Terms and Conditions of Sale
FIRST SUPPLY LLC
GENERAL TERMS AND CONDITIONS OF SALE
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS, THAT SHALL APPLY TO YOU AND THE PURCHASE AND SALE OF GOODS BY FIRST SUPPLY LLC, GERHARD’S KITCHEN & BATH STORE, OR KOHLER SIGNATURE STORE by FIRST SUPPLY (“FIRST SUPPLY”), INCLUDING ANY ONLINE ORDERS PLACED THROUGH www.firstsupply.com, www.1supply.com, or www.gerhardsstore.com (each a “Site”). As used below, “we,” “us” and “our” refer to First Supply, LLC, the Seller. “You” and “your” refer to you, the Buyer.
- Changes to Terms. Any additional or different terms or conditions not set forth in the Terms are hereby rejected. We disclaim any statements or representations regarding the goods or this transaction unless they are expressly set forth in the Terms or in another document signed by us. We will not be bound by any modification unless such modification is contained in a writing signed by our authorized representative.
- Order Acceptance and Cancellation. Our sale of goods to you is expressly conditioned on your assent to the Terms. All orders must be accepted by us or we will not be obligated to sell the goods to you. We reserve the right to reject orders at our sole discretion. For online orders, an Order Details email with your order number and details of the items you have ordered will automatically generate after you place an order through the Site. If any goods are out-of-stock, specialty, custom-made or if your order may be delayed for any reason, we will notify you within a reasonable time after receiving your order. Acceptance of your online order occurs when (a) we issue an Order Details email for in-stock goods, (b) we issue an Order Acknowledgement for out-of-stock, specialty, or custom goods, or (c) when we ship the goods, whichever first occurs. Whether made online or offline, changes to or cancellation of orders of in-stock, non-custom goods may be made before the goods are loaded for delivery. Changes to or cancellation of orders of non-stock, specialty, or custom goods are not permitted.
- Prices, Taxes, Payment Terms.
- All prices, discounts, and promotions related to the goods (whether posted on the Site or otherwise) are subject to change without notice. For online orders, the price charged for a good or goods will be the price advertised on the Site at the time the order is placed, subject to the terms of any promotions or discounts that may be applicable at such time, and the price charged will be clearly stated in your Order Acknowledgment email. For all other orders, the price charged for a good or goods will be the price included in the most recent price quote sent to you by us and will be clearly stated in your written Order Acknowledgment, if requested. Except as provided in this paragraph, price increases will only apply to orders placed after the time of the increase. We strive to display and deliver accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time. Notwithstanding the foregoing, you agree that we have the right to pass through any cost increase placed on the goods by any manufacturer or vendor after we accept your order. We will notify you of any such cost, which you agree to pay as part of the order price for the goods.
- None of the quoted prices or prices posted on the Site include sales, use or delivery taxes or charges for shipping and handling. All shipping and handling charges and all taxes which are presently or hereafter imposed on the use, sale or delivery of the goods will be charged to you in addition to the purchase price, and it is solely your obligation to pay any charges and taxes that are due. If you claim any exemption from taxes, we may require you to certify and/or document your eligibility for that exemption. For online orders, all such taxes and charges will be itemized in your shopping cart and in your Order Acknowledgment email. For all other orders, all such taxes and charges will be itemized in your written Order Acknowledgment (if requested) or in our invoice that is sent to you.
- Payment for the goods must be made in full within 30 days of the date of our invoice, unless other payment terms have been agreed to in writing. Payments not made when due will accrue a late payment charge on the unpaid amount until paid at the rate of 24 percent per annum or the maximum rate allowed by law, whichever is less. We reserve all remedies with regard to past due amounts including, without limitation, the right to suspend further shipments on any orders which you have placed with us. If delivery is made in installments, payment is due under the above terms with regard to each installment.
- Security Interest. By accepting the goods, you hereby grant us a purchase money security interest in such goods until you have paid for them in full. If requested by us, you will sign any documents necessary for us to perfect this security interest.
- Shipments; Delivery; Title and Risk of Loss; Storage of Goods.
- We will arrange for shipment of the goods to you. Shipping and delivery dates are estimates only and cannot be guaranteed by us. For online orders, please specify the delivery method during checkout.
- FOB Shipping. The goods will be deemed delivered when placed in the hands of the carrier or shipper (which we will select absent your specific instructions) at our warehouse or other place of business. You will assume all risk of loss or damage to the goods at the time of delivery.
- We will notify you once all goods for your order have been received at our warehouse. You agree to cooperate with us to make arrangements to ship and receive the goods. You hereby agree to take delivery of all goods that are the subject of your order by no later than thirty (30) days after you have received our notice. If you fail or refuse to take delivery of the goods within thirty (30) days following the date of our notice, we may exercise in our sole discretion any of the following options, which are in addition to any other rights or remedies that we may have under the Terms, at law, in equity or otherwise: (i) store the goods at your cost and risk of loss or damage, and charge you a monthly storage fee of five percent (5%) of the purchase price for goods in storage, which will be added to the amount due for such order; (ii) adjust the price for such goods to be equal to our then-current price; (iii) upon written notice to you, terminate your order for goods without any liability or penalty to us; or (iv) commence an action in a court of competent jurisdiction for the aggregate amount due and owing to us, plus reasonable attorneys’ fees and court costs incurred by us to pursue such an action.
- Inspection / Acceptance. You have 72 hours from the time you receive the goods to inspect and reject any nonconforming goods. After 72 hours, the goods will be deemed accepted unless you have notified us in writing of their rejection and the claimed nonconformity (with sufficient detail regarding the same). If timely notified of the nonconformance, we have the right, at our sole discretion, if we confirm the nonconformance, to replace the nonconforming goods with conforming goods, or to refund the purchase price of such nonconforming goods. OUR RIGHT TO PROVIDE A REPLACEMENT OR REFUND IS YOUR SOLE REMEDY WITH REGARD TO REJECTED NONCONFORMING GOODS.
- Returns and Refunds. Other than as explicitly set forth in paragraph 7 (Inspection/Acceptance), no return of any goods will be accepted without our prior written authorization. We reserve sole discretion whether or not to authorize the return of any goods. Normally, we will require a handling or restocking charge of at least 15% of the purchase price for stock goods that you request authorization to return within 72 hours of delivery and at least 25% of the purchase price for any other goods. Any goods which we authorize for return must be delivered to us undamaged, unused and in their original packaging and shipped F.O.B. our warehouse. Returned goods must be accompanied by our return authorization number, invoice reference number, date of purchase and a statement of the reason for the return. To initiate a return, please contact your salesperson or customer service representative.
- Manufacturer’s Warranty and Disclaimers. The only warranties on the goods are those, if any, provided by the manufacturer as detailed in the description included with the goods and/or included on our Site. We do not manufacture, design, alter, or control any of the goods offered for sale by us. As such, we are not a co-warrantor or party to any manufacturer warranty. AS A NON-MANUFACTURER SELLER OF THE GOODS TO YOU, WE MAKE NO WARRANTIES WITH RESPECT TO ANY GOODS SOLD AND WE EXPRESSLY DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF A THIRD-PARTY’S RIGHTS. The availability and/or listing of goods (either on our Site or in a price quote or other deliverable) shall not be deemed to indicate an affiliation with or endorsement of any goods, services, or manufacturers. To obtain warranty service for defective goods, please contact your salesperson or customer service representative or follow the instructions included in the manufacturer’s warranty.
- Installation. All sales, prices posted on the Site and price quotes are for goods without installation. We assume no responsibility for installation of the goods.
- Limitation of Liability. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES ARISING FROM OR CONNECTED WITH THE SALE, DELIVERY OR USE OF THE GOODS. This exclusion of liability for consequential, indirect or incidental damages includes, without limitation, liability for lost profits, loss of time, use of equipment or goodwill, business interruption, expenses incurred in replacing goods, damage to or replacement of equipment or property, and any other loss or damage of an economic nature. Our total liability with regard to any goods shall not exceed the amount that we are paid for those specific goods. This paragraph applies to all claims whether asserted under contract, tort, statute, or any other legal theory.
- Indemnification. In accepting the goods, you agree to defend (with counsel acceptable to us), indemnify and hold us harmless from any and all claims made by any third person to the extent arising out of or connected with (a) your breach of the Terms, (b) any negligent or more culpable act or omission (including recklessness or willful misconduct) by you or any of your contractors of any tier, agents or representatives, (c) use of the goods by you or any of your contractors of any tier, agents or representatives.
- Force Majeure. We shall not be liable, or deemed to have breached the Terms, for any failure or delay in delivering the goods or performing any other obligation with regard to them, when and to the extent such failure or delay results from any of the following (each a “force majeure event”): Act of God; flood, fire, explosion, or other disaster; adverse weather conditions; epidemic, pandemic, viral or bacterial outbreak; war, hostilities (whether war is declared or not), terrorist threats or acts, other civil unrest; governmental orders, laws; action by any governmental authority; shortage or unavailability of supplies; shortage or unavailability of labor; shortage or unavailability of adequate power, transportation or telecommunication facilities; and/or other events (whether or not similar to the previously listed events) beyond our control. We will notify you of a force majeure event as soon as practicable. During any force majeure event, we may allocate our inventory of available goods in a manner we determine is equitable.
- Suspension or Termination. We may terminate or suspend your orders under the Terms if you fail to pay any amount when due; have otherwise not performed or complied with any of the Terms; or become insolvent, file a petition for bankruptcy, or commence or have commenced against you proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. We will not be liable or responsible to you, nor be deemed to have defaulted or breached the Terms, for any termination or suspension of your orders in any of the circumstances described in this paragraph.
- Worksite Safety. If delivery of goods is to a worksite owned or controlled by you, you will be responsible for providing us or our shipper with reasonable access to the worksite, free from all hazards, and in compliance with all customary safety practices and all applicable laws, ordinances and regulations.
- General. All matters arising out of or relating to the Terms are governed by the laws of the State of Wisconsin, without giving effect to any choice or conflict of law provision or rule. You will not assign any of your rights or delegate any of your obligations under the Terms without our prior written consent. Any purported assignment or delegation in violation of this paragraph is null and void. No assignment or delegation relieves you of any of your obligations under the Terms. The failure by us to enforce any right or provision of the Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by our duly authorized representative. We may provide any notice to you under the Terms at any time by sending a message to the email address you provide us, which will be effective when we send the email. It is your responsibility to keep your email address current. If any provision of the Terms is deemed unenforceable, such provision shall be severed, and the remaining Terms shall remain in full force and effect.
Revised September 2022