This privacy notice discloses the privacy practices for Wildway, our website; http://www.wildwayoflife.com, and other Wildway-initiated campaigns and emails. This privacy notice applies solely to information collected by this company, except where stated otherwise. It will notify you of the following:
Information Collection, Use, and Sharing
Your Access to and Control Over Information
You may opt out of any future contacts from us at any time. You can do the following at any time by contacting us via the email address or phone number provided on our website:
We request information from you on our order form. To buy from us, you must provide contact information (like name and shipping address) and financial information (like credit card number, expiration date). This information is used for billing purposes and to fill your orders. If we have trouble processing an order, we'll use this information to contact you.
We do not sell your information. From time to time, we use an outside shipping company to ship orders, and a credit card processing company to bill users for goods and services. These companies do not retain, share, store or use personally identifiable information for any secondary purposes beyond filling your order.
We take precautions to protect your information. When you submit sensitive information via the website, your information is protected both online and offline. Wherever we collect sensitive information (such as credit card data), that information is encrypted and transmitted to us in a secure way. You can verify this by looking for a closed lock icon at the bottom of your web browser, or looking for "https" at the beginning of the address of the web page. While we use encryption to protect sensitive information transmitted online, we also protect your information offline. Only employees who need the information to perform a specific job (e.g. billing or customer service) are granted access to personally identifiable information. The computers/servers on which we store personally identifiable information are kept in a secure environment.
We use "cookies" on this site. A cookie is a piece of data stored on a site visitor's hard drive to help us improve your access to our site and identify repeat visitors to our site. For instance, when we use a cookie to identify you, you would not have to log in a password more than once, thereby saving time while on our site. Cookies can also enable us to track and target the interests of our users to enhance their experience on our site. Usage of a cookie is in no way linked to any personally identifiable information on our site.
This web site contains links to other sites. Please be aware that we are not responsible for the content or privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of any other site that collects personally identifiable information.
Surveys & Contests
From time-to-time our site requests information via surveys or contests. Participation in these surveys or contests is completely voluntary and you may choose whether or not to participate and therefore disclose this information. Information requested may include contact information (such as name and shipping address), demographic information (such as zip code, age level), and psychographic (such as behavioral habits). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the use and satisfaction of our products and services. Quantities of special offers are limited and subject to continued availability. Limited offer expires when supplies run out. Special offers are limited to one use per customer unless otherwise stated.
Notification of Changes
Whenever material changes are made to the privacy notice we will notify you by posted or written communication.
Questions & Contact Info
If you would like to: access, correct, amend or delete any personal information we have about you, register a complaint, or simply want more information contact our Privacy Compliance Officer at or by mail at
Privacy Compliance Officer
10203 Kotzebue St. #115 San Antonio Texas US 78217
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW OR WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT DISPUTES BETWEEN YOU AND WILDWAY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances or for any reason, use this Website. Wildway may, in our sole discretion, terminate your access to this Website or change our eligibility criteria at any time.
The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Materials to countries or persons prohibited under the export control laws. By downloading the Materials, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Materials.
When you upload or otherwise submit any information, materials or other content whatsoever to or through this Website (“Submitted Content”), you represent and warrant that you own all right, title and interest in and to such Submitted Content, including without limitation all copyrights and rights of publicity contained therein, and that such Submitted Content (i) does not contain any material that is pornographic, lewd, obscene, defamatory, profane, offensive, misleading, or otherwise inappropriate as determined by Wildway in our sole discretion, (ii) does not violate any intellectual property rights of any third party, including, without limitation, third party copyrights, trademark rights or rights of publicity, (iii) does not otherwise violate Applicable Law and (iv) does not otherwise contain any inaccurate or untruthful information.
By uploading or otherwise submitting Submitted Content to or through this Website, you, personally, and on behalf of any subjects therein, including, without limitation, your child, if applicable, grant to Wildway a non-exclusive, fully paid-up, perpetual, worldwide license (the “License”) to use all of the content of Submitted Content, including likenesses, whether in whole or in part, whether composite or distorted, for purposes of illustration, art, promotion, advertising, trade, sale or any other purpose whatsoever. The License also includes, without limitation, the right to post Submitted Content, or excerpts thereof, on this Website and websites other than this Website, including, without limitation on any social media, blog or similar website. Except where prohibited by applicable law, by submitting Submitted Content to or through this Website, you are waiving and agreeing not to assert any copyrights or “moral” rights or claim resulting from our alteration of the Submitted Content or any photos, submissions, photograph(s), footage, illustrations, statements or other work contained in the Submitted Content. You are also agreeing to appoint Wildway as your irrevocable attorney-in-fact with respect to the Submitted Content, with the right to execute and deliver any documents, in your name and on your behalf, to ensure that Wildway can use the Submitted Content in any way we see fit, own and protect the rights in any derivative works created from your Submitted Content, and have the Submitted Content removed from any other website or forum.
If you post, upload and/or submit any Submitted Content on this Website, you will not: (i) harass, defame, intimidate or threaten another user of this Website; (ii) interfere with the rights to privacy of any another user of this Website; (iii) distribute chain letters, surveys or contests; (iv) post any material that is defamatory (i.e., disparaging to the reputation of an individual or business); (iv) post any material that is obscene or indecent; (v) post any trademarks, logos or copyrighted material without the authorization of the owner thereof; (vi) post any materials that may damage the operation of a computer (such as a virus, worm or Trojan horse); and/or (vii) advertise or sell any goods or services.
If Submitted Content includes any video and/or photographic images or pictures of your child, you further agree that, without limitation, the License includes a grant of an unrestricted right and permission to use, re-use and publish the video and/or photographic images or pictures of your child, in which your child may be included intact or in part, composite or distorted in character or form (the “Images”), without restriction as to changes or transformations in conjunction with your child’s own or a fictitious name, or reproduction thereof in color or otherwise, made through any and all media now or hereafter known for purposes of illustration, art, promotion, advertising, trade, sale or any other purpose whatsoever. Your permission given herein is hereby acknowledged to constitute written consent under Applicable Law including, without limitation, New York Civil Rights Law Section 50. You also permit the use of any printed material in connection therewith. You hereby relinquish any right that you, and/or your child, may have to examine or approve the use of the Images regardless of the form and type, the material that may be used in conjunction therewith or the use to which they may be applied. Further, you represent and warrant to Wildway that: (i) all persons who appear in any Images have given you their express consent (or if a minor who is not your child, you must have the permission of their parent or legal guardian) to submit the Images for unlimited, royalty-free use, exhibition and other exploitation in any manner and in any and all media, whether now existing or hereafter discovered, throughout the world, in perpetuity (and you agree to provide evidence of such permission in writing if requested by Wildway in its sole and absolute discretion); (ii) there are no claims for payment of any kind, including, without limitation, for royalties or residuals; and (iii) no persons who appear in any Images has any approval or consultation rights or any rights of participation arising out of any use, exhibition or other exploitation of any Images.
The grant of the License and all rights and permissions associated thereto is binding on you, and your child (if applicable), and your, and your child’s (if applicable), heirs, legal representatives and assigns.
You hereby represent and warrant that you have all rights necessary to grant the License and all rights and permissions associated thereto to Wildway. IF YOU DO NOT WISH TO OR CANNOT LEGALLY GRANT SUCH RIGHTS AND PERMISSIONS TO WILDWAY YOU MAY NOT SUBMIT ANY MATERIALS TO WILDWAY.
For clarity, the foregoing License grants to Wildway do not affect your other ownership or license rights in your Submitted Content, including the right to grant additional licenses to your Submitted Content, unless otherwise agreed in writing.
Disclaimer of warranties
THIS WEBSITE, INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THIS WEBSITE, IS PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WILDWAY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER REGARDING THE CONTENT ON THIS WEBSITE OR THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE THROUGH THIS WEBSITE, FOR ANY HYPERTEXT LINKS TO THIRD PARTY SITES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THIS WEBSITE OR ANY LINKED SITE. WILDWAY FURTHER DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE INFORMATION CONTAINED ON THIS WEBSITE IS COMPLETE, ACCURATE OR UP TO DATE. WILDWAY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THIS WEBSITE OR ANY MATERIALS OR CONTENT CONTAINED HEREIN WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THIS WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF ANY VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT YOU USE THIS WEBSITE AND THE MATERIALS AT YOUR OWN RISK.
Limitation of liability
IF ANY PORTION OF THIS LIMITATION IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN WILDWAY’S TOTAL LIABILITY WILL BE THE LESSER OF (I) THE COSTS ASSOCIATED WITH ENTERING A CONTEST ASSOCIATED WITH THIS WEBSITE IF RELATED THERETO OR (II) ONE HUNDRED DOLLARS (US $100)
TO THE EXTENT PERMITTED BY LAW, THIS LIMITATION OF LIABILITY SHALL BE BINDING UPON YOU AND YOUR CHILD (IF APPLICABLE), AND YOUR AND YOUR CHILD’S (IF APPLICABLE) HEIRS, LEGAL REPRESENTATIVES AND ASSIGNS
Some jurisdictions do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH JURISDICTIONS, THE LIABILITY OF THE WILDWAY PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Arbitration clause and class action wavier- IMPORTANT- please review as this affects your legal rights.
Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with Wildway.
Submission of ideas or suggestions
Governing law; Legal jurisdiction
If you make any claim against Wildway or any other Wildway Party, you agree in advance that in the event you assert any such claim, it will be governed by the following rules:
All aspects of the claim, whether procedural or substantive, shall be governed by the laws of the State of Texas, except conflicts of laws that would cause another jurisdiction’s laws to apply and unless the dispute is governed by federal law other than federal law governing conflicts of law, in which case federal law shall govern.
Prior to commencing any legal action against any Wildway Party, you must provide each such Wildway Party with at least thirty (30) days prior written notice of any claim, including a reasonably detailed description of your claim and such Wildway Party’s responsibility, together with your request for what you would like such Wildway Party to do about your claim.
The statute of limitations applicable to any claim other than a claim for personal injuries shall be one (1) year, measured from the date you first visited this Website.
You agree that any claim brought by you, or on your behalf, shall be exclusively venued in either the United States District Court for the Southern District of Texas or the Supreme Court of the State of Texas in Bexar County (the “Agreed Forums”).You agree that in the event that you bring any claim in any other court or forum, or in the event that a claim is commenced on your behalf in any other forum, such claim shall be transferred to one of the Agreed Forums.
You waive any claim that the Agreed Forums are inconvenient for resolution of disputes and claims you may have and agree to forego any claim to transfer the venue for dispute resolution.
You agree to bring any claim individually and not through any class action.
To the extent that it may be relevant, you agree that your use of this Website and any transaction arising in connection with such use shall be deemed to have occurred in the State of Texas.
U.S. Government restricted rights:
This Website and the Materials are provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Use of this Website or the Materials by the Government constitutes acknowledgement of our proprietary rights in this Website and the Materials.
Wildway, LLC is a Texas corporation with offices located at 10203 Kotzebue St. #115 San Antonio, TX 78217.
STANDARD TERMS AND CONDITIONS OF PURCHASE
1. Offer and Acceptance: Wildway hereby offers to purchase from Seller the Products and/or Services described on the face of the Purchase Order subject to these Standard Terms and Conditions. These Standard Terms and Conditions, together with the information contained on the face of the Purchase Order, and any attachments and exhibits, including any Specifications and SOW, whether physically attached or expressly incorporated by reference (collectively the “Purchase Order”), constitutes the entire agreement between Wildway and Seller with respect to the subject matter of the Purchase Order. Any term or condition different from or in addition to the terms of the Purchase Order, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence of Seller, irrespective of the timing, shall not form a part of the Purchase Order and is hereby expressly rejected, even if Seller purports to condition its acceptance of the Purchase Order on Wildway’s agreement to such different or additional term or condition. Seller’s acceptance of the Purchase Order or commencement of performance of the Purchase Order (including, commencement of Services, the making or delivery of Products or ordering of materials), whichever occurs first, shall constitute Seller’s acceptance of the Purchase Order.
2. Definitions: Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in Section 19 below.
3. Price and Payment Terms: (a) The price payable by Wildway for the Products and/or Services is the price for the Products and/or Services appearing on the face of the Purchase Oder. If no price appears on the face of the Purchase Order, the price for the Products and/or Services shall be the price from the most recent order between Wildway and Seller, if any, and shall not be higher than that last quoted by Seller. The price is not subject to increase. Seller warrants that any prices, rates, discounts and allowances on the Products and/or Services are not less favorable than the lowest price currently extended to any other customer of Seller for the same or like Products in equal or lower quantities and/or for the same or like Services. Seller agrees to reduce prices or increase discounts and allowances, prospectively in the event of any general price reduction or cost reduction and retroactively in the event that more favorable terms have been made available to other customers of Seller during the term of the Purchase Order. (b) Unless otherwise specified in the Purchase Order, the price for the Products and/or Services includes all taxes and other charges such as packaging, shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges. (c) Seller represents and warrants to Wildway that the price for the Products and/or Services and all terms of purchase and any allowances made available to Wildway under the Purchase Order comply (and will comply) with all Applicable Law, including the Robinson-Patman Act and the U.S. Foreign Corrupt Practices Act. (d) Wildway will pay Seller the price for the Products and/or Services in accordance with the payment terms set forth in the Purchase Order following the latest to occur of: (i) the Delivery Date(s); (ii) the date of Wildway’s acceptance of all of the Products and/or Services; or (iii) 60 days after Wildway’s receipt of a properly prepared invoice, unless Wildway elects to remit payment of a properly prepared invoice within 10 days after Wildway's receipt of such properly prepared invoice wereby Wildway shall receive a 2% discount on the invoice amount and Wildway's payment shall reflect such reduced amount. A properly prepared invoice must include the Purchase Order number and, if required in the Purchase Order, Seller’s certification of conformance of the Products and/or Services to the Specifications. Unless otherwise specified on the face of the Purchase Order, payment will be in the currency of the country in which the Wildway entity identified in the Purchase Order is located, and if the price set forth in the Purchase Order is not in the local currency, then Wildway will determine the local currency equivalent of the price as of date of payment. Wildway may, at any time, set-off any amounts Seller owes Wildway against any amounts Wildway owes to Seller or any of its affiliated companies.
4. Delivery and Risk of Loss: (a) Unless otherwise expressly instructed by Wildway, Seller will deliver all Products to Wildway’s facility at the address set forth in the Purchase Order. Shipping terms are F.O.B. Wildway’s facility per UCC (or DAP Wildway’s facility per INCOTERMS 2010 for international shipments). Seller assumes responsibility for all shipping and delivery charges including customs, duties, costs, taxes and insurance. The method of shipment shall be in accordance with the Purchase Order or, if the Purchase Order is silent on the method of shipment, as selected by Wildway. Title to the Products and risk of loss thereof shall remain with Seller until acceptance by Wildway. (b) Seller will preserve, pack, package and handle the Products so as to protect the Products from loss or damage and in accordance with best commercial practices in the absence of any specifications Wildway may otherwise provide. Without limiting the foregoing, Seller shall observe the requirements of any local laws and regulations relating to hazardous materials, including, without limitation, with respect to the documenting, packing, labeling, reporting, carriage and disposal thereof. (c) Seller will include with each shipment of Products an itemized packing slip identifying the Purchase Order number, the part number (if applicable) for each of the Products, the quantity and a description of each of the Products, and the date of shipment.
5. Time is of the Essence: (a) Time is of the essence; Wildway’s schedules are based upon Seller’s performance of its obligations under the Purchase Order, including delivery of the Products to Wildway and/or completion of the Services by the Delivery Date(s). Seller shall immediately notify Wildway upon knowing or suspecting that Seller will not be able to deliver the Products and/or complete the Services by the Delivery Date(s), shall state the reason for such failure and shall provide a new Delivery Date(s); provided, however, in the absence of Wildway’s written consent, receipt of Seller’s notice shall not constitute Wildway’s waiver of Seller’s obligations to deliver the Products
and/or complete the Services by the Delivery Date(s) specified in the Purchase Order. (b) If the Products are not delivered and/ or the Services are not completed by the Delivery Date(s) specified in the Purchase Order, Wildway may, without liability and in addition to its other remedies, cancel the Purchase Order as to the non-conforming Products not yet delivered and/or non-conforming Services not yet completed, purchase substitute items or services elsewhere and charge Seller for any loss incurred, and/or reject such Products and/or Services. Wildway’s acceptance of non-conforming Products and/or Services shall not be deemed a waiver by Wildway of its rights or remedies hereunder. (c) Products shipped to Wildway in advance of the Delivery Date(s) may, at Wildway’s sole discretion, be rejected or returned to Seller at Seller’s expense. Any provision herein for delivery of Products by installment shall not be construed as rendering the obligations of the Seller severable. (d) Wildway will hold any rejected Products at Seller’s sole risk and expense, including storage charges, while awaiting Seller’s return shipping instructions. Seller will bear all return shipping charges, including insurance charges Wildway incurs on Seller’s behalf. Wildway may, in its sole discretion, destroy or sell at a public or private sale any rejected Products for which Wildway does not receive return shipping instructions within a reasonable time (which shall be not more than two days from Seller’s receipt of Wildway’s notice of rejection), and apply the proceeds, if any, first toward any storage charges.
6. Inspection and Rejection: (a) All Products and/or Services (whether or not paid for, partially paid for or fully paid for) are subject to inspection, testing and approval by Wildway at any place that Wildway may reasonably designate before Wildway’s acceptance. Wildway shall have the opportunity to conduct adequate tests to determine whether or not the Products and/or Services conform to the Specifications. Wildway shall have the right to inspect or to be present at any test performed on any Products prior to shipment but no such inspection or observation of any test shall constitute acceptance of the Products or vary Wildway’s right to conduct tests upon and after delivery of the Products. Payment for any Products and/or Services prior to Wildway’s timely rejection of such Products and/or Services as non-conforming will not be deemed to constitute Wildway’s acceptance of the Products and/or Services. (b) If the Purchase Order covers the design and/or construction of Products by Seller, Wildway’s review or approval of Seller’s designs, drawings or other material shall not relieve Seller of responsibility for errors in design, construction, or performance, nor constitute a waiver of Seller’s responsibility for complying with any of the Specifications and other conditions of the Purchase Order. (c) In addition to any other rights it may have, Wildway expressly reserves the right, without liability hereunder, to refuse acceptance of and/or reject any Product and/or Service that (i) does not conform in all respects to (A) any instructions contained in or the terms and conditions of the Purchase Order, (B) the Specifications or (C) the warranties contained herein and, if broader, any other warranties made by Seller with respect to the Product and/or Service, notwithstanding Wildway’s knowledge of a non-conformity, its substantiality or the cause of its discovery, (ii) are in excess of the quantities requested in the Purchase Order, or (iii) violate Applicable Law. (d) At Wildway’s option, Wildway may (i) return non-conforming Product to Seller for a full refund or credit; (ii) require Seller to replace the non-conforming Product with conforming Product and/or re-perform the Service at no additional cost to Wildway; (iii) require Seller to repair the non-conforming Product so that it meets the applicable requirements (including those set forth in the Specifications); or (iv) accept the non-conforming Product and/or Service subject to receipt of a refund or credit in an amount Wildway reasonably determines to represent the diminished value of the non-conforming Product and/or Service. Products and/or Services corrected or replaced by Seller shall be subject to all of the provisions of the Purchase Order in the manner and to the same extent as Products and/or Services originally furnished under the Purchase Order.
7. Services: If the Purchase Order covers the performance of Services for Wildway or involves operations by Seller on the premises of Wildway, Seller shall take all necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work and except to the extent that such injury is due solely and directly to Wildway’s negligence shall indemnify and protect Wildway against all liability, claims or demands for injuries or damages to any person or property growing out of the performance of the Purchase Order including the cost of defending against any such claim.
8. Representations and Warranties: (a) Seller represents and warrants that, as of the date of the Purchase Order and each Delivery Date(s): (i) (A) it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order; (B) it has the right and unrestricted ability to assign the Products and/or Services, together with any associated Intellectual Property Rights to Wildway including, the right to assign any Products performed by Seller Personnel; (C) the Products and/or Services, inclusive of any associated Intellectual Property Rights and Wildway's use thereof, do not and shall not infringe upon any third party’s Intellectual Property Rights or any other proprietary rights, whether contractual, statutory or common law; and (D) Seller will not disclose to Wildway, bring onto Wildway’s premises, or cause Wildway to use any confidential or proprietary information that belongs to anyone other than Wildway or Seller which is not covered by a non-disclosure agreement between Wildway and Seller; (ii) the Products and/or Services (A), if intended for human consumption, are fit for human consumption, are of good quality, including good taste, texture, smell and coloring, and are in compliance with all applicable Kosher requirements; (B) conform in all respects to the applicable Specifications and to recognized commercial standards of quality and function; (C) are free from defects including among others in design, material and workmanship; (D) are fit for their intended purposes and use by Wildway and are merchantable; (E) were not produced and do not contain materials or ingredients which were produced using human trafficking or slavery; and all materials and ingredients incorporated therein comply with all laws, rules and regulations regarding human trafficking and slavery of the country or countries in which Seller or Seller’s suppliers conduct business; and (F), in their final form and at all stages of production, comply with all Applicable Law including the Federal Food, Drug and Cosmetics Act, and all federal state, and local requirements such as those of the U.S. Department of Agriculture, U.S. Food and Drug Administration, and the Texas Department of Agriculture; (iii) Seller has and is conveying to Wildway, good and, as applicable, marketable and transferable title to all Products, free and clear of any encumbrances, or deliverables resulting from the Services, provided hereunder, free from all liens and encumbrances; (iv) Seller’s provision of the Products and/or Services, including the production of all Products and the performance of all Services, complies and will comply with all Applicable Law, including the Fair Labor Standards Act (including Sections 6.7 and 12 thereof and the regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof), The Occupational Safety and Health Act, the Toxic Substances Control Act (including the requirement that every chemical substance delivered appear on the list of chemical substances as compiled by the Environmental Protection Agency or have been submitted by Seller for inclusion on such list), Executive Order 11246 (including promptly supplying Wildway with all certifications required thereunder upon request), the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, Section 503 of the Rehabilitation Act of 1973, and all standards and regulations issued under any of the foregoing; and (v) it shall perform the Services in a professional manner in accordance with applicable industry standards except to the extent a higher standard is specified in the Purchase Order or the applicable SOW in which case the higher standard shall apply. (b) ANY CONTRARY TERMS AND CONDITIONS OR OTHER ATTEMPTS BY SELLER TO DISCLAIM ANY SELLER WARRANTY, EXPRESS OR IMPLIED, PROVIDED UNDER THE UCC OR OTHERWISE, SHALL BE NULL AND VOID AND OF NO FORCE OR EFFECT WHATSOEVER. (c) Seller agrees that the warranties
contained herein shall: (i) be in addition to, but not limited by, any other warranties of Seller, or any manufacturers’ warranties, either express or implied by law, (ii) survive acceptance and payment by Wildway; and (iii) continue for the longest of (A) the period provided by Applicable Law, (B) 12 months from the date of acceptance by Wildway of the Products and/or Services or (C) the guarantee period (or comparable terminology) set forth in the Purchase Order or the Specifications. (d) In addition to any other rights and remedies to which Wildway may be entitled, during the period ending 12 months following Wildway’s acceptance of any Product, if Wildway shall discover that the Product is nonconforming or defective or otherwise not as warranted: (i) and such non-conformity or defect is discovered after installation, Seller shall pay the cost of removal and replacement with the proper Product plus the cost of making good all work damaged or destroyed by or as a result of the non-conforming or defective Product or the removal or replacement of same; and (ii) Seller shall pay all costs arising from repairing or replacing the non- conformity or defect and putting the Product once again into operation, or, if the Product forms part of a larger object, putting the larger object once again into operation; and if the non-conforming or defective Product forms part of a larger object, the 12- month period shall commence upon delivery of that larger object and incorporation of the Product into the larger object, irrespective of the party by whom the remaining part of that object was manufactured or delivered. Upon delivery of the replaced or repaired Product pursuant to subsection (d)(i) preceding, and from the time when the object is once again put into operation pursuant to subsection (d)(ii) preceding, the term of the relevant warranty shall commence anew.
9. Intellectual Property: (a) Except as provided in subsection (b) hereof, Wildway is and shall be the sole and exclusive owner of all Products (including, all source code, technical design, graphical and interface designs, artwork, video, animation, data/content, database schema, format, documentation and other materials developed, created or delivered under the Purchase Order) and Seller hereby irrevocably assigns and transfers to Wildway all of its rights, title and interests in and to the Products, including all associated Intellectual Property Rights therein. If Seller or any Seller Personnel is ever held or deemed to be the owner of any Product or any Intellectual Property Rights therein, Seller agrees to cause its employees to execute and deliver, all documents and perform such acts as may be requested by Wildway to perfect, protect, evidence or effectuate its rights in such Products and all associated Intellectual Property Rights therein, and to otherwise implement and confirm the letter and intent of this Section 9. (b) Each party owns all rights, title, and interests in and to any of its Preexisting Materials. Seller hereby grants Wildway a perpetual, irrevocable, worldwide, transferable, royalty-free, nonexclusive license, with the right to sublicense and to grant sublicenses, to use and reproduce Seller's Preexisting Materials contained in the Products, together with any new feature of design or improvement thereto. Unless otherwise specified in a SOW, Seller shall provide or cause to be provided to Wildway a perpetual, irrevocable, worldwide, transferable, royalty-free, nonexclusive license, with the right to sublicense and to grant sublicenses, to use and reproduce all third party Intellectual Property Rights incorporated into, required to use, or delivered with the Products. (c) If a third party enjoins or interferes with Wildway’s use of any Product, then in addition to Seller’s obligations under subsection (a) of Section 16 below, Seller will use its best efforts to (i) obtain any licenses necessary to permit Wildway to continue to use the Product, including all associated Intellectual Property Rights; and (ii) replace or modify the Product as necessary to permit Wildway to continue to use the Product, including all associated Intellectual Property Rights; or if (c)(i) and (c)(ii) are not commercially reasonable, then (iii) promptly refund to Wildway the amount paid for any Product, including all associated Intellectual Property Rights, the use of which has been enjoined or interfered with by a third party. (d) Seller shall not sell or distribute in any manner whatsoever to persons other than Wildway or parties designated in writing by a duly authorized officer of Wildway any Products, including all associated Intellectual Property Rights, which in any way bear Wildway logos, trade names, trademarks or labels, even if the Products were rejected by Wildway as non-conforming.
10. Precision Products: (a) All Precision Products are and will continue to be Wildway's property. Seller will keep all Precision Products segregated and clearly marked, and Seller will maintain a complete inventory thereof. (b) Seller shall retain all Precision Products at its own risk. Seller shall insure such Precision Products against all risks as long as they are in Seller’s actual or constructive possession. Seller shall deliver all Precision Products in a proper condition to Wildway simultaneously with the delivery of the last Product covered by the Purchase Order, unless Wildway instructs otherwise in writing. (c) Seller shall not directly or indirectly infringe or permit the infringement of the Intellectual Property Rights of Wildway or any other person in respect of any Precision Products. In particular, Seller shall not without Wildway’s prior written consent use, or authorize or knowingly allow any third parties to use, any Precision Products in connection with or for any purpose other than the delivery of the Products and/or Services to Wildway.
11. Changes: Wildway shall have the right at any time to make changes to the Purchase Order, the applicable SOW or both. If any such changes cause an increase (or decrease) in the cost or the time required for performance of the Purchase Order or the SOW, an equitable adjustment shall be made and the Purchase Order or the SOW shall be modified in a writing signed by Wildway and Seller to reflect such changes. Seller agrees to accept any such changes to the Purchase Order, the SOW or both. Nothing contained in this Section 11 shall relieve Seller from proceeding without delay in the performance of the Purchase Order and, if applicable, the SOW in accordance with such change order.
12. Assignment, Subcontracting and Beneficiaries: (a) Seller may not assign any of its rights or delegate any of its obligations under the Purchase Order without Wildway’s prior written consent. (b) Without limiting the foregoing, Seller may not subcontract any of its rights or obligations under the Purchase Order without Wildway’s prior written consent. If Wildway consents to the use of a Subcontractor, Seller will: (i) guarantee and remain liable for the performance of all subcontracted obligations; (ii) indemnify Wildway for all damages and costs of any kind, incurred by Wildway or any third party and caused by the acts or omissions of any Subcontractor; and (iii) timely make all payments owing to its Subcontractors. If Seller fails to timely pay a Subcontractor for work performed, Wildway will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Seller by any amount paid to the Subcontractor. Seller will defend, indemnify and hold Wildway harmless for all damages and costs of any kind incurred by Wildway and caused by Seller’s failure to timely pay a Subcontractor. (c) The Purchase Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Purchase Order whether as a result of applicable legislation, custom or otherwise.
13. Confidential Information; Duty Not to Disclose: Seller agrees that it shall not use or disclose, or permit the use or disclosure of, Wildway Confidential Information, except in the course of its performance of the Purchase Order. All use or disclosure of Wildway Confidential Information shall be for the sole and exclusive benefit of Wildway. Seller shall obtain Wildway’s written consent prior to any publication, presentation, public announcement or press release concerning its relationship as a Seller to Wildway.
14. Termination/Cancellation: In the event of Seller’s breach of any provision of the Purchase Order, the
applicable SOW or both, Wildway shall have the right to cancel the Purchase Order and the applicable SOW at any time without liability. Wildway shall also have the right to cancel all or part of the Purchase Order or the applicable SOW, or both, without cause, at any time by written notice. Upon receipt of any notice of cancellation, Seller will inform Wildway of the status of all Products and/or Services as of the date of the notice, and Wildway will pay Seller for all Products and/or Services performed and accepted through the effective date of the cancellation. Wildway will have no further payment obligation in connection with any cancellation.
15. Security Interest of Wildway: Seller grants to Wildway a security interest, to the extent any advance payment is made by Wildway, in any Products made or purchased for the Purchase Order and agrees, promptly upon request of Wildway, to sign and deliver to Wildway appropriate UCC forms evidencing such security interest.
16. Indemnification: Seller shall defend, indemnify and hold Wildway harmless from and against any and all judgments, liabilities, damages, losses, expenses and costs (including court costs and attorneys'
fees) which relate to or arise out of (a) Seller's design, manufacture, assembly, use, handling, sale or distribution of the Products sold under the Purchase Order; (b) the performance of the Purchase Order by Seller (including Seller Personnel); (c) Seller's breach of any representation, warranty or obligation under the Purchase Order; (d) Seller’s actual or threatened violation of any Applicable Law; (e) infringement of a third party’s Intellectual Property Rights or any other rights relating to or arising out of the Products and/or Services; or (f) any act, omission or negligence of Seller (including Seller Personnel) with respect to the performance of its obligations to any third party. This indemnity will survive Wildway’s acceptance of and payment for the Products and/or Services under the Purchase Order and any cancellation of the Purchase Order. This indemnity will not be limited in any manner whatsoever by insurance coverage maintained by Seller. Nothing in this Section 16 shall limit any other remedy of Wildway.
17. Liability: (a) NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER OR OTHERWISE, WILDWAY WILL NOT BE LIABLE TO SELLER WITH RESPECT TO THE SUBJECT MATTER OF THE PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNT WILDWAY PAID TO SELLER FOR PRODUCTS AND/OR SERVICES ACCEPTED IN THE SIX MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY. (b) IN NO EVENT WILL WILDWAY BE LIABLE TO SELLER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT WILDWAY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. (c) THE LIMITATIONS OF LIABILITY CONTAINED HEREIN WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED
HEREIN. NOTHING IN THE PURCHASE ORDER LIMITS EITHER PARTY'S LIABILITY FOR DEATH OR BODILY INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
18. Insurance. (a) Seller shall, at its own expense, secure and maintain throughout the term of the Purchase Order, insurance coverage in amounts not less than the following: (i) Workers’ Compensation and Employer’s Liability Insurance in full compliance with Applicable Law. The limits of liability of Workers’ Compensation Insurance shall be not less than the limits required by Applicable Law. The Employer’s Liability Insurance shall have minimum limits of $100,000 per employee by accident/$100,000 per employee by disease/$100,000 policy limit by disease (or, if higher, the policy limits required by Applicable Law); (ii) Commercial General Liability Insurance (including coverage for Contractual Liability assumed by Seller under this Agreement, Premises-Operations, Completed Operations- Products and Independent Contractors) providing coverage for bodily injury, personal injury and property damage with limits of not less than $5,000,000 per occurrence. This coverage may be provided with a combination of primary (not less than $1,000,000 per occurrence) and excess insurance policies; and (iii) Commercial Business Automobile Liability Insurance including coverage for all owned, non-owned, leased, and hired vehicles, providing coverage for bodily injury and property damage liability with combined single limits of not less than $1,000,000 per occurrence, unless a greater amount is required by Applicable Law. (b) Seller shall further secure and maintain throughout the term of the Purchase Order such additional types and limits of insurance as is customary for a company of similar size and similar operations to Seller in the jurisdiction or jurisdictions in which Seller’s operations take place, including: (i) Professional Liability (also known as Errors and Omissions Liability) and Cyber Risk Insurance covering acts, errors and omissions arising of Seller’s operations or the Products and/or Services in any amount not less than $5,000,000 per occurrence; (ii) All-risk property insurance covering loss or damage to Seller-owned or -leased equipment and other tangible assets used to provide the Products and/or Services in an amount not less than the full replacement cost of such equipment and assets; and (iii) Insurance required by contractors or general contractor documents, each such policy to be in the amount stipulated in the general contractor documents. (c) Seller shall provide Wildway certificates of insurance setting forth the coverage as required above, together with the insurance company’s name, policy number and expiration dates of insurance. Seller shall add Wildway as an additional insured on its Commercial General Liability policy and such coverage shall be primary and non-contributory to any applicable coverage carried by Seller. Wildway shall be given not less than 30 days prior written notice of cancellation, reduction or non-renewal of any policy of insurance required hereunder. Failure of Seller to provide the certificates referenced hereunder, or failure of Wildway to hereafter specifically request such certificates, shall in no way limit or release Seller of its obligations or liability hereunder. Seller’s obligation to provide the insurance specified herein shall not limit or expand in any way obligation or liability of Seller under the Purchase Order. Seller waives its right of subrogation against Wildway.
19. General. (a) Notwithstanding the expiration or termination of the Purchase Order, any rights and obligations which by their nature extend beyond such expiration or termination shall survive the expiration or termination of the Purchase Order, including the provisions of Sections 9, 13, 14, 15, 16, 17 and this Section 19. (b) The Purchase Order will be construed in accordance with, and all disputes will be governed by, the laws of the State of New York, United States of America, without regard to its conflict of laws principles or rules. Seller irrevocably consents to the personal jurisdiction of the state and federal courts in and for Albany County, New York, and irrevocably waives any claim it may have that any proceedings brought in such courts have been brought in an inconvenient forum. The English language version of the Purchase Order shall govern and control any translation of the Purchase Order into any other language. The parties specifically waive application of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The word “including” shall mean including without limitation. (c) Any notice to be given under the Purchase Order will be in writing and addressed to the party at the address stated in the front of the Purchase Order. Notices will be deemed given and effective (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by facsimile or electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within five days of deposit in the mail. (d) If any court of competent jurisdiction holds that any provision of the Purchase Order is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the Purchase Order will not be affected or impaired, and all remaining terms of the Purchase Order remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties. (e) No course of dealing or failure by either party to strictly enforce any term, right or condition of the Purchase Order will be construed as a waiver thereof. Any purported waiver by either party will only be enforceable if in writing signed by such party, and will not be deemed to waive any later breach of the same or any other term, right or condition. The Purchase Order and applicable SOW may not be amended except by written agreement of Seller and Wildway expressly referring thereto. (f) All capitalized terms used in this Agreement, to the extent not defined elsewhere in the Agreement, shall have the following meanings: “Applicable Law” means any statute, law, ordinance, rule or regulation promulgated by any federal, state, local or foreign government or court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority. “Wildway” means Wildway, LLC, a Texas limited liability company, and each of its parent, subsidiaries and affiliates (which shall include any corporation or entity which, directly or indirectly, controls, is controlled by or is under common control with, Wildway, LLC), and each of their respective successors and assigns, individually and collectively. “Wildway Confidential Information” means Wildway’s commercial, business and/or technical information, such as its business plans (including, its contemplated future business and prospects), operations, specifications, formulas, processes, methods, inventions, concepts, ideas, applications, ingredients, recipes, know-how, discoveries, technology, intended use or sale of products, capabilities, systems, pricing, controls, standards, customers, suppliers and any other information that Wildway regards as confidential, proprietary or private in nature, all of which is the valuable property of Wildway, including Wildway’s trade secrets and certain proprietary, technical and business information furnished to Wildway by third parties on a confidential basis. Wildway Confidential Information includes all Wildway Confidential Information to which Seller may become privy, whether in writing, oral, by visual observation, or any other form, even if not marked as confidential, restricted, proprietary or other similar designation. Wildway Confidential Information supplied by Wildway to Seller prior to the issuance of the Purchase Order shall be considered in the same manner and be subject to the same treatment as the Wildway Confidential Information made available after the issuance of the Purchase Order. Wildway Confidential Information shall not include information that (a) was in Seller’s lawful possession prior to its receipt of the same from Wildway and is not otherwise subject to non-disclosure or agreement of confidentiality; (b) is now or becomes available to the public through no illegal or unauthorized act or omission on the part of Seller or Seller Personnel; (c) was received by Seller without restriction from a third party who was lawfully in possession of such information and who was not in breach of any agreement or any confidential relationship, direct or indirect, with Wildway; or (d) is or was independently developed by Seller Personnel to whom Wildway Confidential Information was not divulged or available. “Delivery Date(s)” means the date or dates specified in the Purchase Order by which the Seller is required to deliver the Products and/or complete performance of the Services. “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including moral rights and mask works, and all derivative works thereof; (ii) trademark, service mark and trade name rights and similar rights;
(iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing). “Precision Products” means any and all models, stamps, drawings, forms, molds and/or other precision products, including parts and auxiliary parts delivered by Wildway to Seller in connection with the Purchase Order, or manufactured or bought by Seller on behalf and for account of Wildway. “Preexisting Materials” means any Intellectual Property Rights or tangible personal property of Seller or Wildway created before the date of the Purchase Order or outside the scope of the Purchase Order. “Products” means, individually and collectively, all materials, supplies, equipment, parts, accessories, ingredients, drawings, designs (including calculations, models and molds) and other items specified in the Purchase Order to be sold or leased to Wildway and, unless the context otherwise requires, installation and other Services related to the Products which Seller has agreed to provide. “Seller” means the seller identified in the Purchase Order. “Seller Personnel” means Seller’s employees, consultants, agents, independent contractors and Subcontractors. “Services” means, individually and collectively, the services that Seller is to perform for Wildway specified in the Purchase Order, together with all deliverables resulting from the Services provided, and including any installation services related to the Products which Seller has agreed to provide. “Specifications” means any and all specifications, drawings, samples, models, diagrams, bulletins, engineering sheets, guarantees, warranties and other materials or performance criteria describing or detailing applicable requirements or attributes of and relating to the Products and/or Services, including Seller’s quotation or proposal, and Seller’s brochures or catalogs. “Statement of Work” or “SOW” means the document specifying, without limitation, the scope, objective and/or time frame of the Products and/or Services that Seller will provide to or perform for Wildway; if there is a conflict between the terms of the Purchase Order and those set forth in an SOW the conflict will be resolved in favor of the Purchase Order. “Subcontractor” means a third party performing work under an agreement with Seller. “UCC” means the New York Uniform Commercial Code
TERMS AND CONDITIONS OF SALE
1. Terms and Conditions: These Terms and Conditions of Sale (“Terms”) shall apply to the sale of Products by Wildway to Customer. These Terms constitute the agreement between Wildway and Customer with respect to Customer’s purchase and Wildway’s sale of Products, to the exclusion of any pre-printed or contrary terms of any purchase order (or similar document) and supersedes and cancels any prior discussions, understandings or representations between Wildway and Customer. No addition to or modification of these Terms shall be binding upon Wildway unless expressly agreed to by Wildway in writing, and, if these Terms are deemed an offer, acceptance is expressly limited to these Terms.
2. Definitions: Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in Section 19 below
3. Purchase Orders: Customer will purchase Products from Wildway by submitting a written purchase order to Wildway; such purchase order is subject to acceptance by Wildway (a “Purchase Order”). These Terms will apply to the Purchase Order and supersede any different or additional terms on Customer’s purchase orders. Purchase orders issued by Customer to Wildway are solely for the purpose of requesting delivery dates and quantities, specifying the ship-to and bill-to addresses, and specifying the applicable price for each Product; all other terms on such purchase order shall have no force or effect. The Purchase Order is subject to acceptance by Wildway (which acceptance may be evidenced by Wildway’s shipment of Product). If a Purchase Order exceeds Wildway’s inventory, Wildway may allocate available inventory in Wildway’s discretion, without liability to Customer or any third party.
4. Purchase Price and Payment: The purchase price payable with respect to any Products purchased by Buyer shall be Wildway’s purchase price for such Products in effect at the time of shipment (the “Purchase Price”). Customer shall be responsible for the payment of all taxes, withholding, duties and other governmental assessments upon or with respect to the sale, purchase, use, receipt or shipment of Products (other than taxes based solely on Wildway’s net income), including, without limitation, sales or use tax or similar taxes, provided that Wildway will not invoice Customer for taxes to the extent Customer has provided Wildway with evidence that Customer is exempt from paying and/or Wildway is exempt from collecting such tax. The Purchase Price shall be paid in U.S. Dollars. Customer shall pay all amounts invoiced within 15 days from invoice date, unless Wildway at any time determines that Customer's credit is not satisfactory, in which case payment terms shall be C.O.D. Wildway shall not invoice for Product before the actual date of shipment of the applicable Products. All sums not paid when due will accrue interest daily at the lesser of an annual rate of 18% or the highest rate permissible by law on the unpaid balance until paid in full. Customer shall have no right to offset or deduct any amount from the amounts owed to Wildway. In any action by Wildway to enforce its right to payment, Wildway shall be entitled to recover its reasonable attorneys’ fees, costs or other expenses to the extent it is the prevailing party.
5. Promotions: Notwithstanding anything to the contrary set forth herein or in any Purchase Order submitted by Customer, manufacturer discounts or other promotional pricing, allowances or other terms (the “Promotional Terms”), if any, relating to Products shall be strictly based upon the types and quantities of Product to which such Promotional Terms are stated to apply as set forth in the Purchase Order. No modification of any such Promotional Terms, or the types or quantities of Product to which they apply, shall be effective unless expressly agreed to in writing by Wildway. Any promotions, discounts, or other allowances offered by Customer to its customers on types or quantities of Product in excess of those set forth in the Purchase Order as accepted by Wildway shall be Customer’s sole responsibility.
6. Production; Shipping; Title and Risk of Loss: Wildway reserves the right to produce and ship all or any portion of the Products specified in any Purchase Order from any one or more of its plants or facilities; and, subject to these Terms, Wildway shall use its reasonable commercial efforts to fill promptly (by full or partial shipment) Customer’s Purchase Order, insofar as practical and consistent with Wildway’s then-current lead-time schedule, shipping schedule, access to supplies on acceptable terms and allocation of available Products and capacity among Wildway’s customers; each partial shipment shall be deemed a separate sale and may be invoiced upon such shipment. Customer may not decrease, reschedule or cancel any Purchase Order. Before or upon tender of delivery of Products, Customer will provide Wildway with immediate telephone or e-mail notification of any alleged Product nonconformity, including any shortage or other discrepancy or situation which Customer believes may impair the value of the Products or justify payment of less than the amount invoiced for such Products. If notice is not so made within 24 hours after tender of delivery of Products, then Customer shall be deemed to have accepted the Products as conforming in all respects and will submit to Wildway full payment therefor on or before the date set forth in Section 4 above. Within five (5) days after any such telephonic or e-mail notice described above, Customer will send Wildway a detailed written confirmation thereof and will attach all documents relevant thereto. Any payment for less than the amount invoiced must be authorized in advance by Wildway by assignment of a credit/claim number. The assignment of a credit/claim number shall not constitute final approval of Customer’s claim or constitute a waiver of
any of Customer’s obligations or Wildway’s rights hereunder. For Outbound Shipments. Wildway shall mark all Products for shipment to Customer’s address set forth on the Purchase Order. All Products are delivered F.O.B. Destination per UCC (or D.A.P. per INCOTERMS for international shipments) Customer’s warehouse or place of shipment specified in Customer’s Purchase Order. Customer shall include complete shipping instructions on Customer’s Purchase Order. Wildway will use its reasonable commercial efforts to comply with such instructions, provided, however, if Customer does not designate a carrier or method of shipment or Wildway determines the carrier or method of shipment specified by Customer is unavailable or Wildway reasonably determines the carrier or method of shipment is unsatisfactory for shipment of Products, Wildway may select the carrier or method of shipment. In the event of any such change, Wildway shall promptly notify Customer. Unless otherwise agreed, Wildway will be responsible for all shipping and delivery charges, including insurance to the named place of delivery, but not import customs or import taxes. Title to and risk of loss of Products shall pass to Customer at delivery. For Customer Pickup Orders. All Products are delivered F.O.B. Origin (Wildway’s applicable warehouse or place of production) per UCC. Title to and risk of loss of Products shall pass to Customer at delivery, and delivery shall mean at the time Product is placed in the possession of Customer’s carrier after loading.
7. Installments: Subject to these Terms, if the Purchase Order provides for deliveries over a period exceeding one
(1) month, Wildway shall not be obligated to deliver in any 30 day period more than approximately equal monthly quantities of Product in relation to the total amount of Products requested in the Purchase Order, and Wildway may make shipments of the total amount of Product ordered in such equal monthly quantities. Any failure by Wildway to ship or deliver any installment when due will not be deemed to substantially impair the value of the contract as a whole and will not constitute a breach of the contract as a whole. In the event of non-delivery of an installment by Wildway, Customer’s sole and exclusive remedy shall be limited to delivery of the Products as soon as Wildway can reasonably do so.
8. Quality Assurance: Wildway shall have no obligation to ensure that any Products purchased from Wildway meet any special quality assurance specifications and/or other requirements of Customer unless such specifications and/or other requirements are set forth in Customer’s Purchase Order and expressly agreed to in writing by Wildway.
9. Default: If Customer (a) fails to furnish shipping instructions for Products within the time specified, (b) fails to order any shipment of Products within the time specified therefor, (c) fails to supply adequate credit within the time specified, (d) fails or refuses to accept any shipment of Products properly tendered, (e) fails to tender any payment when due in accordance with these Terms and the terms of the applicable invoice, (f) is determined by Wildway to be likely to default in any such payment, including without limitation if Customer is unable, or states that is unable, to pay its debts as and when they become due or where a receiver is appointed for all or any portion of the assets of Customer, or (g) fails in any other respect to perform its obligations in accordance with these Terms, the occurrence of any of the events specified in clauses (a) – (g) above being deemed to constitute a material breach hereof, Wildway may treat such default as (i) a total breach of the entire contract, or (ii) a breach only as to the individual shipment or installment, and, in addition to any other rights or remedies which Wildway may have at law or in equity, Wildway may (x) cancel the Purchase Order, (y) terminate the Purchase Order as to the portion thereof in default or as to any unshipped balance, or both, and/or (z) take possession of and resell, after two (2) days written notice to Customer, any of the Products which have been shipped and which Customer has wrongfully failed or refused to accept, and receive from Customer the difference between the Purchase Price with respect to such Products and the price obtained on resale (if less), as well as any incidental costs and expenses incurred by Wildway. All rights and remedies of Wildway shall be cumulative and not exclusive of any other rights or remedies which Wildway would otherwise have at law or in equity. Customer shall cooperate with Wildway in Wildway’s enforcement of its rights and remedies hereunder, including granting Wildway access to Customer’s facilities for the purpose or retaking possession of any Products that are the subject of a default, and shall indemnify Wildway for all costs and expenses incurred by Wildway in connection with the repossession, transport and/or disposal of any Products that perish, become damaged or tainted, or otherwise become unsalable as a direct or indirect result of Customer being unable or unwilling to accept delivery of such Products.
10. Descriptions and Specifications; Samples: To the extent permitted by applicable law, all descriptive specifications and other data furnished by Wildway or otherwise contained in catalogues or other advertising materials are approximate only and are intended to be merely a general description of Products and are not incorporated by reference into any agreement between Wildway and Customer, under these Terms or otherwise. To the extent permitted by applicable law, any sample, description or visual representation or details of Product provided by Wildway to Customer are representative only, and the actual Product delivered may differ, provided such differences are not materially adverse to Customer, as reasonably determined by Wildway.
11. Limited Warranty; Limitation of Liability: Wildway represents and warrants to Customer that (a) Wildway has the right to convey good title to Products, and (b) upon original shipment by Wildway, the Products shall be free from defects in materials and workmanship. EXCEPT AS EXPRESSLY SET FORTH IN THE IMMEDIATELY
PRECEDING SENTENCE, WILDWAY HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT SHALL WILDWAY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL OR INDIRECT DAMAGES WHATSOEVER INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, LOST PROFITS, DAMAGE TO GOODWILL OR REPUTATION, BUSINESS INTERRUPTION, OTHER INDIRECT PECUNIARY LOSS OR OTHER INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE, FAILURE TO WARN OR STRICT LIABILITY), CONTRIBUTION, INDEMNITY, SUBROGATION OR OTHERWISE, EVEN IF WILDWAY HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. CUSTOMER ASSUMES ALL RISKS AND LIABILITIES FOR ANY LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY RESULTING FROM THE USE OR SUBSEQUENT SALE OF THE PRODUCTS, EITHER ALONE OR IN COMBINATION WITH OTHER PRODUCTS.
12. Exclusive Remedy: Customer’s exclusive remedy and Wildway’s sole liability for shipment of nonconforming Product, including for breach of the limited warranty set forth in Section 11 above, is expressly limited to a refund of the Purchase Price paid by Customer with respect to such nonconforming Product. All nonconforming Product, at Wildway’s option, shall be either (x) returned to Wildway, at Wildway’s expense, or (y) disposed of by Customer in a manner mutually acceptable to Wildway and Customer with all reasonable costs of disposition to be paid by Wildway. Customer shall not return or dispose of any Product except upon receipt of, and in accordance with, instructions provided by Wildway. Customer shall properly store all such Product in accordance with industry standards while awaiting such instructions from Wildway. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE REMEDIES GRANTED TO IT HEREUNDER ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO ANY CLAIM BY CUSTOMER IN CONNECTION WITH OR RELATING TO THE PRODUCTS.
13. Force Majeure: Wildway shall not be liable to Customer for, and shall not be deemed to have breached these Terms in the event of, any failure or delay in performance when such failure or delay is caused by conditions beyond Wildway’s reasonable control, including without limitation war, strike, labor dispute, fire, flood, earthquake, tornado, hurricane, government action or intervention, embargo or blockade, explosion, terrorist threats or acts, civil unrest, shortage of raw materials, breakdown, shortage or non-availability of transportation facilities or equipment or any other national or regional emergency or act of God. If Wildway declares a force majeure event hereunder, the applicable Purchase Order shall continue in effect for a period of 60 days from such declaration. After the expiration of such 60 day period, Wildway may cancel any unperformed portion of the Purchase Order upon written notice to Customer without liability to Customer.
14. Termination of Purchase Order: Upon any termination of a Purchase Order or any part thereof by Wildway in accordance with these Terms, Customer shall be deemed to have waived all claims for damages related to such termination, including without limitation any loss of anticipated profits, and to accept as its sole remedy for termination the reasonable additional costs of obtaining substitute goods of comparable quantity and quality, provided such costs do not exceed the aggregate applicable Purchase Order Purchase Price. Any claim for adjustment not asserted within 60 days from the date of such termination shall be deemed to have been waived by Customer.
15. Confidential Information; Duty Note to Disclose: Customer agrees that it shall not use or disclose, or permit the use or disclosure of, Wildway Confidential Information, except as required by these Terms. All use or disclosure of Wildway Confidential Information shall be for the sole and exclusive benefit of Wildway. Customer shall obtain Wildway’s written consent prior to any publication, presentation, public announcement or press release concerning its relationship as a Customer of Wildway, and shall not disclose the terms of any Purchase Order accepted by Wildway other than to such of Customer’s employees who have a need to know such information in the ordinary course of Customer’s business.
16. Intellectual Property Rights: All Intellectual Property of either party hereto, and all modifications thereto, shall at all times be and remain the sole and exclusive property of such party, and neither these Terms nor any Purchase Order submitted by Customer hereunder shall constitute a license to either party to use or display the Intellectual Property of the other party, except to the limited extent necessary in connection with its performance under any such Purchase Order.
17. Audit Rights: Wildway may, upon at least 15 days prior written notice, inspect, or have an accountant or auditor inspect, Customer’s books and records relating to these Terms, Customer’s Purchase Orders and Customer’s compliance herewith and therewith, for up to two (2) years of prior records from the date of such audit. Any such audit will be conducted during Customer’s normal business hours and in a manner that does not interfere with Customer’s normal business operations. In the event the cost of any such audit shall exceed $2,000, Customer shall reimburse Wildway for such excess cost.
18. Export Laws: Customer acknowledges that sales of the Products may be subject to export and import control laws, restrictions and regulations imposed by the United States or other jurisdictions. Customer shall comply with all applicable export laws, restrictions and regulations of the United States, the European Union or other foreign agency or authority and agrees not to import, export or re-export, or allow the import, export or re-export of, any Product in violation of any such laws, restrictions or regulations. Customer hereby certifies to Wildway that neither it nor any of its customers is on any U.S. government restricted parties list or similar list, and shall be solely responsible for obtaining any and all necessary licenses in connection with the import, export or re-export of Products.
(a) Notwithstanding the expiration or termination of these Terms or any Purchase Order, any rights and obligations which by their nature extend beyond such expiration or termination shall survive such expiration or termination, including the provisions of Sections 9, 11, 12, 14, 15, 16, 17 and this Section 19.
(b) These Terms and the Purchase Orders will be construed in accordance with, and all disputes will be governed by, the laws of the State of Texaas, United States of America, without regard to its conflict of laws principles or rules. Customer irrevocably consents to the personal jurisdiction of the state and federal courts in and for Bexar County, Texas, and irrevocably waives any claim it may have that any proceedings brought in such courts have been brought in an inconvenient forum. The English language version of these Terms and the Purchase Orders shall govern and control any translation of these Terms and any Purchase Order into any other language. The parties specifically waive application of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The word “including” shall mean including without limitation.
(c) Any notice to be given under these Terms will be in writing and addressed to the party at the address stated in the front of the Purchase Order. Notices will be deemed given and effective (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by facsimile or electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within five days of deposit in the mail.
(d) If any court of competent jurisdiction holds that any provision of these Terms or of any Purchase Order is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of these Terms and/or of the Purchase Order will not be affected or impaired, and all remaining terms hereof or of the Purchase Order shall remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties.
(e) No course of dealing or failure by either party to strictly enforce any term, right or condition of these Terms or a Purchase Order will be construed as a waiver thereof. Any purported waiver by either party will only be enforceable if in writing signed by such party, and will not be deemed to waive any later breach of the same or any other term, right or condition. These Terms and any Purchase Order may not be amended except by written agreement of Customer and Wildway expressly referring thereto.
(f) Customer shall not assign any Purchase Order or any interest therein without Wildway’s prior written consent. Any attempted assignment in violation of the foregoing shall be void and of no force or effect, and shall entitle Wildway to cancel such Purchase Order immediately upon written notice to Customer.
(g) All capitalized terms used in these Terms, to the extent not defined elsewhere in these Terms, shall have the following meanings: “Wildway” means Wildway, LLC, a Texas limited liability company, and each of its parent, subsidiaries and affiliates (which shall include any corporation or entity which, directly or indirectly, controls, is controlled by or is under common control with, Wildway, LLC), and each of their respective successors and assigns, individually and collectively. “Wildway Confidential Information” means Wildway’s commercial, business and/or technical information, such as its business plans (including, its contemplated future business and prospects), operations, specifications, formulas, processes, methods, inventions, concepts, ideas, applications, ingredients, recipes, know-how, discoveries, technology, intended use or sale of products, capabilities, systems, pricing, controls, standards, customers, suppliers and any other information that Wildway regards as confidential, proprietary or private in nature, all of which is the valuable property of Wildway, including Wildway’s trade secrets and certain proprietary, technical and business information furnished to Wildway by third parties on a confidential basis. Wildway Confidential Information includes all Wildway Confidential Information to which Customer may become privy, whether in writing, oral, by visual observation, or any other form, even if not marked as confidential, restricted, proprietary or other similar designation. Wildway Confidential Information supplied by Wildway to Customer prior to the issuance of the Purchase Order shall be considered in the same manner and be subject to the same treatment as the Wildway Confidential Information made available after the issuance of the Purchase Order. Wildway Confidential Information shall not include information that (a) was in Customer’s lawful possession prior to its receipt of the same from Wildway and is not otherwise subject to non-disclosure or agreement of confidentiality; (b) is now or becomes available to the public through no illegal or unauthorized act or omission on the part of Customer or Customer’s employees; (c) was received by Customer without restriction from a third party who was lawfully in possession of such information and who was not in breach of any agreement or any confidential relationship, direct or indirect, with Wildway; or (d) is or was independently developed by Customer’s employee(s) to whom Wildway Confidential Information was not divulged or available. “Customer” means the Customer identified in the Purchase Order. “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including moral rights and mask works, and all derivative works thereof; (ii) trademark, service mark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing). “Products” means, individually and collectively, Wildway’s currently generally available products listed on Wildway’s then current price list or that are otherwise sold to Customer hereunder. “UCC” means the New York Uniform Commercial Code.