terms and conditions of sale
All orders for supplier’s products and services shall be subject to the following terms and conditions of sale (“terms and conditions”) regardless of whether such orders are made by customer’s purchase order forms or by any other document or instrument prepared by customer. Supplier’s sale of any products and services is expressly conditioned upon the customer’s acceptance of the following terms and conditions which may be amended by supplier at supplier’s discretion. All orders are deemed to incorporate the terms and conditions. Any provision, term or condition contained in customer’s standard or pre-printed documents, including, without limitation customer’s purchase order or sales acknowledgement, that are inconsistent with these terms and conditions, shall be void and of no force or effect. Supplier hereby expressly rejects any and all additional or different terms proposed by the customer. No attempted modification by customer of these terms and conditions, or any modification by customer of the attachments or agreements of supplier referenced herein will be recognized by supplier, unless specifically agreed to in writing by an authorized representative of supplier. The failure of a supplier to object to provisions contained in any customer order, on the website of customer or contained in any other communication from the customer shall not result in a modification or supplier’s waiver of these terms and conditions.
Customer – The entity to which Supplier is selling products and/or services.
Supplier – The Prestwick Group, Inc., and its affiliates, subsidiaries and brands, including without limitation Prestwick Golf Group, Prestwick Limited, Max-R and Nex-Terra.
Custom Artwork – Logos, symbols, fonts, trademarks, slogans, brand standards, etc., provided or specified by Customer for use in any item to be purchased from Supplier.
Custom or Customized Product – Any product or service provided by Supplier which includes one or more specification(s) unique to Customer and/or requiring order-specific design or engineering work by Supplier. Examples include specification(s) regarding material type, color, physical dimensions, Custom Artwork, unique production process or handling requirement, etc.
Make-to-Order (MTO) – A practice whereby production of a product begins after Supplier accepts an order from a Customer. Supplier produces virtually all of its products on an MTO basis, including all Customized Product.
Customer Approval – Customer signoff, verbally or in writing, on a proof, rendering, engineering or shop drawing, sales order acknowledgement, purchase order, etc. Customer Approval shall serve as binding confirmation of the Supplier’s plans and specifications for Customer’s order.
Change Request – Customer requests change to one or more order specifications after having provided Customer Approval.
Down Payment – Payment provided by Customer prior to production of an order.
Trade Credit, Open Credit – Any arrangement whereby Supplier grants Customer the ability to accept delivery of goods or services prior to Supplier receiving full payment from them, based on Customer’s promise to pay balance due within a specified time period. Down payment invoices are not considered Open Credit as long as production has not started and/or product has not shipped (depending on the specific down payment arrangement).
Open Balance – Amounts owed by Customer after shipment of product.
Available Credit Limit – Amount available to Customer for placing an order. The Available Credit Limit at any point in time is the credit limit established for a Customer less the Customer’s Open Balance.
2. Standard Payment Terms
Unless other terms have been established, the following payment terms apply:
New Customer – All orders must be paid in full prior to production.
Existing Customer – Orders valued between $3,000 and $20,000, and/or for Custom product, require a down payment of 50% of order amount prior to final production, with balance due 30 days after shipment to approved credit.
All Customers – Orders valued more than $20,000 require a down payment of 33% of order amount upon placement of order and 33% prior to final production, with balance due 30 days after shipment to approved credit.
Any price discounts offered by Supplier are contingent on timely payment of open balances.
Supplier reserves the right to charge late fees of 1.5% a month on late amounts, compounded monthly (annual percentage rate of 19.6%).
Supplier’s standard payment terms on any Open Credit are net 30 days. Any amount not paid within 30 days after shipment (or by alternate due date, when mutually agreed) shall be deemed late. Supplier reserves the right to charge late fees of 1.5% a month on late amounts, compounded monthly (annual percentage rate of 19.6%).
Maximum Open Balance on Trade Credit (i.e., excluding down payment invoices) is $20,000.
Customer must complete Prestwick Trade Credit Application to be eligible for Trade Credit.
Any deviations from the payment terms contained herein must be mutually agreed to in writing as art of Prestwick’s Trade Credit Application process.
3. Taxes and Duties
Supplier’s pricing excludes all taxes and duties. Customer shall be responsible for all taxes, duties, fees, or other charges of any nature (including, but not limited to, consumption, gross receipts, import, property, sales, stamp, turnover, use, or value-added taxes, or any other assessment imposed by any governmental authority on Customer or Supplier) in relation to Customer’s orders accepted by Supplier.
4. Deliveries, Transfer of Title and Risk of Loss
Products shipped within the United States or Canada are shipped FOB from Supplier’s dock in Sussex, Wisconsin. (Products shipped outside the United States and Canada typically are shipped CIF.) When product is shipped other than FOB Sussex, Wisconsin, any and all additional costs and expenses relating to such different shipping term will be billed to the Customer. All methods of packing and shipping any order shall be in the sole discretion of Supplier unless specific written instructions are given to Supplier by the Customer and approved in writing by Supplier. Any and all costs of special boxing, cartage to steamer, transfer expenses, etc., approved by Supplier will be billed to the Customer.
The acceptance of shipment by a common carrier or by any licensed public truckman shall constitute proper delivery. Risk associated with the product shall pass to Customer on delivery to the common carrier or with the passing of title in the product, whichever occurs first. In any case where delivery is delayed due to circumstances caused by or within the responsibility of Customer, risk of loss shall pass to Customer upon Supplier’s notification that product is ready for dispatch. Unless otherwise specified in the sales order, all charges, expenses or taxes associated with the delivery shall be paid by the Customer.
Title shall pass to Customer only upon full payment by Customer for the product and following payment of any other outstanding debt by Customer to Supplier. Customer shall, at Supplier’s request, take any measures necessary under applicable law to protect Supplier’s title in the product, and lawfully notify Customer’s present or potential creditors of Supplier’s title on and interest in the product. Customer acknowledges that so long as title has not been transferred in the product, it holds the product as bailee and fiduciary agent for the Supplier and shall safely and securely store and keep the product in good condition. Notwithstanding the above, Customer may use product for its own use subject to the requirements set forth herein. Customer agrees Supplier shall have access to Customer’s property, until title passes, for the purpose of safeguarding Supplier’s interest in the product.
5. Design and Color Considerations
Supplier reserves the right to ship its most current design to fulfill a Customer requirement.
Customer is hereby notified that Supplier works with materials subject to variations in color. Any differences in color in man-made materials should be subtle. Differences in color or texture of natural materials, such as hardwoods, can be more pronounced. In either case, these variations are a normal occurrence, and shall not constitute a basis for a warranty claim by Customer.
6. Resale of Supplier’s Products
Only distributors expressly authorized by Supplier are allowed to re-sell Supplier’s product.
By placing an order Customer is deemed to warrant and represent that the product is being purchased for Customer’s use and not for resale to third parties. Authorized distributors warrant and represent they are selling Supplier’s products only to end users, and that the Distributor shall exercise diligence to endure distributor’s customers will not re-sell Supplier’s products to any party. Customer acknowledges that unless Customer is an authorized distributor there is no right to re-sell Supplier’s products to any party.
7. Intellectual Property
Customer and Supplier shall each retain ownership of all Confidential Information, Intellectual Property, Trade Marks, Trade Dress, Copyrights, etc., that such party owned prior to Supplier’s acceptance of the sales order. All new Intellectual Property, Trade Marks, Trade Dress, Copyrights, etc., related to Supplier’s products and services, conceived or created by Supplier, whether alone or with any contribution from Customer, shall be owned exclusively by Supplier. Customer agrees to deliver assignment documentation requested by Supplier reflecting Supplier’s rights hereunder.
Customer warrants that it has the right to authorize and assumes the responsibility for authorizing the use of any Custom Artwork or any other Intellectual Property in any product to be produced by Supplier and will indemnify Supplier from and against any claims arising out of Customer’s misrepresentations hereunder.
8. Customer Returns / Credits
Any Customer returns must be authorized by Supplier’s sales representative. No product returns will be accepted after 60 days from invoice date. Notwithstanding anything contained herein to the contrary, Customer acknowledges Custom Product(s) cannot be returned. Any returns accepted by Supplier may in Supplier’s sole discretion result in a credit against purchase of products from Customer – no cash refunds will be given by Supplier.
All credits issued by Supplier to Customer must be used within two years from the date the credit was issued and may only be used for future purchases of products and/or services. Any credit or portion thereof not used within the two-year period will automatically expire.
Returned products may be subject to a restocking fee of up to 30% of list price. Product(s) must be returned in original condition. Customer is responsible for return shipping charges. Supplier recommends insuring any return of products at the product’s retail value to cover any accidental damages which could occur during shipping. Customer acknowledges Supplier shall have no responsibility or liability for any damage or loss of returned products incurred during shipping or storage.
Supplier offers a limited warranty on all of Supplier’s products for one year from date of shipment to be free from defects in workmanship and/or material(s). Supplier makes no warranty with respect to either the merchantability of Supplier’s products, or their suitability for any specific purpose or use (see Limitation of Liability). Any action by Customer to enforce the terms of this warranty must be brought within one (1) year of the date of Supplier’s shipment of the product to Customer.
This warranty is limited as stated, and under no circumstances shall Supplier or its assigns be considered liable for any direct or indirect damages caused by or resulting from the use of and/or handling of any items sold by Supplier.
If products do not meet the above warranty, Customer shall promptly notify Supplier in writing of the specific defect in the product prior to expiration of the warranty period. Supplier shall, at its option, repair or replace defective products. Warranty repair or replacement shall not extend or renew the applicable warranty period.
The warranty and remedies described are conditioned upon Customer’s proper storage, installation, use, operation, and maintenance of products. Any modifications or repairs of products, other than by Supplier, must be authorized by Supplier in writing. Customer’s failure to meet any such conditions renders the warranty null and void. Supplier is not responsible for normal wear and tear.
Customer may cancel its order if Supplier materially defaults in the performance of its obligations hereunder and Supplier fails to cure such default within sixty (60) days after written notice thereof from Customer. Such cancellation shall be Customer’s sole remedy in the event of a default by Supplier.
Absent a material default by Supplier, Customer may cancel an accepted sales order only with Supplier’s consent and only within terms which indemnify Supplier from loss.
Customer shall be deemed in material default if Customer fails to pay any amounts when due hereunder, cancels or attempts to cancel an order prior to delivery or refuses delivery or otherwise fails to perform any of its obligations or fails to pay Supplier any sums due hereunder within the time set forth herein for payment.
In the event of a material default by Customer, Supplier may, upon written notice to Customer, (1) suspend its performance and withhold shipments, in whole or in part, (2) declare all sums owing to Supplier immediately due and payable, (3) recall products in transit, retake same and repossess any products held by Supplier for Customer’s account, without the necessity of any other proceedings, and/or (4) undertake any other remedy available to Supplier at law or in equity. Customer agrees that all products so recalled, taken or repossessed shall be the property of Supplier to be disposed of as Supplier determines in its sole discretion. Exercise of any of the foregoing remedies by Supplier shall not preclude exercise of any of the others. Neither the existence nor exercise of such remedies shall be construed as limiting, in any manner, any of the rights or remedies available to Supplier under the Uniform Commercial Code or other laws.
11. Limitation of Liability
The warranty set forth herein is expressly in lieu of all other warranties, whether expressed or implied, including, without limitation, any and all warranties of merchantability, quality and fitness for use and for purpose, any advice and recommendation and any obligations or liabilities which may be imputed to supplier, any and all of which are hereby expressly disclaimed, denied and excluded. Customer expressly agrees that no warranty that is not specifically stated in these terms and conditions will be claimed or otherwise adhered to by customer and/or by anyone acting on customer’s behalf and/or by anyone deriving the legality of its claim from customer, nor that any such warranty will be valid. Supplier neither assumes nor authorizes any other person to assume for it, any other liability in connection with the sale, use or handling of any and all goods specified or contemplated by these terms and conditions. no warranty is made with respect to any of these goods which have been subject to accident, negligence, alteration, improper care, improper storage, improper maintenance, abuse or misuse.
Supplier shall not, in any event, be liable for incidental, indirect, consequential, punitive or special damages resulting from any use or failure of any products or arising out of, relating to or in connection with the subject matter of the terms and conditions of sale, whether based in warranty, contract, equity, tort or otherwise, including, without limitation, liability for loss of production time, or profits or products of, the customer or any user or for any other expense, damage, or loss occasioned by any product defect. Under no circumstances will the supplier be responsible for any consequential or incidental damages.
12. Dispute Resolution
These Terms and Conditions of Sale shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to conflicts of laws rules. Any legal action will be brought in a state or federal court serving Waukesha County, Wisconsin. Customer consents to the jurisdiction of these courts, and waives any right to object to such venue.
The rights and remedies available to Supplier under these Terms and Conditions of Sale are in addition to, and do not limit or prejudice, any other right or remedy available at law or equity.
13. General Clauses
Customer is hereby notified that Supplier may assign or subcontract all or any portion of its rights or obligations with respect to the sale of products or the performance of services or assign the right to receive payments, without Customer’s consent. Customer may not assign these Terms and Conditions of Sale, or any of its rights or obligations herein, without the prior written consent of Supplier.
If any term or condition of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of these Terms and Conditions.
Supplier shall not be liable or considered in breach of its obligations to the extent that Supplier’s performance is delayed or prevented, directly or indirectly, by any excusable event beyond its reasonable control, including, but not limited to, armed conflict, acts or threats of terrorism, epidemics, strikes or other labor disturbances, or acts or omissions of any governmental authority or of the Customer or Customer’s contractors or suppliers. If an excusable event occurs, the schedule for Supplier’s performance shall be extended by the amount of time lost by reason of the event plus such additional time as may be needed to overcome the effect of the event. If acts or omissions of the Customer or its contractors or suppliers cause the delay, Supplier shall also be entitled to an equitable price adjustment.