Terms & Conditions
Standard Terms & Conditions
These terms and conditions are the commercial terms of a purchase of goods (“Products”) from The Nelson Paint Company or one of its subsidiaries and affiliates (“Nelson” or “Seller”) and apply to all purchases of Products from Nelson by any buyer (“Buyer”) with notice of these terms, however gained, including the use of Nelson’s website (“Website”). No additional or different terms or attempted exclusions or modifications (by way of purchase order (“P.O.”), acceptance, confirmation, communication, course of performance or otherwise, all of which may be hereafter be referred to jointly and severally as “Reply”) shall be effective against Nelson in the absence of the express written consent of Nelson by an authorized officer. Neither the submission of this document, nor anything herein contained, shall be construed to be in acceptance or confirmation of any prior or subsequent Reply; this document shall be a rejection and counteroffer with respect to any such Reply. Provisions below that apply only to certain types of goods (e.g., provisions relating to printed orders) only apply to the extent, if any, such provisions are applicable to Products sold to Buyer. The contract between Nelson and Buyer, including these terms, shall be referred to as the “Agreement.” Throughout this instrument, the use of the term “include,” however conjugated, shall be without limitation; “person” shall include any individual, corporation, limited liability company, partnership, or other entity.
Acceptance of Terms
Nelson reserves the right to accept or reject any and all orders, regardless of the manner in which the order is made. Nelson reserves the right to update these Standard Terms and Conditions (“TAC”) at any time without notice to you.
Place of Sale
All agreements for sales and purchases of Products (the “Agreement”) are made when accepted by Nelson in Kingsford, Dickinson County, Michigan, subject to the terms set forth herein. All sales are subject to the laws of the State of Michigan, and the United States Government and other relevant foreign laws. No change, modification, or revision of your order shall be valid unless agreed to in writing by Nelson. Any terms and conditions set forth in the Buyer's purchase order or otherwise proposed by Buyer shall not materially alter terms and conditions set forth herein.
Restrictions on the Sale of Specific Products
The United States Government restricts the sale of certain products to international destinations in which an export license must be obtained by Nelson prior to order processing. Orders for international destinations are subject to review by and will be processed in compliance with all United States International Trade Regulations. All transactions are subject to screening against all published Denied Parties Listings made available by the United States Government.
Nelson reserves the right to restrict the sale of selected products such as, but not limited to, Glass Breaking projectiles, Less Lethal projectiles, and other special use items, in Nelson’s sole discretion. Orders for such products must be submitted on department letterhead, and with a copy of official identification. Please call our Customer Service Department at 1-800-236-9278 for more details. When Buyer places an order for Products that are subject to any legal or other restrictions, Buyer represents and warrants to Nelson that Buyer is legally authorized to make such purchase, and Buyer is in compliance with all local, state and federal laws concerning the purchase and use of such Products, and that Buyer acknowledges Nelson’s reliance on such representations and warranties. Buyer alone is responsible for ensuring the compliance with all applicable laws of Buyer’s purchase, possession, or use of Products. Nelson is not obligated to, but retains the right to verify the employment of any person ordering Products. We apologize for any inconvenience this may cause.
Privacy and Protection of Personal Information
See the Privacy Statement disclosures relating to the collection and use of your information.
Links To Third Party Websites
As a convenience to you, the Website may contain links to third party websites that are not owned, operated, or controlled by Nelson. By including these links, Nelson is not endorsing or approving such websites. Nelson shall not be liable or responsible for any loss or damage resulting from your use of any third party linked website or from any information, products or services made available on any such linked website. Nelson makes no representations or warranties, whether express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose, and non-infringement, regarding any third party linked website or any information, products, or services made available through any such linked website. By clicking on a link to another website you will leave this Website.
Buyer acknowledges that prices, whether they appear in the Website, on a price list, in a quotation, or in any other form or medium, are subject to change. Nelson may change prices at any time without notice. Nelson reserves the right to modify pricing for orders at any time prior to delivery and invoicing. Buyer will pay any service fee, charge, surcharge, or other, similar charge imposed upon Nelson by Nelson suppliers. Price increases for raw materials or components purchased by Nelson for inclusion in finished Products shall be paid by Buyer without advance notice and are due and payable to Nelson immediately, without regard to Buyer’s payment terms or standard payment terms below. All orders are subject to possible delays, charges, rapidly increasing costs, service fees, charges, or surcharges beyond the control of Nelson’s or its suppliers. In Nelson’s sole and absolute discretion, these additional costs, service fees, charges, or surcharges may be added to the final invoice provided to the Buyer. Such price change shall not entitle the Buyer to full or partial cancellation of the order or any compensation. Nelson reserves the right to cancel any order that was mis-priced in error or to correct any error in pricing, which corrected amount Buyer agrees to pay.
Shipping charges are for motor freight in one shipment to one destination on the US mainland. Additional shipping charges may apply. Buyer is responsible to pay all charges relating to the transport of Products that are the subject of Buyer’s order and acknowledges that Nelson’s proposed shipping cost is only an estimate of the ultimate charge for which Buyer is responsible and that estimate does not preclude the possibility of additional charges imposed on the transport of Products that are the subject of Buyer’s order. Without limitation, Buyer is specifically responsible for extra charges including, but not limited to: lift gate charges, residential delivery charges, refused shipment charges, redelivery charges, delay of truck or driver charges, special delivery charges, and charges for return of refused shipments. Nelson reserves the right to cancel any order due to increased shipping charges. For international shipments, Nelson may, upon Buyer’s request, agree to clear goods for export, and all related fees will be charged to the Buyer. In the case of international sales, unless otherwise agreed, Buyer shall be fully responsible: (i) to provide Nelson prior to shipment and in writing, the ultimate destination and identity of the end-user; (ii) to pay all duties, tariffs, fees, taxes, and other charges imposed by any government on Products or the purchase, exportation, or importation of Products; and (iii) for compliance with applicable legal requirements for exportation and importation of Products.
Seller warrants that, upon delivery, the Products will conform to Seller’s internal specifications for such Products. This warranty is valid for thirty (30) days from the date of delivery of Products, and expires thereafter. This Limited Warranty does not apply to the sale of Products that are designated by Seller as “seconds” or otherwise sold at a discount because of having sub-standard quality. Buyer is aware that Seller makes no warranties, either express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement, as to the quality of “seconds,” or other goods labeled as being of sub-standard quality, and that such Products are sold AS IS.
The warranties contained herein shall not apply to any repairs, corrections, or replacements to Products, including, without limitation, those caused by: (i) physical abuse of the Products or any parts of Products or acts of vandalism by any persons other than Seller, its employees, agents, or subcontractors; (ii) unless consented to by Seller, alterations, modifications, additions, or repairs made during the applicable warranty period by anyone other than Seller, its employees, agents or subcontractors, in such a way that the alterations, modifications, or repairs have adversely affected the reliability or performance of the Products or any component; (iii) accident or damage resulting from fire, water, wind, hail, lightening, earthquake, theft or similar causes originating outside the components and not within the control of Seller or caused by or contributed to by the negligence of Seller or its employees, agents or subcontractors, or (iv) damage to any component as a result of improper storage or shipment of such component by Buyer or its employees or agents.
EXCEPT FOR THE EXPRESS LIMITED WARRANTIES CONTAINED IN THESE TERMS AND CONDITIONS, SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE FULL EXTENT PERMITTED BY THE LAW.
Buyer agrees that its sole and exclusive remedy against Seller shall be limited to the repair and replacement of Products or parts of the Products, provided Seller is promptly notified in writing of any defect, prior to the expiration of the limited warranty period specified above. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Seller is willing and able to repair or replace the Products or parts of Products. Under all circumstances Seller’s liability for any damages or losses suffered by Buyer shall be limited to the purchase price of the Products. THIS PARAGRAPH STATES BUYER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.
Limitations on Actions and Liability.
The statute of limitations applicable to all claims of Buyer arising under the Agreement, or otherwise relating to the purchase and sale of Products, shall be one (1) year from the date the claim accrues. SELLER WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE, OR INJURY RESULTING FROM DELAY IN DELIVERY OR INSTALLATION OF THE PRODUCTS OR FOR ANY FAILURE TO PERFORM WHICH IS DUE TO CIRCUMSTANCES BEYOND ITS CONTROL. THE MAXIMUM LIABILITY, IF ANY, OF SELLER FOR ALL DIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM SELLER’S BREACH OF THIS AGREEMENT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT WITH RESPECT TO THE PRODUCT, OR ANY SERVICES IN CONNECTION WITH THE PRODUCTS, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PRICE OF THE PRODUCTS. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATIONS SPECIFIED IS BUYER’S EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT THAT ANY OTHER CONTRACTUAL REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Seller shall not be deemed to be in default or be held in any way liable for delays or failures in performance of its obligations resulting from acts of God, acts of war or civil disturbance; terrorism; riots; pandemics; epidemics; governmental actions or inaction; natural disasters and catastrophes, including, but not limited to, fires, earthquakes, and floods; unavailability of labor, materials, power, or communication; loss or malfunction of utilities or communications or computer (software and hardware) services; or other causes beyond Seller’s reasonable control.
Buyer shall immediately inspect shipments as and when received for shipping damage and loss of Product, and must have the driver notate any such damage or loss on the delivery receipt prior to Buyer’s acceptance of the delivery. If Product damage is visible, Buyer is also to have “possible hidden damage” noted on the delivery receipt. Buyer shall inform Seller of such damage or loss by phone and in writing within 48 hours of discovery of damage. Buyer shall retain damaged Product for inspection until Seller provides written notice to Buyer with instructions for how Buyer should handle the Product. All Products or parts thereof shall be subject to inspection by the Buyer for a reasonable period (which shall in no event be more than five (5) days after receipt thereof by the Buyer), after which Buyer will be deemed to have accepted the goods. Payments shall constitute final acceptance of the goods and shall constitute a waiver of the Buyer’s rights to inspect or reject the goods unless otherwise agreed. If Buyer rejects any merchandise, Buyer must first obtain a Return Authorization Number (RAN) from Seller before returning any goods to Seller. Goods returned without a RAN will be deemed to have been accepted by the Buyer and will be rejected for return by the Seller. Seller will not be responsible for any freight costs, damages to goods, or any other costs or liabilities pertaining to goods returned without a RAN. Seller shall have the right to substitute a conforming tender. Buyer will be responsible for all freight costs to and from Buyer and repackaging costs, if any, if Buyer refuses to accept shipment. If Product is returned in unsaleable condition, Buyer is responsible for full value of the Products. Products that complied with the terms of the Agreement and are otherwise returned without justification may be subject to a restocking charge, which Buyer shall promptly pay when invoiced by the Seller.
Buyer’s Obligations upon Rejection of Goods.
Buyers shall notify Seller in writing of its intent to reject any shipment of Products. The notice must specifically identify the Products rejected, including reasons for the rejection and what if any, defect exists. Buyer shall notify seller of the rejection no more than five (5) days after Buyer received the Products.
In the event of default, Buyer shall pay upon demand any and all expenses, including reasonable attorney fees, incurred or paid by seller, without suit or action, in attempting to collect funds due and not paid. In the event an action is instituted for the collection of the amounts not paid, the prevailing party shall be entitled to recover, at trial or on appeal, such sums as the court may adjudge reasonable as attorney fees, in addition to costs and necessary disbursements.
Choice of Law and Forum.
In the event of any litigation between the parties hereto concerning any matters related to this Agreement, the parties agree that the only forum in which such litigation may be filed and adjudicated is in the state and federal courts of Michigan. Buyer consents to jurisdiction in the State of Michigan. In the event of any litigation between the parties hereto concerning any matters related to this Agreement, parties agree that the substantive and procedural laws of the State of Michigan shall apply without regard to Michigan’s choice of law provisions. Consistent with the preceding sentence, the United Nation’s Convention on Contracts for the International Sale of Goods shall not apply in the event of international sales. The parties shall not contest the validity or enforceability of any electronic transmissions based on the provisions of the statute of frauds; such transmissions shall be governed by the Michigan Uniform Electronic Transactions Act (MCL 450.831).
Unless otherwise agreed to in writing between Seller and Buyer, all shipments are F.O.B. Seller’s factory or other shipping point. Buyer is responsible for the costs of shipping goods to Buyer’s designated shipping address.
IT IS EXPRESSLY AGREED AND UNDERSTOOD, AS EVIDENCED BY BUYER TAKING DELIVERY OF THE PRODUCTS DESCRIBED HEREIN, THAT BUYER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS SELLER FROM ANY CLAIMS AGAINST SELLER FOR DAMAGE TO PROPERTY, PERSONAL INJURY, OR DEATH BROUGHT AGAINST SELLER BY BUYERS’ EMPLOYEES OR AGENTS, INVOLVING OR RELATED TO THE USE OF THE PRODUCTS) DESCRIBED IN NELSON’S INVOICE/BILL OF LADING, ANY SUCH CLAIMS INCLUDE CAUSES OF ACTION FOR NEGLIGENCE, STRICT LIABILITY, WARRANTY, AND GROSS NEGLIGENCE ASSERTED TO BE THE RESULT OF ANY ACT, OMISSION, OR REPRESENTATION, EXPRESS OR IMPLIED, OF THE SELLER.
All Prices are subject to change without notice.
Special Terms and Conditions Additionally Applicable to Sales of Tactical and Less Lethal Projectile Products Pepper Spray Products
Buyer acknowledges that the Products consist of less lethal and/or glass-breaking projectiles that can cause serious injury or death when used against human targets, and are designed to be used as ammunition in projectile weapons.
Alternatively, Buyer acknowledges that the Products consist of pepper-spray projectiles, which contain chemical agents designed to irritate the eyes, nose, and upper respiratory system of their intended targets, and are designed to be used as ammunition in projectile weapons.
Buyer acknowledges that the sale of such Products is made subject to laws and regulations that may vary among jurisdictions. Buyer covenants and agrees not to sell the Products except in compliance with such laws and regulations. Buyer assumes all risk for, and acknowledges that Seller has made no representations or warranties concerning, the chemical composition of the Products, or the legality of the sale or use of the Products in any particular jurisdiction.
Seller shall not be liable to Buyer or any employee, agent, contractor, or customer of Buyer, or any of Buyer’s successors, heirs or assigns, or any third party, for injury, loss, or damage to any person or property connected in any way with the storage, transportation, use or sale of the Products by Buyer, its employees, agents, contractors, customers, successors, heirs, or assigns. Buyer will indemnify, defend, and hold harmless Seller, its officers, directors, shareholders, agents, employees, contractors, representatives, insurers, attorneys, successors and assigns from and against all liability of any kind whatsoever (a) resulting from a breach of Buyer’s obligations, or (b) connected in any way with the storage, transportation, use, or sale of the Products by Buyer, its employees, agents or contractors, or their successors or assigns. The foregoing obligations, and any subsequent limitations of liability will not, however, absolve Seller from any liability determined to be as a result of the Seller’s intentional, malicious or reckless conduct.
Buyer and its successors and assigns shall, at the request of Seller, assume responsibility for the settlement and defense of any lawsuit, claim of liability, or any other legal proceedings brought against Seller, its officers, agents, employees, contractors, successors, or assigns, by any third party, including Buyer’s employees, agents, contractors, customers, or their successors or assigns, to enforce any right, loss, damage, injury, claim, fee, demand and any and all expenses generally within the scope of provisions (a) and (b) above. Provided, however, that Buyer shall not compromise or settle such proceeding without the written consent of Seller.
Indemnification responsibilities include, without limitation, payment of all attorneys’ fees, costs and expenses of such settlement and defense. Buyer and its successors, heirs and assigns shall assume responsibility for paying all judgments entered in any suits or other legal proceedings.
Buyer acknowledges that the Products have been sold by Seller to Buyer exclusively for the purpose of resale by Buyer, and that any warranties provided by Seller are intended to be for Buyer’s benefit only, and are not intended to be for the benefit of, are not assignable to, and may not be enforced by, any subsequent purchaser or consumer of the Products.
Terms and Conditions Subject to Change
All terms and conditions are subject to change at any time by the Seller. Any updates will be posted to this page.
Rev. 09102021. Copyright © 2021 Nelson Paint Company, PO Box 2040, Kingsford, MI 49802. All rights reserved.