Terms of Sale

These Terms of Sale apply to orders by direct purchasers (“Customer”) of Products from Hilliard Estate and Land Management, LLC., (hereafter referred to as “Seller”).

 

1. BUYING PRODUCTS

A. Products means goods offered for sale by Seller that are manufactured or created by third parties.

B. Quotes. “Quote” means a communication between the parties to facilitate discussion of a potential transaction. A Quote is not an Order as defined by these Terms of Sale and is not binding on either party.

C. Orders. “Order” means Customer’s order of Products, through Seller’s websites or other process (phone, email, etc.), Customer purchase orders, and Seller order forms executed by Customer. Orders are subject to credit approval and to acceptance by Seller. Acceptance of one Order is independent from any other Order. Orders may contain charges for shipping and handling.

D. “Delivery” for Products is in accordance with the terms agreed to at the time of shipment as indicated on the Order. Customer agrees to specify delivery time restrictions and requirements clearly including any height, length, and weight restrictions for delivery equipment. Customer agrees to make offloading requirements clear at time of order. Seller agrees to use commercially reasonable efforts to accommodate pre-disclosed customer requirements; however, given the rural nature of some customer properties, delivery to the exact location on customer property may be impossible.

E. Cancelation and Acceptance. Customer may not cancel Orders once Orders have shipped from Seller or Manufacturer for delivery, except as provided herein. Orders for Products are subject to availability. All Product is deemed accepted by Customer upon Delivery.

F. Risk of Loss; Title. Risk of loss and Title for sold Products pass to Customer in accordance with the terms agreed to at the time of shipment as indicated on the Order. Unless otherwise agreed, Seller will choose the common carrier. Customer must notify Seller within thirty days of the invoice date if Customer believes any part of its Order is missing, wrong, or damaged. Seller is not liable for any damage or loss to the product when non-Seller provided shipping method is used for shipping from Seller or product manufacturer to the customer. Customer must work with their designated carrier for reimbursement. Customer is responsible for inspecting the package(s) upon delivery and must note any visible damage to Seller by email to ann@hilliardmanagement.com within 1 day (24 hours) of receipt of product(s). Seller will not be responsible for any visible shipping damages not noted to Seller as specified.

G. Payment. Customer must pay Seller’s invoices in full in US dollars within the timeframe noted on Seller’s invoice, with interest accruing after the due date at the lesser of 1.5% per month or the highest lawful rate. Seller may invoice parts of an Order separately or together in one invoice. All invoices will be deemed accurate unless Customer advises Seller in writing of a material error within ten days following receipt. If Customer advises Seller of a material error, (i) any amounts corrected by Seller in writing must be paid within the terms stated on the invoice, and (ii) all other amounts shall be paid by Customer by the due date. Customer may not offset, defer or deduct any invoiced amounts that Seller determines are correct following the notification process stated above. Seller, without waiving any other rights or remedies and without liability to Customer, may suspend any or all services until all overdue amounts are paid in full.

H. Taxes. Customer is responsible for payment of any sales, use, value added, GST, and any other similar taxes or governmental fees associated with Customer’s Order, except for taxes based on Seller’s net income, gross revenue, or employment obligations. Customer must also pay all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes). If Seller is obligated by applicable law to collect and remit any taxes or fees, then Seller will add the appropriate amount to Customer’s invoices as a separate amount. If Customer qualifies for a tax exemption, Customer must provide Seller with a valid certificate of exemption or other appropriate proof of exemption.

I. Terms of Use. As all Products are manufactured by third parties, the terms governing Customer’s use of these Products are as follows: (i) The third-party manufacturer’s standard terms, including warranty, indemnification, and support terms and conditions, apply; and (ii) Seller has no liability to Customer for any damages that arise out of or relate to Products. Seller provides these Products “AS IS”, makes no express warranties, and disclaims all implied warranties, including merchantability, fitness for a particular purpose, title, and non-infringement as well as any warranty arising by statute, operation of law, course of dealing or performance, or usage of trade.

 

CUSTOMER IS DIRECTED TO UTILIZE MANUFACTURER-RECOMMENDED INSTALLATION PROCEDURES AND SPECIFICATIONS. CUSTOMER CAN FIND OUT MORE INFORMATION ABOUT PRODUCTS MANUFACTURED BY HAHN PLASTICS AT WWW.HAHNPLASTICS.COM or WWW.HAHNEQUESTRIAN.COM.

 

2. TERM; TERMINATION OR SUSPENSION

A. Term. This Terms of Sale are effective upon the earlier of Customer’s issuance of an Order to Seller, or Customer’s acceptance of the Terms of Sale. The Terms of Sale continue until terminated in accordance with this Section.

B. Termination. Either party may terminate the Terms of Sale: (i) for a material breach by the other party that is not cured within thirty days of the breaching party’s receipt of written notice of the breach; or (ii) if a party declares bankruptcy or is adjudicated bankrupt or a receiver or trustee is appointed for substantially all its assets. In addition, Seller may terminate the Terms of Sale with ten days’ written notice if: (a) Customer does not make payment as required by the Terms of Sale (where the payment is not subject to a good faith dispute); or (b) Customer fails to make the payment within ten days after receiving written notice of the past due amount.

C. Survival. The provisions relating to payment of outstanding fees, records and audit, confidentiality, and liability will survive termination, all rights of action accruing prior to termination, along with any other provision of the Terms of Sale that, expressly, or by its nature and context, is intended to survive.

 

3. INDEMNITY Customer will defend and indemnify Seller and Affiliates against any third-party claim resulting or arising from Customer’s violation of Seller’s proprietary rights and Customer’s use of the Products.

 

4. LIMITATION OF LIABILITY A. Limitations on Damages. The limitations, exclusions and disclaimers stated below apply to all Disputes (as defined in Section 5D (“Governing Law; Informal Dispute Resolution; Attorney’s Fees”). The terms of this Section are agreed allocations of risk constituting part of the consideration for Seller’s and Affiliates’ sale of Products to Customer and will apply even if there is a failure of the essential purpose of any limited remedy, and regardless of whether a party has been advised of the possibility of the liabilities.

A. (1). Limitation on Direct Damages. Except for Customer’s obligations to pay for Products, Customer’s violation of the restrictions on use of Products or Seller’s intellectual property rights, Customer’s indemnity obligation stated in Section 5 (“Indemnity”), each party’s total liability for Disputes is limited to the amount Customer paid to Seller for the Order from which the Dispute arose, but excluding amounts received as reimbursement of expenses or payment of taxes.

A. (2). No Indirect Damages. Except for Customer’s payment obligations and violation of Seller’s intellectual property rights, neither Seller nor Customer has liability to the other for special, consequential, exemplary, punitive, incidental, or indirect damages, or for lost profits, loss of revenue, loss of data, or loss of use, or procurement of substitute products.

B. Limitation Period. Except as stated in this Section 4B, all claims must be made within the period specified by applicable law. If the law allows the parties to specify a shorter period for bringing claims, or the law does not provide a time at all, then claims must be made within eighteen months after the cause of action accrues.

C. Warranty. Any warranty does not cover problems that arise from: (i) accident or neglect by Customer or any third party; (ii) any third party items with which the Product is used or other causes beyond Seller’s control; (iii) installation, operation, or use not in accordance with Seller’s instructions or applicable documentation; (iv) use in an environment, in a manner, or for a purpose for which the Product was not designed; (v) modification, alteration, or repair by anyone other than Seller or its authorized representatives; or (vi) causes attributable to normal wear and tear. Other than the warranties set forth in these TOS, and to the maximum extent permitted by applicable law, Seller: (i) makes no other express warranties; (ii) disclaim all implied warranties, including merchantability, fitness for a particular purpose, title, and non-infringement; and (iii) disclaim any warranty arising by statute, operation of law, course of dealing or performance, or usage of trade.

 

5. MISCELLANEOUS A. Notices. The parties will provide all notices under this Terms of Sale in writing. Customer must provide notices to Seller, at ann@hilliardmanagement.com.

B. Excused Performance. Except for payment of amounts due and owing, neither Seller nor Customer will be liable for failure to perform its obligations during any period if performance is delayed or rendered impracticable or impossible due to circumstances beyond that party’s reasonable control.

C. Assignment. Customer may not assign the Terms of Sale, or an Order, or any right or obligation under the Terms of Sale, or an Order, or delegate any performance, without Seller’s prior written consent, which will not be unreasonably withheld. Even if Seller consents to an assignment or delegation, Customer remains responsible for all obligations to Seller under the Terms of Sale, or Order that Customer incurred prior to the effective date of the assignment or delegation. Customer attempts to assign or delegate without Seller’s prior, written consent are void.

D. Governing Law; Informal Dispute Resolution; Attorney’s Fees. The Terms of Sale, and any dispute, claim, or controversy (whether in contract, tort, or otherwise) related to or arising out of the Terms of Sale or any Order (“Dispute”) is governed by the laws of the State of Virginia (excluding the conflicts of law rules) and the federal laws of the United States. The U.N. Convention on Contracts for the International Sale of Goods does not apply. To the extent permitted by law, the state and federal courts located in Texas will have exclusive jurisdiction for any Disputes. Customer and Seller agree to submit to the personal jurisdiction of the state and federal courts located within Albemarle County, Virginia, and agree to waive any and all objections to the exercise of jurisdiction over the parties by those courts and to venue in those courts. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute. Neither Customer nor Seller are entitled to join or consolidate claims by or against other customers or pursue any claim as a representative or class action, or in private attorney general capacity. As a condition precedent to filing any lawsuit, the parties will attempt to resolve any Dispute against one or more Seller or any Seller Affiliate through negotiation with persons fully authorized to resolve the Dispute, or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Although the merits of the underlying Dispute will be resolved in accordance with this Section, any party has the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitation periods, or preserve a superior position with respect to other creditors. If the parties are unable to resolve the Dispute within thirty days (or other mutually agreed time) of notice of the Dispute to the other party, the parties will be free to pursue all remedies available at law or in equity. In any Dispute (other than Seller’s efforts to collect overdue amounts from Customer) each party will bear its own attorneys’ fees and costs and expressly waives any statutory right to attorneys’ fees under § 8.01-1 of the Virginia Civil Practices and Remedies Code.

 

E. Waiver. Failure to enforce a provision of the Terms of Sale will not constitute a waiver of that or any other provision of the Terms of Sale.

 

F. Independent Contractors. The parties are independent contractors for all purposes under the Terms of Sale and cannot obligate any other party without prior written approval. The parties do not intend anything in the Terms of Sale to allow any party to act as an agent or representative of a party, or the parties to act as joint venturers or partners for any purpose. No party is responsible for the acts or omissions of any other.

 

G. Severability. If any part of the Terms of Sale or document that incorporates the Terms of Sale by reference is held unenforceable, the validity of all remaining parts will not be affected.

 

H. Entire Agreement; Conflicts. The Terms of Sale, and, if Customer is directly purchasing from Seller, the Seller’s Order: (i) comprises the complete statement of the agreement of the parties with regard to its subject matter; and (ii) may be modified only in a writing signed by Customer and Seller. All terms of any Customer Order, including but not limited to (1) any terms that are inconsistent or conflict with this Terms of Sale, and (2) any pre-printed terms, have no legal effect and do not modify or supplement the Terms of Sale, even if Seller does not expressly object to those terms when accepting a Customer Order. No party is relying upon the representations of statements of the other that are not fully expressed in this Terms of Sale, and each party expressly disclaims reliance upon any representations or statements not expressly set forth in this Terms of Sale. Any claims by any party of fraud in the inducement of this Terms of Sale or any Customer Order based on any statements, representations, understandings, or omissions, whether oral or written, that are not fully expressed in this Terms of Sale are expressly waived and released.

 

I. Future Changes to this Agreement. From time to time, we may modify these Terms of Sale. The version of the Terms of Sale in place at the time you submit each Customer Order is the version that will govern such order. We will use reasonable efforts to notify you of these changes through communications through our website or other forms of communication.