FirstSpear® Technology Group LLCFirstSpear® Technology Group LLC
FIRSTSPEAR, LLC STANDARD TERMS AND CONDITIONS OF SALE
DESCRIPTION OF GOODS. This document, together with the terms and conditions on the reverse hereof, serves as the offer of FirstSpear, LLC., (“Seller”) to the buyer identified herein (“Buyer”) to sell the Goods described on the face hereof (“Goods”).
ACCPEPTANCE. No acknowledgment by Seller of, reference by Seller to or performance by Seller under any order submitted by Buyer shall be deemed to be an acceptance by Seller of any terms or conditions contained in such order that are additional to or contrary to these Terms and Conditions. Any acceptance by Seller of any oral or written order from Buyer is subject to and includes these Terms and Conditions and is expressly conditioned upon Buyer’s assent to any terms and conditions of sale herein which are additional to or different from any terms or conditions of sale contained in any order or communication submitted by Buyer. Except as expressly provided below, no order may be changed or cancelled by Buyer after acknowledgment by Seller without Seller’s written consent, and Seller reserves to its sole judgment and discretion when and under what circumstances it will approve any order cancellations or changes. If changes or cancellations are accepted, a change or cancellation fee may be charged to Buyer in accordance with Seller’s then current change and cancellation policy.
DELIVERY. Unless otherwise specified on the face hereof, the Goods will be delivered F.O.B. Seller’s warehouse or plant. Seller shall be deemed to have made timely delivery if delivery is made by the later of: (i) 30 days after the delivery date for the shipment set forth on the Acknowledgment (as defined below); or (ii) fifteen (15) days after Seller’s receipt of written notice of Buyer’s intention to cancel as to a particular shipment because of Seller’s failure to timely deliver. Seller has right to update delivery schedule via revised Acknowledgement at any time due to Force Majeure, delays in the supply chain, or Seller’s receipt of DO and/or DX Rated orders from the U.S. Government. Under no circumstances shall Seller’s failure to make the timely delivery of a particular shipment permit Buyer to cancel as to any other shipment.
RISK OF LOSS. If Seller is to ship the Goods by carrier, risk of loss shall pass to Buyer when the Goods are delivered to the carrier even though the shipment is under reservation. If Buyer is to pick up the Goods at Seller’s warehouse or plant, risk of loss shall pass to Buyer on tender of delivery at Seller’s plant or warehouse. Anything to the contrary in these Terms and Conditions notwithstanding, risk of loss shall also pass to Buyer upon the occurrence of any of the following events: (i) Buyer is unable or refuses to accept delivery on the delivery date for the shipment specified on the acknowledgement; or (ii) the Goods are ready for delivery and Buyer has failed to furnish Seller with shipping instructions; or (iii) Buyer has paid the entire purchase price for a shipment prior to delivery. Under no circumstances shall Seller be obligated to obtain insurance for Buyer.
ACKNOWLEDGEMENT. “Acknowledgement” means the Seller’s written confirmation and acceptance of order from the Buyer. Seller has the right to update the Acknowledgement at any time for revision of schedule or revision of payment terms. The latest Acknowledgement sent by Seller supersedes all previously sent Acknowledgements.
PRICE. Unless otherwise specified on the face hereof, the price of the Goods is F.O.B. Seller’s warehouse or plant and is exclusive of all insurance, freight, packing and unpacking charges and all imposts, duties and taxes. Title and risk of loss shall pass at Seller’s warehouse. If Seller pays any insurance, freight, packing, unpacking or other charges in connection with any shipment or any imposts, duties or taxes in connection with any shipment (including, without limitation, any sales, use, excise, value added, ad valorem or property taxes and any interest or penalties in connection with any of the foregoing, but excluding any taxes measured on Seller’s net income), Buyer, upon receipt of an invoice from Seller therefor, will promptly reimburse Seller for same. Buyer is either purchasing Goods for resale or is authorized as a direct pay taxpayer by the state to which use (sales) tax is applicable (Buyer shall provide proof of such direct pay status). If Buyer is purchasing Goods for resale, Buyer shall furnish the resale certification required by the state of the Buyer’s principal office; provided, if Goods are shipped elsewhere, Buyer shall furnish such evidence required by the recipient address state. Buyer shall reimburse Seller for any and all tax compliance costs incurred by Seller relating to Buyer’s failure to timely furnish any and all of the foregoing tax documentation. Prices are firm for all Goods scheduled for delivery (in accordance with the delivery date set forth on the Acknowledgment) not more than ninety (90) days from the date of the Acknowledgement. Prices for Goods scheduled for delivery thereafter are subject to increases; provided however, that Seller shall give Buyer prior written notice of any such increases, and Buyer shall have the right to cancel the entire (but only the entire) portion of the sale of Goods affected by such price increases, provided Seller receives from Buyer written notice of such cancellation within fifteen (15) days after Buyer’s receipt of Seller’s notice of price increase.
FORCE MAJEURE. Seller shall have no liability for any delays or nonperformance caused by circumstances beyond Seller´s control including, but not limited to, fire, flood, war, riot, civil commotion, government action, accident labor trouble or shortage, energy shortage, inability to obtain material, equipment, transportation delays, or acts of God.
TECHNICAL ADVICE. Upon request, Seller will endeavor to furnish such technical advice as it has available in reference to Buyer´s use of its products. Buyer expressly understands that any technical advice that Seller furnishes concerning the use of its products is given gratuitously, and Seller assumes no obligation or liability for the advice or results obtained, all such advice being given and accepted at Buyer´s risk.
EXPORT CONTROLS and FCPA. Buyer shall not sell, resale, export, reexport, retransfer or engage in or facilitate other transactions contrary to U.S. law, including without limitation, the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, U.S. economic sanctions regulations administered by the U.S. Treasury Department, and the U.S. Foreign Corrupt Practices Act.
TERMS OF PAYMENT. Buyer agrees to promptly pay all sums agreed to be paid hereunder, together with all costs incurred in the collection of any amount due by suit or otherwise, including reasonable attorneys´ fees. Payment terms will be as noted on the face of the Acknowledgement. Shipments and deliveries hereunder shall at all times be subject to the approval of Seller´s credit department. Seller´s payment terms are subject to change without notice and those in effect at time of shipment shall apply. Seller reserves the right to divide an order into separate shipments and separately invoice such shipments, in which case each shipment shall be deemed a separate contract and payment therefore shall be due in accordance with these terms and conditions. If Buyer fails to fulfill the terms of payment, or if Seller shall ever have any doubt as to Buyer´s financial responsibility, Seller may, at its option, and without limitation: (i) require full or partial payment in advance; (ii) demand payment and suspend deliveries until payment is received; or (iii) decline to make further deliveries except upon receipt of cash or satisfactory security. Buyer´s failure to furnish payment upon demand shall constitute a repudiation of this contract, and Seller shall be entitled to receive reimbursement for its reasonable cancellation charges. Seller shall not be liable for any of Buyer´s costs or expenses arising out of the exercise of any of Seller´s rights hereunder.
CANCELLATION CHARGES. Buyer shall be liable for the payment of reasonable cancellation charges, which shall not be less than 10% of the price of the Goods cancelled, but shall include, without limitation, the following: (a) all costs and expenses that Seller incurs for or on account of the Goods cancelled and the cancellation; (b) any and all liabilities, costs, damages and expenses that Seller incurs by or as a result of commitments incident to the Goods involved including, without limitation, commitments made or liabilities assumed to any supplier of such Goods and materials used in such Goods; and (c) any and all indirect charges as well as a reasonable profit.
CANCELLATION. Accepted orders cannot be cancelled, in whole or in part, without Seller´s written consent. If Buyer requests cancellation of orders for Goods which have been manufactured in whole or in part, such cancellation shall be at Seller´s option and subject to cancellation charges. Seller´s failure to meet estimated ship dates will not be sufficient cause for cancellation of orders.
WARRANTY DISCLAIMER. Seller warrants each item delivered shall be free from defects in material and workmanship during the standard service life expectancy of the product, not to exceed twelve (12) consecutive months from the date of delivery. Seller agrees, at its option during the warranty period, to repair any defect in material or workmanship or to furnish a repaired or refurbished product of equal value in exchange without charge (except for insurance which will be incurred by the customer). Such repair or replacement is subject to verification of the defect or malfunction and proof of purchase as confirmed by showing the model number on original dated sales receipt. Seller’s obligation under the warranty shall be limited to repairing or replacing, free of charge to the original purchaser, any part that, in the judgment of Seller, shows evidence of such defect, provided further that such part, if so, requested shall be returned within forty-five (45) days from date of failure notice to Seller. The warranty does not cover: Any condition resulting from other than ordinary wear or any use for which the product was not intended; Any condition resulting from incorrect or inadequate maintenance or care, including incorrect laundering; Damage caused by rips, cuts or tears, burns and abrasions; Damage resulting from misuse, abuse, negligence, accidents or shipping damage; Dissatisfaction due to buyer’s remorse; Normal wear and tear; Cosmetic damage (i.e., minor scratches, surface deformations, or discoloration) including natural fading colors; Damages incurred during transportation; Damages incurred during assembly or maintenance; Unauthorized modification or alteration, including any repair done outside of Seller’s customer service; Product with removed or defaced date codes, or tags; Products purchased from an unauthorized dealer (including, but not limited to, products purchased through third part auction sites, unauthorized dealers selling via third party marketplaces, or dealers selling altered or modified products); Counterfeit products; Any damages arising after the Warranty Period. The warranty shall not interpret to render Seller liable for injury or damages of any kind or nature to person or property. Except as set forth above, Seller shall have no obligation or liability of any kind on account of any of its equipment and shall not be liable for special or consequential damages. The warranty is subject to any existing conditions of supply which may directly affect our ability to obtain materials or manufacture replacement parts. Seller reserves the right to make improvements in design or changes in specifications at any time, without incurring any obligation to owners of units previously sold.
DAMAGES. Buyer´s exclusive remedy from claims arising from defective or nonconforming goods shall be limited to replacement thereof or refund of a portion of the purchase price, at Seller´s option. SELLER SHALL NOT BE RESPONSIBLE OR LIABLE FOR CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF OR OCCURRING IN CONNECTION WITH THE SALE, DELIVERY, USE, PERFORMANCE, OR SERVICE OF THE GOODS SOLD UNDER THIS AGREEMENT. SELLER SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR FOR ANY CLAIM OR DEMAND AGAINST SELLER BY ANY OTHER PARTY. IN NO EVENT WILL SELLER BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SELLER´S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING FROM OR BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT OR OTHER CAUSE OF ACTION, SHALL IN NO CASE EXCEED THE PURCHASE PRICE THAT BUYER PAYS FOR THE PARTICULAR GOODS INVOLVED.
SECURITY INTEREST. Buyer grants to Seller a first priority purchase money security interest in all Goods purchased hereunder, and in each and every item thereof, including replacements, proceeds, and products thereof, to secure payment of all amounts and performance of all obligations due hereunder. Buyer shall execute, at Seller´s request, all financing statements that Seller deems necessary or desirable to perfect Seller´s security interest. Buyer authorizes Seller to sign on Buyer´s behalf, and file, a copy of the security agreement or a financing statement with the appropriate authorities to perfect Seller´s security interest in all purchased Goods. Seller shall have all rights and remedies of a secured party under the UCC in effect in any applicable jurisdiction.
RETURNS. No merchandise can be accepted for credit unless Seller has previously authorized the return. Merchandise must be returned freight prepaid within thirty (30) days of receipt. A 20% restocking charge may apply to returned merchandise.
OPTION TO ACCELERATE. Seller shall have the right on written notice to Buyer to demand immediate payment of amounts due hereunder if Seller believes in good faith that the prospect of Buyer´s payment or performance is impaired. Buyer´s acceptance of Goods shall constitute an express representation that Buyer is not then insolvent within the meaning of Title 11, United States Code or similar federal or state law.
SEVERABILITY. The provisions of this Agreement are severable and if any provision is invalid, void or unenforceable in whole or in part for any reason, the remaining provisions shall remain in full force and effect.
NON-WAIVER. Seller´s failure or refusal to insist upon strict performance of any provisions of this Agreement shall not be deemed a waiver of Seller´s rights or remedies, or a waiver by Seller of any subsequent default by buyer in the performance of or compliance with the terms of this Agreement.
CAPTIONS. The captions in this Agreement are included for convenience and general reference only and shall not be construed to describe, define or limit the scope or intent of the provisions of this Agreement.
ASSIGNMENT. Buyer may not assign this Agreement in whole or in part and any attempted assignment shall be void and of no effect.
ENTIRE AGREEMENT. This instrument constitutes the entire agreement and understanding of the parties and supersedes all prior agreements and understandings relating to the subject matter hereof. No agreements, understandings, restrictions, warranties, or representations exist between or among the parties other than those expressly set forth.
CLAIMS. Claims for errors, shortages, defective Goods and any other claims of Buyer relating to the Goods must be made in writing within thirty (30) days after receipt of the Goods and must refer to the date and number of the invoice. Seller shall have a reasonable opportunity to investigate all claims.
APPLICABLE LAW AND JURISDICTION. Buyer and Seller agree that interpretation of and performance under these contract terms and conditions, as well as all other aspects of the transaction contemplated by these terms and conditions, shall be governed by the laws of the State of Missouri without regard to Missouri´s conflict or choice of law rules. Buyer and Seller further agree that any action at law, suit in equity or other judicial proceeding with respect thereto must be brought and maintained in the federal or state courts of record situated in the State of Missouri.
LATE PAYMENT AND COLLECTION COSTS. If Seller decides to place Buyer´s account for collection, Buyer shall pay all costs and expenses thereof, including reasonable attorneys´ fee. Should Buyer fail to pay any amount that Buyer is required to pay Seller, Buyer shall pay to Seller interest on the delinquent payment from the due date thereof until paid at the rate of 1½% per month (18% per year), but in any case not to exceed the maximum lawful rate under any applicable law.
GOVERNMENTAL REQUIREMENTS. Any provisions required to be included in a contract of this type by any applicable federal, state or local law, ordinance or governmental rule, regulation, order or over governmental requirement shall be deemed incorporated herein as if fully set out.