General Terms and Conditions for the Sale of Goods and Provision of Services
1. Sope and validity
1.1 These General Terms and Conditions (GTC) provide for the sale of goods and the provision of services (collectively the "Goods") by wantec Inc. and its affiliated companies (hereinafter collectively "wantec") in the USA.
1.2 These GTC shall be deemed accepted if the purchaser of such Goods ("Purchaser") orders from wantec and reference is made hereto in the offer or in the order confirmation. Any other terms and conditions, including but not limited to General Terms and Conditions of the Purchaser are explicitly excluded.
1.3 These GTC, together with all relevant documentation such as offers, estimates or quotations (including referenced documents) ("Offers") from wantec, and all accepted orders placed by the Purchaser for wantec’s Goods constitute the contract ("Contract") between wantec and the Purchaser (collectively, the "Parties"). The application of these GTC may only be varied by agreement in writing between the Parties.
1.4 Purchaser shall cooperate with wantec in all matters relating to the provision of services and provide such access to Purchaser's premises, and electronic assets as may reasonably be requested by wantec, for the purposes of performing the services.
1.5 The Contract contains the entire agreement between the Parties with respect to the sale of Goods and supersedes all prior agreements and understandings between the Parties for those Goods.
1.6 Should any provision of the Contract be deemed incomplete, legally invalid, or unenforceable, such a provision may be severed from the Contract and be replaced by an effective provision as economically equivalent as possible. The remaining terms of the Contract shall remain in full force and effect.
2. Offer and order
2.1 Offers given by wantec are, unless otherwise stated in such documents, subject to these GTC.
2.2 An Offer submitted by wantec is valid during the period specified in the Offer. If there is no respective information, wantec’s Offer remains open for acceptance by the Purchaser by placing an order within thirty (30) days from the date of the Offer. The Offer may be subject to amendment or alteration at any time by wantec prior to wantec’s acceptance of an order by the Purchaser.
2.3 If the order of the Purchaser deviates from the Offer or the order confirmation provided by wantec, the Offer or order confirmation, respectively, applies, unless the Purchaser objects, in writing, to wantec within two (2) business days of the Purchaser receiving the order confirmation.
2.4 Orders are only binding if they are placed in writing or subsequently confirmed in writing. Electronic orders and order confirmations are considered equivalent.
2.5 An order placed by the Purchaser will only form part of the Contract when it has been received and accepted by wantec (“Commencement Date”). wantec’s acceptance of any order lodged by the Purchaser may be in writing or by wantec delivering the Goods which are the subject of an order. However, any terms and conditions contained in any order or other document issued by the Purchaser will not form part of the Contract unless they are expressly signed and accepted by wantec.
2.6 Once accepted by wantec, orders may not be cancelled or varied by the Purchaser without the consent of wantec in writing.
2.7 wantec reserves the right to correct any significant errors or omissions in its Offers, order confirmations or invoices.
3. Payment and Price.
3.1 The cost of the Goods shall be agreed upon in the Order. Unless otherwise agreed by the Parties in writing, payment of the purchase price of the Goods it is due net, without any deductions. It excludes sales tax or any other tax, duty, levy or the like which may be added to the remuneration by the Purchaser.
3.2 In accordance with the provision in clause 2.2 of these GTC, wantec explicitly reserves the right at any time prior to accepting an order to alter, with notice in writing to the Purchaser, the purchase price of the Goods due to the increase of the current rate and cost of materials and labour, freight and cartage, insurance, foreign exchange and customs tariff.
4. Terms of payment
4.1 Unless otherwise agreed between the Parties, all payments are due in full, at once, payable to wantec within thirty (30) days from the invoice date (“Due Date”).
4.2 All payments must be received by the Due Date, even if the delivery of Goods is delayed for reasons, for which wantec is not responsible, or if insignificant parts of the Goods are missing or slight corrections are necessary.
4.3 Should the Purchaser not make payment for the Goods in accordance with the time frame specified in clause 4.1 of these GTC, wantec may:
i) charge a service charge on the unpaid balance at the lower of one and one-half percent (1.5 %) per month (i.e. 18 % per annum), or the maximum rate permitted by law, from the Due Date until the invoice and all service charges thereon have been paid in full. If allowed by applicable law, Purchaser shall also pay on demand any costs incurred by wantec (including reasonable attorney’s fees and legal expenses) in connection with the collection of any amounts due from Purchaser to wantec which are not paid as agreed herein;
ii) refuse to make any further deliveries under the Contract until the amount due has been fully paid; and/or
iii) treat the failure of the Purchaser to make payments as a repudiation of the Contract by the Purchaser if the amount due remains unpaid after providing seven (7) days notice to the Purchaser of such breach and an opportunity to rectify the breach. Such repudiation shall entitle wantec to elect, without prejudice to any other rights of wantec, to terminate the Contract in whole or in part (including any order or part thereof) and, in either case, to recover damages for the breach of the Contract.
4.4 The Purchaser is not entitled to withhold any payment, short pay or setoff payment unless expressly agreed to in writing by wantec prior to the delivery of the Goods.
5. Transfer, retention of title, and security interest
5.1 The Purchaser: (a) agrees that title in the Goods remains with wantec until the Purchaser has fully paid to wantec all amounts due or to become due for the Goods subject to the Contract, in each case in good, collected and indefeasible funds (the "Release Date"); and (b) acknowledges that, until the Release Date, the Purchaser is in possession of the Goods for and on behalf of wantec as a bailee.
5.2 As security for all of the Purchaser's obligations under the Contract, the Purchaser further grants to wantec a security interest in (a) all Goods purchased in accordance with the Contract; (b) without in any way limiting the restrictions in Section 5.4 below, any and all leases, Chattel Paper, Instruments, Accounts and Security Deposits relating in any way to such Goods; and (c) in all Proceeds thereof (the "Collateral"). Terms used in this Section 5.2 without definition have the meanings ascribed thereto in the Uniform Commercial Code as enacted in the State of South Carolina (the "UCC"). The Purchaser acknowledges that the security interest granted under this Section 5.2 is a purchase money security interest under the UCC.
5.3 The Purchaser expressly authorizes, ratifies and confirms past or future filings of one or more UCC financing statements or other documents by wantec or its designees to the extent deemed necessary or desirable by wantec. Such financing statements or documents may describe the Collateral in the manner in which wantec determines best protects wantec's interests in the Collateral and facilitates the future sale of Goods, regardless of whether such description is greater in scope than the Collateral in which the Purchaser grants to wantec a security interest. wantec and its designees are specifically authorized to file financing statements in advance of performance under any specific Contract, and the Purchaser acknowledges that any such filing made prior to the date of a Contract is authorized and ratified as of the date of such filing (it being acknowledged and agreed, however, that no such filing expands the scope of any Collateral in which the Purchaser grants to wantec a security interest).
5.4 THE PURCHASER SHALL NOT SELL, PLEDGE, TRANSFER OR ASSIGN THE GOODS (FOR SECURITY OR OTHERWISE) UNTIL THE RELEASE DATE.
5.5 Until the Release Date, Purchaser shall carefully store, maintain, and insure the delivered Goods; shall protect such Goods against theft, breakage, fire, water and other risks, and moreover shall take all reasonable measures in order that wantec's rights and interests in such Goods are neither compromised nor cancelled. Until the Release Date, the Purchaser must keep the Goods identifiably separate from other goods not supplied by wantec.
5.6 The Purchaser agrees that until the Release Date, wantec and its designees have the right, with or without prior notice to the Purchaser, to enter upon any of Purchaser’s premises to inspect the Collateral.
5.7 In the event Purchaser (a) breaches any representation, warranty or covenant under the Contract; (b) defaults under any other present or future agreement between the Purchaser and wantec or an affiliate of wantec; (c) shall be legally dissolved, adjudicated insolvent or bankrupt or cease to pay its debts as they mature, make a general assignment for the benefit of or enter into an arrangement with creditors, (c) shall apply for or consent to the appointment of a receiver, trustee or liquidator of it or a substantial part of its property, (d) shall take action to dissolve or terminate its legal existence, or authorize or file a voluntary petition in bankruptcy or under any similar law, or consent to such a petition; or (e) suffer such a petition or proceeding of the type described in subsection (d) to be instituted against it which remains undismissed for a period of sixty (60) days; then wantec may, in its sole discretion, exercise any and all remedies available under applicable law or in equity, including, without limitation, (i) enter any premises where any Collateral may be located and repossess, disable or take possession of such Collateral (and/or any attached or unattached parts) by self-help, summary proceedings or otherwise without liability for rent, costs, damages or otherwise; (ii) use Purchaser's premises for storage without rent or liability; (iii) sell, lease or otherwise dispose of, or realize value from, any or all of the Collateral at private or public sale, in bulk or in parcels, with or without notice except to the extent required by applicable laws, and without having the Collateral present at the place of sale or in Lender’s possession; and (iv) upon application to a court of competent jurisdiction, seek the immediate appointment of a receiver for all or part of the Collateral, whether such receivership is incidental to a proposed sale of such Collateral, pursuant to the UCC or otherwise. No remedy referred to this Section 7.7 is intended to be exclusive, but all remedies shall be cumulative and in addition to any other remedy referred to above or otherwise available to wantec at law or in equity. In all cases, the Purchaser will be responsible for wantec’s costs and expenses in exercising its rights.
6. Delivery and default of delivery
6.1 Unless otherwise agreed in writing, wantec shall deliver Goods to the Purchaser from wantec’s facility or warehouse. Partial deliveries are permitted. wantec may deliver Goods in advance of the delivery schedule.
6.2 wantec will use reasonable endeavors to meet any delivery or completion date quoted but such date or time is a bona fide estimate only according to information available to wantec from its makers and shippers at the time of Offer and is not to be construed as a fixed date or time unless specifically agreed to by wantec in writing.
6.3 Delivery dates are considered adhered to if, prior to their expiry, the notification of dispatch or readiness for acceptance of wantec has been sent to the Purchaser.
6.4 Any delivery or completion date shall be extended in respect of any delay relating to either instructions given by, or lack of instructions from, the Purchaser, or any other acts or omissions of the Purchaser or those for whom Purchaser is responsible, including any delay or withdrawal of access by the Purchaser to the premises required for the purpose of fulfilling the Contract.
7. Force Majeure
7.1 wantec shall not be held responsible for failure to perform or delay in performing any of its contractual obligations if such failure or delay is due to unforeseeable events beyond wantec’s reasonable control (“Force Majeure”), including but not limited to acts of God, war, insurrection, epidemics, sabotage, labour disputes, strikes, lock-outs, shortages of labor, interruption or delays in transportation, fire, explosion, equipment or machinery breakdown, failure or delays of wantec’s source of supply, shortage in material or energy, acts, orders or priorities of any government, embargo and any other cause whether arising from natural causes, human agency or anything beyond the reasonable control of wantec.
7.2 wantec shall notify the Purchaser in writing within five (5) business days following the occurrence of any event of Force Majeure citing this clause in said notice and shall supply all relevant information about its effects on the performance of the Contract.
7.3 Unless otherwise agreed in writing between the Parties, if wantec is unable to perform the Contract because of Force Majeure, wantec is temporarily excused from performance while the incident of Force Majeure is occurring and is obligated to perform once the incident ends. wantec shall not be subject to damage claims.
7.4 In case the duration of Force Majeure exceeds six (6) months, the Parties will have the right to terminate the Contract immediately. Contractual obligations performed shall be remunerated. If the purchase price has been paid by the Purchaser in full, wantec will refund the purchase price less the accrued cost and expenses of the contractual obligations.
8. Place of performance
Unless otherwise agreed in writing between the Parties, wantec’s premises are the place of performance.
9. Transfer of Risk
9.1 Unless otherwise agreed in writing between the Parties, upon delivery of the Goods to the Purchaser, the Purchaser will carry the risk and become responsible for loss of, or damage to, the Goods, except where wantec is at fault.
10.1 In addition to any other remedies that wantec may have in law, wantec may terminate or suspend the Contract or any part thereof if the Purchaser:
i) fails to pay any amount when due under the Contract and such failure continues for fourteen (14) days after the Purchaser’s receipt of a written notice demanding payment (“Notice of Demand”) from wantec;
ii) has not otherwise performed or complied with any of the terms and conditions of this Contract in whole or in part; and/or
iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganisation or assignment for the benefit of creditors.
10.2 If the Contract (or parts thereof) is terminated, as specified in clause 10.1 of these GTC:
i) wantec will have an immediate right to re-possession of the Goods held by the Purchaser but for which the full purchase price has not been paid in respect of the Goods; and
ii) all other debts owed to wantec by the Purchaser will become due and payable and must be paid by the Purchaser on demand by wantec, on the terms of the Notice of Demand from wantec.
11.1 The Purchaser shall inspect the Goods supplied by wantec under the Contract within seven (7) days of the Goods being delivered and notify wantec of any defects in writing. Otherwise, wantec will consider the Goods to be accepted as they were delivered to Purchaser.
11.2 If, during the acceptance inspection, minor defects are detected, acceptance takes place anyway and the acceptance inspection is completed. wantec subsequently remedies the detected defects.
11.3 If, during the acceptance inspection, major defects are detected, acceptance is postponed. wantec remedies detected defects and notifies the Purchaser of a new acceptance date.
12.1 wantec warrants that the Goods will comply with any description contained in the relevant sales confirmation (if any) and with the standard specification for the Goods. Goods shall be delivered free from defects in material, workmanship and title.
12.2 If the Goods supplied by wantec do not satisfy the warranties specified in clause 12.1 of these GTC, the Purchaser shall promptly notify wantec in writing prior to expiration of the warranty period. wantec shall, at no cost to the Purchaser and at its option:
i) replace defective Goods with the same or equivalent goods; or
ii) refund to the Purchaser the contract price of such Goods.
The warranty cover for repaired or replaced Goods will expire on the same date as the warranty for the rest of the Goods.
12.3 The warranty does not apply in respect of defects due to or arising from:
i) incorrect or negligent handling, disregard of operating or maintenance instructions, overloading, unsuitable operating conditions, defective building work, lightning, accident, neglect, faulty erection, acts of God, causes beyond wantec’s control, and unauthorised repairs or alterations; and
ii) normal wear and tear.
12.4 This warranty only applies if:
iii) the Goods have been properly handled, located, used, maintained and stored;
iv) defects occur within twelve (12) calendar months after the Goods have been delivered to the Purchaser;
v) wantec is notified in writing within seven (7) days of the alleged defect first coming to the notice of the Purchaser;
vi) the Purchaser returns the defective Goods to wantec, or if necessary and at the sole discretion of wantec, to the works where such Goods were manufactured or assembled, free of charge; and
vii) the Purchaser has fulfilled all of his contractual obligations under the Contract.
13. Limitation of Liability
13.1 NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THE CONTRACT TO THE CONTRARY, WANTEC SHALL NOT BE LIABLE (TO THE FULLEST EXTENT PERMITTED AT LAW) WHETHER BY WAY OF INDEMNITY, GUARANTEE, OR BY REASON OF ANY BREACH OF CONTRACT, OR OF STATUTORY DUTY OR BY REASON OF TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR ANY OTHER LEGAL PRINCIPLE OR DOCTRINE FOR:
I) ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE OR LOSS OF ANTICIPATED SAVINGS OR FOR ANY FINANCIAL OR ECONOMIC LOSS (WHETHER DIRECT OR INDIRECT) OR FOR ANY CONSEQUENTIAL OR INDIRECT LOSS OR DAMAGE WHATSOEVER; OR
II) ANY OTHER AMOUNT IN AGGREGATE WITH ANY OTHER LIABILITY (BEING ANY PAST, PRESENT OR FUTURE LIABILITY) TO WHICH THIS CLAUSE APPLIES, THAT EXCEEDS THE AGGREGATE VALUE OF ALL PAYMENTS OF THE CONTRACT PRICE MADE UNDER THESE GTC.
The Purchaser shall keep wantec indemnified against all costs, claims, demands, expenses and liabilities of any nature, including, without prejudice to the generality of the foregoing, claims of death, personal injury, damage to property and consequential loss (including loss of profit) which may be made against the Purchaser or which the Purchaser may sustain, pay or incur as a result of or in connection with the manufacture, sale, export, import or use of the Goods unless such costs, claims, demands, expenses or liabilities are directly and solely attributable to any breach of the Contract or guarantee by, or negligence of, wantec or its duly authorised employee or agent.
15. Pre-Existing intellectual property rights
15.1 Pre-Existing intellectual property rights (copyrights, patent rights etc.) remain with wantec or third parties.
15.2 The Purchaser is granted a non-exclusive and non-transferable right to use the pre-existing intellectual property rights for the agreed purpose in the Contract.
15.3 If wantec supplies any Goods in accordance with the Purchaser’s specifications or using the Purchaser’s goods, the Purchaser shall indemnify wantec from and against all actions, claims, demands, costs, expenses and liabilities arising in connection with any alleged or actual infringement of the intellectual property rights of a third party.
16. Infringement of intellectual property rights
16.1 wantec shall defend and indemnify the Purchaser against any claim by a third party alleging that Goods furnished under the Contract infringe a patent in effect, or any registered copyright or trademark, provided that the Purchaser:
i) promptly notifies wantec in writing of such claim;
ii) makes no admission of liability and does not take any position adverse to wantec;
iii) gives wantec sole authority to control defence and settlement of the claim; and
iv) provides wantec with full disclosure and reasonable assistance as required to defend the claim. This includes, to the extent permitted by law, that the Purchaser permits wantec to conduct a possible trial and be responsible for the measures and instructions for a settlement in court or out of court of the lawsuit. In the case of a trial, the Purchaser shall consult wantec immediately. If necessary, he takes first damage-reducing measures.
16.2 Clause 16.1 of these GTC shall not apply and wantec shall have no obligation or liability with respect to any claim based upon:
i) Goods that have been modified, or revised;
ii) the combination of any Goods with other Goods when such combination is a basis of the alleged infringement;
iii) failure of the Purchaser to implement any update provided by wantec that would have prevented the claim;
iv) unauthorised use of Goods; or
v) Goods made or performed to the Purchaser’s specifications.
16.3 Should any Goods, or any portion thereof, become the subject of a claim, wantec may, at its option:
i) procure for the Purchaser the right to continue using the Goods, or applicable portion thereof;
ii) modify or replace them in whole or in part to make it non-infringing; or
iii) failing i) or ii), take back infringing Goods and refund the price received by wantec attributable to the infringing Goods.
17.1 Both Parties shall treat in strict confidence all information which is neither generally known nor generally accessible, and shall use it only for the purpose of fulfilling the Contract. The Parties shall ensure the confidential treatment of all information relating to the Contract by their personnel and consulted specialists. In case of doubt, all information is to be treated confidentially.
17.2 Confidential information of a party does not include information which:
i) was already known to the other party, before it was made accessible by the disclosing party;
ii) is or becomes generally known without the other party’s responsibility;
iii) was disclosed to the other party by a third party without any transfer restriction;
iv) was developed by the other party itself without using or referring to the confidential information of the protected party; and/or
v) has to be disclosed based on a legally binding decision of a court, administrative or other authority. In this case the Party under the obligation to disclose shall inform the other Party immediately about the decision and consider protective measures the other Party may want implement.
17.3 This obligation of confidentiality already exists prior to the conclusion of the Contract and remains valid for a period of three (3) years after termination of the contractual relationship.
17.4 A Party must not disclose any confidential information to a third party without the prior written approval of the other Party to the Contract. If the approval is given, the obligations of confidentiality are to be transferred to the receiving third party.
18.1 The Parties comply with applicable legal standards.
18.2 The Parties shall require their personnel, subcontractors, suppliers and other third parties enlisted for the fulfillment of the Contract to comply with this clause.
19. Assignment and pledging
19.1 The Contract or rights and duties therefrom can only be assigned or pledged with the previous written approval of both Parties to the Contract.
19.2 Notwithstanding clause 19.1, of these GTC, wantec may assign rights and obligations from the Contract to another company of the wantec at any time.
19.3 Any claims arising to the Purchaser from the Contract may be neither assigned nor pledged without the previous written approval of wantec.
The Purchaser shall not be entitled to set-off.
21. Applicable law and arbitration
The Contract shall be governed by and construed in accordance with the internal laws of the State of South Carolina without regard to conflicts of laws that would require the application of the laws of another jurisdiction. All claims, controversies or disputes arising under, related to or in connection with this Contract between or among any of the Parties hereto (and their representatives), whether sounding in contract or tort, including arbitrability and any claim based on fraud (collectively, the “Covered Claims”), will be resolved by binding arbitration in accordance with the following terms and conditions:
i) Administrator. The arbitration of all Covered Claims will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA Commercial Arbitration Rules then in effect; provided, however, that (a) the parties hereto waive any right to jury trial; (b) there shall be no interlocutory appellate relief (such as writs) available; (c) discovery will be limited to matters which are directly relevant to the issues in the arbitration; and (d) any award of the Arbitrator shall be final and binding and non-appealable.
ii) Arbitrator; Language. The arbitration will take place in and be conducted by a single, neutral arbitrator (“Arbitrator”), to be selected in accordance with AAA rules. The arbitration shall be conducted in English.
iii) Interim, Provisional or Emergency Relief. The Arbitrator may, in the course of the proceedings, order any interim, provisional or emergency relief, remedy or measure (including, without limitation, attachment, preliminary injunction, or the deposit of specified security) that the Arbitrator considers to be necessary, just and equitable. The failure of a Party to comply with such an interim order may, after due notice and opportunity to cure such noncompliance, be treated by the Arbitrator as a default, and some or all of the claims or defenses of the defaulting party may be stricken and partial or final award entered against such party, or the Arbitrator may impose such lesser sanctions as the Arbitrator may deem appropriate. This Section will not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction, and each of the Parties irrevocably submits to the jurisdiction of the state and federal courts located in South Carolina, in conjunction with an application for a provisional remedy.
iv) Jurisdiction/Venue/Enforcement of Award. The Parties consent and submit to the exclusive personal jurisdiction and venue of the state and federal courts located in South Carolina to confirm any arbitration award granted pursuant to this Contract, including, but not limited to, any award granting equitable relief, and to otherwise enforce this Contract and carry out the intentions of the Parties to resolve all Covered Claims through arbitration. This Section does not prevent the Parties from enforcing the award of the Arbitrator in the court of any other jurisdiction, to the extent permitted by law (for example, if property that is the subject of the award is located in another jurisdiction).
v) Confidentiality. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary, and only to the extent reasonably necessary, to obtain court confirmation of the judgment of the Arbitrator, and except as necessary, and only to the extent reasonably necessary, to give effect to res judicata and collateral estoppel (e.g., in a dispute between the Parties that is not a Covered Claim), in which case all filings with any court will be sealed to the extent permitted by the court. Nothing in this Section is intended to, or shall, preclude a Party from communicating with, or making disclosures to, its lawyers, tax advisors, auditors, lenders, investors, landlords, regulators and insurers, as necessary and appropriate or from making such other disclosures as may be required by law.
vi) Fees and Costs. The Parties will initially share equally in the fees of the Arbitrator and the administrative costs of the arbitration; provided, however, that the prevailing party in the arbitration will be entitled to recover its fees and costs (including attorneys’ fees) from the other Party or parties.