ONLINE TERMS AND CONDITIONS (GOODS/PARTS)
The following Online Terms and Conditions are fully incorporated into each Order, as described herein.
1. FORMATION OF CONTRACT. Any potential or actual purchaser (“Customer”) makes a firm offer to purchase the parts, goods, accessories, and attachments (the “Goods”) described in an order submitted 1) through the website of Wheeler Machinery Co., or its applicable subsidiary, affiliate, or related entity (“WHEELER”) (together with Customer, the “Parties,” and each a “Party”) at https://parts.cat.com/en/wheelermachinery (the “WHEELER Website“, references in these online terms and conditions to WHEELR’s website or WHEELER website shall be deemed to refer to this site, as it may be changed, modified or replaced from time to time), or
2) by fax, email or other contact with WHEELER’s Sales Department (the “Order”) using the procedures described in such WHEELER Website and under these Online Terms and Conditions, which are incorporated into the Order (“Terms and Conditions”). Except as otherwise specified herein, WHEELER accepts Customer’s offer at the earlier of when (a) WHEELER sends Customer a written acceptance (by e-mail, fax, or otherwise), or (b) WHEELER ships Customer’s Order. WHEELER’s acceptance of the Order and these Terms and Conditions are conditioned on WHEELER’s on-going determination that Customer and these Terms and Conditions comply with all applicable laws and regulations. WHEELER reserves the right to make partial shipment of the Goods contained in the Order, and unless otherwise specified in WHEELER’s written acceptance, partial shipment of an Order shall be acceptance of only that portion of an Order. For Goods not currently in WHEELER’s inventory, WHEELER may place such Goods on backorder and notify Customer of such status, unless such Goods will be in WHEELER’s inventory within thirty (30) days. Notwithstanding the foregoing, acceptance is strictly limited to these Terms and Conditions WHEELER objects to and rejects any provision additional to or different from the terms hereof that may appear in Customer’s purchase order, acknowledgement, confirmation, writing, or in any other prior or later communication from Customer to WHEELER, or arising out of course of dealing or usage in the trade, unless such provision is expressly agreed to by WHEELER in a writing signed by WHEELER. Customer’s commencement of performance shall in all cases constitute Customer’s unqualified and unconditional acceptance of these Terms and Conditions and WHEELER’s Order and any applicable invoice. The Order and these Terms and Conditions, which are incorporated in the Order, supersedes all prior and contemporaneous understandings and agreements. No purchase order, work order, or statement of work issued by Customer or a third party shall be binding on WHEELER unless accepted by WHEELER in writing. The complete or partial filling of an Order shall not constitute acceptance of any terms and conditions contained in any request for proposal, purchase order, statement of work, or other similar document issued by Customer or a third party, nor does it serve to modify or amend this Agreement.
2. ORDERS.
a. Acceptance and Rejection of Orders. WHEELER has no obligation to accept any Order; however, WHEELER may accept an Order by confirming the Order in writing or by delivering the applicable Goods to Customer, whichever occurs first. WHEELER may reject an Order without liability or penalty and without constituting a waiver of any of WHEELER’s rights or remedies under the Order.
b. Cancellation or Modification of Orders. Customer shall be obligated to purchase from WHEELER the quantities of the Goods specified in an Order. Cancellation or modification of all or part of any Order is subject to Wheeler’s prior written consent in each instance. If cancellation or modification is allowed, Customer agrees to pay to WHEELER all expenses incurred, and damage sustained by WHEELER as a result of such cancellation or modification.
c. Shipment. In the event of shipment of any Goods, WHEELER shall select the method of shipment of and the carrier for the Goods. WHEELER, in its sole discretion, without liability or penalty, may make partial shipments of the Goods to Customer. Each shipment will constitute a separate sale and Customer shall pay for the Goods shipped in accordance with the payment terms specified in the Order, whether such shipment is in whole or partial fulfillment of an Order.
d. Delivery. Unless otherwise agreed in the Order the sales price is offered F.O.B. at WHEELER’s designated facility and Customer is responsible for all shipping charges as provided in the Order. WHEELER will, at Customer’s cost and expense, deliver the Goods to the location specified in the Order (the “Delivery Location”) using WHEELER’s standard methods for packaging and shipping.
e. Late Delivery. Any time quoted for delivery is an estimate only; provided, however, that WHEELER shall use commercially reasonable efforts to deliver all Goods within a reasonable time consistent with the Order
3. TITLE TO GOODS. Title will pass to Customer (a) in the case of shipment, upon delivery of the Goods to the shipping address listed in the Order or, (b) in the case of pick up at the WHEELER’s location listed in the Order or Order or otherwise agreed to by the WHEELER, upon delivery of the Goods to Customer or Customer’s representative at such location. Shipping and delivery dates are estimates only and cannot be guaranteed. WHEELER is not liable for any delays in shipments..
4. ACCEPTANCE AND TERMS AND CONDITIONS: Acceptance of the Order is limited to the express terms stated herein. Any proposal in Customer’s acceptance for additional or different terms or any attempt by Customer to vary in any degree any of the (i) terms and conditions or (ii) representations or warranties, of the Order, is expressly objected to and hereby rejected. Once accepted, the Order shall constitute the entire agreement between WHEELER and Customer. WHEELER is not bound by any representation or agreements, express, or implied, oral, or otherwise, which are not stated within the Order (including, for purposes of clarity, any general terms and conditions contained in Customer’s purchase order or other documents submitted by Customer). The Order and these Terms and Conditions will supersede all previous communications, agreements, and contracts with respect to the subject matter hereof and no understanding, agreement, term, condition, or trade custom at variance with the Order will be binding on WHEELER. No waiver or modification of the terms and conditions hereof will be effective.
5. PRICING AND PAYMENT TERMS:
a. Pricing. All prices posted on the WHEELER Website are subject to change without notice. The price charged for a Goods will be the price reasonably determined by WHEELER to be in effect at the time the order is placed and will be set forth in Customer’s Order or Order. Price increases will only apply to orders placed after such increases are shown on the prices on the WHEELER Website.
b. Payment. Full payment for purchase of Goods from the WHEELER Website shall be due at time of purchase.
c. Late Payments. Customer shall pay interest on all late payments, calculated daily, and compounded monthly at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable Law, calculated daily and compounded monthly. Customer shall also reimburse WHEELER for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
d. Disputed Invoice. Failure to notify WHEELER in writing of any dispute regarding an invoice within sixty (60) days of receipt thereof waives Customer’s right to dispute such invoice. Customer’s obligation to pay amounts invoiced is and will be absolute and unconditional and shall not be subject to any delay, reduction, set-off, defense or counterclaim.
e. No Set-off Right. Customer shall not have, and acknowledges that it does not have, any right to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to WHEELER under the Order.
6. UNSATISFACTORY CREDIT STATUS. Customer shall furnish WHEELER with statements evidencing Customer’s financial condition as WHEELER may, from time to time, reasonably request, and shall notify WHEELER immediately of any and all events that may have a material adverse effect on Customer’s business or financial condition. If WHEELER determines in its sole discretion that Customer’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to WHEELER’s other rights, WHEELER may without liability or penalty take any of the following actions:
a. require that Customer provide a standby letter of credit satisfactory to WHEELER in its sole discretion;
b. accelerate all amounts owed by Customer to WHEELER under the Order;
c. modify the payment terms specified in Section 5 (Payment Terms) for outstanding and future Orders, including requiring Customer to pay cash in advance;
d. cancel any previously accepted Orders;
e. delay any further shipment of Goods to Customer;
f. terminate the Order; or
g. any combination of the above.
No actions taken by WHEELER under this Section 6 (nor any failure of WHEELER to act under this Section 6) shall constitute a waiver by WHEELER of any of its rights to enforce Customer’s obligations under the Order including, but not limited to, the obligation of Customer to make payments as required under the Order.
7. SALES TAXES: Under certain state laws, WHEELER is required to collect sales tax for sales made on Goods. Prices stated in the Order, or Order do not include any applicable state, county, city, or local sales taxes. Posted prices do not include taxes or other governmental fees or charges (the “Taxes”) or charges for shipping. All such Taxes and shipping charges will be added to Customer’s merchandise total and will be itemized in Customer’s shopping cart and in the applicable Order confirmation. The Taxes and shipping charges included in the Order confirmation will be calculated using the information available at the time of the Order
confirmation; however, said Taxes and shipping charges may change prior to the final order fulfillment and issuance of the shipping confirmation due to changes in the source of said fulfillment and any changes to the information used to calculate the Taxes. WHEELER is not responsible for pricing, typographical or other errors on the WHEELER Website or offered by WHEELER and the WHEELER reserves the right to cancel any orders arising from such errors.
8. GRANT OF SECURITY INTEREST: To the extent permitted under applicable law, in order to secure payment and performance of Customer’s obligations arising under this Agreement, Customer grants WHEELER a security interest in and to all right, title, and interest of Customer in, to, and under the Goods and any and all additions, replacements, substitutions, and proceeds of the same (“Collateral”) to secure payment of the sales price and any and all other obligations or amounts owed or owing by Customer hereunder whether now existing or hereafter created and all renewals, extensions, and rearrangement of such liabilities. Customer appoints WHEELER as Customer’s irrevocable attorney-in-fact to file, at Customer’s cost any financing statement(s) (and any amendments, renewals, and related instruments) (i) to perfect such security interest, and/or (ii) to release, terminate and void WHEELER security interest. Customer shall execute any such statements or other documentation necessary to perfect such security interest. The security interest granted under this provision constitutes a purchase money security interest under the Utah Uniform Commercial Code (“UCC”). Customer will reimburse WHEELER for all expenses for the perfection and the continuation of the perfection of WHEELER’s security interest in the Collateral. During such period in which WHEELER has a security interest in and to the Goods, Customer may not assign, transfer, move, or otherwise sell any of the Collateral without the written consent of WHEELER. Customer promptly will notify WHEELER before any changes in Customer’s name including any changes to the assumed business names of Customer.
9. LOADING AND UNLOADING. Customer is responsible for the loading and unloading of the Goods. IF WHEELER EMPLOYEES ASSIST IN LOADING OR UNLOADING THE EQUIPMENT, CUSTOMER ASSUMES THE RISK OF ANY RESULTING DAMAGE OR INJURY AND SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS WHEELER FROM AND AGAINST ANY LOSS, COST OR EXPENSE (INCLUDING ATTORNEYS’ FEES AND EXPENSES) ARISING FROM OR RELATED TO THE SAME, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY WHEELER’S NEGLIGENCE OR THE NEGLIGENCE OF WHEELER’S EMPLOYEES, AGENTS OR ASSIGNS.
10. TIME OF DELIVERY AND SHIPPING: Orders for Goods are processed in the order of their acceptance by WHEELER. WHEELER will use commercially reasonable efforts to deliver the Goods to Customer on the scheduled delivery date as stated in the Order. However, shipping and delivery dates are estimates and dependent upon factors outside of WHEELER’s control including, but not limited to, the manufacturer’s production schedule, material and labor shortages, equipment shortages, shipping delays, the Goods may not arrive on the scheduled date. WHEELER shall not be liable for any damages caused by delays in delivery or shipment of the Goods. WHEELER shall select the method of shipment of, and the carrier for, the Goods. As applicable, WHEELER may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Customer is responsible for all freight, shipping, loading, and unloading costs. Unless otherwise agreed to in writing by the parties, the Equipment shall not be delivered to Customer until payment terms are mutually agreed upon.
11. RISK OF LOSS/SHORTAGES: As applicable, risk of loss of any Goods shall pass to Customer as soon as the Goods are properly loaded on the carrier, as elected by WHEELER. WHEELER’s responsibility for shipment ceases upon delivery of the Goods to the carrier. In the
event that WHEELER serves as the carrier, WHEELER’s responsibility for shipment will cease upon delivery acceptance by the Customer. Any claim by Customer for shortage in shipment shall be made by written notice to WHEELER within ten (10) days after receipt of the shipment. Customer will be deemed to have accepted the Goods unless it notifies WHEELER in writing of any nonconforming products during the inspection period and furnishes such written evidence or other documentation as required by WHEELER.
12. COMPLIANCE WITH LAWS: Customer shall at all times comply with all federal, state, and local laws, rules, or regulations applicable to the Order, Customer’s performance of its obligations hereunder, and Customer’s use of the Goods. Without limiting the generality of the foregoing, Customer shall (a) at its own expense, maintain all certifications, credentials, licenses and permits necessary to conduct its business relating to the purchase or use of the Goods and
(b) not engage in any activity or transaction involving the Goods, by way of shipment, use or otherwise, that violates any federal, state, and local laws, rules, or regulations.
13. TERMINATION. In addition to any remedies that may be provided under the Order, WHEELER may terminate the Order with immediate effect upon written notice to Customer, for any reason or no reason, or if Customer: (a) fails to pay any amount when due under the Order; (b) has not otherwise performed or complied with any terms of the Order, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Any termination under the Order automatically operates as a cancellation of any deliveries of Goods to Customer that are scheduled to be made subsequent to the effective date of termination, whether or not any orders for such Goods had been accepted by WHEELER. With respect to any Goods that are still in transit upon termination of the Order, WHEELER, in its sole discretion, may require that all sales and deliveries of such Goods be made on either a cash-only or certified-check basis.
14. LIMITED WARRANTY.
a. New Goods. If Customer is purchasing new Goods from WHEELER, Customer acknowledges that (i) WHEELER is not the manufacturer of the Goods; (ii) if the Goods include a manufacturer’s warranty, WHEELER will pass through to Customer the manufacturer’s warranty to the extent permitted by the terms of such warranty; and
(iii) the manufacturer’s warranty will be subject to all conditions and exclusions set forth therein. Upon request, WHEELER shall provide Customer a copy of the applicable manufacturer’s warranty.
b. Remanufactured Goods. If Customer is purchasing remanufactured Goods from WHEELER, (i) WHEELER is not the manufacturer of the remanufactured Goods; (ii) if the remanufactured Goods include a manufacturer’s warranty, WHEELER will pass through to Customer the manufacturer’s warranty to the extent permitted by the terms of such warranty; and (iii) the manufacturer’s warranty will be subject to all conditions and exclusions set forth therein. Upon request, WHEELER shall provide Customer a copy of the applicable manufacturer’s warranty. Customer acknowledges that the only warranties with respect to remanufactured Goods are those warranties, if any, expressly set forth in the manufacturer’s warranty or as specifically set forth in the Order.
c. Used Goods. If Customer is purchasing used Goods from WHEELER, Customer acknowledges that the only warranties with respect to such used Goods are those warranties, if any, expressly set forth in the Order.
d. Limitation of Remedies: During the limited warranty, if any, as provided herein, if, for any reason, the Goods do not perform satisfactorily, as judged by WHEELER in its sole discretion, WHEELER may repair or replace the Goods or any part thereof, at its option, without affecting any of the terms of the Order. This remedy does not apply if the Goods have failed or performs less than satisfactorily due to Customer’s improper use of the Goods, accident (including, damage during shipment), neglect, abuse, misuse, or exposure of the Goods to conditions beyond capacity, power, environmental design limits, or operation constraints, as specified by WHEELER and/or the Goods manufacturer. Customer is responsible for all expenses related to repair or replacement due to these causes.
THE REMEDIES IN THIS SECTION 14 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF THE LIMITED WARRANTY.
15. EXTENDED PROTECTION OR COVERAGE. Customer acknowledges that Customer may have the option of purchasing an equipment protection plan or extended services coverage (each, an “Extended Protection Plan“) regarding the Goods, and Customer agrees that if an Extended Protection Plan is available and purchased by Customer at the time of sale, the Extended Protection Plan will be subject to the terms, conditions and exclusions contained in such applicable Extended Protection Plan.
16. DISCLAIMER OF WARRANTIES: Subject to the manufacturer warranties provided pursuant to Section 14, by receiving the Goods, Customer acknowledges the Goods to be in good, safe, and serviceable condition, and Customer accepts the Goods “AS IS, WHERE IS” and “WITH ALL FAULTS,” regardless of defects, latent or otherwise. WHEELER makes no warranties, express or implied, for any Goods, equipment, product, service, or other items sold or furnished under the Order, unless agreed to in a separate writing between Customer and WHEELER. WHEELER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY WHEELER, OR ANY OTHER PERSON ON WHEELER’S BEHALF, EXCEPT AS SPECIFICALLY SET FORTH IN THE ORDER. ALTHOUGH WHEELER MAY ADMINISTER WARRANTIES ISSUED BY A MANUFACTURER, CUSTOMER ACKNOWLEDGES AND AGREES THAT (1) ANY EXPRESS WARRANTIES BY SUCH MANUFACTURER ARE NOT THE RESPONSIBILITY OF WHEELER ;
(2) SUCH MANUFACTURER’S WARRANTY MAY CONTAIN LIMITATIONS; AND (3) CUSTOMER MAY INCUR CERTAIN REPAIR, TRANSPORTATION OR OTHER CHARGES BY WHEELER WHICH ARE NOT COVERED BY SUCH MANUFACTURER ‘S WARRANTY. Any warranty by WHEELER shall be null and void and have no legal effect if Customer fails to pay any amounts due for the Goods at issue.
17. LIMITATION OF LIABILITY: In no event will WHEELER, its subsidiaries, affiliates, agents or employees be liable for any liquidated, incidental, indirect, exemplary, punitive, enhanced, special, or consequential damages in connection with, arising out of, or relating to the Order or
furnishing of any equipment, goods, services or other items or any third party’s ownership, maintenance, or use of any equipment, goods, services or other items furnished under the Order, including, but not limited to, lost profits or revenues, loss of use of the Goods or any associated goods, damage to associated goods, costs of capital, cost of substitute goods, or claims of Customer for such damages, whether or not the possibility of such damages has been disclosed in advance or could have been reasonably foreseen by Customer, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose. WHEELER is not responsible for meeting any federal, state, local or municipal code, rules, regulations, or specifications (whether statutory, regulatory, or contractual), unless Customer specifies it in writing and WHEELER agrees to it in writing. Customer agrees that it has selected the Goods, and associated equipment and goods, based upon its own judgment and particular needs and disclaims any reliance upon any statements, advice, or presentations made by WHEELER. IN NO EVENT SHALL WHEELER’s AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS SALES AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF AGREEMENT, WARRANTY, STRICT LIABILITY TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE LESSER OF (a) TOTAL OF THE AMOUNTS PAID TO WHEELER PURSUANT TO THE APPLICABLE ORDER GIVING RISE TO THE CLAIM; AND (b) $50,000. The parties recognize
that the pricing associated with Goods reflects this allocation of risk and is the basis of the bargain between the parties.
18. ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY GOODS BY CUSTOMER, ITS SUBSIDIARIES, AFFILIATES, AGENTS, OR EMPLOYEES, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS, OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY WHEELER, BY WAY OF TECHNICAL ADVICE, CONSULTING, DEMOS, TRAINING, OR OTHERWISE, RELATED TO THE USE OF THE GOODS.
19. INDEMNITY: Customer agrees to indemnify, defend and hold harmless WHEELER from and against any and all claims, actions, suits, proceedings, costs, expenses, damages (including but not limited to consequential and incidental damages), liabilities, deficiencies, fees, interest, awards, penalties, fines, costs (including, but not limited to, attorney fees and court costs), judgements, and settlements, (including those brought or incurred by or in favor of Customer’s employees, agents and subcontractors), arising out of or related to (i) the selection, delivery, loading, unloading, towing, possession, use, misuse, failure or maintenance of the Goods, operation, handling, retaking, or transportation of the Goods (inclusive of any of the foregoing by employees or agents of Customer, or third parties), (ii) personal injury, death or property damage or loss of any nature whatsoever arising out of or related to the Goods subject to the Order, (iii) any breach by Customer of the Order or any applicable law, (iv) use of the Goods in any manner that does not materially conform with the usage specifications provided by WHEELER or the equipment manufacturer, as applicable, or (v) any act or omission of Customer or Customer’s employees, agents, contractors, subcontractors, affiliates or invitees. Additionally, Customer agrees to defend, at its expense, any and all suits brought against WHEELER either alone or in conjunction with others (including any third-party suits or actions) and additionally to satisfy, pay and discharge any and all judgments and fines against WHEELER in any such suits or actions, whether based in gross negligence, willful misconduct, negligence or otherwise.
20. DEFAULT BY CUSTOMER:
a. Event of Default. An “Event of Default” shall occur if (a) Customer fails to pay when due the sales price; (b) Customer fails to perform or observe any covenant, condition, or agreement to be performed by it hereunder; (c) Customer ceases doing business as a going concern, makes an assignment for the benefit of creditors, admits in writing an inability to pay debts as they become due, files a petition in bankruptcy, or if owners, shareholders, or members of Customer’s business organization take actions towards dissolution or liquidation of Customer; (d) Customer attempts to sell, transfer, or encumber, sublease or convey the Goods or any part thereof; or (e) WHEELER, in good faith deems itself, insecure relative to payment of the sales price.
b. Occurrence of an Event of Default. Upon the occurrence of any Event of Default, WHEELER may exercise the following rights and remedies: (i) declare the sales price immediately due and payable; (ii) require Customer to assemble the Goods and make them available to WHEELER at a place and time designated by WHEELER; (iii) WHEELER shall have full power to enter upon the property or jobsite of the Customer and take possession of and remove the Goods; (iv) WHEELER shall have full power and authority to sell, lease, transfer or otherwise deal with the Goods or proceeds thereof, and in connection therewith WHEELER may bid on the Goods and that a commercially reasonable price for said reclaimed Goods may be determined by WHEELER based upon current national auction values, market trends relating to supply and demand, and related factors for goods of similar type and condition; (v) if WHEELER chooses to sell or lease the reclaimed Goods, WHEELER may obtain a judgment against Customer for any deficiency remaining on the sales price after application of all amounts received from the exercise of its rights under the Order; and (vi) all rights and remedies of a secured creditor under the provisions of the Utah Uniform Commercial Code, as amended from time to time. All of WHEELER’s rights and remedies, whether evidenced by the Order or other related agreement, shall be cumulative and may be exercised singularly or concurrently. Customer agrees to pay all costs incurred by WHEELER in enforcing the Order or any of its provisions, including without limitation reasonable attorney’s fees and costs and all costs of reclaiming the Goods, whether or not legal action is commenced.
21. EQUIPMENT DATA: The Goods governed by the Order may be equipped with a wireless data communication system or similar system. In such case, Customer understands data reflecting the machine performance, condition, operation, and other information is being transmitted to WHEELER and Caterpillar, Inc., to better serve the Customer and to improve upon WHEELER’s and Caterpillar, Inc.’s products and services. Upon entering the Order, Customer agrees to WHEELER Machinery Co. Data Governance Statement, as set forth at https://wheelercat.com/dataconsent/ and the Caterpillar, Inc. Data Governance Statement, as set forth at https://www.caterpillar.com/en/legal-notices/data-governance-statement.html, each as amended from time to time.
22. PRIVACY. WHEELER’s Privacy Statement, available at https://wheelercat.com/legal/ governs WHEELER’s processing of all personal data collected from Customer in connection with Customer’s use of the WHEELER Website, and the purchase, use or servicing of Goods obtained through the WHEELER Website and any communications in connection with any of the foregoing. Caterpillar, Inc.’s Privacy Statement, available at https://myParts.Cat.Com/en/usa-parts/privacy, governs CAT’s processing of all personal data collected from Customer in connection with use of CAT’s website, and the purchase, use or servicing of Goods obtained through CAT’s website and any communications in connection with any of the foregoing.
23. MARKETING. The Customer consents that, in conjunction with the sale of the Goods, Customer’s equipment may be used in any WHEELER or third-party promotional materials, pictures, videos, or other mediums. The Customer’s name or trademarks shall not be used without express written consent from the Customer.
24. WAIVER. No waiver of any provision of the Order shall be effective unless it shall (a) be in writing; (b) specifically identify the Order; (c) specifically state that such document waives certain terms of the Order; and (d) be accepted and signed by an authorized representative of WHEELER. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from the Order: (i) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under the Order; or (ii) any act, omission, or course of dealing between the Parties. Unless otherwise specified, remedies hereunder shall not be exclusive, but shall be cumulative and in addition to all other remedies existing at law or in equity. The receipt, acceptance and/or negotiation of, or any endorsement on, any check or draft received from one Party will not operate to waive or release, in whole or in part, any claim of the other Party arising hereunder or in connection herewith (except as to the portion thereof actually received by the other Party in cash or other good funds).
25. FORCE MAJEURE: WHEELER shall not be responsible or liable, and WHEELER’s obligation to perform under the Order will be excused during each period of delay, for any delay or failure to deliver any or all of the Goods and/or performance of the services where such delay or failure is caused by any act of God, any worldwide or national epidemic or pandemic, fire, flood, inclement weather, explosion, war, insurrection, riot, embargo, stature, ordinance, regulation or order of any government or agent thereof, shortage of power, shortage of labor, material fuel, supplies or transportation, strike or other labor dispute, or any other cause, contingency, occurrence or circumstance of any nature, whether or not similar to those herein before specified beyond WHEELER’s control, which prevents, hinders or interferes with manufacture, assembly or delivery of the Goods or performance of the services. Any such cause, contingency, occurrence, or circumstances shall release WHEELER from performance of its obligations hereunder. In the event of a Force Majeure event, such party shall: (i) immediately notify the other party of the Force Majeure event and its expected duration, and (ii) take all reasonable steps to recommence performance as soon as possible.
26. JURISDICTION AND VENUE: The Order and the relationship between WHEELER and Customer shall be governed and construed according to the laws of the State of Utah. Customer consents to jurisdiction and venue for any action or dispute arising under the Order shall be in the in the Third Judicial District of the State of Utah, in and for Salt Lake County, which is WHEELER’s corporate headquarters and principal place of business, wherein the parties acknowledge having done business sufficient to establish minimum contacts under the Utah long arm statute, and which is a mutually convenient forum.
27. WAIVER OF JURY TRIAL. EACH PARTY KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED ON OR ARISING OUT OF THIS SALES AGREEMENT OR THE SUBJECT MATTER HEREOF (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, BREACH OF DUTY, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS), AND WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY (i) UNDERSTANDS THAT THIS IS A WAIVER OF IMPORTANT LEGAL RIGHTS AND (ii) ACKNOWLEDGES HAVING HAD
A REASONABLE OPPORTUNITY TO DISCUSS THIS WAIVER AND ITS EFFECTS WITH LEGAL COUNSEL.
28. FAILURE OR OMISSIONS. No delay or failure by either party to exercise any right or remedy under the Order, and no partial or single exercise of that right or remedy, shall constitute a waiver of that or any other right or remedy, unless otherwise expressly provided in the Order.
29. SEVERABILITY. If any part of the Order shall be determined to be invalid, illegal, or unenforceable, or declared null and void by any court of competent jurisdiction, then (i) such part shall be reformed, if possible, to conform to the law and (ii) in any event the remaining parts of the Order shall be fully effective and operative insofar as reasonably possible.
30. ASSIGNMENTS: No right or interest in the Order shall be assigned by Customer without the written permission of WHEELER, and no delegation of any obligation owed or of the performance of any obligation by Customer shall be made without written permission of WHEELER. Any attempted assignment or delegation by Customer shall be wholly void and totally ineffective for all purposes unless made in conformity with this paragraph.
31. AMENDMENTS. No amendment to or modification of or rescission, termination or discharge of the Order is effective unless in a writing signed by an authorized representative of each Party.
32. ENTIRE AGREEMENT. The Order, these Terms and Conditions, and any associated invoices, constitute the entire agreement between the parties and supersedes all prior oral and written agreements and understandings between the parties. The Parties intend for Order and these Terms and Conditions to exclusively govern and control each of the Parties’ respective rights and obligations regarding the subject matter of the Order, and the Order is expressly limited to these Terms and Conditions. Without limitation of the foregoing, any additional, contrary, or different terms contained in any purchase order, third-party agreement, or other request or communication by Customer pertaining to the purchase of Goods from WHEELER, and any attempt to modify, supersede, supplement, or otherwise alter the Order, will not modify the Order (inclusive of any Customer’s invoice) or be binding on the parties. The entering of an Order with WHEELER, the issuance of a purchase order for the purchase of any Goods from WHEELER, or the receipt, acknowledgement, or acceptance of equipment or Goods by Customer constitutes Customer’s acceptance of the Order, and these Terms and Conditions exactly as written. WHEELER reserves the right, in its sole discretion, to modify or replace any of these Terms and Conditions at any time, and such modifications or replacements shall apply to all rentals of equipment from WHEELER after the date of such modification or replacement. It is Customer’s responsibility to review the Terms and Conditions each time Customer purchases Goods from WHEELER.