WINGRA STONE COMPANY

 

Terms and Conditions of Sale

 

1. Controlling Provisions. This document, together with the bid document, proposal, quotation or similar document referencing these terms and conditions of sale or with respect to which these terms and conditions of sale are attached (collectively, this “Agreement“) constitutes an offer by WINGRA STONE COMPANY (“Wingra Sone“) to provide the goods described in such quotation (collectively, the “Products“) to the party to whom the quotation is addressed (“Customer“).  If this Agreement is deemed an acceptance of a prior offer by Customer, such acceptance is limited to the express terms contained herein.  Customer’s acceptance of this Agreement is limited to the terms, covenants and conditions contained in this Agreement, and Wingra Stone hereby objects to and rejects any additional, different or varying terms proposed by Customer, unless Wingra Stone expressly agrees to such terms in writing.  Such proposal of additional, different or varying terms by Customer will not operate as a rejection of Wingra Stone’s offer, and Wingra Stone’s offer will be deemed accepted without such additional, different or varying terms.  This Agreement constitutes the final expression of the terms between Wingra Stone and Customer regarding the Products and is the complete statement of those terms.  Any terms, conditions, negotiations or understandings not contained in this Agreement will have no force or effect unless made in writing and signed by Wingra Stone and Customer. 
2. Acceptance. Customer will be deemed to have accepted this Agreement upon the earliest of the following to occur: (a) Wingra Stone’s receipt of a copy of this Agreement signed by Customer; (b) Customer’s payment of any amounts due under this Agreement; (c) Wingra Stone’s delivery of the Products; or (d) any other event constituting acceptance under applicable law.
3. Orders. Customer’s order of any Products from Wingra Stone shall be subject to the provisions of this Agreement.  Customer’s order must be made in a form acceptable to Wingra Stone.  Wingra Stone reserves the right to reject any orders for any reason in its sole discretion.  Wingra Stone reserves the right to correct clerical or similar errors relating to price or any other term shown on any invoice.
4. Changes, Cancellations and Returns. Customer may not change or cancel an order that has been accepted by Wingra Stone, unless Wingra Stone agrees in writing.  Wingra Stone reserves the right to change the price, terms of payment and shipment dates for any Products affected by any changes to any order which are requested by Customer and approved by Wingra Stone in writing.  When Wingra Stone consents to the cancellation of any order, Customer shall be responsible for all expenses incurred by Wingra Stone related to such cancelled order.  Customer may not return any Products to Wingra Stone unless Wingra Stone agrees in writing.
5. Delivery. Unless otherwise, agreed in writing by the Parties, Wingra Stone shall deliver the Products in accordance with the following terms: F.O.B. (as defined in the Uniform Commercial Code as adopted in Wisconsin) Wingra Stone’s designated facility, as confirmed by Wingra Stone (the “Delivery Point“).  All risk of loss, damage or delay, and title to the Products shall pass from Wingra Stone to Customer upon delivery to Customer or its carrier at the Delivery Point.  All quoted shipment and/or delivery dates and/or periods are approximate.  Time for delivery shall not be of the essence.  Delivery dates given by Wingra Stone are based on prompt receipt of all necessary information regarding the order.  Wingra Stone’s failure to meet any delivery date does not constitute a cause for cancellation and/or for damages of any kind.  Claims for shortages or other errors must be made in writing to Wingra Stone within ten (10) days after Wingra Stone’s delivery of the shipment, and failure to give such notice will constitute unqualified acceptance of such shipment and a waiver of all such claims by Customer.
6. Delivery Delays. Any delay in delivery due to causes beyond Wingra Stone’s reasonable control including those events listed in Section 12 below, due to any priorities or allocations necessitated by governmental orders or regulations, or due to any causes specified in the following sentence, shall extend the term of delivery by a period equal to the length of such delay.  In the event of delay in delivery requested by Customer or caused by Customer’s (a) failure to supply adequate instructions; (b) failure to arrange for pickup; (c) failure to supply or approve necessary data in a timely manner; (d) requested and approved changes; or (e) failure to provide documents required for Wingra Stone to effect delivery, Wingra Stone will store all Products at Customer’s risk and expense, and Customer shall pay all storage costs and expenses upon Wingra Stone’s demand.
7. Prices; Taxes. Prices for the Products shall be as stated in Wingra Stone’s quotation.  All prices are stated, and shall be payable, in U.S. Dollars.  All quotations from Wingra Stone for the Products will automatically expire thirty (30) days from the date of quotation, unless the quotation states otherwise or is withdrawn by Wingra Stone.  Prices do not include applicable taxes, which will (if applicable) be added to the invoice and paid by Customer.
8. Terms of Payment. Terms of payment are net thirty (30) days from the invoice date.  If Customer does not pay Wingra Stone any amount due under this Agreement or any other agreement when such amount is due or if Customer defaults in the performance of this Agreement, Wingra Stone may, without liability to Customer and without prejudice to Wingra Stone’s other lawful remedies (a) terminate Wingra Stone’s obligations under this Agreement; (b) declare immediately due and payable all of Customer’s obligations to Wingra Stone; (c) change credit terms with respect to any other orders of Products; and/or (d) suspend or discontinue any further orders.  Customer agrees to reimburse Wingra Stone for all costs and fees, including, without limitation, reasonable attorneys’ fees, incurred by Wingra Stone in collecting any amounts owed by Customer to Wingra Stone.  If imposed by Wingra Stone, Customer agrees to pay a late payment charge equal to the lesser of 1.5% per month, or the maximum amount allowable by law, on all amounts not paid in full when due, payable on Wingra Stone’s demand.  Customer shall not set off amounts due to Wingra Stone against Customer’s claims against Wingra Stone.
9. Product Quality; Damages Limitations.

• (a)  If Wingra Stone and Customer agree in writing to specifications for Products supplied hereunder, then Wingra Stone warrants that such Products will, at the time of delivery to Customer, comply in all      material respects with such specifications.  EXCEPT ONLY AS PROVIDED IN THE PRECEDING SENTENCE, (i) ALL PRODUCTS ARE DELIVERED ON AN AS-IS, WHERE-IS BASIS AND (ii) WINGRA STONE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY DISCLAIMED.
• (b)  Prior to using or permitting use of the Products, Customer shall determine the suitability of the Products for the intended use and cause the Products to be applied or installed correctly (and Customer assumes all risk and liability whatsoever in connection therewith).  Any oral or written description of the Products is for the sole purpose of identifying the Products and will not be construed as an express warranty.
• (c) WINGRA STONE SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, WHETHER FOR BREACH OF WARRANTY, FOR BREACH OR REPUDIATION OF ANY OTHER TERM OF THIS AGREEMENT, OR FOR LIABILITY BASED ON NEGLIGENCE OR ANY OTHER THEORY.

10. Indemnification. Customer shall indemnify, defend and hold Wingra Stone harmless from and against any and all liabilities, losses, fines, penalties, damages and expenses, including, without limitation, attorneys’ fees, incurred by Wingra Stone which arise out of or result from any claim for bodily injury, including death or disease, or for loss of damage to property which results from or is caused by the handling and/or use of the Products at any time after delivery to Customer or its carrier.
11. Intellectual Property. Nothing in this Agreement will be construed to give Customer any rights in any trademarks or other intellectual property of Wingra Stone, including, without limitation, any proprietary manufacturing processes of Wingra Stone.
12. Force Majeure. Except with respect to payment obligations under this Agreement, neither party will be responsible for any nonperformance of this Agreement or delay in the performance of this Agreement where such nonperformance or delay has been caused by an act of God, war, major disaster, terrorism, third‑party criminal acts, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding available supply or any other cause beyond the party’s control.  In the event of any delay in delivery, failure to fill orders or other default or damage caused by any of the foregoing, Wingra Stone may, at its option and without liability, prorate its deliveries, cancel all or any portion of this Agreement to the extent affected by the event of force majeure and/or extend any date upon which performance is due hereunder.
13. 13. Insurance. In regard to truck shipments made or arranged by Customer, Customer shall furnish to Wingra Sone, prior to delivery, a certificate of insurance (with appropriate endorsements) in a form satisfactory to Wingra Stone demonstrating that Customer has in effect insurance covering Customer’s transportation equipment or Customer’s third party carrier’s equipment while on Wingra Stone’s premises, such insurance to include Commercial General Liability and Automobile Liability with limits of not less than $1 million each, Workmen ‘s Compensation Insurance in conformity with the laws of the state in which the Goods are delivered and Employer’s Liability insurance of not less than $1 million. Customer shall ensure that its policies are endorsed to name Wingra Stone Company as an additional insured with such status being on a primary and non-contributory basis to any insurance maintained by Wingra Stone.
14. Nondisclosure. To the maximum extent permitted by applicable law, for a period of five years following the date of the quotation referenced by this document, Customer agrees not to disclose to any third party (other than Customer’s own employees on a need-to-know basis) the specific terms and conditions of this Agreement, including, without limitation the pricing hereunder.  However, the obligations set forth in the preceding sentence will not apply to information that becomes, generally available to and known by the public other than as a result of any violation of this Agreement.  Customer is responsible for ensuring that its employees who are given access to the terms of this Agreement comply with the requirements of this Section 14.
15. Governing Law; Venue. This Agreement will be governed by and construed according to the laws of the State of Wisconsin, USA.  Neither this Agreement nor sales hereunder will be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.  The exclusive venue of any claim or dispute arising under these Terms and Conditions shall be in the State or Federal District Courts of Dane County, Wisconsin.
16. Miscellaneous. This Agreement constitutes the entire agreement between the parties with respect to Customer’s purchase of the Products and supersedes all other agreements or communications, written or oral, which may be deemed to be inconsistent with it. This Agreement may not be amended or altered except by a writing signed by Wingra Stone.  If any provision of this Agreement is held to be invalid or unenforceable for any reason, the parties acknowledge and agree that (a) such invalidity or unenforceability will not affect any other provision of this Agreement, (b) the remaining terms, covenants and conditions hereof will remain in full force and effect, and (c) any court of competent jurisdiction may so modify the objectionable provision as to make it valid and enforceable.  The failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of this Agreement will not be construed as a waiver or relinquishment of any right granted hereunder or the future performance of such term, covenant or condition.  All of Wingra Stone’s remedies hereunder are cumulative and not exclusive of any other remedies available to Wingra Stone at law, by contract or in equity.