1. General – The term “Seller” shall mean Wireway/Husky Corp., doing business as Husky Rack & Wire. The party who receives a quotation from and/or who places an order with Seller is referred to herein as “Buyer.” “Products” means all materials, merchandise or goods that are the subject of the parties’ transaction.
2. Quotation – Unless previously withdrawn, Seller’s quotation is open for acceptance by Buyer within the period stated therein or, when no period is so stated, within thirty (30) days from the date thereof.
3. Acceptance – Upon receipt of a purchase order or other communication from Buyer accepting Seller’s quotation, Seller shall issue to Buyer a written order acknowledgment. Only upon the issuance of such order acknowledgment has a binding agreement between Buyer and Seller been reached. Sales of Products by Seller are expressly conditioned on these Terms and Conditions. Seller hereby objects to any conflicting or additional terms set forth in any purchase order or other communication from Buyer. Such conflicting or additional terms will not be binding upon the parties unless agreed to in writing.
4. Payment – Terms of payment are net cash thirty (30) days after date of Seller’s invoice, unless otherwise specified, except that terms of payment are at all times subject to the approval of Seller’s Credit Department. Unless otherwise agreed, any deposit required by Seller shall be nonrefundable.
5. Taxes – Prices stated are in U.S. dollars and do not include local, state or federal taxes, which are in addition to the purchase price and must be paid by Buyer. All foreign duties and taxes are the responsibility of the Buyer. Unless Buyer furnishes Seller with a tax exemption certificate, Buyer will pay to Seller any tax on the Products or the Products’ use, however designated, levied or based by any taxing authority, whenever Seller must pay the tax for Buyer according to applicable law.
6. Shipment – Unless specifically stated otherwise, the Products shall be shipped F.O.B. point of shipment, and freight charges are the responsibility of Buyer. Other than for Quick Ship orders, shipping and/or delivery timing is approximate. For Quick Ship orders, Products will ship within 48 hours of order acknowledgment or Seller will pay all freight costs. Cut-off time for Quick Ship orders is 2:00 p.m. EST. Seller shall not be liable for delays or in failures of delivery due to strikes or labor troubles, supplier delays, international shipping issues, accidents, fire, flood, acts of God, action by governmental authority, changes requested by Buyer, or other causes beyond its control. If shipment is delayed at the request of Buyer: (i) payment shall be made by Buyer as though shipment has been made as specified and for any expenses incurred by Seller due to such delay in shipment, (ii) Buyer shall bear risk of loss of the Products until shipped, and (iii) Buyer shall be responsible for reasonable storage charges until shipment is completed. In the absence of special customer packaging instructions (which shall be the responsibility of Buyer), prices shall be based on Seller’s standard packaging methods and materials.
7. Engineering and Design Data – If requested, Seller shall provide proposal drawings and/or specifications to Buyer, which shall be based entirely on information provided by Buyer. Upon approval of such drawings and/or specifications by Buyer or a representative thereof, Seller shall be authorized to furnish the Products in accordance with such drawings and/or specifications. Buyer acknowledges and agrees that it has the responsibility to advise Seller with respect to any applicable laws, codes or governmental requirements, including seismic requirements, related to the intended use of the Products, and that Seller assumes no liability or responsibility for otherwise identifying or complying with such laws, codes or requirements. Seller further assumes no liability for any design specifications, plans, drawing or other descriptions prepared by anyone other than Seller, including any third-party Professional Engineer. Although installation instructions shall be provided by Seller, Seller is in no way responsible for actual installation of the Products. All Products shall be furnished hereunder subject to the standard manufacturing and commercial variations and practices of the Seller. Buyer agrees that any design safety factor provided in connection with or incorporated into the Products is so provided or incorporated in order to accommodate variations in the properties of materials, manufacturing and operating conditions and design assumptions, and does not constitute authorization for, and may not protect against, forces, loads or types of use that exceed the design limitations of the Products. Buyer acknowledges that calculation of capacities may change from time to time and that Seller is in no way responsible for notifying Buyer or any third party of any such changes.
8. Cancellation and Modification – Orders shall be considered final upon delivery of Seller’s written confirmation and cannot be cancelled or modified except as follows:
- Stock Products – With respect to order modifications for Products listed by Seller as part of its Quick Ship Program (“Stock Products”), Buyer must give Seller notice of such modification(s) within 24 hours of order confirmation by Seller. With respect to cancelled orders for Stock Products, Buyer shall pay Seller a cancellation fee determined by Seller (but not to exceed 25% of the purchase price).
- Non-Stock Products – With respect to order modifications for all Products other than Quick Ship Products (“Non-Stock Products”), Buyer must (i) give Seller notice of such modification(s) within 10 days of order confirmation by Seller and (ii) pay Seller for all work in process, the contract value of Products completed and ready for shipment and any damages sustained by Seller. With respect to cancelled orders for all Non-Stock Products, Buyer shall pay all engineering, labor and material costs used or committed by Seller plus (at Seller’s option) a cancellation fee equal to 10% of the full purchase price. In no event shall the full amount exceed the purchase price.
9. Returns – Buyer may return Stock Products by Seller within thirty (30) days of delivery, provided that Buyer pays all shipping costs associated with such return plus a restocking fee determined by Seller (but not to exceed 15% of the purchase price). Any return will be for credit only. Non-Stock Products will not be accepted for return.
10. Product Condition, Compatibility and Changes – Buyer acknowledges and agrees that not all Products will be completely coated in paint, rust may appear on portions of the Products and the appearance of rust shall not be deemed a defect for purposes of Sections 11 and 12 hereof; provided, however, that the appearance of rust in no way will result in a reduction in the capacity or performance of such Products. Although the Products may be geometrically compatible with products made by other manufacturers, the capacities set forth for Seller’s Products are for usage only with other Products manufactured by Seller. Seller reserves the right to make changes to Product design, color, material and specifications at any time without notice. Seller further reserves the right to discontinue Products.
11. Claims – Buyer shall inspect the Products immediately upon receipt and prior to any installation or use of such Products. Unless Buyer provides written notice to Seller of any claim for shortages or defects in the Products under Section 12 hereof within ten (10) days of Buyer’s receipt of shipment, such Products shall be deemed finally inspected and accepted by Buyer. In the event that a defect under Section 12 hereof could not, upon reasonable inspection, have been disclosed within such period, then notice of the claimed defect shall be made in writing and delivered to Seller within ten (10) days after Buyer knew or should have known of the defect; provided, however, that Seller shall not be liable for claimed defects in Products once Buyer has incorporated such Products into a structure. Damages identified hereunder that are determined to have been made during shipment and/or delivery will be handled on a case-by-case basis.
12. Limited Warranty – Seller warrants to Buyer that the Products manufactured by Seller shall be free of defective material and faulty workmanship for a period of one (1) year from the date of delivery, so long as such Products have been properly installed, serviced and used under conditions that are normal and prudent in Buyer’s industry and in accordance with Seller’s instructions. The liability of Seller hereunder shall be limited to repairing or replacing, at Seller’s option, such nonconforming Product, provided that notice is given in accordance with Section 11 hereof. BUYER AND SELLER AGREE THAT BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST SELLER WITH RESPECT TO THE PRODUCTS SHALL BE FOR THE REPAIR OR REPLACEMENT (AT SELLER’S OPTION) OF NONCONFRMING GOODS AS PROVIDED HEREIN. SELLER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Items furnished by Seller but manufactured by others are covered solely by the manufacturer’s warranty, if any. Seller makes no warranty regarding the suitability of its Products for compliance with governmental standards, regulations or requirements. Buyer acknowledges and agrees that improper use, maintenance or installation of, or damage to, the Products, can adversely affect the performance or capacity of the Products and that Seller is in no way liable for any damages or claims arising therefrom or in connection with any installation of the Products. IN NO EVENT SHALL SELLER BE LIABLE UNDER ANY THEORY OF TORT, NEGLIGENCE, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED, EXCEPT THAT WHERE INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES CANNOT BE EXCLUDED DUE TO OPERATION OF LAW, SUCH DAMAGES ARE EXPRESSLY LIMITED IN AMOUNT TO THE PURCHASE PRICE OF THE PRODUCT CAUSING THE LOSS OR DAMAGE.
13. Controlling Law and Severability – These Terms and Conditions shall be construed and interpreted under, and all respective rights and duties of the parties shall be governed by, the laws of the State of North Carolina. In case any one or more of the provisions contained herein shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof, and this document shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.