General Terms and Conditions of Purchase of
Wangs Alliance Corporation, effective from August 14, 2023
1. Scope of Application of these Terms and Conditions of Purchase
1.1. These General Terms and Conditions of Purchase (“Terms and Conditions”) of Wangs Alliance Corporation d/b/a WAC Lighting, Modern Forms, and/or AiSPIRE (“WAC”) shall apply in their current version to the business relationship between WAC and its suppliers/vendors (each referred to as “Supplier”), even if no explicit reference was or is made to these Terms and Conditions in any individual transaction. By entering a business relationship with WAC, including without limitation accepting or performing on any purchase order by WAC, Supplier fully agrees to these Terms and Conditions.
1.2. Other general terms and conditions of business of Supplier, regardless of type, will not apply to transactions between WAC and Supplier. WAC hereby expressly declines the application of any such other terms and conditions. Fulfilling actions or silence on the part of WAC will not lead to the application of general terms and conditions of the business of Supplier. An amendment to these Terms and Conditions will be valid only if agreed upon explicitly and in writing between Supplier and WAC on a case-by-case basis.
2. Offers to WAC
All offers submitted by Supplier to WAC will be binding on Supplier for at least three months from the date of their receipt by WAC and, regardless of the actions taken by Supplier in order to prepare and submit an offer, shall not constitute grounds for compensation or reimbursement.
3. Order Issuance and Confirmation
3.1. For purchase orders to be binding on WAC, such purchase order must be issued in writing, on a WAC corporate order form, duly signed by authorized purchase staff for WAC, or through electronic means using a standardized electronic date interface (EDI), and must include an individual WAC purchase order number.
3.2. Supplier warrants that all products/services provided to WAC shall conform to any specifications listed, or referred to by WAC in the purchase order for such products/services or otherwise. Supplier must always include any safety, storage, handling, operational, and maintenance instructions along with the products/services, without the need for WAC to request these explicitly.
3.3. Purchase orders delivered by WAC will be validly binding for Supplier without Supplier’s explicit confirmation if neither rejected nor amended by Supplier within five business days of its delivery. In the event of a rejection or an amending response from Supplier, WAC will have the right to revoke the purchase order, in whole or in part, within 21 calendar days from the delivery date of the rejection or amending response.
4. Prices and Terms of Payment
4.1. The prices agreed to by WAC and Supplier are fixed prices. Price changes will be valid only if agreed upon in writing by both parties. Prices will be the net amount payable/receivable under deduction of any potential withholding taxes or similar charges under the tax laws in force at the time of the payment, which are deemed to tax the Supplier in the jurisdiction of the Supplier. Supplier warrants that the prices charged to WAC are no higher than the prices charged to others for similar quantities under similar conditions. In the event that Supplier breaches this warranty, the prices of the products/services will be reduced accordingly, retroactively to the date of the breach. Supplier agrees that any price reduction in the products/services subsequent to the placement of the purchase order, but prior to the shipment of the products or completion of the services, will apply to the purchase order. Payment terms will be net 45 days after receipt of a complete, accurate invoice, as well as receipt of products/services by WAC. Payment shall not constitute acceptance of the products or service or impair WAC’s right of inspection and rejection.
4.2. The invoice showing all order data, as specified hereinafter, must be sent to: WAC, 44 Harbor Park Drive, Port Washington, NY 11050, USA, immediately after shipment of the products or completion of the services either in full or in part or as a collective invoice for multiple purchase orders. All invoices must contain (i) the purchase order number, (ii) an itemized description of the delivered products/services, (iii) the purchase order date and (iv) the price. Invoices that do not fulfill the requirements specified herein will not be accepted and will be considered as not submitted.
4.3. Supplier will not have the right to offset any obligations to WAC, or to withhold performance under any accepted purchase order, against other claims it may have against WAC.
4.4. Travel expenses incurred by Supplier will be reimbursed by WAC only with WAC’s prior written agreement in each case, and will be subject to the WAC travel expenses policy and delivery and acceptance of the applicable products/services.
5. Change orders, Changes by Supplier
WAC shall have the right at any time, by written change order, to make changes in any one or more of the following: quantity of goods to be delivered; method of shipping or packing; drawings, designs or specifications; place of delivery; and delivery/completion schedules for products/services. If any such change order causes an increase or decrease in the cost of or the time required for the performance of the work under the purchase order, an equitable adjustment will be made in price and/or delivery schedule, and the purchase order will be modified accordingly. Any claim by Supplier for adjustment under this clause will be deemed waived unless asserted in writing within 10 days from receipt by Supplier of notice of change. Price increases, extensions of time for delivery, and quantity change will not be binding on WAC unless memorialized in a written change order issued and signed by WAC. In the event that the any of the goods are made pursuant to specifications and/or drawings provided by WAC, Supplier shall not make any changes to the design or manufacture of the goods without obtaining the prior written consent of WAC. For all other goods purchased by WAC, Supplier shall not make any changes affecting the form, fit, function, properties, purity or any other characteristics of the goods unless Supplier obtains the prior written consent of WAC; Supplier shall notify WAC at least 60 days in advance of any other changes made to the design or manufacture of the products.
6. Delivery Dates for Products and Services
6.1. Time is of the essence. As such, stipulated delivery dates for products and services are binding fixed dates and must strictly be observed by Supplier.
6.2. Partial deliveries of products/services or early deliveries of products/services will require the explicit prior consent of WAC. WAC will not be obligated to accept the products/services in such cases. In the event of partial or early delivery, WAC will have the right to refuse acceptance of the goods, and to return them or store them with third parties at Supplier's expense. If early and/or incomplete deliveries of products/services are accepted by WAC, then the payment terms specified herein will not commence until delivery of the products and/or performance of the services is completed in full, and Supplier has provided to WAC a complete, accurate invoice.
6.3. Subject to Section 15, in the event of a delayed or incomplete delivery of any products/services, WAC will be entitled (i) to insist upon delivery of the products/services and to receive compensation from Supplier for the damage caused by the delay or (ii) to terminate the purchase order, in whole or in part, and to receive compensation from Supplier for damage caused by the delay and reimbursement from Supplier for the costs for substitute products/services. In particular, in the case of fault of Supplier, WAC will be entitled to demand payment of liquidated damages amounting to 4% of the value of the late products/services per stated week of delay, up to a maximum of 24% of the entire value of the purchase order. The aforementioned liquidated damages will be set off against any claims for damages due to late delivery and may be asserted until the agreed price has been paid in full.
6.4. WAC’s obligation to pay for products/services delivered by Supplier is limited to the lower of products/services actually delivered or the quantity of products/services set forth in this purchase order. WAC has no obligation to pay for, set aside or return products/services delivered in excess of the quantity ordered herein. In the event of an excess delivery of any products/services, WAC will be entitled:
(i) to deem such excess products/services sold by Supplier to WAC as part of the applicable purchase order, at no additional cost to WAC or (ii) return the excess products/services to Supplier at Supplier’s expense.
7. WAC Materials
All drawings, data, tools, designs, equipment, specifications, software programs and other materials and information made available by WAC (collectively the “WAC Materials”) for the performance of any assignment/purchase order by Supplier shall remain the property of WAC, must be held in the strictest confidence by Supplier, must not be reproduced or disclosed by Supplier to any third party with WAC’s prior written consent and may not be used by Supplier for advertising purposes or any purposes other than the performance of the purchase order from WAC. The WAC Materials must be returned by Supplier to WAC without undue delay and in perfect condition following performance of the purchase order, or earlier upon request by WAC. All new technology (including, but not limited to, inventions, patentable or not), new equipment or new manufacturing process resulting from the services performed by Supplier under the purchase order will be the exclusive property of WAC.
8. Performance of Services
Supplier warrants that it will provide its services in a good and workmanlike manner, to the best of its knowledge and care, and in accordance with the highest industry standards.
9. Inspection
WAC shall have the right, upon reasonable advance notice and during normal business hours, to inspect Supplier’s premises and operations which pertain to the products/services in order to ensure conformity with specifications, adequate quality control and ability to meet designated delivery and completion dates.
10. Shipping Instructions, Packing Instructions, Point of Destination, Requirements for Country of Manufacture Marking and C-TPAT
10.1. Unless otherwise agreed, all products (and all materials, parts and components incorporated herein) shipped hereunder must be in new and unused condition. In the event of product deliveries, Supplier must observe the product delivery regulations or procedures applicable at the WAC facility where delivery is made. Products must be packaged properly and in a manner appropriate for their transport and storage. Supplier will be liable for all losses incurred by Supplier or WAC as a result of improper packaging of products.
10.2. Each container must be marked to show WAC’s purchase order number and a packing sheet showing WAC’s purchase order number must be included in each container. Unless otherwise agreed, no charge will be made for cartons, wrappings, boxing, crating, delivery, insurance, drayage or other cost.
10.3. Unless otherwise specified in a purchase order, the delivery terms FOB “WAC site” pursuant to INCOTERMS 2020 shall apply for the delivery of the products and for the corresponding determination of the costs associated with such delivery. In all other respects, seller delivers the goods to a ship at a port previously agreed to by the seller and the buyer. The seller loads the goods onto the ship. The buyer then takes care of the import formalities and transportation to the final destination. For shipments requiring customs clearance, shipping papers must include all necessary documents and forms. In addition, all documents must contain the customs tariff number(s), the net weight, and the associated WAC purchase order number.
10.4. Where prepaid transportation charges are authorized by WAC, these charges must be shown separately on Supplier’s invoices and should be accompanied by the original freight bill or a copy of a bill of lading. If the inclusion of prepaid transportation charges makes it impossible for Supplier to render its invoice within 24 hours of shipment, an invoice to cover transportation charges must be sent separately and promptly thereafter. Supplier will dispatch goods for shipment by default as indicated on the transmitted purchase order or by the method advised by an authorized WAC agent.
10.5. Supplier is required to have all subassemblies and end products legibly and permanently marked with the country of manufacture in a conspicuous place, as the nature of the article will permit, in accordance with U.S. Customs regulations. Supplier is required to update WAC on any changes to country of manufacture in writing as soon as such change occurs. Any item received by WAC not properly marked may, at WAC’s option, be either rejected in whole or in part, or accepted, with WAC correcting any marking deficiencies. If WAC takes steps to correct the marking, Supplier shall reimburse WAC for any reasonable costs incurred in connection with the same.
Upon receipt of products/services, WAC will be obligated only to verify the identity of the products/services and their completeness, and to check for visible external damage. WAC explicitly reserves the right to reject products/services as defective or otherwise noncompliant with the terms of these Terms and Conditions or the applicable purchase order at any time within the warranty period specified herein. Supplier waives the right to object to the delayed reporting of defects by WAC, so long as such report is made during the warranty period.
12. Liability for Defects
12.1. Supplier will be responsible for providing products/services free of defects and in conformance with these Terms and Conditions, the applicable purchase order, and the applicable specifications. Supplier warrants that the products provided will be merchantable, fit for their intended purpose and free from defects in design, materials and workmanship. Without limiting the foregoing, Supplier shall provide all products/services based upon the technical state of the art, the use of defect-free, appropriate materials, professional implementation, appropriate and safe design, and defect-free assembly/installation.
12.2. WAC may, at its discretion, employ either a 100% inspection or sample plan. The lots which fail to pass sampling plans may be subsequently inspected by WAC or, at WAC’s discretion, rejected and/or returned for full credit, including, but not limited to, the purchase price, duties, taxes and/or freight charges incurred by WAC to land the goods.WAC will give notice of such defects as soon as they are known. Notice of any other defects will be given as soon as those are determined in the ordinary course of business. In the event defective products/services, regardless of the type and scope of the defect, are supplied to WAC by Supplier, WAC will have the right, at its discretion and within a period established by WAC, to demand from Supplier either an exchange or repair of the affected products or re-performance of the affected services, provided, however, Supplier is not permitted to issue replacements for products/services rejected without the issuance of a new purchase order by WAC, or a price reduction with respect to the affected products/services. In the event that any defects cannot be corrected, or if the remedy of any defects cannot otherwise be reasonably expected by WAC, or if an established grace period has expired without correction of any defects, then WAC also will have the right, at its discretion, to terminate the applicable purchase order, in whole or in part, and to refuse the performance of the applicable service, or to undertake remedy of the defects itself or through third parties. Supplier shall bear all costs incurred by WAC in connection with any such circumstance.
12.3. Supplier shall bear all costs related to the occurrence of a defect, the assertion of the aforementioned rights arising from defects or remedy of defects, and other costs incurred by WAC, including costs for additional inspections of the goods, identification of defects, sorting, retooling and similar costs. In the event of a justified defect complaint, WAC will charge Supplier a one-time fee for the additional expense to process the error. The amount of the fee depends on when the error is discovered: if the defectiveness of the product/service is discovered during the inspection of the incoming product/service, the administrative penalty fee will be USD$100.00; if the defectiveness of the product/service is discovered afterwards, the administrative penalty fee will be USD$250.00.
12.4. WAC shall have the right to report defects and demand the remedies provided herein, and all other remedies that may be available under applicable law, for 24 months after acceptance of the respective products/services by WAC. Such 24-month period shall recommence after any defect has been corrected with respect to the corrected portion of the products/services.
13. Liability for Losses
13.1. Supplier will be liable to WAC for performance pursuant to these Terms and Conditions and each purchase order. Supplier’s liability will not be restricted or in any manner limited unless WAC has agreed to such restriction or limitation explicitly in writing.
13.2. Supplier shall remain primarily liable to WAC for performance of all services and delivery of all products, even if services are performed or products are provided by a subcontractor. Supplier’s use of subcontractors will only be permissible in the event that the use of such subcontractor is in accordance with the agreed upon purchase order. Supplier will be liable to WAC for all losses for which Supplier, its employees or other representatives, or any subcontractor is responsible for, in whole or in part, and shall indemnify WAC from and against all such losses.
13.3. Supplier must report to WAC any defects or product characteristics that are relevant to product liability, or which appear to make a recall of any products/services supplied by Supplier from the market necessary for other reasons, as soon as they are discovered. Supplier must cooperate with WAC in preparing warning notices and/or performing recalls that involve products supplied by Supplier. Supplier shall bear all costs incurred by WAC as a result of actions taken to remove products from the market, including any costs related to a recall performed by WAC as a precautionary measure or otherwise.
13.4. Supplier shall indemnify and hold harmless WAC from and against all product liability and/or other losses incurred by WAC as a result of or relating to products and/or services provided by Supplier, including, without limitation, reimbursement of attorney’s fees and other associated costs, except to the extent that the applicable damage was caused solely by WAC
13.5. If requested by WAC, Supplier shall obtain and maintain liability insurance in types and amounts sufficient to protect against possible risk arising out of products/services provided to WAC hereunder, including product liability insurance (for personal injury, property damage, and pure economic loss) and including coverage for contractually assumed liability. At WAC’s request, Supplier shall submit appropriate evidence of insurance to WAC. WAC shall have the right to specify the minimum coverage requirements.
14. Notification of Hazardous Product
Supplier hereby agrees to notify WAC of any inherent hazard related to the goods being purchased herein that would expose the hazard during handling, transportation, storage, resale, disposal or scrap. Said notice must specify: the product name and the part number, the nature of the hazard, the appropriate Safety Data Sheet (SDS), proper precautions that must be undertaken by WAC or others and any additional information that WAC should reasonably know to protect its interest.
15. Force Majeure
15.1. If Supplier is unable to fulfill an assignment/purchase order due to a force majeure circumstance, it must notify WAC of this circumstance without undue delay, and must furnish evidence of the existence of the force majeure circumstance that is causing the inability to perform. For purposes of these Terms and Conditions, force majeure is a circumstance that is not predictable, cannot be insured against, and is outside of a party’s control.
15.2. As long as Supplier notifies of the force majeure circumstance, Supplier’s obligations that are affected by an event of force majeure will be suspended until the force majeure ceases. Supplier shall take reasonable efforts to remove the cause of any event of force majeure as soon as possible after its occurrence. If it appears that Supplier will be unable to perform for a period of more than 30 days as a result of force majeure, then WAC shall have the right to terminate the applicable purchase order upon written notice to Supplier, without Supplier being entitled to claims for damages of any kind as a result.
15.3. Should WAC be unable to accept delivery of any products/services as a result of force majeure, then WAC shall have the right to terminate the applicable purchase order upon written notice to Supplier, without Supplier being entitled to claims for damages of any kind as a result.
16. Intellectual Property Rights
16.1. All rights to and associated with WAC Materials and other information transmitted to Supplier by or on behalf of WAC, including copyrights, trademarks, patents, designs, utility models, and all other proprietary rights, as well as the right to register any of the foregoing, and all rights to and associated with all results of work performed within the scope of a purchase order from WAC, is and will remain the exclusive property of WAC.
16.2. Supplier will be liable for providing all products/services free of defects in title. Supplier warrants that all products/services, and WAC’s use thereof, do not and will not infringe or misappropriate any third-party rights. Supplier further warrants that no third-party rights to any provided products/services exist, unless otherwise contractually agreed in advance between WAC and Supplier.
16.3. Supplier shall indemnify and hold harmless WAC in the event that any third-party asserts a claim against WAC that any product/service provided by Supplier infringes or misappropriates such third party’s copyright, trademark, patent, design, utility model, or other proprietary rights, or otherwise conflicts with the rights of such third party. Supplier shall promptly assume the defense of any such claim, suit or proceeding and shall pay all costs, damages, royalties or profits which may be decreed or awarded against WAC, its subsidiaries, affiliates, agents or customers in connection therewith. Supplier shall, at its own cost and expense, either procure for WAC the right to continue using the products or services or any part thereof, or modify the products or services so that they become non-infringing, provided, however, that such modified products or services shall conform in every respect to the applicable specifications and terms and conditions of the purchase order. If neither of these alternatives is possible, then Supplier shall promptly refund to WAC the purchase price paid for such products or services. The provisions of this paragraph shall survive completion, expiration or termination of the applicable purchase order.
17. Confidentiality and Reference to WAC
17.1. Supplier agrees that it may use all WAC Materials and all commercial, technical and other confidential or proprietary information of which it becomes aware in the course of its relationship with WAC exclusively for fulfillment of the products/services ordered by WAC, that it will handle such information in the same manner as it handles its own confidential information and trade secrets, and in no event less than a reasonable standard of care; and that it will not grant access to this information to any third party. Upon the completion of each purchase order, or earlier upon request by WAC, Supplier shall, at WAC’s option, promptly return or destroy and certify that it has destroyed all written materials and any documentation containing confidential information of WAC, including copies of such materials in the possession of Supplier, regardless of whether these materials were prepared by Supplier, WAC, or a third party.
17.2. Supplier and its subcontractors are prohibited from making reference to WAC and/or using trademarks of WAC in advertising, external communication or other publications without the prior written consent of WAC.
18. Compliance
Supplier warrants that all products/services provided to WAC will be manufactured/provided in compliance with all regulations, directives, and laws applicable thereto and/or applicable at the place of delivery. Supplier will be obligated to adhere to this obligation at its own expense, and to indemnify and reimburse WAC for any damages resulting from any non-compliance with the foregoing warranty.
19. Termination
WAC may terminate the applicable purchase order, in whole or in part, at any time upon WAC’s written notice to Supplier for any reason at WAC’s convenience, for any default by Supplier hereunder (including, but not limited to, Supplier’s failure to deliver completed goods or provide services within the time specified by WAC), in the event Supplier becomes the subject of any proceeding under state or federal law for the relief of debtors or otherwise becomes insolvent or bankrupt or makes an assignment for the benefit of creditors. In the event of termination, WAC may further notify Supplier that all right, title and interest in and to all of any portion of material acquired by Supplier for the performance of the purchase order, work in process and/or completed items or work specified in such notice shall pass immediately to WAC. WAC shall have no liability to Supplier for products (whether finished or unfinished) that are not readily usable, reusable or saleable. In addition, upon termination, WAC may purchase substitute products or services elsewhere or secure the manufacture and delivery of products by contract or otherwise, and Supplier will be liable to WAC for any excess cost incurred by WAC.
20. Data Protection
Supplier will be explicitly obligated to comply with all applicable data protection laws with respect to data related to WAC and/or its employees.
21. Transfer of Rights and Obligations
21.1. Supplier will not be entitled to transfer any of its rights or obligations under these Terms and Conditions or under any purchase order to any third party without WAC`s prior written consent thereto.
21.2. WAC will be entitled to transfer any or all of its rights or obligations under these Terms and Conditions or under any assignment/purchase order at any time to an affiliated company or to a third party without obtaining Supplier`s consent or permission thereto.
22. Applicable Law and Venue
These Terms and Conditions will be interpreted, and the rights and the liabilities of the parties hereto determined, in accordance with the laws of the State of New York without regard to the conflict of law principles.
23. Supplier’s Employees
WAC assumes no liability for any bodily injury or property damages caused to a person who is not an employee of WAC that is injured while on the premises of WAC or a customer of WAC. Supplier and its employees and agents providing products or performing services hereunder are and will, at all times, remain qualified and appropriately licensed under all federal, state and local laws, rules and regulations to perform its obligations hereunder. WAC shall have the right to request the removal and replacement of any employee of Supplier providing products or services hereunder for any one of the following reasons: gross negligence; inattention to or substandard performance of the services; excessive unexcused absences from work; insubordination; failure to observe the rules of WAC or WAC’s customers while on WAC’s or their customers’ premises, respectively, and conduct constituting fraud or dishonesty. Any individual so removed will be promptly replaced by another individual possessing comparable skills, training and experience. In addition, Supplier shall notify WAC within three hours of Supplier’s termination of employment of any personnel providing services hereunder at any WAC or customer facility or site, whether voluntary or involuntary; provided, however, that Supplier shall provide reasonable prior notice of any scheduled termination or separation.
24. Notices
All notices required or permitted to be given hereunder must be in writing, and must, if not separately agreed upon differently, be delivered personally, sent by facsimile transmission or email or sent by nationally recognized overnight courier to the address listed for the recipient in the most recent assignment/purchase order issued hereunder.
25. Improper Payments, Kickbacks, Gratuities, or Gifts
In fulfilling the terms of the Purchase Order, Supplier shall not make payment of any salary, fee, commission or compensation of any kind, or grant any gift or gratuity of any kind, either directly or indirectly, to any officer, director, employee, agent or representative of WAC. In the event Supplier violates the terms of this section, then all payments due Supplier under the purchase order will be forfeited and WAC shall have the right to immediately terminate the purchase order.
26. Miscellaneous
The failure or delay of either party to exercise any right hereunder will not be deemed to be a waiver of such right in that or any future circumstance. No waiver will be effective unless in writing and signed by both parties. If any one or more of the provisions contained in these Terms and Conditions is, for any reason, held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and these Terms and Conditions will be construed as if such invalid, illegal or unenforceable provision were not contained herein. The parties are independent contractors, and are not intended and will not be deemed to be partners or joint venturers, or to have an employment or agency relationship. These Terms and Conditions, together with each purchase order accepted hereunder, constitute the entire agreement of the parties and supersede any prior Terms and Conditions.