1. Parties/Assignment Prohibited The parties to this agreement are Wolstenholme International Inc., Seller, and the person/s or entity identified in this agreement, Buyer. Buyer shall not assign any interest in this agreement to any other party and any attempted assignment by Buyer shall be void.
2. Complete Terms Sales by Seller are governed by these terms and conditions, unless the parties have executed a written agreement amending these Terms and Conditions prior to sale. All of Seller’s offers of sale are conditioned upon Buyer’s acceptance of all, and only, these terms. Any additional or different terms in Buyer’s forms or other documents are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given. This is the final and complete expression of all terms and conditions of the agreement. Any representations, promises, warranties, or statements, including oral statements not reduced to writing, that are not contained herein are void.
3. Limited Warranty All products are warranted to be the type ordered but shall be sold AS IS and without any other warranties. THIS COMPRISES SELLER’S SOLE AND EXCLUSIVE WARRANTY AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE CONCERNING THE PRODUCTS, AND ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR INTENDED PURPOSE, ARE HEREBY DISCLAIMED AND EXPRESSLY EXCLUDED. To the extent that the manufacturer of the product provides a warranty and such warranty is transferable, Seller will transfer such manufacturer’s warranty to Buyer without incurring any liability thereunder.
4. Terms of Payment This agreement shall include terms of payment required and any modification shall be in writing and approved by both parties. A late payment charge of up to 1.5% per month (which shall not exceed the maximum amount allowed by law), will be imposed on all past due amounts. In the event of a delinquency, Seller may, without notice and in its sole discretion, hold or cancel orders, refuse to accept new orders, and accelerate all amounts due. , Buyer grants to Seller a lien and security interest in the goods to secure payment, and Buyer agrees to cooperate in providing any additional documents required by Seller deemed necessary or convenient by Seller to perfect Seller’s security interest in the goods.
5. Credit Any credit terms offered by Seller are available only for as long as Buyer complies with all its obligations under these terms and conditions, including without limitation, the provisions requiring timely payment of invoices within the stated terms. If credit terms are no longer available, Buyer shall pay cash in advance for all purchases. If Seller shall have any doubt at any time as to Buyer’s financial responsibility, Seller, in its sole discretion, either may (1) decline to make further shipments except under receipt of cash in advance or upon giving of other security satisfactory to Seller; or (2) terminate this sale. Nothing in this paragraph is intended to affect the Buyer’s obligation to accept and pay for the goods.
6. Deduction/Off-Set Buyer cannot deduct from the price of Seller’s invoices the amount of any claim asserted by Buyer against Seller, unless such claim has been allowed by Seller, and Seller agreed in writing that Buyer could make the deduction. Further, Buyer shall not off-set any amounts due and owing to it from Seller without Seller’s written permission.
7. Cancellation Except as otherwise provided herein, Buyer may not cancel or terminate any purchase without Seller’s written consent.
8. Limitation of Remedy and Liability Buyer’s sole and exclusive remedy against Seller, and Seller’s sole liability to Buyer, including for breach of this Agreement, is limited to refund of the purchase price for such goods that may be the subject of such breach. Under no circumstances shall Seller be liable to Buyer or any other person or entity for any incidental, consequential, or indirect damages which are suffered by Buyer or any other person or party whether arising in tort, contract, or otherwise. No action at law or in equity shall lie against Seller if not commenced within one year after the cause of action has occurred. The remedies provided above shall be subject to and available only if Buyer has followed the claims procedures set forth in this Agreement. Cost increases shall be reflected on Seller’s Invoice to Buyer. Buyer is responsible to Seller for at least the estimated shipping cost quoted by Seller. Seller arranges shipment as a service to Buyer; actual shipping costs incurred by Seller may differ from the costs passed along to Buyer. Buyer shall also be responsible for any increases in delivery costs resulting from Buyer’s delivery instructions to Seller or to the carrier and any extra costs utilizing substitute methods of delivery, when the intended type of carrier or loading or unloading facilities become unavailable. Seller shall be entitled to the benefit of rebates, allowances, or special rates from carriers.
9. Notice of Nonconformance and Claims Buyer shall inspect all shipments of goods immediately upon arrival and shall notify Seller of any shortages, overages, or other nonconformities within seven (7) days after arrival. Any claim of Buyer must be made within ten (10) days of date of invoice and notice of claim must be as provided for notices in this agreement, below.
10. Notifications Buyer shall submit all written notifications to Seller by fax at 303-530-3742 or by mail to the Wolstenholme International Inc. company corporate headquarters in Boulder, CO USA.
11. Tax Obligation Any tax arising out of this transaction shall be Buyer’s obligation, without right of offset, unless specifically accepted by Seller in this document.
12. Breach and Default Failure to accept delivery or make payments as prescribed in this agreement shall be a breach of this agreement. Any breach not corrected within twenty four (24) hours of invoice shall be deemed to be a default of the agreement. Additionally, if Buyer has a significant change in ownership or has a change of management authority or becomes insolvent, appoints a receiver for the benefit of creditors, voluntarily files or consents to the filing of a petition under any bankruptcy, reorganization or similar law or a petition under any bankruptcy, reorganization or similar law is filed against Buyer and not dismissed within 90 days, or Buyer defaults under any agreements with, or terms of, Seller at its option may, with or without terminating any agreement with Buyer and without waiving any other remedies available to Seller: (a) declare all amounts due and to become due Seller from Buyer immediately due and payable; (b) stop all shipments in progress and further shipments under this Agreement; (c) repossess and sell or otherwise dispose of any property of Buyer in which Seller has a security or ownership interest; or (d) treat any insolvency or default as a repudiation by Buyer of the entire order, recall the goods (if shipped), and hold Buyer liable for any damages, including without limitation, special, consequential, and incidental damages.
13. Jurisdiction This Agreement shall be interpreted in accordance with the laws of the State of Colorado. Buyer hereby irrevocably and unconditionally submits to the exclusive jurisdiction of and venue in the state and federal courts located in Boulder County, Colorado or any other court of jurisdiction selected by Seller in any action or proceeding arising out of or related to this Agreement.
14 . Remedies and Attorney Fees In the event of default of this agreement, Seller shall have all remedies available at law. If an attorney is employed to construe, interpret, or enforce any of the provisions of this agreement or take any action in any bankruptcy, insolvency or similar proceeding affecting creditors’ rights generally (including, without limitation, prosecution of a motion for relief from stay, proposal or a Chapter 11 plan, Chapter 13 plan, or objection to proposed use, sale or lease of property), the secured party shall be entitled to recover from the debtor its reasonable attorneys fees and other costs incurred irrespective of whether any legal proceeding is commenced.
15. Force Majeure Neither party shall be liable for any failure or delay in performance under this agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by causes beyond that party’s reasonable control and occurring without its fault or negligence, including, without limitation, failure of suppliers, subcontractors, and carriers, or party to substantially meet its performance obligations under this agreement, provided that, as a condition to the claim of nonliability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
16. Binding Effect This Agreement shall be binding upon the parties hereto and their respective heirs, successors, personal representatives and assigns. In the event Buyer sustains a change of ownership, change of management authority, Buyer represents and warrants that all owners and/or shareholders (including new owners and shareholders) of Buyer will assume joint and several responsibility for all liabilities associated with this sale and all other amounts due and owing to Seller.
17. California Proposition 65 According to California Health and Safety Code Section 25249.6, as of December 18, 2010, by purchasing this product you have a duty to inform your retail customers that they must provide a clear and reasonable warning to any customer who purchases wood products, and you must take reasonable steps to ensure that the warning is properly posted at the retail outlet. The following warning should be posted at points of sale or points of display of the wood products in California retail outlets so it will be seen by the ultimate purchaser of the wood products:
WARNING: DRILLING, SAWING, SANDING OR MACHINING WOOD PRODUCTS GENERATES WOOD DUST, A SUBSTANCE KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER. AVOID INHALING WOOD DUST OR USE A DUST MASK OR OTHER SAFEGUARDS FOR PERSONAL PROTECTION.