General Terms and Conditions for the Sale of Products by WD Bearings America LLC
NOTICE: Sale of any Products, as defined in the Contract, is expressly conditioned on Buyer's assent to these Terms and Conditions. Any acceptance of Seller's offer is expressly limited to acceptance of these Terms and Conditions and Seller expressly objects to any additional or different terms proposed by Buyer. No Buyer form shall modify these Terms and Conditions, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of these Terms and Conditions. Any order to purchase products or receive services shall constitute Buyer's assent to these Terms and Conditions. Unless otherwise specified in the quotation, Seller's quotation shall expire sixty (60) days from its date and may be modified or withdrawn by Seller before receipt of Buyer's conforming acceptance. Fulfillment by Seller of any order by Buyer shall not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms and Conditions.
1. Definitions:
"Buyer" means the entity to which Seller is providing Products under the Contract.
"Contract" means either the contract agreement signed by both parties, or the purchase order signed by Buyer and accepted by Seller in writing, for the sale of Products, together with these Terms and Conditions, Seller's final quotation, the agreed scope(s) of work, and Seller's order acknowledgement, but expressly excluding any additional or different terms proposed by Buyer in accordance with the Notice provision above. Unless expressly agreed to in writing and signed by Seller, the Terms and Conditions shall take precedence over other documents included in the Contract.
"Contract Price" means the agreed price stated in the Contract for the sale of Products, including adjustments (if any) in accordance with the Contract.
"Products" means the equipment, parts, materials, supplies, and other goods Seller has agreed to supply to Buyer under the Contract.
"Seller" means WD Bearings America LLC, the entity providing Products under the Contract.
"Terms and Conditions" means these "General Terms and Conditions for the Sale of Products," together with any modifications or additional provisions specifically stated in Seller's final quotation or specifically agreed upon by Seller in writing.
2. Delivery and Shipping Terms:
(a) Seller is responsible for maintaining goods at Seller's facility and Buyer shall arrange shipping and delivery of Products Ex Works (EXW) to Buyer's facility, warehouse, or location of Buyer's choosing (Incoterms 2020). Buyer shall pay all delivery costs and charges. Partial deliveries are permitted. Delivery times are approximate and are dependent upon prompt receipt by Seller of all information necessary to proceed with the work without interruption. If Products delivered do not correspond in quantity, type, or price to those itemized in the shipping invoice or documentation, Buyer shall notify Seller within ten (10) days after receipt.
(b) Title shall pass to Buyer upon shipment from Seller's facility in accordance with Section 2(a).
(c) Risk of loss shall pass to Buyer upon shipment from Seller's facility pursuant to Section 2(a).
(d) If any Products to be delivered under this Contract cannot be shipped to or received by Buyer when ready due to any cause attributable to Buyer, including postponement of delivery by Buyer, Seller may ship the Products to a storage facility to be stored at Buyer's expense, or may store the Products at Seller's facility, or to an agreed freight forwarder. If Seller places Products into storage at a storage facility or at Seller's facility, the following apply: (i) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to Seller upon delivery or shipment shall be due; (iii) a fee of two percent (2%) of the value of the Products will be charged to Buyer; and (iv) when conditions permit and upon payment of all amounts due, Seller shall make Products available to Buyer for delivery.
(e) If no specific delivery date is identified by Buyer, Seller will process the order as a Blanket Sales Order. Unless otherwise specified and agreed in writing, the entire order will be manufactured and must be shipped and invoiced from Seller within eighteen (18) months from the date Seller informs Buyer the Products are complete and ready for delivery. In the event Seller elects to have less than all of the Products delivered Seller may ship the Products to a storage facility to be stored at Buyer's expense, or may store the Products at Seller's facility, or to an agreed freight forwarder. If Seller places Products into storage at a storage facility or at Seller's facility, the following apply: (i) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to Seller upon delivery or shipment shall be due; (iii) a fee of two percent (2%) of the value of the Products will be charged to Buyer; and (iv) when conditions permit and upon payment of all amounts due, Seller shall make Products available to Buyer for delivery. For any remaining Products not shipped from Seller within eighteen (18) months, Seller may, at its sole election, scrap or resell the Products and Buyer shall remain liable for payment of the Contract Price.
(f) Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
(g) Buyer is responsible for insuring the Products while in transit. Seller has no obligation to provide any insurance coverage for Products once they are in transit.
3. Cancellation of Purchase Order:
Buyer may cancel its order only with the prior written consent of Seller, which Seller may withhold in its sole discretion. All cancelations will be subject to payment to Seller of reasonable cancelation charges.
4. Inspection and Acceptance of Products:
Buyer shall inspect all Products within thirty (30) days of receipt. Buyer shall be deemed to have accepted all Products unless Buyer notifies Seller in writing during such thirty (30) day period that any Products do not conform to the applicable Seller specifications. Buyer may return Products (including any nonconforming Products) only at its sole cost and only with the prior written authorization of Seller, subject to a restocking fee as agreed by the parties. At Seller's sole option, Seller will repair or replace any nonconforming Products or refund to Buyer the purchase price for such Products, in any case as Buyer's sole remedy for such nonconforming Products. Notwithstanding the foregoing, no returns of special, custom, or made-to-order Products will be permitted. No returns will be permitted, in any case, more than sixty (60) days after delivery.
5. Contract Price:
(a) Buyer shall purchase the Products from Seller at the Contract Price. The Contract Price is fixed in a specific currency, set at the time of signing, stated in the invoice and includes standard packaging and other auxiliary costs. The packaging is not returnable unless specified in writing. All prices shall be confidential, and Buyer shall not disclose such prices to any party in accordance with Article 16.
(b) Prices are subject to change without prior notice and Seller shall thereafter notify Buyer of any price increases. In the event of a price increase, Buyer may cancel any undelivered portion of any order by written notice to Seller, provided such notice is received by Seller not more than ten (10) days after Buyer's receipt of Seller's notice of a price increase. Upon cancellation, Buyer shall pay Seller: (1) the Contract Price for all Products which have been completed or are in the process of completion, (2) components or goods secured by Seller from outside sources for the performance of the Contract, and (3) special tooling and equipment procured for the performance of the Contract.
(c) All Contract Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel or real or personal property or other assets.
(d) The Contract Price excludes shipping and handling charges, which are the obligation of Buyer and will be added to the invoice if prepaid by Seller.
6. Payment Terms:
(a) Terms of payment are net thirty (30) days following the date of invoice, all payable in the currency specified in the invoice.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees and court costs. In addition to all other remedies available under these Terms and Conditions or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy or otherwise.
(d) If Buyer disputes any invoice or portion thereof, it shall notify Seller in writing within thirty (30) days of receipt of said invoice, detail the reason for the dispute, and pay all undisputed amounts. All charges not timely disputed in writing shall be deemed to be undisputed and shall be due and payable as set forth above.
7. Quantity of Products:
The quantity of Products is to be in substantial compliance with the quantity of Products ordered by Buyer, with an acknowledgment by Buyer and Seller that orders can have an acceptable short or overrun of up to ten percent (10%). Buyer must inform Seller when submitting a Purchase Order if any short or overrun in quantity is not permitted. In the event of a permissible short or overrun, Seller may adjust the Contract Price to accurately reflect the Products shipped to Buyer.
8. Limited Warranty:
(a) Seller warrants that all Products manufactured by Seller shall, at the time of sale, comply with applicable Seller's drawings, standards, and specifications and are warranted to be free of defects in materials and workmanship. The Seller's drawings and specifications are the exclusive standard to determine if the Product is in compliance. The sole remedy for any Product not in compliance shall be limited to replacement of any Product found to by defective within one year from the date of purchase, under the following provisions: 1. The application condition of the Product (e.g., temperature, rotation speed, loads, installation and fitting, etc.) was provided to and approved in writing by Seller prior to placement of the order; and 2. The Product is returned to Seller for technical analysis by Seller which verifies that the Product was properly handled, mounted/installed, loaded, used, and lubricated and that damage was not caused by actions attributable to Buyer.
(b) This warranty is in lieu of all warranties of merchantability, fitness for purpose, or all other warranties, expressed or implied and is subject to the Disclaimer of Warranty and Limitation of Liability Sections herein.
9. Disclaimer of Warranty:
(a) SELLER MAKES NO OTHER WARRANTY WITH RESPECT TO THE PRODUCTS OR SERVICES, AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. Seller does not authorize any agent, representative, or personnel to make any other warranties or alter this disclaimer of warranty.
(b) All Products are sold for commercial use only and are not intended for use by consumers. Accordingly, Seller disclaims all warranties to consumers, including such warranties as defined by the Magnuson-Moss Act and/or applicable International laws.
10. Limitation of Liability:
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER's AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THOSE SPECIFIC PRODUCT(S) PURCHASED BY BUYER HEREUNDER THAT ARE THE SUBJECT OF THE CLAIM OR, AS TO SERVICES, FOR THE AMOUNTS PAID TO SELLER FOR THE SPECIFIC SERVICES PERFORMED BY SELLER HEREUNDER THAT ARE THE SUBJECT OF THE CLAIM.
(c) This limitation of liability is a material basis for the parties' bargain and reflects the bargained-for allocation of risks between Seller and Buyer, without which Seller would not have agreed to provide the Products at the Contract Price.
11. Indemnification:
Buyer shall indemnify, defend and hold harmless Seller from and against all damages, losses, expenses and costs (including reasonable attorneys' fees and costs and expenses related to the enforcement by Seller of any such indemnity obligation) related to or arising from claims brought by a third party, on account of personal injury or damage to tangible property in connection with Buyer's obligations under this Contract and/or Buyer's handling, use, or sale of the Products.
12. Adequate Assurance:
Seller reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance of performance from Buyer without liability to Seller in the event of: (i) Buyer's insolvency, (ii) Buyer's filing of a voluntary petition in bankruptcy, (iii) the appointment of a receiver or trustee for Buyer or (iv) the execution by Buyer of an assignment for the benefit of creditors. Seller reserves its right to suspend its performance until payment or adequate assurance of performance is received and also reserves its right to cancel Buyer's credit at any time for any reason.
13. Termination:
In addition to any remedies that may be provided under these Terms and Conditions, Seller may terminate this Contract with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Contract and such failure continues for thirty (30) days after Buyer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
14. Amendment and Modification:
These Terms and Conditions may only be amended or modified in a writing which specifically states that it amends these Terms and Conditions and is signed by an authorized representative of each party.
15. Waiver:
No waiver by Seller of any of the provisions of this Contract is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16. Confidential Information:
All non-public, confidential or proprietary information of Seller or provided by Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Contract is confidential, solely for the use of performing this Contract and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Article. This Article does not apply to information that is: (a) in the public domain through no fault of Buyer; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party that had a lawful right to disclose it.
17. Force Majeure:
Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller, or Seller's suppliers, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, or the worsening, escalation or expansion of any of the foregoing.
18. Assignment:
Buyer shall not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of Seller. Any purported assignment or delegation in violation of this Article is null and void and shall not relieve Buyer of any of its obligations under this Contract.
19. Relationship of the Parties:
The relationship between the parties is that of independent contractors. Nothing contained in this Contract shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
20. Governing Law:
All matters arising out of or relating to this Contract are governed by and construed in accordance with the laws of the State of Indiana, without giving effect to any choice or conflict of law provision or rule (whether of the State of Indiana or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.
21. Submission to Jurisdiction:
Any legal suit, action or proceeding arising out of or relating to this Contract shall be commenced in the federal courts of the United States of America or the courts of the State of Indiana, in each case located in Marion County, City of Indianapolis, Indiana. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding arising out of these Terms and Conditions.
22. Notices:
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Contract or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), electronic transmission (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Contract, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Provision.
23. Severability:
If any term or provision of this Contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.
24. Survival:
Provisions of these Terms and Conditions which by their nature should apply beyond the Term of the Contract will remain in force after any termination or expiration of these Terms and Conditions including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Indemnification, Submission to Jurisdiction, and Survival.
25. Complete Agreement:
This Contract constitutes the entire agreement between Buyer and Seller relating to the subject matter hereof, and supersede all prior and contemporaneous discussions, understandings, and agreements related to the subject matter hereof. No terms, provisions, or conditions of any purchase order will have any effect on the obligations of the parties under or otherwise modify these Terms and Conditions of the Contract.
Contact Information
North America
Email: Contact@wd-bearing.com
Phone: +1 317 661 3293
Address: 5845 W 82nd Street, Suite 102, Indianapolis, IN 46278.
Europe
Email: Germany@wd-bearing.com
Phone: +49 2103 968 6352
Address: Ost Strasse 74A 40724, Hilden, Germany
Asia
Email: Sales@wd-bearing.com
Phone: 0510-8655 7067
Address: No. 100, Zhenyang Road,Jiangyin, Wuxi, P.R China, 214401
Contact Information
North America
Email: Contact@wd-bearing.com
Phone: +1 317 661 3293
Address: 5845 W 82nd Street, Suite 102, Indianapolis, IN 46278.
Europe
Email: Germany@wd-bearing.com
Phone: +49 2103 968 6352
Address: Ost Strasse 74A 40724, Hilden, Germany
Asia
Email: Sales@wd-bearing.com
Phone: 0510-8655 7067
Address: No. 100, Zhenyang Road,Jiangyin, Wuxi, P.R China, 214401
