Terms, Conditions, Disclaimers & Limitations
1. DISCLAIMER.
WearPartSolutions.com (the “Website”) is a website owned by Crushing Mechanics LLC. Crushing Mechanics LLC sells aftermarket parts and accessories for heavy equipment. We are not associated with the manufacturers of the original equipment for which we sell parts/accessories. We only use the original manufacturers’ product names, model/part numbers, and product details so that you can identify compatible aftermarket parts/accessories, and NOT to represent or imply that the aftermarket parts/accessories that we sell are products approved or manufactured by the Original Equipment Manufacturer. All trademarks associated with original equipment are property of their respective owners including AHWI®, Ballantine®, Bobcat®, Caterpillar®, Denis Cimaf®, FAE®, Fecon®, Gyro-Trac®, Ironwolf®, Prinoth®, Loftness®, Merrichrusher®, MTW®, Plaisance®, Quadco®, Seppi®, Suokone®, TMC Cancela®, ect.. All products are intended and sold for aftermarket use. Contact the manufacturer of your equipment and check your warranty regarding installation and use of aftermarket parts or accessories not supplied by the manufacturer prior to purchase. Crushing Mechanics, LLC / WearPartSolutions.com are not responsible for any changes in warranties that may occur.
2. TERMS AND CONDITIONS.
These North American Terms and Conditions of Sale (“Terms”) apply to the purchase of products and ancillary services (collectively the “Products”) by Crushing Mechanics, LLC and WearPartSolutions.com (“CM/WPS”) and the buyer (“Buyer”), each of which is identified in the accompanying quotation, proposal, order acknowledgement, or invoice (“Sales Confirmation”). These Terms and the Sales Confirmation comprise the entire agreement between the parties (collectively, the “Agreement”). Buyer accepts these Terms by signing and returning CM/WPS quotation, by sending a purchase order in response to the quotation, or by Buyer’s instructions to CM/WPS to ship the Products, or by placing an order through the Website. No terms or conditions other than those identified in the quotation or on the Website and no agreement or understanding, oral or written, in any way purporting to modify the terms and conditions whether contained in Buyer’s purchase order or shipping release forms, or elsewhere, shall be binding on CM/WPS unless hereafter made in writing and signed by CM/WPS authorized representative. Buyer is hereby notified of CM/WPS express rejection of any terms inconsistent with this Agreement or to any other terms proposed by Buyer in accepting CM/WPS quotation. Neither CM/WPS subsequent lack of objection to any terms, nor the delivery of the Products , shall constitute an agreement by CM/WPS to any terms.
3. CANCELLATION.
Cancellation or modifications of all or part of any order are subject to CM/WPS prior written consent in each instance. If cancellation or modification is allowed, Buyer agrees to pay to CM/WPS all expenses incurred and damage sustained by CM/WPS on account of the cancellation or modification.
4. PRICE.
Prices on accepted orders are firm for a period of 90 days from date of acceptance. All stated prices are exclusive of any taxes, fees, duties, and levies, however designated or imposed, including but not limited to value - added and withholding taxes that are levied or based upon the amounts paid under this Agreement (collectively “Taxes”). Any Taxes related to the Products purchased pursuant to this Agreement are the responsibility of Buyer (excluding taxes based on CM/WPS net income), unless Buyer presents an exemption certificate acceptable to CM/WPS and the applicable taxing authorities. If possible, CM/WPS will bill Taxes as a separate item on the invoice presented to Buyer. If any exemption certificate presented by Buyer is held to be invalid, then Buyer will pay CM/WPS the amount of the Tax and any penalties and interest related thereto.
5. PAYMENT.
Unless otherwise set forth in the Sales Confirmation, Buyer will pay all invoiced amounts at time of sale. Unpaid amounts will accrue interest at the maximum rate permitted by applicable law, from due date until paid, plus CM/WPS reasonable costs of collection. CM/WPS reserves all other rights granted to a CM/WPS under the Uniform Commercial Code (“UCC”), federal law, and Minnesota law for Buyer’s failure to pay for the Products or any other breach by Buyer of these Terms. In addition to all other remedies available to CM/WPS (which CM/WPS does not waive by the exercise of any rights hereunder), CM/WPS may suspend the delivery of any Products if Buyer fails to pay any amounts when due and the failure continues for five (5) days following Buyer’s receipt of notice thereof. Buyer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with CM/WPS, regardless of whether relating to CM/WPS breach, bankruptcy, or otherwise.
6. DELIVERY- SHIPPING.
(a) CM/WPS will deliver the Products within a reasonable time after receiving Buyer’s purchase order, subject to their availability. The delivery date provided by CM/WPS for the Products is only an estimate and is based upon prompt receipt of all necessary information from Buyer. If Buyer causes CM/WPS to delay shipment or completion of the Products, CM/WPS will be entitled to any and all extra costs and expenses resulting from the delay. CM/WPS will not be liable for any delays, loss, or damage in transit, and failure to deliver within the time estimated will not be a material breach of contract on CM/WPS part.
(b) Unless otherwise agreed in writing by the parties, CM/WPS will deliver the Products, at the location specified in the Sales Confirmation (the “Delivery Location”), using CM/WPS standard methods for packaging and shipping same. Buyer will take delivery of the Products within three (3) days of CM/WPS notice that the Products have been delivered to the Delivery Location. If Buyer fails to take delivery of the Products within this three (3) day period Buyer will pay CM/WPS for the Products and all storage expenses incurred by CM/WPS. CM/WPS may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer will pay for the units shipped whether the shipment is in whole or partial fulfillment of Buyer’s purchase order. Buyer is responsible for obtaining any import licenses and other consents required for a Product shipment at its own expense and will provide the licenses and consents to CM/WPS before shipment.
(c) The quantity of any installment of the Products, as recorded by CM/WPS on the dispatch from CM/WPS place of business, is conclusive evidence of the quantity received by Buyer upon delivery, unless Buyer provides conclusive evidence to the contrary. CM/WPS will not be liable for any non-delivery of the Products to the Delivery Location, unless Buyer gives written notice to CM/WPS of the non-delivery within five (5) days following the date that Buyer would, in the ordinary course of business, have received the Products. CM/WPS liability for any non-delivery of the Products will be limited to replacing the Products within a reasonable time or adjusting the invoice for the Products to reflect the actual quantity delivered.
7. TITLE - RISK OF LOSS.
(a) Risk of loss or damage passes to Buyer upon delivery to the carrier. If Buyer fails to accept delivery of any of the Products on the date set forth in CM/WPS notice that CM/WPS has delivered the Products to the Delivery Location, or if CM/WPS is unable to deliver the Products to the Delivery Location on the date because Buyer has failed to provide appropriate instructions, documents, licenses, or authorizations, then: (i) risk of loss to the Products will pass to Buyer; (ii) the Products will be deemed to have been delivered to Buyer; and (iii) CM/WPS, at its option, may store the Products until Buyer takes possession of them, at which time Buyer will be liable for all costs and expenses resulting from the failure (including, but not limited to, the cost of storage and insurance).
(b) Title passes to Buyer upon Buyer’s payment in full for the Products.
8. INSPECTION; REJECTION OF PRODUCTS.
(a) As used in this Section 8, “Nonconforming Products” means only the following: (i) the items shipped are different from those identified in Buyer’s purchase order; or (ii) the labels or packaging of the items incorrectly identifies them. Buyer will inspect the Products within five (5) days following receipt thereof (the “Inspection Period”). The Products will be deemed accepted at the end of the Inspection Period unless Buyer notifies CM/WPS in writing of any Nonconforming Products and furnishes CM/WPS with written evidence or other documentation reasonable required by CM/WPS.
(b) If Buyer timely and properly notifies CM/WPS of any Nonconforming Products, then CM/WPS will, in its sole discretion, (i) replace the Nonconforming Products with conforming Products, or (ii) credit or refund the purchase price for the Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer. At CM/WPS request, Buyer will dispose of the Nonconforming Products or return the Nonconforming Products to CM/WPS at CM/WPS’ expense. Upon receipt of the Nonconforming Products, CM/WPS will promptly refund the monies owed or ship the replacement Products to the Delivery Location at CM/WPS’ expense, with CM/WPS retaining the risk of loss until delivery
(c) Buyer acknowledges and agrees that the remedies set forth in this Section 8 are Buyer’s exclusive remedies for the delivery of Nonconforming Products, and except as set forth in this Section 8, Buyer has no right to return the Products to CM/WPS without CM/WPS written authorization.
9. WARRANTY AND LIABILITIES.
CM/WPS does not warrant the Products or replacement parts sold on this site. The sole warranties that may apply to the Products are specified and granted by the manufacturers of the Products.
WEAR PART SOLUTIONS AND CRUSHING MECHANICS LLC SPECIFICALLY DISCLAIM AND EXCLUDE ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OTHER THAN THE MANUFACTURERS’ WARRANTIES THAT MAY APPLY WITH REGARD TO PRODUCTS, SERVICES, INSTALLATION, OR TRAINING, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE OR ANY OTHER MATTER. PRODUCTS, SERVICES, INSTALLATION, OR TRAINING ARE PROVIDED BY WEAR PART SOLUTIONS AND CRUSHING MECHANICS LLC “AS IS” AND THIRD-PARTY WARRANTIES, SERVICES, AND SUPPORT, IF ANY, ARE PROVIDED BY THE ORIGINAL MANUFACTURER OR SUPPLIER, NOT WEAR PART SOLUTIONS OR CRUSHING MECHANICS LLC. ADDITIONAL THIRD PARTY TERMS AND CONDITIONS MAY APPLY AND ARE AVAILABLE ON REQUEST.
10. CHANGES.
CM/WPS reserves the right to alter, modify, or redesign any Products without any obligation to replace previous shipments to Buyer.
11. NO LICENSE.
(a) Except as provided in Section 16(b), the sale of the Products will not confer upon Buyer any license, express or implied, under any patents, trademarks, trade names, or other proprietary rights owned or controlled by CM/WPS, its subsidiaries, affiliates, or suppliers; it being specifically understood and agreed that all the rights are reserved to CM/WPS, its subsidiaries, affiliates, or suppliers. Without limiting the foregoing, Buyer will not, without CM/WPS’ prior written consent, use any trademark or trade name of CM/WPS in connection with any the Products, other than with respect to the resale of the Products pre-marked or packaged by or on behalf of CM/WPS.
12. TERMINATION.
In addition to any other remedies that CM/WPS may have, CM/WPS may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and the failure continues for five (5) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) 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.
13. CONFIDENTIALITY.
All non-public, confidential, or proprietary information of CM/WPS , including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, that CM/WPS discloses to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with the Agreement is confidential, solely for the use of performing the Agreement, and may not be disclosed or copied unless authorized in advance by CM/WPS in writing. Upon CM/WPS request, Buyer will promptly return all documents and other materials received from CM/WPS. CM/WPS will be entitled to injunctive relief for any violation of this Section 13, without having to post bond or establish the insufficiency of a remedy at law. This Section 13 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by CM/WPS on a non-confidential basis from a third party.
14. FORCE MAJEURE.
CM/WPS will not be liable for any failures or delays caused by strikes, differences with workers, or any causes beyond the reasonable control of CM/WPS, including but not limited to fires, floods, accidents, action of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, or transportation. Where delays or failures are caused by labor difficulties, CM/WPS not be obligated to seek or obtain any settlement that, in CM/WPS sole judgment, is not in its best interest.
15. COMPLIANCE.
Each party will comply with all applicable laws, regulations, and ordinances, and Buyer will comply with the export and import laws and regulations in effect as of the date of shipment of the Products of any country involved in the transactions contemplated by the Agreement.
16. GOVERNING LAW; VENUE; DISPUTE RESOLUTION.
(a) All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule (whether of the State of Minnesota or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Minnesota. Any legal suit, action, or proceeding arising out of or relating to these Terms will be instituted in the state district courts located in the Sixth Judicial District, State of Minnesota. Each party irrevocably submits to the exclusive jurisdiction of the state district courts located in the Sixth Judicial District, State of Minnesota in any suit, action, or proceeding.
(b) CM/WPS will have the sole and exclusive right to determine whether any dispute, controversy, or claim arising out of or relating to the Agreement, or the breach thereof, will be submitted to a court of law or arbitrated. The venue for any arbitration will be in Minnesota. The arbitrator’s award may be confirmed and reduced to judgment in any court of competent jurisdiction. In the event the matter is submitted to a court, CM/WPS and Buyer hereby agree to waive their right to trial by jury and covenant that neither of them will request trial by jury in any the litigation.
17. CHOICE OF LANGUAGE.
It is by the express intention of the parties hereto that the present Agreement and all its related documents be drafted in English.
18. SURVIVAL.
In addition to any other term whose context may so require, the Terms will survive any cancellation of the purchase order.
19. MISCELLANEOUS.
Buyer acknowledges that is has not been induced to purchase any the Products from CM/WPS by any representation or warranty not expressly set forth in this Agreement. These Terms and the Sales Confirmation constitute the entire agreement of the parties and supersede all existing agreements and all other oral or written communications between them concerning its subject matter. None of the Terms may be added to, modified, superseded, or otherwise altered, except by a written document signed by an authorized representative of CM/WPS that specifically references these Terms and states that it modifies them. If there is a conflict between the provisions of the Sales Confirmation and these Terms, the terms of the Sales Confirmation will govern. No waiver by CM/WPS of any of the provisions of these Terms is effective unless explicitly set forth in writing that specifically references these Terms and is signed by CM/WPS. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The Section headings contained in these Terms are for convenience only and will not affect the interpretation of any provision. If any provision of this Agreement is held to be prohibited or unenforceable, the provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Buyer will not assign any quotation or accepted order for the Products, in whole or in part, without CM/WPS’ prior written consent.