Viega LLC Terms & Conditions of Sale
These Viega LLC terms and conditions of sale (these “Terms and Conditions”) govern all sales of products (“Products”) by Viega LLC (“Seller”) to the individual or business entity buying such Products (“Buyer”). The term “contract” shall mean the agreement between Buyer and Seller arising as a result of Buyer’s submission of an order for Seller’s Products. Such contract shall be deemed to incorporate and be governed by these Terms and Conditions. Buyer and Seller expressly agree that Seller may modify these Terms and Conditions from time to time without notice, and such modifications shall be binding on Buyer. These Terms and Conditions are incorporated by reference into all documents issued by Seller to Buyer in connection with the sale and/or provision of Products; provided, however, that these Terms and Conditions shall only apply to the sale of Products by Seller in or to locations within the United States and Canada.
1. NO MODIFICATIONS
Seller’s acceptance of any purchase order and/or sale or provision of any Products to Buyer are all expressly conditioned on Buyer’s acceptance of these Terms and Conditions as in effect from time to time. THESE TERMS AND CONDITIONS SHALL TAKE PRECEDENCE OVER ANY TERMS AND CONDITIONS WHICH APPEAR IN BUYER’S ORDER OR IN ANY DOCUMENTS INCORPORATED BY REFERENCE IN BUYER’S ORDER. No term or condition of Buyer’s order conflicting with, in addition to, or different from these Terms and Conditions shall become part of the contract unless explicitly agreed to in writing by Seller. Acceptance by Buyer of any Products delivered by Seller, and/or payment by Buyer of any invoice for the same shall be conclusively deemed an acknowledgment and acceptance of these Terms and Conditions as then in effect. Seller’s failure to object to any provision contained in any communication from Buyer shall not be construed as a waiver of these Terms and Conditions nor as an acceptance of any such provision(s). FURTHER, SELLER HEREBY REJECTS ANY TERMS AND CONDITIONS WHICH ATTEMPT TO ALTER, MODIFY OR CHANGE IN ANY WAY ANY PROVISION HEREOF, OR OTHERWISE ATTEMPT TO SUSPEND, CONTRADICT OR ADD TO ANY TERM OR CONDITION CONTAINED HEREIN (WHETHER ORAL OR WRITTEN) OR IMPLIED BY TRADE, CUSTOM, PRACTICE, COURSE OF DEALING OR USAGE IN THE TRADE. BUYER AND SELLER AGREE THAT THESE TERMS AND CONDITIONS, ARE ACCEPTED IN GOOD FAITH BY BOTH PARTIES AS THE COMPLETE AND FINAL EXPRESSION OF THE TERMS AND CONDITIONS GOVERNING TRANSACTIONS BETWEEN THEM, AND FURTHER AGREE THAT THESE TERMS AND CONDITIONS SHALL CONTROL IN ANY “BATTLE OF THE FORMS” ARGUMENT AS DESCRIBED IN SECTION 2-207 OF THE UNIFORM COMMERCIAL CODE.
2. ORDERS
By submitting a request for quote or purchase order to Seller, Buyer agrees to be subject to these Terms and Conditions in their entirety. All orders must be bona fide commitments showing definite quantities, Product descriptions, and Viega part numbers. No purchaser order, whether or not submitted in response to a quotation by Seller, shall be binding on Seller until accepted by Seller using Seller’s Order Confirmation documentation. Buyer may not cancel or modify an order in whole or in part without Seller’s prior written consent, to be given or denied in Seller’s discretion, and which Seller may condition upon an adjustment of price and/or other terms, including reimbursement to Seller of any costs and damages in connection with the order and its cancellation. Orders from U.S. customers with a “Ship to” Canada location will not be accepted. Canadian customer orders must ship to Canada.
3. PRICING
The purchase price of any Products sold and/or provided shall be as stated on the applicable Seller Order Confirmation. Notwithstanding the foregoing, all published prices are subject to change, including the assessment of surcharges on the sale of any Products predicated on an increase in the cost of raw materials, freight, or energy costs, all after the date of the applicable Seller order confirmation and with or without prior notice. Any price change resulting from a surcharge based on an increase of Seller’s cost may, as previously noted in this Section 3, be made effective by Seller without prior notice to Buyer and may be further adjusted by Seller periodically to reflect additional changes in costs to Seller. In any case, Seller shall be bound as to purchase price only upon shipment and/or acceptance by Buyer of all or any part of the Products ordered.
4. PAYMENT TERMS
Payment terms are net thirty (30) days, unless otherwise stated in a separate writing signed by an authorized agent of Seller. All invoices are payable in USD or CAD depending on point of delivery. Minimum invoice is $250 USD, net invoiced value. Issuance of credit to Buyer shall be in Seller’s discretion. Time shall be of the essence in payment. No payment shall be deemed to have been received until Seller has received cleared funds. In the event Buyer fails to make payment to Seller of any amounts due and owing (including any applicable surcharge or freight charge) by the net due date, Seller may charge interest on the outstanding balance at a rate of 1.5% per month or the highest rate allowed by law (whichever is less) until paid in full. Payments after accrual of such interest charges shall be applied first against such interest charges and second against past due invoices. Buyer’s account may also be charged with any reasonable attorneys or collections fees associated with collecting past due amounts. Buyer shall make all payments due to Seller for Products sold without any deduction whether by way of set-off, counterclaim, abatement or otherwise, unless Buyer has a valid court order requiring an amount equal to such deduction to be paid by Seller to Buyer. In no event shall Seller be responsible for any costs associated with the processing of invoices to Buyer with a third party or otherwise at Buyer’s request and any such costs shall be separately paid or handled by Buyer at its sole cost and expense.
5. FREIGHT CHARGES
If the agreed purchase price for Products was based on freight being allowed to destination (whether such freight charges were agreed to be included in the purchase price or to be charged as a separate line item), any change in applicable freight rates, including, but not limited to, any applicable fuel surcharges assessed by Seller upon prior notice to Buyer or without prior notice passed along by Seller to Buyer from a third party carrier, between the date of quotation and/or acceptance of purchase order and the time of shipment will result in a corresponding change in price. If price is quoted F.O.B. trucks, it shall mean on the nearest accessible road or street to the building operation, and not unloaded from the trucks.
Except as otherwise provided herein, Seller shall not be responsible for freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges. If such charges are by the terms of sale included (whether in the price itself or as a separate line item), any increase in rates, including, but not limited to, any increase in applicable fuel surcharges, whether assessed by Seller or passed along by Seller to Buyer from a third party carrier, becoming effective prior to the shipment date of the Products ordered, shall be the responsibility of Buyer.
FFA applies to orders of $4,000 USD/$5,000 CAD or greater if the order DOES NOT contain any PEX coils, PEX straight length bundles, or stainless-steel straight length pipe. Orders that contain any amount of stainless-steel straight length pipe, regardless of whether it is combined with other Products, the steel pipe (ALONE) must equal $5,000 USD/$5,000 CAD to qualify for FFA, provided, however, a $350 overlength charge will be applied to every such order. For orders that contain PEX coils, PEX straight length bundles, or any combination of coils, bundles and other Products, the entire order must equal $10,000 or greater for FFA to apply. FFA does not apply for any non-catalogued Products and cannot be combined with cataloged Products in order to meet FFA.
6. DELIVERY AND PERFORMANCE
Unless specifically agreed to by Seller in a separate signed writing, (i) delivery of Products is F.O.B. Seller’s shipping point (except for Products sold for delivery to Canada), and (ii) Seller does not guarantee any certain date of delivery. Seller shall not be liable to Buyer for any losses, costs, damages, charges or expenses incurred by Buyer or any other person or entity arising
directly or indirectly out of a failure to deliver on any particular date, nor will any delay entitle Buyer to terminate or rescind its purchase. Seller reserves the right to defer delivery, to cancel the order or reduce the volume of Products delivered, all without liability of any kind whatsoever to Buyer, if Seller is prevented from or delayed in the carrying on of its business due to causes beyond Seller’s control, including, without limitation, strikes, lockouts or other labor difficulties, floods, fires, earthquakes, hurricanes or other unusually severe weather conditions, embargoes, war or other outbreak of hostilities, acts of terrorism, acts of God, acts of Buyer, market shortages, unavailability of Products or necessary materials, supplies or transportation services, any shift in raw material costs that prohibit or materially reduce the supply of Products or necessary materials or supplies from Seller’s suppliers, inability to obtain shipping space, machinery breakdowns, delays of carriers or suppliers, governmental acts and regulations or other contingency the non-occurrence of which was a basic assumption on which the purchase order was accepted. In such case, Seller shall have no obligation to purchase substitute goods or make other substitute arrangements in order to complete delivery to Buyer or to ship substitute goods from any other facility. Buyer’s right, under the Uniform Commercial Code, to reject due to delay in delivery is waived unless notice thereof is presented to Seller in writing within five (5) days after delivery.
In the absence of specific instructions from Buyer, Seller will select the carrier and ship “collect,” but shall not be deemed thereby to assume any liability in connection with the shipment nor shall the carrier be construed to be the agent of Seller. Buyer must provide its own insurance. Title and risk of loss or damage to all products sold hereunder shall pass from Seller to Buyer upon delivery by Seller to the possession of the carrier. Any claims for loss, damage or mis-delivery thereafter shall be filed with the carrier. All products shall be deemed finally inspected and accepted within ten days after delivery unless notice of rejection is given in writing to Seller within such period. Acceptance shall constitute acknowledgement of full performance by Seller of all obligations under the contract.
7. INSTALLMENTS
Unless otherwise expressly agreed with Buyer by Seller in a separate written document, Seller shall have the right to make delivery in installments. All installments shall be separately invoiced and paid as billed without regard to subsequent deliveries. Failure of Buyer to pay for any installment when due shall excuse Seller from making further deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept and pay for remaining installments.
8. WARRANTY; DISCLAIMER
Seller will furnish Products of the quality specified; provided, however, that Seller’s affirmative statements, if any, with regard to the character of Products in product information, including, but not limited to, Seller’s then current Stock List and Reference Book, on its website, in price lists or other information, shall not be binding. For warranty information see the following URLs:
Limited Warranty - Viega ProPress Copper Fitting and Valves
Limited Warranty - Viega ProPress Stainless Tubing, Fittings, and Valves
Limited Warranty - Viega MegaPress
Limited Warranty - Viega MegaPress G
Limited Warranty - Viega Metal Systems for Industrial Applications
Limited Warranty - Viega Marine Applications
Limited Warranty - Viega PureFlow Water System
Limited Warranty - Viega PureFlow for Manufactured Housing / Recreational Vehicles
Limited Warranty - Viega Heating and Cooling Solutions
Limited Warranty Canada - Viega Heating and Cooling Solutions
EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BUYER ACKNOWLEDGES AND AGREES THAT (I) NO ORAL OR WRITTEN REPRESENTATION, GUARANTY OR WARRANTY MADE BY SELLER OR ANY OF ITS EMPLOYEES, AGENTS, OR REPRESENTATIVE SHALL BE BNDING ON SELLER, EXCEPT AS EXPRESSLY SET FORTH OR REFERENCED IN THESE TEERMS AND CONDITIONS, AND (II) BUYER TAKES SOLE RESPONSIBILITY FOR THE SELECTION OF AND SPECIFICATIONS FOR THE PRODUCTS AND THEIR FITNESS FOR ANY PURPOSES INTENDED BY BUYER OR BUYER’S CUSTOMER(S).
9. RETURNS
All returns are subject to Seller’s return policy. No material may be returned without Seller’s written consent and return material authorization (RMA) number. Any items with a purchase date older than 18 months are not returnable. Seller will accept cataloged and resalable items only. No returns will be allowed for stainless-steel pipe, straight length PEX tubing, or discontinued, damaged, non-cataloged merchandise, or broken bag quantities. Any material which is authorized to be returned will be subject to a minimum twenty-five percent (25%) restocking fee. Minimum return amount is $1,500 USD, net invoice value. For more information on returns and the complete return policy go to www.viega.us/returns. Buyer may not dispose of any allegedly defective or nonconforming Products without Seller’s consent. Upon receipt of consent from Seller to return allegedly defective or nonconforming Products, Buyer shall return to Seller (F.O.B. Seller’s destination) all Products allegedly not conforming to specifications, or otherwise allegedly defective. Products returned must be returned in the same condition as when received by Buyer. Products found by Seller to be defective or not to conform to specifications shall, upon return, be replaced or repaired by Seller without any additional charge, or, at Seller’s option, Seller may credit the purchase price of such Products to Buyer by issuing Buyer a credit memo or good funds or by setting off the purchase price of such Products against monies owed to Seller by Buyer. Seller will also credit Buyer for reasonable transportation charges on returned defective or nonconforming Products. Returned Products which are found by Seller to be free from defect and to conform to specifications or otherwise not suffer from a defect or nonconformity which originated with Seller shall be held at Seller’s facility for Buyer’s disposition. Should no such disposition instructions be received from Buyer within thirty (30) days of notice of Seller’s finding, Seller may do with the Products as it wishes, including selling the same for its scrap value. Replacement or repaired Products will be warranted for the remainder of the original warranty period.
10. LIMITATION OF SELLER’S LIABILITY
IN NO EVENT SHALL SELLER’S LIABILITY, REGARDLESS OF THE CAUSE THEREOF, EXTEND BEYOND REPLACEMENT OR REPAIR OF PRODUCTS OR GIVING BUYER CREDIT FOR THE PURCHASE PRICE OF PRODUCTS SOLD OR PROVIDED, EITHER AT SELLER’S ELECTION, NOR SHALL SELLER HAVE ANY LIABILITY FOR LOSS OF TIME, COST OF LABOR EXPENDED, OR FOR ANY SEPARATE, SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL DAMAGES RESULTING FROM REJECTION OF FINISHED PARTS BY BUYER OR BUYER’S CUSTOMER(S).
11. INDEMNITY
To the fullest extent permitted by law, Buyer shall, at Buyer’s sole cost and expense, indemnify, defend, release and hold harmless Seller, its officers, directors, agents and employees, from and against any and all claims, demands, lawsuits or proceedings of any kind brought or threatened against Seller and/or its officers, directors, agents and employees based on any claim, in whole or in part, that the Products as fabricated or manufactured by Seller in accordance with drawings, specifications or other information provided by Buyer fail to (i) be adequate for a particular purpose, (ii) comply with any product liability law, rule or regulation pertaining thereto and/or (iii) be adequate for any use to which the Products are put after shipment by Seller to Buyer, and Buyer shall pay all costs, expenses, damages, liabilities and losses incurred by Seller, its officers, directors, agents and/or employees, as a result of any such actual or threatened claim, demand, lawsuit or proceeding, including, but not limited to, reasonable attorney’s fees.
12. PATENT INFRINGEMENT; TRADE SECRET VIOLATION CLAIMS
Buyer expressly warrants to Seller that Products fabricated, manufactured or sold by Seller to Buyer in accordance with drawings, specifications or other information provided by Buyer shall not infringe upon any valid United States patent, copyright, or trademark, or knowingly violate any trade secret or other proprietary right of any third party. To the fullest extent permitted by law, Buyer shall, at Buyer’s sole cost and expense, indemnify, defend, release and hold harmless Seller, its officers, directors, agents and employees, from and against any and all claims, demands, lawsuits or proceedings of any kind brought or threatened against Seller and/or its officers, directors, agents and employees based on any claim, in whole or part, that the Products as fabricated or manufactured by Seller in accordance with drawings, specifications or other information provided by Buyer or the sale thereof infringes any patent, copyright or trademark or knowingly violates any trade secret or other proprietary right of any third party, and Buyer shall pay all costs, expenses, damages, liabilities and losses incurred by Seller, its officers, directors, agents and/or employees, as a result of any such actual or threatened claim, demand, lawsuit or proceeding, including, but not limited to, reasonable attorney’s fees.
13. CLAIMS AGAINST COMMON CARRIERS
Delivery of Products to a common carrier shall constitute delivery to Buyer and upon such delivery to a common carrier, all risk of damage shall be borne by Buyer, and Buyer shall be responsible for obtaining insurance, if desired, on the Products while in transport. If Buyer discovers a shortage in Products delivered or if the Products have been damaged in transit, Buyer must make a note to that effect upon the receipt Buyer gives the carrier or his, her or its agent. Also, Buyer must request that a similar notation be made on the freight bill. Damaged Products must not be unloaded until inspected and such damage noted in writing. If there is justification for a claim, Buyer will file such promptly with the carrier.
14. JURISDICTION AND VENUE
These Terms and Conditions and the contract between Buyer and Seller for the purchase and sale of Products created hereunder is deemed made in Colorado and shall be governed as to validity, interpretation, construction, effect, and in all other respects, by the laws of the State of Colorado, without giving effect to the conflict of laws principles thereof. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions or the sale of goods or services from Seller to Buyer. Venue in any legal action brought by either Buyer or Seller in connection herewith or with Products shall be deemed proper in any of the following locations, which locale shall be at the choosing of Seller, in its discretion: (i) the county and state of the principal location of Buyer; (ii) the county and state of any location of Buyer to which Seller has delivered Products, if different from Buyer’s principal location; (iii) the county and state of any location of Seller from which Products have been sold, provided or shipped to Buyer; or (iv) the county and state of the principal location of Seller. Buyer hereby agrees that it will submit to the personal jurisdiction of the court wherein venue is chosen by Seller in accordance with the preceding sentence.
15. FINANCIAL RESPONSIBILITY
Reasonable doubt on the part of Seller concerning the financial responsibility of Buyer (including, but not limited to, Buyer’s failure to pay on the net due date for Products) shall entitle Seller to stop operation/production, decline shipment, or stop any Products in transit without any liability whatsoever to Buyer, until such time as the Products have been paid for or until Seller is furnished reasonably satisfactory proof of Buyer’s financial responsibility, as determined in Seller’s discretion. If Seller suspends performance and later proceeds with fulfillment of such order, Seller shall be entitled to such extension of time for performance as is necessitated by the suspension. If Seller has agreed with Buyer to accept payment for any shipment by credit card, such credit card shall be charged at the time of sale upon Buyer’s confirmation that such shipment is to be paid for in such manner.
16. TITLE
Notwithstanding delivery and passing of risk, title to the Products sold by Seller to Buyer shall pass to Buyer at F.O.B. shipping point. From Seller’s shipping point to delivery to Buyer, Buyer shall insure the Products for their full value with a reputable insurer, and on request, Buyer shall produce the policy or policies of insurance to Seller.
17. TAXES, DUTIES, BROKERAGE AND OTHER FEES
In addition to the agreed purchase price for Products, Buyer shall pay to Seller any and all applicable taxes imposed by any present or future law on the sale, manufacture, delivery, use and/or other handling of Products, whether such taxes are characterized as goods and services tax, sales tax, use tax, excise tax, value added tax, business transfer tax or otherwise (collectively, “Taxes”), but excluding income taxes normally paid by Seller, and all other reasonable charges for ancillary services and costs such as forming, galvanizing and other services, including, but not limited to, special packaging and the cost of performing any tests or inspections required by Buyer which are not regularly performed by Seller. Should Buyer claim an exemption from any Taxes, Buyer shall provide such exemption certificate to Seller. It will be the responsibility of Buyer to make sure that its proof of certificate status remains current. In no event shall Seller be liable for any Taxes due by Buyer and Buyer hereby indemnifies Seller against any such claims for Taxes by any taxing authority or party acting on behalf of such taxing authority. Also, when shipping to Canada, the price quoted shall not include any applicable duties or brokerage fees. In such a case, Buyer shall pay to Seller’s designated customs broker or Buyer’s own custom broker, as applicable, any and all such brokerage fees, surcharges, customs, duties and Taxes (collectively, “Brokerage Fees”), and, to the fullest extent permitted by law, Buyer agrees, at Buyer’s sole cost and expense, to indemnify, defend, release and hold harmless Seller, its officers, directors, agents and employees, from and against any and all claims, demands, lawsuits or proceedings of any kind brought or threatened against Seller and/or its officers, directors, agents and employees for any such unpaid Brokerage Fees, and Buyer shall pay all costs, expenses, damages, liabilities and losses incurred by Seller, its officers, directors, agents and/or employees, as a result of any such actual or threatened claim, demand, lawsuit or proceeding, including, but not limited to, reasonable attorney’s fees.
18. TERMINATION
If, at any time, (i) Buyer fails to pay to Seller any amount in full when due, or otherwise fails to perform any other obligation owed to Seller; (ii) Buyer becomes insolvent or makes an assignment for the benefit of creditors or is adjudged bankrupt or a receiver or trustee of Buyer’s property is appointed; or (iii) a levy, execution or attachment is made of any material portion of Buyer’s property, Seller may, in its sole and absolute discretion, terminate the contract with Buyer for the purchase and sale of Products as created hereby and refuse to make further deliveries and/or repossess any Products for which Seller has not been paid in full (in cash or cleared funds) or continue to perform but refuse to make any shipments except upon the receipt of payment in full (in cash or cleared funds) prior to shipment. All amounts payable to Seller are due immediately upon termination pursuant to this Section 18 despite any other provision to the contrary herein.
19. WAIVER
Neither any failure nor any delay on the part of Seller in exercising any rights hereunder shall operate as a waiver of any of Seller’s rights. Any waiver by Seller of any breach of, or any default under, any provision of these Terms and Conditions by Buyer will not be deemed a waiver of any subsequent breach or default. All rights and remedies granted herein are in addition to all remedies available at law or in equity.
20. EXPORT
If Buyer exports the Products outside of the United States, Buyer agrees to comply with all relevant laws and regulations, including, but not limited to, those of the United States Department of Commerce and the United States Export Administration Act, so as to ensure that the Products are not exported in violation of any applicable law or regulation.
21. ASSIGNMENT
Buyer may not assign its rights or obligations hereunder (whether voluntarily, involuntarily, by operation of law, transfer of majority or controlling interest or otherwise) without the prior written consent of Seller. These Terms and Conditions shall be binding upon Buyer and its successors and permitted assigns.
22. SEVERABILITY
If any provision of these Terms and Conditions shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and Conditions, and the remaining Sections shall continue in full force and effect.
23. ENTIRE AGREEMENT
The contract by and between Buyer and Seller for the purchase and sale of Products created hereby constitutes the entire agreement by and between Buyer and Seller with regard to the subject matter hereof and shall exclusively determine the rights and obligations of Buyer and Seller with regard to the purchase and sale of Products, any prior course of dealing, custom or usage of trade or course of performance notwithstanding, and may not be modified by Buyer except in separate writing signed by an authorized agent of Seller.
24. FOREIGN CORRUPT PRACTICES ACT
Seller, in connection with the sale of Products to Buyer hereunder, and Buyer, while acknowledging that it is an independent contractor from Seller, in connection with any purchase order, the purchase of Products hereunder and the resale of such, agree to comply with the United States’ Foreign Corrupt Practices Act, as amended from time to time (the “FCPA”), by not paying, offering or agreeing to pay, authorizing the giving of, or causing to be paid, directly or indirectly, any money or other thing of value to any foreign official (as defined in the FCPA) to obtain or retain business or influence such foreign official in the performance of his or her duties.
25. Prop 65 Notice
Some products may contain one or more chemicals known to the state of California to cause cancer, birth defects or other reproductive harm. For further information related to California’s Proposition 65, see https://www.p65warnings.ca.gov/.