Standard Sales Terms and Conditions
Unless otherwise specifically agreed to in writing by Redmond Trading Company, L.C. (“Redmond”), these Sales Terms and Conditions shall apply to any and all orders placed by any Purchaser for products of Redmond. In these Sales Terms and Conditions, the party to whom Redmond’s Quotation, Sales Order, or Invoice is addressed is referred to as the “Purchaser.”
1. ACCEPTANCE. Redmond’s acceptance of all orders and all offers and sales by Redmond are subject to and expressly conditioned upon Purchaser’s assent to the terms and conditions of these Sales Terms and Conditions. Purchaser’s acceptance of any offer by Redmond must be made on such terms and conditions exactly as offered by Redmond. Any of Purchaser’s terms and conditions which are different from or in addition to those contained in these Sales Terms and Conditions shall be of no effect unless specifically agreed to in writing by Redmond. Commencement of performance or shipment shall not be construed as acceptance of any of Purchaser’s terms and conditions which are different from or in addition to those contained in the Agreement. If a contract is not earlier formed by mutual agreement in writing, acceptance by Purchaser of products furnished by Redmond pursuant hereto shall be deemed Purchaser’s assent to all of the terms and conditions of these Sales Terms and Conditions.
These Sales Terms and Conditions shall be governed by the laws of the State of Utah as if made and any transactions contemplated hereby are to be performed entirely within such state, without reference to its conflicts of laws principals. Purchaser submits to the exclusive personal jurisdiction of United States Federal District Court in Salt Lake City, Utah or Utah State Courts located in Salt Lake City, Utah (the “Utah Courts”). Purchaser agrees that the Utah Courts have subject matter jurisdiction over all claims and disputes and agrees that venue for resolution of any claims or dispute properly lies in the Utah Courts.
2. ORDERS AND PRICES. Proposals for Redmond to supply products to Purchaser are valid for 30 days from issuance unless otherwise agreed to by Redmond in writing. All prices are expressed in U.S. dollars. Orders may not be cancelled or modified, either in whole or part, without Redmond’s express written consent. If Redmond consents to any order modification or cancellation, it may impose an order modification or cancellation fee. All prices are as stated in Redmond’s quote and specifically override any prices referenced in Purchaser’s purchase order. Prices for orders for immediate shipment are prices in effect at time of receipt of order. Qualifying orders specifying future delivery will be invoiced at prices and terms in effect at time of shipment. The prices stated in these Sales Terms and Conditions are in U.S. dollars and do not include transportation, insurance or any sales, use, excise or other taxes, duties, fees or assessments imposed by any jurisdiction. All applicable taxes will be paid by Purchaser, unless Purchaser provides Redmond with appropriate tax exemption certificates, and if Purchaser requests that Redmond ship products to Purchaser’s customer, Purchaser must provide Redmond with a valid resale certificate or other valid exemption certificate for its customer, and Purchaser hereby indemnifies Redmond for all taxes, costs, fees, expenses, penalties, and other charges if Purchaser cannot provide adequate evidence that it remitted the applicable sales tax to the destination state. Any amounts paid at any time by Redmond that are the responsibility of Purchaser shall be invoiced to Purchaser and reimbursed to Redmond. All prices and other terms are subject to correction for typographical or clerical errors.
3. TERMS OF PAYMENT. All payments shall be in U.S. dollars. Purchaser shall pay for products in cash upon delivery, unless an earlier or later time for payment is specified in the order acknowledgement (in which case payment shall be due at the time so specified). Each shipment shall be considered a separate and independent transaction and payment for each shipment shall be due accordingly.
Redmond may, at its option, elect to extend credit to Purchaser. There are no discounts for early payment unless otherwise previously agreed to in writing by Redmond. If Redmond extends credit to Purchaser, invoices will be issued upon shipment and payment shall be due in full within thirty (30) days from the invoice date or such other date as may be specified on the Invoice. Redmond reserves the right to change the amount of or withdraw any credit extended to Purchaser.
Amounts not paid when due shall be subject to interest at the rate of one and one-half percent (1½%) per month or, if less, the maximum rate permitted by law.
In the event of the bankruptcy or insolvency of Purchaser, or the filing of any proceeding by or against Purchaser under any bankruptcy, insolvency or receivership law, or in the event Purchaser makes an assignment for the benefit of creditors, Redmond may, at its election and without prejudice to any other right or remedy, exercise all rights and remedies granted Redmond in Section 7 as in the case of a default by Purchaser under these Sales Terms and Conditions.
Redmond may, at its option, factor any invoice or assign the right to collect payment on any invoice to any party without prior notice or consent of Purchaser.
4. DELIVERY, TITLE AND RISK OF LOSS. Unless otherwise agreed to in writing by Redmond, products shall be shipped FOB Redmond’s warehouse facility in Heber City, Utah or FOB any designated Redmond inventory site to any location designated by Purchaser and shall be deemed delivered to Purchaser when delivered to the transportation company at the shipping point. Unless otherwise agreed to in writing by Redmond, all transportation charges and expenses shall be added to the invoice and paid by Purchaser, including the cost of any insurance against loss or damage in transit which Redmond may obtain at Purchaser’s written request. Redmond reserves the right to ship products freight collect. Redmond hereby reserves, and Purchaser hereby grants to Redmond, a purchase money security interest in all products purchased under these Sales Terms and Conditions, together with all proceeds thereof, including insurance proceeds. Such security interest secures all of Purchaser’s obligations arising under these Sales Terms and Conditions, and any other agreements between Purchaser and Redmond, until all amounts due Redmond hereunder have been paid in full. Purchaser agrees upon Redmond’s request to sign appropriate financing statements evidencing Redmond’s security interest.
Subject to the security interest reserved to Redmond, title and risk of loss and/or damage to products shall pass to Purchaser upon delivery of the products to the transportation company at the shipping point. Confiscation or destruction of or damage to products shall not release, reduce or in any way affect the liability of Purchaser. In the event Purchaser rejects or revokes acceptance of any products for any reason, all risk of loss and/or damage to such products shall nonetheless remain with Purchaser unless and until the same are returned at Purchaser’s expense to such place as Redmond may designate in writing.
All products must be inspected upon receipt and claims filed by Purchaser with the transportation company when there is evidence of shipping damage, either concealed or external.
5. PERFORMANCE. Redmond will make a reasonable effort to observe the dates specified herein or such later dates as may be agreed to by Purchaser for delivery or other performance, but Redmond shall not be liable for any delay in delivery or failure to perform due to acceptance of prior orders, strike, lockout, riot, war, fire, acts of God, accident, delays caused by any subcontractor or supplier or by Purchaser, technical difficulties, failure or breakdown of machinery or components necessary for order completion, inability to obtain or substantial rises in the price of labor or materials or manufacturing facilities, curtailment of or failure to obtain sufficient electrical or other energy supplies, or compliance with any law, regulation, order or direction, whether valid or invalid, of any governmental authority or instrumentality thereof, or due to any circumstances or any causes beyond its reasonable control, whether similar or dissimilar to the foregoing and whether or not foreseen. As used herein, “performance” shall include, without limitation, shipment, delivery, testing, and warranty replacement, as applicable.
Purchaser agrees that any delay in delivery or failure to deliver or perform any part of these Sales Terms and Conditions shall not be grounds for Purchaser to terminate or refuse to comply with any provisions hereof and no penalty of any kind shall be effective against Redmond for such delay or failure; provided, however, that if the delay or failure extends beyond six (6) months from the originally scheduled date either party may, with written notice to the other, terminate these Sales Terms and Conditions without further liability for the unperformed part of these Sales Terms and Conditions.
6. ACCEPTANCE. All products delivered hereunder shall be deemed accepted by Purchaser as conforming to these Sales Terms and Conditions, and Purchaser shall have no right to revoke any acceptance, unless written notice of the claimed nonconformity is received by Redmond within thirty (30) days of delivery thereof. Notwithstanding the foregoing, any use of a product by Purchaser, its agents, employees, contractors or licensees, for any purpose, after delivery thereof, shall constitute acceptance of that product by Purchaser.
Invoiced overages and product shortages must be reported within 30 days of invoice date. Any discrepancy not reported within 30 days will not be considered for an adjustment. Redmond will not receive or credit any products returned without Redmond’s consent.
7. DEFAULT AND TERMINATION. Purchaser may terminate these Sales Terms and Conditions if Redmond materially defaults in the performance of its obligations hereunder and fails to cure such default within sixty (60) days after written notice thereof from Purchaser. Such termination shall be Purchaser’s sole remedy in the event of a default by Redmond.
Purchaser shall be deemed in material default under these Sales Terms and Conditions if Purchaser fails to pay any amounts when due hereunder, cancels or attempts to cancel these Sales Terms and Conditions prior to delivery or refuses delivery or otherwise fails to perform any of its obligations hereunder or fails to pay Redmond any sums due under any other agreement or otherwise. In the event of a material default by Purchaser, Redmond may, upon written notice to Purchaser, (1) suspend its performance and withhold shipments, in whole or in part, (2) terminate these Sales Terms and Conditions, (3) declare all sums owing to Redmond immediately due and payable, and/or (4) recall products in transit, retake same and repossess any products held by Redmond for Purchaser’s account, without the necessity of any other proceedings, and Purchaser agrees that all products so recalled, taken or repossessed shall be the property of Redmond, provided that Purchaser is given credit therefor. Exercise of any of the foregoing remedies by Redmond shall not preclude exercise of any of the others, and neither the existence nor exercise of such remedies shall be construed as limiting, in any manner, any of the rights or remedies available to Redmond under the Uniform Commercial Code or other laws.
8. INTELLECTUAL PROPERTY RIGHTS. The sale of products hereunder does not convey any express or implied license under any copyright, trademark or other proprietary rights owned or controlled by Redmond, whether relating to the products sold or any other matter. All rights under any such copyright, trademark or other proprietary rights are expressly reserved by Redmond. Purchaser shall not make unauthorized use of any trademarks, pictures, or depictions that may accompany Redmond’s products.
9. LIMITED WARRANTY. Redmond warrants that for a period of sixty (60) days from the date of delivery to Purchaser or Purchaser’s agent that all products sold or conveyed to Purchaser from Redmond are free from unreasonable defects, damages and shortages. THIS LIMITED WARRANTY IS MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY AND CLAIMS. If Redmond, in its sole discretion, approves a claim covered under the Limited Warranty, Redmond’s sole obligation will be to replace defective items with items of comparable value to the extent commercially practicable or refund at the selling price any defective, damaged or shorted products. THE FOREGOING WILL CONSTITUTE THE EXCLUSIVE REMEDY FOR THE LIMITED WARRANTY. REDMOND’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE SHALL IN NO EVENT EXCEED THE AMOUNT, IF ANY, RECEIVED BY REDMOND HEREUNDER. LIABILITY OF REDMOND IS LIMITED TO THE ABOVE, AND IN NO EVENT WILL REDMOND BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ECONOMIC, LOSS OF PROFITS, OR OTHER DAMAGES OF ANY KIND WHATSOEVER. This provision is applicable to claims for breach of warranty, tortious conduct, or any other cause of action asserted against Redmond.
11. NO PRIVATE LABEL. As an express condition of sale, Purchaser shall not repackage, private label, or re-label products of Redmond for the purpose of re-selling such to third parties without the prior written consent of Redmond.
12. ENTIRE AGREEMENT. these Sales Terms and Conditions constitutes the entire agreement of the parties and supersedes all prior negotiations, proposals, agreements and understandings, whether oral or written, relating to the products to be purchased hereunder or otherwise relating to the subject matter of these Sales Terms and Conditions. Any representation, warranty, course of dealing or trade usage not expressly contained or referenced herein shall not be binding on Redmond.
13. ATTORNEY’S FEES. In the event of default in payment of the purchase price or any part thereof, Purchaser agrees to pay Redmond’s expenses, including reasonable attorney’s fees and court costs, incurred by Redmond in enforcing payment thereof.
14. ASSIGNMENT. Purchaser shall not assign or transfer any rights or claims under these Sales Terms and Conditions without the prior written consent of Redmond, and any purported assignment made without such consent shall be void. These Sales Terms and Conditions shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties.
15. GENERAL. No modification, amendment, rescission, waiver or other change in these Sales Terms and Conditions shall be binding on Redmond unless agreed to in writing by Redmond. The invalidity or unenforceability, in whole or in part, of any provision herein shall not affect the validity or enforceability of any other provision herein. Failure or delay on the part of either party to exercise any right, power, privilege or remedy herein shall not constitute a waiver thereof. The section headings contained herein are for convenience of reference only and are not to be used in the construction or interpretation of these Sales Terms and Conditions. In the event that any of the terms or conditions of these Sales Terms and Conditions modify or conflict with any provisions, terms, or conditions noted on any Quotation, Sales Order, or Invoice, these terms shall control.
16. NOTICES. Notice to Redmond under these Sales Terms and Conditions or any transaction contemplated hereby must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address below or to such other address (including facsimile or email) that Redmond may designate from time to time, and will be effective upon receipt.
Redmond Trading Company, L.C.
475 West 910 South
Heber City, UT 84032
Revision Date: April 17, 2013