Terms and Conditions of Sale
ALMO CORPORATION AND SUBSIDIARIES
TERMS AND CONDITIONS OF SALE-
These Terms and Conditions of Sale were last updated on February 1, 2012
THE PROVISIONS SET FORTH BELOW CONSTITUTE THE TERMS AND CONDITIONS UPON WHICH ALMO CORPORATION AND ITS SUBSIDIARIES OFFER TO SELL GOODS. SALES MAY BE MADE BY ANY OF THE ALMO SUBSIDIARIES LISTED IN PARAGRAPH 20 BELOW, DEPENDING ON THE LOCATION OF THE BUYER, THE PRODUCT SOLD AND OTHER FACTORS. AS USED HEREIN, THE TERM“SELLER” SHALL MEAN THE PARTICULAR SELLING SUBSIDIARY. ACCEPTANCE OF SELLER’S OFFER IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS SET FORTH HEREIN. UNLESS OTHERWISE AGREED IN A WRITING SIGNED BY BOTH PARTIES, THE BUYER’S PLACEMENT OF AN ORDER THROUGH THIS WEBSITE OR OTHERWISE SHALL CONSTITUTE ITS ACCEPTANCE OF THESE TERMS AND CONDITIONS AND A WAIVER OF ALL TERMS AND CONDITIONS IN ANY PURCHASE ORDER OR OTHER DOCUMENT WHICH ARE DIFFERENT FROM OR ADDITIONAL TO THOSE SET FORTH BELOW.
1. Payment Terms. Payment terms are net 30 days or as otherwise agreed by the parties. Further, Buyer agrees to reimburse Seller for all reasonable costs incurred in connection with its efforts to collect past due accounts, including, but not limited to, attorneys’ fees, collection agency fees and court costs. Seller also reserves the right to charge interest on past due amounts at rates equal to the maximum rate allowed by law.
2. Security Interest. As security for the payment of the entire balance owed by Buyer, Seller shall retain, and Buyer hereby grants to Seller, a security interest in and to the goods sold to Buyer, together with all proceeds and products of and insurance on such goods. In furtherance thereof, Seller may, in the manner provided by law, retake the goods and in addition thereto pursue any other remedies provided by law, including but not limited to, those remedies set forth in these terms and conditions. Buyer irrevocably authorizes the filing of financing statements by Seller (without signature by Buyer) in the jurisdiction of Buyer’s legal formation and existence, as well as the filing of a photographic or other copy of these terms and conditions, as a financing statement, and agrees that any such filing will be sufficient as a financing statement.
3. Sales Tax. The resale certificate must be submitted for the state or states into which the goods are to be shipped. If an exemption certificate is not available or if the Buyer wishes to pay sales tax, a statement on the company letterhead advising that the Buyer will pay sales tax, must be provided. Buyer shall be liable for all taxes and any fines, penalties, or costs arising in connection with Buyer’s provision of any certificate deemed invalid by any applicable taxing authority or as a result of Buyer’s failure to provide the required certificate(s).
4. Shipping. Delivery shall be EXW (Incoterms, 2010) Seller’s warehouse. Seller will use reasonable commercial efforts to ship products as close as possible to the requested shipment date. The sole remedy available to the Buyer for failure of Seller to timely ship products pursuant to an accepted order shall be, at the Buyer’s option, to accept a revised shipment schedule or terminate the order without any liability from the Buyer to Seller on account of such cancellation.
5. Force Majeure. Neither party shall be responsible or liable in any way for failure or delay in performing its obligations hereunder (other than an obligation to pay an existing debt) when such failure or delay is directly or indirectly due to an act of God, war, threat of war, strikes or other labor problems, inability to obtain or manufacture products, accident, fire, government order or regulation or any other cause beyond such party’s reasonable control.
6. Risk of Loss. Title and risk of loss shall pass to the Buyer at the time Seller delivers the ordered products to a common carrier for delivery to the Buyer or its designee.
7. Cancellation/Rejection. Seller expressly reserves the right to reject any and all purchase orders. Approval of purchase orders may be evidenced by written acknowledgment (including by facsimile or electronic means) or by shipment of the ordered products by Seller. Unless otherwise expressly agreed by the parties in writing, approved purchase orders are not subject to cancellation by the Buyer. If at any time, Buyer is delinquent in the payment of any invoice or is otherwise in breach of this agreement, or if Seller reasonably believes Buyer’s credit is impaired, Seller may withhold shipment of any order or may, at its option, require Buyer to prepay for further shipments.
8. Returns. Defective product may be returned in accordance with these terms for replacement or repair based on manufacturers’ return policies, but in no event longer than thirty (30 ) days after delivery to end user. All Products sold by Almo Corporation are sold with, to the extent that such warranties be present and transferable, the manufacturer’s limited warranty.
· A Return Authorization number must be obtained prior to the return of any product. Please contact Almo at RArequest@almo.comor call Almo Customer Care at:
1-800-345-2566 option 5
· A RA number must be requested within 30 days of the original invoice date.
·RA numbers are valid for 30 days.
· With the exception of defective returns, only factory sealed product in new/re-sellable condition are eligible for return. Any product returned that is not factory sealed in new/re-sellable condition will be returned to the Customer at their expense.
· Returns must be shipped freight pre-paid. Products received freight collect or without a RA number will be returned at Customer’s expense
· Returns will be credited at original purchase price.
·All sales of discontinued products are final
·All sales of special order products are final.
· Products that are defective at first use may be eligible for return to Almo, based on the manufacturer’s return policy. If a manufacturer allows product returns, then the product is returnable to Almo. If the manufacturer does not offer product returns then the product must be serviced based on the manufacturer’s service guidelines..
· All applicable RA policies as outlined in the General Guidelines above apply.
Multiple repair/unable to repair guidelines
· The resolution of issues related to multiple repairs, or unable to repair products owned by a customer is an issue between the customer and the vendor.
· If a Customer chooses to intercede on behalf of the end-user and take the product back, Almo will work to facilitate the return of the product back to the vendor, but this product is not returnable to Almo.
Visible Freight Damage Claims
· Any carton showing obvious signs of damaged should be refused at the time of receiving, and the reason for the refusal must be notated on Carrier Delivery Receipt
· If the Customer makes the determination to keep a product that shows obvious signs of carton damage, the Customer must still note the damage on the Carrier Deliver Receipt
· The resolution of cartons showing obvious signs of damage is between the Customer and Almo. If the customer did not refuse the shipment, then work with an Almo customer service representative to get these issues resolved. The customer must contact Almo at within 24 hours of receipt of goods.
· From time to time a product will be damaged without obvious signs of carton damage. In these cases the following guidelines apply:
o The concealed damage issue must be reported within 7days of the original invoice date.
o A RA form must be filled out and submitted along with a series of photographs included showing the following:
§A picture of the product showing the damage.
§A picture of the serial number on the unit.
§ A picture of each side of the box showing no signs of obvious carton damage.
§ A picture of the serial number on the box confirming that it matches the serial number on the unit
o Submit the RA request to Almo. Almo will submit the request to the vendor. If the vendor approves the claim, Almo will accept the return.
Concealed Freight Damage Claims-Appliance
· From time to time an appliance will be damaged without obvious signs of carton damage. In these cases the following guidelines apply:
o The concealed damage issue must be reported to the Almo Territory Account Manager within 30 days of the original invoice date.
o Almo will work with the customer to provide an allowance commensurate with the level of damage to the unit
o Under no circumstances will Almo take back damaged appliances unless they are properly refused and noted at time of receiving.
9. Inspection of Products. Products shall be inspected by Buyer upon delivery. Notice of rejection or claim for shortages, damaged product, or other nonconformity must be communicated by Buyer to Seller immediately upon receipt of product (any such oral communication to be confirmed in writing not less than 5 business days thereafter), and must specify the particular respects in which the delivery or the products are nonconforming. Buyer shall have no right to exercise any remedial rights until notice of nonconformity has been given to Seller and Seller afforded a reasonable opportunity to cure such nonconformity, if appropriate.
10. Non-Assignment. Purchase orders may not be assigned by either party to any other entity without the prior written consent of the other. Notwithstanding the foregoing, however, Seller reserves the right to assign the performance of any or all its obligations to any subsidiary or other entity with which it is affiliated.
11.DISCLAIMER OF WARRANTIES. The written warranty, if any, extended by the manufacturer of any product sold by Seller is the sole warranty for such product. SELLER DOES NOT ADOPT THE MANUFACTURER’S WARRANTY NOR DOES IT EXTEND WARRANTIES OF ITS OWN, EXPRESS OR IMPLIED. ALL PRODUCTS ARE SOLD BY SELLER “AS IS.” BUYER ACKNOWLEDGES THAT NO OTHER WARRANTIES WITH REGARD TO THE PRODUCTS SOLD HEREUNDER, WHETHER OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR OTHERWISE, ARE CREATED BY THESE TERMS OR BY THE SALE OF PRODUCTS HEREUNDER. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE IS EXPRESSLY DISCLAIMED.
12.LIMITATION ON SELLER’S LIABILITY.IN NO EVENT SHALL SELLER BE LIABLE FOR ANTICIPATED PROFITS OR FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR OTHER ECONOMIC LOSS OR FOR ANY DAMAGES ARISING IN TORT WHETHER BY REASON OF STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE REGARDLESS OF WHETHER OR NOT SELLER HAS BEEN APPRISED OF THE POSSIBLITY OF SUCH DAMAGE. SELLER’S LIABILITY ON ANY CLAIM OF ANY KIND FOR LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH AN ORDER OR FROM THE PERFORMANCE OR BREACH THEREOF SHALL NOT EXCEED THE PRICE ALLOCABLE TO THE PRODUCTS OR UNIT THEREOF WHICH GIVES RISE TO THE CLAIM. THE FOREGOING SHALL BE BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY SUCH CLAIM.
13. Setoff. All claims for money due or to become due from Seller shall be subject to deduction or setoff by Seller by reason of any counterclaim arising out of this or any other transaction with Buyer.
14. Severability. If any term of this order is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law (“Governing Law”), such term shall be deemed reformed or deleted but only to the extent necessary to comply with such Governing Law and the remaining provisions of this order shall remain in full force and effect.
15. No Waiver. Seller’s failure to insist on performance of any of these terms or conditions or to exercise any right or privilege, or Seller’s waiver of any breach hereunder shall not thereafter waive any other term, condition or privilege, whether of the same or similar type.
16. Governing Law. Pennsylvania law, not including its choice of law rules but including its statutes of limitations, governs all questions related to the validity, interpretation or performance of this Agreement and also all questions concerning any rights or obligations of the parties. Seller and Buyer hereby irrevocably submit to the exclusive personal jurisdiction of the United States Court for the Eastern District of Pennsylvania over any action, suit or proceeding arising out of or relating to this order, the products sold pursuant to this order, or the transactions contemplated by this order, unless said Court does not have subject matter jurisdiction in which case the parties irrevocably submit to the exclusive jurisdiction of the Court of Common Pleas of Philadelphia County.
17. Statute of Frauds. The parties agree that a facsimile or electronic document is a writing within the meaning of any applicable law that requires a written document for an enforceable contract.
18. Modification/Updates. These terms and conditions are subject to modification or updating by Seller without prior written notice. It is the Buyer’s responsibility to review the terms and conditions of sale for modification or updates, as the terms and conditions in effect at the time an order is placed will govern that particular order.
19. Disputes. Buyer and Seller shall strive to settle amicably and in good faith any dispute arising in connection with this Purchase Order. If they are unable to do so, the Parties agree dispute shall be resolved by binding arbitration conducted under the rules of the American Arbitration Association as presently in force, or in the event of an international shipment, under the rules of the International Centre for Dispute Resolution, as presently in force. In either case, the place of arbitration shall be Philadelphia, Pennsylvania. Upon resolution of the dispute, this Order shall be equitably adjusted, if necessary, to reflect such resolution.
20. Export Compliance . Under these standard terms, the Parties agree tha the sale of goods takes place in the U.S. Buyer shall be responsible for compliance with all U.S. Governmental export regulations they relate to the export of goods and/or data. Buyer shall indemnify and hold Seller harmless for any loss, damage, or expense incurred for or as a result of any failure or alleged failure of Buyer to company with the above referenced laws and regulations. Seller’s only responsibility for export compliance will be to provide: (i) appropriate certification to Buyer that the good(s) purchased by the Buyer are not on the United States Munitions List (USML); (ii) on the first shipment to Buyer, provide the Export Control Classification Number, the Harmonized Tariff Schedule Classification Number, and a Certificate Of Origin or a Manufacturers Affidavit to Buyer.
21. Entire Agreement. This is the final, complete, exclusive and completely integrated record of the contract between Buyer and Seller relating to the sale of goods hereunder.
Any one of the
following Almo companies may be the “Seller” in a given
transaction: Almo Distributing Pennsylvania, Inc.; Almo Distributing
Wisconsin, Inc.; Almo Distributing Minnesota, Inc.; Almo Distributing New
York, Inc.; XLS Products, Inc.; Almo E-Commerce, LLC; Almo
Fulfillment Services, LLC; Almo Fulfillment Services West, LLC, Almo
Fulfillment Services, South, LLC; Almo Shipping Services, LLC; AE
Advantage, LLC, Almo Professional A/V, LLC, Almo Professional A/V
South, LLC; Almo Professional A/V East, LLC and Almo Professional A/V
West, LLC., Almo Professional A/V International, LLC.