All goods and services furnished by 80/20, Inc. ("80/20") are provided pursuant to these Terms and Conditions ("Terms and Conditions") whether provided following an order placed electronically, verbally, or on paper, whether the order is placed directly through 80/20 or through an 80/20 representative, and whether the order is placed following Buyer's review of 80/20's catalog or website, or following receipt of a Quotation only, or following the exchange of other documents (the catalog website Quotation and all other documents, hereafter, jointly, the “Quotation”). Acceptance by 80/20 of Buyer's order is expressly conditioned upon Buyer's acceptance of these Terms and Conditions, including those on the face of the Quotation, and any provisions of Buyer's order in conflict with these Terms and Conditions are expressly rejected. Buyer acknowledges that no representation or warranty other than those contained in this document have been made or relied upon. No additions or modifications shall be valid unless confirmed in writing by 80/20. 80/20 IS NOT BOUND TO FURNISH ITS GOODS OR SERVICES EXCEPT IN ACCORDANCE WITH THESE TERMS AND CONDITIONS.
Prices for goods shall be those in effect on the date of invoice unless otherwise provided by the Quotation or agreed to in writing by 80/20. Unless otherwise provided on the face of the Quotation or agreed by 80/20 in writing, price and delivery terms shall be F.O.B. shipping point. Unless otherwise agreed in writing, 80/20 will select the route and manner of shipment, reserves the right to make delivery in installments when necessary, to invoice each installment separately, and to expect payment for each installment within 80/20's selling terms. All risks of loss or damage 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 previously referenced F.O.B. shipping point term. Buyer shall be responsible for obtaining and paying for insurance to cover any loss to Buyer. Buyer shall pay 80/20 for the contract price in the event of loss of the goods. If Buyer fails to accept delivery according to the agreed upon delivery schedule, 80/20 may cancel the then remaining balance of the order. Such cancellation, if elected by 80/20, shall be in addition to, and not in lieu of, any other rights or remedies which 80/20 may have at law or equity. Prices are good for only quantities indicated. If shipment or any other act or condition affecting payment for the goods or any part of them shall be delayed on account of Buyer, payment shall be due as if shipment had been made, a reasonable storage charge may be made, and such storage shall be at the risk of Buyer. 80/20 shall not be liable for any direct, indirect, consequential, special, or incidental losses or damages to Buyer or to any third parties resulting from 80/20's delay in shipment regardless of cause, including but not limited to those causes set forth in the Force Majeure section of this document.
PRODUCT VARIANCE FROM PHOTOS
80/20 attempts to provide accurate photographs of the products it offers for sale, but there may be some variation between the photographs and the actual products. Buyer may return any product if the variance is unacceptable to Buyer. Buyer must submit its request for return based on the product variation within thirty (30) days after receipt of the goods.
Goods furnished or services performed by 80/20 will be deemed to have been finally accepted thirty (30) days after receipt by Buyer, unless rightfully rejected within such period by written notice to 80/20, setting forth all of the defects upon which the rejection is claimed. Claims for factory damage or shortages shall not be considered unless made in writing within thirty (30) days after receipt of the goods or services and accompanied by reference to our bill of lading and invoice numbers. Buyer's claims for damage or shortage in transit must be filed by Buyer against carrier. Defective goods shall be held for 80/20's inspection or disposition.
All photographs, samples, descriptions, drawings or intellectual property provided by 80/20 to Buyer (collectively, “80/20 Content”) shall remain the property of 80/20 and shall only be used by Buyer to market 80/20 products to third parties. Buyer shall include in any materials provided by 80/20 to Buyer incorporating 80/20 Content, all copyright and trademark notices and any other indications of ownership of the 80/20 Content. All use of 80/20 Content by Buyer shall cease and all 80/20 Content shall be returned to 80/20 upon demand by 80/20 and any license created hereunder, implied or otherwise, is terminable at will by 80/20 and is hereby expressly terminated pursuant to Section 18 upon termination of this agreement. Upon demand by 80/20 Buyer shall immediately take down and remove access to all 80/20 Content, including all 8020 Content posted on third-party sites at the direction of, or due to the actions of Buyer. If Buyer fails to immediately secure such take downs and removals, 80/20, acting as Buyer’s agent, may make seek and make application for such take downs and removals on behalf of Buyer and in Buyer’s name and in such event Buyer shall render every assistance to 80/20. Buyer hereby appoints 80/20 as Buyer’s agent for this purpose. Further, Buyer agrees that 80/20 shall be entitled to equitable relief from Buyer, including but not limited to a restraining order or other injunctive relief against Buyer, to obtain compliance if Buyer fails to comply with any provision of this Agreement. 80/20 shall also be entitled to remuneration for the resources expended to take down and remove any such 80/20 Content, including reasonable attorney’s fees.
Buyer shall have no right to return any goods furnished by 80/20. 80/20 may, in its sole discretion, authorize Buyer to return goods. 80/20 may authorize the return of goods without charging a restocking charge, but in most cases, 80/20 will only authorize the return of goods subject to a restocking charge, the amount of which will depend on the type of goods being returned. The restocking charge shall be deducted from the amount refunded to Buyer.
Prices do not include any federal, state or local taxes. Any applicable excise, import, sales, use or similar taxes, whether federal, state, provincial or local, and any transportation and other charges shall be the responsibility of and be paid by Buyer and, if paid by 80/20, Buyer agrees to reimburse 80/20 for any such payment and further agrees that 80/20 may add any such payments to the purchase price of the goods.
Payment shall be due prior to shipment unless adequate credit remains on an account in good standing. All orders received are subject to credit approval. Buyer agrees to submit from time to time to 80/20 those items reasonably requested in order to establish or update Buyer's credit. 80/20 shall be entitled to charge interest on past due accounts at a rate of 1.5% per month (18% annually). Whenever 80/20, in good faith deems itself insecure, 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/shipment of any unfilled orders; modify or revoke its extension of credit to Buyer; and take any other steps permitted by law and necessary or desirable to secure 80/20 with respect to Buyer's payment of goods and services furnished or to be furnished. Buyer will pay 80/20's actual costs of collection, including but not limited to court costs, litigation expenses, and reasonable attorney's fees, incurred for collection of any delinquency. Title to the goods shall remain with 80/20 until Buyer receives physical possession of the goods and the goods are fully paid for by the Buyer. Buyer shall have no right of offset against amounts owed to 80/20.
All 80/20; products are guaranteed to be free of actual defects in material and workmanship, provided any such defect be reported to 80/20 in writing within one (1) year of shipment from factory. This warranty is limited to replacing or repairing, at 80/20’s option, F.O.B. 80/20’s factory, any part which, upon 80/20 inspection is found to have a defect in material and/or workmanship. 80/20 in no event shall be liable for indirect or consequential damages arising out of the use of 80/20 products. Components purchased by 80/20 from others for inclusion by 80/20 shall be warranted only to the extent set out above and/or to the guarantee or warranty, if any, made by the supplier of said component. No warranty is made by 80/20, express or implied, that 80/20 products as used in a customer’s design and specifications are fit for that customer’s specific purpose.
Services performed by 80/20 will be conducted in a manner consistent with that level of care and skill ordinarily exercised by members of the industry currently practicing under similar conditions. As an independent contractor of Buyer, 80/20 will provide evaluation, advice, and guidance to Buyer, but Buyer recognizes that 80/20 is a technical contractor and not a professional consultant.
APART FROM THE ABOVE EXPRESS WARRANTY, THERE ARE NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. 80/20 expressly reserves the right to substitute materials in the products described in the catalogs and any supplements thereto; however, this shall not apply to special order products and/or custom products where 80/20 is advised in writing of specific material requirements and agrees in writing to comply with the requests for such specific materials. Any and all warranties shall be construed and enforced under the Laws of the State of Indiana.
ENTIRE AGREEMENT/LAW AND FORUM/SEVERABILITY.
Except as otherwise agreed in writing or if another writing incorporates these terms thereby making these terms supplemental to such writing, this constitutes the entire agreement between 80/20 and Buyer, superseding all prior Quotations and understandings, oral or written. All such previous communications are hereby abrogated and withdrawn, and no stipulations, representations or agreements by 80/20, or its officers, agents, or employees shall be binding upon 80/20 unless reduced to writing and attached to and incorporated by reference herein, and no local, general, or trade custom shall alter or vary the terms hereof. Any questions, disputes, controversies, or litigation between 80/20 and Buyer, including but not limited to disputes concerning the validity, interpretation, or effect of the Quotation, or interpretation and enforcement of the rights and obligations of the parties hereunder, shall be governed by the laws of the State of Indiana and the exclusive venue for resolving any such questions, disputes, controversies, or litigation shall be a state or federal court located in Allen County, Indiana. If any provision of this Quotation is determined invalid under applicable law, such invalidity shall be limited to such provision without invalidating the remainder of the other Terms and Conditions hereof; and if any provision of this Quotation is found to be ambiguous or in conflict with any other provision of this Quotation, such ambiguity or conflict shall be resolved in the manner which provides the greatest protection and limitation of liability to 80/20.
80/20 will maintain Workers' Compensation insurance coverage at such levels as are required under the laws of the State of Indiana. 80/20 will purchase and maintain comprehensive general liability insurance against claims for personal injury or death or damage to property which may arise out of, or result from, 80/20's performance of the services in such amounts as 80/20 maintains in its ordinary course of business. If 80/20 is to provide installation services at Buyer’s premises, Buyer agrees to maintain, at its sole cost, comprehensive general liability insurance written on an occurrence basis with a combined single limit of not less than $1,000,000 and, at 80/20’s request, all risk builder’s insurance covering physical loss or damage including coverages against fire and extended coverage against collapse, liquid damage, earthquake, flood and comprehensive boiler and machinery damage. The all risk builder’s risk coverage shall not contain an exclusion for resultant damage caused by faulty workmanship or materials and shall not contain an exclusion for equipment under guaranty or warranty. In the event of damage to or destruction of the goods provided by 80/20 and/or Buyer’s premises, the proceeds of the insurance required to be maintained by Buyer hereunder shall be applied to the repair or reconstruction prior to any insurance maintained by 80/20.
LIMITS OF LIABILITY
80/20 will not be liable for any punitive damages or legal fees or any special, indirect, or consequential damages (including but not limited to loss of use or loss of profit) or fees which arise out of the performance of the services by 80/20. 80/20 and Buyer agree that absolutely no action arising out of the services may be brought by either party more than one year after substantial completion of the services. The entire liability of 80/20, or its officers, directors, agents, or employees, and Buyer's exclusive remedy for performance or nonperformance of the services shall be the adjustment or correction of the services by 80/20. If after repeated efforts, 80/20 is unable to adequately perform, Buyer shall be entitled to recover a pro-rata credit for the sums actually paid for the defective portion of the services.
TERMINATION OR CANCELLATION
Either party may terminate the services and all obligations arising under the proposal for the reason of the failure by the other party to comply with its obligations upon 30 days prior written notice to the other party. In the event of such termination, Buyer will pay to 80/20 all amounts which are due and payable to 80/20 for the services performed through the date of such termination. In addition, in the event the services are terminated as the result of the failure of Buyer to perform its obligations, Buyer will pay to 80/20 a termination charge of 20 percent of the cost of the remaining services to be performed by 80/20.
80/20 may keep a record of any information provided by Buyer to 80/20. 80/20 may store and process this information and contract specific details in machine readable form. Buyer agrees that 80/20 has the explicit right to pass on all data provided by Buyer to any vendor of 80/20 or other third party for any reason including for advertisement, marketing or opinion research purposes. Buyer is advised that Buyer may revoke these privileges at any time by delivering to 80/20 a written notice.