1. Controlling Provisions
Generally: This document, including the provisions in Seller's quotation or order acknowledgment or Seller's similar form(the "Contract"), constitutes an offer by J.W. WINCO, INC.and/or J.W. WINCO CANADA, INC. and/or any of their affiliates ("Seller") to provide the products and/or services described herein (the "Products") to the buyer to which this offer is addressed ("Buyer"). If this document is deemed an acceptance of a prior offer by Buyer, such acceptance is limited to the express terms contained in this Contract. Buyer's acceptance of this offer is limited to the terms, covenants and conditions contained in this offer. Seller hereby objects to and rejects any additional, different or varying terms proposed by Buyer, unless an authorized officer of Seller expressly assents to such terms in a signed writing. Such proposal of additional, different or varying terms by Buyer shall not operate as a rejection of Seller's offer, and Seller's offer shall be deemed accepted without such additional, different or varying terms. No course of dealing, usage of trade or course of performance will be relevant to supplement or explain any terms in this Contract. THIS CONTRACT CONSTITUTES THE FINAL EXPRESSION OF THE AGREEMENT BETWEEN SELLER AND BUYER REGARDING THE PRODUCTS AND IS A COMPLETE AND EXCLUSIVE STATEMENT OF THAT AGREEMENT. ANY TERMS, CONDITIONS, NEGOTIATIONS OR UNDERSTANDINGS WHICH ARE NOT CONTAINED IN THIS CONTRACT SHALL HAVE NO FORCE OR EFFECTUNLESS MADE IN WRITING AND SIGNED BY BUYER AND AN AUTHORIZED OFFICER OF SELLER. Seller's sales representatives are without authority to change, modify or alter this Contract.
Acceptance: Buyer shall be deemed to have made an unqualified acceptance of this offer and the Contract on the earliest of the following to occur: (a) Seller's receipt of a copy of this Contract signed by Buyer; (b) Buyer's payment of any amounts due under this Contract; (c) Buyer's delivery to Seller of any material to be furnished by Buyer; (d) Buyer's acceptance of Seller's delivery of the Products; (e) Buyer's failure to notify Seller to the contrary within ten days of receipt of this Contract; (f) Buyer's order after receipt of this Contract; or (g) any other event constituting acceptance under applicable law.
Quotations: Written quotations are void unless accepted within 60 days from date of issue and are subject to earlier change upon notice. Other Seller publications are maintained as sources of general information and are not quotations or offers to sell.
Governing Law: This Contract and any disputes hereunder shall be governed by and construed according to the internal laws of the State of Wisconsin. Neither this Contract nor sales hereunder shall be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Upon expiration or termination of this Contract for any reason, Seller shall have all of the rights and remedies provided by law, including, without limitation, the rights of a secured party under Chapter 409, Wisconsin Statutes or any successor statute or similar statute in the jurisdiction where Buyer is located or stores the Products.
Dispute Resolution: Any cause of action, claim, suit or demand by Buyer allegedly arising from or related to this Contract or the matters contemplated herein shall be brought in a court within the Eastern District of Wisconsin, U.S.A. Buyer irrevocably consents to the exclusive jurisdiction and venue of said court and agrees that process may be served upon it in any manner authorized by the laws of the State of Wisconsin for such person and waives and covenants not to assert or plead any objection which it might otherwise have to such jurisdiction, venue or process.
Severability; Waiver: The invalidity of any provision or clause of this Contract shall not affect the validity of any other provision or clause hereof. Seller reserves the right to correct clerical or similar errors relating to price or any other term shown in this Contract. The failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of this Contract shall not be construed as a waiver or relinquishment of any right granted hereunder or the future performance of such term, covenant or condition.
Assignment: Buyer may not assign this Contract without Seller's prior written consent. Seller may assign this Contract in whole or in part, including without limitation to its affiliates, suppliers or subcontractors. Subject to the foregoing, this Contract shall inure to the benefit of, and be binding upon, the parties' successors and assigns.
Independent Contractor: Buyer is an independent contractor and neither Buyer nor any of its employees or agents shall be considered an employee or agent of Seller, its affiliates or suppliers. Neither Buyer nor any of its employees or agents is authorized to incur any obligations or make any promises or representations on behalf of Seller, its affiliates or suppliers.
Survival: The warranty limitations and damage limitations in sections 6 and 7, and any other provision the performance or effectiveness of which naturally survives, shall survive expiration or termination of the Contract for any reason.
2. Orders and Delivery
Orders: Buyer shall ensure that its orders are received by Seller not less than 20 working days before the requested delivery dates. Buyer's orders or mutually agreed change orders shall be subject to all provisions of this Contract, whether or not the order or change order so states. Specifications are subject to change by Seller without notice to Buyer. Buyer is responsible for all brokerage fees, taxes and duties. Items temporarily out of stock may be placed on back order. The balance of Buyer's order ordinarily will be shipped within 24 hours from Seller's receipt of such backordered items.
International Order Terms: International orders are defined as requiring both a "bill to" and "ship to" address outside the United States, excluding Canada, Mexico and Puerto Rico. Shipments of all international orders will be routed pursuant to Buyer's request and at Buyer's expense. Orders under $350 U.S. will include a $25 U.S. international handling fee. Prices are quoted and must be paid in U.S. Dollars, EX WORKS Seller's facility in New Berlin, Wisconsin (the "Facility") and risk of loss passes to Buyer upon shipment from the Facility. Shipping and handling charges are prepaid and added to commercial invoice. Alternatively, orders may be shipped collect with Buyer's preferred collect account number and Buyer's carrier. For purposes of this Contract, "EX WORKS" shall be construed in accordance with INCOTERMS 2010 of the International Chamber of Commerce, as amended.
Domestic Order Terms: Seller will charge Buyer $10.50 for each domestic small parcel ground shipment unless Buyer provided its collect account number and carrier name on the order. All small parcel shipments under 100 pounds that are not international orders, as defined above, and not LTL shipments, will be priced and delivered FOB the Facility and the risk of loss to the Products (including damage or destruction thereto) passes to Buyer upon shipment from the Facility. Services for small parcel shipments requiring a higher level of service than what is standard to Buyer's state, for example next day air, within the United States will be billed collect or at actual cost, plus insurance on merchandise over $100 in value in lieu of the $10.50 shipping charge. Each partial small parcel shipment shall be subject to a separate $10.50 shipping charge. Normal LTL shipments will be sent by a commercial freight carrier within three business days of shipment date. All LTL shipments will be billed collect or prepaid & add. LTL shipments are priced and delivered FOB the Facility and the risk of loss to the Products (including damage or destruction thereto) passes to Buyer upon shipment from the Facility. Shipping/freight terms are subject to change by Seller without notice. Acceptance by Buyer of the Products when received waives any claim for loss or damage resulting from a delay, regardless of the cause of the delay. If Buyer delays or suspends the shipment, Buyer will pay the invoice price for the Products as per the payment terms, together with shipping and storage charges in effect. Seller will not be held responsible for Products lost or damaged while under the care of carriers. Same day delivery is available, upon request, depending on the time of the day and the destination. There is a $35 service charge for same day shipment, in addition to the regular shipping charge. Buyers wanting to use their collect number for carrier's shipping charges are required to provide the collect number in writing on a purchase order. If Buyer provides an incorrect number, Buyer accepts liability for reimbursement to Seller for carrier's correction fee and associated shipping charges. In order to prevent any possible fraudulent claims and losses due to misuse, Buyers' carrier collect numbers will not be stored by Seller, and therefore will need to be provided in writing by Buyer on each occasion of use. Buyer shall accept overrun and/or underruns for special order items of non–stock or modified Products not exceeding 10% of quantity ordered, to be paid for or allowed pro rata.
Delivery Dates: All delivery dates are approximate. Delivery dates given by Seller are based on prompt receipt of all necessary information regarding the order. Seller will use reasonable efforts to meet such delivery dates, but does not guarantee to meet such dates. Failure by Seller to meet any delivery date does not constitute a cause for cancellation and/or for damages of any kind. Time for delivery shall not be of the essence.
Delivery Delays: Any delay in delivery due to causes beyond Seller's reasonable control, or 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 Buyer or caused by Buyer's (a) failure to supply adequate instructions or materials; (b) failure to arrange for pickup; (c) failure to supply or approve necessary data or actions in a timely manner; (d) requested changes; or (e) failure to provide documents required for Seller to effect delivery, Seller will store all Products at Buyer's risk and expense. Buyer shall pay all storage costs and expenses upon Seller's demand.
Claims: Claims for shortages or other errors must be made in writing to Seller within ten days after Seller's delivery. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer.
3. Prices; Taxes
Prices: Unless prices are stated in Seller's quotation or order acknowledgment or Seller's similar form or otherwise agreed by an authorized officer of Seller in a signed writing, prices shall be the higher of Seller's most recent quote to Buyer, prevailing market price, Seller's list price, or the last price charged by Seller to Buyer for the Products. Unless otherwise stated in Seller's quotation or acknowledgment or Seller's similar form, prices are stated and payable in U.S. Dollars, F.O.B. the Facility. All prices are subject to change without notice. Prices for scheduled deliveries will be based upon the quantity purchased for each delivery, unless Seller has agreed in writing to a blanket order price.
Taxes: Buyer shall pay or reimburse Seller on demand for all taxes, fees and costs including, but not limited to any manufacturer's tax, retailer's occupation tax, use tax, sales tax, excise tax, value added tax, duty, customs agent or broker fees, inspection or testing fee, freight costs, insurance, consular fees or any other tax, fee or charge of any nature whatsoever, including interest, imposed on, in connection with or measured by any transaction between Seller and the Buyer, in addition to the prices quoted or invoiced.
Generally: Unless otherwise stated in Seller's quotation or order acknowledgment or Seller's similar form or otherwise agreed by an authorized officer of Seller in a signed writing, payment terms are as follows. Visa, MasterCard and American Express (AMEX USA customers only) accepted. For businesses with approved credit ratings—1%/10 net 30 days. Click HERE to download the J.W. Winco, Inc. standard credit application or click HERE for the online application. All other U.S. businesses–C.O.D. until Seller is satisfied that proper credit has been established. A $20 fee will be charged for checks returned unpaid for insufficient or uncollected funds. Individuals are welcome to order from Seller however, payment must be made by Visa, MasterCard, American Express (AMEX USA customers only) or C.O.D. Foreign Buyers may pay with Visa, MasterCard, wire transfer of funds, U.S. Cashier's Check or Letter of Credit. Any bank fees are the sole responsibility of Buyer.
Seller's Rights: Notwithstanding the foregoing, terms of payment on all orders are subject to the approval of Seller's credit department. If Buyer does not pay Seller any amount due under this Contract or any other agreement when such amount is due or if Buyer defaults in the performance of this Contract, Seller may, without liability to Buyer and without prejudice to Seller's other lawful remedies (a) terminate Seller's obligations under this Contract; (b) declare immediately due and payable all Buyer's obligations to Seller; (c) change credit terms with respect to any further work or deliveries; (d) suspend or discontinue any further work or deliveries; and/or (e) repossess the Products. Buyer agrees to reimburse Seller for all costs and fees including, but not limited to attorneys' fees and repossession fees, incurred by Seller in collecting any sums owed by Buyer to Seller. Buyer agrees to pay a late payment charge in an amount equal to the lesser of 1–1/2% per month or the maximum amount allowable by law on all amounts not paid in full when due, payable on Seller's demand. Buyer shall not set off amounts due to Seller against claims against Seller.
Security Interest: In partial consideration for Seller's sale of Products to Buyer, Buyer hereby grants to Seller and Seller hereby retains a security interest in all Products sold to Buyer and documents relating to such Products now or hereafter in the possession of or under the control of Buyer, title to which might at any time be determined to have passed to Buyer, including, without limitation, all inventories of the Products or any other product bearing any trademark or trade name of Seller (or its affiliates or suppliers), and all returns or repossessions and the proceeds (including insurance proceeds and proceeds from products in which the Products were an input), of all of the foregoing, together with the additions and accessions thereof, to secure all of Buyer's obligations to Seller under this Contract and all other obligations of Buyer to Seller. Buyer agrees to execute such financing statements, continuation statements and other documents evidencing the security interest in the Products, and to take such actions as may be required by Seller to evidence or perfect the security interest granted herein and the interest of Seller. With respect to such statements and documents, Seller is authorized in Buyer's name or otherwise to take such actions as permitted under this Contract or applicable law, including, without limitation, signing Buyer's name, and Buyer hereby appoints Seller as its attorney–in–fact for such purpose.
5. Cancellations, Changes and Returns
Cancellations: All standard stocked Products may be cancelled at no charge before delivery by Seller, provided the total order value is less than $5,000. All other undelivered Products may be cancelled by Buyer only upon written approval of an authorized representative of Seller and, to the extent necessary, the approval of Seller's supplier. In the event of any cancellation by Buyer of a non–stocked Product, Buyer shall pay to Seller a cancellation fee of 25% and all cancellation charges imposed by Seller's suppliers. Special order items of non–stock or modified Products cannot be cancelled.
Changes: Buyer may not change its order or any part thereof without the prior, written consent of an authorized representative of Seller and, to the extent necessary, the approval of Seller's supplier. Seller reserves the right to change the price, terms of payment and delivery dates for any Products affected by any changes to which it consents.
Returns: Seller's goal is to achieve total Buyer satisfaction. For orders less than $5,000, as long as standard stocked Products are in good condition, Buyer can return the Products, within 60 days, freight prepaid, and Seller will issue full credit for the Product not including shipping/freight charges, packaging costs, taxes, insurance and other incidental costs. After 60 days all Products will be charged a minimum re–stocking fee of 25%. All returns must be approved by Seller's Sales Associate and have a return authorization number issued before the return of said Products. All returns must be returned via UPS–Ground with the return shipping charges prepaid and with reference to Seller's return authorization number and invoice number. On the return of Products from a foreign country, including Mexico and Canada, Seller will not be responsible for any brokerage fees and duty fees regardless of reason for return. Modified and special order Products cannot be cancelled or returned. The risk of loss to the Products (including damage or destruction thereto) remains with Buyer when returning catalog Products until Seller receives the Products. Returned Products must be of current manufacture, unused, in resalable condition, and securely packed to reach Seller without damage. Any cost incurred by Seller to put Products in new condition will be charged to Buyer.
6. Limited Warranty
Limited Warranty: Seller warrants only to purchasers for resale or for use in business or original equipment manufacture (for purposes of sections 6 and 7, "Buyer") that its Products will be free from material defects in workmanship and materials under normal use and service for a period of 90 daysfrom the date of Seller's delivery of Products to the Facility (the "Warranty Period").
LIMITATIONS ON WARRANTY: In addition to "Buyer's Obligations" below, the following limitations apply to this warranty. This limited warranty is nontransferable and extends only to the original purchaser acquiring the product directly from Seller. There is NO WARRANTY in cases of damage in transit, negligence, abuse, abnormal usage, misuse, accidents, normal wear and tear, damage due to environmental or natural elements, damage or tampering of Products from improper packaging or handling, failure to follow Seller's instructions or improper installation, storage or maintenance. This warranty does not cover Products or parts furnished but not produced or manufactured by Seller, and Seller's sole obligation with respect to such Products or parts shall be limited to assigning or transferring to Buyer any written warranty extended to Seller by the manufacturer of such Products or parts to the extent such warranty may reasonably be assigned or transferred. However, Seller does not adopt, guarantee or represent that the manufacturer will comply with any of the terms of the warranty of such manufacturer.
Remedy and LIMITATIONS ON REMEDY: Seller's sole and exclusive obligation under this warranty (and Buyer's sole and exclusive remedy) shall be, upon prompt written notice by Buyer during the Warranty Period of any breach, and return of the Product or part to Seller prepaid, to either, at Seller's option, repairor replace without charge, F.O.B. Seller's Facility, any Product or part thereof found by Seller in its reasonable judgment to be covered by this warranty or credit Buyer for the purchase price paid for such Product or part. Notice of any warranty claim or request for warranty service should be sent to Seller, for approval prior to returning the Product or part to Seller, at the following address: email@example.com All returns must reference the invoice number and the return authorization number on the exterior of the package. SELLER SHALL NOT BE LIABLE TO BUYER, OR TO ANYONE CLAIMING UNDER BUYER, FOR ANY OTHER REMEDIES, OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, REMEDIES, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE PRODUCTS OR SELLER'S ACTS OR OMISSIONS OR OTHERWISE. This warranty covers only replacement or repair of Products or parts at Seller's main facility and does not include the cost of field service travel and living expenses, labor, inspection, removal or installation of new Products or parts or normal maintenance. Any assistance Seller provides to or procures for Buyer outside the terms, limitations or exclusions of this warranty will not constitute a waiver of the terms, limitations or exclusions of this limited warranty, nor will such assistance extend or revive the warranty. Seller will not reimburse Buyer for any expenses incurred by Buyer in repairingor replacing any Products outside the terms of this limited warranty, except for those incurred with the prior written permission of an authorized representative of Seller.
LIMITATION ON DAMAGES: IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, OR FOR LOST PROFITS OR REVENUES DIRECTLY OR INDIRECTLY INCURRED, EVEN IF SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER'S AGGREGATE LIABILITY WITH RESPECT TO A PRODUCT AND THIS CONTRACT SHALL BE LIMITED TO THE MONIES PAID TO SELLER BY BUYER FOR THAT PRODUCT. These limitations apply notwithstanding any failure of the essential purpose of the above limited remedy.
Buyer's Obligations: Buyer must satisfy the following obligations in order to be eligible for coverage by this limited warranty. Prior to using or permitting use of the Products, Buyer shall determine the suitability of the Products for the intended use and Buyer assumes all risk and liability whatsoever in connection therewith. Buyer agrees that Seller has no post–sale duty to warn Buyer or any other party about any matter or, if such duty exists, Seller satisfies that duty by providing any required warnings only to Buyer. Buyer assumes all post–sale duty to warn its customers and indemnifies Seller against any Damages (as defined in section 8 below) in connection with such duty or failure to warn. Buyer agrees to test and evaluate Productpromptly upon receipt to ensure compliance with all specifications, quality requirements and other requirements of Buyer's application. Seller does not guaranty the accuracy of information given and recommendations made as to suitability of Products for Buyer's application or operating conditions. Nothing shall be construed to imply the nonexistence of any relevant patents or to constitute a permission, inducement or recommendation to practice any invention covered by any patent without authority from the patent owner. Buyer agrees to familiarize itself with and comply with all laws and regulations now or hereafter in effect and applicable to the purchase, transport, use, supply, storage, sale, offer for sale, lease and/or disposal of the Products ("Laws") including, without limitation, to the extent applicable, the U.S. Foreign Corrupt Practices Act and all other antibribery laws, all U.S. antiboycott laws, and the U.S. Export Administration Act and all regulations thereunder. If Buyer or its affiliates, agents or representatives engages a freight forwarder or similar service provider, Buyer shall provide Seller with copies of freight forwarder (or similar) records regarding Product exports promptly upon request. Buyer shall promptly notify Seller in writing if Buyer receives notice of or otherwise has reason to believe that a violation of U.S. export law has occurred or is likely to occur. Buyer assumes all risk with respect to Product compliance with applicable Laws. Buyer acknowledges that certain Products may have restrictions on who can purchase, transport, use, supply, store, sell, offer for sale, lease and/or dispose of ("Actions") the Product and on how and where such Actions may take place. Buyer agrees to be responsible for determining who may take such Actions and how and where such Actions may take place after Seller's delivery hereunder, and further agrees to ensure that its customers comply with such requirements.
7. DISCLAIMER OF OTHER WARRANTIES
SELLER AND BUYER AGREE THAT THE EXPRESS WARRANTIES IN THE PRECEDING SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE). SELLER HEREBY DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS AND IMPLIED WARRANTIES. Any oral or written description of the Products or performance standards shall not be construed as an express warranty.
Seller has made diligent effort to illustrate and describe the Products in its catalogs accurately; however, such illustrations and descriptions are for the sole purpose of identification, and do not express or imply a warranty that the Products are merchantable, or fit for a particular purpose, or that the Product will necessarily conform to the illustrations or descriptions. Product cross–reference comparisons do not imply that all Products compared are available, or in the case of functional equivalency, that performance and other characteristics are perfectly comparable. For critical applications, review specifications prior to purchase. No warranty or affirmation of fact, expressed or implied, other than set forth in the limited warranty statement above is made or authorized by Seller. Seller does not warrant or represent that Products shall comply with any law or regulation. Seller assumes no obligation or liability for advice or assistance given or results obtained in connection with any Products sold. All such advice or assistance is given and accepted at Buyer's risk. Any decisions as to use or installation of Products sold hereunder is that of the Buyer.
Indemnification: Buyer hereby releases and agrees to indemnify, defend and hold harmless Seller and its shareholders, directors, officers, employees, agents, successors, assigns, affiliates and suppliers (individually and collectively, "Seller's Indemnified Parties") from and against any and all direct and indirect claims, debts, actions, causes of action, liabilities, losses, fees, costs, suits, demands, fines, penalties, judgments, damages or expenses whatsoever, including, without limitation, attorneys' fees and costs and special, incidental and consequential damages ("Damages") incurred by or against Seller or any of Seller's Indemnified Parties due to or arising out of, in connection with, resulting from or relating to (a) misrepresentation or breach of this Contract, or violation of any law, by Buyer or any of Buyer's shareholders, directors, officers, employees, affiliates, representatives, agents, successors or assigns ("Buyer's Parties"), or (b) 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 Buyer or any of Buyer's Parties, or (c) actions, threatened actions, losses, damages or injuries to person or property (including death) related to or caused by Buyer's products, Buyer's specifications, drawings, descriptions, designs, approvals or instructions provided to Seller, or by Buyer's infringement of the patents or proprietary right of any other individual or entity, or due to improper application or use of the Products. Prior to settling any claim, Buyer will give Seller an opportunity to participate in the defense and/or settlement of such claim. Buyer shall not settle any claim without Seller's written consent. In the event of any recall affecting the Products, Seller shall have the right to control the recall process and Buyer shall fully cooperate with Seller in connection with the recall.
9. California Proposition 65 Compliance
Buyer acknowledges that all products manufactured, distributed and/or provided by Seller to Buyer, whether for distribution, resale, use or otherwise, must be labeled in compliance with California Health and Safety Code Section 25249.5 et seq., commonly referred to as Proposition 65, and implementing regulations ("Prop 65"). Upon request from time to time by Seller, Buyer shall provide Seller with a written certification confirming Buyer’s compliance with any and all Prop 65-related instructions provided by Seller. Buyer shall defend, indemnify and hold Seller harmless from and against any and all Damages arising out of or resulting from any Prop 65 violation(s) relating in any way to any product provided by Seller to Buyer.
10. Confidential Information; Engineering Data; Trademarks
Confidential Information: Buyer acknowledges that all Confidential Information (as defined below) which may be disclosed to it by Seller or its affiliates or suppliers shall at all times, both during and after expiration or termination of this Contract for any reason, remain the exclusive property of Seller or its affiliates or suppliers and that Buyer shall not acquire any proprietary interest whatsoever therein. "Confidential Information" means all knowledge and information disclosed by Seller or its affiliates or suppliers to Buyer orally or in writing, or acquired by Buyer through observation, regarding Seller's or its affiliates' or suppliers' products, technology, inventions, formulas, know–how, services, forecasts, sales methods, customer lists, customer usages and requirements, financial information, business plans, strategies and future business relationships, disclosed with the exception of such information which: (a) was already part of the public domain at the time of the disclosure by Seller or its affiliates or suppliers; (b) becomes part of the public domain through no fault of Buyer (but only after and only to the extent that it is published or otherwise becomes part of the public domain); (c) was in Buyer's possession prior to the disclosure by Seller or its affiliates or suppliers and was not acquired, directly or indirectly, from Seller, its affiliates or suppliers or from a third party who was under a continuing obligation of confidence to Seller or its affiliates or suppliers; or (d) is received (after the disclosure by Seller or its affiliates or suppliers) by Buyer from a third party who did not require Buyer to hold it in confidence and did not acquire it directly or indirectly from Seller or its affiliates or suppliers under a continuing obligation of confidence. Except as necessary to perform its duties under this Contract, Buyer shall not use or disclose any of such Confidential Information, but shall protect it using at least the same degree of care given its own confidential information, but in no event less than a reasonable degree of care. Upon expiration or termination of this Contract for any reason, Buyer shall, within 15 days, surrender to Seller all plans, drawings, specifications, sketches, pictures, films, tapes, computer disks, literature, samples, documents, other tangible objects and all copies thereof relating to Confidential Information and all of Seller's or its affiliates' or suppliers' property. Nothing in this Contract shall be construed to limit or negate the common or statutory law of torts or trade secrets where it provides Seller, its affiliates or suppliers with broader protection than that provided herein.
Engineering Data: All engineering data, design information and engineering and shop drawings used in the completion of this order are and shall remain Seller's property. Buyer shall not copy, reproduce, distribute, publish or communicate to any third party such data without the prior, written permission of a properly authorized representative of Seller. Notwithstanding the foregoing, Buyer shall distribute product data on operation, safety and maintenance information to the end user.
Trademarks: During the term of this Contract, for so long as Buyer is in compliance with its obligations hereunder, if Buyer is an authorized reseller for Seller then Buyer is granted the nonexclusive, nontransferable, nonsublicensable right to use the name JW Winco, (the "Trademarks") solely for the purpose of advertising, soliciting sales of, and selling Products in accordance with the terms of this Contract, and for identifying Buyer as an authorized reseller of Products. Nothing in this Contract shall be construed to give Buyer any right to use any of the Trademarks on or in connection with the sale of any goods or services other than Products, and Buyer agrees not to make, or allow any of its affiliates to make, any such use. Any use of Seller's or its affiliates' or suppliers' trademarks or other intellectual property shall be subject to Seller's prior written approval in each instance and such restrictions as Seller may, in its sole discretion, impose from time to time. Seller may revoke this license at any time in its sole discretion. Buyer's use of the Trademarks, and any and all goodwill associated therewith, shall inure to Seller's or its affiliates' or suppliers' benefit. Buyer agrees that neither it nor its affiliates will seek to register any Trademark, or any other trademark, service mark, or trade dress owned by Seller or its affiliates or suppliers, and if Buyer or any of its affiliates does obtain such a registration, Buyer or its affiliate shall immediately assign the same to Seller. Buyer acknowledges and agrees that Seller owns all right, title, and interest in and to the Trademarks. Except as otherwise agreed by Seller, Products sold by Buyer shall bear the Trademarks, and Buyer shall not remove or efface such Trademarks. Buyer will not sell any of the Products except in connection with such Trademarks, and will not repackage the Products in any manner and resell such Products utilizing a different trademark unless Seller agrees otherwise in writing. Any use of Seller's or its affiliates' or suppliers' Trademarks in advertisements or promotion must be preapproved in writing by Seller. Buyer agrees to take all steps which Seller may from time to time consider to be necessary to perfect or protect Seller's or its affiliates' or suppliers' rights in the Trademarks including, without limitation, executing all necessary assignments, declarations, and other documents requested by Seller from time to time. Upon expiration or termination of this Contract for any reason, Buyer shall take such steps and execute such documents as Seller requests to cause Seller or its affiliates or suppliers to own all rights in the Trademarks and to terminate any rights Buyer or its affiliates may have to use the Trademarks. Buyer shall inform Seller promptly of any potential or actual infringement of any of Seller's or its affiliates' or suppliers' Trademarks and shall provide all assistance and information required by Seller, at Seller's expense, in connection with any such infringement. Buyer shall not use the Trademark in Buyer's or its Affiliates' company name. Buyer shall comply with Seller's polices regarding marketing and online sales of Products and use of trademarks as in effect from time to time.
11. Force Majeure
Seller shall not be responsible or liable for damages, costs, expenses, losses, delays in delivery or failure to fill orders or other default or damage of any nature where such has been caused by an act of God, war, major disaster, terrorism, acts of Buyer, breakdown of essential machinery, accidents, inability to obtain materials from usual sources, 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 Seller's available supply or any other cause beyond Seller'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, Seller may, at its option and without incurring liability, prorate its deliveries, cancel all or any portion of the Contract to the extent affected by the event of force majeure and/or extend any date upon which performance is due hereunder.
2815 S. Calhoun Road
New Berlin, WI 53151