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HOPPE NORTH AMERICA, INC. – Terms and Conditions of Sale

 

1.    Controlling Provisions. Unless otherwise provided herein, these Terms and Conditions of Sale, including the provisions in Seller’s quotation, order acknowledgement or Seller’s similar form (the "Contract") constitute an offer by HOPPE North America, Inc. and/or its affiliates ("Seller") to provide the products described herein (the "Products") to the buyer to which this offer is addressed ("Buyer"). If this document is deemed an acceptance of a prior offer by Buyer, such acceptance is limited to the express terms contained in this Contract.  Buyer's acceptance of this offer is limited to the terms, covenants and conditions contained in this offer. Seller hereby objects to and rejects any additional, different or varying terms proposed by Buyer, unless an authorized officer of Seller expressly assents to such terms in a signed writing.   Such proposal of additional, different or varying terms by Buyer shall not operate as a rejection of Seller's offer, and Seller's offer shall be deemed accepted without such additional, different or varying terms. Seller's sales representatives are without authority to change, modify or alter this Contract. THIS CONTRACT CONSTITUTES THE FINAL EXPRESSION OF THE AGREEMENT BETWEEN SELLER AND BUYER REGARDING THE PRODUCTS AND IS A COMPLETE AND EXCLUSIVE STATEMENT OF THAT AGREEMENT.  ANY TERMS, CONDITIONS, NEGOTIATIONS OR UNDERSTANDINGS WHICH ARE NOT CONTAINED IN THIS CONTRACT SHALL HAVE NO FORCE OR EFFECT UNLESS MADE IN WRITING AND SIGNED BY BUYER AND AN AUTHORIZED OFFICER OF SELLER.

 

 

2.    Acceptance. Except with respect to Website orders, Buyer shall be deemed to have made an unqualified acceptance of this offer and the Contract on the earliest of the following to occur:  (a) Seller's receipt of a copy of this Contract signed by Buyer; (b) Buyer's payment of any amounts due under this Contract; (c) Buyer's delivery to Seller of any material to be furnished by Buyer; (d) Seller's delivery of the Products; (e) Buyer's failure to notify Seller to the contrary within ten days of receipt of this Contract, or (f) any other event constituting acceptance under applicable law.

 

 

3.    Quotations, Orders and Delivery

Orders:

Written Quotations and Orders: Written quotations are void unless accepted within 30 days from date of issue and are subject to earlier change upon notice.  Other Seller publications are maintained as sources of general information and are not quotations or offers to sell.  Buyer's orders or mutually agreed change orders shall be subject to all provisions of this Contract, whether or not the order or change order so states.

 

Website Orders: By acknowledging acceptance of these terms and conditions of sale (by clicking a box at checkout) and placing an order for Products from www.hoppe.com (the “Website”), Buyer accepts and is bound by this Contract. Buyer agrees that its Website order is an offer to buy, under this Contract, all Products listed in Buyer’s order. All Website orders must be accepted by Seller or Seller will not be obligated to sell the Products to Buyer. Seller may choose not to accept the order in its sole discretion

 

Delivery Terms:

Written Quotations and Orders: Seller shall deliver the Products Ex Works Seller's facility at Fort Atkinson, Wisconsin (the "Facility"). All risk of loss, damage or delay, shall pass from Seller to Buyer upon Seller's delivery of the Products to the Facility.  Partial shipments shall be permitted.

 

Website Orders: Seller will arrange for shipment of the Products to Buyer. Please check the individual product page for specific delivery options. Buyer will pay all shipping and handling charges specified during the ordering process. All risk of loss, damage or delay shall pass from Seller to Buyer upon Seller's transfer of the Products to the carrier. Partial shipments shall be permitted

 

Delivery Dates: All delivery dates are approximate.  Delivery dates given by Seller are based on prompt receipt of all necessary information regarding the order.  Seller will use reasonable efforts to meet such delivery dates, but does not guarantee to meet such dates.  Failure by Seller to meet any delivery date does not constitute a cause for cancellation and/or for damages of any kind.  Time for delivery shall not be of the essence.

 

Delivery Delays: Any delay in delivery due to causes beyond Seller's reasonable control, or due to any priorities or allocations necessitated by governmental orders or regulations, or due to any causes specified in the following sentence, shall extend the term of delivery by a period equal to the length of such delay.  In the event of delay in delivery requested by Buyer or caused by Buyer's (a) failure to supply adequate instructions or materials; (b) failure to arrange for pickup; (c) failure to supply or approve necessary data or actions in a timely manner; (d) requested changes; or (e) failure to provide documents required for Seller to effect delivery, Seller will store all Products at Buyer's risk and expense.  Buyer shall pay all storage costs and expenses upon Seller's demand.  

 

Claims: Claims for shortages or other errors must be made in writing to Seller within ten days after Seller's delivery of the Products. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer.

 

 

4.    Prices; Taxes

Prices:

Written Quote Prices: Unless prices are stated in Seller's quotation (including quotations set via the Website) or acknowledgment or Seller's similar form or otherwise agreed by an authorized officer of Seller in a signed writing, prices shall be the higher of Seller's most recent quote to Buyer, prevailing market price, Seller's list price, or the last price charged by Seller to Buyer for the Products.  Seller may increase prices effective on notice to Buyer if Seller's costs increase or, for any other price increase, effective on notice to Buyer.  Unless otherwise stated in Seller's quotation (including quotations sent via the Website) or acknowledgment or Seller's similar form, prices are in U.S. Dollars, Ex Works the Facility.

 

Website Prices: All prices posted on the Website are subject to change without notice. The price charged for a Product will be the price in effect at the time the Website order is placed. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes and may not include shipping and handling depending on the desired delivery service. All such taxes and charges will be added to Buyer’s merchandise total. Shipping and handling will be itemized during online checkout. Taxes, if applicable, will not be itemized in the online checkout, but will be charged separately after verifying applicable tax rates.

 

Taxes: Buyer shall pay all taxes, fees and costs including, but not limited to any manufacturer's tax, retailer's occupation tax, use tax, sales tax, excise tax, value added tax, duty, customs agent or broker fees, inspection or testing fee, freight costs, insurance, consular fees or any other tax, fee or charge of any nature whatsoever, including interest, imposed on, in connection with or measured by any transaction between Seller and the Buyer, in addition to the prices quoted, invoiced or posted on the Website.

 

At the time Buyer makes a Website purchase with Buyer's credit card, Seller will reserve on the credit card the total order amount plus a percentage for sales tax. The percentage reserved for sales tax shall be equivalent to the highest sales tax of any tax district in the United States. Seller will only charge Buyer's credit card for the actual amount of the applicable sales tax according to state and local requirements. Buyer will not be notified of the sales tax amount applicable to Buyer's Website purchase at the time Buyer's credit card is charged.

 

 

5.    Payment

Written Order Payment:

Generally: Unless otherwise stated in Seller’s quotation or acknowledgment or Seller's similar form or otherwise agreed by an authorized officer of Seller in a signed writing, payment terms are Payment in Advance.

 

Seller's Rights: Notwithstanding the foregoing, terms of payment on all orders are subject to the approval of Seller's credit department.  If Buyer does not pay Seller any amount due under this Contract or any other agreement when such amount is due or if Buyer defaults in the performance of this Contract, Seller may, without liability to Buyer and without prejudice to Seller's other lawful remedies (a) terminate Seller's obligations under this Contract; (b) declare immediately due and payable all Buyer's obligations to Seller; (c) change credit terms with respect to any further work or deliveries; (d) suspend or discontinue any further work or deliveries; and/or (e) repossess the Products.  Buyer agrees to reimburse Seller for all costs and fees including, but not limited to attorneys' fees and repossession fees, incurred by Seller in collecting any sums owed by Buyer to Seller.  Buyer agrees to pay a late payment charge in an amount equal to the lesser of 1.5% per month or the maximum amount allowable by law on all amounts not paid in full when due, payable on Seller's demand.  Buyer shall not set off amounts due to Seller against claims against Seller.

 

Website Payment: Website terms of payment are within Seller’s sole discretion. Payment must be made online at the time of order. Seller accepts Visa, MasterCard and American Express for all purchases. Buyer represents and warrants that (i) the payment card information Buyer supplies is true, correct, and complete, (ii) Buyer is duly authorized to use such payment card for the purchase, (iii) charges incurred will be honored by Buyer’s payment card company, and (iv) Buyer will pay charges incurred by Buyer at the posted prices, including all applicable taxes.

 

Security Interest: In partial consideration for Seller's sale of Products to Buyer, Buyer hereby grants to Seller and Seller hereby retains a security interest in all Products sold to Buyer and documents relating to such Products now or hereafter in the possession of or under the control of Buyer, title to which might at any time be determined to have passed to Buyer, including, without limitation, all inventories of the Products or any other product bearing any trademark or trade name of Seller (or its affiliates or suppliers), and all returns or repossessions and the proceeds (including insurance proceeds and proceeds from products in which the Products were an input), of all of the foregoing, together with the additions and accessions thereof, to secure all of Buyer's obligations to Seller under this Contract and all other obligations of Buyer to Seller.  Buyer agrees to execute such financing statements, continuation statements and other documents evidencing the security interest in the Products, and to take such actions as may be required by Seller to evidence or perfect the security interest granted herein and the interest of Seller. With respect to such statements and documents, Seller is authorized in Buyer's name or otherwise to take such actions as permitted under this Contract or applicable law, including, without limitation, signing Buyer's name, and Buyer hereby appoints Seller as its attorney-in-fact for such purpose.

 

 

6.    Cancellations, Changes and Returns

Cancellations:  Buyer may not, without the prior written consent of Seller, cancel an order. If Buyer wishes to cancel an order, please contact Seller at 888-485-4885 between 9 a.m. and 5 p.m. (CT) Monday through Friday. Should Seller consent to cancel an order, such cancellation may be subject to a handling charge of 30% of the purchase price of the Products, at Seller's discretion.

 

Changes: Buyer may not change its order or any part thereof without the prior, written consent of an authorized representative of Seller and, to the extent necessary, the approval of Seller's supplier.  Seller reserves the right to change the price, terms of payment and delivery dates for any Products affected by any changes to which it consents.  

 

Returns:  No Products may be returned to Seller without its prior, written authorization and, to the extent necessary, the approval of Seller's supplier.  Products may be returned only on the terms or conditions specified in such authorization.  Returned Products must be of current manufacture, unused, in resalable condition, and securely packed to reach Seller without damage.  Any cost incurred by Seller to put Products in new condition will be charged to Buyer.  All Product returned to Seller shall be subject to a 30% restocking charge plus the costs of freight, packaging, insurance and any import or export costs. Buyer is responsible for all shipping and handling charges on returned items. Buyer bears the risk of loss during shipment.

 

 

7.    Limited Warranty

Limited Warranty: Warranty and remedy rights and obligations are limited to those contained in Seller’s applicable limited warranties, which are incorporated herein by reference. Hard copies of applicable limited warranties are available upon request by sending a letter to Seller at 205 East Blackhawk Drive, P.O. Box 219, Fort Atkinson, WI 53538, or may be downloaded at https://www.hoppe.com/us/us/door-hardware/support-door-hardware/support-door-hardware-warranty-care-and-maintenance-information.

 

DISCLAIMER ON OTHER WARRANTIES: SELLER AND BUYER AGREE THAT THE EXPRESS WARRANTIES REFERENCED IN THE PRECEDING SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE).  SELLER HEREBY DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS AND IMPLIED WARRANTIES.

 

 

8.    LIMITATION ON DAMAGES  IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, OR FOR LOST PROFITS OR REVENUES DIRECTLY OR INDIRECTLY INCURRED, EVEN IF SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SELLER'S AGGREGATE LIABILITY WITH RESPECT TO A PRODUCT AND THIS CONTRACT SHALL BE LIMITED TO THE MONIES PAID BY BUYER FOR THAT PRODUCT. Some states do not allow such exclusions or limitation of incidental and consequential damages, so the above limitation or exclusion may not apply to Buyer.

 

 

9.    Indemnification: Buyer hereby releases and agrees to indemnify, defend and hold harmless Seller and its shareholders, directors, officers, employees, agents, successors, assigns, affiliates and suppliers (individually and collectively, "Seller's Indemnified Parties") from and against any and all direct and indirect claims, debts, actions, causes of action, liabilities, losses, suits, demands, fines, penalties, judgments, damages or expenses whatsoever, including, without limitation, attorneys' fees and costs ("Damages") incurred by or against Seller or any of Seller's Indemnified Parties due to or arising out of, in connection with, resulting from or relating to (a) misrepresentation or breach of this Contract, or violation of any law, by Buyer or any of Buyer's shareholders, directors, officers, employees, affiliates, representatives, agents, successors or assigns ("Buyer's Parties"), or (b) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Buyer or any of Buyer's Parties, or (c) actions, threatened actions, losses, damages or injuries to person or property (including death) related to or caused by Buyer's products, Buyer's specifications, drawings, descriptions, designs, approvals or instructions provided to Seller, or by Buyer's infringement of the patents or proprietary right of any other individual or entity, or due to improper application or use of the Products. Prior to settling any claim, Buyer will give Seller an opportunity to participate in the defense and/or settlement of such claim.  Buyer shall not settle any claim without Seller's written consent.  In the event of any recall affecting the Products, Seller shall have the right to control the recall process and Buyer shall fully cooperate with Seller in connection with the recall.

 

 

10.    Trademarks; Engineering Data

Trademarks: Any Seller trademark, logo, label, artwork, engraving or similar material (“Seller IP”) is and shall remain the property of Seller. Buyer agrees that it will comply with Seller’s written instructions in connection with Buyer’s use of any Seller IP.

 

Engineering Data: All engineering data, design information and engineering and shop drawings used in the completion of this order are and shall remain Seller's property.  Buyer shall not copy, reproduce, distribute, publish or communicate to any third party such data without the prior, written permission of a properly authorized representative of Seller.  Notwithstanding the foregoing, Buyer shall distribute product data on operation, safety and maintenance information to the end user.

 

 

11.    Miscellaneous

Goods not for Resale or Export: With respect to any Products purchased via the Website, Buyer agrees to comply with all applicable laws and regulations of the various states and of the United States including all Export Regulations, as defined below. Buyer represents and warrants that Buyer is buying Products or services from the Website for his or her own use only, and not for resale or export. Products purchased from the Website may be controlled for export purposes by export regulations, including but not limited to, the Export Administration Act of 1979 (50 U.S.C. 2401-2410), the Export Administration Regulations promulgated thereunder (15 C.F.R. 768-799), the International Traffic in Arms Regulations (22 C.F.R. 120-128 and 130) and their successor and supplemental regulations (collectively, "Export Regulations").

 

Force Majeure: Seller shall not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, terrorism, third-party criminal acts, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding Seller's available supply or any other cause beyond Seller's control.  In the event of any delay in delivery, failure to fill orders or other default or damage caused by any of the foregoing, Seller may, at its option and without liability, prorate its deliveries, cancel all or any portion of the contract to the extent affected by the event of force majeure and/or extend any date upon which performance is due hereunder.

 

Governing Law:  This Contract and any disputes hereunder shall be governed by and construed according to the internal laws of the State of Wisconsin. Neither this Contract nor sales hereunder shall be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.  Upon expiration or termination of this Contract for any reason, Seller shall have all of the rights and remedies provided by law, including, without limitation, the rights of a secured party under Chapter 409, Wisconsin Statutes or any successor statute or similar statute in the jurisdiction where Buyer is located or stores the Products.  

 

Dispute Resolution:  Any cause of action, claim, suit or demand by Buyer allegedly arising from or related to this Contract or the matters contemplated herein shall be brought in a court within the Eastern District of Wisconsin, U.S.A.  Buyer irrevocably consents to the exclusive jurisdiction and venue of said court and agrees that process may be served upon it in any manner authorized by the laws of the State of Wisconsin for such person and waives and covenants not to assert or plead any objection which it might otherwise have to such jurisdiction, venue or process.

 

Severability; Waiver:  The invalidity of any provision or clause of this Contract shall not affect the validity of any other provision or clause hereof.  Seller reserves the right to correct clerical or similar errors relating to price or any other term shown in this Contract.  The failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of this Contract shall not be construed as a waiver or relinquishment of any right granted hereunder or the future performance of such term, covenant or condition.

 

Assignment: Buyer may not assign this Contract without Seller's prior written consent.  Seller may assign this Contract in whole or in part, including without limitation to its affiliates, suppliers or subcontractors.  Subject to the foregoing, this Contract shall inure to the benefit of, and be binding upon, the parties' successors and assigns.