Terms and Conditions
CONTROLLING TERMS AND CONDITIONS
Schwab-Vollhaber-Lubratt, Inc. (“SVL”) is a manufacturers agent representing various suppliers. All sales and services by SVL are governed by these SVL standard terms and conditions (“Terms and Conditions”) and the terms and conditions of third party suppliers of products or services (“SVL Suppliers”) included in the sales and services offered by SVL. All terms and conditions proposed by customer are expressly rejected unless contained in a written document signed by an officer of SVL. Acceptance of an SVL proposal, submission of orders or receipt of products or services from SVL constitutes acceptance of all of the terms and conditions stated in these SVL Terms and Conditions and the terms and conditions of SVL Suppliers. In the event of conflict between these Terms and Conditions and any SVL Suppliers terms passed on to customer, these Terms and Conditions take precedence.
PURCHASE PRICE, TAXES, AND PAYMENT TERMS.
- Purchase Price and Taxes
Quotations are valid for 30 calendar days from the date of quotation. Price quotations are subject to escalation policies of SVL and SVL may pass on additional costs from SVL Suppliers. Prices do not include sales, use, excise or similar taxes or any shipping, delivery or insurance costs, which are customer’s responsibility and may be added to SVL invoices.
- Payment Terms
Except as otherwise stated in a document signed by SVL, payment of SVL invoices is due within 30 calendar days of the invoice date. Customer waives the right to assert offsets or counterclaims with respect to SVL invoices. Customer must promptly notify SVL of any disputed invoice prior to the payment due date otherwise the claim is waived. Any amounts not paid when due may be subject to a late payment fee computed daily at a rate equal to the lower of 1.5% per month or the highest rate permissible under applicable usury law. Credit terms are subject to review and adjustment by SVL’s credit department. Customer will be responsible for collection costs (including attorneys’ fees whether or not suit is commenced) incurred with respect to invoices not paid when due.
CANCELLATIONS AND DELAYS.
Accepted orders may not be cancelled by customer without written approval of SVL, which may be conditioned upon payment of cancellation fees and recovery of costs incurred.
SVL will not be liable for any delays caused by suppliers. SVL and SVL Suppliers will not be liable for delays caused by riots, strikes, natural disasters, fires, lack of transportation, accidents, disease, government action, or any other contingency beyond their reasonable control.
SHIPMENT TERMS AND RISK OF LOSS
Except as otherwise stated in a document signed by SVL, all shipments will be made FOB origination (under the Uniform Commercial Code), and title to and all risk of loss concerning the product shall pass to customer upon the delivery of the product to the carrier. Delivery dates are estimates only and the failure of SVL or SVL Supplier’s to meet the same will not be a breach. Delays in securing customer’s approval of any matter will, at SVL’s discretion, extend the date of delivery. SVL reserves the right to ship prior to the quoted ship date or to ship and invoice in installments.
INSPECTION, ACCEPTANCE, AND RETURN OF PRODUCTS.
- Inspection and Acceptance
Customer shall promptly inspect all shipments after arrival and notify SVL in writing within 10 days of arrival of any shortages or nonconformity. Claim notices must be accompanied by reference to SVL’s bill of lading and factory order numbers. Customer agrees to provide pictures and other requested support for claims and allow SVL a reasonable opportunity to inspect products to enable SVL to verify the alleged shortage or nonconformity. Customer’s failure to timely notify SVL in writing of any alleged shortage or nonconformity constitutes a waiver of claims of such claims. Customer’s rejection of any product shall not shift risk of loss of such product until the product is returned to SVL, freight prepaid, pursuant to SVL’s written authorization. Any claims for damage or shortage in transit must be filed by customer against the transportation company.
- Return of Products
Products may not be returned except as authorized by SVL. Returned product is subject to inspection. Authorized return products must be returned as directed by SVL. Customer is responsible for all handling and transportation costs.
In the interest of continuous product improvement, SVL and SVL Suppliers reserve the right to change specifications and/or design without incurring obligation.
SVL warrants to the initial purchaser for a period of 1 year after the shipment of the products that products of SVL’s manufacture to be free of defects in material and workmanship if properly installed, maintained, and operated under normal conditions, with competent supervision. Correction of such defects by repair or replacement, at SVL’s discretion, shall constitute fulfillment of all SVL obligations. Claimed defective products or parts must be returned pursuant to a material return authorization by SVL or SVL Supplier with transportation charges prepaid for inspection. SVL shall not be liable for loss, damage or expenses directly or indirectly arising from the use of its product or from any other cause. SVL assumes no liability for expenses or repairs performed by customer or anyone other than SVL, unless agreed to in writing by SVL. (See SVL’s warranty certificate for additional 4 year warranty on compressorized products.) SVL Supplier warranties are as stated in the SVL Supplier provided documentation and given solely by the SVL Supplier.
Notwithstanding anything to the contrary, (a) SVL and SVL Suppliers make no warranty with respect to motors, switches, controls or accessories, inasmuch as they are warranted separately by their respective manufacturers, and (b) motors, belts, drives, and controls are warranted by their respective manufacturers and SVL and SVL Suppliers are not liable for field labor required for repair of such items at any time.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, SVL MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT SOLD HEREUNDER OR ADVICE PROVIDED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, NON-INFRINGEMENT, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE OR ANY OTHER MATTER. NO AGENT, EMPLOYEE OR REPRESENTATIVE OF SVL HAS ANY AUTHORITY TO BIND SVL TO ANY AFFIRMATION, REPRESENTATION OR WARRANTY EXCEPT AS STATED IN THESE TERMS AND CONDITIONS OR IN A WRITTEN DOCUMENT SIGNED BY AN OFFICER OF SVL.
LIMITATION OF LIABILITY
SVL SHALL HAVE NO LIABILITY TO ANY PERSON OR ENTITY FOR, AND CUSTOMER HEREBY EXPRESSLY WAIVES, ALL INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND PUNITIVE DAMAGES OF ANY DESCRIPTION, WHETHER ARISING OUT OF WARRANTY OR OTHER CONTRACT, NEGLIGENCE OR OTHER TORT, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, FORESEEABLE BUSINESS LOSSES, LOSS OF PROFITS AND RELIANCE DAMAGES. THE PARTIES EXPRESSLY AGREE THAT THE LIMITATIONS SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SHALL SURVIVE THE DETERMINATION OF ANY COURT OF COMPETENT JURISDICTION THAT ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES SHALL SVL’S LIABILITY HEREUNDER FOR ANY CAUSE EXCEED THE PURCHASE PRICE PAID TO SLV BY CUSTOMER FOR THE PRODUCT IN RESPECT OF WHICH THE CLAIM IS MADE. No action may be brought by customer against SVL after 1 year from the date of delivery of the product or service, and customer agrees that this provision shall be grounds for dismissal of any suit or claim asserted by customer after such time..
Customer shall indemnify (and at SVL’s option, defend) and hold SVL, its affiliates and their respective officers, directors, members, managers, insurers, representatives, agents and employees harmless from any and all claims, suits, demands, losses, liabilities, damages (including injury and death) and expenses (including reasonable attorneys’ fees) (collectively, “Claims”), arising out of or relating the: (a) customer’s or its agents provided specifications, design, parts or operations; (b) customer’s use, misuse or disposal of the products supplied by SVL or SVL Suppliers; or (c) customer’s non-compliance with any law.
SVL and SVL Suppliers’ failure to object to the provisions contained in the customers’ purchase order or other communications shall not be deemed a waiver of these Terms and Conditions nor acceptance of such customer provisions. All matters relating to or arising from dealings between SVL and customer will be governed and controlled by the laws of the State of Minnesota, notwithstanding conflict of law provisions. Customer agrees to bring any claim, cause of action, suit or demand allegedly arising out of or related to the transactions between SVL and customer exclusively in the state or federal courts located in Ramsey County, Minnesota. Customer irrevocably consents to jurisdiction in, and venue of such courts. CUSTOMER IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH DEALINGS WITHIN SVL.