WONDER SIGN, LLC.
TERMS AND CONDITIONS OF SALE
1. OFFER;ACCEPTANCE:
THE TERMS AND CONDITIONS OF PRODUCT SALES ARE LIMITED TO THOSE CONTAINED HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS IN ANY FORMS DELIVERED BY YOU ("CUSTOMER") ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN. BY ACCEPTING DELIVERY OF THE PRODUCTS DESCRIBED IN WONDER SIGN, LLC.’S (“Wonder Sign”) INVOICE OR OTHER WONDER SIGN DOCUMENTATION, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS OF PRODUCT SALES UNLESS CUSTOMER AND WONDER SIGN HAVE SIGNED A SEPARATE AGREEMENT, IN WHICH CASE THE SEPARATE AGREEMENT WILL GOVERN.
THESE TERMS AND CONDITIONS OF SALE CONSTITUTE A BINDING CONTRACT BETWEEN CUSTOMER AND WONDER SIGN AND ARE REFERRED TO HEREIN AS EITHER "TERMS AND CONDITIONS OF SALE" OR THIS "AGREEMENT". CUSTOMER ACCEPTS THESE TERMS AND CONDITIONS OF SALE BY MAKING A PURCHASE, PLACING AN ORDER OR OTHERWISE SHOPPING ON WONDER SIGN'S WEBSITE (THE "SITE"). THESE TERMS AND CONDITIONS OF SALE ARE SUBJECT TO CHANGE WITHOUT PRIOR NOTICE, EXCEPT THAT THE TERMS AND CONDITIONS OF SALE POSTED ON THE SITE AT THE TIME CUSTOMER PLACES AN ORDER WILL GOVERN THE ORDER IN QUESTION, UNLESS OTHERWISE AGREED IN WRITING BY WONDER SIGN AND CUSTOMER. CUSTOMER MAY ISSUE A PURCHASE ORDER FOR ADMINISTRATIVE PURPOSES ONLY. ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS CONTAINED IN ANY SUCH PURCHASE ORDER WILL BE NULL AND VOID. CUSTOMER AGREES THAT THE TERMS AND CONDITIONS OF SALE CONTAINED HEREIN AND IN WONDER SIGN’S INVOICE OR OTHER WONDER SIGN DOCUMENTATION WILL CONTROL. NO COURSE OF PRIOR DEALINGS BETWEEN THE PARTIES AND NO USAGE OF TRADE WILL BE RELEVANT TO DETERMINE THE MEANING OF THESE TERMS AND CONDITIONS OF SALE OR ANY PURCHASE ORDER OR INVOICE RELATED THERETO.
2. PRICE & PAYMENT:
All prices, discounts and transportation charges are in U.S. Dollars and are subject to change without notice. If no price is stated on Wonder Sign’s invoice, prices shall be Wonder Sign's current prices in effect on the date of acceptance of orders by Wonder Sign (or, in Wonder Sign’s sole discretion, on the date of shipment) as set forth on price lists issued or modified by Wonder Sign 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 Wonder Sign and the Customer shall be paid by the Customer in addition to the prices quoted or invoiced.
Unless otherwise stated in the quotation or invoice, payment terms are 1% 10 days net 11 days from Wonder Sign's delivery of the products to the Delivery Point. Terms of payment on all orders are subject to the approval of Wonder Sign's credit department. If Customer does not pay Wonder Sign any amount when such amount is due, or if Customer defaults in the performance of these Terms and Conditions of Sale, the quotation or invoice issued from Wonder Sign to Customer, Wonder Sign may, without incurring liability and without prejudice to Wonder Sign's other lawful remedies and at Wonder Sign's sole option: (i) terminate Wonder Sign's obligations under these Terms and Conditions of Sale and/or any quotation or invoice issued from Wonder Sign to Customer, (ii) declare immediately due and payable all of Customer's obligations to Wonder Sign, (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 products. Customer agrees to reimburse Wonder Sign for all costs incurred by Wonder Sign in collecting any sums owed by Customer to Wonder Sign, including without limitation, attorneys' fees and costs of proceedings. Customer agrees to pay, at Wonder Sign's discretion, a late payment fee of up to 1.5% per month on all amounts not paid in full when due. Wonder Sign reserves the right to require payment in advance or other secured form of payment from time to time.
3. CANCELLATION OR MODIFICATION:
Customer may not cancel or modify its order except upon terms accepted in writing by Wonder Sign. In the event of such cancellation or modification, Customer shall compensate Wonder Sign for all resultant costs and damages. All undelivered products may be cancelled by Wonder Sign, without incurring any liability to Customer, if production becomes impracticable.
4. QUOTATIONS AND ORDERS:
Orders are not binding upon Wonder Sign until accepted by Wonder Sign. All orders are subject to Wonder Sign management approval. Written quotations are void unless accepted within fourteen (14) days from date of issue. Wonder Sign 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 of Sale and no additional or different terms in any such purchase order shall be part of the parties' agreement.
5. DELIVERY:
Customer may select the mode of transportation, routing and carrier for delivered orders. If Customer does not provide Wonder Sign with shipping instructions, then Wonder Sign shall select the mode of transportation for delivered orders. Wonder Sign will use its reasonable business efforts to meet any scheduled dates, but does not guarantee to meet such dates. Time for delivery shall not be of the essence. Failure by Wonder Sign 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, Wonder Sign will store all products at Customer's risk and expense.
6. TITLE; RISK OF LOSS; INSPECTION:
Title to product shall vest in Customer when loaded on a truck at Wonder Sign’s manufacturing facility. Wonder Sign shall deliver the products to the Delivery Point. Unless otherwise stated in Wonder Sign's quotation or invoice, for sales to Customers in the United States, the "Delivery Point" shall be F.C.A. named place, and for sales to Customers outside the United States, the "Delivery Point" shall be EX WORKS Wonder Sign’s manufacturing facility pursuant to INCOTERMS 2000, as may be amended from time to time. All risk of loss or damage in transit shall pass to Customer upon delivery to the Delivery Point. Wonder Sign is not responsible for any loss, damage, or delay which may occur after Wonder Sign delivers product to the Delivery Point. Customer shall inspect the products upon receipt and any claims for shortages or other errors must be noted at the time of delivery on all Wonder Sign documents and supported by signed documentation. Claims for shortages or other errors must be made in writing to Wonder Sign within fourteen (14) days after Wonder Sign's delivery of the products to the Delivery Point. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Customer. No products may be returned to Wonder Sign for any reason without Wonder Sign’s prior written authorization. Partial shipments shall be permitted.
7. LIMITED WARRANTY:
THERE IS NO WARRANTY IN CASES OF DAMAGE IN TRANSIT, NEGLIGENCE, ABUSE, ABNORMAL USAGE, MISUSE, ACCIDENTS, ALTERED PRODUCTS, FAILURE TO FOLLOW WONDER SIGN'S INSTRUCTIONS OR IMPROPER STORAGE. WONDER SIGN'S SOLE AND EXCLUSIVE OBLIGATION (AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY) UNDER THIS WARRANTY SHALL BE, UPON PROMPT WRITTEN NOTICE RECEIVED BY WONDER SIGN DURING THE WARRANTY PERIOD OF ANY BREACH, TO EITHER, AT WONDER SIGN'S OPTION, REPAIR, CORRECT OR REPLACE WITHOUT CHARGE, F.O.B. WONDER SIGN'S FACILITY, ANY DEFECTIVE PRODUCT EXPRESSLY WARRANTED HEREIN BY WONDER SIGN AGAINST DEFECTS IN MATERIAL AND WORKMANSHIP AND FOUND BY WONDER SIGN IN ITS SOLE DISCRETION TO BE DEFECTIVE AND COVERED BY THIS WARRANTY, OR CREDIT CUSTOMER FOR THE PURCHASE PRICE PAID FOR SUCH PRODUCT. WONDER SIGN 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 PRODUCTS OR WONDER SIGN'S ACTS OR OMISSIONS OR OTHERWISE. THIS WARRANTY COVERS ONLY REPLACEMENT, CORRECTION, CUSTOMER CREDIT FOR PURCHASE PRICE OR REPAIR OF DEFECTIVE PRODUCTS AND DOES NOT INCLUDE THE COST OF INSPECTION, REMOVAL, INSTALLATION, DELIVERY OR FIELD SERVICE TRAVEL AND LIVING.
8. LIMITED LIABILITY:
PRIOR TO USING PRODUCTS, CUSTOMER 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 WONDER SIGN BE LIABLE FOR INCIDENTAL, INDIRECT, COMPENSATORY, PUNITIVE, CONSEQUENTIAL, SPECIAL OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS. WONDER SIGN'S AGGREGATE LIABILITY WITH RESPECT TO A DEFECTIVE PRODUCT AND THESE TERMS AND CONDITIONS OF SALE AND/OR ANY QUOTATION OR INVOICE ISSUED FROM WONDER SIGN TO CUSTOMER SHALL BE LIMITED TO THE MONIES PAID BY CUSTOMER TO WONDER SIGN FOR THE DEFECTIVE PRODUCT. THE REMEDY DESCRIBED IN THIS SECTION 8 IS CUSTOMER'S EXCLUSIVE REMEDY AND IS IN LIEU OF ANY OTHER REMEDY OTHERWISE AVAILABLE AT LAW OR BY CONTRACT.
9. WARRANTY DISCLAIMER:
WONDER SIGN AND CUSTOMER AGREE THAT THE WARRANTY IN SECTION 7 IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS FURNISHED BY WONDER SIGN HEREUNDER (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES, EXPRESS OR IMPLIED). WONDER SIGN HEREBY DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS OR IMPLIED WARRANTIES. ANY ORAL OR WRITTEN DESCRIPTION OF THE PRODUCTS IS FOR THE SOLE PURPOSE OF IDENTIFYING THE PRODUCTS AND SHALL NOT BE CONSTRUED AS A WARRANTY.
10. WONDER SIGN PRODUCT WARRANTY & OTHER MANUFACTURER’S WARRANTIES:
Products produced and manufactured by Wonder Sign may have a separately stated Wonder Sign product warranty with terms and conditions that may apply. On products furnished by Wonder Sign, but produced or manufactured by others, the written warranty of the manufacturer, if any, will be assigned to Customer if assignment is reasonably practicable. However, Wonder Sign does not adopt or guarantee or represent that the manufacturer will comply with any of the terms of the warranty of such manufacturer.
11. CONFLICTS BETWEEN WONDER SIGN POLICIES:
In the event of a conflict, these Terms and Conditions of Sale supersede Wonder Sign’s separately stated product warranties, to the extent of such conflict.
12. INDEMNIFICATION:
Wonder Sign and Customer agree to indemnify and hold the other harmless from and against any and all claims, damages and liabilities whatsoever, asserted by any person or entity, arising directly or indirectly from any breach by a Party or any of its respective employees or agents, of these Terms and Conditions of Sale or of any warranty, representation or covenant contained in these Terms and Conditions of Sale. Such indemnification shall include the payment of all reasonable attorney's fees and other costs incurred by the indemnified Party in defending any such claim. The indemnified Party shall promptly inform the indemnifying Party in writing of any such claim, demand or suit and shall fully cooperate in the defense thereof. The indemnified Party will not agree to the settlement of any such claim, demand or suit prior to the final judgment thereon without the consent of the indemnifying Party, whose consent will not be unreasonably withheld. The indemnified Party shall not by any act or omission admit liability or otherwise prejudice or jeopardize the indemnifying Party's actual or potential defense to any claim. The said indemnity is subject to the indemnified Party's duty to mitigate all of its said costs, expenses, damages or liabilities.
13. FORCE MAJEURE:
Wonder Sign will endeavor to fill all accepted orders as soon as it is practical and consistent with production schedules. Wonder Sign 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, 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 Wonder Sign's available supply, or any other cause beyond Wonder Sign's control affecting production or delivery. In the event of any delay in shipment or nonperformance caused by any of the foregoing, Wonder Sign 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.
14. INTEGRATION:
No modification of these Terms and Conditions of Sale shall be of any force or effect unless in writing and signed by Wonder Sign’s authorized officer or employee, and no modification shall be affected by the acknowledgement or acceptance of purchase order forms stipulating different conditions.
15. GOVERNING LAW:
THESE TERMS AND CONDITIONS OF SALE AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF WISCONSIN, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN BROWN COUNTY, WISCONSIN AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. EXCEPT IN THE CASE OF NONPAYMENT, NEITHER PARTY MAY INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF THESE TERMS AND CONDITIONS OF SALE MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
16. SEVERABILITY; CLERICAL ERRORS; WAIVER; AUTHORIZED AGENTS:
The invalidity or unenforceability of any provision or clause of the Terms and Conditions of Sale shall not affect the validity or enforceability of any other provision or clause. Wonder Sign reserves the right to correct clerical or similar errors relating to price or any other term shown in these Terms and Conditions of Sale and/or any quotation or invoice issued from Wonder Sign 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 of Sale and/or any quotation or invoice issued from Wonder Sign 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. Wonder Sign reserves the right to amend these Terms and Conditions of Sale from time to time. Wonder Sign's sales representatives are without authority to change, modify, or alter these Terms and Conditions of Sale. The provisions of sections 2, 8, 12, 14, 15 and 16 shall survive termination of these Terms and Conditions of Sale and/or any quotation or invoice issued from Wonder Sign to Customer.
17. EXPORTS:
To the extent applicable, the products and all shipments are subject to compliance with the U.S. Export Administration Act, as amended, the regulations thereunder and all other U.S. laws and regulations concerning exports and reexports. Customer agrees to comply with all such laws and regulations.
18. ASSIGNMENT:
These Terms and Conditions of Sale and/or any quotation or invoice issued from Wonder Sign to Customer is binding upon and inures to the benefit of Customer and Wonder Sign and their respective successors and assigns. Customer may not assign these Terms and Conditions of Sale and/or any quotation or invoice issued from Wonder Sign to Customer, or any part thereof, without Wonder Sign's prior written consent.
19. CONFIDENTIALITY:
Each party anticipates that it may be necessary to provide access to information of a confidential or proprietary nature of such party, including its affiliates or of a third party, (hereinafter referred to as "Proprietary Information") to the other party in the performance of this Agreement. "Proprietary Information" means any information or data in oral and/or in written form which the receiving party knows or has reason to know is proprietary information and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement. Proprietary Information will not include information which: (a) becomes known to the public from a source other than the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by personnel of the receiving party who have not had access to such information. To the extent practicable, Proprietary Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Proprietary Information will not be evidence that such information is not proprietary or protectable. Each party agrees to hold such Proprietary Information confidential in the same manner as it holds its own Proprietary Information of like kind. Disclosures of Proprietary Information will be restricted to those individuals who are participating in the performance of this Agreement and need to know such Proprietary Information for purposes of this Agreement. Upon the request of a party, the other party will either return or certify the destruction of the Proprietary Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose the Proprietary Information, the receiving party will give the disclosing party prompt notice of such request so that disclosing party may seek an appropriate protective order or similar protective measure.
20. SECURITY INTEREST:
As partial consideration for Wonder Sign's sale of products to Customer, Customer hereby grants to Wonder Sign and Wonder Sign hereby retains a security interest in all products 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 products and materials thereof or any other products bearing any trademark of Wonder Sign, returns or repossessions and the proceeds of all of the foregoing, to secure all of Customer's obligations to Wonder Sign under these Terms and Conditions of Sale and all other obligations of Customer to Wonder Sign. Customer agrees to execute such financing statements, continuation statements and other documents and to take such actions as may be required by Wonder Sign to evidence or perfect the security interest granted herein and the interest of Wonder Sign as the owner of the products.
21. ARBITRATION & MEDIATION:
In the event of any disagreement or dispute between Wonder Sign and Customer relating to these Terms and Conditions of Sale, the parties shall submit such disagreement or dispute initially to mediation. If they are unable to resolve the disagreement or dispute by mediation, the matter will be submitted to binding arbitration pursuant to the rules of the American Arbitration Association or, if the parties agree, another or similar association or service mutually agreeable to the parties. The mediation and arbitration shall be carried out in Green Bay, Wisconsin and any judgment upon the award rendered pursuant to such proceeding may be entered in any court having jurisdiction thereof.