and provide the Company with written notice specifying any claimed basis for rejection within that time will constitute deemed acceptance of the products and, if the purchaser has established credit terms, a final waiver of the right to make any inspection before full payment for all of the products.
9. Conditions of Ownership
Suppose payment is late or received at the time of delivery. In that case, the title to all products at any time delivered to the purchaser and which have yet to receive payment in full shall remain with the Company until provided in full. The purchaser now grants to the Company a security interest (including, without limitation, a purchase money security interest) in such products at any time delivered by the Company to the purchaser, and in all replacements and substitutions thereof, all additions and accessories to that, and all proceeds thereof, to secure payment of the purchase price of all products, any collection costs, and any other debts owing to the Company by the purchaser, and interest thereon. The Company and the purchaser agree that the security interest granted hereunder attaches upon the purchaser's issuance of the purchaser's order to the Company. The purchaser agrees to do all acts necessary to perfect and maintain such right, title, and security interest in the Company. The purchaser, at its expense, shall fully insure the products against all perils until the Company receives payment in full.
10. Changes to Design or Product Offering
Before delivery and without notifying the purchaser in advance, the Company reserves the right to make alterations to its products' design, construction, etc., as the Company may deem necessary in its discretion. Such alterations shall only entitle the purchaser to cancel an unfulfilled purchase order as the purchaser proves that the purchase was conditional upon a specific design, construction, or similar requirement. Changes made and any resultant cancellation of the purchase order do not entitle the purchaser to compensation, damages, or a proportional discount on the purchase price. The Company reserves the right to discontinue products, product components, or spare parts at any time for any or no reason.
11. Confidentiality
The purchaser agrees to protect and hold in strict confidence all trade secrets, proprietary and confidential information relating to the products or the Company of which it has or gains knowledge. All drawings, designs, estimates, descriptions, and other material of the Company made available on the issuing of offers or deliveries are and shall remain the sole property of the Company and may not, in the absence of express permission in writing from the Company, be copied, presented to other companies or used as the basis for performing work. Drawings and other materials the Company has prepared for use in connection with offers are to be returned or destroyed upon request.
12. Packaging
Products will ship in standard packaging designated and supplied by the Company occasionally at its discretion, which may vary depending on whether the shipment routes by air or other common carrier. Product containers shall be accompanied by such packing slips or any other documents and materials as deemed necessary by the Company. Custom packaging will only be available at the purchaser's expense under a written agreement, and the Company is not responsible for charges associated with overseas containers, containerizing, or packaging for long-term storage, pier handling, marshaling, demurrage, lighterage, heavy lifts, and the like. Boxes or other packaging returned will not be credited and will only be accepted based on a written agreement.
13. Returns
Products that are typically stocked by the Company for sale (explicitly excluding any custom products or products using or integrating purchaser's equipment) ordered in error may be returned, at the purchaser's expense, within thirty (30) days of delivery for credit, less an amount equal to 25% of the original purchase price, representing a restocking charge. Each product shall return to the Company by the purchaser with the prior written consent, acceptance, and authorization of the Company via electronic mail or facsimile. All returns require a return authorization number obtained from the Company and included on all shipping paperwork. The Company shall have no liability for products damaged in shipment. To apply for permission to return products, the purchaser must contact the Company in writing with its request and for further instructions.
14. Warranty Policy
Westmont Industries warrants to original purchasers that its products will be free of defects in material and craft under regular use and conditions for claims received within one year from the date of purchase (final billing date), and to the extent that if any Westmont product fails in operation because of such defect, the Company will replace or repair, at its option, the defective article. Before repairing or replacing any defective product, notify the Company in writing about the nature of the defect. The Company shall assume no liability for freight, disassembly, removal, refitting, and installation charges on any article returned unless Westmont approves such order (s) in writing before the return. On component items purchased by Westmont for incorporation into a Westmont-manufactured product, only the component manufacturer's warranty (if any) shall apply to that component. Said manufacturer's warranty shall pass on to Westmont's customer to the extent permitted. This warranty applies only when Westmont products operate for intended purposes within the recommended procedures, their load limits, are properly maintained, not damaged or abused, etc., as indicated in company manuals, catalogs, and drawings. Apply all warranty claims within sixty days from when the defect becomes known. The preceding warranty is instead of all other warranties or liabilities, either expressed or implied. Westmont expressly excludes all implied warranties of merchantability and fitness for a particular purpose and all non-infringement warranties and disclaims all liabilities to third parties. Westmont shall not be liable for any amounts over the product's purchase price.
15. Product Liability
The purchaser shall at all times indemnify, defend and hold the Company and its present and former directors, officers, employees, agents, and affiliates (collectively, "indemnitees") harmless against all allegations, claims, proceedings, demands, and liabilities of any kind whatsoever, including reasonable legal expenses and attorneys' fees, arising out of the death of or injury to any person or persons or out of any property damage, resulting from or relating to the use, modification, alteration, repair or resale of the purchaser's products. The purchaser shall obtain and carry in full force and effect at all times commercial, general liability insurance, which shall protect the purchaser and the indemnitees from all such claims. A reputable insurance Company shall write such insurance and be endorsed to include product liability coverage. It shall contain limits, at least those necessary, that adequately insure all such potential claims. The purchaser shall, upon request, provide the Company with certificates of insurance from the insurance carrier evidencing the preceding insurance coverage.
16. Product Information Advice Liability
Absent a specific written agreement to the contrary, any product information, technical advice, consulting, or other informational assistance furnished by the Company relating in any manner to its products shall be supplied without additional charge and will be given and accepted at the purchaser's sole risk. The Company is only obligated to provide information or assistance after receipt of the total purchase price from the product purchaser. The Company will have no liability for damages, loss, or expense arising from the provision of information or assistance or any act or omission, including negligence, by the Company or its agents. Notwithstanding the preceding, in the limited circumstance where the Company has supplied separate, non-standard written advice to the purchaser in the form of the preparation of specific, customized written calculations or the form of a particular, customized written statement concerning the suitability of the items sold for a specified purpose issued to a purchaser who cannot reasonably possess the requisite professional knowledge of the area to be able to evaluate the suitability of the items without assistance, then the Company shall accept limited liability only if the advice is indefensible concerning the knowledge the Company possessed regarding the object of the guidance at the time same was given. The Company shall accept no liability for statements if made clear that such statements reflect an approximate evaluation or estimation. Should errors be discovered in the written advice supplied by the Company in connection with the delivery from the Company, the purchaser shall, without undue delay and immediately after the purchaser has or should have become aware of the presence of the errors, inform the Company of same. Should this provision be ignored or waived, the Company shall only pay compensation for such losses as may have arisen as a direct consequence of the incorrect advice from the Company at the time the purchaser should have informed the Company.
In no event shall the liability of the Company for losses incurred as a result of incorrect information or advice exceed the obligation to repair or replace the product in question with a like product, and in no event shall the Company be liable to the purchaser for any amounts over the purchase price paid for the individual product which is the subject of the cause of action. The Company's liability for losses incurred due to errors in information or advice shall lapse by one (1) year after the delivery of items to which the information or advice is linked.
17. Limitation of Liability
The Company shall not be liable for damages caused by delay in performance or other breach of these terms and conditions and in no event, regardless of the form of the claim or cause of action (whether based on contract, infringement, negligence, strict liability, other tort or otherwise), shall the Company's liability to the purchaser exceed the purchase price paid for the individual product which is the subject of the cause of action. In no event shall the Company's liability to the purchaser extend to include incidental, consequential, special, or punitive damages. The term "consequential damages" shall include, but not be limited to, loss of anticipated profits, operating losses, business interruption, loss of use or revenue, cost of capital, fines or other indirect losses, or loss or damage to property or equipment.
18. Governing Law and Venue
By issuing a purchase order to the Company, the purchaser accepts these terms and conditions as applicable. Doing so rejects any blanket replacement by the purchaser's terms and conditions. If there is any inconsistency between the terms and conditions hereof and the purchase order, the terms and conditions hereof shall prevail in all instances. These terms and conditions shall be governed by, interpreted under, construed, and enforced per the internal laws of the State of California, USA, applicable to agreements made and to be performed wholly within the State of California, USA, including without limitation the California Uniform Commercial Code and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods and Incoterms 2010. In the event a judicial proceeding is necessary, the sole forum for resolving disputes arising under or relating in any manner to these terms and conditions and any purchase order are the state or federal district courts located in the County of Los Angeles, State of California, USA and all related appellate courts, and the parties at this moment consent to the jurisdiction of such courts. That venue shall be in the County of Los Angeles, State of California, USA. Each party hereto waives any right to challenge or move the preceding designated jurisdictions and venue on the grounds of an inconvenient forum. Service of process executes in any manner provided for by applicable law. Suppose the purchaser is not otherwise subject to service of process in the State of California, USA. In that case, the purchaser agrees to and does now irrevocably appoint the Secretary of State of the State of California, U.S.A. as the purchaser's agent for the acceptance of the service of process. The Company shall mail a copy of such procedure to the purchaser's last known address. These terms and conditions are binding upon and ensure the benefit of the parties hereto and their respective heirs, executors, successors, and permitted assigns, as the case may be. Except with the prior written approval of the Company, the purchaser may not assign a purchaser order or the applicable terms and conditions. Suppose any provision contained herein is deemed invalid or unenforceable in whole or part. In that case, such invalidity or unenforceability shall attach only to such provision, and all other provisions shall remain in full force and effect.
19. Force Majeure
The Company shall not be liable for any delay in performance, shipment or delivery, or inability to provide the purchaser with any products or spare parts due to causes beyond its reasonable control, including, without limitation, strikes, lock-outs, riots, wars, terrorism, mobilization, impoundment, currency restrictions, obstacles to transport, restrictions on fuel or materials, weather, fire, flood, earthquake, other Acts of God, governmental order or regulation, missing or incomplete or late deliveries from subcontractors, loss of electricity, and acts of the purchaser or any other such causes beyond the control of the Company (collectively, "Force Majeure Events"). Performance, shipment, or delivery shall suspend for so long as the implementation of the same delays due to causes beyond the Company's reasonable control, and the purchaser agrees to accept deliveries whenever such grounds remedy per the terms of the "Delivery times" section above.
20. Publicity
The purchaser shall not make or authorize any news release, advertisement, or other disclosure which directly or indirectly identifies the Company as the source of products without the Company's prior written consent in each instance.
21. Compliance with laws
All transactions hereunder shall at all times be subject to and conditioned upon compliance with all applicable laws, such as export control laws and regulations, including those of the country from which products ship and those of the US Government, which includes, without limitation International Traffic in Arms Regulations (Title 22 USC 2778) (ITAR). The purchaser agrees that it shall not, except as said laws and regulations may expressly permit, make any disposition by way of transshipment, re-export, diversion, or otherwise, of US-origin goods and technical data (including computer software) or the direct product thereof, supplied by the Company hereunder. The parties' obligations to comply with all applicable export control laws and regulations shall survive any termination or discharge of any other contract obligations. The purchaser undertakes to keep itself fully informed of and to comply with the applicable export control laws and regulations, including those of the US Government, such as ITAR, and any amendments thereof. Notwithstanding any other provisions herein, the purchaser shall be responsible for timely obtaining any required authorization, such as an export license, import license, foreign exchange permit, work permit, or any other governmental approval, even though the Company may apply for any such authorization. The parties shall provide each other with reasonable assistance in obtaining the required permissions. The Company shall not be liable if the approval is late, denied, revoked, restricted, or not renewed, and the purchaser shall not be relieved of its obligations to pay the Company for its products or services or any other charges that are the purchaser's obligation hereunder. The purchaser certifies that the products, materials, services, technical data, software, or additional information or assistance furnished by the Company will not be:
(a) used by any individual or entity listed as a prohibited party on any list of the US Government or foreign country of refused or denied parties, (b) sent to any party in a country listed as a prohibited country by the US Government or any foreign country
(c) used in the design, development, production, stockpiling, or use of chemical, biological, or nuclear weapons by the purchaser or any entity acting on the purchaser's behalf.
Effective Date: May 13, 2019