- Terms and Conditions of Sale
Terms and Conditions of Sale
Appalachian Naturals Terms of Conditions of Sale-Wholesale & Distributor Customers
Including Limitations Of Warranty -- (Revised and Effective January 1, 2013)
All goods, equipment, products and services (hereinafter collectively called “Goods”) furnished by Appalachian Naturals (hereinafter “Seller”) are governed by these Terms and Conditions of Sale Including Limitations of Warranty (hereinafter “Terms and Conditions”) and by the Proposal. Placement of your order, as “Buyer,” shall be in accordance with Seller’s then current procedure. Acceptance by Seller of Buyer’s order is expressly conditioned upon Buyer’s acceptance of these Terms and Conditions, including those on the face of this Proposal, and any provisions of Buyer’s order or other communication in conflict with, or in addition to, these Terms and Conditions or the Proposal are expressly rejected.
Buyer may cancel the order, in whole or in part, by written notice at any time, provided Buyer pays Seller, within ten (10) days: (a) except for orders for customized Goods, a restocking charge equal to twenty-five percent (25%) of the amount of the order cancelled; and (b) for any orders for Goods customized to Buyer’s specifications the aggregate of (i) the cost, including installation and removal costs, of any items purchased by Seller prior to cancellation for the purpose of filling Buyer’s order and not needed by Seller to fill other orders which it then has, plus (ii) the quoted price for all goods finished and ready to ship, plus (iii) other reasonable costs, overhead, and expenses (including, but not limited to, the cost of labor and services provided, and the cost of raw materials and Goods still in the process of manufacture but unfinished at the time of cancellation) which Seller may have incurred in the performance of the order, plus (iv) Seller’s reasonable and anticipated lost profit resulting from such cancellation. Notice of cancellation is not effective until received by Seller at the following address: Appalachian Naturals, Attn: Kristin Barry, CEO, 65 Ball Rd, P.O. Box 704, Goshen, MA 01032. If Buyer elects to cancel the order in part, Seller may, at its option, within a reasonable time thereafter, cancel the entire order by written notice. Seller’s election, at its option, to cancel Buyer’s order under such circumstances is in addition to, and not in lieu of, any other rights or remedies which Seller may have at either law or equity.
Unless otherwise provided by the Proposal or agreed by Seller in writing, price and delivery terms shall be F.O.B. shipping point, freight prepaid or freight collect to destination. If shipped freight prepaid, the charge for freight will be added to the invoice. “Shipping point” shall mean Seller’s plant or the plant of a third-party manufacturer. Prices do not include any federal, state or local taxes and all such taxes, including excise, sales, use, import or similar taxes shall be the responsibility of Buyer. Unless otherwise agreed in writing, Seller will select the route and manner of shipment. All risk of loss or damage in transit shall pass to Buyer at the place and time such Goods are placed into the possession of the carrier or shipper, in accordance with the foregoing F.O.B. shipping point term, and claims for loss, damage or shortage in transit shall be made directly with the carrier or shipper. Buyer shall be responsible for obtaining and paying for insurance to cover any loss to Buyer. If Buyer fails to accept delivery according to the agreed upon delivery schedule or fails to make payment in accordance with the agreed payment schedule, Seller may cancel the then remaining balance of the order. Such cancellation, if elected by Seller, shall be in addition to, and not in lieu of, any other rights or remedies which Seller may have at law or equity. Delivery terms are approximate only and Seller shall not be liable to Buyer for any delay in shipment, delivery or installation.
Changes To Proposal
If Buyer requests any changes to the Proposal, such changes must be approved in writing to be binding upon Seller. Information and specifications regarding the goods set forth in this Proposal are current as of the date of the Proposal; provided, however, Seller reserves the right to change such specifications, designs and standard equipment without notice and without incurring any obligation to Buyer.
All payments shall be made in U.S. dollars. Payment shall be due upon delivery or as otherwise provided by the Proposal, Seller’s order acknowledgment, invoice or other writing. Seller reserves and, by its order, Buyer grants, Seller a security interest in all Goods furnished by Seller to Buyer until payment has been received, and Buyer will promptly execute and deliver documents to perfect such security interest. All orders received are subject to credit approval. Buyer agrees to submit items reasonably requested by Seller in order to establish or update Buyer’s credit. Seller shall be entitled to charge interest for payments not made in accordance with the stated or agreed upon terms of payment at eighteen percent (18%) per annum or the highest rate permitted by law, whichever is less. Whenever Seller in good faith deems itself insecure (including, but not limited to, the initiation of bankruptcy or insolvency proceedings against Buyer), it may, without prejudice or waiving any other rights or remedies it may have at law or equity, cancel any outstanding orders with Buyer and/or hold production and/or shipment of any unfilled orders; modify or revoke its extension of credit to Buyer; reduce any unpaid debt by enforcing its security interest (and applying the proceeds therefrom); and take any other steps permitted by law and necessary or desirable to secure Seller with respect to Buyer’s payment for Goods furnished or to be furnished. Buyer will pay Seller’s actual costs of collection, including but not limited to court costs, and reasonable attorneys’ fees and costs, incurred for collection of any amount owed to Seller hereunder. Buyer shall have no right of offset against amounts owed to Seller. Checks or payments, whether full or partial, received from or for the account of Buyer, regardless of writings, legends or notations upon such checks or payments, and regardless of other writings, statements or documents, shall be applied by Seller against any amount owing by Buyer with full reservation of all of Seller’s rights and without an accord and satisfaction of Buyer’s liability.
Goods furnished by Seller will be deemed to have been accepted within ten (10) days after receipt by Buyer, unless rightfully rejected within such period by written notice to Seller setting forth all of the defects upon which the rejection is claimed. Claims for damage or shortages shall not be considered unless also made in writing within ten (10) days after receipt of the Goods and accompanied by reference to Seller’s bill of lading and invoice numbers. Defective Goods shall be held for Seller’s inspection or disposition. Acceptance of Goods upon delivery shall constitute a waiver by Buyer of any claim for damages on account of non-shipment or delays in delivery or performance.
Buyer shall defend, indemnify and hold Seller harmless from and against any and all claims, liabilities, loss, costs, damage, expense (including reasonable attorneys’ fees and costs) or injury of any kind or nature whatsoever (including, but without limitation, property damage, personal injury or death, as well as economic loss or damage) caused by, resulting from, arising out of, relating to, or occurring in connection with. Buyer’s actions with respect to the Goods purchased by Buyer including, but not be limited to, those arising from Buyer’s dismantling or overriding of safety devices attached to the Goods, failure to follow instruction manuals and product warnings, or other improper use of the Goods.
The failure of Seller to enforce its rights or remedies hereunder shall not be construed as a waiver of such default or violation, or of any of its rights or remedies.
Limitation of Litigation/Attorney Fees
Any controversy or claim of Buyer arising out of or related to the Proposal or the sale and purchase of Goods must have accrued within the applicable warranty period, and then be commenced within one (1) year after the cause of action has accrued. Seller shall be entitled to reimbursement of all costs and expenses, including reasonable attorneys’ fees and other litigation expenses, from the Buyer relating to any lawsuit or other proceeding arising from, or relating to, this Proposal, or any agreement entered into hereafter, in which Seller prevails.
Buyer acknowledges that delivery dates are approximate. Seller shall not be liable or responsible for non-shipment of Goods, delays in delivery or performance, or any damages suffered by Buyer by reason of such delay, and shall be excused from performance, when such non-shipment or delay is directly or indirectly caused by, or in any manner arises from, causes beyond Seller’s reasonable control, including, but not limited to, acts of God; acts of Buyer; strikes or other labor disturbances; Seller’s inability to obtain, or material increases in the cost of, labor, fuel, power, materials or supplies; governmental interference; embargoes; war; acts of terrorism; riot; delays in transportation; any existing or future laws or acts of any government (including specifically, but not exclusively, any orders, rules or regulations issued by any official or agency of any such government) affecting the conduct of Seller’s business; repairs to equipment; epidemics; floods; fires; accidents; a contingency the non-occurrence of which was a basic assumption on which this Proposal and the purchase and sale of Goods was made; and/or any other cause or causes (whether or not similar in nature to any of those specified above) that renders such performance commercially impracticable, including, but not limited to, modifications to the specifications requested by Buyer subsequent to commencement of production by Seller.
Entire Agreement/Governing Law/Forum/Severability
Except as otherwise agreed in writing, the Proposal (including these Terms and Conditions) constitutes the entire agreement between Seller and Buyer with respect to the subject matter hereof, superseding all prior proposals, quotations and understandings, oral or written. All such previous communications are hereby abrogated and withdrawn, Buyer acknowledges that no representation or warranty other than those contained in the Proposal or these Terms and Conditions has been made or relied upon, and no stipulations, representations or agreements by Seller, or its officers, agents, or employees shall be binding upon Seller unless reduced to writing. Terms or conditions contained in a purchase order or any other document issued by Buyer that in any manner purport to alter, modify, change, suspend or add to any term or condition contained herein or in the Proposal shall be deemed excluded from such purchase order or other Buyer document and waived by Buyer. Any disputes, controversies, or litigation arising either directly or indirectly from the Proposal or other agreement between the parties shall be governed by the substantive laws of the State of Massachusetts without regard to its conflicts of law principles. Buyer and Seller each consents to the exclusive personal jurisdiction of the state or federal courts located in Hampshire County, Massachusetts over any action arising out of or relating to the Proposal (including these Terms and Conditions), any purchase order or other document submitted by Buyer and/or any agreement entered into hereafter, and waives any objection it may now or hereafter have to venue or to convenience of forum. If any provision hereof is determined invalid under applicable law, such invalidity shall be limited to such provision without invalidating the remainder of the other provisions; and if any provision hereof is found to be ambiguous or in conflict with any other provision hereof, such ambiguity or conflict shall be resolved in the manner which provides the greatest protection and limitation of liability to Seller.
If applicable, performance by Seller is subject to U.S. export laws and regulations. Seller’s failure to perform due to such laws and regulations shall not constitute a breach of this Proposal