This order shall not be binding on Newberry Tanks & Equipment, LLC (“Newberry”) until the issuance and acknowledgement of a written purchase order or acceptance of a Schedule A Quotation or Sales Order in writing and transmitted to Newberry’s plant located at 205 North Walker Street, West Memphis, Arkansas 72301.
Unless otherwise specifically stated herein, delivery of tank(s) to common carrier or licensed trucker selected, arranged or employed by Purchaser shall constitute delivery to Purchaser, and risk of loss or damage in transit (including vacuum or pressure loss) shall be borne by Purchaser. In all other cases, Newberry will accept the risk of loss or damage in transit until delivery to Purchaser.
Purchaser shall make payments in accordance with the terms contained on a Schedule A which are incorporated by reference herein. Any cash discount which may be expressly provided for applies only to the sale price of the goods at the shipping point, and does not apply to any charges made for transportation.
Newberry, in its sole discretion, reserves the right to revoke, or modify, any credit extended to Purchaser.
Purchaser authorizes Newberry to file a mechanics lien, or alternatively, a copy of this Agreement to perfect Newberry’s security interest, if applicable. At Newberry’s request, Purchaser additionally agrees to sign all other documents that are necessary to perfect, protect, and continue Newberry’s security interest in the tank(s). Purchaser will pay all filing fees, title transfer fees, and other fees and costs involved unless prohibited by law or unless Newberry is required by law to pay such fees and costs. Purchaser irrevocably appoints Newberry to execute documents necessary to transfer title if there is a default. Newberry may file a copy of this Agreement as a financing statement. If Purchaser changes Purchaser’s name or address, or the name or address of any person granting a security interest under this Agreement changes, Purchaser will promptly notify Newberry of such change.
Newberry shall use commercially reasonable best efforts to meet the anticipated delivery date. However, Newberry shall not be liable for failure to deliver or delays in delivery occasioned by causes beyond Newberry’s control, including without limitation strikes, lockouts, fires, embargoes, war or other outbreak of hostilities, acts of God, inability to obtain shipping space, machinery breakdowns, delays of carriers or suppliers, and domestic or foreign governmental acts or regulations. If a material delay in accepting delivery is caused by Purchaser, Newberry shall nevertheless send an invoice as of the scheduled delivery date, the payment of which shall be made in accordance with the terms contained on Schedule A.
All taxes and excise of any nature whatsoever, now or hereafter, levied by governmental authority, whether federal, state or local, either directly or indirectly upon the sales of any material covered hereby or upon the subject matter hereof or upon transportation charges, shall be paid and borne by Purchaser, unless prohibited by law. The foregoing shall not apply to any taxes the payment or collection of which by Newberry is excused by reason of delivery to Newberry of valid tax exemption certificates.
NEWBERRY TANKS ARE GUARANTEED TO BE FREE FROM DEFECTIVE WORKMANSHIP AND MATERAL FOR A PERIOD OF ONE (1) YEAR. NEWBERRY WILL NOT BE LIABLE FOR ANY DAMAGES OR CONTINGENT EXPENSES RESULTING FROM SUCH DEFECTS. NEWBERRY TANKS ARE NOT GUARANTEED AGAINST CORROSION. TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT SHALL NEWBERRY BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO PURCHASER’S USE OR INABILITY TO USE THE TANK(S), HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF NEWBERRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL NEWBERRY’S LIABILITY FOR ALL DAMAGES EXCEED THE ORIGINAL PURCHASE PRICE OF THE TANK(S).
TANK(S) IN THIS AGREEMENT ARE DESIGNED FOR ATMOSPHERIC PRESSURE. PROPER VENTING REQUIRED. NOT DESIGNED FOR OVER THE ROAD USE.
Newberry maintains the following policies for returns and allowances:
All claims for damaged material must be reported in writing within thirty (30) days from the date of invoice. Newberry is not liable for back charges on replacement of defective material.
All claims for damaged material must be made before the material is removed from the delivery site.
No returns will be allowed on specially ordered merchandise.
Any assessments against Newberry for returned out-of-stock merchandise will be passed on to Purchaser.
No credit will be given for any materials not purchased through Newberry.
No credit will be given for discounted material.
Pick up returns by Newberry’s truck will be made only as can be scheduled with regular deliveries, and Purchaser will be charged a reasonable fee for such pick up.
Merchandise returned for a cash refund must be accompanied by a purchase invoice; no cash refund will be given to any Purchaser who owes a balance on such Purchaser’s account.
All returned merchandise must be in good condition and inspected by the proper authority before any credit will be given, and all returned merchandise shall be subject to reasonable handling charges.
At the option of Newberry, any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration held in West Memphis, Arkansas, in accordance with the rules of the American Arbitration Association, and judgment upon any award thereon may be entered in any court having jurisdiction.
This contract shall be governed by and construed according to the laws of the State of Arkansas.
This contract constitutes the entire agreement between the parties and all prior representations and understandings, which include certain Schedule A’s, to this Master Terms and Conditions of Sale have been incorporated herein and the terms herein supersede the terms of the Purchaser’s purchase order, if any.
Interest at the maximum rate allowed under Arkansas law will be charged on all past due invoices.
Purchaser agrees to indemnify Newberry for all legal and collection fees and costs incurred to collect delinquent invoices.
Set-Off. Buyer authorizes Newberry to apply toward payment of any monies that become due Newberry hereunder any sums which may now or hereafter be owed to buyer by Newberry.
Patent Infringement. If any of the goods are to be furnished to buyer’s specification, buyer agrees to indemnify Newberry and its successors and assigns, against all liabilities and expenses resulting from any claim of infringement of any patent or other proprietary right in connection with the production of such goods.
Purchaser shall be solely responsible for conforming with industry recommended practices/guidelines relating to the installation and maintenance of the tank(s) as well as compliance with state and local laws, including but not limited to construction and maintenance of secondary containment facilities and other applicable laws.
Purchaser agrees that the tank(s) purchased from Newberry will only be used for the purposes designed.
Equipment Terms of Sale. “Equipment” is defined as all products not within a tank category located on store.newberrytanks.com
Defective equipment will be replaced according to the equipment manufacturers warranty. This may involve shipping to the factory for inspection and verification of the defect on a case-by-case basis. The purchaser will be billed for all shipping if the equipment is not found to be defective by Newberry Tanks or our equipment manufacturers. Newberry Tanks will provide instructions for shipping defective products, if necessary. In certain cases, the products may be discarded, with a replacement product sent by Newberry or the equipment manufacturer. If preferred by the purchaser, Newberry can refund the cost of the product, minus shipping costs, instead of replacing. Refunds will be held by Newberry until Newberry and/or our equipment manufacturers can determine that the equipment is defective.
Non-defective equipment can be returned to Newberry if unopened and unused in the original packaging within 30 days of shipping for a refund, less a 30% restocking fee. The purchaser will be responsible for all shipping costs for the return, and shipping will not be considered as part of the refund.
Non-defective equipment can be returned within 5 days of shipping for a refund in cases of buyers remorse, less a 30% restocking fee. The purchaser will be responsible for all shipping costs for the return, and shipping will not be considered as part of the refund.