Terms & Conditions of Sale
Terms & Conditions of Sale
These Terms & Conditions of Sale (the “Terms”), together with the estimate and/or sales order and/or packing list and/or invoice (each a “Form”) serve as the offer of FirstSpear, LLC (“FS”) to the buyer identified in the Form (“Buyer”) to sell the goods described in the Form (the “Goods”) all of which together form the basis of any agreement (the “Agreement”) by and between FS and the Buyer.
1. ACCEPTANCE. No acknowledgment by FS of, reference by FS to, or performance by FS under any order submitted by Buyer will be deemed to be an acceptance by FS of any terms or conditions contained in such order that are additional to or contrary to these Terms. Any acceptance by FS of any oral or written order from Buyer is subject to and includes these Terms and is expressly conditioned upon Buyer’s assent to any terms and conditions of sale herein which are additional to or different from any terms or conditions of sale contained in any order or communication submitted by Buyer. Except as expressly provided below, no order may be changed or cancelled by Buyer after Acknowledgment by FS without FS’s written consent, and FS reserves to its sole judgment and discretion when and under what circumstances it will approve any order cancellations or changes. If changes or cancellations are accepted, a change or cancellation fee may be charged to Buyer in accordance with FS’s then current change and cancellation policy.
2. DELIVERY. Unless otherwise specified on the Form or these Terms, the Goods will be delivered F.O.B. FS’s warehouse or plant; or in the case of shipment from an FS vendor, F.O.B. Origin. Delivery dates are approximate and not guaranteed. FS will use commercially reasonable efforts to deliver the Goods on or before the estimated delivery date, as indicated on the Form, and will notify Buyer if the estimated delivery dates cannot be honored and will deliver the Goods as soon as practicable thereafter. Under no circumstances will FS’s failure to deliver the Goods by the estimated delivery date permit Buyer to cancel an order. FS retains the right to make partial or early shipments. FS will consider claims for concealed shortages in shipments or rejections due to failure to conform to an order only if such claims or rejections are made in writing within fifteen (15) days of delivery and are accompanied by the packing list and, if applicable, the reasons in detail why the Goods do not conform to Buyer’s order.
3. RISK OF LOSS. If FS is to ship the Goods by carrier, risk of loss passes to Buyer when the Goods are delivered to the carrier even though the shipment is under reservation of a security interest. If Buyer is to pick up the Goods at FS’s warehouse or plant, risk of loss passes to Buyer on tender of delivery at FS’s plant or warehouse. Anything to the contrary in these Terms notwithstanding, risk of loss also passes to Buyer upon the occurrence of any of the following events: (i) Buyer is unable or refuses to accept delivery on the delivery date for the shipment specified on the Acknowledgement; or (ii) the Goods are ready for delivery and Buyer has failed to furnish FS with shipping instructions; or (iii) Buyer has paid the entire purchase price for a shipment prior to delivery.
4. ACKNOWLEDGEMENT. “Acknowledgement” means FS’s written confirmation and acceptance of order from the Buyer. FS has the right to update the Acknowledgement at any time for revision of schedule or revision of payment terms. The latest Acknowledgement sent by FS supersedes all previously-sent Acknowledgements.
5. PRICE. Unless otherwise specified on the Form, the price of the Goods is F.O.B. Origin and is exclusive of all insurance, freight, packing and unpacking charges and all imposts, duties and taxes. If Buyer requests that FS arrange shipment of Goods, an additional charge will apply. Title and risk of loss passes at FS’s warehouse (or in the case of shipment from an FS vendor, at such vendor). If FS pays any insurance, freight, packing, unpacking or other charges in connection with any shipment or any imposts, duties or taxes in connection with any shipment (including any sales, use, excise, value-added, ad valorem or property taxes and any interest or penalties in connection with any of the foregoing, but excluding any taxes measured on FS’s net income), Buyer, upon receipt of an invoice from FS therefor, will promptly reimburse FS for same. Buyer is either purchasing Goods for resale or is authorized as a direct pay taxpayer by the state to which use (sales) tax is applicable (Buyer shall provide proof of such direct pay status). If Buyer is purchasing Goods for resale, Buyer must furnish the resale certification required by the state of the Buyer’s principal office; provided that if Goods are shipped elsewhere, Buyer must furnish such evidence required by the recipient address state. Buyer will reimburse FS for any and all tax compliance costs incurred by FS relating to Buyer’s failure to timely furnish any and all of the foregoing tax documentation. Prices are firm for all Goods scheduled for delivery (in accordance with the delivery date in the Acknowledgment) not more than 90 days from the date of the Acknowledgement. Prices for Goods scheduled for delivery thereafter are subject to increases; provided that FS will give Buyer prior written notice of any such increases, and Buyer will have the right to cancel the entire (but only the entire) portion of the sale of Goods affected by such price increases, provided FS receives from Buyer written notice of such cancellation within 15 days after Buyer’s receipt of FS’s notice of price increase.
6. FORCE MAJEURE. FS’s duty to perform under this Agreement and the prices therein are contingent upon the non-occurrence of an Event of Force Majeure. If FS shall be unable to perform a material obligation under this Agreement due to an Event of Force Majeure, this Agreement shall at FS’s election (i) remain in effect but FS’s obligations shall be suspended until the uncontrollable event terminates or (ii) be terminated upon ten (10) days’ notice to Buyer, in which Buyer shall pay FS for all parts of the Goods delivered to Buyer as of the date of termination. An “Event of Force Majeure” shall mean any cause or event beyond the control of FS. Without limiting the foregoing, Event of Force Majeure includes: acts of God; acts of terrorism, war or the public enemy; flood; earthquake; tornado; storm; fire; civil disobedience; pandemic, epidemic, quarantine, (including without limitation COVID-19 infection (“Coronavirus”)); insurrections; riots; labor disputes; labor or material shortages; sabotage; restraint by court order or public authority; and the requirements of any applicable government in any manner that diverts either the material or the finished Goods to the direct or indirect benefit of the government.
7. TECHNICAL ADVICE. Upon request, FS will endeavor to furnish such technical advice as it has available in reference to Buyer´s use of its products. Buyer expressly understands that any technical advice that FS furnishes concerning the use of its products is given gratuitously, and FS assumes no obligation or liability for the advice or results obtained, all such advice being given and accepted at Buyer´s risk. Buyer must pass on all instructions and warnings supplied by FS to those persons who use the Goods. Buyer must leave intact all warning labels adhered to the Goods by FS.
8. EXPORT CONTROLS & FCPA. Buyer may not sell, resell, export, re-export, retransfer or engage in or facilitate other transactions contrary to U.S. law, including the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, U.S. economic sanctions regulations administered by the U.S. Treasury Department, and the U.S. Foreign Corrupt Practices Act.
9. TERMS OF PAYMENT. Buyer agrees to promptly pay all sums agreed to be paid hereunder. Payment terms will be as noted on the face of the Form. Shipments and deliveries hereunder will at all times be subject to the approval of FS´s credit department. FS´s payment terms are subject to change without notice and those in effect at time of shipment will apply. FS reserves the right to divide an order into separate shipments and separately invoice such shipments, in which case each shipment will be deemed a separate contract and payment therefore will be due in accordance with these Terms. If Buyer fails to fulfill the terms of payment, or if FS has any doubt as to Buyer´s financial responsibility, FS may, at its option: (i) require full or partial payment in advance; (ii) demand payment and suspend deliveries until payment is received; or (iii) decline to make further deliveries except upon receipt of cash or satisfactory security. Buyer´s failure to furnish payment upon demand will constitute a repudiation of this contract, and FS will be entitled to receive reimbursement for its reasonable cancellation charges. FS reserves the right to add to any account outstanding for more than 30 days a service charge equal to the lesser of the maximum allowable legal interest rate or 1.5% of the principle amount due at the end of each month. Customer shall pay all costs (including attorney’s fees) incurred by FS in attempting to collect amounts due or otherwise enforcing these Terms. FS will not be liable for any of Buyer´s costs or expenses arising out of the exercise of any of FS´s rights hereunder.
10. CANCELLATION. Accepted orders cannot be cancelled, in whole or in part, without FS´s written consent. In no event will FS accept cancellation of order(s) for soft or hard body armor, helmets, and/or other personal protective equipment. If Buyer requests cancellation of orders for Goods which have been manufactured in whole or in part, such cancellation will be at FS´s option and subject to cancellation charges. FS´s failure to meet estimated ship dates will not be sufficient cause for cancellation of orders. Buyer will be liable for the payment of reasonable cancellation charges, which will not be less than 10% of the price of the Goods cancelled, but will include (a) all costs and expenses that FS incurs for or on account of the Goods cancelled and the cancellation; (b) any and all liabilities, costs, damages and expenses that FS incurs by or as a result of commitments incident to the Goods involved including commitments made or liabilities assumed to any supplier of such Goods and materials used in such Goods; and (c) any and all indirect charges as well as a reasonable profit.
11. LIMITED WARRANTY. FS warrants that (the “Warranty”) the Goods manufactured by FS and delivered will be free from significant defects in material and workmanship during the standard service life expectancy of the Good, not to exceed 12 consecutive months from the date of delivery (the “Warranty Period”). The Warranty only applies to the original Buyer of the Goods, and does not apply to any Good that (i) has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, installation, assembly, storage, handling or maintenance (including incorrect laundering), abnormal physical stress or environmental conditions, use contrary to any instructions issued by FS, or use in a manner for which the Good was not intended, (ii) has been reconstructed, repaired, or altered by an person or entity other than FS or its authorized representative, (iii) has been used with any third-party product that has not been previously approved in writing by FS, (iv) has been subjected to any condition other than ordinary wear and tear, (v) has only cosmetic damage, including minor scratches, surface deformations, discoloration, or natural fading of colors; (vi) has been damaged during transportation; (vii) has date codes or tags that have been removed or defaced, (viii) were purchased from an unauthorized dealer, including Goods purchased through third party auction sites, unauthorized dealers selling via third party marketplaces, or dealers selling altered or modified Goods, or (ix) has been damaged by normal wear and tear or any cause not the fault of FS. Goods or components of Goods purchased by FS from a third party for resale to Buyer or for incorporation into the Goods will carry only the warranty extended by the original manufacturer (“OEM”) and FS shall have no liability therefor. Such OEM warranty terms may be found on the OEM’s associated websites or by contacting the OEM. FS’s obligations under this Warranty are subject to satisfaction of the following conditions: (a) that Buyer has notified FS in writing of any alleged defect (and has provided FS in writing the model number of the allegedly defective Good as stated on the original sales receipt), no later than 30 days from the date Buyer discovered, or upon reasonable inspection should have discovered, that alleged defect, but in any event before the expiration of the applicable Warranty Period, (b) that Buyer has shipped, at Buyer’s expense, the allegedly defective Good to FS’s facility located at 2015 Corporate 44 Dr., Fenton, MO 63026, for inspection and testing by FS, no later than 60 days from the date Buyer discovered, or upon reasonable inspection should have discovered, the alleged defect, and (c) that Buyer is not in default of its payment obligations to FS under any purchase order or agreement. Buyer’s failure to deliver the foregoing written notice or ship any Defective Good back to FS within the applicable time period will be deemed an unconditional waiver of Buyer’s claims for any such defects. If FS’s inspection and testing reveals, to FS’s satisfaction, that the Good is not conforming to the Warranty (each a “Defective Good”), FS will, in its sole discretion, repair the Defective Good, replace the Defective Good, or credit or refund the price of the Defective Good less any applicable discounts, rebates, or credits. If FS exercises its option to repair or replace, FS will, after receiving Buyer’s shipment of the Defective Good, deliver the repaired or replaced Good, at FS’s expense (except that Buyer will be responsible for insurance costs), F.O.B. FS’s warehouse or plant (or as otherwise provided on the Form, or in the case of shipment from an FS vendor, F.O.B. Origin). Goods repaired or replaced under this Warranty will be warranted for the unexpired portion of the Warranty applying to the original Goods. Buyer has no right to return any Goods for repair, replacement, credit or refund except as provided under this Warranty and below under “RETURNS.” THIS WARRANY PROVIDES THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND FS’S ENTIRE LIABILTY FOR ANY BREACH OF THIS WARRANTY. EXCEPT FOR THIS EXPRESS WARRANTY, FS MAKES NO WARRANTY WITH RESPECT TO THE GOODS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. Notwithstanding the Warranty Period, FS may in its sole discretion correct Defective Goods, purchased by individual retail customers, outside of the Warranty Period for the lifetime of the Defective Good (“Limited Lifetime Warranty”).
12. DAMAGES. IN NO EVENT WILL FS BE LIABLE FOR SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, ENHANCED, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS REVENUE, LOSS OF USE, LOSS OF REPUTATION AND DATA, DIMINUTION IN VALUE, BUSINESS INTERRUPTION, COSTS INCURRED INCLUDING FOR CAPITAL, SUBSTITUTE GOODS, AND FACILITIES), EVEN IF FS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FS´S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING FROM OR BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT OR OTHER CAUSE OF ACTION (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WILL IN NO CASE EXCEED THE PURCHASE PRICE THAT BUYER PAYS FOR THE PARTICULAR GOODS GIVING RISE TO THE CLAIM. BUYER WILL INDEMNIFY AND HOLD HARMLESS FS FOR ANY DAMAGES INCURRED BY FS IN EXCESS THEREOF. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL FS BE LIABLE FOR ANY DAMAGES (WHETHER DIRECT OR INDIRECT) FOR GOODS OR COMPONENTS OF GOODS PURCHASED BY FS FROM A THIRD PARTY FOR RESALE OR THE INCORPORATION INTO THE GOODS FOR SALE, INCLUDING WITHOUT LIMITATION SOFT OR HARD BODY ARMOR AND THE BALLISTIC RESISTANCE THEREOF.
13. SECURITY INTEREST. Buyer grants to FS a first priority purchase money security interest in all Goods purchased hereunder, and in each and every item thereof, including replacements, proceeds, and products thereof, to secure payment of all amounts and performance of all obligations due hereunder. Buyer will execute, at FS´s request, all financing statements that FS deems necessary or desirable to perfect FS´s security interest. Buyer authorizes FS to sign on Buyer´s behalf, and file, a copy of the security agreement or a financing statement with the appropriate authorities to perfect FS´s security interest in all purchased Goods. FS will have all rights and remedies of a secured party under the UCC in effect in any applicable jurisdiction.
14. OPTION TO ACCELERATE. FS has the right on written notice to Buyer to demand immediate payment of amounts due hereunder if FS believes in good faith that the prospect of Buyer´s payment or performance is impaired. Buyer´s acceptance of Goods will constitute an express representation that Buyer is not then insolvent within the meaning of Title 11, United States Code or similar federal or state law.
15. SEVERABILITY. The provisions of these Terms are severable and if any provision is invalid, void or unenforceable in whole or in part for any reason, the remaining provisions will remain in full force and effect.
16. NON-WAIVER. FS´s failure or refusal to insist upon strict performance of any provisions of this Agreement will not be deemed a waiver of FS´s rights or remedies, or a waiver by FS of any subsequent default by buyer in the performance of or compliance thereof.
17. ASSIGNMENT. Buyer may not assign these Terms in whole or in part and any attempted assignment will be void and of no effect.
18. ENTIRE AGREEMENT. Unless alternative or supplemental terms and conditions are expressly agreed upon in writing by FS, these Terms and Form(s) shall constitute the entire Agreement and understanding of the parties and supersedes all prior agreements and understandings relating to the subject matter hereof. No agreements, understandings, restrictions, warranties, or representations exist between or among the parties other than those provided herein unless agreed upon by the parties.
19. APPLICABLE LAW & JURISDICTION. Buyer and FS agree that interpretation of and performance under these Terms, as well as all other aspects of the transaction contemplated by these Terms, will be governed by the laws of the State of Missouri without regard to Missouri´s conflict or choice of law rules. Buyer and FS further agree that any action at law, suit in equity or other judicial proceeding (“Litigation”) with respect thereto must be brought and maintained in a court of competent jurisdiction within the United States District Court, Eastern District of Missouri or the applicable Circuit Court located within the County of Saint Louis, Missouri. Buyer agrees to hereby waive any right to forum non conveniens. Buyer and FS agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, and as a condition precedent to Litigation, the parties herein shall attempt in good faith to resolve any controversy or claim through negotiations between authorized representatives of the Buyer and FS. If the matter is not resolved by negotiations between the parties hereto, the Buyer and FS must participate in good faith in at least four hours of mediation in accordance with the mediation procedures of United States Arbitration & Mediation. The parties herein agree to share equally in the costs of mediation and the mediation shall be administered by the offices of United States Arbitration & Mediation 500 N. Broadway, Suite 1800, St. Louis, MO 63102 at a location within Saint Louis County, Missouri, unless otherwise agreed upon by the parties. In no event shall FS be liable for any travel or other expenses incurred by Buyer.
20. GOVERNMENT ORDERS (GOVERNMENT END USER). The following provision applies only to sales by FS indirectly to the US Government: The Buyer acknowledges that Goods ordered and delivered under this Agreement are commercially available off-the-shelf (COTS) items as defined within Part 2 of the Federal Acquisition Regulation (FAR) unless otherwise expressly agreed upon in writing by FS. FS as a commercial subcontractor agrees to be bound only by applicable Government prime contract FAR clauses expressly agreed upon by FS and Buyer. If the sale of the Goods is in connection with a U.S. Government contract, Buyer, certifies that it has provided and will provide current, accurate, and complete information, representations and certifications to all government officials, including but not limited to all aspects of its ownership, eligibility, and performance and will follow all applicable laws, ordinances or rules, regulations, orders, or other governmental requirements and shall indemnify, defend, and hold harmless FS and FS’s officers, shareholders, directors, employees, and agents from and against any claims, actions, costs, expenses, damages, and liabilities, including reasonable attorney’s fees, caused by Buyer’s breach of the aforementioned certification. Buyer shall obtain written authorization and approval from FS prior to providing any government official with any information about FS’s performance that is subject to this Agreement.
21. INTELLECTUAL PROPERTY. Buyer acknowledges that FS, FirstSpear Holdings, LLC or its affiliates (collectively “FirstSpear”) is the exclusive owner of all right, title, and interest in FirstSpear trademark(s) and intellectual property. Notwithstanding anything to the contrary, nothing in this Agreement will function to transfer FirstSpear intellectual property rights to the Buyer and FirstSpear retains exclusive interest in and ownership of its intellectual property. Further information regarding FirstSpear intellectual property can be found at http://www.fspatents.com/. To the extent the Goods include FirstSpear trademark(s), Buyer is permitted, on a limited, non-exclusive, and non-transferable basis, to use the FirstSpear trademark(s) for the sole purpose of marketing and selling its products which incorporate the trademark(s). All goodwill resulting from such permitted use of FirstSpear trademark(s) by Buyer will inure to the sole benefit of FirstSpear, and such Buyer must strictly adhere to Trademark Usage Guidelines which can be provided by FirstSpear upon request. FirstSpear may, at any time and at its sole discretion, revoke permission of trademark usage. Buyer shall defend, indemnify and hold harmless FirstSpear (and each of the officers, shareholders, directors, employees and agents) from and against any and all liabilities, claims, demands, losses, damages, expenses, fines, costs, including reasonable attorneys’ fees, consequential damages, or any and all other expenses and costs incident to the foregoing, related to any claim, lawsuit, investigation, proceeding, regulatory action or other cause of action asserted by a third party against FirstSpear arising out of or relating to the use of FirstSpear trademark(s) by Buyer.
Version 5/2021
Supplemental Terms and Conditions of Sale
By Buyer’s completion of a purchase of the FirstSpear Tubes® Fastener, Buyer affirms that Buyer is not a manufacturer of a finished product that will incorporate the purchased FirstSpear Tubes® Fastener and be offered for sale, and Buyer further agrees that, as an additional contractual obligation to the FirstSpear Terms and Conditions of Sale, Buyer will be prohibited from reselling the purchased FirstSpear Tubes® Fastener as a standalone component to any third party without prior written authorization by FirstSpear. Buyer further acknowledges that FS Holdings LLC or its affiliates (collectively herein "FirstSpear") is the holder of European patent numbers EP2780656 and EP3136041 (the “European Patents”), one or more claims of which cover aspects of the FirstSpear Tubes® Fastener, which are validated in the European states of Germany, Switzerland, Denmark, Spain, Finland, France, United Kingdom, Italy, Ireland, Lithuania, Portugal, Sweden, Latvia, Norway, Poland, and Belgium (the “European States”).
BUYER ACKNOWLEDGES that with the completion of the purchase of the FirstSpear Tubes® Fastener, FirstSpear reserves all rights and authority under the European Patents, and that Buyer receives no authority or right to sell or offer for sale the purchased FirstSpear Tubes® Fastener, whether incorporated into a finished product or not, in or into the European States.
Furthermore, Buyer acknowledges that FirstSpear is the exclusive owner of all right, title and interest in the FirstSpear Tubes® trademarks and that Buyer is not permitted or authorized to use the FirstSpear Tubes® trademarks for any reason whatsoever without prior written authorization by FirstSpear. FirstSpear reserves the right to withhold sales of FirstSpear Tubes® Fasteners to the Buyer, at its sole discretion, at any time for any reason whatsoever. Buyer will defend, indemnify and hold harmless FirstSpear (and each of their officers, shareholders, directors, employees and agents) from and against any and all liabilities, claims, demands, losses, damages, expenses, fines, costs, and including without limitation, reasonable attorney’s fees, consequential damages, and any and all expenses and costs (including attorney’s fees) incident to the foregoing related to any claim, lawsuit, investigation, proceeding, regulatory action or other cause of action asserted by a third party against FirstSpear arising out of or relating to the purchase, license or use of the FirstSpear Tubes® by Buyer.
FIRSTSPEAR WILL HAVE NO LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OF THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS PURCHASE ORDER, REGARDLESS OF HOW SUCH DAMAGES ARISE, WHETHER OR NOT FIRST SPEAR WAS ADVISED SUCH DAMAGES MIGHT ARISE.