ENGINE & TRANSMISSION EXCHANGE, INC.
TERMS AND CONDITIONS OF SALE
Please read these terms and conditions carefully. They materially affect the parties’ obligations.
- Applicability. These terms and conditions of sale (“Terms”) and the accompanying sales quote, proposal, confirmation, acknowledgement, and/or invoice (“Sales Form,” and collectively with the Terms, the “Agreement”) are the only terms which govern the sale of the subject goods (“Goods”) by Engine & Transmission Exchange, Inc. (“Seller”) to the buyer (“Buyer”). BUYER’S ORDER FOR THE GOODS IS ACCEPTED ONLY ON THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT. THE Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, and communications, both written and oral, with respect TO THE SUBJECT MATTER HEREOF. These Terms prevail over any of Buyer’s terms and conditions of purchase, regardless of whether or when Buyer submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend thE Agreement. Agreement to these Terms can be made by any commercially reasonable means, including but not limited to Buyer’s acceptance of these Terms pursuant to a credit application or acceptance of the Goods covered herein. Any prior course of dealing, trade usage, or verbal agreement not reduced to writing and signed by Seller, to the extent it modifies, adds to, amends, or conflicts with the Agreement, shall not be binding on Seller. If there is conflict between a Sales Form and these Terms, said Sales Form will prevail.
- Delivery. Seller shall deliver the Goods in the quantities and on the date specified in the Agreement or as otherwise agreed in writing by the parties. If no delivery date is specified, Seller shall deliver the Goods within a reasonable time (subject to availability of applicable components) after receipt of Buyer’s purchase order or Buyer providing any other written or oral indication to Seller that the right to supply the Goods has been awarded to Seller. All freight, core return freight, insurance, and other shipping expenses shall be borne by Buyer. Seller shall deliver the Goods to Seller’s place of business unless a different location is required in the Agreement (the “Delivery Point”). Shipping dates are approximate and are based on conditions existing at the time of the Agreement. Seller shall, in good faith, endeavor to ship by the estimated shipping date (if identified) but shall not be responsible for any delay or any damage arising therefrom. It is agreed that time is not of the essence. To the extent applicable, Seller shall manufacture and deliver the Goods per all product categories, grade, specifications, and quality requirements in accordance with the written specifications provided by Buyer or otherwise agreed upon by Buyer and Seller in writing.
- Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. Unless otherwise stated in the Agreement, Buyer must accept delivery of the Goods within five (5) days of Seller’s notice to Buyer that the Goods have been delivered to the Delivery Point. If for any reason Buyer fails to accept delivery of any of the Goods within such five (5) day period (including because Buyer or Buyer’s transporting carrier has not provided appropriate instructions, documents, licenses, or authorizations), then: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). Until full payment of all invoiced amounts due Seller and as collateral security for the payment of all such amounts, Buyer hereby grants to Seller a lien on and security interest in and to all of the rights, title, and interest of Buyer in, to, and under the Goods, 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 Wisconsin Uniform Commercial Code.
- Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within forty-eight (48) hours of Buyer’s receipt of the Goods (“Inspection Period”). Buyer shall be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only that the product shipped is different than identified in the Agreement or is damaged. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, have the right to inspect any Nonconforming Goods, and: (i) repair the Nonconforming Goods at the location of such Nonconforming Goods; (ii) replace such Nonconforming Goods with conforming Goods; or (iii) credit or refund the Price (as defined below) for such Nonconforming Goods. Buyer shall ship, at Seller’s expense and risk of loss, the Nonconforming Goods to Seller as directed by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, deliver the replaced Goods to Buyer at the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
- Price. Buyer shall purchase the Goods from Seller at the price, which includes applicable core deductions and shipping expenses, set forth in the Agreement (“Price(s)”). Such Price is subject to increase by Seller for: (i) any order change requested by Buyer and approved by Seller; and (ii) with respect to multiple orders pursuant to a single purchase order, any order confirmed after a general price increase made by Seller. Unless otherwise agreed upon in writing by Seller and Buyer, all Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
- Credit Approval. The sale of the Goods is subject to ongoing credit approval by Seller in its sole discretion. Pursuant to such approval, Seller may require that Buyer submit an application for credit in a form acceptable to Seller. The terms and conditions of any such credit application are automatically incorporated herein by reference. To the extent there is a conflict between such an application and the Agreement, said application will control. Notwithstanding any prior credit approval, if at any time Seller in its sole exclusive discretion determines Buyer’s credit or payment history to be unacceptable, or believes that Buyer’s future credit will be unacceptable, Seller reserves the right, among other remedies and without any liability to suspend any shipment of the Goods until alternative payment arrangements reasonably acceptable to Seller have been made.
- Payment Terms. Subject to approval of Buyer’s credit, net payments shall be due thirty (30) days from the invoice date; provided that if Seller determines that Buyer should not be extended credit, Seller may demand payment in advance or upon such other payment terms as are acceptable to Seller prior to the commencement of any work or delivery of the Goods to Buyer. Notwithstanding the foregoing, Seller and Buyer may agree to different payment terms as provided for in a Seller Sales Form. In the event there is a conflict between such a Sales Form and this Section 7, the payment terms of the Sales Form shall control. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend delivery of any Goods if Buyer fails to pay any amounts when due and such failure continues for ten (10) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
- Limited Warranty. (A) Seller warrants to Buyer as provided in the “ETE REMAN WARRANTY STATEMENT” available on our website at https://etereman.com/product-support/. (B) EXCEPT AS PROVIDED IN THIS SECTION 8(A), SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND REMEDIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES SET FORTH IN THE “ETE REMAN WARRANTY STATEMENT” SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(A) HEREOF.
- Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, SALES, PROFIT, REPUTATION OR GOODWILL, DIMINUTION OR DEPRECIATION IN VALUE, DELAY OR IDLE TIME FOR LABOR AND EQUIPMENT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT BUYER PAID TO SELLER FOR THE GOODS. THE PROVISIONS OF THIS SECTION SHALL SURVIVE ANY TERMINATION, EXPIRATION, OR CANCELLATION OF THE AGREEMENT, HOWEVER ARISING. SELLER SHALL NOT SUFFER ANY LIABILITY WHATSOEVER TO BUYER FOR SELLER’S FAILURE TO PERFORM SELLER’S OBLIGATIONS HEREUNDER WHERE SUCH FAILURE IS DIRECTLY OR INDIRECTLY CAUSED BY OR CONTRIBUTED TO BY ANY EVENTS OR OCCURRENCES CONSTITUTING FORCE MAJEURE (AS SET FORTH IN SECTION 12 HEREOF).
- Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate the Agreement with immediate effect upon written notice to Buyer if Buyer: (i) fails to pay any amount when due under the Agreement and such failure continues for ten (10) business days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, or commences, or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
- Waiver. No waiver by Seller of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by Seller. The failure of Seller to insist in any one or more instances upon the performance of any of the terms, covenants or conditions of the Agreement, or to exercise any right herein, shall not be construed as a waiver or relinquishment of any other terms or conditions of the Agreement nor of the future performance of any term, covenant, or condition, or the future exercise of any rights herein.
- Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of god, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic (including COVID-19), lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.
- Indemnification. Except to the extent any damages or injuries were caused by Seller’s grossly negligent acts, Buyer shall defend, indemnify, and hold harmless Seller, its officers, directors, shareholders, employees, representatives, agents, successors, and assigns, from and against any and all liabilities, obligations, (including, without limitation, liabilities or obligations relating to any violation of any environmental laws, rules, or regulations by Buyer or its officers, directors, shareholders, managers, members, employees, agents, or representatives), claims, demands, losses, damages (including, without limitation, incidental or consequential damages or lost profits), suits, actions, liens, costs, expenses (including attorneys’ fees), fines, penalties, or charges of any nature whatsoever (collectively, “Damages”) imposed on, asserted against, or incurred by Seller as a result of: (i) death, personal injury, property damage, or any other injury, damage, or claim arising out of the transportation, storage, handling, use, or disposal of the Goods by Buyer, or its employees, agents, representatives, customers, or invitees; or (ii) Buyer’s breach or nonperformance of the Agreement.
- Intellectual Property. Seller is the sole and exclusive owner of the intellectual property associated with or attached to the Goods. Buyer agrees that it will not decipher, decompile, disassemble, or reverse engineer the Goods sold hereunder.
- Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under the Agreement. Seller expressly reserves the right to subcontract the performance of all or part of the Agreement without the consent of Buyer.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries. The Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
- Amendment and Modification. The Agreement may only be amended or modified in a writing which specifically states that it amends the Agreement and is signed by an authorized representative of each party.
- Governing Law. All matters arising out of or relating to the Agreement are governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Wisconsin.
- Arbitration. Any dispute, controversy, or claim arising out of or relating to the Agreement shall be settled by arbitration administered by the American Arbitration Association. Any such arbitration shall be resolved within one hundred eighty (180) days of filing of the arbitration demand. The parties agree that the exclusive venue for any arbitration or litigation relating to the Agreement shall be in Waukesha County, Wisconsin. The parties waive any rights to object to venue as set forth herein, including any argument of inconvenience for any reason. The arbitrator’s decision shall be final and non-appealable. The prevailing party shall be entitled to recover its legal and other professional fees and costs incurred in connection with such arbitration proceeding and any necessary court action.
- Severability. If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.