Terms and Conditions of Sale
These Terms and Conditions of Sale (the “Terms and Conditions”) govern the parties’ obligations. Nelson-Jameson, Inc. (“Seller”) will accept orders from and transact business with the buyer (“Buyer”) only on these terms and conditions.
1. Acceptance; Rejection of Other Terms; Entire Agreement.
This document contains all of the terms and conditions of the agreement (the “Agreement”) between Seller and the Buyer of the goods and services to be sold or provided to Buyer (collectively, “Products”), and are deemed to have been incorporated into, any agreement, by and between Buyer and Seller. This Agreement, the Terms and Conditions stated herein, and the sale of any Products to Buyer expressly rejects and therefore excludes any terms and conditions incorporated in Buyer’s order or other documents of Buyer, and to the excludes of any other statements and agreements except as set forth in a separate written agreement signed by Buyer and Seller that expressly incorporates by reference these Terms and Conditions. Seller’s acceptance of Buyer’s order is expressly conditioned on Buyer’s acceptance of these Terms and Conditions, and Buyer, upon placing an order, is presumed to have accepted these Terms and Conditions without modification. No alteration, waiver, modification of, or addition to this Agreement or to the Terms and Conditions herein shall be binding on Seller unless set forth in writing and signed by an authorized signatory of Seller. Any attempt to amend, modify, or change the provisions of this Agreement or these Terms and Conditions by anyone that is not an authorized signatory of Seller shall be null and void. No course of dealing, usage of trade or course of performance shall be relevant to supplement or explain any terms used in the Agreement.
2. Taxes and Fees.
It is Buyer’s responsibility to remit any sales tax due on transactions. Seller will make commercially reasonable efforts to assess Buyer’s tax status upon receipt of proper documentation from Buyer. All sales, excise and similar taxes that Seller may be required to pay or collect with respect to the Products are for the account of the Buyer, except as otherwise provided by law. Except as otherwise expressly stated in the Agreement, Seller will not be responsible for freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges. If the Agreement expressly states that such charges are included in the price, any increase in such charges effective after the date hereof will be for the account of Buyer.
3. Payment Terms.
Except to the extent stated on Seller’s quote provided to Buyer, all prices are subject to change without notice and any unshipped balances on purchase orders will be invoiced to and paid by Buyer at prices in effect at the time of delivery. Invoices are payable in full net 30 days following the date listed on the invoice. If Buyer has an open account status with Seller and credit is extended to Buyer, Seller reserves the right to revoke such credit if Buyer fails to pay for any Products when due, and Seller may demand payment before any further shipment. Buyer agrees to pay service charges of 1.5% per month or the highest rate allowed by law (whichever is the lesser) from the due date of each invoice to date of payment. In the event Buyer’s account is placed for collection, Buyer agrees to collection and/or attorney fees of 20% of the amount owed.
4. New Accounts.
Seller is a business-to-business seller serving food, beverage and dairy processors. Seller accepts VISA, MasterCard and American Express credit cards. If Buyer elects to order on account, Buyer shall contact Seller’s customer service department. Credit references are required by Seller, and credit approval is required prior to shipping.
5. Price Policy.
Call Seller at 1-800-826-8302 for the most current pricing. Prices for the Products are subject to change without notice unless specifically held open for the length of time stated on Seller’s quote. Any unshipped balances on purchase orders will be invoiced to and paid by Buyer at prices in effect at the time of delivery. Notwithstanding any provision in the Agreement, Seller shall have no obligation to pay any rebate, issue any credit or make any other payment of any kind to Buyer unless Buyer is fully in compliance with its payment and other obligations under the Agreement and any other contractual obligation in favor of Seller. Quantity and volume discounts may be available.
6. No Minimum Order Requirement.
Seller prides itself on its ability to meet Buyer’s emergency needs. As such, Seller does not have a minimum order requirement. Seller trusts that Buyer will attempt to avoid uneconomically small orders except in emergencies.
7. Shipping Terms; Risk of Loss; Shipment Restrictions.
Unless otherwise expressly stated in writing, all shipments are F.O.B. shipping point. Seller’s shipping points are located in WI, CA, ID, PA, or TX, unless otherwise stated by Seller. Shipping dates on any order are estimates only. Seller shall use commercially reasonable efforts to ensure that, to the extent Buyer submits a purchase order before 2:00 p.m. central standard time, Products will be shipped the same day. Seller will use reasonable commercial efforts to meet the estimated shipping dates, subject to Buyer’s prompt provision of all necessary, complete and correct specifications, but Seller will not be held responsible for failure to meet such estimated dates. Buyer acknowledges that Seller agrees to use its best judgement to route Buyer’s order unless Buyer gives Seller specific instructions otherwise. Most orders are shipped via FedEx, UPS, or other carriers, and insured. Buyer may contact Seller’s traffic manager if faster service is required to discuss available options. In some areas, Seller’s own trucks are a prompt and cost-effective delivery method. Unless otherwise stated herein, Seller may make delivery in installments.
(a) Installments. All installments will be separately invoiced and paid as billed without regard to subsequent deliveries. Failure to pay any installment when due will excuse Seller from making future deliveries. Seller will not be liable for normal variations in dimensions, weights and quality. Weights, sizes and quantities as determined at Seller’s plant or other source of supply will be conclusive in the absence of manifest error. Buyer shall take deliveries in approximately equal monthly quantities, except as expressly indicated herein.
(b) Restrictions. Buyer acknowledges that hazardous materials are restricted by the DOT and other carriers with some air and ground service classifications. Buyer shall consult with Seller to determine the most cost-effective method to safely ship Buyer’s orders of hazardous materials. Buyer further acknowledges that temperature-sensitive Products are shipped early in the week, if temperatures are extreme, to avoid transit on weekends. Buyer accepts that if it requires Seller to ship such temperature-sensitive Products when there is danger of damage by cold or heat, Seller will use insulated containers and/or select qualified carriers and such extra fees for special handling, packing, and transporting will be charged to Buyer.
8. Damaged or Lost Shipments; Notification of Claims from Shipment; Acceptance.
Orders are carefully packed for shipment by Seller or Seller’s suppliers.
(a) Inspection. Buyer shall inspect each shipment upon arrival. Buyer must document such damage, lost or missing Product on the packing list, bill of lading, or delivery receipt with appropriate exceptions describing the damage or loss before signing. Buyer shall request the carrier to inspect the damage or loss and forward a signed exception report to Seller describing the damage or loss, and Buyer shall retain original shipping carton, all inner packing materials, and damaged merchandise. Buyer’s willingness to take digital pictures of the shipping carton, packaging, and damaged Products assists Seller with freight claims made to the carrier.
(b) Notification. Buyer must promptly and separately notify Seller and the carrier, within five (5) days of the receipt of the Products, of any reasonably apparent damage to, or any loss of, the Products in transit. Failure by Buyer to give such notification shall result in a waiver of all claims which Buyer may otherwise have against Seller for such damage or loss resulting from, or occurring during, transit. If damage or loss is not reasonably apparent at time of delivery, then upon discovering such damage or loss Buyer shall (i) immediately notify Seller of such damage or loss, and (ii) cooperate fully with Seller in any claims that are available against third parties. In the event of overdue or lost shipments, such shipments may be traced with the tracking number located on the invoice or shipping acknowledgment. If delivery is made in installments, claims which Buyer may have as to any one installment do not relieve Buyer of the obligation to accept delivery of the remaining installments, or permit Buyer to cancel or rescind the remaining installments.
(c) Rejection. Any rightful rejection of the Products by Buyer shall be made within a commercially reasonable time by written notice to Seller, but in any event within five (5) days following the date of receipt of the Products.
(d) Collect shipments are the sole responsibility of the recipient.
9. Returns of Stock Merchandise; How to Return Stock Merchandise; Exclusions.
Merchandise or Products purchased from Seller that are considered stock merchandise may be returned by the Buyer at Buyer’s cost within thirty (30) days of purchase except to the extent of restrictions and exceptions as determined solely by Seller (“Stock Merchandise”).
(a) Stock Merchandise eligible for return shall be returned by Buyer prepaid and received by Seller in saleable condition, in Seller’s sole discretion. Other returns, including returns received after thirty (30) days of purchase, may be subject to a restocking charge of at least 15% of the purchase price or may be refused by Seller in Seller’s sole discretion. Returns requested after 180 days from the date of invoice will be rejected.
(b) To return Stock Merchandise, please call Seller at (800) 826-8302 or email sales@nelsonjameson.com to request a return. Please provide Buyer’s company name and location along with the item number, order number, invoice number, or purchase order number and reason for the return. Seller’s Returns Department will make commercially reasonable efforts to contact Buyer within five (5) business days to provide an RMA number and shipping instructions for the return. Credit for the amount paid by Buyer, if forthcoming, will be issued following Seller’s receipt and inspection of the returned Stock Merchandise, in Seller’s sole discretion. RMAs are valid for thirty (30) calendar days from date of issuance. Denials, extensions, or cancellations are at the sole discretion of Seller. The receipt of an RMA number from Seller does not guarantee a return of Stock Merchandise will be permitted nor does it guarantee a credit will be provided.
(c) Exclusions. Merchandise and Products not considered Stock Merchandise and therefore not eligible for return pursuant to this section include but are not limited to special order items; non-stock items; custom items; non-returnable or non-cancelable items; food ingredients, laboratory standards; temperature sensitive items; hazardous items; or dated materials, unless preapproved in writing by an officer of Seller.
10. Returns of Defective Product; Limited Pass-through Warranty; Remedies.
Buyer acknowledges that due to Seller’s status as a distributor, Products sold directly to Buyer as the original purchaser have been manufactured or produced by entities other than Seller. Products not manufactured, assembled, modified, or combined by Seller are warranted only to the extent a warranty has been provided for such Product by the manufacturer.
(a) To the extent permissible, Seller will use commercially reasonable efforts to pass through all available manufacturer warranties to Buyer and, if permissible and allowable by law, shall transfer or assign all such manufacturer warranties to Buyer. Pass-through warranties, if available, are the only warranties provided with respect to such Products. Products modified or combined by Seller are warranted to meet the specifications at the time of delivery. No employee or agent of Seller has authority to create for Seller any other obligation or liability with respect to products or services it sells.
(b) If Products are determined to be defective by Seller or the manufacturer of the Product, Seller will, at its option or as directed by the manufacturer of the defective Product, replace the Product or provide Buyer with a credit therefore equal to the price paid by Buyer for the defective Product. Seller’s sole obligation and Buyer’s exclusive remedy for breach of this limited warranty hereunder shall be conditioned upon Seller receiving written notice of any alleged breach of warranty due to defective Product within a reasonable time after discovery of such defect, but in no event later than thirty (30) days from date of shipment. At Seller’s request, Buyer shall return to Buyer any Products for which this claim for defective Product has been made. A reimbursement for reasonable shipping charges may be provided after an investigation is completed by Seller regarding the defective Product and at Seller’s sole discretion. THE FOREGOING WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. Specifications.
Product specifications including USDA, OSHA, FDA and other regulatory approvals are subject to change without notice. Buyer shall review current specifications for Products before placing orders. Buyer must make its own determination of product suitability for their application and of compliance with laws and rules of governmental agencies.
12. Special Order Products; Inventory; Safety Stock; Discontinued Products.
Seller strives to be responsive to each Buyer’s unique needs. If Buyer requires Seller to keep a certain inventory or safety stock of a Product on hand or desires to purchase a product not listed on Seller’s website, Buyer may contact Seller’s customer service department with its inquiry. Delivery time, safety stock capacity, and potential minimum order requirements will vary for Products purchased via special order or for unique inventory requests placed by Buyer. If Buyer submits purchase orders pursuant to such safety stock demands for Product, or for special order Products, and subsequently discontinues its purchase of these Products, reduces the demand for these Products, or if Seller is required by Buyer to keep a minimum order level or safety stock of the Products on hand for Buyer, Buyer shall purchase from Seller at current market prices all such discontinued Products (“Discontinued Products”) in Seller’s control. Within thirty (30) days following Seller’s notice to Buyer of its determination regarding Discontinued Products, Buyer shall reimburse Seller for all such Discontinued Products that are not otherwise reasonably usable or saleable by Seller, in Seller’s sole discretion, plus the actual cost to properly dispose of such Discontinued Products. Seller shall use reasonable commercial efforts to cancel any outstanding orders or contracts with its suppliers to purchase the Discontinued Products. The Products shall be considered Discontinued Products subject to this provision if Buyer does not issue a purchase order to Seller within sixty (60) days after the date of Buyer’s most recent purchase order.
13. Containers.
If Seller or its suppliers ship any Products in a returnable or reusable container (carboys, drums, barrels, totes or other returnable containers), such returnable or reusable containers provided by Seller to Buyer shall remain the property of Seller. Buyer acknowledges that any such returnable or reusable containers are provided to Buyer solely for the purpose of transporting and storing Products purchased from Seller or its suppliers. Buyer will use Seller’s containers only for reasonable transportation and storage of the Products and is not permitted to use such container for any other use. Buyer will return the same in good condition (normal wear and tear excepted) upon request by Seller but in no event later than the termination of the business relationship with Seller. If any container provided by Seller is not returned to Seller in good condition, less any reasonable wear and tear, Seller may charge Buyer for any damage or loss, or may charge Buyer for the current replacement cost of such containers.
14. Hazardous Materials.
Buyer acknowledges and accepts that some Products may be of a toxic or otherwise hazardous nature. Buyer assumes all risk and liability for the Products upon passage of risk of loss to Buyer as provided herein. Seller will not be liable for any loss or damage to persons or property resulting from the Products or their handling except as otherwise provided expressly stated in the Agreement. It is Buyer’s sole responsibility to determine and provide for any hazards involved in connection with storage and disposal of the Products, any waste materials relating to the Products, and for any disposable containers in which the Products are shipped.
15. Product Risk and Compliance with Laws.
Buyer represents and warrants that it has the appropriate knowledge and information regarding the risks associated with handling, using, transporting, storing, and disposing of the Product, including without limitation those risks set forth in the Safety Data Sheet ("SDS") for the Product. Buyer affirms that it shall maintain compliance with all safety and health related governmental requirements concerning the Product purchased hereunder and shall take all reasonable precautions to inform its employees, agents, contractors, and customers of any risks associated with the Product, including without limitation dissemination of pertinent information contained in the SDS. Buyer shall comply with all applicable federal, state, and local laws, regulations, and regulatory guidance (“Laws”) with regard to the Products, including, without limitation, any Laws relating to the disposal of any waste materials.
16. No Consequential Damages.
SELLER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION ANY BUSINESS INTERRUPTION, LOST PROFITS, LABOR COSTS OR DAMAGE TO EQUIPMENT, ARISING FROM THE SALE OR USE OF THE PRODUCTS, FROM THE PRODUCTS BEING INCORPORATED INTO OTHER ARTICLES, FROM ANY BREACH OF THE AGREEMENT OR FROM ANY OTHER CAUSE WHATSOEVER, WHETHER BASED ON WARRANTY (EXPRESSED OR IMPLIED) OR OTHERWISE BASED ON CONTRACT, TORT OR OTHER THEORY OF LIABILITY.
17. Limitation of Liability.
Seller’s aggregate liability for any and all claims, whether in contract, tort, or otherwise, arising out of, connected with, or resulting from the sale, delivery, resale, repair, replacement, or use of the Products sold by Seller hereunder shall in no event exceed the purchase price paid by Buyer for the affected Product and be limited to, at Seller’s sole option, repairing, replacing, or issuing a credit or refund for the amount of the affected Product which give rise to such claim, or $3,000, whichever is greater.
18. Indemnification.
Buyer agrees to indemnify, defend, hold harmless, and reimburse Seller and its officers, directors, employees, agents, subcontractors, attorneys, and affiliates (collectively, “Seller’s Indemnified Parties”) from and against any and all third-party claims, liabilities, liens, damages, penalties, fines, costs, expenses, suits or judgements, paid or incurred by any of Seller’s Indemnified Parties and all expenses related thereto, including, without limitation, court costs and reasonable attorneys' fees arising out of or in any way connected or related to (a) any material breach by Buyer, any inaccuracy of any of the representations and warranties made by Buyer, or any nonperformance by Buyer, of any provision or covenant contained in this Agreement or in any certificate, purchase order, order acknowledgment, service order, statement of work, quotation, instrument, or other document furnished (or to be furnished) by Buyer with respect to the transactions contemplated hereunder, (b) claims of intellectual property infringement, (c) for all injuries to and deaths of persons, and (d) for all loss of or damage to property, arising out of or in connection with the provision of Products or services under this clause. This indemnity by Buyer shall not apply for any such Losses, liabilities, damages, costs or expenses arising out of or caused by the willful misconduct or sole negligence of Seller’s Indemnified Parties.
19. No Recommendations.
Buyer acknowledges and agrees that as a distributor, Seller does not have control over the design, testing, or labeling of any Product nor any product Buyer may produce using the Products, and that Buyer is not relying on any representation or statement made by, or on behalf of, Seller with respect to the compatibility or suitability of any Product for any purpose, or on any advice, recommendation, or information obtained from Seller’s product literature or web sites, including any design aid or other service made available by Seller. Buyer has tested and investigated the Products sufficiently to form an independent judgment concerning their compatibility and suitability for the use, conversion, or processing intended by Buyer and will not make, and hereby waives, any claim against Seller based on Seller’s statements or information perceived by Buyer to be advice or recommendations.
20. Force Majeure; Excuse from Performance; Allocation.
Neither party shall be considered in default in the performance of its obligations hereunder or be liable in damages or otherwise for any failure or delay in performance which is due to Act of God or natural disaster; riot, strike, or labor trouble; fire, flood or other natural catastrophe; act of governmental authority; shortage of raw materials, labor, transportation, energy, or utilities; mechanical breakdown or equipment failure; failure of transportation or supplies; significant price increases from or a significant delay caused by suppliers or subcontractors; accident; epidemic, pandemic, or any other cause whether similar or dissimilar beyond the control of the party claiming such excuse. The party claiming such excuse shall give written notice to the other party within ten (10) days after occurrence of the event giving rise to the claim, stating in such notice its best estimate of the duration of the delay. If, in the case of Seller, if the event lasts or in Seller’s judgement is expected to last more than thirty (30) days, Seller may terminate the order or it may allocate its available supply of the affected Products (without being obligated to acquire additional supplies of the Products or materials) among its purchasers in Seller’s sole discretion. Seller shall have the right to request a price increase, and both Seller and Buyer shall have the right to immediately terminate the affected purchase order or remove the affected Product from this Agreement order if additional price increases are not accepted.
21. Notice.
Any notice required pursuant to this Agreement shall not be valid or effective unless it is in writing and delivered by U.S. mail or by email to Seller at:
Nelson-Jameson, Inc.
3200 S. Central Avenue
Marshfield, WI 54449
Attention: Director of Legal & Risk Management
Email: a.renz@nelsonjameson.com
22. No Modifications or Waivers.
No modification or waiver of the Agreement or any of its provisions shall be valid unless expressly agreed to by Seller in writing and signed by an officer of Seller. No waiver by Seller of any default under the Agreement shall be a waiver of any other or subsequent default.
23. Enforceability.
The unenforceability or invalidity of one or more of the provisions of the Agreement will not affect the enforceability or validity of any other provision of the Agreement.
24. No Assignment by Buyer.
Buyer may not assign any of its rights, duties or obligations under the Agreement without Seller’s prior written consent and any attempted assignment without such consent, even if by operation of law, shall be void.
25. Governing Law; Jurisdiction; Venue.
This Agreement and the sale of the Products and services shall be governed by and construed according to the laws of the State of Wisconsin, United States of America, without giving effect to its conflicts of law rules. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be brought in the federal or state courts located in Marathon County, Wisconsin, United States of America, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The parties waive their right to a jury trial in any action or proceeding arising out of or related to this Agreement. This provision specifically excludes venue and jurisdiction in any other state or federal court.
26. Survival.
All clauses of this Agreement which by their nature or operation are expected to extend beyond termination or expiration of this Agreement shall survive the expiration or termination of this Agreement to the full extent necessary for their enforcement and for the protection of the party in whose favor they operate including but not limited to limitation of liability, governing law, jurisdiction and venue, payment terms and obligations, and Buyer’s reimbursement obligation to Seller for any incentive if one was provided.
27. Statute of Limitations.
Any action, whether based upon theories of breach of warranty, breach of contract, negligence or otherwise, with regard to the products or services sold hereunder must be commenced within one (1) year after the cause of action has occurred.
28. International Transaction Provisions.
The following provisions shall apply if Buyer’s principal place of business is located outside of the United States or if the Products are shipped to Buyer at a location outside the United States:
(a) The 1980 United Nations Convention on Contracts for the International Sale of Goods shall not apply.
(b) Except as otherwise expressly stated in the Agreement, terms of delivery for Products are Ex-Works (within the meaning of INCOTERMS 2000) and all customs fees, import duties, cargo insurance, taxes and other charges imposed on or relating to the purchase or sale of the Products shall be paid by Buyer in addition to the stated price.
(c) Except as otherwise provided expressly stated in the Agreement, payment shall be made by issuance to Seller of an irrevocable letter of credit which (i) is issued and confirmed by a U.S. bank acceptable to Seller, (ii) is governed by the Uniform Customs and Practice for Documentary Credits (1993 Revision, ICC Publication No. 500) and otherwise acceptable in form and substance to Seller, and (iii) provides for payment to Seller of the full amount of the purchase price plus prepaid freight in U.S. dollars upon presentation by Seller of sight drafts, Seller’s invoice and such other documents as shall be required by the letter of credit. All banking and other charges for such letter of credit shall be charged to Buyer on Buyer’s account.
(d) Prices for the Products include Seller’s standard commercial export packaging which may vary depending on whether shipment is made by air, land or sea. Buyer will bear any additional expenses required to satisfy Buyer’s packaging requirements. Seller will mark packages in accordance with Buyer’s instructions, if any. Seller shall provide packing lists and such other information as may be necessary to enable Buyer’s agent to prepare documents required for export shipment. Buyer shall supply Seller with all necessary information and assistance for the most expeditious clearance of such shipment through customs.
(e) All shipments for Products hereunder are subject to compliance with the U.S. Export Administration Act, as amended, regulations thereunder and all other U.S. laws and regulations concerning exports. Buyer shall comply with all such laws and regulations concerning the use, disposition, re-export and sale of the Products provided hereunder.
Customer Service Hours
Seller’s customer service department is available Monday-Friday from 7:00 a.m. to 5:30 p.m. central standard time. Buyer may email or fax orders 24 hours/day to 1-800-472-0840.
Questions & Comments
If you have questions, comments, or complaints, simply let us know. Our customer service staff will obtain an answer for you.
Nelson-Jameson, Inc.
P.O. Box 647
Marshfield, WI 54449
Phone: 800-826-8302
Fax: 800-472-0840