CONTRACT FOR SALE OF GOODS
Transfer Flow is a manufacturer of various automotive products, including but not limited to fuel tanks (the “Goods”); and Buyer desires to purchase Goods from Transfer Flow, and Transfer Flow is willing to sell Goods to Buyer, pursuant to the terms of this Contract.
Transfer Flow and Buyer hereby agree as follows:
SALE OF GOODS:
This Contract is understood and agreed to be a contract for the sale of goods under Division 2 of the California Commercial Code (the “Code”). The provisions of the Code shall, as modified by this Contract, apply to the purchase by Buyer, and the sale by Transfer Flow, of the Goods. It is further agreed that this Contract is not an “output contract”, a “requirements contract”, or an “exclusive dealing contract”. Transfer Flow expressly reserves the right to sell any of its Goods to any other parties. It is further agreed that this Contract is not a “sale on approval” or a “sale or return”. It is also agreed that both Transfer Flow and Buyer are “merchants” (as defined in the Code) and that the sale of Goods is not a retail sale, a consumer sale, or a sale for the Buyer’s personal, family or household purpose.
TERMS OF PURCHASE:
- Orders: All orders for Goods placed by Buyer shall be in writing, fax, email, or from the official Transfer Flow website. All orders shall be subject to written acceptance by Transfer Flow.
- Minimum Order Size: The minimum order amount for Transfer Flow is $30. Orders for items totaling less than this amount will be increased to $30.
- Prices: Buyer shall purchase Goods at the prices in effect at the time of order. Transfer Flow may implement price changes at any time during the term of this Contract.
- Delivery: All Goods shall be shipped FOB shipping point. Buyer shall be responsible for all shipping charges from the Transfer Flow factory.
- Risk of Loss: All risk of loss for the Goods shall pass to the Buyer upon Seller putting the Goods into the possession of the carrier. Buyer (and not Seller) shall bear the risk of any loss during shipment.
- Payment: Transfer Flow shall invoice Buyer for the Goods at the time of shipment and Buyer shall, unless otherwise approved by Transfer Flow prior to shipment, pay such invoices by (1) credit card or (2) on approved terms basis.
- Change Fees: Transfer Flow will reserve the right to assess a Change Fee of up to 5% of the order’s value, if the buyer requests a modification to the original order’s delivery date.
- Rush Fees: Rush typically fall between 10% and 20% of the order value. Rush fees will carry a minimum charge of $200. These charges must be agreed upon by both Transfer Flow and the Buyer in writing and in advance of any accelerated timelines.
- Storage Fees: Storage fees are assessed at Transfer Flow’s discretion when ordered product is ready, and this is communicated to the Buyer, but shipment is delayed by the Buyer. A 2% fee will be assessed per week on the value of that order, and these fees will be assessed on the first day of each two-week period (e.g., day 16, day 30 and so on). These charges will have a $200.00 minimum per instance.
- Late Fees: Invoices paid after the Buyer’s specific payment terms have expired are subject to a late fee. A 2% late fee will be assessed monthly, beginning with the first day the account has become past dues (and then again on day 31, 61 and so on). Charges are not prorated for partial months.
- Certificate of Limited Warranty: Transfer Flow’s Certificate of Limited Warranty, as it may be revised by Transfer Flow from time-to-time, is herein incorporated by reference.
- Limited Warranty: The terms of Transfer Flow’s Certificate of Limited Warranty specify the only warranties provided by Transfer Flow; all other warranties (of any type or kind – express, implied, or otherwise) are hereby excluded, disclaimed, and negated.
- Restocking Fees: When product is returned in sellable condition with previous notice and an issued RMA number, restocking fees will be first applied before credit or refund is issued. These fees will be $200 for a fuel system and $50 for a less expensive part.
RELATIONSHIP OF PARTIES AND INDEMNIFICATION OF Transfer Flow:
- Buyer and Seller: The relationship of the parties established by this Contract is solely that of a “Buyer” and “Seller”, as defined in the Code.
- No Authority to Bind Transfer Flow: Nothing in this Contract, or otherwise, shall be construed as constituting an appointment of the Buyer as an agent, legal representative, joint venturer, partner, employee, or servant of Transfer Flow for any purpose whatsoever. The Buyer is not authorized to transact business, incur obligations, sell goods, solicit orders, or assign or create any obligation of any kind (express or implied), on behalf of Transfer Flow, or to bind Transfer Flow in any way whatsoever, or to make any contract, promise, warranty, or representation on Transfer Flow’s behalf with respect to the Goods or any other matter, or to accept any service of process upon Transfer Flow or receive any notice of any nature whatsoever on Transfer Flow’s behalf.
- Indemnification: Under no circumstances shall Transfer Flow be liable for any act, omission, contract, debt, or other obligation of any kind of the Buyer or any salesman, employee, agent, or other person acting for or on behalf of the Buyer. The Buyer shall protect, defend (by attorneys acceptable to Transfer Flow), indemnify, and hold Transfer Flow harmless from and against any and all claims, liabilities, losses, damages, or expenses (including reasonable attorney’s fees and costs) arising directly or indirectly from, as a result of, or in connection with, the Buyer ‘s operations of the Buyer’s business. The terms of this indemnity shall survive any termination of this Contract.
DUTIES OF THE BUYER:
- Sales Activities: The Buyer agrees to use Buyer’s best efforts to vigorously and actively promote the sale of the Goods.
- Staff Training: The Buyer shall use its best efforts to train Buyer’s employees and agents as to the proper usage and application of the Goods in accordance with Transfer Flow instruction sheets, as supplied by Transfer Flow to the Buyer. All instruction sheets provided must be followed for each installation as instructions may change at any time.
- Reputation: The Buyer shall continually maintain (to the satisfaction of Transfer Flow) a general reputation for honesty, integrity, and good credit standing and shall maintain the highest quality standards.
Transfer Flow shall be excused from any delay or non-performance in the delivery of an order, and the Buyer shall have no claim for damage, if and to the extent such delay or failure is caused by occurrences beyond the control of Transfer Flow, including, but not limited to, market conditions; acts of God; war, acts of terrorism, riots, and civil disturbances; expropriation or confiscation of facilities or compliance with any order or request of governmental authority; strikes, labor or employment difficulties whether direct or indirect; or any cause whatsoever which is not within the reasonable control of Transfer Flow. Transfer Flow shall, upon the occurrence of any such event, promptly notify the Buyer of the existence of any such force majeure condition and the anticipated extent of the delay or non-delivery.
LIMITATION OF BUYER’S REMEDIES:
If Transfer Flow, for any reason whatsoever, fails or is unable to deliver any Goods ordered by the Buyer, the Buyer’s SOLE AND EXCLUSIVE remedy shall be the recovery of the purchase price, if any, paid by the Buyer to Transfer Flow for such Goods. Transfer Flow shall not incur any liability whatsoever for any delay in the delivery to the designated delivery location of any Goods. In no event shall Transfer Flow be liable for any incidental, consequential or other damages arising out of any failure by Transfer Flow to deliver any Goods to the Buyer, or for any delay in the delivery thereof.
- Use of Transfer Flow Name: Transfer Flow expressly prohibits any direct or indirect use, reference to, or other employment of its name, trademarks or trade name exclusively licensed to Transfer Flow, except as specified in this Contract or as expressly authorized by Transfer Flow in writing. All advertising and other promotional material will be submitted to Transfer Flow at least two weeks in advance and will only be used if Transfer Flow consents thereto, which consent shall not be unreasonably withheld. Transfer Flow hereby authorizes and requires Buyer’s use of Transfer Flow’s insignia or lettering which will be on the Goods at the time of delivery. The Buyer shall submit to Transfer Flow in writing full particulars prior to any use of the authorized legends, on stationery, invoices, promotion material or otherwise, and shall not proceed with such use unless and until Transfer Flow’s written approval shall have been received. If Transfer Flow’s authorized name, trademarks, and/or legend is used on any stationery, invoices, promotion material or otherwise by Buyer, Buyer will, on termination of this Contract, or upon request of Transfer Flow, discontinue the use of such item(s) on any stationery, invoices, promotion material or otherwise and hereafter will not use, either directly or indirectly in connection with Buyer’s business, such legend or any other names, title of expressions so nearly resembling the same as would likely lead to confusion or uncertainty, or to deceive the public.
- Drawings and Data: Transfer Flow may supply drawings and data for the proper installation, test, operation, and maintenance of the Goods. Portions of these drawings and data are proprietary in nature and will be so marked. Buyer agrees to abide by the terms of such markings and to be liable for all loss or damage incurred by Transfer Flow as a result of the improper or unauthorized use of such drawings and data. Transfer Flow retains for itself all proprietary rights in and to all designs, engineering details, and other data pertaining to Goods and to all discoveries, inventions, patent rights, etc., arising out of work done in connection with this Contract and to any and all Goods developed as a result thereof, including the sole right to manufacture any and all such Goods.
- Proprietary Information: As used in this Contract, “Proprietary Information” means information developed by or for Transfer Flow which is not otherwise generally known in any industry. All marketing and sales methods, materials, processes, procedures, devices utilized by Transfer Flow, prices, quotes, suppliers, manufacturers, trade secrets, and other confidential information of any type, together with all written, graphic, and other materials relating to all or any part of the same shall be deemed to be Proprietary Information. Any use, reproduction, or disclosure by Buyer of the contents of these items or any portion thereof for any purpose must be approved in writing by Transfer Flow. Except as authorized in writing by Transfer Flow, Buyer shall not at any time, either during or after the term of this Contract, disclose or use, directly or indirectly, any Proprietary Information of which the Buyer gains knowledge during, or by reason of this Contract, and Buyer shall retain all such information in trust in a fiduciary capacity for the sole use and benefit of Transfer Flow.
TERM AND TERMINATION:
- Termination Without Cause: Either Transfer Flow or Buyer may terminate this Contract at any time, without cause, by giving the other party ( ) days advance written notice of the termination.
- Default by the Buyer: This Contract may be IMMEDIATELY terminated by Transfer Flow upon (1) the failure of the Buyer to pay for the Good purchased by the Buyer, or (2) the filing of a petition in bankruptcy or for reorganization under the Bankruptcy Act by the Buyer, or (3) the making of an assignment for benefit of creditors by the Buyer, or (4) any breach of this Contract by Buyer or (5) the Buyer’s taking any action or failing to act in such a manner as to unfavorably reflect upon Transfer Flow.
- Repurchase of Goods on Termination: In the event of the termination of this Contract by either party for any reason, Transfer Flow may - at its option - repurchase from Buyer, at the net price paid by Buyer to Transfer Flow, plus actual freight on the shipment thereof to Buyer, any Goods and repair and replacement parts on hand in Buyer’s place of business or in the possession of Buyer. On demand and the tender of the repurchase price, Buyer shall be obligated to promptly deliver such Goods to Transfer Flow; provided, however, Transfer Flow reserves the right to reject any Goods, or repair or replacement part not in first-class condition.
- Complete Agreement: This Contract constitutes the entire agreement, and supersedes all prior agreements and understandings, oral and written, among the parties to this Contract with respect to the subject matter hereof. This Contract may be amended only by written agreement executed by all of the parties hereto. No purchase order or sales form of or from Buyer will be applicable to any sales pursuant to this Contract and only the terms of this Contract shall govern such sales of Goods.
- Applicable Law; Jurisdiction and Venue: This Contract shall be construed under, and governed by, the laws of California. The parties agree that jurisdiction and venue for any legal proceedings arising from or in any way connected to this Contract will lie in the Superior Court of Butte County, California. Both parties hereby submit and consent to the jurisdiction and venue of said court.
- Severability: If any provision of this Contract is unenforceable or invalid, the Contract shall be ineffective only to the extent of such provisions, and the enforceability or validity of the remaining provisions of this Contract shall not be affected thereby.