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Nalpac Terms of Sale

Nalpac Terms of Sale 

ACCEPTANCES: The acceptance by Nalcor, LLC (“Nalcor”) doing business as Nalpac and Entrenue or Entrenue, LLC of any order is subject to customer’s assent to all of the terms and conditions set forth herein.  Customer’s assent to these terms and conditions shall be presumed from customer’s placement of an order with Nalcor or from customer’s acceptance of all or any part of the products ordered.  No additions, amendments or modifications of Nalcor’s terms and conditions by customer shall be binding upon Nalcor, unless agreed to in writing by an authorized representative of Nalcor.  If a purchase order or other correspondence submitted by customer contains terms or conditions contrary or in addition to the terms and conditions contained herein or in Nalcor’s acknowledgment, such terms and conditions shall be ineffective.  Nalcor’s fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by customer and will not constitute a waiver by Nalcor of any of the terms and conditions contained herein or in Nalcor’s acknowledgment. 

LEGAL RECEIPT AND AGE OF CONSENT.  By purchasing products from Nalcor, customer declares that he or she is 18 years of age or above, has the legal right to possess adult products in his or her area or community, will not make any of the products available to minors in any form, and will be fully liable for any legal ramifications that may arise from receiving using or selling these products. 

PAYMENT AND CREDIT TERMS: Prepayment for orders shall be required unless a credit agreement is entered into between Nalcor and customer prior to order.  If credit is extended, payment shall be net 30 days from date of invoice unless otherwise stated on invoice or in such credit agreement.  All credit extended by Nalcor to customer, and the limits of such credit (including, without limitation, limits on the aggregate open balance and open invoice days), is at Nalcor’s sole discretion and may be reduced, changed or revoked by Nalcor at any time, for any reason.  Nalcor shall charge a late payment fee at the rate of two percent (2.0%) of the amount due for each month or portion thereof that the amount due remains unpaid, or the maximum amount as may be permitted under applicable law, whichever is greater.  Nalcor shall not be obligated offer credit, to release orders under any circumstances whatsoever  In making payments to Nalcor under these terms and conditions or any purchase order, no offsets or deductions shall be made by customer. 

FREIGHT:  Unless otherwise agreed in writing, delivery shall be Ex Works (EXW) Nalcor’s designated facility, as defined by INCOTERMS 2010.  Customer shall be solely responsible for all transportation and shipping costs, insurance and risk of loss.  If Nalcor, at the request of customer, undertakes to send any products to their destination, risk of loss shall nonetheless pass not later than when the products are handed over to the first carrier. 

MINIMUM ORDER: Unless otherwise agreed in writing by Nalcor, all orders placed by customer must be for at least $200.00 worth of products (“Minimum Order”).  Nalcor may refuse to ship any order that does not meet the Minimum Order or may ship the non-complying order on such other terms as Nalcor and customer agree to in writing at such time.  Any shipment of an order that does not meet the Minimum Order shall be a one-time accommodation and not a modification of these terms and conditions or an ongoing waiver of any provision of these terms and conditions. 

CANCELLATION.  In the event of cancellation or other withdrawal of an order for any reason, and without limiting any other remedy which Nalcor may have as a result of such cancellation or other withdrawal, Nalcor shall have the right to charge reasonable cancellation or restocking charges as determined by Nalcor in its sole discretion. 

DELIVERY.  Nalcor shall use commercially reasonable efforts to deliver product in accordance with any reasonably requested delivery schedule.  Where strict compliance with such requested delivery schedule is not possible, Nalcor will make delivery as soon as reasonably possible.  Nalcor shall not be liable for any loss or damage resulting from any delay in delivery or for failure to give notice of any delay unless expressly agreed to in writing by Nalcor. 

RISK OF LOSS; EXAMINATION; RETURN OF GOODS:  Title to products and risk of loss thereof shall pass to customer upon delivery as specified herein.  Customer should examine each shipment promptly following delivery.  Defectiveness or incompleteness of the products must be communicated to Nalcor in writing within 7 days after the products have been delivered.  ALL CLAIMS FOR SHORTAGES, DEFECTS OR OTHER NON-CONFORMITIES WHICH ARE NOT MADE TO NALCOR IN WRITING WITHIN 7 DAYS AFTER DELIVERY OF PRODUCTS ARE WAIVED.  Customer’s sole and exclusive remedy, and Nalcor sole obligation, for failure to deliver conforming products shall be, at Nalcor’s option, (a) the correction of the non-conforming condition or replacement of any nonconforming products, or (b) the issuance of a credit to customer in the amount of the purchase price paid and received for such products.  No product will be approved for return after one year from receipt of shipment.  All returns of Nalcor product must be authorized in writing by an authorized Nalcor representative.  All products returned on an unauthorized basis may be refused automatically and no responsibility will be assumed by Nalcor.  Products authorized for return must be sent freight prepaid and may be subject to a restocking fee of up to 15% of the price paid for the returned products.  As a condition for refund or credit, the returned products must be in brand new, mint, blemish free condition.  All claims for losses or damages which occur in transit should be made by customer to the freight carrier and not deducted from the amounts owed to Nalcor. 

LIABILITY: Customer assumes all risk and liability for loss, damage, or injury to persons or property of customer or others arising out of the resale or use, either singly or in combination with other substances, or storage, transportation, or possession of any products sold hereunder.  In all events, the maximum liability of Nalcor, if at all, from any cause shall be to refund if paid, or otherwise to credit to customer, the purchase price of that part of the products which are inferior in quality, defective, unshipped, or subject to such other cause as may be the basis of the claim.  Notwithstanding anything to the contrary herein, in no event shall Nalcor be liable for any indirect, special, incidental, consequential, exemplary or punitive damages, whether foreseeable or not, that are in any way related to the products or these terms and conditions, any breach hereof, loss of goodwill or profits, lost business however characterized and/or from any other cause whatsoever.  Without limiting the generality of the foregoing, the limitations on liability under this paragraph shall apply to any indemnification obligations owed by Nalcor to customer at any time. 

WARRANTIES:  All products sold by Nalcor are sold as “novelty goods”.  Nalcor makes no warranties in regard to any products sold hereunder, except that such products shall conform to Nalcor’s specifications either as in effect at the time of delivery or as incorporated herein.  EXCEPT AS SET FORTH HEREIN AND WHERE APPLICABLE, NO WARRANTY OR AFFIRMATION OF FACT OR DESCRIPTION, EXPRESS OR IMPLIED, IS MADE OR AUTHORIZED BY NALCOR.  NALCOR DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.  NALCOR ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION.  Under no circumstances shall customer provide any person or entity any warranty regarding the products which exceeds the warranty provided by Nalcor hereunder. 

TAXES: In the absence of proper exemption certificates forwarded to Nalcor by customer, Nalcor shall collect from customer all applicable sales or use taxes or other proper taxes or governmental charges, now imposed by federal, state or local authorities upon the production, sale and/or shipment of the products sold hereunder or hereinafter becoming effective prior to delivery of such products. 

FORCE MAJEURE: The consequences, direct or indirect, of labor troubles, fires, accidents, floods, war, shortage of transportation, failure, suspension or curtailment of production due to shortage of supply of raw materials, or other economic factors, government acts or requirements and any and all like or different causes beyond the control of Nalcor shall excuse performance by Nalcor to the extent by which performance is prevented thereby. 

INTELLECTUAL PROPERTY INFRINGEMENT: Nalcor reserves the right to discontinue deliveries of any material, the manufacture, sale, or use which in its opinion would involve an undue risk of a claim of infringement of the intellectual property rights of any party. 

INTELLECTUAL PROPERTY: Customer shall have no right, title, or interest in the trade names, trademarks, trade dress, trade secrets, copyrights, patents, domain names, product names, catalogs, designs, specifications, know-how, concepts, inventions or any other intellectual property rights reserved by Nalcor.  Customer shall have no right to copy or use any of the intellectual property of Nalcor without Nalcor’s written consent.  Customer shall not remove or obscure from any products (a) any logo, label or marking on such products which may allow the products to be identified as Nalcor products, or (b) any disclaimer, warranty or similar label or sticker included on the products. 

CHOICE OF LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan in all respects, without regard to its conflicts of laws principles. 

ASSIGNABILITY: These terms and conditions and all contracts or orders governed by these terms and conditions shall be binding upon, and inure to the benefit of, customer and Nalcor and their respective representatives, successors and assigns.  Notwithstanding the foregoing, customer shall not assign its rights and obligations under these terms and conditions, or any contract or order governed by these terms and conditions, without Nalcor’s prior written consent.  No permitted assignment or transfer shall relieve customer from any of its obligations hereunder.  Any change in the beneficial ownership or voting control of customer that is in excess of fifty percent (50%) shall be deemed an assignment for purposes hereof. 

INDEPENDENT CONTRACTORS: Nalcor and customer are independent contractors and not principal and agent.  Nothing contained in these terms and conditions shall be construed to create a partnership, dealership, reseller, agency, employment or joint venture relationship.  Customer does not have the right to bind or otherwise obligate Nalcor in any manner, nor may customer represent to anyone that it has the right to do so. 

ARBITRATION:  Subject to the exclusion for collection of payment, discussed hereien, any dispute, claim or controversy between Nalcor and customer arising out of, relating to or concerning the products, these terms and conditions or the breach thereof, including any statutory claims (including, without limitation, the arbitrability of any claim or controversy), shall be settled by final, confidential and binding arbitration conducted by the an Arbitrator sanctioned by the American Arbitration Association (“AAA”) before a single arbitrator in Oakland County, Michigan, in accordance with the AAA rules and procedures in effect at the time of such claim, which shall specifically include the right to discovery and the rules of evidence set forth in the Michigan Rules of Evidence.  The arbitrator shall issue a written finding of fact and conclusions of law, which may be enforced in any court of competent jurisdiction.  The arbitrator shall have the authority to grant all monetary or equitable relief, including, without limitation, costs to the prevailing party where authorized by law. 

PROVISIONAL RELIEF:  Notwithstanding the above, at its sole discretion, for any claim for non-payment or collections, Nalcor may enforce its rights to recovery and or collect for non-payment of invoices in any court of competent jurisdiction without regard to the Arbitration provision. Adherence to these paragraphs regarding arbitration shall not limit the rights of the parties hereto to obtain any provisional remedy including, without limitation, injunctive or similar relief, from a court of competent jurisdiction as may be necessary to protect their respective rights and interests pending arbitration, particularly if necessary to avoid irreparable harm.  Any party also shall have the right to bring an action in a court of competent jurisdiction to compel arbitration hereunder or to otherwise enforce such arbitration provisions. 

AUTHORITY AND GUARANTEE: Any indivual who submitts a purchase order or purchases product represents he/she/they have the authority to do so on behalf of the entity represented or who receives the product(s). Any individual also represents the entity has the legal status and ability to pay all debts and guarantees payment as an obligor of the purchaser. 

ATTORNEYS’ FEES.  Customer shall reimburse Nalcor for all of its costs (including, without limitation, all of its attorneys’ fees and/or collection agency fees) incurred to collect any amounts owing by customer hereunder, regardless of whether a lawsuit is initiated.  In the event any party initiates any legal action regarding these terms and conditions, the prevailing party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs. 

SEVERABILITY.  If any provision of these terms and conditions is held to be unenforceable or invalid, the remaining provisions shall remain in full force and effect. 

WAIVER:  The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by the other party.  All waivers must be in writing signed by the party giving the waiver. 


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