The lack of one or more signatures shall not prevent a valid and binding agreement from being formed between the parties.
Damaged Goods at the time of delivery
The Milky Whey, Inc. (also referred to as “Seller”) reserves the right to deny credit and or replacement for damaged goods if the following steps are not taken.
- If damage is present, clear pictures must be taken of the damaged Product while still on the truck, before being unloaded.
- Damage must be noted on the delivering bill of lading and signed by the consignee and driver.
- The Milky Whey, Inc. must be notified of any damage as soon as possible.
- Damaged product must be either rejected and sent away on the delivering truck or kept at the delivery location until the claim has been settled. Product must not be disposed of without written permission from The Milky Whey, Inc.
By entering into any agreement for the purchase or sale of any product with The Milky Whey, Inc. and/or TMW International, Inc., you understand and agree that you are subject to the specific and general jurisdiction of the courts of the State of Montana, and further understand and agree that should a dispute arise out of this or any other transaction with The Milky Whey, Inc. and/or TMW International, Inc., venue shall be limited to the Montana Fourth Judicial District Court, Missoula County, Montana, or the United States District Court for the District of Montana, Missoula Division. Your agreement to accept the jurisdiction of the courts of the State of Montana shall be deemed consideration for the aforementioned business transaction, shall be irrevocable, and shall apply even if the product sold or purchased is never located within the borders of the State of Montana. The prevailing party in any legal action shall be entitled to recovery of legal fees and costs.
Delays / Force Majeure
Any delivery date for the goods acknowledged by Seller is a desired and not a promised date. Seller will make commercially reasonable efforts to meet the delivery schedules but shall not be liable for failure to do so. Seller shall not be liable for any damage to or loss of the goods or any delay in or failure to deliver, service, repair or replace the goods arising from shortage of raw materials, failure of suppliers to make timely delivery, labor difficulties of any kind, fire, windstorm, flood, theft, war, embargoes, criminal or terrorist acts, governmental acts or rulings, loss or damage or delays in carriage, failure or disruption of communication facilities, acts of God, or any other circumstances reasonably beyond Seller’s control. Seller may allocate production where shortages exist due to a force majeure event to its customers in any manner Seller deems reasonable, including, but not limited to, proportionately, chronologically, or based on proximity or efficiencies in production or fulfillment. Goods stored at the request of Customer or because Customer refuses or delays shipment shall be at the risk and expense of Customer.
Limitation of Liability
Seller shall not be liable whether in contract, in tort, under any warranty, in negligence, or otherwise, for consequential, special or incidental damages, including transportation costs, lost profits, or lost revenues or any diminishment in value caused by such damages. Under no circumstance shall Seller´s liability or Customer´s remedy for damages against Seller exceed the amount of the purchase price of Seller´s goods described on this order. Failure of Customer to give prompt notice shall bar Customer from any remedy against Seller. In no event shall any cause of action arising out of the order or concerning the goods themselves be brought by Customer more than thirteen months after the date of Seller´s delivery of the goods into the hands of a carrier for shipment. Customer´s limited warranty of repair or replacement or return of the purchase price are Customer´s sole and exclusive remedies.
The Milky Whey, Inc. makes the following limited warranties to Customer concerning the product.
- Unless otherwise noted, at the time of delivery to Customer, F.O.B. pickup location, Product will substantially and materially conform to the producer´s specifications.
- The limited warranties shall be void if, promptly upon receipt and prior to use or resale, Product is not inspected, sampled and tested by Customer for compliance with the applicable terms and specification; if Customer or Customer´s agents do not store and handle the Products properly and in accordance with the producer´s specifications; or if any breach of warranty is caused by Customer, Customer´s agents, or any person other than The Milky Whey, Inc. The above limited warranties do not extend to any consumer under federal law or to any person other than Customer.
Exclusion of Warranties
There are no warranties which extend beyond these terms. The limited warranties section in lieu of any and all other warranties, express or implied. The Milky Whey Inc. excludes any warranties other than those set forth above, including but not limited to any implied warranties of merchantability, suitability and fitness for a particular purpose.