Order Confirmation Terms and Conditions
1. Terms and Conditions of Sale
The terms and conditions as set forth herein shall govern this transaction, notwithstanding any additional and/or differing terms and conditions set forth on any documentation of Buyer. Wing Inflatables, Inc. (hereinafter, 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 may be expressly accepted by it in writing. These terms and conditions shall govern any inconsistent terms contained in the Proposal/Contract (the “Purchase Order”) or in any other document, instrument or agreement. By accepting goods or services from the Company, Buyer agrees to be bound by these terms and conditions. The Company reserves the right to modify these terms and conditions at any time, with or without notice. These terms and conditions constitute the sole and entire agreement of the parties with respect to the transaction and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of these terms and conditions, unless a separate overriding written contract has been entered into and signed by the parties.
2. Terms of Payment
Unless otherwise set forth on the face of the Purchase Order, terms are net cash within 30 days from date of invoice. Pro rata payments shall become due as partial shipments are made. When deliveries and/or work in process is delayed by the Buyer, the Company may require payments for all material accumulated and work performed under the Purchase Order. Material held for the Buyer will be at the risk and expense of the Buyer.
3. Payment Assurance
(a). If, in the opinion of the Company, the financial condition of the Buyer at time the goods to be purchased hereunder (the “Goods”) are ready for shipment does not justify the terms of payment specified, the Company may require Buyer before shipment to arrange terms of payment satisfactory to the Company. (b). In the event of the insolvency, bankruptcy or default of the Buyer, the Company shall be entitled to cancel any outstanding contract, to receive reimbursement for its reasonable and proper cancellation charges, and to retain possession of materials and equipment purchased and/or Goods produced under the Purchase Order until the charges therefor are paid. If the charges are not paid by Buyer within ninety (90) days of completion of the work and invoicing, the Company shall be entitled to sell the materials, equipment, and/or Goods at a public or private sale, upon written notice to the Buyer and recover all costs incurred in connection therewith, including reasonable attorneys’ fees.
Quotations are void unless accepted within thirty (30) days from date thereof, unless otherwise stated, and in the meantime are subject to change upon notice. Orders made thereon are not binding until and unless accepted by the Company. Shipping dates are approximate and are based upon prompt receipt of all necessary information and approved drawings/patterns whenever required. Any clerical errors are subject to correction
5. Price Policy
(a). Price Subject to Change: 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. (b). Price Adjustment: (i) Any increase in Seller’s costs due to governmental legislation, regulation or order providing for tax on any materials, goods, sales, use or process, or providing for any regulation or control of Seller’s purchases, materials, labor costs, sales or business, may be added to the price specified on any order received hereunder as to any undelivered portion of such order. (ii) Taxes: 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, they will be added to the invoice as a separate item unless the customer has furnished an acceptable tax exemption certificate from such tax prior to shipment. (c). Unless otherwise stated on the face hereof, prices quoted are F.O.B. origin.
6. Delivery Risk of Loss
All transportation costs shall be for the account of the Buyer and shall be added to the invoice. Any material sent to the Company by Buyer shall be delivered by Buyer F.O.B. the Company’s address set forth hereon. Materials furnished by the Company shall be delivered to the Buyer F.O.B. the Company’s address hereon. Title to and risk of loss of or damage to any material furnished by the Company under the Purchase Order shall pass to the Buyer F.O.B. the Company’s address hereon. Risk of loss or damage to the Buyer’s material shall be with the Buyer at all times.
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 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
(a). The Company shall not be liable for failure to perform or for delay in performance due to extreme weather conditions, earthquake, fire, flood, strike or other labor difficulty, act of God, terrorism, piracy, act of any governmental authority or of the Buyer, riot, embargo, fuel or energy shortage, vehicle shortage, faulty castings or forgings, wrecks or delay in transportation, inability to obtain necessary labor, materials or manufacturing facilities from usual sources, or due to any cause beyond its reasonable control. (b). In the event of delay in performance due to any such cause, 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.
(a). The Company’s warranty for individual products will be included with the product shipment. In addition to and not in lieu thereof, the Company warrants, to the extent to which any of the same may be applicable, that any material furnished by it or any work done by it on the Buyer’s behalf or both shall be reasonably free of defects in workmanship and materials.
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 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.
(b). 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 product warranty supplied with the product. Such repair or correction is the sole remedy provided by Company for any failure to conform to the applicable warranty. It is understood and agreed 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.
(c). The above warranties do not apply to products which have a life, under normal use, inherently shorter than the period indicated at subparagraph (b) above. The Company, on products or components not manufactured by the Company, will extend to Buyer the same warranty it receives from its supplier. The Company shall have no other liability with regard to such products or components.
(d). 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.
(e). The remedies provided above are the Buyer’s sole remedies in the event of any failure of the Company to comply with its obligations. 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
(a). The Company, its contractors and suppliers of any tier, shall not 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 price paid to Company for the item(s) on which such claim is based, and the Company shall not be liable for any special, indirect, incidental, consequential or punitive damages whatsoever.
(b). Company shall not be liable for any failure of Buyer to provide Company with current and applicable data and/or jigs necessary to develop and manufacture specific product for Buyer’s use. Any costs (including but not limited to travel, rework, redesign and related expenses) related to modifying product to custom fit Buyer’s vessel(s) shall be fully borne by Buyer in the event Buyer has failed timely to provide current data and/or jigs necessary to Company prior to manufacture of the product requested.
(c). Company reserves the right to determine if coated fabric containing visual blemishes is suitable for use in products. If Buyer requires that no visual blemishes in or on the fabrics be included in the end items to be delivered, Buyer must so specify at the time of order and reference this in specifications or related drawings and Company reserves the right to adjust pricing to accommodate such request.
(d). The remedies of the Buyer set forth herein are exclusive and the liability of the Company with respect to any contract, or anything done in connection therewith such as the performance or breach thereof, or from the manufacture, sale, delivery, resale, repair or use of any goods or materials covered by or furnished under the contract, whether in contract, in tort (including negligence) or otherwise, shall not exceed the price set forth herein for the work.
(a). Buyer holds Company harmless from any damages including but not limited to damages incurred as result of Company’s use of Buyer’s materials and/or components and/or Company’s adherence to Buyer’s specifications and/or standards. Buyer further agrees to indemnify, defend and hold harmless the Company, each of its directors, officers, employees, agents, and attorneys, or any other Person affiliated with or representing Lender (each, an “Indemnified Person”) against: (a) all obligations, demands, claims, and liabilities (collectively, “Claims”) claimed or asserted by any other party in connection with the Purchase Order, these terms and conditions, any products or services provided by the Company, 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, bad faith or willful misconduct of such Indemnified Person or (ii) constitute indirect, consequential, special or punitive damages.
13. Returned Material
No custom order goods, private label goods, or goods made to customer’s specifications and/or design or performance requirements shall be accepted for return by the Company. No material may be returned without having secured approval and terms for return from the Company. The return of any material will not be permitted under any circumstance without the Company’s properly executed Returned Goods Authority Form. Materials returned without 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.
(a). After acceptance by the Company, a Purchase Order shall not be terminated, in whole or in part, by the Buyer except by agreement in writing from an authorized officer of the Company 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 order price for the terminated portion of the order to compensate for indirect costs resulting from the termination.
(b). The Purchase Ordeer may be terminated at any time by the mutual agreement of the parties, which agreement shall specify their respective remaining rights and duties.
(c). This contract may be unilaterally terminated by Company for default by Buyer, as defined in Paragraph 17 herein, entitled “Default/Breach.”
(d). The Purchase Order or, at the option of the Buyer, individual orders placed hereunder or thereunder may be terminated in whole or in part by Buyer because of termination of a relevant Government prime contract. In the event of termination of this order or any portion thereof for such reason, Company shall be entitled:
(i) To the price of goods completed and shipped, but not yet paid for, at the contract price;
(ii) To the price of goods completed but not yet shipped or paid for, at the contract price (Buyer will be entitled to delivery of such goods);
(iii) The costs incurred (including indirect, overhead and unabsorbed overhead costs) and a reasonable profit thereon for work in progress and commitments made by the Company is support of the order. Buyer will be entitled to receive any goods for which it pays. The Company has the option not to claim against Buyer for work in progress and/or commitments made in support of the order which it is willing to absorb or redirect.
(iv) All other damages sustained by the Company as a result of such breach.
(e). The Purchase Order or, at the option of the Company, individual orders placed hereunder (and obligations hereunder) may be terminated by the Company in the event 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 the Article entitled “Limitation of Liability.”
(a). 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 order 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 goods 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. (b). Unless otherwise specifically agreed in writing executed by an authorized officer of the Company, Company shall have the right to seek patent protection and all rights in any patent issued for any item designed by Company in support of this order.
16. Scrap Materials
All scrap materials are the property of the Company, regardless who supplied the materials from which they derived.
Buyer shall be liable to the Company for any costs and reasonable attorney’s fees to enforce the provisions of the Purchase Order including but not limited to payment under article 2 herein should Buyer default or breach any provision hereof.
18. Technical Data
No right to technical data of the Company or the Company’s Vendors other than finished product inspection data is conveyed hereunder.
19. Use Of Product Name
Unless otherwise agreed in writing signed by an authorized representative of the Company, Buyer may not use, under any circumstances, the product name(s) or the company’s name for any purpose, including advertising.
20. Disputes; Choice of Law
The Purchase Order and these terms and conditions shall be interpreted irrevocably and solely pursuant to the laws of the State of California, its choice of laws provisions notwithstanding. The Purchase Order 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. If any court of competent jurisdiction holds that any provision of the Purchase Order or these terms and conditions is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the Purchase Order and these terms and conditions 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.