Terms and Conditions of Sale
Fox Innovation & Technologies Inc.
(For use with FOX goods and services)
1.Applicability: These Standard Terms and Conditions of Sale (these “Terms”) shall apply to all goods and services (collectively “Products”) provided by Fox Innovation & Technologies Inc. (“FOX”) and any of its subsidiaries or affiliates and may be changed from time to time at FOX’s sole discretion. Customer accepts these Terms by signing the purchase order, acknowledgement, or similar document. These Terms, any written quotation, order acceptance, other provisions as may be accepted by FOX in writing, and invoice issued by FOX comprise the entire agreement between FOX and Customer (the “Agreement”), and supersede all prior or contemporaneous communications, understandings, agreements, negotiations, representations, course of dealing, and warranties. As used herein, the term “Customer” shall mean a person, organization, or entity that purchases Products from FOX. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. No Customer order will be binding until accepted by FOX. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
2. Payment Terms: Unless otherwise agreed in writing, FOX’s standard payment terms for credit-approved U.S. customers are net 30 days from shipment date for Goods and 30 days from invoice date for Services. For international shipments the standard payment terms are fifty percent (50%) at time of order and fifty percent (50%) due at notification to ship. Payment shall be made by electronic transfer as set forth in the purchase order or otherwise sent to Customer.
All payments will be in U.S. dollars. Invoiced amounts due to FOX are not subject to set-off. Acceptance by FOX of bank drafts, checks or other media of payment is subject to collection. FOX may recover for each delivery as a separate transaction, without reference to any other delivery. FOX reserves the right to change or modify the payment terms if Customer fails to make timely payment hereunder. In addition, unpaid accounts may result in the interruption of supply of Product, until such time as FOX has received payment from Customer. In addition, late payments shall accrue a finance charge of ten percent (10%) per annum or the highest rate allowable by law, whichever is less. FOX shall be entitled to recover all costs and expenses, including reasonable attorneys’ fees, arising out of Customer’s failure to make all payments due in a timely manner.
3. Taxes: All fees, taxes, and other governmental charges (except for income taxes of FOX), which are imposed now or at a later date on the manufacture, transportation, delivery, sale, or use of product, shall be for the account of Customer in addition to the price of the Product. Customer shall reimburse FOX for all taxes, excises or charges which FOX may be required to pay to any government or governmental authority which are hereafter levied directly upon the production, sale, transportation or use of the Product.
4. Delivery: FOX will deliver the Products FCA FOX’s facility. Delivery dates are estimates only and are not guaranteed. FOX shall not be liable for any delays, loss or damage in transit whether such transit is to or from Customer’s location. If Customer delays shipment, payment will be due when Customer is notified that the Products are ready to ship and FOX will thereafter hold the Products at Customer’s risk and expense.
5. Modifications: If changes in specifications or drawings are made at Customer’s request, FOX will be entitled to an equitable adjustment in the price, delivery date, or both.
6. Specifications: Any FOX specifications provided to the Customer are for descriptive purposes only and are not to be construed as warranties. FOX reserves the right to make changes in details of design and construction that will, in our judgment, constitute an improvement to the Products. FOX does not supply detailed or shop working drawings of Products.
7. Security Interest; Default: Customer hereby grants FOX and FOX hereby retains a security interest in the Products until the purchase price is fully paid. If payments are not made when due, FOX may, at Customer’s expense, take possession of the Products wherever found and remove same without legal process. In the event of default by Customer, any payments which have been made to FOX will be retained as damages without reducing FOX’s right to recover for further damages resulting from the default.
8. Insurance: Customer shall at its sole cost and expense, maintain with an insurer satisfactory to FOX, fire and extended coverage insurance in an amount sufficient to protect FOX’s interest from the time of delivery until the Products have been paid for in full. Customer will assume all losses resulting from any cause that may not be covered by insurance.
9. STANDARD LIMITED WARRANTY: (A) (1) Manufacture and Repair. FOX warrants to the Customer that equipment or parts repaired by FOX, or parts manufactured by FOX, are free from defects in materials and workmanship for a period of ninety (90) days from date of shipment or thirty (30) days from date of initial start-up, whichever occurs first. Upon the expiration of the above-stated periods, liability for alleged claims not asserted in writing shall terminate. FOX will, at its sole election: (a) repair or replace, FCA FOX’s facility, any such equipment or parts found to be defective; or (b) refund the original purchase price, provided FOX receives written notice of the alleged defect within the above stated periods. New equipment, parts or accessories manufactured by others and not repaired by FOX are not covered under this warranty and carry the warranty of the manufacturer only. Also excluded from the foregoing warranty are damages caused by ordinary wear and tear, erosion or corrosion, misuse, abuse or improper handling, or installation by Customer or any third party. (2) Equipment Overhauls. FOX warrants that during equipment overhauls, FOX will inspect all critical parts and remedy problems (if possible) found that could affect mechanical operation. Latent defects that cannot be found by normal nondestructive tests and inspections are not included in this warranty. (3) Power Claims. It is impossible to measure power output or consumption in normal installations, rated power is not guaranteed unless specifically so stated in the written quotation. Claims for high power consumption or low power output must be verified with a torque-measuring coupling or other similar device and must be confirmed by independent third parties paid for by Customer. (B) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN PARAGRAPH 9(A), FOX MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND SPECIFICALLY DENIES ANY WARRANTY OF PRODUCT MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, AND NO SUCH WARRANTIES SHALL BE IMPLIED. ALL WARRANTIES, EXPRESS OR IMPLIED AND EXCEPT THE LIMITED WARRANTY EXPRESSLY STATED ABOVE, ARE EXCLUDED. FOX SHALL NOT BE LIABLE FOR USE OF THE PRODUCTS, SINGULARLY OR IN COMBINATION WITH OTHER PRODUCTS, OR OTHERWISE BY CUSTOMER OR ANY THIRD PARTY. THE REMEDIES SET FORTH IN PARAGRAPH 9(A) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND FOX’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN PARAGRAPH 9(A). IN NO CASE SHALL FOX’S LIABILITY FOR ANY LOSS OR DAMAGE TO CUSTOMER ARISING OUT OF OR IN CONNECTION WITH THE WARRANTY STATED IN PARAGRAPH 9(A) EXCEED THE PURCHASE PRICE FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE APPLICABLE CLAIM.
10. Limitation of Liability: (A) Customer assumes all risks of the use of the Products. (B) IN NO EVENT SHALL FOX BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT FOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (C) IN NO EVENT SHALL FOX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE PRODUCTS OR THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE ORIGINAL PURCHASE PRICE FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE APPLICABLE CLAIM.
11. Cancellation: (A) If any order placed by Customer and accepted by FOX is canceled, Customer shall pay reasonable cancellation charges which will include non-recoverable costs and expenses incurred and commitments made by FOX from time of order acceptance until the date of written notice of cancellation, plus reasonable compensation for loss of profit. (B) For Customer orders and/or for development contracts of a special nature, where FOX’s performance or completion is delayed for a protracted period, either FOX or Customer may, at any time after the end of one hundred eighty (180) days following the start of such delay, terminate such order upon ten (10) days written notice to the other party. Upon the giving of such notice, Customer shall pay FOX for all non-recoverable costs and expenses incurred and commitments made by FOX from time of order acceptance until the date of written notice of cancellation, plus reasonable compensation for loss of profit. Title to all material paid for by Customer will then vest in Customer and will be held by FOX at Customer’s sole risk and expense.
12. Compliance with Laws. Each party shall comply with all laws and regulations applicable to the production and provision (in the case of FOX) and receipt and use (in the case of Customer) of the Products provided hereunder. If additional compliance burdens are placed on FOX, FOX will be entitled to an equitable adjustment in the price, delivery date, or both.
13. Confidential Information: All non-public, confidential or proprietary information of FOX, including but not limited to, specifications, samples, plans, drawings, documents, data, business operations, pricing, discounts or rebates, disclosed by FOX to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Agreement is confidential, solely for the purpose of performing the Agreement. FOX shall be entitled to injunctive relief for any violation of this paragraph. This paragraph does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
14. Assignment: Neither these Terms nor the Proposal may be assigned to any other party without express written approval of both FOX and the Customer (which consent shall not be unreasonably withheld); provided however, FOX may assign its rights and obligations under these Terms, in whole or in part, to any subsequent purchaser of FOX or any of its subsidiaries or affiliates or any material portion of its assets.
15. Severability: Should any part of these Terms be deemed unlawful; the remainder of these Terms shall remain in effect and be fully binding on the parties.
16. Dispute Resolution: No action for the enforcement of remedies set forth herein shall be commenced more than two (2) years after the cause of action accrued for the enforcement of such remedies.
17. Venue and Choice of Law: Any action arising out of or related to the Products, or these Terms shall be governed and construed in accordance with the laws of the State of Texas, without regard to its conflict of law’s provisions. FOX and the Customer agree that any litigation shall be conducted exclusively in the state or federal courts located in Harris County, Texas and FOX and the Customer hereby consent to such jurisdiction and waive any personal jurisdiction or venue objections (including forum non conveniens) to such forum.
18. Force Majeure: Neither party shall be liable for any delay in or failure of performance to the extent due to causes which are beyond its reasonable control and not reasonably foreseeable and avoidable. When either party claims an excuse for non-performance under this paragraph, it shall give prompt notice in writing to the other party. If and to the extent of any delay which is excused pursuant to this paragraph, the relevant delivery dates for the Products and other excused performance dates will be deemed extended for a period of time equal to the period of such excused delay and the parties may mutually agree on new delivery or performance dates to apply at the conclusion of such extension period.
19. Waiver: The waiver by a party of any breach or violation of any provision of these Terms must be in writing, and any such waiver will not operate as, or be construed to be, a waiver of any subsequent breach or violation.
20. Suspension/Termination: In addition to any other remedies available to FOX, FOX may suspend or terminate any order for Product with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due for Products (or any other agreement Customer has with FOX); (b) has not otherwise performed or complied with any of these Terms (or complied with the terms of any other agreement Customer has with FOX); (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; or (d) exhibits other adverse credit conditions that are unsatisfactory to FOX, as determined by FOX in its sole discretion.
21. Relationship of the Parties: Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
22. Anti-Corruption and Export Laws: The parties warrant that they and their affiliates and subsidiaries, including their respective directors, officers, employees, and other persons acting on behalf of any of the foregoing will: (a) conduct business in compliance with all applicable customs, export and import laws and regulations, including, but not limited to, the U.S. Department of State International Traffic in Arms Regulations, the U.S. Department of Treasury Foreign Assets Control Regulations, U.S. laws relating to unsanctioned foreign boycotts and all other applicable economic sanctions, anti-terrorism, anti-money laundering and related laws and regulations; (b) not import, export or re-export commodities, software, technology, technical data or services in contravention of any applicable law or regulation; (c) comply with all laws of the United States of America and any other applicable anti-corruption laws, and shall refrain from any conduct that would cause the parties to be in violation of any applicable anti-corruption laws, including, but not limited to, the U.S. Foreign Corrupt Practices Act; and (d) maintain a compliance program intended to prevent corruption and bribery within its supply chain.
23. Returns: Products purchased from FOX cannot be returned without prior Return Material Authorization (RMA) from FOX. All returns are subject to a restocking fee to be advised by FOX. “Surplus” products purchased from FOX are sold “as is” and cannot be returned, i.e., all sales are final.
24. Patent Indemnity: In the event any Product manufactured by FOX and furnished under this Agreement is to be made in accordance with drawings, samples or manufacturing specifications designated by Customer, Customer agrees to indemnify and hold FOX harmless from any and all damages, costs and expenses (including attorney’s fees) relating to any claim arising from the design, distribution, manufacture or use of the Product or arising from a claim that such Product furnished to Customer by FOX, or the use thereof, infringes any letters patent, foreign or domestic, and Customer agrees at its own expense to undertake the defense of any suit against FOX brought upon such claim or claims.
In the event any Product to be furnished under this Agreement is not to be made in accordance with drawings, samples, or manufacturing specifications designated by Customer, but rather is the design of FOX, and the Product has not been modified by Customer or its customers, FOX agrees to hold Customer and its customers harmless against any damages awarded by a court of final jurisdiction in any suit or suits for the infringement of any United States letters patent by reason of the sale or use of such Product furnished by FOX under this Agreement, provided that FOX is notified promptly in writing of any claim or suit and is permitted to assume the full direction and control of the defense against such a claim and of any suit brought thereon and is given authority, information and assistance by Customer (at FOX’s expense) for such defense and authority to settle. In case any judgment rendered in such suit shall become final (beyond right of appeal), and where Customer has complied with the foregoing provisions of this paragraph to FOX’s satisfaction, FOX agrees to pay the damages and costs thereby awarded against Customer. If, subject to the above limitations, said Products, or any part thereof, should be finally held in such suit to constitute an infringement, FOX shall have the right at its own expense either (a) to procure for the Customer rights to the patent, or (b) to modify or replace said Product with a non-infringing Product accomplishing the same purposes as the replaced Product, or (c) to withdraw such Product and refund to the Customer the purchase price thereof. FOX shall have the right to settle any claim at its own expense (a) by procuring for Customer the right to continue using said Product without liability for infringement of such patent, or (b) by modifying or replacing said Product with a non-infringing Product accomplishing the same purposes as the replaced Product, or (c) by removing said Product and refunding to Customer the purchase price thereof. Customer’s remedies for damages resulting from the infringement or claimed infringement of any patent by the Product are exclusively limited to the provisions of this paragraph.
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