In these Wholesale Terms and Conditions (these “Conditions”): (a) “Buyer” means the individual or entity who buys or agrees to buy the Goods from the Seller; (b) “Seller” means NSCO LLC, d/b/a Need Supply Co., a Virginia limited liability company; (c) “Goods” means the goods (or any part of them) set out in the Order; and (d) “Order” means the order placed by the Buyer for the supply of Goods.
2. The Order, Order Confirmation and Contract.
The Order constitutes an offer by the Buyer to purchase the Goods from the Seller in accordance with the terms of the Order and these Conditions, and shall only be deemed to be accepted when the Seller issues written acceptance and confirmation of the Order upon only these Conditions, at the exclusion of any different or additional terms and conditions (the “Order Confirmation”), at which point the Buyer and Seller’s acceptance and these Conditions shall be the legally binding obligations of the parties (the “Contract”).
3. Entire Agreement.
The Contract constitutes the entire agreement between the parties with respect to the subject matter contained in the Contract, and the contents of Seller’s sales literature and website shall not form part of the Contract, nor shall such items constitute representations or warranties by the Seller. These Conditions apply to the Contract at the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by course of dealing, course of performance or usage of trade. Any different or additional terms and conditions which Buyer purports to apply to the Contract under any purchase order, order confirmation, specification or other document shall be deemed rejected by the Seller and shall be null, void and of no legal force or effect whatsoever unless otherwise specifically agreed to by the Seller in writing.
4. Changes to the Goods.
The Seller reserves the right to make any changes to the specifications of the Goods which are required to conform to any applicable laws and/or recommended commercial practice. As a result of continuing product improvement and development, the Goods may vary from that shown on the Seller’s website and in its sales literature.
The price for the Goods shall be the price set out in the Order Confirmation. The Seller reserves the right to adjust its prices from time to time, although this will not affect the price of any Goods ordered prior to the price adjustments. All prices quoted by the Seller are exclusive of all applicable taxes and tariffs, which shall be charged to the Buyer at the prevailing rate at the time of delivery, and of all shipping and delivery charges incurred by the Seller for the shipment and delivery of the Goods, which shall be charged to Buyer at the time of delivery.
6. Invoices and Payment Terms.
Payment for each Order shall be due in accordance with the terms set out in the corresponding Order Confirmation, and payment terms are subject to change without notice. If the Order Confirmation does not contain any payment terms, then full payment for the corresponding Order must be made in advance of the delivery of the Goods to the Buyer.
Time shall be of the essence in respect of payment. The Buyer shall pay all amounts due under the Contract in full without any deduction or withholding, and shall not be entitled to assert any credit, set off or counterclaim against the Seller in order to justify withholding payment of any such amount, in whole or in part. If the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment, the Seller shall charge interest at the lower of: (a) a rate of eighteen percent (18%) per annum; or (b) the highest allowable legal rate of interest allowed by law.
The Seller shall deliver the Goods to the location as set out in the Order or such other location as the parties may agree in writing. Delivery of the Goods shall be deemed to be completed on the earlier of: (i) arrival at the delivery location; or (ii) the Seller putting the Goods in storage in accordance with Section 9 below. Any time or date of delivery stated in the Order Confirmation is an estimate only and time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods whatsoever, or for the Buyer’s failure to provide the Seller with adequate delivery instructions, notice of delay or any other instructions that are relevant to the supply of the Goods.
9. Buyer’s Failure to Accept or Take Delivery of Goods.
If the Buyer fails to accept or take delivery of the Goods within three (3) days of attempted delivery or the Seller notifying the Buyer that the Goods are ready for delivery, then the Seller shall be entitled to store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance). If three (3) days after the Seller notifies the Buyer that the Goods were ready for delivery and the Buyer has not accepted or taken delivery of the Goods, the Seller may resell or otherwise dispose of part or all of the Goods. Notwithstanding the foregoing, nothing contained in these Conditions shall limit the Seller’s rights and remedies in law or in equity for any claims, costs, liabilities, actions, suits, demands or indebtedness arising from, relating to or in connection with Buyer’s refusal to accept or take delivery of the Goods within such three (3) day period.
10. Limited Warranty.
- The Seller warrants that on delivery, and for a period of five (5) days from the date of delivery (the “Warranty Period”), the Goods shall: (i) conform in all material respects with their description and any applicable specifications; and (ii) be free from all material defects in material and workmanship. Except as provided in this Section 10(a), Section 10(b) or Section 11 below, the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in these Conditions.
- The Seller shall not be liable for the Goods’ failure to comply with the limited warranty set forth in Section 10(a) above if: (i) a defect arises because the Buyer fails to follow the Seller’s oral or written instructions as to the storage, maintenance or use of the Goods, or if there are none, good industry practice; (ii) the Buyer alters or repairs the Goods without the written consent of the Seller; (iii) a defect arises as a result of willful damage, negligence or abnormal storage conditions by the Buyer or any other third party; or (iv) after submitting a Claim (as defined below) to the Seller alleging that the Goods are defective or non-conforming, the Buyer makes any subsequent use or further use of such Goods.
- The Warranties and any associated remedies of Buyer expressed in these Conditions are exclusive. NO other warranty, written or oral, express or implied, MAY BE INFERRED, whether by course of dealing, course of performance, usage of trade, or otherwise. THE Seller hereby disclaims all implied warranties, including any implied warranties of merchantability and Fitness for a Particular Purpose.
11. Claims and returns.
- The Buyer shall inspect the Goods within five (5) days of delivery, and shall be deemed to have accepted any non-conforming or defective Goods unless the Buyer submits a claim in writing to the Seller during the Warranty Period which includes photographs of the alleged non-conforming or defective Goods (a “Claim”). The Buyer shall, subsequent to the filing of a Claim, furnish to the Seller such additional evidence or written documentation of the alleged non-conforming or defective Goods as may be reasonably requested by the Seller in writing (collectively, the “Supplemental Information”). For purposes of Section 11(b) below, a Claim shall be deemed timely submitted notwithstanding that Supplemental Information is provided to the Seller after the expiration of the Warranty Period so long as such Supplemental Information is provided to the Seller no more than five (5) days after the Seller’s written request for such Supplemental Information.
- If the Buyer timely submits a Claim to the Seller in accordance with the requirements of Section 11(a) above, the Seller shall notify the Buyer in writing of its election to, at the Seller’s option and in the Seller’s sole discretion, honor the Claim by: (i) replacing such non-conforming or defective Goods with conforming, non-defective Goods at the Seller’s sole cost and expense; (ii) credit or refund to the Seller the purchase price for such non-conforming or defective Goods, together with any shipping or freight charges related thereto, in which case the Buyer shall, as directed by the Seller in writing, either (x) destroy or dispose of, but in no event resell or offer for resale, the non-conforming or defective Goods, or (y) return the non-conforming or defective Goods, at the Seller’s sole cost and expense, to the Seller at such location as the Seller designates in writing.
- The Buyer hereby acknowledges and agrees that the remedies set forth in Section 11(b) above are the Buyer’s exclusive remedy for the delivery of non-conforming or defective Goods. Except as otherwise provided under Section 11(b) above, all sales of Goods to the Buyer are final and made on a one-way basis, and the Buyer shall have no right to return any Goods purchased under the Contract to the Seller.
12. Title and Risk of Loss.
The risk of damage or loss in the Goods passes to the Buyer upon delivery at the location specified in the Order. Title to the Goods remains vested in the Seller until such time as the Seller has received payment in full (in cash or cleared funds) for the Goods, and for any other items that the Seller (or any of its associated companies) has supplied to the Buyer in respect of which payment has become due.
13. Cancellation Requests.
Requests from Buyer to cancel the Order will only be accepted at the sole discretion of the Seller. Acceptance by the Seller of any cancellation by the Buyer will only be binding upon the Seller if it is confirmed in writing by the Seller.
14. Limitation of Liability.
IN no event shall the Seller be liable for any incidental, indirect, special or consequential damages of any nature, or lost profits or revenues, in connection with the Contract or the providing of the Goods. The Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract caused by the Seller, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed thE PRICE SET FORTH IN THE Order CONFIRMATION.
15. Force Majeure.
The Seller shall not be liable to the Buyer for any delay or failure to perform its obligations under the Contract arising as a result of an event beyond its reasonable control, including but not limited to acts of God, strikes, labor shortage or disturbance, fire, accident, war and civil disturbance, terrorist acts, delays of carriers, failure of sources of supply, or acts of government.
16. Resale of Goods.
The Seller’s sale of the Goods to the Buyer is expressly conditioned upon the following covenants and agreements of Buyer to: (a) resell the Goods only (i) at retail price, (ii) to the ultimate consumer, and (iii) through pre-approved, authorized physical store locations, catalogs and Internet web sites (but only to the extent that the Seller has expressly authorized the Buyer to resell the Goods on the Internet, and provided that no approval from the Seller to resell the Goods in a store or catalog shall constitute or be deemed an approval by the Seller to the resale of the Goods online); (b) not resell any of the Goods to wholesalers, distributors, jobbers, exporters, agents, other retailers or any other purchasers for the purposes of resale of any of the Goods, or any affiliates of any of the foregoing; and (c) not export, sell, transport or ship any of the Goods outside of the United States and any United States territories, dependencies or possessions.
Any notice required to be given to a party in connection with the Contract shall be in writing, and shall be delivered the other party personally or sent by pre-paid first class post or recorded delivery to the address as set out in the Order, if to the Buyer, to the address as set out in the Order Confirmation, if to Seller, or by facsimile transmission or electronic email at a number or an address previously provided. Any variation to the Contract shall only be binding if agreed in writing between the parties.
18. Disputes; Governing Law; Submission to Jurisdiction.
In any litigation or other proceeding regarding a dispute under the Contract, the substantially prevailing party shall be entitled to recover its reasonable costs and attorneys’ fees from the non-prevailing party. The Contract, and any dispute or claim arising out of or in connection with the Contract shall be governed by and enforced in accordance with the laws of the Commonwealth of Virginia, without regards to its conflict of law provisions. The venue for any suit involving the Contract shall be in either the courts of the City of Richmond, Virginia, or the United States District Court for the Eastern District of Virginia, Richmond Division.
19. Assignment; Third Party Beneficiaries.
The Buyer shall not assign any of its rights or delegate any of its obligations under the Contract without the prior written consent of the Seller. Any purported assignment or delegation in violation of this Section 19 is null and void, and no permitted assignment or delegation by the Buyer shall relieve the Buyer of any of its obligations under the Contract. The Contract is for the sole benefit of the parties thereto and their respective successors and permitted assigns. Nothing herein or therein, express or implied, is intended to confer upon any person or entity any legal or equitable right, remedy or benefit of any nature whatsoever under or by reason of the Contract.
If any term or provision of the Contract is determined to be invalid, illegal or unenforceable by a court of competent jurisdiction, than such invalidity, illegality or unenforceability shall not affect any other term or provision of the Contract.
21. Subcontractors or Agents.
These Conditions shall apply to any subcontractor or agent nominated by the Buyer or the Buyer’s agents. The Buyer acts as an independent trader and shall not, for any purposes whatsoever, be deemed a representative or agent of the Seller or any of its affiliates. Notwithstanding the foregoing, the Buyer is not authorized and shall not create or appoint any sub-retailer, dealer, agent or other marketing or sales arrangement with respect to the Goods without the prior written consent of the Seller.
Provisions of the Contract which by their nature should apply beyond their terms shall remain in force after any termination or expiration of the Contract, including, without limitation, the provisions of Sections 6, 9, 10, 11, 12, 14, 16, 17, 18, 19, 20 and 21 hereof.
The Section headings used herein are for convenience of reference only and do not form a part of these Conditions or the Contract, and no construction or inference shall be derived therefrom.