Website Terms and Conditions / Terms and Conditions of Online Sale
1. Definitions; Agreement to Terms
Definitions. For purposes of these Website Terms and Conditions and Terms and Conditions of Online Sale (these Terms), the following capitalized terms shall have the meanings set forth below:
Company, we, us, or our means NASCO Supply LLC, a Wyoming limited liability company, having its principal offices at 111 Kerry Lane, Suite 102, Wauconda, Illinois 60084, together with its successors and permitted assigns.
Customer, you, or your means the person or entity that accesses our website and/or purchases Products from the Company, including such persons or entitys officers, directors, employees, contractors, agents, and permitted assigns, as applicable.
Website means any website operated by or on behalf of the Company through which Products are marketed, offered for sale, ordered, or purchased, and any related mobile or other online interfaces, applications, or tools.
Products means all goods, materials, supplies, components, equipment, and any other tangible items offered for sale by the Company from time to time through the Website, together with any packaging, labeling, documentation, instructions, and other materials supplied therewith. For the avoidance of doubt, Products may include products manufactured by third parties and resold by the Company as a distributor or reseller.
Order means any order for Products placed by or on behalf of Customer through the Website or otherwise accepted by the Company, including any order acknowledgement, invoice, schedule, or other order-related document issued by the Company.
Contract means, collectively, these Terms, together with any Order accepted by the Company, and any other written agreement expressly incorporated by reference in an Order or these Terms, which collectively govern the sale of Products by the Company to Customer.
Business Day means any day other than a Saturday, Sunday, or any day on which commercial banks in the State of Illinois are authorized or required by law to be closed.
Including means including, without limitation, and the use of the term shall not be construed to limit the generality of the language preceding it.
Law or Laws means any and all applicable federal, state, local, and foreign statutes, laws, ordinances, regulations, rules, directives, codes, orders, judgments, decrees, and other legally binding requirements of any governmental authority having jurisdiction.
Agreement to Terms. By accessing or using the Website, placing an Order, clicking to accept or agree to these Terms where that option is made available, or otherwise purchasing Products from the Company, Customer:
acknowledges that Customer has read, understands, and agrees to be bound by these Terms, without modification; and
represents and warrants that Customer has the legal capacity and authority to enter into the Contract on its own behalf or on behalf of the entity it represents.
Amendments to Terms. The Company may amend or modify these Terms from time to time in its sole discretion. Any such amendments or modifications shall be effective when posted on the Website, unless a later effective date is stated. Customers continued use of the Website or placement of Orders after such posting constitutes Customers acceptance of the revised Terms. The version of the Terms in effect on the date the Company accepts an Order shall govern that Order.
Separate Website Terms of Use and Privacy Policy. Use of the Website (including browsing, account creation, and non-purchase interactions) may also be governed by the Company’s separate website terms of use and privacy policy. In the event of a conflict between these Terms and the website terms of use with respect to the purchase and sale of Products, these Terms shall control.
2. Applicability; Entire Agreement; Order of Precedence
Applicability. These Terms apply to all sales of Products by the Company to Customer via the Website and to any related quotations, offers, Order acknowledgments, invoices, or other documents issued by the Company, unless the Company and Customer have executed a separate written master supply or sales agreement that expressly supersedes these Terms for the particular transaction.
Exclusion of Customer Terms. Any terms or conditions proposed by Customer, whether in a purchase order, request for quotation, bid document, confirmation, website click-wrap or browse-wrap, or otherwise, that are in addition to, different from, or inconsistent with these Terms are hereby rejected and shall be of no force or effect, unless and to the extent expressly accepted by the Company in a separate written instrument signed by an authorized representative of the Company.
Entire Agreement. The Contract constitutes the entire agreement between the parties with respect to the sale of Products and supersedes all prior or contemporaneous negotiations, understandings, representations, warranties, communications, or agreements, whether oral or written, relating to such subject matter.
Order of Precedence. In the event of a conflict or inconsistency between any of the components of the Contract, the following order of precedence shall apply, to the extent necessary to resolve such conflict:
any separately executed written agreement between the Company and Customer that expressly states it supersedes these Terms (but only with respect to the specific Products and transactions covered thereby);
the specific terms stated in the Order accepted by the Company (excluding any Customer-imposed terms not expressly accepted in writing by the Company);
these Terms; and
any other documents incorporated into the Contract by reference.
No Course of Dealing or Trade Usage. No course of dealing, usage of trade, or course of performance shall modify or supplement any term of the Contract unless expressly set forth in a written amendment executed by both parties.
3. Online Orders; Acceptance; Cancellations
Order Placement. Orders for Products shall be placed by Customer through the Website in accordance with the then-current ordering procedures specified by the Company. The Company may, in its discretion, accept Orders via other methods agreed upon in writing, but shall have no obligation to do so.
Offer and Acceptance. All pricing, availability information, and other content on the Website with respect to Products constitute an invitation for Customer to submit an offer to purchase and do not constitute a binding offer. By placing an Order, Customer makes an offer to purchase the Products described in the Order in accordance with these Terms. No Order shall be binding upon the Company unless and until the Company accepts the Order.
Order Acceptance. The Company may accept an Order by any of the following:
issuing an Order acknowledgement or confirmation (electronically or otherwise);
issuing an invoice for the Products;
commencing manufacture, assembly, packaging, or shipment of the Products; or
otherwise indicating acceptance in writing.
Rejection or Cancellation by Company. The Company reserves the right, in its sole discretion, to refuse, reject, or cancel any Order, in whole or in part, at any time prior to delivery, including after acceptance, due to:
unavailability or discontinuation of Products;
errors in pricing or Product descriptions;
suspected fraud, abuse, or violation of these Terms;
inability to verify or obtain authorization for payment; or
other legitimate business reasons.
In such case, the Company’s sole obligation, and Customers exclusive remedy, shall be a refund of any amounts actually paid by Customer to the Company for the cancelled portion of the Order, if any.
Customer Cancellations or Changes. Customer may not cancel or modify any Order, in whole or in part, after the Company has accepted the Order, except with the Company’s prior written consent, which may be conditioned on payment of reasonable cancellation, restocking, or other charges (including reimbursement of costs already incurred by the Company). Any request for cancellation or modification must be made in writing and shall be effective only when accepted in writing by the Company.
Backorders and Partial Shipments. The Company may, in its discretion, fulfill Orders in whole or in part and may make partial shipments and issue separate invoices for each such shipment. In the event of a backorder or delay, the Company may ship Products as they become available, unless the Order is expressly designated as ship complete and accepted as such by the Company.
4. Prices; Taxes; Changes
Prices. Unless otherwise expressly stated in an Order accepted by the Company, the prices for Products shall be the prices listed on the Website at the time the Company accepts the applicable Order. All prices are stated and payable in U.S. dollars.
Price Changes. The Company may change its prices for Products at any time without prior notice; provided, however, that such changes shall not apply to Orders already accepted by the Company prior to the effective date of the price change, except as expressly permitted by the Contract or required by changes in applicable Law.
Typographical and Other Errors. The Company endeavors to ensure that all information on the Website, including pricing and Product descriptions, is accurate. However, typographical, photographic, and other errors may occur. The Company reserves the right to correct any such errors and to cancel any Order arising from such errors, even if an Order has been accepted and payment has been processed, in which case the Company will refund any amounts actually paid by Customer for the cancelled portion of the Order.
Taxes and Other Charges. All prices are exclusive of any and all taxes, duties, fees, levies, and other governmental charges, including sales, use, excise, value-added, goods and services, and similar taxes (collectively, Taxes). Customer shall be responsible for, and shall pay, all Taxes, except for any Taxes imposed on the income or net worth of the Company. If the Company is required to collect and remit Taxes on Customers behalf, such Taxes shall be added to the invoice and paid by Customer, unless Customer furnishes the Company with a valid tax exemption certificate acceptable to the relevant taxing authorities prior to the applicable transaction.
Other Fees and Surcharges. Customer shall be responsible for any additional surcharges, handling fees, hazardous materials fees, or other charges that may be imposed by carriers, regulatory authorities, or the Company in connection with shipping, handling, or special processing of Products, to the extent disclosed to Customer in advance or commonly applied within the industry.
5. Payment Terms; Credit; Security Interest
Payment Terms. Unless otherwise expressly stated in an Order accepted by the Company, payment for Products shall be due in full at the time Customer places the Order and, in any event, prior to shipment. The Company may, in its discretion, offer other payment terms (such as net payment terms) subject to credit approval and any additional conditions imposed by the Company.
Payment Methods. The Company may accept payment by credit card, debit card, electronic funds transfer, or such other payment methods as the Company may specify from time to time. Customer authorizes the Company (or its designated third-party payment processor) to charge the payment method provided by Customer for the total amount of the Order, including any applicable Taxes, shipping charges, and fees.
Credit Approval; Credit Limits. Any extension of credit by the Company shall be subject to the Company’s credit approval process, which may include credit checks, financial information requests, and other due diligence. The Company may, in its sole discretion, establish, adjust, or revoke credit limits at any time, and may require advance payment, deposits, letters of credit, guarantees, or other forms of security.
Late Payments. Any amounts not paid when due shall accrue interest at the lesser of:
one and one-half percent (1.5%) per month; or
the maximum rate permitted by applicable Law,
from the due date until paid in full, whether before or after judgment. Customer shall reimburse the Company for all reasonable costs and expenses (including attorney’s fees and collection agency fees) incurred by the Company in collecting any past due amounts.
No Setoff or Withholding. Customer shall pay all amounts due under the Contract without setoff, recoupment, counterclaim, deduction, or withholding of any kind, except for any withholding required by Law, in which case Customer shall gross up the payment so that the Company receives the full amount it would have received absent such withholding, to the maximum extent permitted by Law.
Security Interest. To the extent permitted by Law, the Company reserves and Customer grants to the Company a purchase-money security interest in all Products sold pursuant to the Contract, together with all proceeds thereof, until the Company has received payment in full of all amounts due in respect of such Products. Customer agrees to execute and deliver any financing statements or other documents and take any actions reasonably requested by the Company to perfect, maintain, or enforce such security interest. Until payment is made in full, Customer shall not pledge or encumber the Products and shall keep the Products free and clear of any liens or other encumbrances adverse to the Company’s interest.
6. Shipping; Delivery; Risk of Loss; Title
Shipping Terms. Unless otherwise expressly stated in an Order accepted by the Company, all shipments of Products shall be made FCA (Free Carrier) Company’s shipping point (Incoterms 2020) or, if Incoterms are not explicitly referenced, shall be deemed shipped FOB shipping point, with carriage arranged by the Company or Customer as indicated on the Order. Shipping and handling charges will be added to the invoice.
Carrier Selection; Shipping Methods. The Company may select the carrier and method of shipment in its reasonable discretion, taking into account Customers requested delivery method, if any. Any delivery dates communicated by the Company are estimates only and are not guaranteed.
Risk of Loss; Title. Risk of loss or damage to the Products shall pass to Customer upon the Company’s delivery of the Products to the carrier at the shipping point. Title to the Products shall pass to Customer upon the Company’s receipt of full payment for such Products, subject to the security interest retained by the Company as set forth in these Terms.
Delivery; Inspection at Delivery. Customer shall inspect the Products promptly upon receipt. Customer shall note any apparent damage, shortages, or other discrepancies on the carriers delivery receipt and shall provide the Company with written notice thereof within the timeframe specified in Section 8 of these Terms. Failure to so notify the Company and the carrier may result in denial of any claim for such damage or shortage.
Partial Shipments. The Company may deliver the Products in one or more consignments. Each consignment shall be treated as a separate sale and invoiced separately, and Customer shall pay timely all invoices for each consignment in accordance with the payment terms, irrespective of any dispute relating to other consignments.
Delivery Failures; Force Majeure. The Company shall not be liable for any failure to deliver, or for any delay in delivery of, any Products due to any cause beyond the Company’s reasonable control, including those events described in Section 14 (Force Majeure).
7. Returns; Order Discrepancies
Return Policy. Returns of Products are subject to the Company’s then-current return policies and procedures, as posted on the Website or otherwise communicated by the Company. Unless otherwise required by Law or expressly stated by the Company in writing:
Products may only be returned with the Company’s prior written authorization in the form of a return merchandise authorization (RMA) number;
returned Products must be in unused, resalable condition, in original packaging, and accompanied by all documentation, manuals, and accessories; and
restocking fees and return shipping charges may apply.
Non-Returnable Products. Certain Products may be designated as non-returnable, including custom or special-order items, made-to-specification Products, perishable or time-sensitive Products, and Products marked final sale. Such Products may not be returned except as required by Law or due to the Company’s error.
Reporting Discrepancies. Customer shall notify the Company, in writing, of any alleged:
shipping errors (incorrect Products or quantities shipped),
visible damage to Products, or
shortages,
within the earlier of:
i. ten (10) Business Days after delivery, or
ii. the period stated in the Company’s applicable return policy.
Failure to provide such notice within the applicable period shall constitute irrevocable acceptance of the Products and a waiver of any claim with respect to such discrepancies.
Return Procedures. If the Company authorizes a return:
the Company will issue an RMA number and provide instructions for returning the Products;
Customer must clearly mark the RMA number on the shipping container for the returned Products; and
Customer must ship the Products in accordance with the Company’s instructions.
Products returned without a valid RMA number or not in compliance with the Company’s instructions may be refused, returned at Customers expense, or subject to additional handling and restocking charges.
8. Inspection; Acceptance; Nonconforming Goods
Inspection Period. Customer shall have a reasonable period, not to exceed ten (10) Business Days following delivery (the Inspection Period), to inspect the Products for conformity to the Contract. Customer shall be deemed to have accepted the Products unless, within the Inspection Period, Customer provides the Company with a written notice specifying any alleged nonconformities in reasonable detail.
Nonconforming Products. For purposes of these Terms, Nonconforming Products means only those Products that:
do not conform to the specifications expressly set forth in the Contract; or
are materially different from those identified in the Order.
Minor variations in color, dimensions, finish, or other characteristics that are customary or do not materially affect the performance or use of the Products shall not constitute Nonconforming Products.
Remedies for Nonconforming Products. If Customer timely and properly notifies the Company of any alleged Nonconforming Products during the Inspection Period and the Company reasonably verifies such nonconformity, the Company shall, at its option and as Customers sole and exclusive remedy:
repair or replace such Nonconforming Products with conforming Products; or
refund the purchase price actually paid by Customer for such Nonconforming Products, together with any reasonable shipping charges incurred by Customer for returning the Nonconforming Products if return is requested by the Company.
Return of Nonconforming Products. Upon the Company’s request, Customer shall return any alleged Nonconforming Products to the Company in accordance with the Company’s then-current return procedures. The Company shall bear the cost of return shipping for Nonconforming Products confirmed as such by the Company; otherwise, Customer shall bear such costs.
Failure to Notify; Waiver. If Customer fails to provide timely written notice of alleged Nonconforming Products in accordance with this Section, the Products shall be deemed accepted, and Customer waives any right to reject the Products or assert any claim of nonconformity.
No Other Acceptance Conditions. Acceptance of Products under this Section shall not be contingent upon any inspection, testing, or certification by any third party, unless such requirement is expressly set forth in the Contract and accepted by the Company in writing.
9. Representations; Warranties; Disclaimers
Customers Representations and Warranties. Customer represents, warrants, and covenants that:
it has the full power and authority to enter into and perform the Contract;
all information provided by Customer in connection with Orders, billing, payment, and account creation is true, accurate, and complete, and Customer shall promptly update such information as necessary;
if Customer is an entity, the individual accepting or executing the Contract on its behalf is duly authorized to do so;
Customer will use the Products in accordance with all applicable Laws, industry standards, and manufacturers instructions, warnings, and guidelines; and
Customer will not misrepresent the characteristics, quality, or origin of the Products in any resale or further distribution.
Company’s Limited Warranty as Seller/Distributor. Subject to the limitations and conditions set forth in the Contract, and unless a longer period is expressly provided in the Contract or required by Law:
the Company warrants that, at the time of delivery and for a period of thirty (30) days thereafter (or such other period as may be stated in the applicable Order or manufacturers warranty), the Products will materially conform to the descriptions expressly stated in the Contract; and
to the extent the Company is a distributor or reseller of Products manufactured by third parties, the Company does not itself manufacture such Products and does not provide any separate manufacturer-type warranty with respect thereto, but shall, to the extent permitted by the applicable manufacturer, pass through to Customer any transferable manufacturers warranties applicable to such Products.
Limitations on Warranty. The limited warranty in Section 9.2 shall not apply to, and the Company shall have no liability with respect to:
normal wear and tear;
damage or defects resulting from misuse, abuse, neglect, accident, improper installation, improper storage, improper maintenance, improper repair, improper handling, operation contrary to the applicable instructions, or use not in accordance with the Product specifications;
modifications or alterations to the Products made by anyone other than the Company or its authorized representatives;
combination or use of the Products with any equipment, components, software, materials, or substances not supplied or expressly approved by the Company or the applicable manufacturer; or
Products sold as is, with all faults, or similarly designated.
Exclusive Warranty Remedies. Customers sole and exclusive remedies for any breach of the limited warranty in Section 9.2 shall be the repair, replacement, or refund of the purchase price for the affected Products, as set forth in Section 8.3, subject to the limitation of liability in Section 10.
Disclaimer of Warranties. Except for the limited express warranty set forth in Section 9.2 and any non-disclaimable warranties imposed by applicable Law that cannot be limited or excluded by contract:
the Company makes no representations or warranties of any kind, express or implied, with respect to the Products, the Website, or any information or services provided in connection therewith; and
the Company expressly disclaims all other warranties, whether express, implied, statutory, or otherwise, including any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranties arising out of course of dealing, course of performance, or trade usage.
Third-Party Products; Manufacturer Warranties. To the extent the Company is not the manufacturer of a Product, any description, specification, or warranty information regarding such Product that is based on or derived from information provided by the manufacturer is provided by the Company for convenience only and is subject to change. The Company does not assume responsibility for the accuracy or completeness of such manufacturer information. Customers recourse for defects in or failures of such Products may be limited to any warranties provided directly by the manufacturer.
10. Limitation of Liability
General Limitation of Liability. To the maximum extent permitted by applicable Law, and except as otherwise expressly provided in these Terms:
in no event shall the aggregate liability of the Company, its affiliates, and their respective directors, officers, employees, agents, and representatives (collectively, the Company Parties) arising out of or relating to the Contract, the Products, or the transactions contemplated herein, whether in contract, tort (including negligence), strict liability, indemnity, or otherwise, exceed, in the aggregate, an amount equal to:
a. the total amounts actually paid by Customer to the Company for the specific Products giving rise to the claim during the twelve (12) month period immediately preceding the event giving rise to the claim; or
b. if the claim relates to a single Order, the total amounts actually paid by Customer to the Company for the Products under such Order; and
the existence of more than one claim, or claims involving more than one Order or more than one Product, shall not enlarge or extend the limitations of liability set forth in this Section.
Exclusion of Certain Damages. To the maximum extent permitted by applicable Law, in no event shall any Company Party be liable for any:
loss of profits, loss of revenue, loss of business, loss of goodwill, loss of anticipated savings, loss of use, loss of production, loss of data, or business interruption; or
any consequential, incidental, special, exemplary, punitive, or indirect damages,
in each case arising out of or relating to the Contract, the Products, or the transactions contemplated herein, whether such damages are characterized as direct or indirect and whether based on contract, tort (including negligence), strict liability, indemnity, or any other legal or equitable theory, even if any Company Party has been advised of the possibility of such damages or such damages were reasonably foreseeable.
Allocation of Risk. Customer acknowledges and agrees that:
the limitations of liability set forth in this Section are an essential basis of the bargain between the parties;
absent such limitations, the pricing and other terms of the Contract would be substantially different; and
such limitations shall apply notwithstanding any failure of the essential purpose of any limited remedy.
Exceptions. The limitations and exclusions in this Section shall not apply to:
any liability to the extent such limitation or exclusion is prohibited by applicable Law (including, where applicable, liability for personal injury or death caused by the Company’s gross negligence or willful misconduct, to the extent such liability may not be disclaimed under applicable Law); or
any liability arising from the Company’s willful misconduct or fraud, to the extent such liability cannot lawfully be limited or excluded.
Claims Period. To the maximum extent permitted by Law, any claim or cause of action by Customer arising out of or relating to the Contract or the Products shall be brought within one (1) year after the cause of action accrues, and any claim or cause of action not brought within such period shall be irrevocably waived.
11. Customer Indemnification
Indemnity by Customer. To the fullest extent permitted by Law, Customer shall indemnify, defend, and hold harmless the Company Parties from and against any and all claims, demands, suits, proceedings, liabilities, damages, losses, costs, and expenses (including reasonable attorneys fees and expenses) arising out of or relating to:
Customers use, handling, storage, installation, maintenance, or resale of the Products in a manner not authorized by the Contract, the applicable Product documentation, or applicable Laws;
any combination or use of the Products with other products, equipment, materials, substances, or services, where such combination or use is not reasonably foreseeable or is contrary to the Company’s or manufacturers instructions;
any representations, warranties, guarantees, or other commitments made by Customer with respect to the Products that are more expansive than, or inconsistent with, those made by the Company in the Contract or by the manufacturer in its written documentation;
Customers breach of the Contract or violation of applicable Laws; or
any claims by Customer or other third parties relating to the Products, except to the extent such claims arise from a breach of the Company’s express obligations under the Contract.
Indemnification Procedures. The Company shall:
promptly notify Customer in writing of any claim for which the Company seeks indemnification (provided that failure to so notify shall not relieve Customer of its indemnification obligations except to the extent Customer is materially prejudiced thereby);
permit Customer to control the defense and settlement of such claim, provided that Customer shall not settle any claim in a manner that imposes any obligation on the Company, admits liability on behalf of the Company, or fails to unconditionally release the Company Parties from all liability, without the Company’s prior written consent; and
reasonably cooperate with Customer (at Customers expense) in the defense and settlement of such claim.
12. Intellectual Property Rights; Use of Trademarks
Ownership. All right, title, and interest in and to the Website, including all text, graphics, photographs, designs, user interfaces, visual interfaces, artwork, computer code, and other materials, and any trademarks, service marks, trade names, logos, and other source identifiers of the Company, together with all associated intellectual property rights, are and shall remain the exclusive property of the Company or its licensors. Customer acquires no rights in or to any intellectual property of the Company, except the limited rights to use the Website and purchase Products as expressly set forth in the Contract.
Restrictions. Customer shall not, and shall not permit any third party to:
copy, reproduce, modify, create derivative works of, adapt, translate, or otherwise exploit any portion of the Website or the Company’s intellectual property, except as expressly authorized in writing by the Company;
use any Company trademark, trade name, logo, or other source identifier without the Company’s prior written consent, except as may be necessary for accurate identification of the Products;
remove, alter, or obscure any proprietary notices, labels, or marks on or in the Products, the Website, or related materials; or
reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of any software used in connection with the Website, except to the extent such restriction is prohibited by applicable Law.
Third-Party Intellectual Property. Certain Products may be subject to intellectual property rights held by third-party manufacturers or licensors. Customers use of such Products may be subject to additional license terms or restrictions stated by such third parties. Customer agrees to comply with all such third-party terms and restrictions.
13. Compliance with Laws; Export Control
Compliance with Laws. Customer shall comply with all applicable Laws relating to the purchase, receipt, handling, storage, use, and disposal of the Products, including any regulatory, safety, environmental, or labeling requirements.
Export Control and Sanctions. Customer acknowledges that the Products may be subject to export control laws and regulations of the United States and other jurisdictions. Customer shall not, directly or indirectly, export, re-export, divert, transfer, or otherwise make available any Products, or any technical information related thereto, to any person, entity, or destination, or for any end use, prohibited by applicable export control or economic sanctions Laws. Customer shall obtain any required licenses or approvals prior to exporting or re-exporting the Products.
Restricted Parties. Customer represents and warrants that it is not, and is not owned or controlled by, or acting on behalf of, any person or entity that is the subject of any sanctions or is listed on any government-issued list of prohibited or restricted parties, and that Customer will not resell or otherwise make the Products available to any such prohibited or restricted parties.
14. Force Majeure
Force Majeure Events. The Company shall not be liable for any delay or failure in performance, including delay or failure to manufacture, deliver, or otherwise perform its obligations under the Contract, to the extent such delay or failure is caused by or results from events or circumstances beyond the Company’s reasonable control, including:
acts of God, natural disasters, or extreme weather;
war, invasion, hostilities, acts of terrorism, or civil unrest;
labor disputes, strikes, lockouts, or other industrial disturbances;
epidemics, pandemics, public health emergencies, or government-imposed quarantines;
governmental actions, orders, laws, embargoes, or blockades;
shortages of or inability to obtain labor, materials, energy, fuel, components, or transportation;
breakdowns, accidents, or failures of equipment, machinery, or facilities; or
other causes beyond the Company’s reasonable control.
Notice and Mitigation. The Company shall use commercially reasonable efforts to:
notify Customer of the occurrence of a force majeure event; and
mitigate the impact of such event on its performance.
The time for performance shall be extended for a period equal to the duration of the force majeure event plus a reasonable recovery period.
Right to Allocate and Cancel. In the event of a shortage of Products or materials resulting from a force majeure event, the Company may allocate its available inventory and production capacity among its customers in such manner as the Company deems fair and equitable. The Company may, in its discretion, cancel Orders affected by a force majeure event without liability, upon notice to Customer and refund of any prepayments for Products not delivered.
15. Assignment
Assignment by Customer. Customer shall not assign, delegate, or otherwise transfer any of its rights or obligations under the Contract, whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of the Company. Any purported assignment or transfer by Customer in violation of this Section shall be null and void.
Assignment by Company. The Company may assign, delegate, or otherwise transfer any or all of its rights or obligations under the Contract, in whole or in part, without the consent of Customer, including to any affiliate of the Company or to any purchaser of all or substantially all of the Company’s assets related to the Products or its business.
Binding Effect. Subject to the foregoing, the Contract shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
16. Notices
Notices to Customer. The Company may provide notices to Customer under the Contract:
by email to the email address associated with Customers account or provided in connection with an Order;
by posting such notices on the Website; or
by any other commercially reasonable means.
Notices sent by email shall be deemed given when transmitted, provided that no error or bounce-back message is received by the sender. Notices posted on the Website shall be deemed given upon posting.
Notices to Company. All notices required or permitted to be given to the Company under the Contract shall be in writing and shall be deemed duly given:
when delivered personally;
on the date of delivery by a nationally recognized overnight courier (with written confirmation of delivery); or
on the fifth (5th) Business Day after being deposited in the United States mail, postage prepaid, certified or registered, return receipt requested, in each case addressed to:
NASCO Supply LLC
111 Kerry Lane, Suite 102
Wauconda, Illinois 60084
Attn: Legal Department
or to such other address or contact as the Company may designate by notice to Customer.
17. Governing Law
Governing Law. The Contract, and any dispute, claim, or controversy arising out of or relating to the Contract, the Products, or the transactions contemplated herein (whether based in contract, tort, statute, or any other legal or equitable theory), shall be governed by and construed in accordance with the internal Laws of the State of Illinois, without giving effect to any choice or conflict of laws provisions or rules that would result in the application of the Laws of any other jurisdiction.
Exclusion of CISG. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Contract or any transaction contemplated herein.
18. Binding Arbitration; Jurisdiction and Venue; Waiver of Jury Trial
Agreement to Arbitrate. To the maximum extent permitted by applicable Law, any dispute, claim, or controversy arising out of or relating to the Contract, the Products, the Website, or the transactions contemplated herein, including the formation, interpretation, breach, termination, or validity thereof, and including any claim based in contract, tort, statute, or any other legal or equitable theory (each, a Dispute), shall be resolved exclusively and finally by binding arbitration, rather than in court, except as expressly provided in this Section.
Arbitration Rules; Administration. Unless the parties otherwise agree in writing:
the arbitration shall be administered by the American Arbitration Association (AAA);
if Customer is an entity purchasing Products for business or commercial purposes, the arbitration shall be conducted in accordance with the AAA Commercial Arbitration Rules then in effect; and
if Customer is an individual purchasing Products primarily for personal, family, or household purposes, to the extent applicable, the arbitration shall be conducted in accordance with the AAA Consumer Arbitration Rules then in effect.
If the AAA is unavailable or unwilling to administer the arbitration, the parties shall select another nationally recognized arbitration provider with comparable rules.
Arbitrator; Procedures. Unless otherwise agreed in writing:
the arbitration shall be conducted before a single, neutral arbitrator mutually selected by the parties from the roster of the applicable arbitration provider, or, failing agreement, appointed in accordance with the providers rules;
the arbitrator shall be an attorney with at least ten (10) years of experience in commercial or consumer contract disputes, as applicable;
the arbitration shall be conducted in English;
the arbitrator shall have the authority to decide all issues of arbitrability, jurisdiction, and the scope or enforceability of this arbitration agreement, to the extent permitted by applicable Law; and
the arbitrator shall have the authority to grant any remedy or relief that a court of competent jurisdiction could award under the Contract and applicable Law, consistent with the limitations of liability and other terms of the Contract.
Location; Venue. The seat and exclusive venue of the arbitration shall be the State of Illinois, and, unless otherwise agreed in writing, the arbitration hearings shall take place in Lake County, Illinois, or such other county in Illinois as the Company may reasonably designate, consistent with the governing rules of the arbitration provider.
Governing Law of Arbitration. The arbitration agreement in this Section, and any arbitration conducted pursuant hereto, shall be governed by:
the Federal Arbitration Act (9 U.S.C. § 1 et seq.) to the fullest extent permitted; and
to the extent not preempted by federal law, the internal Laws of the State of Illinois, without regard to its conflict of laws rules.
Costs and Fees. The arbitrator’s fees and the administrative fees of the arbitration provider shall be allocated in accordance with the applicable rules, except that the arbitrator shall have the discretion to reallocate such fees and to award reasonable attorney’s fees and costs to the prevailing party, to the extent permitted by applicable Law and the arbitration rules. Each party shall otherwise bear its own attorney’s fees and costs, except as otherwise provided by the Contract or applicable Law.
Small Claims Option. Notwithstanding the foregoing agreement to arbitrate, either party may elect to bring an individual action in a small claims court of competent jurisdiction located in the State of Illinois for Disputes within the jurisdictional limits of such court. The availability of this small claims option shall not operate as a waiver of the arbitration agreement with respect to any other Disputes.
Injunctive and Equitable Relief. Notwithstanding the foregoing agreement to arbitrate, either party may seek temporary, preliminary, or permanent injunctive or other equitable relief (including specific performance) from a court of competent jurisdiction located in the State of Illinois to protect its intellectual property rights, confidential information, or other proprietary interests, without first submitting such claim to arbitration, and without waiving its right to arbitration as to any other Disputes.
Judicial Forum; Jurisdiction and Venue. To the extent that any Dispute is determined not to be subject to arbitration, or where a party seeks injunctive or equitable relief as permitted in this Section, the parties agree that:
such Dispute shall be brought exclusively in the state courts of the State of Illinois located in Lake County or Cook County, Illinois, or, if jurisdiction exists, in the United States District Court for the Northern District of Illinois;
each party irrevocably submits to the personal jurisdiction of such courts and waives any objection based on improper venue or forum non conveniens; and
service of process in any such action may be effected by any method permitted by Law or as otherwise provided for notices under the Contract.
Waiver of Jury Trial. To the fullest extent permitted by applicable Law, each party hereby knowingly, voluntarily, and irrevocably waives any right it may have to a trial by jury in any action, suit, proceeding, or arbitration arising out of or relating to the Contract, the Products, the Website, or the transactions contemplated herein.
Class and Representative Action Waiver. To the fullest extent permitted by applicable Law:
any arbitration or court action shall be conducted solely on an individual basis and not in a class, collective, consolidated, or representative proceeding;
neither party shall seek to have any Dispute heard as a class, collective, representative, or private attorney general action; and
no arbitration or court proceeding shall be combined with another without the prior written consent of all parties to all affected proceedings.
If any portion of this class and representative action waiver is held to be unenforceable, then the arbitration agreement in this Section shall be null and void in its entirety as to the Dispute in question, and the Dispute shall be resolved exclusively in the courts referred to in Section 18.9, subject to the waiver of jury trial in Section 18.10.
19. Confidentiality of Arbitration; Severability
Confidentiality of Proceedings. Unless otherwise required by Law or agreed in writing:
the existence of the arbitration, the arbitration proceedings, and any related hearings, submissions, orders, and awards shall be kept confidential by the parties;
the parties shall not disclose any of the foregoing to any third party, except:
to their respective attorneys, accountants, auditors, insurers, and other advisors who need to know such information and who are bound by confidentiality obligations at least as protective as those set forth herein;
as necessary to enforce or challenge any arbitration award in a court of competent jurisdiction; or
as otherwise required by applicable Law or court order; and
the arbitrator shall have the authority to issue protective orders governing the exchange and protection of confidential information in the arbitration.
Severability. If any provision of the arbitration agreement in Section 18 or this Section 19 is held to be invalid, illegal, or unenforceable, such provision shall be enforced to the maximum extent permissible and shall be deemed modified to the minimum extent necessary to make it enforceable, and the remaining provisions shall remain in full force and effect, except as expressly provided in Section 18.11 regarding class and representative actions.
20. Partial Invalidity; Interpretation; No Waiver
Severability. If any provision of the Contract is held to be invalid, illegal, or unenforceable in any jurisdiction, such provision shall be enforced to the maximum extent permissible and shall be deemed modified to the minimum extent necessary to render it valid and enforceable, and the remaining provisions of the Contract shall remain in full force and effect. Any such invalidity, illegality, or unenforceability shall not affect the validity or enforceability of such provision in any other jurisdiction.
Interpretation. The headings and section titles in the Contract are for convenience of reference only and shall not affect the interpretation of any provision. The words include and including shall be construed without limitation. The Contract shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring either party by virtue of authorship.
No Waiver. No failure or delay by either party in exercising any right, power, or remedy under the Contract shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. Any waiver of any provision of the Contract shall be effective only if in writing and signed by the party against whom the waiver is asserted, and shall be effective only in the specific instance and for the specific purpose for which given.
21. Relationship of the Parties; Third-Party Beneficiaries
Independent Contractors. The relationship between the Company and Customer is that of independent contractors. Nothing in the Contract shall be construed to create any partnership, joint venture, agency, employment, or fiduciary relationship between the parties. Neither party shall have authority to bind the other or incur obligations on the others behalf, except as expressly provided in the Contract.
No Third-Party Beneficiaries. Except as expressly provided in the Contract with respect to the Company Parties (who are intended third-party beneficiaries of the limitations of liability and other protections set forth in the Contract), the Contract is for the sole benefit of the Company and Customer and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any kind.
22. Survival
Surviving Provisions. Without limiting the generality of any survival language elsewhere in the Contract, the following provisions shall survive any expiration, termination, or completion of the Contract or any transaction hereunder: payment obligations (to the extent outstanding), warranty disclaimers, limitation of liability, indemnification, intellectual property rights, confidentiality of arbitration, governing law, arbitration and dispute resolution, jurisdiction and venue, waiver of jury trial, class action waiver, and any other provisions that, by their nature, are intended to survive.
23. Electronic Communications; Contract Formation
Electronic Communications. Customer consents to receive communications from the Company electronically, including by email and by postings on the Website. Customer agrees that all agreements, notices, disclosures, and other communications that the Company provides electronically satisfy any legal requirement that such communications be in writing.
Electronic Signatures and Acceptance. Customer agrees that its electronic acceptance of these Terms, placement of Orders online, clicking to acknowledge or accept terms, and similar actions constitute Customers electronic signature and agreement to be bound by the Contract to the same extent as if executed in a written instrument signed in ink.
Records. The Company may, but is not obligated to, maintain electronic or other records of Orders, communications, and other transactions. The Company’s records shall, absent manifest error, be presumed accurate and may be used as evidence of the Contract, Orders, and related transactions.
24. Acknowledgment; Authority
Acknowledgment by Customer. Customer acknowledges that:
it has carefully read and understands the Contract, including the limitation of liability, arbitration, waiver of jury trial, and class action waiver provisions;
it has had the opportunity to consult with legal counsel of its choice before agreeing to the Contract; and
it is entering into the Contract freely and voluntarily, with full understanding of its terms and legal consequences.
Authority. If Customer is an entity, the individual accepting or agreeing to these Terms on behalf of Customer represents and warrants that he or she has full power and authority to bind Customer to the Contract.
These Terms and Conditions of Online Sale apply to all purchases of Products from NASCO Supply LLC made through the Website or otherwise subject hereto, and are effective as of the date Customer first accepts or is deemed to accept these Terms.