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WIN Enterprises, Inc.

300 Willow St. South, North Andover, MA 01845

PH: +1 (978) 688-2000 FAX: +1 (978)-688-4884

Complete and return via email or Fax

Terms and Conditions of Purchase

The following are the terms and conditions (the “Terms”) under which WIN Enterprises, Inc. purchases products including software and software licenses and services of all types (collectively, “Products”) from other parties (“Sellers”).

Our terms assume timely delivery. Substitutions are not accepted. Seller shall ship and deliver Products strictly in accordance with the specification(s), schedule, quantities, and other requirements specified by WIN Enterprises, Inc. (WIN Enterprises, Inc.’ “Order”). Delays in shipments, including the reasons therefore, shall be reported immediately by Seller to WIN Enterprises, Inc. WIN Enterprises, Inc. reserves the right to cancel any Order for any Product in whole or in part if Seller fails to ship and deliver in accordance with the terms of the Order.

WIN Enterprises, Inc. may cancel any Order or portion thereof upon written notice to Seller delivered to Seller at least 30 days prior to the scheduled delivery date for the cancelled Products without cost and with no liability to Seller.

Seller shall be responsible for proper packing and packaging of any goods purchased hereunder, so as to prevent damage to and deterioration of the goods, secure the lowest transportation rates and comply with carrier tariffs.

Seller warrants that all prices of all Products sold by Seller to WIN Enterprises, Inc. are not greater than the lowest prices at which such Products have been sold by Seller to any third party as of the date such Products are sold to WIN Enterprises, Inc. Seller shall issue a separate invoice for each delivery of Products and shall not issue any invoice prior to the scheduled or actual date of delivery, whichever is later.

Payment shall not constitute acceptance of Products. All Products sold by Seller to WIN Enterprises, Inc. are subject to inspection and/or test by WIN Enterprises, Inc. and/or its agent(s) to the extent practical at all times and places, including the period of manufacture and, in any event, prior to final acceptance.

Seller warrants that all Products sold by Seller to WIN Enterprises, Inc. are new, that Seller has conveyed good title to such Products to WIN Enterprises, Inc., and that such Products are free from all liens and encumbrances, in each case at the time such Products are delivered to WIN Enterprises, Inc.

Seller agrees to indemnify and hold harmless WIN Enterprises, Inc., its affiliates, successors, assigns, and customers against all suits at law or in equity and from all liabilities, costs, expenses (including attorney’s fees) and damages arising from any actual or claimed infringement of patents, trademarks, service marks, trade names or copyrights with respect to Products sold by Seller to WIN Enterprises, Inc. or arising from any actual or alleged misappropriation or wrongful use of any trade secret or confidential information involving any such Products, and to settle or defend, at Seller’s expense, any suits based thereon.

WIN Enterprises, Inc. may make changes in the quantities or delivery schedule applicable to Products ordered by WIN Enterprises, Inc. from Seller at any time prior to the scheduled delivery date for such Products.

WIN Enterprises, Inc. may cancel any order for Products in whole or in part without liability to WIN Enterprises, Inc. at any time prior to the scheduled delivery of such Products by written notice to Seller in the event that (1) Seller fails to comply with any term or condition of these Terms, including but not limited to delivery terms; (2) the parties fail to mutually agree on any adjustment under Paragraph 9; (3) Seller appoints a receiver or trustee in bankruptcy or other similar officer over any or all of its property or assets, files a voluntary or has filed against it an involuntary petition in bankruptcy which remains in effect for thirty (30) days; (4) Seller merges with or is acquired by a third party; or (5) Seller assigns any of its rights or obligations under this Order to a third party without WIN Enterprises, Inc.’ prior written consent.

Seller shall keep confidential and shall neither disclose to any person outside its employ, nor use for purposes other than performance of orders by WIN Enterprises, Inc. for Products from Seller, any confidential or proprietary information relating to the Products including but not limited to designs, drawings, blueprints, descriptions or specifications.

The WIN Enterprises, Inc. rights and remedies provided in these Terms shall be cumulative and shall be in addition to any other rights or remedies provided in law or equity. WIN ENTERPRISES, INC. SHALL NOT BE LIABLE TO SELLER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, WHETHER BASED IN TORT, CONTRACT, OR ON ANY OTHER THEORY, AND REGARDLESS OF WHETHER WIN ENTERPRISES, INC. WAS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM OR RELATED TO WIN ENTERPRISES, INC.’ PURCHASE OF PRODUCTS FROM SELLER OR FAILURE TO PERFORM ANY CONTRACT FOR SUCH SALE AS MAY ARISE BETWEEN WIN ENTERPRISES, INC. AND SELLER. The agreement shall be governed by the laws of the State of Massachusetts, regardless of the laws that might be applicable under principles of conflicts of law. Any litigation between the parties arising out of or relating to these Terms or any sale or actual or alleged contract of sale between WIN Enterprises, Inc. and Seller will be brought exclusively in the state or federal courts located in Massachusetts, if any such court has jurisdiction to hear such action.




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