General Terms & Conditions
Seller makes no warranty of merchantability or fitness for any particular purpose or any other warranty, express or implied. Unless specifically stated, products are of commercial quality and standards and buyer must determine suitability for their particular use or purpose Buyer assumes all risk and liability whatsoever resulting from the use of all product, whether used singly or in combination with other product or component. When applicable and requested, material certification provided by the manufacturer is passed along with no representation made as to their accuracy.
Notice of Defect
Promptly following receipt of goods Buyer shall inspect same. Any claims for shortages, damage, defects or other reasons for unsuitability must be made within 30 days of the Buyer learning of unsuitability, but in any event no later than 90 days after receipt of goods. All claims not made, in writing to the Seller within the specified time period shall be deemed waived. Seller will not pay any claim for labor, delays, or damage by reason of their use. No material shall be returned without the written consent of the Seller.
Terms & Conditions of Sale
Where referred to herein, it shall be understood that the following terminology applies: Seller is ALL-WAY, Inc., and Buyer is the person or entity acquiring the goods or services described in the quotation.
Any Purchase Order received from a Buyer shall not result in a contract until it is approved and accepted by an authorized representative of Seller at the corporate offices of ALL-WAY, Inc., Bowling Green, MO.
2 CONDITIONS OF SALE
All orders shall be subject to the Terms and Conditions of Sale set forth herein, and none of these terms and conditions may be added to, modified, or otherwise altered except by a written instrument signed by an authorized executive of Seller. Failure of Seller to object to any terms or conditions that may be contained in any acceptance, purchase order or other form of Buyer
shall not be construed as a waiver of these conditions nor an acceptance of any such provision.
The price quoted may be increased to the extent that Seller's cost of the products sold hereunder may be increased as a result of (1) any agreements, codes, or legislative enactments made or enacted in pursuance or federal, state of municipal legislation;
and (2) taxes or other charges imposed by governmental authority upon the production or sale of such products or of materials used in the manufacture thereof. If Buyer is unwilling to accept any such increase as computed by Seller, Buyer shall have the right to cancel this agreement on the terms set forth in paragraph 8.
The amount of the present or future sales, revenue, excise, occupation, use or other taxes applicable to this transaction shall be added to the purchase price herein stated and shall be paid or reimbursed by Buyer, unless it is indicated that the price includes the tax, or the tax is shown as a separate item, or the sale is a resale exemption.
Delivery terms are F.O.B. Ship Point unless otherwise stated in the purchase agreement. Buyer shall assume all risk of loss or damage upon delivery to the carrier at the point of shipment. Dates of delivery are determined from the date of Seller's acceptance of any order or orders by Buyer and are estimates of approximate dates of delivery, not a guaranty of a particular day of delivery. Seller shall not be liable for failure or delay in shipping goods hereunder if such failure or delay is due to an act of God, war, acts of Government, labor difficulties, accident, inability to obtain materials or supplies, or any other causes of any kind whatsoever beyond the control of Seller.
6 CREDIT APPROVAL
Shipments, deliveries and performance of work shall at all times be subject to the approval of and the requirements of the Credit Department of Seller, including the requirement that Buyer pay part or all of the purchase price in advance.
7 TERMS OF PAYMENT
Payments are to be made in United States funds, unless otherwise stipulated. Subject to the provision of Credit Approval above, terms of payment shall be NET 30 days and shall be effective from date of invoice. Should any invoice not be paid when due, Buyer shall be liable to Seller for a finance charge equal to 18% per annum on the outstanding balance until paid in full. Engineering and/or other special charges, when invoiced separately, shall be payable upon the terms stipulated.
Orders accepted by Seller are subject to cancellation by Buyer only upon the consent of Seller. Upon such cancellation and consent, Seller shall cease work and hold for Buyer all completed and partially completed articles and work in process and Buyer shall pay Seller for all engineering work and materials that have been committed and/or identified to the order plus a
cancellation charge as prescribed by Seller.
9 PATENT INFRINGEMENT
No liability will be assumed by Seller for the infringement of any patent rights asserted because of the nature, structure or use of any products ordered by Buyer, and Buyer shall indemnify and hold Seller harmless from all claims for loss or damage, and from all court costs, attorney's fees and other expenses paid or incurred by or imposed upon Seller in connection with the
defense of any action brought against Seller by reason of Seller's performance of any order. Upon request by Seller, Buyer will undertake at Buyer's own cost and expense to defend any such action which may be brought against Seller.
A. Merchandise return is subject to strict compliance with each of the following CONDITIONS.
1. Any defect must become apparent within 30 days from date of this delivery.
3. The Purchaser must give ALL-WAY, Inc. written notice of any defect within 30 days of purchase/delivery via certified mail, return receipt requested.
4. Purchaser should return the product to the premises of the ALL-WAY, Inc. for repair or replacement5. The returned unit must have the original nameplate attached to the unit for positive identification.
6. Product warranties if applicable are non-transferable
B. If each of the above CONDITIONS are met, ALL-WAY, Inc. will make all necessary repairs to cure any defective workmanship or labor in said assembled product or at ALL-WAY, Inc’s sole discretion replace said product or refund the purchase price. These repairs shall be made as soon as is reasonably possible. No allowance shall be made to Purchaser for loss of use during the time necessary for repairs. In no event shall ALL-WAY, Inc.be held to include or cover any incidental, indirect, special or consequential damages.
C. The following EXCLUSIONS are not covered by ALL-WAY, Inc. or product warranties if applicable.
1. Damages due to neglect by Purchaser.
2. Damages due to lack of proper maintenance or to misuse by Purchaser. This warranty shall be voided due to unauthorized
repairs or replacement parts.
3. Damages due to act of God or other unforeseen accident or cause beyond the control of ALL-WAY, Inc.
4. Any incidental, indirect, special or consequential damages.
D. THERE ARE NO FURTHER WARRANTIES, EXPRESSED OR IMPLIED, AND ANY WARRANTIES OF MERCHANTABLILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.
E. LIMITATION OF LIABILITY. PURCHASER'S SOLE REMEDY FOR LIABILITY OF ANY KIND WITH RESPECT TO THE PRODUCTS FURNISHED BY ALL-WAY, Inc. TO PURCHASER AND ANY OTHER PERFORMANCE BY WARRANTOR, OR WITH RESPECT TO PURCHASER'S USE THEREOF, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO THE REMEDY PROVIDED IN ANY APPLICABLE WARRANTY AND SHALL IN NO EVENT INCLUDE
ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF USE, REVENUE OR PROFIT. IN NO EVENT SHALL ALL-WAY, Inc.’s LIABILITY FOR DAMAGES WITH RESPECT TO ANY OF THE PRODUCTS OR SERVICES FURNISHED EXCEED THE CHARGES PREVIOUSLY PAID BY PURCHASER TO ALL-WAY, Inc. FOR SUCH PRODUCTS OR SERVICES.
11 LIMIT OF LIABILITY
In no event will Seller assume responsibility for or be liable (a) for penalties or penalty clauses of any description, (b) for indemnification of Buyer or others for costs, damages or expenses rising out of or related to the products or services of this order or (c) for indirect or consequential damages under any circumstance.
12 GOVERNMENT REGULATIONS
Seller hereby certifies that any goods produced pursuant to this order will be produced in compliance with all applicable requirements of the Fair Labor Standards Act, as amended, and of any regulations and orders of the United States Department of Labor issued hereunder.
13 CHOICE OF LAW AND JURISDICTION
Any agreement arising out of this transaction shall be deemed to have been made in Bowling Green, Pike County, Missouri. If acceptance occurs in Bowling Green, Missouri, the parties agree that the validity, interpretation and performance of any agreement arising out of this transaction shall be governed by the law of the State of Missouri and of the United States of America. The parties hereto hereby submit to the jurisdiction of the Circuit Court of the Judicial Circuit, Pike County, Bowling Green, Missouri, as the sole and exclusive jurisdiction and venue for the purpose of adjudication of all their respective rights and liabilities hereunder.
14 STORAGE, PACKING, SPECIAL SERVICES
Unless otherwise expressly provided, this quotation does not include performance by Seller of any storage, packing, or cartage service. Special painting, or similar processes including storage, shall be in addition to the price.
In the case of default or breach of Buyer in the performance of any or all of the provisions of any agreement arising out of this transaction, Seller may cancel any outstanding order from Buyer and declare all obligations immediately due and payable, and shall in addition have all the remedies afforded under the Uniform Commercial Code and any other applicable law. Buyer shall in addition be liable for Seller's expenses incurred in exercising any remedies available to it, including reasonable attorney's fees and legal expenses. All unpaid obligations shall bear interest at the contract rate.
16 DEFERRED DELIVERIES
If Buyer requests deferral of deliveries, Seller's agreement to deferred delivery shall not excuse Buyer from his obligation to pay for the goods at the same times and in the same quantities as the original delivery schedule, including interest due pursuant to these terms and conditions. In addition to adhering to the original payment schedule, Buyer shall pay such storage charges as Seller may assess for storing the goods awaiting delivery. If Buyer requests deferral prior to
commencement of production, Seller may require progress payments in connection with expenses for materials or services incurred by Seller in anticipation of production.