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W&O Supply, Inc. General Terms and Condition of Sale


By acceptance of the goods described herein, Buyer, together with his affiliates, successors and assigns, expressly acknowledges and agrees as follows:


1. Warranty. The warranty described below applies only to new or unused goods or goods reconditioned by W & O Supply Inc. (Seller). The Seller specifically disclaims any and all warranties for used goods or goods sold as is.  For a period of twelve (12) months after date of delivery of any of the goods described herein, Seller warrants such goods shall remain free from failure due to defects in workmanship and materials incorporated therein by or for Seller provided such failure shall not have been caused or contributed to by improper usage, service or application, improper installation or maintenance, repairs, alterations, or modifications effected by or for the user, misuse, negligence or accident.  In the event of failure for which Seller has assumed warranty obligations hereunder, and provided written notification of such failure shall be immediately given to Seller, it agrees to repair, or at its option, to replace the goods sold at its sole expense.

Apart from the warranty and undertaking above set forth, or unless otherwise specifically consented to in writing by Seller, Seller assumes no obligation or liability for losses, expense or damages, direct or consequential, suffered or incurred as a result of any failure of, or defect in, the goods described herein, including but not limited to, such costs, expenses or damages as may result from the necessity to remove, replace restore or transport the goods from any location or service in which they may be used, regardless of the cause of such failure or defect.  There are no other warranties, express or implied, of any kind given with respect to the goods, their merchantability, fitness for any particular purpose or usage, or otherwise, nor is any person authorized to extend on behalf of Seller any form of warranty other than that above set forth. Except as set forth herein, all goods are sold “AS IS, WHERE IS” WITH ALL FAULTS.

2. Acceptance of Orders and Special Orders. All orders are subject to acceptance by Seller in writing. No assignment of the Buyer's rights may be made without the written consent of the Seller. Orders for special materials are subject to cancellation only upon agreement to make payment for the work performed, material used, and a reasonable profit.

3. Payment Terms. All amounts are payable on invoice due date. All accounts are payable in the currency indicated on the invoice, free of exchange fees, collection fees, or any other charges, if in the sole discretion of Seller, the financial condition of the Buyer at any time so requires. Seller retains the right to require full or partial payment in advance, to set spending limits for credit accounts or to require other adequate assurances of financial responsibility. Seller reserves the right to make partial shipments from time to time and render invoices therefore, which shall be due and payable as provided in said invoices. Unpaid service charges will be considered past due. In the event of default in payment and if same is placed in the hands of an attorney or other agency for collection, the buyer agrees to pay all costs of collection, including reasonable attorney's fees.

4. INCOTERMS and Freight Charges. Unless otherwise specified within the Purchase Order, INCOTERMS will be Ex Works Seller’s facility.  Incoterms rules, intended to clearly communicate  responsibility for tasks costs, and risks associated with the transportation and delivery of goods, must follow definitions outlined in the Incoterms rules published by the International Chamber of Commerce.  Applicable shipping handling charges may apply.

5. Taxes. Unless otherwise specifically noted, the amount of any sales, use, occupancy, excise tax, or other tax, of any nature, federal, state, or local, for which Seller is legally liable shall be added or be in addition to the price quoted and Buyer agrees to pay the same to Seller. Buyer shall be responsible for payment of all sales, use or other taxes, assessments, fees or duties arising from the Buyer's purchase from the Seller.

6. Limitation of Liability. The Seller, as a distributor, their affiliates and their respective officers, directors, employees, advisors, and agents (hereinafter referred to as “Seller”) will not be liable for any and all losses, claims, damages to which the Seller may become subject arising out of or in connection with the Purchase Order associated with these terms and conditions, including any delay, cancellation, rejection, and/or rescission of the Purchase Order. As a distributor, the Seller will make all reasonable efforts to expedite the manufacturing and delivery of all products related to this Purchase Order.  Should the Seller become aware of any delays in the manufacturing and delivery processes, the Seller shall make all reasonable efforts to notify interested parties, as determined by the Seller, of the nature and expected duration of such delay.  Furthermore, the Buyer agrees to reimburse the Seller upon demand for any reasonable legal or other expenses incurred in connection with investigating or defending any of the foregoing and to reimburse the Seller on demand for all out-of-pocket expenses, including due diligence expenses, syndication expenses, consultant's fees and expenses, travel expenses and reasonable fees, charges and disbursements of counsel, incurred in connection with the foregoing and any related documentation or the administration, amendment, modification or waiver thereof.  It is understood and agreed that, to the extent not precluded by a conflict of interest, the Seller and the Buyer shall endeavor to work cooperatively with a view to minimizing the legal and other expenses associated with any defense and any potential settlement or judgment.

7. Indemnity. Buyer shall indemnify and hold harmless Seller and defend Seller if Seller requests, as to any claims, liabilities, losses, damages, awards, judgments, fines, penalties, costs and expenses (including, without limitation, attorneys' fees and other legal expenses) brought against, incurred, awarded, assessed, or levied against any Seller,  as a direct or indirect consequence because of (l) any breach by Buyer of any of its warranties to, or agreements with Seller,  (2) any claim that any of the goods or services infringes any patent, trademark, copyright or other intellectual property right, anywhere in the world, (3) any death, injury or damage to any person or property (including any Seller property and employees) alleged to have been caused by the goods or services including but not limited to claims of negligence, personal injury, product liability, or defective merchandise claims, or claims arising as a consequence of any voluntary or involuntary products recalls or by Buyer's or any subcontractors of Buyer's manufacture of the goods or performance of the services, or (4) any contract or commitment entered into or made by Buyer with or to any third party that provides goods, materials or services to Buyer in connection with the Purchase Order. Seller, shall have the right to participate with Buyer in the defense of any claim, which participation shall be at Seller’s expense, except that if Buyer shall have failed, upon Seller’s request, to assume the defense or to employ counsel satisfactory to Seller, then Buyer shall reimburse Seller, on a monthly basis, for all costs and expenses, including attorney’s fees, that Seller incurs in connection with the defense. Buyer shall not be required to indemnify Seller against or hold Seller harmless from Seller’s own sole negligence

8. Force Majeure. An “Event of Force Majeure” means any circumstance not within the reasonable control of the Seller, but only if and to the extent that (i) such circumstance, despite the exercise of reasonable diligence, cannot be, or be caused to be, prevented, avoided or removed by the Seller and (ii) such circumstance materially and adversely affects the ability of the Seller to perform its obligations under this Agreement, and the Seller has taken all reasonable precautions, due care and reasonable alternative measures in order to avoid the effect of such event on the Seller’s ability to perform its obligations under this Agreement and to mitigate the consequences thereof.  Seller shall be excused from performance and shall not be in default in respect of any obligation hereunder to the extent that the failure to perform such obligation is due to a Natural Force Majeure Event. Additionally, Seller shall be excused from performance and shall not be in default in respect of any obligation under this Agreement to the extent that the failure to perform such obligation is due to a Political Force Majeure Event. 

9. Returns and Cancellations. No product may be returned without Seller's prior written consent. All goods returned are subject to a handling charge plus freight in directions, restocking fees and charges for any required reconditioning, unless otherwise specified in writing by Seller. Overages, shortages and incorrect material Cancellation claims must be made in writing within ten (10) days of receipt of goods. Cancellation of orders once placed with and accepted by Seller may be made only with its written consent.

10. No Waiver. Seller's failure to insist upon any of the terms, covenants, or conditions listed herein or to exercise any right hereunder shall not be construed as a waiver or relinquishment of the future performances of any such term, covenant or condition, or the future exercise of such right or a waiver or relinquishment or waiver of any other term, covenant or condition or the exercise of any other rights hereunder.

11. Drawings, Data and Confidential Information. The weights, dimensions, capacities, prices, performance ratings and other data included in catalogues, prospectuses, circulars, advertisements, illustrated matter and price lists constitute a guide. These data shall not be binding except to the extent that they are by reference expressly included in the Purchase Order. Any drawings or technical documents intended for use in the manufacture of machinery, equipment, plants, parts, or other material and any ancillary services associated therewith, or a part thereof, and submitted to the Buyer prior or subsequent to the formation of the Purchase Order, remain the exclusive property of the Seller. They shall not, without the Seller's consent, be utilized by the Buyer or copied, reproduced, transmitted or communicated to an unauthorized third party, provided, however, that the said plans and documents shall be the property of the Buyer if it is expressly so agreed in writing. Any drawings or technical documents intended for use in the construction of the Material or of part thereof and submitted to the Seller by the Buyer prior or subsequent to the formation of the Purchase Order remain the exclusive property of the Buyer. They shall not, without Buyer's consent in writing, be utilized by the Seller or copied, reproduced, transmitted or communicated to an unauthorized third party.

12. Governing Law. These terms and conditions shall be governed by, construed and enforced in accordance with the laws of the State of Florida.

13. Totality of Agreement, Special Provisions, Modifications. This instrument, and its related Purchase Order, constitutes the entire agreement of the parties with respect to all matters and things herein mentioned and, unless otherwise agreed to in writing, reflects the express terms of this contractual agreement. It is expressly acknowledged and agreed by and between the parties that neither party has, nor is now, relying upon any collateral, prior or contemporaneous agreement: written or oral, assurance or assurances, representation or warranty, of any kind or nature as to or respecting the condition or capabilities of the goods and the other matters and things, rights and responsibilities herein fixed and described. No modification, waiver or discharge of any term or provision of this instrument shall be implied by law, nor shall any alteration, modification or acquittal of any such term or provision be effective for any purpose unless in writing signed by or upon behalf of the party charged therewith.