Terms & Conditions
Waypoint Technology Group, LLC
TERMS AND CONDITIONS OF SALE
1. Agreement and Acceptance. These terms and conditions of sale (“Terms”) govern the sale of the Hardware Products (hereafter defined) and Software (hereafter defined) specified on the front of this document, in any invoice, on any purchase order, or on any order form (“Products”) issued by Waypoint Technology Group, LLC (“Waypoint”) to the buyer named thereon (“Buyer”). Buyer and Waypoint may be referred to individually as a “Party” and collectively as the “Parties.” “Hardware Products” means the products sold hereunder. “Software” means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by Waypoint to Buyer. Hardware Products and Software are collectively referred to hereinafter as “Products.” Waypoint’s delivery of Products to Buyer and Buyer’s acceptance of the delivery of Products shall constitute acceptance of these Terms by the Parties. The Parties acknowledge and agree that the sale of Products by Waypoint to Buyer shall not be governed by any terms or conditions set forth on Buyer’s order (hereafter defined) or any other DOCUMENT or Communication ISSUED BY BUYER. These Terms constitute the entire agreement between the Parties regarding the subject matter contained herein, and supersede any and all prior or contemporaneous written or oral communications, understandings, and agreements of the Parties. No additions or modifications of these Terms shall be effective unless made in writing and signed by an authorized representative of each Party.
2. Orders. Buyer may, from time to time, submit to Waypoint an order for Products (each, an “Order”). Each Order shall, at a minimum, specify the quantity of each type of Product, the proposed delivery date(s), the proposed delivery site(s), and shipping instructions. Waypoint may, within seven (7) days after receiving an Order, accept or reject the Order by providing written notice to Buyer. If an Order has not been accepted by Waypoint after seven (7) days, the Order shall be deemed rejected. Buyer acknowledges and agrees that upon acceptance of an Order, Buyer shall be bound to purchase the quantity of Products specified in the Order and shall be required to take delivery of all such Products within the time period specified in the Order. Waypoint’s acceptance of an Order is expressly conditioned on the Buyer’s acceptance of these Terms.
3. Shipping; Title; Risk of Loss. Waypoint shall use reasonable efforts to deliver Products by the proposed delivery date(s), but shall not be liable for any delays. Waypoint shall deliver Products using Waypoint’s standard methods of packaging and shipping. Waypoint may, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units of Products shipped whether such shipment is in whole or partial fulfillment of Buyer’s Order. Buyer acknowledges and agrees that Buyer shall be required to take delivery of all Products within the time period specified in the Order. Products shall be delivered F.O.B. Waypoint’s facility. Title to Products and risk of loss shall transfer to Buyer immediately upon delivery. All shipping costs shall be borne by Buyer.
4. Acceptance and Nonconforming Products. Products shall be deemed accepted by Buyer unless Buyer provides Waypoint with written notice of its rejection of Products within seven (7) days after delivery. Buyer may only reject Products that are defective, damaged, or that do not conform to the specifications (“Nonconforming Products”) and shall furnish to Waypoint written evidence of the same. If Buyer timely notifies Waypoint of Nonconforming Products, Waypoint shall, in its sole discretion, either (i) replace the Nonconforming Products or (ii) credit or refund the price for such Nonconforming Products. Buyer shall ship, at Buyer’s expense and risk of loss, the Nonconforming Products to the location designated by Waypoint. If Waypoint exercises its option to replace the Nonconforming Products, Waypoint shall, after receiving the Nonconforming Products, ship the replacement Products to Buyer at the delivery site specified on the Order, at Buyer’s expense and risk of loss[1]. Buyer acknowledges and agrees that the remedies set forth in this Section 4 are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided in Section 4, Buyer has no right to reject or return the Products, including, without limitation, if Waypoint delivers to Buyer less Products than the quantity set forth in the Order.
5. Prices and Taxes. The price of Product shall be Waypoint’s price in effect for Products at the time of the submission of the Order. Waypoint specifically rejects any price of Products specified by Buyer on any Order or on any other order form submitted by Buyer to Waypoint. All prices are exclusive of all sales, use, and excise taxes, and other taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes.
6. Payment Terms. Waypoint shall provide an invoice to Buyer upon shipment of Products. All invoices are due and payable within thirty (30) days after the date of the invoice. Any amounts owed by Buyer and not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month from the original due date until paid in full or, if lesser, the highest rate permitted under applicable law. Buyer shall be liable for and shall reimburse Waypoint for Waypoint’s actual costs and expenses incurred in connection with the collection of any amounts owed to Waypoint or enforcement of Waypoint’s rights, including, without limitation, attorney’s fees, court costs, and disbursements.
7. No Setoff. Buyer shall not, and waives any right to, offset any amounts owed to Waypoint against any other amount owed to Buyer by Waypoint.
8. Warranties.[2] Waypoint warrants to Buyer that Products shall be manufactured in accordance with the applicable specifications for such Products and in accordance with manufacturing practices that are acceptable in the industry. BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, ALL PRODUCTS ARE PURCHASED AND SOLD “AS IS” AND “WITH ALL FAULTS,” AND WAYPOINT MAKES NO OTHER REPRESENTATION OR WARRANTY WHATSOEVER REGARDING THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. THE WARRANTIES IN THIS SECTION 8 ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. Buyer shall not be liable for a warranty breach unless Buyer gives Waypoint written notice of such breach within five (5) days after Buyer’s discovery of the breach, and allows Waypoint an opportunity to examine the Products to verify the alleged breach. Waypoint shall not be liable for a warranty breach if it arises because Buyer failed to follow industry standards as to the storage, installation, commissioning, use, or maintenance of the Products, or if Buyer alters the Products without Waypoint’s written authorization. Subject to the foregoing, in the event of a warranty breach, Waypoint shall (i) replace the affected Products or (ii) credit or refund the price for such affected Products. THE REMEDIES SET FORTH IN THIS SECTION 8 SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDIES AND WAYPOINT’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 8.
9. Limitation of Liability. IN NO EVENT SHALL WAYPOINT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, OR DIMINUTION OF VALUE, ARISING OUT OF, RELATING TO, RESULTING FROM, OR IN CONNECTION WITH ANY BREACH OF THESE TERMS OR AN ORDER, REGARDLESS OF: (I) WHETHER SUCH DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT WAYPOINT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (IV) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL WAYPOINT’S AGGREGATE LIABILITY ARISING OUT OF, RELATING TO, RESULTING FROM, OR IN CONNECTION WITH THE THESE TERMS OR AN ORDER, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID FOR THE PRODUCTS SOLD UNDER THE ORDER UPON WHICH THE ALLEGED CLAIM AROSE.
10. Indemnification; Insurance. To the fullest extent permitted by law, Buyer shall indemnify, defend, and hold Waypoint and its officers, directors, employees, and agents (each, an “Indemnified Party”), harmless from and against any and all claims, damages, fines, penalties, costs, expenses, losses, demands, and liabilities of any kind whatsoever (including attorney’s fees, court costs, and disbursements) directly or indirectly arising out of, related to, resulting from, or in connection with, in whole or in part, Buyer’s breach of these Terms or Buyer’s use, storage or other handling of or resale of Product[3] and all injury, illness, or death to a person, or damage to property, actual or alleged, directly or indirectly arising out of or related thereto. Buyer shall purchase and maintain, at Buyer’s sole cost, such insurance written in the kinds and minimum limits of liability as will protect Waypoint from any losses or claims which may arise out of or relate to these Terms or the transactions contemplated hereby.
11. Compliance with Laws. Buyer shall comply with all laws, rules and regulations, and government orders and ordinances that are in any way related to Products.
12. Force Majeure. Any delay or failure of Waypoint to perform any of its obligations under these Terms or an Order will be excused if such failure or delay is the result of a cause beyond Waypoint’s reasonable control including, without limitation, the following events (each, a “Force Majeure Event”): (i) acts of God, flood, fire, earthquake, blizzard; (ii) explosion, war, invasion, hostilities (whether or not war is declared), terrorist threats (including general threats) or acts, riot, other civil unrest; (iii) government order or action, eminent domain, condemnation of property, changes in laws or regulations; (iv) organized labor activities or disturbances such as strikes; (v) shortages of power, supplies, infrastructure, or transportation; (vi) emergencies (whether global, national, regional, or local); and (vii) pandemic, epidemic, quarantines, and their related consequences. Waypoint shall not be subject to any damages for failing to perform as a result of a Force Majeure Event.
13. Confidentiality. All pricing, sourcing, information, manufacturing processes, designs, formulas, data, or other technical information of Waypoint relating to Products shall remain Waypoint’s confidential information and property, and Buyer shall not have any rights thereto, nor any rights to disclose such items or information to any third party. Nothing in these Terms or an Order shall be construed (by implication, estoppel or otherwise) as granting, or as an undertaking by Waypoint to subsequently grant, to Buyer any license, right, title or interest in or to any present or future patent, patent application, know-how, copyright, trademark, trade secret or other proprietary right.
14. Intellectual Property Ownership. Buyer agrees that Waypoint owns all right, title and interest to all intellectual property and other proprietary rights to documents and materials, calculations, drawings, models, plans, sets of tools, technology, software, designs, engineering details, schematics and similar data relating to or incorporated in the Products and any accompanying documentation or information derived from the foregoing. Buyer shall take reasonable precautions to prevent unauthorized access and use of the Products and documentation by third parties. To the extent permitted by relevant law, Buyer shall not, nor allow any third party to copy, decompile, disassemble or otherwise reverse engineer the Products, or attempt to do so. Buyer is prohibited from, and shall prevent any third party from, removing, covering or altering any of our patent, copyright or trademark notices placed upon, embedded in or displayed by the Products or their packaging and related materials. Waypoint reserves all rights in the Products not specifically granted to Buyer under these Terms.
15. Export Control. Buyer may not use or otherwise export or re-export the Products except as authorized by the laws of the jurisdiction in which they were obtained. In particular, but without limitation, the Products may not be exported or re-exported in violation of export laws, including if applicable export or re-export into any US-embargoed countries or to anyone on the US Treasury Department’s list of Specially Designated Nationals or the US Department of Commerce Denied Person’s List or Entity List. Buyer represents that Buyer is not located in any country or on any list where the provision of Products to Buyer would violate applicable law. Buyer also agrees not to use or enable use of them for any purposes prohibited by applicable law or export or re-export any Product with knowledge that it will be used in the design, development, production or use of chemical, biological, nuclear or ballistic weapons. Laws and regulations change frequently. It is Buyer’s responsibility to know the law pertaining to export/import procedures in the country of destination of the Product. Buyer shall defend, indemnify and hold us harmless against any liability (including attorneys’ fees) arising out of Buyer’s failure to comply with the terms of this paragraph.
16. Waste Electrical & Electronic Equipment (WEEE). If the Products are furnished to Buyer as component products on an OEM basis, or for import, resale or distribution to third parties, then Buyer agrees that Buyer qualifies as, and are deemed the ‘producer’ of all such Products under any laws, regulations or other statutory scheme providing for the marking, collection, recycling, take-back, and/or disposal of electrical and electronic equipment (“WEEE Regulations”) in any jurisdiction whatsoever, (e.g., national laws implementing EU Directive 2012/19 on waste electrical and electronic equipment, recast), and are solely responsible for complying with all such applicable WEEE Regulations in connection with those Products and for all associated costs.
17. Miscellaneous. Waypoint and Buyer are acting hereunder as independent contractors. These Terms and Orders are not assignable by Buyer. Any assignment made in contravention of this Section 16 shall be null and void. The waiver by either Party of any of its rights or remedies or of any breach by the other Party under these Terms in a particular instance shall not be considered as a waiver of the same or different rights, remedies, or breaches in subsequent instances. No amendment or waiver of any provision of these Terms shall be effective unless made in writing and signed by both Parties. These Terms shall be interpreted and enforced exclusively under the laws of the State of New York, exclusive of any conflict of laws principles, and the Parties shall exercise any right or remedy thereunder exclusively in, and hereby consent to the exclusive jurisdiction of, the courts in Albany County, New York. All of Waypoint’s rights and remedies provided in the Terms are cumulative and not exclusive, and the exercise by Waypoint of any right or remedy does not preclude the exercise of any other rights or remedies. The Parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods, if and to the extent applicable. If any provision in these Terms is found to be invalid, illegal, or unenforceable, then the remainder of these Terms shall not be affected, and shall remain in full force and effect. The provisions in these Terms which by their nature should survive termination or expiration of these Terms shall survive and remain in full force and effect.