Terms of Sales
Last Update: June 6, 2023
PLEASE READ THESE TERMS OF SALE (“Terms”) CAREFULLY. THEY MATERIALLY AFFECT THE PARTIES’ OBLIGATIONS. BLENDED WAXES, INC. (“SELLER”), WILL ACCEPT ORDERS AND DO BUSINESS ONLY ON THE TERMS AND CONDITIONS BELOW.
1. ENTIRE AGREEMENT. These Terms contains all of the terms and conditions of the agreement between Seller and the buyer (“Buyer”) of the goods (“Products”) or services (“Services”) to be sold or provided to Buyer, to the exclusion of any other statements and agreements, and to the exclusion of any terms and conditions incorporated in Buyer’s order or other documents of Buyer. Seller’s acceptance of Buyer’s order is expressly conditioned on Buyer’s acceptance of the terms and conditions contained herein, and Buyer, upon placing an order, accepts all the terms and conditions without modification. No alteration, waiver, modification of or addition to these Terms will be binding on Seller unless set forth in writing and specifically agreed to by an authorized officer of Seller. No course of dealing, usage of trade or course of performance will be relevant to supplement or explain any terms used in these terms and conditions. Seller expressly rejects any and all additional or contradictory terms in any purchase order , email, acknowledgment, confirmation, or other document issued by Buyer pertaining to the Products or
Services or these Terms. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products or Services covered hereby, the terms and conditions of said contract
shall prevail to the extent they are inconsistent with these Terms.
2. SHIPMENT AND PAYMENTS.
a) Products. Shipment of the Products is F.O.B. Point of Shipment Freight Collect, unless otherwise specified. The risk of loss or damage to the Products passes to Buyer upon shipment. If shipping arrangements are not specified by Buyer, Buyer authorizes Seller to make arrangements for shipment. Unless otherwise agreed by Seller in writing, Buyer is responsible for all shipment costs. Shipments and deliveries hereunder will at all times be subject to the approval of Seller’s Credit Department. If Buyer fails to make any payments in accordance with Terms or is otherwise in default of these Terms, Seller may at its sole option: (a) defer further shipments until Buyer reestablishes satisfactory credit, (b) cancel any unshipped portion of the order and invoice Buyer for incurred costs and reasonable profit without any liability on the part of Seller for failure to ship, or (c) make shipment to Buyer on a cash on delivery (“C.O.D.”) or cash in advance basis. Each of the foregoing remedies shall be in addition to any other rights and remedies available to Seller
b) Services. Unless as otherwise set forth in writing, Seller will perform the Services set forth in the applicable order upon Buyer’s payment of the fees for such Services.
3. DELIVERY OF PRODUCTS. Seller will use reasonable commercial efforts to fill orders within the time stated, but the stated delivery date is approximate only and Seller reserves the right to readjust shipment schedules without liability. Acceptance by Buyer of the Products waives any claim for loss or damage resulting from a delay, regardless of the cause of the delay. Except as otherwise expressly agreed to by Seller, Seller will not be responsible for freight, transportation, insurance, shipping, storage, handling, detention, steam, demurrage or similar charges, which are the responsibility of Buyer. Weights and quantities as determined at Seller’s plant or other source of supply will be conclusive in the absence of manifest error.
4. CHANGES; CANCELLATION. Requests by Buyer for cancellation, termination, modification, suspension, or delay in shipment of Buyer’s order are subject to acceptance or rejection by Seller in Seller’s sole discretion. Without limiting the foregoing, such requests will not be accepted on terms that do not fully indemnify, reimburse, and make Seller whole from and against any loss associated therewith. Such indemnity must include recovery of all costs incurred, including normal indirect and overhead charges, and a normal profit. Seller reserves the right to make safety changes without Buyer approval to address any actual or potential safety defect in any Products or Services, or changes in governmental regulations or standards. Seller will provide notice to Buyer of any material change within a reasonable period of time thereafter.
5. PAYMENT TERMS.
a) All prices are subject to change without notice. Prices for the Products are determined at the time of shipment without regard to Customer’s purchase orders; prices for the Services are determined at the time of invoicing. Final price posted to Seller’s invoice is the final price. Seller expressly rejects any and all additional or contradictory prices in any purchase order, email, acknowledgment, confirmation, or other document issued by Buyer.
b) Invoiced quantity is subject to final actual weight shipped at time of shipment. Final invoiced quantity is based on actual produced weight and Seller expressly rejects any and all additional or contradictory weight in any purchase order, email, acknowledgment, confirmation, or other document issued by Buyer.
c) Any unshipped balances on purchase orders will be invoiced to and paid by Buyer at prices in effect at the time of shipment.
d) Purchase orders that are available to be shipped but have been delayed by Buyer (whether due to lack of payment, request of hold, or other Buyer specific request) will accrue storage fees. Unshipped balances will accrue weekly storage fees at a cost of $20/pallet/week.
e) Prices are stated and payable in U.S. dollars. Unless otherwise specified, payment terms are cash on delivery (“C.O.D.”) or cash in advance, no cash
discount, with a fifteen percent (15%) per annum finance charge on overdue amounts (but not to exceed the maximum contract rate permitted by law).
f) Buyer shall reimburse Seller for any expenses incurred by Seller in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
6. TAXES AND FEES. Buyer shall pay all present and future sales, excise, privilege, use or other taxes, customs duties, and all other fees or other costs, imposed by any federal, state, foreign or local authorities arising from the sale, purchase, transportation, delivery, storage, use or consumption of the Products and Services or will, if applicable, provide Seller with an appropriate exemption certificate. Seller shall be under no obligation to contest the validity of any such taxes or to prosecute any claims for refunds or returns.
7. WARRANTY.
a) Product Warranty. Seller warrants that at time of shipment, the Products conform to Seller’s Product Data Sheets in effect at such time and with the Certificate of Analysis provided with the Products. In the event that the Product does not meet the express limited warranty contained in this Section 7(a), Buyer must promptly notify Seller of a breach of this warrant within seven (7) days of receipt of the Product. Buyer must provide proof of nonconformity along with an unmodified sample of the Product in question at Buyer’s expense. Seller will make commercially reasonable effort to work with Buyer to determine the origin of nonconformity. If Seller determines that nonconformity likely occurred prior to shipment, Seller will issue a credit to the Customer on account. Seller may require the Product to be returned to Seller. The return of nonconforming Products will be at Seller’s expense, provided that Buyer must follow Seller’s return instructions. Buyer’s sole and exclusive remedy for a breach of the warranty (assuming conditions above are met nonconformity occurred prior to shipment) shall be a credit towards the non-conforming Product. If Seller, in its sole discretion, determines that nonconformity likely occurred after shipment, the warranty shall not apply, and Seller is not responsible for such nonconformity.
b) THE FOREGOING WARRANTIES ARE THE ENTIRE AND EXCLUSIVE WARRANTY REGARDING ANY PRODUCTPURCHASED PURSUANT TO THESE TERMS. ALL SERVICES ARE PROVIDED TO YOU “AS IS” AND WITHOUT WARRANTY. ANY ADVICE OR ASSISTANCE PROVIDED BY SELLER TO BUYER IS PROVIDED ONLY AS A COURTESY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER, ITS AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY. BUYER IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE PRODUCT(S) AND SERVICE(S) ARE SUITABLE FOR BUYER’S INTENDED USE, AND FOR OBTAINING ANY NECESSARY GOVERNMENTAL REGISTRATIONS
AND APPROVALS FOR BUYER’S PRODUCTION, MARKETING, SALE, USE AND/OR TRANSPORTATION OF FINISHED GOODS USING OR INCORPORATING THE PRODUCT(S) OR SERVICE(S). SUCH WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER AND ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, ARE EXPRESSLY DISCLAIMED. 8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES: FOR ANY INCIDENTAL CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOSS OF USE, OR LABOR COSTS) ARISING FROM (a) THE SALE, PURCHASE, CONSUMPTION, OR USE OF THE PRODUCTS OR SERVICES; (b) PRODUCTS THAT HAVE BEEN INCORPORATED INTO OR USED WITH ANOTHER PRODUCT; (c) ANY BREACH OF THESE TERMS AND CONDITIONS; OR (d) FOR ANY OTHER CAUSE WHATSOEVER, WHETHER BASED ON WARRANTY (EXPRESSED OR IMPLIED) OR OTHERWISE BASED ON CONTRACT, TORT OR OTHER THEORY OF LIABILITY, AND REGARDLESS OF ANY ADVICE OR REPRESENTATIONS THAT MAY HAVE BEEN RENDERED BY SELLER CONCERNING THE DESIGN, MANUFACTURE, SALE, OR USE OF THE PRODUCTS OR SERVICES. SELLER’S TOTAL AGGREGATE LIABILITY TO BUYER FOR ANY AND ALL DAMAGES ARISING OUT OF OR RELATED TO THE PRODUCTS, THE SERVICES, OR THE SUBJECT MATTER OF THIS AGREEMENT SHALL NOT EXCEED THE PRICE PAID FOR THE APPLICABLE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM.
9. NOTIFICATION OF CLAIMS; SHORTAGE; ACCEPTANCE OF PRODUCTS. Buyer must notify the carrier and Seller within seven (7) days of the receipt of Products of any damage to, or loss of, the Products in transit. Buyer must notify Seller of any shortage within (7) days of the receipt of Products. Failure by Buyer to give such notification will result in a waiver of all claims which Buyer may otherwise have against the Seller for loss or damage resulting from, or during, transit. As to loss or damage that is apparent upon delivery, Buyer shall: (a) mark the delivery receipt with appropriate exceptions describing the damage before signing, (b) request the carrier to inspect the loss or damage, and (c) promptly and separately notify Seller of such loss or damage. If delivery is made in installments, claims which Buyer may have as to any one installment do not relieve Buyer of the obligation to accept delivery of the remaining installments, or permit Buyer to cancel or rescind the remaining installments. Any rightful rejection of the Products by Buyer shall be made within a commercially reasonable time by written notice to Seller, but in any event within fifteen (15) days following the date of receipt of the Products.
10. DESCRIPTIONS. All weights, measurements, dimensions, drawings, samples, capacities, specifications and other particulars of the Products or Services
provided by Seller, whether contained in photographs, catalogs, product data sheets, specifications, price lists, advertising material or otherwise, are only approximate and are included solely for Buyer’s guidance. Such particulars do not form part of the contract, and deviations therefrom or subsequent changes in design are not grounds for non-acceptance of the Products and do not constitute a breach of these terms and conditions.
11. CONFIDENTIALITY. All documentation supplied by Seller to Buyer is for internal use between the parties. Buyer shall not disclose such documentation or any part thereof to any person, other than such of Buyer’s employees and agents who need to know the information contained therein, unless prior written consent is obtained from Seller. Buyer shall require such employees and agents to keep confidential such information, and shall indemnify Seller in the event of a breach of this provision by its employees or agents.
12. INFRINGEMENT.
a) Seller at its own expense will defend and hold Buyer harmless from and against all damages, costs and expenses arising from any valid claim of infringement by a third party with respect to any patent or other intellectual property rights (collectively, the “Intellectual Property Rights”) caused by Products originally manufactured by Seller, provided Buyer (a) has not modified or combined such Products, (b) gives Seller immediate notice in writing of any claim or commencement or threat of suit, and (c) permits Seller to defend or settle the same, and gives all immediate information, assistance and authority to enable Seller to do so. Seller shall have no liability as to any Products or part thereof that are manufactured or modified by Buyer or a third party, or that are manufactured or modified by Seller in accordance with Buyer’s specifications. In the event any such originally manufactured Products are held to infringe an Intellectual Property Right or if Buyer’s use thereof is enjoined, Seller will, at its expense and option: (i) obtain for Buyer the right to continue using the Products, (ii) supply non-infringing Products, (iii) modify the Products so that they become non-infringing, or (iv) refund the then market value of such Products. In no event shall Seller’s liability exceed the sale price of the infringing Products. THE FOREGOING REPRESENTS SELLER’S ENTIRE AND EXCLUSIVE OBLIGATION WITH RESPECT TO ANY CHARGE OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT AND IS IN LIEU OF ANY STATUTORY WARRANTY RELATING TO INFRINGEMENT.
b) Buyer hereby agrees to indemnify, defend and hold harmless Seller, its officers, agents, employees, affiliates, successors and assigns (“Seller’s Indemnified Parties”) from and against any and all direct and indirect claims, debts, actions, causes of action, liabilities, losses, suits, demands, fines, penalties, judgments, omissions, damages or expenses whatsoever, including, without limitation, attorneys’ fees and costs (“Damages”), incurred by or against Seller or any of Seller’s Indemnified Parties due to or arising out
of, in connection with, resulting from or relating to (i) misrepresentations or breaches of the warranties, representations, covenants or agreements contained in these Terms or any law by Buyer or any of Buyer’s officers, employees, affiliates, representatives, agents, successors or assigns (“Buyer’s Parties”), or (ii) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Buyer or any of Buyer’s Parties, or (iii) losses, damages or injuries caused by Buyer’s products, Buyer’s specifications, designs, approvals or instructions provided to Seller, or due to improper application or use of the Products or otherwise.
13. FORCE MAJEURE. Seller will not be liable for any loss, damage or expense arising or relating to any failure or delay (including without limitation any failure to supply or delay in supplying Products or Services to Buyer) caused by strikes or labor difficulties, lockouts, acts or omissions of any governmental authority or of Buyer, insurrection, riot, war, fires, floods, Acts of God, breakdown of essential machinery, accidents, embargoes, cargo or material shortages, delays in transportation, lack of plant capacity, inability to obtain labor, materials or parts from usual sources or otherwise due to causes beyond Seller’s reasonable control. In the event of any such delay, performance will be postponed by such length of time as may be reasonably necessary to compensate for the delay.
14. GENERAL. No modification or waiver of these terms and conditions or any of its provisions is valid unless expressly agreed to by Seller in a signed writing. No waiver by Seller of any default under these terms and conditions is a waiver of any other or subsequent default.
a) The unenforceability or invalidity of one or more of the provisions of these terms and conditions will not affect the enforceability or validity of any other provision of these terms and conditions.
b) These terms and conditions are governed by and shall be construed in accordance with the laws of the State of Wisconsin, , without giving effect to its conflict of laws principles. Venue will be exclusively in Milwaukee County, Wisconsin with respect to any dispute arising under these terms and conditions, unless otherwise agreed by Blended Waxes in its sole discretion.
c) Buyer shall not delegate or assign its rights or obligations hereunder, in whole or in part, without Seller’s prior written consent. Any attempted delegation or assignment by Buyer without such consent shall be void.
d) Seller shall at all times be an independent contractor and Buyer shall make no express or implied representations to the contrary.
e) To the extent Buyer accesses Seller’s website to purchase the Products or Services, Buyer agrees to comply with Seller’s Terms of Use.
15. PROVISIONS FOR INTERNATIONAL TRANSACTIONS. The following provisions apply to shipments to customers located outside the United States.
a) The 1980 United Nations Convention on Contracts for the International Sale of Goods (CIGS) shall not apply.
b) Except as otherwise specified, terms of delivery are Ex-Works (within the meaning of INCOTERMS 2000) and all customs fees, import duties, cargo insurance, taxes and other charges imposed on or relating to the purchase or sale of the Products shall be paid by Buyer in addition to the stated price.
c) Except as otherwise specified, Buyer is solely responsible for all international shipment costs, including without limitation, shipment costs, cargo fees, customer fees, import taxes, and other applicable statutory or regulatory fees and assessments.
d) Except as otherwise specified, payment shall be made by issuance to Seller of an irrevocable letter of credit which (i) is issued and confirmed by a U.S. bank acceptable to Seller, (ii) is governed by the Uniform Customs and Practice for Documentary Credits (UCP 600) and otherwise acceptable in form and substance to Seller, and (iii) provides for payment to Seller of the full amount of the purchase price plus prepaid freight in U.S. dollars upon presentation by Seller of sight drafts, Seller’s invoice and such other documents as shall be required by the letter of credit. All banking and other charges for such letter of credit shall be for the account of Buyer.
e) Prices include Seller’s standard commercial export packaging which may vary depending on whether shipment is made by air, land or sea. Buyer will bear any additional expenses required to satisfy Buyer’s specifications. Packages will be marked in accordance with Buyer’s instructions, if any. Seller shall furnish packing lists and such other information as may be necessary to enable Buyer’s agent to prepare documents required for export shipment. Buyer shall supply Seller with all necessary information and assistance for the most expeditious clearance of such shipment through customs.
f) All shipments hereunder are subject to compliance with the U.S. Export Administration Act, as amended, regulations thereunder and all other U.S. laws and regulations concerning exports. Buyer agrees to comply with all such laws and regulations and any other applicable laws and regulations of foreign countries, concerning the use, disposition, re-export, sale, and resale of the Products and Services provided hereunder.
If you have any questions regarding these Terms of Sale, please contact us at info@blendedwaxes.com.