General Terms and Conditions for the Sale of Goods
Applicability.
These terms and conditions (“Terms and Conditions“) apply to the viewing, purchasing and sale of products (“Goods“) from TUFFA Products LLC, or its affiliates (“Seller“), through flangetags.com (the “Site“). By viewing the Site, placing an order or completing a purchase, you agree to be bound by and accept these terms and to bind any company, firm, person or other entity (collectively, “Buyer“) on whose behalf you are yourself making such purchase.
These Terms and Conditions, together with the applicable order acknowledgement, confirmation page or any other Seller documents (if any), constitute the entire and exclusive agreement (collectively, “Agreement“) between Buyer and Seller with respect to the purchase and sale of Goods through the Site, except where Buyer and Seller have signed a master purchasing agreement prior to any such purchase or sale.
Except as provided above, these Terms and Conditions supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, communications, both written and oral. Seller objects to any additional or different terms or conditions contained in any request for quotation, purchase order, or other document or communication previously or hereafter provided by Buyer to Seller, and Seller’s shipment of any Goods shall not be construed as assent to any such terms or conditions. No such additional or different terms or conditions will be of any force or effect. Seller reserves the right to revise these Terms and Conditions at any time.
Delivery.
The Goods will be delivered within a reasonable time after the receipt of Buyer’s online order or purchase order (“Order”), subject to availability. Shipment dates are based on Seller’s best estimates and are not guaranteed. Seller shall not be liable for any delays, loss, or damage in transit.
Seller shall deliver the Goods to the location listed on the Order (the “Delivery Point“) using Seller’s standard methods for packaging and shipping such Goods.
Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries.
Shipping Terms. Products are shipped F.O.B. departure origin to the Delivery Point, with freight pre-paid and added to the invoice. Seller is not liable for any delays, loss, or damage in transit. All shipping charges are prepaid by Seller and added to the Buyer’s invoice unless Buyer chooses to be billed freight collect. Any additional charges for services requested by the Buyer or necessary for delivery, including but not limited special routing, residential delivery or pre-delivery notification must be paid by the Buyer. Buyers must specify any special restrictions when placing an order.
Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Goods F.O.B. departure origin. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, 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 New York Uniform Commercial Code.
Inspection and Rejection of Nonconforming Goods.
Buyer shall inspect the Goods within 30 days of receipt (“Inspection Period“). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods (as defined below) during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) Good shipped is materially different than identified in the Order; or (ii) Good’s label or packaging incorrectly identifies its contents.
If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable third-party shipping and handling expenses incurred and paid by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at 1005 N. Commons Drive, Aurora, IL 60504. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Seller’s expense and risk of loss, the replaced Goods to the Delivery Point.
Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer’s exclusive remedies for Nonconforming Goods. Except as provided under Section 5(b) and 6(a), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
No Cancellation, Returns and Restocking.
Non-customized Goods may be returned to Seller within 30 days after delivery (the “Return Period”). In order to be eligible for return, goods must be unused, unopened, and in their original packaging and returned within the Return Period. Buyers shall be responsible for any and all shipping and insurance costs for delivery of the returned Goods to Seller’s facility and shall bear risk of loss until received at Seller’s facility, along with a minimum restocking of 15% of the Price for such Goods. Customized Goods may not be returned to the Seller except as set forth in Section 5(b), no Good(s) may be returned to Seller without the prior written consent of Seller.
Price.
All information regarding pricing and services is subject to c Seller reserves the right to make adjustments to pricing at any time, without notice, and for any reason, including, but not limited to, changing market conditions, discontinuation, unavailability, manufacturer price changes and errors in advertisements.
Prices listed are net and do not include shipping charges, taxes and/or duties or special crating requirements for export shipment, for which Buyer shall be responsible and Buyer agrees to pay. If Buyer claims exemption from taxes or duties, Buyer is responsible for providing Seller with the necessary documentation at the time of purchase; if Buyer does not provide such documentation, taxes will be added to Buyer’s order or separately invoiced to Buyer.
Customized Goods.
Goods that are customized to Buyer’s specifications (“Customized Goods”) are available for purchase on the Site by filling out a “Request a Quote.” If accepted by Seller, Seller will confirm with Buyer and the proofing process will begin upon Order confirmation. Unless otherwise set forth herein Customized Goods are considered “Goods.” Upon Buyer’s request, Seller will prepare an electronic proof before the Order is processed.
The electronic proof supplied by Seller may not be an exact color match or reference. For specific color requirements, Buyer should order a hard copy color proof to confirm an exact color match before providing Seller with approval to print.
Buyer must allow up to 1 millimeter for trimming variance. Any important text or logos must be at least 3-4 millimeters from the border.
Seller reserves the right to reject any offensive or suggestive material submitted for printing, including blasphemous content.
Once an Order is approved by Buyer, the artwork is deemed final.
Payment Terms. Terms of payment are within Seller’s sole Seller accepts all major credit cards, checks, or e-checks (electronic payments) at the time of order. If Buyer has established Seller credit as well as a customer account number with an account in good standing, payment terms are net 30 days from the date of invoice.
Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms and Conditions or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof.
Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
Ownership of Materials, Trademarks and Copyright.
Seller and its licensors is and shall remain the sole and exclusive owner of all intellectual property rights in and to all Goods and services made available on the Site and any related specifications, documentation, artwork, logos, or other materials. Buyer shall remain the sole and exclusive owner of all artwork, logos, data, information or other materials submitted by Buyer to Seller (the “Buyer Materials”) for the preparation of Customized Goods. Buyer hereby grants to Seller a royalty-free, non-exclusive license with right of sublicense to use, reproduce, display, publish, and modify the Buyer Materials as needed to create, produce and deliver the Customized Goods pursuant to the Order and Seller is authorized to display any Goods with such Materials on the Site for promotional purposes. Buyer hereby represents and warrants that Buyer has all necessary rights and permissions to grant the license granted herein to Seller. To the extent Buyer Materials include any legally unprotectable elements (“Public Domain Elements”), Buyer acknowledges Seller has the unrestricted right to use, reproduce, display, publish and modify the Public Domain Elements.
No Warranty.
Buyer acknowledges that Seller is not the manufacturer of any of the Goods purchased hereunder. Seller makes no warranty to Buyer under these Terms and Conditions and expressly disclaims any and all warranties, implied or express, including, without limitation, any warranty of merchantability, warranty of non-infringement of intellectual property rights of a third party, warranty of fitness for any particular purpose and any warranties arising from course of dealing or usage of trade. Seller shall provide to Buyer if any the standard published warranties of the manufacturer of the Goods, as in effect on the date of delivery of such Goods, to the extent permitted by such warranties and applicable law. A manufacturer’s warranty may exceed thirty days and a valid warranty claim may allow Seller to accept a return beyond the standard 30-day period. Any description of Goods sold or provided by Seller, whether in writing or made orally by Seller or its employees or agents, and any samples, specifications, bulletins, catalogs, drawings, diagrams, or similar materials used in connection with Seller’s sales efforts or Buyer’s orders, are for the sole purpose of identifying the Goods, and shall not be construed as an express warranty.
Any statements by Seller or its employees or agents, whether in writing or made orally, regarding application, use or suitability of the Goods shall not be construed as an express warranty.
Seller shall not be liable for any breach of warranty claims or for any damages arising out of the manufacturer’s failure to fulfill its warranty obligations to Buyer.
Limitation of Liability.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER 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 SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER GIVING RISE TO THE APPLICABLE CLAIM OR CAUSE OF ACTION.
The limitation of liability set forth in Section 12(b) above shall apply to the greatest extent permitted by applicable law.
Seller is not responsible for any damage or loss, medically or otherwise, resulting from Buyer’s use or resale of the Goods. Buyer is responsible to ensure that the product is fit for the purpose for which it is being used.
Indemnification. Buyer agrees to defend, indemnify, and hold harmless Seller and each of its affiliates and each of their respective directors, officers, managers, members, employees, agents, successors and assigns (collectively, “Indemnified Parties“) against damage, loss, liability, cost or expense (including reasonable attorneys’ fees) incurred by any Indemnified Party arising out of or resulting from (a) buyer’s negligence or intentional misconduct, (b) any third party claim arising out of or relating to any products sold or services rendered by the Buyer, and (c) any claim that the Buyer Materials infringe a any third party intellectual property right or other rights.
Termination. In addition to any remedies that may be provided under these Terms and Conditions, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms and Conditions, 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.
Waiver.No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement 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.
RESTRICTIONS ON EXPORT. If the ultimate destination of the Goods is outside of the United States, the parties agree that Convention on the Contracts for the International Sale of Goods does not apply in any way to this Agreement, and Buyer shall designate such country of destination on the Order. In the event that Buyer purchases Goods for export without so notifying Seller, Seller reserves the right to cancel this Agreement at no penalty or liability for breach in the event that Seller objects to the ultimate destination of the Goods. Buyer shall comply with all export and import laws of all countries involved in the sale of Goods under this Agreement. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer will have sole liability and shall defend, indemnify and release Seller for any loss or damage (including without limitation, claims of governmental authorities) arising from import into another country of such Goods, including, without limitation, those related to packaging, labeling, marking, warranty, contents, use, or documentation of the Goods. Buyer will not take, and will not solicit Seller to take, any action which would violate any anti-boycott or any export or import statutes or regulations of the United States or other governmental authorities and shall defend, indemnify, and reimburse Seller for any loss or damage arising out of or related to such actions.
Force Majeure.No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller 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, explosion, pandemics or epidemics, including COVID-19; (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 (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within a reasonable time of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
Governing Law.All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Illinois.
Limitations of Actions.Any action by Buyer against Seller for breach of this Agreement must be commenced within twelve (12) months from when delivery of the Goods was made.
No Authority. No dealer, broker, branch manager, agent, employee or representative of Seller has any power or authority except to take orders for Seller’s Goods and to submit the same to Seller, at Seller’s factory, for Seller’s approval and acceptance on the terms herein or rejection.
Survival.Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Limitation of Liability, Limitation of Actions, Indemnification, and Disclaimer.
