1. Governing Provisions; Order Acceptance.
These terms and conditions (“Terms”) govern the sale of products (the “Products”) by Wiseco to the buyer of the Products (“Buyer”). The quote, order acknowledgment and/or invoice of Wiseco attached to these Terms, together with these Terms, other specifications for the Products and any packing slip of Wiseco comprise the entire agreement between the parties with respect to the Products (the “Contract”). In the event of conflict between a provision in the Terms and any other component of the Contract, these Terms shall prevail. This Contract supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral between the parties with respect to the purchase of Products. No additional or different terms will be binding upon Wiseco unless specifically agreed to in writing by an authorized representative of Wiseco. Any additional or different terms proposed by Buyer, either previously or in the future, whether in a purchase order, other communication or otherwise, are hereby rejected and shall not apply. Wiseco’s failure to object to provisions contained in any purchase order or other communication from Buyer shall not be construed as a waiver of these Terms nor an acceptance of any such provisions. Wiseco is not bound by any order until it is either accepted in writing by an authorized representative of Wiseco or Wiseco ships the Products, whichever occurs first.
2. Delivery; Title.
Wiseco does not guarantee delivery on any specific date and Wiseco will not be liable for any damages caused by a delay in a projected or estimated delivery date. The Products are delivered FOB shipping point, using Wiseco’s standard methods for packaging and shipping any Products. Acceptance of a shipment by a common carrier constitutes delivery to Buyer, at which time all risk of loss transfers to Buyer. Wiseco may choose the means of transportation and the route of shipments unless otherwise agreed in writing prior to acceptance of an order. The Buyer must make any claim for shortages and other errors in delivery in writing to Wiseco within 5 days after receipt of the Products. Failure to give such notice constitutes an unqualified acceptance of the Products and a waiver of any claim Buyer may have regarding the delivery. Wiseco reserves the right to make delivery in installments. Any installments will be separately invoiced and paid for when due, as set forth on the invoice, without regard to subsequent deliveries.
The Buyer may not cancel an order after it is accepted by Wiseco, unless Wiseco agrees in writing. Any reduction in quantities ordered constitutes a cancellation. In the event Wiseco agrees to a cancellation, Buyer shall pay all costs and expenses (including indirect expenses) directly or indirectly caused by Buyer’s cancelation.
Each of the following are an “Event of Default”: (i) Buyer fails to pay Wiseco for any amount owed to Wiseco under the Contract when due; (ii) Buyer breaches any provision of the Contract; (iii) Buyer files a petition, answer or consent to a petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable federal, state or foreign bankruptcy law; (iv) Buyer consents to proceedings or actions instituting a receiver, liquidator, assignee, trustee, custodian or similar official of the Buyer; (v) the insolvency of Buyer.
Upon an Event of Default, Wiseco may, in addition to exercising any or all other rights and remedies that Wiseco may have, (i) demand full or partial payment in advance before proceeding or continuing with performance of the Contract, (ii) defer delivery of the Products and/or (iii) without notice to Buyer, cancel any or all of Wiseco’s unperformed obligations under the Contract or with any other agreement to which Buyer and Wiseco are parties. Upon any cancellation pursuant to this Section, Buyer shall pay Wiseco for any Products delivered and for the full Price of any accepted order at the time this Contract is terminated.
5. Quotations; Prices.
. Any written quotations automatically expire 30 calendar days from the date issued unless sooner terminated by notice. Verbal quotations expire, unless accepted in writing, the same day they are made. Buyer shall pay the purchase price for the Products specified in the quotation or invoice, as applicable, and shall at all times be subject to any then applicable pricing policy of Wiseco, including any modifications or adjustments to the pricing policy (the “Price”). The Price will include ordinary pre-delivery packing only. Prices are subject to escalation in future quotations or orders.
Unless otherwise stated in the Contract, net invoice amounts are due upon receipt of the invoice. Wiseco may issue invoices as it makes partial shipments. Prices do not include taxes or other charges. The Buyer shall pay any manufacturer’s tax, retailer’s occupation tax, use tax, sales tax, excise tax, inspection or testing fee, or any other like tax, fee or charge of any nature whatsoever, imposed by any governmental authority, on or measured by any transaction between Wiseco and Buyer, in addition to the Price. In the event Wiseco is required to pay any tax, fee or charge and/or any associated penalties and interest, Buyer shall reimburse Wiseco. If Buyer is exempt from any applicable tax or fee, then Buyer shall provide Wiseco at the time the order is submitted with an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge. All payments shall be made in United States currency. If shipment is delayed beyond the scheduled date for the convenience of Buyer, payment shall be due in full when Wiseco is prepared to make the shipment. Interest shall be payable by Buyer on any amount not paid when due at the rate of 1.5% per month, or the maximum rate allowable by law, whichever is less, calculated daily and compounded monthly. Buyer shall reimburse Wiseco for all collection costs, court costs, administration costs, investigation costs, attorneys’ fees and all other incidental costs, charges or expenses incurred in the collection of past due amounts or otherwise resulting or arising from any breach by Buyer of the Contract.
7. Limited Warranty and Limitation of Liability.
Wiseco warrants that any Product manufactured by Wiseco will be free from defects in material and workmanship for 30 days following date of original purchase (“Wiseco Warranty”). The Wiseco Warranty extends to the End-User of such Product. The End-User is defined as the person purchasing the Products directly from Wiseco or an authorized dealer of Wiseco. Wiseco specifically disclaims all warranties on any Product not manufactured by Wiseco. No warranty is transferable by the End-User. As a condition to granting the Wiseco Warranty, Buyer covenants to use the Product with due care and consistently with the Product’s specifications. Any failure of Buyer to adhere to this covenant voids the Wiseco Warranty. Such failure includes, without limitation, misuse, mishandling, misapplication, neglect (including but not limited to improper maintenance), accident, improper installation, modification (including but not limited to use of unauthorized parts or attachments), or adjustment or repair performed by anyone other than Wiseco.
THE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES (EXCEPT OF TITLE), ARISING FROM OPERATION OF LAW, OR ARISING FROM TRADE USAGE OR COURSE OF DEALING, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Wiseco shall not be subject to any other obligations or liabilities whatsoever, with respect to the Products manufactured or furnished by it, or any undertakings, acts or omissions relating thereto.
If Buyer believes a Product is defective and therefore covered by the Wiseco Warranty, the Buyer shall initiate an RMA as set forth in Section 8 of this Contract. If Wiseco determines that such Product is covered under the Wiseco Warranty, then Wiseco, at its option may, (i) repair the Product, (ii) replace the Product, or (iii) refund the Price of the Product.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE CONTRACT, Wiseco SHALL NOT BE LIABLE FOR ANY OF THE FOLLOWING TYPES OF LOSS OR DAMAGE ARISING UNDER OR IN RELATION TO THE CONTRACT (WHETHER ARISING BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE AND WHETHER OR NOT SUCH LOSS OR DAMAGE IS FORESEEABLE, FORESEEN OR KNOWN): (I) ANY LOSS OF PROFITS, BUSINESS, CONTRACTS, ANTICIPATED SAVINGS, GOODWILL OR REVENUE, ANY WASTED EXPENDITURE, OR ANY LOSS OR CORRUPTION OF DATA (REGARDLESS OF WHETHER ANY OF THESE TYPES OF LOSS OR DAMAGE ARE DIRECT, INDIRECT OR CONSEQUENTIAL); OR (II) ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND HOWSOEVER ARISING, EVEN IF ANY OF THE LIMITED REMEDIES OF THIS CONTRACT FAIL TO FULFILL THEIR ESSENTIAL PURPOSE. IN NO EVENT SHALL Wiseco’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE PRODUCTS, ANY ANCILLARY SERVICES PROVIDED BY Wiseco, OR THE CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO Wiseco WITH RESPECT TO THE PRICE PAID FOR SUCH PRODUCT OR PRODUCTS GIVING RISE TO Wiseco’S LIABILITY.
8. Return of Products for Credit Consideration.
Wiseco is not required to accept any returns, but may accept returns from time to time in its sole discretion. All Products returned must have an authorized RMA (Returned Materials Authorization) number issued by Wiseco. Buyer shall apply for an RMA number by calling Wiseco at the following telephone numbers: (a) for Wiseco Branded Products, 800-321-1364 or 440-951-6600; (b) for JE Piston or SRP Branded Products, 714-898-9763 x4211. When applying for the RMA number, Buyer must provide the article/product serial number, date of original shipment, original invoice number and any other details requested by Wiseco. Products returned for the convenience of Buyer, or any reason beyond the control of Wiseco, will be subject to a minimum service charge of 20% of the invoiced Price for such Products. The Buyer shall prepay all transportation costs associated with a return. The return of any non-standard items may be subject to higher restocking fees at Wiseco’s sole discretion. Returns must be made within 30 days after the date of shipment. Should a claim be found to be a valid Warranty claim, Buyer shall receive pre-paid freight reimbursement from Wiseco’s plant of origin to the original shipping destination. All items returned must be in new and unused condition and will be inspected prior to credit being issued. No obsolete or customized Products or parts may be returned. All items returned to Wiseco must be shipped freight prepaid, properly protected and intact to:
• For Wiseco / ProX Branded Products:
– In United States: Pro-X, Inc • 7201 Industrial Park Blvd. • Mentor, Ohio 44060-5396
– In Canada: Pro-X Canada, Inc. • 948 Keyes Drive, PO Box 1513 • Woodstock, ONT. N4S 0A7
• For JE Piston or SRP Branded Products:
– JE Pistons Returns. • 7201 Industrial Park Blvd. • Mentor, Ohio 44060-5396
All non-public, confidential or proprietary information of Wiseco, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, pricing, discounts or rebates, disclosed by Wiseco (or any of its subcontractors or subsuppliers) 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, used or copied unless authorized in advance by Wiseco in writing or unless expressly permitted in the Contract. Upon Wiseco’s request, Buyer shall promptly return all documents and other materials received from Wiseco. Wiseco shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. Neither Buyer itself shall, nor shall Buyer permit any party to, reverse engineer Wiseco’s Products and or Product components.
10. Security Interest.
As collateral security for the payment of the Price of the Products, Buyer hereby grants to Wiseco a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.
BUYER SHALL INDEMNIFY AND DEFEND Wiseco AND ITS AFFILIATES AGAINST ANY AND ALL LOSSES, DAMAGES AND EXPENSES (INCLUDING ATTORNEY’S FEES AND OTHER COSTS OF DEFENDING ANY ACTION) THAT IT MAY SUSTAIN OR INCUR AS A RESULT OF: (I) THE USE, OPERATION OR POSSESSION OF THE PRODUCTS BY BUYER, (II) THE ALTERATION OR MODIFICATION OF THE PRODUCTS OR THE USE OR COMBINATION OF THE PRODUCTS WITH OTHER PRODUCTS OR DEVICES BY BUYER, (III) A NEGLIGENT OR WILLFUL ACT OR OMISSION OF BUYER, (IV) THE BREACH BY BUYER OF THIS CONTRACT, OR (V) THE FAILURE OF BUYER TO COMPLY WITH ANY APPLICABLE LAW OR REGULATION.
12. Governing Law; Venue.
The Contract and all claims arising from the relationship between Wiseco and Buyer will be interpreted, governed and enforced by the laws of the State of Ohio, without regard to any conflict of laws principles and to the exclusion of the provisions of the United Nations Convention on the International Sale of Goods. The parties agree that all litigation between Wiseco and Buyer which may arise out of or in connection with the Contract or any transaction between them shall be subject to the exclusive jurisdiction of the federal and state courts in the State of Ohio, and each hereby consents to the jurisdiction of such courts. Buyer agrees that any and all processes directed to it in any such litigation may be served upon it outside of the State of Ohio with the same force and effect as if such service had been made within the State of Ohio.
The Contract shall be binding upon the respective permitted assignees, successors, executors, administrators and heirs of the parties.
14. No Waiver/Severability.
Any waiver by either party of any breach of any provision of the Contract shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver or modification of the provision itself, or a waiver or modification of any right under the Contract. If any part of the Contract is void, voidable, invalid, or unenforceable, for any reason, the other provisions in the Contract shall then be considered divisible as to such part, with the remainder of the Contract remaining as valid and binding as though such part were not included in the Contract.
Buyer represents and warrants that it will not directly or indirectly arrange for or participate in the export or sale of Products, in whole or in part, outside of the territory agreed to by Buyer and Wiseco or, if none, the country to which Wiseco shipped the Products (the “Territory”), without Wiseco’s prior written consent. Buyer agrees that Buyer will take all reasonable and adequate steps to prevent the export or sale of the Products outside of the Territory by others who purchase or lease from Buyer who might reasonably be expected to export or sell them outside the Territory. It shall be Buyer’s responsibility to investigate and determine whether any sale or lease by Buyer would be in violation of this Section 15. In the event that Buyer is in violation of this Section 15, any and all warranties provided by Wiseco for the Products involved in such violation shall immediately become null and void and Buyer shall indemnify and hold Wiseco harmless from any liability arising out of such prohibited export or sale.
16. Intellectual Property.
All intellectual property rights in, or relating to, the Products are owned by or licensed to Wiseco and nothing herein shall have the effect of transferring the ownership of such intellectual property rights to Buyer. In the event of any third party demand, claim or action alleging that the proper use of the Products by Buyer in accordance with any instructions and directions issued with or in relation to such Products by Wiseco infringes any patent or other intellectual property right belonging to a third party, Buyer shall: (i) promptly notify Wiseco in writing of such claim; (ii) not make any admission in relation to or attempt to settle or compromise the claim; (iii) give Wiseco express authority to conduct all negotiations and litigation, and to settle all litigation, arising from such claim; and (iv) provide Wiseco with all available information, documents and assistance as Wiseco may reasonably require, including without limitation ceasing to use the Products if deemed reasonably necessary by Wiseco until the infringement claim is resolved. Wiseco may also, at any time, at its option: (i) procure for Buyer the right to continue to use the Products and/or Services in question, free of any liability for such infringement; or (ii) direct Buyer to cease use of and not market or sell such Products and/or Services and (a) modify the Products and/or Services in question so that they become non-infringing; (b) substitute the Products and/or Services in question with functionally equivalent non-infringing Products and/or Services; or (c) refund the price paid by Buyer for the infringing Products and/or Services. This section states the entire liability of Wiseco for any infringement of third party intellectual property rights. Buyer shall indemnify Wiseco from and against all losses, damages, costs, liabilities and expenses (including legal expenses) arising out of or in connection with any third party demand, claim or action alleging that any Product manufactured or Service provided by Wiseco in accordance with designs and/or specifications provided to Wiseco by Buyer infringes any patent or other intellectual property right belonging to a third party.
17. Force Majeure.
Wiseco shall not be liable for damages under the Contract for a delay or failure in its performance under the Contract as a result of causes beyond its reasonable control, including any law, order, regulation, direction, or request of any government having or claiming to have jurisdiction over Wiseco, its subcontractors and/or its suppliers; failure or delay of transportation; insurrection, riots, national emergencies, war, acts of public enemies, strikes or inability to obtain necessary labor, manufacturing facilities, material or components from Wiseco’s usual sources; fires, floods or other catastrophes; acts of God, acts of omissions of Buyer or any causes beyond the reasonable control of Wiseco and/or of its suppliers. Upon the giving of prompt written notice to Buyer of any such causes of a delay or failure in its performance of any obligation under the Contract, the time of performance by Wiseco shall be extended to the extent and for the period that its performance of said obligations is prevented by such cause.
18. Anti-Bribery Compliance.
Buyer hereby certifies that Buyer and its directors, officers, employees, agents, sub-contractors and/or consultants: (i) are familiar with, and shall comply in all respects with, all applicable laws in force from time to time regarding bribery, fraudulent acts, corrupt practices and/or money laundering, including the U.S. Foreign Corrupt Practices Act, as amended, and the U.K. Bribery Act 2010, as amended; (ii) have not and shall not authorize or make any payments or gifts or any offers or promises of payments or gifts of any kind, directly or indirectly, in connection with the Contract to any “foreign official,” including (a) any official, agent, or employee of any government or governmental agency; (b) any political party or officer, employee or agent thereof; or (c) any holder of public office or candidate for political office; and (iii) are not officials or employees of any government, an official of a political party, or a candidate for political office, or a director, officer, employee, or affiliate of a government instrumentality. Buyer understands that for purposes of this section, a “foreign official” may include an employee or official of a commercial entity in which a government body has an ownership interest or exerts control over the activities of such entity, as well as officials and employees of public international organizations.