Amerisource Industrial Supply General Terms and Conditions of Sale
PARTIES. “Seller” shall mean Amerisource Industrial Supply, Inc. (and its subsidiaries and affiliates). “Buyer” shall mean the entity or person submitting the purchase order to Amerisource Industrial Supply, Inc.
Buyer acknowledges and agrees that these General Terms and Conditions are incorporated in, and are a part of, this Agreement and each purchase order, release, requisition, work order, shipping instruction, specification and other document, whether expressed verbally, in written form or electronic commerce such as by electronic data interchange (EDI), relating to the products and/or services to be provided by Seller pursuant to this Agreement (such documents are collectively referred to as the “Agreement”), and that Seller’s acceptance of Buyer’s offer to purchase is made conditional upon the incorporation of these General Terms and Conditions into the Agreement. If Buyer accepts the products and/or services which are the subject of the Agreement, Buyer shall be deemed to have accepted the Agreement including these General Terms and Conditions in their entirety without modification. Any additions to, changes in, modifications or revisions of the Agreement (including these General Terms and Conditions) shall require the written consent of an authorized representative of Seller. All stenographic and clerical errors are subject to correction by Seller.
Payment shall be net 30 days from the date of Seller’s invoice without discount for early payment, unless otherwise noted by Seller and subject to submission and approval of Buyer’s credit application. Late payments are subject to a service charge equal to 1 1/2 % per month until full balance is paid. Buyer shall indemnify Seller for all costs of collection of past due amounts including attorney’s fees and court costs. Seller reserves the right at any time to suspend credit, change credit terms or terminate the Agreement or any purchase order, when, in Seller’s sole opinion, Buyer’s financial conditions so warrants. Buyer shall have no right to offset any amounts due or to become due to Seller against any claims, charges, expenses, fees or other payments of any kind whatsoever under any circumstances, including, but not limited to, any liability which may arise due to any breach or alleged breach of the Agreement or any provision thereof. All NSF checks returned to Seller will be subject to a $30 NSF fee. Seller may assign and/or sell any receivables or indebtedness owed by Buyer without notice.
Credit Card Payments
Credit cards will be accepted at the time of order from the purchaser. Credit cards are NOT eligible for any payment discounts or special terms. A customer who chooses to pay for an order more than 3 (three) days after invoicing, is subject to application of a credit card fee of 2.5% on the total purchase price.
Taxes and Exemption
Any use tax, sales tax, excise tax, duty, custom, value-added tax, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and Buyer shall be paid by Buyer in addition to price quoted or invoiced. In the event Seller is required to pay any such tax, fee or charge, Buyer shall reimburse Seller therefore or, in lieu of such payment, Buyer shall provide Seller at the time the order is submitted a W-9 and exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
Minimum Order & Fuel Surcharge
Minimum order for delivery by company truck direct to customer’s designated location is $150.00. Orders under $150.00 will be charged the greater of $15.00 for shipping and handling or actual freight. A fuel surcharge for orders delivered by company truck will be applied unless the order is picked up by Buyer or other terms have been negotiated.
Except where otherwise established via purchase order or agreement, freight is prepaid on deliveries made to any regular customer ship to location on the designated route schedule day. Minimum order for delivery by Seller’s truck direct to Buyer’s designated location is $150.00. Any order under $150.00 will be charged the greater of $15.00 for shipping and handling or actual freight. A fuel surcharge for orders delivered by company truck will be applied unless order is picked up by Buyer or other terms have been negotiated. Freight charges for expedited, emergency, non-standard delivery location or unscheduled delivery days will be the Buyer’s responsibility. If the requirement for the expedited delivery is the result of an action or inaction of Seller, the expedited freight cost will be borne by Seller Seller will use commercially reasonable effort to ensure on time delivery. In no event shall Buyer be entitled to liquidated damages as a remedy for any delay in delivery by Seller. The title and risk of loss passes upon delivery to the delivery point per applicable shipping term. Buyer shall pay all insurance costs associated with delivery. Delay in shipment shall not relieve Buyer of its obligation to accept remaining shipments.
Orders for Non-Stock or Special Order Merchandise
Minimum order quantities of non-stock merchandise will be determined by the Manufacturer’s restrictions. After receipt by Seller, special order merchandise will be delivered on the Buyer’s next scheduled delivery day. Non-Stock, special order merchandise is not returnable unless returnable by the supplier and in saleable condition. Sellers with COD terms must pay in advance for special order items. Special orders can only be cancelled up until the time it has been shipped by the supplier. All applicable cancellation and return fees are the responsibility of the customer.
Prices for products and other related information shown in any Seller or manufacturer product publication including, but not limited to catalogs, brochures, websites and Seller’s prior invoices are subject to change without notice unless established by written contract. Prices do not include related freight charges, use tax, sales tax, excise tax, value-added tax, or similar taxes, duty, customs, inspection or testing fees, or charge of any nature whatsoever imposed by any governmental authority unless otherwise noted by Seller.
If Seller and Buyer have mutually agreed to use an EDI system to facilitate purchase and sale transactions, customer agrees that it will not contest (a) any contract of sale resulting from an EDI transaction under the provisions of any law relating to whether agreements must be in writing or signed by the party to be bound thereby or (b) the admissibility of copies of EDI records under the business records exception to the hearsay rule, the best evidence rule or any other similar rule, on the basis that such records were not originated or maintained in documentary form.
Inspection and Acceptance
Buyer shall have two (2) business days from the date of delivery to inspect such products for defects and nonconformance and notify Seller, in writing, of any defects, nonconformance or rejection of such products (other than defects or nonconformities due to damage, shortage or errors in shipping which shall be reported as set forth below). Claims for shipping errors or shortages must be made in writing to Seller no more than two (2) business days after receipt of shipment. After such period, Buyer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Buyer shall have no right to reject the products for any reason or revoke acceptance. Claims for damage due to shipping must be made by Buyer to the freight carrier.
Return of Products
All returns will be pursuant to Seller’s instructions. Buyer must contact Seller for a Return Material Authorization (RMA) prior to returning any product. All returns must reference the RMA number along with the original invoice number and the reason for return. Non-warranty returns of normal stock products that are unused and are in resalable condition will be subject to Seller’s return policies in effect at the time, including applicable restocking and transportation charges and other conditions of return. If a return is necessary, please:
- Contact Seller’s customer service to inquire about your return and to receive a return authorization.
- Merchandise must be in original package, in full cases/units, as shipped, and in saleable condition
- Returns not due to an error by Seller are subject to a minimum 15% restocking fee and to manufacturer’s return policies.
- Seller’s truck will be scheduled for pickup and must be ready or, scheduled and prepaid by Buyer
- Seller reserves the right to refuse any merchandise return
Buyer will be notified of product availability at time of order and will be provided the option to backorder, substitute the product or cancel the backorder. It is Seller’s policy to keep Buyer informed of backorder status and to ship product as soon as available.
Hazard Communications – MSDS
Material Safety Data Sheets for new chemical products purchased will be provided with the product on delivery. They are also available on line and upon request to our Customer Service Department.
Buyer represents and warrants that any specifications and information delivered to Seller hereunder do not violate, infringe or constitute a misappropriation of any intellectual property rights of any third party and that Buyer is not aware of any facts upon which such infringement could be based. Buyer agrees to defend and indemnify Seller, its employees, officers, directors, successors and assigns against any and all claims for damages, claims, suits, penalties, actions, costs and expenses, including reasonable attorneys’ fees (“Losses”) related to or arising out of (a) the breach of the foregoing warranty; (b) the manufacture or sale of all or any part of the products which are manufactured in accordance with the specifications furnished by Buyer; or (c) Buyer’s negligence or willful misconduct; provided that the foregoing indemnification shall not apply to Losses arising solely out of Seller’s willful misconduct or gross negligence. Seller agrees to defend and indemnify Buyer, its employees, officers, directors, successors and assigns against any and all Losses to the extent arising only out of (i) the negligence or willful misconduct of Seller or (ii) as it relates to only products manufactured by Seller, infringement of any patent, copyright, trademark and other intellectual property right of any third party (except for infringement that results from Seller’s compliance with Buyer’s specifications or design, or from Buyer’s combination of Seller’s products with other products or services). NOTWITHSTANDING THE FOREGOING, SELLER PROVIDES NO INDEMNITIES (INTELLECTUAL PROPERTY OR OTHERWISE) RELATIVE TO ANY THIRD-PARTY PRODUCTS OR SERVICES RESOLD BY SELLER.
DISCLAIMER AND LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SELLER WILL NOT BE LIABLE FOR ANY FORM OF INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO CLAIMS FOR BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL OR THE LIKE (WHETHER DIRECT OR INDIRECT IN NATURE). SELLER’S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS AND LIABILITIES, WHETHER OR NOT INSURED, INCLUDING OBLIGATIONS UNDER ANY INDEMNITY, WILL NOT EXCEED THE COST OF THE PRODUCT(S) GIVING RISE TO THE CLAIM OR LIABILITY. SELLER DISCLAIMS ALL LIABILITY RELATIVE TO GRATUITOUS INFORMATION OR ASSISTANCE PROVIDED BY, BUT NOT CONTRACTUALLY REQUIRED OF SELLER. ANY ACTION AGAINST SELLER MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION HEREOF AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND FURTHER WILL EXTEND TO THE BENEFIT OF SELLER’S EMPLOYEES, REPRESENTATIVES AND SUPPLIERS AS THIRD-PARTY BENEFICIARIES. EACH PROVISION HEREOF WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.
Seller retains a purchase money security interest (“PMSI”) under the Uniform Commercial Code in the products sold until payment in full has been made. In the event of default by Buyer under the Agreement, Seller shall have all the rights and remedies of a secured creditor under the Uniform Commercial Code. Buyer agrees to execute such financing statements and other documents as Seller may request in order to perfect Seller’s security interest. Buyer agrees and hereby appoints Seller as its attorney-in-fact to do, at Seller’s option, all acts and things Seller may deem desirable to perfect and continue to perfect the PMSI granted hereby, including Seller’s authority to filing financing statements naming Buyer as debtor and Seller as secured party without Buyer’s signature in those states where such filings are permitted, and to sign Buyer’s name thereto where required.
Seller shall not be liable for any loss or damage as a result of any delay in shipment, delivery or installation due to any cause beyond Seller’s reasonable control, including without limitation, flood, hurricane, or other act of God, embargo or other governmental act or authority, regulation or request, fire, theft, accident, strike, slowdown, labor dispute, war, riot delay in transportation, inability to obtain necessary labor, materials or manufacturing facilities, whether at Seller’s operations or at the operations of a supplier or subSeller to Seller. In the event of any such delay, the date of performance shall be extended for a period equal to the time lost by reason of delay, plus a reasonable time for resuming performance.
Any failure of Seller to insist upon strict performance of any term of this Agreement shall not be construed as a waiver of its right to strict performance thereafter. The Agreement shall be governed by the laws of the State of Michigan, USA, without regard to its conflicts of laws principles. The parties agree that the 1980 UN Convention on Contracts for the International Sale of Products will not apply. Seller and Buyer hereby agree that any legal proceeding with respect to the Agreement shall be brought only in a court of the State of Michigan or in a court of the United States sitting in Michigan, and both Seller and Buyer submit to and accept generally and unconditionally the personal jurisdiction of those courts. The Agreement sets forth the entire understanding and agreement between the parties with respect to the subject matter hereof and cancels and supersedes all prior agreements, understandings, representations or promises, whether oral or written, between the parties. Nothing herein shall be construed to limit or waive any rights of Seller under applicable Federal, state or local laws.
Guarantees and Warranties
All manufacturers’ warranties are passed directly to our customer. All merchandise is sold without warranty or other liability of any kind, except as expressly stated on, packaged with, or accompanying such products. In no event shall Amerisource Industrial Supply be liable for any special, consequential, or punitive damages; and the company’s liability on any claim for loss, or damage, arising out of, or connect with the sale, resale, or use of any products shall in no case exceed the selling price of such product, or part thereof involved in the claim. ALL MERCHANDISE IS SOLD WITHOUT ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.