Terms and Conditions of Sale and Service

1. DEFINITIONS

As used in these Terms and Conditions of Sale and Service (these “Terms”), the following defined terms have the meanings set forth below. All other capitalized terms used but not separately defined herein have the meanings assigned to them in the applicable Order Confirmation.
“Agreement” means, collectively, these Terms together with the applicable Order Confirmation, any Statement of Work, and any other written documents expressly incorporated therein by reference.
“Buyer” means the commercial entity or person identified as the customer, purchaser, or buyer on the applicable Order Confirmation, purchase order, or invoice.
“Deliverables” means all Products and Work Product, individually and collectively, as the context requires.
“FOB Point” means Waltonen’s applicable facility located in Warren, Michigan or Troy, Michigan, as specified on the Order Confirmation, or as otherwise designated in writing by Waltonen.
“Losses” means any and all claims, demands, causes of action, proceedings, investigations, losses, liabilities, damages, costs, and expenses of any nature, including reasonable attorneys’ fees and court costs.
“Order Confirmation” means a written quotation, sales order, work order, invoice, or other document issued by Waltonen that specifies the Products and/or Services ordered, applicable pricing, and delivery or performance terms.
“Products” means all equipment, machined parts, fabricated assemblies, tooling, prototypes, short-run production items, or other tangible personal property manufactured or supplied by Waltonen to Buyer pursuant to an Agreement.
“Program” means the specific customer program, project, or production requirement identified on the Order Confirmation to which an Agreement relates.
“Services” means all engineering, design, digital engineering, product development, quality engineering, reverse engineering, digital twin, integrated logistics support, rapid prototyping, system integration, technical data package preparation, and other professional or technical services performed by Waltonen for Buyer pursuant to an Agreement.
“Statement of Work” or “SOW” means a written statement of work, specification document, or similar written attachment issued or accepted by Waltonen that describes the scope of Services and Deliverables for a particular engagement.
“Waltonen” means Waltonen Engineering, Inc., a Michigan corporation. And its related entities to include its wholly owned subsidiaries, Independence Tooling Solutions LLC, Waltonen PLM, Inc., dba Geometric Solutions.
“Work Product” means all engineering reports, drawings, models, digital twin files, technical data packages, analyses, prototypes, and other documents or deliverables generated by Waltonen in the course of performing Services, whether in physical or digital form.

Additional defined terms may be set forth in the body of these Terms and shall have the meanings assigned to them in the sections in which they first appear.

2. APPLICABILITY; ENTIRE AGREEMENT; ORDER OF PRECEDENCE

  1. These Terms apply to all sales of Products and all performance of Services by Waltonen to Buyer. By issuing a purchase order, executing an Order Confirmation or SOW, accepting delivery of any Products, or requesting performance of any Services, Buyer acknowledges that it has read, understands, and agrees to be bound by these Terms for each and every transaction.
  2. These Terms, together with the applicable Order Confirmation and any SOW, constitute the entire agreement between Waltonen and Buyer with respect to the subject matter of each transaction and supersede all prior or contemporaneous negotiations, representations, warranties, understandings, agreements, and communications, whether oral or written.
  3. In the event of any conflict between these Terms and an Order Confirmation or SOW, the terms of the Order Confirmation or SOW shall control solely with respect to the specific, conflicting term, and these Terms shall govern in all other respects.
  4. WALTONEN HEREBY OBJECTS TO AND REJECTS ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS CONTAINED IN ANY PURCHASE ORDER, ACKNOWLEDGMENT, OR OTHER DOCUMENT SUBMITTED BY BUYER. THE ACCEPTANCE OF DELIVERY OF PRODUCTS, OR THE COMMENCEMENT OR CONTINUATION OF SERVICES, BY BUYER CONSTITUTES BUYER’S AGREEMENT TO THESE TERMS TO THE EXCLUSION OF ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED IN ANY DOCUMENT SUBMITTED BY BUYER. NO TERMS OR CONDITIONS IN ANY BUYER PURCHASE ORDER OR OTHER DOCUMENT SHALL BECOME PART OF ANY AGREEMENT UNLESS EXPRESSLY ACCEPTED BY WALTONEN IN A WRITING SIGNED BY AN AUTHORIZED OFFICER OF WALTONEN.

3. QUOTATIONS; ORDER ACCEPTANCE

  1. All written quotations issued by Waltonen are valid for thirty (30) days from the date of issuance unless a different validity period is expressly stated in the quotation. Waltonen may withdraw any quotation that has not been accepted by Buyer within the applicable validity period.
  2. Waltonen reserves the right, in its sole discretion, to accept or reject any purchase order or request for Services submitted by Buyer. No Agreement shall arise unless and until Waltonen issues a written Order Confirmation.
  3. Waltonen is not responsible for, and is not required to honor, any pricing or other terms contained in a quotation or Order Confirmation that results from a typographical or clerical error, including errors in mathematical computation. Waltonen shall notify Buyer promptly upon discovery of any such error and shall issue a corrected quotation or Order Confirmation.

4. PRICING; PRICE ADJUSTMENTS

  1. Prices for Products and Services are set forth in the applicable Order Confirmation. All prices are for the quantities specified at the date and time of the Order Confirmation. Unless otherwise expressly stated in the Order Confirmation, prices are calculated on a calendar-year basis and are subject to annual adjustment effective January 1 of each calendar year.
  2. Notwithstanding any fixed price stated in an Order Confirmation, Waltonen may increase the per-unit price for Products or the rate for Services at any time during the life of a Program if the acquisition cost of parts, materials, components, or tools required to manufacture or supply the Products, or to perform the Services, increases by more than five percent (5%) from the cost in effect as of the date of the Order Confirmation (a “Vendor/Supplier Price Increase”). Waltonen shall be entitled to increase the applicable price in the same proportion as the documented Vendor/Supplier Price Increase. Waltonen shall provide Buyer with written notice of any such increase and reasonable supporting documentation upon request.
  3. In the event any current vendor or supplier becomes unable to supply required parts, components, or materials for any reason, Waltonen shall have the right to substitute equivalent commercial components and to adjust the applicable price to reflect the cost of such substitution.
  4. All prices are exclusive of freight, shipping, handling, insurance, and all applicable federal, state, and local taxes, duties, and fees. Buyer shall be responsible for and shall pay all such charges, which shall be separately itemized on the applicable invoice.

5. PAYMENT TERMS; LATE CHARGES; SETOFF

  1. Unless otherwise expressly set forth in the Order Confirmation, payment for Products and Services is due and payable in full within thirty (30) days of the date of Waltonen’s invoice, without setoff, recoupment, deduction, or withholding of any kind. Unless other terms are expressly agreed to by the parties.
  2. For Programs requiring tooling, custom manufacturing, or significant upfront engineering, Waltonen may require a deposit as specified in the Order Confirmation. Unless otherwise specified, such deposit shall be fifty percent (50%) of the total estimated price due prior to commencement of work, with the remaining balance due upon delivery or completion of Services.
  3. If shipment or delivery of Products, or completion of Services, is delayed at Buyer’s request or due to Buyer’s act or omission, payment shall remain due in full on the original invoice date. Waltonen may also impose, and Buyer shall pay, storage charges and other incidental expenses resulting from any such delay.
  4. Any amounts not paid when due shall bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, compounded monthly from the due date until paid in full. In addition, Waltonen shall be entitled to impose a late fee in an amount equal to the greater of One Hundred Dollars ($100.00) or five percent (5%) of the unpaid invoice amount for each invoice that is not paid within the applicable payment period. Such late fee is intended to compensate Waltonen for administrative costs associated with collection and is acknowledged by Buyer to be fair and reasonable, and shall not be construed as a penalty.
  5. Buyer shall not, under any circumstances, set off, recoup, or offset any amounts owed to Waltonen against any amounts Buyer claims are owed to it by Waltonen, or for any other reason, however and whenever arising, unless Waltonen has provided prior written consent.
  6. In the event Waltonen refers any past-due account to a collection agency or to legal counsel for collection, or if Buyer institutes any claim or action against Waltonen that relates to this Agreement or any Products or Services, and Waltonen prevails in whole or in part, Buyer shall pay all costs and expenses incurred by Waltonen in connection therewith, including reasonable attorneys’ fees and court costs, regardless of whether litigation is commenced or concluded.

6. TAXES

Buyer shall be responsible for and shall pay all sales, use, excise, value-added, and other similar taxes, duties, and charges of any kind imposed by any federal, state, municipal, or other governmental authority on amounts payable by Buyer hereunder, or on the sale, delivery, or use of Products or Services, except for Waltonen’s own income taxes arising from the sale. If Buyer claims an exemption from any such tax, Buyer shall provide Waltonen with a valid exemption certificate in the form required by the applicable taxing authority prior to the issuance of the Order Confirmation.

7. BUILD-TO-PRINT PRODUCTS; BUYER-FURNISHED SPECIFICATIONS

  1. Where Products are manufactured by Waltonen on a build-to-print basis in accordance with blueprints, drawings, models, specifications, or other technical data furnished by Buyer (collectively, “Buyer Specifications”), the following additional terms in this Section 7 apply.
  2. Buyer shall deliver to Waltonen, at Buyer’s expense, complete and accurate Buyer Specifications in the format required by Waltonen prior to commencement of manufacturing. Following receipt of Buyer Specifications, Waltonen may generate its own internal manufacturing drawings and process documents for use with its tooling, machinery, and production procedures (the “Manufacturing Documents”). The Manufacturing Documents shall be the sole property of Waltonen and shall constitute Waltonen’s proprietary work product; Buyer shall have no rights in or to the Manufacturing Documents.
  3. Waltonen’s sole obligation with respect to build-to-print Products is to manufacture such Products in substantial conformity with the current revision of the Buyer Specifications provided to Waltonen. BUYER ACKNOWLEDGES THAT IT HAS SOLE RESPONSIBILITY FOR THE DESIGN, ENGINEERING, AND FITNESS FOR PURPOSE OF ALL BUILD-TO-PRINT PRODUCTS AND FOR ALL BUYER SPECIFICATIONS, AND THAT WALTONEN ASSUMES NO RESPONSIBILITY OR LIABILITY FOR ANY DESIGN DEFECT, ENGINEERING ERROR, CHARGEBACK, WARRANTY CLAIM, OBSOLESCENCE, RECALL, FIELD FAILURE, OR SIMILAR COST OR LIABILITY ARISING FROM OR RELATING TO THE BUYER SPECIFICATIONS OR THE DESIGN OF THE BUILD-TO-PRINT PRODUCTS.
  4. Where signed initial samples are required, such samples shall be completed by Waltonen and approved by Buyer in writing before the first production shipment. Subsequent production runs shall be substantially, dimensionally, and visually equivalent to the approved signed sample.
  5. Buyer shall provide Waltonen with not less than ninety (90) days’ prior written notice of any change in production schedule or quantity exceeding ten percent (10%) of the current order quantity, whether a decrease or an increase.

8. DELIVERY; TITLE; RISK OF LOSS

  1. All Products shall be delivered F.O.B. the applicable FOB Point. All shipping, freight, delivery, and insurance charges shall be billed to and paid by Buyer. Waltonen shall select the carrier unless otherwise agreed in writing.
  2. Title to, and risk of loss of, all Products shall transfer to Buyer upon Waltonen’s delivery of the Products to the carrier at the FOB Point. After transfer of title, all risk of loss for damage to or destruction of the Products, whether caused by acts of nature, acts of the carrier, acts of third parties, or otherwise, shall be borne exclusively by Buyer, except for damage caused solely by Waltonen’s gross negligence. Buyer’s obligation to pay the purchase price shall not be relieved by any damage or loss occurring after title has transferred to Buyer.
  3. For Products subject to final inspection and acceptance at Waltonen’s facility prior to shipment, title and risk of loss shall transfer upon Waltonen’s tender of the Products to the carrier following final acceptance.
  4. All delivery dates stated in an Order Confirmation are estimates only. Waltonen shall use commercially reasonable efforts to meet stated delivery dates but shall have no liability to Buyer or any third party for delays in delivery due to causes beyond Waltonen’s reasonable control, including those described in Section 17 (Force Majeure). Time is not of the essence with respect to any delivery date unless expressly stated as such in a writing signed by an authorized officer of Waltonen.
  5. Waltonen is not responsible for the acts or omissions of any third-party carrier, or for any loss, damage, theft, or failure to deliver caused by the carrier. In the event the carrier fails to deliver or damages Products in transit, Waltonen will reasonably assist Buyer in filing a claim against the carrier; any recovery from such claim shall be applied toward Buyer’s outstanding payment obligation for the affected Products.

9. INSPECTION; ACCEPTANCE; REJECTION

  1. Buyer shall inspect all Products within ten (10) business days after delivery (the “Inspection Period”). Buyer must provide Waltonen with written notice of any claimed defect, nonconformance, or rejection during the Inspection Period, together with a reasonably detailed description of the alleged defect or nonconformance. Claims for damage, shortage, or shipping error must be submitted in writing to Waltonen within five (5) business days after receipt of shipment.
  2. If Buyer does not provide timely written notice of rejection during the Inspection Period, Buyer shall be deemed to have irrevocably accepted the Products. After acceptance, Buyer shall have no right to reject Products or to revoke acceptance for any reason.
  3. Waltonen shall have forty-five (45) days after receipt of a written rejection notice to inspect the allegedly defective or nonconforming Products and, at Waltonen’s option, to repair, replace, or issue a credit for such Products, which shall be Buyer’s sole remedy for nonconforming Products subject to Section 12 (Limited Warranty). In no event shall Buyer return Products to Waltonen without a prior written Return Material Authorization (“RMA”) issued by Waltonen. Products returned without a valid RMA will not be accepted and may be returned to Buyer at Buyer’s expense or disposed of by Waltonen without liability.

10. SERVICES; PERFORMANCE; ACCEPTANCE OF SERVICES

  1. Waltonen shall perform Services in a professional and workmanlike manner, consistent with Waltonen’s applicable quality standards and ISO 9001:2015 and AS9100D certification requirements, and in substantial conformity with the scope of Services set forth in the applicable SOW or Order Confirmation.
  2. All performance dates for Services set forth in an Order Confirmation or SOW are estimates only. Waltonen shall use commercially reasonable efforts to meet stated performance dates. Time is not of the essence with respect to any performance date unless expressly stated as such in a writing signed by an authorized officer of Waltonen.
  3. Buyer’s obligations to support and cooperate with Waltonen’s performance of Services are material conditions of each Agreement. Buyer shall: (i) provide timely access to facilities, personnel, data, drawings, models, equipment, and other resources reasonably required for Waltonen’s performance; (ii) promptly respond to Waltonen’s requests for approvals, authorizations, direction, and information; and (iii) not impede or interfere with Waltonen’s performance. If Waltonen’s performance is prevented or delayeddue to Buyer’s failure to fulfill its obligations, Waltonen shall not be in breach of the Agreement, and any applicable deadlines shall be extended by a period equal to the duration of the delay caused by Buyer, plus reasonable recovery time.
  4. Unless the applicable SOW provides a formal acceptance procedure with defined acceptance criteria, Services shall be deemed accepted by Buyer upon delivery of the applicable Work Product or completion of the applicable milestone, provided Buyer does not submit a written objection specifying the alleged deficiency within ten (10) business days of delivery or completion.

11. WORK PRODUCT; INTELLECTUAL PROPERTY OWNERSHIP

  1. As between Waltonen and Buyer, all Work Product developed or generated by Waltonen in the course of performing Services shall be and remain the sole and exclusive property of Waltonen unless the applicable SOW or Order Confirmation expressly states in writing that specific Work Product is assigned to Buyer upon full payment of all amounts due under the Agreement.
  2. Upon full payment of all amounts due under the Agreement, and only to the extent expressly set forth in the applicable SOW or Order Confirmation, Waltonen grants to Buyer a limited, non-exclusive, non-transferable l license to use the applicable Work Product solely for Buyer’s internal business purposes in connection with the Program for which the Services were performed.
  3. Notwithstanding any assignment or license of Work Product to Buyer, Waltonen shall retain all ownership and rights in and to its pre-existing intellectual property, proprietary processes, methods, tools, manufacturing know-how, and all general engineering knowledge, experience, and techniques developed or applied by Waltonen in the course of performing Services. No Agreement shall be construed to transfer to Buyer any right or license in or to Waltonen’s proprietary processes or manufacturing methods.
  4. Manufacturing Documents (as defined in Section 7 (b)) are and shall remain the exclusive property of Waltonen regardless of whether any Work Product is assigned or licensed to Buyer under this Section 11.

12. LIMITED WARRANTY

  1. Products. Waltonen warrants solely to Buyer as the original direct purchaser from Waltonen, and not to any subsequent purchaser, transferee, or end user, that all Products manufactured by Waltonen will be free from defects in material and workmanship for a period of one(1)year from the date of delivery. Purchased components or parts that are manufactured by third-party vendors or suppliers are not covered by this warranty; such items are warranted, if at all, solely by the applicable manufacturer or vendor, and Waltonen will use commercially reasonable efforts to pass through to Buyer the benefit of any such third-party warranty to the extent as signable or transferable.
  2. Services and Work Product. Waltonen warrants to Buyer that all Services will be performed in a professional and workmanlike manner in substantial conformity with the applicable SOW or Order Confirmation for a period of ninety (90) days from the date of delivery of the applicable Work Product or completion of the applicable Services milestone (the “Services Warranty Period”).
  3. Build-to-Print Exclusion. The warranties set forth in this Section 12 do not apply to any build-to-print Products. Waltonen’s sole warranty obligation with respect to build-to-print Products is that such Products will be manufactured in substantial conformity with the Buyer Specifications in effect at the time of manufacture. Waltonen provides no warranty, express or implied, with respect to the design, fitness for purpose, performance, or suitability of build-to-print Products.
  4. Warranty Exclusions. The warranties set forth in this Section 12 do not extend to any defect, damage, or failure caused or contributed to by: (i) misuse, abuse, neglect, or accident; (ii) unauthorized alteration, modification, or repair by any person other than Waltonen or its authorized representatives; (iii) installation, operation, or use not in conformity with applicable specifications, instructions, or industry standards; (iv) normal wear and tear; or (v) acts of God, acts of nature, or acts of third parties.
  5. Exclusive Remedy. Buyer’s exclusive remedy for any breach of the warranties set forth in this Section 12 is, at Waltonen’s sole option, repair or replacement of the defective Products, re-performance of the defective Products, re-performance of the defective Services, or issuance of a credit equal to the fees paid for the defective Products and Services. To exercise the warranty claim, Buyer must: (i) notify Waltonen in writing for the alleged defect or nonconformance during the applicable warranty period; (ii) provide a detailed description of the claimed defect and, upon request, digital photographs or other supporting documentation; and (iii) for Products, obtain a prior written RMA from Waltonen before returning any items. Products returned without a valid RMA will not be accepted.

13. DISCLAIMER OF WARRANTIES

EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 12 ABOVE, WALTONEN MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY: (A) IMPLIED WARRANTY OF MERCHANTABILITY; (B) IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE, OTHER THAN AS PROVIDED IN SECTION 8; (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; OR (E) ANY WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 12 SHALL BE BUYER’S SOLE AND EXCLUSIVE WARRANTY FROM WALTONEN WITH RESPECT TO THE PRODUCTS AND SERVICES.

14. LIMITATION OF LIABILITY

  1. IN NO EVENT SHALL WALTONEN BE LIABLE TO BUYER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, LOSS OF REVENUE, LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL, DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OFBREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND REGARDLESS OF WHETHER WALTONEN WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  2. IN NO EVENT SHALL WALTONEN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY AGREEMENT, INCLUDING ALL CLAIMS OF ANY KIND OR NATURE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), STATUTE, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY BUYER TO WALTONEN UNDER THE APPLICABLE ORDER CONFIRMATION FROM WHICH THE CLAIM ARISES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  3. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 14 ARE A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN WALTONEN AND BUYER. WALTONEN WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

15. INDEMNIFICATION

  1. Buyer shall defend, indemnify, and hold harmless Waltonen and its shareholders, directors, officers, employees, agents, affiliates, and representatives (collectively, the “Waltonen Indemnitees”) from and against all Losses arising out of or relating to any third-party claim based upon or arising from: (i) the negligence or willful misconduct of Buyer or its employees, agents, or contractors; (ii) any breach by Buyer of any representation, warranty, covenant, or other obligation under this Agreement; (iii) any claim arising from the design, engineering, fitness for purpose, or use of any build-to-print Product or from any Buyer Specifications furnished to Waltonen; (iv) any product liability claim arising from the integration, use, or resale of Products or Work Product by or for Buyer; (v) any personal injury or damage to property caused directly or indirectly by Buyer’s Product, equipment, or operations; or (vi) any claim that Buyer Specifications, or Waltonen’s compliance therewith, infringes the intellectual property rights of any third party.
  2. Notwithstanding the foregoing, Buyer’s indemnification obligations under this Section 15 shall not apply to the extent any such Losses arise from the gross negligence or willful misconduct of the Waltonen Indemnitees.
  3. The indemnification obligations of Buyer under this Section 15 shall survive the expiration, cancellation, or termination of any Agreement.

16. TERMINATION; CANCELLATION

  1. Termination for Cause by Waltonen. Waltonen may, upon written notice to Buyer, immediately terminate all or any part of any Agreement if Buyer: (i) repudiates, breaches, or threatens to breach any term or condition of this Agreement or any Order Confirmation, including without limitation failing to make any payment when due; (ii) becomes insolvent or is generally unable to pay its debts as they become due;(iii) files a voluntary petition in bankruptcy or has an involuntary petition in bankruptcy filed against it; (iv) has a receiver, administrator, custodian, or trustee appointed over it or its assets; or (v) makes a general assignment for the benefit of its creditors. Upon any such termination, all amounts owed by Buyer to Waltonen shall become immediately due and payable.
  2. Cancellation by Buyer. In the event any Program is cancelled, terminated, or paused for a period greater than sixty (60) days by Buyer for any reason other than Waltonen’s uncured material breach, Buyer shall pay to Waltonen, within thirty (30) days of cancellation notice: (i) all costs incurred by Waltonen for parts, materials, components, and tools purchased or committed for the Program, including any vendor restocking fees or cancellation charges; (ii) all labor costs incurred through the date of cancellation, including start-up and tooling amortization costs as set forth in the Order Confirmation; (iii) all other direct and indirect costs incurred by Waltonen in connection with the Agreement through the date of cancellation; and (iv) an administrative cancellation fee equal to ten percent (10%) of the foregoing amounts.
  3. No Effect on Payment Obligation. No cancellation, termination, or suspension of any Agreement shall relieve Buyer of its obligation to pay for Products delivered or Services performed through the effective Date of such cancellation, termination, or suspension.

17. FORCE MAJEURE

Waltonen shall not be liable or responsible to Buyer, and shall not be deemed to have defaulted under or breached any Agreement, for any failure or delay in furnishing Products or performing Services when and to the extent such failure or delay is caused by or results from events or circumstances beyond Waltonen’s reasonable control, including without limitation: acts of God; fire, flood, storm, earthquake, or other natural disaster; national emergency, war, terrorism, riot, or civil unrest; government order, action, or law; embargoes or blockades; strikes, labor stoppages, or industrial disturbances; shortage of adequate materials, power, fuel, or utilities; supply chain disruptions; pandemics, epidemics, or public health orders; or failure of third-party suppliers or vendors to perform through no fault of Waltonen (each, a “Force Majeure Event”). Waltonen shall notify Buyer of a Force Majeure Event within ten (10) days of its occurrence and shall use diligent efforts to minimize the effects thereof and to resume performance as promptly as reasonably practicable. If a Force Majeure Event continues for more than ninety (90) days, either party may cancel the affected portion of the Agreement upon written notice, without liability for obligations that remain unperformed as of the date of cancellation; provided, however, that Buyer’s obligation to pay for all Products delivered and Services performed prior to such cancellation shall survive and remain in full force and effect.

18. COMPLIANCE WITH LAWS; EXPORT CONTROL

  1. Each party shall comply with all applicable federal, state, and local laws, rules, regulations, and ordinances in connection with its performance under each Agreement.
  2. Products and Work Product supplied by Waltonen may be subject to United States export control laws and regulations, including the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”). Buyer is solely responsible for compliance with all applicable export laws and regulations (including, without limitation, EAR and ITAR) in connection with the export, re-export, or transfer of any Products or Work Product. If any required export authorization is denied, Waltonen shall be relieved of any further obligation to deliver the affected Products or Work Product without liability of any kind.
  3. Buyer shall indemnify, defend, and hold the Waltonen Indemnitees harmless from and against all Losses arising out of or relating to Buyer’s failure to comply with any applicable laws, regulations, or export control requirements in connection with Buyer’s installation, maintenance, operation, use, export, or re-export of any Products or Work Product.

19. ASSIGNMENT

Buyer shall not assign any Agreement, or any of its rights or obligations thereunder, in whole or in part, without the prior written consent of Waltonen. Any purported assignment in violation of this Section is null and void. No assignment shall relieve Buyer of any of its obligations under any Agreement. Waltonen may assign any Agreement, or its rights thereunder, without Buyer’s consent in connection with a merger, acquisition, sale of all or substantially all of Waltonen’s assets, or corporate reorganization.

20. RELATIONSHIP OF THE PARTIES

The relationship between Waltonen and Buyer is that of independent contractors. Nothing in any Agreement shall be construed to create any agency, partnership, joint venture, employment, or fiduciary relationship between the parties. Neither party has authority to contract for or bind the other party in any manner.

21. NO THIRD-PARTY BENEFICIARIES

Each Agreement is for the sole benefit of Waltonen and Buyer and their respective permitted successors and assigns. Nothing in any Agreement, express or implied, is intended to confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature.

22. WAIVER

No waiver by Waltonen of any provision of any Agreement shall be effective unless set forth in a writing signed by an authorized officer of Waltonen. No failure to exercise, and no delay in exercising, any right, remedy, power, or privilege arising under any Agreement shall constitute or be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege shall preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. Waltonen’s waiver of any breach by Buyer shall not constitute a waiver of any subsequent breach.

23. SEVERABILITY; INVALIDITY; REFORMATION

If any term or provision of any Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of that Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. The parties authorize any court of competent jurisdiction to modify and reform any such invalid, illegal, or unenforceable provision to the minimum extent necessary to make it valid and enforceable while preserving, to the greatest extent possible, the original intent and economic effect of such provision. If such modification or reformation is not possible, the invalid, illegal, or unenforceable provision shall be deemed severed from the Agreement, and the remaining provisions shall continue in full force and effect as if the severed provision had never been included.

24. GOVERNING LAW; DISPUTE RESOLUTION; CLAIMS BAR

  1. All Agreements shall be governed by and construed in accordance with the internal laws of the State of Michigan, without giving effect to any choice-of-law or conflict-of-laws provision or rule that would cause the application of the laws of any other jurisdiction.
  2. Any legal action, suit, or proceeding arising out of or relating to any Agreement or the Products or Services shall be instituted exclusively in the state courts located in Macomb County or Oakland County, Michigan, or in the U.S. District Court for the Eastern District of Michigan. Each party irrevocably submits to the exclusive personal jurisdiction and venue of such courts and waives any objection to the laying of venue of any such action or proceeding in such courts.
  3. ALL CLAIMS,CAUSES OF ACTION,LAWSUITS, AND PROCEEDINGS ARISING FROM OR OTHERWISE RELATED TO ANY AGREEMENT, THE PRODUCTS, OR THE SERVICES, WHICH ARE NOT PROPERLY FILED AND COMMENCED BY BUYER WITH IN ONE(1)YEAR FROM THE DATE OF DELIVERY OF THE APPLICABLE PRODUCTS, OR THE DATE OF COMPLETION OF THE APPLICABLE SERVICES, WHICHEVER IS EARLIER, ARE HEREBY IRREVOCABLY AND FOREVER WAIVED, RELEASED, AND BARRED. THIS CONTRACTUAL LIMITATIONS PERIOD SHALL APPLY REGARDLESS OF ANY STATUTE OF LIMITATIONS THAT MIGHT OTHERWISE APPLY.

25. NOTICES

All notices, requests, demands, waivers, and other communications required or permitted under any
Agreement shall be in writing and shall be delivered by: (a) hand delivery; (b) nationally recognized overnight courier (with all fees prepaid); (c) certified or registered U.S. mail(return receipt requested, postage prepaid);
or (d) email with confirmation of delivery or receipt. Notices to Waltonen shall be addressed to the applicable Waltonen facility address set forth on the Order Confirmation, Attention: Lloyd Brown, President, or Beth McReynolds, VP Finance & Administration. Notices to Buyer shall be addressed to the address set forth on the applicable Order Confirmation. A party may update its notice address by written notice to the other party in accordance with this Section.

26. AMENDMENT AND MODIFICATION

No amendment or modification of any Agreement, and no waiver of any provision hereof, shall be valid or binding unless made in a writing that specifically states it amends or modifies the Agreement and is signed by an authorized officer or representative of both parties. Notwithstanding the foregoing, Waltonen reserves the right to update these Terms from time to time by posting revised Terms on its website. Updated Terms shall apply to all orders placed after the effective date of the revised Terms. Buyer is responsible for reviewing these Terms prior to placing each order. Forsake of clarity, the Terms published and in effect on Waltonen’s website as of the date of Buyer’s order shall be the Terms incorporated into the Agreement pertaining to said order.

27. SURVIVAL

The following provisions shall survive the expiration, cancellation, or termination of any Agreement: Section 5 (Payment), Section 7(b) and 7(c) (Manufacturing Documents ownership and Buyer design responsibility for build-to-print Products), Section 11 (Work Product; Intellectual Property), Section 12 (Limited Warranty, as to claims arising before expiration), Section13 (Disclaimer of Warranties), Section14 (Limitation of Liability), Section 15 (Indemnification), Section18 (b) and 18 (c) (Export Control; Compliance Indemnification), Section 24 (Governing Law; Claims Bar), and any other provision that by its nature or express terms should survive.

28. BINDING EFFECT

This Agreement shall be binding upon and inure to the benefit of Waltonen and Buyer and their respective legal representatives, successors, and permitted assigns.

29. HEADING

The section headings contained in these Terms are for convenience of reference only and shall not affect the meaning, interpretation, or construction of any provision hereof.

30. COUNTERPARTS; ELECTRONIC SIGNATURES

Any Order Confirmation, SOW, or other document executed in connection with an Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Electronic signatures, including signatures transmitted by PDF, DocuSign, or other electronic signature platform, shall be deemed original signatures and shall be fully binding to the same extent as original ink signatures.

31. CONSTRUCTION

These Terms have been negotiated by sophisticated commercial parties and shall be construed without regard to any presumption or rule requiring construction against the party causing these Terms to be drafted. The word “including” and variations thereof shall be construed as if followed by the phrase “without limitation”. References to “days” mean calendar days unless expressly stated as “business days”. References to a statute or regulation include all amendments thereto and successor provisions.

32. CUMULATIVE REMEDIES

Except as expressly provided otherwise in these Terms, all rights and remedies of Waltonen under these Terms or any Agreement are cumulative and not alternative, and are in addition to all rights and remedies available at law or in equity.

33. PUBLICITY

Buyer shall not use Waltonen’s name, logo, trademarks, or service marks in any press release, marketing material, customer list, case study, or other public communication without Waltonen’s prior written consent in each instance.

34. GOVERNMENT CONTRACTS

These Terms apply solely to commercial transactions between Waltonen and commercial customers. Where Waltonen’s work is performed under a federal government prime contract or subcontract subject to the Federal Acquisition Regulation (“FAR”) or the Defense Federal Acquisition Regulation Supplement (“DFARS”), the terms and conditions of the applicable government contract vehicle shall govern and control to the extent of any conflict with these Terms.

35. INCORPORATION BY REFERENCE; HYPERLINK

These Terms are incorporated by reference into each Order Confirmation, sales order, invoice, purchase order acknowledgment, and any other transaction document issued by Waltonen. A hyperlink to these Terms on Waltonen’s website posted on any Order Confirmation, invoice, or other transaction document shall constitute valid and enforceable incorporation by reference of these Terms into the applicable transaction, and Buyer’s acceptance of such document or of any Products or Services described therein shall constitute Buyer’s agreement to these Terms. Buyer acknowledges that it has had the opportunity to review these Terms in full prior to entering into any Agreement with Waltonen.