Terms of Sale
Sales of products or services by Amerhart, Limited (including its subsidiaries, as applicable) to Customer are governed by these terms of sale (“Terms”), unless the parties have entered into a mutually executed written agreement stating applicable terms. Acceptance by Customer of delivery of any product or service from Amerhart indicates acceptance of these Terms. Any additional, different, or conflicting terms and conditions on any document issued by Customer at any time shall be inapplicable to any sale made hereunder and shall not be binding in any way on Amerhart. These Terms can be modified, waived, or amended only by writing signed by both Customer and Amerhart.
- ORDERS. Customer may submit orders to Amerhart orally, electronically (through Amerhart’s website (located at www.amerhart.com)) or in writing at prices quoted by Amerhart. Prices are subject to change without notice. Orders are accepted at the price in effect at the time of order entry by Amerhart. Pricing errors (whether clerical or otherwise) are subject to correction at any time. Amerhart may accept or reject any order. A binding sale contract will arise only when Amerhart confirms the Customer’s order in writing or begins execution of the Customer’s order. Non-stock special orders may require a deposit before ordering. Amerhart reserves the right to discontinue the manufacture or sale of any product at any time. Quoted prices (including freight charges) apply only to quantities specified.
- TERMS OF PAYMENT. Payment is due according to the terms set forth on the invoice unless the parties agree to other terms in writing. If Customer fails to pay any sum owed when due, interest will accrue to Amerhart’s credit on such sum at the rate of 2% per month or the highest rate allowed by law, whichever is lower. If Amerhart, in its sole discretion, finds it necessary to employ an attorney and/or collection agency to collect any past due sum owed hereunder, it may collect, in addition to any other sum owed hereunder, reasonable attorney’s fees and/or collection agency fees.
- FINANCIAL RESPONSIBILITY. Amerhart may establish credit terms for Customer, and may change those terms, create, or change credit limits, or cease extending credit from time to time in its sole discretion. Customer will pay all costs for: special packing, shipping or other handling requested by Customer and agreed to by Amerhart, extra charges of carriers for Customer delays in unloading trucks or containers and other special costs incurred by Amerhart as a result of special actions or requests by Customer. Amerhart’s then-standard service charge will be applied to each returned check. Customer shall pay all invoices regardless of any dispute that may exist as to delivered or undelivered products, subject to a credit to Customer’s account in the event Customer’s dispute is upheld. Customer may not otherwise withhold, offset, or debit any amounts owed to Customer by Amerhart. Failure to pay an invoice by the due date may result in forfeiture of any rebate extended to Customer by Amerhart, at Amerhart’s sole discretion.
- INSPECTION, CLAIMS AND RETURNS. Customer is responsible to check each delivery, note in writing any discrepancies and provide documentation of such discrepancy to the Amerhart (or other delivery) driver before the driver leaves Customer’s premises. Customer must provide notice of any latent or hidden defects that could not be discovered upon delivery by the end of the second business day after the date of delivery. In the absence of such notice, Customer will be deemed to have accepted the products as delivered, and Amerhart will have no liability whatsoever. Customer must retain damaged or defective products for inspection by Amerhart for two weeks after notifying Amerhart of the damage or defect, or longer if requested by Amerhart, and return such products to Amerhart at Amerhart’s request.
- RETURNS. All returns must be pre-approved by an Amerhart manager or sales representative (or submitted on the Amerhart website for approval). Only salable material will be credited upon return. Non-stocked, special-order items or altered products or materials cannot be returned. No returns will be accepted 120 days after delivery. Any chargeable pallet can be returned for credit, provided it is in usable condition. Customer must complete a Return Material Authorization (RMA) requested from Amerhart sales staff. Returned product will be collected by an Amerhart authorized carrier. Only product listed on the relevant RMA will be collected and returned. Returned product is subject to applicable freight and handling charges and restock charges may apply. product will be accepted for return in the same quantity minimums as sold. Items purchased by the piece can be returned by the piece. Neither Amerhart drivers nor any third-party carriers will be responsible for an accurate count of returned product; all returns are subject to inspection at an Amerhart facility.
If returned product is deemed to be unsaleable upon return, the product will be disposed of by Amerhart and not returned to Customer.
- EWP AND OTHER DESIGN LIMITATIONS. Any services (including but not limited to design and/or engineering-related services) provided by Amerhart with respect to Engineered Wood Products (“EWP”) and/or laminated columns are based solely on the information provided to Amerhart. Amerhart has no control over the product supplied or selected for any project. Amerhart employees are not engineers, and not a substitute for an engineer on any project, and each customer and/or contractor must check all details and dimensions and be responsible for the same. Any incomplete information and/or substitutions may alter the intended performance of any products specified in any service, design or drawing. Amerhart is not be responsible for construction means, methods, techniques, sequences, procedures or safety precautions or programs, and Amerhart’s liability to the final customer and to all contractors and subcontractors for any and all claims, losses, costs, or damages of any nature whatsoever, including but not limited to claims for negligence, breach of contract, professional errors or omissions, or strict liability, is limited to Amerhart’s total fee for products provided by Amerhart directly on or to the specific project for which a service applies or has been performed. Amerhart shall not be liable for any incidental, consequential,
special or punitive damages, even if advised of the likelihood of such liability.
- LIMITED WARRANTY and LIMITATIONS OF LIABILITY. With the exception of Amerhart’s limited warranty regarding Post Wrap products (see separate warranty information on www.amerhart.com), products are warranted solely to comply with any warranty and specifications provided by the original manufacturer or producer of the products. Should any product sold hereunder be found not to meet the foregoing warranty, Amerhart will take such action as is specified in the warranty of the original manufacturer or producer, or, at Amerhart’s election, return the purchase price. Written notice of any warranty claim must be provided to Amerhart within the time specified in the warranty of the original manufacturer, and Customer must afford Amerhart a reasonable opportunity to inspect the products in unaltered condition and evaluate the claims in accordance with procedures specified in the original manufacturer’s warranty.
NO WARRANTIES (INCLUDING BUT NOT LIMITED TO WARRANTIES FOR ANY SERVICES PROVIDED BY AMERHART) EXTEND BEYOND THE FOREGOING, WHICH ARE EXTENDED IN LIEU OF AND TO EXCLUSION OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. AMERHART DOES NOT WARRANT THAT ANY SERVICES OR PRODUCTS ARE FREE OF CLAIMS OF PATENT, TRADEMARK, TRADE SECRET, OR COPYRIGHT INFRINGEMENT BY A THIRD PARTY. AMERHART HEREBY DISCLAIMS ANY SUCH WARRANTIES OR
INDEMNIFICATION. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
UNDER NO CIRCUMSTANCES AND TO THE EXTENT PERMITTED BY LAW SHALL AMERHART BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE. EXCEPT WITH RESPECT TO DAMAGES CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE EXTENT PERMITTED BY LAW, THE AGGREGATE AND CUMULATIVE LIABLITY OF AMERHART REGARDLESS OF THE FORM OF ACTION SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE PRODUCTS SOLD HEREUNDER ON ANY SPECIFIC ORDER PLACED HEREUNDER.
- TITLE AND RISK. Amerhart warrants it has and will convey good and marketable title to the products sold hereunder. Title and risk of loss or damage passes to Customer as follows: (A) if the shipment of products originates at the manufacturer’s place of business, then upon delivery of such products to the carrier, or (B) if the shipment of products originates at an Amerhart facility, then upon delivery of such products to the shipping destination (whether or not Customer acknowledges Amerhart’s proof of delivery).
- DELIVERY. Delivery dates stated in advance of shipment from suppliers are based on estimates from suppliers and are not guaranteed dates. Amerhart shall use commercially reasonable efforts to meet requested or agreed-upon delivery dates, but Amerhart will not be liable for any claims due to delays in shipment or delivery. Customer shall provide suitable roadways or approaches to points of delivery to the extent controlled by Customer. Partial deliveries are permitted.
- DELAYS. In the event Amerhart is unable to ship ordered products because of fire, flood, windstorm, or other natural disaster or act of God, terrorism, riots, wars, cybersecurity threats or actions, labor or civil disturbance, shortage of raw materials, failure of timely delivery by Amerhart’s suppliers, energy or transportation shortages, failure of computer system, destruction or loss of electronic records, plant shutdown, or any other cause whether or not similar to the causes listed above, beyond Amerhart’s reasonable control, Amerhart reserves the right to cancel the affected order without any liability to Customer whatsoever. In no event shall Amerhart be obligated to purchase products from others to enable Amerhart to deliver products to Customer hereunder.
- DEFAULT. Customer will be in default and considered past due if (a) Customer fails to pay to Amerhart any amount when due, (b) Customer fails for a period of five (5) days after receiving written notice from Amerhart to fulfill or perform any provisions of these Terms (other than the prior provision relating to due date of payments), (c) Customer becomes insolvent or bankrupt, or a petition therefor is filed voluntarily or involuntarily and not dismissed within 30 days from filing, or
(d) Customer makes a general assignment for the benefit of its creditors, or a receiver is appointed, or a substantial part of Customer’s assets are attached or seized under legal process and not released within thirty 30 days thereafter.
Upon Customer’s default, Amerhart may, at its option, without prejudice to any of its other rights and remedies, (a) make any delivery subject to receipt of cash in advance, (b) terminate any in- process orders and declare immediately due and payable the obligations of Customer for products previously shipped, notwithstanding any other provision in these Terms, (c) demand reclamation,
and/or (d) suspend any further deliveries until the default is corrected, without releasing Customer from its obligations under these Terms.
- APPLICABLE LAWS; SAFETY DATA SHEET (SDS). Customer will comply with all applicable laws, including anti-bribery laws and export control laws and regulations. Customer will familiarize itself with all information and precautions disclosed in safety and health information, including, but not limited to, any SDS, available to Customer from Amerhart and/or on Amerhart’s website at www.amerhart.com.
- PURCHASE MONEY SECURITY INTEREST. As collateral security for the payment of the purchase price of the products, the Customer hereby grants to Amerhart a lien on and security interest in and to all of the right, title, and interest of the Customer in, to and under the products, 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 of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code and analogous state law.
- TAXES. All sales, excise, or other forms of taxes, including tariffs, levied against the purchase of products by Customer will be paid by Customer over and above all other sums Customer may be or may become obligated to pay hereunder. Customer acknowledges and agrees to pay all such taxes passed through to Customer (unless Customer has supplied a valid tax exemption form to Amerhart).
- INDEMNIFICATION. Customer shall indemnify, defend and hold Amerhart harmless from
all claims, damages and expenses (including attorneys’ fees) arising out of Customer’s (a) breach of these Terms, (b) possession, use, handling, storage, sale, processing or any disposition of the products, and/or (c) errors, omissions, negligence or other wrongful conduct of Customer and its customers, users, agents, contractors or subcontractors. Amerhart shall have the right to select and retain counsel of its own choosing, all at Customer’s expense, and to participate in the defense of any claim hereunder.
- DESIGNATED COPYRIGHT AGENT. Amerhart’s DMCA Designated Agent to receive notifications of claimed infringement is: Attn: General Counsel, Amerhart, Limited, 2455 Century Road, Green Bay, WI 54303 email: [email protected] See also DMCA Designated Agent Directory.
- GOVERNING LAW. These Terms and the transaction between Customer and Amerhart hereunder are governed by and construed and interpreted in accordance with the laws of the State of Wisconsin without giving effect to its conflicts of law principles. Customer agrees that the exclusive forum for any action to enforce these Terms, as well as any action relating to or arising out of these Terms, will be the state or federal courts of the State of Wisconsin. With respect to any such court action, Customer hereby (i) irrevocably submits to the personal jurisdiction of such courts; (ii) consents to service of process; (iii) consents to venue; and (iv) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction, service of process, or venue. CUSTOMER WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THE EWP AGREEMENT
OR THESE TERMS. Any legal action against Amerhart for breach of these terms of sale, including any warranties, must be instituted within one (1) year after delivery of the products at issue hereunder. The United Nations Convention for the International Sales of Goods does not apply to any transaction and/or purchase of product between Amerhart and Customer.
- MISCELLANEOUS. Any additional, different, or conflicting terms and conditions on any document issued by Customer at any time will be inapplicable to any sale made hereunder and will not be binding in any way on Amerhart. These Terms can be modified, waived, or amended only by writing signed by both Customer and Amerhart. If any of these Terms are held by a court of competent jurisdiction to be unenforceable, the remaining Terms shall remain in full force and effect. These Terms are binding upon and shall inure to the benefit of the respective successors and permitted assigns of the parties.