Terms and Conditions
"Agreement" means these Terms and Conditions and each agreement entered into thereunder.
"Order" means an order for Products or Services, which may be submitted by Buyer to Wildflower International, Ltd. (“Wildflower”) in hard copy form ("Purchase Order") or in electronic form ("Electronic Order").
"Order Confirmation" means a written or electronic order acknowledgment or invoice issued by Wildflower.
"Products" means equipment or software.
“FOB” means free on board. Shipments are dispatched with cost advanced by Wildflower and billed to customer on the invoice. Orders with multiple destinations will be subject to additional charges.
Sales of any goods or services covered by an Invoice are subject to the Terms and Conditions contained in the Sales Order Acknowledgement or Quotation Form accepted by Buyer and reiterated herein, which supersede and replace all prior terms, conditions, proposals or quotations exchanged by the parties.
Any additional or differing terms already or hereafter proposed by Buyer are objected to by Wildflower without need or further notice of objection, and will not be binding unless specifically agreed to in writing by Wildflower. In the event that there is any conflict between a Buyer's purchase order and Wildflower's Sales Order Acknowledgement or Quotation Form, all conflicts shall be resolved in favor of Wildflower's Quotation Form.
3.1 Ordering Procedure:
(1) The identification of the Products in the Order, Service Contract, and any Order Confirmation, together withthe Agreement, will create a binding contract between Buyer and Wildflower for the purchase of those Products.
2) Buyer may order Products or Services from Wildflower by:
a) Submitting an Electronic Order in the manner directed by Wildflower; or
b) Submitting a Purchase Order to Wildflower (and Buyer acknowledges that Electronic Orders for certain Products or Services may require to be supplemented by a Purchase Order); in each case specifying the Products required and by doing so, Buyer agrees that the Order is governed by the Agreement.
3) Wildflower may accept the Order by:
a) Issuing an Order Confirmation to Buyer; or
b) Shipping the Products required in the Order.
4. CREDIT AND FINANCIAL CONDITION:
Prospective new Buyers shall complete the Wildflower Customer Credit Application which will require the disclosure of commercial credit information including ownership structure, Federal Tax ID Number, Dun & Bradstreet Number (DUNS), up to two bank references, at least three trade references, and a valid W-9 form. Depending on the dollar size of trade credit limit extended in conjunction with other information required, the Buyer may be required to also submit a copy of its most recent, audited financial statements.
Wildflower may permit the Federal Government to waive the completion of a Customer Credit Application. Wildflower may temporarily suspend shipment or delivery of products and services should the Federal Government cease to operate or experience insufficient appropriations to pay its suppliers in a timely manner.
If Wildflower in its sole discretion does not approve Buyer's credit, Wildflower reserves the right to cancel the entire agreement or to cancel any shipment thereof. In the event of Buyer's bankruptcy or insolvency or in the event any proceeding is brought against Buyer, voluntary or involuntary, under the bankruptcy or any insolvency laws, reserving any and all other rights, Wildflower will be entitled to cancel any outstanding order during the period allowed for filing claims against the estate and will be paid for its cancellation charges.
5. PRICING AND PAYMENT TERMS
Prices are subject to change or be withdrawn without notice. All products ordered to customer specifications which require deviations in standard production process and all products requiring certification by Wildflower or government source inspection may be subject to additional charges.
Unless otherwise specified, all prices are stated without any applicable domestic and foreign excise, sales, gross receipts, use, value added, tariffs, import and export duties and taxes, or other types of taxes imposed upon the production, sales and delivery of these products and services. Any such taxes, where applicable, will be charged as separate additional items on invoices, unless valid exemption or non-taxable trade certificates (NTTCs) are submitted to Wildflower prior to the preparation of any and all sales orders.
All orders are subject to approval of pending a review of the Wildflower Customer Credit Application. Payment terms are established based on the credit worthiness of the Buyer in conjunction with other market factors and the specific type of transaction. The Wildflower Accounting and Finance Department will make this determination and establish trade terms as needed. All invoices are due and payable upon receipt.
Wildflower accepts the following methods of payment
• American Express • Mastercard and Visa • FedWire • Electronic Funds Transfer • ACH • Checks
5.4 Past due accounts
Past due accounts will be subject to finance charges of 1.5% per month, 18% per annum on all overdue balances.
6. TRANSPORTATION AND DELIVERY
All shipments are made FOB point of shipment except overweight or oversized equipment that may require additional transportation and handling charges. Shipments are dispatched with cost advanced by Wildflower and billed to customer on the invoice. Orders with multiple destinations will be subject to additional charges.
Wildflower will use reasonable efforts to meet the Product delivery dates stated on its Order Confirmation. Wildflower reserves the right to make partial shipments on this order, and each shipment will be invoiced separately.
7. TITLE AND RISK
Title to items sold hereunder shall pass to the Buyer upon payment to Wildflower of the full purchase price. Notwithstanding the foregoing and, unless otherwise agreed to by Wildflower in writing, all risk of loss shall be borne by the Buyer from the time of delivery of the items by Wildflower to a public carrier or other agreed upon means of transportation.
Wildflower assumes no liability for any loss, damage, or destruction of products after delivery is made to the carrier. Shipments will be insured only at the request of and at the expense of the Buyer. If the Buyer asserts any claim against Wildflower, it shall be done in writing no more than five business days from receipt of shipment.
Wildflower will not be liable for delays in performance, including delivery, or for failure to perform, including but not limited to failure to deliver, due to:
a) Any causes beyond Wildflower's reasonable control, including Wildflower's inability to obtain necessary materials, components, services, or facilities; or
b) Acts of God, acts of Buyer, acts of civil or military authorities, governmental regulations or priorities, strikes or other labor disturbances, fires, riots, wars, or natural disasters, including epidemics, droughts, floods, or transportation interruptions.
Wildflower will promptly notify buyer of any material delay and will specify a revised performance date as soon as practicable. In the event of such a delay, this Agreement will not be terminated and the date of performance will be extended for a period of time equal to the period of delay.
Orders accepted by Wildflower cannot be countermanded or shipments deferred or goods returned except with consent of Wildflower and upon terms that will indemnify it against all loss, including the profit on any part of the order that is canceled. When return of material is authorized by Wildflower, shipping charges on returned materials are to be prepaid unless otherwise noted by Wildflower in its authorization to return. All canceled orders may be subject to a minimum charge of 15% of the order value.
The Buyer will:
a) Accept delivery of and pay for at prices identified on the Purchase Order all of the material which was either completed by Wildflower on the day the termination notice is received by Wildflower or which on said date had been acquired by Wildflower pursuant to terms not permitting the return of said material.
b) Pay all costs, direct and indirect, incurred by Wildflower on that portion that is not finished and/or ready for shipment on the day the termination notice is received by Wildflower. "Hold" orders and "Stop Work" orders will be honored for a period of 15 days from receipt of notification.
Either party may terminate the Agreement immediately by written notice if:
a) The other party commits a non-remediable material breach; or
b) The other party fails to cure any remediable material breach within 30 days of being notified in writing of such breach.
There are not warranties for any products that extend beyond the description on the face hereof.
ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ARE HEREBY DISCLAIMED AND EXCLUDED.
Wildflower does not warrant the products of any third party manufacturer or licensor which may be used or supplied with the Wildflower products, and Buyer agrees to look only to such third parties for any warranty claim relating thereto.
Wildflower does not warrant that the functions contained in the Wildflower product(s) will meet Buyer's requirements, or that the operation of the Wildflower product(s) will be uninterrupted or error-free, or that defects in the Wildflower product(s) will be corrected.
Furthermore, Wildflower does not warrant or make any representations regarding the use or the results of the use of the Wildflower product(s) or related documentation in terms of their correctness, accuracy, reliability, or otherwise.
No oral or written information or advice given by Wildflower or any Wildflower authorized representative shall create a warranty or in any way increase the scope of Wildflower's liability.
Buyer's exclusive remedy and Wildflower's entire liability under this Agreement will be, at Wildflower's option, to repair or replace the Wildflower products or refund the fee paid therefore upon its return to Wildflower or Wildflower's authorized representative with a copy of Buyer's invoice within thirty days from delivery of the products to Buyer.
11. LIMITATIONS OF LIABILITY
Wildflower will not under any circumstances, whether as a result of breach of contract, breach of warranty, tort, or otherwise, be liable for consequential, incidental, special, indirect, or exemplary damages, however caused, including, but not limited to, loss of profits or revenues, loss of use of or damage to any associated equipment, cost of capital, cost of substitute products, facilities or services, downtime costs, or claims of Buyer's customers, arising out of the use of or inability to use Wildflower products or services, even if Wildflower has been advised of the possibility of such damages. Wildflower's liability on any claim of any kind whether in contract, tort (including negligence) or otherwise for any loss or damage arising out of, resulting from, or concerning any aspects of this agreement or from the products or services furnished hereunder shall not exceed the price of the specific product or shipment which gives rise to the claim, and no claim may be brought against Wildflower more than one year after any cause of action accrues.
Wildflower will repair or replace (at its option) any defective unit that is returned within 30 days of receipt by Buyer provided that return authorization is timely requested by Buyer and authorized in writing by the ClientCare Department of Wildflower.
Non-defective units cannot be returned without the prior written consent of the ClientCare Department of Wildflower, and, if return is authorized, such returned units may be subject to a 15% restocking fee.
Requests for return authorization of defective or non-defective units must be made within 30 days of receipt.
All returns must be made with shipping and handling prepaid to the Wildflower office designated.
All returns must be made in the original carton and packing materials, with all accessories and a copy of the original invoice.
Returned merchandise must be in a resalable condition or a refurbishing charge will be assessed.
No credit can be allowed by Wildflower for items damaged in transit.
All items returned which are not eligible for credit will be returned to the purchaser, transportation collect.
Books, hardware, code tapes, software and special orders that have been assembled or installed can only be exchanged for items of the same kind or repaired by Wildflower, at Wildflower's discretion.
All credits will be allowed in accordance with the prices in effect on the day the products were originally shipped and invoiced to Buyer.
No modification, amendment, rescission, waiver or other alteration or change will bind Wildflower unless agreed to in writing by Wildflower. This document contains the entire understanding and agreement of the parties concerning the purchase and sale of the items listed on the front hereof. Any proposal, negotiation, representation, promise, (course of dealing or trade usage) not contained or referenced herein will not bind Wildflower.
Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld, except that:
a) Both parties may assign their right to receive payment; and
b) Wildflower may use subcontractors in the performance of its obligations, in which case Wildflower will remain responsible for the performance by such subcontractors.
Wildflower represents with respect to the production of the articles and/or the performance of the services stated herein, it has fully complied with all of the applicable provisions of the Fair Labor Standards Act of 1938, as amended, including Sections 6, 7, and 12, Regulations under Section 14, and all other applicable Administrative Regulations.
In connection with performance of work hereunder, Wildflower agrees to comply with all provisions, including specifically Paragraphs (1) through (7), of Section 202 of Executive Order No. 11246 of September 24, 1965, as amended, and rules, regulations, and orders pertaining thereto.
15. SECURITY INTEREST
Buyer hereby grants Wildflower a security interest in all goods covered by this Agreement as security for the performance by Buyer of all its obligations under these terms.
In the event
a) Buyer defaults in the payment of any monies due to Wildflower hereunder beyond the tenth day after the same is due or
b) Buyer defaults in the performance of any other of its obligations under these terms for a period of ten days after receipt by Buyer or notice thereof from Wildflower, or
c) Buyer files a petition for bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee or makes an assignment for the benefit of creditors or enters into an arrangement with creditors or
d) Suffers a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee against it and Buyer fails to secure a discharge thereof within thirty days, then in any such event Wildflower may at its option do any or all of the following:
i) Collect from Buyer a service charge on all monies due;
ii) Terminate the sale;
iii) Whether or not this sale is terminated, take immediate possession of any or all of the equipment wherever situated and for such purpose enter upon any premises without liability for so doing;
iv) Sell, dispose of, hold, use, or lease all or any of the equipment as Wildflower in its sole discretion may decide without any duty to account to Buyer.
Buyer shall in any event remain fully liable for damages as provided by law and for all costs and expenses incurred by Wildflower on account of such default including all court costs and reasonable attorney's fees. The rights afforded Wildflower under this paragraph shall not be deemed to be exclusive but shall be in addition to any rights or remedies provided by law.
16. NO INFRINGEMENTS
In no event shall Wildflower be liable to third parties for damages of any type arising out of Buyer's use of the Wildflower products. Buyer furthermore represents and warrants to Wildflower that any services by Wildflower at Buyer's request on material supplied by Buyer are not in violation or infringement of any person's statutory or common law copyright or other proprietary rights. Buyer agrees to indemnify Wildflower from and against all liability, loss or damage, including reasonable counsel fees, resulting from a claimed violation or infringement of any person's proprietary rights or any litigation based thereon, or from Buyer's use of the Wildflower products.
Any dispute between the Buyer and Wildflower shall be referred to and resolved by arbitration in accordance with the Uniform Arbitration Act NMSA 1978, Sections 44-7A-1 through 44-7A-32. In any arbitration, the prevailing party shall be entitled to an award of costs and reasonable attorney's fees.
18. APPLICABLE LAWS
The laws of the State of New Mexico shall govern relative to any dispute between the Buyer and Wildflower. The venue for arbitration or any cause of action brought by any party in connection with this agreement shall be in the County of Santa Fe, State of New Mexico.
19. EXPORT LAWS
Products, services, technology, materials, tools, and technical data delivered by or to Wildflower may be subject to U.S. export controls or the trade laws of other countries. Buyer and Wildflower agree to comply with all export control regulations and acknowledge that they have the responsibility to obtain such licenses to export, re-export, or import, as may be required.