Terms and Conditions of Sale
All products furnished by American Biomass Distribution, LLC. ("Seller")
shall be in accordance with the following terms unless otherwise stated in writing:
Acceptance And Complete Agreement.
These Terms and Conditions ("Terms and Conditions") govern all sales quotations
and sales of product ("Product") from Seller to the buyer ("Buyer"),
and shall constitute the complete agreement between the parties and may not be altered
or modified except in writing duly executed by each party. The parties agree there
are no agreements between the parties, oral or written, with respect to the Products
(including any made or implied from past dealings) except as expressed herein. Any
terms or conditions on any of Buyer's forms, correspondence, or orders that are
different from or in addition to these Terms and Conditions are specifically rejected.
Seller's failure to object to provisions contained in any communication from Buyer
shall not be construed as a waiver of these Terms and Conditions or as an acceptance
of any such provision. No order shall be binding upon Seller unless and until such
order is accepted (or otherwise processed) by Seller at its principal office in
New Hampshire. Buyer's order will be deemed a representation that Buyer is solvent
and able to pay for the Products ordered.
Quotations and Proposals.
Only a written quotation or proposal shall constitute Seller's quotation or proposal
for the sale of Product, and it shall expire on the expiration date indicated on
said quotation or proposal, or, if no date is specified, then three (3) days after
the date of the quotation or proposal. Any quotation or proposal may be modified
or withdrawn by Seller, in whole or in part, at any time prior to acceptance of
an order by Seller. Though American Biomass Distribution, LLC makes every reasonable
effort to ensure the data integrity of its website, Seller reserves the right to
correct quotations containing erroneous pricing information.
Prices quoted, unless otherwise stated by Seller in writing, are FOB shipping point
(for delivery within the United States) and do not include sales, use, excise, or
similar taxes or duties, or freight. Buyer shall pay these taxes directly if the
law permits or will reimburse Seller if Seller is required to pay them. Buyer will
provide tax exemption certificates or evidence of tax payment on request. Unless
otherwise specified, orders will be billed at prices as specified on Seller's then
current list price, which shall be subject to change from time to time.
Terms and Methods of Payment.
All payments are to be made in U.S. Dollars. Unless otherwise specified in writing
by Seller, all payments are due upon delivery of the Product. Any amounts past due
for seven (7) days shall incur a penalty of 2% per month (24% per annum), but in
no event more than the maximum amount permitted by law. Without limiting any other
remedies available to it at law or in equity, Seller shall have the right to terminate
the order or to suspend further deliveries under any order with Buyer in the event
that Buyer fails to make any payment to Seller when due. Seller may recover all
costs of collecting past due amounts (including reasonable legal fees and expenses).
Buyer acknowledges that a $25 processing fee, in addition to any applicable late
penalties, will be charged for each rejected credit payment or any check that is
returned by the Buyer's bank for any reason.
All Product will be shipped F.O.B. shipping point unless specifically agreed to
by Seller in writing. Shipments shall be subject to approval of Buyer's credit by
Seller. In the case where Buyer's credit is or has become unacceptable to Seller,
in its sole discretion, Seller may, at its option, terminate the order, or refuse
to make shipment, in each case unless and until payment is made by Buyer or satisfactory
security for payment is received by Seller prior to shipment. In the absence of
specific instructions, Seller will select the carrier but shall not be deemed thereby
to assume any liability in connection with the shipment, nor shall the carrier be
construed to be an agent of Seller. Title and risk of loss or damage shall pass
from Seller to Buyer upon delivery by Seller to the possession of the carrier. Any
claims for loss, damage, or misdelivery shall be filed with the carrier. Unless
otherwise specified in writing by Seller, Buyer is responsible for all site preparation
and for receiving and storing all Product. In its sole discretion, Seller may provide
a quotation for services to assist Buyer in some or all of these functions if requested.
Seller's estimated shipping schedule is based on Seller's prompt receipt of all
necessary information from Buyer to properly process the order, and does not constitute
a commitment to deliver Product in accordance therewith. Seller will use reasonable
efforts to ship on or before the estimated shipping dates. Delivery will be made
to Buyer's specified address, provided that, at Buyer's option, Buyer may
pick-up the Products at Seller's shipping point.
All products must be inspected within five (5) calendar days of receipt. If any
damage is discovered, a claim must be filed with the carrier and a full report of
the damage must be forwarded to Seller.
Seller shall not be liable for any delay in delivery or performance, or for non-delivery
or non-performance, in whole or in part, caused by the occurrence of any contingency
beyond Seller's control, including, without limitation, riot or other act of civil
disobedience, act of a public enemy, terrorism, failure or delay in transportation,
act of any government or any agency or subdivision thereof, judicial action, labor
dispute, accident, fire, flood, storm or other act of God, shortage of labor, fuel,
raw material, or machinery or technical failure, where Seller has exercised ordinary
care in the prevention thereof. If any such contingency occurs, Seller may allocate
production and deliveries among Seller's customers in any manner deemed reasonable
Disclaimer of Warranties.
Buyer acknowledges that (i) not all biomass fuels are appropriate for use in all
appliances and that it is Buyer's responsibility to confirm with its end-use customers
whether the Products are appropriate for use in Buyer's customers' appliances; (ii)
the Products may vary in content and burn characteristics; and (iii) it is Buyer's
responsibility to properly store the Products in a dry place to prevent them from
absorbing added moisture. SELLER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL
REPRESENTATIONS AND WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESSED, IMPLIED
OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
No products may be returned without prior written approval of Seller. Orders accepted
by Seller may be canceled by Buyer only with the written consent of Seller and upon
Buyer's reimbursement of Seller for all losses, damages, costs, lost profits and
expenses arising from such cancellation. Any deposits made by Buyer for orders accepted
by Seller, and which are subsequently cancelled by Buyer, are not refundable. Seller
shall have the right to cancel any order placed, or to refuse, or to delay, the
shipment thereof for failure of Buyer to make all payments when due to Seller, or
any other reasonable requirements established by Seller, or for any acts or omissions
of Buyer that delay Seller's performance. In the event of bankruptcy or insolvency
of Buyer, or in the event any proceeding is brought by or against Buyer, voluntarily
or involuntarily, under any provision of the U.S. Bankruptcy Code or any other insolvency
law, Seller shall be entitled to cancel any order then outstanding.
Non-Waiver of Default.
If Seller elects to continue to make shipments or perform under an accepted order,
Seller's action shall not constitute a waiver of any default by Buyer or in any
way affect Seller's legal remedies for any such default.
The validity, performance, and construction of these Terms and Conditions shall
be governed by the laws of the State of New Hampshire. All controversies and disputes
arising between the parties hereto shall be resolved by the state or federal courts
in New Hampshire. The parties consent to jurisdiction of said courts and to service
of process in any manner approved by said courts. The parties hereby acknowledge
that the rules of the United Nations Convention on Contracts for the International
Sale of Goods (CISG) shall not apply hereto and shall not be used for interpretation
of the sale of Products hereunder.
Buyer agrees to indemnify, defend and hold Seller harmless from and against all
losses, liabilities, claims, or causes of action for injuries or damages to any
person or property arising out of or in any way related to the Products, and further
from and against any judgment, settlement, penalty, loss, costs, expenses, liability,
damage or injury, including reasonable legal fees and disbursements, that Seller
may, directly or indirectly, sustain, suffer or incur as a result thereof.
IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED
IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER'S
LIABILITY EXCEED THE PRICE ACTUALLY PAID BY BUYER TO SELLER FOR THE SPECIFIC PRODUCTS
GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. SELLER SHALL NOT, UNDER ANY CIRCUMSTANCES,
BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES,
WHETHER OR NOT FORESEEABLE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF ANY TRANSACTION
GOVERNED BY THESE TERMS AND CONDITIONS, MAY BE BROUGHT BY EITHER PARTY MORE THAN
ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. The foregoing allocation of
risk and limitation of liability has been agreed to by the parties and forms the
basis of their willingness to enter into any accepted order.
No failure to exercise and no delay in exercising on the part of Seller any right,
power or privilege hereunder will operate as a waiver thereof nor will any single
or partial exercise of any right, power or privilege hereunder preclude further
exercise of the same right, power or privilege.
Validity Of Provisions .
In the event any provision or any part or portion of any provision of these Terms
and Conditions shall be held to be invalid, void or otherwise unenforceable, such
holding shall not affect any other provision hereof.
Revised August 8, 2006. This revision supersedes all previous revisions and versions.