TRIPWIRELESS INC. STANDARD TERMS & CONDITIONS OF PURCHASES
Seller’s commencement of work on the goods subject to this purchase order or shipment of such goods, whichever occurs first, shall be deemed an effective mode of acceptance of this purchase order. Any acceptance of this purchase order is limited to acceptance of the express terms contained on the face and reverse side of this purchase order. Any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller’s acceptance is hereby objected to and rejected, but such proposal shall not operate as a rejection of this purchase order unless such variances are in the terms of the description, quantity, price or delivery schedule of the goods, but shall be deemed a material alteration thereof, and this offer shall be deemed accepted by Seller without said additional or different terms. If this purchase order shall be deemed an acceptance of a prior offer by Seller, such acceptance is limited to the express terms contained on the face and reverse side of this purchase order. Additional or different terms or any attempt by Seller to vary in any degree any of the terms of this purchase order shall be deemed material and are objected to and rejected, but this purchase order shall not operate as a rejection of Seller’s offer unless it contains variances in the terms of the description, quantity, price or delivery schedule of the goods.
Unless otherwise specified all goods ordered will be subject to final inspection and approval at the warehouse of Tripwireless Inc., notwithstanding any payments or any inspection at source. Tripwireless Inc. may reject or require the prompt correction in place or otherwise of any goods which are defective in material or workmanship or otherwise fail to meet the requirements of this purchase order. Tripwireless Inc. may, in addition to any other rights it may have by law, prepare for shipment and ship the goods to Seller, require Seller to remove them, or direct their correction in place, and the expense of any such action, including transportation both ways, if any, shall be borne by Seller.
All goods ordered to Tripwireless Inc.’s specifications must comply with specifications current as of the date of this order, unless otherwise specified by Tripwireless Inc.
EFFECT OF INVALIDITY
The invalidity in whole or part of any terms or conditions of this purchase order shall not affect the validity of any other terms or conditions.
The remedies herein reserved shall be cumulative and additional to any other remedies in law or equity. No waiver of a breach of any provision of this purchase order shall constitute a waiver of any other breach, or of such provision. Any waiver must be in writing and signed by an authorized representative of Tripwireless Inc.
PATENT INDEMNITY AND USE OF PRODUCTS
(a) Seller agrees to indemnify and hold harmless Tripwireless Inc., its successors, assigns and users of its goods against loss, damage or liability, including costs and expenses (including attorneys’ fees), which may be incurred on account of any suit, claim, judgment, or demand involving infringement or alleged infringement of any patent rights in the manufacture, use or disposition of any article or material hereunder, provided Tripwireless Inc. shall notify Seller of any suit instituted against it and to the full extent of its ability to do so, shall permit Seller to defend the same or make settlement in respect thereof. (b) Seller hereby grants to Tripwireless Inc. the right and license without further consideration to utilize any of Seller’s patents, inventions or information, embodied in, which form a part of or involves the use of the goods and/or services which are the subject matter of this order.
DEFAULTS & EXCUSABLE DELAYS
(a) Time is of the essence with respect to this purchase order, and Tripwireless Inc. reserves the right to cancel all or any part of the undelivered portion of this purchase order in the event Seller fails to perform any of the provisions of this purchase order, or fails to make progress so as to endanger performance of this purchase order in accordance with its terms, or if deliveries are not made within specified times. Tripwireless Inc. shall also have the right to cancel this purchase order or any part thereof if Seller becomes insolvent or if a bankruptcy petition is filed which is not vacated within thirty (30) days from the date of filing. Except with respect to defaults of its subcontractors (including lower-tier subcontractors), Seller shall not be liable for damages if the delay or failure to perform this purchase order arises out of causes beyond the control and without the fault or negligence of Seller, such as acts of God or the public enemy, fires, floods, strikes, freight embargoes, or acts of the Government in either its sovereign or contractual capacity; but in every case the failure to perform must be beyond the control and without the fault or negligence of Seller. If the failure to perform is caused by the default of a subcontractor, and if such default arises out of causes beyond the control of both Seller and the subcontractor, and without fault or negligence of either of them, Seller shall not be liable for damages suffered by Tripwireless Inc. Seller must notify Tripwireless Inc. in writing within ten (10) days after the beginning of any such cause that may delay performance under the purchase order. (b) In the event Tripwireless Inc. terminates this order in whole or in part as provided in this paragraph, Tripwireless Inc., in addition to any other rights it may have by law, may procure, upon such terms and in such a manner as Tripwireless Inc. may deem appropriate, goods or services similar to those so terminated, and Seller shall be liable to Tripwireless Inc. for any excess costs for such similar goods or services; provided, however, that Seller shall continue the performance of this order to the extent not terminated under the provisions of the preceding subparagraph. (c) If after notice of termination of this order under the provisions of this paragraph, it is determined that Seller’s failure to perform this order is due to causes beyond the control and without the fault or negligence of Seller or its subcontractors, such notice of default shall be deemed to have been issued pursuant to paragraph 9 of this order entitled “Termination for Convenience,” and the rights and obligations of the parties hereto shall in such event to be governed by said paragraph.
RISK OF LOSS
The risk of loss for all goods ordered hereunder shall be borne by Seller until such goods are delivered to and received and inspected by Tripwireless Inc. at the place specified on the face of the purchase order. Goods ordered hereunder shall be deemed identified as goods to which this purchase order refers at the time such goods are actually in existence and in the possession of Seller, its successors, assigns or agents.
Seller shall indemnify and hold Tripwireless Inc. harmless against all expenses (including attorneys’ fees), claims, damages, demands, losses or liabilities arising out of Seller’s breach in the performance of this purchase order. In furtherance of the foregoing indemnity and not in limitation thereof, Seller agrees that: (a) Tripwireless Inc. shall be entitled to all incidental damages resulting from a breach by Seller, including, but not limited to, all expenses reasonably incurred in inspection, receipt, transportation, care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions incurred in effecting cover, and any other reasonable expense incident to a delay or breach by Seller; and (b) Tripwireless Inc. shall also be entitled to consequential damages resulting from a breach by Seller for any loss resulting from general or particular requirements and needs of Tripwireless Inc. of which Seller is aware at the time of executing this purchase order, and which reasonably cannot be prevented by cover or otherwise, and damages sustained by Tripwireless Inc. from any injury to person or property proximately resulting from any breach of warranty by Seller. This indemnification shall be in addition to the warranty obligations of Seller. Seller shall maintain such general liability insurance, including products liability, completed operations, contractors liability and protective liability, automobile liability insurance (including non-owned automobile liability), workers’ compensation and employer liability insurance as will adequately protect Tripwireless Inc. against such damage, liabilities, claims, losses, demands and expenses (including attorneys’ fees). Seller agrees to submit to Tripwireless Inc. certificates of insurance evidencing such insurance coverage when requested by Tripwireless Inc.
This purchase order and the rights and obligations of the parties hereunder or arising out of the purchase and sale of the goods pursuant hereto shall be governed and construed in accordance with the laws of the State of Colorado, excluding conflict of law provisions. Any controversy or claim arising out of or relating to this purchase order or a breach thereof shall be settled by arbitration in Aurora, Colorado, in accordance with the Rules of the Judicial Arbitration Mediation Service (“JAMS”). Any award or decision obtained from any such arbitration proceeding shall be final and binding on the parties, and judgment on any award thus obtained may be entered in any court having jurisdiction thereof. The arbitrator(s) shall have the right to award any form of relief; provided, however, that the arbitrator(s) shall not have authority to award punitive damages. The cost of the arbitration shall be borne equally by the parties and each party shall be responsible for payment of its own attorneys’ fees, expert witness fees and other expenses incurred in connection with the arbitration. In the event any action is instituted to enforce or interpret this purchase order or arising out of this purchase order, the prevailing party shall be entitled to all costs and legal expenses including, without limitation, reasonable attorneys’ fees, expert witness fees, accountants’ fees and court costs.
TERMINATION FOR CONVENIENCE
Tripwireless Inc. reserves the right to terminate this purchase order or any part thereof for its sole convenience. In the event of such termination, Seller shall immediately stop all work hereunder, and shall immediately cause any of its suppliers or subcontractors to cease such work. Seller shall be paid a reasonable termination charge consisting of a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination, plus the actual direct costs of Seller resulting from termination. Seller shall not be paid for any work done after receipt of the notice of termination, nor for any costs incurred by Seller’s suppliers or subcontractors which Seller could reasonably have avoided. Nothing in this provision shall limit Tripwireless Inc.’s rights to terminate this purchase order for default of Seller.
LIMITATION ON TRIPWIRELESS INC.’S LIABILITY
In no event shall Tripwireless Inc. be liable for anticipated profits or for incidental or consequential damages. Tripwireless Inc.’s liability on any claim of any kind for loss or damage arising out of or in connection with or resulting from this purchase order or for the performance or breach thereof by Tripwireless Inc. shall in no case exceed the price allocable to the goods or unit thereof which gives rise to the claim. Tripwireless Inc. shall not be liable for penalties of any description. Any action resulting from any breach on the part of Tripwireless Inc. hereunder must be commenced within one (1) year after the cause of action has accrued.
Warranty will last for the duration that has been specified on the face of the PO and will commence on the date Buyer receives the equipment, Seller warrants the goods delivered hereunder to be of merchantable quality, fit for the purpose intended, free from defects in labor, material and manufacture, and in compliance with any specifications incorporated or referenced herein. Seller warrants that it has free and clear title of the equipment and that there are no encumbrances of any type regarding the sale of this equipment. Without Tripwireless Inc.’s written consent, no materials may be substituted in lieu of those specified. All warranties shall run to Tripwireless Inc., its successors, assigns, and customers and to the users of its products. Seller agrees that this warranty shall survive acceptance of the goods. Said warranties shall be in addition to any warranties of additional scope given to Tripwireless Inc. by Seller and those implied by law.
Tripwireless will maintain custody of non-conforming (RMA) equipment for 30 days. If the seller does not make a reasonable effort to arrange for the return of said equipment it will be disposed of at Tripwireless discretion.
Taxes -All sales, use, excise or similar taxes applicable to this transaction shall be paid by Seller, except as specifically provided in this purchase order. All sales, use, excise or similar taxes to be paid by Tripwireless Inc. must be itemized separately in this purchase order and on invoices. Shipment – Seller shall enclose a packing slip with each shipment. The packing slip shall indicate the contents of each container, excluding prices. On shipments without a packing slip, Tripwireless Inc.’s count or weight shall be conclusive. Tripwireless Inc.’s order number, Seller’s name, packing slip number, piece number and other identification as Tripwireless Inc. shall require shall appear on all containers, invoices, correspondence, bills of lading and other shipping papers, and where Seller and shipper are not the same, the names of both shall be shown thereon. Seller shall not make any COD shipments unless requested by Tripwireless Inc. or issue drafts against this purchase order. Unless provided herein, no charge shall be made for boxing, crating, handling, carting, drayage, storage or other packing requirements. All goods shall be packed, marked and prepared for shipment in the manner which is (a) in accordance with good commercial practice, (b) acceptable to common carriers for shipment at the lowest rate for the particular goods and in accordance with the applicable delivery requirements, and (c) adequate to insure safe arrival of the goods at the named destination. Seller shall mark all containers with the necessary lifting, handling and shipping information. No partial or complete delivery shall be made prior to the delivery date shown on this purchase order, unless Tripwireless Inc. has given its prior written consent thereto, nor shall deliveries exceed the quantities specified. Unless provided otherwise in this purchase order, goods ordered shall be delivered on an FOB destination basis to Tripwireless Inc.’s designated plant or plants. If, in order to comply with Tripwireless Inc.’s required delivery date, it becomes necessary for Seller to ship by a more expensive method than specified in this purchase order, any increased transportation costs resulting there from shall be paid by Seller, unless the necessity for such rerouting or expedited handling has been caused by Tripwireless Inc. Extras – Goods in excess of, or different from, those ordered by Tripwireless Inc. and unauthorized advanced shipments may be rejected by Tripwireless Inc. and returned, or held subject to Seller’s disposal at Seller’s risk and expense. When part of an order is rejected, the acceptance or rejection of the remainder of the order is a matter within Tripwireless Inc.’s sole determination.
This purchase order, and any documents referred to on the face hereof, constitute the entire agreement between Tripwireless Inc. and Seller with respect to the subject matter hereof. This purchase order may be amended only in a writing signed by authorized representatives of the parties. No course of prior dealings between Tripwireless Inc. and Seller and no usage of trade shall be relevant to supplement any term used in this purchase order. Acceptance or acquiescence in a course of performance rendered under this purchase order shall not be relevant to determine the meaning of this purchase order, even though the acquiescing party has knowledge of the nature of the performance and opportunity for objection.