These terms and conditions (“Terms”) apply to all sales by China Manufacturers Alliance, LLC (“CMA”) to you (“Customer”) of tires, including Double Coin tires and any related products and services (collectively, “Products”). These Terms override and replace any conflicting terms or conditions included in any order or other document, unless CMA has expressly accepted such terms in writing.
The Products are intended solely for resale by Customer in the United States or Canada. These Terms are not a commitment to sell any particular quantity of Products. These Terms set forth the terms and conditions that will apply if any such sales are made. All orders are subject to acceptance by CMA. CMA may require Customer to provide purchase orders, and Customer authorizes CMA to rely on Customer’s list of authorized buyers, if any. Customer agrees to pay for all goods delivered as ordered, even in the event that Customer’s representative is not present to acknowledge delivery.
Customer shall pay prices and associated charges applicable at the time an order is accepted, in accordance with these Terms and any additional terms and conditions in CMA’s invoices. Unless otherwise agreed in writing between the parties, payment in full is due upon delivery.
For purchases on credit, as approved by CMA and indicated on the applicable CMA invoice, the terms of this paragraph apply. Unless otherwise provided on the applicable CMA invoice, all payments are due Net 30 days from invoice date. No discounts for early payment. Customer agrees to pay amounts and other amounts payable hereunder. Absent specific remittance instructions, payments will be applied in such order and amounts as CMA may determine in its sole discretion. Customer will remain responsible for all amounts payable to CMA even if the Customer’s credit account is terminated. Any invoiced amounts not paid when due will be subject to a finance charge equal to the lesser of the maximum rate allowed by law and a periodic rate of 1.5% per month (18% per annum), applied to the unpaid balance from the due date until paid. Notwithstanding any provision in these Terms to the contrary, Customer shall not be obligated for interest exceeding the maximum amount permitted under applicable law. Any excess interest received by CMA will be credited to outstanding amounts payable hereunder and any balance will be refunded to Customer. Customer represents and warrants that Customer’s credit account shall be used only in the conduct of its business, for commercial purposes as commercial trade credit, and not for personal, family or household purposes.
The title to any of the Products to be delivered to Customer shall pass to Customer upon delivery, unless the parties agreed that title passes at an earlier time. Until CMA has received payment in full, CMA shall retain a purchase money security interest in the Products in accordance with the applicable provisions of the California Uniform Commercial Code or other applicable law. Until CMA has received payment in full, Customer shall keep the Products separate from other products of the Customer and third parties and properly stored, protected, insured and identified.
CMA and its affiliates have developed, acquired, and licensed trademarks, trade names, trade dress, copyrights, and other valuable intellectual property (“CMA Trademarks and Copyrights”) in connection with the manufacture, distribution, marketing, promotion, and sale of Double Coin tires. With each sale of Products to Customer, including the sale of Double Coin tires, CMA hereby grants to Customer a limited, non-exclusive license to use the CMA Trademarks and Copyrights to market, promote, distribute, and sell the Products, subject to the license limitations set forth below.
The non-exclusive right of Customer to use the CMA Trademarks and Copyrights is limited, and, among other things, does not give Customer the right to do the following: (a) use the CMA Trademarks and Copyrights for any purpose other than specifically permitted in Paragraph 5 hereof; (b) sublicense, transfer or assign the CMA Trademarks and Copyrights except for the purpose of distributing and/or selling the Products to regional and local tire dealers who are customers of Customer; (c) sublicense, transfer or assign the CMA Trademarks and Copyrights to any national chains or tire dealers; (d) use the CMA Trademarks and Copyrights on any website or other Internet sales channel other than Customer’s own website or Internet sales channel; (e) market, promote, distribute, or sell the Products bearing the CMA Trademarks and Copyrights through any third-party website or Internet sales channel without first obtaining express prior written approval from CMA; (f) alter, modify, amend, or otherwise revise the CMA Trademarks and Copyrights in any respect for any purpose without first obtaining express prior written approval from CMA; (g) use any language or display the CMA Trademarks and Copyrights in such as a way as to create the impression that the CMA Trademarks and Copyrights are property of Customer; and (h) use the CMA Trademarks and Copyrights beyond the limited permission to use herein granted.
Customer, by taking delivery of the Products acknowledges that the ownership of all right, title and interest in the CMA Trademarks and Copyrights is and shall remain solely vested in CMA and/or its affiliates. If, upon request of Customer, any of the CMA Trademarks and Copyrights are altered, modified, amended, or otherwise revised, Customer acknowledges that CMA and/or its affiliates shall be the sole and exclusive owners of all right, title, and interest in the altered, modified, amended, or otherwise revised marks and rights. Customer shall promptly notify CMA upon the occurrence of any of the following: (i) any unauthorized use or infringement by any third party of any of the CMA Trademarks and Copyrights; or (ii) any assertion by a third party that Customer’s use of any of the CMA Trademarks and Copyrights constitutes trademark or copyright infringement or any similar claim.
All Products are subject to applicable standard manufacturer’s warranties or CMA’s written warranty then in effect. EXCEPT AS EXPLICITLY SET FORTH HEREIN, CMA EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NONINFRIGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES SHALL CMA OR ITS AFFILIATES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONTINGENT, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS, DOWNTIME, OR SUBSTITUTION COSTS, WHETHER OR NOT CMA WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
By ordering Products from CMA after receipt of these Terms and Conditions of Sale, Customer represents and warrants that: (a) Customer is authorized to do business in its state of incorporation, organization, or formation and its principal places of business and that all necessary approvals to enter into these Terms have been obtained; (b) Customer is purchasing the Products for resale in the United States or Canada only; (c) Customer is purchasing the Products for resale to regional and local tire dealers and end-users only and Customer will not sell or re-sell the Products to national dealers or chains; and (d) Customer shall comply with all federal, state, or municipal laws or regulations which are now or may become applicable to Customer’s purchase or resale of the Products. Customer agrees to display all required Product warranties and notices in accordance with the manufacturer’s or CMA’s policies and with all applicable laws.
By ordering Products from CMA after receipt of these Terms and Conditions of Sale, Customer agrees to indemnify CMA against, and reimburse and pay CMA on demand for, all losses, damages, costs, expenses, collection charges and attorney’s fees (whether out of court or in litigation, including appeals and bankruptcy proceedings) incurred by CMA: (a) in endeavoring to collect any amount payable hereunder, or to enforce, protect or defend CMA rights under these Terms; (b) in connection with any Customer checks returned for non-sufficient funds (NSF) or otherwise, including all returned checks fees permitted under applicable law; (c) as a result of Customer’s breach of its representations and warranties made in these Terms; and (d) as a result of the negligent or willful actions or omissions of Customer.
CMA shall not be liable for any delay, damage or non-performance as a result of any cause or event beyond CMA’s reasonable control, including an extraordinary natural act, act of Customer, labor disputes or shortages, shortages or delays in transportation or raw materials, embargo, war, riot, defaults of common carriers, equipment failures, or delays in the performance of suppliers of subcontractors.
These Terms are effective immediately, and shall become binding on CMA and Customer when customer places its next order from CMA. These Terms and Conditions shall remain in effect until modified or terminated by CMA in writing. These Terms may be terminated by CMA at any time by giving at least thirty (30) days’ prior written notice to Customer. If Customer fails to make any payment when due or to perform any obligation under these Terms, CMA may, at its option and without waiving or limiting any of its other rights or remedies under these Terms or at law, declare all of Customer’s indebtedness and obligations to CMA to be immediately due and payable and may immediately terminate these Terms by giving written notice to the Customer.
CMA may from time to time, in its sole discretion and upon written notice to Customer, modify these Terms.
These Terms contain the entire agreement of the parties regarding the subject matter described herein, and supersede all other representations, understandings, arrangements and prior agreements, whether written or verbal. Only CMA and Customer have enforceable rights and remedies under these Terms. CMA’s rights under these Terms are cumulative.
Nothing in these Terms shall be construed to make either party a partner, employee or agent of the other, and neither party has any authority to bind the other in any respect. The parties are independent contractors as to each other.
During and after the term of these Terms, Customer will maintain the confidentiality of all documents, confidential information, trade secrets, marketing and operating methods of CMA relating to the Products and business of CMA (“Trade Secrets”) and refrain from using and disclosing Trade Secrets for personal or commercial gain, or for any other purpose not in furtherance or of incidental to the obligation of the Customer hereunder, except with CMA’s written consent. Customer agrees that a breach of this Confidentiality provision shall cause irreparable harm to CMA and that CMA is entitled to seek appropriate injunctive relief to prevent or remedy any breach of this Confidentiality provision.
Customer may not assign any of its rights or obligations under these Terms without prior written consent of CMA, which consent will not be unreasonably withheld. The Terms shall inure to the benefit and be binding upon the parties, their permitted assigns, heirs, successors, administrators, and executors. If Customer transfers title to the Products to an affiliate or third-party, such transferee shall agree to be bound by these Terms.
No change to the Terms shall be effective unless in a writing executed by an authorized representative of CMA. Failure to require compliance with a part of the Terms is not a waiver of that part or any other part of these Terms. No term, provision or breach shall be deemed waived, unless such waiver is in writing and signed by CMA.
If any provision of these Terms is deemed invalid or unenforceable, that provision shall be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remainder of these Terms shall remain in full force and effect.
The laws of the State of California, U.S.A. (without giving effect to its conflicts of laws principles) shall govern all matters arising out of or relating to these Terms, and all and any claims or disputes pursuant to these Terms shall be brought solely and exclusively in the State or Federal courts of Los Angeles County, California U.S.A.; provided, however, that CMA may bring legal action to collect any amounts due in the county in which the Products were sold, any county in which Customer maintains a place of business, or Los Angeles County, California, at CMA’s election. Customer hereby submits to the jurisdiction of the California courts for purposes of adjudicating any action arising out of the Terms, and hereby waives, to the fullest extent permitted by law, any objection to the laying of venue therein. CMA and Customer further agree that the aforementioned choice of venue is to be considered mandatory and not permissive in nature, thereby precluding the possibility of litigation in any jurisdiction other than that specified in this section or by CMA. CMA and customer, to the extent they may legally do so, hereby waive any right each may have to assert the doctrine of forum non conveniens.
Customer hereby waives formal service of process as provided by The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965) and/or The Inter-American Convention on Letters Rogatory (1988) and accepts service by certified mail at Customer’s principle place of business as allowable by applicable law. If Customer is unable to waive formal service by applicable law, Customer shall to appoint a United States professional agent, such as CT Corporation, to accept formal service of process.
At the election of either party, any and all controversies, claims, or disputes between the parties directly or indirectly arising out of or related to the Terms, may be settled by arbitration, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration will be conducted in the English language in Los Angeles County, California, in accordance with the California Arbitration Act, California Code of Civil Procedure §§ 1280-1294.4. There shall be a single arbitrator agreed to by the parties. If the parties cannot agree to an arbitrator, one shall be appointed pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Nothing in this provision precludes CMA from seeking injunctive relief, as appropriate, in a State or Federal Court in Los Angeles County, California to enforce CMA’s rights under these Terms.
In any suit or claim based on any cause of action, regardless of form, arising out of or in any way connected with these Terms, the prevailing party shall be entitled to reasonable costs and attorneys’ fees.
Any notice from CMA of changes to these Terms will be deemed to have been properly given when sent to Customer by email or U.S. mail with first-class postage prepaid. All other notice under these terms shall be submitted to Customer at the address listed on the applicable Order and to CMA at Attention: CMA Legal, 406 E. Huntington Drive, Suite 200, Monrovia, California 91016 by personal delivery or by registered or certified mail (postage prepaid, return receipt requested). Unless stated otherwise in any such notice, all changes to these Terms shall be deemed effective upon receipt.
Customer’s purchase of Products after the date of these Terms and Conditions constitutes its acceptance of these Terms. Customer agrees that each and every sale by CMA to Customer from the effective date forward is subject to these Terms. An electronic signature shall have the same validity and binding effect as a handwritten signature. The Customer’s representative placing an order with CMA represents that he or she is authorized to do so on behalf of Customer.
July 25, 2018