Wallquest, Inc., (“Wallquest”) makes all sales of products and services ("Products") to Customer ("Customer") subject to the following Terms and Conditions, ("Terms and Conditions"):
1. ACCEPTANCE / PRICING
Wallquest's acceptance of all orders, however made, is expressly conditioned upon Customers consent, either expressed or implied, to these Terms and Conditions. Wallquest's sales of Products to Customer are made on an all-sales final basis and are purchased at Customer's own risk. Wallquest will not accept and expressly objects to and rejects, any other terms and conditions (whether written or oral) originating from Customer that purport to modify, add to, or otherwise vary the terms and conditions stated here in. Customer's will have deemed to accept these Terms and Conditions by any of the following: a) placing an order for Products via approved method which includes telephone, online, written acknowledgment or other act or expression of acceptance, b) Customers offer to purchase Products from Wallquest, c) Customers acceptance of shipment from Wallquest and d) Customers payment for any Products. Customer expressly agrees Wallquest will not be bound by any terms and conditions set forth by Customer unless previously agreed to by Wallquest management in writing. Wallquest may require Customer to notate on the face of each submitted purchase order that the terms of this agreement control; provided however, if Customer fails to include any such notation, Wallquest and Customer agree that the Terms and Conditions of this agreement shall still control.
Pricing for all Products are displayed online and applicable discounts are shown after logging into Customer's account or set by agreed upon pricing arrangements and do not include applicable, duties, taxes, freight, shipping costs and other charges or fees. Such fees may be for special packaging, requested labeling, permits, certificates, customs documents and other special requests. Wallquest may charge a handling fee for orders where additional packaging or services are required. The minimum charge for additional handling fee(s) is $5.00 US Dollars. Quotations generated online or by Wallquest sale(s) personnel are valid for 30 days unless otherwise specified in writing. Quotations may include shipping estimates and actual shipping charges may vary. In such cases actual shipping charges may be billed. Wallquest is not responsible for discrepancies / typographical errors made by Wallquest, online, or those listed on product specification sheets created by the manufacturers represented. Pricing is subject to change at any time without notice.
2. INVENTORY / BACK ORDERS / SPECIAL ORDERS / ADVANCE ORDERS
Wallquest does its best to maintain stock levels on most items offered. If an item is out of stock or on backorder Wallquest will notify Customer and do its best to provide of an estimated ship date based on the delivery schedule provided by the manufacturer. Wallquest will do its best to inform of manufacture delays that it is made aware of, but will not be held liable for late delivery, missed shipments, installation delays or dates or other related deadlines out of its control. Wallquest will fulfill orders and backorders as soon as possible. Customers desiring to purchase Products not normally stocked, or Products not listed on the website may be special ordered. Special orders are non-cancelable and non-refundable and may require pre-payment in full. Wallquest accepts (and in some cases requires) prepaid advance orders to guarantee future stock for specific items.
3. SHIPMENT / TITLE / RISK OF LOSS / TAXES / SHORTAGES
Unless otherwise agreed in writing, delivery will be made in accordance with Wallquest's shipping policy that is in place on the date of order. Title to the Products shall pass to Customer upon delivery of the Products to a) common carrier or b) Customer's representative at Wallquest's dock. Wallquest's delivery of the Products shall be Ex Works (Incoterms 2010) Wallquest's shipping point unless otherwise indicated in writing, with all risk of loss, damage, theft or destruction passing to Customer at such point, subject to Wallquest's rights under applicable law. No such loss, damage, theft or destruction to the Products, in whole or in part, shall impair the obligations of Customer under this agreement, all of which shall continue in full force and effect. Wallquest shall not be liable for any shipping delays. Customer shall bear all applicable federal, state, municipal or other governmental tax, as well as any applicable import or customs duties, license fees and similar charges, however designated or levied on the sale of Products (or delivery thereof) or measured by the purchase price paid for the Products. Customer must notify Wallquest, by contacting Wallquest within three (3) business days after delivery of any claimed shortages or rejections. Failure to give such notice of a claim will be deemed an acceptance in full of any such delivery. Approval of any short shipment claim is in Wallquest's sole power and discretion. In the event that Wallquest grants a short shipment claim, Wallquest will provide the missing items or issue a credit memo at its sole discretion.
4. SECURITY INTEREST
Customer grants Wallquest security interest in all Products sold under these Terms and Conditions and to all Products now or hereafter purchased and or acquired by Customer from Wallquest, and to any proceeds thereof, until the purchase price and any other amounts due to Wallquest have been paid in their entirety. Customer hereby authorizes Wallquest to prepare and file any financing statement listing the Products as collateral and to file such financing statement in such filing offices as Wallquest deems appropriate. Customer further agrees promptly to execute any other documents requested by Wallquest in order to protect Wallquest's security interest in said Products. Upon any default by Customer of any of its obligations to Wallquest, Wallquest shall have all the rights and remedies of a secured party under the Uniform Commercial Code, which rights and remedies shall be cumulative and not exclusive.
Wallquest accepts payment via wire transfer, PayPal, draft, or major credit card (Visa, MasterCard, Discover and American Express). International orders require payment in advance via wire transfer including a $35.00 US Dollar fee unless otherwise noted. If the order is under $5 000.00 US Dollars a major credit card may be accepted. A copy of the purchasing individual's government issued picture identification along with a copy of the front and back of the credit card being used are required. If Wallquest is unable to verify the authenticity of the Customer and credit card the order will be denied. All products are sold in US Dollars.
For terms customers: Payment is due from date of invoice, not receipt of goods according to the payment terms allowed. All payments will be made in US Dollars. Customers will pay a late fee of (1.5%) per month of any outstanding balance owed, or the maximum amount permitted under applicable law. All drafts dishonored for any reason shall be assessed a $35.00 US Dollar service charge. In the event Customer stops payment on any drafts issued to Wallquest, for any reason, Customer hereby recognizes that Wallquest would suffer damage, the exact amount of which cannot be determined with certainty, and Customer shall pay Wallquest liquidated damages in the amount of $500.00 US Dollars for each such draft in addition to the outstanding balance. Customer may not use anticipated credit memos before Wallquest issues the credit on Customer's account. Payment using an anticipated credit memo for purchases before Wallquest issues the credit on Customer's account will be considered a short payment and may result in delayed shipments. It is not Wallquest's policy to issue refunds. Credit Memos must be used on current outstanding balances or future purchases.
Wallquest reserves the right to withhold shipment of any part of an order or to require pre-payment of any given shipment if Customer does not make timely payment(s). If an account goes past due more than 3 times in a given year Net Terms may be forfeited and pre-payment required. Customer will pay and is responsible for all applicable taxes, duties, licenses, excises, and tariffs (taxes) levied upon the sale, purchase or delivery of the Products. Wallquest may require a valid major credit card to be kept on file, reserving the right to charge the credit card on file including applicable finance charges of up to 3% if payment is not received by the date due.
Product returns or exchanges may be approved on a case by case basis at Wallquest's sole discretion and are limited to the terms set forth in Wallquest's return merchandise authorization ("RMA") policies and procedures, which are located on Wallquest's website. These policies and procedures may be modified in any manner by Wallquest at any time without notice. All returns must be accompanied by a RMA from Wallquest. All returns are subject to in-house credit only.
Wallquest makes no warranties whatsoever on any products it does not manufacture and passes through any manufacturer warranties issued for the products it represents. Warranty returns are subject to the individual manufacturer's warranty return policy. Warranties vary by manufacturer. Customer agrees to consult the manufacturer of the product purchased regarding their warranty policy prior to contacting Wallquest. If the Product purchased is determined to be within the manufacturers' warranty policy Wallquest may assist in obtaining warranty service. If Customer has trouble obtaining warranty service from the manufacture contact Wallquest for individual manufacture warranty procedures.
IN NO EVENT SHALL WALLQUEST BE LIABLE FOR ANY CONSEQUENTAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES OR DAMAGES OF ANY KIND OR NATURE ALLEDGED TO HAVE RESULTED FROM ANY BREACH OF WARRANTY. WALLQUEST DOES NOT WARRANT THE MERCHANTABILITY OF THE PRODUCTS OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE. WALLQUEST SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY, AND HOLD HARMLESS CUSTOMER FROM AND AGAINST ANY OR ALL DAMAGES OR COSTS INCURRED BY CUSTOMER ARISING FROM THE INFRINGEMENT OR VIOLATION OF ANY PATENTS, TRADEMARKS, COPYRIGHTS OR OTHER PROPRIETARY RIGHTS BY ANY PRODUCTS. WALLQUEST MAKES NO WARRANTY, EXPRESS OR IMPLIED. NOTWITHSTANDING ANY OTHER TERMS OR CONDITIONS TO THE CONTRARY, WALLQUEST'S LIABILITY UNDER THIS SECTION SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCT GIVING RISE TO THE ALLEGED LIABILITY.
8. EVENTS OF DEFAULT
Customer shall be in default under this agreement upon the happening of any of the following events or conditions: a) default by Customer on payment of any installment, invoice, bill or any other indebtedness or obligation now or hereafter owed by Customer to Wallquest, b) default in the performance of any obligation, covenant or liability contained in this agreement or any other agreement or document between Customer to Wallquest, c) any inaccuracy with respect to any warranty, representation or statement made or furnished by Customer, d) dissolution, termination of existence, insolvency, business failure, or discontinuance of Customer's business or the appointment of a receiver for any part of the property of, or assignment for the benefit of creditors by, Customer or the commencement of any proceedings under any bankruptcy reorganization or arrangement laws by or against Customer or the attachment, levy, seizure or garnishment of any of Customer's property, rights, assets (contingent or otherwise) including the Products, or e) any change in control of the ownership or management of Customer, unless prior to the occurrence of such change of control Wallquest shall have been notified in writing and Customer shall have obtained Wallquest's prior written approval to such change in control.
9. REMEDIES OF WALLQUEST
10. TIME OF THE ESSENSE
Time is of the essence with respect to each of the provisions of this agreement.
Customer agrees to indemnify and hold Wallquest and its officers, directors, servants, employees, agents and advisors harmless from and against any and all claims, damages, costs, expenses (including, but not limited to, reasonable attorneys' fees and costs) or liabilities that may result, in whole or in part, from any third party using the Products provided under this agreement. Any defense provided hereunder shall be by counsel of Wallquest's choice.
12. LIMITATION OF LIABILITY
In the event that any of the Products malfunction and such malfunction leads to damage or injuries to the Products, to Customers business, the end-user's business, to other equipment, or residence, or to employees or to other persons, Wallquest shall not be liable for such damages or injuries. Customer understands and agrees that if Wallquest shall be found liable for loss or damage caused by failure of Wallquest to perform any of Wallquest's obligations hereunder or the failure of the Products in any respect whatsoever, Wallquest's liability shall be limited to the price paid for such Products, and this liability shall be exclusive. Customer understands and agrees that the provisions or this section shall apply if loss or damage, irrespective of cause or origin, results directly or indirectly to persons or property, from performance or non-performance of any of Wallquest's obligations or from negligence, active or otherwise, of Wallquest, or its agents, servants, assignees or employees.
IN NO EVENT SHALL WALLQUEST BE LIABLE FOR ANY LOSS OF REVENUE, PROFIT, USE OF DATA, INTERRUPTION OF BUSINESS OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, OR IN ANY WAY CONNECTED TO THIS AGREEMENT, EVEN IF WALLQUEST HAS BEEN ADVISED OF SUCH DAMAGES.
THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRICIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, OR OTHERWISE. IN NO EVENT WILL WALLQUEST'S LIABILITY TO CUSTOMER EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT THAT IS THE BASIS OF THE CLAIM.
This agreement and all rights, obligations and performance hereunder may not be assigned by Customer without prior written consent of Wallquest.
14. WAIVER No delay or omission by Wallquest to exercise any right or power shall impair any such right or power or be construed to be a waiver thereof. A waiver by Wallquest of any term, condition or agreements to be performed by Customer or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other term, condition or agreement herein contained. No change, waiver, or discharge hereof shall be valid unless presented in writing to Wallquest and signed by an authorized representative of Wallquest.
If any section, term, condition or portion of this agreement shall be found to be illegal or void as being against public policy, it shall be stricken, and the remainder of this document shall stand as the original.
16. GOVERNING LAW / VENUE / JURISDITION
This agreement shall be construed and enforced in accordance with the laws of the state of Pennsylvania without regard to the conflicts of law provisions thereof. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALES OF GOODS, IF OTHERWISE APPLICABLE. All claims, actions, disputes, controversies or suits shall be litigated exclusively in the courts of competent jurisdiction in Chester County, Pennsylvania, United States. Each party specifically consents to service of process by and the jurisdiction of and venue in those courts and Customer, if not a resident of the United States, hereby appoints the Secretary of State of Pennsylvania as its agent for service of process in the United States.
17. ENTIRE AGREEMENT / MODIFICATION
The parties intend this agreement to be the complete statement of the terms of their agreement. This agreement replaces and supersedes any prior agreements between them with respect to the subject matter hereof. No course of prior dealing or usage of trade shall be relevant to amend or interpret this agreement. This agreement may not be changed, modified or amended except by an instrument in writing signed by both Wallquest and Customer.
18. COMPLIANCE WITH LAWS
Customer agrees to comply with the laws, regulations and requirements of the United States. This includes, without limitation, the applicable export control and economic sanctions laws, regulations and requirements administered by the Commerce Department's Bureau of Industry and Security and the Treasury Department's Office of Foreign Assets Control as they may govern the export and re-export of items purchased under these Terms and Conditions. Customer acknowledges that all Products purchased may be controlled for export by the U.S. Department of Commerce and that the Products may require authorization prior to export from the United States. Customer further agrees that it will not make any payment, directly or indirectly, that would cause a violation of the anti-bribery laws of any country or jurisdiction, including without limitation the U.S. Foreign Corrupt Practices Act which, inter alia, prohibits certain payments to foreign government officials for the purpose of obtaining or retaining business. The Federal Equal Credit Opportunity Act (ECOA) prohibits creditors from discriminating against credit applications on the basis of race, color, religion, national origin, sex, marital status, age (provided the applicant has the capacity to enter into a binding contract); because all or part of the applicant's income derives from any public assistance program; or because the applicant has in good faith, exercised any right under the Consumer Credit Protection Act. The federal agency that administers compliance with law concerning the creditor is the Federal Trade Commission, Division of Credit Practices, 600 Pennsylvania Avenue, NW, Washington, SC 20580.
19. NO AGENT
It is understood that Customer is not an agent of Wallquest and shall not refer to Wallquest's corporate name in any of its products, services or literature without the express written consent of the Wallquest.
All notices and other communications relating to this Agreement, or its terms must be either: (1) in writing and sent via first class United States Postal Service certified or registered mail with return receipt requested; or (2) via other similar overnight courier to Wallquest, Inc., 465 Devon Park Drive, Wayne, PA 19087. All notices sent by Wallquest hereunder will be deemed received two (2) days after postmark or shipping date, or on the day of actual receipt if earlier. In addition, Wallquest may provide notices hereunder to Customer via facsimile to the facsimile number(s) Customer provided to Wallquest via Customer's completion of Wallquest's credit application, with such facsimile notices being deemed received upon Wallquest's receipt of its facsimile machine's confirmation of successful transmission. If the day on which such facsimile is received by Customer is not a business day or is after five (5) p.m. on a business day, then such facsimile shall be deemed to have been received on the next following business day.