Terms and Conditions of Sale

(updated 04-04-2024)

The following terms and conditions of sale (the Terms and Conditions) govern all sales of goods or services (collectively, Goods) from Hajoca Corporation or its affiliates (Seller) to buyer (Customer).

Governing/Controlling Terms

These Terms and Conditions and the terms and conditions contained in Seller’s Commercial Credit Application shall govern and apply to all purchases of Goods by Customer from Seller, and except as expressly provided herein, shall supersede any terms and conditions contained in any purchase order submitted to Seller by Customer.  Customer shall have assented to these Terms and Conditions if it performs any or all of the following actions: by signing and returning Seller’s quotation; by sending a purchase order in response to the quotation; by submitting instructions to Seller to ship the Goods; or by accepting or paying for the Goods.

All other terms and conditions contained in any prior communication between Customer and Seller, oral or written, including, without limitation, Customer’s purchase order, other than the identity of and quantity of the item(s) being purchased, are null and void and are hereby rejected and shall not be binding upon Seller. Neither Seller’s subsequent lack of objection to any Customer terms, nor the delivery of the Goods, shall constitute an agreement by Seller to any such Customer terms. Trade custom, trade usage and past performance are superseded by these Terms and Conditions and shall not be used to interpret these Terms and Conditions.

Prices.

Except for written job quotations that specifically allow price protection for a certain period of time, all prices are subject to change by Seller without notice.  If prices change, Customer agrees to accept the new prices.

Payment Terms.

Unless set forth on Seller’s Commercial Credit Application or otherwise agreed to in writing, all accounts are due and payable based upon the terms stated on the applicable invoice of Seller, and the remittance address reflected on those invoices. Notwithstanding the foregoing, all orders and lines of credit are subject to Seller’s continuing approval of Customer’s credit. Seller, in its sole discretion, may suspend or cancel performance, or require different payment terms. Customer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with Seller, regardless of whether relating to Seller’s alleged breach of an agreement, bankruptcy, or otherwise.

As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to Seller a security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof.  The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.  Customer agrees to assist Seller in taking any action Seller deems necessary or appropriate to perfect and protect Seller’s security interest, including the filing of any financing statements, continuation statements and other documents under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with respect to the security interest created hereby.

Late Payment.

If Customer fails to make any payment to Seller when due, Customer’s shop account and/or job accounts with Seller shall become immediately due and payable without notice or demand.  Customer acknowledges and agrees that it will be charged a service charge of the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, from the applicable due date until paid, plus Seller’s reasonable costs of collection, and Customer agrees to promptly pay said service charge and interest accrued thereon.  Any portion of a month shall be deemed a full month for the purpose of calculating any service charge and interest.  Waiver of any service charge or interest for any given month by Seller shall not be deemed a waiver of any future service charges or interest. Seller reserves all other rights granted to a seller under the Uniform Commercial Code (UCC) (or equivalent law in the applicable jurisdiction) for Customer’s failure to pay for the Goods or any other breach by Customer of these Terms and Conditions.

Taxes.

Customer shall pay, in addition to the prices quoted, all taxes, including, without limitation, sales, use and excise, imposed by any present or future law on the sale or use of the Goods covered thereby, unless Customer provides Seller with an exemption certificate acceptable to the applicable taxing authorities.  Any taxes which Seller may be required to pay or collect under any existing or future law with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the Goods sold hereunder shall be for the account of Customer, who shall promptly pay the amount thereof to Seller upon demand.

Claims.

No claim for damages, defects, shortages or otherwise shall be valid unless received in writing by Seller within ten (10) days of delivery of Goods to Customer.  Following such ten (10) day period, Customer shall be deemed to have irrevocably accepted the Goods if not accepted by Customer prior thereto.  If the Goods are damaged or defective and the manufacturer acknowledges responsibility under its warranty or otherwise, Seller may, but shall not be required to (i) replace the damaged or defective Goods from inventory, if available, or (ii) allow Customer a credit for the amount of the purchase price of the Goods.  Under no circumstances and in no event shall Seller be liable for personal injury, death or property damage, or any other loss, damage, labor, cost of replacement or repair, or special, exemplary, consequential, incidental, indirect, punitive or liquidated damages, losses, or expenses (whether or not based upon negligence), including lost profits, lost income, lost revenues, business interruption or lost business, even if Seller has been advised of the possibility of such damages.  In no event shall Seller’s responsibility to Customer exceed the purchase price of the Goods purchased.

Special Orders.

Orders for Goods which Seller does not regularly stock may not be cancelled or returned (unless the manufacturer approves the return) for any reason after Seller has placed the order with the manufacturer.  Special packing or handling requests by Customer shall be at Customer’s expense.

Order Cancellation.

Customer may not cancel, change or modify an order without the written consent of Seller and payment by Customer of all applicable cancellation or re-stocking fees.

Returned Goods.

No Goods shall be returned without Seller’s prior written permission and Customer’s proof of purchase.  Returned Goods must be unused and in their original packaging.  All returns are subject to freight, handling, and restocking charges.  Special order and/or non-stock item returns are subject to manufacturers’ approval and credit for such returns is contingent upon that approval.  Customer’s sole and exclusive remedy for Goods alleged to be defective shall be limited to the manufacturer’s inspection and warranty, if any.

Credits; Set-off.

Customer agrees that Seller will apply any credits issued to Customer against Customer’s outstanding invoices.  If Customer has no outstanding invoices, Seller will issue a refund upon Customer’s written request.  Customer shall not be permitted to set off any amounts or credits due Customer against any amount due Seller in connection with this transaction.

Delivery; Back Orders.

Seller shall not be liable or responsible for any loss or damage due to any delays in delivery, or failure to deliver the Goods due to any circumstances beyond Seller’s control, including, but not limited to fire, flood, earthquake or other casualty, accidents, transportation delays, labor disputes, civil disorders, governmental orders or actions, acts of war or terrorism, or inability to secure Goods from Seller’s usual sources of supply.  In no event shall Seller be liable for any special, exemplary, consequential, incidental, indirect, punitive or liquidated damages, losses, or expenses (whether or not based upon negligence), including lost profits, lost income, lost revenues, business interruption or lost business, even if Seller has been advised of the possibility of such damages.  In no event shall Seller’s liability to Customer and/or any third party exceed the price paid by Customer or such party for the specific Goods or portion of the Goods giving rise to the claim or cause of action.  Back orders will be shipped as received unless Customer and Seller agree to different terms.

Shipment and Risk of Loss.

Unless otherwise agreed by the parties in writing, all Goods are shipped F.O.B. point of shipment.  Risk of loss shall transfer to Customer upon tender of Goods to Customer or a common carrier.  Any claims for shortages or damages suffered in transit are the sole responsibility of Customer and shall be submitted by Customer directly to the carrier. Shortages or damages must be acknowledged and signed for at the time of delivery. Seller reserves the right to make partial shipments and to place certain orders on “back order.” If Customer requires a more expensive routing and/or means of shipment, special packing, or special handling, Customer agrees that all additional costs and fees shall be added to the amount of the order of the applicable Goods. In addition, if the shipment of Goods is postponed or delayed by Customer for any reason, Customer agrees to reimburse Seller for any handling and storage costs, and other additional expenses resulting therefrom.

On shipments made directly to Customer from the manufacturer, the sale is complete and Seller’s responsibility to Customer ends upon delivery to the common carrier.  Claims for Goods damaged or lost in transit must be made by Customer directly to the carrier and Seller shall have no liability for such claims. In any event, Customer shall assume all risk and liability for all loss, damage or injury to any person or property resulting from the installation and/or use of the Goods.

Force Majeure.

Seller shall be excused for the period of any delay in the performance of any obligations when prevented from so doing by causes beyond its control, including without limitation, acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster or casualty), civil commotion, government sanction, blockage, embargo, labor disputes, strike, lockout, inability to obtain any material or services, war (declared or undeclared) or acts of terrorism.

Warranty Disclaimer.

Seller warrants that it has title to the Goods sold.  EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, ALL GOODS AND/OR SERVICES PROVIDED BY SELLER AND ITS EMPLOYEES AND AGENTS ARE PROVIDED AS IS, WHERE IS, AND WITH ALL FAULTS.  SELLER MAKES NO, AND HEREBY DISCLAIMS, WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE WITH RESPECT TO THE GOODS REFERRED TO HEREIN. CUSTOMER’SSOLE AND EXCLUSIVE WARRANTY, IF ANY, IS THAT PROVIDED BY THE APPLICABLE THIRD PARTY MANUFACTURER, THE TERMS OF WHICH WILL BE FURNISHED UPON REQUEST.

INDEMNIFICATION.

CUSTOMER HEREBY ASSUMES AND AGREES TO INDEMNIFY, DEFEND, PROTECT, SAVE, KEEP, AND HOLD HARMLESS SELLER, ITS OWNERS, OFFICERS, DIRECTORS, AGENTS, ADVISORS, EMPLOYEES, AND INVITEES (COLLECTIVELY THE INDEMNITEES) FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, INJURIES, CLAIMS, CAUSES OF ACTION, LIABILITIES, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND OTHER LEGAL EXPENSES) OF WHATSOEVER KIND AND NATURE, WHETHER KNOWN OR UNKNOWN, FOR INJURY TO, OR ILLNESS OR DEATH OF ANY PERSON AND FOR ALL DAMAGE TO, LOSS OR DESTRUCTION OF PROPERTY OR VIOLATION OF ANY APPLICABLE LAWS OR REGULATIONS (COLLECTIVELY LOSSES), RELATING TO, CONNECTED WITH IN ANYWAY, ARISING OUT OF, OR ARISING OUT OF THE GOODS OR SERVICES PURCHASED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING OBLIGATIONS WILL APPLY EVEN IF AN INDEMNITEE’S CONDUCT HAS CONTRIBUTED TO THE LOSSES, BUT BUYER’S INDEMNIFICATION WILL NOT APPLY TO THE EXTENT THAT LOSSES WERE SOLELY AND DIRECTLY CAUSED BY AN INDEMNITEE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. BUYER’S OBLIGATION TO DEFEND AND INDEMNIFY HEREUNDER WILL ALSO APPLY REGARDLESS OF WHETHER THE CLAIM ARISES IN TORT, NEGLIGENCE, CONTRACT, WARRANTY, STRICT LIABILITY OR OTHERWISE. This paragraph shall survive the termination of the transaction between Buyer and Seller indefinitely.

Compliance.

Each party will at all times and at its own expense: (i) strictly comply with all applicable laws, rules, regulations, ordinances and governmental orders, now or hereafter in effect, relating to its performance under these Terms and Conditions, including, without limitation, export and import laws and regulations; (ii) pay all fees and other charges required by such laws, rules, regulations and orders; and (iii) maintain in full force and effect all licenses, permits, authorizations, registrations and qualifications from all applicable governmental departments and agencies to the extent necessary to perform its obligations hereunder. If requested by Seller, Customer will sign written assurances and other export or import related documents, as may be required under applicable U.S. Export Control Laws.

Lead Free Goods.

Some of the Goods sold by Seller may contain materials deemed potentially harmful under federal and state legislation.  Customer agrees it is solely responsible for specifying on each purchase order whether any Goods are for potable or non-potable use.  Seller shall not be responsible or liable for any losses or damages sustained by Customer or any other party as a result of misapplication of the Goods by Customer or such other party in violation of applicable law, including without limitation the Safe Drinking Water Act, Reduction of Lead in Drinking Water Act, California and other state and federal laws related to the limitation of lead in products used for the conveyance of drinking water. This paragraph shall survive the termination of this transaction indefinitely.

Intellectual Property.

Customer acknowledges Seller is the owner or licensor of brands, trademarks, designs, patents, copyrights and other intellectual property relating to the Goods, and that no right or license is conveyed by Seller to Customer to manufacture, have manufactured, modify, reproduce, import or copy such Goods.

Dispute Resolution/Venue.

Any dispute arising out of this transaction shall be resolved by litigation or binding arbitration (Dispute Resolution) at Seller’s sole option.  Such Dispute Resolution shall be conducted at a location selected by Seller and in the event of binding arbitration, by an arbitration service selected by Seller.  A single arbitrator shall preside over the arbitration, and the decision of the arbitrator shall be final and binding upon the parties.  If the parties cannot agree upon a single arbitrator, the procedure of the arbitration service selected by Seller shall be used to select an arbitrator.  All actions arising out of or related to this transaction or the Goods sold hereunder, regardless of form or theory of liability, must be brought against Seller within the applicable statutory period, but in no event more than one (1) year after the date of invoice.

Costs of Collection.

If Seller retains or employs attorneys or other agencies in order to secure payment of any sums due from Customer, or otherwise enforce the terms of this document, including, but not limited to, the filing of foreclosure actions on liens filed due to Customer’s failure to make payment, Customer agrees to pay attorney and/or collection fees, costs, and any and all other related expenses in addition to all sums due.

Authority; Personal Liability.

The person(s) executing this document on behalf of Customer hereby represents he/she has authority to execute this document on behalf of Customer and acknowledges if no such authority exists that he/she by executing this document becomes personally liable under its terms.

Modification.

The terms and conditions contained herein may not be amended, modified, supplemented, superseded or otherwise altered in any way except by a writing signed by an authorized representative of both Customer and Seller.

Non-waiver.

Seller’s failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of Seller’s rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future.  No waiver of any term or condition hereunder shall be valid unless in writing and signed by an authorized representative of Seller.

Severability.

If any term or provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, regulations, or ordinances of any federal, state, or other government to which this transaction is subject, such term or provision shall be fully severable and the remaining terms and provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable term or provision.

Entire Agreement.

These Terms and Conditions constitute the entire, complete, and exclusive agreement between Customer and Seller with respect to the subject matter hereof and contains all the agreements and conditions of sale.  No course of dealing or usage of the trade shall be applicable unless expressly incorporated herein.