TERMS AND CONDITIONS OF SALE
1. Terms Control/Rejection of Conflicting Terms. The terms set forth herein constitute the entire terms and conditions of sale. All other terms are rejected. All purchase orders from Buyer to Seller are hereby rejected in their entirety, this Sales Agreement setting forth the final and complete expression of all of the terms and conditions of the sale of the Goods by Seller to Buyer. The terms set forth herein may not be the best terms offered to customers of Seller.
2. Payment Terms. All orders shall be prepaid in full before Seller ships any product subject to this Sales Contract (the “Goods”). If payment is made by check other than a cashier’s check, Seller may delay shipment for a reasonable period as determined by the Seller.
3. Taxes. Prices do not include sales, use, VAT, excise and other taxes or governmental charges in respect of the production, sale, distribution or delivery of any of the Goods. Buyer shall indemnify Seller against the imposition of any such taxes or charges after the date hereof, which Seller may be required to pay.
4. Shipping. Choice of carrier shall be in Seller’s sole discretion. Shipping charges are subject to change without notice. Shipping dates are approximate and based on prompt receipt of all necessary information by Seller. Unless otherwise indicated above, shipment terms are F.O.B. Seller’s manufacturing facility. Risk of loss or damage to goods shall pass from Seller to Buyer upon delivery of the Goods to the carrier. Any of the Goods held pursuant to a request by Buyer for a delay on delivery shall be at the sole risk and expense of the Buyer. If Buyer and Seller agree that all or a portion of the price of the Goods is to be paid to Seller before delivery of the Goods to the carrier, whether by way of deposit, prepayment, progress payment or otherwise: (a) notwithstanding such payment and identification of the Goods that are to be sold to Buyer, title to the Goods will pass to Buyer only upon Seller’s actual receipt of the entire purchase price and all instalments thereof (notwithstanding receipt of the Goods by Buyer), and not before; (b) any and all such payments shall constitute loans to the Seller, which will be deemed discharged by Seller upon delivery of the Goods to the carrier; (c) Buyer waives any and all rights it may have as a "buyer in the ordinary course" for purposes of the applicable Uniform Commercial Code until delivery of the Goods to the carrier; and (d) to the extent that, notwithstanding the foregoing clauses (a), (b) and (c), the Buyer has an interest in the Goods or in any deposit, prepayment, progress payment or other payment to Seller prior to the delivery of the Goods to the carrier, such interest shall be subordinate in right to any inventory financier or other secured creditor of Seller. Buyer shall thoroughly inspect the Goods and shall note all shortages, incorrect specifications, damages, and defects on the delivery receipt and report all of the same to Seller no later than three (3) days after delivery. Buyer shall be deemed to have waived any claim for damages against Seller if such damages are not reported to Seller within such three (3) days. All claims for damage to the Goods in transit shall be pursued by Buyer with the carrier. Seller may delay or refuse to deliver the Goods if Buyer is in default of any of its obligations to Seller.
5. Returns. As all tents are custom made – we will not accept returns; except as set forth under Section 4 - Shipping due to defect, damage or shortage.
6. Force Majeure. Seller will not be liable for any delay in the performance when such delay is, directly or indirectly, caused by or in any manner arises from fires, floods, terrorism, accidents, riots, war, government interference, embargoes, strikes, shortage of labor, materials or supplies, inadequate transportation facilities or any other cause of causes (whether similar in nature to any of those hereinbefore specified) beyond Seller's control.
7. Warranty. All tents sold as is – no warranties shall be given or honoured; except as set forth under Section 4 – Shipping.
8. Limitation of Damages. Seller shall not be liable for indirect, incidental, consequential, exemplary or punitive damages resulting from or arising in connection with any breach of the sales agreement, Seller’s warranty or any other act or omission of Seller relating in any way to the design, manufacture, delivery or use of goods.
9. Limitation of Actions. Any statute of limitations notwithstanding, no claim shall be filed or brought against Seller for any breach contract or these terms and conditions after two (2) years of the date Seller delivers the last of the Goods to be provided hereunder; provided this Section 9 shall not affect the limitations set forth in Section 4 above in any respect.
10. Installation and Service. Seller shall not be required to install, service, or provide any on-site preparation or installation of any of the Goods. Buyer shall be solely responsible to inspect the site on which the Goods are to be installed and to determine the appropriate method of installing, securing and anchoring the Goods. Buyer shall be solely responsible to familiarize itself with all necessary installation procedures and precautions regarding the installation. If Seller provides instruction to Buyer generally or specifically regarding any methods of installation, such instruction is gratuitous and in addition to the information Buyer is responsible to obtain regarding installation and shall not be relied upon by Buyer.
11. Nature of Goods as Temporary Structure(s). Each of the Goods constitutes a temporary structure or part of a temporary structure which is not intended to meet any building or other codes. Weather conditions may render the Goods inappropriate for shelter or temporary habitation and may result in the Goods becoming detached from their installation. Buyer shall be solely responsible to determine if persons should be evacuated from the Goods and if the Goods should be disassembled under prevailing or predicted weather conditions.
12. Modifications and Cancellations. Except as expressly provided herein, these terms and conditions (whether as to the performance or safety of the Goods, or otherwise) may not be modified, terminated, or repudiated, in whole or in part, except by a writing signed by Seller and Buyer. At its sole option, Seller may treat any attempted modification, termination or repudiation to which it does not agree in writing as a breach of contract and recover from Buyer all Seller's damages, including without limitation special, indirect, consequential and incidental damages, resulting therefrom or arising in connection therewith. Seller may specify an increase in the price(s) set forth on the face hereof as a condition of its agreement to any modification requested by Buyer. Upon any breach by Buyer or failure by Buyer to comply with any of the terms and conditions hereof, or if Buyer becomes unable to conduct its normal business operations (including inability to meet its obligations as they mature) or becomes the subject of any proceedings under state or federal law for the benefit of creditors or relief of debtor or makes any assignment for the benefit of creditors, Seller may immediately cancel or terminate its agreement with Buyer, in whole or in such part as Seller in its sole judgment shall deem expedient, and recover from Buyer all damages, including without limitation special, indirect, consequential and incidental damages, suffered by the Seller as a result of, or arising in connection with such termination. In case of a modification or termination by written agreement of the parties or otherwise as provided herein, unless otherwise agreed, Buyer shall pay and be liable for modification or termination charges including (if applicable) without limitation, the following: (a) the price of any and all Goods the manufacture of which by Seller is or was either completed or in process at the time of such written agreement or termination, plus (b) any and all expenditures made or incurred by Seller (including, without limitation, any such expenditures or liabilities for raw materials, components, labor, engineering and start-up expenses) in connection with the entire Sales Agreement (including, without limitation, the uncompleted or modified portion of Buyer's order in connection therewith), plus (c) a reasonable estimated profit.
13. Remedies Note Exclusive. No remedy of Seller provided herein shall be exclusive of any other remedy of Seller provided herein or allowed by law.
14. Assignment. No rights, benefits or duties hereunder, including the benefits of the warranty contained in Section 7 hereof, shall be assignable by Buyer without the prior written consent of Seller. Any such assignment made without Seller’s consent shall be void. The foregoing notwithstanding, these terms and conditions shall be binding upon any of the permitted assigns thereof.
15. Governing Law. This Sales Contract shall in all respects be governed by, and construed in accordance with, the laws of the State of Wisconsin.
16. Exclusive Venue. The circuit court for the Brown County, Wisconsin and the federal court for the Eastern District of Wisconsin shall have exclusive jurisdiction over any legal proceeding involving the negotiation, drafting, interpretation or enforcement of this Sales Contract. Buyer and Seller waive the right to bring or defend any such proceeding in any other forum and waive all claims of forum non conveniens as to the exclusive forums designated herein.
17. Cost of Collection/Attorney Fees. Buyer shall be liable to pay Seller for all collection costs, expert witness fees, consultant fees, actual attorney and paralegal fees, and all other sums incurred by Seller as a result of any breach of this Sales Contract or any dispute over the negotiation, drafting, interpretation of enforcement of this Sales Contract in which Seller is the prevailing party. In any such proceeding, the court shall make a separate finding whether Seller’s position in the proceeding has greater merit than Buyer’s position, in which case Seller shall be declared the prevailing party.
18. Contract Interpretation. This Sales Contract shall be subject to the contract rule construing ambiguous contracts against the drafter.
19. Authority of Signers. Each person signing this Sales Contract in a representative capacity represents and warrants that he/she has been duly authorized to sign this agreement and to bind the party they purport to represent to the terms of this Sales Contract.
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