THIRD PARTY TERMS AND CONDITIONS OF SALE

True Value Company is a wholesale distributor selling various products ("Seller").  You (“Buyer”) desire to purchase products from Seller.  Buyer and Seller agree that the following terms and conditions apply to each sale made by Buyer from Seller.

COMPLETE TERMS

Sales by Seller are governed by these terms and conditions.  Seller objects to any different or additional terms.  This is the final and complete expression of all terms and conditions of sale.  Any representations, promises, warranties, or statements that are not contained herein are void.  These terms and conditions cannot be modified, waived or amended except by a writing signed by both Seller and Buyer.  Seller reserves the right to change these terms and conditions at any time upon general notice on Seller’s website that the terms and conditions have changed.  Buyer’s continued purchases from Seller constitutes acceptance of the terms and conditions as changed.

PRICE AND PAYMENT:   

The price to be paid by Buyer to Seller shall be as set forth on Seller’s invoice. Prices are subject to change. Payment shall be requested on semi-monthly statement, consisting of all invoices billed since the prior statement, and requiring receipt of funds in nine days.  A finance charge of 1 and ½% per month will be applied to any unpaid balance after thirty days. Buyer agrees to pay all reasonable expenses incurred by Seller if collection efforts are necessary, including but not limited to attorney’s fees, legal and collection costs in addition to any other awards or relief which may be granted. 

Buyer shall remain solely, exclusively and unconditionally responsible for payment of all Products ordered and delivered to Buyer regardless of whether Buyer is paid or reimbursed by its individual customers.

TAXES:

All sales tax, excise taxes, or other forms of taxes levied against any transaction covered by these terms and conditions shall be paid by the Buyer over and above all other sums Buyer is or may become obligated to pay hereunder.

NO DEDUCTION:

Buyer shall not be entitled to deduct from the price invoiced to it by Seller the amount of any claim asserted by Buyer against Seller, unless such claim shall have been allowed, in writing, by Seller. 

NONCANCELLATION:

Buyer may not cancel or terminate for convenience any order made byBuyer, except with Seller’s written consent and only then upon payment of reasonable cancellation charges. 

DELIVERY:   

All products will be delivered F.O.B. point of shipment.  Every effort will be made to effect delivery at the desired time, but delivery dates are not guaranteed. 

TITLE AND RISK OF LOSS:       

Title to products and risk of loss will pass to the Buyer upon delivery to carrier at the time and place of shipment.

CLAIMS:                   

Buyer agrees to make prompt inspection of the products delivered hereunder. All claims for lost, damage or non-conforming products must be made in writing within 21 days from receipt of shipment. Failure to make any claim within such period will constitute irrevocable acceptance of the products and an admission that they fully comply with all terms, conditions and specifications of the contract. Products may not be returned without Seller’s written approval.  Approved returns must ship freight prepaid unless otherwise agreed to between Buyer and Seller.

FORCE MAJEURE:                       

Seller will not be liable for failure to deliver or delays in delivery due to causes beyond its control or the control of its suppliers.

DEFAULT:                                       

Buyer will be in default if (a) Buyer fails to pay Seller any amount when due under this agreement; (b) Buyer fails for a period of five days after receiving written notice from Seller to fulfill or perform any provisions of this agreement (other than the prior provision relating to due date of payments); (c) Buyer becomes insolvent or bankrupt, or a petition therefore is filed voluntarily or involuntarily and not dismissed within thirty days from filing; or (d) Buyer makes a general assignment for the benefit of its creditors, or a receiver is appointed, or a substantial part of Buyer’s assets are attached or seized under legal process and not released within thirty days thereafter.

Upon Buyer’s default, Seller may, at its option, without prejudice to any of its other rights and remedies, and without demand for payments past due, (a) make shipments subject to cash in advance; (b) terminate this agreement and declare immediately due and payable the obligations of Buyer for products previously shipped, notwithstanding any other provision in these terms and conditions; (c) demand reclamation; or (d) suspend any further deliveries until the default is corrected, without releasing Buyer from its obligations under this agreement.  In any event, Buyer shall remain liable for all loss and damage sustained by Seller because of Buyer’s default.

LIMITATION OF LIABILITY:        

SELLER DOES NOT MAKE, HAS NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE PRODUCTS SOLD BY SELLER, WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE.  IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER THIRD PARTY FOR THE PAYMENT OF ANY CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATIONS, LOST PROFIT.  These limitations and exclusions will apply regardless of the form of action, whether including misrepresentations, negligence or gross negligence.  Without limiting the foregoing, Seller shall have no responsibility or liability to Buyer or any other third party with respect to any of the following; (i) any liability, loss or damage caused or alleged to be caused directly or indirectly by any product, any inadequacy thereof, any deficiency or defect (latent or otherwise) of the product, or any other circumstance in connection with the product; (ii) the use, operation or performance of any product or any risks relating to it; (iii) the delivery, operation, servicing, maintenance, repair, improvement or replacement of any product.  If, and so long as, no default exists under this agreement, Buyer shall be, and hereby is, authorized during the term of this agreement to assert and enforce whatever claims and rights Seller may have against the manufacturer of the product.

SEVERABILITY AND WAIVER

Should any provision of the agreement be or become illegal or unenforceable, such provision shall be considered separate and severable from this agreement and the remaining provisions shall remain in force and be binding upon Seller and Buyer as though such provision had never been included.  Any waiver by either party of any breach of any term or condition of this agreement shall not be construed as or be deemed to be a waiver of any future breach of such term or condition.

INTEGRATION:      

 

These terms and conditions (i) constitute the entire agreement between the parties pertaining to the sale by Seller to Buyer, and the purchase by Buyer from Seller, of the products, and (ii) supersede all prior agreements, understandings, negotiations, and discussions, whether oral or written, of the parties with regard thereto.  No course of prior dealings between the parties and no usage of the trade shall be relevant to determine the meaning of this agreement. 

GOVERNING LAW:                                   

Any dispute, claim or controversy arising out of this agreement will be governed by Illinois law, without regard to choice of law rules.  The parties hereby agree and consent to the exclusive jurisdiction of the state and federal courts located in Cook County, Illinois. 

SURVIVAL:                                     

The rights and obligations of the parties under this agreement, which by their nature would continue beyond the termination or expiration of this agreement, shall survive the termination or expiration of this agreement.