In these terms and conditions, the following terms shall have the following meanings:
Buyer: any purchaser of Goods and/or Services;
Claims: all obligations, demands, claims and liabilities claimed or asserted by any other party in connection with the Contract or any Goods and/or Services provided by the Company;
Company: Wing Inflatables Inc., a company incorporated in the State of California;
Conditions: the terms and conditions set forth in this document, as amended and restated from time to time;
Contract: the contract between the Company and the Buyer, such contract comprising of the Purchase Order, these Conditions and any other terms as may be unanimously agreed in writing by the Buyer and the Company;
Force Majeure Event: any extreme weather conditions, earthquake, flood, strike or other labor difficulty, act of God, terrorism, piracy, act of any governmental authority, riot, embargo, fuel or energy shortage, vehicle shortage, faulty castings or forgings, delays in transportation, inability to obtain necessary labor, materials or manufacturing facilities from usual sources, or due to any cause beyond the Company’s reasonable control;
Goods: the goods (or any part of them) to be provided by the Company to the Buyer as set out in the Purchase Order;
Government Prime Contract: any contract between the Buyer and any federal or state government;
Indemnified Person: each of the Company, its subsidiaries and their respective directors, officers, employees, agents, attorneys, affiliates and representatives;
Purchase Order: a Buyer’s order for the Goods or Services as set out in the Buyer’s purchase order form for Goods and/or Services;
Services: any services to be provided by the Company to the Buyer; and
1. Terms and Conditions of Sale
1.1 These Conditions shall form part of the Contract and, together with any Purchase Order, shall govern the provision of Goods and/or Services by the Company. To the extent that there is any conflict between these Conditions and the Purchase Order, the terms set out in the Purchase Order shall prevail. The Contract applies to the exclusion of any other terms or conditions that the Buyer may seek to impose or which, subject to applicable law, are implied by trade, custom, practice or course of dealing. [Note to Draft: Drafted such that these terms and those In a Purchase Order apply. If they conflict, the terms of a Purchase Order shall prevail. We recommend that all Purchase Orders make express reference to the terms, specifying these term apply to all orders made with the Company]
1.2 The Company hereby gives notice of its objection to any different and/or additional terms and conditions, and the Company does not agree to be bound by any such different and/or additional terms and conditions except those which the Company accepts in writing.
1.3 The Purchase Order constitutes an offer by the Buyer to the Company to purchase the Goods or Services in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Purchase Order and any Specification are complete and accurate in all respects.
1.4 The Purchase Order shall only be deemed to be accepted when the Company issues a written acceptance of the Purchase Order, at which point the Contract shall come into existence.
1.5 By accepting Goods and/or Services from the Company, the Buyer irrevocably agrees to be bound by these Conditions.
1.6 The Goods and Services to be provided shall be specified in the Purchase Order which shall set out any applicable Specification. The Company reserves the right to amend any Specification to the extent required by applicable law.
2. Terms of Payment
2.1 Unless otherwise specified in the Purchase Order, the Purchase Price shall be payable in full and cleared funds without set-off, counterclaim, deduction or withholding (except as may be required by applicable law) within 30 days from date of invoice.
2.2 The Company reserves the right to invoice the Buyer for Goods and/or Services at any time including by way of interim invoices.
2.3 In the event that delivery of the Goods or rendering of the Services is delayed by any act or omission of the Buyer, the Company reserves the right to issue invoices to the Buyer for any and all costs of materials procured and work performed under the Contract, notwithstanding that such Goods and/or Services are yet to be delivered. Any sums due under an invoice issued pursuant to this clause 2.3 shall be payable within 30 days from the date of invoice.
3. Payment Assurance
3.1 If, in the reasonable of the Company, the financial condition of the Buyer at the time the Goods are ready for shipment is such that the Buyer may not be able to satisfy the Purchase Price or any other sums owing to the Company in full, the Company may require the Buyer to make a payment to the Company on terms that are satisfactory to the Company before shipment of the Goods takes place.
3.2 In the event of the insolvency, bankruptcy or default of the Buyer, the Company shall be entitled to:
(a) cancel any outstanding Contract;
(b) receive reimbursement for its reasonable and proper cancellation charges; and
(c) retain possession of materials and equipment purchased and/or Goods produced under the Purchase Order until such time as the Purchase Price for such materials, equipment and/or Goods are paid in full.
Any quotation for Goods and/or Services shall not constitute an offer and shall only be binding on the Company once accepted by the Company following receipt of an order for Goods and/or Services.
5. Price Policy
5.1 Prices are subject to change without notice. Applicable price adjustment clause(s) will be stated at the time of quotation and a copy will be included as part of the quotation.
5.2 The Company shall, by providing notice to the Buyer, be entitled to add to the Purchase Price the amount of any increase in the Company’s costs which occurs as a result of:
(a) changes to any applicable legislation or regulation (including in relation to tax) which relate to any materials, goods, services, sales, use or process, or which provide for any regulation or control of the Company’s purchases, materials, labor costs, sales or business;
(b) any request by the Buyer to change the delivery date, quantities or types of Goods or Services or any Specification at any time;
(c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate information or instructions; and
(d) any other factor that is beyond the Company’s control.
5.3 Prices quoted are exclusive of any present or future federal, state or local sales, use or excise taxes. In states where such sales, use or excise taxes apply, such taxes will be added to the invoice as a separate item unless the Buyer has furnished the Company with an acceptable tax exemption certificate from such tax prior to shipment.
5.4 Unless otherwise stated on the face hereof, prices quoted are F.O.B. origin.
6. Delivery and Risk of Loss
6.1 All transportation costs for the provision of Goods and Services to the Buyer shall be for the account of the Buyer and such costs shall be in addition to the Purchase Price and reflected in the invoice.
6.2 The Buyer shall deliver any materials to the Company’s address at its own risk. Risk of loss or damage to the Buyer’s material shall remain at the risk of the Buyer at all times.
6.3 Title to and risk of loss of or damage to any Goods furnished by the Company under the Contract shall pass to the Buyer F.O.B the Company’s address hereon. [Note to draft: F.O.B. means the Company is liable for costs until cargo is loaded on the ship but terms suggest all costs for the Buyer. TBC]
6.4 Any dates quoted for delivery are approximate only. The Company shall have no liability for any delay in delivery of Goods.
7. Shipping Dates
Shipping and/or completion dates are approximate and are based on prompt receipt of all necessary information and approvals from the Buyer. Unless the Buyer advises in writing prior to the scheduled first delivery that an earlier shipment is not permissible, the Company reserves the right to ship prior to the order shipping date.
8. Force Majeure
8.1 The Company shall not be liable for failure to perform or for delay in the performance of its obligations under the Contract due to a Force Majeure Event.
8.2 In the event of delay in performance by the Company due to a Force Majeure Event, the date of delivery or time for completion will be extended by a period of time reasonably necessary to overcome the effect of such delay.
9. Penalty Clauses
The Company will not accept any penalty or liquidated damage clauses of any kind, written or implied, or any liabilities arising from such clauses, unless specifically approved in writing by a duly authorized officer of the Company.
10.1 In addition to the warranties set out herein, the Company’s warranty for individual Goods will be included with the shipment of such Goods (to the extent applicable). In addition to and not in lieu thereof, the Company warrants, to the extent to which any of the same may be applicable, that as at the time of delivery, Goods shall be reasonably free of defects in workmanship and materials and shall materially conform in all material respects with the relevant Specification.
TO THE FULLEST EXTENT PERMISSABLE PURSUANT TO APPLICABLE LAW, THE COMPANY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. THE BUYER ACKNOWLEDGES THAT THE PRODUCTS PURCHASED ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS OR SERVICES OR OTHER MATERIALS PROVIDED, OR THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
10.2 The Company shall, upon prompt written notice from the Buyer, repair or correct any failure to conform to the applicable foregoing warranty in accordance with the warranty supplied with the relevant Good(s) or otherwise replace such Good(s) at its election. Such repair or correction or replacement of Good(s) is the sole remedy provided by Company for any failure to conform to the applicable warranty. The parties acknowledge and agree that in the event the Buyer has supplied any specifications, materials and/or components for use hereunder, unless otherwise agreed to in writing by the Company, the Company assumes no responsibility with respect to the suitability of the Buyer’s specifications, materials and/or components or with respect to any defects whether latent or patent in the same and the Company provides no warranty regarding such specifications, materials and/or components. The Company, on products or components not manufactured by the Company, will extend to the Buyer the same warranty it receives from its supplier. The Company shall have no other liability with regard to such products or components.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
10.3 The remedies provided above are the Buyer’s sole remedies in the event of any failure of the Company to comply with its obligations hereunder or otherwise imposed by applicable law. Correction of any nonconformity in the manner and for the period of time provided above shall constitute complete fulfillment of all liabilities of the Company whether the claims of the Buyer are based on contract, in tort (including negligence) or otherwise with respect to or arising out of the work performed hereunder.
IN NO EVENT SHALL THE COMPANY BY REASON OF THIS WARRANTY OR OTHERWISE BE LIABLE FOR SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE PRODUCTS OR SERVICES OF THE COMPANY, EVEN IF THE COMPANY OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE COMPANY'S TOTAL LIABILITY TO BUYER (OR ANY USER OF THE PRODUCTS OR SERVICES) FROM ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, OR OTHERWISE) EXCEED THE AMOUNT BUYER PAID TO THE COMPANY, IF ANY, FOR PRODUCTS PURCHASED OR SERVICES RENDERED.
APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE ABOVE LIMITATIONS OF LIABILITY, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
11. Limitation of Liability
11.1. Neither the Company nor its contractors or suppliers of any tier shall be liable in contract, in tort (including negligence, breach of warranty, strict liability, default, or any other reason arising out of the use or handling of its product or its performance on this contract) or otherwise for damage or loss of, including but not necessarily limited to, other property or equipment, loss of business, profits or revenue, promotional or manufacturing expenses, injury to reputation, or loss of customers, loss of use of equipment, cost of capital, cost of purchased or replacement material or goods, claims of customers of the Buyer, to the extent that such liability extends the Company’s obligations beyond the Purchase Price on which such claim is based, and the Company shall not be liable for any special, indirect, incidental, consequential or punitive damages whatsoever.
11.2 In no event shall the Company’s total liability to the Buyer for any and all losses arising under or otherwise in connection with this Contract (whether in contract, tort or otherwise) exceed the aggregate amount the Buyer paid to the Company for the Goods and/or Services provided.
11.3 The Company shall not be liable for any losses arising out of or otherwise in connection with the failure of the Buyer to provide the Company with current and applicable data and/or jigs necessary to develop and manufacture Goods in accordance with a Specification for the Buyer’s use. In the event of such failure by the Buyer, any costs (including but not limited to travel, rework, redesign and related expenses) related to modifying product to custom fit the Buyer’s vessel(s) shall be fully borne by the Buyer in the event that the Buyer has failed timely to provide current data and/or jigs necessary to the Company prior to manufacture of the Goods requested.
11.4 The Company reserves the right to determine whether, in its absolute discretion, coated fabric containing visual blemishes is suitable for use in Goods. If the Buyer requires that no visual blemishes in or on the fabrics be included in the Goods to be delivered, the Buyer must so specify at the time of order and must include this request in any Specification or related drawings in accordance with clause 6.2 of these Conditions.
12.1 The Buyer shall hold the Company harmless from any and all losses including but not limited to losses incurred as result of the Company’s use of the Buyer’s materials and/or components and/or the Company’s adherence to the Buyer’s specifications and/or standards. The Buyer further agrees to indemnify and keep indemnified the Company and each Indemnified Person against:
(a) any and all Claims; and
(b) all losses or expenses in any way suffered, incurred, or paid by such Indemnified Person as a result of, or arising from, transactions between the Buyer and the Company (including reasonable attorneys’ fees and expenses),
provided that such indemnity will not, as to any Indemnified Person, be available to the extent such Claims (i) have been caused by, or resulted from, the gross negligence or wilful misconduct of the Company or such Indemnified Person or (ii) constitutes indirect, consequential, special or punitive damages.
13. Returned Material
13.1 No custom order goods, private label goods, or goods made to the Buyer’s Specification and/or design or performance requirements shall be accepted for return by the Company under any circumstances.
13.2 No material may be returned by the Buyer without having secured approval and terms for return from the Company and the return of any material will not be permitted under any circumstance without the Company’s properly executed Returned Goods Authority Form.
13.3 Materials returned without clear and complete identification in accordance with the Company’s instructions or without charges prepaid will not be accepted. The Company reserves the right to refuse any material returned for credit. Materials returned and accepted will be subject to a minimum 20% restocking charge.
14.1 Following acceptance on behalf of the Company, the Contract shall not be terminated, in whole or in part, by the Buyer except by agreement in writing by an authorized officer of the Company (acting in its sole discretion) and any such agreement will be contingent upon payment of reasonable charges based upon expenses already incurred and commitments made by the Company plus a charge of six percent (6%) of the aggregate purchase price for the terminated portion of the order, in order to compensate for indirect costs resulting from the termination.
14.2 The Contract may be terminated at any time by the mutual agreement of the parties in writing, which agreement shall specify their respective remaining rights and duties.
14.3. This Contract may be unilaterally terminated by the Company with immediate effect by giving written notice to the Buyer if:
(a) the Buyer commits a material breach of any term of this Contract and, if reasonably capable of doing so, fails to remedy such breach within 10 days following the Buyer being notified in writing to do so;
(b) the Buyer takes any step or action in connection with its entering administration, liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Buyer’s financial position deteriorates to such an extent that in the Company’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy,
and, if the Buyer becomes aware of any circumstances which may be reasonably likely to give rise to any of the matters set out clauses 14.3(b)-(d) inclusive, it shall immediately give written notice to the Company.
14.4 The Contract or, at the option of the Buyer, individual orders placed hereunder or thereunder may be terminated in whole or in part by the Buyer in the event that the termination of a relevant Government Prime Contract occurs which directly relates to the Goods and/or Services ordered pursuant to the Contract.
14.5 In the event of termination of this Contract or any portion thereof pursuant to clause 14.4, the Company shall be entitled to immediate payment of:
(a) any unpaid portion of the Purchase Price in respect of Goods completed and shipped to the Buyer;
(b) any unpaid portion of the Purchase Price in respect of Goods completed and yet to be shipped to the Buyer (such Goods to be shipped pursuant to the terms of the Contract notwithstanding termination pursuant to clause 14.6);
(c) any unpaid portion of the Purchase Price in respect of Services provided up to the date of termination; and
(d) the costs incurred (including indirect, overhead and unabsorbed overhead costs) for work in progress and commitments made by the Company in relation to the performance of its obligations under the Contract and a profit equal to 6% of the value of such costs; and
(e) any and all other damages in respect of losses suffered by the Company as a consequence of termination of the Contract pursuant to clause 14.4.
14.6 For the avoidance of doubt, in relation to any payments made by the Buyer in full payment of the relevant Purchase Price, the Buyer shall be entitled to receive any Goods and/or Services for such payment.
14.7 The Contract or, at the option of the Company, individual orders placed hereunder (and obligations hereunder) may be terminated by the Company in the event that the Company determines in the exercise of its sole discretion that continued efforts to perform hereunder have been rendered contractually impossible or commercially impracticable. In such event, the parties will negotiate in good faith and agree upon their respective rights and duties, but the Company’s obligations shall not extend beyond those assumed by it under clause 13 of these Conditions.
15.1 Except as noted below, the Company will defend any suit which may be brought against the Buyer based on a claim that any Goods and/or materials furnished under this Contract which Goods and/or materials are of the Company’s sole design and constitute an infringement of any valid United States letters patent (provided the Company is notified promptly of such suit and copies of all papers therein are delivered to the Company). The foregoing states the entire liability of the Company for patent infringement by Goods and/or materials delivered hereunder. The Company shall have no liability for patent infringement in the event the alleged infringement relates in whole or in part to any goods, materials and/or components furnished by Buyer and/or to goods and/or components which are custom order goods, private label goods and/or produced to specifications or performance requirements required by Buyer.
15.2 Unless otherwise specifically agreed in writing executed by an authorized officer of the Company, the Company shall have the right to seek patent protection and all rights in any patent issued for any item designed by the Company in support of this Contract and the Goods provided hereunder.
16. Scrap Materials
All scrap materials are the property of the Company, regardless who supplied the materials from which they derived.
The Buyer hereby acknowledges and agrees that it shall be liable to the Company for any costs and reasonable attorney’s fees incurred by the Company to enforce the provisions of the Contract including but not limited to payment of the amount owed for Goods and/or Services should Buyer default or breach any applicable provision hereof.
18. Technical Data
No right to technical data of the Company or the Company’s respective vendors other than finished product inspection data is conveyed hereunder.
19. Use of Product or Company Name
Unless otherwise agreed in writing signed by an authorized representative of the Company, the Buyer may not use, under any circumstances, the product name(s) or the Company’s name for any purpose whatsoever, including advertising.
20. Entire Agreement
20.1 The Contract constitutes the sole and entire agreement between the Company and the Buyer with respect to the respective purchase of Goods and/or Services and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2. Each party agrees that, subject to applicable law, it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
The Company reserves the right to modify these Conditions from time to time. Any modification of these Conditions shall by uploaded to the Company’s website at http://www.inflatablesolutions.com/terms and shall be available upon request.
22. Disputes; Choice of Law
22.1 The Contract shall be interpreted irrevocably and solely pursuant to the laws of the State of California, its choice of laws provisions notwithstanding. The Contract shall not be subject to the provisions of the United Nations Convention on the Sale of Goods and/or any successor such conventions. Any dispute pertaining to this order shall be brought exclusively and irrevocably solely in the courts of the State of California or in the United States District Court for the Northern District of California if it shall have jurisdiction thereof.
22.2 If any
court of competent jurisdiction holds that any
provision of the Contract is illegal, invalid, or
unenforceable, the legality, validity, and
enforceability of the remaining provisions of the
Contract will not be affected or impaired, and all
remaining terms of the Purchase Order and/or these
terms and conditions shall remain in full force and
effect, provided that this provision shall not be
applied to defeat the intent of the parties .