Terms & Conditions

 

TERMS AND CONDITIONS 

“Seller” means Bull Moose Tube Company, a Missouri corporation. “Buyer” means the person, firm or entity to which this document is sent. Seller’s quotation, any order resulting from the quotation, and any acceptance of such order shall together constitute the “Agreement,” as that term is used herein. The only terms and conditions upon which Seller will accept orders are those set forth herein, and any order shall be accepted by  Seller only on the condition that the order is subject to these terms and conditions, which will become a part of the Agreement upon its formation. Terms or conditions in a form furnished by Buyer that are additional to or different from these terms and conditions are void. No act, omission, or delay by Seller waives any of Seller’s rights; the terms of the Agreement may be varied or waived only in a writing signed by Seller. The foregoing paragraph is a material part of the Agreement. 

  1. FORMATION. The Agreement will be formed only upon Seller’s written acceptance of Buyer’s order at Seller’s headquarters in St. Louis County, Missouri, USA. 
  2. PRICE; PAYMENT; INTEREST CHARGES. Unless otherwise stated, prices quoted are F.O.B.  Seller’s facility where the goods are located in US dollars and payment is due upon the earlier of (a) receipt of Seller’s invoice or (b) the date thirty (30) days following delivery. Each payment due from  Buyer shall be made strictly in accordance with the terms of the Agreement. Time is of the essence with respect to each payment. In the event any payment is not made when due, Seller shall be entitled to interest on any unpaid balance at a rate equal to nine percent (9%) per annum from and after the due date, to terminate the Agreement and to seek any and all additional remedies to which Seller may be entitled. Buyer agrees Seller shall be entitled to recover from Buyer all reasonable costs and expenses,  including attorney’s fees and expert witness fees, which may be incurred by Seller in a dispute between  Buyer and Seller. Buyer is not entitled to set off, recoup or withhold any payment, or any portion thereof.  
  3. DELIVERY, STORAGE. Delivery shall be made F.O.B. Seller’s facility. Unless otherwise stated, all delivery periods are estimates only. Buyer shall make necessary arrangements for the pick-up and delivery of finished goods from Seller’s facility. Seller reserves the right to arrange shipment and freight as necessary for an additional charge with the understanding that Seller accepts no liability for shipping costs. All bills of lading shall include appropriate Section 7 nonrecourse language. In the absence of agreed delivery dates, Seller may invoice Buyer and ship the goods once they are ready for shipment.  If, because of Buyer’s inability to take delivery on a mutually agreed delivery date, the goods are not shipped, stopped in transit or returned, Seller may store them for Buyer at Buyer’s expense. Title and risk of loss shall pass to Buyer in accordance with paragraph five (5) below. The date such goods are placed in storage shall constitute the date of shipment for purposes of beginning the warranty and payment periods. Buyer agrees to pay Seller’s reasonable storage charges in the event that Seller is unable to deliver goods as a result of any act or omission of Buyer. All freight, shipping and storage charges, taxes, and all customs duties, are solely for Buyer’s account irrespective of any role of Seller in arranging for or accommodating delivery. 
  4. INSPECTION. Buyer shall inspect the goods upon receipt, and shall immediately notify Seller in writing of any claims that the goods are damaged, defective, or different than identified in Seller’s quotation or acknowledgment whereupon Seller shall determine the remedy pursuant hereto. Failure to give such written notice upon receipt will constitute irrevocable acceptance by Buyer of all goods. If no inspection procedure is specified in Seller’s acknowledgement, or if inspection by Buyer is not made as specified, such inspection shall be waived and delivery or tender of delivery by Seller shall constitute  irrevocable acceptance by Buyer of all goods. 
  5. TITLE; RISK OF LOSS. Title and risk of loss of goods shall pass to Buyer upon loading of goods at  Seller’s facility, subject to any lien or charge in favor of Seller for unpaid purchase price and/or taxes.
  6. TAXES. Any and all sales, use, excise or similar tax or charge, and all penalties and/or interest thereon,  imposed by any taxing authority upon the goods, services or activities which are the subject of the  Agreement are not included in any price quoted, shall be added to the price quoted, and shall be promptly paid or reimbursed by Buyer. 
  7. SOLE AND EXCLUSIVE WARRANTY. Seller warrants only to Buyer, and to nobody else, that the goods sold by Seller hereunder will be free from material defects in material and workmanship when used under proper and normal use for a period of thirty (30) days from the date of delivery. Should the goods not conform to such warranty, and upon confirmation by Seller of the facts giving rise to such nonconformance, Seller shall, upon written notice from Buyer supplied not more than thirty (30) days following delivery of the goods, and at Seller’s option, repair or replace nonconforming goods or refund the purchase price. THE FOREGOING WARRANTY SHALL NOT APPLY TO DAMAGE OR  DEFECTS CAUSED BY DELIVERY, STORAGE, INSTALLATION, OPERATION OR  MAINTENANCE BY ANY PERSON OTHER THAN SELLER, OR BY ORDINARY WEAR AND TEAR, AND IS THE SOLE AND EXCLUSIVE WARRANTY BY SELLER IN LIEU OF ALL  OTHER WARRANTIES WHETHER WRITTEN, ORAL OR IMPLIED. SELLER MAKES NO  OTHER WARRANTY, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS AND  EXCLUDES ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A  PARTICULAR PURPOSE OR USE. 
  8. LIMITATION OF LIABILITY; NO CONSEQUENTIAL OR EXEMPLARY DAMAGES. IT IS  UNDERSTOOD AND AGREED THAT SELLER’S LIABILITY, WHETHER IN CONTRACT,  TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED  THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE PAID BY BUYER, AND UNDER  NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR SPECIAL, EXEMPLARY, INDIRECT  OR CONSEQUENTIAL DAMAGES. THE PRICE STATED IN THE AGREEMENT IS CONSIDERATION FOR LIMITED SELLER’S LIABILITY. 
  9. COMPLIANCE WITH LAWS; PATENT AND OTHER INDEMNITIES. Buyer warrants to Seller each of the following: (1) Buyer is knowledgeable about, and shall fully comply with, all laws, order,  rules and regulations applicable to the goods and transactions contemplated by this Agreement,  including all export control laws and regulations of the United States of America and all other laws regarding the use and destination of the goods that are the subject of this Agreement; (2) the goods that are the subject of this Agreement will not be sold, resold, exported or re-exported to any sanctioned  country or nation; and (3) no design, specification, drawing or pattern provided to Seller by Buyer, nor any use contemplated by Buyer of the goods supplied by Seller infringes any patent, copyright, trade secret or other intellectual property rights. Buyer agrees to defend, indemnify and hold Seller completely harmless from and against any and all claims, charges, actions or proceeding arising out of any breach of any of the foregoing warranties. 
  10. CHOICE OF LAW; EXCLUSIVE FORUM FOR DISPUTE RESOLUTION. This Agreement has been made at St. Louis County, Missouri and the Agreement shall be governed by and construed in accordance with the internal laws of the State of Missouri applicable to businesses operating wholly within that state. Notwithstanding anything in this Agreement to the contrary, the parties agree and stipulate that this Agreement shall not be subject to the United Nations Convention on Contracts for the  International Sale of Goods. Any and all claims, actions, disputes or proceedings arising out of this  Agreement shall be brought exclusively in a court having a situs in or jurisdiction over St. Louis County,  Missouri, and each party hereby irrevocably submits itself to the jurisdiction and venue of any such court and waives all objections to venue and convenience therein. 
  11. ENTIRE AGREEMENT; BINDING EFFECT; NO ASSIGNMENT. This Agreement contains and sets forth the entire agreement between Seller and Buyer with respect to the subject matter of this  Agreement. There are no promises, understandings, representations or warranties, express or implied, regarding that subject matter that are not set forth in this Agreement. This Agreement shall be binding upon, and inure to the benefit of, each of the parties and their respective successors and permitted assigns. Buyer shall not assign this Agreement, in whole or in part, without the prior written consent of  Seller. For the avoidance of doubt, the warranties granted by Seller under this Agreement may not be sold or assigned without the prior written consent of Seller.

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