Wavetronix Domestic Terms and Conditions of Sale
(Effective September 08, 2015)
1. APPLICABILITY. Except as otherwise expressly agreed in writing, signed by an authorized agent of Wavetronix, these Domestic Terms and Conditions of Sale apply to all Contracts entered into between Wavetronix and Buyer for the purchase and sale of goods or services, regardless of how a Contract is formed, including contracts formed by Wavetronix making an offer to sell followed by Buyer accepting that offer, by Buyer making an offer to buy and Wavetronix accepting that offer, by conduct of both parties recognizing the existence of a Contract, or in any other manner.
2. DEFINITIONS. The following capitalized terms have the following meanings:
"Buyer" means the person or entity directly purchasing goods or services from Wavetronix.
"Contract" means the contract between Wavetronix and Buyer for the purchase and sale of goods or services.
"Customer" means a Third Party with whom Buyer has a contractual relationship to purchase the goods or services under this Contract. Typically, the Customer is a contractor or a state or local department of transportation responsible for the roadway on which a Wavetronix product will be used. Citizens or users of such a roadway are not "Customers" and obtain no rights under this Contract.
"Terms" means these Domestic Terms and Conditions of Sale.
"Third party" shall include every person, government, or other entity other than Wavetronix and Buyer.
"Wavetronix" means Wavetronix LLC, an Idaho limited liability company. For purposes of the limitations on liability in Section 9 and for purposes of indemnity in Section 11, "Wavetronix" includes, where appropriate, members, board members, managers, officers, employees, agents, and representatives of Wavetronix.
3. EXCLUSIVE TERMS OF SALE. These Terms are exclusive. Offers by Wavetronix to sell are limited to these Terms, and any additional or different terms proposed by Buyer are hereby rejected. Acceptance by Wavetronix of Buyer's offer is conditioned on Buyer's acceptance of these Terms.
4. MODIFICATION, RESCISSION AND WAIVER. No provision of this Contract can be modified, waived, or rescinded except by a written agreement signed by an authorized agent of Wavetronix.
5. TERMS OF PAYMENT.
(a) If Buyer has received credit approval in writing, Buyer shall pay the net amount due in full within 30 days of the date of invoice. Amounts unpaid after 30 days after the due date shall accrue interest at 1½% per month, compounded monthly.
(b) The price is payable without deduction, set-off, counterclaims, back charges, or any other charges or claims of Buyer of whatsoever nature, and the obligations of Buyer to Wavetronix shall remain unimpaired regardless of disputes that may arise between Buyer and third parties.
6. PAYMENT OF TAXES, AND OTHER GOVERNMENTAL CHARGES BY BUYER. The Contract price does not include sales, use, excise, value added or any similar tax or other governmental charge upon or with respect to the sale, purchase, manufacture, process, fabrication, delivery, storage, use, consumption, or transportation of such goods. The amount of any such taxes or charges shall be deemed extra charges and shall be paid by the Buyer. In the case of taxes, Buyer may provide Wavetronix with a tax exemption certificate acceptable to applicable taxing authorities. If, for any reason, any such certificate is not accepted by such authorities or such acceptance is revoked, Buyer shall indemnify and hold Wavetronix harmless as provided in Section 10. Whenever applicable, such tax or taxes or other governmental charges will be added to the invoice as a separate charge to be paid by Buyer. All licenses and permits shall be secured by Buyer at Buyer's expense unless the responsibility is assumed in writing by Wavetronix.
7. DELIVERY, RISK OF LOSS, AND TITLE.
(a) All deliveries shall be EXW Wavetronix' loading dock, in accordance with International Commercial Terms, Incoterms® 2010, published by the International Chamber of Commerce.
(b) Wavetronix shall have a purchase money security interest in all goods until the complete purchase price and all additional costs and charges are paid by Buyer. Wavetronix may make any third party notification or filing deemed necessary to protect and perfect such interest.
(c) Any shipment or delivery dates recited represent Wavetronix' best estimate, but Wavetronix shall not be liable, directly or indirectly, for failure to ship or deliver on such dates.
8. WARRANTY. New Wavetronix products and services may have an express limited warranty. A copy of the warranty, if one applies, is available at www.wavetronix.com. Unless otherwise provided in writing, that is the only warranty provided. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXCLUDED, INCLUDING IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANT-ABILITY. If no warranty applies, Buyer accepts the goods or services "as is," without warranty.
9. LIMITATIONS OF DAMAGES. THIS CONTRACT, INCLUDING ANY EXPRESS LIMITED WARRANTY, EXPRESSLY DISCLAIMS ALL INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED AND PUNITIVE DAMAGES AND ANY EXPENSES RELATED TO ANY PARTIAL OR COMPLETE INOPERABILITY OF THE PRODUCT THAT MAY ARISE AS A RESULT OF ANY BREACH OF THIS CONTRACT OR A BREACH OF WARRANTY, OR FOR ANY OTHER REASON, EVEN IF WAVETRONIX IS AWARE OF THE POSSIBILITY THEREOF. IN NO EVENT WILL ANY DAMAGES ARISING FROM A BREACH OF THIS CONTRACT, INCLUDING A BREACH OF ANY WARRANTY, EXCEED THE CONTRACT PRICE FOR THE GOODS OR SERVICES THAT ARE SUBJECT TO THE BREACH OR THE GOODS THAT ARE DEFECTIVE.
10. INDEMNIFICATION. Buyer shall defend, indemnify and hold Wavetronix harmless with respect to:
(a) all demands, claims, actions, or judgments of a Third Party against Wavetronix, directly or indirectly, for any direct, consequential, material, special, liquidated, punitive, or other damages, regardless of whether such demand, claim, action, or judgment is based on theories of contract, tort, negligence, strict liability, warranty, indemnity, contribution, statute, or otherwise, including without limitation, all demands, claims, actions, and judgments relating to injury to and/or death of any and all persons and for loss of and/or damage to property arising from use, handling, repair, adjustment, operation, modification, or conversion of goods or services covered by this Contract; and
(b) all demands, claims, actions, or judgments of a third party against Wavetronix, directly or indirectly, based on a theory of infringement or violation of patents, trademarks, trade names, trade secrets, copyrights, or the like when such demand, claim, action, or judgment is based in whole or in part directly or indirectly, on Wavetronix' compliance with specifications provided by Buyer.
This indemnification and promise to defend and hold Wavetronix harmless extends to instances where Wavetronix is alleged or found to be negligent and includes, without limitation, reasonable attorneys' fees and all other expenses incurred by Wavetronix in connection therewith. If Wavetronix, at its option, chooses to defend such a demand, claim, action, or judgment, Buyer agrees to cooperate with and assist Wavetronix in its defense in whatever reasonable ways Wavetronix chooses.
11. TECHNICAL DATA; SPECIFICATIONS; LIMITATION OF LIABILITY. Any technical data, product installation specifications, design and performance specifications, technical advice, drawings, and specifications furnished by Wavetronix with respect to goods supplied and the use of such goods is provided to assist in the proper deployment and use of Wavetronix products, systems and solutions. Wavetronix makes no claim to meet any product or system specification that is not provided by Wavetronix or that which has not been previously approved in writing by the Wavetronix Chief Operating Officer.
Wavetronix will have no liability for any damages, direct, consequential, incidental, special, liquidated, punitive, or otherwise, for any Wavetronix product, service or system deployments that do not follow defined Wavetronix installation specifications.
12. ACCEPTANCE OF GOODS. In order to insure prompt inspection by Buyer and to estimate improper methods of storage and other abuse of goods sold, Buyer must notify Wavetronix in writing concerning the nonconformity of the goods to the Contract as soon as practicable but in no event later than 60 days after delivery. Such written notice shall set forth with particularity the nature and extent of the nonconformity complained of. All claims for shortages must be made in writing within 15 days after receipt of the goods by Buyer or its agent and specify with particularity the exact shortage complained of. Immediate written notice must be given to the carrier's agent at destination in the event of damage or loss in transit.
In no event shall Wavetronix be responsible for claims resulting in whole or in part, directly or indirectly, from the use or abuse of nonconforming goods or for the costs of labor and/or materials expended on any such goods.
Failure to furnish such written claim within such prescribed period of time shall terminate all liability of Wavetronix. Wavetronix must be given the opportunity upon written demand to inspect the goods claimed to be nonconforming to this Agreement. Goods which do not conform to the Contract shall be returned to Wavetronix upon receipt of Wavetronix' authorization to do so and at Wavetronix' expense.
Buyer must demonstrate to the reasonable satisfaction of Wavetronix that any alleged nonconformity to the Contract was solely caused by a breach by Wavetronix of the applicable warranty as to the conformity to the express specifications of Buyer set forth above. In no event shall any claim of Buyer be set-off against outstanding or subsequent invoices of Wavetronix without Wavetronix' written consent.
13. FORCE MAJEURE. Wavetronix shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract, when and to the extent such failure or delay is caused by or results from acts beyond its reasonable control, including, without limitation, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. Wavetronix shall give notice to the Buyer, stating the period of time the occurrence is expected to continue. Wavetronix shall use diligent efforts to end the failure or delay and ensure the effects of such event are minimized. Wavetronix shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
14. BUYER'S RESPONSIBILITY, ANTICIPATORY BREACH, AND DEFAULT.
(a) If Wavetronix has any doubt as to Buyer's responsibility, or if Buyer fails to fulfill the terms and conditions of payment herein and on the face hereof, Wavetronix may decline to make any further shipment or delivery hereunder, except upon receipt of satisfactory security including but not limited to full or partial prepayment.
(b) In the event of anticipatory breach by Buyer or if the financial condition of Buyer at any time does not, in the reasonable judgment of Wavetronix, justify continuance of the work to be performed by Wavetronix hereunder on the terms of payment originally specified, Wavetronix may require full or partial payment in advance and, in the event of bankruptcy or insolvency of Buyer, or in the event any proceeding is brought by or against Buyer under any bankruptcy or insolvency laws, Wavetronix shall be entitled to cancel any agreement and work then outstanding and Buyer shall reimburse Wavetronix for any losses, expenses, and charges incurred as a result thereof.
(c) If Buyer shall fail to make payments on this or any other agreement between Buyer and Wavetronix in accordance with its terms, Wavetronix may defer further shipments until such payments are made or, at its option, cancel the Contract with respect to any balance. If pursuant to this provision, Wavetronix shall defer any shipments or cancel in whole or in part the Contract, Buyer shall be liable for and reimburse Wavetronix for all losses, expenses, and damages, including any and all direct and consequential damages, incurred by Wavetronix as a result of such deferral or cancellation.
15. NO WAIVER. Failure by Wavetronix to enforce any of the terms, conditions, and limitations of this Contract shall not constitute a waiver thereof or a waiver of any other terms, conditions, or limitations, and the failure of Wavetronix to exercise any rights arising from default of Buyer or otherwise shall not constitute a waiver of such right or any other right. The terms, conditions, and limitations may be enforced and rights of Wavetronix enforced at any time in whole or in part.
16. NO ASSIGNMENT. Buyer may not, by operation of law or otherwise, assign its rights or delegate its obligations hereunder to any Third Party without the prior written consent of Wavetronix, and any such purported or attempted assignment or delegation shall be null and void.
17. APPLICABLE LAW; SAVINGS CLAUSE. The local law of the State of Utah, excluding its principles of choice of laws and the United Nations Convention on Contracts for the International Sales of Goods, shall apply in interpreting these terms, conditions, and limitations, and shall apply to all questions arising in connection with this Contract, the sale of goods covered hereby, the Contract, and any claims related to the foregoing. If any clause or provision of these terms and conditions is held in violation of applicable law, this Contract shall be interpreted as if such provisions are in full force and in effect to the extent legally permitted or, if such clause or provision is prohibited in its entirety, it shall be null and void, and the Contract as so modified shall remain in full force and effect.
18. INSTALLATION SUPERVISION. Prices quoted for equipment do not include installation supervision. Wavetronix recommends and will, upon request, make available, at Wavetronix' then current rate, an experienced installation supervisor to act as Buyer's agent to supervise installation of the equipment. Buyer shall at its sole expense furnish all necessary labor equipment, and materials needed for installation.
Responsibility for proper operation of equipment if not installed by Wavetronix or installed in accordance with Wavetronix' instruction, rests entirely with Buyer; and any work performed by Wavetronix personnel in making adjustment or changes must be paid for at Wavetronix' then current per diem rates plus living and traveling expenses.
19. INTELLECTUAL PROPERTY. Buyer acknowledges Wavetronix' intellectual property rights under this agreement for products listed in Wavetronix quotation and/or on Buyer's order form, regardless of whether a notice appears on the equipment, its product manuals, software, or quotation, or whether it has been filed with a patent, trademark or copyright office. Buyer and Customer shall not copy, in whole or in part, the equipment or any documentation provided by Wavetronix in any form, nor shall Customer make any modifications to or derivations of the equipment without the prior written consent of Wavetronix. Buyer and Customer shall not, except as expressly authorized and only to the extent established by applicable statutory law, attempt to (or permit others to) decipher, reverse translate, decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the equipment and software by any means whatsoever. In addition, Buyer and Customer shall not provide or make available to any other person the equipment, any related documentation or any other information provided pursuant to this agreement.
20. NCNR ITEMS. Wavetronix reserves the right to classify any product as Non-Cancellable / Non-Returnable at any time. The criteria used for classifying items includes:
• Products customized per the Buyer's request
• Items that are classified NCNR with the Wavetronix supplier base
• Command products
• Other criteria as determined by Wavetronix
Orders for NCNR items will not be processed until Wavetronix has written approval from the Buyer to proceed.
21. EXPEDITE FEES. Orders that are placed within a 2-week lead-time shall be subject to an expedite fee of $200 or 5% of the total contract price, whichever is greater. Wavetronix reserves the right to deny any expedite request.
22. PRODUCT RETURNS. All products that are to be returned to Wavetronix shall be subject to Wavetronix Returns Policy. Any product return must have an assigned RMA number. Products that are received without the issuance of an RMA number will be returned to the Buyer at the Buyer's expense. Unused product returned outside the 90 days will be subject to a restocking fee of 25%. Unused product outside its warranty coverage cannot be returned. The Buyer will be responsible for all freight and other charges associated with an unused product return. Additional information on the Wavetronix Returns Policy may be obtained by visiting www.wavetronix.com.
23. ENTIRE AGREEMENT. Wavetronix and Buyer intend for these Terms to be a final, complete and exclusive expression of their agreement on the terms to be applied to this Contract. The Contract represents all items being sold. Examples of additional items that should be contracted for separately include but are not limited to cables, service, training and installation and are not included with the product. These Terms may not be supplemented or contradicted by evidence of any prior agreement or of any contemporaneous oral agreement. These Terms may not be supplemented by any different or additional terms even if such terms are consistent with the Terms of this Contract.
24. HEADINGS. Section headings are for convenience only and shall not be used to interpret this Contract.