1. Scope and Applicability. All quotations, orders, and invoices are subject to the Standard Terms and Conditions set forth herein. ANY ADDITIONAL, DIFFERENT OR CONFLICTING TERMS AND CONDITIONS ON ANY DOCUMENT ISSUED BY CUSTOMER AT ANY TIME ARE HEREBY OBJECTED TO AND REJECTED BY WERNER ELECTRIC VENTURES LLC (“WEV”), SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE OR SERVICE PERFORMED HEREUNDER, AND SHALL NOT BE BINDING IN ANY WAY ON WEV. Any of the following shall constitute, but is not the sole form of, Customer’s acceptance of these Standard Terms and Conditions: (1) submission of a purchase order, (2) delivery of goods, or (3) commencement of services.
2. Quotations and Orders. A WEV quotation may be accepted by Customer in writing within thirty (30) days from its date or within the period of time otherwise stated in the quotation, whichever is less. Verbal quotations are only valid on the calendar day on which they are given unless confirmed with a written quotation on that calendar day. A WEV quotation is an offer for the Customer to buy. Customer’s acceptance of a WEV quotation is subject to these Standard Terms and Conditions. WEV is not required to accept Customer’s orders. Any Customer purchase order shall not result in an agreement unless and until such order is accepted by WEV and acknowledged by it or its authorized representative at WEV’s office in Cottage Grove, Minnesota, and such order or WEV acceptance shall be subject to these Standard Terms and Conditions. IN THE EVENT THAT THE CUSTOMER’S PURCHASE ORDER, ACCEPTANCE, OR OTHER WRITTEN COMMUNICATION STATES TERMS ADDITIONAL TO OR DIFFERENT FROM THESE STANDARD TERMS AND CONDITIONS, THESE STANDARD TERMS AND CONDITIONS SHALL PREVAIL, AND THE TERMS AND CONDITIONS OF THE CUSTOMER’S PURCHASE ORDER, ACCEPTANCE, OR OTHER WRITTEN COMMUNICATION SHALL BE OF NO FORCE OR EFFECT.
3. Payment Terms. Unless otherwise stated below or on WEV’s invoice, payment shall be due within thirty (30) days from the date of WEV’s invoice. Payment for the goods and/or services must be made in U.S. Dollars. WEV accepts cash, checks, money orders, Visa, MasterCard, and American Express. Any amount payable by the Customer and not paid when due shall bear interest, payable on demand, until such past-due amount is paid in full at the lower of 18.00% per annum or the highest rate allowed by law. Customer agrees to pay all fees, costs and expenses incurred by WEV in collecting amounts due, including but not limited to attorney fees and expenses. WEV reserves the right to change credit and payment terms when, in WEV’s opinion, Customer’s financial condition does not justify the making of any shipment (or the provision of services) on the terms specified herein. In such event, WEV may elect to make a shipment, cash on demand, or on-a-cash in advance basis, suspend performance, or revoke its acceptance of Customer’s order. If a manufacturer requires a deposit or payment in full at the time of order placement, those same requirements will be passed on to the Customer. Payments by Customer shall be applied first to WEV’s accrued but unpaid costs of collection, then to accrued but unpaid interest, and then to principal and other fees, charges and costs. Any taxes or import duties imposed by the laws of any country, dominion, state, territory, province, municipality or other authority, which WEV may be required to pay or to reimburse to others by reason of the ownership, use or sale of any goods or services delivered hereunder, will be added to the purchase price, either as a separate item or included in the invoice price of the goods or services, as the law may require or WEV may determine.
4. Security Interest. Customer hereby grants to WEV a first priority purchase money security interest and/or chattel mortgage in the products and any accounts receivable or cash from resale thereof until full payment is made to WEV. Customer agrees to file, and it permits and authorizes WEV to file, any financing statements or other appropriate documents with its governmental authorities to perfect the validity, priority, and enforceability of WEV’s lien or security interest.
5. Shipping, Title, Risk of Loss, and Delivery. Unless otherwise stated on WEV’s quotation or WEV’s order acknowledgment form, all shipments from WEV are made F.O.B. WEV’s shipping point. Title and risk of loss shall pass to Customer upon delivery to the carrier at WEV’s shipping point or upon delivery to the carrier at the manufacturer’s shipping point if the goods are shipped directly from the manufacturer to Customer. In the absence of shipping directions from Customer and without WEV incurring any liability, products will be shipped by the method and via carrier that WEV believes dependable. The carrier shall not be an agent of WEV. WEV will not be liable for any damage to goods while such goods are in transit. WEV shall have no responsibility or liability for goods shipped directly from the manufacturer.
6. Acceptance. Goods and services shall be inspected by Customer upon delivery and any use of the goods and services for purposes other than inspection and testing during this period shall be considered an acceptance. If the goods or services fail to conform in any way, the Customer shall notify WEV within three (3) days of delivery and failing such notification the goods and services shall be deemed to have been accepted.
7. Delivery Dates. Stated delivery schedules or dates are good faith estimates only and not a commitment as to delivery on specific dates. Such delivery schedules or dates are approximate and are contingent on product availability, manufacturers’ estimated factory schedules, and certain other conditions prevailing at the time of placement of a quotation, receipt of an order or fulfillment of an order. WEV will attempt to ship the products or provide the services within the estimated times reflected on the quotes and tracking reports but will not be liable for any failure to do so. WEV SHALL NOT IN ANY EVENT BE LIABLE IN DAMAGES, WHETHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR OTHERWISE, FOR ANY DELAY IN SHIPMENT, DELIVERY OR PERFORMANCE. Delay in delivery of any shipment or performance of any services shall not relieve Customer of its obligations to accept such shipment or any other shipment or any services. If WEV learns that WEV cannot ship within the estimated times, Customer will be advised on the next tracking report of the new estimated ship date. WEV reserves the right to make delivery in installments. Each such installment shall be separately invoiced and paid for when due, without regard to subsequent deliveries. For items on backorder, WEV may ship whenever the products become available without notice to the Customer.
8. Return Policy. All claims for shortages or errors must be made before Acceptance as defined above, must be in writing, and must specify with particularity the nonconformity. Returns require prior written authorization from WEV and are subject to the then effective Return Material Policy of WEV (including without limitation applicable restocking fees) as provided on WEV’s web site at www.wernermn.com, and no credit will be allowed for goods returned without prior written authorization from WEV. Special orders, custom products, and wire cuts are non-returnable and non-refundable. Goods that have been used and/or modified are non-returnable and non-refundable.
9. Force Majeure. WEV shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, including but not limited to acts of God, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees or controls, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of WEV in the conduct of its business.WEV’s contractual obligations may be modified by WEV as necessary to sustain business at a commercially practicable level, including but not limited to WEV’s use of alternate sources of supply and WEV’s cancellation or modification of existing orders. WEV may impose surcharges due to sudden increases in WEV’s costs for obtaining transportation, fuel or materials. Such surcharges will be added to the purchase price to be paid by Customer.
10. Warranty Disclaimer and Limitations of Liability to All Customers. WEV (A) DOES NOT MANUFACTURE THE GOODS IT SELLS AND MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES THEREON OR WITH RESPECT THERETO AND SELLS THE GOODS AS-IS, WHERE-IS AND (B) MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES REGARDING ITS SERVICES OR THOSE OF ANY SUBCONTRACTOR AND PROVIDES ALL SUCH SERVICES AS-IS, WHERE-IS. WEV DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR CONDITION, AND HEREBY DISCLAIMS ANY AND ALL SUCH EXPRESS OR IMPLIED WARRANTIES THAT MAY ARISE BY OPERATION OF LAW OR OTHERWISE. If there is a manufacturer’s warranty with respect to goods acquired by Customer from WEV, WEV is not a party to such warranty and such warranty is between the manufacturer and the Customer.
11. Limitation of Damages and Remedies. UNDER NO CIRCUMSTANCES WILL WEV BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, REVENUE, BUSINESS OR OPPORTUNITY, OR ANY LOSS OCCASIONED BY DELAY IN DELIVERY) BASED ON BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED AS TO THE POSSIBILITY OF SAME. WEV ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION. Customer’s sole remedies from WEV with respect to goods or services purchased and assembled hereunder shall be, to the extent applicable and qualifying (a) replacement of the goods purchased hereunder in compliance with, and subject to, the terms of the paragraph entitled “Return Policy” above, or (b) if allowed in WEV’s sole discretion upon return of the goods from Customer to WEV, return of so much of the purchase price as has been paid for the goods or a credit (not to exceed the purchase price paid) against the unpaid purchase price of other goods delivered or to be delivered to Customer. FURTHERMORE AND WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL WEV’S LIABILITY EXCEED THE AMOUNT ACTUALLY PAID TO WEV BY THE CUSTOMER FOR THE GOODS AND SERVICES. Customer agrees that they are responsible for ensuring the kitting, assembly, labeling, and wiring meet the Customer’s drawings and specification, and will be fit for the purpose intended. The foregoing is intended as a complete allocation of the risks between WEV and Customer, and Customer hereby agrees that this limitation upon remedies will not have failed of its essential purpose. The Customer’s remedies set out herein are exclusive.
12. Governing Law; Jurisdiction; No Jury Trial. All orders and these Standard Terms and Conditions shall be governed by, and construed in accordance with, the laws of the State of Minnesota without regard to its conflict of law provisions. Customer (1) agrees that any suit, action or other legal proceeding arising out of or related to the sale of goods or other performance by WEV to Customer shall be brought in the Washington County, District Court or the U.S. District Court for the State of Minnesota; (2) consents to the jurisdiction of each such court in any such suit, action or other legal proceeding; and (3) waives any objection which Customer may have to the venue of any suit, action or proceeding in any of such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. CUSTOMER WAIVES THE RIGHT TO A JURY TRIAL.
13. Time Limit for Bringing any Suit. In addition to the other limitations contained herein, any action hereunder must be commenced within one year following the original purchase of the goods or services.
14. Customer Data. WEV shall be allowed to process and store Customer’s business data as well as the Customer’s contact persons’ personal data and share such data with the affiliated companies of Customer and/or WEV and any other company that may be retained by WEV for debt collection purposes.
15. Termination by WEV. If Customer fails to fulfill any of its payment obligations, WEV may suspend performance and delivery. Any cost incurred by WEV due to such suspension, including but not limited to storage costs, shall be payable by Customer upon submission of WEV’s invoices. Performance of WEV’s obligations shall be extended during Customer’s non-fulfillment of any part of the payment terms (whether or not WEV suspends performance) and such additional time as may be necessary. If the Customer does not correct such failure in a time and manner satisfactory to WEV, WEV may, at its option, terminate the transaction as to goods not delivered and services not yet performed. If Customer becomes bankrupt or insolvent, or if any proceeding is brought against Customer, voluntarily or involuntarily, under the bankruptcy laws or any insolvency laws, WEV shall be entitled to terminate the transaction as to goods not delivered and services not yet performed. Customer shall pay WEV its reasonable termination charges in the event of any such termination. WEV’s rights under this paragraph are in addition to, and not in lieu of, any additional rights provided to WEV hereunder or by law or in equity.
16. Canceled Orders. A quotation or any other offer to sell by WEV, upon acceptance by Customer, may only be canceled or altered with WEV’s express written consent. In the event that Customer cancels an order for any reason, WEV shall be paid a reasonable cancellation charge consisting of a percentage of the purchase price reflecting the percentage of the work performed and material costs incurred by WEV prior to the notice of termination from Customer, plus actual direct costs incurred by WEV resulting from cancellation. Cancellation charges associated with orders for custom goods or special orders specifically manufactured or sourced to Customer’s specification may equal the actual purchase price of the affected goods.
17. Assignment by WEV. WEV may use subcontractors and/or third parties for services or goods to be provided. No quotation or any offer to sell may be assigned by Customer in whole or in part without WEV’s prior written consent. Any attempted assignment by Customer without such consent shall be void.
18. Third Party Contract Obligations of Customer. In the event that Customer has obligated itself with any third party for the completion of any portion of any project in which WEV’s goods or services will be used, Customer and WEV agree that WEV is not a party to such obligation, and WEV does not assume any liability or obligation under any such obligation of the Customer. Customer releases and agrees to defend, indemnify, and hold WEV harmless for any claims of any nature whatsoever related to any obligation, risk, liability or responsibility which was or is Customer’s under any contract, or which was assumed by Customer, towards any third party involving the goods or services supplied by WEV.
19. Intellectual Property. Customer shall have no right, title, or interest in the trade names, trademarks, trade dress, copyrights, patents, domain names, product names, catalogs or any other intellectual property rights reserved by WEV, or any trademarks or service marks owned by suppliers to WEV. All materials contained on the www.wernermn.com website are subject to the ownership rights of WEV and its suppliers. Customer shall have no right to link to, or copy or use any of the intellectual property of WEV or its suppliers without WEV’s permission. Such site is provided on an “AS-IS” basis. WEV DOES NOT WARRANT THAT ACCESS TO SUCH SITE WILL BE UNINTERRUPTED OR ERROR FREE. NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE MADE REGARDING THE INFORMATION ON SUCH SITE. WEV WILL HAVE NO LIABILITY (WHETHER DIRECT OR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL, OR FOR LOST SALES OR PROFITS OR OTHERWISE) BASED ON BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED AS TO THE POSSIBILITY OF SAME, WITH RESPECT TO THE INFORMATION, CONTENT OR OPERATION OF SUCH SITE. The foregoing is intended as a complete allocation of the risks between the parties relative to such site, and Customer hereby agrees that this limitation upon remedies will not have failed of its essential purpose.
20. Amendment to Standard Terms and Conditions. No alteration, variation, amendment, modification or waiver of any of these Standard Terms and Conditions shall be binding on WEV unless expressly stated in writing and signed by an authorized officer of WEV. WEV may elect to make amendments to these Standard Terms and Conditions from time to time, which amendment shall be effective when made.
21. Severability. If any portion of these terms and conditions is found to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable term shall be severed from these terms and conditions, and the remaining terms and conditions shall be valid and fully enforceable as written.
22. Complete Agreement. The terms and conditions in: (i) WEV’s forms; (ii) acknowledgments; (iii) quotations; (iv) invoices; (v) websites; (vi) catalogs; and (vii) extension of credit are incorporated herein by reference, and constitute the entire and exclusive agreement between Customer and WEV.
23. Waiver. Neither any failure nor any delay on the part of WEV in exercising any rights hereunder shall operate as a waiver of any of WEV’s rights hereunder. All rights and remedies granted herein to WEV are in addition to all remedies available to WEV at law or in equity.
Additional Terms.24. Independent Contractors. WEV and Customer are independent contractors and not principal and agent. Nothing contained in these terms and conditions shall be construed to create a partnership, dealership, reseller, agency, employment or joint venture relationship. Customer will not have the right to bind or otherwise obligate WEV in any manner, nor will Customer represent to anyone that it has the right to do so.
25. Material Safety Data Sheet (“MSDS”). MSDS for applicable products sold by WEV are prepared by the manufacturers and available online at www.wernermn.com. Unless requested, WEV will not furnish paper copies of MSDS that are electronically available at www.wernermn.com. WEV will continue to furnish paper copies of MSDS for those products for which an MSDS is not electronically available. Paper copies of MSDS for all products are immediately available upon demand via facsimile or U.S. mail. Please contact a local WEV service center to obtain a copy of any MSDS via facsimile or U.S. mail or to continue receiving paper copies of MSDS for all shipments of applicable products.
26. Electronic Data Interchange. If WEV and Customer mutually agree to use an Electronic Data Interchange (“EDI”) system to facilitate purchase and sale transactions, Customer agrees that it will not contest: (i) any contract of sale resulting from an EDI transaction under the provisions of any law relating to whether agreements must be in writing or signed by the party to be bound thereby; or (ii) the admissibility of copies of EDI records on the basis that such records were not originated or maintained in documentary form. WEV and Customer will negotiate and agree on technical standards and methods to use in making EDI purchases, and will use reasonable security procedures to protect EDI records from improper access. In the event of a conflict, the business records maintained by WEV regarding EDI purchases made by Customer shall be deemed to be conclusive.