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Terms and Conditions

Winston Industries, LLC, is a Kentucky Corporation with numerous divisions, which include Winston Foodservice, Win2uit Electronics, and Winston Manufacturing. In consideration of the mutual benefits hereby to be derived by any division of Winston Industries (collectively “Winston”) and any purchaser, lessee, or successive Purchaser (collectively “Purchaser”) of goods or services provided by Winston (collectively “Products”) agree that:

Acceptance of Terms & Conditions– Acceptance of a purchase order is expressly limited to the Terms and Conditions set forth herein, and any additional or different terms proposed by Purchaser are rejected unless expressly assented to in writing and signed by an authorized officer of Winston. In the event during the course of dealing, Winston signs or accepts any documents or forms submitted by Purchaser containing any Terms or Conditions contrary to or in addition to those of Winston set forth herein, such documents and forms shall be deemed to have been used for the mere convenience of Purchaser in the conduct of its internal business affairs and not for the purpose of varying the Terms and Conditions of this Order. This Order, including these Terms and Conditions, shall constitute entirely the Terms and Conditions between the parties with respect to the transaction covered hereby and to all subsequent transactions for Products obtained from Winston, and no waiver, alteration, or modification shall be binding on Winston unless in writing and signed by an authorized officer of Winston at the Kentucky corporate office in the year that the Order was invoiced.

Quotes/Pricing– All prices are subject to change without prior notice. Unless expressly written by Winston, all quotations are valid for purchase orders received AND manufactured within 60 days of approved quotation.  Any orders received beyond the 60-day quote or orders that are not able to be manufactured by Winston for any reason during that period may be subject to price changes at Winston’s discretion. Purchaser shall pay, in addition to the price hereunder, as a separate item, any taxes which Winston may be required to pay or collect under existing or future laws with respect to the sale, delivery, transportation, or use of any Product sold hereunder including all taxes, however designated, upon or measured amounts paid to Winston by Purchaser hereunder, except net income tax.

Acceptance, Modification, and Cancellation of Orders- An Order will not be effective until accepted in writing by Winston directly, with pricing subject to the defined conditions in this Winston Industries Terms & Conditions.  Confirmed accepted orders may not be modified, cancelled, or delayed (“Changes”) by Purchaser without prior written permission from Winston. Winston, at their sole discretion, may approve Changes to a purchase order.  Winston approved Changes will not incur penalties if requested by Purchaser within two (2) business days of receiving order acknowledgment from Winston, and Winston has not proceeded with procurement of materials, or the manufacturing process directly related to the Order. Custom Orders and/or those where the material was procured will not be eligible for Changes.  All other approved Changes will be subject to a change/cancellation fee of up to 20%.

Order Returns– Products may not be returned by Purchaser except by prior written agreement within Winston. Returns without prior authorization, as indicated by an RA number applied to the returned packaging, will be refused. All authorized returned Products must be returned in new condition, including the original packaging, and returned to the destination of Winston’s discretion and prepaid by Purchaser. Returns are subject to inspection by Winston, and a 20% restocking charge ($50 minimum), which may be reduced if a replacement Product is ordered, plus any other costs deemed necessary by Winston to restore the Products to new condition. Winston reserves the sole right to determine the amount of credit to be issued on any Products returned for credit. No returns will be accepted on modified or special Products (built to a Purchaser’s specifications), used Products, or Products older than 90 days from the original date of shipment.

Overruns & Underruns- Custom-designed Products made to a Purchaser’s specification (most commonly OEM orders) may require Winston to manufacture in a higher volume to allow for quality control fall-out and/or process optimization. Winston reserves the right to ship and invoice the Order on these custom orders by +/- 10% of each item count or the purchase order value, whichever is greater. Products offered on Winston’s current published List Price are not subject to any overrun or underrun adjustments.

Product Substitution– Products may be substituted or undergo a design modification by Winston and may not always match the exact descriptions and/or images.

Payment Terms– Winston will require payment prior to scheduling shipment for Orders with all new accounts.  At Winston’s sole discretion, they may provide a credit limit and offer payment terms to Purchasers that demonstrate a positive financial history. Purchasers may request details of the payment terms prior to ordering. Winston will provide details of payment terms on all invoices. Delinquency balances over 30-days may accrue interest at a rate of 1.5% per month.

Purchaser agrees to pay the cost of any and all expenses incurred by Winston to collect past due sums, including but not limited to legal, collection, and court costs.

Credit Balance– Purchaser agrees that any credit balances will be applied within one (1) year of its issuance. If not applied or requested within one (1) year, any balance remaining will be subject to cancellation, and Winston shall have no future liability in accordance with applicable federal, state, and local laws.

Shipping & Packaging– All Products will be sold FOB Louisville, Kentucky, and the risk of loss or damage shall be passed to the Purchaser upon pick-up by the carrier from the Winston office in Kentucky. The Purchaser will be responsible for ensuring a thorough inspection of all Products from potential shipping damage prior to acceptance. The method or agency of transportation and routing may be selected by the Purchaser at the time of Order. Winston reserves the right to select an alternate carrier, including shipping freight collect, if the Purchaser does not select a carrier prior to the completion of the Order or if Winston disqualifies the selected carrier for any reason. All orders shipping within North America must be collected by the carrier within one week of completion, and international orders (outside of North America) must be collected by the carrier within two weeks of completion.  All orders will be invoiced by Winston no later than the required date of collection, and any orders not collected on time may be subject to warehouse & storage fees in the amount of 1% per week.

All quotations include basic packaging, which may include volume boxing, palletizing, shrink wrap, banding, shrink wrapping, and labeling. Winston reserves the right to include additional “Shipping & Handling Fees” to orders that require extensive packaging, processing, and/or delivery. Estimates for upgraded packaging costs may be available upon request.

Inspection & Warranty– Purchaser shall perform a quality inspection on all specialty or custom products (most commonly OEM) within five (5) days of receipt of products and will notify Winston of any claims. A Purchaser’s sole warranty on standard Products, offered on the current published price list, is Winston Industries’ Limited Warranty Agreement. Any modifications of the Winston Industries Limited Warranty Agreement must be expressly assented to in writing and signed by an authorized officer of Winston in the year the Order was invoiced.

Indemnification & Miscellaneous– Purchaser agrees to indemnify and hold Winston harmless from any loss, cost, or expense, including the cost of defense, and reasonable attorney’s fees, incurred by Winston, arising from or related to (1) Purchaser’s use or sale of Products, including, but not limited to, Purchaser’s failure to warn Purchaser’s workers and others of hazards involving the Products; Purchaser’s failure to provide a copy of Terms and Conditions at the time of sale of Products to others; Purchaser’s failure to instruct Purchaser’s workers and others in how to safely use the Products in compliance with the Owner’s Manual; and Purchaser’s failure to provide safe working conditions and proper safety clothing and gear with respect to the Products, and (2) non-compliance with these Terms and Conditions, or both.

Winston shall not be liable for claims of patent infringement against Purchaser or Purchaser’s loss of the right to use the Product.

Winston shall not be liable for any delay in performance due to fire, explosion, casualty, strike or other labor difficulties, shortage of utility, delay in transportation, delay in the supply chain, breakdown or accident, compliance with other activities to carry out the intent or purpose of any law or regulation, or any cause, whether similar or dissimilar, beyond Winston’s reasonable control and Winston shall have such additional time for performance as may be reasonably necessary under the circumstances and the right to apportion its production amount its customers in such a manner as it may deem equitable.

Any controversy or claim arising out of or relating to this Order, or the breach thereof, shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that any arbitration hearing shall be held in Louisville, Kentucky. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any application for review of an arbitration award shall be allowed only to the extent required by Kentucky law and shall be brought to an appropriate court in the

Thirteenth Judicial Circuit or District of Kentucky, or in the United States District Court for the Western District of Kentucky.

This Order and the rights, duties, and legal relations of the parties and any arbitration are governed by and construed under Kentucky laws.

The Products sold here under are produced in compliance with the Fair Labor Standards Act.

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