Terms and Conditions
These terms and conditions of sale (“Terms”) are the only terms that govern the sale and supply of bulk deicing salt and other related products (“Products”) by ND. The accompanying quote, proposal, order acknowledgement or invoice (“Order”) and these Terms (together, the “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous communications, understandings or agreements (whether verbal or written). These Terms prevail over any of Customer’s general terms or conditions of purchase regardless of whether or when Customer submitted its order or alternate terms. Neither the failure of ND to object to Customer’s terms and conditions nor the fulfillment of Customer’s order will (i) constitute acceptance of Customer’s terms and conditions or (ii) serve to modify or amend these Terms. If there is any conflict or inconsistency between these Terms and those set forth in the Order, then the specific modification(s) noted in the Order will govern and control.
2. Price; Payment Terms.
All prices are as quoted by ND for specific Products, and are subject to adjustment at ND’s discretion. All prices are quoted and to be paid in U.S. Dollars and are exclusive of taxes. Unless Customer has been approved for credit by ND (which such approval ND may revoke at any time), all payments shall be made by Customer on a cash, credit card or check basis, and ND will not complete a delivery of Products until the amount due under the Order has been paid in full. If Customer is approved for credit, Customer will pay all invoiced amounts on a Net 10 basis (due within 10 days of the date of ND’s invoice). Customer will pay interest on late payments at the lesser of 1.8% per month or the highest rate permissible under applicable law. Customer will reimburse ND for all costs incurred for collection of late payments, including attorneys’ and collection agencies’ fees. In addition to all other remedies under these Terms or at law (which ND does not waive by exercise of any rights hereunder), ND may require COD or suspend the delivery or pick up of any Products if Customer fails to pay any amounts when due hereunder. Customer will not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with ND.
3. Delivery Terms.
Products will be delivered within a reasonable time after receipt of Customer’s order. ND will use reasonable efforts to meet the estimated date of delivery set forth in the Order. ND does not guarantee delivery dates and will not be liable for any delays, loss or damage in transit. Delivery will be made F.O.B. ND supplier’s facility, or such other shipping point set forth in the Order. Title and risk of loss shift to Customer upon delivery of Products by the supplier to the designated carrier. Customer will be responsible for all costs and expenses of Product shipment (including loading, freight and insurance) or storage and re-delivery costs if Customer fails to timely accept delivery.
4. Product Availability.
ND’s obligation to sell Products to Customer is SUBJECT TO PRODUCT AVAILABILITY. ND has the right to (i) decline, or suspend shipments of, any of Customer’s Product orders or (ii) terminate this Agreement if, at any time, ND encounters shortages of Products due to commitments to other customers, conditions at any ND supplier’s terminals or facilities, weather conditions, or any other reason that may affect ND’s ability to accept and/or complete orders.
5. Inspection and Acceptance.
Customer will inspect the Products within five (5) days of receipt (the “Inspection Period”). Customer will be deemed to have irrevocably accepted the Products unless it notifies ND in writing of any alleged shortage, error in delivery or defective or non-conforming Product during the Inspection Period and provide Product samples or other evidence or documentation as required by ND
6. Limited Warranty.
Customer expressly acknowledges and agrees that ND (i) is solely a distributor of the Products, (ii) does not manufacture or produce any of the Products, and (iii) does not at any time take physical possession or control of the Products sold hereunder. Accordingly, ND does not provide any warranties whatsoever with respect to the Products. The Products are covered only by the manufacturer’s warranty, if any and are subject to the discretion of the Product manufacturer. ND will provide Customer with reasonable assistance in making a warranty claim against the manufacturer, however, all costs and expenses associated with making such warranty claim (including without limitation, all shipping costs and costs to analyze any Products) will be Customer’s sole responsibility. PRODUCTS ARE SOLD BY ND ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. ND NEITHER ASSUMES (NOR HAS AUTHORIZED ANY PERSON TO ASSUME) ANY WARRANTY OR LIABILITY IN CONNECTION WITH THE PRODUCTS.
7. Limitation of Liability.
IN NO EVENT WILL ND BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT ND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Customer will indemnify and hold ND harmless from and against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney fees arising out of or occurring in connection with Customer’s shipment, storage, use or disposal of the Products purchased by Customer or Customer’s negligence, willful misconduct or breach of this Agreement.
9. Confidential Information.
All non-public, confidential or proprietary information of ND, including but not limited to suppliers, pricing, discounts or rebates, and any other proprietary business and technical information, documents or data disclosed by ND (the “Confidential Information”) to Customer, whether disclosed verbally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by ND in writing. Upon ND’s request, Customer will promptly return all documents and other materials received from ND. This Section does not apply to information that is: (a) generally available to the public without breach of this Agreement by Customer; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party. ND will be entitled to injunctive relief for any violation of this Section.
10. Force Majeure.
ND will not be liable to Customer (or to any third party), nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond ND’s reasonable control, including, but not limited to, acts of God, fires, floods, earthquake, explosion, acts or omissions of any governmental authority, war, insurrection, terrorist threats or acts, riots or other civil unrest, national emergency, lockouts, strikes or labor difficulties, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, breakdown of essential equipment or telecommunication breakdown or power outage.
11. Relationship of Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever. This Agreement is for the sole benefit of the parties hereto and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
ND may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Customer agrees to pay all costs and expenses, including reasonable attorneys’ fees, incurred by ND in enforcing this Agreement.
No modification of the Agreement will be binding unless in writing and signed by both parties. Customer will not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of ND. Any purported assignment or delegation in violation of this Section is null and void. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the State of Wisconsin, without giving effect to any choice or conflict of law provision. Any legal suit, action or proceeding arising out of or relating to this Agreement will be instituted in the United States District Court for the Eastern District of Wisconsin, located in Green Bay, Wisconsin, or in the Circuit Court for Brown County, Wisconsin. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of these Terms which by their nature should survive will remain in force after delivery of the Products and any termination or expiration of this Agreement.