WEBER TERMS AND CONDITIONS
The equipment, parts, accessories, technical data, services and other materials (herein referred to as the “Goods”) offered for sale, to any customer (herein referred to as “Customer”) by Weber, Inc. (herein referred to as the “Company”) will be sold upon the following terms and conditions.
(a) All purchase orders submitted by Customer must be in writing. ANY AND ALL ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS SET FORTH IN THE PURCHASE ORDER OR OTHER COMMUNICATION FROM THE CUSTOMER ARE OBJECTED TO BY THE COMPANY AND SHALL NOT BE EFFECTIVE OR BINDING UNLESS SPECIFICALLY ACCEPTED IN WRITING BY AN OFFICER OF THE COMPANY.
(b) None of the Terms and Conditions of Sale herein may be added to, modified, superseded or otherwise altered except by a written instrument signed by an officer of the Company and delivered by the Company to Customer. Each shipment received by Customer from the Company shall be made only upon the terms and conditions herein, except as they may be added to, modified, superseded or otherwise altered as provided herein, notwithstanding any terms and conditions that may be contained in any purchase order or other form of Customer’s act of accepting or paying for the Goods or similar act of Customer.
(c) All information contained in price lists or other similar materials of an informative nature furnished by the Company are for general information purposes only and are not binding on the Company unless specifically confirmed in a price quotation or other writing by the Company.
(d) The submission of a price quotation by the Company in response to Customer’s request does not constitute an expression of acceptance of any term or condition which may have been part of Customer’s request. Notwithstanding any prior quotations, correspondence, conversations, purchase orders or similar instruments relative to the Goods, the Terms and Conditions of Sale herein are the only terms and conditions applicable to the sale of the Goods. The acceptance of any price quotation issued by the Company is expressly limited to the terms of such quotation shall constitute an acceptance of such quotation and the Terms and Conditions of Sale, provided that the purchase order agrees with such quotation with respect to (i) the description of the Goods to be furnished by the Company as shown on the face thereof, (ii) the quantity, (iii) the purchase price to be charged and (iv) the delivery terms.
(e) A sales confirmation in oral or written form or similar communication issued by the Company pursuant to Customer’s purchase order constitutes an expression of acceptance of such purchase order, but such expression of acceptance is expressly conditioned upon Customer’s assent to the Terms and Conditions of Sale as herein set forth, which assent will be deemed to have been given unless notice to the contrary is received by the Company within eight (8) days from the date of the sale confirmation date.
(f) Where the Company does not issue either a price quotation or a sales confirmation and ships Goods pursuant to Customer’s purchase order, such sale shall be subject to the Company’s Terms and Conditions of Sale as set forth or amended herein, and Customer shall be deemed to have agreed hereto.
(g) In the event of any discrepancy or inconsistency between the description, quantity or purchase price of the Goods contained in Customer’s purchase order transmitted pursuant to a price quotation and those contained in such quotation issued by the Company or any amendment thereto, and upon the Company’s determination that any such discrepancy or inconsistency is not due to any mistake on its part, Customer’s purchase order shall be deemed rejected by the Company and may be returned to Customer for clarification. In the event any discrepancy or inconsistency described in this sub-paragraph (g) is determined by the Company to be due to a mistake on its part, Customer’s corresponding purchase order shall not be rejected but shall be subject, together with the quotation corresponding thereto, to review and reconciliation by both Customer and the Company.
(h) Unless otherwise stated, reference to days in these Terms and Conditions of Sale means a business day in Kansas City, Missouri.
- Invoicing and Payment:
(a) The total purchase price is due and payable by Customers to the Company as follows:
(i) 90% on Customer’s acceptance hereof.
(ii) Balance within 10 days of installation, but not later than 60 days after shipment.
The Company reserves the right to demand security for full payment of the purchase price from any Customer, including without limitation, delivery by Customer of an irrevocable letter of credit (in form and substance satisfactory to the Company) delivered to the Company at least sixty (60) days prior to the date on which the Goods are ready for shipment. At the option of the Company, for the Customers whose credit has been approved in advance by the Company, terms of payment for certain sales as designated by the Company shall be by wire transfer of the funds equal to the full invoice amount set forth on the reverse side hereof to be made to the Company’s bank account upon Customer’s receipt of the Customer’s invoice.
(b) If payment is not made in accordance with the foregoing terms, in addition to its other legal rights, the Company shall be entitled to (i) charge Customer, effective from the date payment becomes due, interest at the prime rate as declared from time to time by Security Bank plus 3 percentage points on the unpaid balance (but not to exceed the highest lawful rate of interest under applicable law),
(ii) withhold shipment of any Goods due to Customer until such payment is made and (iii) exercise its rights in connection with the security granted by Customer to the Company in Paragraph 2(a) above. Customer shall pay all costs of the Company, including reasonable attorney’s fees and court costs, incurred by it in collection of past due amounts from Customer, All payments by Customer shall be in lawful currency of the U.S.A.
(c) Customer shall not be entitled to set off any amount owing at any time.
- Delivery; Shipment; Risk of Loss:
(a) Unless otherwise previously agreed in writing, all Goods are shipped at the Company’s option, either F.O.B. the Company’s plant in Kansas City, Missouri or F.O.B. port of entry of the U.S. or its territory. Upon delivery to the inland carrier for shipment, title shall pass to Customer, and Customer shall assume risk and full responsibility for any loss, damage, deterioration and corrosion of the Goods. The Company is responsible for arranging for transportation, shipment, or storage of the Goods from the port of entry or from Weber’s plant in Kansas City. Customer is responsible for all inland freight charges including insurance, handling, shipment and delivery costs, unless prior written agreement with the Company is otherwise made.
(b) Unless specified otherwise by the Customer in writing, the Company is authorized to make partial shipments of Goods. Each partial shipment shall be deemed a separated sale, and invoices shall be rendered and payment shall become due therefor in accordance with these Terms and Condition.
(c) Customer shall give written notice to the Company of any claim for shortage, error on shipment, or error in charges within thirty (30) days after receipt of the Goods, or such claim shall be deemed waived.
(d) In the event Customer fails to or refuses to accept any delivery of the Goods, in whole or in part, the Company shall have the right to dispose of such Goods in a commercially reasonable manner, at a commercially reasonable price. Customer agrees to pay to the Company the difference, if any between the price of the Goods set forth on the face hereof and the price obtained by the Company less any and all incidental charges.
(e) The Company will exercise good faith to have the Goods available for shipment within a reasonable time after all formalities of the order have been completed, payments due prior to shipment have been received by the Company, any agreed upon security has been provided and all technical specifications of the order have been clarified. Any delivery dates communicated to the Customer, either verbally or in writing, including on the face hereof, are only approximate and the Company is not responsible for any damages, losses or costs of any kind including, but not limited to, loss of revenues or profits incurred as a result of any late delivery of the Goods.
If installation by the Company is a part of this agreement, the Company shall make available to the Customer for an appropriate period of time a qualified service person to install the Goods. A qualified person shall be available to instruct Customer’s employees in operation and preventative maintenance of the Goods for a period not to exceed 5 consecutive business days. Customer is expected to provide a qualified maintenance person during the entire installation. It is Customer’s responsibility to uncrate and locate the Goods in final position, make available adequate utilities. Installation and instruction services shall be available to the Customer during the 90-day period following Customer’s written confirmation to the Company the Goods are in place at Customer’s plant, adequate utilities are available for the Goods and adequate and sufficient materials and supplies necessary for the operation of the Goods are readily available at Customer’s Plant. Instruction of the final connections will also be provided by the Company’s serviceman. These services will be scheduled in accordance with the availability of qualified service persons of the Company. In addition to the foregoing installation services, qualified service persons of the Company can be scheduled through Weber’s Service Scheduling Department for personal consultation at Customer’s plant at the prevailing daily rate plus reasonable travel and lodging expenses which shall be paid by Customer.
- Force Majeure:
Any failure or delay by the Company or Customer hereunder, other than failure of or delay in payment for any of the Goods delivered to Customer, shall be excused from liability for the time and to the extent such failure or delay is caused by force majeure or any other cause not within the reasonable control of the affected party hereto or the Company’s suppliers experiencing such difficulty. The term “force majeure” shall include, without limitations, acts of God and the public enemy, the elements, fire, explosion, accidents, breakdowns, labor disputes, embargoes and any other public disturbance, inability to obtain materials, supplies, permits or transportation facilities, damage to equipment or production or storage facilities, or act of omission by a third party not controlled by the party experiencing such difficulty, and any laws, orders, rules, regulations, acts, restraints of any government authority, civil or military. Upon occurrence of any failure or delay included within the terms of this paragraph 5, the party experiencing such difficulty shall promptly notify the other party, and shall make every reasonable effort to remedy the cause of such failure or delay or to find alternative means of performance. Notwithstanding the forgoing, settlements of strikes, lockouts, or other labor disputes shall be exclusively within the discretion of the party hereto experiencing such difficulty.
(a) Except as otherwise stated herein, the Company warrants the Goods consisting of the equipment, parts and accessories described in the attached quotation to be free from defects in material and workmanship for a period of 12 months after commencement of installation, but not more than 18 months after arrival at Customer’s plant in the event that the Goods are not installed promptly on delivery. The above warranty does not apply to:
(i) Goods repaired or modified without the Company’s prior written consent and/or subjected to improper handling, storage, installation, operation or maintenance, including, without limitation, installation, use or application of Goods or any part thereof contrary to the Company’s instruction, use of improper consumables, unstable facilities for operation, or chemical, electromechanical or electrical conditions, or severe temperatures;
(ii) Any item which is purchased by the Company as a component part of the Goods except to the extent to which such items are covered by the warranty, if any, of the original manufacturer thereof;
(iii) Any damage or deterioration to defective Goods which can reasonably be prevented or minimized by Customer pending repair or replacement of the defective Goods in accordance with applicable warranty;
(iv) Any item which is a component part of the Goods where such item is furnished by Customer;
(v) The design of Goods or part thereof prepared from designs or instruction furnished by Customer or its agents or representatives;
(vi) Models or samples, which are furnished gratuitously to Customers as illustrations only of the general properties of the Company’s Goods;
(vii) Any material defect in Goods sold as used or reworked condition;
(viii) Any normal wear and tear to parts.
(b) THERE IS NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF EXCEPT AS SET FORTH IN THIS SECTION ENTITLED “WARRANTY.”
(c) The liability of the Company under its warranty is expressly limited to the repair or replacement, at its sole option, of Goods which prove to be defective within the warranty period. The Company’s obligation to repair or replace defective Goods constitutes agreed and liquidated damages for any breach of warranty by the Company. Any claim warranty by the Customer shall be made in writing within ten (10) days after the discovery of the defect. The Company shall have the right to inspect the Goods claimed to be defective and shall have the right to determine the cause of such defect. All Goods replaced or repaired by the Company under its warranty shall be replaced or repaired F.O.B. the Company’s plant in Kansas City, Missouri, or such other location as the Company may designate.
(d). If the replacement or repaired parts require a Weber Technician for installation, and the machine is within 90 days of installation, then the value of the technician’s time will be provided at no charge. Travel expenses are the customer’s responsibility. If the machine is outside the first 90 days of installation, then the time and expenses will be paid by the customer.
- Intellectual Property Warranty:
(a) The Company warrants that the Goods shall be delivered free of infringement of any patent, trademark or other intellectual property right or misappropriation of any trade secret existing in the United States as of the date of receipt of the Purchase order by the Company. The Company’s liability under its warranty as set forth in this Paragraph 7(a), shall be expressly conditioned upon and limited to Paragraphs 7(b) – (i) hereinbelow.
(b) The Company makes no express or implied warranty to the Customer against infringements or misappropriations as described in Paragraph 7(a), above for; (i) Goods manufactured to the Customer’s design or specifications; (ii) Goods furnished by the Customer; (iii) Customer’s use of the Goods in combination with other items where such infringement would not have occurred from the normal use for which the Goods were designed.
(c) THE WARRANTY OF INFRINGEMENT, AS SET FORTH IN SECTION 2-312(3) OF THE UNIFORM COMMERCIAL CODE (UCC) (1987), IS DISCLAIMED.
(d) The Company’s warranty obligations under this Paragraph 7 shall be terminated should the Customer fail to notify the Company in writing within five (5) days of any claim or action threatened, asserted or instituted against the Customer wherein it is alleged that the Goods infringe a patent, trademark or any other intellectual property right, or have misappropriated any trade secret.
(e) The Company is under no obligation to defend any such claim or action threatened, asserted or instituted against the Customer, and shall not be liable for any costs, or damages awarded in any such action. Notwithstanding the foregoing sentence, the Company reserves the right to give the Customer written notification that the Company intends to defend such claim or action against the Customer at Company’s expense and will pay the costs and damages awarded in any such action, including appeals, and further provided that the Customer shall first surrender to the Company absolute control of the defense of any such action and all negotiations for its settlement or compromise.
(f) In the event a claim or action is threatened, asserted, or instituted against the Company, the Customer or a third party for infringement or misappropriations described in Paragraph 7 above, prior to shipment of the Goods by the Company to the Customer, then the Company may notify the Customer that the Company will be unable: (i) to deliver the Goods; (ii) to deliver the Goods by the originally anticipated delivery date, or (iii) to deliver the Goods in the form originally specified or described. Upon the occurrence of any of the foregoing, the Company’s liability shall be limited to any payment which the Customer has made.
(g) In the event a claim or action is threatened, asserted or instituted against the Company or the Customer for the infringement or misappropriation as described in 7 (a) above, the Customer shall allow the Company, at Company’s option and expense to: (i) procure for the Customer the right to continue using the Goods; (ii) replace the Goods with non-infringing Goods; (iii) modify the Goods so that they become non-infringing; or (iv) grant the Customer a refund of the amount of the purchase price paid by the Customer for the Goods in exchange for the return of the allegedly infringing Goods, transportation and removal costs to be paid by the Company. In addition, upon receipt of written request from the Company, the Customer shall immediately cease using the Goods.
- Technical Documents:
Unless otherwise agreed to in writing by the Company, the Customer shall in no event be provided with manufacturing drawings of the Goods notwithstanding the Customer’s request in a purchase order to be provided with such drawings.
- Operation of the Goods:
The Company will provide the Customer with a manual of operation and maintenance of the Goods, as well as safety information. The Customer shall not permit anyone to operate or otherwise come into contact with the Goods, unless the Customer has ensured that the person has read and understands the manual and the safety information and further, the Customer has reason to be convinced that the person is qualified to the extent necessary to operate and/or perform maintenance on the Goods.
The Company shall not be liable to the Customer under any warranty or otherwise for: (a) the quality, life, handling or other required specifications of the products that are processed using the Goods; (b) damages or accidents resulting from the Customer or the Customer’s employees; (i) failure to observe the operating and safety instructions for the Goods or (ii) performance of improper maintenance on the Goods; or (c) incidental or consequential damages of any kind.
- Security Interest in Goods:
Customer grants to the Company a security interest in the Goods described on the face hereof and the proceeds thereof to secure payment of any portion of the purchase price remaining unpaid and all other amounts owing by Customer to the Company. Customer agrees that these Terms and Conditions of Sale or a copy hereof, as signed by Customer may be filed as a financing statement to evidence the security interest herein granted.
- Delegation – Assignment:
Customer’s rights and obligations hereunder shall not be delegated or assigned without the Company’s prior written consent.
All taxes, duties, inspection fees, freight, transfer fees or similar costs or charges assessed on or incurred in the sale, production, storage, shipment receipt, exchange or inspection of the Goods are not included in any price quotation or sales confirmation of the Company, unless specifically indicated therein, and are payable by Customer. Customer shall promptly reimburse the Company for any of the foregoing charges directly paid to the Company.
- Governing Law:
These Terms and Conditions of Sale shall be governed by the laws of the State of Missouri, and venue in any judicial proceeding shall be in a court of competent jurisdiction in Kansas City, Jackson County, Missouri. Customer hereby irrevocably appoints the Secretary of State of Missouri as its agent for the receipt of process or other notice in any judicial proceedings arising in connection herewith.
In the event any one or more of the Terms and Conditions of Sale contained herein shall be held invalid, illegal or unenforceable in any respect by a county, such invalidity, illegality or unenforceablility shall not effect the other
Terms and Conditions of Sale stated herein; provided, however, that the remaining Terms and Conditions of Sale can be reasonably construed together without the provision declared invalid, illegal, or unenforcable.
- Effect of Waiver:
Failure of the Company to enforce any or all the Terms and Conditions of Sale herein in a particular instance or instances shall not constitute a waiver or preclude later enforcement.
- Other Terms and Conditions:
(a) Once accepted by the Company, an order for Goods cannot be canceled by Customer without written approval from the Company, Acceptance of cancellation will be predicated upon Customer’s payment of a cancellation charge to be determined by the Company. (b) The Company reserves the right to modify the design of any Goods without obligations or previous notifications, and the Company is not obligated to so modify Goods previously or subsequently sold.