Terms and Conditions of Sale
Acceptance: The terms of this agreement (“Agreement”), by and between the Seller and Buyer, as those terms are defined on its face, are effective when accepted by an authorized representative of Seller.
Sale of Equipment: Seller shall transfer and deliver to Buyer, and Buyer shall pay for and accept the equipment and supplies (“Goods”) set for the on the face of this Agreement. Delivery shall take place at the time and place set forth on the face of this Agreement.
Price and Payment: Buyer agrees to pay the price set forth on the face of this Agreement for the Goods on or before delivery to Buyer or as otherwise set forth on the face of this Agreement and any interest on remaining balances. Payment shall be made by cash or check. Any unpaid fees shall accrue interest at one and one half percent (1.5%) per month.
Identification-Risk of Loss: Identification of the Goods under Commercial Code Section 2501 shall occur at the moment this Agreement is signed by the parties. Risk of loss of the Goods shall pass to buyer on identification. ALL FREIGHT DAMAGE CLAIMS must be made at point of delivery and itemized by the carrier. Title to the Goods shall remain with Seller until Buyer takes physical possession of the Goods.
Warranties: Seller warrants that the Goods are as described on the face of the Agreement, but no other express warranty is made in respect to the Goods. Buyer and Seller agree that any statements and representations made by Seller were only Seller’s opinion, were not a part of the basis of the bargain, and are not warranted to be accurate. Buyer and Seller agree that if any statement made by Seller in this Agreement or otherwise is constructed as an affirmation or promise; it shall nevertheless not constitute a warranty that the Goods will conform to the affirmation or promise. If any model or sample was shown to Buyer, that model or sample was used merely to illustrate the general type and quality of the Goods and not to represent that the Goods would necessarily conform to the model or sample.
Disclaimer of Warranties: THE GOODS SOLD UNDER THIS AGREEMENT ARE PURCHASED “AS IS”. SELLER MAKES NO OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Assignment of Warranty Rights: Seller agrees to assign to Buyer, at Buyer’s request, all rights seller may have against manufacturers or distributors for breach of warranties relating to the Goods to the extent that any such rights may be assignable. Seller agrees to execute any documents of assignment for the foregoing purpose that Buyer may reasonably request.
Agent’s Authority Negated: No agent, employee, or representative of Seller has authority to bind Seller to any affirmation, representation, promise or warranty concerning the Goods, and unless an affirmation, representation, promise, or warranty is written out in this document and signed by an officer of DME, Inc., it is not enforceable by Buyer.
Merger Clause: This Agreement is a complete and exclusive statement of all the terms of the agreement between Buyer and Seller and all representatives of the parties. No change, modifications, nor revision to these terms shall be valid unless in writing and signed by an authorized agent of DME, Inc. This Agreement shall not be varied, supplemented, qualified or interpreted by any prior course of dealing between the parties or by any usage of trade. Acceptance or acquiescence in a course of performance rendered under this Agreement shall not be relevant to determine the meaning of the Agreement, even though the accepting or acquiescing party has knowledge of the nature and performance and opportunity for objection. Whenever a term defined by the Uniform Commercial Code is used in the Agreement, the definition contained in the Code shall control.
Remedies Limited: Buyer and Seller agree that the sole and exclusive remedies for breach of any warranty concerning the Goods shall be repair or replacement of defective parts or, at Seller’s option, refund of the purchase price. The return of any defective Goods or parts of Goods shall be subject to the completion of a Return Authorization issued by the Seller. Seller shall not be liable for injury to any persons caused by the Goods. Seller shall not be liable for injury to property other than the Goods.
Assignment or Delegation: No right or interest in this Agreement may be assigned by either Buyer or Seller without the written permission of the other party, and no delegation of any obligation owed, or of the performance of any obligation, by either Buyer or Seller, may be made without the written permission of the other party. Any attempted assignment of delegation shall be wholly void and totally ineffective for all purposes unless made in conformity with this paragraph.
Attorney’s Fees: Should any litigation be commenced between the Buyer and Seller, or their representatives, concerning any provisions of this Agreement or rights and duties of any provision of this Agreement or of any person or entity in relation thereto, the party prevailing in such litigation whether by out-of ¬court settlement or final judgment, shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for attorney’s fees incurred in such litigation and any appeals in connection therewith. Any judgment or order entered in any final judgment shall contain a specific provision providing for the recovery of all costs and expenses of suit. Buyer agrees to pay Seller’s reasonable attorneys fess and costs associated with collection of any sums due by Buyer pursuant to this Agreement.
Governing Law: Except as specifically set forth herein, this Agreement shall be governed by the terms of the Uniform Commercial Code as adopted in the state of California. Any action of enforcement of the terms of this Agreement shall be brought in the North County Branch Court of the Superior Court for the County of San Diego, California, and the parties hereto agree that said forum is the best forum for bringing any actions for enforcement and/or interpretation of this Agreement. Any action for breach of this Agreement must be commenced within one (1) year after the Goods have been delivered by Seller to Buyer.
Captions: The captions heading the various sections of this Agreement are for convenience and shall not be considered to limit, expand, or define the contents of the respective sections.
Severability: If any term, provision, covenant or condition of this Agreement is held by a court of competent proper jurisdiction to be invalid, void or unenforceable, the remainder of this Agreement shall remain in force and effect and shall in no way be affected, impaired or invalidated.
Construction: This Agreement shall be construed according to its fair meaning and without regard to whether it was prepared or drafted by one party or its attorney. The language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent and no rule of strict construction will be applied against either party.
Controlling Terms: In case of any conflicts between the terms on the face of this Agreement and the terms and conditions set forth below, the terms on the face of the Agreement shall control. All sales pursuant to this Agreement are final after thirty (30) days. Only unopened Goods may be returned and will be subject to a twenty-five percent (25%) restocking fee. Shipping for all returns, except where a Return Authorization for defective Goods are parts is issued, shall be paid by the Buyer.
Training and installation: If Buyer requests Seller’s installation and/or training regarding the Goods, Buyer shall pay Seller a rate set by Seller at time of quotation. Quotes are based on an hourly rate plus travel expenses or otherwise.
Taxes: Buyer agrees to report and pay to the appropriate taxing authority any and all taxes (including penalty and interest, if any) assessed against the manufacture and/or sale of the Goods, except to the extent of any taxes which Buyer agrees to pay in writing. If any taxes relating to the manufacture and/or sale of the Goods are assessed against Seller, Buyer agrees to reimburse Seller therefore upon request.