Conditions of Use
I. WESTENDORF STANDARD TERMS AND CONDITIONS
A. SALES POLICY FOR PRODUCTS
1. Prices
Prices listed do not include freight, handling fees, taxes, and/or duties, and are subject to correction or change without notice. Customer should contact Westendorf or check online at http://www.loaders.com/ for current pricing. Westendorf reserves the right to accept or reject any order.
2. Sales Tax
Customer is responsible for payment of all applicable state and local taxes, or for providing a valid sales tax exemption certificate. When placing an order, customer shall indicate which products are tax exempt.
3. Payment and Credit Terms
Westendorf accepts cash, checks, money orders, Visa, MasterCard, Discover and American Express. For customers with established Westendorf credit, payment terms are net thirty (30) days from the date of shipment or pick-up of products. All credit extended by Westendorf and the limits of such credit, is at Westendorf’s sole discretion, and may be reduced or revoked by Westendorf at any time, for any reason. As a condition for the continued extension of credit, customer agrees to provide Westendorf with current credit information and the latest annual financial statement within five (5) business days following request by Westendorf. Westendorf reserves the right to charge a convenience fee for late payments. Westendorf further reserves the right to charge customer a late payment fee at the rate of one and one-half percent (1-1/2%) of the amount due for each month or portion thereof that the amount due remains unpaid, or such amount as may be permitted under applicable law. All payments must be made in U.S. dollars. Westendorf has the right of set-off and deduction for any sums owed by the customer to Westendorf.
If the customer fails to make payment within thirty (30) days of shipment or pick-up, or fails to comply with Westendorf’s credit terms, or fails to supply adequate assurance of full performance to Westendorf within a reasonable time after requested by Westendorf (such time as specified in Westendorf's request), Westendorf may defer shipments until such payment or compliance is made, require cash in advance for any further shipments, demand immediate payment of all amounts then owed, elect to pursue collection action (including without limitation, attorneys’ fees and any and all other associated costs of collection), and/or may, at its option, cancel all or any part of an unshipped order.
Additionally, customer, and each of its subsidiaries and affiliates, agrees to provide to Westendorf proper authorization necessary for Westendorf to request any financial information from third parties.
Customer agrees to assume responsibility for, and customer hereby unconditionally guarantees payment of, as provided herein, all purchases made by customer, its subsidiaries and affiliates. Each of customer’s subsidiaries and affiliates purchasing from Westendorf are jointly and severally liable for purchases with customer, and customer is also acting as agent for such subsidiaries and affiliates.
4. Security Interest
Customer hereby grants to Westendorf a first priority purchase money security interest and/or chattel mortgage in the products and any accounts receivable or cash from resale thereof until full payment is made to Westendorf. Customer agrees to file, and it permits and authorizes Westendorf to file, any financing statements or other appropriate documents with its governmental authorities to perfect the validity, priority, and enforceability of Westendorf’s lien or security interest.
5. Credit Balance
Customer agrees that any credit balance(s) issued by Westendorf will be applied to customer’s account within one (1) year of its issuance.
B. FREIGHT POLICY
Prices stated are F.O.B. origin, freight prepaid to destination specified in the order. Westendorf charges a shipping and handling fee, (which includes internal handling and related costs), on each order which is applied at time of order and reflected on customer's invoice. Receipts for shipping and handling charges will not be furnished. COD shipments are not permitted. Other terms and conditions may apply for other than standard ground delivery ("Other Freight Services"), including without limitation, expedited same day delivery, air freight, freight collect, hazardous materials, customer's carrier, shipments outside the contiguous U.S. or other special handling by the carrier. Any charges incurred for Other Freight Services must be paid by customer. Fuel surcharges may be applied. Title and risk of loss pass to customer upon tender of shipment to the carrier. Risk of loss transfers to the carrier and to the customer from the time the product is delivered to the carrier by Westendorf. If the product is damaged in transit, customer's only recourse is to file a claim with the carrier.
C. NEW PRODUCT RETURNS
Customer should contact Westendorf if not satisfied with a product for any reason. Products that are in a new and unused condition can be returned within thirty (30) days of the date of sale. No returns of new product will be accepted after thirty (30) days of the date of sale. Before returning any product, customer shall obtain a Return Goods Authorization (RGA) by writing, calling Westendorf at 1-877-423-0070, or emailing Customer Service at service@westendorfmfg.com. All shipping charges for such returns shall be paid by customer. Westendorf may charge a fifteen percent (15%) restocking fee in its sole discretion. Returns are not permitted on any product not sold by Westendorf, or that show any signs of use or damage, or for products that are tampered with, altered, or customized in any way. These provisions may differ for certain dealers depending on the law of the jurisdiction of the dealer.
D. PRODUCT WARRANTY POLICY
1. LIMITED WARRANTY.
Westendorf Mfg. Co., Inc. warrants to the original Purchaser only, all new Westendorf equipment to be free from defects in material and workmanship under normal use and service. Westendorf will repair or replace any defective part manufactured by Westendorf and returned to Westendorf at Onawa, Iowa. (shipping costs prepaid), received within one (1) year from date of purchase of the equipment covered by this agreement. Other parts furnished by dealers or other manufacturers for resale or assembly, are subject to the warranty of the other manufacturers only. These warranties are valid only if the equipment has been used and maintained in accordance with normal equipment maintenance and service. THE LIMITED WARRANTY APPLIES TO CYLINDER PACKINGS FOR A PERIOD OF NINETY (90) DAYS.
2. WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY TO ALL CUSTOMERS.
Westendorf Mfg. Co., Inc. does not warrant in any manner, including fitness for particular purpose, parts or equipment purchased from other manufacturers. ALTHOUGH THE WESTENDORF LOADER IS DESIGNED TO MINIMIZE TRACTOR STRAIN, THE MANUFACTURER WILL ASSUME NO RESPONSIBILITY FOR DAMAGE TO TRACTORS OR ANY OTHER EQUIPMENT. THE WARRANTIES GIVEN HEREIN ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND WARRANTY OF SUITABILITY FOR A PARTICULAR PURPOSE. WESTENDORF ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION. IT IS AGREED THAT BUYER'S SOLE REMEDY SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF DEFECTIVE PARTS AS DESCRIBED ABOVE FOR ANY BREACH OF WARRANTIES. IT IS EXPRESSLY AGREED THAT WESTENDORF MFG. CO., INC. ASSUMES NO LIABILITY FOR ANY CONSEQUENTIAL DAMAGES ARISING OUT OF A BREACH OF THIS CONTRACT OR ANY WARRANTIES ARISING THERE FROM. Westendorf Mfg. Co., Inc. will not be liable for commitments or agreements or warranties made by any of its employees, agents, or dealers not in accordance with the above warranty. NO WARRANTIES, EXPRESSED OR IMPLIED, OF FITNESS OR MERCHANTABILITY ARE MADE OR ARISE WITH RESPECT OF USED EQUIPMENT.
3. Warranty Product Return.
Products can only be returned if purchased through the Westendorf website or directly from Westendorf. Before returning any product, customer shall obtain a Return Goods Authorization (RGA) by writing, calling Westendorf at 1-877-423-0070, or emailing Customer Service at service@westendorfmfg.com. All returns will require the date, the original invoice number, the stock number, and a description of the defect. Proof of purchase is required in all cases.
4. Product Compliance and Suitability.
Jurisdictions have varying laws, codes and regulations governing construction, installation, and/or use of products for a particular purpose. Certain products may not be available for sale in all areas. Westendorf does not guarantee compliance or suitability of the products it sells with any laws, codes or regulations, nor does Westendorf accept responsibility for construction, installation and/or use of a product. It is customer's responsibility to review the product application and all applicable laws, codes and regulations for each relevant jurisdiction to be sure that the construction, installation, and/or use involving the products are compliant.
5. Cross-Reference Information.
Product cross-reference comparisons or product alternatives that are presented do not imply that products are available or perfectly comparable. CROSS-REFERENCED PRODUCTS OR PRODUCT ALTERNATIVES ARE NOT REPRESENTED OR WARRANTED AS FUNCTIONAL OR PERFORMANCE EQUIVALENTS. Customer shall review all cross-referenced product or product alternative specifications prior to purchase and use to determine suitability of the product for customer's intended use.
E. PRODUCT INFORMATION
1. Catalog/Website Information.
Product depictions in the catalogs and websites are for illustrative purposes only. Possession of, or access to, any Westendorf catalog, literature or websites does not constitute the right to purchase products. Westendorf reserves the right to revise publishing errors in its catalogs or any of its websites. Despite our efforts, occasional pricing errors may occur in the Westendorf catalogs and websites. Westendorf reserves the right to cancel any and all orders resulting from such pricing errors, even if customer has received an order confirmation from Westendorf.
2. Product Substitution.
Products may not be identical to descriptions and/or images published in the catalog or on the website.
F. GENERAL TERMS
1. Electronic Data Interchange.
If Westendorf and customer mutually agree to use an Electronic Data Interchange (“EDI”) system to facilitate purchase and sale transactions, customer agrees that it will not contest: (i) any contract of sale resulting from an EDI transaction under the provisions of any law relating to whether agreements must be in writing or signed by the party to be bound thereby; or (ii) the admissibility of copies of EDI records under the business records exception to the hearsay rule, the best evidence rule or any other similar rule, on the basis that such records were not originated or maintained in documentary form. Westendorf and customer will negotiate and agree on technical standards and methods to use in making EDI purchases, and will use reasonable security procedures to protect EDI records from improper access. In the event of a conflict, the business records maintained by Westendorf regarding EDI purchases made by customer shall be deemed to be conclusive.
2. Third Party Payment Provider.
If customer elects to use a third party payment system provider (“Third Party Provider”) and Westendorf is charged fees by the Third Party Provider, Westendorf reserves the right to seek reimbursement from customer for any and all costs paid to the Third Party Provider for the transfer of funds, retrieval of payment detail, or any other purpose from the Third Party Provider.
3. Intellectual Property.
Customer shall have no right, title, or interest in the trade names, trademarks, trade dress, copyrights, patents, domain names, product names, catalogs or any other intellectual property rights (“IP”) reserved by Westendorf, or any IP owned by manufacturers and/or suppliers to Westendorf. All materials contained in Westendorf catalogs or on its web sites are subject to the ownership rights of Westendorf and its manufacturers and/or suppliers. Customer shall have no right to copy or use any IP of Westendorf or its manufacturers and/or suppliers without Westendorf's permission.
4. Independent Contractors.
Westendorf and customer are independent contractors and not principal and agent. Nothing contained in these terms and conditions shall be construed to create a partnership, dealership, reseller, agency, employment or joint venture relationship. Customer does not have the right to bind or otherwise obligate Westendorf in any manner, nor may customer represent to anyone that it has the right to do so.
5. Custom Product.
Westendorf may offer products manufactured or assembled to customers specifications (“Custom Product(s)”). Westendorf is not responsible for verifying or confirming the accuracy of specifications provided by customer to Westendorf for Custom Products. WESTENDORF'S LIMITED WARRANTY TERMS INCLUDED IN THESE TERMS AND CONDITIONS DO NOT APPLY TO CUSTOM PRODUCTS. THE PRODUCT WARRANTY PROVIDED BY THE MANUFACTURER AND/OR SUPPLIER OF THE CUSTOM PRODUCT WILL BE CUSTOMER'S SOLE REMEDY, AND ALL OTHER WARRANTIES ARE DISCLAIMED. All Custom Products are sold on a “FINAL SALE” basis only, and no cancellations, returns, refunds or credits are allowed.
6. Cancellation.
All product order cancellations, if not prohibited above, must be approved by Westendorf, and may be denied or subject to restocking fees and other charges.
7. Force Majeure.
Westendorf shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, including but not limited to acts of God, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees or controls, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of Westendorf in the conduct of its business.
8. Assignment.
Customer shall not assign any order, or any interest therein, without the prior written consent of Westendorf. Any actual or attempted assignment without Westendorf's prior written consent shall entitle Westendorf to cancel such order upon notice to customer.
9. No Third Party Benefit.
The provisions stated herein are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
10. Waiver, Choice of Law and Venue.
The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by the other party. All transactions shall be governed by the laws of the State of Iowa, excluding its conflict of law rules, and venue shall in the state courts in Monona County, Iowa, or the United States District Court for the Northern District of Iowa.
11. Severability.
If any portion of these terms and conditions is found to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable term shall be severed from these terms and conditions, and the remaining terms and conditions shall be valid and fully enforceable as written.
12. Modification of Terms.
Westendorf’s acceptance of any order is subject to customer’s assent to all of the terms and conditions set forth herein. Customer's assent to these terms and conditions shall be presumed from customer's receipt of Westendorf’s acknowledgment, or from customer’s acceptance of all or any part of the products ordered. No additions or modifications of Westendorf’s terms and conditions by customer shall be binding upon Westendorf, unless agreed to in writing by an authorized representative of Westendorf. If a purchase order or other correspondence submitted by customer contains terms or conditions contrary or in addition to the terms and conditions contained herein or in Westendorf’s acknowledgment, Westendorf’s fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by customer, and will not constitute a waiver by Westendorf of any of the terms and conditions contained herein or in Westendorf’s acknowledgment.
13. Complete Agreement.
The terms and conditions in: (i) Westendorf’s forms; (ii) acknowledgments; (iii) quotations; (iv) invoices; (v) web sites; (vi) catalogs; and (vii) extension of credit are incorporated herein by reference, and constitute the entire and exclusive agreement between customer and Westendorf.