TERMS OF SALE
I. ENTIRE AGREEMENT
These Terms and Conditions of Sale establish the rights, obligations, and remedies of Plumbers Supply Co., ("Seller") and Buyer, form the entire agreement between Seller and Buyer, and apply to all transactions between Seller and Buyer unless otherwise specifically agreed to in writing by both parties. All prior oral or written agreements, including but not limited to terms in Buyer's purchase order, which are different from or in addition to these Terms and Conditions of Sale are not binding on Seller unless accepted in writing by Seller's duly authorized representative.
All orders are shipped F.O.B. point of shipment. Risk of loss will transfer to Buyer upon tender of goods to Buyer, Buyer's representative or common carrier. The cost of any special packaging or handling caused by Buyer's requirements or requests will be added to the amount of Buyer's order. If Buyer causes or requests a delay of shipment, or if Seller ships or delivers an order erroneously as a result of inaccurate, incomplete, or misleading information supplied by Buyer or Buyer's agents or employees, all storage and other additional costs and risk will be borne by Buyer.
All prices are subject to change unless otherwise noted on Seller's quotation. Buyer will be invoiced at prices in effect at the time of shipment. All taxes, transportation costs, duties and other charges are in addition to quoted prices. The amount of any sales, excise or other taxes, if any, applicable to the goods shall be added to the purchase price and shall be paid by Buyer unless Buyer provides Seller with a valid tax exemption certificate. Unless expressly stated otherwise in a price quote or Seller invoice, all priced are F.O.B. Seller's premises and subject to the terms and conditions of the manufacturer at the time of shipment. All prices are those in effect at time of shipment and are subject to change without notice.
Seller will make a good faith effort to deliver goods in accordance with Buyer's schedule and as indicated by Seller in writing. Seller assumes no responsibility or liability and will accept no backcharge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to seller. Seller assumes no responsibility or liability for Seller's non-performance caused by an act of God, war, labor disputes, civil unrest, accidents, the inability to obtain materials, delays of carriers, contractors or suppliers or any other causes beyond Seller's control. Under no circumstances shall Seller be liable for any special, consequential, incidental, indirect, or liquidated damages, losses, or expenses of any kind arising from any shipping delays or failure to give notice of any shipping delay.
Buyer may not cancel, change or modify an order without the written consent of Seller and payment by Buyer of all applicable cancellation or re-stocking fees.
Orders for customized or otherwise nonstandard products are noncancellable and non-returnable; in the event Buyer attempts to cancel such an order even prior to shipment, said order will be subject to full or partial invoicing even if manufacture is not complete.
Payment terms shall be as set forth in Seller's price quote or invoice. Buyer agrees to pay all invoices when due. A finance charge of 1.5% per month will be assessed on any past due balance. Buyer grants Seller a purchase money security interest in the products until such time as Seller is fully paid. Buyer will assist Seller in taking necessary action to perfect and protect Seller's security interest. No products shall become a fixture by reason of being attached to real estate. Seller reserves the right to withdraw Buyer's credit privileges and require advance payment or any collection costs, including reasonable attorneys' fees incurred in collecting monies owed. Seller rejects any terms proposed by Buyer that would hold back any portion of the purchase price until a date later than due on the invoice. Buyer shall not be entitled to set-off any amounts due Buyer against any amount due Seller with transaction.
VII. INSPECTION AND ACCEPTANCE
Claims for damage, shortage or errors in shipping must be reported within 48 hours of receipt of material. Buyer shall have 48 hours from the date Buyer receives any products to inspect such products for defects and nonconformance which are not due to damage, shortage or errors in shipping and notify Seller, in writing of any defects, nonconformance or rejection of products. After such 48 hour period, Buyer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Buyer shall have no right to reject the products for any reason or to revoke acceptance. Buyer herby agrees that such 48 hour period is a reasonable amount of time for such inspection. Any merchandise found to be defective in workmanship or material will be replaced subject to manufacturer's inspection and warranty.
OSHA HAZARDOUS SUBSTANCE INFORMATION: Material Safety Data Sheets (MSDS) for OSHA defined hazardous substance are available at your local branch or by contacting Seller at firstname.lastname@example.org or 1000 E. Main Street, Louisville, KY 40206. This information and recommendation contained on the MSDS supplied by the manufacturer is considered to be accurate and reliable. The Seller, however, makes no warranty with respect to the accuracy of reliability of the information or the suitability of the recommendations. The Seller disclaims any and all liability to any user thereof.
Products may be returned only with Seller's prior consent. Request for permission to return products must be accompanied by proof of purchase. All products to be returned must be in new and resalable condition, subject inspection and verification by Seller and/or the manufacturer. Non- stock products including non-standard and or special orders, shipped or held for future delivery may be returned if, and only if, the manufacturer issues a return authorization. Any material returned may be subject to restocking/handling and freight charges.
IX. WARRANTIES AND LIMITATION OF LIABILITY:
Warranty: Buyer's sole and exclusive warranty, if any, is that provided by The manufacturer of the product. Seller makes no express or implied warranties, whether implied by operation of law or otherwise, including, without limitation, all implied warranties of merchantability and fitness or fitness for a particular purpose. Seller makes no promise or Representation that the products will conform to any federal, state or Local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by Seller. Except as expressly set forth in this paragraph, all products and/or services provided by Seller and its employees and agents are provided as is, Where is, and with faults.
Limitation of Liability: To the greatest extent permitted by law, under no circumstances and in no event will Seller be liable for personal injury or property damage or any other loss, damage, cost of cover, cost of repairs or incidental, punitive, special or consequential damages of any kind, whether based upon warranty, contract, strict liability, negligence or any other cause of action arising in connection with the design, manufacture, sale, transportation, installation, use or repair of the products sold by Seller. Buyer hereby acknowledges and agrees that under no circumstances, and in no event, shall Seller's liability, if any, exceed the net sales price of the defective product(s); no additional allowance shall be made for the labor or expense of repairing or replacement.
Services: Seller warrants that all Services provided by Seller shall be performed in a professional and workmanlike manner with qualified personnel.
Warranty Exclusions: These warranties shall be void if there has been Misuse, accident, modifications, unsuitable physical or operating environment, improper maintenance, storage or installation of the goods. seller disclaims all other express or implied warranties, including but not limited to implied warranties of merchantability and/or fitness for use or a particular purpose even if known by seller. Seller makes no representation, warranty, or promise that the products or services will conform to any applicable laws, ordinances, regulations, codes or Standards, including but not limited to low lead or lead free laws or regulations, except as specified and agreed to in writing by an authorized representative of seller. Except in the event of damage caused by seller's negligence, under no circumstances shall seller be liable for any special, indirect, incidental, liquidated or consequential damages claimed by buyer or any third party related to a breach of warranty or any other non-conformity of the goods or services.
No Warranties to Consumers: Seller makes no warranties to those defined as "consumers" in Magnuson-Moss Federal Trade Commission Improvement Act.
Each party ("Indemnitor") shall indemnify and hold harmless the other party and its employees, officers, directors, and agents (each an "Indemnitee") from any suit, cause of action, judgment or claim ("Claim") for damages to property or bodily injury, loss of life, infringement, liability of any nature, costs, or expenses, including reasonable attorney fees ("Damages") to the extent caused directly by the negligent act or omission or intentional misconduct of the Indemnitor. Indemnification shall not apply to Damages proximately caused by the negligence of the Indemnitee.
Seller shall maintain all insurance as required by law and shall not allow such coverage to lapse. Seller agrees to maintain Worker's Compensation coverage as required by applicable state law, $1 million per occurrence and $2 million aggregate in commercial general liability, including product liability coverage, and $1 million in automobile liability coverage. All such coverage can be met through a standard, umbrella, or any combination of policies thereof. Upon request of Buyer, insurance coverage and these limits shall be evidenced by a Certificate of Insurance naming Buyer as an "Additional Insured", on a primary and non-contributory basis in support of the indemnity obligations under these Terms and Conditions of Sale utilizing the equivalent of the CG2010 04/13 and the CG2037 04/13. Seller is not bound to pay any premium or other fee to an OCIP or CCIP type insurance program. Unless expressly provided in Seller's quotation to Buyer, payment and performance bonds are not to be provided by Seller.
XII. LIMITATION OF LIABILITY
Except as set forth in this document, neither Party shall be liable to the other for special, incidental, consequential, punitive, statutory, or indirect damages, including but not limited to loss of profits, revenues, capital, business opportunity or downtime costs, arising out of the sale of goods to Buyer. This limitation shall apply regardless if the claimed damages arise from breach of contract, breach of warranty, tort, strict liability or any other legal theory.
Seller makes no promise or representation that the products will conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by Seller. Except as expressly set forth in this paragraph, all products and or services provided by Seller and its employees and agents are provided AS IS, WHERE IS, and WITH ALL FAULTS.
Buyer shall defend, indemnify and hold harmless Seller and its agents and employees against any loss, damage, claim, suit, liability, judgement or expense (including without limitation attorneys' fees) arising out of or in connection with any injury disease or death of persons (including, without limitation, Buyer's employees and agents) or damage to or loss of any property or the environment, or violation of any applicable laws of regulations resulting from or in connection with the sale, property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, use or repair of the products by Buyers, whether caused by concurrent and/or contributory negligence of Seller, or any of its agents, employees or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of this transaction.
These Terms and Conditions of Sale will be construed as if prepared jointly by the parties hereto and any uncertainty or ambiguity will not be interpreted against any one party. If any provision contained in these Terms and Conditions of Sale is held to be unenforceable then such provision will be given effect in such reduced form as may be decided by a court of competent jurisdiction, provided that, if any provision should be declared unenforceable or invalid for any reason, such unenforceable or invalid provision will be severed from the remainder of these Terms and Conditions of Sale without affecting the enforceability or validity of the remaining provisions.
The failure of either Seller or Buyer to insist upon the strict performance of any of these Terms and Conditions of Sale will not be deemed to be a waiver of any of the right or remedies of Seller or Buyer, nor of its right to insist upon strict performance of such term or of any other term in the future. No waiver of any of these Terms and Conditions of Sale will be valid unless in writing signed by a duly authorized representative of the waiving party.
XVI. DISPUTE RESOLUTION
The parties shall attempt in good faith to resolve promptly any dispute arising out of or relating to these Terms and Conditions of Sale by negotiation between executives who have authority to settle the dispute. The executives must be at a higher level of management than the persons with direct responsibility for administration of these Terms and Conditions of Sale.
XVII. GOVERNING LAW
These terms and conditions and any related transaction between Seller and Buyer shall be construed and interpreted according to the laws of the Commonwealth of Kentucky and the Uniform Commercial Code, as adopted by Kentucky, without regard to conflict of laws principles. Buyer hereby submitted to personal jurisdiction and exclusive venue to an appropriate court within the Commonwealth of Kentucky. It is expressly agreed that in the construction and interpretation of the terms of the Contract, the rule of construction that a document is to be construed.
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