Terms of Sale
I. STANDARD TERMS AND CONDITIONS
A. SALES POLICY FOR PRODUCTS
1. Wholesale Only
Seller sells its complete offering wholesale to business Buyers, while also serving individuals.
A. “Web Prices” displayed on Imperial.com: (i) are offered to Buyers that do not have other pricing arrangements with Seller; (ii) are subject to these Terms of Sale; (iii) are available for orders placed on Imperialsupplies.com, by phone, mobile app, ScanTel® ordering system, or other Seller-approved ordering methods; (iv) do not include freight, handling fees, taxes, and/or duties; and (v) are subject to change or correction at any time and without notice.
B. Buyers that have other pricing arrangements with Seller can view their prices and the applicable prices to which discounts, if any, are applied, when logged into their Imperial.com account. Export orders may be subject to other special pricing.
C. Seller reserves the right, in its sole discretion, to offer a volume discount (“Volume Discount”) to Customers based upon the quantity of products purchased in a single transaction. Volume Discount pricing is subject to product availability, and quantity limits may apply. Resale by Customers at retail or online of products purchased under Volume Discount pricing is prohibited. Seller reserves the right to: (i) accept or reject any Volume Discount order; or (ii) charge the full price for the product if the event that Volume Discount priced items are returned.
3. Sales Tax
Buyer is responsible for payment of all applicable state and local taxes, or for providing a valid sales tax exemption certificate. When placing an order, Buyer shall indicate which products are tax exempt.
4. Payment and Credit Terms
Seller accepts checks, money orders, Visa, MasterCard, and American Express. Standard payment terms are net thirty (30) days. For Buyers with established Seller' credit, payment terms are one-half percent (1/2%), ten (10) days, net thirty (30) days from the date of shipment. All credit extended by Seller to Buyer, and the limits of such credit, is at Seller' sole discretion, and may be reduced or revoked by Seller at any time, for any reason. Seller reserves the right to charge Buyer a late payment fee at the rate of one and one-half percent (1-1/2%) of the amount due for each month or portion thereof that the amount due remains unpaid or such amount as may be permitted under applicable law. Anticipation and cash discounts are not allowed. Export orders are subject to special export payment terms and conditions identified in Section III. All payments must be made in U.S. dollars. Seller has the right of set-off and deduction for any sums owed by Buyer to Seller.
If Buyer fails to make payment within thirty (30) days of shipment, or fails to comply with Seller' credit terms, or fails to supply adequate assurance of full performance to Seller within a reasonable time after requested by Seller (such time as specified in Seller' request), Seller may defer shipments until such payment or compliance is made; require cash in advance for any further shipments; demand immediate payment of all amounts then owed; elect to pursue collection action (including, without limitation, attorneys' fees and any and all other associated costs of collection); and/or may, at its option, cancel all or any part of an unshipped order. Additionally, Buyer, and each of its subsidiaries and affiliates, agrees to provide to Seller proper authorization necessary for Seller to request any financial information from third parties.
Seller has the right, at any time and in its sole discretion, to immediately change the terms of any credit extended to Buyer if: (i) there is a material change in Buyer’s financial capability or creditworthiness; (ii) Business Buyer enters into or signs an agreement regarding any Change of Control; or (iii) a trustee, receiver or examiner is appointed for Business Buyer or its affiliates or subsidiaries or Business Buyer’s plan of reorganization is confirmed by a U.S. Bankruptcy Court. “Change of Control” means any (x) sale, lease, or other disposition of all or substantially all of Business Buyer’s assets; (y) transaction or series of related transactions (by stock sale or otherwise) in which any person or entity becomes the beneficial owner, directly or indirectly, of more than 50% of Business Buyer’s voting control; or (z) merger or consolidation involving Business Buyer.
Buyer agrees to assume responsibility for, and Buyer hereby unconditionally guarantees payment of, as provided herein, all purchases made by Buyer, its subsidiaries and affiliates. Each of Buyer's subsidiaries and affiliates purchasing from Seller are jointly and severally liable for purchases with Buyer, and Buyer is also acting as agent for such subsidiaries and affiliates.
5. Security Interest
Buyer hereby grants to Seller a first priority purchase money security interest and/or chattel mortgage in the products and any accounts receivable or cash from resale thereof until full payment is made to Seller. Buyer agrees to file, and it permits and authorizes Seller to file, any financing statements or other appropriate documents with its governmental authorities to perfect the validity, priority, and enforceability of Seller' lien or security interest.
6. Credit Balance
Buyer agrees that any credit balance(s) issued by Seller will be applied to Buyer's account.
B. FREIGHT POLICY
Prices stated are F.O.B. shipping, freight prepaid to destination specified in order. Seller charges a shipping and handling fee on each order which is applied at time of order and reflected on Buyer's invoice. Receipts for shipping and handling charges will not be furnished. Orders over $400 are shipped freight free. COD shipments are not permitted. Other terms and conditions may apply for other than standard ground delivery ("Other Freight Services"), including without limitation, expedited same day delivery, air freight, freight collect, export orders, hazardous materials, Buyer's carrier, shipments outside the contiguous U.S. or other special handling by the carrier. Any charges incurred for Other Freight Services must be paid by Buyer. Fuel surcharges may be applied. Title and risk of loss pass to Buyer upon tender of shipment to the carrier. If the product is damaged in transit, Buyer's only recourse is to file a claim with the carrier. Vendor drop-shipped products are excluded from our standard freight policy and the Buyer is responsible for freight on drop-ship products.
C. PRODUCT WARRANTY POLICY
1. Satisfaction Guarantee To All Buyers
Buyer should contact Seller if not satisfied with a product for any reason. Seller will promptly provide an exchange or refund if the product is returned within one (1) year from date of purchase, unless otherwise indicated. Returned product must be in original packaging, unused, undamaged and in saleable condition with all accessories, manuals and warranties included. Proof of purchase is required for all returns.
2. LIMITED WARRANTY
SELLER WARRANTS PRODUCTS AGAINST DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF ONE (1) YEAR AFTER THE DATE OF PURCHASE, UNLESS OTHERWISE STATED. PROVIDED THAT SELLER ACCEPTS THE PRODUCT FOR RETURN DURING THE LIMITED WARRANTY PERIOD, SELLER MAY, AT ITS OPTION: (i) REPAIR; (ii) REPLACE; OR (iii) REFUND THE AMOUNT PAID BY BUYER. SELLER' REPAIR, REPLACEMENT, OR REFUND OF AMOUNTS PAID BY BUYER FOR THE PRODUCT, SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY.
3. WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY TO ALL BUYERS
EXCEPT AS SET FORTH HEREIN AND WHERE APPLICABLE, NO WARRANTY OR AFFIRMATION OF FACT OR DESCRIPTION, EXPRESS OR IMPLIED, IS MADE OR AUTHORIZED BY SELLER. SELLER DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. SELLER ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION. ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES IS EXPRESSLY DISCLAIMED TO THE EXTENT PERMISSIBLE. SELLER'S LIABILITY IN ALL EVENTS IS LIMITED TO THE PURCHASE PRICE PAID FOR THE PRODUCT THAT GIVES RISE TO ANY LIABILITY.
4. Warranty Product Return
To return a product during the Limited Warranty Period, Buyer must call 800-588-2808 for a return authorization number. Each return authorization number is valid for thirty (30) days. There is no restocking fee, except as otherwise noted below, if products are returned within the Limited Warranty Period in saleable condition, with manufacturer's original packaging unblemished and all accessories, manuals and warranties included. Please include a copy of the packing list or invoice with a reason for the return. Late returns and incomplete returns will incur a 15%, or higher, restocking fee. Seller reserves the right not to accept returns received after the expiration of the Limited Warranty Period.
5. Manufacturer's Warranty
For information on a specific manufacturer's warranty, please contact Seller 800-588-2808.
6. Product Compliance and Suitability
Jurisdictions have varying laws, codes and regulations governing construction, installation, and/or use of products for a particular purpose. Certain products may not be available for sale in all areas. Seller does not guarantee compliance or suitability of the products it sells with any laws, codes or regulations, nor does Seller accept responsibility for construction, installation and/or use of a product. It is Buyer's responsibility to review the product application and all applicable laws, codes and regulations for each relevant jurisdiction to be sure that the construction, installation, and/or use involving the products are compliant.
7. Cross-Reference Information
Product cross-reference comparisons do not imply that products are available or perfectly comparable. CROSS-REFERENCED PRODUCTS ARE NOT REPRESENTED OR WARRANTED AS FUNCTIONAL OR PERFORMANCE EQUIVALENTS. Buyer shall review all cross-referenced product specifications prior to purchase and use to determine suitability of the product for Buyer's intended use.
D. PRODUCT INFORMATION
1. Catalog/Website Information
Product depictions in the catalogs and websites are for illustrative purposes only. Possession of, or access to, any Seller catalog, literature or websites does not constitute the right to purchase products. Seller reserves the right to revise publishing errors in its catalogs or any of its websites.
2. Product Substitution
Products and/or country of origin may be substituted and may not be identical to descriptions and/or images published in the catalog or on the website.
3. Safety Data Sheets and Material Safety Data Sheets
Safety Data Sheets ("SDS") and Material Safety Data Sheets ("MSDS") for OSHA defined hazardous substances are prepared and supplied by the manufacturers.SELLER MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS ALL LIABILITY TO ANY BUYER OR USER WITH RESPECT TO THE ACCURACY OF THE INFORMATION OR THE SUITABILITY OF THE RECOMMENDATIONS IN ANY SDS/MSDS. BUYER IS SOLELY RESPONSIBLE FOR ANY RELIANCE ON OR USE OF ANY INFORMATION, AND FOR USE OR APPLICATION OF ANY PRODUCT.
4. California Proposition 65
The State of California requires that certain warnings be given concerning products subject to Proposition 65. For products denoted with a 1 or 2 symbol the following warnings apply:
1 Warning: This product contains a product known to the State of California to cause cancer.
2 Warning: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm.
5. SDS/MSDS and Proposition 65 Regulated Product Requests
Information on SDS/MSDS and Proposition 65 regulated products are available: (i) by contacting Seller, 300 N Madison St., P.O. Box 11008, Green Bay, WI 54307-1008 or (ii) by calling 800-558-2808 or faxing 800-553-8769. A complete list of Proposition 65 regulated chemicals is available by logging on towww.oehha.ca.gov.
6. California, Maryland and Vermont Buyers
Regulations in CA, MD and VT prohibit the introduction into commerce of any solder, flux, pipe, pipe or plumbing fitting, or fixture intended to convey or dispense water for human consumption that is not "lead free". The maximum allowable lead content is 0.25 percent lead in wetted surfaces of pipes, pipe fittings, and plumbing fittings and fixtures, as determined by a weighted average. The maximum allowable lead content is 0.2 percent lead in solder and flux.
7. ARRA Orders
It is Buyer's responsibility to advise Seller whether this order is funded in any part by funds from or related to the American Reinvestment and Recovery Act ("ARRA") (Pub. L. No. 111-5) (i.e., Stimulus Funds). Upon request, Seller will provide country of origin information so that Buyer may determine compliance with any applicable requirements under ARRA Section 1605 or any other applicable regulations.
E. GENERAL TERMS
1. Electronic Data Interchange
If Seller and Buyer mutually agree to use an Electronic Data Interchange ("EDI") system to facilitate purchase and sale transactions, Buyer agrees that it will not contest: (i) any contract of sale resulting from an EDI transaction under the provisions of any law relating to whether agreements must be in writing or signed by the party to be bound thereby; or (ii) the admissibility of copies of EDI records under the business records exception to the hearsay rule, the best evidence rule or any other similar rule, on the basis that such records were not originated or maintained in documentary form. Seller and Buyer will negotiate and agree on technical standards and methods to use in making EDI purchases, and will use reasonable security procedures to protect EDI records from improper access. In the event of a conflict, the business records maintained by Seller regarding EDI purchases made by Buyer shall be deemed to be conclusive.
2. Third Party Payment Provider
If Buyer elects to use a third party payment system provider ("Third Party Provider") and Seller is charged fees by the Third Party Provider, Seller reserves the right to seek reimbursement from Buyer for any and all costs paid to the Third Party Provider for the transfer of funds, retrieval of payment detail, or any other purpose from the Third Party Provider.
3. Intellectual Property
Buyer shall have no right, title, or interest in the trade names, trademarks, trade dress, copyrights, patents, domain names, product names, catalogs or any other intellectual property rights reserved by Seller, or any trademarks or service marks owned by suppliers to Seller. All materials contained on the www.imperialsupplies.com website are subject to the ownership rights of Seller and its suppliers. Buyer shall have no right to copy or use any of the intellectual property of Seller or its suppliers without Seller' permission.
4. Independent Contractors
Seller and Buyer are independent contractors and not principal and agent. Nothing contained in these terms and conditions shall be construed to create a partnership, dealership, reseller, agency, employment or joint venture relationship. Buyer does not have the right to bind or otherwise obligate Seller in any manner, nor may Buyer represent to anyone that it has the right to do so.
5. Sourced Product
Seller may procure product not available through the Seller catalog or available on www.imperialsupplies.com for a Buyer from other sources ("Sourced Product(s)"). Sourced Product is priced according to current market conditions on a per order basis, and is shipped F.O.B. shipping with freight and handling fee paid by Seller and charged to Buyer. Sourced Product may not be returned. SELLER' LIMITED WARRANTY TERMS INCLUDED IN THESE TERMS AND CONDITIONS DO NOT APPLY TO SOURCED PRODUCTS. THE PRODUCT WARRANTY PROVIDED BY THE MANUFACTURER AND/OR SUPPLIER WILL BE BUYER'S SOLE REMEDY.
6. Custom Product
Seller may offer products manufactured or assembled to Buyers specifications ("Custom Product(s)"). Seller is not responsible for verifying or confirming the accuracy of specifications provided by Buyer to Seller for Custom Products. SELLER'S LIMITED WARRANTY TERMS INCLUDED IN THESE TERMS AND CONDITIONS DO NOT APPLY TO CUSTOM PRODUCTS. THE PRODUCT WARRANTY PROVIDED BY THE MANUFACTURER AND/OR SUPPLIER WILL BE BUYER'S SOLE REMEDY, AND ALL OTHER WARRANTIES ARE DISCLAIMED UNDER SECTION 1.C. ABOVE. All Custom Products are sold on a "FINAL SALE" basis only, and no cancellations, returns, refunds or credits are allowed.
All product order cancellations, if not prohibited above, must be approved by Seller, and may be denied or subject to restocking fees and other charges.
8. Force Majeure
Seller shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, including but not limited to acts of God, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees or controls, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of Seller in the conduct of its business.
Buyer shall not assign any order, or any interest therein, without the prior written consent of Seller. Any actual or attempted assignment without Seller' prior written consent shall entitle Seller to cancel such order upon notice to Buyer.
10. No Third Party Benefit
The provisions stated herein are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
11. Waiver, Choice of Law and Venue
The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by the other party. All transactions shall be governed by the laws of the State of Delaware, excluding its conflict of law rules, and venue shall either be in the state or federal courts in New Castle County, State of Delaware.
If any portion of these terms and conditions is found to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable term shall be severed from these terms and conditions, and the remaining terms and conditions shall be valid and fully enforceable as written.
13. Modification of Terms
Seller' acceptance of any order is subject to Buyer's assent to all of the terms and conditions set forth herein. Buyer's assent to these terms and conditions shall be presumed from Buyer's receipt of Seller' acknowledgment, or from Buyer's acceptance of all or any part of the products ordered. No additions or modifications of Seller' terms and conditions by Buyer shall be binding upon Seller, unless agreed to in writing by an authorized representative of Seller. If a purchase order or other correspondence submitted by Buyer contains terms or conditions contrary or in addition to the terms and conditions contained herein or in Seller' acknowledgment, Seller' fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by Buyer, and will not constitute a waiver by Seller of any of the terms and conditions contained herein or in Seller' acknowledgment.
14. Complete Agreement
The terms and conditions in: (i) Seller' forms; (ii) acknowledgments; (iii) quotations; (iv) invoices; (v) websites; (vi) catalogs; and (vii) extension of credit are incorporated herein by reference, and constitute the entire and exclusive agreement between Buyer and Seller.
II. ADDITIONAL TERMS AND CONDITIONS RELATED TO THE PERFORMANCE OF SERVICES
IN ADDITION TO THE STANDARD TERMS AND CONDITIONS IN SECTION I, PERFORMANCE OF SERVICES WILL BE GOVERNED BY THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS ("ADDITIONAL SERVICE TERMS").
Services may be performed by: (i) Seller, its employees and agents ("Seller Personnel"); (ii) Seller affiliates ("Seller Service Entities"); or third-party subcontractors ("Third-Party Providers"). For purposes of this Section II, Seller Personnel, Seller Service Entities and Third-Party Providers are each referred to as a "Service Provider" and each Service Provider, together with its personnel, is referred to as "Service Provider Personnel."
The terms and conditions contained in this Section II are extended solely by the specific Service Provider performing services, and any obligations contained in this Section II do not apply to any other Service Provider referenced in the foregoing paragraph. Depending upon the nature of the services provided, the applicable Service Provider may require Buyer to execute additional contractual documents prior to the performance of services.
In the event of a conflict between the Standard Terms and Conditions in Section I and the Additional Service Terms in Section II, the Additional Service Terms in Section II shall prevail for the performance of services.
1. LIMITED SERVICES WARRANTY
ALL SERVICES WILL (i) BE PERFORMED IN A WORKMANLIKE MANNER; (ii) CONFORM TO THE SPECIFICATIONS (IF ANY) PROVIDED BY THE SERVICE PROVIDER IN A STATEMENT OF WORK; AND (iii) BE WARRANTED FOR A PERIOD OF NINETY (90) DAYS AFTER PERFORMANCE OF SERVICES ("LIMITED WARRANTY PERIOD"). IF SERVICES ARE IMPROPERLY PERFORMED AND BUYER NOTIFIES THE SERVICE PROVIDER OF THE IMPROPERLY PERFORMED SERVICE DURING THE LIMITED WARRANTY PERIOD, THEN THE SERVICE PROVIDER WILL RE-PERFORM THOSE SERVICES, IN WHOLE OR IN PART, AS NECESSARY TO CURE THE PARTICULAR BREACH, OR AT THE SERVICE PROVIDER'S SOLE OPTION, REFUND THE AMOUNT PAID BY BUYER FOR THE SERVICES DIRECTLY ATTRIBUTABLE TO THE PARTICULAR BREACH. THE SERVICE PROVIDER'S RE-PERFORMANCE OR REFUND OF AMOUNTS PAID BY BUYER FOR THE SERVICE DIRECTLY ATTRIBUTABLE TO THE PARTICULAR BREACH SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY.
2. WARRANTY DISCLAIMER AND WAIVER FOR SERVICES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION II FOR SERVICES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND THE SERVICE PROVIDER DISCLAIMS, AND BUYER WAIVES, ALL OTHER WARRANTIES FOR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. THE WARRANTIES SET FORTH IN THIS SECTION II ARE EXPRESSLY CONDITIONED UPON THE USE OF THE SERVICES FOR THEIR INTENDED PURPOSE AND SHALL NOT APPLY TO SERVICES WHICH HAVE BEEN SUBJECT TO MODIFICATION BY BUYER OR ANY THIRD PARTY.
3. LIMITATION OF LIABILITY
THE SERVICE PROVIDER EXPRESSLY DISCLAIMS ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES IN THE PERFORMANCE OF SERVICES. THE SERVICE PROVIDER'S LIABILITY IN ALL CIRCUMSTANCES IS LIMITED TO, AND SHALL NOT EXCEED, THE PURCHASE PRICE FOR THE PERFORMANCE OF THE PORTION OF SERVICES THAT GIVES RISE TO ANY PARTICULAR LIABILITY.
4. Payment and Credit Terms
Except as otherwise agreed to by the parties, Buyer will be invoiced upon completion of services. Payment terms are net thirty (30) days from the date of invoice. All other payment terms are as set forth in Section I.A.4.
Either party may terminate the service agreement at any time and for any reason upon thirty (30) days' written notice to the other party. If terminated by Buyer, Buyer shall pay Service Provider an amount equal to the greater of (i) Ten percent (10%) of the total project cost quotation thereto (the "Total Project Cost"), or (ii) an amount equal to the Total Project Cost multiplied by the percentage completion for such project at the time the notice of termination is given, as determined by Service Provider.
Buyer shall defend, indemnify and hold harmless Service Provider and its respective officers, directors, employees, subcontractors and agents (each individually, an "Indemnified Party") from and against any and all any claims, suits, liabilities, damages, settlements, charges, taxes and any other losses or expenses (including reasonable attorneys' fees) (collectively "Liabilities") for physical injury to, illness or death of, any third party regardless of status and damage to or destruction of any tangible property which the third party may sustain or incur, to the extent such Liabilities relate to the services; except for such Liabilities relating to or arising out of a final judgment of gross negligence or willful misconduct of the Indemnified Party. In any action, suit or proceeding brought against an Indemnified Party by reason of any such claim as specified above, Buyer shall resist and defend such action, suit or proceeding by counsel of its choice, at the sole expense of Buyer, provided that (i) the Indemnified Party notifies Buyer promptly in writing of the claim; (ii) Buyer's counsel does not give rise to a conflict of interest with respect to the Indemnified Party; (iii) Buyer has the sole control of the defense and all related settlement negotiation but shall keep the Indemnified Party reasonably informed of status; and (iv) the Indemnified Party provides Buyer with all reasonably necessary assistance, information, and authority to perform the foregoing at Buyer's expense.
7. Access to Buyer's Premises
To the extent access to Buyer's premises is required, Buyer shall provide Service Provider Personnel access to Buyer's premises free of charge as necessary for performance of services supplied by Service Provider. Prior to starting any work at Buyer's premises, Buyer will: (i) provide documentation that identifies any existing hazardous materials, or dangerous or potentially dangerous conditions on or about Buyer's premises; and (ii) allow Service Provider Personnel, at its option, reasonable access to Buyer's premises to perform or have performed a visual site inspection. Service Provider will have no responsibility or liability for the actual existing conditions; or identifying, correcting or advising Buyer of existing conditions on Buyer's premises ("Pre-Existing Conditions"), and Buyer shall be responsible for and shall indemnify each Service Provider and each of the Service Provider Personnel from and against any Liabilities arising out of or relating to any Pre-Existing Conditions, regardless of whether previously disclosed to any Service Provider or Service Provider Personnel. Buyer shall not attempt to condition the right of Service Provider Personnel to obtain free access to Buyer's premises upon the signing of any agreement, waiver, or release which in any way purports to affect the legal rights or obligations of Service Provider or Service Provider Personnel. If any Service Provider Personnel signs such an agreement, waiver, or release, it shall be of no force and effect.
8. Health and Safety Matters
Buyer shall take all precautions, at all times, for the health and safety of Service Provider Personnel at Buyer's premises, including but not limited to identifying to Service Provider all hazardous materials or safety or health hazards to which Service Provider Personnel on Buyer's premises may be exposed; (i) providing to Service Provider Personnel for review, and instructing Service Provider Personnel regarding Buyer's safety practices; and (ii) proper and safe handling of, and protection of, Service Provider Personnel from exposure to hazardous materials or dangerous conditions. Buyer agrees to provide Service Provider Personnel with all safety health and other protections required by law for Buyer's own employees, including, without limitation, all protections required by federal, state and local laws, standards, regulations, orders and other requirements under OSHA, and similar workplace safety and health statutes and programs.
9. Right to Subcontract
Buyer agrees that the Service Provider may subcontract the performance of services to third parties. Buyer authorizes the Service Provider to disclose all information to the subcontractor, including confidential information necessary for such performance of services by the subcontractor.
10. No Third Party Reliance
Buyer acknowledges and agrees that any advice, recommendation, information or work product provided to Buyer by Service Provider in connection with the services is for the sole use of Buyer and may not be relied upon by any third party; and Buyer is prohibited from making such advice, recommendation, information or work product available to any third party without prior written consent from Seller.
III. ADDITIONAL TERMS AND CONDITIONS RELATED TO EXPORT OF SELLER' PRODUCTS
IN ADDITION TO THE STANDARD TERMS AND CONDITIONS IN SECTION I, EXPORT SALES OF SELLER' PRODUCTS WILL BE GOVERNED BY THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS RELATED TO EXPORT OF SELLER' PRODUCTS ("ADDITIONAL EXPORT TERMS"). IN THE EVENT OF A CONFLICT BETWEEN SELLER' STANDARD TERMS AND CONDITIONS IN SECTION I AND THE ADDITIONAL EXPORT TERMS IN SECTION III, THE ADDITIONAL TERMS IN SECTION III SHALL PREVAIL FOR EXPORT SALES OF SELLER' PRODUCTS.
1. Order Acceptance
Buyer acknowledges that no order shall be deemed accepted unless and until it is verified and accepted by Seller. Buyer further consents that submission of its order shall subject Buyer to the jurisdiction of the federal courts of the U.S. and of the State where acceptance occurred in the U.S.
2. Sales Tax and Duties, Import Fees
Seller is required to charge federal, state, local tax, applicable duties, and import fees on products, or for providing a valid exemption certificate. Buyer assumes responsibility for, and unconditionally guarantees payment or reimbursement of, all applicable taxes, fees, licenses, import duties, and expenses as may be applicable. When placing an order, Buyer shall indicate which products are tax exempt.
3. Payment and Credit Terms
Payment can be made by checks, money orders or wire transfer. All other payment terms are as set forth in Section I.A.4. Buyer agrees to inform Seller immediately if it intends to use any import or export financing, or has or will be granting a lien or security interest on its inventory to any third party.
4. Shipping Charges and Freight Policy
All Seller export orders are shipped under INCOTERMS® 2010 rules as defined by the International Chamber of Commerce. Unless otherwise stated and agreed, default shipping term is FCA Seller shipping location, excluding export customs clearance. Freight is collect from any Seller facility. Buyer shall be responsible for obtaining insurance. At Seller' option, this freight policy may be subject to special terms and conditions for certain export orders. If any item is backordered that qualifies for freight prepayment, that item will be shipped prepaid as Buyer's exclusive remedy. Title and risk of loss for products shall pass when made available to Buyer on delivery to carrier in the U.S.; provided that if payment has not been made at the time of shipment, Seller shall retain title (but not risk of loss) until payment has been made. If product is damaged in transit, Buyer's only recourse is to file a claim with the applicable airline, carrier, vessel and/or insurance company; provided, however, that if Seller has not received payment in full at the time the product is damaged in transit, Buyer shall be liable to Seller to make payment for the product, and Seller shall also, if Buyer fails to make payment, have the exclusive right to file a claim with the applicable airline, carrier, vessel and/or insurance company.
5. Export Controls and Related Regulations
Buyer represents and warrants that it is not designated on, or associated with, any party designated on any of the U.S. government restricted parties lists, including without limitation, the U.S. Commerce Department Bureau of Industry and Security ("BIS") Denied Persons List; Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control ("OFAC") Specially Designated Nationals and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls ("DDTC") Debarred Parties List. Buyer shall comply with all applicable U.S. economic sanctions and export control laws and regulations, including without limitation, the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC.
6. Foreign Principal Party in Interest; Freight Forwarder and Documentation
It is specifically agreed that Buyer shall be the foreign principal party in interest and/or that its freight forwarder shall act as Buyer's agent in such capacity for purposes of the Foreign Trade Regulations or other regulatory purposes, and Buyer and its freight forwarder are responsible for all routed export transactions documentation, including but not limited to the filing of the required Electronic Export Information/Automated Export System records. At Seller' request, Buyer or its freight forwarder shall provide copies of any export, shipping, or import documentation prepared by Buyer or its freight forwarder related to sales to Buyer by Seller.
Buyer is aware that Seller' business practices prohibit bribery and corrupt behavior in any form. Buyer agrees that it is an independent contractor and it is and shall remain in compliance with all applicable laws that relate to money laundering, terrorism, commercial or official bribery or dealing with government officials (including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act). Buyer shall not offer or provide anything of value (cash or cash equivalents, gifts, loans, travel, entertainment, or any other similar benefit) either directly or indirectly to any government official for the purpose of influencing any act or decision in connection with the purchase and resale of the products ordered from Seller. Buyer shall not pay a gratuity, bribe or inducement to any government official, even if it appears customary or consistent with prevailing business practices.
8. Dispute Resolution
Actions by Seller for non-payment by Buyer of the purchase price of products sold by Seller, or for redress of other breaches by Buyer of these terms and conditions, may be brought by Seller, at its option, before any U.S. or foreign judicial court of competent jurisdiction. At Seller' option, disputes between Buyer and Seller, including all claims for non-performance by Seller, shall be finally settled by arbitration in Brown County, Green Bay, Wisconsin, U.S., in accordance with the Commercial Arbitration Rules ("Rules") of the American Arbitration Association, by a single arbitrator appointed in accordance with said Rules, applying these terms and conditions and consistent provisions of the federal and state laws (except conflict of law rules) of the State of Delaware, U.S. The language of the arbitration shall be English.
9. Country of Importation and Anti-diversion
Buyer represents that it is purchasing products from the U.S. and importing them to the country specified in the Buyer and Seller documentation. Buyer agrees that the products will be shipped to the specified destination in compliance with the laws of such destination and the U.S., and that the products will not be directly or indirectly sold, exported, transferred, assigned, used, or otherwise disposed of in a manner which may result in any non-compliance with applicable U.S. laws and regulations relating to the product purchased by Buyer. Any commodities, technology and software will be exported from the U.S. in accordance with the U.S. Export Administration Regulations and other applicable laws or regulations. Diversion contrary to U.S. law is prohibited. If requested by Seller, Buyer shall provide documentation satisfactory to Seller verifying delivery at the designated country. Buyer further agrees to inform Seller at the time of order of any North American Free Trade Agreement or other special documentation, packaging or product marking or labeling, but Seller shall not be responsible for providing any such documentation, packaging, marking or labeling other than such documents that are necessary under U.S. export laws and regulations for export, unless Seller expressly agrees to do so.
10. Permits, Export, and Import Licenses
Buyer shall be responsible for obtaining any licenses or other official authorizations that may be required by the country of importation and/or under the Export Administration Regulations, International Traffic in Arms Regulations, Toxic Substances Control Act, or other applicable laws or regulations.
11. Governing Law; Limitations
The rights and obligations of the parties under these terms and conditions shall not be governed by the provisions of the 1980 United Nations Convention of Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods. Rather, these terms and conditions shall be governed by the laws of the State of Delaware, U.S., including its provisions of the Uniform Commercial Code, but excluding its conflict of law rules. Notwithstanding the foregoing, any legal action by Buyer with respect to any transaction must be commenced within one (1) year after the cause of action has arisen.