Terms and Conditions of Sale

Central Coast Seafood, Ethos Seafood Group, Chesapeake Fish Company, Morro Bay Company or Santa Monica Seafood Company (“Seller”) and the Buyer identified on the face of this invoice agree as follows:

  1. Acceptance. If the terms and conditions of this Invoice differ in any way from the terms and conditions set forth in Buyer’s order, this Invoice shall be construed as a counteroffer and shall not be effective as an acceptance of Buyer’s order unless Buyer agrees to these terms and conditions which shall constitute the entire agreement (the “Agreement”) between Seller and Buyer with respect to the subject matter hereof. If this Invoice is given in response to a quotation or order confirmation given by Seller to Buyer, all non-conflicting terms and conditions of the quotation or order confirmation shall be deemed incorporated in this Invoice by reference. Buyer’s acceptance of the terms and conditions of this Agreement shall be deemed to occur when Buyer accepts delivery of the products or goods delivered pursuant to this Invoice (the “Products”) or lenders payment to Seller. Except as otherwise provided above, any representation or warranty made by or on behalf of Seller prior to the date of this Invoice, whether express or implied, oral or written, and which is not! expressly set forth herein, is thereby expressly excluded and shall be of no force or effect.
  2. Force Majeure/Performance Prevented. Seller shall use its reasonable best efforts to perform under this Agreement by the date or dates specified on the face of this Invoice but shall not be responsible for any direct or consequential loss suffered by anyone, including Buyer, arising from late performance under this Agreement caused in whole or in part by delays in the delivery of goods or materials to Seller as a result of causes, conduct or occurrences beyond Seller’s reasonable control, including, but not limited to, strikes, industrial disputes, breakdowns, accidents, force majeure or any other circumstances beyond Seller’s control. If Seller is prevented or delayed from performing under this Agreement, whether in whole or in part, for any reason whatsoever beyond its reasonable control, then Seller’s further performance under this Agreement shall be suspended for the period during which Seller is so prevented.
  3. Payment of Purchase Price; Terms. Unless otherwise agreed by Seller in writing, Buyer shall pay to Seller in full the total price stated on the face of this Invoice (the “Purchase Price”) by cash, check or credit card within thirty (30) days after the date of delivery of the first Products to be delivered pursuant to this Invoice. If any portion of the Purchase Price remains unpaid after such thirty-day period, the entire remaining balance of this Invoice shall become immediately due and payable, without notice or demand, and a late charge equal to the lesser of (i) eighteen (18%) per annum, or (ii) the highest amount permitted by law, on any amount outstanding shall accrue and be payable by Buyer. In addition to the foregoing, any returned or dishonored checks or refused credit card charges or other forms of returned or dishonored Buyer payments are subject to a $25 service charge, which Buyer acknowledges is a reasonable payment to reimburse Seller for the administrative and other expenses incurred by Seller as a result of such dishonored payment. Payment shall be due and Seller shall be entitled to sue for the total Purchase Price, plus any late charge or service charge then owing, whether or not title in the Products has passed in accordance with Paragraph 8, below. If the overdue account is turned over for collection, Buyer agrees to reimburse Seller for any collection fees incurred by Seller, as well as for Seller’s attorneys’ fees and court costs, in addition to any late charges or service charges incurred as provided in this Paragraph 3. Buyer may not deduct any amounts from, or offset any amounts against, the Purchase Price unless Buyer has received written authorization from Seller authorizing such deduction or offset.
  4. Inspection; Returned Products. Buyer is responsible for inspection of all Products delivered pursuant to this Invoice. Buyer acknowledges that the Products are perishable, and condition of the Products may change rapidly after delivery unless properly stored and processed by Buyer. Therefore, Buyer agrees that, unless Seller has been notified by Buyer, in writing, of any defect in any Products delivered pursuant to this Invoice, or any failure of such Products to meet specifications agreed upon by Seller, in writing within twenty-four (24) hours following delivery of such Products to Buyer, all such Products delivered to Buyer shall be deemed accepted, and conforming to any specifications agreed upon by Seller. Seller will not accept any returned Products without a return authorization. Such Products must be, at Seller’s option, either (i) picked up by Seller’s delivery trucks, or (ii) sent! by refrigerated truck, freight prepaid by Buyer and such returned Products will be subject to a restocking fee established by Seller from time to time.
  5. Replacement of Nonconforming Products. Subject to Paragraph 7 of these terms and conditions, Seller shall replace any defective or unusable Products and make up any shortage in the delivery of Products listed in Seller’s Invoice. The time for delivery of such replaced Products shall be extended as reasonably required by Seller. Such Products will be delivered to the original place of delivery. Seller’s obligations under this Paragraph 5 shall apply only if Buyer shall have given written notice of any defective Products or any shortage in the delivery with reasonable particulars thereof lo Seller and the carrier of such goods within lwenly-four (24) hours of Buyer’s receipt of the Products in question, as provided in Paragraph 4.
  6. Limitations on Liability. Subject to Paragraph 7, below:
    1. Seller’s liability for any defect in or failure of Products delivered pursuant to this Invoice or for any loss, injury or damage attributable thereto shall in all events be limited solely to refunding any amounts paid for the Products in question or, at Seller’s option, replacing the defective Products. Seller shall not be liable for any direct, indirect or consequential damages arising from any defect in or failure of any of the Products delivered pursuant to this Invoice, or for any loss, injury or damage attributable thereto. Seller shall have liability under this Agreement for a defect in or failure of Products if Seller receives a written notice thereof from Buyer within twenty-four (24) hours after delivery of such Products by Seller under this Agreement, as provided in Paragraph 4, above, and provided that Buyer at all times properly maintains and stores such defective Products.
    2. Seller shall not be liable as set forth above if the defect has been caused in whole or in part by carelessness, improper treatment, storage or handling or any willful omission or action by Buyer or by any failure lo comply with any inslruclions given by Seller for the care, processing, storage or handling of the Products.
    3. Seller shall have no liability under the warranty set forth in Paragraph 7 if Buyer has not complied with the payment terms referred to in these terms and conditions:
  7. Limited Warranty. Seller warrants as follows:
    1. The Products sold hereunder, under reasonable and normal use, storage and handling for such Products, will conform to Seller’s published specifications in effect as of the date hereof and will be free from material defects in quality and processing when delivered. This limited warranty is extended only to the Buyer identified in this Invoice and not to any subsequent purchaser. Seller’s obligation is limited to replacing or exchanging any Product which, in Seller’s judgment, is defective.
    2. The above warranty shall be void on any Products which, in Seller’s opinion, show signs of having been subjected to mishandling, improper storage, negligence or accident.
  8. Title. Until Seller has received full payment of the total Purchase Price stated in this Invoice, the legal and beneficial title and ownership of the Products shipped under this Invoice shall be retained by Seller. Notwithstanding the foregoing, the risk of loss of the Products shall pass to Buyer at the place and time of delivery to Buyer, and Buyer shall then be responsible for such Products, except as otherwise expressly provided herein. Buyer shall hold the Products as bailee and in a fiduciary capacity for Seller and shall at all times take proper care of the Products and keep them in such manner that they may be clearly identified as belonging to Seller, until the Purchase Price has been paid in full.
  9. Severability. If at any time any one or more of the provisions of this Invoice becomes or is held by a court to be invalid, illegal or unenforceable in any respect, the validity and enforceability of the remaining provisions of this Invoice shall not in any way be affected or impaired thereby.
  10. Remedies Cumulative. The remedies provided to Seller under this Agreement shall be cumulative and concurrent and may be pursued singly, successively or together against Buyer, and may be exercised as often as occasion therefor shall arise. Seller shall not by any act or omission or commission be deemed to waive any of Seller’s rights or remedies hereunder unless such waiver is in writing, and then only to the extent specifically set forth therein. A waiver of any right or remedy on one event shall not be construed as continuing or as a bar to or waiver of such right or remedy on a subsequent event.
  11. Applicable Law. This Invoice and the rights and obligations of Seller and Buyer hereunder shall be governed by and interpreted, construed and enforced in all respects in accordance with the laws of the State of California applicable to contracts to be performed in, and between residents of, the State of California.
  12. Attorneys’ Fees. In the event any action or proceeding is commenced to enforce or interpret any provisions of this Agreement, the party prevailing in such action or proceeding shall be entitled, in addition to any and all other remedies, to
    recover from the party or parties not prevailing all costs and expenses (including attorneys’ fees and costs) incurred in such action or proceeding, including costs on appeal or in the enforcement of any settlement or judgment.
  13. Venue and Jurisdiction. Any action, proceeding or other matter arising directly or indirectly hereunder may be brought by either party in any proper court located in Los Angeles County, California, and Buyer hereby consents and agrees that venue for any such action, proceeding or other matter shall be properly placed in such courts. Buyer consents and agrees that any service of process may be made upon Buyer wherever Buyer is located or by certified mail.
  14. Integration. This Invoice sets forth the entire agreement between Seller and Buyer with respect to the Products ordered herein and exclusively determines the rights and obligations of Seller and Buyer, notwithstanding any prior course of dealing, custom or usage of trade or course or performance or prior negotiations or any additional or different terms proposed by Buyer at any time.