TERMS AND CONDITIONS OF SALE
The Terms and Conditions of Sale of any product or service by Ace Tank & Fueling Equipment (“Seller”) to any and all Customers shall be governed by the Terms and Conditions of Sale (“T&Cs”) set forth on Seller’s website, which Seller may modify from time to time. If, and to the extent that, the following T&Cs vary from any written T&Cs contained on any purchase order or sales confirmation between Seller and the Customer of such product or service, the T&Cs published on Seller’s website in effect on the date of acceptance by Seller shall supersede any other writing.
1. PRICE. Unless otherwise agreed, any written prices quoted by Seller shall remain good for 30 days from quotation date. No price offer shall be effective unless in writing signed by Seller. By accepting delivery of the goods purchased from Seller, Customer agrees to the T&Cs stated on Seller’s website. For Customer’s convenience only, and not to alter these T&Cs, Customer may use any form of Purchase Order customary to its business practices. However, in the event of any conflict between those terms and these T&Cs, these T&Cs shall govern.
2. SERVICES. Unless otherwise agreed in writing, Seller shall provide no services to Customer beyond fulfilling these T&Cs. Customer acknowledges Seller has not designed or engineered any of the product or systems identified on the face hereof. Customer further acknowledges that it has furnished Seller with plans, specifications and its requirements and has not relied on Seller’s recommendations or designs.
3. PAYMENT. Customer agrees to make payment within Seller’s terms of payment as stated in the Terms area of the Invoice, or Customer will be subject to and responsible for charges of 1-1/2% per month ( 18% annum) from the date payment is due until the date payment is made or the maximum amount allowed by law.
4. TITLE AND DELIVERY AND RISK OF LOSS IN TRANSIT. Time is not of the essence of this transaction. Seller shall use its best efforts to meet Customer’s delivery date requirements. Seller shall notify customer of any reasonably foreseeable delays in delivery. Unless otherwise agreed, all goods will be shipped F.O.B. point of shipment, and title and risk of loss or damage to the goods shall pass to the Customer upon Seller’s tender of delivery to carrier at origin. Seller’s performance shall be deemed complete on tender to the originating carrier. Any freight allowance which Seller may grant based upon dollar value of a shipment, or upon the type of goods involved, shall be construed solely as a price term and not as a delivery term. Unless otherwise agreed in writing, Seller shall ship product freight collect using the carrier of Customer’s choice. If Customer fails to select a carrier, Seller shall do so, at rates established by the carrier it selects. In all instances, Customer bears the burden of insuring the goods against risk of loss or damage in transit whether domestic or international and regardless of mode of transit. In the event Customer fails to note loss or damage on bills of lading at delivery, the shipment shall be deemed to have been received in good order. Failure to note any patent loss and damage shall conclusively be deemed a waiver of claims for cargo loss or damage.
5. ERRORS. Typographical and/or mathematical errors made by Seller in quotations, acknowledgements or invoices are subject to correction. Customer shall notify Seller in writing of any latent loss or damage claim (including any claimed error in quantity shipped) within 5 business days after receipt of the goods or such claim shall be deemed waived.
6. INSPECTION AND ACCEPTANCE. Customer shall count and inspect goods within three business days following delivery at destination. Unless the shipment, or any lot thereof, is rejected within five business days following carrier’s tender of delivery, Customer will be deemed to have accepted the goods. No goods may be returned without the Seller’s permission, and if authorized for return, transportation charges must be prepaid by Customer unless otherwise noted by Seller in the authorization to return goods. All goods authorized for return are subject to Seller’s inspection and acceptance on return, and a minimum handling charge equal to 15% of the purchase price of the goods, or $20.00, whichever is greater, will be assessed, unless otherwise noted in Seller’s authorization to return said goods.
7. CHANGES OR CANCELLATIONS. Cancellation, suspension, or variation of the order shall be valid only with the consent and upon terms agreed to by the Seller in writing. In the event of such agreement Customer shall pay to Seller any cancellation, or other charges or expenses, including loss of profit, as compensation for all loss incurred as a result of cancellation.
8. WARRANTIES AND DISCLAIMER. SELLER MAKES NO EXPRESS WARRANTY WITH RESPECT TO THE GOODS SOLD TO CUSTOMER. SELLER MAKES NO IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO THE GOODS SOLD TO CUSTOMER. CUSTOMER RECOGNIZES THAT ITS WARRANTY RIGHTS ARE LIMITED TO, AND BY, THE MANUFACTURERS OF THE PRODUCTS PURCHASED. THE TERMS OF SUCH WARRANTES CAN BE OBTAINED AT www.acetank.com/about/company-policies. BY REMITTING ITS PURCHASE ORDER TO SELLER, CUSTOMER ACCEPTS THE TERMS AND LIMITATION OF WARRANTIES AS PUBLISHED ON THIS WEBSITE. CUSTOMER WAIVES ANY AND ALL CLAIMS IT HAS, OR MAY HAVE, AGAINST SELLER FOR ANY CLAIM ARISING FROM BREACH OF WARRANTY, WHETHER EXPRESS OR IMPLIED. IN THE EVENT CUSTOMER HAS A WARRANTY CLAIM, CUSTOMER’S RIGHTS, REMEDIES AND LIMITATIONS OR REMEDIES SHALL BE AS DEFINED IN, AND LIMITED BY, THE MANUFACTURERS’ WRITTEN WARRANTIES, AS SET FORTH ON SELLER’S WEBSITE. Those products which are manufactured by Source North America are subject to a separate Limited Express Warranty available on Source’s website, www.sourcena.com/warranties.
9. DISPUTES AND REMEDIES. In the event Customer presents a claim for breach by Seller, Seller shall not be liable for any indirect, incidental or consequential damages to Customer or to any third party beneficiary. In the event of any claim for breach of warranty, Customer’s remedies are limited by and to the terms of such warranty. In the event of any action to enforce or interpret this agreement, the prevailing party shall be entitled to recover its costs of such action, including its reasonable attorney’s fees. Any dispute between the parties shall be resolved by arbitration conducted by the American Arbitration Association in Chicago, Illinois. Illinois law shall govern the interpretation and enforcement of these T&Cs without respect to that state’s conflict of laws rules.
10. CUSTOMER’S RESPONSIBILITY AND INDEMNITY OF SELLER.
Customer assumes sole responsibility for providing adequate and efficient safe-ground, work-handling tools, and safety devices necessary to provide a safe workplace and to protect fully all personnel from bodily injury or death which otherwise may result from the use, operation, setup, or maintenance of the goods, including safeguards to prevent any release of liquid into the environment. Compliance with the Occupational Safety and Health Act and the regulations adopted under it and with other prevailing federal, state, and local codes and industry-accepted standards is the responsibility of the Customer. Seller shall bear no responsibility whatsoever for the failure of Customer to order, install, or use safeguards, work-handling tools; or safety devices. Customer shall establish, and require all persons who operate, set up, or maintain the goods to use all proper and safe operation procedures, including but not limited to, procedures set forth in any manuals or instruction sheets relating to the goods. Customer shall not remove or modify any devices, warning signs, or manuals furnished with or installed upon or attached to the goods. Customer waives any and all claims that it may have against Seller for any loss, injury or damages arising from Customer’s use or re-sale of the goods identified on the face hereof. Customer shall insure that all goods are installed in accordance with manufacturer’s installation instructions and applicable local and state codes.
Customer shall assume responsibility for the design and specifications of fuel storage and delivery systems purchased from Seller. Seller may substitute equal or better product for products specified by Customer, provided that such equal or better product shall be offered at the price set forth in Seller’s sales acceptance.
In the event of any malfunction of equipment (an “Occurrence”) purchased by Customer from Seller, Customer shall provide written shall notify Seller of the Occurrence promptly not later than ten (10) days after the Occurrence. Customer shall cooperate fully with Seller in investigating and determining the cause of any such Occurrence.
Customer shall indemnify, defend and hold Seller and its agents and employees harmless from and against any and all loss, damage, expense (including reasonable attorney’s fees), claims, suits, or liabilities arising from the installation and/or use of the goods.
11. LIMITATION OF ACTION. Any action or suit against Seller arising in any way from the quotation, the T&Cs, or with respect to the goods shall be commenced within one (1) year after the date of acceptance of the goods.
12. SEVERABILITY & WAIVER. The invalidity of any of the T&Cs provided on the invoice shall not invalidate the remaining valid T&Cs which shall remain in full force and effect. No waiver of performance required by Customer shall be valid unless in writing by Seller or his representative. No waiver of specific action shall be construed as a waiver of future performance.
13. EXPORT SALES. Customer shall not use the goods, or offer them for resale, in any nature to which export of United States manufactured goods is restricted under federal law. In the event Customer is acquiring the goods for resale, it will do so in accordance with all United States trade regulations and prohibitions.