ORDER CONFIRMATION
TERMS AND CONDITIONS
FORM - II
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. Seller, Wing Inflatables,
Inc. (hereinafter called the Company), hereby gives notice of its
objection to any different and/or additional terms and conditions and
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.
2.
Terms of Payment
Unless otherwise set forth on the face of this 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 contract.
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 contract 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.
4.
Quotations 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
contract 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.
10.Warranty
(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 free of defects in workmanship and
materials.
(b). The Company shall, upon prompt written notice from the Buyer,
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 the 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 EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES.
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 specifiy 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.
12.Indemnification
(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.
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.
14.Termination
(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). This Contract 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 18 herein, entitled “Default/
Breach.”
(d). This contract or, at the option of the Buyer, individual orders
placed hereunder 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). This contract 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. 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.”
15.Patents
(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.
17.Default/Breach
Buyer shall be liable to the Company for any costs and reasonable attorney’s fees to enforce the provisions of this agreement including but
not limited to payment under article 2 herein should Buyer default or
breach any provision of this Contract.
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
This order shall be interpreted pursuant to the laws of the State of California, its choice of laws provisions notwithstanding. This 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 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.
Point of Sale Terms
F-723-023-A