TERMS AND CONDITIONS OF SALE
1. INTERPRETATION
(a) The following definitions and rules of interpretation shall apply in these Terms and Conditions of Sale (“Terms”):
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i. “Contract” means, collectively, these Terms, each Purchase Order, the Credit Application and any other agreement signed by Seller (or other document furnished by Seller), as applicable, evidencing or relating to the sale and purchase of the Goods to Buyer which include these Terms.
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ii. “Credit Application” means the credit application submitted by Buyer and accepted by Seller, as applicable.
iii. “Buyer” means the person, business or company who purchases the Goods from Seller and/or is named as the Buyer in the Credit Application and/or in the online account (if any) established with Seller to which these Terms are attached and/or referenced.
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iv. “Goods” means any goods agreed in the Contract to be supplied by Seller to Buyer (including any part or parts of them).
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v. “Purchase Order” means a purchase order accepted by the Seller in respect of the sale and purchase of Goods.
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vi. “Seller” means Amerifield, LLC, doing business as, Command Hydraulics.
(b) A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
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(c) Words in the singular include the plural and, in the plural, include the singular.
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(d) Headings are used as a matter of convenience only and shall not affect the interpretation of these Terms.
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(e) The words “include,” “including” or “includes” shall be deemed to be followed by the words “without limitation.
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2. ACCEPTANCE OF ORDERS
Any and all purchases and proposed purchases from Seller of Goods shall be subject to these Terms and no other additional or different terms or conditions. These Terms supersede all prior communications, negotiations and oral or written statements of any kind made by Seller, Buyer or their respective representatives regarding the terms and conditions applicable to the sale of the Goods. Without limiting the foregoing, no terms or conditions which add to, vary from or conflict with, or are otherwise additional to or different from, these Terms that are proposed by Buyer or included in any communication (whether in written, oral or electronic form) by Buyer to Seller in connection with any order, purchase or proposed purchase will be or become part of such order, purchase or proposed purchase, and any and all such additional or different terms and conditions, whether or not they materially alter the order, purchase or proposed purchase, are hereby objected to and rejected by Seller, without any further notice of such objection and rejection. Any such proposed terms or conditions shall be void and these Terms shall constitute the complete and exclusive statement of the terms and conditions to which the order, purchase or proposed purchase is subject. These Terms may be modified only by a written instrument executed by Seller and Buyer.
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3. DESCRIPTION OF GOODS
The quantity and description of the Goods shall be as specified in the Contract. All samples, drawings, descriptive matter, specifications and advertising issued by Seller and any descriptions or illustrations contained in Seller's catalogs or brochures, as applicable, are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract, and this is not a sale by sample. Seller reserves the right to alter prices and specifications or to discontinue any Goods.
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4. DELIVERY, TITLE, AND RISK OF LOSS
Unless otherwise specified in the Contract or agreed in writing between the parties, Seller shall deliver the Goods to the location specified by Buyer in the Contract, and it shall do so at Buyer’s expense. Shipping dates are estimates only and time shall not be made of the essence by notice. If no dates are specified, delivery shall be within a reasonable time. Seller shall not be liable for any delay in delivery or performance, regardless of cause. Seller may, in its sole discretion, without liability or penalty, tender delivery of Goods to Buyer in partial fulfillment of the purchased amount. Buyer shall pay, in accordance with the Contract, for the Goods tendered for delivery, whether such tender is in whole or partial fulfillment of the quantity purchased hereunder.
Unless otherwise agreed in writing, all shipments are FOB Origin (Seller’s shipping point). Risk of loss shall pass to Buyer upon delivery to the carrier and title to the Goods shall not pass to the Buyer until payment is received by the Seller. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code. Buyer shall cooperate and take all such action(s) as reasonably requested by Seller to ensure that Seller has a perfected security interest and a purchase money security interest in the Goods. Buyer acknowledges that it has received a copy of these Terms and in particular that the Contract constitutes a “security agreement” for the purposes of the Uniform Commercial Code, and that Seller may register a financing statement.
Subject to the other provisions of these Terms, Seller shall not be liable for any direct, indirect or consequential loss (all three of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in delivery of the Goods (even if caused by Seller’s negligence), nor shall any delay entitle Buyer to terminate or rescind the Contract.
If for any reason Buyer fails to accept delivery of any of the Goods, or if delivery of the Goods at the delivery location are owing to any act or omission of Buyer or its representatives, including without limitation the failure to provide appropriate instructions, documents, licenses, or authorizations: (i) the Goods shall be deemed to have been delivered; and (ii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
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5. INSPECTION AND ACCEPTANCE
Buyer shall inspect all Goods immediately upon receipt. The quantity of any delivery of Goods as recorded by Seller on tender of delivery is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide such documentary evidence as Seller may reasonably require to establish the contrary. Any claims for shortages, defects, or nonconformance must be made in writing within ten (10) days after receipt of shipment. Failure to provide notice within this period shall constitute unqualified acceptance and waiver of all claims.
If Buyer timely notifies Seller, Seller shall, in its sole discretion, subject to its acceptance of the evidence put forth, either (i) replace such nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such nonconforming Goods. Buyer shall ship, at its expense and risk of loss, the nonconforming Goods to Seller's facility located at such address as shall be notified in writing to Buyer by Seller within fourteen (14) days of Buyer’s receipt of Seller’s written notice. If Seller exercises its option to replace nonconforming Goods, Seller shall, after receiving Buyer's shipment of nonconforming Goods, tender delivery of the replacement Goods to Buyer, at Buyer's expense and risk of loss, at the delivery location. Buyer acknowledges and agrees that the remedies set forth herein are Buyer's exclusive remedies.
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6. PAYMENT TERMS
Seller shall be entitled to issue an invoice for the price of the Goods (together with all other sums payable by Buyer under the Contract). All invoices shall be payable by Buyer within thirty (30) days of the date on the invoice, unless otherwise stated therein. Time for payment shall be of the essence. All payments are due in United States Dollars, and no payment shall be deemed to have been paid until Seller has received cleared funds. Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall pay all costs incurred by Seller (including attorneys’ fees and debt collectors’ costs) in the recovery or attempted recovery of outstanding monies and the enforcement of these Terms. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for three (3) days following written notice thereof and may refer the matter to an appointed debt collection agent.
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7. PRICE, QUOTATIONS, TAXES AND DUTIES
Prices are quoted in U.S. dollars and are not binding but shall remain open for thirty (30) days from the date of issuance thereof unless earlier withdrawn by Seller. All orders are subject to written acceptance by Seller and do not become binding obligations of Seller unless and until accepted by Seller in writing. All clerical or typographical errors are subject to correction.
All prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall pay any such taxes or provide a valid tax exemption certificate acceptable to the relevant taxing authorities.
Where Seller incurs extra cost owing to suspension or alteration of the time or location of delivery arising from Buyer's instructions or lack of instructions, or by reason of interruptions, delays, delivery outside of normal business hours during normal working days, mistakes or work occasioned by the act, omission or default of Buyer, all such costs are payable in full by Buyer.
Seller reserves the right at its sole discretion at any time before delivery of the Goods to adjust the price to take into account any increase in the price to Seller of Goods, or services, or raw materials, labor or other inputs used in the production of the Goods or goods of that kind, or to take account of any increase in taxation or duty payable, or to take account of any currency fluctuation increasing the cost of producing or purchasing the Goods, in each case measured in US Dollars.
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8. NO SETOFF
Buyer shall perform its obligations without setoff, deduction, recoupment, or withholding of any kind for amounts owed (or to become due and owing) or payable to it by Seller, whether under these Terms, applicable law, or otherwise, and whether relating to Seller's breach, bankruptcy, or otherwise.
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9. LIMITED WARRANTY
Seller warrants that the Goods shall be free from defects in workmanship under normal use and service for a period of six (6) months (“Warranty Period”) from the date of shipment (“Limited Warranty”). The Limited Warranty does not apply where the Goods have been (a) subjected to any negligence, abuse, abnormal physical stress or environmental conditions, or improper testing, installation, storage, handling, repair, or maintenance; (b) defects in paint, coatings, or any replaceable cover of the Goods (in each case including any scratches or abrasions) resulting in any way from normal wear and tear, or any use, misuse or abuse; (c) altered or repaired other than by Seller or an authorized service provider of Seller, (d) used in a manner for which such Goods were not designed or intended, or (e) used with any third-party product or other product not previously approved in writing by Seller. In addition, the Limited Warranty does not apply where Buyer fails to comply with the maintenance checklist provided by Seller or Seller instructions regarding required maintenance provided by Seller, as applicable.
EXCEPT FOR THE WARRANTY SET FORTH HEREIN, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Products manufactured by a third party ("Third-Party Product") may constitute, contain, be contained in or incorporated into, or attached to, or packaged together with, the Goods. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
During the Warranty Period, Buyer shall notify Seller in writing of any alleged claim under the Limited Warranty within 24 hours after discovery (but in any event before the expiration of the Warranty Period). As soon as reasonably possible (but in any event before the expiration of the Warranty Period), if requested by Seller, Buyer shall make the relevant Goods available for inspection and testing by Seller. If Seller’s inspection and testing reveals, in Seller’s sole discretion, that such Goods do not conform with the Limited Warranty, Seller shall, at its option, either repair or replace such Goods or credit or refund the purchase price for such Goods. THIS CLAUSE SETS FORTH BUYER’S SOLE AND EXCLUSIVE REMEDY, AND SELLER’S ENTIRE LIABILITY, FOR ANY BREACH OF THE LIMITED WARRANTY. If Buyer fails to notify Seller of a warranty claim during the Warranty Period, then Buyer shall be automatically deemed to have waived such claim in full.
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10. LIMITATION OF LIABILITY
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH THE CONTRACT, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (iv) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT PAID TO SELLER IN RESPECT OF THE GOODS TO WHICH SUCH LIABILITY RELATES.
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11. RETURNS AND CANCELLATIONS
No Goods may be returned without prior written authorization from Seller. Authorized returns are subject to inspection and may be subject to a restocking charge. Custom or modified Goods are non-returnable. Orders may not be canceled by Buyer without Seller’s written consent and payment of all costs incurred.
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12. FORCE MAJEURE
Seller shall not be liable for any failure or delay in performance due to causes beyond its reasonable control, including but not limited to (i) acts of God; (ii) flood, fire, earthquake, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the Contract; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (viii) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (ix) other events beyond the reasonable control of the Seller. In such cases, Seller’s performance shall be excused for the duration of the event.
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13. INDEMNIFICATION
Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, managers, members, accountants, advisors, employees, agents, affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees and the costs of enforcing any right to indemnification under these Terms and of pursuing any insurance providers, incurred by Indemnified Party, arising out of or resulting from any claim of a third party or Seller in connection with the Goods or Buyer's negligence, willful misconduct, or breach of the Contract. Buyer shall not enter into any settlement without Seller's and any other applicable Indemnified Party's prior written consent.
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14. INSURANCE
Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) with limits no less than $1,000,000 for each occurrence and $2,000,000 in the aggregate with financially sound and reputable insurers. Upon Seller's request, Buyer shall provide Seller with a certificate of insurance from Buyer's insurer evidencing the insurance coverage specified under these Terms. The certificate of insurance shall name Seller as an additional insured. Buyer shall provide Seller with seven (7) days' advance written notice in the event of a cancellation or material change in Buyer's insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller's insurers and Seller.
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15. CREDIT APPLICATION
Buyer authorizes Seller to contact any credit agency, trade reference or any other source in order to check, exchange or provide information in relation to Buyer and Buyer authorizes each such source to provide to Seller the information provided by Buyer.
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16. TERMINATION AND SURVIVAL
In addition to any other remedies that may be available to Seller under the Contract, Seller may terminate the Contract with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under the Contract; (b) has not otherwise performed or complied with any of the terms of the Contract, in whole or in part; or (c) becomes insolvent, is generally unable to pay, or fails to pay, its debts as they become due, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. Upon such termination (without prejudice to any other rights or remedies that Seller may have), all monies payable by Buyer under the Contract and not already paid shall immediately become payable.
Any provision of the Contract that expressly or by implication should survive the expiration or earlier termination of the Contract (including Paragraph 9 (Limited Warranty), Paragraph 10 (Limitation of Liability), and Paragraph 13 (Indemnification)) shall survive such expiration or earlier termination.
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17. CONFIDENTIAL INFORMATION
The terms and conditions of the Contract and the transactions contemplated hereby and all non-public, confidential, or proprietary information of Seller, including, but not limited to, trade secrets, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or medium, and whether or not marked, designated, or otherwise identified as "confidential," in connection with the Contract are confidential, solely for the purpose of the Contract and the transactions contemplated hereby, and may not be disclosed or copied unless authorized by Seller in writing. Upon Seller's request, Buyer shall promptly return all Seller documents and other materials received by Buyer from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
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18. GOVERNING LAW AND VENUE
The Contract and all sales hereunder shall be governed by and construed in accordance with the laws of the State of Minnesota, without regard to its conflict-of-laws principles. Any legal action arising out of or relating to the Contract shall be brought exclusively in the state or federal courts located in Minnesota, and Buyer consents to such jurisdiction and venue. The United Nations Convention on contracts for the international sale of goods does not apply.
19. SEVERABILITY
If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
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20. AMENDMENTS
No amendment to or modification of the Contract is effective unless it is in writing and signed by each party.
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21. WAIVER
No waiver by any party of any of the provisions of the Contract shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Contract, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the Contract shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
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22. ASSIGNMENT
Buyer shall not assign, transfer, or delegate any of its rights or obligations under the Contract without the prior written consent of Seller. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations hereunder. Seller may at any time assign, transfer, or delegate any or all of its rights or obligations the Contract without Buyer's prior consent.
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23. NOTICES
All notices between the parties shall be in writing and delivered by personal delivery, nationally recognized overnight courier, registered or certified mail, or electronic mail:
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(a) in case of notices to Seller, to its place of business or such changed address as shall be notified in writing to Buyer by Seller; or
(b) in the case of notices to Buyer, to any address of Buyer set forth in any document which forms part of the Contract or such other address as shall be notified in writing to Seller by Buyer.
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Notices shall be deemed to have been received:
(a) if delivered by personal delivery, on the day of delivery; or
(b) if sent by nationally recognized overnight courier, one (1) business day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written notice of receipt; or
(c) if sent by registered or certified mail, five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or
(d) if sent by electronic mail, when sent by confirmed electronic mail if sent during the business hours of the recipient (with no receipt of a message indicating a transmission or receipt failure); if not, then on the next business day (provided, that any notice sent by electronic mail be followed with a copy of such notice sent with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt).
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24. NO THIRD-PARTY BENEFICIARIES
The Contract benefits solely the parties and their respective permitted successors and assigns, and nothing in the, express or implied, confers on any other individual or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Contract.
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25. RELATIONSHIP OF THE PARTIES
The relationship between the parties is that of independent contractors. Nothing contained in the Contract shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
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26. ENTIRE AGREEMENT
The Contract, including and together with these Terms, Purchase Order, Credit Application, any related exhibits, schedules, attachments, and appendices, as applicable, constitute the sole and entire agreement of the parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.