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STANDARD TERMS AND CONDITIONS OF SALE
The following standard terms and conditions (these “Terms and Conditions”) shall govern the sale by Wakefield-Vette of all goods (the “Products”) to the buyer (“Buyer”) identified in the
document to which these Terms and Conditions are attached or referenced (such document, together with these
Terms and Conditions, are collectively referred to as this “Contract”). To the extent any terms in the document to
which these Terms and Conditions are attached or referenced are inconsistent with these Terms and Conditions;
the terms set forth in this Terms and Conditions shall govern and control this Contract.
BUYER’S ACCEPTANCE OF THIS CONTRACT IS LIMITED TO ACCEPTANCE OF THE EXPRESS
TERMS OF THIS CONTRACT. ANY PROPOSAL FOR ADDITIONAL OR DIFFERENT TERMS OR ANY
ATTEMPT BY BUYER TO VARY IN ANY DEGREE ANY OF THE TERMS OF THIS CONTRACT IN
BUYER’S ACCEPTANCE IS HEREBY OBJECTED TO AND REJECTED BY WAKEFIELD-VETTE. WAKEFIELD-VETTE
HEREBY OBJECTS TO ANY TERMS PROPOSED BY BUYER IN BUYER’S ORDER, ACCEPTANCE OR
ACKNOWLEDGMENT OF THAT ADD TO, VARY FROM, OR CONFLICT WITH THESE TERMS AND
THIS CONTRACT CONSTITUTES THE FINAL, ENTIRE AGREEMENT PERTAINING TO THE SALE TO
BUYER OF THE PRODUCTS DESCRIBED IN THIS CONTRACT AND ANY AND ALL PRIOR
UNDERSTANDINGS, AGREEMENTS AND REPRESENTATIONS, ORAL OR WRITTEN, SHALL BE
DEEMED SUPERSEDED BY AND MERGED INTO THIS CONTRACT. AGENTS AND SALESMEN OF
WAKEFIELD-VETTE HAVE NO AUTHORITY TO MAKE ANY REPRESENTATIONS, WARRANTIES OR
AGREEMENTS NOT INCLUDED IN THIS CONTRACT.
I. PRICES AND QUOTATIONS
The price for all Products sold by Wakefield-Vette to Buyer is subject to agreement between Wakefield-Vette and Buyer.
II. ORDER PROCEDURE
All orders are subject to written acceptance by Wakefield-Vette unless the order is submitted in response to a firm
written offer from Wakefield-Vette. A Sales Order Acknowledgment executed by a duly authorized officer of Wakefield-Vette shall be deemed to be a firm written offer from Wakefield-Vette.
III. STANDARD CONDITIONS OF SALE APPLYING TO PRODUCTS
1. GOVERNING LAW: This Contract is deemed made in the [State of New Hampshire] and shall be
interpreted under the Uniform Commercial Code and other laws of the [State of New Hampshire] in force
at the date of such document, without regard to the conflicts of laws principles of such State and
specifically excluding the provisions of the 1980 U.N Convention on Contracts for the International Sale of
2. PRICE; TAXES: The Products covered by this Contract shall be sold and invoiced at Wakefield-Vette's prices
and charges as agreed to in this Contract or otherwise agreed to in writing by Wakefield-Vette and Buyer. Prices
do not include sales, excise, use or other similar taxes now in effect or hereafter levied by reason of this
Contract or the transactions contemplated thereby, all of which shall be paid by Buyer. Such taxes shall be
assessed by against Buyer at the time of invoice unless Wakefield-Vette has received an exemption
certificate or other similar evidence in form satisfactory to Wakefield-Vette. Wakefield-Vette reserves the right to
invoice such taxes at a later time if such exemption was or is asserted to be inapplicable or invalid.
3. PAYMENT TERMS; NO SETOFF: 2
A. Payment terms are net 30 days from date of invoice, unless a different period is stated elsewhere in
this Contract. Buyer shall be liable for the price of all Products substantially conforming to this
Contract, notwithstanding that Buyer may not have accepted, or may have revoked acceptance of
same. Buyer shall not be entitled to deduct, counterclaim or set off against the price of such
Products or any other amount owing under this Contract any claim or alleged claim arising out of
this Contract or any other transaction with Wakefield-Vette.
B. If payment is not received by the due date, a service charge will be added at the rate of one and one
half percent (1 1/2%) per month (eighteen percent [18%] per year) or the maximum legal rate of
interest, whichever is less, to unpaid invoices and other unpaid amounts from the due date thereof.
C. Any remittances received by a bank or other depository of Wakefield-Vette in connection with this
Contract will be received by such bank or other depository solely as a clearing agency. Such
receiving bank or depository has no authority to determine whether or not the amount remitted
constitutes payment in full. Remittances marked to indicate “payment in full” or other similar
expressions may be deposited by such bank or depository notwithstanding such markings and such
deposit shall not indicate Wakefield-Vette's acceptance of the remittance as payment in full and shall not
otherwise be treated as an election by, or an impairment of any of the rights of, Wakefield-Vette unless
expressly agreed in writing by Wakefield-Vette.
4. CREDIT: Wakefield-Vette may, at any time and in its sole discretion, limit or cancel the credit of Buyer as to
time and amounts, and as a consequence, may demand payment in cash before delivery of any unfilled
portion of this Contract, and may demand assurance of Buyer's due performance including without
limitation demanding that one or more deposits, letters of credit or other assurance be provided by Buyer.
Upon making such demand, Wakefield-Vette may suspend production, shipment and/or deliveries until Buyer has
provided such assurance. If, within the period stated in such demand, but in no event longer than 30 days,
Buyer fails to agree and comply with such different terms of payment, and/or fails to give adequate
assurance of due performance, Wakefield-Vette may, in its sole discretion and without any requirement to do so,
(1) by notice to Buyer, treat such failure or refusal as a repudiation by Buyer of the portion of this Contract
not then fully performed, whereupon Wakefield-Vette may cancel all further deliveries and any amounts unpaid
hereunder shall immediately become due and payable, or (2) make shipment under reservation of a security
interest and demand payment against tender of documents of title. If Wakefield-Vette retains a collection agency
and/or attorney to collect overdue amounts, all collection costs, including attorneys' fees, shall be payable
by Buyer upon demand by Wakefield-Vette. Buyer hereby represents to Wakefield-Vette that Buyer is now solvent, that
it has all requisite power and authority to enter into this Contract, that the execution, delivery and
performance of this Contract does and will not conflict with or result in a breach of any contract to which it
is a party or by which its assets may be bound, and that no other person other than Wakefield-Vette has or will
have a security interest in the Products covered by this Contract until performance in full by Buyer of its
obligations under this Contract. Buyer further agrees that each acceptance of delivery of the Products sold
under this Contract shall constitute the remaking of each of these representations at such time.
5. DELAY; CHANGE: Any change in delivery schedule and/or quantity which is made at Buyer's request
shall be cause for price redetermination. Delivery reschedules are also subject to an additional charge of
one and one half percent (1 1/2%) of the selling price per month if rescheduled within the 60 days
immediately preceding the current schedule date. The applicable reschedule charge will be invoiced at the
time such rescheduling is agreed to by Wakefield-Vette.
6. CANCELLATION: Buyer may cancel an order at any time prior to shipment by Wakefield-Vette by delivering
written notice to Wakefield-Vette; provided, however, that Buyer will be responsible for a cancellation charge of
20% of the price of the canceled Products, plus the amount of all direct and indirect costs incurred by 3
Wakefield-Vette with respect to the canceled order, including without limitation those incurred after receipt of
any written cancellation notice.
7. SEVERAL SHIPMENTS: Wakefield-Vette may make delivery in installments and may render a separate invoice
for each installment, which invoice shall be paid when due, without regard to subsequent deliveries. Each
installment shall be deemed a separate sale. Delay in delivery of any installment shall not relieve Buyer of
its obligation to accept delivery of remaining installments. Each delivery shall be paid for on the due date,
as provided in this Contract, without offset, defense or counterclaim and regardless of controversies
relating to any delivered or undelivered Products.
8. TITLE; RISK OF LOSS; INSURANCE: Title to each shipment of the Products sold hereunder and risk of
loss thereon shall pass to Buyer when Wakefield-Vette or its agent delivers such shipment to a common carrier or
licensed trucker consigned to Buyer or his agent, but such shipment shall remain subject to Wakefield-Vette's
rights of stoppage in transit, rights of reclamation and other legal rights of Wakefield-Vette. If a strike, embargo,
governmental action or any other cause beyond Wakefield-Vette's control prevents shipment or delivery to Buyer
or his agent, or if shipping instructions for any shipment are not received before any shipment date, or if
payment is to be made on or before delivery, title and risk of loss shall pass to Buyer as soon as the
shipment has been set aside by Wakefield-Vette and invoiced to Buyer (subject to Wakefield-Vette's rights as an unpaid
Wakefield-Vette) and payment shall be made in accordance with invoice as though the Products had been shipped
and accepted by Buyer and Wakefield-Vette shall be under no duty to carry insurance thereafter.
9. CONSIGNED GOODS: If any Products provided by Wakefield-Vette hereunder are supplied on a consignment
basis, then such consignment shall also be subject to a separate Consignment Agreement among Wakefield-Vette,
Buyer and its consignee, in form and substance satisfactory to Wakefield-Vette.
10. ACCEPTANCE: Buyer or Buyer's agent may, at its expense, inspect the Products at the place of
manufacture. Buyer shall accept any tender of Products that substantially conform to the description of the
Products delivered by Wakefield-Vette to Buyer. Buyer shall be deemed to have accepted the Products tendered
by Wakefield-Vette unless Buyer gives Wakefield-Vette notice in writing specifying the particular deficiencies in the
Products: (a) in the case of defects discoverable through inspection, 7 days after arrival of the shipment or
(b) in the case of defects not discoverable through inspection, 30 days after arrival of the shipment. In the
case of Buyer acceptance of non-conforming Products, Buyer shall immediately notify Wakefield-Vette whether
or not Buyer will continue to accept similarly non-conforming Products and failure to do so shall constitute
a waiver by Buyer of specification requirements for said Products. In any event, when any Products shall
have been altered from its original state, Buyer shall be deemed to have accepted such Products. Buyer's
acceptance of Products tendered under this Contract shall be final and irrevocable.
11. DELIVERY: Unless otherwise agreed by Wakefield-Vette and Buyer, the Products are sold EXW Pelham, New
Hampshire in accordance with INCOTERMS as republished in 2000, and shipped collect by certified
carrier. In the event that any Products are received by Buyer in a damaged condition, Buyer should cease
unpacking such Products, request an immediate inspection by the common carrier responsible for delivery,
and furnish the carrier's written report to Buyer's insurer and to Wakefield-Vette.
12. DELIVERY: Where a delivery date is specified by Wakefield-Vette, that date reflects Wakefield-Vette's best estimate
for the probable time required for completion of Buyer's order. Wakefield-Vette will use reasonable and diligent
efforts to effect shipment on or before the date indicated. Wakefield-Vette shall not be liable, directly or
indirectly, for any delay or failure in performance or delivery or inability to perform or deliver, including
without limitation where such delay, failure or inability arise or results form any cause beyond Wakefield-Vette's
control or beyond the control of Wakefield-Vette's suppliers or contractor, including, but not limited to, strike,
boycott or other labor disputes, embargo, governmental regulation, inability or delay in obtaining materials.
IN NO EVENT SHALL WAKEFIELD-VETTE, IN THE EVENT OF DELAYS OR IN ANY OTHER 4
CIRCUMSTANCES, BE LIABLE TO BUYER OR ANY THIRD PARTIES FOR ANY
CONSEQUENTIAL, SPECIAL, PUNITIVE OR CONTINGENT DAMAGES, EVEN IF WAKEFIELD-VETTE
SHALL BE ADVISED BY BUYER OF THE POSSIBILITY THEREOF. In the event of any such delay or
failure in performance, Wakefield-Vette shall have such additional time within which to perform its obligations
under this Contract as may reasonably be necessary under the circumstances; and Wakefield-Vette shall also have
the right, to the extent necessary in Wakefield-Vette's reasonable judgment, to apportion fairly among its various
customers in such manner as Wakefield-Vette may consider equitable Products then available for delivery. If, as a
result of any such contingency, Wakefield-Vette is unable to perform under this Contract in whole or in part,
then, to the extent that it is unable to perform, this Contract shall be deemed terminated without liability to
either party, but shall remain in effect as to the unaffected portion of this Contract, if any.
13. START UP: If the sale price includes assistance by Wakefield-Vette in installation or training Buyer's personnel,
Buyer is responsible for adequate and timely site preparation (including the maintenance of appropriate
insurance) and the availability of its personnel. Installation or training time incurred by Wakefield-Vette in excess
of the amounts expressly included in the sales price will be charged to Buyer at then prevailing rates.
[A. DURATION. Commencing on date on which title to the Products passes to Buyer pursuant
to Section 8 above, and subject to paragraph B below, Wakefield-Vette warrants that for a period of
[twelve (12) months] (the “Warranty Period”) the Products, under normal use and service, will be
free in all material respects from defective design, material and faulty workmanship and shall
operate in all material respects in compliance with the applicable Specifications. Wakefield-Vette shall
deliver Products free and clear of any third party liens or encumbrances.
B. REMEDIES. If the Products do not meet Wakefield-Vette’s warranty during the Warranty Period,
Wakefield-Vette will, as Buyer’s sole and exclusive remedy, (a) repair, replace or modify the Products so
that they comply with the applicable warranty, or (b) refund the purchase price of such Products, as
Wakefield-Vette may elect, and ship the Products within thirty (30) calendar days after receipt by
Wakefield-Vette of the returned Product. Wakefield-Vette will provide Buyer with shipping and packing
instructions along with the address where the Products are to be returned. Buyer is responsible for
packaging the Products according to the instructions and shipping it to Wakefield-Vette’s designated
service facility. The warranty service shall be performed at the installation site or Wakefield-Vette's
designated service facility as determined by Wakefield-Vette. All Products returned to Wakefield-Vette shall be
shipped freight prepaid and Buyer shall bear all costs and the risk of loss of, or damage to, the
Products until their arrival at Wakefield-Vette’s designated service facility. Freight collect shipments will
not be accepted. Wakefield-Vette will prepay return freight charges only on repaired and replaced
Products found to be defective, and if outside of the United States, to the designated port of
destination in the Buyer’s country. Buyer shall be responsible for any premium transportation
expenses, clearance of customs, unloading and warehousing, and for all inland transportation
expenses related to the return of repaired or replaced Products. Wakefield-Vette may charge Buyer its
standard rates for any repair or replacement work performed on returned Products that were not in
breach of Wakefield-Vette’s warranties. Expenses such as personnel travel are not covered by this
warranty. Wakefield-Vette is not responsible for delays due to governmental/administrative restrictions on
the importation or exportation of Products to countries outside of the United States.
C. LIMITATION ON WARRANTY. Wakefield-Vette warranties are void if: (a) the Product is integrated
or assembled by Buyer with other products; (b) the Product is repaired or altered by anyone other
than Wakefield-Vette or an authorized representative of Wakefield-Vette, unless expressly authorized in writing
by Wakefield-Vette and in strict accordance with the applicable Specifications; (c) the Product is
improperly handled, stored, installed or maintained by anyone other than Wakefield-Vette; (d) any person, 5
other than Wakefield-Vette certified technicians, removes the housing of the Products or disassembles the
Products; or (e) the Product is used in violation of the applicable specifications or Wakefield-Vette’s
instructions or subjected to misuse, neglect, accident or abuse.
THE FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER STATUTORY,
EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR
ERROR-FREE OPERATION, WHICH ARE ALL EXPRESSLY DISCLAIMED EXCEPT AS
OTHERWISE PROVIDED HEREIN.]
15. PATENTS; OTHER INTELLECTUAL PROPERTY RIGHTS: Buyer will promptly notify Wakefield-Vette in
writing of any claim asserted and suit or action brought against Buyer alleging that the Products purchased
under this Contract infringe one or more United Sates or foreign patents or other intellectual property or
similar rights. Wakefield-Vette will indemnify Buyer against and defend all suits and pay all damages and costs
awarded against Buyer for infringement by said Products of United States patents or other intellectual
property or similar rights; provided that the indemnity of Wakefield-Vette under this Contract shall not extend to
claims, suits or actions for infringement based upon the use of any Products in combination with
apparatuses, circuits or devices not furnished by Wakefield-Vette or upon the use of any such combination, or
based upon the application or use to which such Products are put, including any application or process
performed or facilitated by such Products (“Excluded Claims”). Buyer shall not be entitled to
indemnification or contribution from Wakefield-Vette with respect to any Excluded Claims, and Buyer will
indemnify Wakefield-Vette against and defend all suits and pay all damages and costs asserted against Wakefield-Vette
arising out of any such Excluded Claims. In addition, Buyer will indemnify Wakefield-Vette against and defend
all suits and pay all damages and costs awarded against Buyer with respect to claims of infringement for
Products manufactured wholly or partially to Buyer's design or specifications. Notwithstanding the
foregoing, Wakefield-Vette shall have the right, in its sole discretion and at its expense, either (a) to procure for
Buyer the right to continue using such Products, (b) to replace such Products with non-infringing products
of at least equal function and quality, (c) to modify such Products so that they become non-infringing, or
(d) request the return of such Products and refund the purchase price thereof.
THE FOREGOING EXPRESSES THE ENTIRE OBLIGATION AND LIABILITY OF WAKEFIELD-VETTE
WITH RESPECT TO INFRINGEMENT OF PATENTS BY SAID PRODUCTS. WAKEFIELD-VETTE MAKES
NO WARRANTY THAT THE GOODS SOLD UNDER THIS AGREEMENT ARE DELIVERED FREE
OF THE RIGHTFUL CLAIMS OF ANY THIRD PARTY BY WAY OF PATENT INFRINGEMENT OR
THE LIKE. BUYER’S RECOURSE AGAINST WAKEFIELD-VETTE IN SUCH CIRCUMSTANCES SHALL
BE LIMITED TO THE PROVISIONS OF THIS PARAGRAPH 15.
16. CONFIDENTIALITY: Any drawings, data, designs, technical information, trade secrets or other
proprietary or non-public information supplied by Wakefield-Vette to Buyer in connection with the sale of any
Products shall remain Wakefield-Vette's property and be held in confidence by Purchaser. Such information shall
not be reproduced or disclosed to others without Wakefield-Vette's prior written consent. Notwithstanding the
provisions of Paragraph 20 hereof, Buyer acknowledges that Wakefield-Vette would be irreparably harmed by the
disclosure of such information in violation of this Contract and Wakefield-Vette shall be entitled to specific
performance in the event of any breach or threatened breach of this Paragraph 16 by Buyer.
17. LIMITATION OF WAKEFIELD-VETTE'S LIABILITY:
A. NO CONSEQUENCIAL DAMAGES. NOTWITHSTANDING ANYTHING SET FORTH IN
THIS CONTRACT (INCLUDING ITS ATTACHMENTS) TO THE CONTRARY, IN NO EVENT
SHALL WAKEFIELD-VETTE BE RESPONSIBLE OR LIABLE TO BUYER FOR ANY LOSS OF USE,
REVENUE OR ANTICIPATED PROFITS, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, 6
INDIRECT, SPECIAL, CONTINGENT OR PUNITIVE DAMAGES IN CONNECTION WITH
ANY BREACH OF WARRANTY OR OTHER BREACH OF WAKEFIELD-VETTE'S OBLIGATIONS
UNDER THIS CONTRACT (INCLUDING ANY ATTACHMENTS HERETO).
B. LIMIT ON LIABILITY. THE MAXIMUM LIABILITY OF WAKEFIELD-VETTE, AND ITS RELATED
PARTIES, TAKEN AS A WHOLE, FOR ANY AND ALL CLAIMS IN CONNECTION WITH
THIS AGREEMENT AND THE PRODUCTS, INCLUDING BUT NOT LIMITED TO CLAIMS
FOR BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, STRICT LIABILITY,
FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, SHALL IN NO CIRCUMSTANCE
EXCEED THE PURCHASE PRICE OF SUCH PRODUCTS ACTUALLY PAID TO THE
C. TIME LIMITATION. ANY ACTION FOR BREACH OF THIS AGREEMENT OR TO
ENFORCE ANY RIGHT HEREUNDER SHALL BE COMMENCED WITHIN SIX (6) MONTHS
AFTER THE CAUSE OF ACTION ACCRUES, OR REASONABLY COULD HAVE BEEN
DISCOVERED, OR IT SHALL BE DEEMED WAIVED AND BARRED.
18. WAKEFIELD-VETTE'S REMEDIES: If Buyer fails, with or without cause, to furnish Wakefield-Vette with
specifications and/or instructions for, or refuses to accept deliveries of, any of the Products sold under this
Contract, or is otherwise in default under or repudiates all or any part of this Contract or any other contract
with Wakefield-Vette or fails to pay when due any invoice under this Contract or any other contract with
Wakefield-Vette, then, in addition to any and all remedies allowed by law, Wakefield-Vette, without notice: (1) may
bill and declare due and payable all undelivered products under this Contract and/or any other contract
between Wakefield-Vette and Buyer and/or (2) may defer shipment under this Contract and/or any other contract
between Buyer and Wakefield-Vette until such default, breach or repudiation is removed and/or (3) may cancel
any undelivered portion of this Contract and/or any other contract in whole or in part. Buyer shall remain
liable for all damages suffered or incurred by Wakefield-Vette in any such circumstances.
19. COMPLIANCE WITH LAWS: Buyer assumes responsibility for compliance with all U.S. federal, state
and local laws relating to the sale and use of the Products covered by this Contract, including without
limitation all U.S. federal, state and local laws governing exports from the United States and/or any
subsequent re-export of products.
20. DISPUTE RESOLUTION: In the event of any dispute arising out of or relating to this Contract (other than
a dispute arising out of Buyer’s failure to pay for any Products in whole or in part), representatives of the
parties shall meet promptly in a good faith effort to resolve the dispute without resort to court proceedings.
If the dispute is not resolved by the parties within thirty (30) days after the representatives' first meeting or
the dispute concerns the failure of Buyer to pay for any Products in whole or in part, then either party may
commence an action to resolve the dispute in the courts of [Hillsborough County, New Hampshire] and each of the
parties irrevocably submits to the exclusive jurisdiction of such courts, waives any objection it may now or
hereafter have as to venue or as to convenience of forum, and agrees that all claims in respect of such
dispute be heard and determined only in such courts. Process in any such dispute may be served on any
party anywhere in the world. Buyer and Wakefield-Vette consent to service of process by personal delivery or by
postage prepaid, certified U.S. mail, mailed to the address of such party set forth in this Contract.
21. ASSIGNMENT: This Contract and Buyer's rights and obligations hereunder may not be assigned, pledged,
hypothecated or otherwise transferred by Buyer except with the prior written approval of Wakefield-Vette, which
shall not be unreasonably withheld or delayed. Buyer may assign this Contract and its rights and
obligations hereunder to a third party, without the approval of Buyer being required. 7
22. WAIVER: Waiver by Wakefield-Vette of any provision of this Contract or of a breach by Buyer of any provision
of this Contract shall not be deemed a waiver of future compliance with this Contract and such provision,
as well as all other provisions of this Contract, shall remain in full force and effect.
23. CLERICAL ERRORS: Stenographic and clerical errors contained in this Contract are subject to correction
24. AMENDMENT OR MODIFICATION: This Contract may only be amended, modified, supplemented or
canceled in a written document signed by Wakefield-Vette and Buyer. The signature of one party hereto shall be
insufficient to modify the terms of this Contract.
25. HEADING AND DEFINITIONS: The heading and definitions in this Contract are inserted for convenience
only and shall not constitute a part hereof.
26. SEVERABILITY: If any provision of this Contract shall be held to be unenforceable or invalid, such
provision shall be ineffective to the extent of such prohibition or invalidity, and the balance of this Contract
shall be interpreted as if such provision were so excluded.
27. INTERPRETATION: Any interpretation of this Contract shall be construed consistently by and against
both parties, and shall not be construed against the draftsperson hereof.