1. ENTIRE AGREEMENT: These Terms and Conditions of Sale establish the rights, obligations, and remedies of Waterheaters.com, Inc. (“Seller”) and Buyer, form the entire agreement between Seller and Buyer, and apply to all transactions between Seller and Buyer unless otherwise specifically agreed to in writing by both parties. All prior oral or written agreements, including but not limited to terms in Buyer’s purchase order, which are different from or in addition to these Terms and Conditions of Sale are not binding on Seller unless accepted in writing by Seller’s duly authorized representative.
2. SHIPMENT: All orders are shipped F.O.B. point of shipment. Risk of loss will transfer to Buyer upon tender of goods to Buyer, Buyer’s representative or common carrier. The cost of any special packaging or handling caused by Buyer’s requirements or requests will be added to the amount of Buyer’s order. If Buyer causes or requests a delay of shipment, or if Seller ships or delivers an order erroneously as a result of inaccurate, incomplete, or misleading information supplied by Buyer or Buyer’s agents or employees, all storage and other additional costs and risk will be borne by Buyer.
3. PRICE: All prices are subject to change unless otherwise noted on Seller’s quotation. Buyer will be invoiced at prices in effect at the time of shipment. All taxes, transportation costs, duties and other charges are in addition to quoted prices. The amount of any sales, excise or other taxes, if any, applicable to the goods shall be added to the purchase price and shall be paid by Buyer unless Buyer provides Seller with a valid tax exemption certificate.
4. DELIVERY: Seller will make a good faith effort to deliver goods in accordance with Buyer’s schedule. Seller will pay for expedited shipping of delayed goods if the delay in delivery is solely caused by Seller. Seller assumes no responsibility or liability for Seller’s non-performance caused by an act of God, war, labor disputes, civil unrest, accidents, the inability to obtain materials, delays of carriers, contractors or suppliers or any other causes beyond Seller’s control. Under no circumstances shall Seller be liable for any special, consequential, incidental, indirect, or liquidated damages, losses, or expenses of any kind arising from any shipping delays or failure to give notice of any shipping delay.
5. CANCELLATION: Buyer may not cancel, change or modify an order without the written consent of Seller and payment by Buyer of all applicable cancellation or re-stocking fees.
6. PAYMENT: Payment shall be made in advance or COD.
7. INSPECTION AND ACCEPTANCE: Buyer shall examine all goods upon receipt and prior to installation. All claims for damage, shortage, and errors in shipment or improper delivery must be made to Sellerin writing within five (5) business days of delivery, after which date Buyer will be deemed to have accepted the goods and will have no right to reject the goods or to revoke acceptance. Buyer must make any claims for billing errors or adjustments to Seller in writing within ten (10) business days from the invoice date. Claims not received in writing within such period of time will be waived by Buyer.
8. RETURNS: Buyer may return any good which Seller stocks and which is not a special order item if: (i) it is in new condition, suitable for resale in its undamaged original packaging and with all original parts; and (ii) it has not been used, installed, modified, rebuilt, reconditioned, repaired, altered or damaged. All returns are subject to a re-stocking fee, unless otherwise agreed to by Seller. Special orders or non-stock goods may be returned if the manufacturer is willing to accept the return and Buyer agrees to reimburse Seller for any restocking or cancellation fees charged by the manufacturer.
9. WARRANTIES AND LIMITATION OF LIABILITY:
(A) All Other Goods: Seller warrants only title to the goods sold to Buyer. All other warranties are those extended by the product manufacturer. Seller assigns to Buyer any and all manufacturing warranties and will assist Buyer to obtain repair, replacement, or other applicable remedy for a breach of warranty made known to Seller during the warranty period.
(B) Services: Seller warrants that all Services provided by Seller shall be performed in a professional and workmanlike manner with qualified personnel.
(C) Warranty Exclusions: These warranties shall be void if there has been misuse, accident, modifications, unsuitable physical or operating environment, improper maintenance, storage or installation of the goods. SELLER DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR USE OR A PARTICULAR PURPOSE EVEN IF KNOWN BY SELLER. SELLER MAKES NO REPRESENTATION, WARRANTY, OR PROMISE THAT THE PRODUCTS OR SERVICES WILL CONFORM TO ANY APPLICABLE LAWS, ORDINANCES, REGULATIONS, CODES OR STANDARDS, INCLUDING BUT NOT LIMITED TO LOW LEAD OR LEAD FREE LAWS OR REGULATIONS, EXCEPT AS SPECIFIED AND AGREED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SELLER. EXCEPT IN THE EVENT OF DAMAGE CAUSED BY SELLER’S NEGLIGENCE, UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, LIQUIDATED OR CONSEQUENTIAL DAMAGES CLAIMED BY BUYER OR ANY THIRD PARTY RELATED TO A BREACH OF WARRANTY OR ANY OTHER NON-CONFORMITY OF THE GOODS OR SERVICES.
10. INDEMNIFICATION: Each party (“Indemnitor”) shall indemnify and hold harmless the other party and its employees, officers, directors, and agents (each an “Indemnitee”) from any suit, cause of action, judgment or claim (“Claim”) for damages to property or bodily injury, loss of life, infringement, liability of any nature, costs, or expenses, including reasonable attorney fees (“Damages”) to the extent caused directly by the negligent act or omission or intentional misconduct of the Indemnitor. Indemnification shall not apply to Damages proximately caused by the negligence of the Indemnitee.
11. LIMITATION OF LIABILITY: Except as set forth in Section 9(C), neither Party shall be liable to the other for special, incidental, consequential, punitive, statutory, or indirect damages, including but not limited to loss of profits, revenues, capital, business opportunity or downtime costs, arising out of the sale of goods to Buyer. This limitation shall apply regardless if the claimed damages arise from breach of contract, breach of warranty, tort, strict liability or any other legal theory.
12. SEVERABILITY: These Terms and Conditions of Sale will be construed as if prepared jointly by the parties hereto and any uncertainty or ambiguity will not be interpreted against any one party. If any provision contained in these Terms and Conditions of Sale is held to be unenforceable then such provision will be given effect in such reduced form as may be decided by a court of competent jurisdiction, provided that, if any provision should be declared unenforceable or invalid for any reason, such unenforceable or invalid provision will be severed from the remainder of these Terms and Conditions of Sale without affecting the enforceability or validity of the remaining provisions.
13. NON-WAIVER: The failure of either Seller or Buyer to insist upon the strict performance of any of these Terms and Conditions of Sale will not be deemed to be a waiver of any of the right or remedies of Seller or Buyer, nor of its right to insist upon strict performance of such term or of any other term in the future. No waiver of any of these Terms and Conditions of Sale will be valid unless in writing signed by a duly authorized representative of the waiving party.
14. DISPUTE RESOLUTION: The parties shall attempt in good faith to resolve promptly any dispute arising out of or relating to these Terms and Conditions of Sale by negotiation between executives who have authority to settle the dispute. The executives must be at a higher level of management than the persons with direct responsibility for administration of these Terms and Conditions of Sale. If a dispute cannot be resolved by negotiation then either party may bring a legal action in accordance with Section 15 of these Terms and Conditions of Sale.
15. GOVERNING LAW: All disputes related to or arising out of Buyer’s order are governed by the laws of the State of New York. Any legal action related to or arising out of Buyer’s order shall be brought in Suffolk County, New York and any right to object to such venue is waived. The prevailing party in any lawsuit or legal action shall be awarded its reasonable attorney’s fees and costs.