WBC Standard Terms and Conditions of Sale
1. INTRODUCTION GOVERNING PROVISIONS REJECTION OF PURCHASE ORDERS
WBC
Industries, Inc. “WBC or seller” is a manufacturer and distributor of hook and
loop, webbing, and strapping material, and plastic and metal hardware and other
closure devices. WBC Industries, Inc.
products are generally incorporated into other products manufactured and or
sold by purchasers of WBC’s products from WBC or WBC’s distributors. These standard terms and conditions “terms”
are applicable to purchasers from WBC “customers” and sales are made by WBC
only on these terms. The provisions of
any purchase order or other offer to purchase from WBC and/or any other terms
or conditions, submitted in any manner by a customer at any time prior to
and/or during the purchasing process are HEREBY
REJECTED and these terms are proposed as a counter offer.
2.
TAXES AND OTHER CHARGES. The amount of any present or future
transfer, sale, revenue, excise, customs, or other duties or taxes, or any
other charges imposed on or measured by any transaction between customer and
seller shall be “or if itemized on the acknowledgment and or invoice will have
been” added to the price quoted or invoice and shall be paid by customer unless
customer has provided seller with an acceptable tax exemption certificate. All orders that have a sub-total of less than
$50.00 will be subject to a $10.00 handling fee.
3.
PAYMENTS AND DEFAULT. Customer shall pay the net price and
any other shipping or other charges in full on the terms set forth in the acknowledgment and or invoice. If customer
fails to so pay, customer shall pay late charges on overdue balance at the rate
of one and one half (1.5%) % per month and all costs of collection including
attorney’s fees incurred by seller. In
the event of customer’s default or insolvency proceedings, seller may
discontinue shipment and require payment in advance. In such circumstances seller may, at ]customers
expense, repossess all goods which may be stored with seller or in transit for
customers account, without the necessity of taking any other proceedings, or
after such proceedings as may be required by law; customer acknowledging that
all goods so repossessed shall be the property of seller. Terms of payment if and when approved and if
and when applied are pre-payment via ACH Wire Transfer, pre-payment via major
credit card including and not limited to Visa, MasterCard, Discover, and
American Express. When approved, Net 30
Terms may be offered. All approved Net
30 Term invoices must be paid within the 30-day period. If invoices with Net 30 Terms are left
unpaid, they are subject to Term Revocation and or when left unpaid, agreed
upon credit card will be charged for the total invoice including a 4% finance
fee.
4.
SHIPMENT If goods are to be shipped by seller
prices are exclusive of the costs thereof; and unless different terms are
stated by seller on the acknowledgment and or invoice, all prices are F.O.B. seller’s
place of business. Method and route of
shipment will be at the discretion of seller unless otherwise stated on the
purchase order or discussed between seller and receiver at the time of
sale. All shipments shall be at
customers risk and will be insured via preferred carrier and transit method for
all purchases with a value of $100.00+ dollars unless otherwise stated by
customer in writing. Customers may
choose to use their own account number when shipping via UPS (all offered
services), FedEx (all offered services), DHL (all offered services) or
LTL/Truckload Bill Collect. Should the
receiver or third party receiver not update WBC Industries regarding the status
of their freight collect account, the ship to address, or changes to the
account information, WBC reserves the right to charge back and/or submit
invoice for reimbursement for all related charges including but not limited to:
shipping cost, charge-back fees, address correction fee’s,. etc. to the account
holder and or shipper to cover the cost of the fees related to the charges that
were billed to the shipper (“WBC Industries, Inc., WBC Industries, WBC”). All
goods shall be paid for regardless of any claim relating to other delivered or
undelivered goods and shipment of goods in an amount within a range of 10% more
or less, than the quantity set forth in the acknowledgment or invoice shall be
deemed full satisfaction of delivery of such quantities.
5.
DELAYS AND LIMITATIONS All sales and shipments to be made
are subject to: sellers ability to obtain any necessary materials components
machinery or parts and or the goods to be sold; sellers current production
schedules; governmental priorities; and other governmental lawn, regulations,
orders, ordinances, and restrictions; strikes, lockouts, and shortages of
labor, acts of God and the elements; and any other causes of delay in
production and or shipment beyond sellers control. Seller shall attempt to meet any completion
and or shipment date that is provided to the purchaser in writing by WBC, but
in no event shall seller otherwise be liable for failure to produce, ship or
deliver by such date, and time shall not be of the essence in respect thereto;
nor shall the seller be liable to customer or any third party for indirect or
consequential damages due to delays in the production, completion, shipment or
delivery of goods whether or not due to causes within sellers control. Delivery schedules (even under blanket
purchase orders) shall be subject to reasonable production scheduling by
seller; prorated reasonably over any applicable period of time; and goods not
called out for delivery within any such period shall be invoiced to and paid
for by customer at the end of the period; and in no event shall seller be
obligated to maintain prices if customer fails to meet the requirements of
these terms or of an acknowledgment.
6.
TESTING METHODS. QUALITY CONTROL Goods sold to customers may
have been subject to random testing for compliance with specifications, samples
and or as to load bearing strengths.
Customer acknowledges the random nature of such testing and that goods not
tested may not meet quality control standards.
Customer acknowledges that it would be impractical for seller to expand
such testing in light of the prices for the goods and that such prices are
considered for such limitation of such testing methods and liability
thereof. Test results provided to
customer do not constitute a guarantee as to quality control or as to suitable
of the goods for any particular use.
Disclaimers contained in test results provided to customer are
incorporated herein by reference although seller may offer its advice to
customer as to use applicably, customer agrees that it is solely responsible
for the specifications of the goods and the suitability of the application and
use of the goods by customers or any other party.
7.
SELLERS WARRANTIES AND CLAIMS Seller warrants only that the goods
shall be free from defects and that the material and workmanship and shall
substantially conform at the time of delivery.
A. either to description of the goods contained on acknowledgment and or
invoice or to any samples of the goods provided by seller to customer and B. to
any written specifications of seller or specifications supplied by customer and
expressly agreed to buy seller in writing subject to section 6 above as to
quality control which warranty shall continue in effect only for a period of 30
days of shipment by seller. ALL
OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, ARISING BY OPERATION OF LAW,
COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE, ARE DISCLAIMED AND EXCLUDED;
ALL IMPLIED WARANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE
ARE DISCLAIMED AND EXCLUDED; AND ALL IMPLIED WARRANTIES AGAINST INFRINGEMENT OF
ANY UNITED STATES OR FOREIGN PATENT, TRADEMARK, COPYRIGHT, TRADE NAME OR
SIMILAR COMMON OR CIVIL LAW RIGHT ARE DISCLAIMED AND EXCLUDED. Any claim for breach of warranty must be
submitted to seller prior to acceptance of goods as set forth in section 8
below or it shall be waived; and any claim of defect in material or workmanship
must be made in writing as set forth by section 8 within the warranty
period. In the event of a breech by
seller of the above expressed warranty the liability of seller for such breech
shall be limited to the repair or replacement of the defective goods or the
issuance of a credit to customer for the price of the defective goods that may
only be applied to a future order. Seller shall have no other obligation or
liability of any kind, and it is agreed that the price stated for the goods is
consideration for the limitation of sellers liability for a breach of the above
express warranty in no case shall seller be liable for the value or cost of any
property including, without limitation, any property or merchandise in to which
the goods are incorporated or installed, or any special, incidental or
consequential damages based upon breech of any warranty, breach of contract,
negligence, strict tort or any other legal theory including, without
limitation, loss of profits, loss of savings or revenue, loss of use of goods,
cost of capital, cost of any substitute goods, downtime, or the claims of any
third party, including purchasers from customers and end users for personal
injury, death and damage to property. In
the case of goods which are manufactured to specifications of customer, sellers
warranty as set forth above shall not be expanded nor shall sellers liability
be other than as so provided due to the fact that the seller has participated
in any way in the determination of the specifications for the goods, and, in
any event, sellers awareness of the use to which any goods are to be put shall
not expand its liability as limited herein; as in the cases of third party
specifications, utilization of goods for any particular purpose or as
components of other goods. IT IS THE
RESPONSIBILITY OF CUSTOMER TO TEST THE GOODS FOR EACH APPLICATION. Any legal action for breach of warranty must
be commenced within 12 months following delivery of goods. THESE REMEDIES CONSTITUTE CUSTOMERS
EXCLIUSIVE REMEDIES AGAINST SELLER FOR BREACH OF WARRANTY OR ANY OTHER CLAIM
WITH RESPCT TO THE GOODS.
8.
INSPECTION & RETURNS Customer agrees that it will have
five (5) business days from the date of receipt of goods to inspect, same for
defects and that such period is a reasonable amount of time to conduct such
inspection. If customer does not notify seller of any such defects with in such
period than the goods shall be deemed to have been accepted by customer and
seller shall be deemed to have performed all of its obligations hereunder;
goods may not be returned for any reason other than breach of warranty stated
above, and, if so returnable, may be returned only under these conditions. Prior to returning any goods, customer shall
obtain written authorization by submitting to seller a written request for
authorization, a detailed statement of its claim, and a sample of the goods
which customer claims do not conform to the express warranty hereunder. If return is authorized, customer shall receive
written authorization or a return label; as goods returned without a written
authorization or return label will be refused.
All costs of returning goods must be prepaid by customer; seller shall
refuse goods shipped collect and reserves the right to charge back and set off
all transportation costs. Authorization
for return does not imply acceptance for credit for all of part of the returned
goods, but rather indicates sellers willingness to inspect the goods in
question upon authorized return, seller will conduct such inspection and
determine disposition of returned goods along with any defective goods still
being held by customer. Returned goods
found by seller not to involve a breach of the above warranty may be subject to
reasonable handling charges. All
transportation costs for the re-shipment of returned goods to customer and for
the shipment of replacement goods, if any, shall be the responsibility of
customer. Risk of loss in transit for
goods returned to seller shall be upon customer, and if any replacement goods
are shipped to customer shall be insured, if at all, solely at customers
expense, and, unless otherwise requested in writing by customer, seller shall,
in its sole discretion determine whether, under what terms, and for what amounts,
such shipments shall be insured, and shall make arrangements accordingly. In
the event customer would like to return goods for reason including but not
limited to: incorrect product ordered, no longer required, does not work for
application, etc., customer must contact seller within a 30 day period to
request return authorization. All
returns will be need to be reviewed and approved. All approved returns for
other than breach of warranty will be subject a minimum re-stock fee of
20%. This percentage of re-stocking fee
is subject to change based on the nature of the product and nature of the
return.
9.
ASSUMPTION OF RISK The terms and the counter offer
contained herein are for only the sale of the goods and no bailment of any kind
is intended or created, either expressed or implied in respect to any property
delivered to seller. Any property left
by customer or any other party with seller or delivered to seller by customer
or any other party is at the sole risk of the customer and or the owner thereof
and seller will not be liable for any loss of or damage to said property under
any circumstances including, but not limited to, fire, theft, or vandalism, and
any negligence, gross negligence or omissions of seller and not withstanding
any asserted or actual breach by seller.
Customer shall indemnify and hold seller harmless from and against any
and all claims of or liability for damages, costs, losses and expenses,
including attorney’s fees incurred by seller arising from any and all liability
or any claim, action, or suit brought or alleged by any party in respect to any
such loss of or damage to such property.
10.
TECHNICAL DATA Technical data, including but not
limited to, specifications, formulae, know how, techniques, drawings,
estimates, tests and test results, quotations, illustrations, bulletins,
literature and other papers and documents, if any, in print or electronic for
(“technical data”), shall remain sellers property. Seller reserves all proprietary and authorship
rights in the technical data and in the goods, which may not be copied,
reproduced, transmitted or communicated to any third party without sellers
consent except to customers, employees who are required to use the technical
data as part of their duties.
11.
INDEMNIFICATION If seller manufactures goods to
customers specifications; or if customer or its customers incorporate sellers
goods in any other goods; or if sellers goods are modified or altered in anyway
by any party; or if any party misuses, misapplies, damages or is guilty of
negligence in relation to the goods, then customer agrees to hold seller
harmless and indemnify it against any loss, cost, damages or liability paid or
incurred by seller; (a) from third party claims for personal injuries or
property damage, whether direct or indirect, actual or alleged, consequential
or otherwise, notwithstanding any actual or alleged defect or hazard inherent
in the goods or negligence of seller, its agents, employees, or sub-contractors;
or (b) resulting from any recall, inspection, testing, replacement or
correction of the goods, whether required by government authority or otherwise;
or (c) resulting from the violation of any law, regulation, rule, order or
restriction of any governmental authority resulting from or incident to the
goods; or (d) resulting from any actual or alleged infringement of any United
States or foreign patent, copyright or similar common or civil law right of a
third party resulting from or incident to the goods; and any costs of defense,
attorney’s fees, inspectors fees, and or costs of testing incurred by seller
incident to any of the foregoing’s.
12.
DISTRIBUTORS; THIRD PARTY PURCHASERS Without limiting the generality of
section 11 above, in the event that customer is a distributor of seller
products or otherwise sells or delivers sellers goods to any other party (“a
third party purchaser”) then customer shall (a) deliver to such third party
purchaser a copy of these terms and of all written specifications and test
results which seller shall have provided to customer in respect to subject
goods, including all disclaimers and limitations of liability, all of which
shall be applicable to such third party purchasers; (b) not alter in anyway
sellers specifications, test results, disclaimers, and limitations of liability;
and (c) hold seller harmless and indemnify it against any loss, cost, damages
or liability , paid or incurred by seller arising from or related to customers
failure to comply with this section 12 including attorney’s fees incurred by seller.
13.
CANCELLATION, SUSPENSION, OR
MODIFCATION BY CUSTOMER Orders from a customer whether submitted via purchase order, verbal,
fax, email, third party, online submission, text message or any other
electronic method may not be cancelled,
suspended, or modified.
14.
CUMULATIVE RIGHTS AND REMEDIES OF
SELLER. These terms
shall be binding upon and inure to the benefit, as appropriate, of seller and customer as well as their respective successors
and assigns all rights of and remedies available to seller hereunder shall be
cumulative and in addition to all rights and remedies available to seller under
all applicable laws including, without limitation, the uniform commercial code
as in effect in New Jersey no waiver of any right or remedy available to seller
in any instance shall constitute a waiver of any right or remedy subsequently.
15.
APPLICABLE LAW Transactions between seller and
customer shall be governed by the laws of the state of New Jersey and shall be
considered contracts made in that state.
Customer may bring suit against seller only in said state and for
purposes of suit by seller against customer, submits itself to the jurisdiction
of that state.
16.
ARBITRATION At seller’s sole election, all
claims, disputes, demands and controversy arising under, out of, in connection
with or in relation to transactions between seller and customer and contracts
between them may be submitted to and be determined by arbitration in the state
of New Jersey in accordance with the rules of the American Arbitration
Associated then in effect.