SPI CORP SALES TERMS AND CONDITIONS
ALL SALES ARE FINAL. RETURNS ARE ACCEPTED AT THE SOLE DISCRETION OF SPI CORP AND WILL BE SUBJECT TO 25% RESTOCKING FEE.
Sierra Pacific Innovations, Corp. (hereinafter “SELLER” and “SPI”) hereby offers to supply the goods and services identified in a quotation, proposal, or acknowledgement expressly conditional upon the BUYER’S acceptance of the following general terms and conditions. SELLER, by commencing performance, shall not prejudice its rights to enforcement of these general terms and conditions.
1.) OFFERS: Offers, proposals, and/or quotations provided to prospective customers are not valid unless issued in writing by an SPI duly authorized official. Any offers generated verbally or conveyed in a manner other than writing, express or implied, are not valid unless subsequently issued in writing and assigned a valid quotation number.
2.) OFFER EXPIRATION: All offers of sale by SELLER are firm for thirty (30) days from the date of the offer unless otherwise explicitly stated in SELLER’s offer or as otherwise may be agreed to expressly in writing by the SELLER. All such SELLER’s offers are subject to change without notice upon the expiration of the validity of the offer.
3.) PRICING: Prices offered by SELLER for items and services sold do not include any customs duties, fees, taxes (however characterized), transportation charges, or insurance costs. Where applicable, these costs shall be borne by the BUYER. Pricing includes packaging in accordance with best commercial practices unless otherwise specified by the BUYER. Special packaging requests shall be performed, if agreed to by SELLER, at BUYER’s expense.
The price for products and supplies containing materials and/or components with volatile market prices such as precious metals, nonferrous metals, magnetic minerals, proprietary alloys, and certain organic materials (petroleum based, for example) may be subject to the application of a surcharge(s) at time of shipment, based upon fluctuations in the market value of such materials.
4.) ORDER/CONTRACT ACCEPTANCE: Orders, purchase orders and contracts submitted to SPI become binding upon acceptance by an SPI duly authorized official. No terms and/or conditions issued by the BUYER shall alter SELLER’s General Terms and Conditions in any respect and shall not apply to the transaction unless specifically agreed to in writing by a duly authorized SPI official. Any BUYER terms and conditions shall only be considered as an offer not binding on the SELLER unless expressly accepted by a duly authorized SPI official.
5.) USAGE TERMS: Buyer agrees to obey and comply with all local, state and federal laws in obtaining and using any items sold by SPI.
6.) MISUSAGE OF PRODUCTS: Seller will in no way be responsible for any misusage of products sold.
7.) SCHEDULED DELIVERY: SELLER shall use its best effort to make delivery in accordance with (IAW) the contract, but shall not be liable to the BUYER for delays in manufacturing or delivery due to causes beyond its reasonable control, including, without limitation, fire, accidents, acts of God, acts of war (declared or undeclared), civil commotion, terrorism, hostilities, inability to secure materials or labor, non-issuance, lapse or withdrawal of U.S. export license, and government acts, laws, or regulations. In the event of such a delay, SELLER reserves the right to extend the date for delivery by a periodof time equal to the time lost by reason of the delay. In the event of late payment or performance on the part of BUYER, both parties shall negotiate an equitable adjustment in price and/or schedule. While the SELLER shall have no obligation to comply with unilateral directives to change schedules or temporarily cease work, SELLER will endeavor to accommodate BUYER’s reasonable written request for acceleration or deceleration made within 60-90 days prior to scheduled delivery. Such changes may or may not be accepted by SELLER at its sole discretion. In the event that SELLER accepts such changes, SELLER shall be under no obligation to comply with the request until a price adjustment, if deemed necessary, acceptable to SELLER is negotiated between the parties and documented in a contract amendment and/or modification.
8.) PAYMENT: Payment shall be made in full in U.S. Dollars immediately available to SELLER by wire transfer, letter of credit, or via other monetary instruments and vehicles as otherwise agreed in the contract to which these terms and conditions are attached. Terms, when offered based on the submission of a credit application by BUYER and subsequent adjudication by SELLER of creditworthiness, are NET 30 DAYS calculated from the date of issuance of invoice. In addition to any other rights or remedies available to SELLER, failure to pay the amounts due within the time specified shall result in a late charge of one-and-one-half (1.5%) per month prorated daily to BUYER’s account until final payment is accepted and cleared.
9.) TITLE & PROPERTY OF SELLER: Title of all goods and services shall pass to BUYER only upon payment in full. Until such time as title of goods and services rendered is transferred, SELLER retains collateral interest in products and services. All designs, inventions (whether patented or not patented), processes, technical data, drawings, plans, trade secrets and/or confidential information related to the items or services to be purchased, not furnished by BUYER, are the exclusive property of SELLER, and all rights, title, and interest in and to such properties shall remain exclusively in SELLER notwithstanding SELLER’s conveyance and/or disclosure of any part thereof to BUYER or BUYER’s payment to SELLER for engineering or nonrecurring charges. BUYER shall not use or disclose such property to any third party or to anyone not having a “need to know”, including employees, without the expressed prior written consent of SELLER. Title to all tools, test equipment and facilities not furnished by BUYER or specifically paid for by BUYER as a separate line item under any order, shall remain with SELLER. SELLER does not agree to submit to BUYER as a result of the consideration paid under any order, any information, technical data or drawings that are proprietary to SELLER; nor does SELLER agree to grant to BUYER any patent rights, title or license without SELLER’s expressed prior written consent.
10.) FINAL INSPECTION & ACCEPTANCE: Final inspection and acceptance shall occur at SELLER’s premises prior to shipment of goods. Final inspections, source inspections, and acceptance shall only occur AFTER satisfactory completion of testing performed by SELLER in accordance with SELLER’s quality processes and procedures. Final inspections, source inspections, and acceptance MAY be regulated by the U.S. Government for foreign and classified programs. Failure to secure BUYER inspections and acceptance approval at SELLER’s facility constitutes a force majeure event. Requests for source inspection by BUYER must be submitted at time of order placement.
11.) COMPLIANCE WITH U.S. LAW: BUYER shall comply with all applicable Federal, State, and local laws including, but not limited to: laws concerning procurement integrity, particularly the Office of Federal Procurement Act (41 USC 423), the Byrd Amendment (31 USC 1352), laws governing lobbying actions and activities (2 USC 261 & 267), laws prohibiting the offer and payment of bribes and/or gratuities (18 USC 201), the Foreign Corrupt Practices Act of 1977 and amendments (15 USC 78), Omnibus Trade and Competitiveness Act of 1988, Export Administration Regulations (EAR), Arms Export Control Act of 1976 (PL 90-629) and the International Traffic in Arms Regulations (22 CFR 120-130). BUYER acknowledges that if purchased items and services are destined for export (as defined in 22 CFR 120-130), BUYER has the complete responsibility and agrees to comply with all export laws and regulations of the U.S. Department of Commerce and the U.S. Department of State. Certain equipment offered for sale by SELLER contains active emitting lasers that may present a risk to health and safety and may be regulated by the Food and Drug Administration (FDA) and/or the U.S. Department of Defense (DoD). BUYER agrees to resell and/or distribute regulated products in strict accordance with relevant agency requirements. BUYER agrees to ensure that manuals, labels and other information provided by SELLER are to not to be removed.
12.) EXPORT/CITIZENSHIP: BUYER understands that all products, software and services purchased for the purpose of export MUST BE approved by the United States Government either by the US Dept of Commerce or the US Dept of State. SPI Products can be shipped only to United States citizens.
13.) CUSTOMERS REPRESENTATION OF LAWFUL U.S. ENTITY STATUS: SPI sales and all other business transactions are conducted only with U.S. Persons as defined by 22 CFR 120.15 as a person who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3) or with any corporation, business association, partnership, society, trust, or any other entity, organization or group that is lawfully incorporated, permitted and licensed to do business in the United States or any governmental (federal, state or local) agency or entity. In entering into a transaction with SPI, customer represents that he/she/it possesses such lawful U.S. person or entity status.
14.) SHIPMENT: All supplies and services are sold FOB origin (INCOTERMS 2000). That point of origin is the SELLER’s facility. SELLER assumes no responsibility for delays, breakage, damage, or loss after delivery to the carrier. SELLER reserves the right to make partial shipments at its discretion. SELLER will deliver shipment to a carrier it deems appropriate unless BUYER specifies its own preferred carrier at time of order placement.
15.) WARRANTY: New products are warranted for the duration of the original MFG’s warranty. Demonstrator
or used equipment is warranted for a period of 30 days to a maximum of 1 year depending on equipment sold.
16.) ORDER CANCELLATION: In the event of order cancellation for breach of the contract provisions by BUYER, SELLER shall have no further liability to BUYER and SELLER shall not be liable for any costs of cancellation, special, incidental, or consequential damages (including punitive or exemplary damages) for any cause or of any nature whatsoever and such cancellation shall be in addition to any other rights and remedies of SELLER under this order or law. Further, SELLER reserves the right to cancel this order or any portion thereof without liability if BUYER fails to make payment as required by the terms of the order or if BUYER is adjudicated bankrupt, files a petition of bankruptcy, makes an assignment for the benefit of creditors or if action under any law for the relief of debtors is taken.
If this order is accepted under a U.S. Government contract, it may be terminated for the convenience of the U.S. Government only in accordance with applicable federal procurement laws and regulations that shall govern the rights and obligations of the parties in any such termination.
If this order is accepted under a non-U.S. Government contract, it may be terminated for convenience by BUYER at a rate established to compensate SELLER for purchase of long-lead items, labor, administrative fees, general administration, overhead and profit equal to not less than twenty-five percent (25%) of the total contract value.
17.) WARRANTIES AND REMEDIES: SELLER warrants that all products and services under this limited warranty shall be free from defects in material and/or workmanship at the time of shipment and shall perform during the warranty period in accordance with the specifications of the order. Should any failure to conform to these warranties be discovered and brought to the attention of SELLER during the warranty period, and be substantiated by examination at SELLER’s facility or duly authorized and certified field personnel, then at its own cost, SELLER shall correct such failure, by, at SELLER’s own and sole option, repair or replacement of the nonconforming item or portion therefore or return the unit purchase price of the nonconforming item or component. BUYER agrees that this remedy shall be its sole and exclusive remedy against SELLER. In no event shall SELLER be liable for any costs or expenses in excess of those described in this paragraph and expressly excluding any liability or damages for special, incidental, and/or consequential damages.
The limited warranty period for end-item systems shall extend twelve (12) months from date of invoice issuance. The limited warranty period for components, subcomponents and services shall extend three (3) months from date of invoice issuance. These warranties periods apply unless a different warranty period is expressly agreed to by SELLER in writing. This warranty shall not extend to any item that, upon examination by SELLER, is found to have been subject to:
a.) mishandling, misuse, negligence or accident,
b.) installation, operation, maintenance (or lack thereof) that was either not in accordance with SELLER’s specification, instructions, and/or was otherwise improper,
c.) tampering as evidenced by broken seals, damaged packaging containers, etc.,
d.) repair and/or alteration by anyone other than SELLER or SELLER’s certified and authorized field network without SELLER’s express advance written approval,
e.) damage due to battery leakage.
This warranty does not apply to expendable items such as batteries, bulbs, cleaning supplies, and other consumables nor does it cover cosmetic damage that does not impeding form, fit, and function. SELLER shall be the sole determining evaluator and authority for adjudicating warranty claims by BUYER. BUYER shall conform with SELLER’s established return procedures.
18.) LIMITATIONS: The expressed Warranties and Remedies constitutes SELLER’s entire warranty and BUYER’s sole remedy with respect to any defect or nonconformance in equipment manufactured by and services provided by SELLER. These warranties and remedies are exclusive and lieu of all other warranties expressed or implied, including the implied warranties of merchantability and of fitness for a particular purpose. SELLER shall not, under any circumstances, be liable for any damages greater than the unit price of any item(s) and/or service(s) sold with respect to which any claim is made, including all costs and expenses and attorney fees, special, incidental or consequential damages of any nature whatsoever whether arising from SELLER’s breach of contract, or breach of expressed or implied warranty, arising in tort, at law or in equity, or any law giving rise to a claim of strict liability or for any other cause. SELLER shall not, under any circumstances, be liable to any third party for any special, incidental and/or consequential damages arising from claims for personal injury, property damage, or for any other claim due to use, possession, or operation of the products sold hereunder, whether alleged to be due in whole or part to SELLER’s fault and/or negligence.
19.) INSPECTION OF BOOKS AND RECORDS: SELLER agrees that the Controller General of the United States or his duly authorized representative shall, until the expiration of three (3) years after final payment of the order, have access to and the right to examine any directly pertinent and relevant books and records available. SELLER does not agree to any other audits or examination or records including but not limited to quality control records and process documents. SELLER does not agree to any examination and/or audit of books and records by any other BUYER unless expressly accepted in writing.
20.) BUYER’s OBLIGATION OF ASSISTANCE: Except where SELLER has otherwise assumed such responsibility for itself under expressed provisions of a statement of work, BUYER shall agree to cooperate in all reasonable ways necessary to SELLER’s performance of the work. BUYER covenants that it has disclosed fully and accurately to SELLER all general and local conditions that can affect performance of the work prescribed in the order or the price thereof (for example: mounting platforms, information on interfaces, mission profiles, etc.). BUYER acknowledges that SELLER is entitled to rely on information furnished by BUYER in developing its specifications, equipment selection, price and other terms of the order. For equipment interface requirements, BUYER shall agree to provide access to all relevant system platforms and fielded mounting interfaces related to completion of the work.
21.) PATENT INFRINGEMENT: To the extent that the items ordered are manufactured to designs, drawings, specifications, or instructions furnished by BUYER, BUYER guarantees that the manufacture and sale or use of such items will not infringe upon any U.S. or foreign patents. BUYER further agrees to indemnify and hold harmless SELLER from any expense, loss, cost, damage, or liability of any kind that may be incurred because of any such infringement or alleged infringement of patent rights with respect to such items and to defend, at its own cost and expense, any action and claim in which such infringement is alleged. BUYER shall promptly notify SELLER of any such action and shall provide SELLER an opportunity, at SELLER’s option, to participate in any defense of such action or claim as SELLER’s own expense. SELLER shall hold BUYER harmless from costs actually incurred arising directly from the defense of any suit for infringement of any domestic or foreign patent by a SELLER-manufactured item, provided that SELLER shall be given timely written notice of such suit and the option to replace the same, obtain a license, demonstrate proof of indemnification, make other arrangements to avoid litigation or to defend the suit. No indemnification is offered for alleged infringement arising from the use of SELLER’s items in combination with other items supplied by BUYER or from compliance with drawings, specifications, or instructions furnished by BUYER as described above. Further, no indemnification by SELLER applies if order is accepted under a U.S. Government contract containing an Authorization and Consent Clause applicable hereto as prescribed under federal procurement laws.
22.) CONFIGURATION STATUS AND SUBSTITUTION OF MATERIALS: If the BUYER does not specify a product revision level, then the SELLER shall interpret it to mean “same as last build” or latest revision in SELLER engineering files, whichever is the most recent revision. SELLER reserves the right to make substitution of materials without degrading the quality of the product or affecting form, fit, and function. BUYER approval shall be solicited when changes affect form, fit and function. SELLER further reserves the right to discontinue any items without notice and to change or modify specifications at any time without incurring any obligation to incorporate new or modified features in components and products previously sold or shipped.
23.) FORCE MAJEURE: In addition to other liability limitation herein contained, neither party shall be responsible to the other for any loss or damage due to a failure or delay in performance or delivery of any of the items or services required under this order when such delay or failure is due to causes beyond the reasonable control of the failing or delaying party. Such causes shall include, without limitation, fires, floods, epidemics, quarantines, unusually severe weather events, embargoes, wars (declared and undeclared), political strife, riots, delays in transportation, compliance with any regulation or directives of any national, state, or local government or authority, and unforeseeable shortages in fuel, power, materials, or labor.
24.) NON-WAIVER: The failure of SELLER to enforce at any time any of the provision of this order shall not constitute a waiver of such provisions or a waiver of the right of SELLER to enforce any or all provisions. If any term or provision of this order is held invalid or unenforceable by any court of competent jurisdiction, as defined in the JURISDICTION clause, the remainder of this order shall continue to be valid, in force, and binding upon the parties unless performance thereof is rendered legally impractical and no longer fulfills the intention of the parties under this order.
25.) JURISDICTION: This contract shall be deemed to have been made and performed in, and shall be construed, interpreted and the rights and obligations of the parties determined by the law of the State of Nevada, USA, excluding choice of law rules. All disputes that cannot be amicably resolved shall be decided by a state or federal court of competent jurisdiction located in the State of Nevada.
26.) ORDER TERMS EXCLUSIVE: This order constitutes the entire agreement between BUYER and SELLER concerning the subject matter of this order and the parties acknowledge and agree that none of them has made any representation with respect to the subject matter of this order or any representations including the execution and delivery hereof except as specifically set forth herein.
27.)MODIFICATION OF TERMS: This order may not be modified, added to, deleted from, cancelled, or rescinded except through written instrument executed by both parties with the same formality. In the event of a dispute between the General Terms and Conditions and the SELLER’s offer, the SELLER’s offer shall take precedence.
By placing an order with SPI (SELLER) the BUYER accepts all terms and conditions herein expressed.