Terms and Conditions of Sale
AGREEMENT FOR SALE. These terms and conditions of sale ("Agreement") apply to your purchase of the machines, parts and accessories listed on the order acknowledgment ("Products") provided to you by Vita-Mix Corporation, Inc. ("Vita-Mix"). No course of dealing or custom or usage contrary to this Agreement shall apply. Notwithstanding the foregoing, Vita-Mix may correct any typographical or clerical errors, including, without limitation, errors in price, taxes, specifications, quotations, or acknowledgments. By accepting delivery of the Products, you agree and are bound by the terms and conditions of this Agreement. If you do not wish to be bound by this Agreement, you must notify Vita-Mix immediately and return your purchase in accordance with Vita-Mix Return Policy set forth below. (See the Vitamix Return Policy or call Customer Service at 1-800-848-2649). THIS AGREEMENT SHALL APPLY UNLESS YOU HAVE A SEPARATE AGREEMENT WITH VITA-MIX, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN.
PRICING. All price quotations are subject to change without notice. Prices quoted are in U.S. dollars and do not include freight, handling or delivery charges, air shipment charges, taxes (sales, excise, use, ad valorem, etc.), insurance or any export or import duties. Purchaser shall be responsible for collecting and/or paying any and all such taxes, regardless of whether they are stated in the order acknowledgment for the Products. Such charges may, at Vita-Mix's sole and exclusive discretion, be prepaid by Vita-Mix and added to Purchaser's order acknowledgment.
PAYMENT. All orders for Products must be paid in full in advance of shipment. Vita-Mix may, in its sole discretion, approve different payment terms for Products at any time. Vita-Mix reserves the right to charge a finance charge up to 1.5% per month (18% annually) on the amount of any order acknowledgment which remains unpaid after the order acknowledgment date. Vita-Mix shall also have the right to suspend deliveries or discontinue any of the work to be performed by Vita-Mix until amounts past due are paid in full. Purchaser agrees to pay all attorneys' fees, litigation expenses and costs allowable by law that are incurred by Vita-Mix for the collection of all amounts owed by Purchaser to Vita-Mix. Vita-Mix reserves the right to charge a fee for all returned checks.
SHIPMENT, DELIVERY, INSPECTION. All shipments are F.O.B. Cleveland, Ohio, USA or F.O.B. Reno, Nevada, USA. A drop ship fee may apply to any order on shipments to a different destination than their billing address. All delivery and shipment dates stated are approximations only, not guarantees, and are subject to product availability. The risk of loss or damage to the Products in transit shall fall upon the Purchaser, whose responsibility it shall be to file claims with the carrier and/or the insurance company. Purchaser shall examine all Products promptly upon receipt and shall notify Vita-Mix, in writing, within 7 days of delivery, of any nonconformance. If rejection is intended, Purchaser shall specify all grounds for rejection. Failure to provide Vita-Mix with such notice shall be deemed an unqualified acceptance of the delivered Products by Purchaser. Vita-Mix reserves the right to ship the products in multiple boxes and/or shipments.
CLAIMS AGAINST CARRIER, CONCEALED DAMAGE. The carrier is responsible for the Products while they are in transit to you. If there is a shortage or damage to your shipment, you must notify the carrier upon the arrival of the shipment to assure approval of your claim. It is the duty and responsibility of the delivering carrier to give you a written report of such shortage or damage following receipt of your notification. Both the Purchaser's copy and the carrier's copy of the receipt, freight bill, or delivery memo (as the case may be) must be noted with the detail of the shortage or damage and all the copies must be signed and acknowledged by the carrier's driver or representative. If the damage is concealed, notify the carrier within 48 hours by phone and in writing, asking them to send their agent to complete an inspection report. Retain all cartons and merchandise for their inspection report and claim approval. It is critical that you file a written claim with the carrier within 48 hours of receipt of shipment for any shortage or concealed damage. You must include the following along with your written claim to the carrier: Carrier's Inspection Report, paid freight bill and original or certified copy of the invoice.
DELAY. If delivery is delayed at the request of Purchaser, or for any other reason beyond the control of Vita-Mix, the Products shall nevertheless be deemed to have been delivered to Purchaser as of the date of notice from Vita-Mix to Purchaser that the Products are available for delivery for purposes of determining the final price for the Products and the time payment will be due. Products held by Vita-Mix for Purchaser after the giving of such notice shall be held at the risk and expense of the Purchaser. IN NO EVENT SHALL VITA-MIX BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF A DELAY OR FAILURE TO DELIVER.
RETURNS. To return Products, you must contact our Customer Service Department at 1-800-848-2649 before returning any Product. Products may not be and Vita-Mix is not responsible for Products returned without a Return Authorization (RA) Number from Vita-Mix. All returned Products must be marked with the RA Number. Vita-Mix reserves the right to not accept returns after 45 days of the ship date. Used Products are sold "as is" and may not be returned. Return Products should be shipped back to Vita-Mix freight and delivery prepaid. Any refunds made by Vita-Mix shall be refunded in the manner in which the order was paid.
Warranty Term: Vita-Mix warrants that the Products purchased hereunder shall be free from defects in material and workmanship upon the terms of its standard warranty policies for the Products located at / and in the product literature provided with your Product.
Limitations on Warranty: The warranties set forth above do not cover: (i) defects due to improper installation, maintenance, use or abuse of the Products; (ii) alterations, modifications or repairs to the Products not authorized or made by Vita-Mix; (iii) use of parts not manufactured or supplied by Vita-Mix; and (iv) any operation of the Products in excess of the Product’s rating, specifications or intended use. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VITA-MIX SHALL, UNDER NO CIRCUMSTANCE, BE HELD LIABLE FOR ANY SPECIAL DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
FORCE MAJEURE. Vita-Mix shall not be liable for damages for any delay or nonperformance resulting from (a) delays in receipt of final specifications, information, or instructions from Purchaser, (b) changes in specifications or instructions, or (c) force majeure, including without limitation, acts of God, strikes, riots, labor disturbances, material shortages, nonperformance by subcontractors or suppliers, abnormal manufacturing conditions or costs, delays or failures of carriers or communications, fire, flood, storms, ice, snow, accident, war, explosion, accidents, epidemics, governmental orders or regulations or inability to secure any necessary governmental or other permits, court orders, or any other reason beyond the reasonable control of Vita-Mix.
CONFIDENTIALITY AND INTELLECTUAL PROPERTY. Purchaser acknowledges that it has no right, title or interest in the trademarks, copyrights or other intellectual property rights of Vita-Mix as regards the Products, and Purchaser covenants that it will take no action to register or otherwise interfere with any such rights. Nothing herein shall be construed to grant any rights or license to use any intellectual property in any manner or for any purpose except as may be expressly permitted by a separate license agreement executed by both Vita-Mix and Purchaser prior to or contemporaneous with Purchaser’s purchase order.
LIMITATIONS ON ACTIONS. No claim or action against Vita-Mix for breach of these Terms and Conditions or the transaction contemplated hereunder may be asserted or brought more than one year after the cause of action or claim accrues.
ENTIRE AGREEMENT. The Terms contained herein constitute the entire agreement between Vita-Mix and Purchaser as it relates to the sale of any Products and expressly supersede and replace any prior or contemporaneous agreements, whether written or oral, relating to the governing order acknowledgement, including any terms and conditions on any of Purchaser's documents or purchase orders and any prior offers by trade show representatives and demonstrators. This agreement shall be binding upon the parties and their respective successors and assigns. If any provision of this agreement is held to be invalid or unenforceable, that provision shall be severed from the agreement and the remainder of the agreement shall remain in full force and effect.
GOVERNING LAW. These Terms and Conditions of Sale shall be governed and construed in accordance with the laws of the State of Ohio, without regard to conflicts-of-laws or choice of law principles. The provisions of the uniform Commercial Code as adopted by the State of Ohio, and not the United Nations Convention on Contracts for the International Sale of Goods, shall apply.
ADDITIONAL TERMS – INTERNATIONAL ORDERS:
COUNTRY OF IMPORTATION. Purchaser represents that it is purchasing the Products for the purpose of exporting them from the United States and importing them to the country specified in Purchaser's purchase order. Purchaser represents and warrants to Vita-Mix that the Products will be shipped to that destination in compliance with the laws of such country, and that there will be no re-export or diversion thereof. If requested by Vita-Mix, Purchaser shall provide documentation satisfactory to Vita-Mix verifying delivery at the designated port of entry.
EXPORT AND IMPORT LICENSES; PERMITS AND CARRIER. Purchaser shall be responsible for obtaining and paying for all permits, licenses, or other governmental authorization(s) necessary for the exportation or importation of the Products into the designated country of importation, and Purchaser shall comply with all laws and regulations thereof as regards the import, transportation, handling, sale and/or use of the Products. Purchaser shall select and pay the carrier who shall be considered Purchaser's agent. The carrier's actions shall not be deemed authorized by, or binding upon, Vita-Mix.