BETWEEN SHEPARD BROS. AND CUSTOMER
These standard terms and conditions (“Terms”) apply to the sale of all chemical products, other products, equipment, and services by Shepard Bros. (“Shepard Bros.”) to customers (“Customer”), unless there is a written contract signed by Shepard Bros. and Customer expressly governing the sale, in which case the terms and conditions in such written contract shall apply. The Terms or such written contract, as applicable, and the commercial terms in a Shepard Bros. order confirmation, constitute the entire agreement (“Agreement”) between the parties and any provisions or conditions (including without limitation those contained in any Customer purchase order) which are in any way inconsistent with or in addition to the Terms or such contract, as applicable, are hereby rejected and shall not be binding on Shepard Bros. Any action by Customer in furtherance of a sale or purchase of any chemical products, other products, equipment and services shall constitute acceptance of the Terms.
- PAYMENT AND CREDIT TERMS. All payments shall be made to the address on the Shepard Bros. invoice within the stated terms from the date of invoice. Customer shall pay all applicable sales tax and freight charges.
Credit Card Surcharge: For transactions in which parties have agreed to credit card payments, Shepard Bros. will only agree to accept business credit cards (credit cards issued for business and commercial purposes) and may impose a surcharge of 3.25% on credit card transactions as permitted under applicable law. (Surcharge will not be imposed on credit card transactions governed by the laws of New York, Connecticut, Colorado and Florida).
- WARRANTY AND DISCLAIMER.
2.1 Shepard Bros. will furnish all manufacturer warranties related to equipment to the extent said warranties are still enforceable by Shepard Brothers or the Customer. Except for the foregoing warranty, the equipment is furnished “AS IS”.
2.2 Shepard Bros. warrants that all chemical products and other products to Customer will meet Shepard Bros.’ standard specifications then in effect and be fit for the uses and purposes described in Shepard Bros.’ product literature. All Shepard Bros. services will be performed in a good and workmanlike manner and shall be no less rigorous than those provided for other customers under similar terms and conditions, unless otherwise agreed to with the Customer.
As Customer’s sole remedy for defective, damaged or deficient chemical products, other products, equipment or services, Shepard Bros. will, in its sole discretion, either (i) replace any defective, damaged or deficient chemical product or other products, (ii) re-perform any defective or deficient services Shepard Bros. determines did not meet this warranty, or (iii) refund the purchase price of such chemical products or services. Customer waives any and all other remedies.
This warranty does not apply to (i) damage resulting from misuse, neglect, accident or improper storage of any of the chemical products, other products or equipment by any person or entity other than Shepard Bros. or (ii) any chemical product, other product or equipment altered by any person or entity other than Shepard Bros.
Customer shall make all claims relating to defective, damaged or deficient chemical products, products, equipment or services, in writing, as promptly as possible, but in no event later than 60 days after delivery of said products or equipment or performance of services. For chemical products manufactured by Shepard Bros.’ supplier and relabeled or resold by Shepard Bros., Customer shall make all claims no later than the maximum warranty period provided by Shepard Bros.’ supplier for the chemical product to the extent it is enforceable at the time of the claim. Failure to give notice of such claims within such specified periods shall be deemed an admission by Customer that the product is as represented and warranted by Shepard Bros. and free from all defects and Shepard Bros. shall have no liability with respect to such claim.
If requested by Shepard Bros., Customer shall return nonconforming chemical products, other products or equipment to Shepard Bros. strictly in accordance with Shepard Bros.’ instructions concerning shipping, handling, insurance, and other matters as to which Shepard Bros. issues instructions. Failure to comply with these provisions shall invalidate any claim by Customer for breach of warranty.
2.3 ALL OTHER WARRANTIES FOR EQUIPMENT, SERVICES, CHEMICAL PRODUCTS AND OTHER PRODUCTS PURSUANT TO THE AGREEMENT, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, ARE DISCLAIMED.
- INTELLECTUAL PROPERTY. Shepard Bros. warrants that the manufacturing process of the chemical products do not infringe any valid U.S. patents as far as Shepard Bros. is expressly aware. Customer assumes the entire liability and responsibility and agrees to defend, indemnify and hold harmless Shepard Bros. from and against all claims arising out of or related to infringement of any third party’s intellectual property rights on processes practiced by Customer or products supplied by others that Customer uses for its purposes.
- LIMITATION OF LIABILITY, LIMITATION OF DAMAGES.
SHEPARD BROS. SHALL HAVE NO LIABILITY TO CUSTOMER IF THE CHEMICAL PRODUCT, PRODUCTS, PRODUCTS AND EQUIPMENT ARE NOT USED IN ACCORDANCE WITH ITS INTENDED PURPOSE, THE MANUFACTURER’S INSTRUCTIONS OR THE REQUIREMENTS OF THE FEDERAL FOOD, DRUG AND COSMETIC ACT OR OTHER APPLICABLE LAW.
CUSTOMER ASSUMES ALL RISKS AND RESPONSIBILITY RESULTING FROM THE HANDLING, USE, STORAGE, OR RESALE OF THE CHEMICAL PRODUCTS, PRODUCTS AND EQUIPMENT BY ANY PERSON OR ENTITY OTHER THAN SHEPARD BROS.
SHEPARD BROS. ASSUMES NO OBLIGATION OR LIABILITY FOR ANY TECHNICAL ADVICE GIVEN BY SHEPARD BROS. WITH REFERENCE TO THE USE OF THE PRODUCTS OR EQUIPMENT, OR RESULTS WHICH MAY BE OBTAINED THEREFROM, AND ALL SUCH ADVICE IS GIVEN AND ACCEPTED AT CUSTOMER’S SOLE RISK WITH NO REMEDY AVAILABLE TO CUSTOMER AS TO SHEPARD BROS..
SHEPARD BROS.’ TOTAL LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIM OR LIABILITY ASSOCIATED WITH THE AGREEMENT, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY IS EXPRESSLY LIMITED TO, AT SHEPARD BROS’ OPTION, REPLACEMENT OR REPAIR, AS APPLICABLE, OR PAYMENT IN AN AMOUNT NOT TO EXCEED, IN THE AGGREGATE, THE PURCHASE PRICE OF THE SPECIFIC PRODUCT OR SERVICE FOR WHICH DAMAGES ARE CLAIMED. IN NO EVENT SHALL SHEPARD BROS. BE LIABLE FOR ANY OTHER DAMAGES, LOSSES OR EXPENSES, INCLUDING, WITHOUT LIMITATION, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR SPECIAL DAMAGES OR DAMAGES, LOSSES OR EXPENSES ASSOCIATED WITH LOSS OF PROFITS, BUSINESS, CONTRACTS OR SAVINGS, LOSS OF GOODWILL, LOSS OF PRODUCTION, LOSS OF USE, BUSINESS INTERRUPTION AND ANY OTHER DAMAGES, LOSSES OR EXPENSES OF ANY KIND OR CHARACTER TO CUSTOMER, ITS CUSTOMERS, OR OTHER PERSONS OR ENTITIES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE REASONABLY BEEN FORESEEN.
- LIMITATION OF ACTION. CUSTOMER’S FAILURE TO COMMENCE ANY CAUSE OF ACTION RELATED TO OR ARISING UNDER THE AGREEMENT WITHIN ONE YEAR AFTER THE DATE OF DELIVERY OR SERVICE SHALL FOREVER BAR ALL RIGHTS OF CUSTOMER TO COMMENCE ANY CAUSE OF ACTION WITH RESPECT THERETO NOTWITHSTANDING ANY APPLICABLE STATUTE OF LIMITATIONS. THIS APPLIES TO ALL CAUSES OF ACTION OR CLAIMS INCLUDING THOSE BASED UPON TORT, CONTRACT OR OTHER CAUSES OF ACTION OR CLAIMS.
6. INDEMNITY AND DEFENSE. Customer shall indemnify, defend and hold harmless Shepard Bros. for damages, losses, injuries, costs, expenses, and attorneys’ fees and costs, for any third party claim alleging bodily injury or property damage arising from any allegation of (a) negligence or other misconduct, negligent or intentional, of Customer, (b) violation of law or regulations by Customer, or (c) Customer’s misuse of Shepard Bros. chemical products, products or equipment provided to Customer.
- SHIPMENT OF PRODUCTS. Title and risk of loss or damage with respect to all chemical products, other products, and equipment shall pass from Shepard Bros. to Customer upon delivery of such products to the carrier for shipment to Customer. Unless other terms of delivery are agreed upon, all transportation, handling and insurance charges for the chemical products, other products and equipment, from Shepard Bros.’ point of shipment to destination, shall be borne by Customer. For bulk purchases, Shepard Bros. reserves the right to ship and bill 2% more or less than the exact quantity ordered.
Shepard Bros. reserves the right to refuse, cancel or delay shipment to Customer when Shepard Bros. reasonably believes that Customer may be unable to pay for any shipment pursuant to the terms hereof, when Customer is delinquent in any payments, or when Customer has exceeded its credit limit. Unless at the time of Customer’s acceptance of Shepard Bros’ order confirmation, Customer specifies in writing the desired method of transportation, Shepard Bros. will use its judgment in selecting the carrier and route. Delivery schedules are estimated and assume timely receipt of all necessary information and documentation from Customer, and Shepard Bros. assumes no responsibility for delays. If Customer delays delivery of any product, Shepard Bros. may invoice Customer for such product, and hold it at Customer’s sole risk and expense pending instructions from Customer.
- DELAYS AND INTERRUPTIONS. Shepard Bros. shall not be liable for delay or failure to deliver in whole or in part by reason of contingencies beyond its control or claims of force majeure. In case of curtailment of production for any of the above causes, Shepard Bros. reserves the right to deliver pro-rata the goods, which it produces to all customers from whom it may have orders. If chemical products are shipped in tank wagons or hopper trucks furnished by a carrier or supplier for Shepard Bros., all charges made for detention at destination shall be for Customer’s account and shall be payable to Shepard Bros.
- PRODUCT RETURNS. Products may be returned for credit only upon WRITTEN PERMISSION from Shepard Bros. Shepard Bros. retains sole discretion to determine the value at which products so returned will be credited. Shepard Bros. reserves the right to scrap any unauthorized returns of products on a no credit basis.
- DEFAULTS AND REMEDIES. Customer shall pay a late fee of 5% for payments not received within thirty (30) days of the date of the invoice, plus interest at the rate of 1% per month on overdue balances, subject to applicable usury laws. Furthermore, notwithstanding any other provision of the Terms, in the event of any breach or default by Customer of the Terms, Shepard Bros. shall have the right, without notice or demand, to exercise any one or more of the following remedies: (a) declare payments on any invoice immediately due and payable; (b) sue for and recover all such payments and other payments then due or thereafter accruing hereunder, plus reasonable attorneys’ fees and costs, and interest at the rate provided above or the maximum amount allowed pursuant to applicable law, on all amounts outstanding which are not paid when due hereunder or under any other invoice; and (d) pursue any other remedy available hereunder or at law or in equity with respect to payments.
- CALIFORNIA PESTICIDE MILL ASSESSMENTS. The mill assessment(s) specified in Sections 12841 and 12841.1 of the California Food and Agricultural Code that apply to any registered pesticides will be paid for by Shepard Bros., Inc.
- GENERAL PROVISIONS.
12.1 All specifications, formulae, drawings, contained in Shepard Bros.’ catalogs, website and marketing documents (“Descriptions”) are suggestive only, and are not representations or warranties of any kind.
12.2 Unless Customer is authorized to distribute the chemical products delivered hereunder pursuant to a written agreement with Shepard Bros., the products are for Customer’s internal use only, and Customer may not repackage, resell or otherwise distribute the products to third parties.
12.3 Customer shall not use Shepard Bros.’ trademarks or any part thereof as part of Customer’s name, nor register any name, including domain names, or mark confusingly similar to Shepard Bros.’ trademarks. Customer acknowledges that Customer is not being licensed any right or interest of any kind in Shepard Bros.’ trademarks and that Customer may not use same without prior consent of Shepard Bros.
12.4 The relationship of the parties hereto is that of buyer and seller. Nothing in the Terms, and no course of dealing between the parties, shall be construed to create or imply any employment or agency relationship or a partnership or joint venture relationship between the parties or between one party and the other party’s employees or agents. Accordingly, neither party shall be empowered to bind the other party in any way, to incur any liability or otherwise act on behalf of the other party. Each party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
12.5 The Agreement shall be governed by and construed according to the laws of the State of California. For disputes between the parties where the amount in controversy exceeds $10,000, if the parties are unable to resolve any dispute between them, by informal negotiation, arising out of or related in any way to the sale, purchase or use of the chemical products, equipment or services hereunder, the parties agree to submit the dispute to binding arbitration administered by JAMS in accordance with its Expedited Arbitration Procedures. The arbitration shall take place before a single arbitrator unless the amount in controversy exceeds $1 million, and in such case the arbitration shall take place before a panel of three (3) arbitrators. The arbitrator(s) shall be either an attorney with more than 15 years civil litigation with an emphasis on contract law and/or products liability law experience or a retired judge on the JAMS panel for Orange County or Los Angeles offices of JAMS. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Except as may be required by statute, the arbitrator(s) will have no authority to award exemplary or punitive damages. Arbitrators will only have authority to allocate attorney’s fees if a particular law permits them to do so. The place of arbitration shall be in Los Angeles or Orange County offices of JAMS.
Notwithstanding the foregoing, (i) Shepard Bros. shall be entitled, in its discretion, to instead proceed on collection of overdue accounts receivables in any court having jurisdiction thereof or avail itself of any other legal remedies, and (ii) any disputes arising out of or related to the indemnification provision, above, shall not be subject to this provision.
12.6 Shepard Bros.’ acceptance of any order is subject to Customer’s assent to all of the terms and conditions set forth herein. Customer’s assent to these terms and conditions shall be presumed from Customer’s receipt of Shepard Bros.’ acknowledgment, or from Customer’s acceptance of all or any part of the products ordered. No additions or modifications of Shepard Bros.’ terms and conditions by Customer shall be binding upon Shepard Bros., unless agreed to in writing by an authorized representative of Shepard Bros. If a purchase order or other correspondence submitted by Customer contains terms or conditions contrary or in addition to the terms and conditions contained herein, Shepard Bros.’ fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by Customer, and will not constitute a waiver by Shepard Bros.’ of any of the terms and conditions contained herein.
12.7 In the event that any provision of the Agreement conflict with the law under which the Agreement are to be construed or if any such provision is held invalid by an arbitrator or a court with jurisdiction over the parties, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. The remainder of the Agreement shall remain in full force and effect.