The Essential Plumbing Co: Terms and Conditions of Sale
- CONTROLLING PROVISONS: No terns and conditions other than the terms and conditions contained herein shall be binding upon Seller unless accepted in writing and signed by the Seller’s President. All terms and conditions in any prior oral or written communications, including without limitation Buyer’s purchase order, which are different from or in addition to the terms and conditions herein are hereby rejected and shall not be binding. Any customer/buyer P.O. terms that vary from V&W’s conditions and terms of sale are specifically excluded and not accepted by V&W.
- TERMS: All past due amounts are subject to service charges at the maximum contract rate permitted by law, and Buyer agrees to pay for the products according to the Seller’s payment terms.
- REMEDIES OF SELLER: Upon default by Buyer, Buyer agrees to reimburse Seller all attorney fees and court costs incurred by Seller in connection therewith. Buyer agrees that any of the following shall constitute an event of default which shall enable Seller, at its option, to cancel any unexecuted portion of this order to exercise any right or remedy which it may have by law: (a) the failure of Buyer to perform any term or condition contained herein; (b) any failure of Buyer to give required notice; (c) the insolvency of Buyer of its failure to pay debts as they mature, an assignment of Buyer for benefit of its creditors, the appointment of a receiver for Buyer or for the materials covered by this order of the filing of any petition to adjudicate Buyer bankrupt, (d) the death, incompetence, dissolution or termination of existence of Buyer; (e) a failure by Buyer to provide adequate assurance of performance within ten (10) days after a justified demand by Seller or; (f) if Seller in good faith believes that Buyer’s prospect of performance under this agree is impaired. All rights and remedies of Seller herein are in addition to, and shall not exclude, any rights or remedies that Seller have by law in the event it becomes necessary to incur any expense for collection of any overdue account, reasonable collection charges, including reasonable attorney’s fees will be added to the balance due and Buyer shall pay such charges.
- WARRANTY: THE BUYER’S SOLE AND EXCLUSIVE WARRANTY, IF ANY, IS THAT WHICH MAY BE PROVIDED BY THE PRODUCT’S MANUFACTURER. THE ESSENTIAL PLUMBING CO MAKES NO EXPRESS OR IMPLIED WARRANTIES. THE ESSENTIAL PLUMBING CO. HEREBY DISCLAIMS AND EXCLUDES ANY AND ALL EXPRESSED OR IMPLIED WARRANTIES WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, SPECIFICALLY INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
UNDER NO CIRCUMSTANCES, AND IN NO EVENT, WILL THE ESSENTIAL PLUMBING CO. BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE OR ANY OTHER LOSS, DAMAGE, COST, OR REPAIRS AND/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 BYTHE ESSENTIAL PLUMBING CO. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES, AND IN NO EVENT, SHALL THE ESSENTIAL PLUMBING CO.’S LIABILITY, IF ANY, EXCEED THE NET SALES PRICE OF THE ALLEGEDLY DEFECTIVE PRODUCT(S). NO ADDITIONAL ALLOWANCE SHALL BE MADE FOR THE LABOR OR EXPENSE OF REPAIRING OR REPLACING DEFECTIVE PRODUCT(S) OR WORKMANSHIP OR DAMAGES RESULTING FROM THE SAME EXCEPT AS EXPRESSLY SET FORTH IN THE PARAGRAPH.
ALL PRODUCTS AND/OR SERVICES PROVIDED BY THE ESSENTIAL PLUMBING CO. AND ITS EMPLOYEES AND AGENTS ARE PROVIDED AS IS, WHERE IS, AND WITH ALL FAULT.
- INDEMNIFICATION: The Buyer shall at its own expense apply for and obtain any permits and inspections required for installation and use of the products. Seller makes no promises or representation that the products or services 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. The Seller’s products are not for use in or with any nuclear facility unless specifically so stated by Seller in writing. Seller shall not be responsible for any losses or damages sustained by the Buyer or any other person as a result of improper installation or misapplication of the products. 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, attorney’s 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 or regulations resulting from or in connection with the sale, transportation, installation, use or repair of the products by Buyer or of the information designs, services, or other work supplied to Buyer, whether caused by the concurrent and/or contributory negligence of Buyer, Seller, or any of their agents, employees, or suppliers. The obligations, indemnities and covenants in this paragraph shall survive the consummation or termination of this transaction.
- DELIVERY: Seller will make a good faith effort to complete delivery of the products as indicated by Seller in writing, but Seller assumes no responsibility or liability and will accept no pack charge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to Seller. Seller shall have no liability for Seller’s non-performance caused by acts or God, War, labor difficulties, accidents, inability to obtain materials, delays or carriers, contractors or suppliers or any other causes of any kind whatever beyond the control of Seller Under no circumstances shall Seller be liable for any special or consequential damages or loss, damage, or expense (whether or not based upon negligence) arising directly or indirectly from delays or failure to give notice of delay.
- SHIPMENTS: All products are shipped and title passes F.O.B. Shipping Point. Risk of Loss shall transfer to Buyer upon deliver of goods to common carrier. The cost of any special packaging or special handling caused by Buyer’s requirements or request shall be added to the amount of the order. If Buyer causes or requests a shipment delay, or if Seller ships or delivers the products erroneously as a result of inaccurate, incomplete or misleading information supplied by the Buyer or its agents or employees, storage and all other additional costs shall be borne solely by Buyer. No claim for shortages or shipping errors will be allowed unless made in writing within (2) days of receipt of a shipment. Claims for products damaged or lost in transit should be made by Buyer to the carrier, as Seller’s responsibility ceases upon delivery to the carrier.
- INSPECTION AND ACCEPTANCE: Buyer shall have two days from the date Buyer receives any products to inspect such products and services and notify Seller, in writing, of any defects, nonconformance or rejection of such products. After such two-day 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 the revoke acceptance. Buyer hereby agrees that such two-day period is a reasonable amount of time for such inspection and revocation.
- GOVERNING LAW: This transaction shall be governed in all respects by the laws of the State of Alabama (excluding choice of law provisions) and all actions commenced shall be brought in a court of competent jurisdiction residing in Birmingham, Alabama.
- TAXES: The amount of any sales, excise of other taxes, if any, applicable to the products shall be added to the purchase price and shall be paid by Buyer unless Buyer provides Seller with an exemption certificate acceptable to the taxing authorities. Any taxes which Seller may be required to pay or collect under any existing or future law, upon with respect to sales, purchase, delivery, storage, processing, use or consumption or any of the products, including taxes upon or measured by the receipts from the sale thereof shall be for the account of the Buyer, who shall promptly pay the amount thereof to Seller upon demand.
- SEVERABILITY: If any provisions hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable, and the terms and conditions herein shall be construed and enforced as is such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance wherefrom.
- SET-OFF AND NON-WAIVER: Buyer shall not be entitled to set-off any amounts due. Buyer against any amount due Seller in connection with this transaction. Seller’s failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any Seller’s rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by Seller’s president.
- RETURNED GOODS POLICY: Seller cannot accept return of any goods unless prior written permission has been given. Credit memorandums issued for authorized returns shall be subject to the following deductions and conditions: (a) Stock items-merchandise must be stock material consisting of the original parts, unaltered, of reasonable quantity and in resalable conditions as determined by a Seller’s representative; (b) all merchandise must be accompanied by documentation, providing Seller with the following information: invoice number and date, quantity of items being returned and reason for return. In addition, if proper documentation is outlined in (b) above is not provided then an additional handling charge may be charged to cover our additional expenses incurred in researching proof of purchase. Non-stock/special order items must have factory approval before returning and are subject to any manufacturer charges, special handling fees and freight before any credit, if any, can be issued. Therefore, Seller cannot authorize these products to be returned to Seller until such returns have been approved by the manufacturer or its representatives in writing to Seller. All returns are to be authorized by the issuing of a “Return Material Authorization.” Note: ALL CASH SALES ARE FINAL.
- ENTIRE AGREEMENT: This document constitutes the entire agreement between the parties and contains all the agreements and conditions of sale; no course of dealing or usage of trade shall be applicable unless expressly incorporated herein. The terms and conditions contained herein may not be added to modified superseded or otherwise altered except by a written modification signed by the Seller’s President. All transactions shall be governed solely by the terms and conditions contained herein.