3. Default: In consideration of DMG extending credit to Customer, Customer promises full and prompt payment of all indebtedness, obligations and liabilities of every kind, present and future, incurred by Customer for goods and/or services (“Goods”) purchased from DMG. Customer’s failure to make timely payment of any invoice shall result in Customer’s account being deemed in default, which may result in the account being placed on a COD basis, suspended, or cancelled; in the event of Customer’s default, DMG may (at its option) declare all indebtedness owed by Customer to DMG immediately due and payable. A service charge of 18% per annum (1.5% per month) shall be assessed on all delinquent invoices. If Customer’s account is referred to an attorney or collection agency to collect on any indebtedness owed to DMG, Customer agrees to pay upon demand from DMG, all costs of collection, including reasonable attorneys’ fees and court costs.
4. Security Agreement: In order to provide security for the payment of the full price of Goods furnished hereunder, Customer grants DMG a first priority purchase money security interest in and to any and all Goods sold by DMG to Customer (and all products and proceeds thereof) until paid in full. Customer authorizes DMG to file a UCC financing statement to perfect this security interest.
5. Customer Credit Information: Customer acknowledges that DMG is relying upon the information provided in this Agreement to determine whether to extend credit to Customer and in what amount. DMG reserves the right to approve or disapprove any request for extension of credit in its sole discretion. Customer authorizes DMG to contact the Commercial Trade References provided by Customer for the purpose of extending credit and thereafter renewing, maintaining and enforcing the terms of such extension of credit. Customer authorizes the Commercial Bank Reference named herein to release information requested for the purpose of obtaining and/or reviewing Customer’s credit. Customer warrants that it is not a “consumer” under State and Federal Law and Customer certifies that all requests for the extension of credit are for business purposes only and are not intended for the extension of credit for personal, family or household purposes. Customer agrees it has a continuing duty and will inform DMG immediately in writing of any changes to the information provided by Customer in this Agreement. Customer represents to DMG that it is solvent as of the date of this Agreement and continues to warrant and represent each time it places a future order.
6. Risk of Loss: All shipments are made F.O.B. factory. Customer assumes all responsibility for shortages, loss, delay or damage in transit after issuance of a clean bill of lading to DMG or the goods’ manufacturer, and any and all claims must be made by Customer against the carrier.
7. Insurance: Customer will maintain general liability insurance coverage in the amounts required by applicable laws and any other insurance coverage appropriate for the projects undertaken by Customer. Upon request, Customer will provide DMG a certificate evidencing such coverage.
8. Indemnification: Customer shall, to the fullest extent permitted by law, indemnify, defend, and hold harmless DMG from and against any and all claims and liability for injuries or loss to persons or property, or fines, or other damages, including all costs, expenses (including attorneys’ fees), legal and otherwise (“Claims”), arising from or relating to in whole or in part to this Agreement or any use or possession of Goods sold hereunder, or any fraud, misrepresentation, negligent act, negligent failure to act (including the failure to properly store or handle goods, sole negligence, or violation of statute or government regulation, by Customer. However, Customer shall not be obligated to indemnify DMG for Claims arising out of the sole negligence, active negligence, or willful misconduct of DMG.
9. WARRANTIES: For all goods sold to Customer, DMG passes on the manufacturer’s warranty, if any, for such goods to Customer. SAID MANUFACTURER’S WARRANTY, IF ANY, IS EXCLUSIVE AND GIVEN IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES OF EVERY TYPE AND KIND IN CONNECTION WITH EVERY SALE OF GOODS AND/OR SERVICES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXCLUDED AND DISCLAIMED IN ALL RESPECTS.
10. Cancellations and Returns: Customer may not cancel or return any order of Goods without DMG’s express written consent. Customer agrees that any cancellation or return of Goods so authorized by DMG: (i) must be approved in writing by the goods’ manufacturer; (ii) obligates the Customer to timely pay the cancellation/restocking charge of the goods’ manufacturer (which is at least 15%), plus all applicable freight; and (iii) obligates the Customer to pay DMG’s charges and costs, which may include but is not limited to submittal preparation, factory costs, overhead and profit, and all other fees which shall be enumerated by DMG.
11. Orders Placed on Hold After Release for Production: All requests by Customer to place an order on hold must be approved in writing by DMG. Customer must promptly advise DMG in writing: (i) the requested “hold” duration; (ii) the reason for the hold; and (iii) any special requests (e.g., storage). If approved by DMG, DMG will provide to Customer an itemization of the costs associated with the requested hold (i.e., fees and costs associated with submittal preparation, storage, factory costs and material costs.)
12. Delivery: All shipping and delivery dates are approximate and are based, in part, on prompt receipt of all necessary information at manufacturer’s plant. In case of delay in furnishing complete information, shipment or delivery dates may be extended for a reasonable time based on conditions at manufacturer’s plant. In no event shall DMG be liable for any damages for delays in shipment or delivery.
13. Force Majeure: DMG shall not be liable for delay in delivery (or inability to deliver) due to causes beyond DMG’s reasonable control due to acts of God, acts of the Customer, or of any civil or military authority, fires, strikes, picketing, boycotts, floods, epidemics, pandemics, quarantine restrictions, war, insurrection or riot, embargoes, disturbances of production/supply with DMG’s manufacturer/supplier, trucking/transit shortages, wrecks/delays in transportation, unusually severe weather, or inability to obtain necessary labor, materials or manufacturing facilities due to such causes. In the event of any such delay the date of delivery shall be extended for a length of time equal to the period of the delay.
14. Damages and Limitation of Liability: IN NO EVENT SHALL CUSTOMER OR ANY THIRD PARTY HAVE THE RIGHT TO RECOVER FROM DMG FOR ANY LOSS, DAMAGE, COST OF REPAIR, OR INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR LIQUIDATED DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR DAMAGES FOR LOSS OF EFFICIENCY OR DELAY TO ANY PROJECT ON WHICH THE GOODS ARE USED OR ORDERED OR INTENDED FOR USE), WHETHER BASED UPON WARRANTY, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER CAUSES OF ACTION ARISING IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, TRANSPORTATION, INSTALLATION, USE, OR REPAIR OF THE GOODS OR SERVICES SOLD BY DMG. NOTWITHSTANDING THE FOREGOING, CUSTOMER AGREES THAT DMG’S LIABILITY, IF ANY, SHALL BE EXCLUSIVELY LIMITED TO REPLACEMENT OF ANY NON-CONFORMING GOODS, OR AT DMG’S OPTION, REFUND OF THE PURCHASE PRICE PAID FOR SUCH NON-CONFORMING GOODS.
15. Governing Law and Venue: Customer agrees that all issues/disputes relating to this Agreement shall be construed under the laws of the State of California. Customer further agrees that the exclusive jurisdiction and venue for any legal action brought to enforce any and all disputes relating this Agreement shall be Orange County, California, unless DMG initiates said legal action to enforce statutory remedies (i.e., claims on mechanics lien, stop payment notices, payment bonds, etc.) in connection with a debt incurred by Customer; in such case, the jurisdiction and legal venue will be determined by the law of the state where such statutory remedies are to be enforced.
16. Severability: If any term, condition or provision of this Agreement is found to be invalid or unenforceable, such term, condition, or provision shall be severed out and the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
17. Copies and Electronic Signatures: Customer agrees that DMG may, at DMG’s sole discretion, accept, utilize and rely upon a facsimile copy, electronic copy or photocopy of this Agreement, in lieu of an original document. Customer acknowledges that, by transmitting a facsimile copy, electronic copy or photocopy of this document to DMG, Customer agrees to be bound by the Terms and Conditions contained in this Agreement to the same extent as if an original were transmitted to DMG. Customer waives any right to object to the use of a copy in place of the original and any right to require DMG to subsequently produce an original.
18. Complete Agreement: This Agreement is the complete written expression of the parties’ agreement and supersedes any prior agreements between Customer and DMG. DMG objects to any additional or conflicting terms transmitted by Customer in any purchase order or other writing. No waiver, alteration or modification by Customer of any of the provisions hereof shall be binding upon DMG unless specifically assented to in a signed writing by an officer of DMG.