All products sold and services rendered by
Vallen, Inc. ("Vallen") shall be governed solely by the
terms of this document, and such terms and conditions shall apply regardless of
any additional or conflicting terms or conditions on any purchase order or other
form issued by a purchaser ("Customer") or in the course or performance or
course of dealing. None of the terms herein may be modified, waived or
superseded except with the written consent of an authorized representative of
Vallen. Neither Vallen's acknowledgment of a purchase order nor
Vallen's failure to object to conflicting or additional terms and conditions
in a purchase order shall be deemed an acceptance of such terms and conditions
or a waiver of the provisions hereof and acceptance by Customer of products or
services shall be deemed assent to any additional or different terms contained
herein.
Commercial
Purpose— Vallen sells products to Customers for (i)
resale, or (ii) use in business, government or original equipment manufacture.
The limited warranties set forth below apply to the sale of such products.
Possession of, or access to, any Vallen catalogs, literature or websites does
not constitute the right to purchase from Vallen. Identification is required
from all Customers. All references herein to the term "products" shall include
services provided by Vallen.
Pricing— Prices shown on Vallen’s website or in any
Vallen catalog are current at the time of publication. Prices and
availability are subject to change without notice. For questions regarding price
quotations, please contact your Vallen representative. All prices offered are
net wholesale prices with trade discounts already deducted. Market-sensitive
commodity items will be priced according to current market conditions.
Taxes, Duties and
Freight— Customer shall pay the amount of any taxes, duties
and similar charges levied by any government authority in connection herewith.
Such charges are not included in the price of the product and will be added to
payments due to Vallen. Customer agrees it will be responsible for all
additional taxes and/or penalties from a taxing authority, and all legal
expenses incurred by Vallen due to incorrect taxing information furnished by
Customer.
Payment Terms— Payment of any invoice shall be due net thirty
(30) days from the date of invoice unless otherwise expressly agreed to in
writing by Vallen and Customer (the "Payment Date"). If credit is not
established, Vallen accepts Visa, MasterCard, Discover, or American Express
cards, or Customer may include payment with order or authorize COD terms. Cash
discounts are not allowed. All payments must be made in US dollars.
Payments not received by the Payment Date will be
subject to a late fee of 1.5%, or the maximum lawful rate, whichever is lower,
of the outstanding invoice balance for each 30-day period or portion thereof
past due. All costs of collecting any moneys due from Customer under the terms
and provisions hereof, including but not limited to, legal expenses, legal
interest, attorneys' fees and collector's expenses, shall be paid by Customer to
Vallen. Vallen reserves the right, in its sole discretion, to: (a)
withhold shipments, (b) require prepayment, and/or (c) impose or revise any
credit limits (if applicable) on Customer's purchases when Vallen deems
itself insecure with respect to Customer's ability to pay for the purchase
order.
CANCELLATION
— Any cancellation by Customer must be approved by
Vallen, and may be subject to restocking and other charges.
RETURNS— Returns will be accepted prior to the Payment Date
if prior authorization is obtained from Vallen, the product is in resalable
condition and is in the original manufacturer's package with sales receipt or
invoice. Credit will be issued based on Customer's purchase price for the
returned product less any applicable restocking charges, freight, or other
expenses of return to manufacturer or disposal. Orders that were factory special
orders or otherwise fabricated and altered to accommodate Customer are not
returnable.
PARTIAL SHIPMENTS— Customer agrees
to accept partial or pro rata deliveries in commercial units as full performance
under Customer's purchase order in the event that Vallen is unable to fill
Customer's entire order.
SHIPPING & HANDLING— All freight is prepaid and billed shipped to the
Customer's place of business in the continental United States, using local
shipping point and routing of Vallen's choice. Insurance fees may be added
for high value shipments. Any extra charges incurred for additional services
approved by Vallen, such as Customer-specified routing, or use of Customer's
carrier or special handling at the destination, must be paid by the Customer.
Title and risk of loss pass to Customer on delivery to the common carrier. All
products shall be shipped FOB SHIPPING POINT, unless otherwise specified herein.
If product is damaged in transit, Customer must file any claim exclusively with
airline, carrier, vessel and/or insurance company; provided, however, that if
Vallen has not received payment in full at the time the product is damaged in
transit, Vallen shall have the right to file such claim exclusively with
airline, carrier, vessel and/or insurance company.
PRODUCT INFORMATION— Any information regarding products appearing on
Vallen’s website or in any Vallen catalog was compiled from the
information and data furnished by the various manufacturers whose products
appear herein and Vallen assumes no responsibility and makes no
representation as to the accuracy of the specifications of the products. All
illustrations and descriptions are for the sole purpose of identification and
Vallen does not represent that the products will necessarily conform to the
illustrations or descriptions. Vallen makes no representation that the goods
advertised in this catalog comply with specific requirements of the U.S.
Occupational Safety and Health Act (OSHA) or of federal or state environmental
laws, and rules and the applicable regulations under of each of the foregoing,
as they now exist or may exist in the future. It is the Customer's
responsibility to comply with such laws based upon the intended or actual use of
the products. Material Safety Data Sheets (MSDS) sheets are available upon
request for all products for which they are required. Product cross-reference
comparisons do not imply that all products compared are available or perfectly
comparable. CROSS-REFERENCED PRODUCTS ARE NOT REPRESENTED OR WARRANTED AS
FUNCTIONAL OR PERFORMANCE EQUIVALENTS. Customer shall review all
cross-referenced product specifications prior to purchase and use to determine
suitability of the product for Customer's intended use.
PRODUCT INFORMATION DISCLAIMER — ALTHOUGH VALLEN HAS USED REASONABLE EFFORTS TO
ACCURATELY ILLUSTRATE AND DESCRIBE THE PRODUCTS IN ITS CATALOGS, LITERATURE, AND
WEBSITES, SUCH ILLUSTRATIONS AND DESCRIPTIONS ARE FOR THE SOLE PURPOSE OF
PRODUCT IDENTIFICATION AND DO NOT EXPRESS OR IMPLY A WARRANTY OR AFFIRMATION OF
FACT OF ANY KIND OR A WARRANTY OR AFFIRMATION OF FACT THAT THE PRODUCTS WILL
CONFORM TO THEIR RESPECTIVE ILLUSTRATIONS OR DESCRIPTIONS. Vallen reserves
the right to correct publishing errors.
LIMITED WARRANTY — Customer acknowledges and agrees that products
will be ordered by Vallen from vendors of Vallen. Vallen represents and
warrants that Vallen shall have, on the date of transfer to the Customer,
title thereto and the right to sell the product(s) delivered to Customer.
CUSTOMER'S EXCLUSIVE REMEDY FOR BREACH OF ANY
WARRANTY HEREUNDER SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF THE PRODUCT OR
REPERFORMANCE OF THE SERVICE OR RETURN OF THE PURCHASE PRICE, AT THE OPTION OF
VALLEN.
ANY WARRANTY ISSUED BY THE MANUFACTURER OF
PRODUCTS SHALL BE SOLELY THAT OF THE MANUFACTURER AND NOT OF Vallen.
VALLEN HEREBY ASSIGNS TO CUSTOMER, AT THE DATE THAT TITLE PASSES TO CUSTOMER
FOR SUCH PRODUCT, ALL OF THE MANUFACTURER'S OR VENDOR'S WARRANTIES, EXPRESS OR
IMPLIED, IF ANY AND IF ASSIGNABLE, WITH RESPECT TO THE PRODUCT, AND VALLEN
HEREBY AUTHORIZES CUSTOMER TO MAKE OR SETTLE ANY CLAIMS UNDER SUCH WARRANTIES
DIRECTLY WITH ANY SUCH MANUFACTURER OR VENDOR.
WARRANTY DISCLAIMER— EXCEPT FOR THE WARRANTIES OF TITLE VALLEN
EXPRESSLY PROVIDES ABOVE UNDER "LIMITED WARRANTY", VALLEN MAKES NO OTHER
WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO
PRODUCTS FURNISHED OR SERVICES RENDERED BY VALLEN HEREUNDER INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF
DEALING, OR COURSE OF PERFORMANCE. VALLEN DOES NOT AUTHORIZE ANY PERSON TO
MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND CUSTOMER SHOULD NOT RELY ON ANY
PERSON MAKING ANY SUCH STATEMENTS.
Vallen is not liable to third parties or anyone
with whom it does not have a direct contractual relationship for any claims
arising out of alleged defects in products sold or services performed. Vallen
is not liable for defects in information provided by secondary sources.
LIMITATION OF LIABILITY — IN NO EVENT SHALL VALLEN BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES,
INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR INCOME, LOSS OF USE
OR LOSS OF TIME, WHETHER IN CONTRACT, TORT, OR OTHERWISE RESULTING FROM ITS
PERFORMANCE, NON-PERFORMANCE OR DELAY IN PERFORMANCE OF ITS OBLIGATIONS
HEREUNDER WHETHER OR NOT CUSTOMER HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES
OCCURRING. In the event that a court of competent jurisdiction should hold that
the limitations of warranties, liabilities and remedies contained herein, or in
any portions thereof, are unenforceable for any reason, Customer expressly
agrees that under no circumstances shall the total liability of Vallen to
Customer exceed the value of the specific product or service at issue.
EXCLUSIVE TERMS AND CONDITIONS — All products sold and services rendered by
Vallen shall be governed solely by the terms of this document, and such terms
and conditions shall apply regardless of any additional or conflicting terms or
conditions on any purchase order or other form issued by Customer. None of the
terms herein may be modified, waived or superseded except with the written
consent of Vallen's authorized representative, including without limitation
any written contract between Vallen and Customer executed by Vallen's
authorized representative. Neither Vallen's acknowledgment of a purchase
order nor Vallen's failure to object to conflicting or additional terms and
conditions in a purchase order shall be deemed an acceptance of such terms and
conditions or a waiver of the provisions hereof andacceptance by Customer of
products or services shall be deemed assent to any additional or different terms
contained herein.
PRODUCT SUITABILITY — Many states and localities have codes and
regulations governing sales, construction, installation, and/or use of products
for certain purposes, which may vary from those in neighboring areas. While
Vallen attempts to assure that its products comply with such codes, it cannot
guarantee compliance, and cannot be responsible for how the product is installed
or used. Before purchase and use of a product, please review the product
application, and the applicable national, state, and local codes and
regulations, to ensure compliance of the product, its installation, and its use.
NO WARRANTIES TO CONSUMERS — Vallen makes no warranties to those defined as
consumers in the Magnuson-Moss Warranty-Federal Trade Commission Improvement
Act.
HAZARDOUS CONDITIONS AND SERVICES
LIMITATIONS— The Customer
acknowledges that Vallen has neither created nor contributed to the creation
or existence of any hazardous or otherwise dangerous substances or conditions at
Customer's site, and Vallen's compensation hereunder is not commensurate with
the potential risk of injury or loss that may be caused by exposure to,
contamination by, or the presence of such substances or conditions.
If Vallen performs any testing services for
Customer, Customer recognizes and agrees that Vallen provides no warranty or
guarantee of the outcome of its testing or servicing methods and that all such
testing and servicing methods have reliability limitations, that no method nor
number of sampling locations can guarantee that a hazard will be discovered if
contamination or other evidence of the hazard is not encountered within the
performance of the services as authorized. Customer further acknowledges and
agrees that reliability of testing or servicing varies according to the sampling
frequency and other service variables selected by Customer and that factors
other than reliability, including cost, have been considered in the Customer's
selection of services. Customer agrees that it has knowledgeably accepted these
limitations and the risks attendant thereon and that Vallen shall be
considered to be at fault (but not necessarily liable) only to the extent that
the services selected by the Customer are not performed in accordance with, and
subject to the limitations on, any warranties provided herein.
U.S. FOREIGN CORRUPT PRACTICES ACT — Customer acknowledges that it is an Independent
Contractor, as defined in the next paragraph, and represents, warrants, and
covenants that it has not paid, offered or agreed to pay, authorized the giving
of, or caused to be paid, directly or indirectly, money or anything of value to
any foreign official (as defined in the U.S. Foreign Corrupt Practices Act, as
amended), in connection with the purchase and resale of the products ordered.
INDEPENDENT CONTRACTORS — Vallen and Customer are Independent
Contractors and not principal and agent. Nothing construed or contained in these
Terms and Conditions shall be construed to create a partnership, dealership,
reseller, agency, employment or joint venture relationship. Without limiting the
generality of the foregoing, Customer is not authorized to make, and shall not
make, any representations on behalf of, or which are binding upon, Vallen and
shall take no actions on behalf of, or which are binding upon, Vallen. The
status of Vallen and its personnel and any subcontractors is and will be that
of independent contractors, and no such personnel or subcontractors will, at any
time or for any purpose, be deemed employees or agents of Customer.
EXPORT CONTROLS AND RELATED REGULATIONS — Customer represents and warrants that it is not
on, or associated with any organization on: (i) the United States Department of
Commerce's Bureau of Industry and Security's Denied Persons List or Unverified
List; (ii) the United States Department of the Treasury's Office of Foreign
Assets Control lists, Specially Designated Nationals, Specially Designated
Global Terrorists, Specially Designated Narcotics Traffickers, Specially
Designated Narcotic Traffickers-Kingpin, or Specially Designated Terrorists
List; or (iii) the United States Department of State's Designated Foreign
Terrorist Organizations, Embargoed Countries list, or Debarred Persons List.
Customer represents and warrants that it is not subject to a denial order issued
by the United States Department of Commerce. Customer shall comply with all
relevant laws and regulations of governmental bodies or agencies, including but
not limited to all applicable export control laws of the United States or other
governing agencies and their successors.
FOREIGN PRINCIPAL PARTY IN INTEREST; FREIGHT
FORWARDER AND DOCUMENTATION — It is
specifically agreed that Customer shall be the foreign principal party in
interest and/or that its freight forwarder shall act as Customer's agent in such
capacity for Export Administration Act or other applicable purposes and Customer
and freight forwarder shall assume responsibility for all export or routed
transactions documentation. At Vallen's request, Customer or its freight
forwarder shall provide copies of any export, shipping, or import documentation
prepared by Customer or its freight forwarder related to sales to them by
Vallen.
COUNTRY OF IMPORTATION AND ANTI-DIVERSION — Customer represents that it is purchasing
products from the United States and importing them to the country specified in
Customer's and Vallen's documentation. Customer agrees that the products will
be shipped to the specified destination in compliance with the laws of such
destination and the United States, and that there will be no re-export or
diversion from such specified destination contrary to such laws. Any
commodities, technology and software will be exported from the United States in
accordance with the Export Administration Act regulations and other applicable
regulations. Diversion contrary to United States law is prohibited. If requested
by Vallen, Customer shall provide documentation satisfactory to Vallen
verifying delivery at the designated country. Customer further agrees to inform
Vallen at the time of order of any NAFTA or other special documentation,
packaging or product marking or labeling requirements, but Vallen shall not
be responsible for providing any such documentation, packaging, marking or
labeling other than such documents as are necessary under United States export
laws and regulations for export, unless Vallen expressly agrees to do so.
PERMITS, EXPORT, AND IMPORT LICENSES — Customer shall be responsible for obtaining any
licenses or other official authorizations that may be required by the country of
importation and/or under the Export Administration Act, Toxic Substances Control
Act, or other applicable legislation or regulations including, but not limited
to, the Department of Defense or Department of State regulations.
TRADEMARKS, COPYRIGHTS, AND DOMAIN NAMES — Customer acknowledges that it has no right,
title, or interest in the trade names, trademarks, copyrights, or domain names
of Vallen, and in the product names, and covenants that it will take no
action to register or otherwise interfere with such rights of Vallen.
Customer agrees that it will not copy the products sold to Customer or their
packaging, trade dress, catalogs, or websites.
FORCE MAJEURE — If Vallen's performance shall be delayed or
prevented because of any event that is not within the reasonable control of
Vallen, Vallen may, at its option, suspend performance during the period
such cause continues, and no liability shall attach against Vallen on account
thereof.
SEVERABILITY— If any provision herein is held invalid, such
invalidity shall not affect the other provisions of this document, which can be
given effect without the invalid provision, and, to this end, the other
provisions of this document are declared to be severable, and the document shall
be enforced to achieve, as closely as possible and consistent with all
applicable law, the spirit and intent of the invalid provision.
E-COMMERCE CAPABILITY — In the event that Vallen agrees to provide
e-commerce capability to Customer utilizing Vallen's website, the terms and
conditions set forth in this document shall govern the sale of products or
services to Customer that are purchased through such capability notwithstanding
any additional or different terms or conditions on any document or separate
Internet website, whether the Customer's or a third party's.
GOVERNING LAW — The rights and obligations of the parties under
these Terms and Conditions shall not be governed by the provisions of the 1980
United Nations Convention of Contracts for the International Sale of Goods or
the United Nations Convention on the Limitation Period in the International Sale
of Goods. Rather, the validity, interpretation, and performance hereof and any
dispute connected herewith, shall be governed and construed in accordance with
the laws of the State of South Carolina, including its provisions of the Uniform
Commercial Code, but excluding its conflict of law rules.
DISPUTE RESOLUTION — Actions by
Vallen for nonpayment by Customer of the purchase price of products sold by
Vallen, or for redress of other breaches by Customer of these Terms and
Conditions, may be brought by Vallen, at its option, before any United States
or foreign judicial court of competent jurisdiction.
PRODUCT-SPECIFIC CLAUSES:
ELECTRONIC AND PHOTOGRAPHIC CLEANING FLUIDS
CUSTOMERS — It is a violation of
federal law to sell, distribute, or offer to sell or distribute any
chlorofluorocarbon (CFC) containing cleaning fluid for electronic and
photographic equipment or aerosol hydrochlorofluorocarbon (HCFC) containing
cleaning fluid for electronic and photographic equipment to anyone who is not a
commercial user of this product. The penalty for violating this prohibition can
be up to $25,000 per unit sold. Individuals purchasing such products must
present proof of their commercial status in accordance with 40 CFR 82.68(a) or
(c). A "Commercial User," as defined in the regulation, means a person that uses
the product in the purchaser's business, or sells it to another person and has
one of the following identification numbers: (i) a Federal employer
identification number; (ii) a State sales tax exemption number; (iii) a Local
business license number; or (iv) a Government contract number.
MOLD RELEASE AGENT CUSTOMERS – it is a violation of federal law to sell mold
release agents containing hydrochlorofluorocarbon (HCFC) as propellants to
anyone, except for use in applications where no other alternative except a class
I substance is available. The penalty for violating this prohibition can be up
to $25,000 per unit sold.
WASP AND HORNET SPRAY CUSTOMERS – It is a violation of federal law to sell or
distribute wasp and hornet sprays containing hydrochlorofluorocarbon (HCFC) as
solvents to anyone, ecept for use near high-tension power lines where no other
alternative except a class I substance is available. The penalty for violating
this prohibition can be up to $25,000 per unit sold.
REFRIGERANT CUSTOMERS — Effective November 14, 1994, in accordance with
the Federal Clean Air Act, sale of Class 1 (CFC) and Class 2 (HCFC) refrigerant
will be restricted to resale purchases and/or to certified professional service
technicians. To purchase regulated refrigerant products, all Customers must
present a certification card or sign a statement of resale to complete the
purchase.
OSHA HAZARDOUS SUBSTANCE & CALIFORNIA PROPOSITION 65 PRODUCT INFORMATION— MSDS for OSHA-defined hazardous substances and a
list of products known by the state of California to cause cancer or
reproductive harm are available at your local Vallen branch, or by contacting
Vallen's U.S. corporate headquarters. Vallen makes no warranty with
respect to the accuracy of the information or the suitability of the
recommendations in the MSDS. Vallen disclaims any and all liability to any
user.
MATERIALS OF TRADE — Customer represents that if it is purchasing
goods as its "materials of trade" as defined in the Hazardous Materials
Regulations in Title 49 of the Code of Federal Regulations, that the goods will
be used in direct support of its business, which is not transportation, and that
such goods shall not be resold or transported in a vehicle other than one owned
by itself.