Vanguard Industries, LLC - Terms and Conditions of Sale
1. ENTIRE AGREEMENT: These Terms and Conditions of Sale (as stated herein, referenced in the electronic link http://www.vanguardindustriesllc.com/terms or otherwise referenced on a Vanguard Industries, LLC (“Seller”) invoice (or any supplement thereto, all of which are hereby incorporated by reference) constitute the entire agreement between Seller and Buyer regarding the sale and purchase of Products covered. Sellers Agreement to sell Products is expressly conditioned upon Buyer’s acceptance of these Terms and Conditions of Sale, and Seller expressly rejects any terms and conditions set forth in Buyer’s purchase order or other document which differ from these Terms and Conditions of Sale and which have not been expressly agreed to in writing signed by a duly authorized representative of Seller.
2. PRICE ADJUSTMENTS: Seller may revise the price of any Product upon notice to the Buyer. Such revised price shall be paid by Buyer on all shipments made on and after the effective date of the price change, irrespective of the dates of the orders for such shipments were placed. In the event Seller is prevented by any governmental restriction from increasing any price herein or from continuing any price already in effect, the Seller may terminate this Agreement upon ten (10) days’ notice to Buyer.
3. TAXES AND SHIPPING: Online purchases made through www.vanguardindustriesllc.com will include any and all taxes or other governmental charge payable due to the sale and all shipping/transportation costs. All quotations and pricing information communicated to Buyers independent of www.vanguardindustriesllc.com online store will not include any and all taxes or other governmental charge payable due to the sale, and use or delivery of the Products such as but not limited to Sales Tax, Use Tax, Gross Receipts Tax, Value Added Tax, Retailers Occupation Tax and Transportation Tax may, at Seller’s option be added to the purchase price of the Products.
4. DELIVERY: Unless otherwise agreed to in writing by Seller, delivery of Products by Seller to the carrier at Seller’s designated shipping point shall constitute delivery to the Buyer. Notwithstanding any other provision of this Agreement, title and risk of loss of Product shall pass to the Buyer at Seller’s designated shipping point. Any demurrage or detention fees charged by a carrier shall be paid by the Buyer. Estimated delivery date of your order is not guaranteed. If you would like to arrange a pick up of your product from our facility please use our contact form or call (209) 531-8711 to facilitate those logistics before placing your order.
5. PAYMENT: All sums shall be payable to the Seller according to the payment terms stated on the first page of any invoice issued by the Seller to the Buyer by check, wire, or electronic funds transfer in immediately available funds in U.S. dollars. If Buyer fails to pay Seller in accordance with above terms, then Seller, at its option and without prejudice to its other rights and remedies, may terminate this Agreement forthwith and without notice, suspend deliveries until all indebtedness is paid in full, and/or place the Buyer’s shipments on a cash in advance basis. In the event of a default in payment, Buyer shall pay Seller’s cost of collection, including but not limited to reasonable attorney’s fees. Interest at the maximum rate allowed by law may be charged. Any property of the Buyer, at any time in the Seller’s possession, including but not limited to goods paid for by the Buyer, shall be deemed held as security (with a security interest therein granted by the Buyer to Seller) for Buyer’s obligations under this or any other agreement with the Seller, and such property, to the extent of the value thereof, may be applied by the Seller as a credit against such obligations of the Buyer, or such property or any part thereof, may be sold by the Seller at public or private sale with the proceeds thereof applied by the Seller as a credit against such obligations of the Buyer.
6. QUANTITY AND QUALITY TESTING: Seller’s weights and/or other measurements of Product shall be conclusively binding unless proved to be in error. Seller’s laboratory analysis and methods shall determine whether Product specifications have been met and are conclusively binding unless Buyer proves to Seller’s reasonable satisfaction that Seller’s analysis report is erroneous. Discrepancies of +/- 1% will be disregarded.
7. CLAIM PERIOD: Buyer shall inspect each delivery promptly following receipt. Claims shall be made within ten (10) days after receipt of the delivery of Product to which the claim relates. Buyer’s failure to give Seller written notice of any claim within the applicable time period shall constitute an absolute and unconditional waiver of such claim. In no event shall Buyer commence any action under this Agreement later than one year after the cause of action has accrued.
8. WARRANTIES AND DISCLAIMERS: SELLER’S SOLE AND EXCLUSIVE WARRANTY IS THAT SELLER’S PRODUCT(S) COMPLIES WITH SELLER’S PUBLISHED CHEMICAL AND PHYSICAL SPECIFICATIONS. SELLER MAKES NO OTHER WARRANTIES EITHER EXPRESS OR IMPLIED, WHETHER WITH RESPECT TO ITS RECOMMENDATIONS, INSTRUCTIONS, PRODUCT, APPARATUS, PROCESS OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES, WHETHER OF MERCHANTABILITY, SUITABILTY, FITNESS FOR A PARTICULAR USE OR OTHERWISE. Seller’s liability to Buyer for any and all losses or damages resulting from Seller’s breach of this Agreement or Product not meeting specifications, whether in tort or in Agreement or otherwise shall be limited to the replacement of a like quantity of Product plus any transportation costs and IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR CONTINGENT DAMAGES (including, without limitation, loss of anticipated profits, business interruption, loss of revenue, cost of capital or loss or damage to property or equipment).
9. LIABILITY AND RESPONSIBILTY: Buyer assumes full responsibility for any liability arising out of unloading, discharge, resale, storage, use and disposal of any Product or container, including the use of such Product or container alone or in combination with other substances; and compliance or noncompliance with any laws or regulations and damage to or destruction of containers from any cause whatsoever upon or after delivery to the Buyer. Except to the extent solely and directly caused by any breach of Seller’s obligations stated herein, Buyer shall defend, indemnify and hold harmless Seller and its affiliates and their respective representatives and employees, from and against all losses, liabilities, damages and expenses made against or incurred by Seller (including its affiliates, and their representatives and employees) arising out of any claim, suit, or proceeding by any governmental agency or any third parties based on this section or Section 10 below.
10. SAFETY: Buyer acknowledges that there may be hazards associated with the possession and use of the Product and its containers and shall assume all liability resulting from or in any way connected with its or their possession, transportation, handling, resale or use to its or their suitability for any particular use, and acknowledges that it has a duty to warn, protect and train as appropriate all persons who may be exposed to these hazards. Buyer also acknowledges that Seller has provided Buyer with appropriate labeling and literature such as Material Safety Data Sheets (MSDS). Buyer agrees that the Product must not be handled or used without first consulting the MSDS and will ensure that all of its employees and all other persons who may become exposed to the Product receive and refer to the MSDS.
11. INDEMNITY AGREEMENT FOR SOLID PRODUCTS: Certain of Seller’s solid Products, including but not limited to powder and flake materials, can be combustible and present a fire or explosion hazard under certain conditions (including but not limited to when dust are finely divided and suspended in the air, and/or allowed to accumulate on surfaces). Buyer shall comply with all laws, regulations and standards applicable to possession, handling, and use of all solid Products by Buyer, including but not limited to National Fire Protection Association Standard 654, and other national guidance, and shall defend, indemnify and hold harmless Seller from and against all claims, liabilities, attorney’s fees, costs, and expenses (including but not limited to those relating to injury or death of Buyer’s employees) arising from or connected with the possession, handling, processing or use of Products by Buyer or others.
12. TECHNICAL INFORMATION: If Seller furnishes technical or other information or advice to the Buyer, whether or not at Buyer’s request, Seller shall not be liable for and Buyer assumes all risks related to, such information or advice and the results thereof or any reliance thereon.
13. FORCE MAJEURE: Seller shall not be liable for any damages or otherwise for delay of or failure to deliver by reason of Force Majeure, including but not limited to acts of God, strikes, fires, wars, flood, embargo, explosion, terrorism, national emergency, civil commotion or other cause beyond the Seller’s control and Buyer waives any right to assert a claim against Seller in respect thereof. In no event shall Seller be obligated to purchase or obtain Product on the open market or from other producers or suppliers of the Product due to any such cause or circumstance.
14. ALLOCATION: If sufficient Product is not available for any reason, Seller may allocate Product among its customers, affiliates, and/or for Seller’s internal use. Seller will make reasonable efforts to obtain additional Product from other sources, provided Buyer agrees to pay for all additional costs associated with such Product.
15. DISPUTE RESOLUTION: Any controversy or claim hereunder shall be settled if possible by negotiation, mediation or other alternate dispute resolution method. If Seller and Buyer cannot agree on a method (or if resolution cannot be achieved within a reasonable time), the dispute will be submitted for arbitration in the court of the parties' choosing (state or federal court for Burlington, North Carolina if they cannot agree). Any award by the arbitrator shall be binding upon the parties and enforceable in any court having jurisdiction thereof.
16. GENERAL PROVISIONS: A) If Buyer takes benefit of or becomes subject to any provision of applicable bankruptcy or insolvency law, Seller will have the right to immediately terminate this Agreement. B) Buyer may not assign this Agreement without the prior written consent of the Seller. C) This Agreement will be governed by and enforced in accordance with the laws of the State of South Carolina. D). No waiver by either party of any of the terms or conditions covered herein shall be construed as a waiver of any other breach or default, and acceptance by the Seller of any payments with knowledge of the breach or default shall not constitute such waiver. Any payments to be made or obligations to be performed before, upon, or subsequent to the termination of this Agreement shall survive termination of this Agreement if not already made or performed at the date of termination. E) If any provision(s) of this Agreement shall be held to be illegal or unenforceable, the legality and enforceability of the remaining provisions shall not in any way be affected or impaired.