Terms & Conditions of Sale
1.1 Orders. Any purchase of or offer to purchase CCA and B products by Buyer ("Order") shall be governed solely by these Terms and Conditions of Sale ("Conditions of Sale") and any other written provisions mutually agreed upon. CCA and B does not accept, and hereby expressly objects to and rejects, any terms contained in any purchase order or other document issued by Buyer that are different from, conflict with, modify and/or add to these Conditions of Sale. No modification or addition to these Conditions of Sale shall be effective unless agreed to in writing and signed by an authorized representative of Buyer and CCA and B. Any oral understandings are expressly excluded. CCA and B shall not be deemed to have waived these Conditions of Sale if it fails to object to any additional or conflicting provisions appearing on, incorporated by reference in, or attached to Buyer’s purchase order form. CCA and B’s catalogs, price lists and order forms are informational and intended by CCA and B to facilitate an Order and do not constitute an offer. An offer is made by Buyer only when Buyer makes an Order. CCA and B reserves the right to reject or refuse any Order submitted for its acceptance. Unless otherwise agreed in writing by an authorized representative of CCA and B, no special marketing programs (eg. volume rebate, coop, etc.) are offered with these Conditions of Sale.
1.2 Acceptance. Buyer’s acceptance of these Terms and Conditions of Sale shall be indicated by any of the following, whichever first occurs:
a. Buyer’s placing an Order for CCA and B products
b. Buyer’s written acknowledgement of these Conditions of Sale
c. Buyer’s acceptance of any part of shipment of CCA and B products specified for delivery
d. Buyer’s acceptance of any part of Order for CCA and B products via Buyer pick up
e. Any other act or expression of acceptance by Buyer.
CCA and B confirms its acceptance of Buyer’s Order only with an Order Acknowledgment via electronic mail. No Order shall bind CCA and B until duly accepted by CCA and B in writing and in accordance with these Conditions of Sale. CCA and B reserves the right to cancel any accepted Order whereupon, in its sole discretion, CCA and B determines Buyer has violated a policy, failed to remit payment or otherwise breached these Conditions of Sale. CCA and B shall provide notice of such cancelation prior to canceling any Order.
Buyer may cancel Order at any time prior to CCA and B’s acceptance of Order without incurring a cancellation fee. If Buyer cancels Order after CCA and B has accepted the Order, CCA and B, at its sole discretion, may impose a cancellation fee of up to 5% of the purchase order total. CCA and B will not accept any cancelation of any Order that takes place within five (5) days of Order shipment date or once shipment on that Order has occurred.
1.3 Entire Understanding. Except for (i) any payment terms agreements signed by CCA and B per Section 5, and/or (ii) any addendum or separate agreement signed by an authorized representative of Buyer and CCA and B that specifically amends or overrides these Conditions of Sale, these Conditions of Sale shall constitute the entire understanding and agreement between Buyer and CCA and B.
2.1 Date. Any delivery date stated in any document (including an Order) is approximate only and shall not constitute any guarantee of delivery on any particular date.
2.2 Terms. Delivery shall be F.O.B. CCA and B’s docking point (or FCA for export per INCOTERMS 2000) for all products purchased from CCA and B. At time of Order, Buyer is responsible for indicating whether delivery will require special method (i.e. “inside delivery,” “lift gate” deliver, etc.) so that such delivery method may be indicated on the shipping documents. If Buyer fails to indicate specific delivery method, Buyer understands that additional charges beyond those which are reflected in the invoice may apply and Buyer takes full responsibility for payment of such charges. Buyer shall reimburse CCA and B upon receipt of an invoice for any transportation charges related to the Order.
2.3 Title; Risk of Loss. Title and all risk of loss shall pass to Buyer upon delivery of the products by CCA and B to the carrier at the FOB/FCA docking point, unless otherwise agreed upon in writing by CCA and B.
2.4 Packaging and Shipping. Packing shall be in accordance with CCA and B’s standard commercial practices. CCA and B shall utilize its carrier of choice for all shipments. Shipping charges resulting from refused shipments shall be immediately due and payable and shall include a 15% restocking fee of the invoice amount.
3. Inspection and Buyer Acceptance of Product.
The Buyer shall inspect and accept or reject products delivered pursuant to an Order immediately after Buyer takes custody of such products. In the event the products do not comply with any applicable CCA and B specifications, the Buyer shall promptly notify CCA and B of such noncompliance, along with the reason for such noncompliance, and give CCA and B a reasonable opportunity to correct any such noncompliance. The Buyer shall be deemed to have accepted any products delivered hereunder and to have waived any such noncompliance in the event CCA and B does not receive written notification of noncompliance within fifteen (15) days after the Buyer takes custody of the products delivered hereunder.
4. Product Changes.
CCA and B at all times reserves the right in its sole discretion, without consent of Buyer, to make revisions, changes, additions or improvements to the products ordered or to discontinue any products. CCA and B has no obligation or liability for failure to notify Buyer of any such product changes.
5. Price and Payment.
Product shall be sold to Buyer at the prices quoted to Buyer upon Order Acknowledgment. CCA and B reserves the right to change the prices for products from time to time. Prices are stated in United States dollars and payment shall be made in United States currency. Unless other payment terms are previously agreed in writing by CCA and B, Buyer shall make full payment in advance for all products ordered. In the event Buyer does not make timely payments, CCA and B may, in addition to all other remedies provided at law, either: (1) declare Buyer’s performance in breach and terminate an Order for default; (2) repossess the goods for which payment has not been made; (3) withhold future shipments under an Order until delinquent payments are made; (4) deliver future shipments under an Order on a cash with order or cash in advance basis even after the delinquency is cured; (5) charge interest on the delinquency at a rate of 1½% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges, or inventory carrying charges; or (6) recover all costs of collection including reasonable attorney’s fees; and (7) at CCA and B’s option, combine any of the above rights and remedies as provided by law.
CCA and B reserves the right to perform a review of Buyer’s creditworthiness either before or after an Order is received. CCA and B shall not be obligated to accept or honor an Order if Buyer’s creditworthiness is deemed unsatisfactory to CCA and B, in CCA and B’s sole discretion. CCA and B reserves the right to modify or withdraw credit terms at any time without notice and to require guarantees, security or payment in advance of the amount of credit involved.
CCA and B’s catalogs, order forms and price lists exclude all taxes, duties and fees. Buyer shall be responsible for, and shall pay, any and all applicable federal, state, municipal and other government taxes, tariffs, duties, value-added, withholding and all other taxes and any export or import dues that may be applicable to the sale and/or delivery of the products. Accordingly, CCA and B reserves the right to revise its price after the execution of an Order between the parties to include any and all taxes or duties that may become due hereunder and CCA and B may invoice Buyer for said additional amount. This clause shall survive the acceptance and complete performance of an Order by the parties herein.
Any credits, allowances or other amounts payable or creditable by CCA and B to Buyer shall be subject to offset for any claims or other amounts owed by Buyer to CCA and B.
9. Force Majeure.
Neither party shall be in default hereunder by reason of any failure or delay in the performance of any obligation (other than an obligation to make payments for goods delivered in accordance with the Order)) where such failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of such party. Such causes shall include, without limitation, storms, floods, other acts of nature, fires, explosions, riots, war or civil disturbance, strikes and other labor disputes, embargoes, export control laws, delays in transportation and inability to obtain labor, supplies or manufacturing facilities, including material shortages or delays in deliveries to CCA and B by its suppliers. In the event that any force majeure event shall prevent CCA and B from being able to supply products to all its customers, CCA and B shall be entitled to allocate its available supply of products among its customers in such proportions as CCA and B, in its sole discretion, shall deem appropriate.
10.1 Limited Warranty. All CCA and B products are warranted to be free from defects in materials or workmanship for one year from the date of purchase.
10.2 Exclusions. The limited warranty set forth in this Section 10 shall be void with respect to products that have been: (1) altered by Buyer or a third-party; (2) repaired by someone other than a CCA and B authorized agent; (3) subjected to misuse, abuse, neglect or accident; or (4) damaged by improper application.
10.3 Limitation of Remedies. Within the warranty period, CCA and B will at its sole option, replace any products that fail in normal use. Such replacement will be made at no charge to the customer, provided that the customer shall be responsible for any shipping cost. CCA and B retains the exclusive right to replace the product or offer a full refund of the purchase price at its sole discretion. SUCH REMEDY SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY. To obtain warranty information call CCA and B Customer Service at one of the numbers shown below:
CCA and B, LLC
1174 Hayes Industrial Drive, Marietta, Georgia 30062, U.S.A.
Toll free: 877-919-4105
10.4 Exclusive Warranty. THE WARRANTIES AND REMEDIES CONTAINED HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING ANY LIABILITY ARISING UNDER ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, BOTH OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
11. Limitation of Liability.
CCA and B’s total liability on any claim for loss or damage arising out of, connected with, or resulting from an Order, or from the performance or breach thereof, or from the manufacture, sale, delivery, resale, repair or use of any product or services rendered covered by or furnished under an Order shall in no case exceed the price allocable to the product that gives rise to the claim. IN NO EVENT SHALL CCA AND B BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR SALES.
During the parties’ purchase-sale relationship, Buyer may receive Confidential Information (as defined below) from CCA and B. Buyer acknowledges that any such Confidential Information comprises valuable trade secrets and is proprietary to CCA and B. Buyer shall hold the Confidential Information in strict confidence and shall not disclose the same to any other person, firm or corporation, nor use the Confidential information, except as required to perform its obligations under this Agreement. Buyer shall not copy or reverse engineer any Products. The foregoing obligation shall not apply to any information that becomes public through no fault of Buyer. As used herein the term "Confidential Information" means all know-how, designs, drawings, pricing information, specifications and other information, whether or not reduced to writing, relating to the design, manufacture, use, marketing and service of any products of CCA and B as well as any other information relating to the business of CCA and B that may be divulged to Buyer that is not generally known to the public.
13. Intellectual Property
CCA and B shall retain all copyrights, trademarks, trade secrets and all other intellectual property rights it possesses with regard to CCA and B’s products and all related materials. All products sold to Buyer shall bear CCA and B's trademarks. Buyer shall not remove, conceal or alter any such trademarks. Buyer acknowledges and agrees that these Conditions of Sale give Buyer no rights in CCA and B's trademarks, except that CCA and B grants Buyer a limited, non-exclusive license during the term of Buyer’s purchasing relationship with CCA and B to reproduce CCA and B's trademarks in advertisements and other promotional materials relating to the products in accordance with CCA and B’s standards for use of its trademarks and subject to the approval of CCA and B. Such license shall expire immediately upon the expiration or termination of Buyer’s purchasing relationship with CCA and B. All goodwill arising from Buyer's use of CCA and B's trademarks shall inure solely to the benefit of CCA and B. All advertisements and other promotional materials using CCA and B's trademarks prepared by Buyer shall include an appropriate notice indicating that such trademarks are the property of CCA and B. Buyer shall not use CCA and B's trademarks or name as part of its corporate or business name, provided that Buyer may identify itself as an authorized Buyer of CCA and B.
Each party shall indemnify, defend and hold harmless the other party from and against all third-party claims, suits, actions, liabilities, damages, losses, demands, costs and expenses (including reasonable attorneys’ fees) arising out of any actual or alleged injury or death to any person or damage to any property, or any other damage or loss resulting in whole or in part from any alleged or actual defect in any products supplied by CCA and B to Buyer or by Buyer to its customer; provided, however, that these indemnification obligations shall not apply to the extent any such third-party claim, suit, action, damage, loss, etc. was caused by or attributable to the intentional acts of the other party or its agents, employees, and/or representatives.
15. Special Tooling and Data.
Unless otherwise agreed in writing, all material, software, data processes, equipment, facilities and special tooling, including, without limitation, jigs, dies, fixtures, molds, patterns, special taps, special gages, special test equipment, other special equipment and manufacturing aids and replacements thereof, used in the manufacture of products covered by an Order shall be and remain the property of CCA and B. CCA and B retains all rights, title and interest in drawings, engineering instructions, specifications, and all other written data, if any, furnished with the products.
Where applicable, Buyer shall be responsible for compliance with the export control laws and regulations of the U.S. Government, and when required by such laws and regulations shall obtain export and re-export licenses required for goods, services and technical data delivered under an Order. CCA and B shall not be liable to Buyer for any failure to provide goods, services or technical data as a result of any of the following U.S. Government actions: (1) refusal to grant export or re-export license; (2) cancellation of export or re-export license; or (3) any subsequent interpretation of U.S. export laws and regulations, after the date of an Order, that limits or has a material adverse effect on the cost of CCA and B’s performance of an Order.
17. Electronic Orders and EDI.
CCA and B and Buyer may do business electronically, including Order placement and acceptance. Once accepted, such electronic Orders will create fully enforceable obligations subject to these Conditions of Sale. Such electronic Orders and acceptances shall be deemed for all purposes to be an original signed writing. Buyer and CCA and B will adopt commercially reasonable security measures to govern the electronic order process. Buyer will be responsible for all set up fees and costs associated with electronic orders and EDI.
Buyer shall not assign an Order or any portion thereof without the prior written consent of CCA and B, which consent shall not be unreasonably withheld.
Failure by CCA and B to assert all or any of its rights upon any breach of an Order shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor shall any waiver be implied from the acceptance of any payment or service. Such waiver will arise only from an express written waiver signed by a duly authorized CCA and B representative. No waiver of any right shall extend to or affect any other right CCA and B may possess, nor shall such waiver extend to any subsequent similar or dissimilar breach.
If any provision of these Conditions of Sale is determined to be illegal, invalid, or unenforceable, for any reason, then such provision shall be deemed stricken for purpose of the dispute in question, and all other provisions shall remain in full force and effect.
21. Disputes and Governing Law.
The validity, performance and construction of these Conditions of Sale, and any disputes arising from or relating thereto, shall be governed by the laws of the State of Georgia without reference to the principles of conflicts of laws. The parties agree that the exclusive venue for any action arising out of or related to the Agreement shall be in the courts with the appropriate jurisdiction serving Marietta, Georgia and each party irrevocably submits to the jurisdiction of each such court in any such action and waives any objection it may now or hereafter have to venue or personal jurisdiction in each such court.
22. No Diversion of Product
Buyer shall not sell, assign, transfer, divert or otherwise provide CCA and B products to any dealer, third party retailer, distributor, department store chain, discount retailer, “box store” or any other person for the purpose of resale. Nothing in these Conditions of Sale shall prohibit CCA and B from selling CCA and B products directly to third party retailers, distributors, department store chains, discount retailers, “box stores” or any other person.
23. Minimum Advertised Price (MAP) Policy.
CCA and B’s policy regarding the advertising and pricing of its products is as follows:
A. Purpose: CCA and B’s MAP Policy is designed to avoid depreciation of, or damage to, the trademarks, brands or trade names under which its products are sold. CCA and B’s intention and policy is not to engage any dealer, distributor, retailer or other person that advertises products below CCA and B’s current and published Minimum Advertised Price (MAP).
B. Minimum Advertised Pricing: A dealer, distributor, retailer or other person may advertise at any price it chooses, as long as it is not less than CCA and B’s current and published MAP. CCA and B hereby provides notice that advertising CCA and B’s products using CCA and B’s copyrighted and trademarked materials (including, without limitation, all marks, logos, words, photographs or product descriptions) at a price below CCA and B’s current and published MAP constitutes a violation of this policy and shall lead to remedial action by CCA and B which may include but be not limited to cancellation of Orders and discontinuance of business with such dealer, distributor, retailer or person.
C. Advertising Defined: For the purposes of this policy, the term “advertising” shall include any listing, description or graphic display of CCA and B products using CCA and B’s copyrighted and trademarked materials (including, without limitation, all marks, logos, words, photographs or product descriptions) accessible to consumers/customers directly, including but not limited to, print media, television, radio, email and the Internet.
D. Violations of Policy: All failures to comply with this policy by Buyer constitute a material breach of these Conditions of Sale. It is CCA and B’s intention to administer the policy fairly and reasonably.
E. Changes in MAP and Products: All CCA and B products are subject to this policy, including any new products. CCA and B at any time, in its sole discretion, may revise its MAP policy for any product. Each addition and each revision shall be effective at such time specified by CCA and B in its pricing schedule, which will be provided to each Buyer.
F. Discounts, Premiums, and Combinations: It shall be a violation of this policy for any dealer, distributor, retailer or person to advertise the giving of any article of value in connection with the sale of any CCA and B products. Unless otherwise agreed to by CCA and B in writing, it shall be a violation of this policy for any dealer, distributor, retailer or person to make any concession or other discount applied solely in connection with sale of any CCA and B products.
CCA and B has the exclusive authority to resolve all disputes, conflicts, controversies or questions in relation to this Policy
24. Buyer Requirements Policy
CCA and B requires a copy of Buyer’s sales or use tax certificate of exemption (or state equivalent) prior to shipping any Order to Buyer. It is CCA and B’s policy and intention to prohibit sale of CCA and B products to home-based retailers. All Buyers must provide evidence of a physical retail store space prior to shipment of CCA and B product. Failure of Buyer to provide such certificate of exemption and evidence of a physical store space in accordance with these Conditions of Sale shall result in cancellation of Buyer’s Order. Determination of whether Buyer has provided sufficient evidence of a physical retail store space shall be at CCA and B’s sole discretion. CCA and B shall approve all online retailers and all Catalogs prior to accepting any Order from such Buyer.
25. Buyer’s Representations and Warranties
By placing an Order for CCA and B products, Buyer represents and warrants that all information Buyer provides in compliance with these Conditions of Sale and with respect to any transactions with CCA and B is true, accurate and complete. Buyer’s failure to comply with this Paragraph 25 shall be a material breach of these Conditions of Sale.
26. No Agency or Joint Venture.
Neither CCA and B nor any of its personnel are employees or agents of Buyer. Nothing in these Conditions of Sale will be construed as creating a joint venture, partnership or employment relationship between the parties, nor will either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.
27. Compliance with Applicable Laws.
Buyer warrants that Buyer shall comply with any and all applicable US federal and state laws, and shall operate in good faith to comply with other laws and regulations and industry best practices, applicable to Buyer’s performance under these Conditions of Sale, and shall promptly act to correct any noncompliance once identified.