Terms of Conditions
This contract shall be interpreted under and governed by the laws of the state of Wisconsin
Terms Control/Rejection of Conflicting Terms.
All sales are governed by these terms, and by placing an order, submitting payment, or providing Seller with a Purchase Order, Buyer agrees to these terms. Seller’s offer to sell Buyer the Goods is conditioned on this acceptance. All other terms are rejected, including any terms included on any Purchase Orders from Buyer to Seller.
These Terms and Conditions may not be amended, modified, terminated, or repudiated, in whole or in part, except in writing signed by Seller and Buyer.
- Unless otherwise agreed in writing by Seller and Buyer, down payment on order shall be paid in full before Seller ships any product subject to these Terms and Conditions (the “Goods”).
- Subsequent payments will be made per sales quote issued by Seller with net 30 terms. If Buyer pays by check other than a cashier’s check, Seller may delay shipment for a reasonable period as determined in Seller’s sole discretion.
- Buyer shall pay interest on overdue bills at the rate of 12% annum or the highest rate permitted by law, whichever is lower.
Prices do not include sales, use, VAT, excise and other taxes or governmental charges with respect to the production, sale, distribution, or delivery of the Goods. The final invoice amount includes all applicable taxes or governmental charges. Seller is responsible for proper remittance of all such taxes or governmental charges.
Shipping & Deliveries.
- Unless otherwise agreed in writing by Seller and Buyer, shipment terms are F.O.B. Origin, Freight Prepaid and Add. Choice of carrier shall be in Seller’s sole discretion. Title and risk of loss shall pass upon carrier’s receipt of Goods.
- Deliveries are contingent upon Seller receiving necessary materials and may be delayed, reduced, or cancelled by Seller, to the extent affected by delay, reduction, or cancellation of shipment of such materials.
- Subject to Seller’s right of stoppage in transit, acceptance of shipment by a common carrier or licensed public trackman shall constitute a delivery, and in the absence of shipping instructions, the mailing of an invoice shall constitute a delivery.
- Delay in delivery or defect in quality shall entitle Buyer to cancel only that portion of any material style or color and/or number which is delayed or defective.
- Delivery or tender of 95% of the quantity specified for a delivery shall be deemed full performance of such delivery. A variation not exceeding 5% more or less than the total specified quantity contracted for shall be deemed compliance with this contract.
All orders that require custom fabrication or formulation (e.g., non-standard colors, coatings, etc.) require down payment prior to desired customization.
Seller will not be liable for any delay of its performance hereunder if the delay is directly or indirectly caused by or arises from fires, floods, terrorism, accidents, riots, war, government interference, embargoes, strikes, shortage of labor, materials or supplies, inadequate transportation facilities or any other cause beyond Seller’s reasonable control.
Any increase in Seller’s costs due to increase in freight rates of labor or raw materials or due to governmental legislation, regulation, or other providing for a tax on any materials, goods, sales, use or process or providing for any regulation or control of Seller’s purchases, materials, labor, costs, sales, or business, or due to any delay caused by any such governmental legislation, regulation, or order, may be added to the price specified herein as to any undelivered portion of this contract.
Goods invoiced and held by Seller for whatever reason shall be at Buyer’s risk and expense. Notwithstanding this provision, such Goods, whether located on Seller’s premises or elsewhere, shall be included at invoiced value for purposes of fire, and extended coverage only under whatever general fire insurance policies Seller carries. In case of loss, Seller shall pay to Buyer that portion of any settlement received thereunder which applies to Buyer’s Goods. Goods held for more than three (3) months shall be stored at Buyer’s expense.
Unless otherwise provided herein, Seller warrants good title and that all Goods sold hereunder shall conform to Seller’s standard specifications. Subject to the preceding sentence and except as otherwise expressly stated herein, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE GOODS. Seller shall not be liable for, and Buyer assumes responsibility for, all personnel injury and property damage resulting from the handling, possession or use of the Goods by Buyer.
Commitment to Cure.
Seller will make right any warranty issues with Seller’s Goods prior to their initial use. Buyer must bring any and all such issues to Seller’s attention within 14 days of receipt of Goods. Seller is not obligated to honor requests for cure coming from Buyer later than 14 days after Buyer’s receipt of Goods.
Claims and allowances.
- Seller shall not be liable for normal manufacturing defects nor for customary, variations from quantities or specifications.
- If Buyer claims Goods are defective in quality, they must, after written authorization from Seller, be properly and promptly offered to the Seller for examination and if Buyer fails to make such Goods available for examination, Buyer shall not be entitled to any allowance or claim as to such Goods. Seller may, within 30 days after examination of the Goods, replace any merchandise which is not in accordance with the contract, and in such event no further claim may be made by Buyer. Claims of any kind or nature are specifically barred unless made in writing within 30 days after delivery of Goods or prior to cutting, processing or altering of the Goods in any manner from the original condition of delivery.
- Exact matches of color are not guaranteed, but Goods shall be a reasonable match to standard, fabrics may vary in shade from piece to piece and Seller assumes no responsibility for such variations. Shade classification and segregation is for convenience of Buyer only and even though the Goods may be segregated as to shade from packing unit to packing unit or within any packing unit, Seller assumes no responsibility for the accuracy of such segregation.
- The limit of liability of Seller for defective merchandise shall be the difference in value on contract date of delivery between Goods specified and Goods actually delivered. The limit of liability of Seller for late delivery or non-delivery shall be the difference, if any, between the contract price and the fair market price, on the contract date of delivery, of the Goods to be delivered. In no event shall the Buyer be entitled to claim any other damages for defective merchandise or late delivery or non-delivery, and in no instance shall damages include profit on contemplated uses or profit of any description.
Used or Returned Goods.
Where contract specified sold Goods as ‘used’ or ‘returned’, the sale shall be deemed made without any representations or warranty of quality whatsoever.
Limitation of Damages.
Seller shall not be liable for indirect, incidental, consequential, exemplary, or punitive damages resulting from or arising in connection with any act or omission of Seller relating to any breach of these Terms and Conditions or relating in any way to the design, manufacture, delivery or use of the Goods. Seller’s liability, regardless of grounds, shall be limited to the amount paid by Buyer for the Goods.
Limitation of Actions.
Any statute of limitations notwithstanding, no claim shall be filed or brought against Seller for any breach of these terms and conditions after two (2) years of the date Buyer receives the Goods.
Seller passes no right to the use of any trade-name or trade-mark of the Seller to the Buyer under this contract and the Buyer agrees to refrain either directly or indirectly for using any of the Seller’s trade-names or trade-marks unless specifically authorized to the contrary by the Seller in writing.
Limitation of Patent Filings: Buyer forfeits right to file patents in which the defining characteristic of the patent is the specific use of the Goods sold to Buyer.
Remedies Not Exclusive.
No remedy of Seller provided herein is exclusive of any other remedy available to Seller.
Buyer cannot assign any rights, duties or obligations hereunder without Seller’s prior written consent.
Governing Law and Venue.
These Terms and Conditions shall be governed by, and construed in accordance with, the laws of the State of Wisconsin, and any legal proceeding with regard to these Terms and Conditions or the Goods shall be brought in the Circuit Court for Brown County, Wisconsin. Buyer hereby waives any claims of forum non conveniens or any other similar claims.
Cost of Collection.
Buyer shall be liable to pay Seller for all costs associated with any breach of these Terms and Conditions by Buyer, including Seller’s actual attorney’s fees.
Authority of Signers.
Each person accepting these Terms and Conditions represents and warrants that he/she has been duly authorized to do so.
Counterparts & Facsimile Signatures.
These Terms and Conditions may be signed in counterparts. Facsimile and electronic signatures shall have the same effect as originals. Placing and paying for an order online also acknowledges and agrees to these Terms & Conditions.
Upon breach by Buyer as to any installment, Seller, at its option, may treat such breach as severable or as a breach of the entire contract, on giving written notice of such election to Buyer. If Buyer breaches this contract or any installment thereof, in addition to all other rights provided by law, Seller may sell the Goods at public or private sales without notice to Buyer, and Buyer shall be liable for the difference between the contract price and the amount received on such sale, together with the costs and expenses of such sale. At such sale Seller may become the buyer of such Goods. Waiver by Seller of a breach by Buyer of any provision of this contract shall not be deemed a waiver of future compliance therewith, and such provisions, as well as all other provisions hereunder, shall remain in full force and effect.
If any provision of this contract is or becomes, at any time and under any law, rule or regulation, unenforceable or invalid, no other provision of this agreement shall be affected thereby, and the remaining provisions of this agreement shall continue with the same effect as if such unenforceable or invalid provisions shall not have been inserted in this agreement.
California prop 65 notice and agreement.
Buyer shall be responsible for determining compliance with Prop 65, including California Health and Safety Code § 25249.6, for any materials Buyer obtains from the Company that may reach California. Buyer shall promptly notify the Company if any of the Company’s materials obtained by Buyer may reach California in any form, including as a component or part of a consumer product manufactured by Buyer. “Promptly notify” means to notify the Company in writing before the material obtained by Buyer reaches California. After such notification, the Company may provide Buyer with written notice which identifies materials obtained by Buyer that contain Prop 65-listed chemicals. Where necessary for compliance with Prop 65, Buyer shall pass Prop 65 information related to such materials to entities downstream in the chain of commerce and/or provide a Prop 65 warning to individuals in California.
Customers may request to pick up purchased products from Seller’s shipping partner, American Tent in Green Bay, Wisconsin. Upon such request, the customer must schedule a pick-up time during American Tent’s regular warehouse hours, which are 7:00 a.m. to 4:00 p.m., Monday through Thursday. Loading time will vary based on order size and method of transportation. Orders that are not picked up within five (5) business days of the scheduled pick-up date (Fridays excluded) may be subject to storage fees. Customers must mark any product shortages, damages, or other issues with the order prior to departure from American Tent’s facility. The customer’s signature on an American Tent acknowledgement receipt confirms that all proper products and quantities have been received and that such products are free of visible damage. Unless otherwise agreed in writing, the Customer is responsible for all product loading and providing or retaining transportation for all products placed for pick-up.
These Terms and Conditions, together with the Purchase Order(s) relating thereto, contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance and/or usage of trade inconsistent with any of the terms hereof.