PARTS WARRANTY, Terms of Sale

The following outlines the Terms of Sale for the sale of Parts (the “Terms of Sale”) from Wagner  Equipment Co. (hereinafter “Wagner”):  

FORMATION OF CONTRACT. Customer makes a binding offer to purchase the Parts described in  an order submitted 1) through Wagner’s website at https://parts.cat.com/en/wagnerequipment; or  2) by fax, email, or other contact with Wagner’s Parts Department (the “Order”) using the  procedures described in such website and under these Terms of Sale. Except as otherwise  specified herein, Wagner accepts Customer’s offer at the earlier of when (a) Wagner sends  Customer a written acceptance (by e-mail, fax, or otherwise), (b) Wagner ships Customer’s Order,  or (c) Wagner accepts by the signature of its Parts Manager. You have the option to cancel or  modify your order at any time before the applicable Order Confirmation is sent by calling Wagner’s  Parts Department at 303-739-3000. Notwithstanding anything else to the contrary, Wagner  reserves the right, at their respective sole discretion, to cancel or refuse any order at any stage of  the ordering process, including at any time up until the Shipping Confirmation has been sent.  Wagner reserves the right to screen you and your order for, among other things, compliance with  applicable law and Wagner policies. Wagner’s acceptance and this agreement is conditioned on  Wagner’s on-going determination that Customer and this agreement comply with all applicable  laws and regulations. Wagner reserves the right to make partial shipment of one or more Parts  contained in the Order, and unless otherwise specified in Wagner’s written acceptance, partial  shipment of an Order shall be acceptance of only that portion of an Order. For Parts not currently  in Wagner’s inventory, Wagner may place such Parts on backorder and notify Customer of such  status, unless such Parts will be in Wagner’s inventory within thirty (30) days. Notwithstanding the  foregoing, acceptance is strictly limited to the Terms of Sale in this agreement. These Terms of  Sale will apply to Wagner’s invoice into which these Terms of Sale are incorporated. Wagner  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 Wagner or arising out of course of dealing or usage in  the trade, unless such provision is expressly agreed to by Wagner in a writing signed by Wagner.  Customer’s commencement of performance shall in all cases constitute Customer’s unqualified  and unconditional acceptance of these Terms of Sale and Wagner’s invoice. The terms and  conditions contained in any Credit Agreement or Application are likewise incorporated by this  reference and placement of an order by Customer does not obligate Wagner to extend credit to  Customer for the Order.

  1. SHIPMENT, TITLE AND RISK OF LOSS. Parts shall be delivered via carrier determined by Wagner Equipment to Wagner’s facility or Wagner Dropbox. From Wagner facilities, customer shall select the carrier and mode of transportation. Customer shall be  responsible for costs of insurance and transportation and for all taxes, or other  expenses incurred, or licenses or clearance required at any destination. Unless  expressly stated in writing by Wagner, all shipment and delivery dates are estimates.  Title and Risk of loss or damage to the Parts sold shall pass to Customer upon delivery  to Customer or a carrier at a Wagner facility or Wagner Dropbox, as applicable.
  2. ACCEPTANCE AND REJECTION. Customer’s irrevocable acceptance of the Parts shall  be conclusively presumed unless Customer gives written notice of a defect within five  (5) days after receipt as it pertains to quantity and/or part number. If Wagner delivers  non-conforming Parts, Wagner will at its option and at Wagner’s expense promptly  correct or replace the Part(s). If Customer desires to return a part for convenience,  please see Wagner’s Parts Return Policy for eligibility and Terms of Sale at the end of  these Terms of Sale.
  3. WARRANTY. Wagner is not the manufacturer of the Parts. All Parts provided by Wagner  are provided with only those written warranties made by the manufacturer(s) of the  Parts and are subject to any limitations or exclusions provided by such  manufacturer(s).WAGNER MAKES NO REPRESENTATIONS OR WARRANTIES  CONCERNING THE PARTS OR CUSTOMER’S USE THEREOF OR FITNESS OF SAID PARTS.  CUSTOMER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL WARRANTIES,  OBLIGATIONS AND LIABILITIES OF WAGNER AND ALL OTHER RIGHTS, CLAIMS AND  REMEDIES AGAINST WAGNER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE,  INCLUDING BUT NOT LIMITED TO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT  TO ANY NON-CONFORMANCE OR DEFECT IN ANY PARTS PROVIDED UNDER THIS  AGREEMENT, AND INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF  MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE; ANY IMPLIED WARRANTY  ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF  TRADE; OR ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER  OR NOT ARISING FROM THE NEGLIGENCE OF WAGNER.  
  4. LIMITATIONS AND WAIVER OF CONSEQUENTIAL DAMAGES. WAGNER WILL HAVE NO OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY) OR IN TORT, AND WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF WAGNER, OR  OTHERWISE, FOR DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT (INCLUDING, BUT  NOT LIMITED TO, ANY LOSS OF USE, REVENUE OR PROFIT BY CUSTOMER OR ANY  CUSTOMER), OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH  RESPECT TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY NON CONFORMANCE OR DEFECT IN ANY PARTS PROVIDED UNDER THIS AGREEMENT, ANY  NON-DELIVERY, ANY DELAY IN DELIVERY OR DELAY IN PERFORMANCE. WITHOUT  LIMITING THE FOREGOING, WAGNER’S MAXIMUM LIABILITY HEREUNDER WILL NOT  EXCEED THE AMOUNT ACTUALLY PAID TO WAGNER FOR THE PART(S) SUBJECT TO  THE CLAIM. THE PARTIES AGREE THIS PROVISION SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT. No action may be maintained by Customer unless  written notice of the claim is delivered to Wagner within thirty (30) days after the event  subject to the claim first becomes known to Customer, but in no case may Customer  maintain an action unless it is brought within one (1) year after the cause of action  accrues. This provision is not intended to extend any Statutes of Limitation or Repose.
  5. TAXES. Customer is liable for and shall pay all taxes, impositions and charges imposed by any U.S. taxing authority arising out of or in connection with this agreement. “Taxes” are defined as all taxes, fees, charges or duties and any interest, penalties, fines or  other additional tax, including but not limited to sales, use, value added, gross receipts,  stamp, custom, withholding, excise, transfer and similar taxes, or other taxes imposed  in connection with the performance of this agreement, except U.S. federal and state  income taxes imposed on Wagner. Customer will promptly reimburse Wagner on  demand for any Taxes that are imposed on and paid by Wagner or for which Wagner is  responsible for collection in connection with this agreement.  
  6. PRICING AND PAYMENT TERMS. All prices posted on this Site are subject to change without notice. The price charged for a Product will be the price reasonably determined by Wagner to be in effect at the time the order is placed and will be set forth in your Order  Confirmation. Price increases will only apply to orders placed after such increases are shown on  the prices in this Site. 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 your  merchandise total and will be itemized in your shopping cart and in your Order Confirmation.  Payment shall be made in United States Dollars. For Customers with an open credit  account with Wagner or Caterpillar, those applicable payment terms shall apply. For  Customers who do not have an open credit account with Wagner, payment is due upon  order placement or prior to delivery. Wagner may, in its sole discretion, at any time: (a)  revoke credit; (b) modify Terms of Sale of credit; (c) require payment in advance; and/or  (d) withhold Parts, until receipt of payment. If Customer fails to pay for Parts as and  when due, Customer shall pay interest of 1.5% per month of the invoice balance each  month until charges are paid in full, and Customer shall pay Wagner all reasonable  attorneys’ fees and collection costs incurred by Wagner. If Customer pays by credit  card (in Colorado), Wagner in its sole discretion may charge a processing surcharge  (not to exceed 3%) as provided by C.R.S. §5-2-212. In addition to any other right of set off or recoupment Wagner has under applicable law, Customer agrees that, with respect  to any amounts due from Customer or Customer's affiliates to Wagner or Wagner's  affiliates, Wagner and its affiliates may set-off such amounts against any amounts  owing to Customer or Customer's affiliates.  
  7. FORCE MAJEURE. Wagner shall not be liable for delays in performance from causes beyond the reasonable control of Wagner. Examples of these causes include, but are not limited to (a) acts of God or of the public enemy, (b) acts of the Government in  either its sovereign or contractual capacity,  (c) fires, (d) floods, (e) epidemics, (f) quarantine restrictions, (g) strikes, (h) freight  embargoes, (i) unusually severe weather, (j) earthquakes, and (k) inability, after  commercially reasonable diligence, to obtain raw materials. Wagner shall notify  Customer in writing within 10 days after the beginning of any such cause.
  8. GOVERNING LAW AND JURISDICTION. This agreement shall be governed by and construed in accordance with the laws of the state of Colorado except that Colorado’s choice of laws rules shall not be invoked for the purpose of applying the law of another  jurisdiction. Customer irrevocably consents and submits itself exclusively to the  jurisdiction of the applicable courts of the 17th Judicial District (Adams County) of the  state of Colorado and the federal district courts situated in the District of Colorado in  Denver, Colorado for the purpose of any suit, action or other judicial proceeding arising  out of or related to this agreement. The choice of venue in either the state or federal  courts in Colorado shall be in Wagner’s sole and absolute discretion.  
  9. NOTICES. Any noticed required or allowed under this agreement must be in writing and delivered to Wagner at Wagner Equipment Co.; 18000 Smith Road, Aurora, Colorado 80011 Attn: Risk Management Department and to Customer at the address stated in the  Order or the place of delivery of the Parts, or such other address as a party may provide  to the other party by like notice.  
  10. INTERPRETATION. No consideration will be given to the fact or presumption that one party had a greater or lesser hand in drafting this agreement. Neither party has an employee, agent, “borrowed servant,” partner, fiduciary, or other relationship, other than  buyer and seller in a commercial transaction between merchants, and except as  expressly stated herein, neither party has the right to control or direct the other party.  
  11. ENTIRE AGREEMENT. These Terms of Sale and the Order contain the entire agreement of the Parties and supersedes any and all prior understandings and communications between Customer and Wagner related to the subject matter of this agreement, unless  the Parties have previously entered into a written agreement covering Parts sales. When  in conflict, these Terms of Sale control over the Order. No amendment or modification  of this agreement shall bind either party unless it is in writing and is signed by  authorized representatives of Customer and Wagner.  
  12. COMPLIANCE AND IMPORT/EXPORT. In performing the obligations of this agreement, Customer will comply with all applicable statutes and government rules, regulations and orders. Customer understands and agrees that the Parts may not be exported outside of  the United States. Customer agrees to indemnify, defend and hold harmless Wagner  from and against all claims, fees, expenses, fines, duties and other costs levied against  Wagner by any manufacturer of the Parts or any governmental entity if Customer  exports the Parts or if the Parts are exported by any subsequent purchaser.  
  13. WAIVER AND SEVERABILITY. Any failure, delay, or forbearance by Wagner in enforcing any provision of this agreement will not be construed as a waiver or relinquishment of such provision. If any provision of this agreement is or becomes void or unenforceable  by law, the remainder shall be valid and enforceable.  
  14. ASSIGNMENT. This agreement shall not be assignable by Customer without the prior written consent of Wagner.
  15. TERMINATION. Without limiting any other provision of this agreement, Wagner may terminate this agreement for convenience at any time by giving ten (10) days written notice to Customer. Wagner may terminate this agreement for cause and without notice  in the event of (a) Customer’s suspension, dissolution or winding-up of Customer’s  business, (b) Customer’s insolvency, or its inability to pay debts, or its nonpayment of debts, as they become due, (c) the institution of reorganization , liquidation or other  such proceedings by or against Customer or the appointment of a custodian, trustee,  receiver or similar person for Customer’s properties or business, (d) an assignment by  Customer for the benefit of its creditors, (e) any action of Customer for the purpose of  effecting or facilitating any of the foregoing, or (f) unavailability of a Part from the  manufacturer. Customer agrees that Wagner’s rights to terminate this agreement are  reasonable, and that upon termination, Wagner shall not be responsible to Customer  and Customer shall not make any claim against Wagner for any payment or indemnity  for loss of goodwill, loss of profit, investments made, or otherwise and the limitation  and waiver provisions of paragraph 5 above shall apply.
  16. WAIVER OF IMMUNITY. Customer unconditionally and irrevocably agrees that the execution, delivery, and performance of this agreement constitutes private and commercial acts rather than public or governmental acts and agrees that in the event  any legal proceedings are brought against it or its assets in relation to this agreement,  no immunity (sovereign or otherwise) from such legal proceedings shall be claimed by it  or on behalf of it, or with respect to its assets. Customer hereby waives any such rights  or immunity (sovereign or otherwise) which it or its assets now have or may acquire in  the future, to the maximum extent permitted by applicable law.  
  17. ATTORNEYS’ FEES; EXPENSES. In the event Wagner institutes any action to enforce any term or condition of this agreement it shall be entitled to recover its attorney’s fees, costs and expert’s fees, taxes and other cost incurred in so doing. Whether or not any  court action is involved all reasonable expenses incurred by Wagner at any time to  protect its interests or to enforce its rights hereunder shall be paid by the Customer.  Such expenses include, but are not limited to, Wagner’s attorney’s fees incurred in any  action enforcing this agreement or incurred as a result of any bankruptcy or insolvency  proceedings.  
  18. WAIVER OF JURY TRIAL. Customer waives any and all rights it may have to a trial by jury or to the arbitration of any action brought pursuant to this agreement.

 

WAGNER PARTS RETURN POLICY

Parts may be returned for credit subject to the following:

Parts must be: ln new and saleable condition and in their original packing.

  • Accompanied by the original shipping list or invoice.
  • Returnable to our supplier.
  • Not replaced or discontinued.
  • A minimum of $5.00 per extended line-item value on stocked parts.
  • A minimum of $35.00 per extended line-item value on non-stock parts.

Non-returnable parts include but are not limited to:

  • Parts with a '1' in the NR column of the shipping list.
  • Electrical parts. (With the exception of Exchange Cores).
  • Goods cut to length (hose, wire, tubing, etc.).
  • Opened kits (seal kits, gasket kits, etc.).
  • Literature.
  • Glass.
  • 'Made as Ordered' parts.

 

Handling charges for acceptable returns are:

  • Stocked Parts returned within 0-10 calendar days of purchase ........... No charge.
  • Stocked Parts returned within 11-60 calendar days of purchase ....................15%.
  • Stocked Parts returned after 60 calendar days ............................................. 50%.

 

Non-Stock Parts returned within 0-60 calendar days ............................................................ 15%.

Non-Stock Parts returned after 60 calendar days will not be accepted.

Cores for Caterpillar Remanufactured products or Wagner Exchange components must be returned within 30 calendar days or the Core Charge will be subject to forfeiture.