Wilspec Technologies, Inc.
TERMS AND CONDITIONS OF SALE
These Terms and Conditions (“T&C’s”) are included as a part of and are hereby incorporated by reference in any written Supply Agreement, Quote, Price List, Sales Order Confirmation, Invoice or other written communication (collectively, “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 the terms of 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 document or communication by Buyer to Seller, shall be valid or binding upon Seller and are rejected and are waived by Buyer. No Buyer purchase order is binding on Seller except with written acceptance by Seller. Acceptance by Seller occurs in Oklahoma City, Oklahoma. If Seller acceptance varies from the terms of Buyer purchase order, the Seller acceptance and variances shall apply and be binding on Seller and Buyer, unless Buyer withdraws it’s purchase order in writing to Seller within 5 days after the Seller acceptance. In addition to other facts or circumstances reflecting acceptance of Seller Documents, payment by Buyer to Seller for the goods constitutes acceptance of the Seller documents. In the event of a conflict between the terms of the Seller Documents, the following order of priority shall control as to the relevant text: 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), the terms of the Supply Agreement, (exclusive of the terms of the T&C’s in conflict therewith), shall control; next the most recent of the Seller Order Confirmation, Seller Quote or Seller Price List in effect to Buyer (exclusive of the terms of the T&C’s in conflict therewith), shall control, and next the T&C’s shall control. In the event of any conflict between the terms of these T&C’s, the provision(s) most favorable to Seller shall control. 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. It is the responsibility of Buyer to review and stay current with such T&C’s.
- 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.
- PRICES; PURCHASE ORDERS: 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 (including without limitation costs of manufacturing, material, freight, duties, tariffs, taxes and currency), or if Buyer requests changes to Products Specifications, purchase quantities, scope or work, or any other terms or requirements, effective immediately with written notice to Buyer by updated Price List or otherwise, with such revised prices to apply to all goods thereafter supplied to Buyer. Seller has the right to terminate Buyer unfilled purchase order(s) or withhold shipment or performance without liability if Buyer objects to pricing increase.
(ii) Buyer must purchase the minimum order quantity for each item, and must purchase the minimum shipment amount for each item that is currently designated by Seller. Seller shall have the right to increase pricing to Seller’s standard price in effect (if higher) at time goods are released if Buyer fails to purchase the minimum order quantity or minimum shipment amount for each item;
(iii) Pricing is based on Product Specifications and total quantities (within the time frame) for all part numbers of products on most recent of Seller Documents to Buyer. If Buyer does not order and pay for such total quantities above and within the relevant time frame, 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 difference between the Seller standard price then in effect (if higher) and the price paid by Buyer for the quantity of goods released to Buyer;
(iv) Upon any written notice of cessation of supply by Seller for default of Buyer or otherwise as provided in the Seller Documents or as may otherwise be permitted at law or equity, and in addition to all other rights and remedies of Seller, Buyer shall on thirty (30) days’ notice from Seller purchase all goods, inventory, materials, work in process and special tooling built or purchased by Seller for Buyer purchase orders and forecasts upon written notice by Seller and shall pay all outstanding Seller invoices according to their terms, and
(v) Seller will quote and invoice Buyer for any engineering and manufacturing costs, for design, prototyping, sampling, testing, quality inspection, agency certification, tooling, equipment and other related costs), expedited manufacturing or shipping fees (where expedite is agreed by Seller), storage/stocking fees (where agreed by Seller) (any the “Fees”). Unless otherwise designated by Seller in writing, Buyer will pay such Fees within 10 days upon receipt of the relevant invoice from Seller.
- 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 to Seller. Buyer shall be liable for costs of insurance and transportation and for all 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. Seller may allocate production and deliveries among Seller’s customers in its sole discretion. Seller shall have no liability to Buyer for any change to its actual manufacturing lead-time.
- 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.
- TERMS AND METHOD OF PAYMENT: Unless otherwise designated by Seller in writing, where Seller has extended credit to Buyer, terms of payment for goods 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 for goods are cash in advance of manufacture and shipment. The amount of credit or terms of payment may be changed (including without limitation to cash in advance of manufacture or shipping), 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 with consent of Seller, payments are due from the date when Seller is prepared to make shipments and Seller may at its election impose storage fees equal to its then standard stocking rates. Goods held by Seller for Buyer, if any, are at Buyer’s risk and expense. All payments shall be made in US dollars.
- 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.
- 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 Product Specifications.
- 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.
- CHANGES: Buyer may not cancel, revise, supplement or amend a purchase order or scheduled release, or delay delivery, and any such attempt to do so will require Seller prior written approval and if given, may be subject to adjustment in the price and/or delivery date or imposition of Seller fees.
- LIMITED WARRANTY: THE FOLLOWING IS IN LIEU OF ALL WARRANTIES EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY ON THE PART OF SELLER. Except as otherwise provided in these T&C’s, Seller warrants the goods to Buyer against faulty workmanship or the use of defective materials and that such goods will conform to Seller’s written specifications and drawings that are controlled by Seller (“Products Specifications”) at the date of manufacture, for a period of twelve (12) months from the date of shipment (or such longer period as Seller has designated in writing to Buyer). Seller warrants to Buyer 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 and Seller’s limited warranty above shall not apply to, normal wear and tear, experimental or developmental goods, or use of the products in a manner inconsistent with or inapplicable to the Seller specifications and drawings, or damage or defect caused by, in whole or part, any act, omission or negligence of Buyer or third parties (including without limitation, shipper or shipping, line operator or field technicians, or BUYER customers, accident, mishandling, misuse, misapplication, neglect or negligence, alteration, improper installation or service, unauthorized repair or improper testing, or other cause not covered by this limited warranty). Products shall not be non-conforming or defective for subjective requirements that are not detailed on the Seller Product Specifications (including but not limited to cosmetics and packaging blemishes), or for non-critical items or dimensional tolerances or requirements that do not affect the functional or operational capability of the products. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OR ANY WARRANTY OF FITNESS FOR THE PURPOSE INTENDED OR ANY WARRANTY OF MERCHANTABILITY. 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. Buyer may not return goods except as permitted under Seller warranty. Buyer will confirm acceptance of the Products Specifications. Any Buyer requested changes to Products Specifications shall require the written approval of Seller. Any change requested by Buyer to Seller scope of work, including without limitation, such matters as product inspections, testing or quality control will require Seller prior written consent.
- EXCLUSIVE REMEDIES: If the goods furnished by Seller fail to conform to Seller’s 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 determines that such claimed goods fail to conform to the Seller limited warranty. If such goods are non-conforming, Seller shall reimburse Buyer for the reasonable transportation charges paid by Buyer for such non-conforming goods returned to Seller. 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 STRICT LIABLITY, TORT,CONTRACT OR OTHERWISE. IN NO EVENT WILL SELLER BE LIABLE FOR ANY OTHER DAMAGES, INCLUDING WITHOUT LIMITATION, SPECIAL, PUNITIVE, COLLATERAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR COVER OR RE-SOURCING COSTS, LOSS OF INCOME, LOSS OF OPPORTUNITY, LOSS OF USE, DIMINUTION IN VALUE, OR MANFACUTURING LINE DOWN-TIME, FIELD COSTS OR SERVICE TECHNICIANS. In all events, SELLER’s overall liability for warranty claims shall be limited to the amount paid by Buyer to Seller for the relevant Product(s) being claimed.
- ACCEPTANCE OF PRODUCT; NO CERTIFICATES OR AFFIDAVITS: Acceptance of products 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 or install 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.
- 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 and not as a part of any Buyer product or goods) constitute direct infringement of any duly issued and valid United States patent. In any event however, and notwithstanding the above, 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. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY OTHER DAMAGES, INCLUDING WITHOUT LIMITATION, SPECIAL, PUNITIVE, COLLATERAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, COVER OR RE-SOURCING COSTS, LOSS OF INCOME, LOSS OF OPPORTUNITY, OR MANUFACTURING LINE DOWN-TIME, FIELD COSTS OR SERVICE TECHNICIANS.
- BUYER INDEMNITY: To the fullest extent permitted by law, Buyer shall defend, indemnify and hold harmless Seller and its affiliates and each of their respective owners, agents, officers, directors and employees (“Indemnified Parties”) from and against any claim, demand, damage, settlement amount, judgment or loss (including attorney’s fees, expenses and costs and expert witness costs) that the Indemnified Parties may suffer or incur or to which it becomes subject, by reason of bodily injury, including death, to any person or persons, or by reason of damage to or destruction of property of any person or persons, or by reason of any negligent or wrongful act or omission of, or violation of applicable laws by BUYER or any third party, relating to, resulting from or arising in any manner in connection with the use, application, operation, possession, or resale of any goods supplied by Seller to Buyer for any purpose. This indemnity by Buyer includes, but is not limited to the following: (i) the use, application, combination, integration, or modification of Seller’s goods to, for, in or with any of the Buyer Parties designs, specifications, services, or goods; or (ii) use of the Seller goods in a manner inconsistent with or inapplicable to the Seller specifications and drawings; or (iii) use of the Seller goods in the practice of a process or in any experimental product or design; or (iv) Buyer Parties workplace injuries, and employee, contractor and jobsite workers injuries however arising; or (v) service, repair, maintenance, removal, replacement, or transportation of the goods. The above listing of specific instances requiring indemnity shall not in any manner limit the scope of Buyer’s indemnity obligation and is not intended to be an exhaustive listing of all instances requiring indemnity, and this indemnity provision shall be accorded the broadest possible interpretation in favor of indemnity. The above provisions and obligations shall apply to the maximum extent permitted by law, regardless of whether the claim arises under contract, tort, strict liability, product liability, negligence or otherwise, and without regard to the cause or causes thereof, or the negligence of any party or parties, except to the extent resulting directly and solely from the gross negligence or willful misconduct of Seller. “Buyer Parties” or “Buyer Party” shall mean Buyer, its affiliates, and each of their respective agents, employees, contractors, subcontractors, customers and end users. For purposes herein, an “affiliate” (whether Buyer or Seller as the subject entity) shall mean any entity which controls, or is controlled by, the subject entity, or is under common control with, directly or indirectly, the subject entity, with control meaning the ownership of 50% or more of the voting power of ownership interests.
- PROPRIETARY RIGHTS; PRODUCT IMPROVEMENTS; PROPRIETARY INFORMATION: All patents, trade secrets and proprietary rights relating to Seller name, website content, copyrights, trademarks, products and Seller information (including without limitation, know-how, engineering, product technical data, testing data, specifications, drawings, UL listings, listing agency certifications, processes and machines, or any combination thereof) and all modifications, enhancements and improvements to Seller goods, regardless of whether made by Seller or Buyer, shall belong to and remain the exclusive property of Seller (collectively “ Seller Rights”) . 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 Seller Rights. 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. Buyer will not, directly or indirectly, reverse engineer or disassemble the Products or provide any Seller pricing, terms, drawings, specifications, test data, manufacturing and quality information, samples, Products, intellectual property or other materials or information to any third party, including without limitation for the purpose of having such third party quote, source or manufacture any goods for Buyer, except with the prior written permission of Seller which may be given or not in its sole discretion.. 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 commercially 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 or otherwise use the 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. Seller is not obligated to treat as confidential any information or disclosure made by Buyer to Seller unless Seller has given its written consent otherwise.
- TERMINATION AND CANCELLATION: 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 shall survive any termination or cancellation of the supply relationship, Supply Agreement or purchase order. Seller shall have no liability to Buyer under this Section 16.
- 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. Buyer shall be jointly and severally liable for any obligations of an affiliate of Buyer arising or existing by virtue of the Seller Documents.
- TOOLS AND DIES: Unless otherwise expressly provided in the Seller Documents or these T&C’s, all tools and dies, including, without limitation, fixtures, gauges and assembly equipment manufactured for the supply relationship, will be Seller’s property. 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.
- U.S. GOVERNMENT CONTRACTS: Regardless of any term or reference in a Buyer purchase order or other communication, no Buyer references/requirements or terms to flow down provisions applicable to government contracts, including without limitation, FAR, DFAR, Buy American Certificate, Berry Amendment, Vietnam Era Veterans Readjustment Assistance Act, Certification of Disabled Rehabilitation Act, Preference for Domestic Specialty Metals, Trade Agreements Certificate, Combatting Trafficking in Persons, or other, shall apply or be binding on Seller and are rejected. Unless otherwise designated by Seller in writing, the Country of Origin of Seller Products is the Peoples Republic of China and the manufacturing of the goods is performed outside the United States.
- 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.
- SEVERABILITY OF TERMS; HEADINGS; SURVIVAL: If any phrase, clause or provision under any Seller Document or these T&C’s shall be declared unenforceable or void, the validity of any other phrase, clause or provisions of any Seller Document or these T&C’s shall not be affected thereby and shall continue in full force and effect to the maximum extent permitted by law. The headings of paragraphs are for reference only and are not contractual. The terms of these T&C’s and the Seller Documents that are obviously intended to survive, in addition to those that expressly survive, shall survive the cessation or termination of the supply relationship between Seller and Buyer.
- 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 or the terms of the supply relationship. This provision shall survive the expiration, termination or cancellation of the supply relationship. Seller may however state that it is an authorized supplier to Buyer in its marketing and advertising materials, including printed media, virtual media, emails, websites, trade shows and other business events.
- BINDING; ASSIGNMENT: The Seller Documents and any Buyer purchase order (excluding however any Buyer terms that are in conflict with, 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 its obligations under the Seller Documents or its purchase order without the prior written consent of Seller.
- 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 United Nations Convention on Contracts for the International Sale of Goods, as amended or supplemented, 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.
- LIMITATION: No past, present or future director, officer, employee, member, partner, shareholder or other owner (whether direct or indirect), affiliate, agent, attorney or representative of Seller or any Seller affiliate shall have any liability for any obligations or liabilities of Seller to Buyer or any Buyer Parties for any claims or losses based on, in respect of, or by reason of, the transactions contemplated by the Seller Documents. IN NO EVENT WILL SELLER BE LIABLE FOR ANY SPECIAL, PUNITIVE, COLLATERAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR COVER OR RE-SOURCING COSTS, LOSS OF INCOME, LOSS OF OPPORTUNITY, LOSS OF USE, DIMINUTION IN VALUE, OR MANFACUTURING LINE DOWN-TIME, FIELD COSTS OR SERVICE TECHNICIANS, EVEN IF ADVISED OF THE POSSIBLITY OF SAME.
- APPLICABLE LAW AND FORUM; LIMITATION ON TIME TO SUE: The validity, performance, construction and any other dispute arising out of, concerning, or relating to the Seller Documents or these T&C’s, any Buyer purchase order, or the supply relationship between Seller and a Buyer shall be governed exclusively by the laws of the State of Oklahoma (notwithstanding its conflict of laws provisions to the contrary). The rule of construction that a document shall be construed against the drafter shall not apply. In the event of any dispute between the Seller and a Buyer, jurisdiction and venue for any litigation shall be exclusively in any federal or state court sitting in a judicial district located in Oklahoma City, Oklahoma County, State of Oklahoma, and all defenses or objections thereto are waived. In any such litigation, the prevailing party shall be entitled to an award of its reasonable attorney fees and costs and expert witness costs. IN ANY SUCH LITIGATION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL RIGHTS TO A TRIAL BY JURY ARE WAIVED.
Any Buyer claim, action or proceeding against Seller must be commenced within the shorter of (i) the shortest limit of time permitted by the laws of the State of Oklahoma, or (ii) no later than twenty-four (24) months after the alleged breach or other event giving rise to Buyer’s claim occurs, without regard to the date of discovery. Any such claim, action or proceeding not brought within such time period shall be barred.