Wilspec Technologies, Inc.
TERMS AND CONDITIONS OF SALE
These Terms and Conditions (“T&C’s”) are a part of and are incorporated by reference in any written Supply Agreement, Quote, Price List, Sales Order Confirmation, Invoice or other written communication (collectively above, including without limitation the T&C’s, “the “Seller Documents”) issued by Wilspec Technologies, Inc. (Seller) to any Buyer for the sale of goods or services by Seller to Buyer. All Seller Documents and any business transacted between Seller and any Buyer, and any Buyer purchase order, are expressly subject to and made conditional upon acceptance of the terms set forth in the Seller Documents. No standard terms or conditions of Buyer, nor any Buyer terms that are additional to or different from the Seller Documents that appear in any Buyer purchase order, order confirmation, or other communication by Buyer to Seller, shall be valid or binding upon Seller and are rejected. Issuance by a Buyer of a purchase order constitutes acceptance of the Seller Documents in accordance with the terms of the Seller Documents. In the event of a conflict between any of the Seller Documents, the following order of priority shall control: first, if there is a written Supply Agreement (for the avoidance of doubt a quote and a purchase order is not a written Supply Agreement), it shall control; next, if there is no written Supply Agreement, the most recent of the Seller Quote or Seller Price List in effect to Buyer shall control; next the Sales Order Confirmation shall control; next theT&C’s. In the event of any conflict between the terms of these T&C’s, the provision(s) most favorable to Seller shall control. If there is a written Supply Agreement between Seller and a Buyer that has not terminated, any subsequent written Price List or Quote for the same goods and same Buyer as are covered by the written Supply Agreement shall be an amendment to the Supply Agreement. These T&C’s are provided on the Wilspec website (www.Wilspec.com) and may be amended from time to time by Seller and shall be binding upon Buyer from the date of posting on the website.
1. TAXES: Prices do not include any taxes, now or hereafter enacted, applicable to the goods sold in a transaction. Taxes will be added by Seller to the sales price in compliance with law, and will be paid by Buyer unless Buyer provides Seller with a proper tax exemption certificate.
2. PRICES: Each of the following provisions shall apply:
(i) Seller has the right at any time and from time to time to increase prices for goods based on market conditions, or Seller’s increased costs of manufacturing, material, freight, taxes and currency, with written notice to Buyer by updated Price List or otherwise, with such revised prices to apply to all goods thereafter supplied to Buyer. If Buyer provides written objection within ten (10) days following Seller notice of a price revision, Seller shall have the option of terminating Buyer purchase order(s) without liability to Seller;
(ii) Prices apply only if the quantity ordered by Buyer is released for shipment within one hundred twenty (120) days from the date of Seller’s receipt of Buyer’s purchase order. Otherwise, Seller’s standard price in effect at time goods are released (if higher) shall apply to quantity shipped and Buyer shall pay the difference in price, if any, within thirty (30) days of Seller notice;
(iii) Buyer must purchase the minimum release quantity for each item, and must purchase the minimum order release amount, as per the most recent of the Seller Quotation or the Seller Price List to Buyer that is currently in effect. Seller shall have the right to increase pricing to Seller’s standard price in effect at time goods are released if Buyer fails to purchase the minimum release quantity for each item or minimum order release amount;
(iv) Pricing is based on product specifications and total quantities for all part numbers on most recent of Seller Quotation or Seller Price List to Buyer that is currently in effect. Seller shall have the right, in addition to all other rights and remedies, to charge back to Buyer (and Buyer shall pay Seller on thirty (30) days notice) the higher difference in price between Seller standard price in effect at date of most recent of Seller Quote or Seller Price List in effect to Buyer and the quoted price therein, based on Buyer purchase of total quantities of all part numbers within the quoted time frame less than minimum required as set forth therein;
(v) Upon any written notice of cessation of supply by Seller for default of Buyer or otherwise as provided in these T&C’s, or as may otherwise be permitted at law or equity by Seller or Buyer, and in addition to all other rights and remedies of Seller, Buyer shall on thirty (30) days notice by Seller purchase all goods and work in process built by Seller to Buyer discrete purchase orders and forecast as in existence at any time upon written notice by Seller and shall pay all outstanding Seller invoices according to their terms.
3. TITLE AND DELIVERY: All shipments of goods shall be delivered FCA Seller’s plant (Incoterms® 2010), and title and liability for loss or damage thereto shall pass to Buyer upon Seller’s delivery of the goods to a carrier for shipment to Buyer, and any loss or damage thereafter shall not relieve Buyer from any obligation hereunder. Buyer shall be liable for costs of insurance and transportation and for all import duties, taxes and any other expenses incurred or licenses or clearance required at port of entry and destination. Seller may deliver goods in installments. Shipping dates are approximate only. Shipment/manufacturing lead time is subject to change based on Seller business conditions and material availability. All provisions of this Paragraph 3 apply to both domestic and international shipments.
4. QUANTITIES: Seller may vary quantities shipped over or under the quantities ordered (not to exceed 5%) and the stated unit price will continue to apply and Buyer will accept same.
5. TERMS AND METHOD OF PAYMENT: Where Seller has extended credit to Buyer terms of payment shall be net thirty (30) days from date of invoice without reduction or offset. Where Seller has not extended credit to Buyer, terms of payment are cash in advance of manufacture and shipment. The amount of credit or terms of payment may be changed, or credit withdrawn by Seller at any time based on business conditions and/or Buyer payment history, and/or default by Buyer. If the goods are delivered in installments Buyer shall pay separately for each installment. Payment shall be made for the goods without regard to whether Buyer has made or may make any inspection of the goods. If shipments are delayed by Buyer payments are due from the date when Seller is prepared to make shipments. Goods held by Seller for Buyer, if any, are at Buyer’s risk and expense. All payments shall be made in US dollars.
6. CONTINGENCIES AND FORCE MAJEURE: Seller shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control of Seller , including, but not limited to, war (whether an actual declaration thereof is made or not), terrorism, sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, supply chain failure or delay, strike, port closing, accident, fire, explosion, flood, storm or other act of God, pandemics or epidemics, shortage of labor, fuel, raw material or machinery, or technical failure, where Seller has exercised ordinary care in the prevention thereof. Seller may allocate production and deliveries among Seller’s customers.
7. SUBSTITUTIONS AND MODIFICATIONS OF GOODS: Seller may modify the specifications of goods designed by Seller and substitute goods manufactured to such modified specifications for those specified herein, provided such goods substantially conform to the original Seller specifications. Where Buyer orders goods subject to military specifications, Buyer agrees that seller may supply goods which conform to the most current version or revision of the applicable military specifications.
8. LEGAL COMPLIANCE: Buyer at all times shall comply with all applicable USA and foreign country, federal, state and local laws and regulations applicable to Buyer.
9. CHANGES: Buyer may not cancel, revise, supplement or amend a purchase order, and any such attempt to do so will require Seller prior written approval (to be given or not in Sellers sole discretion) and if given, may be subject to adjustment in the price and/or delivery date, and specific and explicit acceptance of such change by an officer of Seller located in Oklahoma City, Oklahoma in writing.
10. LIMITED WARRANTY: THE FOLLOWING IS IN LIEU OF ALL WARRANTIES EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY (INCLUDING WITHOUT LIMITATION ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE) ON THE PART OF SELLER. Seller, except as otherwise hereinafter provided, warrants the goods against faulty workmanship or the use of defective materials, and that such goods will conform to Seller’s written specifications and drawings, at the date of manufacture for a period of twelve (12) months from the date of shipment. Seller warrants that at the time of delivery Seller has title to the goods free and clear of any and all liens and encumbrances. These warranties are the only warranties made by Seller and can be amended only by a written instrument signed by an officer of Seller. Seller makes no warranty as to experimental or developmental goods, or goods not manufactured by Seller, or use of the products in a manner inconsistent with the Seller specifications and drawings. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OR ANY WARRANTY OF FITNESS FOR THE PURPOSE INTENDED. Seller’s warranties shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of Seller’s rendering of technical advice or service in connection with Buyer’s order of the goods furnished by Seller.
11. EXCLUSIVE REMEDIES: If the goods furnished by Seller fail to conform to Seller’s exclusive limited warranty, Seller’s sole and exclusive liability shall be (at Seller’s option) to repair, replace or credit Buyer’s account for the cost of the goods being claimed as to any such goods which are returned by Buyer during the applicable warranty period set forth above, provided that (i) Seller is promptly notified in writing upon discovery by Buyer that such goods failed to conform to the Seller limited warranty with a detailed explanation of any alleged deficiencies, (ii) such goods are returned to Seller, F.O.B. Seller’s plant, and (iii) Seller’s examination of such goods shall disclose to Seller’s satisfaction that such alleged deficiencies actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing. If such goods are non-conforming, Seller shall reimburse Buyer for the transportation charges paid by Buyer for such non-conforming goods. If Seller elects to repair or replace such goods, Seller shall have a reasonable time to make such repairs or replace such goods. THIS IS THE SELLER’S ONLY LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY CLAIM, WHETHER ARISING IN TORT OR CONTRACT, AND IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, PUNITIVE, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR COVER OR RE-SOURCING COSTS, LOSS OF INCOME OR MANFACUTURING LINE DOWN-TIME.
12. ACCEPTANCE OF PRODUCT; NO CERTIFICATES OR AFFIDAVITS: Acceptance shall be presumed conclusively to have occurred on the earlier of: (i) thirty (30) days following delivery of product to Buyer, unless Buyer has accepted the product prior to that date, or (ii) payment for the product, or (iii) use of the product. No certificates or affidavits of compliance, conformance, or chemical analysis shall be provided unless the written Seller Documents specifically provides for such.
13. PATENTS: Except as provided in and limited by this paragraph 13 and in paragraph 14, Seller shall defend any suit or proceeding brought against Buyer in the United States of America (and Seller shall pay to Buyer the judgment finally awarded therein against and paid by Buyer) only insofar as such suit or proceeding is based on a claim, and final judgment so reflects, that the goods manufactured and supplied by Seller to Buyer (as determined on a stand-alone basis) constitute direct infringement of any duly issued and valid United States patent. In any event however, the amount to be paid by Seller to Buyer above shall be limited to and shall not exceed the total price paid by Buyer to Seller for the quantity of infringing goods for which the final judgment was rendered and damages were awarded against and paid by Buyer. As a condition to Seller’s obligation above, Buyer is to promptly inform and furnish a copy of each communication, notice or other action relating to the alleged infringement to Seller, Seller shall be given authority, information and assistance necessary to defend or settle said suit or proceeding, and Buyer shall fully cooperate with Seller (including without limitation providing documents and testimony at no cost to Seller). Seller’s obligations herein shall not apply to any alleged or finally determined infringement occurring after Buyer has received notice of such claim, suit or proceeding alleging the infringement unless Seller has given written permission for Buyer to continue to use such goods. In all events, Seller shall not be obligated to defend Buyer or be liable to Buyer for any costs, damages or final judgment if the infringement arises out of compliance with Buyer’s specification(s), or from a combination with, an addition to, or a modification of the goods after delivery by Seller, or from use of the goods or any part thereof by Buyer or its customers in the practice of a process or in any experimental goods, or use of the goods in a manner inconsistent with the Seller specifications and drawings (collectively and each the “Buyer Causation”). If the infringement is alleged prior to completion of delivery of any goods manufactured by Seller, Seller may (in addition to all other rights and remedies) decline to make further shipments without being in breach. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF SELLER FOR PATENT INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO, AND IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR SPECIAL, PUNITIVE, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, COVER OR RE-SOURCING COSTS, LOSS OF INCOME OR MANUFACTURING LINE DOWN-TIME.
14. BUYER INDEMNITY; AFFILIATES: Buyer agrees to indemnify and hold harmless Seller from and against any damage, judgment or loss (including attorney’s fees, expenses and costs and expert witness costs): (i) arising out of any claim, suit, or proceeding brought against Seller, relating to or resulting from the application of Seller’s products to Buyer’s designs and/or products, or Seller’s assistance in the application of Seller’s products, or Buyer Causation, and (ii) any breach by Buyer or its affiliates of the Seller Documents or any of them, Buyer shall be jointly and severally liable for any obligations of an affiliate of Buyer arising or existing by virtue of the Seller Documents. For purposes of the Seller Documents, an “affiliate” shall mean any entity which controls, or is controlled by, or is under common control with, directly or indirectly, Buyer herein, with control meaning the ownership of 50% or more of the voting power of the subject entity. For the avoidance of doubt, any parent or subsidiary entity, or brother/sister entity to Buyer, whether or not incorporated, shall be an affiliate.
15. PROPRIETARY RIGHTS; PRODUCT IMPROVEMENTS; PROPRIETARY INFORMATION: The goods are designed and manufactured by or for Seller and all rights to the Products of any kind belong solely to Seller. All patents, trade secrets and proprietary rights relating to Seller name, trademarks, products and Seller information (including without limitation, know-how, product technical data, testing data, specifications, drawings, UL listings, processes and machines, or any combination thereof) (collectively “Rights”) shall be and remain the exclusive property of Seller. The sale of goods ordered by Buyer does not grant, convey or confer upon Buyer or Buyer’s customers, or upon anyone claiming by, through or under Buyer, a license express or implied, under any such Rights. All modifications, enhancements and improvements to Seller goods (and all Rights thereto) shall belong exclusively to Seller regardless of whether made by Seller or Buyer. Buyer shall not make any proprietary claim or filing as to Seller Rights anywhere in the world. Buyer shall, at Seller’s request, execute any documents Seller shall deem necessary to formally vest such Rights in Seller or its designated affiliate. All written business and technical information that is furnished by Seller to Buyer, whether or not such information is marked “Confidential”, shall be proprietary information of Seller (“Proprietary Information”). Buyer will protect the Proprietary Information with the same degree of care as it uses to protect its own proprietary information, but no less than a reasonable degree of care. Buyer shall use the Proprietary Information disclosed to it only for the necessary purposes of the supply relationship between Seller and Buyer and will not disclose Proprietary Information except as approved by Seller in writing. Buyer shall return or permanently delete, as appropriate, all copies (in any medium recorded or created) of Proprietary Information immediately upon written request by Seller and will confirm same to Seller in writing. The obligations of Buyer pertaining to Proprietary Information shall survive the expiration or termination of the supply of goods between Seller and Buyer.
16. TERMINATION AND CANCELLATION; SURVIVAL: In the event of (i) a breach by Buyer of the Seller Documents, or (ii) If in Seller’s judgment Buyer’s financial condition does not justify the terms of payment specified, or (iii) if Buyer should become insolvent, or (iv) if Buyer should become unable to pay its debts as they mature, or (v) if Buyer shall have a receiver appointed to all or part of its business or assets, or (vi) if Buyer should become subject to any bankruptcy proceeding, or (vii) as otherwise permitted to Seller at law or equity, Seller may, in addition to all other rights and remedies (all such being cumulative), terminate the supply relationship, Supply Agreement, and/or cancel any purchase order unless Buyer shall immediately pay for all goods which have been delivered and pay in advance for all goods thereafter prior to manufacture or delivery, and cure any breach. Any attempt by a Buyer to contest or vary the terms of the Seller Documents shall be a breach and Seller may cancel Buyer purchase orders or Supply Agreement without liability. Buyer obligation to pay for all goods and work in process as provided in the Seller Documents, and the terms of these T&C’s shall survive any termination or cancellation of the supply relationship, Supply Agreement or purchase order. The rights of Seller under this Section 16 may be exercised by Seller without liability to Buyer.
17. NON-WAIVER OF DEFAULT AND COLLECTION RIGHTS: Any assent or waiver, express or implied, by Seller to any matter or provision relating to business transacted between Seller and Buyer shall operate as such only in the specific instance and shall not operate as or be construed as an assent to or waiver of any other matter or provisions. In the event of any default by Buyer, Seller may invoke any right or remedy provided by law or equity or by the terms of the Seller Documents , and may decline to make further shipments to Buyer or manufacture goods for Buyer, all of which rights or remedies shall be cumulative. Seller shall have the right of offset. If Seller elects to continue to make shipments, Seller’s actions shall not constitute a waiver of any default by Buyer or in any way affect Seller’s legal remedies for any such default. In the event Seller resorts to a third party or to litigation in order to collect amounts due Seller, Buyer agrees to pay costs of collection for amount owed to Seller, including, but not limited to, attorney’s fees, court costs, and interest in the amount of 1.5% per calendar month or part thereof (18% per annum), from the date the amount is due.
18. TOOLS AND DIES: Unless otherwise provided in the Seller Documents, all tools and dies, including, without limitation, fixtures, gauges and assembly equipment manufactured for the supply relationship, will be Seller’s property, but will be retained by Seller for Buyer’s non-exclusive use; provided, however, that Seller may dispose of such tools and dies if Buyer does not order from Seller goods for manufacture therefrom within any one (1) year period. If any tools and dies manufactured by Seller are to become Buyer’s property, it must be specifically so provided in the Seller Documents. Any tools and dies, materials, or other equipment furnished by Buyer to Seller shall be at Buyer’s sole risk and expense, and Seller shall not be liable for loss, damage, maintenance, repair or renewal, regardless of cause. If Buyer desires to withdraw such Buyer tools and dies, materials or other equipment from Seller’s plant, Buyer will first compensate Seller for any cost incurred with respect to them, including without limitation, design and development costs. In any event, Seller may retain such tools and dies until all outstanding invoices due Seller are paid in full and any breach of the Seller Documents by Buyer has been cured.
19. U.S. GOVERNMENT CONTRACTS: If the goods to be furnished under the Seller Documents are to be used in the performance of a U.S. Government contract or subcontract, and a U.S. Government contract number shall appear on Buyer’s purchase order, those clauses of the applicable U.S. Government procurement regulations which are required by Federal Statute to be included in U.S. Government subcontracts are incorporated herein by reference.
20. SIZES, TOLERANCES AND SAMPLES: USE OF, OR REFERENCE TO SAMPLES, SHALL NOT ENLARGE, AFFECT OR ALTER THE LIMITED AND EXCLUSIVE LIMITED WARRANTY (PARAGRAPH 10) OR EXCLUSIVE REMEDIES (PARAGRAPH 11). The dimensions for quoting and manufacturing are the mean specifications and are subject to the normal tolerances for variations.
21. BUYER CLAIMS: Any Buyer claim, action or proceeding against Seller must be commenced no later than eighteen (18) months after the alleged breach or other event giving rise to Buyer’s claim occurs, without regard to the date of discovery, and any such claim, action or proceeding not brought within that time period shall be barred, without regard to any limitations period set forth by applicable law or statute. Any liability or obligation of Seller and/or its affiliates shall be several only and not joint and several.
22. SEVERABILITY OF TERMS; HEADINGS: If any phrase, clause or provision under any Seller Document shall be declared unenforceable or void, the validity of any other provisions of any Seller Document shall not be affected thereby and shall continue in full force and effect. The headings of paragraphs are for reference only and are not contractual.
23. RELEASE OF INFORMATION: Neither party hereto shall, without the prior written consent of the other party which will not be unreasonably withheld, publicly announce or otherwise disclose the existence of the terms of the supply relationship, or release any publicity regarding the supply relationship. This provision shall survive the expiration, termination or cancellation of the supply relationship.
24. BINDING; ASSIGNMENT: The Seller Documents and any Buyer purchase order (excluding however any Buyer terms that are additional to or different from the Seller Documents) are binding upon and inure to the benefit of the parties and their successors and assigns; provided that Buyer may not assign the Seller Documents or its purchase order without the prior written consent of Seller.
25. MODIFICATION; COMPLETE AGREEMENT: No addition to or modification of any provision of the Seller Documents shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller located at Seller’s office in Oklahoma City, Oklahoma, USA with the express intent set forth therein to modify a Seller Document. The Seller Documents and any accepted Buyer purchase order (excluding however any Buyer terms that are additional to or different from the Seller Documents) constitute the complete agreement of Seller and Buyer. The 1980 United Nations Convention on Contracts for the International Sale of Goods shall not apply. Nothing contained in any Seller Document or any Buyer purchase order will be construed to create a partnership or joint venture among the parties.
26. APPLICABLE LAW AND FORUM; ARBITRATION: The validity, performance, construction and any other dispute arising out of, concerning, or relating to the Seller Documents, any Buyer purchase order, or the supply relationship between the parties shall be governed exclusively by the laws of the State of Oklahoma (notwithstanding its conflict of laws provisions to the contrary). The parties further agree that in the event of any dispute between the parties, the dispute shall be submitted exclusively to binding arbitration before the American Arbitration Association in accordance with the then rules for commercial cases. Such arbitration shall be held in Oklahoma City, Oklahoma. The determination of the Arbitration panel shall be final, binding and conclusive on the parties hereto and such determination may be entered, recorded or enforced in any court of proper jurisdiction. In the event any party institutes litigation the other party shall be entitled to an order of the court compelling Arbitration. The prevailing party in any such Arbitration shall be awarded their reasonable attorney’s fees and costs and expert witness costs. In the event that it is determined by a court or the Arbitration panel that Arbitration of any such dispute is not enforceable for any reason or to any extent or as to any issue, then the parties hereby agree and submit to the exclusive jurisdiction and venue of any federal or state court sitting in a judicial district located in Oklahoma City, Oklahoma County, State of Oklahoma, and waive all defenses or objections thereto, to resolve such issue or matter. In any such litigation, the prevailing party shall be entitled to an award of its reasonable attorney fees and costs and expert witness costs.