1. Applicability:

These Terms and Conditions of Sale (the “Terms”), together with any valid Seller quotations (each a “Quote” and, collectively with the Terms, the “Agreement”), form a legally binding agreement and contain the entire understanding between ESPAS, Inc., a Michigan corporation (“Seller”) and the buyer of goods and services from Seller (“Buyer”). This Agreement supersedes any and all other agreements, representations and understandings of the parties, if any, whether oral or in writing.  Buyer is deemed to have accepted these Terms when it accepts a Quote or issues a purchase order or other writing expressing the Buyer’s intent to proceed with the Agreement. The Terms shall be the only terms that shall govern the purchase and sale of the goods and services between Buyer and Seller, and no other terms and conditions shall apply and are hereby expressly excluded, including, without limitation, any of Buyer’s general terms and conditions contained in a request for quotation, purchase order, website, or elsewhere. This Agreement prevails over any of Buyer’s general terms and conditions of purchase regardless pf whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend the Agreement.

2. Quotes:

Any Quotes provided by Seller to Buyer are based on a 3D CAD model or drawing submitted by Buyer to Seller. Any change to the 3D CAD model or drawing requires an updated Quote. Any Quote may be withdrawn by Seller for any reason and at any time until Buyer’s acceptance of the Quote. Seller reserves the right to correct clerical and other typographical errors in any Quote.

3. Termination:

Either party may terminate this Agreement, in whole or in part, by written notice to the other party, effective upon receipt by the other party if the other party: (i) fails to pay any amount when due under this Agreement, (ii) otherwise breaches this Agreement and does not remedy the breach within 30 days following written notice requiring the breach to be remedied or (iii) 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. In the event of termination, Seller reserves the right to invoice Buyer for all goods produced or services performed prior to receipt of notice of termination as well as for any materials purchased to make goods for Buyer’s which Seller is unable to return for a full refund.

4. Delivery:

Goods will be delivered within a reasonable time after Buyer’s acceptance of a Quote. Seller shall select the method of shipment of and the carrier for the goods. Seller shall deliver the goods to the location set forth in the Quote. Risk of loss of the goods shipped passes to Buyer upon Seller’s tender of the goods to the carrier. Seller shall use reasonable efforts to meet any performance dates specified in the Quote and any such dates shall be estimates only. Seller is not liable for any delays, loss or damage in transit. Seller may, without liability or penalty, make partial shipments to Buyer. 

5. Price and Terms of Payment:

The prices established by this Agreement are set forth in the Quote. All prices are quoted and payments shall be made in U.S. Dollars and are exclusive of freight, shipping, special packaging or handling, tariffs, duties, and unless specifically stated, sales, excise, use or other taxes arising in connection with this transaction (other than taxes based solely on Seller’s taxable income).  Buyer shall pay all invoiced amounts due to Seller within the aggreged upon terms from the date of Seller’s invoice. Payment may be made by wire transfer, check or other form of payment acceptable to Seller. To the extent Buyer desires Seller to present invoices or other information electronically via Buyer’s or a third party’s electronic payment website, any costs associated with such access will be borne by Buyer.  Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller.  Delinquent or late payments will be invoiced by Espas Inc. as follows, 10 days late from terms 5% of the product purchase order, 20 days late from terms 20% of the product purchase order, 30 days late from terms 30% of the product purchase order, beyond 30 days late from terms 45% of the purchase order                                          

6. Nonconforming Goods:

Buyer shall inspect all goods upon delivery by Seller, and should any of the goods be nonconforming goods, Buyer must notify Seller, in writing, within one week of delivery of the goods describing the nature of any nonconformity. Seller shall have the right, at its option, to (i) repair or replace any goods agreed between the parties to be nonconforming or (ii) credit or refund the purchase price for goods agreed between the parties to be nonconforming. Seller shall not have any obligation to repair, replace, credit, refund or otherwise compensate Buyer for nonconforming goods if Buyer fails to notify Seller in writing that goods are nonconforming within one week of Seller’s delivery of the goods. If Seller approves the replacement of, or a credit or refund for, the nonconforming goods, Buyer shall ship within one week of receiving such approval, at its expense and risk of loss, the nonconforming goods to the location specified by Seller. If Seller exercises its option to replace the goods, Seller shall, after receiving the nonconforming goods from Buyer, ship to Buyer, at Buyer’s expense and risk of loss, the replacement goods to the delivery location set forth in the Quote.

7. Warranties:

Seller assumes no responsibility for the design of the goods that are the subject of this transaction. To the extent Seller’s personnel recommend design modifications or provide design analysis, simulation or advice, they do so only to help meet the requirements of Seller’s own manufacturing process. The Buyer retains sole legal responsibility for the design specifications and performance of the goods that are the subject of this transaction. Buyer is solely responsible for ensuring the goods and services purchased from Seller meet applicable quality requirements.

SELLER MAKES NO REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER WITH RESPECT TO ANY GOODS OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. 

Without limiting the generality of the foregoing, Seller assumes no responsibility or liability for the selection of any materials for the goods that are the subject of this transaction. Seller does not certify that its manufacturing processes are compliant with any particular regulatory requirements. The Buyer is solely responsible for ensuring that materials selected for goods to be manufactured by Seller meet any applicable regulatory requirements or specifications.

8. Indemnification:

Buyer agrees to defend, indemnify and hold harmless Seller and its affiliates, officers, directors, employees, representatives, agents and successor and assigns from and against all claims, liabilities, losses, damages, interest, penalties, taxes, customs duties, fines and sanctions of any kind (including, without limitation attorneys’ fees and expenses) relating to or resulting from any claim of a third party arising out of or occurring in connection with Seller’s goods or services (including any claim based on the infringement of third party intellectual property rights) or Buyer’s negligence, willful misconduct or breach of this Agreement.

9. Force Majeure:

Seller shall not be liable for any failure to perform under this Agreement if such failure or delay is caused by acts of God, fire, storm, strikes, blackouts, labor difficulties, riots, inability to obtain materials, equipment, labor or transportation, governmental restrictions, or any other event beyond Seller’s reasonable control. In the event of any shortage of raw materials or other supplies, Seller may allocate materials and supplies among its buyers in such manner as Seller may determine in its sole discretion, and shall have no liability to the Buyer on account of any delay or cancellation on account thereof.

10. Buyer-Supplied Materials:

If Seller agrees to use materials supplied by Buyer, Buyer shall be solely responsible for supplying and delivering such materials in a timely manner at no cost or expense to Seller, of sufficient quality and in sufficient quantity (including allowances for loss, waste, or scrap that may occur for any reason) as Seller deems necessary to complete its obligations. At Buyer’s request and Buyer’s expense and risk of loss, Seller will ship any Buyer supplied materials to the location specified by Buyer. Seller will not return waste, scrap or de minimis amounts of material. Seller shall not be liable for, and Buyer shall be obligated to pay any previously negotiated delivery premiums notwithstanding, any failure or delay in delivering any goods to be provided hereunder if such failure or delay is caused by Buyer’s failure to supply and deliver such materials in a timely manner or of such quality or in such quantity as Seller deems necessary. Notwithstanding anything else contained in this Section 10, Seller may destroy or otherwise dispose of any Buyer supplied material two months following termination of this Agreement if Buyer does not specify a location for the delivery of the Buyer-supplied materials and prepay to Seller all expenses related to such delivery.

11. Intellectual Property:

The parties acknowledge and agree that Seller may use preexisting proprietary computer software, methodology, techniques, software libraries, tools, algorithms, materials, products, ideas, skills, designs, know-how or other intellectual property owned by Seller or its licensors, and Seller may also create additional intellectual property in the course of providing the goods or services (all of the foregoing, the “Seller Intellectual Property”).  As between Buyer and Seller, Seller will own the Seller Intellectual Property. During the term of this Agreement, Seller grants to Buyer a non-exclusive, non-transferable, limited license, without right to sublicense, to use the Seller Intellectual Property, together with (and not separate from) the goods and services that Seller provides to Buyer, in the ordinary course of the operation of Buyer’s business. Buyer will not, without prior written approval of Seller (which may be withheld for any reason), remove any of Seller’s markings or change Seller’s Intellectual Property in any way.

12. LIMITATION OF DAMAGES:

IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO ITS PERFORMANCE UNDER THE CONTRACT, WHETHER BASED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE AND WHETHER GROUNDED IN TORT, CONTRACT, CIVIL LAW OR OTHER THEORIES OF LIABILITY, INCLUDING STRICT LIABILITY. BUYER ACKNOWLEDGES THAT THE ESTIMATED AND ACTUAL FEES AND CHARGES PAID FOR THE GOODS AND SERVICES REFLECT THIS LIMITATION OF LIABILITY AND ALLOCATION OF RISK. THE TOTAL LIABILITY OF SELLER OR ITS SUPPLIERS TO BUYER UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL SUMS PAID BY BUYER TO SELLER UNDER THE QUOTE GIVING RISE THE LIABILITY.

13. Country of Origin:

Seller makes no country of origin certification under this Agreement. Seller specifically disclaims any “passive” certifications included in any of Buyer’s documents or communications related to this Agreement.

14. Confidentiality:

“Confidential Information” means any information that Seller discloses to Buyer that is non-public, confidential or proprietary information of Seller. Buyer will not use any Confidential Information for any purpose except for the purposes of carrying out its obligations pursuant to this Agreement. Buyer will use the same degree of care (but no less than a reasonable degree of care) to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information as the Buyer employs with respect to its own confidential and proprietary information. Upon Seller’s written request, Buyer will destroy all documents containing or representing Confidential Information and all copies thereof, and erase any such Confidential Information from Buyer’s computer systems except electronic copies that are electronically archived and not readily accessible. If requested by Seller, Buyer will provide written confirmation of such return or destruction and erasure to Seller.

15. Compliance with Law:

Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.

16. Export Compliance:

Buyer will comply with all applicable export, restrictions and regulations of any U.S. agency or authority including but not limited to the Export Administration Regulations (“EAR”) administered by the U.S. Department of Commerce, International Traffic in Arms Regulations (“ITAR”) under the U.S. Department of State, and embargo controls administered by the U.S. Department of the Treasury’s Office of Foreign Asset Controls (“OFAC”) with respect to the goods or services that are subject to this Agreement. In order for Seller to conduct appropriate export control checks, the Buyer agrees to identify any export controlled (e.g., ITAR) goods in writing to Seller by the time Buyer accepts a quotation and to provide all pertinent information pertaining to the particular end Buyer, destination and intended use of goods. Seller reserves the right to stop shipping or providing goods if Seller has reason to believe that any shipment or sale of goods may violate any export control law. 

17. Prohibited Purposes:

Buyer warrants that the goods that are the subject of this transaction will not be implanted in a human body and are not subject to FAA inspection. Buyer certifies that its designs (e.g., 3D CAD models/drawings) submitted to Seller and the manufacture and delivery of goods according to the Buyer’s design will not yield goods that are in violation of any federal firearms laws.

18. Survival:

Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Section 7 (Warranties), Section 8 (Indemnity), Section 10 (Buyer-Supplied Materials), Section 11 (Intellectual Property), Section 12 (Limitation of Damages), Section 14 (Confidentiality), Section 15 (Compliance with Law), Section 18 (Survival), Section 19 (Severability), Section 22 (Notices), Section 24 (Governing Law; Jurisdiction), Section 25 (No Third Party Beneficiaries) and Section 26 (English Language).

19. Severability:

If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

20. Assignment; Use of Subcontractors:

Buyer shall not assign or transfer the Agreement or any part thereof to any third party without prior written approval by Seller. Notwithstanding the foregoing, in no event does any approval by Seller or any subsequent assignment by Buyer relieve Buyer of any of its obligations under this Agreement. Any purported assignment in violation of this Agreement is void. Seller may use subcontracts to perform services under this Agreement.

21. Relationship of the Parties:

The Seller’s relationship with the Buyer shall be that of an independent contractor and nothing in the Contract should be deemed or construed to create a partnership, joint venture, agency or employer-employee relationship between the parties.

22. Notices:

All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the party at the addresses set forth on the face of the Quote or to such other address that may be designated by the receiving party in writing. All notices, requests, consents, claims,

23. Demands, Waivers and other Communications:

Demands, waivers and other Communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.

24. Amendments; Waiver:

This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by either party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by either party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

25. Governing Law; Jurisdiction:

The Agreement shall be governed by and construed in accordance with the laws of the State of Michigan without regard to principles of conflict of law.  Any suit, action or other legal proceeding arising out of or relating to this Agreement shall be brought in the courts of the State of Michigan located in Macomb County, Michigan or the U.S. District Court for the Eastern District of Michigan located in Wayne County, Michigan. Seller and the Buyer each consent to the jurisdiction of each such court in any suit, action or proceeding, and waive any objection which it may have to the laying of venue of any such suit, action or proceeding in any such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum.

26. No Third-Party Beneficiaries:

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

27. English Language:

All documents, notices and legal proceedings executed, given or instituted pursuant to or relating directly hereto shall be in the English language, and, except for capitalized terms defined in this Agreement which shall have the meaning set forth herein, the meaning of all words and phrases of this Agreement shall be defined, construed and interpreted in the English language.