TERMS AND CONDITIONS
WÖSSNER N.A. INC. TERMS AND CONDITIONS
Section 1. Scope and Applicability: These Terms and Conditions (the “Terms”) govern the sale of any products sold by or on behalf of Wössner N.A. Inc., an Ohio corporation, its parents, subsidiaries, and affiliates (collectively, “Wössner”), to the buyer and/or consumer end user of such products (collectively, “Buyer”). When Buyer is a reseller, distributor, or business purchasing Wössner’s products for resale, commercial use, or business purposes, Buyer shall be referred to as Commercial Buyer. When Buyer is an individual purchasing products for personal use and not for resale or business purposes, Buyer shall be referred to as Consumer. Throughout the Terms, provisions that apply to both Commercial Buyer and Consumer refer to Buyer. Provisions that apply only to Commercial Buyer or only to Consumer are specifically designated as such. Where a provision of the Terms distinguishes between Commercial Buyer and Consumer, the specific designation controls. If a provision does not specifically mention Buyer, Commercial Buyer, or Consumer, it shall be interpreted to apply to Buyer. These Terms, along with any Wössner quote, order acknowledgement, invoice, product specifications, and packing slip, collectively form the entire agreement between Wössner and Buyer for the purchase and sale of Wössner’s products (the “Contract”). In the event of conflict between a provision of these Terms and any other component of the Contract, these Terms shall prevail.
Section 2. Order Placement and Processing
2.1 Methods: All orders must be submitted via, email, phone call, and/or through Wössner’s website.
2.2 Order Acceptance: For Commercial Buyer, no order shall be deemed accepted by Wössner until such time as the sales department approves the order, and the order is processed and shipped from Wössner’s Distribution Center. For Consumer, Wössner’s acceptance of an order occurs when Wössner sends an order confirmation email or when the order ships, whichever occurs first. Consumer orders paid for by credit card, debit card, or other immediate payment methods do not require sales department approval.
2.3 Material Substitution: Wössner may, at any time, change or substitute materials in its products with materials of comparable size, quality, and fit for purpose.
2.4 Buyer-Requested Changes: Buyer may request changes to Buyer’s order by sending written notice to Wössner. Acceptance of any such change must be in writing by Wössner. If such acceptance results in an increase or decrease of the cost of, or time required for, performance of an order, an equitable adjustment will be made by Wössner and evidenced by a written amendment to the order.
2.5 Expedited Shipping: All orders requesting expedited shipping must be confirmed by 1:00 PM Eastern Standard time to be processed and shipped the same day. All expedited shipping orders confirmed after 1:00 PM Eastern Standard Time shall be shipped the following business day.
Section 3. Delivery
3.1 Dates of Delivery. Wössner does not guarantee delivery on any specific date, and Wössner shall not be liable for any damages caused by or arising from a delay in an estimated delivery date.
3.2 Shipping Terms. Products are delivered FOB shipping point, using Wössner’s standard methods for packaging and shipping. Unless otherwise agreed to in writing before order acceptance, Wössner shall determine the shipping method and delivery route. Delivery or tender of all or part of the goods on or before the date specified as the complete delivery date shall constitute timely delivery. Accordingly, any delivery is valid unless Wössner receives written notice of cancelation before delivery occurs.
3.3 Risk of Loss. Acceptance of a shipment by a common carrier constitutes delivery to Buyer, at which time all risk of loss transfers to Buyer.
3.4 Installments. Wössner may make delivery in installments. Any installments shall be separately invoiced and paid for when due, as set forth on the invoice, without regard to subsequent deliveries.
3.5 Shortages and Errors. Commercial Buyer must make a claim in writing to Wössner for shortages or other errors in delivery no later than five (5) days after receipt of the products. Failure to give Wössner notice within such period constitutes an unqualified acceptance of the products and waiver of any claim Commercial Buyer may have regarding the delivery. Consumer must make a claim in writing to Wössner for shortages or other errors in delivery no later than thirty (30) days after receipt of the products. However, Consumer’s failure to provide notice within such period does not waive Consumer’s rights under applicable consumer protection laws for defective products or other non-conforming goods.
Section 4. Order Cancelation
4.1 Cancelation Restrictions: Commercial Buyer may not cancel an order after it is accepted by Wössner, unless Wössner agrees to such cancelation in writing. Consumer may cancel an order at any time before the order ships by contacting Wössner’s customer service, and if payment has already been processed for such order, Wössner shall issue a full refund to Consumer no later than ten (10) business days after the date of cancelation.
4.2 Cancelation Costs: If Wössner agrees to Commercial Buyer’s cancelation of an order, Commercial Buyer shall pay for all costs and expenses directly or indirectly caused by or arising from Commercial Buyer’s cancelation. Additionally, Commercial Buyer’s custom orders that have entered the engineering phase are subject to a 50% cancelation fee based on the total order price. Consumer’s standard (non-custom) orders that are canceled before shipment are not subject to any cancelation fees. However, if Consumer cancels a custom order that has entered the engineering or production phase, Consumer may be subject to a cancelation fee of up to 50% of the total order price.
Section 5. Default
5.1 Events of Default
5.1.1 Commercial Buyer: An Event of Default by Commercial Buyer occurs when Commercial Buyer: (a) fails to pay Wössner for any amount owed to Wössner under the Contract when due; (b) breaches any applicable provision of the Contract; (c) files a petition, answer, or consent to a petition seeking relief under Title 11 of the United States Code or any other applicable federal, state, or foreign bankruptcy law; (d) consents to proceedings or actions instituting a receiver, liquidator, assignee, trustee, custodian, or similar official of Commercial Buyer; (e) becomes insolvent; or (f) causes Wössner to reasonably believe, in good faith, that Commercial Buyer will not be able to meet its payment obligations when they become due.
5.1.2 Consumer: An Event of Default by Consumer occurs when Consumer: (a) fails to pay Wössner for any amount owed to Wössner under the Contract when due; or (b) materially breaches any applicable provision of this Contract.
5.2 Remedies Upon Default
5.2.1 Commercial Buyer: Upon an Event of Default by Commercial Buyer, in addition to exercising any other rights and remedies at law or in equity that Wössner may have, Wössner may: (a) demand full or partial payment in advance before proceeding or continuing with performance of the Contract; (b) defer delivery of the goods; (c) cancel any of Wössner’s unperformed obligations under the Contract or any other agreement to which Commercial Buyer and Wössner are parties; and/or (d) alter the payment terms for Commercial Buyer.
5.2.2 Consumer: Upon an Event of Default by Consumer, in addition to exercising any other rights and remedies at law or in equity that Wössner may have, Wössner may: (a) defer delivery of the goods or (b) cancel any of Wössner’s unperformed obligations under the Contract.
Section 6. Quotes and Prices
6.1 Quote Expiration
6.1.1 Written Quotes: Written quotes provided by Wössner to Buyer automatically expire after thirty (30) calendar days from the date such quotes are issued. Wössner may terminate written quotes earlier than thirty (30) calendar days from the date such quotes are issued by providing written notice to Buyer.
6.1.2 Verbal Quotes: Verbal quotes provided by Wössner to Buyer expire at the end of the same day such quotes were given to Buyer, unless Buyer accepts such quotes in writing.
6.2 Purchase Price: Buyer shall pay the purchase price for the products specified in the quote or invoice, whichever is applicable, and shall be subject to any applicable pricing policy of Wössner, including, but not limited to, any modifications or adjustments to the pricing policy. Prices for products are subject to change in future quotes and orders.
6.2.1 Price Increases: If Wössner increases a product’s price, Buyer shall still pay the price quoted at the time of Buyer’s order.
6.2.2 Price Decreases: If Wössner decreases a product’s price, Wössner will not compensate or credit Buyer to reflect the new lower cost of the product.
Section 7. Payment
7.1 Payment Terms: For Commercial Buyer, unless otherwise stated in the Contract, net invoice amounts are due upon receipt of the invoice. Wössner may issue invoices as it makes partial shipments. For Consumer, payment is due at the time of order placement. Consumer may pay by credit card, debit card, or other payment methods accepted by Wössner.
7.2 Currency: All payments shall be made in United States currency.
7.3 Taxes and Fees: Prices do not include taxes or other charges. Buyer shall pay any manufacturer’s tax, retailer’s occupation tax, use tax, sales tax, excise tax, inspection or testing fee, or any other tax, fee, tariff, or charge imposed on any transaction between Wössner and Buyer. In the event Wössner is required to pay any tax, fee, or charge, or any related penalties or interest, Buyer shall promptly reimburse Wössner. If Buyer is exempt from any applicable tax or fee, then Buyer shall provide Wössner, at the time the order is submitted, with an exemption certificate or other document acceptable to the authority imposing the tax, fee, or charge.
7.4 Delayed Shipments: If shipment is delayed beyond the scheduled date for the convenience of Buyer, payment shall be due in full when Wössner is prepared to make the shipment.
Section 8. Delinquent Commercial Buyer Accounts
8.1 Collection Costs: In the event Commercial Buyer’s account becomes delinquent to the extent that Wössner deems it necessary to start a legal collection process, Commercial Buyer shall be responsible and reimburse Wössner for all collection costs, court costs, administration costs, investigation costs, actual attorneys’ fees, and all other direct or indirect costs arising from or relating to the collection of past due payments on Commercial Buyer’s account.
8.2 Interest: Interest shall accrue on any amount not paid when due at the rate of 1.5% per month, or the maximum rate allowable by law, whichever is less, calculated daily and compounded monthly.
Section 9. Returns
9.1 Eligibility: Wössner, in its sole discretion, may accept or reject returns. Only products that are new, unused, have never been installed, and remain undamaged are eligible for returns. No obsolete, clearance, or customized products may be returned. Additionally, international orders are not eligible for return, refund, or exchange.
9.2 Return Authorization: All returns must have a Returned Merchandise Authorization (“RMA”) Number obtained from Wössner. Any returns without an RMA Number will be refused.
9.3 Shipping: All items returned to Wössner must be shipped freight prepaid, properly protected, and fully intact. Buyer shall be responsible for all costs and expenses associated with the return, and Wössner will not refund any shipping costs incurred by Buyer.
9.4 Restocking Fee: Products that are returned for the convenience of Buyer, or any reason beyond the control of Wössner, may be subject to a minimum service charge of up to 20% of the invoiced price for such products. Notwithstanding the foregoing, nonstandard products may be subject to a higher restocking fee calculated in Wössner’s sole discretion.
9.5 Refunds: Buyer may return eligible products for a full refund, provided that such return commences no later than thirty (30) days after purchase, and Buyer is in possession of a receipt for said purchase. All refunds will be issued in the same form as the original payment method and may take up to ten (10) business days to post. If Buyer fails to comply with any provision of Section 9.1, Wössner may, in its sole discretion, reject the return, issue a partial refund, or return the products to Buyer at Buyer’s expense.
9.6 Reseller Purchases: This policy only applies to products purchased directly through Wössner. Purchases made through any other source must be returned to the original seller only, and subject to their return policies and requirements.
Section 10. Limitation of Liability: Due to the nature of high-performance racing applications, Wössner’s products and components are sold without express warranty or an implied warranty of merchantability or fitness for a specific purpose. Wössner shall not, under any circumstances, be liable for any special, incidental, or consequential damages, including, but not limited to, damage or loss of property or equipment, loss of profits or revenue, cost of purchased or replacement goods, or claims of Buyer, which may arise and/or shall result from sale, installation, or use of these products. Buyer agrees to use Wössner’s products with due care, consistently with the product’s specifications, and to properly install the products to OEM or similar specifications. Wössner shall not be liable for any claims, action, injury, including death, or damages of any type that may occur from Buyer’s misuse, mishandling, misapplication, neglect, improper use or installation, modification, adjustment, or repair of Wössner’s products. Installation of Wössner’s products may void vehicle manufacturers’ warranty coverage and/or may cause the vehicle to be illegal or not “street legal” in some locations.
Section 11. Security Interest
11.1 Commercial Buyer: For any of Wössner’s products purchased on credit, as collateral security for the payment of such products, Commercial Buyer hereby grants to Wössner a lien on, and security interest in and to, all of the right, title, and interest of Commercial Buyer in, to, and under the products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds of the foregoing.
11.2 Consumer: For any of Wössner's products purchased on credit by Consumer, as collateral security for the payment of such products, Consumer grants to Wössner a purchase money security interest (“PMSI”) in the products purchased until payment in full is received by Wössner. This PMSI terminates upon Wössner's receipt of full payment for the products. Consumer authorizes Wössner to file any documents necessary to perfect this security interest. This security interest applies only to the specific products purchased from Wössner by Consumer.
Section 12. Indemnification
12.1 Commercial Buyer: Commercial Buyer shall indemnify, defend, and hold Wössner harmless against any and all claims, actions, losses, damages, and expenses, including, but not limited to, actual attorneys’ fees and other costs of defending any action that it may sustain or incur as a result of Commercial Buyer’s: (a) use, operation, or possession of the products; (b) alteration or modification of the products; (c) negligent or willful acts or omissions; (d) breach of the Contract; or (e) failure to comply with any applicable laws or regulations.
12.2 Consumer: Consumer shall indemnify, defend, and hold Wössner harmless against any and all losses, damages, and expenses, including, but not limited to, actual attorneys’ fees and other costs of defending any action that it may sustain or incur as a result of Consumer’s: (a) alteration or modification of Wössner’s products that causes injury or damage to themselves and/or third parties; (b) willful misconduct or negligence in the use of the products that causes injury or damage to themselves or any third parties; (c) material breach of the Contract; or (d) failure to comply with any applicable law or regulation.
Section 13. Resale and Export Restrictions: Commercial Buyer shall not directly or indirectly arrange for or participate in the export or sale of products, in whole or in part, outside of the territory agreed to by Commercial Buyer and Wössner or, if none, the country to which Wössner shipped the products (the “Territory”), without Wössner’s prior written consent. Commercial Buyer shall take all reasonable and adequate measures to prevent the export or sale of products outside of the Territory by others who purchase from Commercial Buyer who might reasonably be expected to export or sell the products outside the Territory. Commercial Buyer shall indemnify and hold Wössner harmless from any liability arising out of or relating to such prohibited export or sale.
Section 14. Intellectual Property
14.1 Ownership: All intellectual property rights in or relating to the products are owned by or licensed to Wössner, and nothing herein shall have the effect of transferring the ownership of such intellectual property rights to Buyer.
14.2 Advertising: Commercial Buyer may use Wössner’s brand names, trade names, and logos (collectively, the “Marks”) in Commercial Buyer’s advertising and marketing materials only if: (a) Commercial Buyer is a direct Wössner customer; (b) Commercial Buyer redistributes or sells Wössner’s products on a wholesale or retail basis; (c) all Marks are used in advertisements for the purpose of promoting and selling Wössner’s products; and (d) all Marks used in advertisements are unaltered.
14.3 Prohibited Uses: Any use of Wössner’s intellectual property, including, but not limited to, Marks, that is not expressly authorized in this Contract, is strictly prohibited without Wössner’s prior written consent.
Section 15. Confidentiality: All non-public, confidential, or proprietary information of Wössner, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, pricing, discounts, rebates, disclosed by Wössner to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form of media, and whether or not marked, designated, or otherwise identified as confidential in connection with this Contract, is confidential, solely for the use of performing this Contract, and may not be disclosed, used, or copied unless authorized in advance by Wössner in writing, or unless expressly permitted in the Contract. Buyer shall not reverse engineer Wössner’s products or product components, nor shall Buyer permit any third party to do the same. Upon Wössner’s request, Buyer shall promptly return all documents and other materials received from Wössner. Wössner shall be entitled to injunctive relief for any violation of this Section. Notwithstanding the foregoing, this Section does not apply to information that is in the public domain, known to Buyer at the time of disclosure, or rightfully obtained by Buyer on a non-confidential basis from a third party not under any obligation of confidentiality with Wössner.
Section 16. Miscellaneous
16.1 Entire Agreement: The Contract supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, between the parties with respect to the purchase of Wössner’s products.
16.2 No Waiver: Wössner’s failure to object to provisions contained in any purchase order or other communication from Buyer shall not be construed as a waiver of these Terms nor an acceptance of any such provisions.
16.3 Binding Effect: The Contract shall be binding upon the respective permitted assignees, successors, executors, administrators, and heirs of the parties.
16.4 Severability: If any provision of the Contract shall be found to be unlawful or unenforceable, that provision shall be deleted from the Contract and the remaining provisions shall, insofar as possible, be given full force and effect.
16.5 Force Majeure: Wössner shall not be liable for damages under the Contract for a delay or failure in its performance under the Contract as a result of causes beyond its reasonable control. Such causes include any law, order, regulation, direction, or request of any government having or claiming to have jurisdiction over Wössner, its subcontractors, and/or its suppliers; failure or delay of transportation; insurrection, riots, national emergencies, war, acts of public enemies, strikes, or inability to obtain necessary labor, manufacturing facilities, materials, or components from Wössner’s usual sources; fires, floods, or other catastrophes; acts of God, acts or omissions of Buyer, or any causes beyond the reasonable control of Wössner and/or of its suppliers. Upon prompt written notice to Buyer of any such causes of delay or failure in its performance of any obligation under the Contract, Wössner’s time of performance shall be extended to the extent and for the period that its performance of said obligations is prevented by such cause.
16.6 Governing Law: The Contract and all claims arising from the relationship between Wössner and Buyer will be interpreted, governed, and enforced exclusively by the laws of the State of Ohio, without regard to any conflict of laws principles and to the exclusion of the provisions of the United Nations Convention on the International Sale of Goods.
16.7 Jurisdiction: The parties agree that any claims or controversies related to or arising from the Contract, or otherwise between Wössner and Buyer, shall be subject to the exclusive jurisdiction of the federal and state courts in the State of Ohio having jurisdiction over Lake County, Ohio, and each hereby consents to the exclusive jurisdiction of such courts.
16.8 Arbitration: Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules before a single arbitrator located in Cleveland, Ohio. The Party bringing or initiating such arbitration shall be responsible for the payment of all costs of the arbitration, subject to later award by the arbitrator of costs between the Parties. Judgment on the award rendered by the arbitrator may be entered in any court described in the Jurisdiction section hereinabove.
16.9 Class Action Waiver: Any claim must be arbitrated in the parties’ individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiffs, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. The arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action, nor make an award to any entity or person not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties acknowledge that they would have had a right to litigate through a court, to have a judge or jury decide their case, and to be party to a class or representative action. However, the parties agree to have any claims decided individually and through arbitration.