Seller’s Terms & Conditions of Sale (“Terms & Conditions”)
Seller’s T&Cs of Sale- Rev. February 26, 2020
1. ACCEPTANCE: Acceptance of any order is subject to credit approval by Seller, acceptance of the order by Seller and
when applicable, Seller’s Vendor (i.e. manufacturers, vendors, or other third parties that provide goods to Seller for
resale to Buyer). If Seller, in its sole discretion, determines that Buyer’s ability to pay or credit becomes
unsatisfactory or it has reasonable grounds for insecurity, Seller reserves the right, upon notice to Buyer, to demand
adequate assurance of due performance from Buyer and/or terminate this agreement with no liability to Seller. BY
REQUESTING A QUOTE FROM SELLER OR PRESENTING AN ORDER TO SELLER, BUYER CONFIRMS THAT THESE TERMS
& CONDITIONS SHALL GOVERN ALL PURCHASES OF GOODS, MATERIALS AND/OR SERVICES PROVIDED TO BUYER BY
SELLER (COLLECTIVELY “GOODS”) BY BUYER FROM SELLER. SELLER OBJECTS TO AND REJECTS ANY CHANGES OR
ADDITIONAL OR DIFFERENT TERMS (CONTAINED IN A PURCHASE ORDER ACCEPTED BY SELLER, OR OTHERWISE) AND
NO SUCH TERMS WILL CHANGES THESE TERMS & CONDITIONS UNLESS ACKNOWLEDGED IN WRITING AND SIGNED
BY AN AUTHORIZED REPRESENTATIVE OF SELLER. NO SELLER EMPLOYEE OR AGENT HAS THE AUTHORITY TO MODIFY
THESE TERMS & CONDITIONS VERBALLY. SELLER OBJECTS TO AND REJECTS ANY TERMS BETWEEN BUYER AND ANY
OTHER PARTY, AND NO SUCH TERMS, INCLUDING BUT NOT LIMITED TO ANY GOVERNMENT REGULATIONS OR
“FLOWDOWN” TERMS, SHALL BE PART OF OR INCORPORATED INTO ANY ORDER FROM BUYER TO SELLER, UNLESS
AGREED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SELLER.
2. PRICES AND TAXES: Buyer agrees to pay the prices quoted by seller and is responsible for additional applicable
shipping and handling charges, taxes and duties. Seller shall collect applicable taxes unless Buyer submits a valid tax
exemption certificate, and indicates which Goods are covered by it. Prices on special-order Goods may be subject to
change before shipment; Seller shall notify Buyer of any change, and Buyer may at its discretion cancel special-order
Goods if the revised prices are unacceptable, without any charge other than applicable Vendor related charges.
3. PAYMENT: Payment terms are 30 days net from the invoice date or upon such other terms approved by Seller in
writing. Retainage shall not apply, and the Buyer shall not hold back any retainage from Seller, even if retainage is
part of any contract between Buyer and any other party. Payment is not contingent on Buyer’s ability to collect or
obtain funds from any other party. Credit card sales are billed at the time of purchase. Buyer expressly represents it
is solvent at the time it places any purchase order from the Seller. Seller, in its sole discretion, may determine that
Buyer’s financial condition requires full or partial payment prior to manufacture or shipment. Seller may obtain and
use your credit history for credit evaluation purposes. Seller may apply payments to any outstanding invoices unless
Buyer provides specific payment direction.
4. REMEDIES FOR NON-PAYMENT: If Buyer fails to make any payment when due, Seller reserves the right to suspend
performance. Buyer agrees to pay a charge of all amounts past due at the rate of 1 ½ % per month (18% per year), or
the maximum lawful rate., whichever is less. In the event of non-payment, Buyer agrees to pay Seller’s reasonable
attorney fees and court costs, if any, incurred by Seller to collect payment, and all applicable interest charges. Buyer
acknowledges that transactions to which these terms relate are commercial transactions. To the extent not contrary
to applicable law, Buyer (i) waives any available homestead exemption, (ii) irrevocably authorizes Seller to appoint a
representative to appear in a court of competent jurisdiction to confess a judgement without process in Buyer’s
favor for such amount that remain unpaid, and (iii) consent to immediate execution upon any such judgement. Buyer
voluntarily and knowingly waives it’s right to notice, demand, presentment, protest, and any hearing to which it may
be entitled under any state or federal law relating to any right or remedy (including prejudgment remedies) that
Seller may elect to use or of which it may avail itself. IMPORTANT NOTICE: A CONFESSION OF JUDGEMENT
PROVISION AND OTHER WAIVERS CONTAINED HEREIN CONSTITUTES A WAIVER OF IMPORTANT RIGHTS YOU MAY
HAVE. IF YOU DO NOT PAY ON TIME, THESE WAIVERS ALLOW SELLER TO OBTAIN A JUDGEMENT AGAINST YOU
WITHOUT FURTHER NOTICE OR YOUR PRIOR KNOWLEDGE. YOU ARE GIVING UP YOUR RIGHT TO NOTICE AND TRIAL.
BUYER MAY OBTAIN JUDICIAL REMEDIES TO COLLECT AMOUNTS DUE REGARDLESS OF ANY CLAIMS YOU MAY HAVE
(INCLUDING WITHOUT LIMITATION, CLAIMS FOR RETURNED OR FAULTY GOODS, FAILURE BY SELLER TO COMPLY
WITH THIS AGREEMENT, OR ANY OTHER CAUSE)
5. TITLE AND RISK OF LOSS OR DAMAGE: As to Goods delivered by Seller’s truck, title passes upon delivery at the place
Buyer receives possession; and thereafter, all risk of loss or damage shall be on Buyer. All other sales are F.O.B point
of shipment, and Buyer takes title and assumes responsibility for risk of loss or damage at the point of shipment for
such sales. Claims for Goods damaged in transit are Buyer’s sole responsibility when not delivered by Seller’s truck.
6. QUOTATIONS: All quotations expire thirty (30) days from the date of the quotation unless otherwise noted on the
quotation. This time limit applies even if Buyer uses the quotation to submit a job or project bid to any other party.
7. ASSIGNMENT: An order shall not be assigned by Buyer without the express written consent of Seller. Consent will
not be required, however for internal transfers and assignments as between either party and its affiliates, and
nothing herein shall limit either party’s right to factor or sell receivables.
8. RETURN OF PRODUCTS AND ORDER CANCELLATION: Seller shall accept returns of normal stock Goods for a period
of thirty (30) days following shipment for exchange or refund of the purchase price; provided; that Goods must be in
their original cartons, unopened and unused and are subject to appropriate restocking/cancellation fees. Any Goods,
stock or direct ordered by the Seller as Buyer-specific and/or non-returnable to its vendor are subject to a
restocking/cancellation fee of 100% of the cost of the Goods.
9. TERMINATION: Either party may terminate the whole or any part of the other party’s performance under a purchase
order if there is a material breach of these Terms & Conditions. In the event of any such breach, the non-breaching
party will provide the breaching party with written notice of the nature of the breach and the non-breaching party’s
intention to terminate for default. In the event the breaching party does not cure such failure within ten (10) days of
such notice, the non-breaching party may, by written notice, terminate the order; provided; that the breaching party
shall continue its performance to the extent not terminated.
10. INTERPRETATION RESPONSIBILITY; PRODUCT USE AND SAFETY: Seller does not guarantee that the Goods it sells
conform to any plans and specifications or intended use. When plans and specifications are involved, Buyer is solely
responsible for verifying Seller’s interpretations of such plans and specifications, and it is Buyers sole responsibility
to assure that Seller’s Goods will be accepted on any specific job. When Seller offers substitute Goods on any
proposal, Buyer is solely responsible for confirming their acceptability. BEFORE BUYER USES OR INSTALLS ELECTRICAL
PRODUCTS, IT IS THE BUYER’S RESPONSIBILITY TO CONSULT THE NATIONAL ELECTRIC CODE AND ANY PERTINENT
LOCAL, STATE OOR NATIONAL CODES, RULES OR REGULATIONS FOR APPROVED INSTALLATION PROCEDURES AND
PRECAUTIONS. NOTHING SELLER SELLS IS FOR USE IN CONNECTION WITH “SAFETY RELATED APPLICATIONS OF A
NUCLEAR FACILITY OR ANY HAZARDOUS ACTIVITY WHERE FAILURE OF A SINGLE COMPONENT COULD CAUSE
SUBSTANTIAL HARM TO PERSONS OR PROPERTY.
11. DELIVERY: Seller is a distributor and not a manufacturer and factory shipping dates given in advance of actual
shipment are approximate and not guaranteed.
12. EXCUSABLE DELAYS: Seller shall have no liability if its performance is delayed or prevented by
causes beyond its reasonable control, including, without limitation, acts of nature, labor disputes,
government priorities, transportation delays, insolvency or other inability to perform by Seller’s
Vendor, or any other commercial impracticability. In the event of any such delay, the date of
delivery or performance shall be extended for a period equal to the time lost due to reason of
delay. Should shipments be held or stored beyond the delivery date for convenience of Buyer,
Seller may, at its option, assess reasonable charges for any expense incident to such delay.
13. CLAIMS: Claims for any nonconforming Goods must be made by Buyer, in writing, within ten (10)
days of Buyer’s receipt of such Goods and must state with particularity all material facts concerning
the claim then known to Buyer. Failure by Buyer to give notice within ten (10) days period shall
constitute an unqualified acceptance of such Goods by Buyer, and a waiver of any right to reject or
revoke acceptance of such Goods.
14. WARRANTIES:
(A) SELLER’S WARRANTIES: Seller warrants that all Goods sold are new and, upon payment in
full by Buyer of Goods, free and clear of any security interests or liens. Buyers exclusive
remedy for breach od such warranties shall be replacement with a new product or
termination of any security interests or liens. Seller is a distributor and not a manufacturer
and makes no independent warranties other than those set forth herein.
(B) VENDOR’S WARRANTIES: Seller shall also assign to Buyer any Vendor warranties and/or
remedies provided to Seller by its Vendor.
(C) INTELLECTUAL PROPERTY INFRINGEMENT: SELLER DISCLAIMS ANY AND ALL WARRANTIES
AND/OR INDEMNIFICATIONS AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY
RIGHTS OF ANY NATURE. SELLER SHALL, IF GIVEN PROMPT NOTICE BY BUYER OF ANY
CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT WITH RESPECT TO ANY GOODS SOLD
HEREUNDER, REQUEST THE MANUFACTURER TO GRANT FOR THE BUYER SUCH WARRANTY
OR INDEMNITY RIGHTS AS THE MANUFACTURER CUSTOMARILY GIVE WITH RESPECT TO
SUCH GOODS.
(D) LIMITATIONS: THERE ARE NO OTHER WARRANTIES WRITTEN OR ORAL, EXPRESS, IMPLIED
OR BY STATUTE. NO IMPLIED STATUTORY WARRANTY OR MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE APPLIES. NO REPAIR OF GOODS OR OTHER COSTS ARE
ASSUMED BY SELLER UNLESS AGREEED TO, IN ADVANCE, IN WRITING.
15. LIMITATIONS OF LIABILITY: UNLESS APPLICABLE BY LAW OTHERWISE REQUIRES, SELLER’S AND
ANY OTHER VENDORS TOTAL LIABILITY TO BUYER, BUYER’S CUSTOMER OR TO ANY OTHER
PERSON, RELATING TO ANY PURCHASES GOVERNED BY THESE TERMS & CONDITIONS, FROM
THE USE OF THE GOODS FURNISHED OR FROM ANY ADVICE, INFORMATION OR ASSISSTANCE
PROVIDED BY SELLER (BY ANY METHOD, INCLUDING A WEB SITE) IS LIMITED TO THE PRICE OF
THE GOODS GIVING RISE TO THE CLAIM. NEITHER SELLER NOR ITS VENDORS SHALL BE LIABLE
UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INCIDENTAL, DIRECT, CONSEQUENTIAL OR
PENAL DAMAGES (INCLUDING BUT NOT LIMITED TO BACKCHARGES, LABOR COSTS, COSTS OF
REMOVAL, REPLACEMENT, TESTING OR INSTALLATION, LOSS OF EFFICIENCY, LOSS OF PROFITS
OR REVENUES, LOSS OF USE OF GOODS OR ANY ASSOCIATED GOODS, DAMAGE TO ASSOCIATED
GOODS, LATENESS OR DELAYS IN DELIVERY, UNAVAILABILTY OF GOODS, COST OF CAPITAL, COST
OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, DOWNTIME, OR CLAIMS FROM BUYERS
CUSTOMERS OR OTHER ASSISSTANCE WHICH CONCERNS ANY GOODS SUPPLIED HEREUNDER,
OR ANY SYSTEM OR EQUIPMENT IN WHICH ANY SUCH GOODS MAY BE INSTALLED, AND
WHICHIS NOT REQUIRED PURSUANT TO THESE TERMS & CONDITIONS, THE FURNISHING OF
SUCH ADVICE OR ASSISTANCE WILL NOT SUBJECT SELLER TO ANY LIABILITY, WHETHER BASED
ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER GROUNDS.
16. MISCELANEOUS:
(a) EXPORTS: If Goods are sold for export, Seller’s standard terms & conditions for export
sales apply. Acceptance of export orders is not valid unless confirmed in writing by Seller.
Buyer, NOT Seller, is responsible for compliance with all United States export control rules
and regulations. Buyer shall not name Seller as shipper or exporter of record in
connection with the export of any Goods purchased from Seller.
(b) ANTI_MONEY LAUNDERING RESTRICTIONS: Seller rejects questionable orders and
payments: Except for pre-approved credit arrangements, Seller rejects third-party
payments, cashier’s checks, money orders and bank drafts. Seller accepts only checks
imprinted with Buyers name; wire transfers originated in Buyers account; letters of credit
with Buyer as account party; and credit or debit cards in Buyers name. All payments must
be by single instrument in the amount of the invoice, less credits, from the banks
acceptable to Seller.
(c) GOVERNING LAW: These terms & conditions and all disputes related to it shall be
governed by the laws of the State of New York, United States of America, without giving
effect to its conflict of law rules.
(d) SELLER PARTIES: For the purposes of these Terms & Conditions, the term “Seller” shall
mean the Seller party set forth on the quotation or other sales agreement to which these
Terms & Conditions are attached or in which they are incorporated by reference which
may include but is not limited to (i) Modern Fence Chicago® , an Illinois limited liability
company (ii) or any of their subsidiaries, affiliates, business units or divisions.