Terms & Conditions

TERMS AND CONDITIONS

These Terms and Conditions (“Terms and Conditions”) are incorporated by reference and constitute a part of the purchase order issued by to WALLNER EXPAC, INC., (“Wallner”).  Wallner and Customer are sometimes referred to herein as a “Party” and collectively as the “Parties”).

1. General. Wallner agrees to provide the products and/or services described in the purchase order (“Product”) subject to the terms, covenants and conditions contained herein.  Wallner agrees to provide the Product to Customer only on these Terms and Conditions, notwithstanding any language in Customer’s Purchase Order and/or Terms & Condition, if one exists, or other writing or oral representation previously or simultaneously by Wallner purporting to amend, modify or replace these terms, covenants and conditions with any different or additional terms, covenants or conditions or reciting that any action or inaction by Wallner constitutes agreement or consent by Wallner to such amendment, modification or replacement, unless in writing and signed by the parties. WALLNER’S AGREEMENT TO PROVIDE THE PRODUCT IS EXPRESSLY CONDITIONED ON CUSTOMER’S ASSENT TO ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN.
2. Customer’s Acceptance. Customer shall be deemed to have made an unqualified acceptance of these Terms and Conditions and it shall become the agreement between the parties on the earliest of the following to occur: (i) Wallner’s receipt of Customer’s purchase order number or Customer’s signing or acknowledgment of Wallner’s Invoice or these Terms and Conditions; (ii) Customer’s payment of any amounts due to Wallner; (iii) Customer’s delivery to Wallner of any material to be furnished by Customer; (iv) Customer’s receipt of the Product; or (v) any other event constituting acceptance under applicable law.  It is further agreed that orders accepted by Wallner will not be processed under Customer’s terms and conditions unless formally accepted and signed in writing by Wallner.
3. Lead Time. Wallner will process orders against the quotation lead-time and orders are subject to final order confirmation lead-time. Wallner will use commercially reasonable effort to minimize Lead-Times.
4. Cancellation or Modification. Orders for standard Product may be cancelled prior to their manufacturing date, subject to a fifty percent (50%) cancellation fee.  Special, custom, or modified Product cannot be cancelled after Supplier has purchased or committed to the raw material for same.   In the event of such cancellation or modification, Customer shall compensate Wallner for all resultant costs and damages. All orders for undelivered Product may be cancelled by Wallner, without incurring any liability to Customer, if production becomes impracticable.
5. Quotations and Orders. Written quotations are void unless accepted within validity date outlined in the quotations. Customer’s blanket order commitments shall clearly state quantity and time commitment from Customer and shall meet the minimum release outlined in the written quotations. Wallner and Customer agree to a +/- ten percent (10%) quantity allowance.   Future blanket orders shall be subject to requote based on steel market fluctuations and other input cost.  Wallner reserves the right to accept or reject Customer’s purchase orders in its sole discretion. Any accepted purchase orders shall be governed by these Terms and Conditions and no additional or different terms in any such purchase order shall be part of the Parties’ agreement.
6. Delivery. Customer may select the mode of transportation, routing and carrier for delivered orders. If Customer does not provide Wallner with shipping instructions, then Wallner shall select the mode of transportation for delivered orders. Customer shall provide Wallner with a minimum lead time of 10 days to make shipping arrangements. Wallner will use its reasonable business efforts to meet the scheduled dates but does not guarantee to meet such dates. Time for delivery shall not be of the essence. Failure by Wallner to make any shipments by scheduled dates does not constitute a cause for cancellation and/or for damages of any character. In the event of delay in delivery requested by Customer or caused by Customer, Wallner will store all Product at Customer’s risk and expense.
7. Storage. Storage fees will be assessed to Customer each month in an amount equal to Wallner’s actual cost plus 10% of the actual cost for administration or, if stored at Wallner’s facilities, the fair market value of such storage, as determined by Wallner, plus 10% of the storage cost for administration. In no event will Product be warehoused more than 3 months. Upon expiration of 3 months, Wallner shall invoice Customer the outstanding balance for stored Product and any attendant fees. Presuming Customer has paid for such, the Product shall be released to Customer. Should Customer decline release of the Product, or in the event that Customer is in arrears on amounts owed to Wallner, Wallner may elect to dispose of the Product and assess the additional cost to Customer.
8. Risk of Loss; Title; Inspection. Wallner shall deliver the Product to the Delivery Point. Unless otherwise stated in Wallner’s Quotation to Customers, the “Delivery Point” shall be F.O.B. Wallner’s facility. Regardless of any freight payment by Wallner on Customer’s behalf . all risk of loss or damage in transit shall pass to Customer upon delivery to the Delivery Point. Wallner is not responsible for any loss, damage, or delay which may occur after Wallner delivers the Product to the Delivery Point. Any claims for damage in transit shall be filed by Customer directly with the carrier. Customer shall inspect the Product upon receipt and any claims for shortages or other errors must be noted at the time of delivery on all carrier documents and supported by signed documentation. Claims for shortages or other errors must be made in writing to Wallner within 10 days after Wallner’s delivery of the Product to the Delivery Point. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Customer. No Product may be returned to Wallner for any reason without Wallner’s prior written authorization. Partial shipments shall be permitted. Shipments may contain underruns or overruns not exceeding ten percent (10%).
9. Insurance. Upon Wallner’s request, Customer shall provide and maintain adequate insurance for Product, covering such from the Delivery Point until Wallner has received payment in full for all Product naming Wallner as an additional insured, and shall annually provide to Wallner a certificate of insurance evidencing compliance with this requirement. Such insurance shall be reasonably satisfactory to Wallner and shall provide that it may not be cancelled or modified without prior written notice to Wallner.
10. Prices. All prices, discounts and transportation charges are in U.S. Dollars and are subject to change without notice. If no price is stated on Wallner’s Invoice, prices shall be Wallner’s current prices in effect on the date of acceptance of orders by Wallner (or, in Wallner’s sole discretion, on the date of shipment) as set forth on price lists issued or modified by Wallner from time to time. All general or special taxes, duties, fees, freight and insurance costs and any other charges of any nature whatsoever, imposed on, in connection with or measured by any transaction between Wallner and the Customer shall be paid by the Customer in addition to the prices quoted or invoiced.
11. Payment. Unless otherwise stated in an Invoice issued from Wallner to Customer, payment terms are 100% of the order amount due within thirty (30) days from Wallner’s ship date. Terms of payment on all orders are subject to the written approval of Wallner’s credit department. If Customer does not pay Wallner any amount when such amount is due, or if Customer defaults in the performance of these Terms and Conditions or any Invoice issued from Wallner to Customer, Wallner may, without incurring liability and without prejudice to Wallner’s other lawful remedies and at Wallner’s sole option: (i) terminate Wallner’s obligations under these Terms and Conditions and any Invoice issued from Wallner to Customer; (ii) declare immediately due and payable all of Customer’s obligations to Wallner; (iii) change credit terms with respect to any further work; (iv) suspend or discontinue any further work until Customer pays all overdue amounts; and/or (v) repossess the Product. Customer agrees to reimburse Wallner for all costs incurred by Wallner in collecting any sums owed by Customer to Wallner, including without limitation, attorneys’ fees and costs of proceedings. Customer agrees to pay, at Wallner’s discretion, a late payment fee of up to one and one-half percent (1.5%) per month on all amounts not paid in full when due, or the maximum amount allowed by law, whichever is less. Wallner reserves the right to require payment in advance or other secured form of payment from time to time.
12. Security Interest. As partial consideration for Wallner’s sale of the Product to Customer, Customer hereby grants to Wallner and Wallner hereby retains a security interest in all Product sold to Customer now or hereafter in the possession of or under the control of Customer, title to which might at any time be determined to have passed to Customer, including, without limitation, all Product and materials thereof or any other Product bearing any trademark of Wallner, returns or repossessions and the proceeds of all of the foregoing, to secure all of Customer’s obligations to Wallner under these Terms and Conditions and any Invoice issued from Wallner to Customer and all other obligations of Customer to Wallner.
13. Limited Warranty. Wallner warrants to Customer that its Product will be free from material defects in workmanship and materials under normal use and service, for a period for 30 days from the date of Wallner’s delivery of the Product to the Delivery Point (the “Warranty Period”). There is NO WARRANTY in cases of damage in transit, negligence, abuse, abnormal usage, misuse, accidents, altered Product, failure to follow Wallner’s instructions or improper storage. WALLNER’S SOLE AND EXCLUSIVE OBLIGATION (AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY) UNDER THIS WARRANTY SHALL BE, UPON PROMPT WRITTEN NOTICE RECEIVED BY WALLNER DURING THE WARRANTY PERIOD OF ANY BREACH, TO EITHER, AT WALLNER’S OPTION, REPAIR, CORRECT OR REPLACE WITHOUT CHARGE, UNLESS OTHERWISE STATED, TERMS ARE F.O.B. WALLNER’S FACILITY, , ANY DEFECTIVE PRODUCT EXPRESSLY WARRANTED HEREIN BY WALLNER AGAINST DEFECTS AND FOUND BY WALLNER IN ITS SOLE DISCRETION TO BE DEFECTIVE AND COVERED BY THIS WARRANTY, OR CREDIT CUSTOMER FOR THE PURCHASE PRICE PAID FOR SUCH PRODUCT. WALLNER SHALL NOT BE LIABLE TO CUSTOMER, OR TO ANYONE CLAIMING UNDER CUSTOMER, FOR ANY OTHER OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR TORT OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE PRODUCT OR WALLNER’S ACTS OR OMISSIONS OR OTHERWISE. This warranty covers only replacement, correction or repair of defective Product at Wallner’s main facility and does not include the cost of inspection, removal, delivery or field service travel and living.
14. Limited Liability. Prior to using Product, Customer or user shall determine the suitability of the Product for the intended use and Customer shall assume all risk and liability whatsoever in connection therewith. IN NO EVENT SHALL WALLNER BE LIABLE FOR INCIDENTAL, INDIRECT, COMPENSATORY, PUNITIVE, CONSEQUENTIAL, SPECIAL OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS. WALLNER’S AGGREGATE LIABILITY WITH RESPECT TO A DEFECTIVE PRODUCT AND THESE TERMS AND CONDITIONS AND ANY INVOICE ISSUED FROM WALLNER TO CUSTOMER SHALL BE LIMITED TO THE MONIES PAID BY CUSTOMER TO WALLNER FOR THE DEFECTIVE PRODUCT. The remedy described in this Section is Customer’s exclusive remedy and is in lieu of any other remedy otherwise available at law or in equity.
15. Disclaimer of Warranties. WALLNER AND CUSTOMER AGREE THAT THE WARRANTY IN SECTIONS 13 AND 14 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCT FURNISHED BY WALLNER HEREUNDER.  WALLNER HEREBY DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES WITH RESPECT TO THE PRINTING OR REPRODUCTION OF UNIVERSAL PRODUCT CODE INFORMATION. Any oral or written description of the Product is for the sole purpose of identifying the Product and shall not be construed as a warranty.
16. Other Manufacturers’ Warranties. On Product furnished by Wallner, but produced or manufactured by others, the written warranty of the manufacturer, if any, will be assigned to Customer if assignment is permitted and reasonably practicable. However, Wallner does not adopt or guarantee or represent that the manufacturer will comply with any of the terms of the warranty of such manufacturer.
17. Engineering Data and Design Information. Except for data, information and drawings provided by Customer, all engineering data, design information, composition plates, sketches and drawings used in the completion of Customer’s order and all of Wallner’s copyrights, trademarks, patents and other intellectual property are and shall remain Wallner’s property (“Wallner IP”).  Customer is hereby granted a limited license to sell, or re-sell Product produced by Wallner pursuant to these Terms and Conditions, provided, however, Customer shall not reverse engineer or create any version of such Product, nor manufacture any Product produced by Wallner, either on its own or through a third party. Customer shall not use, copy, reproduce, distribute, publish or communicate to any third-party data, information, sketches, drawings, or any other item relating to Wallner IP, without Wallner’s prior written permission.
18. Customer’s Drawings, Designs or Descriptions. Orders manufactured to drawings, designs or specifications provided by or on behalf of Customer are executed only with the understanding that Customer releases and agrees to indemnify, defend and hold harmless Wallner and each of Wallner’s Indemnified Parties (as defined below) from and against any and all Damages (as defined below) sustained by or against any of them, resulting from, in connection with or relating to any action or threatened action concerning: (i) infringement of the patents, trademarks, copyrights or other intellectual property or proprietary rights of any other person or entity; or (ii) injury to person or property, including death, relating to the drawings, designs or specifications provided by or on behalf of Customer.
19. Indemnification. Customer hereby releases and agrees to indemnify, defend and hold harmless Wallner, its shareholders, directors, officers, partners, members, contractors, employees, affiliates, agents, successors and assigns (collectively, “Wallner’s Indemnified Parties”) from and against any and all direct and indirect claims, demands, actions, liabilities, judgments, damages, losses, fines, penalties, forfeitures, costs and expenses, including, without limitation, reasonable attorneys’ fees and costs of proceedings (collectively, “Damages”), arising out of, in connection with, resulting from or relating to: (i) breach of these Terms and Conditions, any Invoice issued from Wallner to Customer, or any law by Customer or any of Customer’s shareholders, directors, officers, partners, members, contractors, employees, representatives, agents, successors or assigns (“Customer’s Parties”); (ii) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Customer or any of Customer’s Parties; (iii) losses, damages or injuries caused by, arising out of or relating to the Product or the handling or use of the Product; and/or (iv) any infringements of any patent, trademark, copyright or other intellectual property rights of any other party by the Product either alone or in combination with other Product.
20. Force Majeure. Wallner will endeavor to fill all accepted orders as soon as it is practical and consistent with production schedules. Wallner shall not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, terrorism, insurrection, riot, pandemic, 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 Wallner’s available supply, or any other cause beyond Wallner’s control affecting production or delivery, including, without limitation, compliance with federal, state or local public health directives and orders. In the event of any delay in shipment or nonperformance caused by any of the foregoing, Wallner may, at its option and without liability, cancel all or any portion of its obligations to Customer and/or extend any date upon which performance is due.
21. Entire Agreement. These Terms and Conditions and any Invoice issued from Wallner to Customer (if any), constitute the final written expression of the terms between Wallner and Customer regarding the Product and, together, are a complete and exclusive statement of those terms. Any negotiations or understandings between Wallner and Customer, which are not contained in these Terms and Conditions, or any Invoice issued from Wallner to Customer, shall have no force or effect. In the event of a conflict among the provisions of these Terms and Conditions any Invoice issued from Wallner to Customer, the order of priority shall be: (i) the services agreement; (ii) these Terms and Conditions; (iii) the quotation; (iv) the acknowledgment; (v) the invoice.
22. Governing Law. These Terms and Conditions and any Invoice issued from Wallner to Customer shall be governed and construed according to the internal laws of the State of California, including, without limitation, the Uniform Commercial Code as adopted in California, without regard to conflict of laws principles. Subject to Section 24 below, any cause of action, claim, suit or demand by Customer allegedly arising from or related to these Terms and Conditions, any Invoice issued from Wallner to Customer, or the relationship of the parties shall be brought exclusively in a court situated in the State of California, County of San Bernardino. Both parties hereby irrevocably submit to the exclusive jurisdiction of said court and consent to venue therein. ANY ACTION BROUGHT BY CUSTOMER MUST BE COMMENCED WITHIN ONE YEAR AFTER THE DELIVERY OF THE PRODUCT OR THE COMPLETION OF SERVICES NOTWITHSTANDING ANY STATUTORY PERIOD OF LIMITATION TO THE CONTRARY.
23. Miscellaneous. The invalidity or unenforceability of any provision or clause of these Terms and Conditions or any Invoice issued from Wallner to Customer shall not affect the validity or enforceability of any other provision or clause. Wallner reserves the right to correct clerical or similar errors relating to price or any other term shown in these Terms and Conditions, or any Invoice issued from Wallner to Customer. Failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of these Terms and Conditions or any Invoice issued from Wallner to Customer shall not be construed as a waiver or relinquishment of any right granted hereunder or of the future performance of such term, covenant or condition. Wallner reserves the right to amend these Terms and Conditions from time to time. Wallner’s sales representatives are without authority to change, modify, or alter these Terms and Conditions. These Terms and Conditions shall survive the termination or cancelation of any Invoice issued from Wallner to Customer.
24. Successors and Assigns. These Terms and Conditions and any Invoice issued from Wallner to Customer are binding upon and inure to the benefit of Customer and Wallner and their respective successors and assigns. Notwithstanding the foregoing, Customer may not assign these Terms and Conditions, or any Invoice issued from Wallner to Customer, or any part thereof, without Wallner’s prior written consent.  Any such attempted assignment is void unless with Wallner’s prior written consent.
25. Non-Exclusivity. The engagement between Customer and Wallner is non-exclusive such that Wallner may prepare and manufacture products using Wallner IP, even if such products are competitive with Customer’s Product, at all times during the term of these Terms and Conditions.
26. Dispute Resolution. It is the policy of Wallner to attempt to settle all disputes through alternative dispute resolution techniques and to use litigation only as a last resort to settle any dispute, except in the case of collection of past-due accounts or when other circumstances dictate that litigation is advisable. Customer agrees to make a good faith attempt to settle any disputes arising out of the purchase of the Product by Customer through the use of alternative dispute resolution before instituting any litigation against Wallner.