TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale (these “Terms”) shall apply to all sales made by WHEATON Industries Inc. and any of the affiliated companies and businesses of WHEATON Industries Inc. (collectively, "Seller") to you ("Buyer") until such time as you receive a revised edition of these Terms or other notice from Seller of their revocation. These Terms shall apply to all transactions between you and Seller until such further notice unless your written objections are received by Seller within thirty (30) days after you receive this document, which includes receipt of a website address by which these Terms can be accessed.
Additional or different terms, conditions, or instructions applicable to a particular sale may be specified in the body of a price quotation or sales acknowledgment from Seller or in an exhibit thereto, and, in the event of a conflict, shall take precedence over these Terms. Price and delivery terms applicable to a specific sale of goods or materials may be evidenced by Seller's internal customer order form maintained by Seller, which shall be controlling.
1. INTERPRETATION: Unless set forth in writing and signed by both Buyer and Seller no conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain or supplement these Terms shall be binding and no modification shall be effected by the acknowledgement or acceptance of any Buyer purchase order or shipping instruction forms containing terms or conditions at variance with or in addition to these Terms.
2. PRICE: Sales of goods and materials shall be at the price last quoted by Seller or at Seller's prevailing list price, if no price has been quoted. The price noted on Seller's internal customer order form maintained by Seller regarding specific orders shall be controlling.
3. DELIVERY: Unless otherwise agreed in writing, all sales shall be F.O.B., Seller's plant, whereupon risk of loss is transferred to Buyer. Unless otherwise expressly agreed, Seller shall select the means of transportation and routing. Any specific delivery terms stated on Seller's internal customer order form maintained by Seller shall be controlling. All freight rates stated are those named by the carrier and are stated without responsibility. Buyer is responsible for all rate charges at actual rates in effect at time of shipment. All freight bills are to be paid by Buyer, unless otherwise agreed. Any prepaid charges are payable upon receipt of invoice. Carrier manifest weights taken on scale nearest the loading point shall govern all shipments.
4. ACCEPTANCE: Except as otherwise provided herein, all goods delivered hereunder shall be conclusively deemed accepted unless, in accordance with Section 8, within thirty (30) days after the date of delivery (F.O.B., Seller’s plant) of the goods, Seller receives written notice of rejection. Acceptance as aforesaid shall constitute acknowledgement of full performance by Seller of all of its obligations hereunder.
5. PAYMENT TERMS. Unless otherwise specified in a quotation issued by Seller and/or Seller’s invoice, payment for the goods sold hereunder shall be due in full within thirty (30) days net from the date of the invoice. Without prejudice to any other rights or remedies of Seller, Seller shall have the right to charge interest without further notice on all overdue amounts at the rate of one and a half percent (1.5%) per month.
6. TAXES: Any taxes that are or may be levied by the United States or any state or political subdivision thereof on goods or materials subject to any sales contract, or on the sale or purchase thereof, or on incidental transportation charges when the same are paid or required to be paid or collected by Seller shall be billed to and paid by Buyer.
7. WARRANTIES: Seller warrants that all goods and materials sold hereunder shall, at the time of shipment from Seller’s plant, conform to Seller's specifications and quality criteria for such goods and materials as determined by Seller’s test methods, which specifications, quality criteria and test methods are available upon request. Buyer’s sole and exclusive remedy, and Seller’s sole obligation, for breach of warranty shall be, at Seller's option, (a) the correction of the non-conforming condition or replacement of any nonconforming goods or materials or (b) the issuance of a credit to Buyer in the amount of the purchase price paid and received for such goods. Buyer shall notify Seller of any claim of for breach of the foregoing warranties within ten (10) days after Buyer’s discovery of such defect. Before any claim for breach of warranty will be honored, Seller must be given an opportunity, after receiving notice of Buyer's claim, to inspect the goods or materials claimed to be nonconforming. In no event shall any claim for a breach of warranty be made later than six (6) months after the date of delivery of the goods and materials.
SELLER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY, STATUTORY OR OTHERWISE, CONCERNING MATERIALS OR GOODS SUPPLIED UNDER THESE TERMS OR ANY CONTRACT TO WHICH THEY APPLY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OF MERCHANTABILITY. THE WARRANTIES GIVEN UNDER THIS SECTION ARE EXCLUSIVELY IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED.
SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO DEFECTS IN OR NONCONFORMITY OF GOODS OR MATERIALS RESULTING FROM DESIGNS OR SPECIFICATIONS PROVIDED BY BUYER. TECHNICAL ADVICE IS FURNISHED AS AN ACCOMMODATION TO BUYER. SELLER ASSUMES NO LIABILITY FOR TECHNICAL ADVICE AND BUYER ACCEPTS SUCH ADVICE AT BUYER'S SOLE RISK.
8. LIMITATIONS ON CLAIMS: All claims, except for claims for breach of warranty under Section 7, must be made within thirty (30) days after delivery of the goods or materials and failure to do so shall constitute a waiver by Buyer of any such claims. Claims for any damages to goods or materials in transit shall be made against the carrier. Any action for breach of any sales contract to which these Terms apply must be commenced within six (6) months after the cause of action has accrued.
9. LIMIT OF LIABILITY: SELLER’S TOTAL LIABILITY TO BUYER (REGARDLESS OF THE NATURE OF THE CLAIM) SHALL BE LIMITED TO THE TOTAL PURCHASE PRICE OF THE RELEVANT GOODS ACTUALLY PAID BY BUYER. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WIHOUT LIMITATION LOSS OF PROFITS.
10. SECURITY INTEREST: Seller retains a security interest in all goods and materials delivered hereunder and all proceeds and products thereof until all amounts due or to become due hereunder have been paid. Any repossession and removal of goods or materials shall be without prejudice to any of Seller’s other remedies at law or in equity. Buyer agrees, without further consideration, at any time to do or cause to be done, executed and delivered all such further acts and instruments (including without limitation financing statements appropriate for filing) as Seller may reasonably request in order to protect Seller’s security interest.
11. BUYER’S CONDITION: These Terms and all shipments made hereunder shall be at all times subject to the approval by Seller of Buyer’s financial condition. If the financial condition of Buyer at any time becomes unsatisfactory to Seller or if Buyer fails to make any payment when due, in addition to any other rights Seller may have, Seller may defer or decline to make any shipment or shipments hereunder or may condition such shipment upon receipt of satisfactory security or cash payments in advance. Seller reserves the right, upon written notice to Buyer, to cancel any order made under these Terms, without liability, in the event of any of the following: insolvency of Buyer, the filing of a voluntary petition in bankruptcy by Buyer, the filing of an involuntary petition to have Buyer declared bankrupt, the appointment of a receiver or trustee for Buyer, the execution by Buyer of an assignment for the benefit of creditors, the discontinuance of business by Buyer or the sale by Buyer of the bulk of its assets other than in the usual course of business.
12. CANCELLATION AND RETURNS: These Terms and any order made hereunder are not subject to cancellation by Buyer and goods and materials delivered and accepted hereunder are not subject to return or refund, except upon (a) written approval of Seller and (b) the payment to Seller of a fair and equitable cancellation or return charge based upon every loss, cost or damage that Seller may suffer as a result plus a reasonable allowance for profit.
13. ASSIGNMENT: These Terms and all contracts or orders governed by these Terms shall be binding upon, and inure to the benefit of, Buyer and Seller and their respective representatives, successors and assigns. Notwithstanding the foregoing, Buyer shall not assign its rights and obligations under these Terms, or any contract or order governed by these Terms, without Seller's prior written consent. In the event of an assignment without Seller’s prior consent, upon written notice to Buyer, Seller shall have the right to make unilateral adjustments to the payment terms hereunder, including without limitation, requiring cash in advance for deliveries or the posting of additional security.
14. FORCE MAJEURE: Seller shall not be responsible for any nonperformance or delay in performance as a result of any cause beyond its control, including without limitation, strikes, labor disputes, accidents, breakdowns, inability to secure transportation or materials, fires, floods, weather conditions, delays in transportation or the inability to obtain, at reasonable prices, utilities, raw materials or operating equipment and machinery.
15. APPLICABLE LAW: All contracts governed by these terms and conditions shall be governed by and construed according to the substantive laws of the State of New Jersey. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Contract. All disputes arising hereunder shall be resolved in a court of competent jurisdiction in the State of New Jersey. Buyer hereby consents to the jurisdiction of the state and federal courts sitting in the State of New Jersey and waives any claim that a proceeding brought in such courts has been brought in an inconvenient forum.
16. NOTICES: Any notice, direction or other information required or permitted to be given by either party under these Terms shall be deemed to have been validly given if served to the party in writing via e-mail, fax or via postal service.
17. SEVERABILITY/HEADINGS: If any provision of these terms and conditions or any resulting sales document are found by a court of competent jurisdiction to be prohibited or unenforceable, it shall be ineffective only to the extent of such prohibition or unenforceability, and such prohibition or unenforceability shall not invalidate the balance of such provision to the extent it is not prohibited or unenforceable, nor shall it invalidate the other provisions hereof, all of which shall be liberally construed in favor of Seller in order to effect the provisions hereof. The paragraph headings hereof have been inserted for the convenience of the parties and shall not be considered in the interpretation or construction of these Terms.
Copyright 2012 WHEATON Industries Inc. All rights reserved.
Note: WHEATON Industries Inc. reserves the right to make specification changes to its catalog products without notification. As a result of continual improvements to the design of our products or manufacturing techniques, purchasers may notice that items ordered and received may differ from the description and / or photograph of that product appearing on a website or in a catalog.