Terms and Conditions
GENERAL TERMS AND CONDITIONS OF SALE
1. The Parties: These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of replacement parts (“Parts”) by [VIKING RANCE, LLC / dba Middleby Residential] and its affiliates (“Seller”), as well as by third party vendors and/or service providers of Seller, to the person or entity (“Buyer”) purchasing such Parts.
2. Delivery. The shipping date and delivery date for the Parts provided to the Buyer are an estimate only, and subject to availability. Unless otherwise agreed in writing by the parties, Seller shall deliver the Parts to the destination specified by Buyer at the time of purchase (the “Delivery Point”) by common carrier as arranged by Seller. Buyer shall be responsible for the costs of shipping the Parts (the “Shipping Costs”), including any rush shipments requested by Buyer. All Shipping Costs shall be charged by Seller to Buyer at the time of purchase.
Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Parts to the carrier for shipping. Seller shall not be liable for any delays, loss or damage in transit.
3. Returns.
(a) Parts must be in original, saleable condition to be returned, unless there is a manufacturer defect. Buyer must notify Seller within 30 days of ship date, then return the Parts within 30 days of receiving a Returned Materials Authorization (RMA) from Seller. In order to return the Parts, Buyer shall follow the steps below:
1. First, contact Customer Service within 30 days of ship date of Parts by calling our toll-free number at 800.241.9152 or by emailing parts@middlebyresidential.com
2. Second, if the Parts are approved for return, Seller will issue a Returned Materials Authorization (RMA) number. Once the RMA number is received, the Parts must be returned within 30 days. Seller will provide the Buyer with specific instructions on where to ship / return the Parts.
3. Third, include the signed RMA in the return package stating the reason for the return.
(b) By Buyer returning Parts to Seller, Buyer certifies that the Parts were purchased from Seller and there has been no substitution of the Parts from another supplier, distributor or other source of the Parts. The return should be in the original packaging.
(c) Buyer shall pay Seller a restocking charge of 20% on standard items and 30% on special items. Seller will not refund the original shipping charges on the order. Buyer must prepay the return freight charges and Seller will not accept COD shipments.
(d) Seller will notify Buyer upon receipt and inspection of returned Parts and will advise Buyer of refund or credit status. Seller will deduct from any refund or credit any shipping damage or replacement of used parts.
4. Cancellations. Buyer may cancel any order prior to the ship date.
5. Price. Buyer shall purchase the Parts from Seller at the prices (the “Prices”) set forth on Seller’s website at the time of purchase. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes (the “Taxes”). Notwithstanding anything in this Section to the contrary, if the Price changes prior to shipment, Seller will notify Buyer of the Price change and Buyer may either accept the new Price or cancel the order without incurring any cancellation fee or restocking charge.
6. Payment Terms. Payment of the Prices, the Shipping Costs, and any applicable Taxes must be received placement of Buyer’s order. Buyer represents and warrants that (i) the credit card information supplied to Seller is true, correct, and complete, (ii) Buyer is duly authorized to use such credit card for the purchase, (iii) charges incurred by Buyer will be honored by Buyer’s credit card company, and (iv) Buyer will pay charges incurred by you at the posted prices, including all applicable taxes, if any. Buyer shall make all payments hereunder in US dollars.
7. Limited Warranty.
(a) Seller warrants to Buyer that for a period of 90 days from the date of shipment of the Parts, such Parts will be free from material defects in material and workmanship.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 7(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PARTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) Parts manufactured by a third party (“Third Party Part”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Parts. Third Party Parts are not covered by the warranty in Section Error! Reference source not found.. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PART, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(d) THE REMEDIES SET FORTH IN SELLER’S LIMITED WARRANTY SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF SELLER’S LIMITED WARRANTY.
8. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PARTS SOLD HEREUNDER.
(c) The limitation of liability set forth in Section 8(b) above shall not apply to (i) liability resulting from Seller's gross negligence or willful misconduct and (ii) death or bodily injury resulting from a manufacturing or design defect.
9. Compliance with Law. Each party shall comply with all applicable laws, regulations and ordinances. Each party shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Parts under this Agreement or any resale of the Parts by Buyer. Buyer assumes all responsibility for shipments of Parts requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Parts.
10. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11. Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
12. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
13. Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Illinois.
14. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Illinois in each case located in the County of Cook, Illinois, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
15. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
16. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto 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 nature whatsoever under or by reason of these Terms.
17. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses provided at the time of purchase or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
18. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
19. Entire Agreement. These Terms (this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.
20. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
21. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Governing Law, Submission to Jurisdiction and Survival.