TheScaffoldWarehouse.com Terms and ConditionsPLEASE READ THE FOLLOWING CAREFULLY TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS WEBSITE.TERMS AND CONDITIONS OF PURCHASE (Applicable to All Sales of
Products)
THESE CONDITIONS CONTAINS PROVISIONS
RELATING TO INDEMNITY, RELEASE, LIMITATION OF LIABILITY AND ALLOCATION OF RISK FOR
SALES MADE BY THE SCAFFOLD WAREHOUSE AND ITS
AFFILIATES (?SELLER?)
1. GENERAL: Prompt acceptance of any Estimate
(?Estimate?) or purchase order for materials
and/or services (?Order?)
by the customer listed on said Estimate or Order (the ?Buyer?) is requested
but, in any event, any delivery hereunder shall constitute an acceptance of the Estimate or Order pursuant to the terms and conditions as set forth herein (?Conditions?)
and no other terms and conditions. Acceptance of any Order is expressly limited to these Conditions, and any additional or
different terms of Buyer for
Estimates or for Orders are hereby rejected and inapplicable. Unless both parties have signed an unexpired prior
written agreement regarding the sale and purchase of The Scaffold Warehouse?s products
identified on Seller's accompanying order confirmation (the
"Products"), these Conditions and Seller's accompanying order
confirmation supersede and replace all prior agreements, representations and
understandings, whether oral or written, and contain the entire agreement
between the parties regarding the sale and purchase of the Products. In case of
any conflict between any of the provisions of these Conditions and any
unexpired prior written agreement between the parties regarding the sale and
purchase of the Products, the terms of the prior written agreement shall
prevail. In the case of no applicable unexpired prior written agreement,
Seller's offer to sell the Products to Buyer is expressly made conditional on
Buyer's assent to these Conditions. These Conditions shall not be modified or
amended orally, by the terms of any purchase orders or other documentation
issued unilaterally by Buyer (and the terms and conditions proposed by any such
purchase order or other documentation are specifically objected to and shall
not be the basis for any agreement regarding the Products), or by any course of
dealing or trade usage, but may be amended only in written form bearing a
signature by both parties. 2. PAYMENT AND CREDIT: Unless otherwise specified on the first page of any invoice issued by
Seller to Buyer, Buyer shall pay Seller for Product within thirty (30) days of
Seller's invoice by check, wire or electronic funds transfer in immediately
available funds in accordance with Seller's invoice instructions. If Buyer
fails to pay Seller in accordance with the above terms, or if, in the reasonable
opinion of Seller, Buyer's financial condition or Buyer's ability to otherwise
perform is impaired or unsatisfactory, then Seller, at its option and without
prejudice to its other rights and remedies, may without further notice to Buyer
(A) suspend deliveries until all indebtedness is paid in full and/or (B) place
Buyer's shipments on a cash-in-advance basis until arrangements are made for
security or other assurances satisfactory to Seller, at Seller's sole
discretion. In the event of Buyer's default in payment, Buyer shall pay all
Seller's costs of collection, including, but not limited to, reasonable
attorneys' fees. Any amounts that remain due and owing after the due date shall
bear interest thereon from the date due until the date paid at a per annum rate
of interest equal to the lower of (i) the maximum rate of interest allowed by
law or (ii) Eighteen percent (18%). Any preexisting obligation of Buyer to make
payment for Product delivered hereunder shall survive termination of these
Conditions. Seller may establish a credit limit for Buyer's account. Seller
reserves the right to refuse to make shipments to Buyer if such shipments would
cause Buyer to exceed such credit limit. Seller may increase or decrease such
credit limit from time to time, in its reasonable discretion. Seller's failure
to enforce the credit limit in any instance shall not constitute a waiver of
Seller's right to subsequently enforce the credit limit. Seller shall be under
no obligation to hold or store Products for Buyer beyond the scheduled shipment
date if, on such date, Buyer's account would exceed the established credit
limit if shipments were made. Orders for Products so affected may, at Seller's
option, be treated by Seller as canceled, and will be subject to cancellation
charges to cover Seller's costs in relation to such cancellation. Buyer hereby
grants Seller a security interest in all Product delivered by Seller to Buyer
on credit until such Product has been paid for in full by Buyer in accordance
with the terms of these Conditions. Buyer and Seller agree that these
Conditions shall constitute a security agreement between Buyer and Seller with
respect to such Product and may be used by Seller without in any way
abrogating, restricting or limiting the rights of Seller under these Conditions
or at law or in equity. Buyer hereby grants Seller permission to file financing
statements or such other documents as are necessary under applicable law to
perfect Seller's security interest in such Product or the proceeds of such Product. 3.
PRICING AND
TAXES: Prices quoted in any Estimate
or Order shall be available without change for a maximum of fifteen (15) days. Buyer
shall purchase the Products from Seller at the price set forth in an applicable
Order. Seller may at any time, and without notice to or obligation of any kind
to Buyer, sell Product to other buyers at prices below or on other terms
different from those obtained by Buyer hereunder. All Prices are exclusive of
all sales, use and excise taxes, and any other similar taxes, duties and
charges of any kind imposed by any governmental authority on any amounts
payable by Buyer. Buyer shall be responsible for all such charges, costs and
taxes; provided, that, Buyer shall not be responsible for any taxes imposed on,
or with respect to, Seller's income, revenues, gross receipts, personnel or
real or personal property or other assets. 4.
CANCELLATION: Seller reserves the right
to cancel
the Order
or make changes
in quantities, pricing, specifications and/or delivery schedules for any reason whatsoever. 5.
TITLE, RISK,
AND DELIVERY: Notwithstanding
anything in the applicable Incoterm to the contrary, title and risk of loss of
Product shall pass to Buyer at Seller's designated shipping point(s). If Seller
is responsible for payment of freight, Seller may select the carrier and routing.
If Buyer requests delivery by a different carrier or a different route, Buyer
will be responsible for any increased freight cost and Seller may invoice Buyer
accordingly. Any increase in freight rates paid by Seller on deliveries covered
by these Conditions in excess of the freight rates in effect on the date of these
Conditions, may, at Seller's option, be added to the price of the affected
Product and invoiced to Buyer accordingly. Seller may, in its sole discretion,
without liability or penalty, make partial shipments of Products to Buyer. Each
shipment will constitute a separate sale, and Buyer shall pay for the units
shipped whether such shipment is in whole or partial fulfillment of an Order. The
quantity of any installment of Products as recorded by Seller on dispatch from
Seller's place of business is conclusive evidence of the quantity received by
Buyer on delivery unless Buyer can provide conclusive evidence proving the
contrary. The Seller shall not be liable for any non-delivery of Products (even
if caused by Seller's negligence) unless Buyer gives written notice to Seller
of the non-delivery within fifteen (15) days of the date when the Goods would
in the ordinary course of events have been received. Any liability of Seller
for non-delivery of the Goods shall be limited to replacing the Goods within a
reasonable time or adjusting the invoice respecting such Goods to reflect the
actual quantity delivered 6.
ALLOCATION: If sufficient Product is not available for any reason,
Seller may allocate Product for its and its Affiliates' needs and among its
customers. Seller will make reasonable efforts to obtain additional Product
from other sources for delivery to Buyer, provided Buyer agrees to pay all
additional costs associated with such Product. Allocation of Product pursuant
to this Section shall completely satisfy and discharge Seller's supply
obligations. 7. DISCLAIMER OF WARRANTY: SELLER MAKES NO WARRANTY WHATSOEVER
WITH RESPECT TO THE PRODUCTS. TO THE EXTENT PERMITTED BY LAW, SELLER DISCLAIMS
ALL EXPRESSED AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF TIME, LOSS OF USE,
OR INCONVENIENCE. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO
ANY THIRD PARTY PRODUCT. 8. INDEMNITY OBLIGATIONS: BUYER AGREES TO PROTECT, INDEMNIFY,
HOLD HARMLESS AND DEFEND SELLER, ITS OFFICERS, DIRECTORS, AND EMPLOYEES, FROM
AND AGAINST ALL CLAIMS, PENALTIES, FORFEITURES, SUITS AND COSTS AND EXPENSES
INCIDENT THERETO (INCLUDING COSTS OF DEFENSE, SETTLEMENT, AND REASONABLE
ATTORNEY?S FEES), WHICH IT MAY HEREUNDER INCUR, BECOME RESPONSIBLE FOR, OR PAY
OUT AS A RESULT OF DEATH OR BODILY INJURY TO ANY PERSON, DESTRUCTION OR DAMAGE
TO ANY PROPERTY TO THE EXTENT THAT SUCH DAMAGE IS CAUSED BY ANY NEGLIGENT ACT
OR WILLFUL MISCONDUCT OF BUYER OR ITS EMPLOYEES IN THE USE OR SUBSEQUENT RESALE
OF THE PRODUCT. 9. LIMITATION OF LIABILITY: IN NO
EVENT SHALL SELLER BE LIABLE TO BUYER 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 SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF
ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL
SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE CONDITIONS,
WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR
THE PRODUCTS SOLD HEREUNDER. 10. ASSIGNMENT: Neither the Order nor any interest or rights therein shall be assigned
or transferred by Buyer without Seller?s prior written
approval. Seller may at any time assign
the
Order and any and all rights
hereunder. In addition,
Seller may, without the consent of Buyer, assign its rights to collect and
receive payment of amounts due hereunder in connection with a factoring,
securitization, or other similar arrangement regarding some or all of Seller's
receivables. 11.
NOTICES: All notices, request, consents, claims, demands,
waivers and other communications hereunder (each, a "Notice") shall
be in writing and addressed to the parties at the addresses set forth on the
face of the Order or to such other address that may be designated by the
receiving party in writing. All Notices shall be delivered by personal
delivery, nationally recognized overnight courier (with all fees pre-paid),
facsimile (with confirmation of transmission) or certified or registered mail
(in each case, return receipt requested, postage prepaid). Except as otherwise
provided in these Conditions, a Notice is effective only (a) upon receipt of
the receiving party, and (b) if the party giving the Notice has complied with
the requirements of this Section. 12.
GOVERNING
LAW/WAIVER AND JURY TRIAL/CONSENT TO JURISDICTION: These Conditions shall be governed and construed in
accordance with the laws of Texas without regard to the conflicts of law
principles thereof. Further, the United Nations Convention on Contracts for the
International Sale of Goods shall not apply to these Conditions. Each party to these
Conditions waives, to the fullest extent permitted by applicable law, any right
it may have to a trial by jury in respect of any action, suit, or proceeding
arising out of or relating to these Conditions. Further, Buyer and Seller irrevocably submit to the
exclusive jurisdiction of the federal courts of the United States of
America located in the Southern District of Texas, Houston Division, and
the state District Courts of Texas located in Harris County, Texas. Buyer and
Seller submit to and grant any such court jurisdiction over the person of such
parties and over the subject matter of any such dispute. 13.
COMPLIANCE
WITH LAWS: Buyer agrees to comply
with all applicable laws, rules, and regulations ("Laws"), from
whatever authority they may emanate, provided they are not in conflict with
U.S. Law. Furthermore, Buyer shall comply with all applicable export control
and trade embargo Laws, and shall not resell, export, re-export, distribute,
transfer or dispose of the Product, directly or indirectly, without first
obtaining all necessary written consents, permits, authorizations, and licenses
and completing such formalities as may be required by any such Laws. Failure by
Buyer to comply with such Laws shall constitute a material breach of these Conditions.
Buyer agrees to impose this same compliance requirement in its contracts with
third parties pertaining to the Product. 14.
CONFIDENTIAL
INFORMATION: All non-public,
confidential or proprietary information of Seller, including but not limited to
specifications, samples, patterns, designs, plans, drawings, documents, data,
business operations, customer lists, pricing, discounts or rebates, disclosed
by Seller to Buyer, whether disclosed orally or disclosed or accessed in
written, electronic or other form or media, and whether or not marked,
designated or otherwise identified as "confidential" in connection
with these Conditions is confidential, solely for the use of performing these
Conditions and may not be disclosed or copied unless authorized in advance by
Seller in writing. Upon Seller's request, Buyer shall promptly return all
documents and other materials received from Seller. Seller shall be entitled to
injunctive relief for any violation of this Section. This Section does not
apply to information that is: (a) in the public domain; (b) known to Buyer at
the time of disclosure; or (c) rightfully obtained by Buyer on a
non-confidential basis from a third party. 15.
SPECIAL ORDER:
If the Product sold hereunder is
manufactured for specially Buyer and Buyer's performance is suspended or
terminated for any reason, in addition to Seller's other rights and remedies,
Seller may require Buyer to take delivery of and make payment for such Product
as has been specially manufactured or as may be in process as of the date of
such notice of suspension or termination; if Buyer cannot take delivery of such
Product, Buyer shall make payment for same as if delivery had been taken and
Seller may store or dispose of such Product for Buyer's account and at Buyer's
expense. Buyer shall defend, indemnify and hold Seller harmless from and
against any expense, judgment, liability or loss, including reasonable
attorneys' fees, resulting from any claim of infringement of any patents,
trademarks, copyrights or other third-party property rights that results from
Seller's compliance with Buyer's specifications or instructions. 16.
TECHNICAL
INFORMATION: If Seller furnishes
technical or other information or advice to 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. 17.
PROPRIETARY
RIGHTS: All drawings,
designs, specifications, descriptions, technical data and other information (?Information?) furnished by Seller for use with the
Order constitute the property
and/or trade secrets
of Seller. Buyer
expressly covenants and agrees
that it will treat the Information as
strictly confidential and use the
Information only to complete the Order and to
return the Information
upon completion or termination of the Order along with all
copies or reproductions thereof.
Buyer agrees that copies of the Information can be
made only with Seller?s
prior written consent. 18.
EXCUSED
PERFORMANCE/ FORCE MAJEURE: When
either party's ability to manufacture, deliver, receive or consume Product or
to otherwise perform under these Conditions (other than Buyer's obligation or
ability to make payment for Product delivered under these Conditions) is
impeded, restricted or affected (A) by any of such causes as (or cause similar
thereto) (i) fire, explosion, flood, storm, earthquake, tidal wave, act of God,
terrorism, war, military operation, national emergency, civil commotion, or
other event of the type of the foregoing, (ii) any strike or other difference
with workers or unions (without regard to the reasonableness of acceding to the
demands of such workers or unions), (iii) any governmental law, regulation,
decree, order, or similar act, or (iv) any shortage in supplies of, or
impairment in the production, manufacturing, transportation or distribution
facilities of, either party attributable to (a) mechanical or other
interruption, breakdown or failure, (b) the order, requisition, request, or recommendation
of any governmental agency or acting governmental authority, or either party's
compliance therewith, (c) governmental proration, regulation, or priority, or
(d) the inability of Seller to obtain from its usual sources, on terms and
conditions deemed practical by Seller in its sole judgment, any right,
equipment, labor, transportation, or any feedstock or other raw material
(including energy) necessary for manufacturing, producing or delivering
Product, or (B) by any cause beyond such party's reasonable control, whether
similar or dissimilar to any aforementioned cause, then the party whose ability
is so impeded, restricted, or affected shall have the right, in its sole
discretion, by notice to the other party, to reduce, in part or in full, deliveries
or receipt of Product hereunder, and such notifying party shall have no
liability or responsibility to the other party for any loss or damage resulting
from such reduced deliveries or receipt of Product; any such deliveries so
reduced shall be permanently canceled rather than merely suspended. If Seller's
ability to supply Buyer with Product from Seller's facilities is impeded,
restricted, or affected by one or more of the aforementioned causes, then
Seller shall not be obligated to purchase or obtain Product for Buyer on the
open market or from other producers or suppliers of Product. However, in the
event that Seller should, nevertheless, determine, in its sole discretion, to
purchase or obtain Product on the open market or from other producers or suppliers
of Product, then any such purchase or obtaining of Product shall not constitute
a waiver or estoppel of Seller's rights, or otherwise preclude Seller from
asserting its rights under these Conditions, not to purchase or obtain, or
continue to purchase or obtain, Product for Buyer. Seller's obligation to sell
Product is subject to modification and reduction in accordance with any present
or future allocation program of Seller or of any governmental authority. 19.
MISCELLANEOUS.
Nothing contained herein shall be
construed to create an association, joint venture, trust, or partnership, or
impose a trust or partnership covenant, obligation, or liability on or with
regard to the parties. Any ambiguities or uncertainties in the wording of any
provision of these Conditions shall not be construed or interpreted for or
against any party because that party drafted or caused its legal representative
to draft the provision. Unless expressly stated otherwise in these Conditions,
words used in the singular include t the plural, the plural includes the
singular, and the neuter gender includes the masculine and the feminine. The
headings used herein are for convenience only and shall not be used to
interpret these Conditions. The failure of either party to insist, in any one
instance or more, upon the performance of any of the covenants or conditions of
these Conditions, or to exercise any right or privilege herein conferred, shall
not be construed as thereafter waiving any such covenants, conditions, rights
or privileges, but the same shall continue and remain in full force and effect.
These Conditions for the sole benefit of the parties hereto and their
successors and permitted assigns, and nothing herein expressed or implied shall
give or be construed to give to any person, other than the parties hereto and
such successors and permitted assigns, any legal or equitable rights hereunder.
If for any reason any provision contained in these Conditions is held to be
invalid, illegal, unenforceable, or otherwise void by a court of competent
jurisdiction, the remaining provisions of these Conditions shall not be
affected and shall continue in full force and effect. All wood sales are final.
There shall be not returns or exchanges on wood sales. Failure to use wood
products in a recommended way does not constitute a basis for refusing to pay
any of the associated costs related to a wood sale.
An additional fee of
at least $60 will be assessed on any orders needing redelivery by our shipper.
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