Terms and Conditions of Sale
Terms and Conditions of Sale
1. Terms and Conditions
These terms and conditions shall apply to all orders or transactions entered into by and between the buyer (“Buyer”) and Wisconsin Oven Corporation (“WOC”). WOC will accept orders, sell Products (defined below), and do business only on these terms and conditions. These terms and conditions, and the terms and conditions within any WOC quotation accepted by Buyer, whether in writing or electronically, shall be collectively referred to hereinafter as the “Agreement.” As used herein, “Products” shall mean all items being sold by WOC to Buyer, whether materials, products to be manufactured or delivered, services to be rendered or any combination thereof. WOC’s acceptance of Buyer's order is expressly conditioned on Buyer's unqualified acceptance of the Agreement. Buyer, upon placing an order for the purchase of Products shall be deemed to have accepted all the terms and conditions of the Agreement without modification. Unless otherwise agreed to in a writing signed by WOC, any terms or conditions contained in any Buyer purchase order, or other form, or correspondence that purports to add to or is in any way inconsistent with the Agreement shall be inapplicable and of no force or effect whatsoever.
Unless otherwise stipulated, all prices stated in WOC’s quotations shall be effective only for orders placed within thirty (30) days from the date of such quotation and orders shipped within one hundred eighty (180) days from the date of such quotation. Thereafter, the price for Products sold hereunder shall be WOC’s price in effect as of the date of shipment.
Sales and use taxes that are presently, or may hereafter be, imposed by any taxing authority, shall be payable by Buyer, and are not included in any quoted sales price; any direct or excise tax which may hereafter be imposed by any taxing authority upon the manufacture, sale or delivery of articles covered herein, or any increase in rate of any such tax now in force, shall be added to the purchase price of the Products sold hereunder, and shall be paid by Buyer in a timely manner. If not collected at the time of payment of sale price, Buyer will hold WOC harmless and indemnify WOC from any and all costs, fees or expenses associated with same.
Payment of each invoice shall be due, without deduction or setoff, as stated within the proposal and on the invoice. Interest at the maximum rate permissible under applicable law will be added to all amounts outstanding more than thirty (30) days. If Buyer fails to pay WOC according to terms, it will be considered a material breach of the Agreement and WOC may, in addition to any other remedies available to it under the law, immediately cancel the Agreement and/or charge interest on the balance outstanding at the maximum legally allowable rate until the outstanding amount is paid in full. Buyer agrees to pay all of WOC’s costs of collecting any outstanding balances, including attorney fees, court costs and filing fees.
5. Time of Delivery
WOC shall use commercially reasonable efforts to fill Buyer’s order within the time stated but in no event shall WOC be liable for any damages associated with WOC’s inability to meet any such timeframes or deadlines.
The Products shall be shipped F.O.B. WOC’s plant, and risk of loss and title to Products shall pass to Buyer upon delivery of the Products to the carrier for shipment unless otherwise agreed to in writing or as stated otherwise within the Agreement.
Buyer may not assign any of its rights, duties or obligations under the Agreement without WOC’s prior written consent.
WOC may make any change in design to, or in the way it manufactures or produces, any Product if, in WOC’s sole judgment, such changes are necessary or desirable to improve the safety or performance of such Product. Buyer is solely responsible for communicating in writing the state, local or in-plant specifications (including, without limitation, AGA, CSA, CGA, CE, UL, AQMD, ETL or others) for any Product ordered hereunder.
Buyer may not cancel orders placed with WOC, except with WOC’s written consent and then only if Buyer makes payment to WOC to indemnify it against all loss and damage incurred by WOC on account of such cancellation. Additionally, if any order for any Product or Products hereunder is cancelled by Buyer without WOC’s prior written consent, within 60 days of the scheduled completion date for such Product or Products, Buyer shall be liable to WOC for a cancellation charge equal to the percentage of completion of the project (based on WOC’s calculation) multiplied by the selling price of such Product or Products.
Buyer shall inspect all Products within ten (10) days after receipt thereof and shall notify WOC of any rejection of such Products within such ten (10) day period, after which Buyer shall be deemed to have accepted such Products.
11. Security Interest
Buyer hereby grants to WOC and WOC hereby retains a security interest in all Products sold hereunder and all accessories and additions thereto, whether presently upon Buyer's premises or hereafter acquired, and all proceeds from the sale or other disposition of the foregoing. Buyer hereby authorizes WOC and its agents to file any financing statements and other documents necessary to create, perfect and maintain the perfection of the security interest granted hereunder.
Buyer shall defend, indemnify and hold WOC and its officers, directors, shareholders, affiliated companies, employees, agents and representatives harmless against any claims, losses, damages, liabilities or expenses (including, without limitation, reasonable attorneys’ fees and other costs and expenses of litigation) resulting from or otherwise connected with any of the following:
- Bodily injury, death or property damage caused by Buyer’s or its agents’ acts or omissions with respect to the Products.
- Any design, specification, material or component supplied or approved by Buyer for the design and manufacture of the Product.
13. Limited Warranty
WOC warrants to Buyer that, at the time of shipment, the Products shall conform to the written specifications approved by WOC for such Products and, for the twelve (12) months (or as stated otherwise within the proposal) following shipment, shall be free from defects in material and workmanship. Buyer must give written notice to WOC of any suspected defect in the Products within the above-described ten (10) day inspection period. WOC shall, in its sole discretion, determine whether any Product sold hereunder requires service by WOC under this warranty and, based on such determination, may provide such service at the original point of delivery for such Product or at WOC’s plant. For the purposes determinations to be made under the immediately preceding sentence, Buyer will afford WOC a reasonable opportunity to inspect such Product or Products. Replacement parts will be provided F.O.B. WOC’s plant. Buyer must also obtain a return authorization from WOC prior to returning any Products to WOC. If such return authorization is not obtained, Buyer shall be responsible for all costs and expenses associated with returning the Products to WOC.
THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. ANY AND ALL OTHER EXPRESS, STATUTORY OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED. NO WARRANTY IS MADE WHICH EXTENDS BEYOND THAT WHICH IS EXPRESSLY CONTAINED HEREIN.
14. Limitation of Liability
THE REMEDIES OF BUYER SET FORTH HEREIN ARE EXCLUSIVE AND, IN ANY EVENT, THE TOTAL AGGREGATE LIABILITY OF WOC WITH RESPECT TO ANY CLAIMS UNDER THE AGREEMENT OR REGARDING THE EQUIPMENT, SERVICES, WORK, SPARE OR REPLACEMENT PARTS AND SERVICES INCIDENTAL THERETO AS FURNISHED HEREUNDER, WHETHER BASED IN CONTRACT, INDEMNITY, TORT, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE PRICE PAID FOR THE PRODUCTS UPON WHICH ANY SUCH CLAIM IS BASED. IN NO EVENT SHALL WOC BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES ARISING FROM ANY CAUSE WHATSOEVER, WHETHER BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER THEORY OF LIABILITY.
15. Intellectual Property Rights
WOC shall retain all intellectual property rights in and to the Products, including, without limitation, any rights under patents as well as any unpatented information such as trade secrets, confidential information, trademarks, trade dress or copyrights. Nothing in the Agreement shall be deemed or construed to be a transfer or license of any of WOC’s intellectual property. Buyer shall obtain rights to such intellectual property only to the extent that WOC may grant such rights in writing.
16. Force Majeure
WOC shall not be liable for any delay in the performance of the Agreement by reason of strike, shortage, riot, insurrection, fire, flood, storm, explosion, earthquake, telecommunications outage, act of God, war, act of terrorism, governmental action or any other cause which is beyond the reasonable control of WOC. In the event of any such delay, WOC’s performance hereunder shall be postponed by such length of time as may be reasonably necessary to compensate for the delay.
If any court of competent jurisdiction determines that any provision of the Agreement is invalid or unenforceable, then such invalidity or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and in full force and effect, and such invalid or unenforceable provision shall be construed in a manner so as to give the maximum valid and enforceable effect to the intent of the parties expressed in the Agreement.
Each of the rights and remedies of WOC under the Agreement is cumulative and in addition to any other or further remedies provided under the Agreement or at law or equity.
19. Limitation of Actions
Any action by Buyer for any loss or damage with respect to the Agreement shall be commenced within two (2) years from the date of shipment of the Products, or such claim shall be forever barred.
20. Choice of Forum
The rights of all parties hereunder and the construction of every provision hereof shall be governed by the laws of the State of Wisconsin, without giving effect to principles of conflicts of law. The parties agree that any action arising out of the Agreement or in connection with the goods covered hereunder shall be brought in the federal, state or local court located in or otherwise having jurisdiction over Walworth County in the State of Wisconsin and the parties hereby consent to personal jurisdiction in such courts and waive any objection based on jurisdiction or venue of any such action.