Terms and Conditions of Sales
May 20, 2022
These terms and conditions of sale (the “Terms”) govern the sale of goods (“Goods”) supplied by Stock Tank Solutions LLC and its affiliated companies (“STS”) to any customer, including, without limitation, a third-party distributor or consumer (the “Customer”). All sales of Goods by STS to the Customer are subject to these Terms unless otherwise agreed in a writing that expressly supersedes these Terms.
CUSTOMER AGREES TO AND INTENDS TO BE BOUND BY THESE TERMS BY ENTERING INTO ANY SALES ORDER THAT INCORPORATES THESE TERMS BY REFERENCE. A COPY OF STS’S CURRENT TERMS MAY BE OBTAINED ON REQUEST OR BY VISITING THE FOLLOWING WEBSITE: www.Stocktanksolutions.com (THE “WEBSITE”). THE TERMS ARE SUBJECT TO CHANGE FROM TIME TO TIME. THE PARTIES AGREE THAT THE VERSION POSTED TO THE STS WEBSITE AT THE TIME THAT A SALES ORDER (OR OTHER AGREEMENT OF PURCHASE AND SALE) IS ENTERED INTO WILL GOVERN THAT SALES ORDER (OR AGREEMENT OF PURCHASE AND SALE).
1. Agreement of Purchase and Sale
1.1 Sales Order
STS shall have no obligation to provide Goods until a sales order (a “Sales Order”) has been issued by STS and accepted by the Customer in accordance with this Section and payment for the Goods has been made. Online Sales Orders are authenticated via online payment for the Goods. A Sales Order, including those authenticated online, that has been accepted by STS shall be a binding agreement of purchase and sale between STS and the Customer.
1.2 Incorporated Documents
(a) These Terms are automatically incorporated into every Sales Order and any reference to a Sales Order in these Terms refers to the Sales Order including these Terms. These terms may not be modified except when expressly stated in the applicable Sales Order as issued by STS and accepted by the Customer. Any additional or different terms that are not expressly accepted by STS in accordance with these Terms are rejected by STS and will not become part of the Sales Order.
(b) In the event of any discrepancy between a Sales Order and these Terms, such discrepancy shall be resolved with reference to the Sales Order as the highest-ranking document.
1.3 Acceptance
A Customer will be deemed to have accepted Goods if it takes delivery of such Goods, unless timely rejection is provided by written notice to STS within five (5) days of delivery as set forth below.
1.4 Changes and Waivers
Subject to Section 8, any changes to a Sales Order are subject to agreement by both STS and the Customer. No waiver, alteration or modification of a Sales Order shall be binding upon STS unless made in writing and signed by a duly authorized representative of STS.
2. Price
2.1 Currency and Price Exclusions
All prices are given in United States dollars unless otherwise stated in a Sales Order. Unless disclosed otherwise, STS’s prices include only the cost of the Goods and specifically exclude: (i) applicable federal, state, or other taxes imposed on the sale or use of Goods (collectively, (“Taxes”); (ii) the cost of any testing or inspection other than that provided under these Terms; (iii) all costs of delivering Goods, including freight, insurance and other shipping expenses (collectively, “Delivery Charges”); and (iv) duties, import/export levies, Taxes, and any other fees charged in connection with the importation of Goods, if any (collectively, “Importation Charges”).
2.2 Taxes
Any Taxes required to be charged or collected by STS will be billed in accordance with applicable law, and Customer shall pay such Taxes to STS, unless the Customer is exempt from such Taxes and provides evidence to the satisfaction of STS of such exemption.
3. Payment
3.1 Invoicing
STS may invoice the Customer for all Goods provided under a Sales Order.
3.2 Terms
All Goods must be paid for in advance of shipment. The Customer shall pay all amounts when due in full without any deduction or withholding except as required by applicable law and shall not be entitled to assert any credit, setoff, deduction, or counterclaim against STS in order to justify withholding payment of any such amount in whole or in part. Any amounts not paid when not due shall bear interest at the highest rate permitted by applicable law, calculated from the date payment was due until the date payment is made for all outstanding amounts. Any costs and expense incurred by STS in enforcing and collecting on past due amounts shall be paid by Customer.
3.3 Cumulative Rights
STS’s rights in respect of late payments under this Section 3 are in addition to any other rights or remedies it may have for late payments and will survive the termination of the applicable Sales Order.
4. Pre-Delivery Inspections / Test
STS will subject all Goods supplied under a Sales Order to STS’s standard inspection and test procedures prior to shipment. The condition of Goods at the time of delivery will be presumed to be the same as the condition of such Goods at the time of such testing or inspection, unless Customer demonstrates otherwise.
5. Delivery
5.1 Shipping and Handling
STS shall be responsible, at the cost of the Customer, for arranging shipping and obtaining appropriate insurance for the period during which the Goods are being transported to the point of delivery provided by Customer. When convenient, STS shall be entitled to deliver Goods in one or more consignments. The Customer shall be responsible for unloading the Goods and receiving the Goods at the point of delivery and assumes all risk in connection therewith.
5.2 Importation
Where the point of delivery is located outside of the United States, Customer agrees to act as importer of record for any Goods that are exported from the United States to Customer at Customer’s cost. The Customer shall provide STS with any information or documentation as may be required by STS or by a carrier in connection with Customer’s importation of Goods.
5.3 Delivery Dates
Any delivery dates provided in connection with a Sales Order is an estimate only unless specifically agreed to in a writing signed by STS and the Customer. All delivery dates are subject to the receipt by STS of the proper shipping address and instruments, payment in full for the Goods, and any other information that may be necessary in the determination of STS. STS shall have no liability in respect of any delay or failure to deliver all or any part of any Sales Order as a result of any cause beyond STS’s control.
5.4 Time of Delivery
Delivery shall be deemed to have occurred when STS or its shipping carrier has delivered the Goods to the point of delivery defined in the Sales Order.
6. Inspection and Acceptance
6.1 Inspection
Immediately upon receipt, the Customer shall, at its own expense, inspect the delivered Goods. If the Customer reasonably believes that the Goods were damaged or defective at the time of delivery, then the Customer will give STS written notice of the damage or defect within five (5) days of the time of delivery and, if the Customer fails to give such notice within the required period, the Goods shall be conclusively presumed to be in all respects in accordance with the Sales Order and free from any defect which would be apparent on reasonable examination of the Goods and the Customer shall be deemed to have irrevocably accepted the Goods accordingly. Where the Customer provides such notice, any Goods that are demonstrably damaged or defective will be promptly repaired or replaced by STS at its expense.
6.2 Use
Notwithstanding the foregoing, any use of the Goods by the Customer for any purpose after the time of delivery, including without limitation the resale of Goods to a third party, the incorporation of Goods into any product or facility, or any other use of the Goods, shall constitute an irrevocable acceptance of the Goods by the Customer.
7. Title and Risk of Loss
7.1 Title
Title to Goods shall transfer from STS to the Customer free and clear of encumbrances when the Goods are delivered (or deemed to have been delivered) and are fully paid.
7.2 Risk of Loss
Upon delivery, or at such time as the Goods are deemed to be delivered herein, the risk of loss of or damage to Goods shall pass to the Customer. STS shall not be liable for any loss of any kind to the Customer arising from any damage to the Goods occurring after the risk has passed to the Customer, nor shall any liability or obligation of the Customer to STS be diminished or extinguished by reason of such loss.
8. Cancellation and Returns
8.1 Cancellation
In the event of a pending Sales Order, the Customer may cancel such Sales Order by providing notice in writing to STS 15 days’ prior to the estimated delivery date, provided that:
(a) Goods that have already been placed in shipment and/or delivered (or deemed to have been delivered) pursuant to a Sales Order and in accordance with these Terms may not be cancelled, and Customer shall remain liable for paying for such shipped and/or delivered Goods; and
(b) STS may charge and the Customer shall pay to STS an amount equal to 10% of the purchase price of the cancelled portion of the Sales Order as liquidated damages.
8.2 Returns
(a) Subject to the Warranties, no Goods that have been delivered (or deemed to have been delivered) may be returned to STS without STS’s prior written permission, which may be granted, conditioned or withheld in STS’s sole discretion.
(b) Where STS permits the Customer to return Goods, the Customer will return Goods to STS at the Customer’s expense and in accordance with a written return authorization from STS. The Customer will bear all risk of loss for returned Goods until they are received and accepted by STS. STS may reject any return of any portion of Goods unless prior written authorization has been given by STS and the Customer has complied with the packaging and shipping instructions provided by STS.
(c) Unless waived by STS, the Customer shall pay to STS a restocking fee equal to 20% of the purchase price of the Goods that are returned.
(d) Should STS determine that the returned Goods condition is below the value of the refunded purchase price, the Customer shall pay the difference in the value in addition to the 20% restocking fee. STS shall have 10 days from receipt of the returned materials to make a valuation determination.
(e) Any Goods that have been specifically purchased by STS for the Customer may not be returned, and sales of batteries and Goods containing batteries are final.
9. Intellectual Property
9.1 Ownership
STS retains for itself all of its intellectual property rights in all Goods and in any supporting documentation supplied hereunder, including but not limited to all trademarks, service marks, designs, engineering details, manufacturing processes, testing, installation and maintenance procedures, and other data or information pertaining to any Goods.
9.2 No Transfer
No title to or ownership of any of STS’s intellectual property rights is transferred to the Customer under any Sales Order or as a result of any deliveries made pursuant to a purchase.
10. Limited Warranties and Exclusive Remedy
10.1 Warranties
THE STS WARRANTIES ARE SUBJECT TO CHANGE FROM TIME TO TIME. THE PARTIES AGREE THAT, SUBJECT TO SECTION 10.2, THE VERSION OF THE STS LIMITED WARRANTIES, SECTION 10.4, THAT IS POSTED TO THE WEBSITE AT THE TIME THAT A SALES ORDER (OR OTHER AGREEMENT OF PURCHASE AND SALE) IS ENTERED INTO WILL GOVERN THAT SALES ORDER (OR AGREEMENT OF PURCHASE AND SALE).
10.2 Special Warranties
Where STS and the Customer agree in writing to warranties that are different from the STS Limited Warranties (“Special Warranties”), those Special Warranties shall supersede and replace (and not be additional to) the STS Limited Warranties with respect to each Sales Order that expressly references the Special Warranties. For the purposes of these Terms, “Applicable Warranties” will mean the STS Limited Warranties or Special Warranties, as may be applicable to a given Sales Order.
10.3 Limited Warranty
STS warrants its Goods free from defects in material and workmanship for a period of ninety (90) days from date of shipment. This warranty is expressly in lieu of all other obligations or liabilities on the part of STS. THE FOREGOING WARRANTY IS SPECIFICALLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUATORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. STS NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME ANY OTHER LIABILITIES IN CONNECTION WITH THE SALE OR USE OF ANY GOODS. THE FOREGOING WARRANTIES AND REMEDIES ARE FOR CUSTOMER’S EXCLUSIVE BENEFIT AND ARE NOT TRANSFERABLE.
10.4 Exclusive Remedy
Customer’s sole remedy for breach of the limited warranty set forth in 10.3 shall be repair or replacement, at STS’s option, of the defective Good. Customer shall notify STS of any warranty claim during the warranty period and obtain STS’s authorization prior to the return shipment of Goods for warranty adjustment. Goods returned shall be sent with shipping charges prepaid. When any Good is returned for examination and inspection, Customer must assume responsibility for damage resulting from improper packaging and damage or loss in transit. Customer shall provide explicit information as to the nature of the claimed defects, operating conditions to which the Good had been exposed, and any other pertinent information which will enable STS to determine the cause of claimed warranty defects. In all cases, STS has sole responsibility for determining the validity of any warranty claim and sole discretion in determining the nature and extent of remedy, if any, to which the Customer will be entitled. In the event that Good has been returned without cause and is still serviceable, or that the Good was misused, stolen, vandalized, mishandled due to fire, water or other peril, or otherwise damaged subsequent to shipment by STS, Customer will be notified and the Goods returned at Customer’s expense. In addition, a charge for testing and examination may be made on certain Goods so returned.
11. Liability and Customer Indemnity
11.1 Limitation of Damages
IN NO EVENT WILL STS’S LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR SALE EXCEED THE PURCHASE PRICE RECEIVED BY STS FOR THE GOODS WHICH ARE THE SUBJECT OF ANY CLAIMS OR DISPUTE. IN NO EVENT WILL STS BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY CUSTOMER. IN NO EVENT WILL STS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT) WHETHER OR NOT STS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST CUSTOMER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. The liability to third parties for bodily injury, including death, resulting from STS’ performance shall be determined in accordance with applicable law and the total liability limitation stated above shall not be construed as a limitation on STS for damages for any such bodily injury, including death, nor shall such liability limitation be construed as a limitation on STS for damages caused by STS’ fraud or willful injury to the person or property of another.
STS will have no liability for any claim to the extent that:
(a) Goods are not used by the Customer in accordance with the Sales Order or any product documentations provided by STS;
(b) Goods are used in combination with other equipment, products, software or data not supplied by STS and not contemplated by the Sales Order or any product documentation;
(c) Goods are modified, other than in accordance with product documentation, by any person or entity other than STS;
(d) the claim relates to or arises out of information, works, designs, specifications or other instruments provided by the Customer for incorporation into the Goods; or
(e) the claim is caused by an act or omission of the Customer or the Customer’s officers, directors, contractors, employees and/or agents.
11.2 Customer Indemnity
THE CUSTOMER SHALL INDEMNIFY AND HOLD STS HARMLESS FROM AND AGAINST ANY AND ALL LOSSES SUFFERED OR INCURRED BY STS ARISING OUT OF OR IN CONNECT WITH: (A) A BREACH OF STS’S CONFIDENTIALITY OR INTELLECTUAL PROPERTY RIGHTS RELATED TO THE GOODS; (B) A BREACH BY THE CUSTOMER OF ANY TERMS OR CONDITIONS OF THE SALES ORDER OR APPLICABLE WARRANTIES; (C) THE USE OF THE GOODS IN OR WITH ANY UNLAWFUL USE OR PURPOSE WHATSOEVER; OR (D) PERSONAL INJURY, INCLUDING DEATH, OR PROPERTY DAMAGE SUSTAINED BY STS, ITS EMPLOYEES OR AGENTS, OR A THIRD PARTY, AS A RESULT OF AN ERROR OR OMISSION OF THE CUSTOMER, ITS AGENTS OR EMPLOYEES IN TAKING DELIVERY OF AN ORDER.
12. Change of Law and Force Majeure
12.1 Change in Law
For the purposes of these Terms, a “Change of Law” means the coming into force of any new Law, or amendment to or change in interpretation of any Law, after the date of a Sales Order, that has a material adverse effect on the ability of STS to perform its obligations under a Sales Order or that materially increases the cost to STS of performing its obligations, and includes without limitation the imposition of any new or increased duties on Goods to be imported pursuant to a Sales Order where STS is responsible for paying such duties. Upon the occurrence of a Change of Law, STS may, at its option and upon delivering notice of the Change of Law to the Customer: (a) terminate the applicable Sales Order or pending portion thereof; or (b) attempt to negotiate equitable amendments to such Sales Order to address the Change of Law failing which it may terminate the applicable Sales Order or pending portion thereof. If STS terminates all or part of a Sales Order as a result of a Change of Law, STS and the Customer shall be released of all obligations and liability with respect to the terminated Sales Order or part thereof except with respect to Goods that had been delivered (or deemed to have been delivered) prior to the effective date of the Change of Law. STS will have no liability for any loss or damage of any kind suffered by the Customer as a result of any such termination.
12.2 Force Majeure
STS shall not be responsible or liable for any delay or failure to perform its obligations arising from causes beyond STS’s reasonable control, including, without limitation, acts of God, war, invasion, pandemic, epidemic, insurrection, riot, the order of any civil or military authority, fire, flood, weather, acts of the elements, delays in transportation, unavailability of equipment, materials, labor or fuel, breakdown, sabotage, lock-outs, strikes or labor disputes, the failure of suppliers to meet their delivery promises, any Change of Law, or any other event or condition which is not reasonably known or understood at the time of the sale of the Goods.
13. Limitations of Liability
13.1 Exclusion of Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR THE INDEMNITY PROVISIONS IN SECTION 12, STS HEREBY DISCLAIMS, AND SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR, DAMAGE OR INJURY TO PERSONS OR PROPERTY OR FOR OTHER LOSS OR INJURY RESULTING FROM ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATED TO ANY OF ITS GOODS OR THEIR USE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL STS BE LIABLE TO CUSTOMER, OR TO ANY THIRD PARTY CLAIMING THROUGH OR UNDER THE CUSTOMER, OR TO ANY ASSIGNEE OF THE CUSTOMER FOR ANY LOSS OF USE, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF OPPORTUNITY, OR FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND, HOWSOEVER ARISING, RELATED TO THE GOODS, EVEN IF STS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 Limitation
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STS’ AGGREGATE LIABILITY, IF ANY, IN DAMAGES OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE PAID TO STS BY THE CUSTOMER FOR THE GOODS FURNISHED THAT GAVE RISE TO A CLAIM.
13.3 Acknowledgement
CUSTOMER ACKNOWLEDGES THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS ON LIABILITY ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE PURCHASE PRICE OF THE GOODS WOULD BE SUBSTANTIALLY DIFFERENT. FOR CERTAINTY, THE CUSTOMER ACKNOWLEDGES THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS ON LIABILITY APPLY TO WARRANTY AND INDEMNITY CLAIMS.
14. General
14.1 Entire Agreement
An accepted Sales Order (including these Terms) constitutes the entire agreement between STS and the Customer with respect to the subject matter of the Sales Order and supersedes all prior agreements, understandings, quotations, and representations between the parties, both written and oral, relating to the subject matter thereof. Without limiting the foregoing, all descriptions and illustrations contained in STS’s brochures, price lists, website, and advertisements, and all specifications, drawings and any other documents communicated to the Customer, are intended merely to present a general idea of the Goods described therein and nothing contained in any of them shall form any part of the Sales Order unless otherwise stated therein.
14.2 Non-Waiver
No failure on STS’s part to strictly enforce any of these terms and conditions or any of its rights shall be construed as a waiver of such term, condition or right. STS’s acceptance of a Sales Order shall not be deemed an acceptance of any terms and conditions that may be contained therein that are inconsistent with these Terms except to the extent expressly agreed in writing by STS.
14.3 Severability
In the event that any provision of these terms and conditions or any part thereof should be held to be invalid, illegal or unenforceable, the remainder of these terms and conditions shall remain valid and enforceable.
14.4 Amendment
Any Sales Order that is subject to these Terms may not be modified except by an agreement in writing signed by authorized representatives of STS and the Customer.
14.5 Relationship of Parties
No Sales Order or other agreement shall be interpreted to create any partnership, joint venture, employer/employee, principal/agent or any other relationship between STS and the Customer. Neither party shall have any right or authority to assume, create, or enter into any agreement or undertaking for, or act on behalf of, or to act as or be an agent or representative of, or to otherwise bind, any other party.
14.6 Binding Effect
Each Sales Order is binding on and inures to the benefit of STS and Customer and their respective successors and assigns.
14.7 Applicable Law and Jurisdiction
These Terms shall be governed by the substantive and procedural laws and regulations of the State of Texas and the United States, without regard to conflicts of laws principles. STS and Customer hereby agree that any legal proceeding with respect to these Terms shall be brought only in a State Court located in Midland County, Texas or the United States District Court located in Midland, Texas. Both STS and Customer submit to and accept generally and unconditionally the personal jurisdiction of these courts.
14.8 Notices
All notices hereunder must be given to STS in writing at its principal place of business for receipt within the time specified herein, provided that notices of warranty claims shall be given in accordance with the terms and conditions of the Applicable Warranties.
14.9 Headings
The division of these terms and conditions into parts, sections, paragraphs, subparagraphs and clauses and the insertion of headings are for reference purposes only and will not affect the construction or interpretation of these Terms.
14.10 Counterparts
Any Sales Order requiring execution, and any amendment or supplement thereto, may be executed in any number of counterparts and by different parties on separate counterparts (which may be facsimile copies) but shall not take effect until each party has executed at least one counterpart. Each counterpart shall constitute an original but all the counterparts together shall constitute a single agreement.
If you place an order and cancel the order within 30 minutes, you will receive a full refund. After this timeframe there are no guarantees that the product will not be packaged and shipped to you. If it is shipped and you cancel you will be responsible for shipping charges both ways and any credit card fees. If you receive a product and it is damaged or defective, we will exchange it after receiving pictures of damages within 24-48 hours of delivery. There will be absolutely no exchanges after products have been in the water, as water causes wear and we cannot resell them. All other returns must be approved before sending back.
Please reach us via email at stocktanksolutions@gmail.com