TERMS AND CONDITIONS V1.2
1. EXCLUSION OF WARRANTIES: CUSTOMER AGREES THAT SHERCON DISCLAIMS, AND THERE SHALL BE NO, WARRANTY OF MERCHANTABILITY OR WARRANTY AS TO FITNESS FOR ANY PARTICULAR PURPOSE OR USE FOR ANY GOODS OR PRODUCTS. CUSTOMER FURTHER AGREES THAT THE FITNESS FOR ANY PURPOSE OR USE OF ANY GOODS OR PRODUCTS IS THE SOLE RESPONSIBILITY OF CUSTOMER, TO BE ASCERTAINED BY CUSTOMER’S SAMPLING AND TESTING. CUSTOMER FURTHER AGREES THAT SHERCON MAKES NO EXPRESS OR IMPLIED WARRANTY OR PROMISE AS TO ANY QUALITIES, ATTRIBUTES OR CHARACTERISTICS OF OR CONCERNING ANY GOODS OR PRODUCTS (UNLESS EXPRESSLY SET FORTH IN WRITTEN SPECIFICATIONS BY THE CUSTOMER ACCEPTED IN WRITING BY SHERCON, WITH ALLOWANCES FOR VARIATION WITHIN RECOGNIZED COMMERCIAL INDUSTRY STANDARDS).
(1) Any controversy or dispute arising out of or relating to any order, goods, products, transaction or business between Shercon and Customer shall be exclusively determined, settled and resolved by an arbitration in the County of Los Angeles, California, in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS/ENDISPUTE, Inc., conducted by a single arbitrator who shall be a retired judge. Shercon and Customer knowingly waive any request to have any such controversy or dispute determined by a court or jury or the right to appeal from the decision of the arbitrator. Judgment upon any arbitration award rendered may be entered in any court having jurisdiction thereof, and any petitions to confirm, clarify or vacate any such award may be served by certified mail. Any and all questions as to whether or not an issue constitutes a controversy, dispute or other matter arbitral under this paragraph shall be settled by arbitration in accordance with this paragraph.
(2) Any claim by Customer of any kind, nature or description is barred and waived unless Customer institutes an arbitration proceeding within one (1) year after the claimed breach of contract or other duty first occurs. The failure to institute an arbitration proceeding with this one (1) year period shall constitute an absolute bar and waiver by Customer to any claim or remedy for any such breach and to the institution of any arbitration or other proceedings by Customer with respect to or concerning such breach of contract or other duty.
3. CUSTOMER’S TESTING: It is Customer’s obligation, in advance of purchase, or before putting any goods or products into production or use, to determine in each case that the goods or products are satisfactory for Customer’s particular use. To meet Customer’s obligation, sample runs and tests of the products in all processes should be made to the point that Customer finds that the goods or products are satisfactory for Customer’s requirements, processes and production.
4. OWNERSHIP OF TOOLING: Shercon shall exclusively own all tooling used or employed to manufacture any goods or products for Customer.
(1) All claims of any kind, nature or description of Customer are barred and waived, unless made in writing to Shercon, and Customer shall be deemed to have accepted the goods or products and its right to cancel, reject or claim damages shall expire unless Customer’s written and particularized claim is received by Shercon (i) within thirty (30) days from date of tender, for all claims other than those for latent defects; or (ii) within ninety (90) days from the date of tender if the claim relates to a latent defect. In no case will any claim be considered after goods or products have been produced or manufactured, except that if the arbitrator make an express finding in his or her award that the claimed defect was not or could not have been discovered through testing actually conducted by Customer as required by paragraph 3 above, and that upon discovery Customer made written claim to Shercon promptly thereafter, such claim by Customer will not be barred provided that an arbitration proceeding was instituted within the time required by paragraph 2(2) above.
(2) In all cases, the limit of Shercon’s liability shall be the difference, if any, in value on the contract date for performance between the goods or products specified and the goods or products actually tendered or delivered. The limit of liability of Shercon for late or non-performance shall be the difference, if any, between the contract price and the fair market price on the contract date for performance of the goods or products in question. Customer shall not be entitled to damages for late or non-performance unless it actually purchases the same merchandise elsewhere at a higher price (which must be at a fair market price). IN NO EVENT SHALL CUSTOMER BE ENTITLED TO CLAIM OR RECEIVE ANY CONSEQUENTIAL, INDIRECT AND/OR SPECIAL DAMAGES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, FOR DEFECTIVE GOODS OR LATE OR NON-PERFORMANCE OR OTHERWISE, AND IN NO INSTANCE MAY DAMAGES INCLUDE PROFIT OR LOSS OF PROFIT OR CONTEMPLATED USE OF PROFIT OR LOSS OF PROFIT OF ANY DESCRIPTION.
(3) Shercon, including its agents, representatives, or otherwise, shall not and does not accept, assume or undertake any responsibility or liability to indemnity, defend, save or hold harmless Customer or any other person, firm or party from or against any loss, damage or injury, regardless of any language by which such acceptance, assumption or undertaking purports to be expressed or implied.
(4) Customer agrees to defend and hold Shercon harmless and indemnify it against any claims of third persons for injuries or damages resulting in whole or in part from or arising out of the manufacture, sale, distribution, advertisement, or use (whether intended use or not) of any goods or products ordered, requested, purchased, acquired or obtained from or through Shercon, whether or not Shercon caused or contributed, in whole or in part, to any such injuries or damages.
(5) Shercon shall not be liable if any aspect of performance by Shercon under this and/or any other contract is delayed or prevented due to casualty; accident; strike; lockout; labor disturbance; boycott; embargo; lack of shipping facilities; delay or inability to obtain supplies, labor, raw materials or energy through Shercon’s usual and regular sources; fires; floods; adverse climatic conditions; military conflicts; terrorism; riot; governmental requests, requirements or regulations; Shercon’s acceptance of governmental contracts or subcontracts; Act of God; or any cause or circumstance whatsoever (whether like or unlike the foregoing) beyond Shercon’s control. In such event, Shercon may, in its sole discretion, with or without notice to Customer and without any liability to Customer: (i) extend Shercon’s time for performance for a time which is reasonable under all of the circumstances; (ii) cancel all or any portion of this and/or any other contract with Customer; or (iii) apportion Shercon’s available supply among its customers in any reasonable manner.
6. COMPLETE UNDERSTANDING; CHANGES: This contract and any documents incorporated herein set forth and shall constitute the entire agreement between the parties hereto with respect to the subject matter hereof and shall supercede all prior and contemporaneous agreements, representations of the parties concerning the subject matter hereof and the terms applicable thereto. Without limiting the generality of the foregoing, this contract shall supercede and have control over any terms and conditions proposed by Customer, including, but not limited to, those made in any request for quote, order or other document from Customer. This contract may not be supplemented, modified or amended in any manner, except by an instrument in writing signed by the President of Shercon stating that it is a supplement, modification or amendment of this contract.
7. GOVERNING LAW: This contract is to be construed and interpreted as if entered into and to be performed in the County of Los Angeles, California and shall be governed by and construed in accordance with the laws of California (without giving effect to principles of conflict of laws). No arbitration or other legal action shall be brought except in the County of Los Angeles, California and Customer and Shercon irrevocably waive and agree not to plead or claim that any arbitration or other legal action filed in the County of Los Angeles, California is an inconvenient forum.
8. SEVERABILITY: If any provision of this contract or the application of any such provision to any party or circumstances shall be determined by any arbitration or court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this contract or the application of such provision to such person or circumstances other than those to which it is so determined to be invalid and unenforceable, shall not be affected thereby, and each provision hereof shall be validated and shall be enforced to the fullest extent permitted by law.
9. ASSIGNMENT: This contract is not assignable by the Customer, without prior written consent by Shercon, which consent may be withheld in Shercon’s sole and absolute discretion. Shercon may assign its rights and obligations under this contract, without the consent of Customer, to a party which agrees to assume all of Shercon’s obligations under this contract and Shercon shall have no further obligations or duties to Customer after the effective date of such assignment.
10. TRANSMISSION: Customer’s execution of any document acknowledging or expressing Customer’s agreement or acceptance of this Terms and Conditions may be transmitted to Shercon by facsimile or e-mail and Customer agrees that the same shall be fully effective, as if Customer had transmitted an original.