GENERAL TERMS AND CONDITIONS OF SALE
1. Quotation/Acknowledgement. The Seller’s Quotation constitutes the Seller’s offer to the Buyer and becomes binding upon the terms and conditions set forth herein when accepted by the Buyer. Any acceptance of the offer contained in the Quotation is expressly limited to the terms and conditions incorporated in the Quotation. No revisions to the terms and conditions contained in the Quotation shall be valid unless contained in Seller’s Acknowledgement (“Invoice”) or in writing and signed by an authorized officer of the Seller. No additional or different terms stated in any acceptance by the Buyer shall be binding upon Seller if such terms and conditions conflict with, are inconsistent with, or are in addition to the terms and conditions contained in the Quotation or Invoice. Any such additional or different terms are specifically objected to by Seller. In the event the Buyer’s acceptance contains any additional or different terms, Seller reserves the right to reject the acceptance in its entirety and void any contract that may have been formed from such non-complying acceptance. The rights of the parties shall be governed exclusively by the provisions, terms, and conditions hereof.
2. Acknowledgement. All proposals, negotiations and representations, if any, regarding this transaction and made prior to the date of this Acknowledgment are merged herein. (b) In the event that the Acknowledgement is deemed to constitute an acceptance of an offer by Buyer to Seller, then the acceptance expressly shall be conditioned upon the Buyer’s assent to the terms and conditions contained in the Acknowledgement, whether such terms and conditions are consistent with, in addition to, or different from the terms and conditions contained in the Buyer’s offer. In accordance with the usage of the trade, the Buyer’s assent to the terms and conditions set forth in the Acknowledgement shall be conclusively presumed from the Buyer’s failure to object in writing within three (3) days from the date of receipt of the Acknowledgment or from the Buyer’s acceptance of all or any part of the product ordered, whichever first occurs. The terms and conditions contained in the Acknowledgement shall constitute the entire agreement between the parties. All proposals, negotiations and representations, if any, regarding this transaction and made prior to the date of this acknowledgment are merged herein.
3. Place of Contracting; Place of Performance. Seller and Buyer expressly agree that this Contract has been formed at Seller’s facility (Rose Hauling, LLC) in Barboursville or Orange County, Virginia and that this Contract is to be performed in Barboursville or Orange County, Virginia.
4. Inspection. The Buyer shall inspect the product immediately upon receipt of same, and if the same shall appear not to conform to the contract between the Buyer and Seller, the Buyer shall accept all conforming product and shall immediately notify the Seller of any non-confirming product and afford the Seller a reasonable opportunity to inspect the same. No product shall be returned without the Seller’s prior consent. In the event of non-conforming product, Seller reserves the right to cure any such non-conforming product within a commercially reasonable time, even if that commercially reasonable time requires an extension beyond any time for performance agreed to by Seller and the Buyer.
5. Presentation of Claims. Every claim on account of defective or non-conforming product or from any other cause shall be deemed waived by the Buyer unless made in writing to Seller within three (3) days of the receipt of the product to which such claim relates. Any action, dispute or cause of action arising from such claim, whether sounding in contract or tort, shall be commenced within one (1) year after tender of product by Seller, receipt of product by the Buyer, or accrual of the cause of action, whichever occurs first. Such action or cause of action shall be waived if not commenced by the Buyer within the one (1) year period provided.
6. Disclaimer of All Warranties. SELLER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS SPECIFICALLY SET FORTH IN A WRITING AUTHORIZED BY SELLER. Seller and/or Seller’s assigns, agents, and employees shall not be liable, to any extent whatever, for the selection, quality, condition, merchantability, suitability, fitness, operation, or performance of the product. Without limiting the generality of the foregoing, Seller shall not be liable to the Buyer or any third party for any liability, claim, damage, loss, or expenses of any kind or nature (including but not limited to strict liability in tort) directly or indirectly arising from the Buyer’s possession, operation, control, or use of the product or directly or indirectly caused by any inadequacy, deficiency or defect in the product.
7. Non-Transferability of Warranties. If Seller provides any warranty, whether in a writing authorized by Seller pursuant to paragraph 6 above or implied by law, then such warranties, whether express or implied, extend exclusively to the Buyer and shall not be transferable by the Buyer to any third party. It shall not be presumed from the inclusion of this provision that Seller has provided any warranty on the product to which this document refers.
8. Buyer’s Exclusive Remedy. In all cases, Seller’s liability shall be limited to replacement of the defective or faulty product at Seller’s facility in Barboursville or Orange County, Virginia, or, at Seller’s sole option, the refund of the original purchase price of the product. Under no circumstances shall Seller be liable for the cost of any labor expended by others on any such product, the cost of removal or installation of the product, the cost of replacement of the product, or for any incidental, consequential, or other damages in connection with the use of the product. THIS LIMITED REMEDY SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY.
9. Terms of Payment. Are stated in Seller’s Invoice and shall be effective from date of Invoice. All unpaid invoices that are more than thirty (30) days past due shall be assessed a late payment penalty equal to two and one-half percent (2.5%) of the payment due for each thirty (30) day period after the due date and including the date paid.
10. Default. The Buyer shall have defaulted if it (a) fails to make any required payment by its due date; (b) fails to comply with any other obligation imposed by this Agreement; (c) makes a material misstatement in any document supplied or representation made herein or in connection herewith; (d) generally is not paying its debts when they become due or becomes
insolvent; (e) comes under the protection of any law relating to bankruptcy, insolvency or otherwise affecting creditor’s rights, whether voluntarily or involuntarily; (f) proposes any dissolution, liquidation, reorganization, re-capitalization or other winding up of corporate affairs; (g) proposes any assignment for the benefit of creditors; (h) comes under the control of a receiver, trustee, custodian, or similar entity; or (i) fails to comply with any other obligation imposed by law.
11. Seller’s Rights Upon Default by the Buyer. Upon default by the Buyer, Seller may, at its own discretion, (a) cancel this Agreement; (b) immediately demand payment for product that has already been delivered to common carrier or the Buyer; (c) immediately demand payment of any and all other amounts due on this Contract; (d) recover possession of previously delivered product; and/or (e) sell, resell, or otherwise dispose of the product. These remedies are cumulative and not mutually exclusive. Enumeration of these remedies does not, in any way, limit any other remedies that may be available to Seller at law or in equity.
12. Attorneys’ Fees and Costs. If the Buyer defaults, then Seller shall be entitled to recover from the Buyer any fees, including collection fees and attorneys’ fees along with any pre and post judgment interest, court awarded damages and all costs associated with any efforts required by Seller to collect the amounts due under this Agreement. If the Buyer defaults, the Buyer shall reimburse Seller for any and all commercially reasonable incidental charges, expenses or commissions incurred in repossessing, transporting, caring for and reselling the product.
13. Delay. Seller shall not be liable for any costs incurred by Buyer, or for any special, direct, indirect, incidental or consequential damages to anyone by reason of any delay in performance or failure to deliver the product within the time limit specified by Buyer or stated by Seller.
14. Credit Card Processing Fees. Credit card processing fees are subject to change without notice. The credit card processing fee will not change by more than one percent (1.0%) within a calendar year.
15. Credit Card Chargebacks. Buyer agrees that should a credit card charge be reversed (“chargeback”), the Buyer will be given three (3) business days to reverse the chargeback or repay the balance due. Should the balance due not be paid and legal collections are initiated by the Seller, a penalty of twice (2X) the amount due will be added to the balance owed.
16. Governing Law and Venue. This Contract shall be governed and construed in accordance with the laws of the Commonwealth of Virginia without regard to its conflicts of law principles. Any controversy, claim, or dispute arising out of or relating to this Contract or a breach hereof shall be adjudicated in the state courts of Orange County, Virginia.
