Terms & Conditions of Sale
ALL SALES BY AMSA, INC, D/B/A VERSACART SYSTEMS, INC. (“SELLER”) OF ANY PRODUCTS (INCLUDING WITHOUT LIMITATION SELLER’S SHOPPING CARTS, HAND BASKETS, MATERIAL HANDLING CARTS, EQUIPMENT AND SPECIALTY ITEMS) OR SERVICES (“PRODUCTS”) TO THE PURCHASER (“BUYER”) SHALL BE EXCLUSIVELY GOVERNED BY THESE TERMS AND CONDITIONS (“TERMS AND CONDITIONS”). BUYER’S ENTITLEMENT TO THE PRODUCTS IS CONTINGENT UPON BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS. ANY CHANGES TO THESE TERMS AND CONDITIONS MUST SPECIFICALLY BE AGREED TO IN A WRITING EXECUTED BY SELLER AND BUYER BEFORE BECOMING BINDING ON EITHER PARTY. THESE TERMS AND CONDITIONS TAKE PRECEDENCE OVER BUYER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS, TO WHICH NOTICE OF OBJECTION IS HEREBY GIVEN AND WHICH ARE HEREBY REJECTED BY SELLER. The parties expressly agree that except for the item type, quantity, requested delivery dates and location, any terms and conditions on Buyer’s purchase order will have no effect whatsoever. To the extent that Seller’s shipment of the Products might be treated as an acceptance of Buyer’s prior offer, such acceptance is expressly made on condition of assent by Buyer to these Terms and Conditions, and Buyer’s issuance of a purchase order or acceptance or use of the Products shall constitute such assent. In addition, to the extent of any conflict or inconsistency between these Terms and Conditions and Buyer’s purchase order, these Terms and Conditions will control.
Sale Conveys No License
The Products are offered for sale and are sold by Seller subject to the condition that such sale does not convey any license, expressly or by implication, estoppel or otherwise, under any patent, copyright or other intellectual property right of Seller or with respect to which Seller can grant licenses. Seller expressly reserves all its rights under such patents, copyrights or other intellectual property rights.
Delivery and Performance
Seller will exert commercially reasonable effort(s) to complete the Buyer’s Order in a timely manner. Shipment dates are estimates only and are not guarantees. Seller will notify the Buyer of any significant delay. Seller will not be responsible, or held accountable, for any delayed shipment or failure to perform Seller’s contractual obligations due to the event(s) beyond the reasonable control of Seller. Such events shall include but not be limited to the following; acts of God, war, or public enemy; act of civil or military authorities; riots, civil commotion, or sabotage; labor troubles including strikes, lockouts or slowdowns; governmental regulation or statute; floods, fires, earthquakes or other natural disasters; epidemics or quarantine restrictions; shortages or unavailability of material, energy, transportation or labor; and embargoes in such case, Seller shall notify the Buyer without delay of the nature and anticipated duration of such hindrance and shall keep the Buyer informed of subsequent events,. The Buyer is not entitled to claim damages or cancel its purchase order upon delay in delivery due to any of the foregoing reasons.
Cancellation / Reschedule
Orders canceled at any time prior to the scheduled ship date are subject to a cancellation charge of up to one-hundred percent (100%). Orders rescheduled within 6 weeks of scheduled ship date are subject to an additional 15% reschedule charge. Only one reschedule per order is allowed by Buyer unless otherwise agreed to by Seller. Orders for customized products are non-cancelable.
Seller may provide proprietary information to Buyer in connection with the Products. Buyer agrees that such information shall include all information which is either designated as confidential, or that a reasonable person knows or reasonably should understand to be confidential. Such information shall remain the exclusive property of Seller. Buyer agrees to preserve and protect such information and to take all other acts reasonably requested by Seller with respect to it. Upon Seller’s request, Buyer will return to Seller all documents containing Seller’s proprietary information and retain no copies thereof. Buyer agrees that its obligation to protect Seller’s proprietary information shall be ongoing and shall not cease upon delivery of the Products.
Seller will accept no Product returns without a Return Material Authorization (“RMA”) issued by Seller to Buyer. Buyer shall pay freight on all Products returned to Seller. A 25% restocking fee may be applied to any return. Freight charges shall not be refunded unless return is covered under Limited Warranty.
Seller warrants to Buyer that the Products will be free from defects in materials and workmanship for a period of one (1) year from date of shipment by Versacart (the “Warranty Period”). Seller must receive written notice of any claimed defect during the Warranty Period and no later than thirty (30) days after the appearance of such defects. Upon receiving a defect notice that complies with this paragraph, Seller’s sole obligation, and Buyer’s sole remedy, is for Seller at its option to: (a) repair or replace, at a location designated by Seller, the Product (or component(s) thereof) that fails to comply with this limited warranty; or (b) if Seller determines that it can neither repair nor replace the defective Product, refund the original purchase price paid by Buyer for the defective Product. Seller may request that Buyer provide reasonable documentation, including photographs of the reported defect, to assist in evaluation and processing of the claim. No product may be returned to Seller without first receiving written authorization from Seller. At Seller’s request, Buyer shall return any Products (or component(s) thereof) covered by the warranty after completing a failure report and obtaining a return material authorization number from Seller to be displayed on the shipping container. Buyer shall bear all of the risk, and all costs and expenses, associated with any Products that have been returned to Seller for which there is no defect found.
Notwithstanding anything else in any agreement between Buyer and Seller, this limited warranty shall not apply to: (1) any Product or any component(s) thereof that have been altered or repaired by any person or entity other than Seller; (2) any defect or other condition caused in whole or in part by the incorrect use, improper maintenance, abuse, damage, or alteration of any Product after title to such Product has passed to Buyer; and (3) any defects resulting from Buyer’s specifications or other requirements for a Product.
SELLER MAKES NO REPRESENTATIONS AND NO OTHER WARRANTIES OR CONDITIONS ON THE PRODUCTS OR ANY SERVICES RELATED THERETO. THE FOREGOING LIMITED WARRANTY OBLIGATIONS ARE IN LIEU OF ALL EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTIES OF ANY KIND. SELLER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NONINFRINGEMENT.
Limitation of Liability
NEITHER SELLER NOR ITS AFFILIATES, EMPLOYEES OR AGENTS WILL BE LIABLE TO THE BUYER, ITS AFFILIATES, EMPLOYEES OR AGENTS FOR ANY DIRECT DAMAGES WHATSOEVER ARISING OUT OF THESE TERMS AND CONDITIONS, THE PRODUCTS AND/OR THE ACTS OF OMISSIONS OF SELLER UNLESS AND SOLELY TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER ITS AFFILIATES, EMPLOYEES OR AGENTS. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO THE BUYER FOR ANY CONSEQUENTIAL, PUNITIVE, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES WHATSOEVER ARISING OUT OF THESE TERMS AND CONDITIONS, THE PRODUCTS AND/OR THE ACTS OF OMISSIONS OF SELLER. ALL CLAIMS BY THE BUYER OTHER THAN AS SET FORTH HEREIN ARE EXCLUDED WHETHER SUCH CLAIMS ARE GROUNDED IN TORT (INCLUDING NEGLIGENCE), STIRCT LIABLITY OR CONTRACT. ANY SUIT BROGHT BY A PARTY HERETO, UNDER THE TERMS AND CONDITION OF SALE OR TO OTHERWISE ENFORCE A CLAIM HEREUNDER, MUST BE BROUGHT WITHIN ONE YEAR OF THE ACTION OR OMISSION WHICH IS THE BASIS OF SUCH SUIT.
Buyer shall pay all amounts due no later than 30 days net from date of Invoice or as otherwise specified in writing by Seller. Prices are F.O.B. shipping point and are subject to change without notice and/or obligation. Seller may add handling fees to the invoice. In the event of a payment default by the Buyer or extension of time for payment, Seller will charge interest at a rate equal to the lower of 4% above the prime interest rate (published daily in the WALL STREET JOURNAL) or the highest interest rate permitted by law. If failure to pay according to the terms of this Agreement causes this account to be assigned or referred to an attorney for collection, the Buyer agrees to pay Seller reasonable collection and/or attorney fees and all court costs, to the extent permitted by law.
Any and all orders for Products are subject to acceptance by Seller at prices prevailing at the time of order receipt.
Payment will be made in United States dollars without deduction. Excise, sales taxes and other government charges are the responsibility of the Buyer and will be added where applicable.
Method of shipment will be determined by Seller unless specified in writing by the Buyer. Title and risk of loss or damage to the Products becomes the responsibility of the Buyer at the time of transfer for delivery to the carrier. Shipments are not insured by Seller unless requested by the Buyer. The Buyer is responsible for any and all cost incurred by Seller as a result of insuring any shipment. Furthermore, to the extent of any excusable delay, any Products will be stored and insured at the risk and at the expense of the Buyer.
Entire Agreement and Applicable Law
The Terms and Conditions shall be applicable to every purchase of Products made by Buyer, whether under Seller or the Buyer’s purchase orders, or otherwise. In the event of any term or condition herein being or becoming invalid or non-effective, the validity and effectiveness of the remainder of these Terms and Conditions will remain intact. These Terms and Conditions supersede any and all prior agreements, negotiations, commitments and writings between Seller and the Buyer. Placement of orders by Buyer serves to acknowledge the understanding and acceptance of these Terms and Conditions. These Terms and Conditions shall be governed by the laws of the State of Colorado and the United States of America, without regard any principles of conflicts of law, and any action or proceeding arising from or relating to this Agreement must be brought in court in Denver, Colorado. Buyer and Seller irrevocably submit and consent to the exclusive jurisdiction of such courts, and hereby agree that such courts shall be the exclusive proper forum for the determination of any action, proceeding or claim arising from or relating to these Terms and Conditions. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.