TERMS & CONDITIONS — AMERISAN
Please read these terms and conditions carefully. They contain important information concerning customer’s legal rights, warranties, obligations and available dispute resolutions remedies. They also provide that if Amerisan is unable to resolve any matter to Customer’s satisfaction, Customer will exclusively use arbitration to decide the dispute and Customer will bring its claim solely on an individual basis and not in a class action or representative proceeding. Except in those instances where Amerisan and a Customer enter into a separate written contract for the purchase of products and/or services providing for separate terms of sale, the following terms and conditions will apply.
1. Terms and Method of Payment
a. All orders are subject to approval and acceptance by SELLER. No order accepted by SELLER shall be subject to cancellation, termination, suspension, change, reduction, cutback or other modification except with SELLER’S prior written consent.
b. Amerisan accepts checks, money orders, Visa, MasterCard, and American Express. For Customers with established Amerisan credit, payment terms are net thirty (30) days from the date of shipment or pick-up of products. Amerisan’s preferred method for payment is via Electronic Funds Transfer (“EFT”). All credit extended by Amerisan and the limits of such credit, is at Amerisan’s sole discretion, and may be reduced or revoked by Amerisan at any time, for any reason. As a condition for the continued extension of credit, Customer agrees to provide Amerisan with current credit information and the latest annual financial statement within five (5) business days following request by Amerisan. Amerisan reserves the right to charge a convenience fee for late payments. Amerisan further reserves the right to charge Customer a late payment fee at the rate of one and one-half percent (1-1/2%) of the amount due for each month or portion thereof that the amount due remains unpaid, or such amount as may be permitted under applicable law. Anticipation and cash discounts are not allowed. Export orders are subject to special export payment terms and conditions identified in Section III. All payments must be made in U.S. dollars. Amerisan has the right of set-off and deduction for any sums owed by the Customer to Amerisan.
If the Customer fails to make payment within thirty (30) days of shipment or pick-up, or fails to comply with Amerisan’s credit terms, or fails to supply adequate assurance of full performance to Amerisan within a reasonable time after requested by Amerisan (such time as specified in Amerisan’s request), Amerisan may defer shipments until such payment or compliance is made, require cash in advance for any further shipments, demand immediate payment of all amounts then owed, elect to pursue collection action (including without limitation, attorneys’ fees and any and all other associated costs of collection), and/or may, at its option, cancel all or any part of an unshipped order. If Customer fails to comply with these payment terms, Amerisan may, at its sole discretion, and without notice, immediately terminate any agreements it has with Customer. Upon such termination all amounts owed by Customer to Amerisan shall become immediately due and payable.
Amerisan has the right, at any time and in its sole discretion, to immediately change the terms of any credit extended to Customer if: (i) there is a material change in Customer’s financial capability or creditworthiness; (ii) Customer enters into or signs an agreement regarding any Change of Control; or (iii) a trustee, receiver or examiner is appointed for Customer or its affiliates or subsidiaries or Customer’s plan of reorganization is confirmed by a U.S. Bankruptcy Court. “Change of Control” means any (x) sale, lease, or other disposition of all or substantially all of Customer’s assets; (y) transaction or series of related transactions (by stock sale or otherwise) in which any person or entity becomes the beneficial owner, directly or indirectly, of more than 50% of Customer’s voting control; or (z) merger or consolidation involving Customer. Additionally, Customer, and each of its subsidiaries and affiliates, agrees to provide to Amerisan proper authorization necessary for Amerisan to request any financial information from third parties. Customer hereby unconditionally guarantees payment as a primary obligor of, as provided herein, all purchases made by Business Customer, its subsidiaries and affiliates. Each of the Customer’s subsidiaries and affiliates purchasing from Amerisan are jointly and severally liable for all purchases made by Customer and its subsidiaries, and Customer is also acting as agent for such subsidiaries and affiliates. Business Customer further agrees to defend, indemnify and hold harmless Amerisan from any and all claims, injuries, damages, losses or suits, including, without limitation, attorneys’ fees and costs, arising out of, or in connection with any attempt to disgorge or recover payments to Amerisan made on behalf of Business Customer by a subsidiary and affiliate on the grounds that such payment was improper, unauthorized, or constituted a fraudulent transfer.
c. Prices do not include federal, state or local taxes, duties or other levies, now or hereafter enacted, applicable to the items deliverable under the sales order or invoice (hereinafter called ITEMS), which taxes, duties, or other levies will be added by SELLER to the sales price and will be paid by BUYER unless BUYER provides SELLER with a proper exemption certificate.
d. Packaging for commercial shipment is included in the contract price. Any special packaging, crating or shipping instructions must be noted on BUYER’S original order and acknowledged by SELLER.
2. Title and Delivery
The ITEMS shall be delivered FOB SELLER’S plant, the title of the Products remain the property of AMERISAN until paid for in Full by the BUYER. The risk of the Products transfers from the SELLER to the BUYER upon date of delivery. All items from the Amerisan catalog may be combined to obtain prepaid freight, regardless of the shipping point. Freight is prepaid on all orders totaling $400 net or more to one destination within the contiguous 48 United States (see point 6 (b)). Freight on prepaid International Shipments will be paid on normal ground transportation from shipping point to the consignee. When the order qualifies for prepaid freight, Seller shall have the right to select the means of transportation. If Buyer requires a means of transportation other than the one normally selected by Seller, any extra cost incurred by reason of using such other means shall be paid by Buyer. Any accessorial charges incurred because of a customer request will be the responsibility of the requester. Any items backordered from a prepaid shipment will be forwarded prepaid. Items backordered from ex works shipments will be forwarded ex works.
3. Inspection and Acceptance
Thoroughly inspect all shipments. Do not accept a damaged or short shipment until exception is noted on the freight bill. Copy of freight bill and discrepancy noted must be sent to SELLER within 3 business days of receipt of goods. BUYER will be held responsible for all shipments with freight bills signed free and clear. If concealed damage is discovered, contact the freight company immediately for inspection. Concealed damage must be reported to the carrier upon receipt. All damaged goods and shortages that are not properly documented and reported upon receipt become the sole responsibility of the BUYER.
4. Patent Indemnification
SELLER shall protect and indemnify BUYER and its directors, officers, agents and employees against all claims for damages or profits, including all reasonable costs incurred by BUYER in connection therewith, arising from infringement of patents, copyrights, trademarks or misappropriation of designs.
5. Returns and Cancellations
No returns will be accepted without an authorization number from AMERISAN Customer Service. An authorization number may be obtained by calling (888) 586-7990 and requesting a Return Authorization from Customer Service. All requests for return must occur within 30 days of the original shipment of the product unless special authorization is obtained. Merchandise returned without authorization will be refused and returned to the customer, freight collect. Any merchandise must be returned freight prepaid and is subject to a minimum of 15% restocking charge. All returned goods must reference the original invoice and purchase order. Returned goods must be in original standard packs and in unused saleable condition. Special Order Products and discontinued items will not be accepted for exchange or return. This includes any articles custom imprinted or modified for purchaser.
a. All prices are list and subject to change without notice. Orders from authorized accounts will be accepted with the understanding that prices are those in effect at the time of shipment. These prices are exclusive of all sales taxes which may be levied by State, Federal, or City governments.
b. Orders less than $400.00 net will be charged the shipping fee. Orders over $400.00 are eligible for Free Ground Shipping. Free Shipping does not include Next Day Air, 2nd Day or 3rd Day Select. Certain items that normally ship from the manufacturer may not qualify and custom products such as all items numbers that are prefixed with an (S). This offer is only good on orders that can be shipped Ground in the 48 contiguous states. Based on dimensional weight, we will determine the most expedient and efficient means of shipment – be it UPS or LTL (Less Than Truckload). Customers do have the option to use their own freight carriers if they prefer. Please note on your PO the Carrier and applicable Account number associated with that carrier. Amerisan will schedule pick up with the Carrier from Amerisan. Orders under $400 that ship via LTL are subject to a Flat Rate of $76.00 per order.
c. Orders calling for less than a standard case pack will be charged $5.00 net each per broken case.
e. All orders of custom products are subject to shipment of plus or minus 10% of the quantity ordered.
f. No ITEMS to be furnished hereunder shall be exported by BUYER unless SELLER is first notified in writing of the intention to so export and all applicable regulations and licenses are complied with and obtained by BUYER or its customer.
g. SELLER hereby certifies that the goods described herein of its manufacture will be produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act, as amended, and all order of the United States Department of Labor issued under Section 14 thereof. SELLER further certifies that it is in compliance with the Equal Employment Opportunity clause in Section 202, paragraphs 1 through 7 of Executive Order 11246, as amended, relative to equal employment opportunity and the implementing Rules and Regulations of the Office of Federal Contract Compliance.
h. SELLER is not responsible for typographical errors made in any of its publications or for stenographic or clerical errors made in preparation of quotations, sales orders, acknowledgments, or invoices. All such errors are subject to correction.
i. This agreement shall be governed by the laws of the state of Pennsylvania.
j. SELLER’S “Terms and Conditions” as set forth above shall govern all transactions. Any inconsistent terms of BUYER wherever set forth and whether oral or written, shall not be binding upon SELLER unless agreed to by SELLER in writing. No waiver or exception to any of the hereinabove enumerated conditions or any of the special terms and provisions relating to any order shall be binding upon SELLER unless agreed to in writing by SELLER.
k. SELLER reserves the right to change or discontinue the color, design, component content or price of any ITEMS in SELLER’S catalog or published price lists without prior notice at any time. The specifications and prices listed in this document are subject to change. Carlisle does not assume responsibility for typographical errors.
l. SELLER & BUYER agree to protect, defend, indemnify, hold harmless each other, including, their respective officers, directors, employees and agents, from and against any and all lawsuits, claims, demands, actions, proceedings, liabilities, damages, fines, penalties, imposts, fees, costs, losses, and expenses (including, but not limit to, reasonable attorney fees and costs), regardless of the cause or alleged cause thereof, and regardless of whether such matters are groundless, fraudulent or false, brought against or incurred by or on behalf of BUYER and/or Products:
Amerisan LLC warrants that its products are protected against factory defects and faulty performance for a period of 12 months. Amerisan LLC will replace at no charge to the customer all Amerisan Products determined faulty or proven to have material defects. This Warranty does not cover any and all product failures caused by in-ordinary or unusual handling, cleaning & processing for re-use, extended life-cycle re-use, extreme environmental-climate exposure, or end-user abuse. This Warranty is expressly in lieu of all other warranties, expressed or implied, including the warranty of merchantability or fitness for a particular purpose; and that no other remedy other than replacement of Amerisan LLC shall be available to the Buyer including incidental or consequential damages.
8. Force Majeure
Neither party shall be liable for delays due to causes not reasonably foreseeable which are beyond reasonable control, such as acts of God, acts of civil or military authorities, terrorism, fires, strikes, floods, epidemics, war or riots. In the occasion of any such delay caused by such an event of force majeure, the date of the performance may be extended for a period of time equal to the time actually lost by reason of such delay, without cost to either party. Whenever Supplier has knowledge that any actual or potential force majeure or labor dispute is delaying or threatens to delay the timely performance of this PO, Supplier shall give immediate notice to Purchaser. Material changes in commodity price shall not be considered force majeure.
9. Severability and Survivability
If any provision of these Terms and Conditions shall be invalid or unenforceable with respect to any party, the remainder of the provisions, or the application of such provision to persons other than those as to which it is held invalid or unenforceable, shall not be affected and each provision of the remainder of the provisions shall be valid and be enforceable to the fullest extent permitted by law. All of the Terms and Conditions of this PO shall survive the provision of Services and the expiration or termination of this PO.