- DEFINITIONS: “Agreement” means the Seller approved Purchase Order and Terms & Conditions of Sale as described below (“Seller Terms and Conditions”) when accepted and executed by Seller. “Buyer” means the party placing an order for Seller’s products. “Product(s)” means any components, items, replacement items or any other materials, and any part thereof supplied to Buyer pursuant to a Purchase Order. “Purchase Order” means any document designated by Seller as a “purchase order” or Seller-generated purchase document. “Seller” means WESCON CONTROLS LLC.
- TERMS AND CONDITIONS BINDING: The terms and conditions of any purchase of products from Seller are strictly limited to those set out below. Any attempt by Buyer to attach or insert additional, different or inconsistent terms and conditions of sale in its request for a quotation, acknowledgement or acceptance of a Purchase Order or otherwise, are rejected and will be void and of no effect. No changes or additions of any kind to the Seller Terms and Conditions and no purported waiver of any kind will be binding on Buyer unless agreed to in a writing signed by an authorized representative of Buyer.
- QUOTATION VALIDITY & SCOPE: Seller quotations are valid for 30 days. Prices are based on quantities specified within the quotation and any change to the quoted bill-of-materials may affect quoted prices and delivery commitments. Minimum lot charges for orders requiring non-standard parts or in minimal quantities are stated on the Purchase Order along with any price adjustment terms for Purchase Orders requiring deliveries over an extended period.
- PAYMENT: Payment must be made in United States dollars as a condition of shipment unless other terms of payment are set out on the Purchase Order.
- TAXES: Seller’s quoted prices do not include sales, use, excise or similar taxes or duties, which are payable by Buyer along with the price of the Product as a condition of shipment unless other payment terms are set out on the Purchase Order.
- SHIPMENTS: Prices quoted, unless otherwise stated on the Purchase Order, are Ex Works Seller’s facility (Incoterms 2010). Seller is not responsible for damage or loss in transit. The means and method of shipment will appear on the Purchase Order. If no shipping method is prescribed, Products will be shipped in Seller’s discretion with risk of loss and damage to Products passing to Buyer when the Products leave Seller’s dock. If partial shipments are permitted, Seller may invoice each shipment separately. All products must be inspected upon receipt and claims for transit damage (concealed or external) must be filed by the Buyer exclusively with the transportation company. Buyer will provide Seller with a copy of any claim for loss or damage in transit within ten (10) days after receipt of shipment, for Seller’s information only.
- PERFORMANCE: Seller’s quoted lead time is an estimate only, based on shop load and material leadtime at the time of quotation, and is not guaranteed. Seller will make reasonable efforts to make shipments as scheduled and may make partial shipments. Seller will not be liable to Buyer for any loss or delay attributable to acts of God or the public enemy, fires, floods, unusually severe weather, delays caused by governments (including government priorities, preferences or allocations), delays of suppliers in furnishing materials and services, work stoppage or labor slowdowns or other actions, and any other causes beyond Seller’s control. Overruns and shortages within the industry standard of plus or minus 10% of ordered quantity will be shipped and invoiced. Buyer will pay for the quantity of Products shipped within such range.
- WARRANTY: All Products are warranted to be free from defects in material and workmanship and to conform to Seller’s currently published specifications. Warranty rights will not apply if the Products are not paid for and properly installed, operated and maintained. The warranty period is one (1) year from the date of proper installation by the first user of the goods, or eighteen (18) months from the date of shipment by Seller, whichever occurs first. No warranty is given for Products or components manufactured by companies not affiliated by ownership with Seller, or for Products that have been subject to misuse or improper installation, or that have been modified or repaired by unauthorized persons. Written notice of defect must be received by Seller within the warranty period. Seller’s liability is limited, at Seller’s election, to servicing or adjusting any Product returned to Seller for that purpose, including replacing any defective Product. Buyer must pay packing, crating and transportation costs to and from the factory.
SELLER HEREBY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER ALSO DISCLAIMS ALL WARRANTIES REGARDING ANY ANCILLARY SERVICES PROVIDED TO BUYER.
- CANCELLATION: Orders placed with and accepted by Seller may not be modified or canceled, except with Seller’s written consent and provided that Buyer pays any cancellation charge. The cancellation charge must protect Seller against all costs and losses incurred by cancellation of the Purchase Order. Seller reserves the right to cancel any sale hereunder without liability to Buyer (except for refund of monies already paid for Products that have not been delivered pursuant hereto), if the manufacture or sale of the goods is or becomes technically or economically impractical.
- RETURNED PRODUCTS: No Product may be returned without prior written approval of Seller and issuance of a Return Goods Authorization (RGA) number. The authorized RGA number must appear on all forms accompanying all returns. Products that have not been authorized for return, or that do not bear the RGA number, may be refused at Seller’s discretion. If replacement is requested by the Buyer, the replacement part will be invoiced to the Buyer. Credit for the original parts will be issued against the original invoice based on the condition of the returned goods.
- GOVERNING LAW: The Agreement will be governed exclusively by the laws of the State of Kansas, excluding its rules pertaining to the conflicts of laws. Buyer will indemnify and hold Seller harmless from any damages or liability incurred by Buyer by reason of a violation of any applicable laws by the Buyer or by reason of the Buyer’s obligations under such laws.
- ARBITRATION: Any controversy or claim arising out of or relating to this Agreement or its performance or breach thereof, which cannot be resolved amicably, will be settled by arbitration. This agreement to submit to arbitrate will be specifically enforceable under the prevailing arbitration law. The award of the arbitrator shall be final, and a judgment may be entered upon it by any court having jurisdiction. A party desiring to invoke this arbitration provision will serve written notice upon the other party of its intention to do so. Within thirty (30) days of the date of such notice, each party shall serve upon the other the name of one impartial individual, knowledgeable in matters pertaining to the outdoor power equipment industry, to serve as an arbitrator.
- WAIVER OF BREACH: Seller reserves the right to waive any breach of these Seller’s Terms & Conditions of Sale by Buyer. Seller’s failure to assert any right is not a waiver of that right or any other right at a future time.
- PATENT INDEMNITY; CONFIDENTIAL INFORMATION: Buyer agrees to indemnity and hold Seller harmless for or against any and all loss, cost, liability, or expense resulting from or attributable to infringement or alleged infringement of patents or trademarks involved in the manufacture of any Product based upon a design or specifications provided by Buyer. Buyer hereby agrees that all drawings, prints and other technical material that Seller provides to Buyer contains data that embodies trade secrets and confidential know-how of commercial value to Seller or third parties under contract to Seller. Buyer agrees that it: (a) will keep such information confidential; (b) will not disclose such information to any other person, corporate division or entity; (c) will not use such information except in connection with the Products supplied hereunder; and (d) will not sell, lease, license, loan or permit any other person, corporate division or entity to use information for any purpose, without Seller’s prior written consent. Nothing herein will restrict the use of information available to the general public or pursuant to applicable laws.
- MODIFICATIONS: Waivers, alterations, or modifications of Seller’s Terms and Conditions will be binding on Seller only when agreed upon in writing by a duly authorized officer of Seller.
- NOTICES: All notices required to be given under this Agreement must be given in writing and will be effective when a record has been actually delivered, three days after it is deposited in the United States mail, first class, postage prepaid, addressed to the party to whom the notice is to be given at the address shown upon the Purchase Order, received by telecopy, or received through the internet verified with a delivery receipt. Any party may change its address for notices under this agreement by giving formal written notice to the other party, specifying that the purpose of the notice is to change the party’s address.
LIMITATION OF DAMAGES: IN NO EVENT WILL SELLER BE LIABLE, IN CONTRACT, TORT, STRICT LIABILITY, LAWS RELATING TO THE PROTECTION OF THE ENVIRONMENT, OR UNDER ANY OTHER LEGAL THEORY, FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SELLER WAS INFORMED ABOUT THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT WILL SELLER’S LIABILITY EXCEED AN AMOUNT EQUAL TO THE SALES PRICE OF THE PRODUCT THAT IS THE SUBJECT OF ANY CLAIM.