Standard Terms and Conditions of Sale

General:

All transactions with Hyper Solutions, Inc. (the “Company”) for the purchase and sale of all products supplied by the Company (including any ancillary services) (the “Products”) to the customer (the “Customer”) named in the attached quotation (the “Quotation”) are governed by these terms and conditions of sale (the “Terms and Conditions”). These Terms and Conditions are hereby incorporated as part of each purchase order from Customer for the purchase of Products (“Order”). Any Order that includes different or additional terms that may vary from these Terms and Conditions are objected to and disallowed. An Order is deemed by the Company to be an offer to purchase, which the Company may accept or reject in its sole discretion.

Prices; Payment Terms:

  1. Unless otherwise agreed by the Company in writing, the purchase price for Products (“Price[s]”) shall be set out in the applicable Order. Prices exclude sales tax. It has been assumed that the customer shall provide a tax certificate. Prices are subject to change.
  2. Unless otherwise agreed in writing by the parties, payment in full shall be made in United States currency upon receipt of invoice. Invoices shall be sent to the address specified in the Order. Should Customer dispute any invoice, Customer shall notify the Company of the nature of the dispute in writing within fifteen (15) days of the invoice date. If Customer does not notify the Company of any dispute within fifteen (15) calendar days of the invoice date, then the invoice is deemed to have been accepted and invoice payment is required to be made on the payment due date per these Terms and Conditions. Notwithstanding any dispute regarding an invoice, Customer shall timely pay the undisputed portion of the disputed invoice.
  3. If Customer is delinquent in its payment obligations, Customer shall pay, in addition to the delinquent payment, a late charge equal to the lesser of one and one-half percent (1.5%) per month or any part thereof or the highest applicable rate allowed by law on all such delinquent amounts plus the Company’s attorneys’ fees and court costs incurred in connection with collection.
  4. Customer acknowledges that the Company has the right to reassess Customer’s creditworthiness from time to time. Unless expressly prohibited by law, in the event there is a decline in Customer’s creditworthiness in the Company’s reasonable discretion, the Company may, upon fifteen (15) days written notice, revise the payment terms between the parties.

Delivery of Products:

Unless otherwise agreed in writing by the parties, the Company shall deliver the Products to the Customer using the Company’s standard methods for packaging and shipping such Products, which may include drop/ship and other fulfillment services provided by Product manufacturers. Delivery terms are F.O.B. destination point set forth in the applicable Order .

  1. Any specified delivery dates are approximate only and not guaranteed. The Company shall not be liable for any delays howsoever caused, nor can the delivery dates be made of the essence by any written notice or communication. Reasonable endeavors will be made to meet delivery dates, but the Company shall not be liable for any failure to do so and any consequent right of Customer to repudiate the Order is expressly excluded.
  2. The Company may, at its option and in its sole discretion, deliver the Products in one or more installments. If the Products are delivered/completed in installments, the Company shall be entitled to invoice for each installment as and when each instalment is delivered/completed.

Transfer of Property; Risk of Loss:

The Company shall retain the right and title to the Products sold to Customer until the Products are delivered to the Customer at the destination point set forth in the applicable Order. Customer shall obtain the right and title to the Products upon delivery of the Products to the destination point set forth in the applicable Order. The risk of loss, including, but not limited to the risk of loss, theft, damage or destruction of the products, transfers to the Customer F.O.B. destination point.

Inspection; Rejection of Products:

Customer shall have ten (10) days from the Company’s delivery of Products at the destination point set forth in the applicable Order to inspect the Products and notify the Company of rejection of Products for non-conformity with the Order. Any notice of rejection must be in writing, identify the Order and describe all non-conforming aspects of the Products. If Customer timely notifies the Company of any nonconforming Products, the Company shall, in its sole discretion, (a) provide service support at the destination point to remedy the non-conforming aspects of the Products, (b) replace such nonconforming Products with conforming Products, or (c) credit or refund the Price for such nonconforming Products, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Upon any express written instructions from the Company, Customer shall ship the nonconforming Products to the Company’s facility from which such Product was originally shipped. If the Company exercises its option to replace nonconforming Products, the Company shall, after receiving Customer’s shipment of nonconforming Products, ship to Customer, at Company’s expense and risk of loss, the replaced Products. Customer acknowledges and agrees that the remedies set forth in this Section 5 are Customer’s exclusive remedies for the delivery of nonconforming Products.

Cancellation:

  1. The Company may cancel an Order if Customer becomes insolvent or suspends any of its operations or if any petition is filed or proceeding commenced by or against the Company under any state or federal law relating to bankruptcy, arrangement, reorganization, receivership or assignment for the benefit of creditors.
  2. In the event Customer cancels an Order or a portion of an Order any time after the Company has released the Order to production, the Company shall invoice Customer for a restocking fee equal to one-hundred percent (100%) of the invoice for the applicable portion of such cancelled Order, and Customer shall pay such invoice within thirty (30) days after receipt of such invoice. In the event Customer cancels an Order or a portion of an Order any time before the Company has released the Order to production, the Company shall invoice Customer for a restocking fee equal to ten percent (10%) of the invoice for such Order, and Customer shall pay such invoice within thirty (30) days after receipt of such invoice.

Limited Warranty:

  1. The Company agrees, subject to the terms of this limited warranty, to provide Customer the warranty set forth in the Company’s Warranty Policy. Any extended warranties are subject to additional costs.
  2. For any Products that carry a warranty from their original manufacturer, if any,, the Company shall assign to Customer any other manufacturer’s warranty that does not prohibit such assignment.
  3. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 7, THE COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS (EXCEPT WARRANTIES OF TITLE), WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, AND THE COMPANY SPECIFICALLY MAKES NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE OR OF NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; AND THE LIMITED WARRANTY SET FORTH IN THIS SECTION 7 IS IN LIEU OF ANY SUCH WARRANTIES AND ANY OTHER OBLIGATION OR LIABILITY ON THE PART OF THE COMPANY.

LIMITATION OF LIABILITY:

IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, WHETHER OR NOT BASED UPON THE COMPANYS NEGLIGENCE, BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION ARISING, DIRECTLY OR INDIRECTLY, IN RESPECT TO THE PRODUCT OR SERVICES PURCHASED FROM THE COMPANY, OR THE USE OR FAILURE THEREOF, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF OPPORTUNITY OR PROFITS. UNDER NO CIRCUMSTANCES SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE VALUE OF THE APPLICABLE DEFECTIVE PRODUCT HEREUNDER FOR THE PRODUCTS PROVIDED BY THE COMPANY.

Insurance:

The Company agrees to maintain Commercial General Liability insurance: $1,000,000; General Aggregate: $2,000,000.

Applicable Law; Forum:

  1. The parties agree that unless otherwise agreed in writing, these Terms and Conditions shall in all respects be governed by and construed in accordance with the laws of the Commonwealth of Virginia. Customer agrees to comply with all legal requirements applicable to Customer.
  2. Any legal suit, action, or proceeding arising out of or relating to an Order or these Terms and Conditions shall be instituted in the federal courts of the United States of America or the courts of the Commonwealth of Virginia, in each case located in the City of Richmond and County of Henrico, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. No action in law or equity arising out of any Quotation, Order or these Terms and Conditions may be brought by Customer more than one (1) year after the cause of action has first arisen. The Company shall have the right to collect from Customer its reasonable expenses, including attorneys’ fees, incurred in enforcing these

Force Majeure:

The Company shall neither be liable for loss, damage, detention or delay nor be deemed to be in default for failure to perform when prevented from doing so by causes beyond its reasonable control, including but not limited to acts of war (declared or undeclared), Acts of God, fire, strike, disease, pandemic (including without limitation any supply chain issues caused by such pandemic), socio political unrest, labor difficulties, acts or omissions of any governmental authority or of Customer, compliance with government regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors due to any of the foregoing enumerated causes. In the event of delay due to any such cause, the date of delivery will be extended by period equal to the delay plus a reasonable time to resume production.

Confidentiality:

The Quotation (including any accompanying documents) contains information proprietary to the Company. No part of the Quotation information may be reproduced or transmitted in any form without the prior written permission of the Company. Customer shall treat the details of the Quotation any information made available in relation hereto as private and confidential and shall not publish or disclose the same or any particulars therefore (save as may be required by law) without the previous consent of the Company, providing nothing in this section shall prevent the publication or disclosure of any such information that has come within the public domain otherwise than by breach of this section which is required to be disclosed bylaw. For the avoidance of doubt, the Customer’s obligations of confidentiality under this Section 12 are in addition to any obligations pursuant to any confidentiality and non-disclosure agreement executed by the parties

Intellectual Property Rights:

  1. Notwithstanding delivery of and the passing of title in any Products to Customer, nothing in these Terms and Conditions shall have the effect of granting or transferring to, or vesting in, Customer any intellectual property rights in or to any Product, or other work product of Company, including without limitation, designs, specifications, technical information, or any other deliverables provided to Customer.
  2. For any Products that carry an intellectual property license from their original manufacturer, if any, the Company shall assign to Customer such other manufacturer’s license that does not prohibit such assignment.

Security Interest:

To secure Customer’s prompt and complete payment and performance of any and all present and future indebtedness, obligations and liabilities of Customer to the Company, Customer hereby grants to the Company a first-priority security interest in all Products purchased under this Agreement by Customer from the Company, 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. Customer hereby authorizes the Company to file Uniform Commercial Code financing statements, amendments, and continuation statements in connection therewith and to take all other actions the Company deems necessary or desirable to evidence the Company’s security interest in such Products, and to perfect, maintain, protect, and foreclose on the security interest granted herein.

Waiver:

Customer shall not assign an Order without the prior written consent of the Company, and any purported assignment shall be void. The Company may assign an Order and its rights and obligations in connection therewith at any time without notice to Customer

Assignment:

No waiver by the Company of any breach of these Terms and Conditions by Customer shall be considered as a waiver of the subsequent breach of the same or any other provision.

Severability:

If any provision or portion of these Terms and Conditions shall be adjudged invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, that provision or portion of these Terms and Conditions shall be deemed omitted and the remaining provisions and portions shall remain in full force and effect.