WEBSITE TERMS AND CONDITIONS FOR THE SALE OF GOODS
Formation of Contract
The person who selected the product(s) (“Buyer,” “you,” or “your”) makes a firm offer to Osborne Industries, Inc. or its assigns (“Seller,” “us,” or “we”) to purchase such product(s) (“Goods”) described in an order submitted through the website at www.osbornelivestockequipment.com (the “Order”) using the procedures described in such website and under this Agreement. Except as otherwise specified in this Agreement, Seller accepts Buyer’s offer at the earlier of when (1) Seller sends Buyer a written acceptance (by e-mail, fax, or otherwise), (b) Seller ships Buyer’s Order, or (c) Seller accepts by the signature of its Contract Manager. Seller’s acceptance and this Agreement are conditioned on Seller’s on-going credit review and approval of Buyer and Seller’s on-going determination that Buyer and this agreement comply with all applicable laws and regulations. Seller reserves the right to make partial shipment of one or more Goods contained in the Order, and unless otherwise specified in Seller’s written acceptance, partial shipment of an Order will be acceptance of only that portion of an Order. For Goods not currently in Seller’s inventory, Seller may either (a) place such Goods on backorder and notify Buyer of such status, unless such Goods will be in Seller’s inventory within thirty (30) days, or (b) in Seller’s sole discretion, terminate this Agreement with respect to Goods not in Seller’s inventory by notice to Buyer. Notwithstanding the foregoing, acceptance is strictly limited to the terms and conditions in this Agreement. Seller objects to and rejects any provision additional to or different from the terms of this Agreement that may appear in Buyer’s purchase order, acknowledgement, confirmation, writing, or in any other prior or later communication from Buyer to Seller, or arising out of course of dealing or usage in the trade, unless such provision is expressly agreed to by Seller in a writing signed by Seller’s authorized representative.
Purchase Price and Payment
Buyer agrees to pay in full the Purchase Price of the Goods and all packing, shipping, handling, document fees, taxes, and other costs as stated in the Order. The total amount of the Purchase Price must be payable in full using the payment methods and procedures specified in the Order by Buyer at the time Buyer submits the Order. Except for taxes on Seller’s net income and as detailed in the Order, the Purchase Price of the Equipment does not include and Buyer will be solely responsible for the amount of all federal, state, and local taxes, duties, imposts, tariffs, or other similar levies arising out of or related to the performance of this Agreement. Buyer indemnifies and holds Seller harmless from the payment of any such taxes, plus any penalties, interest, or costs connected with the imposition of the same. If Seller does not receive payment in full using a payment method specified in the Order, Seller may cancel the Order, in whole or in part, without notice, or invoice Buyer for the amount of the Purchase Price not paid. Invoices are due on receipt by Buyer. In addition to any other remedies available to Seller, Buyer will pay to Seller a fee on all past-due charges until paid in full equal to the lesser of one and one-half percent (1.5%) per month or the highest rate allowed by law, together with all costs of collection, including, without limitation, attorneys’ fees.
Online Gift Cards & Promotions
This website may offer online gift cards and promotions. Gift cards or promotional codes cannot be redeemed for cash, except as required by law.
Security Interest
Until the Goods are paid in full in immediately available funds at the time of delivery, Seller retains and Buyer hereby grants to Seller a purchase-money security interest in the Goods, including all accessories, spare parts, special fittings, and tools thereof, and all additions, accessions, increases, improvements, renewals, substitutions, or replacements thereof (collectively, the “Collateral”), together with all proceeds from any sale or other disposition of all or any part of the Collateral to secure the full amount owed, together with all interest, fees, and penalties. Unless Buyer executes a separate security agreement with Seller covering the Collateral, this Agreement will constitute a security agreement for the Collateral. Promptly upon request, Buyer will do any act and execute, acknowledge, deliver, file, register, record, and ratify all documents requested by Seller, in Seller’s discretion, to perfect Seller’s security interest in the Collateral, including but not limited to, any financing statements. Buyer hereby irrevocably appoints Seller its attorney-in-fact to do such acts and to execute and file all such documents on Buyer’s behalf. A breach by Buyer of the terms, representations, or warranties of this Agreement, including but not limited to, failure to timely pay in full the Purchase Price, will constitute an event of default, and all amounts owing to Seller will be immediately due, and Seller will have all rights and remedies in law or in equity, including but not limited to, the Kansas Uniform Commercial Code, and as set forth in this Agreement.
Delivery and Risk of Loss
Unless otherwise agreed in writing, delivery shall be made in accordance with Seller’s shipping policy in effect on the date of shipment. Delivery dates provided by Seller are estimates only. Seller will make reasonable efforts to deliver in accordance with such dates; however, Seller will not be liable for failure to deliver as estimated. Unless otherwise agreed in writing by Seller, Goods shall be packaged according to Seller’s standards and practices. At this time Seller can only fulfill orders placed on the website that ship to the 48 continental states in the U.S.A. For international orders, please call Osborne Customer Service. The Goods are delivered to Buyer F.O.B. Seller’s shipping dock. Seller’s responsibility for shipment ceases upon delivery to carrier, and any claims for shortages, delays for damages occurring thereafter must be made by Buyer direct to the carrier. Any claims against the Seller for shortages in shipments must be made within five (5) days after receipt of shipment. Acceptance of the shipment as delivered is acknowledgment that the Goods were received in GOOD CONDITION AND PROPERLY PACKED.
Returning Merchandise
Buyer may return most new items within 30 days of delivery for a full refund, as defined below:
- To initiate a return, call Osborne Customer Service or request a Return Merchandise Receipt number.
- Buyer can only initiate a return after an order has been marked as shipped.
- The refund will be for the full value of the returned items, unless otherwise noted.
- Shipping and handling fees will not be refunded.
- Credit for the returned items will be applied to the payment method that was used to make the purchase. Returns will be applied to the purchasing payment method within 5 to 10 days of the date that the return is accepted by the Seller.
- A restocking fee of 20% of the retail value of the purchased goods will be applied to some items.
Refunds, Credits and Balances Due
As soon as the Seller receives and processes the return, Buyer will be notified via email or phone. Buyer’s payment method should be credited within 10 business days of the time the email is sent. The return credit should be reflected on your statement within one or two billing periods, depending on Buyer’s financial institution’s billing cycle.
Order Questions or Changes
If you have any questions about your order, or require assistance in ordering from this website, please call Osborne Customer Service.
Limited Warranty
Seller makes to Buyer the limited product warranty for the applicable Goods in accordance with the applicable Warranty Statement available here (each a “Warranty Statement”).
Disclaimer of Warranty/Limitation of Liability
EXCEPT AS PROVIDED IN THE APPLICABLE WARRANTY STATEMENT, THE GOODS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND SELLER MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE GOODS OR BUYER’S USE THEREOF, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, DESCRIPTION, TITLE, OR NONINFRINGMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. SELLER DOES NOT WARRANT THAT THE GOODS WILL YIELD ANY PARTICULAR BUSINESS, FINANCIAL, OR OTHER RESULT. SELLER DOES NOT AUTHORIZE ANY PARTY, INCLUDING, WITHOUT LIMITATION, SELLER’S SALES AGENTS, MANUFACTURERS, OR SUBCONTRACTORS, TO MAKE ANY REPRESENTATION, WARRANTY, PROMISES, GUARANTEES, OR COVENANTS ON SELLER’S BEHALF OR TO MODIFY THIS AGREEMENT, AND BUYER EXPRESSLY DISCLAIMS ANY RELIANCE ON OTHER STATEMENTS (ORAL OR WRITTEN) OTHER THAN THE WARRANTY STATEMENT. BUYER AGREES THAT THE SELECTION AND CHOICE OF THE GOODS AND ITS SPECIFICATIONS IS THE DECISION OF SELLER, AND, TO THE EXTENT ALLOWED BY LAW, COMPLETELY WAIVES AND SURRENDERS THE RIGHT TO PURSUE OR TO INTERPOSE ANY CLAIM OR DEFENSE AGAINST SELLER, IN LAW OR IN EQUITY (INCLUDING, WITHOUT LIMITATION, ANY RIGHT TO RECOUPMENT, SETOFF, OR COUNTERCLAIM), BASED UPON THE SAME.
SELLER (INCLUDING ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUBCONTRACTORS, ALL OF WHICH ARE REFERRED TO HEREIN COLLECTIVELY AS THE “SELLER AFFILIATES”) SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCE TO BUYER OR ANY OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE GOODS OR OTHERWISE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF THE GOODS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE OR REPLACEMENT EQUIPMENT, FACILITIES OR SERVICES, DOWN TIME, BUYER’S TIME, LOST DATA, INJURY TO PROPERTY OR ANY DAMAGES OR SUMS PAID BY BUYER TO THIRD PARTIES, EVEN IF SELLER OR ANY OF THE SELLER AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. IN NO EVENT SHALL SELLER OR ANY SELLER AFFILIATE BE LIABLE TO BUYER OR ANY OTHER PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT IN EXCESS OF THE NET PURCHASE PRICE OF THE GOODS ACTUALLY DELIVERED TO AND PAID FOR BY BUYER HEREUNDER.
No action arising out of or related to this Agreement may be maintained by Buyer unless written notice of any claim alleged to exist is delivered by Buyer to Seller within thirty (30) days after the event complained of first becomes known to Buyer, but in no case may Buyer maintain an action arising out of or related to this Agreement unless the same is brought within one (1) year after the cause of action accrues.
Exclusions
The laws of certain jurisdictions prohibit the limitation of certain warranties and the remedies and damages for the breach of such warranties. If any provision of this Agreement is in conflict with any statute or rule of law of any state or district in which jurisdiction may lie for enforcement, then such provision will be deemed excluded from this Agreement to the extent but only to the extent that it may conflict therewith; and the remaining provisions of this Agreement will not be invalidated, but may be reformed by the court to the extent necessary to protect the rights of the parties.
Force Majeure
Seller shall not be held responsible for any failure of performance in the event such failure was due, in whole or in part, to federal, provincial or municipal action, statute, ordinance or regulation, strike or other labor trouble, fire or other damage to or destruction of, in whole or in part, the Goods or the manufacturing facility for the Goods, the lack of or inability to obtain raw materials, labor, fuel, electrical power, water or supplies, or any other cause, act of God, contingency or circumstances not subject to the reasonable control of Seller, which causes delays or hinders the manufacture or delivery of Goods. Seller shall determine in good faith the extent to which it can reasonably control a cause, contingency, or circumstance that affects the performance of its obligations.
Notices
Any notice required or allowed under this Agreement must be in writing and delivered to Seller at the address specified at the end of this Agreement and to Buyer at the address stated in the Order or the place of delivery of the Goods, or such other address as a party may provide to the other party by like notice.
Errors on Our Site
Prices and availability of products are subject to change without notice. Errors will be corrected where and when discovered. Osborne reserves the right to revoke any stated offer, cancel orders, and to correct any errors, inaccuracies or omissions in any stated offer or price, including after an order has been submitted and whether or not the order has been confirmed and your payment processed.
General
Buyer may not assign this Agreement without Seller’s written consent. Seller is the sole intended beneficiary of this Agreement. If there is any inconsistency between this Agreement and any other agreement referenced in this Agreement or included with or relating to the Goods, this Agreement shall govern. This Agreement may not be modified, altered or amended without the written agreement of Seller, signed by its authorized representative. Any additional or altered terms attached to any order submitted by Buyer shall be null and void. No waiver of any breach or default hereunder will be considered valid unless in writing and signed by the party giving such waiver, and no such waiver will be deemed a waiver of any subsequent breach or default of the same or similar nature. If any term of this Agreement is illegal or unenforceable, the legality and enforceability of the remaining provisions shall not be affected or impaired. This Agreement shall be interpreted under the laws of the State of Kansas, without giving effect to conflicts-of-law rules; and in the event of a dispute under this Agreement, Buyer submits to the exclusive jurisdiction and venue of the courts of the State of Kansas and hereby waives any objection to such jurisdiction and venue.
Osborne Industries, Inc.
Attn: Contract Communications
120 N. Industrial Avenue
PO Box 388
Osborne, KS 67473
USA
Osborne Customer Service
(Monday through Friday, 8 a.m. to 5 p.m.)
1-800-255-0316 or 1-785-346-2192
