TERMS AND CONDITIONS
Prices: Prices in this price book are subject to change
without notice and supersede all previous price book, list and quotation. Possession of
this price book is not to be construed as an offer to sell the product listed herein at
the price stated. Prices do not include installation, freight or taxes.
Terms of Payment: A 2% cash discount, on the amount of the
invoice before any freight charges or applicable taxes, is allowed on invoice paid on or
before the 30th day following the date of the invoice. All invoice not discounted are due
net 60 days following in the date of the invoice. All payments shall be made in U.S.
Dollars.
Service Fee: If payment is not timely, TOTO shall be
entitled, in addition to other legal rights and to the extent permissible by applicable
law, to a service fee of 1 1/2% per month (18% per annum) on any unpaid balances to cover
additional administrative cots of collecting such balances.
Taxes: Prices are exclusive of any taxes. BUYER agrees to
pay any applicable taxes, duty surcharges, fees or similar charges however imposed.
Order Minimum: An order for products for which prices
aggregate less than &50.00 net will be at $50.00 bet.
Acceptance of Orders: All orders are subject
to approval and acceptance to TOTO. Orders will be accepted
only upon the understanding that the terms and conditions herein shall
be applicable. Unless TOTO so agrees in writing, any terms and condition
appearing in BUYER's order contrary to those stated herein are deemed
waived by BUYER. After an order has been subject to credit investigation
and approval, and upon the written agreement of TOTO.
Credit Approval. Buyer's orders will
be accepted subject to credit investigation and approval, and approval,
and delivery may be withheld on accepted orders without any liability
on the part of TOTO, if, in its opinion, the Buyer's ability to pay
for the products on these terms and conditions is in doubt. Any remittance
received from or for the account of BUYER may be accepted or applied
by TOTO against any indebtedness owing by BUYER, without prejudice
to or the discharges of the remainder of such indebtedness, regardless
of any condition, provision, or notation appearing on such remittance.
After delivery, if TOTO brings legal action action to collect amount
due and owing by BUYER, BUYER agree to pay for all attorney;s fees
and costs incurred by TOTO in such action.
Shipment
Delivery: All shipment and freight terms are
based on shipment within the continental United States, F.O.B. TOTO's
warehouse. Delivery to the carrier shall constitute delivery to the
BUYER, all products are shipped at Buyer's risk. When specific shipping
instructions are not provided by BUYERS, TOTO will use its discretion
as to routing of shipment, based on the lowest rate medium of transportation.
No freight allowances will be given on special express shipments without
prior written consent of TOTO.
Partial Shipment: Unless otherwise specified, TOTO may make
partial shipment and each shipment shall be deemed a separate sale. BUYER shall accept and
pay for each shipment regardless of any prior or subsequent failure to delivery any other
shipment.
Shipping Weights: Shipping weights are approximate, we
shown for BUYER' s convenience only, and are not guaranteed.
Acceptance: BUYER shall diligently inspect
product upon arrival at specified destination and shall within 10
business days notify TOTO as to any conditions which exit that prevent
Buyer's acceptance of product. Failure to notify TOTO of any such
conditions with 10 days of such arrival hall result in acceptance
of the product by BUYER.
Damage in Transit: All product are shipped
at Buyer's risk. TOTO's responsibility ceases upon the products in
good order to the carrier. Claims against the carrier are to be filed
by the BUYER.
Substitution: TOTO reserves the right at any time to
replace or substitute products and packaging provided such replacement or substitution
will not result in additional cost to BUYER and will not adversely affect operational
performance of products.
Excusable Delay: TOTO is not responsibility
or liable for any failure to perform due to unforeseen due circumstances
or causes beyond TOTO's control, when such delay or failure is due,
directly or indirectly, to acts of God, war (including civil war),
riot, embargoes, acts (whether sovereign or contractual) of civil
or military authorities, acts of any government, major change in economic
condition, fires, floods, explosions, the elements, epidemics, quarantine
restrictions, strikes, lockouts, plant shutdowns, slowdowns, accidents,
shortage of energy, materials, component parts, labor, or delays of
suppliers or subcontractors. In the event of an excusable delay, TOTO
shall promptly notify the BUYER of such delay and an equitable adjustment
shall be made in delivery schedules and any other affected terms and
conditions.
Returned Products
Returned Products: Products can not be
returned without the prior written approval of TOTO. If product which are returned with
TOTO's written approval are in TOTO's opinion salable, credit will be issued at the
original net invoice price, less the actual cost of restocking, as determined by TOTO, but
in no event will be restocking fees be less than 25% of the original net invoice price.
Returned product which is damaged, used, or otherwise not in salable condition, will not
be eligible for credit.
General Terms & Condition
Limitation of Liability: TOTO's liability for
any and all of any kind, including negligence, for any loss or damage arising out of,
connected with or resulting from TOTO's performance or breach of the terms hereof shall,
in the aggregate, not exceed the purchase price of the particular product. IN NO EVENT
SHALL TOTO BE LIABLE FOR INDIRECT, SPECIAL, INCIDENT OR CONSEQUENTIAL DAMAGES RESULTING
FROM OR ARISING OUT OF PERFORMANCE OF OR FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER,
WHETHER OR NOT TOTO HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF
SUCH DAMAGE.
Severability: If any portion or provision of
these terms applicable to any situation or circumstance is held invalid, the remainder of
these terms or the remainder of such provision (as the case may be), and the application
thereof to other situations or circumstances shall not be affected thereby.
Waiver: Waiver by TOTO of any breach of these
provisions shall not be construed as a waiver of any other breach.
Assignment: None of the Buyer's
rights under these terms shall be assigned or theories transferred
by the BUYER to any other person, whether by operation of law or otherwise,
without TOTO's prior written approval.
Law and Arbitration: These terms
are governed by the laws of the State of California. Any controversy
or claim out of relating to these terms or the breach hereof shall
be finally settled by arbitration in Orange County, California in
accordance with the prevailing commercial rules of the American Arbitration
Association, and the parties shall have the right to take depositions
and obtain discovery regarding the subject matter of the arbitration
as if the subject matter of the arbitration were pending in a civil
action before a Superior Court of the State of California. Pending
decision by the arbitrator(s), the parties shall diligently proceed
pursuant to the terms and conditions hereof. The award of the arbitrator(s)
shall be final, binding and conclusive on the parties hereto and their
successors and assigns. Judgment upon an arbitration award hereunder
may be entered in any court having jurisdiction thereof or application
may be made to any court for individual acceptance of the award or
an order of enforcement, as the case may be.
Entirety of Agreement: These terms
are intended as a complete and exclusive statement of the terms and
condition of their agreement. No other terms and conditions, whether
contained in Buyer's purchase order, shipping release or elsewhere
that are inconsistent with, additional to, or different from the terms
and conditions herein shall be binding upon TOTO unless specifically
agreed to by TOTO in writing.
Assent: Receipt by BUYER OF acceptance of the
order or receipt of the products without prompt objection to the terms and condition
herein set fourth, constitutes acceptance by BUYERS of these terms and conditions. |
