TERMS & CONDITIONS OF SALE
VYPER ENGINEERING, LLC
TERMS AND CONDITIONS OF SALE
EFFECTIVE APRIL 13, 2022
1. TERMS AND CONDITIONS:
ALL SALES OF PRODUCTS (the “Products”) BY VYPER ENGINEERING, LLC (“Seller”) SHALL BE GOVERNED EXCLUSIVELY BY THESE TERMS AND CONDITIONS AND/OR ON ANY OTHER DOCUMENTS REFERENCED HEREIN, AND BUYER’S SUBMISSION OF AN ORDER TO SELLER SHALL BE DEEMED BUYER’S ACCEPTANCE OF SUCH TERMS AND CONDITIONS. The Agreement between Seller and Buyer shall be comprised of (a) the terms and conditions set forth herein, including but not limited to what are regarded as fair and reasonable provisions expressing and limiting warranties, liabilities, and risks, and (b) any separate warranty or other agreement that is expressly agreed to by Seller and Buyer in addition to these terms and conditions.
2. REJECTION OF INCONSISTENT OR ADDITIONAL TERMS:
Seller hereby rejects any and all terms and conditions and/or any modifications to the terms and conditions contained herein proposed by the party listed as the buyer (the "Buyer") on the face of the applicable Seller invoice for Products, which are different from or in addition to those specified herein. In no case shall Seller's act of shipping to Buyer be deemed an assent to any provision different from or in addition to those set forth herein
3. ACCEPTANCE BY BUYER:
Upon Buyer’s receipt of shipment, Buyer shall immediately inspect the Products. Unless Buyer provides Seller with written notice of any claim for shortage, defect or nonconformity in the Products within ten (10) days after receipt of shipment, such Products shall be deemed finally inspected, checked and accepted by Buyer and Buyer’s failure to provide such notice shall be deemed to constitute a waiver of any such claim.
All prices are subject to change without notice, and the prices stated herein, including Products covered by this Agreement shall be adjusted to, and the Products shall be invoiced and remitted at, Seller's prices in effect at the time of actual shipment. In the event prices are increased in excess of twenty percent (20%), Seller shall notify Buyer prior to shipment and Buyer shall have the option to cancel without recourse against Seller, subject to Section 12 hereof. At its sole discretion, Seller may institute surcharges from time to time as it becomes necessary due to material changes in the price of shipping, energy costs, micro-ingredients, or other raw materials.
5. FORCE MAJEURE:
Seller shall not be responsible for any delays caused by any condition beyond its control (including but not limited to delays caused by acts of God, strikes, mechanical breakdown, material shortages, and supplier issues). Shipping dates stated herein or in any Order Acknowledgement or Invoice are Seller's best estimate, and Seller shall be responsible only to use its best efforts to complete shipment within 90 days of such shipping dates specified, subject to extension by reason of delays beyond Seller's control. In the event shipment is delayed, at Seller's discretion, beyond such extended time, Buyer shall have the option to cancel without recourse against Seller subject to Section 12 hereof.
6. LIMITED WARRANTY
The Products being ordered by Buyer are warranted by the Seller to substantially conform with the specifications agreed to by the Seller and Buyer and to be free from defects in material and workmanship for a period of ninety (90) days (or such other period as may be mutually agreed to in writing by Buyer and Seller) from the date of actual delivery to Buyer, provided the Products are (as applicable) stored, handled, fabricated and/or installed in the manner recommended by Seller. Seller’s sole and exclusive obligation, and Buyer's sole and exclusive right, with respect to claims under this warranty shall be limited, at Seller’s option, either to (a) the replacement or repair of a defective or non-conforming Product, or (b) an appropriate credit for the purchase price thereof. Seller shall have a reasonable time to repair, replace or credit. This warranty shall not be interpreted to provide coverage for, and Seller shall not be liable or responsible for, any costs associated with any value added improvements or modifications made to the Products or for any product in which the Products have been incorporated into by Buyer or any other third parties. Notwithstanding the foregoing, Seller shall have no obligations for breach of warranty if the alleged defect or non-conformance is found to have occurred as a result of: environmental or stress testing, misuse, neglect, improper installation, accident, improper repair, alteration, modification, improper storage, improper transportation or improper handling of the Products, after the risk of loss in the Products has passed to Buyer.
7. EXCLUSION OF ALL OTHER WARRANTIES:
EXCEPT WITH RESPECT TO THE WARRANTY OUTLINED IN SECTION 6, ABOVE, OR AS OTHERWISE EXPRESSLY AGREED TO IN WRITING BY SELLER AND BUYER, ALL PRODUCTS PROVIDED HEREUNDER ARE PROVIDED AS-IS, WHERE-IS AND SELLER HEREBY DISCLAIMS ALL WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND SATISFACTORY QUALITY AS WELL AS ANY WARRANTIES PURPORTED TO HAVE ARISEN AS A RESULT OF A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SELLER MAKES NO WARRANTY OF ANY KIND THATTHE PRODUCTS OR THE USE THEREOF WILL MEET BUYER’S OR ANY OTHER THIRD-PARTY’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH OR APPROPRIATE FOR INCORPORATION INTO ANY FINAL-PRODUCT EXCEPT IF AND ONLY TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS MUTUALLY AGREED TO BY THE BUYER AND SELLER. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN BUYER AND THE THIRD-PARTY PRODUCER OR PROVIDER OF SUCH THIRD-PARTY MATERIALS.
8. NO EXTENSION OF WARRANTY:
NO WARRANTY PROVIDED HEREUNDER (a) ARE EXTENDED BY SELLER TO ANY THIRD PERSON, OR (b) MAY BE EXTENDED BY BUYER, TO ANY THIRD PERSON, INCLUDING BUYER’S CUSTOMERS.
9. LIMITATION OF DAMAGES:
SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEPLARY DAMAGES OR DAMAGES FOR LOST REVENUE, LOST PROFIT, LOST PRODUCT, BUSINESS INTERRUPTION OR BUSINESS OPPORTUNITY (COLLECTIVELY, THE “EXCLUDED DAMAGES”) FOR BREACH OF ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS SOLD HEREUNDER, OR FOR ANY CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF THE PRODUCT OR CAUSED BY ANY DEFECT, FAILURE, OR MALFUNCTION OF ANY PRODUCT, WHETHER A CLAIM FOR SUCH DAMAGE IS BASED UPON WARRANTY, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY EVEN IF SELLER HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE DISCLAIMERS OF LIABILITY HEREIN ARE HELD BY A COURT OF COMPETENT JURISDICTION NOT TO APPLY TO BUYER, SELLER’S MAXIMUM LIABILITY TO BUYER ON ANY CLAIM IN ANY WAY CONNECTED WITH THE SALE OR USE OF ANY OF THE PRODUCTS, WHETHER LIABILITY IS BASED UPON WARRANTY, TORT, CONTRACT, OR OTHERWISE, SHALL BE LIMITED TO THE INVOICE PRICE OF THE SPECIFIC PRODUCT FROM WHICH SUCH DAMAGES AROSE.
Buyer is responsible for design, testing, installation, application and performance of Products. Buyer shall indemnify, defend and hold harmless Seller, its agents, owners, officers, and employees from and against any and all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever arising from or connected with the design, testing, installation, application, performance of the Products including, without limitation, any claims that the Product infringes on any third party’s patents, trademarks or other intellectual property rights and any claims by any end-user of the Products after Buyer’s incorporation of Products into end-products. Seller reserves the right to discontinue deliveries without liability to Buyer if in Seller’s opinion the manufacture, sale or use of Product as such would infringe any intellectual property rights not held by or licensed to Seller.
11. TITLE AND RISK OF LOSS:
Title and risk of loss of Products shall pass to Buyer at the point of shipment upon deposit with agreed upon carrier or delivery service. Products must be inspected carefully upon receipt and any claim for damage filed with the carrier.
Products may be returned to Seller only after receipt by Buyer of written authorization and shipping instructions from Seller. Seller may charge a reasonable restocking fee for authorized returns.
To view our Refund Policy, please click here.
Claims by Buyer for damages, shortages, etc., must be made in writing immediately upon receipt of Products.
All requests for cancellations must be made in writing by Buyer, and orders are not subject to cancellation without the prior written consent of Seller. Orders in process or completed at the time Buyer's cancellation request is received by Seller are subject to cancellation charges up to the invoice value of the material ordered.
15. PAYMENT TERMS:
All payment terms are as stated on the face of the Seller's Invoice. Seller may, if it has reason to believe that Buyer's ability to perform is in any way impaired, demand assurance and/or, upon written notification to Buyer, change payment terms. Accounts not paid in full within the terms of sale stated on the Seller's Invoice will be liable for a PAST DUE SERVICE CHARGE of 1.5 % PER MONTH of such unpaid balance or, if less, the maximum allowable interest rate established by the law governing same. Seller may withhold shipment whenever Buyer's account is past due, or, upon notice to Buyer, whenever Buyer's account has reached the maximum credit allowance, as determined by Seller in its sole discretion. The discount date of any cash discount terms will be based on the invoice date.
Buyer's order appears in our records as shown on the invoice or order acknowledgement, as applicable. Any corrections must be called to the Seller's attention in writing immediately.
17. FAIR LABOR STANDARDS ACT:
Seller hereby certifies that all goods of its manufacture covered by the Buyer's order are produced and furnished in compliance with regulation of the Child Labor and other provisions of the Fair Labor Standards Act of 1938, as amended, and any regulations or orders issued thereunder.
18. ENTIRE CONTRACT:
The terms and conditions contained in this Agreement as of the date of acceptance by Buyer shall constitute the entire contract of sale and purchase of the Products, unless the parties have each signed a separate agreement covering any term or condition contained herein. In the event that such a separate contract has been executed by the parties, the terms of that contract shall prevail to the extent they are different than the terms contained herein.
19. APPLICABLE LAW; VENUE:
This Agreement shall, in all respects, be governed by the provisions of the law as they were in effect as of the date of this agreement in the state of Wisconsin without regard to conflict of laws principles thereof. Any and all disputes arising out of or relating to this Agreement will be brought, heard, and determined exclusively in the Federal Court for the Eastern District of Wisconsin or any state court of competent jurisdiction within Brown County, Wisconsin.
20. ATTORNEYS’ FEES:
Buyer shall pay Seller’s reasonable attorneys’ fees and other costs incurred in connection with collecting any sums owed by Buyer or otherwise enforcing its rights against Seller.
21. ASSIGNMENT AND SETOFF:
Buyer shall not assign any rights or obligations under these terms and conditions or the Agreement without the prior written consent of Seller. Seller may assign the Agreement and any rights or obligations under these terms and conditions and any Agreement to (a) its affiliates; (b) its lenders as collateral; and/or (c) to one or more persons or entities that (i) consummate a merger with Seller, (ii) purchase all or substantially all of Seller’s assets, (iii) enters into any type of a share exchange, share purchase, or other similar transaction with Seller’s members/owners/shareholders, or (iv) could be deemed to be a successor to Seller. Buyer hereby waives any and all rights to offset existing and future claims against any payments due for Products sold hereunder or under any other agreement that Buyer and Seller may have and agrees to pay the amounts due for Products regardless of any claimed offset which may be asserted by Buyer or on its behalf.
22. COMPLIANCE WITH LAWS:
Buyer shall comply with all applicable laws, regulations, and other legal requirements regarding the export, import, sale, distribution, marketing, and service of the Products.
Buyer shall comply with all Export/Import Laws that apply to its purchase, export, import, use, or transfer of any product. Without limitation to the foregoing, Buyer understands and acknowledges that Products cannot be exported, reexported, transferred, retransferred, or transshipped (i) to any Sanctioned Countries, except in compliance with applicable Export/Import Laws, or (ii) to any other destination for which an export, reexport, or import license is required, without Buyer obtaining such license. Buyer confirms that neither Buyer nor any person that owns, directly or indirectly, 50% or more of Buyer, nor any party for which Buyer is purchasing the Products is a Restricted Party or subject to any other sanctions, restrictions, or designations under applicable Export/Import Laws. Notwithstanding any other provision of this Agreement, the Parties shall not be required to take or refrain from taking any action, nor shall they be required to furnish any information, that is prohibited or penalized under the laws of the United States, including the antiboycott laws and regulations administered by the U.S. Commerce and Treasury Departments.
For purposes of this Section 22, the following definitions shall apply:
• "Export/Import Laws" shall mean any applicable U.S. laws and regulations governing exports from the United States, imports into the United States, reexports/retransfers of items subject to U.S. export jurisdiction, or relating to economic sanctions and embargoes. Such laws and regulations include without limitation (as may be amended from time to time): the Export Administration Act (50 U.S.C. App. §§ 2401-2420); the Export Administration Regulations (15 C.F.R. Part 730 et seq.); the economic sanctions laws, regulations, and other executive orders (including those set out in 31 C.F.R. Chapter V) enforced by the Office of Foreign Assets Control; the International Emergency Economic Powers Act (50 U.S.C. § 1701-1706); the International Traffic in Arms Regulations ("ITAR," 22 C.F.R. Parts 120-130); the Arms Export Control Act ("AECA," 22 U.S.C. § 2751 et seq.); the Foreign Trade Regulations (15 C.F.R. Part 30); U.S. Customs laws and regulations; and any trade control laws and regulations administered by a non-U.S. government (except to the extent inconsistent with U.S. law).
• "Restricted Party" shall mean any person (entity or individual) that is identified on any applicable U.S.-government restricted party list, including the List of Specially Designated Nationals and Blocked Persons (SDN List); the Denied Persons, Unverified, Entity, Debarred or non-proliferation sanctions Lists; or any applicable list maintained by a non-U.S. government (except to the extent compliance with such restrictions would be inconsistent with U.S. law).
• "Sanctioned Countries" shall mean those countries identified by the U.S. Department of the Treasury, Office of Foreign Assets Control, as being subject to U.S. economic sanctions and embargoes (as may be updated and amended from time to time), including Cuba, Iran, North Korea, Sudan, and Syria.
23. FUTURE CHANGES; MISCELLANEOUS:
All shipments are subject to the terms and conditions contained in this Agreement. The current version of this Agreement supersedes all previous Terms and Conditions issued by Seller. Seller reserves the right to unilaterally modify or amend any term or condition of this Agreement at any time without prior notice. Any failure to enforce or apply a term or provision of this Agreement shall not constitute a waiver of that term or provision by Seller, and shall not diminish or impair Seller's right to enforce such term or provision in the future. If one or more provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be so affected or impaired.