Terms & Conditions

Manufacturing

QUOTES AND ORDERS ARE SUBJECT TO THE WILD RIVER TECHNOLOGY TERMS AND CONDITIONS OF SALE APPEARING HEREIN

Controlling Provisions

The terms and conditions in this agreement (“Agreement”) shall supersede any and all provisions, terms and conditions contained in or on any RFQ, purchase order, confirmation order, or other correspondence or documents (“Buyer’s Documents”) of the party submitting an order or request for quotation (“Buyer”), and Wild River Technology LLC (“Seller”) expressly rejects any such terms of Buyer. The rights of the parties shall be governed exclusively by the terms and conditions of this Agreement applicable at the time of Seller’s acceptance of Buyer’s purchase order. The terms of this Agreement may not be modified except in a writing signed by both Buyer and Seller. Seller makes no representations or warranties covering this order except as expressly contained herein.

Seller manufactures catalog products (“Products”) built to Seller’s standards and requirements. A customer’s specific requirements and standards shall not be applicable unless they are added into and fully represented in Seller’s drawings by agreement of Seller. Notes in Buyer’s Documents stating or requesting anything to the contrary of what is identified in Seller’s drawings are nullified.

Freight and Delivery

Prices are based on freight terms Ex Works (EXW) Seller’s named manufacturing facility per Incoterms 2022. Delivery of Products to the common carrier or licensed trucker shall constitute delivery to Buyer. Title and risk of loss or damage in transit shall transfer to Buyer upon delivery.

Price Changes

Prices are subject to change upon notification by Seller prior to Seller’s acceptance of a purchase order. Prices are based on the total release quantity used for quotation. Seller reserves the right to adjust pricing and invoice Buyer for any increase in pricing in the event that the total quantity ordered is not requested for shipment by Buyer within six (6) months of Seller’s acceptance of the purchase order.

Payment Terms and Revocation of Credit

Invoice payment terms shall be net 30 days from invoice date. Seller reserves the right at any time to revoke any credit extended to Buyer because of Buyer’s failure to pay any invoice when due or for any other reason deemed good and sufficient by Seller, and in such event all subsequent shipments shall be paid for on delivery. Buyer shall pay the full amount of Seller’s invoice in U.S. dollars to arrive no later than thirty (30) days after the invoice date, excluding cancellation charges. Seller shall have the continuing right to approve Buyer’s credit and payment terms and may, at any time, demand advance payment or satisfactory security, such as, but not limited to, a confirmed, irrevocable letter of credit (in a form acceptable to Seller) or a written guarantee of prompt payment.

Taxes

Prices for Products specified herein are exclusive of all city, state and federal excise taxes, including, but without limiting the generality of the foregoing, taxes on manufacture, sales, receipts, gross income, occupation, use, and similar taxes. Buyer shall be responsible for payment of any applicable sales and/or excise taxes arising from the purchase of Products from Seller.

Delays

Performance of orders and contracts, and delivery and shipment of Products are subject to, and contingent upon, delay directly or indirectly caused by, or in any manner arising from, fires, floods, accidents, riots, acts of God, war, acts of terrorism, government interference, embargoes, priorities, regulations, orders and restrictions, strikes, labor difficulties, shortages of labor, fuel, power, materials or supplies, transportation delays, Seller’s production schedules, or any other cause or causes (whether or not similar in nature to any of these hereinbefore specified) beyond Seller’s control and Seller shall not be liable for any loss or damage suffered by Buyer arising therefrom.

Seller shall have the right, in the event of the happening of any of the above contingencies, at its option, to cancel this order or contract or any part thereof without any resulting liability.

Partial Shipments

All shipments by Seller may be up to 10% over the exact quantity ordered by Buyer. Seller will not charge Buyer for this overage. Seller reserves the right to make delivery in installments. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Seller reserves the right to add freight costs to any invoice for partial shipments that are made pursuant to the request of Buyer to the extent not already covered in Seller’s quotation.

Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries.

Privacy

Seller, and its affiliates and subsidiaries, collect and retain personal data relating to our customers. For general business and record maintenance purposes, Seller keeps and processes information concerning Personally Identifiable Information (PII). Seller is committed to being transparent about how we collect and use your data and also to meeting our data protection obligations. The personal data we hold about you will be processed only as necessary for business related purposes and to address legal requirements.

By executing a quote or submitting a purchase order to Seller, Buyer consents to Seller’s Privacy Policy.

Express Limited Product Warranty

Seller warrants to Buyer for a period of (a) twelve (12) months from the date of delivery of Products to Buyer (such period, the “Warranty Period”) that subject to Seller’s published tolerances (i) the Products shall conform to the Seller’s specifications for the Products as of the date of delivery of the Products to Buyer, and (ii) the Products shall be free from material defects in materials and manufacturing.

Seller’s sole liability in the event that any Products do not conform to the foregoing warranties during the Warranty Period as confirmed by Seller shall be, at Seller’s option, to replace or repair such nonconforming Products to a condition as warranted, or if such Product cannot be repaired or replaced, to refund Buyer for the purchase price thereof. Seller may request that Buyer return samples of alleged nonconforming Products in order to assist Seller in confirming such nonconformance as a condition of Seller’s performance of its obligations under this limited warranty. The foregoing warranties shall not apply to any Products which fail as a result of (i) any modification made by Buyer or its customer, (ii) improper degree of care in handling or damage caused by anyone other than Seller, or (iii) use or installation in any manner or application not approved by Seller. In addition, in no event will Seller be responsible for any claims or costs related to labor, rework, transportation, or other expense incurred by Buyer without prior written approval from Seller.

Disclaimer of Warranties

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS OR ANY COMPONENTS. SELLER DOES NOT WARRANT OR GUARANTEE ANY TECHNICAL ADVICE GIVEN BY IT IN CONNECTION WITH THE INSTALLATION OR THE USE OF PRODUCTS SOLD HEREUNDER. ANY SUCH ADVICE IS PROVIDED BY SELLER WITH NO WARRANTY. IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA, OR LOSS OF USE) ARISING OUT OF ANY PRODUCT OR SERVICE PROVIDED UNDER THIS AGREEMENT, REGARDLESS OF WHETHER THE THEORY BE BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL THEORY. ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF DESIGN, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.

Claims

Claims for shortages, delays, or failures in shipment or delivery, or for any other cause other than under the limited warranty set out above, shall be deemed waived and released by Buyer unless made in writing within twenty-one (21) days after arrival of said Products.

A Return Material Authorization form provided by Seller shall be required for any Product returned to Seller.

Limitation of Liability

IN NO EVENT WILL SELLER BE LIABLE TO BUYER OR TO ANY THIRD PARTIES FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS AND/OR COMPONENTS, LOST PROFITS, LOSS OF USE, LOSS OF DATA, INSTALLATION COSTS OR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR RELATED TO ANY PRODUCTS, REGARDLESS OF WHETHER THE THEORY BE BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF SELLER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT WILL SELLER’S TOTAL LIABILITY UNDER ANY PURCHASE ORDER EXCEED THE TOTAL VALUE OF SUCH PURCHASE ORDER.

Intellectual Property Ownership, Licensing, and Indemnification

The provision of Products (referred to also as “Deliverables”) pursuant to a Quotation and/or Purchase Order does not convey any express or implied license under any patent, copyright, trademark, trade secret or other proprietary rights owned or controlled by Seller. Seller owns all intellectual property rights in any technology, products and information developed by Seller and any improvements or modifications made to any Seller technology, products and information by Seller or Buyer. Buyer agrees to not infringe, directly or indirectly, any intellectual property rights of Seller. Buyer agrees to defend, protect, indemnify and hold harmless Seller against all suits at law or in equity and from all damages, claims, and demands for actual or alleged infringement of an United States or non-United States patent and costs and fees to defend any suit or actions which may be brought against Seller for any alleged infringement resulting from Buyer’s: (a) use of Product(s) in combination with any other products not provided by Seller, (b) any alteration or modification of the Products(s) not undertaken or authorized by Seller, or (c) Seller’s compliance with Buyer’s specifications.

Charges Related to Changes in Specifications, Drawings, and Tooling

All additional expense to Seller due to changes in specifications or drawings which have been approved by Seller and for any products furnished in addition to that herein specified shall be added to the purchase price and paid by Buyer. Where tooling and/or engineering charges are quoted, such tooling remains property of Seller even if any charge applies for such tooling. For the avoidance of doubt, payment by Buyer of any charge related to tooling shall not vest any right or title in such tooling in Buyer. Seller reserves the right to use any tooling procured or designed in whole or part by Seller to fulfill orders for any customer.

Insurance

Seller shall maintain insurance coverage as required by applicable law.

Export Compliance

Buyer hereby agrees to comply fully with all applicable U.S., E.U. and other sanctions and export control laws and regulations, including without limitation those regulations maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), U.S. Department of State’s Directorate of Defense Trade Controls (“DDTC”), and the U.S. Commerce Department’s Bureau of Industry and Security (“BIS”). Specifically, Buyer covenants that it shall not — directly or indirectly — sell, provide, export, re-export, transfer, divert, loan, lease, consign, or otherwise dispose of any product, services, software, source code, or technology received from Seller under this Agreement to any person, entity, or destination, or for any activity or use prohibited by the laws or regulations of the United States without obtaining prior authorization from the competent government authorities, including but not limited to OFAC, DDTC, and/or BIS.

To the extent required under U.S. law, Buyer further covenants to screen all customers and business partners against all relevant U.S., EU and Canadian government lists of persons denied export privileges or otherwise subject to trade, export, or financial sanctions, including without limitation the OFAC list of Specially Designated Nationals, the BIS Denied Persons List and Entity List, the U.S. State Department Denied Persons List, the Treasury Board of Canada Denied List, and the EU Consolidated List before providing or agreeing to provide any Products to any person.

Buyer shall be responsible for obtaining and paying for any permits, licenses, or other governmental authorization(s) necessary for the importation of any goods into the designated country of importation, and it shall comply with all laws and regulations thereof.

Buyer acknowledges that it is not the agent of Seller and represents and warrants that it has not and covenants that it will not pay anything of value to any government official in connection with the resale of any goods.

Default

Buyer shall be deemed in material default upon its: failure to pay any amounts when due, revocation of Buyer’s credit as provided in this Agreement, seeking to cancel delivery or refusing delivery of ordered Products other than as specifically allowed hereunder, or otherwise failing to perform any of its obligations hereunder. In the event of a material default by Buyer, Seller may, upon written notice: (a) suspend its performance and withhold shipments in whole or in part; (b) terminate this Agreement; (c) declare all sums owing to Seller immediately due and payable; and/or (d) stop or recall Products in transit, retake the same and repossess any Products held for Buyer without the necessity of other proceedings and Buyer agrees that all Products so recalled, taken or repossessed shall be the property of Seller, provided that Buyer is given credit therefor. Application of any remedies hereunder shall not preclude, limit or waive any other remedies available to the Seller in law or equity. In the event of default in payment of the purchase price, Buyer agrees to pay Seller’s reasonable attorney fees and costs incurred in Seller’s enforcement thereof.

Existing NDA

If Seller and Buyer have previously entered into a non-disclosure agreement (“NDA”), the NDA shall be deemed incorporated herein by reference and shall remain in full force and effect. In the event of any conflict between this Agreement and the NDA, the terms of this Agreement shall control.

Governing Law

All questions concerning the validity, operation, interpretation, and construction of this Agreement shall be governed by and determined in accordance with the laws of the State of Oregon, with exclusive jurisdiction in courts located in Washington County, Oregon, USA, without regard or application of any conflict of law principles and/or the United Nations Convention on Contracts for the International Sale of Goods.

The following are the terms and conditions required for the engagement of Wild River Technology LLC (“Wild River”).  Engaging customer is referred to as the “Client” in these terms and conditions.

1. Nondisclosure Agreement: An executed confidentiality or nondisclosure agreement between Wild River and Client must be in place prior to commencement of work.
2. Initiation of Work: Work will be scheduled promptly after the date of Wild River’s receipt of (i) a signed original of the Quotation, (ii) Client’s valid purchase order number, and (iii) if required by the Quotation, payment of the engagement fee. The engagement fee will be credited to payment of the final invoice issued under the Quotation.
3. Fees: The quoted fees do not include taxes, expenses, or project materials (unless the Quotation expressly provides otherwise).  Client will pay all taxes and expenses.  In addition, Client will pay for project materials, including without limitation any subcontracted manufacturing, at a price equal to Wild River’s cost plus 10%.
4. Travel Related Expenses: Wild River personnel will generally use coach class airline travel; however Wild River reserves the option to choose other classes of airline travel when that choice represents an advantage in terms of time, efficiency or contractual expediency.  Wild River personnel will generally rent intermediate size automobiles from rental car agencies, however Wild River reserves the option to choose other classes of automobile rentals when that choice represents an advantage in terms of time, efficiency or contractual expediency.  Corporate and personal automobile expenses are invoiced on a per-mile basis.
5. Taxes:  Quoted fees exclude all applicable sales, use, export or import fees, value-added taxes and other similar taxes imposed by applicable law.  Client will pay all taxes, duties and fees due to any governmental agency or entity, except for taxes on Wild River’s income or revenue.  Wild River will identify amounts attributable to taxes on its invoices to Client.

6. Invoice Policy: Invoices will generally be issued on a monthly basis; however, Wild River reserves the option to issue invoices on a more frequent basis.  Invoices are due and payable within thirty (30) calendar days from date of invoice.  Interest in the amount of 1 1/2% per month (or the maximum permitted by law, if less) will be charged on past-due balances, computed from the due date of each outstanding invoice.  Wild River reserves the right to withhold all or part of the Deliverables (as described in the Quotation) for failure of the Client to provide timely payment(s) according to the agreed upon payment terms and conditions.  The remedies in this paragraph are in addition to any other remedies Wild River may have in law or equity.
7. Payments: All payments will be made in United States currency.  Clients located outside the United States are required to make payment by wire transfer of immediately available funds into Wild River’s bank account.  Clients located in the United States may make payment by wire transfer, check, cash, or cashier’s check.  Client will pay any bank fees and costs associated with Client’s payment to Wild River.
8. Termination: Either party may terminate Wild River’s engagement at any time, without cause, on fourteen (14) days’ written notice to the other party.  Either party may terminate Wild River’s engagement immediately due to any material breach by the other party that remains uncured five (5) business days after receipt of written notice from the non-breaching party.
9. Consequences of Termination:  On expiration or termination of Wild River’s engagement, Wild River will invoice Client for time, materials, expenses and all other costs arising through the date of termination.  Client will pay Wild River’s final invoice not later than thirty (30) days from the date of termination.  In addition, upon request, each party will promptly return to the other party all confidential information provided by that party during the engagement.  Paragraphs 2 through 7 and 9 through 23 will survive the expiration or termination of Wild River’s engagement.
10. Limitation of Liability: Client will not use the Deliverables for Products for which errors, bugs or malfunctions could cause personal injury or death, property or environmental damages, or economic loss, including without limitation use in hazardous environments requiring fail-safe performance, the operation of nuclear facilities, aircraft navigation or communications systems, direct life support machines, or weapons systems.  Client will be solely responsible for taking security precautions necessary to ensure that errors in the Deliverables do not cause adverse consequences.  WILD RIVER WILL HAVE NO LIABILITY FOR ACTIONS CONNECTED WITH, ARISING OUT OF, OR RELATED TO ITS ENGAGEMENT UNLESS DAMAGES FINALLY AWARDED BY A COURT OF COMPETENT JURISDICTION ARE SPECIFICALLY AND DIRECTLY ATTRIBUTED TO WILD RIVER’S WILLFUL MISCONDUCT.  IN NO EVENT WILL WILD RIVER’S TOTAL CUMULATIVE LIABILITY TO CLIENT FOR ALL DAMAGES, COSTS, CLAIMS, OR DEMANDS EXCEED THE AMOUNT ACTUALLY PAID TO WILD RIVER BY CLIENT UNDER THE QUOTATION DURING THE THREE MONTHS PRIOR TO THE TIME THE ACTION ARISES, REGARDLESS OF THE FORM OR TYPE OF LEGAL ACTION.
11. Indemnification:  Client will indemnify and hold harmless Wild River, its members, managers, officers, agents, employees, affiliates, successors and assigns from any loss, claim, demand, action, liability and expense (including attorneys’ fees, court fees, expert fees and

    other legal costs) for all damages resulting from, arising out of or related to the manufacture, sale, use, lease, consumption or advertisement by Client, its affiliates, agents, customers and end users of products, processes or services resulting from, arising out of or related to the performance of Wild River’s services under the Quotation.

12. Warranty Disclaimer: WILD RIVER MAKES NO WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NON-INFRINGEMENT, OR WARRANTIES OF ANY PRODUCTS OR SERVICES PROVIDED BY A THIRD PARTY VENDOR.
13. Consequential Damages Waiver: WILD RIVER SHALL NOT BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH, ARISING OUT OF OR RELATING TO THE QUOTATION OR USE OF THE WILD RIVER TECHNOLOGY OR ANY DELIVERABLE IN WHOLE OR IN PART, OR FOR THE LOSS OF DATA, INFORMATION OF ANY KIND, BUSINESS, PROFITS, OR OTHER COMMERICAL LOSS, HOWEVER CAUSED, AND WHETHER OR NOT WILD RIVER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
14. Ownership and License of Intellectual Property: Wild River retains title to and ownership of all intellectual property rights in the Wild River Technology identified in Attachment D to the Quotation.  No title to or ownership of the Wild River Technology is transferred to Client.
15. Exclusivity: Once the project is complete and meets all Client’s approvals, the deliverables are the exclusive property of Client and may not be used by Wild River in any circumstances outside of its relationship with Client. Wild River hereby assigns to Client all right, title, and interest in the copyright, patent, mask works and all other intellectual property rights in technology conceived, reduced to practice, created or developed by Wild River in the performance of its services to the Client, including without limitation, electrical simulation models of printed wiring boards, cables and connectors, related mechanical designs and analyses, electrical power distribution models, and thermal models of systems (“Wild River Intellectual Property”).  Wild River will own all right, title and interest in the specific designs, software, methodologies, documents or other items identified as Deliverables in the Quotation, however, Wild River grants Client a nonexclusive, royalty free license to copy and distribute the Deliverables within Client’s organization, and to use the Deliverables to produce Client’s products, subject to Wild River’s interest in the Wild River Intellectual Property and Wild River Technology.  Solely to the extent necessary for Client to exercise its rights in the Deliverables as set forth above, Wild River hereby grants Client a nonexclusive, royalty-free, worldwide license to use, copy and distribute the Wild River Intellectual Property and Wild River Technology contained in the Deliverables.  In no event shall the Deliverables be distributed to, or shared by Client with, any third party without Wild River’s express prior written consent.
16. Proprietary Rights and Trade Secret Protection: In performance of this Quotation or in contemplation thereof, Client and its employees and agents may have access to private or confidential information owned or controlled by Wild River and/or its suppliers relating to equipment, apparatus, programs software, specifications, drawings and other data, and such information may contain proprietary details and disclosures.  All such information and data so acquired by Client or its employees or agents will be and will remain Wild River’s and/or its suppliers’ exclusive property, and will be subject to the Nondisclosure Agreement.
17. Security Interest:  Client hereby grants Wild River a security interest in the Deliverables and Client’s product(s) to which the Deliverables relate (the “Products”), and in any proceeds (including any accounts receivables) thereof, as security for Client’s obligations hereunder.  The security interest will terminate upon payment in full for this Quotation.  Upon Wild River’s request, Client will execute any instrument required to perfect such security interest.
18. Legal Action: In any legal action between Wild River and Client, if Wild River is the prevailing party, Client will pay all of Wild River’s legal costs and expenses, including reasonable attorneys’ fees at trial and on appeal.
19. Advertisement: Upon both (i) completion of Wild River’s tasks under the Quotation, and (ii) Client’s offer of the Product for sale, Wild River may advertise and/or announce its involvement in the Product design.
20. Force Majeure: Neither party will be liable (except to the extent interest is due for any payment delay) or deemed to be in default for any delay, failure, or interruption in performance under the Quotation resulting directly or indirectly from acts of God, civil or military authority, war, riots, civil disturbances, accidents, fire, earthquakes, floods, strikes, lock-outs, labor disturbances, power or telecommunications failure, foreign or governmental order, or any other cause beyond the reasonable control of such party.
21. Governing Law: The parties agree that the Quotation will be governed by and interpreted under the laws of Oregon, without giving effect to its conflicts of law principles.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Quotation.
22. Government Clients:  If Client is a branch or agency of the United States government, whether that unit or agency be civilian or part of the Department of Defense, this provision applies.  The Deliverables are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212, and are provided to Client consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4.  Except as otherwise specifically provided for in the Quotation, the Deliverables may not be used, reproduced or disclosed to anyone, including support service contractors or their subcontractors, by client without the prior written consent of Wild River, such consent may be freely withheld at Wild River’s sole discretion.  The restrictions in the provision are in addition to, and not in lieu of, any other restrictions contained in or incorporated by this Agreement.
23. Entire Agreement: The Quotation and the Non-disclosure Agreement constitute the entire understanding between the parties, and supersede all prior discussions, representations, understandings or agreements, whether oral or in writing, between the parties with respect to the subject matter thereof.  The Nondisclosure Agreement shall remain in full force and effect in accordance with its terms.  Any terms and conditions on Client’s purchase order or other documents will not apply to the Quotation.  Any amendment to the Quotation must be in writing and signed by authorized representatives of both parties.

    Notice:  Any notice will be in writing and delivered personally, by overnight mail, by reputable courier service, by pre-paid registered or certified mail, or by facsimile transmission with confirmed receipt, addressed to the parties’ respective addresses as set forth on the signature page of the Quotation.  Such notice will be deemed to have been received on the date actually delivered or in any event within three (3) days after the notice is sent, postage pre-paid and properly addressed, to the party.  Either party may notify the other party of a change in its notice address at any time.