Sale of Goods. Wi-Tronix, LLC, an Illinois limited liability company, (“Wi-Tronix”) proposes to sell certain Goods to Buyer, and Buyer agrees to purchase certain Goods from Wi-Tronix, at the prices and in the quantities set forth on such quotations (“Quote(s)”) referring to these terms and conditions (“Terms and Conditions”), and such Quotes are subject in all respects to these Terms and Conditions. “Goods” mean the equipment, hardware, software, software as a service, documentation and other materials provided by Wi-Tronix to Buyer under any Quote. “Buyer” shall be the entity or individual listed as the Buyer on the applicable Quote. If Wi-Tronix accepts a Purchase Order initiated by Buyer on a separate form, it is done as an accommodation only and any terms and conditions contained in such form which vary, amend or supplement the terms and conditions of these Terms and Conditions shall be null and void and of no effect.
Cancellation. Orders under any applicable Quote may be cancelled, or deliveries deferred by Buyer only upon written notification delivered to Wi-Tronix prior to delivery of the Goods. Upon notification of cancellation or deferred delivery, Buyer assumes immediate liability for, and agrees to make payment to Wi-Tronix as follows: (a) for all work completed prior to the date of notice of cancellation, Buyer will pay Wi-Tronix the unit sales price as listed on the Quote for such Goods, and (b) for all work in process, Buyer will pay Wi-Tronix an amount equal to the percentage of Goods completed as of the date of notice of cancellation multiplied by the unit sales price as listed on the Quote for such Goods, plus raw material, tooling, and engineering costs already incurred by Wi-Tronix; and (c) other cancellation charges incurred by Wi-Tronix in reasonable reliance on delivering such cancelled or deferred Goods to Buyer, including handling and overhead charges. All cancellation charges shall be determined by Wi-Tronix at the time of notice of cancellation or deferment and notice of such charges shall be provided to Buyer within a reasonable amount of time following notice of cancellation.
Fees. The Goods shall be sold for the Fees set forth on the Quote. “Fees” mean the aggregate of the purchase price and other types of fees, charges, taxes and expenses payable by Buyer under the applicable Quote. All Fees due and payable by Buyer to Wi-Tronix must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law. Fees are subject to change at any time without notice, based upon market fluctuations.
Terms of Payment. Wi-Tronix shall invoice Buyer electronically for all Fees due and Buyer shall pay all invoices within thirty (30) days of receipt unless otherwise explicitly agreed to in writing. Notwithstanding anything herein and/or on any Quote to the contrary, the Fees due are non-refundable. All Fees are stated in US Dollars and must be paid in US Dollars. Upon authorization from Buyer, the fees shall be deducted from the payment account designated by Buyer. If Buyer’s designated payment account is closed, inaccurate, or if, for any reason a charge is rejected, upon notice from Wi-Tronix, Buyer shall immediately update Buyer’s payment account information and/or supply a new payment method, as appropriate and will be responsible for any associated fees due to the rejected payment incurred by Wi-Tronix, including but not limited to service, administrative and bank fees.
Late Payment. In the event payment is not received by Wi-Tronix within thirty (30) days after becoming due, Wi-Tronix may: (a) charge interest on any such unpaid amounts at a rate of one and one-half percent (1.5%) per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (b) suspend further production and any deliveries to Buyer until payment has been made in full, without prejudice to any of Wi-Tronix’s other remedies. If at any time, in Wi-Tronix’s reasonable opinion, Buyer’s financial ability becomes inadequate, to meet any current or future obligation to Wi-Tronix, Wi-Tronix reserves the right to change or withdraw any or all credit from Buyer, suspend or cancel deliveries and require full cash payment or satisfactory security before continuing production or making deliveries under these Terms and Conditions. Buyer shall pay Wi-Tronix all reasonable costs and expenses incurred by Wi-Tronix and its agents in connection with all attempts to collect from Buyer any payments due and unpaid, including, without limitation, reasonable attorneys’ fees, collection fees, interest and court and arbitration costs.
Taxes. In the event Wi-Tronix is required to remit and collect from Buyer any tax, tariff or duty (“Tax”) which is imposed by a governmental authority for the production, sale, shipment or use of the Goods, Wi-Tronix shall pay Tax that is separately stated on Wi-Tronix’s invoice(s), unless Buyer furnishes Wi-Tronix with exemption certificates acceptable to the relevant governmental authority(s). Buyer shall not have any liability for Taxes based on Wi-Tronix’s income including, but not limited to, income tax, workers compensation taxes and the like.
Delivery. The purchase terms are F.O.B. Wi-Tronix’s plant, unless expressly specified otherwise in the Quote. In its reasonable discretion, Wi-Tronix shall select the method of shipment and the carrier for the Goods. The full cost of shipping the Goods will be added to the invoice and paid by Buyer. Wi-Tronix may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale and Buyer shall pay for the Goods shipped, in accordance with the payment terms specified herein, whether such shipment is in whole or partial fulfillment of an order. Unless otherwise stated within the Quote, Buyer shall be responsible for any installation of the Goods.
Late Delivery. Any time quoted for delivery is an estimate only; however, Wi-Tronix shall use commercially reasonable efforts to deliver all Goods on or before the requested delivery date as set forth in the Quote or as agreed to by the parties. Accordingly, under no circumstances shall Wi-Tronix assume responsibility for any damage, direct or consequential, whatsoever arising out of any delay. No delay in the shipment or delivery of any Goods relieves the Buyer of its obligations under these Terms and Conditions, including accepting any remaining installments or other ordered Goods. In the event of any default by Buyer, including, without limitation, Buyer’s failure to pay for any installment as and when due, Wi-Tronix shall be excused from any further production and delivery of the goods and any other duties Wi-Tronix may have, without limiting Wi-Tronix’s right or remedies in any way.
Title of Goods and Risk of Loss. Unless otherwise specified on a Quote, title to Goods and risk of loss pass to Buyer, and Wi-Tronix’s liability to deliver ceases, upon making delivery of the goods to carrier at Wi-Tronix’s plant. Wi-Tronix’s software as a service subscriptions shall begin on the date shipped and/or distributed.
Acceptance of Goods. Buyer shall inspect the goods immediately upon receipt and shall give written notice to Wi-Tronix of the precise nature of any claim that the goods supplied are nonconforming. Such written notice shall be given within thirty (30) days of Buyer’s receipt of such goods. Wi-Tronix shall thereupon be afforded a prompt and reasonable opportunity to inspect the goods at a location specified by Wi-Tronix. If Buyer shall fail to give such notice or provide such opportunity to inspect, the Goods shall be deemed to conform to the terms of the Quote and Buyer shall be bound to accept and pay for the Goods in accordance with these terms hereof. If Buyer does not comply with the aforesaid thirty (30)-day notice provision, Buyer expressly waives any rights it may have to revoke or refuse acceptance of the goods or refuse to make payment. Buyer must request and receive a Return Material Authorization (RMA) from Wi-Tronix before returning any Goods. If Goods are returned without such authorization, they will be refused by Wi-Tronix. If the goods are proven to be nonconforming to the reasonable satisfaction of Wi-Tronix, Buyer’s exclusive remedy against Wi-Tronix, if for (a) shortage, shall be to require Wi-Tronix to make up the shortage within ninety (90) days of Wi-Tronix’s receipt of the notice, or (b) defects, shall be to return the nonconforming goods to Wi-Tronix, at Wi-Tronix’s expense, by reasonable method of shipment, within thirty (30) days after receiving Wi-Tronix’s authorization, whereupon Wi-Tronix at its election shall repair or replace the same or repay the price thereof. Wi-Tronix reserves the right to replace defective parts with parts and components of similar quality, grade and composition where an identical part or component is not available. Goods presented for repair may be replaced by refurbished Goods of the same type rather than being repaired. Refurbished parts may be used to repair or upgrade Goods.
Term. The term of these Terms and Conditions commences on the date the first Quote is accepted by Buyer and continues until all orders pursuant to the Quote(s) have been completed, cancelled or terminated (“Term”).
Warranty. Unless otherwise stated in the Quote, Wi-Tronix hereby represents, warrants and covenants that the Goods delivered, pursuant to these Terms and Conditions, will for a period of one (1) year from the date of shipment be free from defects of material and workmanship and will be in accordance with Wi-Tronix’s specifications or, if applicable, with any specifications provided to and accepted by Wi-Tronix. The foregoing warranty does not apply to any Good that (a) has been subjected to abuse, misuse, neglect, negligence, accident, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Wi-Tronix; and/or (b) has been reconstructed, repaired or altered by persons other than Wi-Tronix or its authorized representative; and/or (c) has been used with any third-party products, hardware or product that has not been previously approved in writing by Wi-Tronix. IT IS EXPRESSLY AGREED THAT THE FOREGOING WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION HEREIN.
Indemnity. Buyer, at its expense, will defend any claim or action threatened or brought against Wi-Tronix, any of its officers, directors, employees or authorized agents, consultants or other representatives by any third parties arising out of or related to any claim: (a) resulting from the use, combination with and/or incorporation of the Goods with other things not furnished by Wi-Tronix, if such Goods were manufactured in accordance with specifications provided by Buyer to Wi-Tronix; and/or (b) that any Goods or any portion thereof manufactured in accordance with specifications provided by Buyer to Wi-Tronix constitutes an infringement, violation, trespass, contravention or breach of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party. Wi-Tronix will notify the Buyer in writing of any such claim or action and will reasonably cooperate with Buyer in the defense of such claim or action, at Buyer’s expense.
Force Majeure. Wi-Tronix shall not be liable for any delay or failure to perform its obligations to Buyer in whole or in part due directly or indirectly to any circumstances beyond Wi-Tronix’s control, including, without limitation, war, terrorism, cyberterrorism, riot, flood, act of God, shortage of transportation, blockade, embargo, court order, telecommunication, governmental action, strike or other labor unrest, fire, damage to or destruction in whole or in part of Goods or Wi-Tronix’s plant or inability to obtain material, equipment or transportation (a “Force Majeure Event”). If any shipment shall be delayed six (6) or more months because of a Force Majeure Event, each party shall have the right upon ten (10) days advance written notice to the other to cancel the shipment and the balance, if any, of the Goods ordered, and, Buyer shall pay Wi-Tronix costs incurred to date in accordance with Section 2 hereof and thereafter neither party shall be liable to the other for any loss or damage direct or consequential from such cancellation. In the event of Wi-Tronix’s inability to supply the entire demand for the Goods in any order effective by a Force Majeure Event, Wi-Tronix reserves the right to allocate its available supply among any or all orders taken, including, without limitation, orders taken from different customers of Wi-Tronix, all on such basis as Wi-Tronix may deem fair and practical, without liability to Buyer resulting therefrom.
Limit on Liability. WI-TRONIX’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THESE TERMS AND CONDITIONS AND/OR QUOTE SHALL IN NO EVENT EXCEED THE FEES PAID TO WI-TRONIX BY BUYER IN CONNECTION WITH THE QUOTE THAT GAVE RISE TO THE CLAIM. IN NO EVENT WILL WI-TRONIX BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA AND BUSINESS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SET FORTH HEREIN SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS AND/OR OMISSIONS BY WI-TRONIX, ITS EMPLOYEES, REPRESENTATIVES AND/OR AGENTS. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, WI-TRONIX’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Power and Authority. Each party represents, warrants and covenants that it has the requisite power and authority to enter and/or otherwise accept these Terms and Conditions, and to carry out all activities and transactions contemplated thereunder.
Restrictions and Non-Disclosure. Wi-Tronix’s confidential and proprietary information includes, without limitation, its tools, dies, patterns, molds, software, drawings, documentation, test equipment, business plans, business strategies, marketing plans, industry and competitive information, technology, product and proposed product information, pricing and cost arrangements and agreements with distributors, customers, suppliers, licensers and licensees, information relating to its customer base, information concerning employees and financial information. All such confidential and proprietary information shall (a) remain the property of Wi-Tronix, (b) be carefully preserved and maintained by Buyer at its expense, and (c) be promptly returned to Wi-Tronix or satisfactorily accounted for upon completion of any order or upon Wi-Tronix’s written demand.
Prohibited Acts. Each of the parties shall not: (a) take any action that interferes with the other party’s intellectual property rights, including such other party’s ownership or exercise thereof; (b) challenge any right, title or interest of the other party in such other party’s intellectual property rights; (c) make any claim or take any action adverse to such other party’s ownership of its intellectual property rights; (d) register or apply for registrations, anywhere in the world, the other party’s trademarks or any other trademark that is similar to such other party’s trademark(s) or that incorporates such trademarks in whole or in confusingly similar part; (e) use any mark, anywhere, that is confusingly similar to the other party’s trademarks; or (g) alter, obscure or remove any of the other party’s trademark(s) or copyright notices or any other proprietary rights notices placed on the Goods purchased under a Quote and/or these Terms and Conditions, (including Goods), marketing materials or other materials.
Relationship of the Parties. The relationship between Buyer and Wi-Tronix is solely that of vendor and vendee and each are independent contracting parties. Nothing in the Quote and/or these Terms and Conditions creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the parties.
Entire Agreement; Conflict. In the event that any Goods are ordered by Buyer from Wi-Tronix, these Terms and Conditions and related Quote supersedes in full all prior discussions and agreements (oral or written) between the parties relating the subject matter hereof, and constitutes the entire agreement between the parties, with respect thereto. Notwithstanding the foregoing, the provisions of these Terms and Conditions and applicable Quote will not supersede any provisions of any other written agreement(s) that is currently in effect between the parties that govern the provision of the Goods or services that are the subject of the applicable Quote. In the event the terms specified in a Quote conflict with these Terms and Conditions, the specific terms in the Quote shall control solely with respect to the Goods purchased thereunder. In the event these Terms and Conditions conflict with a separate written agreement executed between Wi-Tronix and Buyer, the separate written agreement shall control.
Headings; Modification. Headings, titles, sections, section headings are included solely for convenient reference and do not affect the interpretation of these Terms and Conditions. Wi-Tronix may modify these Terms and Conditions from time to time by posted revised Terms and Conditions to Wi-Tronix’s website. Such revised Terms and Conditions shall apply to all Quotes and Quote revisions issued on or after the Last Updated date hereof. Buyer shall review these Terms and Conditions periodically.
No Implied Waiver. No waiver of any breach or failure or delay in exercising any right, power or remedy of any provision of these Terms and Conditions shall constitute a waiver of the same or any other provision hereof with respect to prior, concurrent or subsequent occurrences and no waiver shall be effective unless made in writing and signed by an authorized representative of the party against whom enforcement of such waiver is sought.
Assignment and Delegations. Buyer shall not assign any rights or delegate any obligations under these Terms and Conditions without the prior written consent of Wi-Tronix. Any purported assignment or delegation by Buyer in violation of this Section is null and void. These Terms and Conditions are binding on and inures to the benefit of the parties and their respective permitted successors and permitted assigns.
Severability; Cumulative Remedies. The provisions of these Terms and Conditions are severable and the unenforceability of any provision of these Terms and Conditions shall not affect the unenforceability of these Terms and Conditions or any other provision hereof. In addition, in the event that any provision of these Terms and Conditions (or portion thereof) is determined by a court to be unenforceable as drafted, the parties acknowledge that it is their intention that such provision (or portion thereof) shall be construed in a manner designed to effectuate the purpose of such provision to the maximum extent enforceable under applicable law. Subject to the express limitations set forth elsewhere in these Terms and Conditions, all remedies in these Terms and Conditions are cumulative and in addition to and not in lieu of any other remedies available to a party at law or in equity.
Notice. All notices and other communications given or made pursuant to these Terms and Conditions must be in writing, sent to the persons designated herein or to such other persons and addresses as the parties may designate from time to time and will be deemed to have been given upon the earlier of actual receipt or: (a) personal delivery to the party to be notified, (b) when sent, if sent by facsimile or electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.
Governing Law. These Terms and Conditions and all matters arising out of or relating to these Terms and Conditions are governed by, and construed in accordance with, the Laws of the State of Illinois without regard to conflict of law provisions thereof. Any action related to or arising from these Terms and Conditions shall take place exclusively in the courts situated in Chicago, Illinois and the parties hereby submit to the venue of the courts situated therein. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms and Conditions and/or Quote.
Survival. Any provision of these Terms and Conditions which, by its nature, would survive termination or expiration of these Terms and Conditions will survive any such termination or expiration of these Terms and Conditions.
Right to Manufacture and Sell Competitive Goods. These Terms and Conditions do not limit Wi-Tronix’s right to manufacture or sell, or preclude Wi-Tronix from manufacturing or selling, to any person, or entering into any agreement with any other person related to the manufacture or sale of, the Goods and other goods or products that are similar to or competitive with the Goods.
Acknowledgement. BUYER HEREBY ACKNOWLEDGES READING, UNDERSTANDING AND AGREEING TO ALL OF THE TERMS AND CONDITIONS, AND/OR THE QUOTE.