Webb-Stiles Company - Sales Terms and Conditions
“Seller” as used herein refers to WEBB-STILES COMPANY, an Ohio Corporation, together with its successors, assigns, affiliates and subsidiaries. Notwithstanding anything to the contrary: (i) the acceptance by Seller of any purchase order or any other document from Buyer, the acceptance by Buyer of any quotation, proposal, invoice or other document from Seller and any other agreement for the purchase and sale of goods and/or services entered into by and between Buyer and Seller (collectively, “Other Document”), is hereby expressly conditioned upon the acceptance by Buyer of all of the terms and conditions of Seller as set forth herein (collectively, the “Terms and Conditions”); (ii) these Terms and Conditions are hereby incorporated into each Other Document, and any new, inconsistent and/or additional terms of Buyer whether contained in Buyer’s purchase order or any other document of Buyer are hereby rejected unless expressly accepted by Seller in writing specifically referencing the Other Document and these Terms and Conditions and the new, inconsistent and/or additional terms within ten (10) days after Seller’s receipt of the same; and (iii) the Terms and Conditions as stated herein shall not be modified other than in writing signed by Seller and Buyer and specifically referencing these Terms and Conditions.
1. Data & Confidential Information
a. All specifications and drawings submitted with this proposal by the Seller are Seller’s property and are subject to recall at any time.
b. All drawings furnished with this proposal are approximate and submitted only to show general arrangement and approximate dimensions and are not to be used for construction purposes unless stated otherwise thereon.
c. Buyer shall not make use of Seller’s Confidential Information (as defined herein) for purposes other than the fulfillment of the obligations under the Other Document and these Terms and Conditions, or disclose to any person or entity, other than those of its employees who have a need to know, any Confidential Information, whether written or oral, which the Buyer obtains from Seller or otherwise discovers in the performance of the Other Document and these Terms and Conditions. “Confidential Information” means all trade secrets and information relating to Seller’s business which is not generally available to the public, and includes any such information of Seller that Buyer possesses that predates the Other Document and/or these Terms and Conditions; provided however, that Confidential Information shall not apply to any information that is: (i) rightfully known to Buyer prior to disclosure by Seller; (ii) rightfully obtained by Buyer from any third party; (iii) made available by Seller to the public without restrictions; (iv) disclosed by Buyer with prior written permission of Seller; (v) independently developed or learned by Buyer through legitimate means; (vi) disclosed by Seller to a third party without a duty of confidentiality on the third party; or (vii) disclosed pursuant to any applicable laws, regulations or order of a court of competent jurisdiction. Buyer will provide reasonable prior written notice to Seller if it is required to disclose any of Seller’s Confidential Information under operation of law and disclose only the Confidential Information that Buyer is legally required to disclose. Buyer will immediately notify Seller of any disclosure of any Confidential Information that is not permitted by the Other Document and/or these Terms and Conditions and will be responsible for its disclosure or other misuse of Confidential Information. Seller makes no representation or warranty of any kind, express or implied, with respect to any Confidential Information.
2. Errors
Seller reserves the right to correct all typographical or clerical errors, which may be present in the prices or specifications in this proposal.
3. Changes
a. Notwithstanding subparagraphs (b) and (c) of this paragraph, if, in Seller’s opinion, changes should be made in design or material which will not adversely affect the function, operation, price, time of shipment, functional character or performance, Seller may make such changes without Buyer’s consent.
b. Proposals to amend the detailed specifications may be offered by either party in writing which will set forth in detail the particular specifications involved, the changes desired to be made therein, and the effect, if any, of such change on price, design, performance, weight, and time of shipment.
c. No proposal to amend or other modifications of the Other Document or these Terms and Conditions, will be binding unless it is in writing and accepted by Seller.
d. No “Equipment” (as defined in Paragraph 7(d) below) order may be withdrawn or canceled by Buyer, nor may it be deferred when ready, unless Seller shall have previously approved such withdrawal, cancellation or deferral in writing and Seller shall have been paid a withdrawal, cancellation or deferral charge of a reasonable amount acceptable to Seller. In the event Buyer shall request changes in its Equipment order after receipt thereof by Seller, Buyer shall be responsible for all charges and expenses reasonably incurred by Seller with respect to such changes. Any dates or schedules which may be specified for the delivery of the Equipment purchased hereunder have been stated only approximately and are estimated from the date of receipt of Buyer’s order, with complete specifications, designs, samples and other information reasonably requested by Seller to be provided in order to proceed with the manufacture and delivery of the Equipment. Seller shall not incur any liability, either direct or indirect, nor shall any Equipment order be canceled, as a result of any delays in meeting such dates or schedules.
4. Painting and Lubrication
Unless otherwise agreed:
a. The Equipment will be painted with one shop coat of Seller’s standard finish (excluding overhead support steel, monorail I‑beam and other items not normally shop painted) and no field painting will be done without express written agreement.
b. Buyer will be responsible for bearing, gearbox and all other points of lubrication.
5. Safety Devices
a. The base price and/or alternates includes Seller’s standard safety devices normal to such Equipment. Seller disclaims any and all obligation to notify Buyer of any additions, deletions, upgrades, or other modifications to such standard safety devices which may be required (whether now or in the future) by any applicable federal, state or local law, rule regulation or ordinance related thereto. Additional safety devices may be required, and because of Buyer’s superior knowledge of its plant and operating conditions, it is Buyer’s responsibility to identify and furnish these additional devices. Seller will, at Buyer’s request, make recommendations for additional safety devices, and will furnish Buyer with a quotation for the supply and installation of these devices.
b. If Buyer elects not to purchase safety devices proposed by Seller, Buyer will indemnify, defend and hold the Seller together with its successors, assigns, affiliates, subsidiaries, and all officers, directors, employees and/or agents of any of the aforesaid (collectively, the “Seller Indemnitees”) harmless, from and against any and all claims, losses, liabilities, expenses (including, without limitation, reasonable attorney fees, court costs and expenses) and legal actions (collectively, “Claims”) for damages to person or property caused directly or indirectly by the Equipment described therein.
6. Indemnification ‑ Safe Operation
a. Buyer shall comply and require its employees and agents to comply with all instructions given by Seller regarding installation, use and maintenance of the Equipment described herein and shall require its employees and agents to use reasonable care and all safety devices in the operation and maintenance of said Equipment. Buyer shall not remove, cover or permit anyone to remove or cover any safety devices or warning signs or labels. Buyer shall immediately give Seller written notice of, which notice shall in no event be more than 48 hours after, any personal injury or property damage arising out of the use of the Equipment and cooperate with Seller in investigating any such accident or malfunction.
b. If Buyer fails to observe every obligation set forth above, Buyer will indemnify, defend, and hold the Seller Indemnitees harmless from and against any and all Claims for personal injury and property damage arising from or in any way connected with the operations, activities or use of the Equipment described herein.
7. Limited Warranty of Seller; Limitation of Liability
a. Notwithstanding anything herein to the contrary, all warranties on any system or part thereof or equipment so treated are terminated in the event such system, part or equipment is: (1) misused or involved in an accident, (2) repaired, altered or modified without Seller’s consent (the replacement of a standard component by Buyer shall not be deemed a repair or alteration under this paragraph), (3) not installed, maintained and operated in strict compliance with instructions furnished by Seller or (4) worn, injured or damaged from abnormal or abusive use in service time.
b. At Seller’s sole discretion, Seller will either replace any part of the Equipment manufactured and sold by it hereunder which is defective due to the Seller’s materials or workmanship with a duplicate or repaired part, F.O.B. Seller’s plant, or will credit Buyer for the purchase of such defective part, for a period of one (1) year from the earlier of Buyer’s acceptance hereunder or Buyer’s use of any part of the Equipment sold hereunder, provided that Buyer notifies Seller in writing within ten (10) days after the discovery of a claimed defect and such discovery occurs within such one (1) year period. The determination of whether a part is defective shall be made by Seller upon its inspection thereof. For purposes of this warranty, one (1) year shall mean the earlier to occur of two hundred fifty (250) operating days of eight (8) hours per day, or two thousand (2,000) operating hours. Return of the defective part, freight prepaid, will be required for warranty continuation. The cost of any necessary labor required to replace any parts proven defective shall be paid by Buyer. Seller’s warranty shall extend only to Buyer. Seller’s warranty does not cover the effects of normal wear, tear, deterioration or abuse of the Equipment or the effects of improper shipping, storage or handling of the Equipment. Under no conditions will any Equipment be returned to Seller without its prior written consent.
c. Any variations in details between the description contained in the Other Document and these Terms and Conditions and that in Buyer’s specifications are due to standards of manufacture and are not to be construed as exceptions to the specifications.
d. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EXCEPT FOR THE EXPRESS WARRANTY DESCRIBED IN PARAGRAPH 7(b) ABOVE AND THE INDEMNITY SET FORTH IN SECTION 9(a) BELOW, THERE ARE NO OTHER COVENANTS, GUARANTIES, REPRESENTATIONS, AND/OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, ORAL, WRITTEN OR OTHERWISE, WHETHER ARISING UNDER CUSTOM OR TRADE, LAW OR EQUITY INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO ANY AND ALL: (i) SYSTEMS, EQUIPMENT, DEVICES, GOODS, COMPUTERS, COMPUTER PERIPHERALS, PURCHASED COMPONENTS, AND ANY AND ALL OTHER ITEMS SOLD BY SELLER TO BUYER HEREUNDER (COLLECTIVELLY, THE “EQUIPMENT”), AND (ii) SERVICES OR MAINTENANCE PROVIDED BY SELLER THEREON (COLLECTIVELLY THE “SERVICES”).
e. EXCEPT AS SET FORTH IN SECTION 9(a), IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR TO ANY THIRD PARTY FOR LIQUIDATED, CONSEQUENTIAL, DIRECT, INDIRECT, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, LOST REVENUE, OTHER FINANCIAL LOSS, LOSS OF DATA OR LOSS OF USE, ARISING OUT OF, IN CONNECTION WITH, OR IN ANY MANNER RELATED TO, THE EQUIPMENT, THEIR DELIVERY, NON-DELIVERY, DESIGN, USE, OR ANY INABILITY TO USE THE SAME, AND/OR THE SERVICES SELLER HAS OR WILL PERFORM THEREON, WHETHER SUCH DAMAGES BE CLAIMED UNDER CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND EVEN IF SELLER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. BUYER UNDERSTANDS THAT THE SOLE AND EXCLUSIVE REMEDY OF BUYER SHALL BE AS SET FORTH IN SECTION 7(B). THIS LIMITATION OF LIABILITY SHALL SURVIVE THE TERMINATION, EXPIRATION OR CANCELLATION OF THESE TERMS AND CONDITIONS OR ANY TRANSACTION PURSUANT HERETO.
f. NO WARRANTIES OR REPRESENTATIONS AT ANY TIME MADE BY ANY AGENT OR REPRESENTATIVE OF SELLER SHALL BE EFFECTIVE TO VARY OR EXPAND THE EXPRESS WARRANTY IN PARAGRAPH 7(b) OR ANY TERMS HEREOF.
g. Subject to Paragraph 7(d) and (e) herein, Seller, not being the manufacturer of the computer equipment, computer peripherals, or certain other purchased components (including, without limitation, motors, bearings and reducers) being sold hereunder, nor the respective manufacturer’s agent, hereby assigns to Buyer, insofar as they are assignable, all such applicable manufacturer’s warranties and guaranties.
8. Warranty of Buyer
a. Buyer warrants that the material to be handled by the Equipment will be identical to any samples or models or descriptions furnished to Seller.
b. Buyer warrants that the structure in which and to which this Equipment is to be installed is adequate to sustain the loads that will be imposed on it by said Equipment when it is operating as intended.
c. Buyer represents and warrants the accuracy and completeness of any and all information, specifications, drawings and related documents provided to Seller regarding the Equipment or other items which are to be interfaced or used in conjunction with the Equipment Seller is selling to Buyer hereunder.
d. Buyer represents and warrants the fitness and suitability for Buyer’s particular or specific purposes of the Equipment Seller is selling to Buyer hereunder.
9. Patents
a. Seller will indemnify Buyer in the use of the Equipment described herein against any and all claims for patent infringement, provided Buyer immediately reports such claims to Seller in writing, whereupon Seller will settle or defend same at its expense. This paragraph, however, does not apply to any system, equipment, device or part that is manufactured or sold in compliance with specifications furnished by Buyer.
10. Code Compliance and Permits
a. Buyer undertakes and assumes responsibility for compliance with all relevant codes, and, upon Buyer’s prior written request to Seller, Seller agrees to use commercially reasonable efforts to furnish Buyer with whatever additional Equipment is necessary, and to make whatever changes are required, to comply with such codes, rules, etc., provided such additional Equipment and/or Services will be paid for by Buyer at Seller’s standard price in effect at the time of shipment and on Seller’s standard terms.
b. All necessary licenses/permits will be provided and paid for by Buyer, in addition to the price stated herein, unless otherwise stated.
11. Inspection and Tests
a. Unless otherwise agreed, all testing will be at the complete discretion of Seller with loads or material to be handled supplied by Buyer at Buyer’s expense.
b. Buyer will notify Seller in writing of any non‑conformity it discovers as a result of any approved testing within two days of the inspection, giving Seller exact details of each suspected non‑conformity.
c. In no event will a test or inspection which is unacceptable to Buyer be grounds to cancel or terminate the Other Document or these Terms and Conditions, nor will Seller be liable for any damages caused by any resulting delay.
12. Final Acceptance of Equipment
a. The Equipment shall be finally accepted by Buyer in accordance with the terms of paragraph 13 and 14 or when Buyer:
i. Notifies Seller of acceptance in writing, or signs off on the job through Webb-Stiles Total Customer Quality Control Sign-offs (the “Sign Off System”). The Sign Off System gives the Buyer sign-off acceptance through various stages of contract approval asked for by the Buyer with Seller’s approval and acceptance. The Sign Off System may consist of Customer System Design Approval; System Drawing Approval; Customer In-House Equipment Set-up and/or Test Approval; Customer Mechanical System Installation and Punch List; Customer Control Systems Installation Approval and Punch List; Customer System Functional Test Approval and Final System Sign-off, or
ii. Uses the Equipment or any of the Equipment comprising it or permits use by others for Buyer’s benefit, acceptance hereunder shall only be as to the parts of the Equipment so used, or
iii. Fails to notify Seller in writing of rejection within 30 days after it takes possession and control of the Equipment.
b. Buyer may not revoke its acceptance.
13. Title Retention and Passage of Title
Notwithstanding any other provision of these Terms and Conditions to the contrary, including without limitation any provision regarding risk of loss and insurability, all right, title and interest in and to the Equipment which is the subject of the Other Document and these Terms and Conditions shall remain vested in Seller, notwithstanding delivery, installation, testing, acceptance and/or usage thereof by Buyer, until such time as payment in full and receipt thereof by Seller of all amounts due and to become due from Buyer under and pursuant to such Other Document and these Terms and Conditions. Until such time as such payment in full is received by Seller, Seller may enter upon any premises where the Equipment may be found and alter, disable or remove the same, without prejudice to any other remedies which Seller may have, whether hereunder, at law or in equity. In the event of removal as aforesaid, Seller may, at its sole option, sell such Equipment so acquired upon commercially reasonable terms as Seller may elect and apply the proceeds thereof against the obligations of Buyer remaining hereunder.
14. Force Majeure; Limitations
a. The consequences, direct or indirect, of any federal, state, municipal or foreign government action or regulation; wars, riots, insurrections, or revolutions; strikes, lockouts or other labor troubles; fires, floods, droughts, accidents, tornadoes, hurricanes, or other acts of God; lack of, or inability to obtain, raw materials, labor, fuel, or supplies; breakdown of machinery; shortage of cars, loss or damage in transit or vessel (sail, steam or other), or detention of or delay of transit or vessel (sail, steam or other), or perils of sea; pandemics, epidemics or similar health crisis; or any other cause, contingency, or circumstance within or without the United States which is beyond the control of Seller; shall excuse Seller’s performance hereunder to the extent by which performance has been prevented thereby. Any delivery or other scheduled dates stated herein are estimates which Seller will attempt to meet; however, in no event will Seller be responsible for any loss or damage due to a failure to meet any such dates and any such failure shall not constitute a breach of contract.
b. Seller is not responsible for any delays caused by third parties utilized by Seller to produce the Equipment or Services or the inability of any such third parties to deliver their products or services to Seller. It is understood by Buyer that any quote by Seller may be based on a quote from a third party and Seller shall not be bound by its own quote if any third party fails to provide its products or services as promised or agreed.
15. Seller’s Remedies
The following rights and remedies are in addition to any and all other rights and remedies Seller may have at law, in equity, under these Terms and Conditions or otherwise. No right or remedy is exclusive of any other and all such rights and remedies shall be cumulative and may be enforced concurrently or individually from time to time.
a. In order to secure payment of the purchase price by Buyer to Seller hereunder, Buyer grants a purchase money security interest to Seller in any and all right, title and interest which Buyer now or may hereafter have in the Equipment purchased by Buyer hereunder, and the proceeds and products thereof, and Buyer will cooperate with Seller, and take whatever action may be necessary to enable Seller to file, register or record, and re-file, re-register, or re-record appropriate financing statements in such offices as the Seller may determine are appropriate and wherever required or permitted by law, for the proper protection of Seller’s interest hereunder. In furtherance of the foregoing, Buyer hereby appoints Seller it attorney-in-fact for the limited purpose of executing financing statements and other instruments, and taking all such other and further action as may be necessary in order to file, record, re-file, or re-record such financing statements and instruments, and to perfect the security interest herein granted. The foregoing appointment is irrevocable and hereby acknowledged to be coupled with an interest.
Such Equipment purchased by Buyer hereunder shall remain personal property irrespective of its use or manner of attachment to realty, and Buyer shall not cause or permit any of such items to be attached to realty in such manner that it might become part of such realty without securing the prior written agreement of the owner of the realty (if other than the Buyer) and of the mortgagee, if any, of such realty, that such items shall remain personal property and may be removed at the option of Buyer or Seller.
b. For any breach of contract committed by Buyer prior to final acceptance, Buyer will pay Seller, Seller’s standard price for all sales, engineering, manufacturing and installation work done by Seller or its subcontractors.
c. For breach of the warranty stated in paragraph 8, Buyer will pay Seller, in addition to the price stated herein, at Seller’s standard prices in effect at the time, for all work, including but not limited to, rework, material, engineering, labor, parts necessary to make the Equipment perform as described herein with the different material to be handled, and in addition Buyer will pay Seller for any expense incurred as a result of delays caused by such breach.
d. If there is a lack of adequate facilities, work area, equipment or utilities, or if there are changes or interruptions in the progress of the work, or any other delays in the shipment or installation of the Equipment not directly caused by Seller, Seller may at its sole discretion terminate; if Seller elects to continue, Buyer will pay Seller for any expenses resulting from such delay, including any costs due to storing or handling the Equipment during the delay or any expenses due to increased engineering, labor or materials costs plus a reasonable profit if the delay causes delivery to be made after the delivery date stated herein.
e. If Buyer does not accept delivery of conforming Equipment delivered pursuant to the terms hereof, Buyer will pay Seller all expenses it incurs as a result of such failure and the full purchase price will be immediately due.
16. Disputes and Arbitration
In an effort to resolve any conflicts that arise during or following the design or construction of the Equipment, Buyer and Seller shall first, for a period of at least 30 days, exhaust their best efforts to resolve such in a manner that is fair and equitable before commencement of litigation. Such efforts shall include a meeting of the President or other high-ranking officer of both parties. In the event that a dispute or disagreement persists for more than 30 days, Buyer and Seller agree that all disputes between them arising out of or relating to any Other Document and/or these Terms and Conditions shall be submitted to binding arbitration. Arbitration, to be convened and held in Medina, Ohio unless otherwise agreed, in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator (or arbitrators) may be entered in any court having jurisdiction thereof.
The Buyer and Seller further agree to include a similar Arbitration provision in all agreements with independent contractors and consultants retained for the project and to require all independent contractors and consultants also to include a similar Arbitration provision in all agreements with subcontractors, sub-consultants, suppliers or fabricators retained, thereby providing for Arbitration as the primary method for dispute resolution between the parties to those agreements.
Seller shall carry on its Services and maintain progress during any Arbitration or litigation proceedings, and Buyer shall continue to make payments to Webb-Stiles as allowed for by the contract.
These Terms and Conditions, and any transaction related hereto, shall be construed in accordance with, and shall be governed by, the laws of the State of Ohio. The parties agree that the United Nations Convention of Contracts for the International Sale of Goods will not apply to these Terms and Conditions or any transactions pursuant hereto. Except as expressly provided herein, nothing herein shall be construed as creating any act or beneficial right in or on behalf of any third party. The failure of either party to insist or enforce in any instance strict performance of these Terms and Conditions or to exercise any rights hereunder conferred, shall not be construed as a waiver or relinquishment to any extent of its right to assert or rely upon such terms or rights on any future occasion.
Installation
· If installation has been included in our price, Paragraphs 17 through 23 shall apply.
17. Excavations, Foundations and Supports
a. Unless otherwise agreed, all excavations, drainage, piling, foundations, masonry and concrete work, including lining, anchor bolts, clips, conduit, piping sleeves, ceiling supports, inserts, and anchors will be provided and set by Buyer, in accordance with Seller’s drawings, and will be paid for by Buyer in addition to the price stated herein.
b. Buyer will provide proper space and lighting for installation and remove obstructions interfering with the installation or operation of equipment.
18. Preparation of Site
a. Buyer will clear the location, do all grading, and make the place ready for the installation of the Equipment described herein in accordance with diagrams and plans of the work that Seller will supply.
b. Buyer will keep the site free from water, debris and other obstructions and will make required alterations to buildings, structures, and equipment (strengthening same if required for the proper support of the Equipment) including cutting and repairing any necessary floor, wall and roof openings; no such cutting work is to be done before Buyer receives Seller’s final clearance, drawings and plans for the work.
c. It shall be the responsibility of the Buyer to maintain work areas where cutting, welding and burning operations are being performed clear of any volatile or flammable substances, hidden or otherwise and in the event this is deemed to be impractical by the Buyer, the Seller shall provide an individual(s) at their normal rate of compensation as a “fire watch” at an additional cost to the Buyer.
d. If the Buyer maintains a program of procuring on-premises burning, cutting and welding permits from the Buyer’s designated agent/representative authorized to sign said permits, then Seller shall be held harmless from any damages occurring during said operations, unless otherwise agreed upon in writing by the Buyer and Seller.
e. Unless otherwise agreed, the Buyer will provide all necessary materials and labor to provide power to the Seller’s main control panel(s). This will include the actual connections to the power feed supply and the control panel(s).
f. Unless otherwise agreed, the Buyer will provide all necessary materials and labor to provide pneumatic air drop(s) to all air drop locations as specified by the Seller’s pneumatic drawing(s). Connections to drops shall be by Seller, provided drop installation is completed prior to commencement of seller’s pneumatic installation. Otherwise, connections will be at Buyer’s expense.
19. Unloading and Storage
a. Buyer will provide safe and convenient storage room for Seller’s tools and materials and will provide whatever is required to adequately protect the Seller’s equipment (including the Equipment to be purchased by Buyer) and tools from weather and other subcontractors, and will provide adequate bench and work room for Seller’s installation crew and give proper care and attention to the material and equipment after it has been placed in the designated locations and will provide whatever is required to adequately protect the Seller’s goods, equipment, materials and tools from weather and other subcontractors.
20. Erection Material, Utilities, Fire Protection
a. Seller will furnish all necessary tools, scaffolding and other installation equipment.
b. Buyer will furnish free of charge at the installation site all electric current, compressed air, fuel, water, lighting, heating, fire protection equipment, and fire watch labor that may be needed for the installation equipment as designated by Seller. Seller will have free of charge use of any available elevator or crane service.
c. Seller will place all of its own trash and debris in appropriate receptacles provided by Buyer.
d. Buyer will furnish adequate inside storage for both installation equipment and component storage prior to installation.
21. Overtime and Installation Labor
a. Unless otherwise agreed, all engineering, manufacturing and installation work required shall be done on a one‑shift, straight‑time basis. If for any reason Buyer requests overtime, weekend, or second or third shift work, Buyer will compensate Seller for the expense including, but not limited to, actual overtime bonus or shift premiums plus applicable federal and state payroll taxes, compensation and liability insurance premiums, fringe benefits and overhead.
b. The price herein provides for installation by mechanical and electrical erectors of Seller’s choice. If local conditions or Buyer preference requires other erectors to be used, the price will be changed to reflect any increase over the price quoted.
22. Insurance
a. Seller will carry workmen’s compensation and public liability insurance applicable to its operations and, upon request, will furnish certificates of insurance as evidence of such insurance.
b. Unless otherwise agreed, Buyer will provide and maintain insurance for loss or damage by fire and other casualty to all material supplied by Seller from the time it arrives on Buyer’s premises. Such coverage shall be for the full price as quoted herein and shall cover the Equipment specified herein; losses, if any, shall be payable to Seller and Buyer, as their respective interests may appear. Buyer shall provide Seller with certificates of all such requisite coverages. If Buyer fails to provide the insurance coverage here contemplated, it will indemnify, defend and hold the Seller Parties harmless from and against any and all Claims resulting from damage or injury to the Equipment and all material supplied prior to final payment.
23. Allowance for Work by Buyer
Seller will make no allowance for work done by Buyer unless previously authorized by Seller in writing.
24. Acceptance of Proposal
a. Upon acceptance of the Other Document by Buyer and regardless of the form or terms of such acceptance, the Other Document together with these Terms and Conditions will alone define the agreement between the parties, and there are and will be no understanding, representations, or agreements between the parties outside the terms of the Other Document together with these Terms and Conditions. All other communications between the parties, either verbal or written with reference to the subject matter of the Other Document and these Terms and Conditions, are hereby abrogated and withdrawn, and the Other Document with these Terms and Conditions constitute the whole of the agreement between the parties.
b. These Terms and Conditions will govern wherever and whenever they are in conflict with any terms stated in any Other Document or other form which contains any terms of this sale which Buyer presents to Seller, and as set forth in the first paragraph hereof, any such new, inconsistent and/or additional terms will be of no binding effect and are hereby rejected.
25. Taxes
a. No Sales or Use Tax is included in the base price. Unless furnished with proper exemption certification, this tax will be added to our invoice.
b. If Buyer claims exemption from any sales, use or similar tax imposed by any taxing authority, Buyer will indemnify, defend and hold the Seller Parties harmless from and against any such tax or related Claims, together with any interest or penalties thereon, which may at any time be assessed against it by reason of the fact that such Equipment is held to be taxable by the taxing authority.
26. Purchase Price and Payments
a. Title in and risk of loss for all goods sold hereunder shall pass to Buyer upon delivery to the carrier, F.O.B. Seller’s plant, unless otherwise agreed by Seller in writing.
b. If the price includes freight allowance, it is based on the lowest actual station-to-station freight rate in effect on the date of the quotation and is subject to advance or reduction to the extent of any change in freight rate, which may become effective before shipment is made. Choice of carrier is at Seller’s discretion unless otherwise specified.
c. The Other Document is based on the drawings and specifications enumerated therein. Should there be any changes in either the drawings or the specifications, the price and the delivery date will be adjusted by Seller accordingly.
d. The price of any Equipment beyond that described in our Other Document required by Buyer for any reason whatsoever will be added to the price stated herein.
e. The price is payable in current funds of the United States at par.
f. This price is firm for 15 days and is subject to change thereafter.
27. Payment Terms
a. Parts Orders Only: Terms of Payment are C.O.D. (Upon approved credit-Net 30 Days).
b. Equipment (i.e., Conveyors and Systems) Orders Only: Terms of Payment are C.O.D. With approved Webb-Stiles credit the following method of payment will be used: On or before the tenth of each month during the period of manufacture and/or installation, Seller will invoice Buyer for the previous month’s performance of all work done, materials used and provided for use, and other expenses connected with the manufacture, delivery and installation of the Equipment. Ninety percent of the total value of the previous month’s work as invoiced is due and payable within 30 days thereafter. The balance due and payable 30 days after acceptance.
c. A Service Charge of 1-1/2% will be assessed on a monthly basis or any part thereof on any balance due which exceeds the normal document terms. In the event Seller incurs any cost, expense and/or fee (including, but not limited to, reasonable attorney fees, court costs and related expenses) in collecting amounts due hereunder or in the enforcement of its rights hereunder (“Enforcement Costs”), Wethen Buyer shall reimburse Seller for all such Enforcement Costs upon demand.
d. In the event Buyer seeks to make payment on an invoice from the Seller in an amount less than the full amount of the invoice and Buyer intends such payment to be in full satisfaction of the invoice, Buyer must send such payment in writing to Webb-Stiles Company, 675 Liverpool Drive, P.O. Box 464, Valley City, Ohio 44280, Attention: President.
CONDITIONS
A. The Buyer agrees to establish programmed maintenance of the Equipment during the initial one year period after final acceptance (including the Equipment’s controls) and that a log be maintained of this maintenance, subject to review by Seller on request. Such maintenance to be performed on a graduated basis (i.e., weekly for the first month, bi‑monthly for the following two months, monthly for the following three months, and quarterly for the last six months).
B. The Buyer agrees to purchase recommended spare parts in the quantities shown as determined from the final detail drawings. The total cost of the purchase of spare parts is to be specified after the final design is complete. Seller will, at the termination of the warranty in Section 7(b), replace any spare parts used to fulfill such warranty at no cost to the Buyer, provided defective components are returned to Seller freight prepaid within 15 days of warranty termination under previous terms of these Terms and Conditions.
C. During the time of the tune‑up and adjusting period, the Buyer will provide a minimum of two (2) maintenance personnel, who will be trained by Seller’s Installation Supervisor and held responsible for ultimate maintenance. The competency of the maintenance personnel chosen may be questioned by Seller’s Installation Supervisor and, if necessary, replacement(s) negotiated. Should this occur after acceptance, the costs of training will be borne by the Buyer.
D. The total costs of rectifying any abuse, misuse, or neglect of the Equipment, when proven as such, will be borne by the Buyer.
E. Seller reserves the right to perform unannounced inspections to ensure compliance with these Terms and Conditions.
F. The term “Buyer” herein shall also be deemed to include any of its successors and assigns as the case may be.
G. Seller will design, fabricate and install the Equipment in accordance with applicable codes and standards less certification and/or labeling of any type, of the following references, deemed appropriate by Seller, in effect on the date of our proposal:
a. ANSI: American National Standards Institute
b. CEMA: Conveyor Equipment Manufacturer’s Association
c. IEEE: Institute of Electrical and Electronic Engineers, Inc.
d. NEMA: National Electrical Manufactures Association
e. IEC: International Electric Code
f. UL: Underwriters Laboratory
H. Seller has provided for no central lubrication system/s within the Other Document unless specifically identified and referred to within said Other Document.