1. PROPOSAL and ACCEPTANCE OF ORDER: Quotations, bids, and proposals (hereinafter “Proposal(s)”), provided by WBE Supply Solutions, Inc. (hereinafter “WBE”), and where applicable, WBE's vendors, suppliers, and manufacturers (hereinafter “Suppliers”), shall be expressly limited to and conditioned upon these Terms and Conditions. The term “Products” includes products, goods, parts, components, equipment, materials, and programming, start-up and training services, and any other items accepted by WBE in an order placed by Buyer. Placement of an order for Products (“Order”) with WBE constitutes acceptance of WBE's proposal (if provided), and these Terms and Conditions as written. Any additional, different, or contrary terms in Buyer’s purchase order or order form are deemed to be material alterations and notice of objection to them and rejection of them is hereby deemed given. Further, acceptance or acknowledgment by WBE of an Order shall be (1) expressly limited to and conditioned upon these Terms and Conditions, (2) subject to credit approval at the sole discretion of; and (3) subject to acceptance of the Order by WBE, and where applicable, WBE's Suppliers. The limit of Buyer’s open account may be increased or decreased from time to time at the sole discretion of WBE and must be satisfactory to WBE otherwise, WBE may terminate the Order upon notice to Buyer and without liability to WBE. Payment for, or acceptance of, any delivery of Products or performance by WBE shall also constitute Buyer’s acceptance of these Terms and Conditions. In no event shall WBE's quote or any Order include any design, installation, supervisory, or other services for which an engineering or contractor’s license is required. WBE’s Proposal, the Order, and these Terms and Conditions constitute the entire and exclusive agreement (“Agreement”) of the Parties with respect to the Products provided hereunder and supersede all previous and contemporaneous written and oral agreements and warranties related to the subject matter hereof. The failure of either party to insist upon the performance of any part of this Agreement or shall not be deemed to be a waiver in the future. Pricing breakouts for Products are for billing and accounting purposes only and shall not be used by Buyer to determine pricing for change order pricing. In the event Buyer requests a change, the costs and shipping times shall be adjusted as provided in writing by WBE.
2. TAXES: Buyer shall pay the amounts of any sales, use, value added, excise, gross receipts, gross income, business and occupation or similar present or future taxes, duties or other assessments imposed by any governmental authority on the sale, purchase, delivery, transporting, use or storage of, or otherwise in connection with, Products sold by WBE to Buyer, as well as the amounts of any fine, penalty or interest thereon. Buyer shall supply to WBE copies of evidence of payment of or exemption from any taxes, duties, or other assessments which Buyer is obligated to pay.
3. TERMS of PAYMENT: All purchases are due in net thirty days (Net 30) from invoice date, with interest accruing at a rate of 10% per annum for any late payments. In no event shall Buyer withhold retention from any payments. In the event Buyer falls behind on payment and fails to bring its account current within 10 days of WBE's written notice to do so, then WBE shall have the right to suspend further shipments until all outstanding invoices are paid. In no event shall WBE be required to provide waivers or releases of mechanics’ lien rights, stop notice rights, or bond claim rights as a condition for payment, except as provided under California Civil Code, Sections 8132, 8134, 8136, and 8138 relating to conditional and unconditional waivers and releases.
4. DELIVERY and TRANSPORTATION: Unless otherwise expressly agreed in writing by WBE, all Products shall be delivered F.O.B. shipping point and risk of loss or damage to the Products passes to and is assumed by Buyer at the point of shipment. Buyer shall incur all costs for any requirements that deviate from WBE's or its Suppliers’ standard packing and shipping methods. Buyer shall strictly comply with all requirements of the shipping or freight company related to inspections and damage to Products, otherwise Buyer’s right to any claim for damage during shipment is waived. The Buyer hereby agrees to pay a storage charge as reasonably determined by WBE on all Products that are not accepted by Buyer when said Products are available for shipment.
5. CANCELLATIONS and RETURNS: Buyer may not cancel the Order without written agreement by WBE, and Buyer shall pay the amount assessed by any of WBE's Suppliers for such cancellation, plus a reasonable amount as determined by WBE as compensation for work provided in relation to the Order. WBE must approve all returns, which, if approved are subject to a restocking charge as determined by WBE, and Buyer at its sole cost is responsible for shipping any returned Products to WBE or its Suppliers, at WBE’s sole discretion. All risks of loss and damage for returns are borne by Buyer.
6. DELAY IN DELIVERY/FORCE MAJEURE: Factory shipment or delivery dates are the best estimates of WBE and/or its Suppliers. WBE shall not be liable for any delays or damages suffered or claimed by Buyer, Buyer’s customer, or the ultimate user of the Products, due to delays in delivery or for failure to perform resulting from or due to any cause whatsoever not reasonably within WBE's control, including, without limitation, delays on the part of WBE's Suppliers, accidents to or breakdowns or mechanical failure of machinery or equipment; inclement weather; strikes, lockouts or other labor difficulties; shortage of labor, utilities, energy sources, transportation, or raw materials or parts, or failure of usual means of supply; fires; floods; explosions; war, declared or undeclared; insurrection; riots; acts of God or a public enemy; or priorities, allocations or limitations or other acts required or requested by the Federal, state or local governments or any of their subdivisions, bureaus or agencies, and any excuse for nonperformance available under the Uniform Commercial Code or any other applicable law. WBE may, at its option, cancel any Order of Buyer or delay performance hereunder for any period reasonably necessary due to any of the foregoing, during which time this Agreement shall remain in full force and effect. WBE shall have the further right to then allocate its available products among its consumers in such manner as WBE in its sole discretion may consider equitable. Should the shipment of any Products be delayed due to a cause or event which is reasonably within WBE's control, and such delay causes actual damage to Buyer, then in no event shall the aggregate amount of liability that WBE has under any Order for any and all such delays be greater than 10% of the value of the Product delayed, or $2,000.00, whichever is less, and this aggregate amount shall be the sole and exclusive liability that WBE shall have for delays.
7. WARRANTIES: Products sold by WBE are not manufactured by WBE. The Products may, however, be covered by a Supplier's warranty (if any) for the standard time frames provided by each Supplier. WBE hereby assigns and passes through to the Buyer any warranty of the Suppliers, and Buyer acknowledges that it shall have recourse only under such warranties and only as against each such Suppliers of the Products. WBE MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS IT SELLS. WBE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SUCH PRODUCT, INCLUDING AND WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE, ANY PERFORMANCE WARRANTIES OR GUARANTEES, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
8. INDEMNITY and LIABILITY: To the greatest extent allowed by law, Buyer shall indemnify, defend, and hold WBE harmless from all claims, damages, expenses, liabilities and losses (“Claims”), including, without limitation, attorney’s fees and costs incurred, for personal injuries, bodily injury, property damages or other losses, whether or not a lawsuit or
other action is filed, resulting from, related to, or occurring from the use or failure of any Products provided by WBE to the extent not caused by WBE's sole or active negligence. Notwithstanding anything to the contrary, in no event shall the total cumulative aggregate liability of WBE resulting from, arising out of or in connection with this Order or the Products provided by WBE exceed the value of the Product or service upon which the Claim is based, or the coverage available under any insurance policy WBE has in place which applies to this Order, whichever is less, regardless of the legal or equitable theory upon which the Claim of liability is based. Notwithstanding anything to the contrary, in no event shall WBE or its affiliates and Suppliers be liable to Buyer for any indirect, consequential, incidental, special, exemplary or punitive damages, including, but not limited to, damages incurred by the Buyer, Buyer’s customer, or the ultimate user of the Products; for rental expenses; for lease expenses (both real property or equipment); for losses of use, income, profit, financing, business and reputation; for loss of management or employee productivity or of the services of such persons; for principal office expenses including the compensation of personnel stationed there; or for loss of profit (whether arising from or related to breach of contract, tort, including negligence, strict liability, warranty, indemnity or any other cause of action, claim or basis whatsoever.
9. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to conflicts of laws rules. The parties irrevocably submit to the jurisdiction of the state and federal courts located in San Diego, California for any action or proceeding regarding this Agreement, and the parties waive any right to object to such jurisdiction, except a suit filed to perfect a lien or stop payment notice claim, may be filed in the county in which the project is located. In the event of a dispute arising out of or related to this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees and all expenses and costs, including, but not limited to, expert witness fees, incurred, in addition to any other relief to which it is entitled. If any provision of this Agreement is determined to be invalid or unenforceable, that provision will be deemed to be severed from this Agreement or may be modified to give its intent and purpose and will not cause the remainder of this Agreement to be invalid or unenforceable.