Terms of Sale:

These Standard Terms & Conditions of Sales (these “Terms”), along with the applicable Hyper SPEAR (“Hyper SPEAR”) customer quote (the “Quote”), the applicable Hyper SPEAR invoice (the “Invoice”), and any attachments or addendums supplied solely by HyperSPEAR, each as may be amended by Hyper SPEAR from time to time (collectively, the “Agreement”), supersede all prior understandings , transactions and communications, oral or written, with respect to the matters referred to herein, including without limitation the sale of any goods or products (collectively, “Products”) by Hyper SPEAR and form the complete agreement between you the purchaser of goods or products (“you” or “The Customer”) and Hyper SPEAR. Acceptance by Hyper SPEAR of your order or your acceptance of Hyper SPEAR’s quote or other agreement is expressly limited to and conditioned upon your acceptance of and assent to the terms of this Agreement and those referred to herein. Any additional, inconsistent or different terms or conditions contained in or made available through your purchase order, or other documents, or materials, or correspondence submitted or otherwise made available by you at any time, whether before or after the date hereof (collectively, “Customer Materials”), are hereby expressly rejected by Hyper SPEAR. Without limiting the forgoing, no click-wrap or other terms or conditions provided with any Customer Materials will constitute a part or amendment of this Agreement or are or will be binding on Hyper SPEAR for any purpose . You acknowledge that, notwithstanding anything to the contrary contained in any Customer Materials, YOUR SIGNATURE ON THE QUOTE, OR THE CONFIRMATION, OR YOUR SUBMISSION OF ANY EMAIL OR OTHER ELECTRONIC CORRESPONDENCE OR OTHER WRITTEN DOCUMENT REFERENCING THE QUOTE OR THE CONFIRMATION, OR YOUR PAYMENT OF ANY AMOUNT OWED PURSUANT TO THE AGREEMENT, OR YOUR RECEIPT AND ACCEPTANCE OF ANY PRODUCTS IN WHOLE OR IN PART, OR any other manifestation of YOUR assent to THESE TERMS OR THIS AGREEMENT shall constitute acceptance by you of this AGREEMENT.

Definitions

(a) “Hyper SPEAR“, “HS”, “we“, “us” and “our” refers to Hyper SPEAR, LLC., and its suppliers and licensers, if any.

(b) ““The Customer””, “Customer”, “Client”, “You” and “Your” refers to the individual customer (direct or outsourced customer) and any legal entity that ordered our services and/or on whose behalf it is/was ordered. The individual & all legal entities involved are legally bound by this Service Agreement.

(c) “Product“, “Good”, and “Item” refers to the product and or item ordered/purchased by a Customer.

Prices

Prices are exclusive of all federal, state, and local sales, use and other taxes and duties. All such taxes and duties shall be paid by Customer. Payment terms are net 30 days from date of invoice, subject to credit approval.  Interest will be charged on delinquent payments at a rate of 1-1/2% per month (or the maximum rate permitted by law, if lower) for each month or part thereof of delinquency. Failure to pay in accordance with stated terms is a material breach of this Agreement.

Currency

Except as otherwise provided in this Agreement, all monetary amounts referred to in this Agreement are in USD (US Dollars).

Late payments & Default

An account shall be considered in default if it remains unpaid for 90 days from the date of invoice or The Client has stated expressly that they do not intend to pay an invoice by Hyper SPEAR; unless prior arrangements have been made. Hyper SPEAR shall at its sole discretion suspend any and all services provided to The Client or its subsidiaries and employ debt collection measures until the total outstanding balance has been paid in full. This includes any and all unpaid accounts due for services ordered, including, but not limited to design, prototyping, manufacturing, tooling, maintenance, and sub-contractors, plus bank interest calculated daily for each day payment is overdue.

Suspension of such services does not relieve The Client of its obligation to pay the due amount. The Client whose account is in default agrees to pay Hyper SPEAR reasonable legal expenses and third-party collection agency fees in the enforcement of these Terms and Conditions.

Inspection

“The Customer” shall inspect and accept or properly reject Products delivered pursuant to this Agreement upon receipt. In the event the Products do not comply with the applicable Specifications, “The Customer” shall notify Hyper SPEAR of such noncompliance and give Hyper SPEAR a reasonable opportunity to correct any such noncompliance. Products shall be deemed accepted unless rejected within fifteen (15) days after delivery.

Shipments/Delivery Schedule Terms

All Products will be packaged in the manner determined by Hyper SPEAR, unless otherwise requested by you and agreed to in writing by Hyper SPEAR. The cost of packaging for domestic shipment is included in the quoted price. Where special domestic, export or MIL Standard packing is specified, involving greater expense, a charge will be made to cover such extra expense. You agree that Hyper SPEAR may make partial shipments of Products, and each shipment will constitute a separate and independent transaction.

All shipping and delivery dates are approximate, and delivery is subject to unavoidable delays. All claims for breakage and damage, except on parcel post shipments, should be made to the carrier but Hyper SPEAR will render all possible assistance in securing satisfactory adjustment to such claims.  Claims against parcel post shipments should be communicated immediately to the factory for adjustment. Hyper SPEAR assumes no responsibility for delay, breakage, or damage after having made delivery in good order to the carrier, except for parcel post shipments. In the absence of specific routing instruction by “The Customer”, Hyper SPEAR will exercise commercially reasonable judgment to route shipments. We assume no responsibility for changes by carriers. If coordinate moving, unpacking or provide assembly services are required, Hyper SPEAR must be notified and will provide an estimated quote for the effort.

Export Restrictions

“The Customer” shall not export, re-export or transfer, directly or indirectly, any product or technical data received, to any country or end user to which such export, re-export or transfer is restricted by United States Export Control Regulations or local country law or regulation, without first obtaining any required export license, authorization, certification, or approval. If “The Customer” resells or otherwise disposes of any Product purchased from Hyper SPEAR, “The Customer” will comply with any export restrictions applicable to such transfer.

“The Customer” shall indemnify, defend, and hold Hyper SPEAR harmless from and against any loss, liability, cost or expense (including reasonable legal fees) related to any action arising from “The Customer’s” failure to comply with this Section.

Publication and/or release of IP owned by Hyper SPEAR may not take place without written consent by Hyper SPEAR.

 Force Majeure (Excusable Delay)

Hyper SPEAR shall not be liable for any and excused from delays in delivery and performance, failure or delay in supply or delivery of products and services where such failure or delay is wholly or partly due to any cause or circumstances whatsoever that are beyond the reasonable control of Hyper SPEAR. Including but not limited to Government embargoes, blockades, seizure or freeze of assets, delays or refusals to grant an export license or the suspension or revocation thereof, or any other acts of any Government; war, natural disasters, strikes, lockouts, industrial disputes or unrest, government restriction or transport delays, fire, floods, severe weather conditions, or any other acts of God; power outages, failure attributable to hosting suppliers, breakdown of plant, theft, vandalism, riots, quarantines, insurrection, civil commotions/disobedience, accidents of any kind or act of terrorism, material shortages or delays in deliveries to Hyper SPEAR by third parties. If the excusable delay circumstances extend for six months, either Party may, at its option, terminate this Agreement without being deemed in default or in breach hereof. Alternatively, the Parties may resolve the matter on mutually agreeable terms.

Termination and Cancellations

Either Party may terminate this Agreement:

• by giving written notice if the other Party materially breaches this Agreement and fails to remedy the breach within thirty (30) calendar days after the non-breaching Party delivers written notice that specifies the grounds for the material breach; or
• without notice if the other Party files a petition in bankruptcy for liquidation or reorganization, makes an assignment for the benefit of creditors, consents to the appointment of a receiver, trustee, or other custodians for all or a substantial part of its property, is adjudicated bankrupt, fails to cause to be vacated, set aside or stayed within thirty (30) calendar days any court order appointing a receiver, trustee or other custodians for all or a substantial part of its property or ordering relief against it in any involuntary case of bankruptcy or admits in writing its inability to pay its debts as they mature.

All returns are subject to inspection. Transportation charges for returned items will be at “The Customer’s” expense. “The Customer” directed delayed shipment for more than 30 days is subject to a cost incurred to date charge.

U.S. Government Acquisition Regulation guidelines apply to government and prime contractor orders terminated for “convenience.”

Refusal of Service

Hyper SPEAR shall be the sole arbiter of what is and is not a violation of these acceptable policies. Hyper SPEAR reserves the right to terminate any customer account at any time and for any reason.

Rights in Data

If procuring a product sold By Hyper SPEAR, “The Customer” acknowledges and agrees that by the acknowledgment or acceptance of this Agreement, Hyper SPEAR does not relinquish, sell, transfer, or in any way release any of the rights, title, and interest in drawings, designs, engineering instructions, manuals, specifications, and all other written data, rights relating to the Intellectual Property (IP), if any (collectively, “Data”), furnished with or associated with the Products or otherwise by Hyper SPEAR. Any license under or title to such designs, data, information, or other rights must be the subject matter of a separate contract to be valid or binding with Hyper SPEAR and anything in the order to which this acknowledgement or acceptance relates to the contrary is hereby expressly rejected and not accepted.

Upon receipt of all amounts owed according to the agreement, “The Customer” is granted a limited, revocable, non-exclusive license to use the Data solely to the extent necessary to use and maintain the Products.

Software License

A separate software license is furnished and is hereby incorporated by reference, if applicable to this Agreement.

• “The Customer” shall comply with all applicable laws and regulations, including but not limited to the export control laws and regulations of the U.S. Government. Customer shall not assign this Agreement or any portion thereof without the advance, written consent of Hyper SPEAR, which consent shall not be unreasonably withheld. Hyper SPEAR shall not have any obligation to an assignee of the assigning Party unless such consent is obtained.
• Failure by either Party to assert all or any of its rights upon any breach of the Agreement shall not be deemed a waiver of such rights either concerning such breach or any subsequent breach nor shall any waiver be implied from the acceptance of any payment or service. No waiver of any right shall extend to or affect any other right a Party may possess, nor shall such waiver extend to any subsequent similar or dissimilar breach.
• If any provision of the Agreement is determined to be illegal, invalid, or unenforceable, for any reason, then such provision shall be deemed stricken for purpose of the dispute in question, and all other provisions shall remain in full force and effect.
• THE OBLIGATIONS OF HYPER SPEAR AND REMEDIES OF CUSTOMER HEREUNDER ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND CUSTOMER HEREBY WAIVES, RELEASES, AND RENOUNCES, ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES, INDEMNITIES, OBLIGATIONS, AND LIABILITIES OF HYPER SPEAR AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF CUSTOMER AGAINST HYPER SPEAR, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE USE OF ANY PRODUCTS SUPPLIED HEREUNDER.

LIMITED WARRANTY

EXCEPT FOR THOSE WARRANTIES EXPRESSLY PROVIDED IN THIS SECTION ALL OTHER WARRANTIES EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, IS EXPRESSLY EXCLUDED.

Products sold by Hyper SPEAR under a purchase order are subject to the exceptions and upon the conditions specified below.

• “Nonconformance” means a defect in workmanship or material; a failure to comply with applicable Specifications at the time of delivery. Without limitation, normal wear and or the need for periodic maintenance shall not constitute a Nonconformance.
• Hyper SPEAR warrants to “The Customer” as the original purchaser that at time of delivery and for the duration of the warranty period expressly set forth in this Section unless otherwise set forth in the Agreement to Customer, its Products will comply with applicable specifications expressly set forth in the applicable Quote or Confirmation, and if no such specifications exist, Hyper SPEAR’ then current published specifications for such Products and or otherwise consistent with material, substitutions, rework and repairs, and tolerances generally used by Hyper SPEAR (collectively, the “Specifications”) and are free from defects in workmanship and material. For all Products, these warranties shall run to “The Customer” for a period of twelve (12) months from the date of delivery, unless otherwise set forth in the Agreement.
• Customer must notify Hyper SPEAR in writing of a Nonconformance within the warranty period and return the Product to Hyper SPEAR within thirty (30) calendar days after such notice, in accordance with instructions which shall be issued by Hyper SPEAR. Hyper SPEAR’ obligation and Customer’s remedy under this warranty is limited to either repair or replacement, at Hyper SPEAR’ option, of the nonconforming Product. All Products repaired or replaced hereunder shall be warranted only for the unexpired portion of the original warranty period. Hyper SPEAR agrees to assume round trip transportation costs for a nonconforming Product in an amount not to exceed normal ground shipping charges to the warranty service facility designated by Hyper SPEAR. The risk of loss or damage to all returned Products in transit shall be borne by the Party initiating the transportation of such Products.
• Hyper SPEAR shall not be liable under this warranty if the Product has been exposed or subjected to
  • any maintenance, repair, installation, handling, transportation, storage, operation or use which is improper or otherwise is not in compliance with the Specifications or other Hyper SPEAR’ instructions;
  • any alteration, modification or repair by anyone other than Hyper SPEAR or those specifically authorized in writing by Hyper SPEAR;
  • any accident, contamination, foreign object damage, abuse, neglect or negligence after delivery to Customer;
  • any damage precipitated by failure of a Hyper SPEAR supplied Product not under warranty or by any product not supplied by Hyper SPEAR.

EXCEPT FOR THOSE WARRANTIES EXPRESSLY PROVIDED IN THIS SECTION ALL OTHER WARRANTIES EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE EXPRESSLY EXCLUDED. NO EXTENSION OR EXPANSION OF THIS WARRANTY SHALL BE BINDING UPON HYPER SPEAR UNLESS SET FORTH IN WRITING AND SIGNED BY HYPER SPEAR’ AUTHORIZED REPRESENTATIVE.

Governing Law

THIS AGREEMENT AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION, OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN FLORIDA, AND “THE CUSTOMER”’S CONSENT TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. ““THE CUSTOMER”” FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Hyper SPEAR and “The Customer” expressly agree to exclude from this Agreement the United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successor thereto. The Parties shall attempt to resolve any dispute arising hereunder by good-faith negotiation.

ARBITRATION

Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort, and equitable claims) arising from or relating to the Products and Services, the interpretation or application of these Terms and Conditions or any Statement of Work or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions or any Statement of Work (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), (collectively, a “Claim”) WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. The arbitration will be conducted pursuant to the Rules of the American Arbitration Association. Neither Hyper SPEAR nor “The Customer” will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Further, “The Customer” will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in these Terms and Conditions, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitration will take place exclusively in Fort Lauderdale, Florida. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential.

Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to Hyper SPEAR arising out of the Products will be exclusively litigated in court rather than through arbitration. The rights and remedies provided by Hyper SPEAR under these Terms and Conditions are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available by law.

 Limitation Of Liability

• NOTWITHSTANDING ANYTHING TO THE CONTRARY, HYPER SPEAR’ LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT, OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM THE DESIGN, DEVELOPMENT, MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR OR USE OF ANY PRODUCT COVERED BY OR FURNISHED UNDER THIS AGREEMENT SHALL IN NO CASE EXCEED IN THE AGGREGATE THE CONTRACT PRICE ALLOCABLE TO THE PRODUCT RECEIVED BY HUGHEY AND PHILLIPS FOR THE APPLICABLE PRODUCT PURSUANT TO THIS AGREEMENT IN THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR PART THEREOF, OR SERVICE THAT GIVES RISE TO THE CLAIM;
• NOTWITHSTANDING ANYTHING TO THE CONTRARY, HYPER SPEAR WILL NOT BE LIABLE FOR ANY SPECIAL DAMAGES, INDIRECT DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF REVENUES, OR LOSS OF USE OF ANY PROPERTY OR CAPITAL OF CUSTOMER OR ANY THIRD PARTY, EVEN IF THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO HYPER SPEAR IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY HYPER SPEAR;
• THESE EXCLUSIONS OF TYPES OF DAMAGES AND LIMITATIONS ON THE AMOUNT OF DAMAGES SET FORTH IN THIS AGREEMENT SHALL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY. THESE EXCLUSIONS OF TYPES OF DAMAGES SHALL BE DEEMED INDEPENDENT OF AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER THE TERMS OF THIS AGREEMENT.

MISCELLANEOUS

Hyper SPEAR explicitly reserves the right and sole discretion to:

• Modify its pricing without notice;
• Establish limits and guidelines concerning the use of its products;

Hyper SPEAR has no obligation to monitor or backup “The Customer’s” use of the service(s) it provides but reserves the right in its sole discretion to do so.

Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assignees. No provision of this Agreement or any Statement of Work will be deemed waived, amended, or modified by either party unless such waiver, amendment, or modification is in writing and signed by both parties.