IRONCRANE ENTERPRISE General Terms and Conditions

1.               Applicability.  

(a)             These terms and conditions (these “Terms”) are the only terms that govern the sale of the goods (“Goods”) by IronCrane Enterprise Inc. d/b/a Usonian Systems, a Nevada corporation (“Seller”) to the person or entity (“Buyer”) set forth on the accompanying purchase order attached hereto (the “Purchase Order”).

(b)            The Purchase Order and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its Purchase Order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

2.               Purchase Orders; Delivery; Shipping Terms.  

(a)             Buyer shall initiate all orders by submitting the Purchase Order (in the form attached) to Seller via facsimile, e-mail, or online submission. By submitting a Purchase Order Buyer makes an offer to purchase the Goods pursuant to the terms and conditions of these Terms, and on no other terms. Seller has the right, in its sole discretion, to accept or reject any Purchase Order. Seller may accept any Purchase Order by confirming the order (whether by written confirmation, invoice, or otherwise) or by delivering such Goods, whichever occurs first. No Purchase Order is binding on Seller unless accepted by Seller as provided in these Terms.

(b)            The Goods will be delivered within a reasonable time after Seller’s acceptance of Buyer’s Purchase Order. Seller shall make delivery in accordance with the terms on the face of the Purchase Order.

(c)             Unless otherwise set forth in a Purchase Order, all deliveries of Goods shall be Ex Works (EXW) manufacturer’s facility. The term “Ex Works” shall be construed in accordance with INCOTERMS 2010 of the International Chamber of Commerce. Seller shall have no further responsibility for the Goods, and all risk of damage to or loss or delay of the Goods shall pass to Buyer upon delivery of the Goods to the Ex Works delivery point to a common carrier or freight forwarder specified by Buyer. If Seller does not receive Buyer’s written instructions as to the identity of Buyer’s carrier or freight forwarder within fourteen (14) calendar days following Seller’s issuance of its notification of readiness to ship to Buyer and/or if Buyer at any time requests a delay in delivery of any Goods beyond the dates stated in the Purchase Order, then Seller may make such arrangements, at Buyer’s sole cost and expense, including, without limitation, storage of the Goods. Buyer agrees and accepts that, in addition to the delays that will also result from the same, delivery of the Goods shall be deemed to have occurred and title and full risk of loss of the same shall have passed to Buyer upon Seller’s delivery of the Goods to a third party (as provided for in Section 2(d)) to the Ex Works delivery point.

(d)            Buyer further agrees that whenever Seller is otherwise authorized and/or permitted (pursuant to these Terms) to ship and/or store Goods on Buyer’s behalf, Buyer agrees that such costs and expenses incurred to effect each shipment and/or storage of the Goods shall be at Buyer’s sole cost and expense. Buyer agrees that any third party involved in storing or shipping the Goods may directly bill Buyer and that Buyer will promptly pay said invoiced costs and expense in full. In all cases, Buyer further agrees that transfer of title and full risk of loss to the Goods shall pass to Buyer upon Seller’s delivery of the Goods to such third party at the Ex Works delivery point, and that Seller shall have no further obligation with respect to delivering the Goods. Thereafter, Buyer will look solely to said third party to deliver the Goods to Buyer. Buyer agrees to be solely responsible for insuring the Goods from and against any loss and/or damage.

3.               Security Interest. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Nevada Uniform Commercial Code.

4.               Amendment and Modification. These Terms and any accepted Purchase Order may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.

5.               Inspection and Rejection of Nonconforming Goods.  

(a)             Buyer’s acceptance of the Goods shall not be unreasonably withheld, conditioned, or delayed. Subject to the other provisions of these Terms, Buyer shall inspect the Goods within seven (7) days of accepting delivery of the Goods (the “Acceptance Period”). During the Acceptance Period, Buyer may reject any Goods only for material defects that substantially impair the value of such Goods (“Non-Conforming Goods”). In the event of Buyer’s rejection of any Goods as Non-Conforming Goods pursuant to this Section 5(a), Seller shall be provided reasonable opportunity to cure any cause for rejection. As such, Seller, at its option and as Buyer’s exclusive remedies, shall cure the same by either (i) repairing the Non-Conforming Goods with any shipping, customs, duties, levies or taxes or other charges being assessed to Buyer, (ii) refunding an equable portion of the Price (defined below), or (iii) furnishing replacement Goods (or parts), as necessary, at the original shipping point. If Buyer does not submit a written rejection to Seller within the Acceptance Period, the Goods shall be deemed accepted by Buyer without any further obligation of Seller.

(b)            Buyer acknowledges and agrees that the remedies set forth above in Section 5(a) and in Section 9 are Buyer’s exclusive remedies for the delivery of Non-Conforming Goods. Except as provided under Section 9, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

6.               Installation; Other Services.

(a)             Upon written agreement between Seller and Buyer, Seller may provide certain additional services related to the Goods, including, without limitation, installation services and maintenance services (collectively, the “Additional Services”). Any Additional Services shall be agreed upon in writing by Seller and Buyer, whether through incorporation into a Purchase Order or in a separate agreement. All Additional Services shall be subject to the terms and conditions of these Terms.

(b)            Seller warrants that all Additional Services when rendered will meet all of the specific requirements, if any, of these Terms, and will be done in a good and workmanlike manner. Seller warrants the Additional Services for a period of six (6) months from the completion of each Additional Service performed. Any claims for defective work must be made in writing immediately upon discovery, and in any event, within six (6) months from the date of completion by Seller. After notice from Buyer and substantiation by Seller of the claim as being within the warranty contemplated herein, Seller shall, at its option: (i) repair any components or Goods upon which the Additional Services were performed; (ii) refund an equitable portion of the fees paid by Buyer for the Additional Services related to the warranty claim; (iii) furnish replacement equipment or parts; (iv) re-perform the necessary Additional Services.

(c)             Buyer acknowledges that the cost for any Additional Services shall be in addition to, and not included in, the Prices (defined below). Seller shall remit invoices to Buyer for any Additional Services, which shall be payable within five (5) days of the date of such invoice (and subject to the late payment charge set forth in Section 8(a)) and shall be paid by wire transfer and in US dollars.

7.               Price. Buyer shall purchase the Goods from Seller at the prices set forth in the applicable Purchase Order (the “Prices”). Prices are subject to change without prior notice to Buyer. Seller may increase the Prices of Goods at any time and for any reason. If the Prices should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets.

8.               Payment Terms.  

(a)             For each Purchase Order, the Prices set forth on such Purchase Order shall be paid as follows: (i) fifty percent (50%) of the Prices shall be paid upon Buyer’s submission of a Purchase Order, and the remaining fifty percent (50%) shall be paid within three (3) days of Seller providing Buyer notice that the Goods are ready to ship. Buyer shall make all payments hereunder by wire transfer and in US dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 3.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for five (5) days following written notice thereof.

(b)            Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.

9.               Limited Warranty.  

(a)             With respect to Goods supplied by but not manufactured by Seller, Seller shall secure for Buyer the warranty rights offered by the original manufacturer to Seller. Seller agrees to be Buyer’s primary contact on any warranty claim for any Goods, and to make reasonable effort on behalf of Buyer to pursue claims against the applicable original manufacturer of such Goods. Substantiation of warranty claims for such Goods, however, shall be by the original manufacturer of the Goods. As such, Seller shall provide a remedy to Buyer only to the extent that the claim is substantiated and remedied by the original manufacturer and/or supplier of the Goods. Seller shall have no liability to Buyer or any other third party if the original manufacturer or supplier rejects any warranty claim. Buyer acknowledges and agrees that availability of any such warranty is subject to Buyer’s compliance with the terms of this Agreement, including, specifically, compliance with the provisions of Section 5(a). Buyer acknowledges that the only warranty offered related to the Goods is the warranty of the original manufacturer, and that Seller makes no additional warranty as to the Goods.  

(b)            For the avoidance of doubt, Seller makes no representations or warranties with respect to the Goods, including, any (i) warranty of merchantability; (ii) warranty of fitness for a particular purpose; or (iii) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of deal, course of performance, usage of trade or otherwise.

(c)             The remedies set forth in this Section 9 shall be Buyer’s sole and exclusive remedy and Seller shall have no liability for any breach of any third party warranty or failure of any third party to perform pursuant to any third party warranty.

10.            Limitation of Liability. In no event shall Seller be liable to Buyer or any third party for any loss of use, revenue or profit, or loss of data, or diminution of value, or for any consequential, indirect, incidental, special, exemplary, or punitive damages whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not Seller has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. In no event shall Seller’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid to Seller for the Goods sold hereunder.

11.            Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under these Terms or any resale of the Goods by Buyer. Seller may terminate these Terms if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.

12.            Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

13.            Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

14.            Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

15.            Force Majeure.  Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond Seller’s control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, explosion, pandemics, or epidemics; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of these Terms; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; or (i) other events beyond the control of Seller. Seller shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and Seller shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.

16.            Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

17.            Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

18.            No Third-Party Beneficiaries. This Agreement 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 or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

19.            Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule (whether of the State of Nevada or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Nevada. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.

20.            Submission to Jurisdiction. Each party agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to these Terms, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the federal or state courts sitting in Clark County, Nevada. Each party submits to the exclusive jurisdiction of these courts and agrees to bring any action, litigation, or proceeding only in the federal or state courts sitting in Clark County, Nevada. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

21.            Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

22.            Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

23.            Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, without limitation, the following provisions: Compliance with Laws, Confidential Information Governing Law, and Survival.