1. The supply and sale of goods by Wasp Barcode Technologies ("Wasp") is subject to the following standard terms and conditions unless expressly modified in writing by Wasp and the Buyer (collectively the "Parties"). The final and entire agreement pertaining to the sale of goods to Buyer by Wasp is set forth herein; any prior understandings, agreements, and representations, oral or written, shall be deemed superseded and merged in this contract. Any typographical, clerical, or other errors or omissions in any sales literature, catalogues, quotations, price lists, offers, invoices, manuals, or any other document issued by Wasp shall be corrected without any liability to Wasp. Agents and salespersons of Wasp have no authority to make any representations not included herein. Wasp hereby rejects any different or additional terms previously or hereafter proposed by the Buyer, none of which shall be effective unless embodied in writing signed by an authorized employee of Wasp. Any preprinted terms on Buyer’s purchase order shall be given no force or effect and no terms of a purchase order that conflict with this Agreement shall be binding on Wasp.
The goods and other items or services covered by these term and conditions shall be sold and invoiced at Wasp's prices and charges in effect at the time of each shipment of goods. Wasp reserves the right to change, without notice, the published list prices referenced on any purchase order or the face of this contract. Prices do not include sales, excise, use, value added or other taxes now in effect or hereafter levied by reason of this transaction. The Buyer shall pay all such taxes.
i. Terms of payment are within Wasp's sole discretion, and unless otherwise agreed to by Wasp, payment must be received by Wasp prior to Wasp's acceptance of an order. In all other circumstances payment terms are net thirty (30) days from the date of invoice. All payments must be made without set-off, counterclaim, withholding or other deduction. Wasp reserves the right to require alternative payment terms, including, without limitation Sight Draft, Letter of Credit, or Payment in Advance. If shipments are delayed or rescheduled by the Buyer, payment shall be made based on the contract price and percentage of completion. Buyer shall be liable for the price of all products substantially conforming to the contract, notwithstanding that the Buyer may not have accepted, or may have revoked acceptance of those products.
ii. If payment is not received by the due date, a service charge will be added at the rate of 1.5% per month (18% per year) or the maximum legal rate, whichever is less, to unpaid invoices from the due date thereof.
iii. Remittances will be received by a bank simply as clearing agency. The receiving bank has no authority to determine whether the amount remitted constitutes payment in full. Remittances marked to indicate payment in full will be deposited by the bank notwithstanding such markings and such deposit shall not indicate Wasp’s acceptance of the remittance as payment in full unless the remittance actually constitutes payment of all sums owed.
Wasp may, at any time, and in its sole discretion, limit or cancel Buyer’s credit as to time and amount and as a consequence may (1) demand payment in cash before delivery of any unfilled portion of this contract; and (2) demand assurance of Buyer's due performance. Upon making such demand, Wasp may suspend production, shipment, and/or deliveries. If, within the period stated in such demand, but in no event longer than 30 (thirty) days, the Buyer fails to agree and comply with such different payment terms, and/or fails to give adequate assurance of due performance, Wasp may (a) by notice to Buyer, treat such failure or refusal as a repudiation by the Buyer of the portion of the contract not then fully performed, whereupon Wasp may cancel all further deliveries and any amounts unpaid hereunder shall immediately become due and payable; or (b) make shipments under reservation of a security interest and demand payment against tender of documents of title. If Wasp retains a collection agency and/or attorney to collect overdue amounts, all collection costs, including attorney's fees, shall be payable by the Buyer. Buyer hereby represents to Wasp that the Buyer is now solvent and agrees that each acceptance of delivery of the goods sold hereunder shall constitute reaffirmation of this representation at such time.
Wasp may make delivery in installments and may render a separate invoice for each installment, which 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 the Buyer of its obligation to accept delivery of remaining installments. Any delivery not in dispute shall be paid for on its due date, as provided in this contract, without offset defense or counterclaim and regardless of controversies relating to other deliveries or undelivered products.
Shipment shall be Ex Works (EXW) place of shipment. Title to each shipment of the goods sold hereunder and risk of loss thereon shall pass to the Buyer when Wasp or its agent delivers such shipment to a common carrier or licensed trucker consigned to the Buyer, or his agent, but such shipment shall remain subject to Wasp's rights of stoppage in transit and of reclamation. If a strike, embargo, governmental action, or any other cause beyond Wasp's control prevents shipment or delivery to Buyer or his agent, or if shipping instructions for any shipment are not received before 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 Wasp and invoiced to Buyer (subject to Wasp's rights as an unpaid supplier) and payment shall be made in accordance with invoice as though the goods had been shipped and accepted by Buyer and Wasp shall be under no duty to carry insurance thereafter.
i. Buyer or Buyer's agent may inspect the goods at the place of manufacture. Buyer shall accept any tender of the goods by Wasp which substantially conform to the description of the goods set forth herein.
ii. Buyer shall be deemed to have accepted any product and Buyer's right to cancel, reject, or claim any damages for breach of warranty or breach of Wasp's obligation under this contract shall cease, unless Buyer gives Wasp notice in writing of Wasp's breach: (a) in the case of defects discoverable through inspection, 14 (fourteen) days after arrival of the shipment or (b) in the case of defects not discoverable through inspection, 30 (thirty) days after invoice date.
iii. In the case of nonconforming goods, Buyer shall immediately notify Wasp whether Buyer will continue to accept similarly nonconforming goods. Acceptance of any nonconforming goods shall constitute a waiver by Buyer of specification requirements for said goods.
iv. In any event, when the product shall have been altered from its original state, Buyer shall be deemed to have accepted the product. Buyer's acceptance of goods tendered under this contract shall be final and irrevocable.
Wasp will use every reasonable effort to effect shipment on or before the date indicated. Wasp shall not be liable, directly or indirectly, for any delay or failure in performance or delivery or inability to perform or delivery where such delay, failure, or inability arises or results from any cause beyond Wasp's control or beyond the control of Wasp's suppliers or contractors, including, but not limited to, strike, boycott, or other labor disputes, embargo, governmental regulation, inability or delay in obtaining materials. In no event shall Wasp, in the event of delays, or otherwise, be liable to the Buyer or any third parties for any consequential, special, or contingent damages. In the event of any such delay or failure in performance, Wasp shall have such additional time within which to perform its obligations hereunder as may reasonably be necessary under the circumstances; and Wasp shall also have the right, to the extent necessary in Wasp's reasonable judgment, to apportion fairly among its various Buyers in such manner as Wasp may consider equitable, the goods then available for delivery. If, as a result of any such contingency, Wasp is unable to perform this contract in whole or in part, then to the extent that it is unable to perform, the contract shall be deemed terminated without liability to either party but shall remain in effect as to the unaffected portion of the contract, if any.
A. Limited Hardware Warranty
Wasp Barcode Technologies hardware products purchased in the United States are warranted from the initial date of purchase to be free of defects in material and workmanship for the periods as referenced on the Wasp Barcode Website (www.waspbarcode.com). As a matter of general policy, printers and barcode scanners are warranted for 2 years from date of purchase and mobile computers and time clocks are warranted for 1 year from date of purchase.*Thermal print heads are warrantied for twelve (12) months or one (1) million inches, whichever comes first from the date of invoice to the customer. Consumable items, such as batteries, stands, and cables, carry a 90-day warranty from invoice date for defects only.
B. Wasp Barcode Technologies Obligation Under Warranty
Wasp Barcode Technologies’ sole obligation under this warranty is limited to repair or replacement of products or parts at Wasp Barcode Technologies’ discretion during the warranty period. Wasp makes every effort to respond to warranty claims within a reasonable period of time after it has been notified. Wasp Barcode Technologies does not assume responsibility for delays in replacement or repair of products or parts.
Products and parts repaired or replaced by Wasp Barcode Technologies under the warranty shall be warranted for the balance of the original warranty period. This warranty gives end users specific legal rights, and particular end users may also have other rights, which may vary from jurisdiction to jurisdiction.
The warranty applies only to the original owner and does not extend to any product that has been subject to misuse, neglect, accidental damage, unauthorized repair, or tampering.
If Wasp determines that a product has defects in material or workmanship, Wasp shall, at its sole option, repair or replace the product without additional charge for parts and labor, or give a credit for the defective products duly returned to Wasp.
To perform repairs, Wasp may use new or reconditioned parts, components, subassemblies or products that have been tested as meeting applicable specifications for equivalent new material and products. Buyer will allow Wasp to scrap all parts removed from the repaired product.
Buyer is responsible for shipment of the product to Wasp Barcode Technologies and assumes all costs and risks associated with this transportation. Return shipment to Buyer will be at Wasp Barcode Technologies’ expense. Buyer shall be responsible for return shipment charges for product(s) returned where Wasp Barcode Technologies determines that there is no defect or where Wasp Barcode Technologies determines that the product is not eligible for warranty repair or replacement.
C. Disclaimer of All Other Warranties
No other warranties, expressed or implied, are given. Wasp Barcode Technologies expressly disclaims all other warranties, including and without limitation, the implied warranties of merchantability and fitness for a particular purpose. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to particular end users. The remedy set forth in this statement is the buyer’s sole and exclusive remedy for warranty claims and is expressly in lieu of all other remedies that may be available to the buyer at law or in equity.
WASP'S WARRANTY, AS DESCRIBED HEREIN, IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. WASP SHALL NOT BE LIABLE FOR ANY DAMAGES SUSTAINED BY BUYER ARISING FROM DELAYS IN THE REPLACEMENT OR REPAIR OF PRODUCTS UNDER THE ABOVE. THE REMEDY SET FORTH IN THIS WARRANTY STATEMENT IS THE BUYER’S SOLE AND EXCLUSIVE REMEDY FOR WARRANTY CLAIMS. UNDER NO CIRCUMSTANCES WILL WASP BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOST PROFITS, DIMINUTION OF GOOD WILL, OR ANY INCIDENTAL, CONSEQUENTIAL INDIRECT, SPECIAL OR CONTINGENT DAMAGES REGARDLESS OF WHETHER WASP HAD ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. WASP'S LIABILITY FOR DAMAGES ON ACCOUNT OF A CLAIMED DEFECT IN ANY PRODUCT DELIVERED BY WASP SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT ON WHICH THE CLAIM IS BASED. WASP SHALL NOT BE LIABLE FOR DAMAGES RELATING TO ANY INSTRUMENT, EQUIPMENT, OR APPARATUS WITH WHICH THE PRODUCT SOLD UNDER THIS AGREEMENT IS USED. The parties further agree that the limitations and exclusions of liability and disclaimers specified in this Terms will survive and apply even if found to have failed of their essential purpose.
E. What May Void the Warranty
This Limited Warranty shall be null and void in the following circumstances:
Faulty operation, improper use, abuse, misuse, wear and tear, negligence, improper storage or use of parts or accessories not approved or supplied by Wasp;
Use of product with any other instrument, equipment or apparatus;
Damage caused by natural or man-made disaster such as but not limited to fire, water damage, floods, other natural disasters, vandalism or abusive events that would cause internal and external component damage or destruction of the whole unit, consumable items;
Damage or malfunctioning caused by non-restoring action as for example firmware or software upgrades, software or hardware reconfigurations etc.
F. Warranty Claim Process
To make a Warranty Claim, the end user must do the following as a condition of the above Limited Warranty:
Wasp Barcode Technologies recommends that the end user fully insure the shipment (at the full purchase price) in case of loss or damage during transit. It is recommended that the end user keep a record of the shipping manifest and the tracking number. The end user assumes sole responsibility of products returning to Wasp Barcode Technologies. Wasp Barcode Technologies is not responsible for lost and/or damaged goods during transit.
Transportation Costs: Return shipment to end user will be at Wasp Barcode Technologies’ expense. Buyer shall be responsible for return shipment charges for product(s) returned where Wasp Barcode Technologies determines that there is no defect or where Wasp Barcode Technologies determines that the product is not eligible for warranty repair or replacement.
If Buyer fails, with or without cause, to furnish Wasp 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 in repudiation of this contract or any other contract with Wasp or fails to pay when due any invoice under this contract, then in addition to any and all remedies allowed by law, Wasp without notice may (1) bill and declare due and payable all undelivered products under this or any other contract between Wasp and the Buyer; and/or (2) defer shipment under this or any other contract between the Buyer and Wasp until such default, breach, or repudiation is removed; and/or (3) may cancel any undelivered portion of this and/or any other contract in whole or in part (with Buyer remaining liable for damages).
Buyer shall bear risk of loss or damage for product in transit to Wasp. Wasp shall assume risk of loss or damage for product in Wasp’s possession. In the absence of specific written instructions for the return of product to Buyer, Wasp will select the carrier, but Wasp shall not thereby assume any liability in connection with the return shipment.
All products shall be suitably packed for air shipment unless otherwise requested by Buyer and agreed to in writing by Wasp.
This contract and Buyer's rights thereunder may not be assigned by the Buyer except with the prior written approval of Wasp. Any assignment or transfer made in violation of the foregoing shall be void.
Waiver by Wasp 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.
Wasp represents that these goods were produced in compliance with all applicable requirements of Sections 6, 7, and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.
Most Electrical and Electronic Equipment (EEE) sold or otherwise provided by Wasp will fall within Category 3 of the List of EEE Categories published in the Directive 2002/96/EC of the European Parliament and the Council on waste electrical and electronic equipment (WEEE). If the Buyer, as a purchaser, owner, or holder of Wasp EEE products, imports such goods into the European Community or in any other way acts in a manner that would result in being deemed a "producer" of the goods within the meaning of the WEEE legislation of the European Community country into which the goods are being imported then, with respect to the Wasp EEE products, the Buyer agrees to comply with the WEEE legislation as enacted in that country of importation. Wasp is responsible for financing the end of life waste management costs of the items listed on this document marked "WEEE - Wasp Responsible." This responsibility is subject to the returned product being made available for collection within the UK, France, Italy, Germany, Spain, Netherlands, Slovakia, or Ireland, and compliance with the Wasp terms and conditions for return of EEE products no longer in use. Full return instructions and details of the Wasp terms and conditions for the return of EEE products no longer in use can be obtained from the Wasp website www.waspbarcode.com.
Buyer shall refrain from reproducing all or portions of the samples and goods it has purchased or seen, and from transmitting data to third parties permitting the total or partial reproduction of these samples or goods.
Buyer shall not disclose any confidential information obtained from Wasp, regarding Wasp or Wasp's goods or business. Should the Buyer disclose any such information, Wasp shall be entitled to terminate immediately the relevant contract and to obtain a sum equal to the value of Buyer's total purchases from the preceding year.
All drawings, designs, patterns, documents, elements, models, software samples, technical information, advertising materials, and similar items given to the Buyer remain Wasp's property and must be destroyed or returned on request. Buyer undertakes not to copy, reproduce, disclose to third parties by any means the foregoing materials and shall make its best efforts to keep them strictly confidential. Failure to comply with the foregoing provision shall entitle Wasp to immediately terminate the relevant contract and to immediately suspend any order in course, even though related to separate contracts, and to claim damages.
These General Terms for the Sale of Goods shall be governed by and construed in accordance with the laws of the State of Texas. Unless Parties expressly agree in writing upon an arbitration clause, Parties agree to submit all disputes arising out of or in connection with the contracts herein to the exclusive jurisdiction of the competent Court of the place where Wasp has its registered office.
Parties expressly disclaim the application of the United Nations Convention for the International Sale of Goods.
If an infringement claim is made against the Buyer alleging that a product furnished under these General Terms for the Sale of Goods infringes a patent or copyright of the United States, Wasp may, at its option and expense, (1) replace or modify the product so that it becomes noninfringing; or (2) procure for Buyer the right to continue using the product; or (3) require the return of the product and refund to Buyer the including price paid less a reasonable allowance for use.
Buyer must: (1) notify Wasp promptly in writing of the action and (2) provide Wasp all reasonable information and assistance to settle or defend the action. If Buyer furnishes specifications to Wasp, Buyer agrees to hold Wasp harmless against any claim that arises out of compliance with the specifications. Any description of the goods contained in this contract is for the sole purpose of identifying the goods, is not part of the basis of the bargain, and does not constitute a warranty that the goods shall conform to that description. Any sample or model used in connection with this contract is for illustrative purposes only, is not part of the basis of the bargain, and is not to be construed as a warranty that the goods will conform to the sample or model.
Notwithstanding the foregoing, Buyer shall indemnify and hold Wasp harmless from any claim, loss, damage, suit, liability, fees or expenses (reasonable attorney's fees) which may be suffered by Wasp on account of: (1) the use of components or goods not supplied by Wasp; (2) the modified goods which become infringing as a consequence of the modification; (3) the use of the goods in infringing combinations or systems or apparatuses; (4) the use of the goods in infringing processes; and (5) the use of the goods in association with third parties trademarks or distinctive signs.
i. Parties are responsible for all their own legal, accountancy or other costs and expenses incurred in the performance of their obligations arising from these General Terms for the Sale of Goods.
ii. The invalidity of any one of the provisions contained in the present General Terms for the Sale of Goods, or the invalidity of any provision contained in any other contractual document intended to regulate the relationships between Parties, shall not undermine the validity of any of the other conditions contained herein.