(Effective as of June 7, 2019)
These General Terms and Conditions of Sale (“T&Cs”), as may be amended from time to time by Seller, apply to the sale of fuels and lubricants manufactured (“Products”) by Halterman Carless US Inc. (“Seller”) to a purchaser of Products (“Buyer”).
- OFFER AND ACCEPTANCE
These T&Cs constitute an offer by Seller to sell the Products described herein in accordance with the present terms. No additional or different terms of conditions will be binding on Seller unless specifically agreed to in writing by Seller; Seller’s failure to object to provisions contained in any purchase order or other communication from a Buyer shall not be construed as an acceptance of any of such provisions, nor as a waiver of these T&Cs. Any acceptance by Buyer to purchase Seller’s Products is subject to Seller’s consent, which consent may not exceed 30 days. Seller’s shipment of an order of Products shall be deemed Seller’s consent to a sale of Products. Unless otherwise expressly agreed to in writing by Seller, these T&Cs shall serve as notice of Seller’s objection to and rejection of any terms and conditions of purchase or sale included in Buyer’s order or other writing and which may differ, vary or conflict with ant of the T&Cs.
2.2 Seller may in its sole discretion add, remove or change any Products, services, or prices at any time, without notice and without any obligation to Buyer.Buyer understands and agrees that the Seller’s Products or services may be available in limited quantities, and that certain Products or services may be available exclusively online on the Webstore. Seller reserves the right to limit the quantities of any Products that Seller offers for sale. Seller reserves the right to discontinue any Product at any time.
2.3 Seller shall make commercially reasonable efforts to display as accurately as possible on its Webstore the colors and images of Seller’s Products. Seller cannot guarantee that Buyer’s computer monitor will accurately display the Products.
2.4 To the extent permitted by law, Seller reserves the right to limit or extend the sale of Products to any person or entity, geographic region or jurisdiction, as the Seller may determine on a case-by-case basis.
- PRICES AND PAYMENT
3.1 Prices quoted on the Webstore are in U.S. Dollars.
3.2 Prices of Products, or any services associated with such Products, are subject to change without notice until Seller’s issuance of a written confirmation of the purchase order by way of an email communication which shall be binding on Seller.
3.3 Prices of Products quoted on the Webstore may not include taxes, insurance, freight costs or similar charges, which shall be borne by Buyer, unless otherwise expressly agreed to in writing.
3.4 For all prices and Products, Seller reserves the right to make any adjustment due to changing market conditions, product discontinuation, or other extenuating circumstances until Buyer receives a written confirmation of its order. Unless otherwise agreed to by Seller, all amounts are due on the date of purchase of the Products on the Webstore.
3.5 Seller may agree on different terms of payment for the sale of Products to wholesalers or certain qualified purchasers. If Seller agrees to a payment term, overdue amounts shall bear a delinquency late interest rate of 12.0% per annum. Notwithstanding any payment term or due date which Seller may agree to, Seller reserves the right to require Buyer, prior to shipment, to pay the purchase price in full or make any other adequate assurances of payment satisfactory to Seller when, in Seller’s sole opinion, Buyer’s financial condition or other grounds warrant such action.
3.6 Buyer shall have no right of set-off the payment of any amounts due to Seller with any alleged defenses or counter-claims. Any assignment of Buyer’s counter-claims to a third party without Seller’s prior written consent is null and void. Buyer will reimburse Seller for any costs and expenses (including reasonable attorney’s fees) in connection with the collection of any amounts owed to Seller under these T&Cs.
3.7 Seller makes its best efforts to ensure that its Products and prices are current and accurately represented on its Webstore. In the event of a pricing error, Seller reserves the right to contact Buyer, inform Buyer of any discrepancy or error, and give Buyer the option to either cancel the order or keep the order at Seller’s correct price.
4. RETURN POLICY
Seller’s Products are flammable and subject to HAZMAT regulations, including rules of our carrier on hazardous materials. Unless otherwise provided in these T&Cs or mandated by law, Seller’s Products are not returnable or exchangeable.
- TAXES AND OTHER CHARGES
5.1 In addition to the purchase price quoted or invoiced, Buyer shall pay any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, duty, custom, inspection or testing fee or charge of any nature whatsoever imposed by any governmental authority, domestic or foreign, on or measured by the transaction between Seller and Buyer. In the event Seller is required to pay any such tax, fee or charge, Buyer shall reimburse Seller unless otherwise agreed upon in writing.
5.2 In addition, Buyer shall pay any and all added costs and expenses incurred by Seller as a result of delays in receiving receipts of details, specifications, and other pertinent information from Buyer or because of changes requested by Buyer.
6.1 Delivery of Products to Buyer’s principal place of business or to any other shipping point, if so agreed to by the parties in writing, shall constitute delivery to Buyer (“Delivery”), and regardless of shipping terms or freight payment, all risk of loss or damage in transit shall upon Delivery, shift to Buyer.
6.2 Methods and routes of shipment, unless Seller specifies in writing otherwise, shall be accepted by Buyer as chosen by Seller in Seller’s sole discretion.
6.3 Buyer will be responsible to pay for all costs of shipment (delivery or other) in connection with the Products.
6.4 Seller shall make commercially reasonable efforts to meet scheduled shipment dates and times. In no event shall Seller be liable for any losses or damages of any kind due to a delay in shipment, nor may Buyer cancel its order because of any such delay.
6.5 If Products are lost or damaged while in transit, Seller shall file claim with the carrier or shipping company to recover the loss and replace the lost or damaged Products with either the same or comparable Products.
6.6 Seller strives to deliver the Products on time and while delivery times are generally accurate estimates based on Seller’s stocking levels, they remain approximate lead-times. If a purchase order cannot be processed in time, Buyer will be informed of the delay within a reasonable time. If the time between the purchase of a Product and the time of Delivery exceeds 30 days, Seller will offer Buyer a full refund.
Unless mandated by law, once an order for the purchase of Products is placed, Buyer will not be permitted to cancel a purchase order.
8. FORCE MAJEURE
Seller shall not be liable for any delay in shipment, failure to deliver, or any other nonperformance of the Agreement directly or indirectly resulting from or contributed to by any cause or circumstance beyond Seller’s control, including, without limitation, force majeure, accident to Seller’s plant or equipment, riots, wars or national emergencies, labor disputes of any kind, embargoes, non-delivery by suppliers, inability to obtain supplies through Sellers’ normal channels of supplies, delays of carriers or postal authorities, governmental restrictions, prohibitions, or diversions. In any such event, Seller’s time for performance under these T&Cs shall be extended for a period of time not less than the period of such delay.
9. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
9.1 Seller shall retain all right, title, and interest in and to all trade secrets and intellectual property rights in or related to the Products, services, documentation, or materials (including trademarks, trade dress, logos, domain names, and copyrights) developed or owned by Seller and provided or made available to Buyer in connection with the sale of the Products hereunder, and in any and all modifications, updates, and enhancements of the Products which are created, introduced, or provided by Seller. All drawings, diagrams, specifications and other materials, relating to the production, formulation and use of Products sold hereunder and the information therein furnished by Seller are propriety of the Seller.
9.2 If Buyer or Buyer’s representative visits Seller’s research or production facility or otherwise receive any proprietary or confidential information from Seller, said information shall be retained as confidential by Buyer and shall not be used or disclosed to any third party without written prior consent of Seller. Seller retains all rights in any invention or improvement, discovery or patent it conceives relating to its Products. Seller assumes no liability as to any patent or copyright infringement by virtue of the use of Products in combination with other goods and services, or the use of Products manufactured to Buyer’s specifications. Buyer will not use Seller’s trademarks without Seller’s prior written consent.
10. LIMITED WARRANTY
10.1 Seller warrants that all new Products, including such parts manufactured by others are integral therewith, shall be free from defects for a period of 6 (six) months from the date of Delivery if the Products are maintained in undamaged and unopened original packaging and storedout of direct sunlight in a cool and dry environment, away from flames, sparks, embers, or anything that may cause it to ignite and at temperature < 70°C.
10.2 Seller’s obligations under the aforesaid warranty shall consist of replacement of the Products delivered to Buyer, which prove to be defective. Such replacement shall be Seller’s sole obligation and Buyer’s sole remedy hereunder and shall be conditioned upon Seller’s receipt of written notice of any alleged defect within 7 days after its discovery, and at Seller’s option return of such defective Products or part thereof freight prepaid toSeller’s facility (as directed by Seller). Seller’s obligations herein shall not apply to any Products sold hereunder which has been damaged due to Buyer’s negligence, faulty or improper use, alteration, storage, handling of the Products or maintenance not in accordance with Seller’s applicable instructions or specifications or performed by untrained technicians of Buyer.
10.3 Any description or representation of the Products whether in writing or made orally by Seller or Seller’s agents, specifications, samples, models, bulletins, drawings, diagrams, engineering sheets or similar materials used in connection with Buyer’s order are for the sole purpose of identifying Products and shall not be construed as an express warranty. Any suggestions by Seller or Seller’s agents regarding use, application or suitability of Products shall not be construed as an express warranty unless confirmed to be such in writing by Seller. Production figures and specifications by Seller are estimates only and are not warranties, unless expressly stated otherwise. Seller does not warranty that the quality of any products, services, information, or other material purchased or obtained by Buyer from Seller will meet Buyer’s expectations. Seller makes no warranty: (1) concerning the compliance of the Products with any local, state, or federal laws or regulations; Buyer agrees to accept full responsibility for complying with such laws, regulations, codes, and requirements. (2) against any defect or damage to the Products incurred in transit. (3) as to the durability and quality of, or other matter relating to, any materials used in the Products. Other than as set forth in this Section, Seller makes no warranty, express or implied, with regard to the Products. THE WARRANTY EXPRESSED IN THESE T&Cs SHALL BE IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND IS IN LIEU OF ANY AND ALL OTHER OBLIGATIONS OR LIABILITY ON SELLER’S PART. ANY PRODUCTS, WHICH BY AGREEMENT OF THE PARTIESARE OF LESS THAN SELLER’S STANDARD QUALITY ARE SOLD “AS IS”.
11. WARRANTY CLAIMS, INSPECTIONS AND WAIVER OF DEFECTS
11.1 Written notice of any alleged defect must be presented to Seller immediately upon Buyer’s discovery of the defect and not later than 7 days after its discovery, failing which Buyer understands and agrees that any claim regarding such defect shall be forfeited and rejected by Seller.
11.2 Buyer must allow Seller to inspect the Products while they are in the alleged defective condition, failing which Buyer understands and agrees that any claim regarding such defect shall be forfeited and rejected by Seller.
11.3 Use of the Products may be suspended by Seller until written clearance is issued by Seller for continued use, provided that Seller, upon receipt of written notice of an alleged defect, proceeds without unreasonable delay to remedy any defect covered by the warranty.
11.4 Buyer has a duty to inspect all Products immediately upon their receipt and shall immediately give written notice to Seller of any claim that the Products do not conform to the terms of the Contract. Seller shall have reasonable access to inspect any allegedly non-conforming Products. Buyer waives any right to assert any claim against Seller arising from any non-conformity of Products sold hereunder which would have been observable upon reasonable inspection or testing within 30 days after the date of Delivery.
- LIMITATION OF LIABILITY
12.1 Except as otherwise agreed in writing, Seller’s liability with respect to the Products is limited to the warranty provided in Articles 10, 11 and 12 hereof.
12.2 EXCEPT FOR FRAUD AND INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, SELLER WILL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SELLER OR UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER LOSS, DAMAGE OR EXPENSE OF ANY KIND, INCLUDING LOSS OF PROFITS, LOSS OF BUSINESS OR OPPORTUNITIES, LEGAL COSTS AND ATTORNEY’S FEES, ARISING IN CONNECTION WITH THE CONTRACT OR WITH THE USE OR LIABILITY TO USE SELLER’S PRODUCTS FURNISHED UNDER THIS CONTRACT, EVEN IF SUCH DAMAGES WERE FORESEEABLE.
12.3 SELLER’S MAXIMUM LIABILITY AND BUYER’S MAXIMUM REMEDY IS LIMITED TO EITHER (A)REPLACEMENT OF DEFECTIVE PRODUCTS, OR (B)AT SELLER’S OPTION, RETURN OF THE DEFECTIVE PRODUCTS TO SELLER AND REFUND OFPURCHASE PRICE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY EXCEED THE SALE OF THE PRODUCTS.
12.4 Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property or personal injury damages, penalties, special or punitive damages, damages for lost profits or revenues, loss of use of Products, or any associated equipment, cost of capital, cost of repairs to Products subject to Seller’s warranty performed by persons other than Seller without Seller’s prior written consent, cost of substitute Products, facilities or services, down-time or slow-down costs or for any other types of economic loss, and for claims of Buyer’s customers or any other third party for any such damages.
12.5 Seller disclaims any liability for any claim, whether in contract or in tort, not asserted against Seller with respect to the sale of any Products sold more than ninety (90)days after the date of Delivery. Any action by Buyer against Seller with respect to the sale of any Products must be commenced within one (1) year of the date of Delivery.
12.6 If Buyer is a reseller, Buyer agrees to cause its customers and any person in the chain of supply and distribution including the end customer to be bound by limitations of liability substantially equal to those contained in these T&Cs.
- SECURITY INTEREST
BUYER HEREBY GRANTS TO SELLER A SECURITY INTEREST IN THE PRODUCTS SOLD HEREUNDER TO SECURE PAYMENT OF THE PRICE OF SUCH PRODUCTS AND AGREES, AND APPOINTS SELLER AS ITS AGENT, TO TAKE ALL SUCH ACTION AND TO EXECUTE ALL SUCH DOCUMENTS AND INSTRUMENTS AS MAY BE NECESSARY OR REASONABLY REQUESTED BY SELLER TO PERFECT AND CONTINUE PERFECTED SELLER’S SECURITY INTEREST HEREUNDER.
Buyer agrees to indemnify, defend and hold harmless Seller, its shareholders, directors and officers, employees, successors or assigns, Seller’s parent, and any of the Seller’s subsidiaries or affiliates, directors and officers, employees, successors or assigns,, from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of Buyer breach of these T&Cs, or Buyer’s violation of any law or of the rights of any third-party.
If at any time any one or more of the provisions of these T&Cs becomes invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions of these T&Cs shall not be in any way impaired.
The obligations and liabilities set forth in these T&Cs shall survive the sale of a Product and shall terminate according to their own terms and for all purposes.
17. ENTIRE AGREEMENT
The failure by Seller to exercise or enforce any right or provision of these T&Cs shall not constitute a waiver of such right or provision. These T&Cs constitutes the entire agreement and understanding between Seller and Buyer regarding the sale of Products and supersedes any prior or contemporaneous agreements, communications and proposals, whether oral or written, between Seller and Buyer, including, but not limited to, any prior representations, statements, conditions, warranties or Buyer orders, or any prior versions of these T&Cs. Any ambiguities in the interpretation of these T&Cs cannot be construed against the drafter of the T&Cs. These T&Cs may not be amended other than with Seller’s express written consent. Seller may amend these T&C’s at any time and such amendments will become effective upon publishing of revised T&Cs on Seller’s Webstore.
18. GOVERNING LAW
The law governing these T&Cs and any further contracts between Seller and Buyer shall be the substantive laws of the State of Michigan, without regard to itconflicts of law rules. The application of the provisions of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
Buyer agrees that any dispute arising out of the present T&Cs shall be brought exclusively before the Courts, federal or state, of the State of Michigan with jurisdiction over Oakland county. Prior to commencing an action and for a period not to exceed thirty days, Buyer and Seller will attempt to resolve their disputes for a period of 30 days.
Nothing contained herein shall restrict or limit in any manner the Buyer or the Seller’s right to obtain any form of injunctive relief, legal or equitable, in an action brought to prevent or limit any damages.
20. WAIVER OF JURY BY TRIAL
To the maximum extent permitted by applicable law, Buyer hereby knowingly, voluntarily and intentionally waive any right now or hereafter existing to have a trial by jury in respect of any suit, action, or proceeding arising out of or relating to the purchase of Products or any other matter referenced herein. The parties shall waive any defense based on forum non conveniensor venue.
- SPECIFIC PERFORMANCE
Buyer and Seller agree that the violation of certain obligations provided by these T&Cs will result in irreparable damage, that remedies at law for any breach of these T&Cs will be inadequate and that specific performance of these obligations may be obtained by suit in equity.
The headings, subheadings and other captions in these T&Cs are for convenience and reference only and will not be used in interpreting, construing or enforcing any of the provisions of these T&Cs.
- CUMULATIVE REMEDIES
Unless stated otherwise, all remedies provided for in these General Terms are to be cumulative and in addition to, and not in lieu of, any other remedies available to either Party at law, in equity or otherwise.
The T&Cs are binding upon any permitted successors and assignees.