Terms of Sale
Effective September 1, 2021
Multi Sales (“Multi Sales”) is a California corporation with a principal place of business in La Palma, California. Multi Sales is a wholesale distributor to the door and gate industry, and Multi Sales provides Purchasers with a wide variety of products including access control products, garage and commercial door products, gate products, and replacement parts for such products. Multi Sales has multiple locations and a variety of shipping capabilities allowing it to distribute products to dealers located in the U.S., Canada, Mexico, and Central and South America.
1. PURCHASE ORDER; ACCEPTANCE; AGREEMENT.
1.1 These terms and conditions (“Terms of Sale”) apply to the purchase and sale, supply, or distribution of all products from Multi Sales, on the one hand, to any person, entity, or party who requests or orders products from Multi Sales (each a “Purchaser”), and whose request or order is accepted by Multi Sales. By submitting a request or purchase order to Multi Sales, initiating the processing of a purchase of Multi Sales products through Multi Sales website or otherwise, or otherwise accepting products from Multi Sales, Purchaser hereby agrees to these Terms of Sale. These Terms of Sale are deemed to be understood, agreed to , and accepted by Purchaser immediately upon Purchaser, or an authorized party on Purchaser’s behalf, submitting a request or order to Multi Sales for products or Purchaser initiating, processing, or otherwise making a purchase of products from Multi Sales, and Multi Sales accepting such a request or order for products placed by Purchaser. Each time Purchaser makes a request, places an order, or accepts products from Multi Sales, such request, order, or acceptance constitutes acceptance of these Terms of Sale. These Terms of Sale shall supplement and amend any request or purchase order for the supply, distribution, and sale of any products issued by Purchaser and accepted by Multi Sales; provided, however, that if there is any conflict or inconsistency between these Terms of Sale and the terms of any request, purchase order, or other offer or agreement between Purchaser and Multi Sales, the terms and conditions of these Terms of Sale shall prevail.
1.2 The terms “agreed”, “consent”, “confirmed”, “accepted”, "informed”, “notified” or “notice” and documents or acts of similar meaning will be deemed to be required to be done in writing, where "in writing" means hand-written, type-written, printed or electronically made, and resulting in a permanent record. The terms "includes" or "including" will be construed without limitation to the generality of preceding words. Any terms or conditions in any request, purchase order, instructions, terms of purchase or other writing from Purchaser to Multi Sales that Multi Sales has not agreed to, consented to, confirmed, or accepted by Multi Sales will be, and are, expressly objected to and rejected and will be of no force or effect. No order submitted by Purchaser will be deemed final or accepted by Multi Sales unless and until confirmed by Multi Sales. Multi Sales commencement of performance or shipment will not, in and of itself, be construed as acceptance of any Purchaser request, purchase order, instructions, or proposed terms of purchase. Course of performance or usage of trade will not be applied to modify these Terms.
1.3 These Terms of Sale may be amended by Multi Sales, from time to time, by posting an updated version on its website; provided, however, that updated Terms of Sale shall only be effective as of the effective date of such Terms of Sale and any prior version of the Terms of Sale applicable to other transactions prior to the effective date shall apply and remain in full force and effect in connection with such prior transactions.
1.4 Purchaser is solely responsible for the accuracy of any order, including with respect to the specification, number, configuration or other requirements of products. Purchaser warrants that any information provided to Multi Sales under an order is complete, accurate and true, and Purchaser acknowledges that a failure to provide complete, accurate and true information or instructions to Multi Sales may detrimentally affect Multi Sales's ability to discharge its obligations or exercise its rights under such order or these Terms of Sale. Any catalog, specification, price sheet or other similar documentation prepared by Multi Sales or information available through Multi Sales website is strictly for convenience only and will not be deemed an offer. Multi Sales believes such documentation is complete and accurate at time of printing, but Multi Sales does not warrant that such documentation or information is error free. Products will be supplied in accordance with the standard functionalities, styles and sizes as described in Multi Sales’s catalogs or on Multi Sales website. In the event of a conflict between an order of Purchaser and a drawing or specification sheet from Multi Sales approved by Purchaser, the latter will prevail. Assumptions, exclusions and qualifications stated by Multi Sales in written communications with Purchasers will guide and inform any interpretation of orders from Purchasers and guide such order’s execution, implementation, and interpretation.
2. PRICES; PAYMENT TERMS; CREDIT REQUIREMENTS.
2.1 Unless otherwise expressly specified in writing by Multi Sales, all prices are exclusive of taxes, customs, duties, transportation costs, insurance, and any and all current or future tax or governmental charge applicable to the sale, delivery, shipment or storage of the products that Multi Sales pays or collects in connection with a transaction with Purchaser. Any such taxes, customs, duties, transportation costs, insurance, taxes, or governmental charges incurred by Multi Sales shall be for Purchaser's account, shall be added to the price of Purchaser’s products, shall be paid by Purchaser, and shall not be subject to any reduction.
2.2 Except as otherwise specified in writing by Multi Sales, terms of payment are Net 30 days in U.S. currency. Purchaser shall be subject to a finance charge of two percent (2%) per month on any past due amounts. Purchaser shall be liable for all collection expenses incurred by Multi Sales including, but not limited to, attorneys' fees and costs. Multi Sales shall have the right to set-off any amounts owing from Purchaser against any amounts payable to Purchaser. In the event that Multi Sales determines, at any time in its sole discretion, that the credit of Purchaser or of any person or entity providing credit support for Purchaser is or becomes impaired, or there is any reason to doubt the enforceability or sufficiency of any agreement, instrument or document supporting Purchaser's obligations to Multi Sales, Multi Sales may, in addition to other rights provided by applicable law, declare immediately due and payable any and all amounts owed by Purchaser to Multi Sales, and to suspend and/or cancel further shipments, revoke any credit extended to Purchaser, require cash payment, and/or require additional security satisfactory to Multi Sales.
3. SHIPMENT; TITLE; RISK OF LOSS. All shipping dates are approximate only and not guaranteed. Unless otherwise stated, title and risk of loss shall pass from Multi Sales to Purchaser once the products are loaded on the first carrier at Multi Sales' facility. All claims for loss or damage in transit must be filed against the carrier by Purchaser. Purchaser shall pay freight, unless prepaid, and shall unload shipments promptly. Any increase in freight rates for shipments whether prepaid or not and all demurrage shall be borne by Purchaser. Purchaser may contact the local sales office for the current shipping fees and freight rates. Legal title to products will pass to Purchaser only when Multi Sales has received payment for such products in full and, to the extent permitted by applicable law, Multi Sales received payment in full of all other amounts due by Purchaser under any other order placed with Multi Sales. Until legal title to products has passed to Purchaser, Purchaser shall: (i) not assimilate; transfer or pledge any of the products or grant any right or title in the products to any third party, except in the normal course of business and against payment or subject to retention of title; and (ii) ensure that the products remain identifiable as products owned by Multi Sales. In the event of breach by Purchaser, Multi Sales may require that Purchaser return to Multi Sales, at Purchaser’s cost (including costs for de-installation), all products in which the title has not yet passed, and Purchaser shall fully cooperate to enable Multi Sales to collect such products and grant Multi Sales (or its representative) free access to the location of the products.
4. DISCLAIMER OF WARRANTY. THE PRODUCTS ARE SOLD "AS IS, WITH ALL FAULTS", WITHOUT RECOURSE, AND Multi Sales DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF OR AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. PURCHASER'S SOLE REMEDIES SHALL BE AS SET FORTH IN THE PARAGRAPH TITLED "LIMITATION OF LIABILITY" BELOW.
5. LIMITATION OF LIABILITY. PURCHASER WAIVES ALL CLAIMS AGAINST Multi Sales RELATING TO PRODUCTS PURCHASED FROM OR THROUGH Multi Sales, AND AGREES TO ASSERT ALL CLAIMS FOR BREACH OF WARRANTY, CONTRACT, OR TORT AGAINST THE MANUFACTURER OF THE PRODUCTS. THE PARTIES AGREE THAT PURCHASER'S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR THE REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCTS BY THE MANUFACTURER IN ACCORDANCE WITH THE MANUFACTURER'S CUSTOMARY WARRANTY THEN IN EFFECT. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL Multi Sales'S CUMULATIVE LIABILITY TO PURCHASER EXCEED THE PURCHASE PRICE FOR THE SPECIFIC PRODUCTS GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. Multi Sales SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE. PURCHASER AGREES THAT IN NO EVENT SHALL Multi Sales' LIABILITY TO PURCHASER EXTEND TO INCLUDE SPECIAL, INDIRECT, INCIDENTAL, RELIANCE, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR SIMILAR DAMAGES. THE TERM "CONSEQUENTIAL DAMAGES" SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, COST FOR LABOR, LOSS OF ANTICIPATED PROFITS, LOSS OF USE, LOSS OF REVENUE, AND COST OF CAPITAL. ALL ILLUSTRATIONS, DESCRIPTIONS, SPECIFICATIONS AND ENGINEERING INFORMATION HAVE BEEN OBTAINED FROM THE PRODUCT MANUFACTURERS FOR PURCHASER'S CONVENIENCE ONLY. Multi Sales DOES NOT ASSUME RESPONSIBILITY FOR ACCURACY OF THE INFORMATION PROVIDED BY THE MANUFACTURER.
6. REJECTION OF NON-CONFORMING PRODUCTS; RETURNS. Rejection of non-conforming products must be made by Purchaser in writing within ten (10) days of receipt and all defects ascertainable at time of giving notice shall be stated with particularity or deemed waived. In the event of any rejection of products delivered to Purchaser, the respective products shall be held intact by Purchaser, and Purchaser shall specify to Multi Sales the reason for the rejection, accompanied by a tally of all non-conforming Products. If credit is to be allowed by Multi Sales for allegedly non-conforming Products, the Products must be retained intact by Purchaser at the delivery point, and Multi Sales shall have sixty (60) days from the date of such allowance to take possession of, ship, or otherwise dispose of such products. A claim by Purchaser that products are non-conforming shall not entitle Purchaser to deduct any sum from any Multi Sales invoice unless and until such claim has been consented to, permitted, and allowed by Multi Sales in writing. No returns of products shipped from Multi Sales to Purchaser, whether claimed to be non-conforming or otherwise, are permitted without Multi Sales' prior written authorization or Purchaser has first obtained from Multi Sales a return authorization number. In no event may products be returned after sixty (60) days from the date of the order placed by Purchaser, date of the confirmation of such order by Multi Sales, or the date of the invoice from Multi Sales to Purchaser, whichever date is earlier. Any returns must be in original unbroken containers and must identify the invoice number associated with such delivery of products. All returns are subject to inspection by Multi Sales and a handling charge to be imposed on Purchaser by Multi Sales. Handling charges are on Multi Sales' website at www.multisalesinc.com, from time to time.
7. BREACH; TERMINATION
7.1 In the event of: (i) a breach by Purchaser of any of the provisions of the purchase order or these Terms of Sale including, but not limited to, any failure to pay any amount as and when due; or (ii) in the reasonable opinion of Multi Sales, the financial position of the Purchaser (or a material change thereof) is likely to affect Purchaser’s ability to perform its obligations under a purchase order; or (iii) any proceedings in insolvency, bankruptcy (including reorganization), liquidation or winding up are instituted by or against Purchaser, whether filed or instituted by Purchaser (voluntarily or involuntarily), a trustee or receiver is appointed over Purchaser, or any assignment is made for the benefit of creditors of Purchaser; or (iv) Purchaser ceases, or threatens to cease, to carry on business; or (v) the control over or ownership of Purchaser changes, then Multi Sales may declare all amounts outstanding by Purchaser immediately due and payable and may set off any amount that Multi Sales owes to Purchaser under any purchase order or agreement including, but not limited to, any advance payments or deposits made by Purchaser against amounts due Purchaser, if any. Multi Sales may in its sole discretion by notice to Purchaser with immediate effect suspend or cancel any performance due from Multi Sales (including, but not limited to, production or delivery of products, or obligations under warranty and performance of Services) or terminate a purchase order or any part thereof, without any liability, and/or suspend or cancel any credit terms offered to Purchaser. Upon termination of a purchase order or these Terms of Sale, all rights and licenses granted to Purchaser thereunder and hereunder will immediately cease; and Purchase must return to Multi Sales, at Purchaser’s sole cost and expense, any Products of which title has not passed to Purchaser. The rights of Multi Sales pursuant to this section will be in addition to any other rights and remedies Multi Sales may have at law or in equity. In the event of termination of a purchase order or these Terms of Sale, the terms and conditions intended to survive such termination or expiration will so survive. Termination will not affect the rights of the Parties accrued up to the date of termination.
8. INDEMNIFICATION.
8.1 Purchaser shall indemnify, defend and hold harmless Multi Sales and its affiliates, and their respective officers, directors, agents, employees, representatives, successors, and assigns (collectively, “Multi Sales Parties”) from and against, all claims, damages, losses, liabilities, costs (including attorneys fees, legal fees and related costs) and expenses (collectively, “Claims”) arising out of or in connection with any of the following events: (i) a breach by Purchaser of any of the provisions or obligations of a purchase order or these Terms of Sale; (ii) any claim by third parties for any loss, damage or injury or death caused or alleged to be caused by the negligent use, application, or installation of Products, or caused by any modification of Product or integration of Product into other products not authorized by Multi Sales, by Purchaser or its contractors, agents, affiliates or Purchasers to whom it sold products; (iii) non-compliance by Purchaser of any terms and conditions of purchase order or these Terms of Sale in which event costs will include the full replacement costs of products, systems or other equipment; (iv) Purchaser’s acts, omissions, negligence, intentional misconduct, or fraud.
8.2 If Purchaser uses products purchased from or through Multi Sales and integrates such products into an application or end-product aggregated by Purchaser, Purchaser has the obligation to determine the suitability of the products purchased for Purchaser's use in such application or end-product by testing or other means, and to determine that the application or end-product meets all applicable industry standards for safety and durability. If Purchaser uses Products purchased from or through Multi Sales in an application or end-product, and their use results in damage or harm to the person or property of Purchaser or others, Purchaser agrees to indemnify, defend, and hold harmless all Multi Sales Parties from and against any and all Claims whether arising out of contract, tort, or other grounds. Purchaser shall indemnify, defend, and hold harmless all Multi Sales Parties from and against all Claims incurred by Multi Sales Parties in enforcing any of the provisions of a purchase order or these Terms of Sale or in defending themselves. If Purchaser initiates a legal action against Multi Sales, and Purchaser does not prevail, Purchaser will pay for all costs and expenses (including attorneys' fees) incurred by Multi Sales Parties in defending themselves.
9. GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE. These Terms of Sale and the business relationship between Purchaser and Multi Sales shall be governed by the laws of the State of California, without giving effect to its conflict of laws provisions. The courts of Orange County, California shall have exclusive jurisdiction with respect to all disputes between Multi Sales and Purchaser in any way relating to the products, purchase orders, these Terms of Sale, or the business relationship between Purchaser and Multi Sales; provided, however, that Multi Sales, in its discretion, may elect instead to pursue any legal action against Purchaser in any other court having jurisdiction over the subject matter. PURCHASER HEREBY CONSENTS TO JURISDICTION, PERSONAL AND OTHERWISE, OF SUCH COURTS, AND HEREBY WAIVES ANY OBJECTIONS OF ANY NATURE TO VENUE IN SUCH COURTS.
10. COMMUNICATION: Purchaser acknowledges and expressly consents to Multi Sales's use of an automatic telephone dialing system ("ATDS") to initiate calls, faxes or text messages to Purchaser for any business purpose, including without limitation, confirming or updating information in any application submitted by Purchaser to Multi Sales, collections of accounts receivable, marketing of Multi Sales's products, status of product delivery, and delivery address confirmation.
11. MODIFICATIONS; AMENDMENTS. Multi Sales reserves the right to unilaterally modify or amend any portion of these Terms of Sale at any time without prior notice. The applicable prior version of these Terms of Sale shall govern any purchases by Purchaser prior to the effective date of any new Terms of Sale; provided, however, that the revised Terms of Sale shall govern all requests, orders, purchases, deliveries, communications, transactions and related matters with Purchaser following the effective date thereof. The most current version of these Terms of Sale may be found on Multi Sales's website at (www.multisalesinc.com).
12. NOTICE. Multi Sales contact information is as follows:
Multi Sales
5600 Fresca Drive
La Palma, CA 90623-1008
AccountsReceivable@multisalesinc.com
Phone: 1-800-421-3575 / 714-367-2800
13. EXCUSE OF PERFORMANCE. Multi Sales performance in connection with a purchase order or pursuant to these Terms of Sale shall be excused without liability if performance is prevented or delayed due to acts of God, war, terrorism, riot, fire, labor trouble (including strikes, lockouts and labor shortages), failure of computer systems to operate properly, destruction or loss of electronic records or data, plant shutdowns, unavailability of materials or components, unavailability of or delays in transportation, insufficient production capacity, unavailability or shortage of fuel products, explosion, accident, compliance with governmental requests, laws, regulations, orders or actions, or other unforeseen circumstances or causes beyond such party's reasonable control. If such event affects Multi Sales, Multi Sales may, without liability, allocate and distribute the products among such Purchasers in such proportions as Multi Sales, in its sole discretion, determines.
14. INTEGRATION. These Terms of Sale together with the purchase orders from Purchaser and any specific written agreements between Purchaser and Multi Sales signed by both parties shall constitute the entire written agreement between Purchaser and Multi Sales in connection with the subject matter thereof and hereof. Except as may be set forth in purchase orders accepted by Multi Sales or a written agreement signed by both parties, these Terms of Sale shall supersede all prior agreements, proposals and discussions among the parties with respect to the purchase and sale of products (including as may be set forth in any Multi Sales catalogs or on-line materials).
15. COUNTERPARTS. A purchase order may be executed in one or more counterparts and may be executed entirely in electronic form. Electronic terms, conditions, signatures, and deliveries created or effected by pressing the submit button, by email, by facsimile transmission, or by any other means permitted under the California Uniform Electronic Transactions Act (California Civil Code, §§1633.1, et seq.) or the federal law contained in 15 U.S.C. §§7001, et seq., shall be binding and effective in all respects. All individuals submitting and signing on behalf of another person or entity shall be deemed to have the authority to make the submission unless Multi Sales receives notice before processing the transaction on Purchaser’s behalf that the person does not have the required authorization from Purchaser. The provisions of these Terms of Sale intended to survive termination hereof shall survive such termination including, but not limited to, Purchaser’s obligation to pay any outstanding amounts for products properly charged to Purchaser.
16. ASSIGNMENT. Purchaser may not assign these Terms of Sale, or any of Purchaser’s obligations hereunder, to any third parties without the prior written consent of Multi Sales. Multi Sales may delegate, assign, sell, novate or subcontract in part or in whole its obligations and rights (including receivables) under any purchase order or these Terms of Sale to any of its affiliates or any third party without the prior consent of Purchaser.
17. HEALTH AND SAFETY. Purchaser shall comply with all applicable legislation, rules, regulations, and laws on the health and safety of workers and employees, as well as health and safety of the public in the vicinity. Purchaser shall provide and shall ensure that its employees, agents, contractors or subcontractors work in safe surroundings. Purchaser shall take those measures prescribed by law and any other measures necessary for the prevention of accidents at any site where Purchaser is using Multi Sales products. Purchaser shall timely inform its personnel of required safety precautions.
18. PRIVACY POLICY. Purchaser acknowledges, agrees, and understands that Multi Sales may collect information and data in connection with Purchaser’s requests, purchase orders, registering of accounts, and related matters, as further described in the Privacy Policy, which can be found at the following URL: www.multisalesinc.com/privacy.
19. SEVERABILITY. The invalidity or unenforceability of any provision of these Terms of Sale will not affect the validity or enforceability of any other provision hereof, all of which will remain in full force and effect. In the event of such finding of invalidity or unenforceability of a certain provision hereof, the Parties shall endeavor to substitute the invalid or unenforceable provision(s) by such effective provision(s) as will most closely correspond with the original intention of the provision(s) so voided.
20. NO WAIVER. Any right of Multi Sales set out in these Terms of Sale shall be without prejudice to any rights or remedies Multi Sales may have under a purchase order, at law or in equity. The failure or delay of Multi Sales to enforce any provision of these Terms of Sale or any purchase order shall not constitute a waiver of such provision or a waiver to enforce it. No waiver of any of these Terms of Sale or a purchase order will be valid unless in writing signed by a duly authorized representative of Multi Sales.
21. CONFLICTS. If there is a conflict between the terms or conditions contained in these Terms of Sale and Purchaser's purchase order or other documents submitted to Multi Sales by or on behalf of Purchaser at any time, the terms and conditions of these Terms of Sale shall prevail.