These Terms and Conditions of Sale apply to the sales by the Company of any products to the original Buyer (“Buyer”). The term “Company” refers to WPK Enterprises LLC, dba EL TORO TRAINING and its affiliates with principal offices located at 130 Jane Street, Trafford Pennsylvania 15085. COMPANY SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, SAVINGS, OR REVENUE, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT SHALL COMPANY BE LIABLE TO BUYER, IN ANY FORM, IN EXCESS OF THE TOTAL SUMS ACTUALLY RECEIVED BY COMPANY FROM BUYER UNDER THIS AGREEMENT. This Agreement shall be governed by and construed in accordance with the laws of the State of Pennsylvania, and each party hereby agrees to submit to the exclusive jurisdiction of the United States District Court for the Western District of Pennsylvania for any actions, suits or proceedings arising out of or relating to this agreement and the transactions contemplated hereby.
This Limited Warranty only extends to the original Buyer of the products for a period of twelve (12) months from the original invoice date. Any warranty claims must be submitted in writing within thirty (30) days of the date of the incident, giving rise to the claim.
Warranty Coverage – The Company’s products are warranted against defective materials or workmanship under normal use and service consistent with any instructions provided by Company. This warranty is void if: the product has been damaged by accident or unreasonable use, neglect, alteration, abuse, misuse or other causes not arising out of defects in material workmanship; damage or defects incurred during shipment; or product name has been altered or defaced.
Warranty Remedies. The obligations of Company, and Buyer’s SOLE AND EXCLUSIVE REMEDIES hereunder, shall be strictly limited to the repair or replacement of the defective Products, in Company’s sole discretion. Should the Product be determined by Company to be so defective as to preclude the remedying of warranted defects by repair or replacement, or should the repair or replacement of the defective Products be impossible or impractical (as determined by Company in its sole discretion), Buyer’s SOLE AND EXCLUSIVE REMEDY shall then be the refund of the Invoice Price paid for the defective Products (or so much of the Invoice Price then-paid by Buyer for the defective Products). In the event that some, but not all, of the Products in a shipment are defective, Buyer shall have the remedies set forth above for the defective Products only, and Company shall not be required to repair, replace, or refund any monies in connection with the non-defective Products. THE REMEDIES SET FORTH IN THIS SECTION CONSTITUTE COMPANY’S SOLE LIABILITY AND BUYER’S SOLE AND EXCLUSIVE REMEDIES AND ARE EXPRESSLY IN LIEU OF ALL OTHER REMEDIES AT LAW OR IN EQUITY.
Warranty Disclaimers – THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ON THE PART OF COMPANY INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE, AND COMPANY NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON, FIRM OR CORPORATION TO ASSUME ANY LIABILITY OR OBLIGATION IN CONNECTION WITH THIS SALE ON ITS BEHALF AND BUYER ACKNOWLEDGES THAT NO REPRESENTATIONS EXCEPT THOSE MADE HEREIN HAVE BEEN MADE TO BUYER. COMPANY FURTHER DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED OTHER THAN AS EXPRESSLY SET FORTH HEREIN.
Company shall not be liable for any damages or claims resulting from delay in performance or for non-performance, directly or indirectly caused by circumstances beyond the reasonable control of the party affected, including, but not limited to, acts of God; fires; explosions; floods; war; acts of or authorized by any government commission, agency or jurisdiction; accident; labor or storage trouble; or inability to obtain material, equipment or transportation. Products so affected may be eliminated from the agreement without liability, but the agreement shall remain otherwise unaffected. Company shall have no obligation to purchase supplies of the products specified herein to enable it to perform under this agreement.
Company Standard Payment Terms are Prepayment, unless otherwise stated. Any cash discounts allowed shall apply to net material value after deducting transportation, but before additions or deductions for taxes, special packaging, or other charges. Company reserves the right to change these terms at any time. Any payment received by Company after due date shall be subject to a late payment charge not to exceed 1.5 % per month (18% per year) or less, if required by applicable law, until outstanding balance, including accrued late payment charge, is paid in full. The cash discount will be given only if payment to Company is U. S. postmarked on or before the cash discount date shown on the invoice.
All orders and shipments are subject to approval by Company’s Credit Department. Buyer unconditionally assigns to Company all lien rights that it may have, whether as a vendor or otherwise, to secure payment of moneys owed to Buyer by reason of Buyer’s sale of the products to a third party. Such assignment shall be limited in amount of the unpaid balance(s) owed by Buyer to Company for such products and shall remain in effect only for so long as such balance(s) shall remain unpaid. Buyer agrees to pay all reasonable attorneys’ fees and all expenses associates with the collection of moneys Buyer owes Company. Buyer hereby grants Company a security interest in the product sold to Buyer by Company and all proceeds thereof which will be deemed collateral for Buyer’s debt to Company until Buyer has paid Company for such product in full. In addition, Buyer authorizes Company to sign on behalf of Buyer UCC-1 Financing Statements perfecting Company’s security interest in the above collateral. If Buyer shall fail to make any payment when due, Company reserves the right to hold any shipments and/or reject or cancel any orders, without liability and without prior notice or warning, and without prejudice to any other right or remedy it may have. Further, Company shall be entitled to set off any and all payments or any monies owed to Buyer for any reason for all unpaid amounts owed to Company under this or any other agreement.
COMPLIANCE WITH LAWS
Products covered by this document were produced in accordance with applicable provisions of the Fair Labor Standards Act of 1938, as amended. In addition, the Company and Buyer agree to comply with all laws, rules and regulations, and any and all environmental laws.
Buyer Cancellation – In the event of Buyer cancellation, orders may be subject to liquidated damages in the amount of the cost of labor, overhead, and material used. Non-stocking or special-order products are not subject to Buyer’s cancellation once production has commenced.
Upon receipt of order acknowledgment from Company, Buyer must verify pricing, quantity, products, shipping instructions and shipping schedule on the order. Should any changes become necessary, Buyer shall notify Company’s Customer Service Representative in writing immediately. Failure to immediately notify Company and Company must re-stock products, a restocking charge of fifteen (15%) percent will be imposed.
Orders requiring certifications or certificates of compliance must be requested when orders are placed with Company. Company is under no obligation to provide such certifications, however, and the failure to provide such a certificate shall not excuse Buyer of its obligation to pay Company for any delivered products.
This agreement is not assignable or transferable by either party, in whole or in part, except with the written consent of the other party.
SHIPPING AND DELIVERY
Company will use best efforts to meet the requested shipment schedule, but not guarantee a delivery time, and assumes no liability for additional costs or damages resulting from late deliveries. Company reserves the right to ship orders at the most economical rate. Should the Buyer request special packaging or handling, the additional cost will be billed to the Buyer. Unless otherwise specified, Company shall ship all Products F.O.B. Export, PA, USA. Buyer shall determine the mode of, and shall be solely responsible for, transportation, shipping, and insurance. Buyer shall acquire title and ownership of all Products purchased by Buyer from Company upon pickup of such Products by Buyer and/or Buyer’s agent for transportation. Buyer shall bear the sole risk of loss of the Products from pickup until delivery to Buyer’s customer. Buyer shall have the obligation to inspect all Products upon receipt and promptly notify Company in writing of any alleged defects rendering the Products unfit for the intended use within seven (7) days of Buyer’s and/or Buyer’s agent’s pickup of the Products. Failure to timely notify Company of any defects shall constitute an acceptance of the Products by Buyer.
Buyer must obtain a written (RGA) Return Goods Authorization form from Company before returning any products to Company. Buyer shall bear all costs of transportation and shipping of materials returned to Company. Ownership and title of authorized returns will pass to Company upon receipt at Company’s facility. Company will determine acceptability of return materials for restocking and resaleability. Credit will be issued on resalable materials only. A restocking charge of up to twenty (20%) percent and freight cost for the returned materials may be charged to the account of the Buyer.
No order placed with Company shall be considered accepted until acknowledged in writing by Company. Company reserves the right to accept or reject any order. Possession of a Company price list does not constitute an offer to sell. The terms and conditions stated herein constitute the entire terms and conditions of sale between the parties. Any contrary or additional terms or conditions shall be void and have no force or effect unless specifically approved in writing by an authorized officer of Company. In the event of any inconsistency with these terms and conditions and any purchase order, scope of work or change order, these Terms and Conditions of Sale shall govern.
Neither the Invoice Price nor the MSRP includes federal, state or local taxes applicable to the Products sold under this Agreement. The Buyer shall be solely responsible for the payment of all applicable federal, state, and local taxes associated with the sale, production, transportation and shipment of the Products. All taxes will be shown on the invoice.
Buyer shall keep all information of whatever kind, including but not limited to personal, business, technical, financial, customer or contact information, or information about this or any other agreement, in whatever medium, obtained from the Company, confidential. However, Confidential information shall not include anything rightfully in the public domain, received by Buyer independently and legally from a third party.
Distributor shall only use Company’s corporate name, service marks, trade names, trademarks, logos, product names, copyrights, or other branding or intellectual property in connection with the sale or distribution of the Products. Distributor may not apply or use any other branding, of any kind whatsoever, in connection with the sale or distribution of the Products, unless agreed to in writing by Company.