USM U. Schaerer Sons Inc. ("USM")
General Terms and Conditions of Sale and Delivery for the USM Online Shop
These general terms and conditions of sale and delivery (“Terms of Sale”) apply to your purchase of USM products and services from USM in the United States at the USM Online Shop located at www.usm.com. If you are purchasing at the USM Online Shop, you must agree to these Terms of Sale and indicate your agreement by clicking on the “I agree” button. If you do not agree with these Terms of Sale, click “I do not agree” and you will not be able to purchase USM products online. By clicking on the “I agree” button, you acknowledge that you have reviewed and consent to be bound by these Terms of Sale.
Together with the description of USM products and services stated in your order, these Terms of Sale constitute the entire agreement between you and USM for your purchase of USM products. No amendment to these Terms of Sale shall be effective unless agreed upon in writing by you and USM.
Your order of a USM product only constitutes an offer to buy from USM in accordance with these Terms of Sale. USM reserves the right to accept or reject any order in its sole discretion. USM does not guarantee that any product or service listed on the website will be available for purchase.
Upon receipt of your order, USM will send you an automated order confirmation that lists the details of your order. Your order is accepted by USM and a contract on the sale and delivery of the product is considered to have been formed only upon USM sending you a written order confirmation. The order confirmation does not have to be signed by USM and may be transmitted by e-mail.
Once you have submitted an order, you may submit a request to make changes to your order, but such changes will not take effect unless USM provides written or electronically transmitted acceptance of your request. All offers of USM in the Online Shop are only available in quantities suitable for an average household per order and per product in the case of several orders.
Prices and Delivery Costs
All prices for orders submitted through the USM Online Shop are based on the prices that are listed on our website at the time of your purchase. USM reserves the right to list different prices for purchases in-store and in the Online Shop.
Unless expressly otherwise indicated in writing, our listed prices do not include any additional costs or expenses associated with your order, including without limitation the cost of transport, delivery, special handling, storage, insurance and assembly.
USM may be obligated to collect state, federal or provincial sales, use, excise or similar taxes or duties from you for the sale of products and/or services to you in addition to the prices quoted. Where USM is not so obligated, you shall report and pay any and all taxes (including any sales, use, excise or similar taxes) fees, duties and other charges imposed currently or in the future with respect to the purchase, shipment, delivery, installation, assembly, storage, or use of any of the products you purchase, and indemnify, defend and hold USM harmless therefrom.
Unless otherwise agreed, all orders shall be paid at the time of purchase and prior to delivery, and all payments and other financial requirements under your order shall be in the currency of the United States and made by credit card.
Delivery; Transfer of Ownership
Delivery will be made to the delivery address within the continental United States indicated on your order. Delivery will not be made to any address located outside the United States.
Delivery dates are only binding if USM has expressly agreed to them in writing. Otherwise, any delivery dates indicated on the website or on any order or other document provided by USM are estimates only. Delays in delivery do not entitle you to refuse to accept the product, to cancel your order or to claim damages. Partial deliveries are permitted and do not entitle you to refuse to accept the product.
You will be contacted by USM or a third party engaged by USM prior to delivery in order to set the delivery time.
If USM or the third party engaged by USM is not able to deliver your order at the time agreed with you to make the delivery because the delivered product(s) do not fit into any entrance, doorway or stairs, because you are not present at the agreed time or you otherwise refuse delivery, you will be required to bear all costs incurred in connection with any subsequent transfer, restocking, storage and delivery of the product(s).
Benefit and Risk
Benefit and all risk of loss or damage to any product you order passes to you when the product is delivered to you.
Product Inspection, Acceptance and Returns
USM products must be checked upon delivery without delay to ensure they are complete and free of defects. You must provide written notice to USM within seven (7) business days of delivery of any incorrect deliveries, missing parts or defects which are ascertainable by reasonable inspection. Otherwise, if a defect only is detectable at a later date, you must provide written notice to USM within seven (7) business days of its detection.
If such notification is not given in a timely manner, you will be deemed to have accepted the USM products and you will be conclusively deemed to have waived all such claims and complaints other than claims covered by the USM product warranty then in effect.
In the event of any defect, you shall retain the broken or damaged product and its original packaging for inspection by USM. You cannot return a product to USM without first receiving a return authorization number from USM. If return of a product is authorized by USM, USM will issue a Return Authorization Number to you with shipping instructions. If such Return Authorization Number is not requested within seven (7) business days after receipt of the USM products, the USM products will be deemed to have been accepted and you will be conclusively deemed to have waived all such claims and complaints other than claims covered by the USM product warranty then in effect. In addition, authorized returns are subject to a restocking charge equal to 25% of the purchase price of the returned USM products, plus shipping and handling charges and costs, if any, of restoring returned USM products that are in damaged condition.
Limited Warranty, Exclusive Remedies and Disclaimer:
A. Limited Warranty.
USM WARRANTS THAT THE MATERIAL AND WORKMANSHIP OF THE PRODUCTS WILL CONFORM TO USM’S PUBLISHED PRODUCT SPECIFICATIONS IN EFFECT ON THE DATE OF DELIVERY TO YOU FOR A PERIOD OF TWO (2) YEARS FROM THE DATE OF DELIVERY. THIS LIMITED WARRANTY DOES NOT COVER:
1. SURFACE CONDITIONS, NORMAL WEAR AND TEAR, NEGLECT, ACCIDENTS, ACTS OF GOD, ACTS OF TERRORISM, DAMAGE IN TRANSIT, ABUSE, IMPROPER MAINTENANCE OR STORAGE, OR ANY ADDITION OF OR COMBINATION WITH YOUR OWN MATERIALS AFTER PRODUCT INSTALLATION;
2. DAMAGES RESULTING FROM THE ASSEMBLY, INSTALLATION, REPAIR, RECONFIGURATION OR ALTERATION OF THE PRODUCT OTHER THAN BY USM OR A USM AUTHORIZED PERSON, OR THE PRODUCT NOT BEING USED IN ACCORDANCE WITH USM INSTRUCTIONS;
3. MINOR DEVIATIONS IN THE CONSTRUCTION, COLOR OR MATERIAL USED OR FROM THE SPECIFICATIONS PUBLISHED ON THE INTERNET OR ELSEWHERE (ESPECIALLY WITH REGARD TO SURFACES);
4. NATURAL VARIATIONS TO COLOR, GRAIN OR TEXTURE OF WOOD, METAL OR PLASTIC OVER WHICH USM HAS NO CONTROL;
5. THE MATCHING OR COMPATIBILITY OF COLOR, GRAIN OR TEXTURE UNLESS EXPRESSLY AGREED TO BY USM IN WRITING.
B. Exclusive Remedies.
IN CASE OF BREACH OF WARRANTY OR ANY OTHER DUTY RELATED TO THE QUALITY OF THE PRODUCTS AND SERVICES DELIVERED BY USM, YOU SHALL PROMPTLY NOTIFY USM AND MAKE SUCH PRODUCT AVAILABLE FOR CORRECTION. USM SHALL, AT ITS OPTION, REPAIR OR REPLACE THE DEFECTIVE PRODUCT. IF USM DETERMINES THAT A DEFECTIVE PRODUCT CANNOT BE REPAIRED OR REPLACED WITHIN A REASONABLE PERIOD OF TIME, YOU WILL RECEIVE A REDUCTION IN THE PRICE OR, IN THE CASE OF SERIOUS DEFECTS, A REFUND OF THE PRICE THAT YOU ACTUALLY PAID TO USM FOR SUCH PRODUCT. THE FOREGOING ARE YOUR EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY OR ANY OTHER DUTY RELATED TO THE QUALITY OF THE PRODUCTS AND SERVICES DELIVERED BY USM.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION OR EXCEPT AS MAY BE OTHERWISE PROHIBITED BY APPLICABLE LAWS, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY USM OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY EXCLUDED AND DISCLAIMED.
Limitation of Liability and No Consequential Damages
USM’S LIABILITY FOR ANY CLAIM OF ANY KIND, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE FOR ANY EXPENSE, INJURY, LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, DELIVERY, INSPECTION, ASSEMBLY, INSTALLATION, MAINTENANCE, REPAIR, APPLICATION OR USE OF ANY PRODUCT FURNISHED TO YOU HEREUNDER SHALL IN NO CASE EXCEED THE PURCHASE PRICE OF THE PRODUCT WHICH GIVES RISE TO THE CLAIM.
UNDER NO CIRCUMSTANCES SHALL USM BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON YOUR CLAIMS, ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF LIABILITY AND CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT COMPLETELY APPLY TO YOU.
USM shall not be liable for any loss or damage as a result of any failure to perform or any delay in delivery or installation due to any cause beyond USM’s control, including but not limited to acts of God, strikes or other labor difficulties, disruption of operations, natural disasters, war, epidemics, governmental acts or orders or transportation.
If (a) a product is subjected to, or a claimed defect thereof arises as a result of, accident, misuse, neglect, alteration, unauthorized relocation, improper repair or maintenance, failure to install, or removal of safety devices provided or required by USM or any other act or omission by you; or (b) a product is installed, maintained or used contrary to USM’s instructions or recommendations; or (c) a change is made to any USM trademarks located on the product, then you agree to indemnify, defend, and hold USM, its affiliates and business partners and each of their respective directors, officers, employees, contractors and agents harmless from and against any and all claims of any kind whether based on contract, tort (including negligence or strict liability), or otherwise, for any losses, expenses (including reasonable attorneys’ fees), damages, and liabilities, whether direct, indirect, special, incidental or consequential, which may arise out of the use or misuse of such product, except those caused solely by defects in materials or workmanship, or by the sole negligence of USM.
Should any provision of these Terms of Sale be or become ineffective, invalid or unenforceable, the validity or enforceability of the other provisions shall not be affected. In such a case, the parties shall agree on a valid and enforceable provision that is as close as possible in its economic equivalent to the ineffective, invalid or unenforceable provision.
You may not assign your rights hereunder without USM’s prior written consent.
Governing law; Jurisdiction
These Terms of Sale shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of laws principles. Any litigation will be brought exclusively in New York County, New York, and you consent to the jurisdiction of the federal and state courts located therein, submit to the jurisdiction thereof and waive the right to change venue. You further consent to the exercise of personal jurisdiction by any such court with respect to any such proceeding.
USM U. Schaerer Sons Inc., 28-30 Greene Street, New York, NY, USA 10013.
Last Update: 05/2013