Terms and Conditions
1. Order Subject to Acceptance. All orders are subject to approval and acceptance in writing or by electronic record by WAV® LLC. (“Seller”). Seller reserves the right to rescind acceptance should Buyer’s credit status change prior to shipment, or based upon product availability, pricing changes, or other circumstances (irrespective of cause) which in Seller’s sole discretion warrant rescission, without liability of any kind (except for a refund of any monies paid in respect of goods subject to any such rescission) to Buyer in relation to any such rescission.
2. Entire Agreement. Seller’s acceptance of any order is conditioned on Buyer’s agreement to all of these terms and conditions, which agreement will be deemed to be evidenced by Buyer’s acceptance of delivery. These terms and conditions represent the complete agreement of the parties, and no terms or conditions in any way adding to, modifying or otherwise changing the terms and conditions stated herein shall be binding upon Seller unless expressly agreed in writing or by electronic record, in either instance as confirmed by an officer of Seller. No modification of any of these terms and conditions will be effected by Seller’s shipment of goods following receipt of Buyer’s purchase order, shipping request or similar forms containing terms and conditions conflicting or inconsistent with these terms and conditions.
3. Prices. All prices are net of transportation costs, which shall be paid and borne by Buyer, unless otherwise specified in writing or by electronic record signed by an officer of Seller, and are subject to adjustment, without notice, to Seller’s prices in effect at the time of shipment. Any increase in transportation rates or any changes in routing resulting in an increase in transportation costs shall be paid and borne by Buyer.
4. Cash Discount. Any cash discount, if any is indicated, will apply only on the net amount of Seller’s invoice after deducting transportation costs and taxes therefrom, unless otherwise specified, and will be allowed only if (a) taken within the time stated, and (b) there are no past due amounts owing from Buyer to Seller.
5. Payment. All sums due and owing from Buyer to Seller shall be paid at Seller’s offices in Aurora; Illinois, within thirty (30) days after the goods are invoiced. A service charge of the lesser of 1½ % per month or the maximum permissible rate will be added to all past due sums owing from Buyer to Seller. Seller is also entitled to reimbursement of reasonable attorneys’ fees and costs incurred in connection with any effort by Seller to collect past due amounts from Buyer.
6. Force Majeure. Seller shall not be liable for delays in shipment or default in delivery or other performance for any reason of force majeure or for any cause beyond Seller’s reasonable control, including, but not limited to (a) government action, war, riots, civil commotion, terrorist acts, embargoes or martial laws; (b) Seller’s inability to obtain necessary goods or materials from its usual sources of supply; (c) shortage of labor, raw material, supply, production, storage or transportation facilities, or other delays in transit; (d) labor difficulty involving employees of Seller or others; (e) fire, flood or other casualty; or (f) other contingencies of manufacture or shipment. In the event of any delay in Seller’s performance due in whole or in part to any cause
beyond Seller’s reasonable control, Seller shall have such additional time for performance as may be reasonably necessary under the circumstances. Acceptance by Buyer of any goods shall constitute a waiver by Buyer of any claim for damages on account of any delay in delivery of such goods.
7. Taxes. All taxes and excises of any nature whatsoever now or hereafter levied by any governmental authority, whether federal, state or local, either directly or indirectly, upon the sale or transportation of any goods from Seller to Buyer shall be paid and borne by Buyer.
8. Delivery Title/Risk of Loss. Unless otherwise agreed in a writing or by electronic record signed by an officer of Seller, all delivery dates are estimates and, in no case, shall Seller be liable for any expense, loss, or damage whatsoever suffered by Buyer as a result of Seller’s failure to deliver the goods by the specified (estimated) date. Delivery of goods to a carrier shall be deemed delivery to Buyer, and thereupon title to such goods, and risk of loss or damage, shall be Buyer’s and Buyer’s alone. Any claim by Buyer against Seller for alleged shortage or damage occurring prior to such delivery must be made in writing within thirty (30) days after receipt of shipment and accompanied by original transportation bill signed by carrier noting that carrier received goods from Seller in the condition claimed. Any claim by Buyer for damage occurring during shipment shall be made directly against the carrier, with a copy of such claim forwarded to Seller within the same thirty (30) day period.
9. Returned Shipment. Any shipments returned to Seller as a result of Buyer’s unexcused delay in accepting delivery or failure to accept delivery will require Buyer to pay all additional costs incurred by Seller associated with any such shipments returned.
10. Disclaimer of Warranties. The goods sold or supplied by Seller to Buyer shall have the warranty (if any) of the manufacturer or other supplier of the goods to Seller. Seller makes no warranty in respect of such goods or as to the existence or effect of any warranty of such manufacturer or supplier. THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. Limitation of Liability and Remedies. Seller shall not be liable for direct, compensatory, special, incidental or consequential losses, damages or expenses, directly or indirectly arising from the sale, handling or use of the goods, or from any other cause with respect to the goods or these terms and conditions, whether any claim is for breach of contract, breach of warranty, strict liability in tort, negligence, or any other legal or equitable theory. Seller’s liability hereunder in any case is expressly limited, at Seller’s election, to repair or replacement (in the form originally shipped) of nonconforming goods, or to the repayment of or crediting Buyer with, an amount equal to the purchase price of such goods. The foregoing applies irrespective of any failure of essential purpose of available remedies or the application of any equivalent doctrine or theory. Any claim by Buyer in relation to goods sold or supplied by Seller to Buyer pursuant to these terms and conditions shall be deemed waived by Buyer unless submitted to Seller in writing within thirty (30) days from the date Buyer discovered, or should have discovered, any alleged
nonconformity or other claimed noncompliance by Seller with any obligation whatsoever. Any action between and among the parties arising out or relating to goods acquired pursuant to these terms and conditions must be commenced within one (1) year following delivery of the goods.
12. Security. Buyer hereby grants Seller a security interest in all goods sold or supplied by Seller to Buyer pursuant to these terms and conditions, and all goods heretofore and hereafter sold to Buyer by Seller (under any then-applicable terms and conditions), and all proceeds thereof, until the purchase price and all other liabilities due Seller in respect of such goods have been paid in full by Buyer. Buyer shall execute and deliver to Seller any instruments or documents Seller deems appropriate to perfect such security interest including, without limitation, a Uniform Commercial Code Financing Statement. Buyer authorizes, and ratifies and confirms, any filing heretofore or hereafter made by Seller of any financing statements which identify the Buyer as debtor, Seller as secured party, and any goods heretofore or hereafter supplied by Seller to Buyer and the proceeds thereof as collateral. Seller may file a copy of these terms and conditions at any time as a financing statement for the purpose of perfecting such security interest. Seller shall have all rights and remedies of a secured party under the Uniform Commercial Code, which rights shall be cumulative and not exclusive. Seller reserves the right to require payment for any shipment hereunder in advance, or satisfactory security in addition to that granted herein, if the financial performance or credit worthiness of Buyer is unsatisfactory to Seller. If Buyer fails to make payment in accordance with these terms and conditions, or otherwise fails to comply with any provision hereof, Seller may, at its option (and in addition to other remedies), cancel any unshipped portion of an order, and in such event, Buyer will remain liable for all unpaid amounts due to Seller.
13. Method of Shipment. Seller will use all reasonable efforts to comply with Buyer’s requests as to method of shipment, but Seller reserves the right to use an alternate method of transportation or route of shipment as circumstances may, in Seller’s sole discretion, warrant same. On any such occasion, Seller will notify Buyer of any such change as soon as reasonably possible.
14. Return of Goods. Goods cannot be returned, and orders once accepted cannot be canceled, without Seller’s prior consent in writing or by electronic record signed by an officer of Seller and with a return authorization number. All permitted returns must be accompanied by copies of the order, the invoice, and a return merchandise authorization from Seller. All returns are subject to a 25% restocking fee and all goods returned must be received by Seller with the original packing materials and cartons in like-new, re-sellable condition. All returns are subject to in-house credit only.
15. Confidentiality. Any proposals, pricing, prints, brochures, drawings, and other information furnished by Seller to Buyer are intended for the confidential use by Buyer and Buyer alone, shall remain the property of Seller, and shall not be disclosed or used by Buyer to the actual or potential detriment of Seller’s competitive position.
16. Exclusions. All of Seller’s drawings, descriptive matter, weights, dimensions, descriptions and illustrations contained in the Seller’s catalogues, price lists, or advertisements are approximations only and are intended merely to give a general idea of the goods described therein and shall not form part of these terms and conditions.
17. Modified Goods. Because Seller is continually changing and improving the products it carries, Seller may, at any time, withdraw any product from its current product offerings, and Buyer agrees to accept any substitution in fulfillment of Buyer’s order.
18. Waiver. Waiver by Seller of any breach of these terms and conditions shall not be construed as a waiver of any other breach, and failure to exercise any right arising from any default hereunder shall not be deemed a waiver of such right which may be exercised at any subsequent time.
19. Severability. In the event that any one or more of these terms or conditions is held invalid, illegal or unenforceable, such provision or provisions shall be severed and the remaining terms and conditions shall remain binding and effective.
20. Controlling Law/Legal Proceedings/Waiver of Right to Trial by Jury. These terms and conditions and all rights and obligations hereunder, including matters of construction, validity and performance, shall be governed by the internal laws of the State of Illinois, including the Uniform Commercial Code as enacted in that jurisdiction, without giving effect to the principles of conflicts of law thereof. The exclusive jurisdiction and venue for any legal proceedings for the resolution of disputes arising under or in connection with these terms and conditions, or any other dispute between and among Seller and Buyer, shall be in the federal or state courts of and for DuPage County, Illinois, U.S.A. The Buyer irrevocably consents to such courts’ exercise of personal jurisdiction over it for such purposes. SELLER AND BUYER WAIVE THEIR RIGHT, IF ANY, TO A TRIAL BY JURY IN ANY SUCH PROCEEDING.
21. Non-Assignment By Buyer. These terms and conditions shall be binding on the successors and assigns of the parties, but Buyer may not assign, transfer, or delegate its rights or obligations under these terms and conditions without Seller’s prior express written consent.
22. Rights and Remedies Not Exclusive. No right or remedy conferred upon or reserved to Seller by these terms and conditions shall be exclusive of any other right or remedy herein or by contract or law; provided, all rights or remedies conferred upon Seller by these terms and conditions and by law shall be cumulative and in addition to any other rights or remedies available to Seller.
23. Collection Costs. In the event of any default on the part of Buyer hereunder, Buyer shall pay any and all collection costs, including reasonable attorneys’ fees incurred by Seller in securing Buyer’s performance hereunder.
Revised September 12, 2024
