Terms and Conditions of Sale
WinWholesale Inc. and each of its subsidiaries and locally operated companies are hereinafter collectively referred to in these Terms and Conditions of Sale (“Terms”) as “WinWholesale” and the customer or person or entity purchasing goods or services (collectively referred to as “Goods”) from WinWholesale is referred to as the “Buyer.” Buyer acknowledges that these Terms along with any attachment, price list, schedule, quotation, acknowledgment, or invoice from WinWholesale relevant to the sale of the Goods (collectively, “Attachment”), and all documents incorporated by specific reference into these Terms or any Attachment, constitute the complete and exclusive statement of the terms of the agreement governing all sales of Goods by WinWholesale to Buyer (“Agreement”), regardless of whether or not Buyer or WinWholesale expressly make reference to these Terms in any documentation related to any such sale. Buyer’s acceptance of the Goods will manifest Buyer’s assent to these Terms without variance or addition. WinWholesale hereby objects to and rejects any terms in Buyer’s purchase order or other Buyer documents that are different than or in addition to these Terms, and such terms shall not constitute any part of the agreement between Buyer and WinWholesale. Any Attachment is incorporated herein by reference. WinWholesale reserves the right in its sole discretion to refuse orders.
- Prices. Unless a fixed price is quoted, the price of Goods are subject to change without notice and the prices invoiced will be those in effect at the time of shipment and/or delivery of Goods.
- Taxes. Any current or future tax or any charge of any nature imposed by any governmental or taxing authority that is or becomes payable by reason of the production, transportation, sale, storage, processing, use, consumption or delivery of any Goods sold to Buyer, other than taxes based on WinWholesale’s net income or profit, will be for Buyer’s account and will either be added to the price of Goods (unless Buyer provides WinWholesale with an exemption certificate acceptable to the applicable taxing authorities) and paid for by Buyer or billed to Buyer separately (unless Buyer provides WinWholesale with an exemption certificate acceptable to the applicable taxing authorities) and paid for by Buyer, as WinWholesale may elect in its sole discretion.
- Terms of Payment. Unless otherwise specified by WinWholesale, terms are net thirty (30) days from the date of WinWholesale’s invoice in U.S. currency. WinWholesale has the right, among other remedies, either to terminate this Agreement and/or any purchase order with Buyer or to suspend further performance under this Agreement, any other agreements and/or purchase orders with Buyer in the event WinWholesale fails to receive any payment when due, which other agreements and/or purchase orders Buyer and WinWholesale hereby amend accordingly to incorporate these Terms, or if WinWholesale otherwise deems itself insecure. Buyer shall be liable for all expenses, including attorneys’ fees and other litigation costs, relating to the collection of past due amounts. In the event Buyer fails to make any payment to WinWholesale when due, Buyer’s entire account(s) with WinWholesale shall become immediately due and payable without notice or demand by WinWholesale. If any payment owed to WinWholesale is not paid when due, it shall bear interest at a rate to be determined by WinWholesale, which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is paid. Should Buyer’s financial responsibility become unsatisfactory to WinWholesale, cash payments or security satisfactory to WinWholesale may be required by WinWholesale (including, without limitation, letters of credit) for future deliveries and for Goods delivered up to that point. If such cash payment or security is not provided, in addition to WinWholesale’s other rights and remedies, WinWholesale may discontinue deliveries. Buyer hereby grants WinWholesale a purchase money security interest in all Goods sold to Buyer by WinWholesale, which security interest shall continue until such Goods are fully paid for in cash, and Buyer: (a) upon WinWholesale’s demand, will execute and deliver to WinWholesale such instruments as WinWholesale requests to protect and perfect such security interest, and (b) authorizes WinWholesale to execute and file such instruments as are necessary or useful to protect and perfect such interest. No Goods furnished by WinWholesale to Buyer shall become a fixture as a result of such Goods being attached to realty.
- Shipment and Delivery. Unless otherwise expressly provided, shipments are made F.O.B. WinWholesale’s store or warehouse, whichever is applicable, of origin. Risk of loss or damage and responsibility shall pass from WinWholesale to Buyer upon delivery to and receipt by a carrier. Any claims for shortages or damages suffered in transit are the sole responsibility of Buyer and shall be submitted by Buyer directly to the carrier. Shortages or damages must be acknowledged and signed for at the time of delivery. While WinWholesale will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by WinWholesale, all shipping dates are approximate and not guaranteed. WinWholesale reserves the right to make partial shipments and to place certain orders on “back order.” WinWholesale, at its option, shall not be bound to tender delivery of any Goods for which Buyer has not provided shipping instructions. If WinWholesale is to pay freight, WinWholesale shall have the right to designate routing and means of transportation; and if Buyer requires a more expensive routing and/or means, Buyer will pay any extra cost involved. The cost of any special packing or special handling as a result of Buyer’s requirements shall be added to the amount of the order of the applicable Goods. If the shipment of Goods is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse WinWholesale for any handling and storage costs and other additional expenses resulting therefrom. All claims for shipping errors, lost shipments or any other discrepancies (other than shortages or damages which must be acknowledged and signed for at the time of delivery) must be made within ninety (90) days after delivery to the carrier or they will be disallowed and deemed waived.
- Limited Warranty. Buyer’s sole and exclusive warranty, if any, with respect to Goods sold by WinWholesale, is the warranty provided by manufacturer(s) of Goods.
THE WARRANTY IN THIS SECTION 5 CONSTITUTES WINWHOLESALE’S SOLE WARRANTY RESPONSIBILITY AND BUYER’S EXCLUSIVE REMEDY WHETHER SOUNDING IN TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT. WINWHOLESALE MAKES NO WARRANTY OF MERCHANTABILITY AND NO WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE, NOR DOES IT MAKE ANY OTHER WARRANTY, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER WITH RESPECT TO GOODS SOLD BY WINWHOLESALE OR THE USE THEREOF EXCEPT AS IS SPECIFICALLY SET FORTH HEREIN, EVEN THOUGH WINWHOLESALE MAY HAVE BEEN NEGLIGENT. WINWHOLESALE SHALL IN NO EVENT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER IN CONNECTION WITH THE DELAY OF DELIVERY (OR FAILURE TO GIVE NOTICE OF DELAY OF DELIVERY), SALE, RESALE, LICENSE, OR USE OF THE GOODS. WINWHOLESALE MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO “CONSUMERS” AS THAT TERM IS DEFINED IN SEC. 101 OF PUBLIC LAW 93.637, THE MAGNUSON-MOSS WARRANTY FEDERAL TRADE COMMISSION IMPROVEMENT ACT. ALL GOODS FURNISHED AND/OR SOLD BY WINWHOLESALE ARE FURNISHED AND/OR SOLD "AS IS," "WHERE IS," AND "WITH ALL FAULTS."
- LIMITATION OF REMEDY. THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER SHALL BE LIMITED TO THE REMEDY PROVIDED TO BUYER DIRECTLY BY THE MANUFACTURER OF GOODS SOLD BY WINWHOLESALE TO BUYER.
- LIMITATION OF LIABILITY. WINWHOLESALE SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT, OR OTHERWISE), AND IN NO EVENT SHALL WINWHOLESALE’S LIABILITY TO BUYER AND/OR ITS BUYERS EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS OR PORTION OF THE GOODS PROVIDED BY WINWHOLESALE GIVING RISE TO THE CLAIM OR CAUSE OF ACTION, AND BUYER SHALL INDEMNIFY WINWHOLESALE FOR ANY DAMAGES IN EXCESS THEREOF. IN NO EVENT SHALL WINWHOLESALE’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, ALL OF WHICH ARE WAIVED BY BUYER AND AS TO WHICH BUYER SHALL INDEMNIFY WINWHOLESALE.
The term “consequential damages” as used in these Terms shall include, but not limited to, fines, penalties, loss of anticipated profits, business interruption, loss of use of revenue, cost of capital, loss or damage to property or equipment, loss of reputation, or illness. Further, Buyer shall indemnify and hold WinWholesale harmless from any liability to Buyer, Buyer’s employees, workers, contractors or any other persons arising out of Buyer’s, or any other persons’, use of Goods. It is further expected that all instructions and warnings supplied by WinWholesale will be passed on to those persons who use Goods. WinWholesale’s Goods are to be used in their recommended applications and all warning labels adhered to.
- Contingencies. WinWholesale shall not be held responsible for or be liable for any nonperformance or any default or delay in performance if caused, directly or indirectly, by acts of God, war, fire, the elements, riot, civil commotion, strikes, lock-outs, slow downs, picketing or other labor controversies, accidents, delay or default of or failure by carriers, shortages of labor, delay in obtaining or inability to obtain materials, equipment or parts from regular sources, action, request or regulation of or by any government or governmental authority, failure of any party to perform any contract with WinWholesale, the performance of which is required for production of the Goods, or any other happening or contingency beyond WinWholesale’s reasonable control, or without WinWholesale’s fault, whether similar or dissimilar to the foregoing. Deliveries or other performance may be suspended for an appropriate period of time or canceled by WinWholesale upon notice to Buyer in the event of the foregoing, but the balance of the this Agreement shall otherwise remain unaffected.
If WinWholesale determines that its ability to supply the total demand for the Goods, or to obtain material used directly or indirectly in the manufacture of the Goods, is hindered, limited or made impracticable due to causes set forth herein, WinWholesale may allocate its available supply of the Goods or such material (without obligation to acquire other supplies of any such Goods or materials) among itself and its purchasers on such basis as WinWholesale determines to be equitable without liability for any failure of performance that may result therefrom.
- Cancellation. Buyer may cancel orders only upon reasonable advance written notice and upon payment to WinWholesale of WinWholesale’s cancellation charges that include, among other things, all costs and expenses incurred to cover commitments made by WinWholesale and a reasonable profit. WinWholesale’s determination of such termination charges shall be conclusive.
- Assignment. Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of WinWholesale, and any such assignment, without such consent, shall be void.
- Examination - Suitability – Claims – Returns. Buyer agrees to examine and test each shipment of Goods promptly on arrival, before any part of the Goods (except for reasonable test quantities) has been changed from its original condition and in no event later than seven (7) days from delivery of the Goods to Buyer. WinWholesale will not recognize any claims for any cause after the Goods have been treated, processed, or changed in any manner (except for reasonable test quantities). It is Buyer’s responsibility to determine whether the Goods are suitable for its contemplated use whether or not such use is known to WinWholesale. Buyer hereby agrees that such seven (7) day period is a reasonable amount of time for such inspection. Buyer shall deliver to WinWholesale within ten (10) days from the date of delivery of the Goods written notice of any deficiencies, defects, variations from specifications, or complaints of any kind with respect to the quantity, quality, condition, shipment, performance, price, or appearance of the Goods delivered by Buyer. If WinWholesale does not receive such notice within ten (10) days from the date of delivery of the Goods, Buyer shall be deemed conclusively to have inspected and accepted all such Goods unconditionally and to have waived any rights and claims, including without limitation any right to reject the Goods or to claim damages in respect thereof. Buyer may not return Goods without first advising WinWholesale of the reasons therefor and observing such instructions as WinWholesale may give in authorizing such return.
Buyer may return any Goods that WinWholesale regularly stocks with no restocking charge if and only if: (i) such Goods are in new condition, suitable for resale in its undamaged original packaging and with all its original parts, and (ii) such Goods have not been used, installed, modified, altered or damaged. Custom Goods or other non-stock Goods not manufactured by WinWholesale may be returned if the manufacturer of such Goods will accept the return. Except for Goods that WinWholesale stocks which meet the above criteria, credit issued for authorized returns shall be subject to the following deductions: (a) expenses associated with reconditioning and/or modifying Goods to put them in salable condition; (b) transportation charges; and (c) handling and restocking charges. Except as set forth above in this Section 11 and in the case of a material defect covered by a warranty set forth in this Agreement, Custom Goods may not be canceled or returned, and no refund will be made for any reason whatsoever with respect to Custom Goods. Buyer acknowledges that WinWholesale does not make and specifically negates, renounces and disclaims any representations, warranties and/or guaranties of any kind or character, expressed or implied, with respect to (i) Goods and their use, design, application or operation, merchantability, physical condition or fitness for a particular purpose, (ii) the maintenance or other expenses that may be incurred in connection with Goods, (iii) the engineering, design, or any other work or service provided by WinWholesale and/or its employees, agents and suppliers, or (iv) the accuracy or reliability of any information, designs or documents furnished to Buyer in connection with Goods. WinWholesale neither assumes, nor authorizes any person to assume for it, any other obligation or liability in connection with WinWholesale’s sale of Goods. Any recommendations made by WinWholesale concerning the use, design, application or operation of Goods shall not be construed as representations or warranties, expressed or implied, nor shall failure by WinWholesale to make recommendations to Buyer impose any liability upon WinWholesale.
- Permits; Indemnification. Buyer shall at its own expense apply for and obtain any permits required for the installation and/or use of Goods. Except as particularly specified and agreed upon in writing by WinWholesale, WinWholesale makes no covenant, warranty or representation that Goods will conform to any federal, state or local laws, ordinances, regulations, codes or standards. WinWholesale shall not be responsible for any losses or damages sustained by any party as a result of improper installation, use or storage of Goods. Buyer shall defend, indemnify and hold harmless WinWholesale and its directors, officers, employees, shareholders, subsidiaries, affiliates and agents against any loss, damage, claim, suit, liability, judgment or expense (including, without limitation, attorney’s fees) arising out of or in connection with any injury to, damage to, death to or loss of any persons or property, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, use, or repair of Goods by Buyer, including without limitation the Safe Drinking Water Act, Reduction of Lead in Drinking Water Act, and other state and federal laws related to the limitation of lead in products used for the conveyance of drinking water. This Section 12 shall survive the termination of this Agreement.
- Goods. The purchase of Goods from WinWholesale confers no license, express or implied, under any patents, copyrights, know-how, or technology, except, in the case of wholesalers for resale to their customers and for manufacturers for use in their products.
- Orders. Orders are not binding on WinWholesale until accepted in writing by an authorized employee of WinWholesale.
- Documentation. WinWholesale shall provide Buyer with that data/documentation that is specifically identified in WinWholesale’s quotation. If additional copies of data/documentation are to be provided by WinWholesale, it shall be provided to Buyer at WinWholesale’s applicable prices then in effect.
- U.S. Export Control Regulations. All Goods sold to Buyer by WinWholesale hereunder are subject to U.S. Export Control Laws. Buyer hereby agrees not to re-sell or divert any Goods contrary to such laws.
- Non-Waiver. No waiver by WinWholesale with respect to any breach or default of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default of any other right or remedy, unless such waiver be expressed in writing and signed by WinWholesale.
- Set-Off. Buyer shall not be entitled to set-off any amounts due Buyer against any amount due WinWholesale in connection with this Agreement.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect.
- Governing Law. These Terms shall be governed by and construed and interpreted in accordance with the laws of the State of Ohio, without regard to its conflict of law principles. Buyer and WinWholesale agree that the proper venue for all actions arising in connection with these Terms shall be deemed exclusively proper only in state court in Montgomery County, Ohio, or in the federal court for the Southern District of Ohio and the parties agree to submit to such jurisdiction. Any action, regardless of form, arising out of transactions relating to these Terms or any other theory of recovery shall be brought within the applicable statutory period, but in no event later than one (1) year of the date of tender of delivery of the applicable Goods except that any action by WinWholesale for payment hereunder may be brought within five (5) years of the date of delivery of the applicable Goods. Further, the United Nations Convention on Contracts for the International Sale of Goods (1980) (as amended from time to time) shall not apply to these Terms or any transactions relating thereto.
- Miscellaneous. All rights and remedies of WinWholesale in these Terms are in addition to, and not lieu of, any rights or remedies that WinWholesale may have at law or in equity. These Terms supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these Terms. No change, modification, rescission, discharge, abandonment, or waiver of these Terms shall be binding upon WinWholesale unless made in writing and signed on its behalf by its duly authorized representative. No conditions, usage or trade, course of dealing or performance, understanding, or agreement purporting to modify, vary, explain, or supplement these Terms shall be binding unless hereafter made in writing and signed by WinWholesale. No modification shall be affected by WinWholesale’s receipt or acceptance of Buyer’s purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to these Terms, all of which are objected to by WinWholesale. All typographical or clerical errors made by WinWholesale in any quotation, acknowledgment or publication are subject to correction. These Terms shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and any uncertainty or ambiguity shall not be interpreted against any one party.