About These Terms & Conditions
These Skye Walls Terms and Conditions constitute a binding contract between WWS Acquisition, LLC dba Western Window Systems (“Western Window Systems”) and its Registered Dealers participating in the Skye Walls by Western residential remodeling program (the “Skye Walls Program”) and shall apply to all products quoted or purchased using a Skye Walls custom profile (“Skye Walls Products”). By requesting a quote, submitting a purchase order, making a payment, or otherwise requesting Skye Walls Products, the Registered Dealer agrees to the terms and conditions set forth herein. No conflicting terms of any other document or communication shall be binding.
All Dealer Quotations for Skye Walls Products will be subject to change unless an order is received within 60 days from the Quotation date and written approval, in the form of a Dealer Acknowledgment, is issued by Western Window Systems. Any further price hold or guarantee must be agreed to in writing by a member of the Skye Walls by Western management team.
What is Included
The Dealer Quotation details what you will receive, the price you will pay, the payment terms, and an estimated shipment date. If, after reviewing the information provided in the Dealer Quotation, you have any questions about what is included, we will be happy to provide you with a further explanation, drawings, or samples.
Lead Time and Shipment Date
The lead times and shipment dates applicable to Skye Walls Products vary by product type and production capacity. Estimated shipment dates are set forth in the applicable Dealer Acknowledgment. Western Window Systems uses commercially reasonable efforts to fill orders in accordance with the estimated shipment date. However, Western Window Systems will not be responsible for any losses or damages resulting from delays and no order shall be subject to cancellation for any failure to meet the estimated lead time or shipment date.
The price you will pay is the total shown on the Dealer Acknowledgement, as modified by any subsequent approved change orders.
Tax Exemption Certificate
A properly completed Transaction Privilege Tax Exemption Certificate, for the state or region you are located in, must be on file with us.
Placing an Order
Orders are not binding upon Western Window Systems until accepted and a Dealer Acknowledgement is issued. The requirements to place an order are set forth below. The following payment terms only apply to Registered Dealers in good standing.
Skye Walls Registered Dealers with a Line of Credit – No deposit required up to the Registered Dealer’s credit limit; only a signed Dealer Quotation is required. Orders exceeding the Registered Dealer’s credit limit may be approved without deposit, in Western Window Systems’ sole discretion.
Skye Walls Registered Dealers with a Limited Line of Credit – 50% deposit and signed Dealer Quotation.
All other Skye Walls Registered Dealers – Payment in full at time of deposit and signed Dealer Quotation.
The following payment terms are only available to Registered Dealers with open lines of credit in good standing.
Invoices on partial and final shipments shall be issued when the Skye Walls Products leave the manufacturing facility. Payment is due in the amount and on the date indicated on the invoice. If applicable, deposit amounts will be applied to each invoice pro rata and any remaining amounts due will be indicated on the invoice.
If you are eligible for an early payment discount, the applicable terms will be reflected on the final invoice. Any early payment discount is applicable to materials only, excluding freight, sales tax, and all other associated costs and will only be applied if the final balance due is received in our office within the number of days set forth in the invoice.
If any payments are more than thirty (30) days overdue, the account will be considered delinquent and subject to a one and a half percent (1 ½%) per month interest charge. If for any reason an invoice remains unpaid for more than forty-five (45) days or other grounds for insecurity arise with respect to a due payment, Western Window Systems may, in its sole discretion, demand different terms of payment or assurance, or stop production on any open orders and hold shipments until the account is brought current.
The Registered Dealer is required to immediately review the Dealer Acknowledgment to ensure it is accurate, complete and consistent with all order specifications. Any changes, modifications, or cancellations must be made within forty-eight (48) hours of receipt of the Dealer Acknowledgment. After forty-eight (48) hours, a new order must be placed and penalties, up to and including the full purchase price, may apply.
Delivery and Acceptance
To the extent Skye Walls Products are shipped, transported, and delivered to the Registered Dealer by third-party carrier, they shall be delivered F.O.B Western Window Systems’ facility, located at 2200 E. Riverview Drive, Phoenix, Arizona 85034 (the “Facility”) and once provided by Western Window Systems to the carrier for transport, the Skye Walls Products shall be deemed to have been delivered and all risk of loss shall transfer to the Registered Dealer. To the extent Skye Walls Products are shipped, transported, and delivered to the Registered Dealer via Western Window Systems’ delivery trucks, they shall be delivered F.O.B. the location requested by the Registered Dealer (and agreed to in writing) and once delivered to such location, the Skye Walls Products shall be deemed to have been delivered and all risk of loss shall transfer to the Registered Dealer. Notwithstanding the foregoing, title to the Skye Walls Products shall not pass to the Registered Dealer until Western Window Systems has received payment in full for such Skye Walls Products and any other Skye Walls Products previously sold to the Registered Dealer.
Upon receipt of a shipment, the Registered Dealer is required to immediately inspect the Skye Walls Products. Any damage, shortages, errors, or other inconsistencies with the Dealer Acknowledgement must be reported to Western Window Systems in writing within forty-eight (48) hours from receipt of the shipment. Failure to make such a claim within such forty-eight (48) hour period will constitute a waiver of all such claims by the Registered Dealer and such failure will constitute acceptance of the Skye Walls Products, as delivered.
No Withholding of Payment
In the event of any dispute between Western Window Systems and the Registered Dealer, the Registered Dealer shall not withhold payment of the purchase price of the Skye Walls Products purchased or any other amount payable to Western Window Systems.
Special Orders refers to any non-standard option request. Western Window Systems’ Special Order validation and pricing process only evaluates Western Window Systems’ ability to build the non-standard specifications requested and the estimated cost of additional materials that may be necessary (such as the cost of steel for additional structural support) based solely on the requested product size and configuration. Western Window Systems does not individually test Special Order options or configurations or undertake any independent evaluation of individual project conditions. Therefore, Western Window Systems’ validation of any Special Order or estimated costs of additional materials is neither advice nor a recommendation, guarantee, warranty, or certification that the Special Order product (or additional quoted materials) will meet the performance criteria of Western Window Systems’ standard options or otherwise be appropriate or suitable for any particular project, design, application, climate, condition, use, or customer need or purpose and should not be relied on or used as a substitute for a comprehensive analysis by a structural engineer or other qualified construction professional. Western Window Systems strongly recommends obtaining an independent suitability evaluation for each project by a qualified professional.
Optional Product Accessories
Western Window Systems does not guarantee, warranty, or certify the use or installation of any optional accessories, parts, add-ons, equipment, supports, pans, caps, screens, safety or panic hardware, or other aftermarket items (whether or not affixed to Western Window Systems’ products and whether or not manufactured by Western Window Systems or other third-parties) (collectively, “Optional Accessories”). The use or installation of such Optional Accessories may damage the fenestration products and negatively impact operation and performance characteristics. Registered Dealers and/or construction professionals who elect to use or install Optional Accessories do so at their own risk and Western Window Systems expressly disclaims all liability for direct, indirect, special, incidental, or consequential damages caused by, resulting from, or connected to the use or installation of Optional Accessories. In addition, use or installation of any Optional Accessories may void Western Window Systems’ limited express warranties to the extent it causes product damage, adversely affects product operation or performance as designed, or violates AAMA standards or applicable building codes.
Registered Dealer Responsibilities
Registered Dealers shall conduct themselves in an honest and professional manner and at no time misrepresent the Skye Walls Program or Western Window Systems’ products, services, or warranties to any third-party. The Registered Dealer also shall not engage in any selling practices that are not sanctioned by Western Window Systems, including, but not limited to, sales practices which are unfair, deceptive, misleading, irresponsible, discriminatory or which unfairly misleads or induces an unwilling customer to make a purchase.
The Registered Dealer is also solely responsible for the following:
The Registered Dealer is solely responsible for all acts or omissions performed by Registered Dealer, its agents, employees, and subcontractors. To the fullest extent permitted by law, Registered Dealer shall, at its sole cost and expense, defend, protect, indemnify, and hold Western Window Systems harmless from and against any and all claims, costs, losses, or damages (including reasonable attorneys’ fees) to the extent arising out of, resulting from, or connected to, the act, conduct, work, or omission of the Registered Dealer, its agents, employees, and subcontractors, including, but not limited to, Product installation, selection of Product specifications, misrepresentations, or suitability determinations.
Western Window Systems is not responsible for determining the suitability of any product for a particular project, design, application, climate, condition, use, or customer need or purpose. Western Window Systems is also not responsible for determining whether the incorporation of its products into a building design will achieve a particular third-party certification or standard as windows and doors are only one factor in the building envelope. Determining such product suitability is the responsibility of the architect, contractor, Registered Dealer, installer, owner, user, and/or other construction professionals. Western Window Systems will also not be responsible for any claims or damage arising from inappropriate selection of products, faulty building design or construction, improper installation, or inaccurate orders.
Western Window Systems does not control the application or selection of its Product configurations, sealant, or glazing materials and assumes no responsibility therefore. It is the responsibility of the architect, contractor, Registered Dealer, installer, owner, user, and/or other construction professionals to make these selections in strict compliance with applicable laws and codes.
Registered Dealers, and their employees, agents, representatives, and subcontractors, operate as independent contractors and are not employees, agents, or representatives of Western Window Systems, nor are they in a partnership or joint venture with Western Window Systems. No right is given to the Registered Dealer to enter into any agreement, contract, or commitment in the name of or on behalf of Western Window Systems or to bind Western Window Systems in any respect whatsoever. Nothing contained herein or done in pursuance hereof, shall be deemed to authorize a Registered Dealer to act as the legal representatives of Western Window Systems for any purpose whatsoever.
Warranties; Exclusive Remedy
Western Window Systems provides express limited product warranties, which are available at www.skyewallsbywws.com. Western Window Systems makes no other warranties and expressly disclaims all other representations, warranties, conditions, or covenants of any kind, either statutory, express, or implied, including, without limitation, any implied warranties of merchantability or fitness for a particular use, climate, condition, or durability. No distributor, dealer (Registered or otherwise), employee or representative of Western Window Systems has the authority to change, extend, or in any way modify Western Window Systems’ express limited warranties, either orally or in writing, and any such modification shall have no force or effect.
Additional express limited warranties may also be offered by third-party component manufacturers. Contact Western Window Systems’ sales representative for further details.
Registered Dealer acknowledges and agrees that all intellectual property rights relating to Western Window Systems, Skye Walls by Western, the Skye Walls Program, all products manufactured by Western Window Systems, and/or this Agreement, including, but not limited to, all trademarks, service marks, copyrights, patents, trade names, trade secrets, logotypes, photography, advertising and other commercial symbols, and goodwill (collectively “Intellectual Property”), whether registered or not, used on or related to Western Window Systems, Western Window Systems’ products, Skye Walls by Western, Skye Walls Products, or Western Window Systems’ or Skye Walls’ websites: www.westernwindowsystems.com; www.westernvolumeprogram.com; www.wwscommercial.com; and www.skyewallsbywws.com are and shall remain the sole property of Western Window Systems. Nothing in this Agreement shall be deemed to confer upon or transfer to Registered Dealers any right, title, interest, or license, whether express or implied, in or to any of the Intellectual Property. Registered Dealer further agrees to immediately report to Western Window Systems any illegal use or infringement of such Intellectual Property.
The Registered Dealer and Western Window Systems (individually a “Party” and collectively the “Parties”) acknowledge that it may be necessary to share information of a confidential nature, such as information relating to either Parties’ services, products, personnel, clients, financial data, plans, forecasts, Intellectual Property, methodologies, algorithms, agreements, market intelligence, technical concepts, customer information, strategic analyses, pricing, internal developments, publications, accountings, or other conducted or planned activities (collectively “Confidential Information”). Both Parties agree that such information shall not be used for any purpose other than the performance of this Agreement or disclosed to anyone other than Registered Dealer’s officers, employees, and representatives, with a need to know. In the event Confidential Information is required to be disclosed by court order, governmental agency, operation of law or pursuant to judicial, administrative or regulatory process, prompt notice shall be provided to the disclosing Party in order to permit the opportunity to seek appropriate relief. The Parties shall take such reasonable actions with their employees, representatives, agents, affiliates, subcontractors, and dealers, as necessary to effectuate the intent of this provision and the confidentiality obligations imposed by this Agreement. The Parties acknowledge that any use or disclosure of Confidential Information in a manner inconsistent with this provision will cause irreparable damage and may entitle the damaged Party to injunctive or other equitable relief, in addition to any other remedies available by law or under this Agreement.
Limitation of Liability
WESTERN WINDOW SYSTEMS WILL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, CONTINGENT, OR PUNITIVE DAMAGES FOR: (i) ANY CLAIM, WHETHER BASED ON A BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE; (ii) THE TENDER OF DEFECTIVE OR NONCONFORMING GOODS; (iii) BREACH OF ANY OTHER PROVISION IN THIS AGREEMENT; (iv) CLAIMS ARISING FROM CONTRACTS BETWEEN THE REGISTERED DEALER AND ITS CUSTOMERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, END-USERS, OR OTHER THIRD-PARTIES; OR (v) ANY LOSS OR CLAIM, INCLUDING, WITHOUT LIMITATION, WATER INTRUSION AND RELATED DAMAGE, ARISING OUT OF OR IN CONNECTION WITH ANY THIRD-PARTY RECOMMENDATION, INSTALLATION, MODIFICATION, OR REPAIR. IN NO EVENT WILL WESTERN WINDOW SYSTEMS’ LIABILITY EXCEED THE PURCHASE PRICE PAID FOR THE SUBJECT PRODUCT OR COMPONENT.
WESTERN WINDOW SYSTEMS WILL ALSO NOT BE LIABLE FOR ANY CLAIM, LOSS, OR DAMAGES ARISING OUT OF THE INSTALLATION OF OUR PRODUCTS.
These Terms and Conditions and any sale of Skye Walls Products hereunder will be governed by and construed in accordance with the laws of the State of Arizona, without regard to conflicts of laws rules. All claims, disputes or controversies arising out of or relating to this Agreement, or the breach thereof, or the use of the Skye Walls Products, shall be submitted to arbitration in Phoenix, Arizona by a single arbitrator, mutually agreed to by the Parties. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) for U.S. Sales, except that the Arizona Rules of Evidence shall apply. The arbitration need not be conducted by or through AAA. Except as provided herein, the arbitration shall not be brought or adjudicated on a representative, collective, consolidated, or class action basis and the Registered Dealer and/or any other person or entity making a claim against Western Window Systems pursuant to this Agreement (collectively “Claimants”) waives any and all rights to: (1) assert any claim against Western Window Systems on a representative or collective basis; (2) represent or participate in any class action against Western Window Systems; (3) join any third-party’s claims in a single arbitration against Western Window Systems; or (4) consolidate Claimants’ arbitration with Western Window Systems with any other arbitration involving a third-party. Nothing in this section shall prevent Western Window Systems, in its sole discretion, from joining or consolidating any arbitration with Claimant with an arbitration between Western Window Systems and a third-party regarding the same claim or transaction. In the event of any conflict between this provision and the AAA Commercial Arbitration Rules, this provision shall control. Any judgment on the award rendered by the arbitrator may be entered in any U.S. court having jurisdiction.
Western Window Systems shall not be liable for delays in lead times or shipment of any order or failure to perform any of its obligations caused by factors outside of its control, including, but not limited to, labor disputes or accidents, shortages of labor, materials, fuel or power, epidemics, pandemics, fires, floods or other acts of God, acts or omissions of the Registered Dealer or other third-parties, or restrictions imposed by national or local legislation or regulations.
If any provision in this Agreement shall be declared by any arbitrator or court of competent jurisdiction to be illegal, void, or unenforceable, such provision shall be enforced to the maximum extent permitted by law and all other provisions shall remain in full force and effect.
Western Window Systems’ failure to enforce any provision of this Agreement shall not constitute a waiver of such provision unless in a writing signed by Western Window Systems. Any such waiver shall apply only to the limited circumstance and limited time for which it was granted and shall not be construed as a continuing waiver of Western Window Systems’ right to strictly enforce any provision hereunder.
To become a Registered Dealer, please visit http://skyewallsbywws.com/contact-us.