1. Agreement. These “Terms and Conditions” (sometimes referred to herein as “Agreement”) apply to any sales and transactions (by way of example and not limitation, by phone, mail, via www.oldnorthwireproducts.com, www.oldnorthwire.com, or any other related or similar website, www.ebay.com or www.amazon.com) between “Seller” (Old North Wire Products, LLC) and “Purchaser” (One who purchases goods or materials from Seller).
2. Sale. Sale and delivery of Seller’s goods or materials are conditioned upon the Purchaser’s acceptance of the description and other terms and conditions of sale set forth herein. No additional or different terms offered by Purchaser shall be or become part of this order, and any such terms are hereby rejected. The terms and conditions as stated herein shall not be modified without the express written approval of Seller. Failure of Buyer to object immediately in writing to these terms and conditions shall be deemed acceptance hereof and shall constitute a waiver of any prior or subsequent terms or conditions requested by Purchaser.
3. Prices. All prices for products are subject to change or withdrawal without notice. Unless otherwise stated by Seller, prices, terms of payment and pricing policies will be those set forth in Seller’s pricing policies in effect at the time of sale. Specifically ordered goods (ie custom ordered goods) are not subject to cancellation without the express written consent of the Seller. Purchaser shall be informed as soon as possible as to any error in Seller’s pricing policy in effect at the time of Purchaser’s order. At such time, at Seller’s sole discretion, Seller may cancel any such order or give Purchaser the option to reconfirm the order under the correct pricing policies. If the goods are already shipped, and correctly fulfill the order, Purchaser shall pay additional monies or receive credit to correct the pricing error.
4. Credit Approval. All sales and shipments are subject at all times to credit approval by Seller.
5. Taxes and Fees. Prices do not include any applicable sales, use, excise or similar taxes, and the amount of any such tax which Seller may be required to pay or to collect will be for Purchaser’s account and will be invoiced to Purchaser unless Purchaser has furnished the Seller with an appropriate tax exemption certificate acceptable to the relevant taxing authority(ies). Prices do not include any applicable transactional fees, which will be invoiced to Purchaser.
6. Freight. Unless otherwise stated herein, all goods are FOB Seller’s location with all risk of loss or damage in transit being the responsibility of Purchaser. Seller reserves the right to select the method of shipment. No action taken by the Seller for the benefit of Purchaser in the shipping of goods shall be deemed to modify the express condition that all prices and risk of loss are FOB Seller’s location.
7. Returns and Cancelled Orders.
a. The return of any goods or materials is subject to Seller’s prior written approval, whether such goods or materials were ordered in excess of the Purchaser’s requirements, by mistake or otherwise. Returns must be requested within thirty days of the date Purchaser receives any goods or materials. All returned goods or materials must be in resalable condition, undamaged, unused, and in standard inventory packages where applicable. At Seller’s option all returned material will be subject to a restocking charge, freight, and Seller’s other Incidental expenses (including but not limited to expenses related to damage incurred by shipment back to Seller and materials not in resalable condition, undamaged, and in standard inventory packages), with credit based on the price in effect at time of original sale. Seller is responsible for freight shipping charges of returns to Seller and such shipment shall be FOB Seller’s location. Seller’s credit given and return receipts shall be conclusive of the amount of credit given by Seller for returned material unless Purchaser objects in writing within ten days of the date of the account statement on which the credit appears.
b. Orders requested to be cancelled that are not pre-orders may be cancelled or held at any time before shipment without fee. Pre-orders that are cancelled more than 3 weeks before scheduled shipment may be cancelled subject to a 3.5% administrative fee. Pre-orders that are cancelled less than three weeks before shipment are subject to a 15% cancellation and restocking fee.
8. Unsuitable, Unsatisfactory or Damaged Materials. Unsuitable or unsatisfactory goods or materials must be available for inspection by the Seller to entitle the Purchaser to any adjustment or credit. Purchaser must comply with Seller and shipping companies requests and policies, including but not limited to keeping such goods for inspection until any issue is resolved. The Seller is not responsible for damage to any product incurred once the product is removed from the Seller’s premises. All goods and materials must be properly secured by the Purchaser before leaving the Seller’s premises so as to avoid damage to the goods or materials or to the Seller or the Seller’s premises. Any request for any adjustment or credit due to unsuitable, unsatisfactory or damaged goods or materials must be made within three business days of receipt. Seller’s unconditioned acceptance of goods or materials from shipping or freight company is conclusive of Seller’s acceptance of such goods as in satisfactory condition.
9. Corrections. Seller reserves the right to make corrections caused by typographical, clerical, or other inadvertent mistakes, or from charges necessary because of incomplete or inaccurate information received from Purchaser.
10. Warranty. SELLER MAKES NO REPRESENTATIONS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, A WARRANT OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) IN CONNECTION WITH THE MANUFACTURE OR SALE OF GOODS OR MATERIALS. ALL GOODS AND MATERIALS ARE SOLD SUBJECT TO PURCHASER’S INSPECTION AND JUDGMENT, IN AN AS IS CONDITION, AND USAGE AND ACCEPTANCE THEREOF IS DONE AT PURCHASER’S SOLE RISK. NO EMPLOYEE, DISTRIBUTOR, OR REPRESENTATIVE IS AUTHORIZED TO CHANGE THIS IN ANY WAY OR GRANT ANY WARRANTY ON BEHALF OF SELLER.
The absence of Seller’s warranty is not intended to limit any warranties by a manufacturer which are available to Purchaser. The Seller shall not be responsible for any damage resulting to or caused by the products by reason of improper storage, alteration of products, neglect or abuse, or attempt to use its products for other than the customary usage or operate its products intentionally or otherwise at other than design specification or rated capacity.
THE PURCHASER SHALL HAVE NO REMEDY AGAINST SELLER, THE EXCLUSIVE REMEDY OF PURCHASER, WHETHER IN CONTRACT, TORT, UNDER ANY WARRANTY, OR OTHERWISE, SHALL BE AGAINST THE MANUFACTURER, AND THAT REMEDY, IF ANY, SHALL BE IN LIEU OF ALL OTHER REMEDIES, SELLER SHALL NOT BE LIABLE FOR COST OF REMOVAL AND/OR INSTALLATION OR BE RESPONSIBLE FOR DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY PRODUCT.
11. Bankruptcy or Insolvency. In the event of any voluntary or involuntary proceedings against the Purchaser in bankruptcy or insolvency or in the event of any proceedings for the appointment of a receiver, trustee, or assignee for the benefit of creditors of the property of the Purchaser, Seller may immediately assert any of its legal rights with respect to the contract or at Seller’s options, cancel the same unless Seller received reasonable assurances of Purchaser’s ability to perform.
12. Payment. Purchaser agrees to pay in U.S. Currency the full purchase price for all goods, materials, equipment and/or services purchased from Seller within thirty (30) days of the billing date shown on each invoice or monthly account statement. If Purchaser does not make a full payment within thirty (30) days of the billing date on any invoice or monthly account statement, the Purchaser shall be subject to a service charge of two percent (2%) per month (annual percentage rate of 24%) where permitted by applicable state and federal law.
Otherwise, service charge shall be the maximum amount permitted by law. Should the Purchaser default on payment of any part of any money due under this account, the whole amount remaining unpaid shall, at the option of the Seller, immediately become due and payable. All orders other than cash, certified check, or credit card must pay all charges due and owing on account before delivery may be scheduled. Checks returned to Seller for insufficient funds will have a NSF fee added to the amount of $30.00.
13. Recovery of Legal Fees and Costs. In the event it becomes necessary for Seller to file a lawsuit to enforce any of the terms and provisions hereof and Seller is granted a judgment wholly or partly in its favor, Seller shall be entitled to recover, in addition to all other remedies or damages, reasonable attorney’s fees and court costs incurred in such lawsuit and for all proceedings brought to collect on said judgment.
14. Performance. Seller shall not be held responsible, including but not limited to consequential damages, for any delay in performance in whole or in part from or made impossible or impracticable by any cause beyond the control of Seller, including, but not limited to, fire; explosion; accident; breakdown; strike; adverse weather conditions; failure or refusal of any carrier to transport materials; delay in transport thereof; failure of any source of supply to honor orders within the time period customarily or heretofore experienced by Seller in the trade; shortage or lack of material, fuel, power or transportation media; sale or transfer of manufacturing facilities; embargo; any act of God; any action or request of any governmental authority; failure or refusal of any carrier or contractor; or any contingency or delay or failure or cause beyond Seller’s control.
15. NonWaiver. Any waiver or failure of Seller to require strict compliance with the provisions of this order in any respect shall not be deemed a waiver of Seller’s right to insist upon strict compliance in other respects or thereafter in the same respect.
16. Indemnity. Purchase agrees to indemnify, defend and hold harmless Seller against any and all claims, costs, damages, expenses and attorney’s fees arising in any way from any contract or agreement between the parties or from any dispute between the parties in any way related to an order Purchaser has place with Seller.
17. Governing Law and Venue. This Agreement and any dispute or question arising out of it shall be governed by and construed and enforced in accordance with the laws of the State of North Carolina, without regard to conflicts of laws principles. Jurisdiction shall be in the state of North Carolina for the resolution of any legal action arising out of the Agreement and the venue for such legal action shall lie in Buncombe County, North Carolina.
18. Headings. The headings and other captions in this Agreement are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of this Agreement.
19. Severability. Should any term or condition above, or any portion thereof, be invalid or inapplicable, the balance of such terms or conditions shall govern.