The terms and conditions hereof will constitute the sole and exclusive agreement between Win Plastic Extrusions (Win) and Buyer. Accordingly, Win’s offer to sell is conditioned upon Buyer’s acceptance of these terms and conditions, and Win’s acceptance of any order is expressly made conditional on Buyer’s assent to these terms and conditions of sale. Buyer’s taking delivery of all or any part of product is evidence of such assent and a contract will be formed only upon the terms and conditions set forth in this Agreement. In the event Buyer’s purchase order or other form states terms additional to or different from those set forth herein, this Agreement will be deemed a notification of objection to such additional and/or different terms and a rejection thereof. Accordingly, no modification or waiver of any conditions contained in this Agreement will be binding upon Win unless a separate agreement stating such modifications is signed by Win.
2. PRICES AND PAYMENT
Prices are subject to change or withdrawal without notice. Win’s minimum invoice requirement is $45.00 based on the net value of the goods. Payment terms are net thirty (30) days unless otherwise indicated on the face of the Win invoice.
All goods are sold and invoiced F.O.B. When quoted, freight rates represent estimates only. Buyer will be charged the freight rate in effect on the date of shipment. Title and risk of loss to the goods will pass to Buyer upon delivery to the carrier. Claims for loss or damage in transit must be made by the Buyer to the carrier. Win reserves the right to make deliveries in installments. Partial shipments will be billed as made and payments therefore are subject to the terms of payment noted in Paragraph 2 above. All delivery indications are estimated and are dependent in part upon prompt receipt of all necessary information to service an order. In no event will Win be liable for any premium transportation, reprocurement or other cost or losses incurred by Buyer as a result of Win’s failure to deliver the product in accordance with indicated delivery schedules.
Win reserves the right to reject any order in whole or in part for any reason. Win expressly reserves the right to correct clerical, stenographic and other obvious errors at any time in the order or invoice.
This is the sole and exclusive warranty given by Win with respect to the goods sold hereunder. Win warrants that the goods will be free from defects in materials and workmanship for a period of one year from the date of shipment. Win MAKES NO OTHER WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE. AS TO MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OF ANY OF THE GOODS SOLD HEREUNDER, INCLUDING WITHOUT LIMITATION WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. Buyer acknowledges that Buyer alone has determined that the goods and services will meet the requirements of their intended use.
6. REMEDY FOR BREACH OF WARRANTY:
Should Win breach its warranty. Buyer’s only remedy and Win’s only obligation will be, at Win’s option, the replacement or repair by Win of any defective goods, either in the field or F.O.B. Win’s facility as Win determines or the refund of the price paid to Win. This warranty does not apply if the defective goods result from misuse, abuse, improper installation or application alteration, accident or negligence in use, storage, transportation or handling, or due to unauthorized modification or damage resulting from interconnecting Win goods with other goods not supplied by Win. The above limitations will apply whether the claim is pleaded in contract or in tort (including strict liability). No goods will be accepted for return unless authorized by Win in writing. All return shipments must be freight prepaid by Buyer.
7. CANCELLATION AND CHANGES:
Once an order has been acknowledged by Win, Buyer cannot change or cancel that order without Win’s written consent. For any order altered or cancelled with Win’s consent, Buyer agrees to pay any cancellation or change order charge requested by Win if any costs for material or labor have been incurred by Win prior to notification.
Proposals or quotations from Win are based on work according to the original specifications. If through Buyer’s error or change of mind, work is increased or done a second or more times, such extra work will carry an additional charge, at Win’s then current rates for the work performed.
NO RETURNED ITEMS WILL BE ACCEPTED OR CREDITED WITHOUT A VALID RETURN AUTHORIZATION (RA) NUMBER. All returned material must be in as-new, unused, resalable condition in original packaging. Under no circumstances will material be accepted for return after forty-five (45) days from the date of shipment.
All prices quoted are exclusive of taxes. All taxes are duties imposed by any federal, state, foreign or local authority which Win may be required to pay or collect relating to the sale, purchase, transportation, delivery, storage use or consumption of goods, except net income and corporate franchise taxes will be for the account of Buyer.
10. CHECKING GOODS, CLAIMS:
It is Buyer’s responsibility to check goods against shipping papers immediately upon unloading at destination. Claims, including shortage claims, must be made promptly after delivery and Win must be given a reasonable opportunity to investigate. Every claim will be waived by Buyer unless made in writing within five (5) days of receipt of goods by Buyer.
11. FORCE MAJEURE:
Delivery dates quoted are estimates only. Win will not be liable for any delay in delivery or failure to deliver due to fire, explosion, strike or other difference with workmen, shortage of utilities, facility, materials or labor, delays in or unavailability of transportation, breakdown or accident, compliance with or any action taken to carry out the intent or purpose of any law or regulation, or any other cause whether or not similar to the above, beyond Win’s reasonable control. In the event of a goods shortage, Win will have the right to apportion its production and inventory among its customers in such manner as it may consider to be equitable.
12. LIMITATION OF LIABILITY:
Win assumes no liability except as expressly provided in these Terms and Conditions of Quote/Acknowledgment and Sale. IN NO EVENT WILL WIN BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE OR LOSS OF PROFIT, OR ANY DAMAGES OTHER THAN REPAIR, REPLACEMENT OR REFUND OF THE PURCHASE PRICE PAID FOR THE GOODS AT Win’S OPTION. Win WILL NOT BE HELD LIABLE FOR PERSONAL INJURY OR PRODUCT DAMAGE DUE TO HANDLING OR USE OF GOODS FOR OTHER THAN THEIR INTENDED PURPOSE.
Win will charge Buyer, at current rates, for handling and storing Buyer’s stock or orders more than thirty (30) days. All property stored with Win is at the Buyer’s risk, and Win is not liable for any loss or damage to the goods. It is understood that the gratuitous storage of Buyer’s property is solely for the benefit of Buyer and Buyer hereby indemnifies Win for all losses, claims or liability incurred due to such storage.
14. COLOR SPECIFICATIONS:
Product colors are reproduced in our catalogs and brochures as accurately as possible. Colors represent average production runs and may vary in shade from time to time, depending upon dye and compound variables.
15. SECURITY INTEREST:
Buyer hereby grants to Win a purchase money security interest in the goods received by Buyer and a security interest in all accounts or proceeds arising from the sale of any such goods. Title of all goods shipped pursuant to this Agreement is reserved by Win until Buyer has made full and final payment in cash for all of the goods, including storage charges and payment of any notes given for the price. If Buyer is a distributor of Win prior to full payment in cash, Buyer will have no right to sell or dispose of any goods delivered hereunder except for value received in the ordinary course of business and on the express condition that prior to the delivery of any of the goods to distributor’s customer, Buyer determines such customer’s credit worthiness and secures from such customer adequate assurances for full and final payment of the purchase price in cash.
The proceeds of all sales will be considered to be the property of Win in lieu of the goods so sold, and will be deposited in an account containing only funds held in trust for Win and will be held in trust for it and subject to its order until all sums due under this Agreement have been fully paid. As requested at any time, Buyer will give Win’s representatives full information regarding goods on hand, goods sold, and the proceeds thereof, to enable Win to ascertain and enforce its rights under this provision. Nothing in these terms will release Buyer from payment for all goods ordered and delivered. Upon delivery to Buyer, the goods will be held at Buyer’s risk and expense with respect to loss or damage from any cause whatsoever. At the request of Win, Buyer will join in executing one or more financing statements in the form satisfactory to Win.
Buyer will have and maintain at all times policies of insurance covering the secured goods against the risks of fire, theft and all other risks as Win may require. Such policies will contain such terms, be in such form, continue for such periods, and be written by such companies as deemed satisfactory by Win. All such policies will list Win as the loss payee prior to full and final payment for the goods. Buyer will furnish Win on demand with certificates or other evidence deemed satisfactory to Win of compliance with this provision.
17. EVENTS OF DEFAULT:
If Buyer fails to pay when due any sum which may be payable by Buyer to Win (under this Agreement or otherwise), or if buyer is made bankrupt, or voluntarily files, or has filed against it, a petition for bankruptcy or begins liquidation or has a receiver appointed over any of its assets or has any of its assets including any interests in property or contracts levied upon, attached, garnished or repossessed the rights of Buyer under this Agreement are cancelled and Win will, upon such cancellation, be entitled in addition as any other rights and remedies that Win has to recover from Buyer, any sums due from Buyer and the amount of any loss sustained by Win on the resale of the undelivered material, plus costs and attorneys fees.
18. VALIDITY OF AGREEMENT:
Each provision herein will be deemed separate and distinct from all other provisions of this contract and if any one of them or a portion thereof is declared illegal or unenforceable, the same will not affect the legality or enforceability of the other terms, conditions, and provisions then remaining and they will continue in full force and effect.
19. APPLICABLE LAW:
All matters related to this order will be construed, interpreted and resolved in accordance with the laws of the Commonwealth of Pennsylvania.