Terms and Conditions | Wyoming Machinery Company
 
 

Terms and Conditions


Effective 5-15-23 The following outlines the terms and conditions for the sale of Parts (the “Terms and Conditions”) from Wyoming Machinery Company. and its subsidiaries


1. Agreement. Unless otherwise agreed in a written document signed by a vice president or officer of Wyoming Machinery Company, these Terms and Conditions of Sales and Service (“Terms”) govern the purchase of goods (including, but not limited to, new and used equipment, trucks, attachments, components, technology, and parts) (“Goods”) and services (“Services”) from Wyoming Machinery Company by any individual or entity that purchases such Goods or Services from Wyoming Machinery Company (“Customer”). The placing of an order with Wyoming Machinery Company, the completion of an online transaction with Wyoming Machinery Company, Customer’s acceptance of any quote, proposal, or other document issued by Wyoming Machinery Company with respect to the Goods or Services, or the receipt or acceptance of Goods or Services by Customer constitutes Customer’s acceptance of these Terms exactly as written. Wyoming Machinery Company hereby rejects the terms of any purchase order or other document submitted by Customer, unless the document is signed by a vice president or officer of Wyoming Machinery Company. The supply of Goods or Services by Wyoming Machinery Company to Customer shall not constitute acceptance by Wyoming Machinery Company of the terms of any purchase order or other document submitted by Customer.


2. Order and Delivery of Goods or Services. All orders for Goods and/or Services are subject to credit approval and final acceptance/order fulfillment by Wyoming Machinery Company in its sole discretion. Customer shall have no right to cancel purchase orders for Goods once a purchase order is issued to Wyoming Machinery Company without Wyoming Machinery Company’s approval, nor shall Customer have the right to cancel an online purchase once the order is placed. Some parts may be returnable to Wyoming Machinery Company in accordance with Wyoming Machinery Company’s then current parts return policy. Customer acknowledges that estimated delivery dates for Goods are estimates only; actual delivery dates depend on a variety of factors, including, but not limited to, the production schedules of manufacturers. Wyoming Machinery Company will use commercially reasonable efforts to meet estimated delivery dates and shall keep Customer advised of the status of its delivery, but Wyoming Machinery Company shall have no liability for any loss associated with delay in the delivery of Goods. In addition, Wyoming Machinery Company shall have no liability for any delay in performance of Services or delivery of Goods caused by any circumstances beyond its reasonable control, including, but not limited to, delays caused by acts of God, acts of war or terrorism, fire or other casualty, storms or adverse weather, epidemics, strikes, labor shortages or disturbances, shortages of materials, restraints or delays affecting carriers, manufacturer delays, theft or vandalism, transport and handling accidents, or revisions to laws, regulations or governmental requirements.


3. Pricing. Unless otherwise specified by Wyoming Machinery Company, the price for new parts shall be Wyoming Machinery Company’s list price for such parts on the date the parts are ordered (For online orders, the price will be the price on the website at the time your order is placed); the price for a new machine shall be Wyoming Machinery Company’s list price for such machine on the date the machine ships from the factory; and the labor rates for Services shall be Wyoming Machinery Company’s standard labor rates for the applicable type of Service (field rates, shop rates, mine rates, or specialty rates, as applicable) in effect at the time the Services are performed. Pricing for future orders is subject to change without notice. Customer will promptly pay to Wyoming Machinery Company any taxes that Wyoming Machinery Company is required to collect with respect to the purchase of Goods and/or Services, including, but not limited to, value added, personal property, sales, use and similar taxes (“Taxes”). For any Taxes from which Customer claims exemption, Customer shall provide Wyoming Machinery Company with properly completed exemption certificates and any documentation needed to validate the exemption prior to the purchase of the applicable Goods and/or Services. If Customer fails to provide an appropriate exemption certificate and supporting documentation, as determined by Wyoming Machinery Company, Customer will remain liable for all such Taxes and will indemnify Wyoming Machinery Company for any liability related to the same. Title to purchased Goods shall pass to Customer upon taking delivery of the Goods. Risk of loss for purchased Goods is FOB Wyoming Machinery Company’s site, unless purchased Goods are shipped to Customer directly from the manufacturer, in which case risk of loss is FOB factory.Any claims for shortages, damages, or delays in shipping must be made by Customer directly to the carrier.


4. Payment Terms. For Customers with an open credit account with Wyoming Machinery Company who are purchasing pursuant to such open credit account, machine sales payments are due Net 10, and all other payments are due Net 30. For Customers who do not have an open credit account with Wyoming Machinery Company, payment is due either in advance or upon delivery of Goods or completion of Services. For Customers who are purchasing Goods or Services online, payment may be made by credit card at the time of purchase or as otherwise specified by Wyoming Machinery Company from time to time. Wyoming Machinery Company may, in its sole discretion, at any time: (a) revoke credit; (b) modify terms and conditions of credit; (c) require payment in advance; and/or (d) withhold Goods, completed Services or scheduled Services until receipt of payment. Any invoice not paid by 30 days from date of purchase will be past due and a financial charge will be computed by a single periodic rate of 1.5% per month which is an APR of 18%.  It is agreed that on any account placed in the hands of an attorney for collection of, if collected through suit, probate, or bankruptcy proceedings, there will be paid in addition to all other charges by Customer, a reasonable attorneys fee and court costs incurred in collecting said account.  Customer understands and agrees that the extension of any account accommodations may be terminated at any time for any reason whatsoever by Wyoming Machinery Company in its sole discretion.  Such reasons may not necessarily relate to the financial or credit worthiness of the Customer.  In addition to any other right of set-off or recoupment Wyoming Machinery Company has under applicable law, Customer agrees that, with respect to any amounts due from Customer or Customer's affiliates to Wyoming Machinery Company or Wyoming Machinery Company‘s affiliates, Wyoming Machinery Company and its affiliates may set-off such amounts against any amounts owing to Customer or Customer's affiliates. If Customer requests customization of equipment, Customer agrees to pay all parts and labor costs Wyoming Machinery Company incurs in customizing the equipment, regardless of whether or not Customer completes the purchase of the customized equipment.  Any equipment not picked up by Customer within ten (10) business days after completion of services may be subject to storage charges until the equipment is retrieved.  To the extent permitted by applicable law, Wyoming Machinery Company reserves the right to place a lien on the equipment and may sell Customer’s equipment if such equipment remains in Wyoming Machinery Company’s possession after 30 days and any amounts owed remain unpaid.


5. Warranties.

(a) New Goods. If Customer is purchasing new Goods from Wyoming Machinery Company, Customer acknowledges that (i) Wyoming Machinery Company is not the manufacturer of the Goods; (ii) if the Goods include a manufacturer’s warranty, Wyoming Machinery Company 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, exclusions, and exclusive remedies set forth therein. In certain circumstances, Customer may have the option of purchasing an equipment protection plan or extended service coverage (each, an “Extended Protection Product”); if such an Extended Protection Product is available and is purchased by Customer at the time of sale, the Extended Protection Product will be subject to all conditions and exclusions included in such Extended Protection Product.

(b) Used Goods. If Customer is purchasing used Goods from Wyoming Machinery Company, Customer acknowledges that no warranties exist and the goods are sold as is with no warranties expressed or implied.

(c) Services. If Customer is purchasing Services from Wyoming Machinery Company, Wyoming Machinery Company warrants that its Services will be completed in a good and workmanlike manner, with such service warranty extending for a period of twelve (12) months from completion of the original Services per the applicable Wyoming Machinery Company Service Warranty. In the event of a breach of the foregoing service warranty, Wyoming Machinery Company shall, in its sole discretion use commercially reasonable efforts to cure such breach.  Repairs made under this warranty do not extend this warranty.  The foregoing remedies shall be Customer’s sole and exclusive remedies for any breach of Wyoming Machinery Company’s service warranty. If Wyoming Machinery Company performs a repair pursuant to its service warranty, the warranty period remains twelve (12) months from completion of the original Services; the twelve (12) month service warranty period does not start over with the repair. If the replacement parts used by Wyoming Machinery Company in connection with the provision of Services include a manufacturer's warranty, Wyoming Machinery Company will pass such warranty through to Customer to the extent permitted by the terms of the manufacturer’s warranty. Wyoming Machinery Company’s service warranty will be voided in the event of any of the following: misuse or abuse of Goods by Customer, subsequent repairs performed by Customer or vendors other than Wyoming Machinery Company, use beyond ordinary wear and tear, failure to maintain and operate Goods in accordance with the maintenance and operations manual of the manufacturer (including, but not limited to, use of fluids that do not meet the manufacturer’s standards or failure to maintain fluid levels recommended by the manufacturer) or damage due to theft, vandalism or casualty.

(d) WARRANTY DISCLAIMER. Except for the express warranties set forth in this Section 5, Wyoming Machinery Company makes no warranty, express or implied, oral or written, with respect to any Goods or Services, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, or title, whether arising by law, course of dealing, usage or trade, or otherwise. To the maximum extent permitted by law, all such warranties are hereby disclaimed by Wyoming Machinery Company and waived by Customer. Notwithstanding anything herein to the contrary, Wyoming Machinery Company makes no representations and warranties related to, and none of the warranties set forth in this Section 5 shall apply to, fire suppression systems or the installation, removal, maintenance, or servicing of the same.


6. Indemnification. Each party agrees to defend, indemnify, and hold harmless the other party for, from and against any third party claims related to the Goods or Services to the extent such third party claims (including, but not limited to claims related to the death or injury of any person(s) or damage to or destruction of any real or personal property) are caused by the indemnifying party’s negligent or more culpable acts or omissions, subject to the limitations set forth in Section 7 below. To the fullest extent permitted by law, Customer agrees to defend, indemnify, and hold harmless Wyoming Machinery Company, its affiliates and subsidiaries, and all of their respective owners, directors, officers, managers, employees, agents, and representatives for, from and against any and all liabilities, claims, actions, suits, damages, losses, and expenses (including, but not limited to, reasonable attorneys’ fees, expert witness fees, costs and expenses) that are caused by, arising from or related in any way to fire suppression systems (including, but not limited to losses related to the death or injury of any person(s) or damage to or destruction of any real or personal property).


7. Liability Limitation. In no event shall either party be liable, whether based in contract, warranty, indemnity, tort, strict liability, or any other theory of law or equity, for any special, incidental, indirect, punitive, exemplary or consequential damages, including, but not limited to, lost profits, loss of use of property or equipment, downtime, loss of third party contracts, or lost production, regardless of whether or not such party was advised of the possibility of such damages. In addition, Wyoming Machinery Company's maximum aggregate liability (whether in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity) for damages or loss, howsoever arising or caused, shall in no event exceed the amount Customer paid to Wyoming Machinery Company for the Goods or Services to which the liability relates. The parties recognize that the pricing associated with Goods and Services reflects this allocation of risk and is the basis of the bargain between the parties. The foregoing limitations shall be valid and enforceable, notwithstanding any alleged failure of essential purpose of the limited remedies set forth herein.


8. Privacy Statement. Customer consents to the collection, use, retention and disclosure of information by Wyoming Machinery Company and its parent, subsidiary and affiliated entities (collectively, “Wyoming Machinery Company Entities”) in accordance with Wyoming Machinery Company’s Privacy Statement, which is posted at Privacy Policy (as such statement may be revised from time to time), and agrees that such information may be accessed by the Wyoming Machinery Company Entities and their partners and manufacturers with a legitimate business reason to access it, as well as third parties who may process such information on their behalf.


9. Product Information. If Caterpillar equipment that is purchased, owned or rented by Customer is equipped with Product Link or other equipment monitoring technology, data concerning the equipment, its condition and its operation (“Telematics Information”) is being transmitted to Caterpillar, its affiliates, the Wyoming Machinery Company Entities and/or other Caterpillar dealers to better serve Customer and to improve Caterpillar products and services. Telematics Information being transmitted may include machine serial number, machine location, and other machine data including, but not limited to, fault codes, emissions data, fuel usage, service meter hours, software and hardware version numbers and installed attachments. The Telematics Information will be collected, used, retained and disclosed in accordance with the Caterpillar Data Governance Statement, which is posted at https://www.caterpillar.com/en/legal-notices/data-governance-statement.html  (as such statement may be revised from time to time) (“Statement”). Customer consents to the collection, use, retention and disclosure of the Telematics Information in accordance with the Statement and agrees that the Telematics Information may be accessed by Caterpillar, its partners, its affiliates, its subsidiaries, the Wyoming Machinery Company Entities and/or other dealers with a legitimate business reason to access it, as well as third parties who may process the Telematics Information on their behalf. As set forth in the Statement, Caterpillar may use Telematics Information in combination with information about Customer. Customer further acknowledges and agrees that Telematics Information may be made available to subsequent owners of equipment. If Customer does not want Telematics Information transmitted as described above, Customer can request documentation to opt out of the transmission of such information by sending an email to marketing@wyomingcat.com.


10. Choice of Law; Waiver of Jury Trial. These Terms shall be governed by and construed in accordance with the laws of the State of Wyoming without giving effect to conflict of law provisions. The parties agree that exclusive jurisdiction and venue for any proceeding at law or in equity will be in the state or federal courts located in Natrona County, Wyoming. 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 the purchase of Goods or Services from Wyoming Machinery Company (including, but not limited to, contract, tort, breach of duty, and all other common law and statutory claims). Each party (a) understands that this is a waiver of an important legal right, and (b) acknowledges having had a reasonable opportunity to discuss this waiver and its effects with legal counsel.


11. General Provisions. Customer may not assign Customer’s rights or obligations hereunder without Wyoming Machinery Company's prior written consent, and any such attempted assignment will be void. No amendment or modification of these Terms shall be effective unless it is set forth in a written document signed by a office of Wyoming Machinery Company. If any provision in these Terms is found to be invalid, unlawful or unenforceable, the remaining provisions in these Terms shall remain in full force and effect. A party’s waiver of any breach will not constitute a waiver of any different or subsequent breach. No employment, agency, joint venture, or similar arrangement is created or intended between Customer and Wyoming Machinery Company. Any rule of construction requiring that ambiguities be resolved against the drafting party shall not apply to the interpretation of these Terms. Wyoming Machinery Company retains ownership of all records relating to Goods and Services provided to Customer (“Records”) and may disclose the Records pursuant to a court order or in the event disclosure of the Records becomes part of Wyoming Machinery Company’s defense in a legal matter. Wyoming Machinery Company is an EEO/Affirmative Action Employer. Customer warrants that the invoiced Goods or Services will be used for business or agricultural purposes and not for personal, family or household purposes.