Terms and Conditions
These Terms and Conditions of Sale govern the sale of goods by Wisco Supply, Inc, with offices located at 815 St. Vrain St., El Paso, TX (“Seller”) to any Buyer and have an Effective Date equal to the Invoice Date for each sale.
These Terms and Conditions, the attendant invoice, and all documents incorporated by reference therein (the “Agreement”) bind Seller, who issued an invoice for the sale of goods (“Goods”), to be provided pursuant to the terms set forth herein and constitute the entire agreement (“Agreement”) between Buyer and Seller regarding the sale and any related services provided by Seller (“Services”). Seller will provide Goods and Services to Buyer in accordance with these Terms and Conditions.
By placing an order, the Buyer expressly agrees to these Terms and Conditions and further understands that the Seller is only agreeing to provide the Goods and Services at the prices stated in the Invoice based on the Terms and Conditions contained herein.
These Terms and Conditions supersede all previous terms and conditions, understandings, quotations, communications, and purchase orders entered into between the Seller and the Buyer, whether oral or written and shall govern all transactions concerning Goods and Services between the Buyer and Seller. Any contrary terms and conditions issued by Buyer in any form whatsoever are expressly rejected by Seller.
A. TERMS OF PAYMENT: Subject to the approval of the Seller’s credit department, terms are net due upon invoice issued by Seller to Buyer. If any payment owed to Seller hereunder is not paid when due, it shall bear interest, at a rate to be determined by Seller, which shall not exceed the maximum rate permitted by law from the date of which it is due until it is paid. Seller shall have the right, among other remedies including repossession of equipment, either to terminate the Agreement or to suspend further deliveries under this and/or other agreements with Buyer in the event Buyer fails to make any payments hereunder when due. Buyer shall be liable for all expenses attendant to the collection of past due amounts, including attorney fees.
B. PRICES: Unless otherwise specified by Seller and subject to Paragraph I below, Seller’s prices for the applicable Goods and Services shall remain in effect for fifteen (15) days after the date of Seller’s quotation or invoicing of the order for the Goods and Services, whichever occurs first, provided that an unconditional, complete authorization for the immediate manufacture and shipment of the Goods and performance of Services pursuant to Seller’s standard order-processing procedures is received and accepted by Seller within the time period. If such authorization is not received by Seller within such fifteen (15) day period, Seller shall have the right to change the prices to the Seller’s prices in effect at the time the order is released for final manufacture of Goods or performance of the Services. Notwithstanding any of the foregoing to the contrary, the price for the Goods, or components of Goods sold by the Seller, but manufactured by others or not included within the quotation, shall be Seller’s price in effect at the time of notice of shipment to the Buyer.
C. ACCEPTANCE, INSPECTION, AND DELIVERY: Acceptance shall occur the later of Buyer’s written acceptance of Seller’s quotation or Seller’s written acceptance of the order. All notice of intent to ship and performance dates are approximate and are based upon Seller’s prompt receipt of all necessary information from Buyer to properly process and perform the order. Seller shall provide Buyer with the Goods and Services together with such data and documentation which is specifically identified in the quotation.
D. EXCUSED PERFORMANCE: Seller shall not be liable for delays in performance or for non-performance arising from delays or changes to the order proposed by Buyer or Buyer’s contractors or customers, acts of God, war, riot, fire, labor trouble, unavailability of material or components, explosion, accident, compliance with governmental requests, laws, regulations, orders actions, or unforeseen circumstances or causes beyond Seller’s reasonable control.
E. TERMINATION AND SUSPENSION BY BUYER: Prior to delivery, Buyer may terminate or suspend its order for any or all of the Goods and Services covered by the Agreement provided that Buyer gives Seller reasonable advance written notice of such termination or suspension. In case of such termination, Seller shall be entitled to recover from Buyer the net amount equal to: (1) actual costs incurred by the Seller including, but not limited to, the purchase of materials, equipment, and services to be used in the Goods, storage fees, disposition costs, preservation costs, and costs for Goods already in production; plus (2) all labor costs incurred by the Seller including but not limited to, engineering, design, purchasing, fabricating, manufacturing, and project management of the Goods, to be determined using the Seller’s standard, fully burdened rates (which shall include general and administrative costs, but which shall not include any profit); plus (3) reasonable costs incurred by the Seller to cancel any orders for materials and equipment to be used in the Goods; plus (4) fifteen percent (15%) of the total of items (1) through (3) above to account for the Seller’s profit; minus (5) the net salvage value of any materials and equipment purchased by the Seller to be used in the Goods after subtracting the Seller’s reasonable costs to salvage such materials and equipment.
F. LIMITED WARRANTY: Seller warrants that Goods provided by Seller hereunder will be free from defect in material or workmanship under normal use and service for the period contained in any applicable manufacturer’s warranty. Seller further warrants that Services provided by Seller hereunder will be performed in a workmanlike manner free from defects in workmanship for a period of six (6) months from the date of performance.
Seller agrees to repair or replace, at its sole option, any Goods or components of Goods which prove to be defective within the applicable warranty period, and to correct any defect in Services discovered by Buyer within the applicable warranty period. Buyer shall promptly notify Seller in writing of any defect in the Goods found during the warranty period, and Seller shall have the right to make an investigation of the reported defect before corrective action is undertaken. Seller shall have the option to repair, replace or correct any defect in the field or at its facilities. Buyer shall provide Seller access to a defect in the Goods in order to repair, replace, or correct same. Seller’s warranty excludes expedited shipping costs and removal or installation costs associated with repairing or replacing the defective Goods. THIS WARRANTY IS EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
In the event Seller purchases or procured third-party products, equipment, or services in connection with this Agreement, Buyer acknowledges and agrees to the warranties provided by such third party, if any, shall be in lieu of the foregoing warranties of Seller. Seller shall pass through or assign to the Purchaser the rights Seller obtains from the manufacturers and/or vendors of such products and services. Seller shall take reasonable action requested by Buyer to assist in enforcing such warranties, but Seller does not have independent liability therefore. Parts purchased from Seller that are unused and unopened may be able to be returned depending upon the situation, and part as Seller may determine. A restocking fee may apply.
G. LIMITATION OF REMEDY AND LIABILITY: NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER ANY CIRCUMSTANCES FOR CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, USE, REVENUE, OPPORTUNITIES, ANTICIPATED PROFITS, OR COST OF CAPITAL) OR PUNITIVE DAMAGES. Seller’s warranty and obligations hereunder do not extend or apply to: (1) Goods which are functioning within Seller’s published specification; (2) Goods which are selected, designed or assembled in reliance upon information supplied by Buyer that varies from the use or conditions represented or otherwise described by Buyer; (3) Goods installed or serviced by other than an authorized representative of Seller; (4) damages arising when the Goods are combined or used with items not supplied by Seller; (5) failure to operate or maintain the Goods according to the operator’s manual; or (6) Goods subjected to misuse, use for unforeseeable purposes, abuse or alteration. Notwithstanding any other provision hereof to the contrary, Seller’s total, cumulative liability arising out of or related to the performance or nonperformance of this Agreement shall be limited to the amount of the applicable Agreement price, and Buyer shall hold harmless and indemnify Seller from and against all liability in excess of such limitation. Seller shall not be liable for damages caused by excused delays in performance.
H. INSTALLATION: Buyer shall be responsible for receiving, storing, installing, starting up, and maintaining all Goods unless Services to assist Buyer in these functions have been agreed upon.
I. TAXES: Seller may charge, and Buyer will pay all applicable federal, state, or local sales or use taxes or value-added taxes that Seller is legally obligated to pay on the Goods in effect on the date of the Seller’s quotation. Any current, new, or increased tax, tariff or governmental charge or tax or tariff increasing the cost to Seller of producing, selling, or delivering the Goods or of procuring material used therein, or payable by the Seller because of the manufacture, sale, or delivery of the Goods, may at Seller’s option, be added to the price herein specified.
J. OWNERSHIP AND USE OF INFORMATION: Each party agrees to keep the other party’s confidential and proprietary information and trade secrets, in whatever form received by such party, confidential, with authorized disclosure and use limited to compliance with applicable laws and regulations and to fulfill the purposes set forth in this Agreement. Seller retains all rights, title, and interests, including all intellectual property rights, in the ownership and use of the design, manufacture, and fabrication of the Goods and grants to Buyer a perpetual, non-exclusive, royalty-free right and license to use the Goods for the purposes specified or reasonably foreseeable. This license and right of use do not extend to modification or unauthorized use of the Goods, including use with goods and or software not supplied by Seller, and Buyer shall hold harmless and indemnify Seller from and against all liability arising from modification or unauthorized use of the Goods.
K. MUTUAL INDEMNIFICATION: To the fullest extent permitted by law, each party hereby agrees to indemnify and hold harmless the other and its directors, officers, and employees (“Indemnified Parties”), from and against any claims or any loss, damage, settlement, cost, expense and any other liability (including but not limited to reasonable attorneys’ fees) (collectively, “Claims”), provided that such Claim is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the work itself), but only to the extent arising from any negligent act or omission by the party. However, the foregoing does not apply to the extent such Claims result from the other party’s negligence. In connection with any action by a party to enforce its obligations under this Section with respect to any Claim arising out of any bodily injury (including death) to any person directly or indirectly employed by the party, the party waives any immunity, defense or protection under any workers’ compensation, industrial insurance or similar laws and assumes liability for such Claim. This paragraph will not be interpreted or construed as a waiver of the party’s right to assert any such immunity, defense, or protection directly against any of its own employees or such employee’s estate or other representatives.
L . GENERAL PROVISIONS: Neither party shall assign its rights or obligations under the Agreement without the other party’s prior written consent. Any attempt to assign in violation of this section is void in each instance. There are no understandings, agreements or representation, express or implied, not specified in the Agreement. No action, regardless of form, arising out of transactions under the Agreement may be brought by either party more than two years after the cause of action has accrued, and the parties agree to first undertake informal good-faith negotiations to resolve any disputes or claims. Any change to an order or modification of these Terms and Conditions must be set forth in a written instrument signed by a duly authorized representative of Seller. The Agreement shall be construed, performed, and enforced under the laws of the State of Texas, excluding its conflicts of laws rules. The parties irrevocably submit to the venue and exclusive personal jurisdiction in the federal and state courts of Texas for any dispute arising out of this Agreement and waive all objections to jurisdiction and venue of such courts. There are no third-party beneficiaries to the Agreement.
M. ON-SITE SERVICES: If Seller provides Services on Buyer’s premises (the “Site”), Seller will abide by all Buyer’s rules, policies, and procedures regarding such matters as safety, security, health, environmental and hazardous materials management, misconduct, and harassment while on the Site. If Seller provides on-Site services, Seller shall have no responsibility for the discovery, handling, removal, disposal, or exposure of persons to hazardous materials, unless and then only to the extent such hazardous materials are introduced by Seller to the Site.
N. CHANGES: Buyer, without invalidating this Agreement, may order changes within the general scope of the quotation consisting of additional, deletions, or other revisions, with the price and schedule being adjusted accordingly. Such changes shall be authorized by written Change Order signed by the Buyer and Seller. Adjustments in the price and schedule resulting from a change shall be determined by mutual agreement of the parties or by the Seller’s cost of labor, material, equipment, and reasonable overhead and profit unless the parties agree on another method for determining the cost or credit. If Seller provides on-site services and concealed or unknown physical conditions are encountered at the Site that differs from those indicated in the information provided to Seller by Buyer or from those conditions ordinarily found to exist, the price and schedule shall be equitably adjusted as mutually agreed between Buyer and Seller, provided that the Seller provides notice to the Buyer promptly and before Site conditions are disturbed.
O. INSURANCE: Seller will obtain and maintain the following: (a) “Commercial General Liability” insurance with limits of not less than $1,000,000 per occurrence and $2,000,000 general aggregate, (b) “Business Automobile Liability” insurance (including coverage for all owned, non-owned and hired autos, and no fault coverage where applicable) with limits of not less than $1,000,000 per occurrence for bodily injury and property damage combined, unless Seller only uses private passenger automobiles on Buyer’ premises, in which case not less than $500,000 per occurrence is acceptable, and (c) “Workers’ Compensation” insurance, including but not limited to coverage for all costs, benefits and liabilities under workers’ compensation and similar laws that may accrue in favor of any person employed by Seller in all states where Seller performs Services, and “Employer’s Liability” insurance with limits of liability of not less than $1,000,000, with a waiver of subrogation in each case in favor of Buyer (where permitted by law). Seller may satisfy the foregoing minimum limits by any combination of primary liability and umbrella excess liability coverage that results in the same protection to Seller and the Buyer-insured parties.
P. PERSONNEL; INDEPENDENT CONTRACTORS: Seller and Buyer are independent contractors. The seller has exclusive control over its employees, representatives, agents, contractors, and subcontractors
(collectively, “Personnel”) and over its labor and employee relations and its policies relating to wages, hours, working conditions, and other employment conditions.
Q. NOTICES: Notices under this Agreement are sufficient if given by a nationally recognized overnight courier service, certified mail (return receipt requested), via email, or personal delivery to the other party at the address below the party’s signature line below. If no address is listed for Seller, notice to Seller will be effective if given to the last known address. Notice is effective: (a) when delivered personally, (b) three business days after sending by certified mail, or (c) on the business day after sending by a nationally recognized courier service. A party may change its notice address by giving notice in accordance with this section.
R. SEVERABILITY: If any provision of this Agreement is determined by any court or governmental authority to be unenforceable, the parties intend that this Agreement be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable.
S. NO WAIVER: A party does not waive any right under this Agreement by failing to insist on compliance with any of the terms of this Agreement or by failing to exercise any right hereunder. Any waivers granted hereunder are effective only if recorded in a writing and signed by the party granting such waiver.
T. CONSTRUCTION: The section headings of this Agreement are for convenience only and have no interpretive value.
U. EXECUTION: This Agreement may be executed by electronic means (e.g., via emailed PDF files) and in counterparts, each of which (including signature pages) will be deemed an original, but all of which together will constitute one and the same instrument.
V. EFFECT OF OTHER FORMS: The parties may use standard business forms or other communications, but use of such forms is for convenience only and does not alter the provisions of this Agreement. NEITHER PARTY WILL BE BOUND BY, AND EACH SPECIFICALLY OBJECTS TO, ANY PROVISION THAT IS DIFFERENT FROM OR IN ADDITION TO THIS AGREEMENT (WHETHER PROFFERED VERBALLY OR IN ANY INVOICE, SHIPPING DOCUMENT, ACCEPTANCE, CONFIRMATION, CORRESPONDENCE, OR OTHERWISE), UNLESS SUCH PROVISION IS SPECIFICALLY AGREED TO IN A WRITING SIGNED BY BOTH PARTIES.