Last Updated: November 1, 2023
The following terms and conditions of sale apply to all sales by any of R & B Wagner, Inc., Wagner Architectural and/or any of their respective affiliates (“Seller”) to you and/or your affiliates (“Buyer” or “you”). The following provisions apply to sales of (i) finished goods, components and other products (“Products”) and/or (ii) engineering, design, installation or other services (“Services”). The Seller will not accept modifications and/or amendments to these terms and conditions without prior written approval from the Seller and before any and all manufacturing of Products or provision of Services is undertaken.
1. ACCEPTANCE. CONTRACT FORMATION BETWEEN YOU AND SELLER IS HEREBY EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS OF SALE SET FORTH HEREIN AND, IN ANY QUOTE, PURCHASE ORDER, STATEMENT OF WORK, INVOICE OR OTHER DOCUMENTS PROVIDED BY SELLER IN CONNECTION WITH THE SALE OF ITS PRODUCTS AND/OR PROVISION OF ITS SERVICES (ALL OF SUCH TERMS AND CONDITIONS BEING REFERRED TO HEREIN COLLECTIVELY AS THESE “TERMS”). ORDERING ANY PRODUCTS OR SERVICES FROM SELLER SHALL INDICATE YOUR UNDERSTANDING AND ACKNOWLEDGMENT OF SUCH CONDITION AND ASSENT TO BE BOUND BY THESE TERMS. ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS PROPOSED BY YOU AT ANY TIME, WHETHER PROPOSED BEFORE, ON OR AFTER THE DATE OF SALE, ORALLY OR IN WRITING, ARE HEREBY REJECTED IN THEIR ENTIRETY BY SELLER AND SHALL BE DEEMED BY SELLER A MATERIAL ALTERATION OF THESE TERMS. NO COURSE OF PERFORMANCE, COURSE OF DEALING OR THE USAGE OF TRADE SHALL APPLY TO ANY SALE OF PRODUCTS OR SERVICES.
2. REQUEST FOR PROPOSAL (RFP Process)
Wagner appreciates the opportunity to provide this competitive bid to your RFP. For clarity, Wagner’s bid is submitted on the following assumptions, notwithstanding any contrary or conflicting term in RFP documentation:
5. ENGINEERING APPROVAL. Approval drawings are generated by Seller based on information provided to Seller by Buyer or agents acting on behalf of Buyer. Approval drawings are interpretations of field conditions as depicted within Buyer communications or as directed by Buyer to Seller. These drawings are accurate to the extent that Buyer-provided communications accurately depict ultimate field conditions. VERIFYING FIELD CONDITIONS TO SELLER-GENERATED APPROVAL DRAWINGS IS THE RESPONSIBILITY OF THE BUYER. Seller shall not be liable for rework, damages, back-charges or schedule delays due to incorrect approval drawings. All engineering costs are non-refundable.
6. ICC SYSTEMS. Products under ICC ESR-3950 must be purchased as a complete system and delivered to the job site in original Seller packaging bearing the approved ICC Logo. Report number ESR-3950 only certifies Seller manufactured and distributed products.
7. MINIMUM ORDER OF PRODUCTS. Minimum order for FedEx shipments: $75.00. FedEx shipments entered online using the web portal www.shop.wagnercompanies.com are excluded from minimum order charges. Minimum order for truck shipments: $150.00. All minimums are exclusive of freight, packing, handling and any relevant state taxes where applicable.
8. PRODUCT DELIVERY.
9. SERVICES PROVIDED. Seller agrees to perform the Services in accordance in all material respects with the specifications for the Services included in the statement of work (and, if not included therein, then in accordance with applicable industry standards for such work). Unless otherwise expressly noted in the statement of work, performance dates specified in the statement of work are estimates only. You shall be responsible for taking any and all measures necessary to provide Seller with a safe and suitable work environment, including, without limitation, any safety precautions reasonably requested by Seller prior to the provision of the Services. You further acknowledge that certain aspects of the Services may require cooperation and coordination with Buyer personnel and/or for the Buyer to supply certain necessary or useful items to completion of the Services. As such, you agree to make available, as reasonably necessary, the resources and personnel required or useful to complete the Services, as Seller may in good faith direct from time to time. Seller shall not be liable for any delay in the completion of the Services resulting from your failure to provide a suitable work environment or inability to provide the resources and/or personnel necessary to complete the Services in a timely manner. The relationship of Seller to Buyer is solely that of independent contractor, and in no event shall Seller and Buyer, or their respective affiliates, be deemed partners, joint venturers, employer/employee, or principal/agent.
Payment for Services shall be made in accordance with the schedule for payment(s) included in the statement of work. If no schedule is included in the statement of work, payment must be made in full within thirty (30) days of the invoice date unless otherwise agreed in writing by Seller. Payments not made when due shall be subject to a late charge accruing from the date due until paid in full at the fixed rate of 1.5% per month (but not exceeding the maximum charge permitted by applicable law.) You shall pay Seller all costs and expenses, including, without limitation, attorneys’ fees, incurred by Seller in connection with its collection of your overdue account.
11. LIMITED WARRANTIES AND REMEDIES – PRODUCTS AND SERVICES.
1) Nonconforming Products or Services. If any Products do not conform to the applicable limited warranty under subsection 2 or 3, below (the “Limited Product Warranty”), or if any Services do not conform in all material respects to the specifications for the Services included in the statement of work (and, if not included therein, then with applicable industry standards for such work) (the “Limited Services Warranty”), and if in either event you report such nonconformity in writing to Seller within the warranty claim period allowed under subsection 4, below, Seller shall, at its option and as applicable, (a) repair such nonconforming Products (by Seller or its authorized contractor) or reperform such nonconforming Services, (b) exchange such nonconforming Products, or (c) refund to or credit you for the invoice price of such Products or Services. Such repair/reperformance, replacement, refund or credit shall be Seller’s sole obligation with respect to any warranty or other claim relating to any Product or Services sold to you. You shall inspect all Products promptly upon receipt and all Services promptly upon substantial completion and shall give written notice to Seller of your rejection of Products or Services for failure to conform to the applicable Limited Product Warranty or Limited Services Warranty. If you claim that any Product does not conform to the applicable Limited Product Warranty, you shall return all nonconforming Products to Seller simultaneously with your delivery of the written notice applicable to any such claim unless otherwise agreed in writing by Seller. You acknowledge and agree that your failure to return all nonconforming Products to Seller shall render the applicable Limited Product Warranty null and void.
2) Limited Product Warranty – Non-Electrical Products. Seller warrants to you, and to you alone, that for a period of twelve (12) months from the date of shipment from Seller’s applicable manufacturing facility all Products sold by Seller to you (other than Products subject to the Limited Product Warranty in subsection (3), below)) shall, at the time of shipment from Seller’s applicable manufacturing facility, conform in all material respects with Seller’s standard specifications for such Products in effect at the time of order.
3) Limited Product Warranty – Electrical Components. Seller warrants to you, and to you alone, that Products which Seller categorizes as electrical components will be free of defects in material and/or workmanship for a period of five (5) consecutive years from immediately following the date of Product shipment and acceptance of the Product by the project installer (“Installer”).
4) Warranty Claims Period and Procedures. Claims for nonconformity to the applicable Limited Product Warranty must be reported to Seller within 10 days of Product delivery (and, in any event, not later than thirty (30) days after the end of the warranty period specified in subsection 2 or 3, above, as applicable. Claims for nonconformity to the Services warranty provided in subsection 1, above, must be reported to seller within 10 days of the date the Services have been substantially completed. Claims must be made known to Seller, in writing by Certified Mail, Return Receipt Requested, to the attention of Quality Manager at Seller’s office located at 10600 West Brown Deer Road, Milwaukee, Wisconsin 53224.
5) Exclusions. Excluded from coverage under all above warranties are any nonconformities or defects resulting, in whole or in part, from any of the following:
6) No Other Warranties or Remedies. THE LIMITED WARRANTIES AND REMEDIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES WHATSOEVER, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USAGE OF TRADE OR NONINFRINGEMENT, EACH OF WHICH SELLER EXPRESSLY DISCLAIMS.
12. PRODUCT RETURN POLICY.
13. INDEMNIFICATION. To the maximum extent allowed by law, you shall indemnify and hold harmless Seller and each of its directors, officers, employees, shareholders, affiliates, agents, representatives, successors and assigns (each, an “Indemnified Party”), and at Seller’s written demand defend each Indemnified Party, from and against all claims, actions, demands, legal proceedings, judgments, settlements, sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including, without limitation, attorneys ’ fees) that any Indemnified Party may incur or be legally obligated to pay as a result of (i) your negligence, use, ownership, maintenance, transfer, transportation or disposal of any Products and/or Services, as applicable; (ii) any infringement or alleged infringement of the intellectual property rights of third parties arising from your plans, specifications or adjustment of Products and/or Services ordered by you; (iii) your violation or alleged violation of any federal, state, county or local laws, regulations or ordinances; or (iv) your breach of any of these Terms. Seller’s remedies under these Terms are cumulative and in addition to any other remedies available to Seller at law, in equity, by contract or otherwise. No purported limitation on Seller’s remedies contained in any purchase order or other agreement, instrument or document provided by you shall operate to reduce your indemnification obligations hereunder.
14. LIMITATION OF SELLER’S LIABILITY; DISCLAIMER OF NON-DIRECT DAMAGES. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED THESE TERMS AND/OR THE ORDER TO WHICH THEY RELATE, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO SELLER PURSUANT TO SUCH ORDER. IN NO EVENT, SHALL SELLER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR DAMAGES FOR LOST PROFITS OR DAMAGES TO BUSINESS REPUTATION OR GOODWILL ARISING OUT OF OR RELATED TO THESE TERMS OR PERFORMANCE OR BREACH HEREOF (INCLUDING, WITHOUT LIMITATION, PRODUCT RECALLS AND BREACH OF WARRANTY), EVEN IF SELLER IS ADVISED IN ADVANCE OF THE SAME.
15. SET-OFF. Seller may, at any time and from time to time, set-off any amount owing from Seller (or any of its affiliates) to Buyer (or any of its affiliates) against any amount owing by Buyer (or any of such affiliates) to Seller (or any of such affiliates).
16. CONFIDENTIALITY. All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”, is confidential, solely for the use of performing obligations under these Terms and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) general available to the public other than as a result of Buyer’s action or omission; (b) known to Buyer prior to the time of disclosure; or (c) rightfully obtained by Buyer on a nonconfidential basis from a third party.
17. COMPLIANCE WITH LAWS; IMPORT/EXPORT. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms and the order to which they relate. Buyer shall comply with all export and import laws of all countries involved in the sale of Products from Seller to Buyer. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Diversion of Products contrary to U.S. law is prohibited.
18. INTELLECTUAL PROPERTY RIGHTS. All intellectual property rights conceived, developed, embodied in, derived from or otherwise connect to Products and/or Services are, and as between Seller and its affiliates, on the one hand, and Buyer and its affiliates, on the other hand, shall at all times remain, the sole and exclusive property, title and interest of Seller.
19. NON-WAIVER. Seller’s failure to enforce any provisions of these Terms shall not operate as a complete or partial waiver of such provisions or rights and the same shall remain in full force and effect.
20. FORCE MAJEURE. Seller shall not be liable to Buyer or any other person for any delay in delivery of Products or performance of the Services, directly or indirectly caused by fire; explosion; accident; flood; labor difficulties or shortage; war; act of terrorism; act or regulation of any governmental body (including, without limitation, quarantines or mandated closures); act of God; pandemic or epidemic; shortages, delays or failure of suppliers; or any other circumstance or cause beyond the control of Seller.
21. ASSIGNMENT. You may not assign any of your rights or obligations under these Terms without the prior written consent of Seller and any attempted assignment without such consent shall be null and void.
22. SEVERABILITY. If any provision of these Terms shall under any circumstances be deemed invalid or inoperative, these Terms shall be construed with such invalid or inoperative provision deleted, and the rights and obligations of the parties shall be construed and enforced accordingly.
23. GOVERNING LAW; VENUE. These Terms and all transactions between Seller and you shall be governed by and construed in accordance with the internal laws of the State of Wisconsin, without regard to any conflicts of law principles. Any action or proceeding involving any dispute, claim or controversy relating to or arising from these Terms or such transactions, which cannot be resolved amicably, shall be commenced exclusively in the federal or state courts located within Milwaukee County, Wisconsin, and you consent to the exclusive jurisdiction of such courts and waive any objection to such jurisdiction.
24. MODIFICATION. These Terms shall not be amended, supplemented or otherwise modified except by a written agreement executed by duly authorized representatives of you and Seller.
25. BINDING EFFECT. These Terms shall be binding on, and inure to the benefit of, each of you and Seller and our respective successors and permitted assigns.
26. CURRENCY STATEMENT. All transactions are conducted in US Dollars.
27. GOVERNING LANGUAGE. The English language version of these Terms shall govern and control.