Wurtec Incorporated Standard Terms and Conditions
These terms and conditions of sale/service constitute a legally binding contract between the "Company" and the "Customer".
- “Company” shall mean Wurtec, Incorporated, its subsidiaries, related companies, agents and/or representatives;
- “Customer” shall mean the business person or entity to whom Company is selling product or rendering service, as well as its owners, principals, employees, agents and/or representatives. It is the responsibility of the Customer to provide notice and copy(s) of these terms and conditions of sale and service to all such agents or representatives.
- “Company’s Products or Materials” shall mean and/or refer solely and exclusively to only products or materials designed and/or manufactured by Company.
- PAYMENT TERMS: Customer agrees to pay in full the invoice price, including applicable sales taxes, if any, for all purchases now or hereafter made from Company promptly when due according to the terms set forth on each invoice. Customer represents that Customer is financially capable of paying invoices as they become due. All bills for services evidenced hereby and all parts, materials, and chattels furnished in connection therewith, whether past, present, or future are payable to Company, at the remittance address indicated on the face of the invoice unless otherwise directed. If the total invoice price is not paid in full on or before the due date, Customer agrees to pay interest on the unpaid balance. Currently, the interest will be calculated at the rate of 8% per annum or the maximum rate allowed by law, whichever is less; however, Company does reserve the right to modify the interest upon prior notice to Customer(s). If the financial position of the Customer has so changed prior to completion of any order, Company may refuse to complete the order or make delivery of any further work or materials pending the satisfactory resolution of terms of payment. Customer and Company agree that such action on the part of the Company shall not be a cause of incurring any liability for damages against the Company. Customer agrees to pay in full all costs and expenses incurred by Company in collecting the amounts owed by Customer pursuant to these Terms and Conditions, including any and all court costs and attorney’s fees. Payments received will be applied against open items on unpaid invoices in an order and sequence determined by Company in its sole discretion. Returned checks regardless of the reason, are subject to a service charge in an amount not to exceed applicable law.
- VENUE AND APPLICABLE LAW: In the event of litigation or any such other legal dispute, the lawsuit or action shall take place in the state or federal court located in Toledo, Lucas County, Ohio, and Customer consents to the personal jurisdiction of such courts and Customer hereby waives its right to litigate in any other court. These Terms and Conditions of sales and service and the relationship of the parties shall be construed according to the laws of the State of Ohio without giving consideration to principles of conflict of law.
- CREDIT DISCRETION: Notwithstanding any term or condition herein to the contrary, this agreement shall not be construed as imposing any obligation on the part of Company to furnish credit in any amount, and Company in its sole and absolute discretion, may terminate, limit or re-evaluate any credit privileges of Customer (if any exist) at any time without prior notice to Customer. The exercise of this discretion shall be in addition to any other right or remedy which Company may have pursuant to these terms and conditions, or pursuant to applicable law.
- ENFORCEABILITY/AUTHORIZATION FOR CREDIT REVIEW: If Customer submits an application or request for credit from Company, Customer agrees not only to these Standard Terms and Conditions but also to all additional requirements associated with the requested credit. Customer hereby authorizes Company to obtain any and all information it deems necessary from any and all sources or references listed on Customer’s Application for Business Credit (“Application”) and from any credit bureau, creditors of Customer, trade references, banks or other financial institutions. Customer further authorizes each of such sources, references, credit bureaus, creditors, banks and financial institutions to supply Company such information as Company deems necessary to assist it in is consideration of this Customer’s application. Customer specifically authorizes Company to make, from time to time, inquiry of all trade and financial sources which are deemed necessary to properly evaluate Customer’s application and Customer’s continuing creditworthiness.
- DEFAULT: The occurrence of any of the following events shall constitute default under these Terms and Conditions: (a) Customer fails to fulfill any obligation of this agreement or to perform, or rectify the breach of any warranty or other undertaking by Customer pursuant to these Terms and Conditions; (b) Customer, or a guarantor of Customer’s indebtedness, dies, terminates existence, abandons its business, becomes insolvent, bankrupt, becomes subject to receivership, insolvency, or similar proceedings, or makes an assignment for the benefit of creditors; (c) Any information or other representations now or hereafter made or furnished to Company by Customer or at Customer’s request or instructions is, or is believed in good faith by Company to be, inaccurate, incomplete, or false in any material respect; (d) Customer violates or breaches any provision of these Terms and Conditions; (e) Any Collateral which is security for Customer’s indebtedness is lost, suffers material damage or destruction, is levied upon, becomes subject to a receivership, or cannot be located within five days after Company demands to inspect the same; (f) Any other event which causes Company, in good faith, to deem itself insecure or to believe that the prospect of performance of any provision of these Terms and Conditions by Customer is impaired.
- INVOICES: All payments for any products or materials furnished by Company shall be made upon the basis of materials delivered (or picked up) as shown by Company’s delivery ticket(s), whether signed by Customer or not, and/or by Company’s delivery records. For materials purchased, Customer will receive invoices from Company showing amounts delivered and payments due. Shipping costs and any and all applicable sales tax will be paid by the Customer and may be included on the invoice. Failure on the part of Customer to dispute in writing the accuracy within 20 days after its initial receipt constitutes agreement to the correctness of the invoice and acceptance of the products and/or materials covered by the invoice. Any products and/or materials returned within that 20 days will be subject to a restocking fee. Payment to Company shall be due pursuant to invoice terms, and is not contingent upon Customer’s receipt of payment or approval from any third party.
- METHODS OF PAYMENT: Acceptable forms of payment are cash, check, wire transfer, ACH authorization or credit card. If credit card or any other fee based payment is requested, the Company reserves the right to add a surcharge, not to exceed 2.5% of each invoice, wherever allowable by state and federal statute.
- SALES AND USE TAX: CUSTOMER AGREES THAT IN THE EVENT COMPANY IS TO PAY SALES, TRANSACTION PRIVILEGE, OR USE TAXES TO THE TAXING AUTHORITY OF ANY FEDERAL, STATE OR POLITICAL SUBDIVISION THEREOF IN CONNECTION WITH ANY SALE OF TANGIBLE PERSONAL PROPERTY OR OTHER ITEMS OR MATERIALS TO CUSTOMER AND/OR FOR THE PROCESSING, DELIVERY, FABRICATION OR TRANSPORTATION THEREOF, CUSTOMER WILL, UPON DEMAND, REIMBURSE, INDEMNIFY AND HOLD HARMLESS COMPANY FOR THE AMOUNT OF ANY SUCH TAX PAID, AND FOR THE AMOUNT OF ALL COSTS OR ATTORNEYS’ FEES INCURRED BY COMPANY IN CONTESTING OR COLLECTING SUCH TAX. IF THE TOTAL INVOICE PRICE IS NOT PAID IN FULL ON OR BEFORE THE DUE DATE, CUSTOMER AGREES TO PAY INTEREST ON THE UNPAID DELINQUENT BALANCE.
- WAIVER: Company may, at its option, permit Customer to remedy any default under these Terms and Conditions without waiving the default so remedied or any other subsequent or prior default by Customer, Customer waives notice of default of this agreement and waives presentment, demand, protest and notice of dishonor as to any instrument.
- BINDING AGREEMENT: This agreement shall inure to the benefit of the successors and assigns of Company, and shall be binding upon Customer’s heirs, legatees, devisees, personal representatives, successors and assigns.
- CORPORATE AUTHORITY AND LIABILITY: Customer warrants and represents that it has authority to enter into any sale, transaction and any other agreement, purchase order or any other such related agreements with Company and that any person signing any agreement with Company has been duly authorized to execute any such agreement for and on behalf of Customer. Customer acknowledges that Company is relying upon the creditworthiness and financial ability of the owner(s) and upon the business name of Customer; therefore, the owner(s) of Customer shall be liable to Company for all indebtedness of Customer then existing and thereafter incurred.
- ACCURACY OF INFORMATION: Customer certifies that any and all information now or hereafter supplied to Company by Customer, or at Customer’s request or instruction, is both accurate and complete, and Customer will, upon request, establish the accuracy and completeness of any such information. Customer shall promptly notify Company if Customer should change its name or begin to do business under any other name. Customer shall promptly notify Company if Customer should incorporate or organize its business at any time during any transaction or dealings with Company. All information furnished as a part of Customer’s transactions or dealings with Company becomes the property of Company.
- PROVISIONS OF INFORMATION: Customer is required to provide Company upon request information regarding bonding companies, general contractors, or owners for the purpose of filing preliminary notices, claims on payment bonds, or mechanics and materialmen’s liens.
- MODIFICATION OF TERMS: The terms of this Agreement may be modified or amended by Company at any time.
- BUSINESS PURPOSES: Customer agrees, represents and warrants at the time of each purchase that Customer’s account and/or credit transaction, if any shall be used only for purchases for commercial or business purposes, and not for personal, family or household purposes and Customer understands that Company is relying upon this representation. Customer understands that Customer’s acknowledgement that this is not a personal, family or household transaction means that important duties imposed upon Company, and important rights conferred upon a consumer, pursuant to certain federal or state laws, will not apply to any transaction or dealing with Company. Customer understands that Company will be unable to determine whether any given purchase conforms to this "Business Purposes" section. Customer agrees that a breach by Customer of this "Business Purposes" section will not affect Company’s right to enforce Customer’s promise to pay for the credit extended to Customer, including related charges, or to use any remedy legally available to Company even if that remedy would not have been available had the Account been established as a consumer credit account.
- LIMITATION OF WARRANTY: Unless otherwise agreed to in writing by both parties, Company warrants only that, for a period of one (1) year after purchase, Company’s Products or Materials sold hereunder shall be free from material defects in workmanship. For products and/or materials that Company sells but does not design or manufacture, Customer shall rely upon the original manufacturer’s warranty and Company shall have no duty nor legal responsibility to provide a warranty in regard to such product and /or material. Failure to timely pay any or all amounts due hereunder shall automatically void this express limited warranty made by Company. No agent, employee or representative of Company has authority to bind Company to any affirmation, representation or warranty concerning any products or materials sold to Customer, unless and until said affirmation, representation or warranty is expressed in writing and signed by an authorized Company representation. The description of the goods contained herein is the sole basis for this agreement, and no statements or representations other than those embodied herein have been made or relied upon. EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY DOES NOT MAKE AND SPECIFICALLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR ARISING BY TRADE USAGE OR COURSE OF DEALING, INCLUDING WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY IMPLIED INDEMNITIES. ANY DEFECT CAUSED BY IMPROPER USE, PROJECT DESIGN, INSTALLATION, STORAGE OR MAINTENANCE VOIDS ANY AND ALL WARRANTIES PROVIDED HEREUNDER.
- LIMITATION OF REMEDIES: THE EXCLUSIVE REMEDY TO CUSTOMER OR ANY OTHER PARTY AGAINST COMPANY FOR ALL CLAIMS OF ANY KIND, WHETHER BASED UPON CONTRACT, BREACH OF WARRANTY, OR, STRICT LIABILITY OR OTHERWISE FOR ANY LOSS OR DAMAGES ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE SALE OR FAILURE TO SELL, SHALL BE REPLACEMENT OF THE PRODUCTS SOLD F.O.B. COMPANY’S PLANT OR AT COMPANY’S OPTION, REFUND OF THE PURCHASE PRICE PAID FOR THE PRODUCTS SOLD BY COMPANY HEREUNDER. NO OTHER REMEDY SHALL BE AVAILABLE TO CUSTOMER.
- INDEMNITY: TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS, INSURERS, SURETIES, AND PARENT AND AFFILIATED CORPORATIONS (HEREINAFTER “INDEMNITEES”), HARMLESS FROM ANY AND ALL LOSSES, CONSEQUENTIAL DAMAGES, EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS', CONSULTANTS' AND EXPERTS' FEES), CLAIMS, SUITS, LIABILITIES, FINES, PENALTIES, AND REMEDIAL OR CLEAN-UP COSTS ARISING OUT OF OR IN ANY WAY RELATED TO THE PERFORMANCE OF THIS AGREEMENT BY CUSTOMEROR THE EMPLOYEES, AGENTS, SUBCONTRACTORS OR SUPPLIER(S) OF CUSTOMER EVEN IF CAUSED IN WHOLE OR IN PART BY THE NEGLIGENT ACTS OR OMISSIONS OF ANY INDEMNITEES, IT BEING THE EXPRESS INTENT OF THE PARTIES THAT CUSTOMER INDEMNIFY ANY INDEMNITEE FROM THEIR OWN PARTIAL NEGLIGENCE. CUSTOMER SHALL PROCURE CONTRACTUAL LIABILITY INSURANCE COVERING ITS OBLIGATIONS IN THIS PARAGRAPH.
- MANDATORY BINDING ARBITRATION: Any dispute arising under these Terms and Conditions shall be submitted to and resolved by binding arbitration. The American Arbitration association shall conduct the arbitration unless the parties mutually agree to use an alternative arbitration service. The costs of the arbitration shall be borne equally by the parties. Judgment upon any award made by the arbitrator may be entered in any court having jurisdiction.
- SECURITY INTEREST: Customer herby grants Company a security interest in all products, materials, components and related parts sold hereunder, whether or not the same become fixtures. Should Customer fail to pay all or portions of any amounts due and payable hereunder, breach these Terms and Conditions or otherwise default, Company shall have all rights and remedies as a secured party available to it under law or equity including but not limited to rights of self-help (i.e. without notice) to repossess all or any portion of such material. Additionally, should Customer for any reason fail to accept, receive shipment and/or coordinate shipment with Company, Company may choose to but is not obligated to do so, store Customer’s ordered products and materials for a period not to exceed thirty (30) days. Company shall be entitled to charge and Customer shall pay a storage surcharge for any such incidences.
- SAFETY: Customer must provide a safe delivery site and comply with all federal, state and local safety laws, rules, ordinances and other requirements. CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS COMPANY, ITS AGENTS, EMPLOYEES AND CONTRACTORS FROM, AND SHALL DEFEND ANY AND ALL ACTIONS, CLAIMS, SUITS OR PROCEEDINGS THAT MAY SUBJECT COMPANY TO LIABILITY ARISING FROM CUSTOMER’S FAILURE OR INABILITY TO PROPERLY HANDLE THE PRODUCTS OR MATERIALS, OR PROVIDE A SAFE DELIVERY SITE.
- ENTIRE AGREEMENT: These Terms and Conditions, in combination with any further or additional terms and conditions attached to Company’s invoice, purchase order and/or delivery ticket which are incorporated herein by reference represent the entire agreement between the parties. Any terms, including those on any Customer purchase order, which are different, conflicting, add to, modify, supersede or otherwise alter the Terms without expressed written approval signed by an authorized representative of the Company are hereby rejected.
- ADDITIONAL PROVISIONS: (a) The rights and remedies of Company stated in these Terms and Conditions are cumulative and are in addition to any other rights or remedies provided by law. In the event that Customer requests the extension of credit through subcontract or other work to be furnished by Company, any such agreement shall be in writing. In that event, that subcontract or other agreement shall be subject to these Terms and Conditions and any other terms as required by Company. (b) Customer agrees that Company shall have the right to set off any amounts which may become payable by Customer(or any of its affiliates if Customer is a corporation, partnership, or limited liability company) to Company arising, either directly or indirectly, from the granting of credit to, and the establishment of an account for, Customer hereunder against any amounts which Company may owe to Customer whether arising from the credit granted hereunder or under any contract, subcontract, purchase order, or other agreements(s) between Customer and Company or Company’s parent and affiliate corporations. (c)Customer acknowledges and agrees that in the event Company terminates Customer’s credit account (if such exists) for whatever reason, Company shall have the right, at its option, to terminate or suspend performance of any contracts, subcontracts, purchase orders, or other agreements to which Customer (or any of its affiliates if Customer is a corporation or limited liability company) and Company are parties thereto without liability therefore. (d) Customer acknowledges and agrees that any and all funds paid to Customer for any work or materials supplied by Company shall be held by Customer in trust for the payment of Customer’s indebtedness to Company. Neither Customer, nor any person claiming under or through Customer, shall have any legal or equitable interest or ownership rights of any nature in funds held in trust unless and until the purpose and intent of such trust is fully discharged. The holding of funds in trust shall be for the sole benefit and protection of Company, and no third party shall have any rights in such funds as a beneficiary or otherwise. (e) Customer acknowledges and agrees that Company shall have the continuing right at any time to request and receive from Customer: (i) payment assurances of Customer’s outstanding account balance; and (ii) updated financial information for the credit privileges extended hereunder. (f) A facsimile or duplicate copy of these Terms and Conditions shall be considered an original of the document. (g) All claims for freight allowances must be supported by paid freight bills. (h) Company shall not be liable for delays in performance or completion of work or delivery of materials due to delays of carriers, delays in manufacturing, fabrication, natural disasters, embargos, riots, civil commotion, government action or other causes beyond the Company’s reasonable control or for any direct or indirect losses due to any such causes. (i) All parties are on notice that these Terms and Conditions cannot be varied, released or waived by any employee or agent of the Company except by written instrument signed by a duly authorized officer of the Company.