TERMS & CONDITIONS
SELLING COMPANY – The seller identified on the front of the invoice is referred to as “SELLING COMPANY”.
GENERAL TERMS & CONDITIONS – All sales of materials or equipment (hereinafter “Materials”) by SELLING COMPANY are expressly conditioned upon the terms and conditions set forth below. Any additional or different terms or conditions set forth in the purchase order of the Purchaser (as defined in the purchase order) or in any similar such communication are hereby objected to by SELLING COMPANY and shall not be binding or effective unless assented to in writing by the President of the SELLING COMPANY.
The accompanying quotation and these Terms & Conditions (“Terms”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties and communications, both written and oral. These Terms prevail over any of Purchaser’s general terms and conditions of purchase regardless of whether or when Purchaser submits its purchase order or such terms. Fulfillment of Purchaser’s order does not constitute acceptance of any of Purchaser’s terms and conditions and does not serve to modify or amend these Terms.
PRICE QUOTATIONS – All quotations are made in accordance with SELLING COMPANY’s interpretation of the plans and specifications. Quotations include only the Materials listed and are subject to correction of errors by SELLING COMPANY. Deviations in quantities may modify prices quoted. Quotations must be accepted within 30 days from the date thereof, unless otherwise provided, or the quotation shall be void. Any orders resulting from quotations are subject to approval of SELLING COMPANY’s credit department. In case of a price increase, any unfilled portion of any order will be billed at the price in effect at the time of shipment unless otherwise stated on a quotation. Prices quoted do not include any state or federal taxes. All Materials specified in quotations are to be within the limits and sizes of the manufacturer and subject to standard manufacturing practices. Possession of a quotation does not necessarily constitute an offer to sell.
ORDER ACCEPTANCE AND CANCELLATION – Purchaser agrees that its order is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by SELLING COMPANY, and SELLING COMPANY is not obligated to sell the products or services to you. SELLING COMPANY may choose not to accept orders at our sole discretion, even after SELLING COMPANY sends you a confirmation email with your order number and details of the items Purchaser has ordered.
SALES PRICES & TERMS – Unless otherwise noted, all prices by SELLING COMPANY are subject to change without notice. Prices are exclusive of all sales, use, or excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Purchaser. Any such taxes, duties and charges currently assessed or which may be assessed in the future, that are applicable to the sales made to Purchaser pursuant to these Terms and Conditions are for Purchaser’s account, and Purchaser hereby agrees to pay such taxes. Unless otherwise noted, all sales are made F.O.B. point of shipping; in all cases, title shall pass upon delivery to the carrier at the point of shipment and thereafter all risk of loss or damage shall be upon the Purchaser. As collateral security for the payment of the purchase price of the Materials, Purchaser hereby grants to SELLING COMPANY a lien on and security interest in and to all of the right, title and interest of Purchaser in, to and under the Materials, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Minnesota Uniform Commercial Code. Where Purchaser is to inspect or test the Materials purchased, inspection and acceptance must be made before the shipment. SELLING COMPANY may, in its sole discretion, without liability or penalty, make partial shipments of Materials to Purchaser. Each shipment will constitute a separate sale and Purchaser shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Purchaser’s purchase order.
DELIVERY FEES (FOR DISTRIBUTION SOLUTIONS CUSTOMERS)
Small Order Fee: Orders under $500 may be subject to a $50 Small Order Fee to help recoup shipping charges. To avoid this fee please place orders of $500 or more. Orders containing Mighty-branded products are exempt from the Small Order Fee. National Account orders that do not meet the published OEM minimum order sizes from Exxon Mobil are also subject to a $50 Small Order Fee.
Freight Fee: Orders shipping on 3rd party carriers, per the customer’s request, may be subject to an $85 Freight fee to help recoup shipping charges. To avoid this fee please request that your orders are delivered on our Lube-Tech truck rather than a 3rd party carrier.
Priority Delivery Fee: Same day or rush deliveries may be subject to a $150 Priority Delivery Fee to help recoup shipping or delivery charges.
DELIVERY – SELLING COMPANY The Materials will be delivered within a reasonable time after the receipt of Purchaser’s purchase order, subject to availability of finished Materials. SELLING COMPANY shall not be liable for failure to deliver or for delays in delivery or performance due to (1) causes beyond its reasonable control, or (2) act of God, acts of Purchaser, acts of civil or military authority, priorities or other governmental allocations or controls, fires, strikes, or other labor difficulties, riots, and other civil disturbances, delays in usual source of supply, delays in transportation, or (3) any other commercial impracticability. In the event of any such delay, the date of delivery or performance shall be extended for a period equal to the time lost by the reason on delay.
PAYMENT – Each shipment or delivery shall be deemed to have been sold under a separate independent contract. If, in the judgment of SELLING COMPANY, the financial condition of the Purchaser at the time of manufacture or shipment does not justify the terms or payment specified, SELLING COMPANY reserves the right to require full or partial payment before the manufacture or shipment and suspend any further performance until such payment has been received. Purchaser shall pay all invoiced amounts due to SELLING COMPANY within Twenty (20) days from the date of SELLING COMPANY’S invoice.
WARRANTIES – (1) With respect to product sold hereunder that is manufactured or blended by others; SELLING COMPANY is neither the manufacturer nor the agent nor representative of the manufacturer of said material or equipment sold herein. Material and equipment distributed by SELLING COMPANY are the products of manufacturers sold under their prospective brand or trade names. Except as to title, SELLING COMPANY MAKES NO WARRANTIES, EITHER WRITTEN, ORAL, IMPLIED, OR STATUTORY relating to the Materials distributed by SELLING COMPANY, including any WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise. Purchaser shall rely on those warranties or guarantees of the manufacturers of said Materials, for which SELLING COMPANY assumes no responsibility, (2) With respect to product sold hereunder manufactured or blended by SELLING COMPANY; SELLING COMPANY warrants that said product meets and complies with the published specifications of SELLING COMPANY in connection with said products and SELLING COMPANY MAKES NO WARRANTY AS TO FITNESS FOR ANY PARTICULAR PURPOSE.
LIMITATION OF LIABILITY – SELLING COMPANY liability on any claim for loss or damage arising out of sales contracts or from the performance or breach thereof or connected with the supplying of Materials thereunder, or its sale, resale, operation or use, whether based on warranty, contract, negligence or other grounds, shall not exceed the price allowable to such material or equipment or part thereof involved in the claim. SELLING COMPANY shall not, under any circumstances, be liable for any labor charges unless agreed upon, in advance, in writing by an authorized officer of SELLING COMPANY. IN NO EVENT SHALL SELLING COMPANY BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLING COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
LOAN AGREEMENT – The Materials purchased by Purchaser are loaned to Purchaser by SELLING COMPANY at the request of the Purchaser, to be solely, actively and continuously used by Purchaser on its or his premises in the storage, handling, advertising, and/or sale of products purchased from SELLING COMPANY and for no other purpose. It is expressly agreed by the parties that said items are at all times and shall remain the property of the SELLING COMPANY, and if, at any time, Purchaser shall cease to occupy its or his premises or shall cease to deal in products purchased from SELLING COMPANY or shall not actively and continuously handle and sell the same to its or his customers in a manner satisfactory to SELLING COMPANY, or shall at any time use sold items for any other purpose than as provided herein, or in any other manner violate any of these Terms, SELLING COMPANY shall have the right to enter any of the premises or any other premises where any of the items may then be, with such agents and methods as SELLING COMPANY deems necessary and remove and retake said items, without recourse to any legal proceedings or that purpose, and without liability for damages in any event for so doing. Purchaser agrees to install and maintain said items in a proper and safe manner and in good condition and repair at all times and to pay any and all taxes levied on the same, and further agrees not to encumber or remove the same, or any part thereof, and not to do or suffer to be done, anything whereby the items or any part thereof, shall be attached, seized, taken in execution, destroyed or damaged, or anything whereby the title of the SELLING COMPANY to any of said items may in anyway be prejudiced. Purchaser accepts the Materials in their present condition and agrees that no representations or warranties, express or implied are made by SELLING COMPANY, as to the condition or fitness of said Materials, or any part thereof, except as otherwise provided for herein, and does hereby assume all risk in any manner arising out of the presence and use of same; and Purchaser hereby waives and relinquishes any and all claims against the SELLING COMPANY, and does hereby release, discharge, and agree to protect and save harmless and indemnify SELLING COMPANY from any and all liability or claims for loss, damage or injury to persons or property, including, but not by way of limitation, Purchaser, Purchaser’s agents, representatives or any other person or persons, on or about said premises, or the property of any of them, by reason of leakage, fires, explosion, or other casualty occurring through any latent or patent imperfection, injury in or damage to, or by reason of the use of said items or any part thereof, or from any cause whatsoever. No modification of this provision of these Terms shall be binding on either party unless such modification shall be in writing duly accepted and agreed to by SELLING COMPANY.
CONTAINERS AND PALLETS – Containers and pallets charged on this order must be paid for the same as merchandise and are returnable for partial credit within six months from date of shipment provided, they show no evidence of abuse or use for purpose other than storage of original contents.
COMPLIANCE WITH LAW – Purchaser shall comply with all applicable laws, regulations and ordinances. Purchaser shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations.
CANCELLATION – Purchaser may cancel any order only by mutual agreement based upon payment to SELLING COMPANY of reasonable and proper cancellation charges, with such charges to be determined by SELLING COMPANY. SELLING COMPANY may terminate its agreement with Purchaser with immediate effect upon written notice to Purchaser, if Purchaser: (i) fails to pay any amount due and owing to SELLING COMPANY; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
RETURNED GOODS – Material and equipment must not be returned without the advanced written consent of SELLING COMPANY. All returns will be subject to a restocking charge of at least 15%. Purchaser shall be responsible for all shipping and handling charges on returned items unless otherwise specified by SELLING COMPANY.
WAIVER – No waiver by SELLING COMPANY of any of the provisions of these Terms or any agreement between SELLING COMPANY and Purchaser is effective unless explicitly set forth in writing and signed by SELLING COMPANY. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms or any agreement between SELLING COMPANY and Purchaser operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
ASSIGNMENT – Purchaser shall not assign any of its rights or delegate any of its obligations under these Terms or any agreement between SELLING COMPANY and Purchaser without the prior written consent of SELLING COMPANY. Any assignment of any contract involving an order, or any rights thereunder, by the Purchaser without the advance, written consent of SELLING COMPANY shall be void. No assignment or delegation relieves Purchaser of any of its obligations to SELLING COMPANY.
GENERAL – All orders are subject to acceptance by SELLING COMPANY and all sales contracts for Materials entered into by SELLING COMPANY shall be construed and governed by Minnesota law. Any representation, affirmation of fact, and course of dealings, promise or condition in connection therewith or usage of the trade not incorporated herein shall not be binding on either party. No waiver, alteration or modification of any of the provisions hereof shall be binding unless in writing and signed by the President of SELLING COMPANY.
RELATIONSHIP OF PARTIES – Nothing contained herein shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
SEVERABILITY – If any terms or provision of these Terms is determined to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
SERVICE CHARGES – A monthly service charge equal to the lesser of 18% annually or the highest rate allowed by law will be made on all past due accounts. All costs associated with collecting delinquent accounts will be the responsibility of the Purchaser, including, but not limited to, collection costs, attorney fees, filing fees, and other miscellaneous fees and costs. All costs associated with carrying and storing product for an order ready for shipment but delayed at the request of Purchaser will be the responsibility of the Purchaser, including, but not limited to, demurrage costs, warehousing costs, cost of funds, and other miscellaneous costs and fees. All checks returned for non-payment will be accessed a $25.00 fee. These Terms shall be interpreted and construed in accordance with the laws of the State of Minnesota. The parties expressly agree that any suit between the parties in connection with this agreement shall be filed and venued in the County of Hennepin in the state of Minnesota with respect to any dispute, proceeding, or action arising from these Terms.
FORCE MAJEURE. –No party shall be liable or responsible to the other party, nor be deemed to be in default or breach for any failure or delay in fulfilling or performing any of these terms and conditions (except for any obligations of Purchaser to make payments to SELLING COMPANY hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances;(h) shortage of adequate power or transportation facilities; and other events beyond the reasonable control of the Impacted Party.