Yokowo Manufacturing of America, LLC Standard Terms and Conditions

1. General

  1. Each Order submitted by a buyer (“Buyer”) to Yokowo Manufacturing of America, LLC (“Yokowo”) for the purchase of Yokowo’s antennas and related equipment (the “Goods”) incorporates these Standard Terms and Conditions, any quote provided from Yokowo to Buyer for the price of the Goods or, absent a specific quote, Yokowo’s standard price list (the “Yokowo Quote”), Buyer’s purchase order (the “Purchase Order”), any confirmation or acknowledgment by Yokowo or Buyer (the “Acknowledgment”), and all other communications applicable to the Yokowo Quote (collectively, the “Order”). However, in the event of any conflict, the provisions of any applicable specific agreement signed by Yokowo shall prevail, and these Terms and Conditions shall be incorporated in and shall take precedence over any particular Purchase Order. The Order is the complete and final agreement of Buyer and Yokowo and may not be modified except by a written agreement signed by Yokowo’s authorized representative, notwithstanding any terms and conditions which may now or in the future appear on Buyer’s Purchase Order(s), Acknowledgements or other forms, any payment by Buyer, or any acceptance of payment or other similar act by Yokowo.

2. Delivery and Shipping Terms

  1. The Goods will be delivered on the date(s) specified in the Yokowo Quote, or if a timeframe is not specified therein, within a reasonable time after the receipt of Buyer's Purchase Order. Yokowo shall not be liable for any delays, loss, or damage in transit.
  2. Yokowo shall deliver the Goods FOB Yokowo’s dock (the "Delivery Point") using Yokowo's standard methods for packaging and shipping the Goods. In the absence of written shipping instructions from Buyer, Yokowo may ship the Goods freight collect to Buyer’s destination by any common carrier which it considers satisfactory. Unless otherwise specified in the Yokowo Quote, Buyer shall be responsible for all loading costs (including equipment and labor reasonably suited for the Goods at the Delivery Point. Title and risk of loss passes to Buyer upon delivery of the Goods to the carrier.
  3. Yokowo may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s Purchase Order.
  4. If for any reason Buyer fails to accept delivery of any of the Goods, or if Yokowo is unable to deliver the Goods at the Delivery Point on a stated delivery date because Buyer has not provided appropriate instructions, documents, licenses, or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Yokowo, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
  5. The quantity of any shipment of Goods as recorded by Yokowo on dispatch from Yokowo's place of business is conclusive evidence of the quantity received by Buyer on delivery, unless Buyer can provide conclusive evidence proving the contrary.
  6. Yokowo shall not be liable for any non-delivery of Goods (even if caused by Yokowo's negligence) unless Buyer gives written notice to Yokowo of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events have been received.
  7. Any liability of Yokowo for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
  8. If Yokowo delivers to Buyer a quantity of Goods which is 10% more or less than the quantity set forth in the Purchase Order, Buyer shall not be entitled to object to or reject the Goods by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Order adjusted pro rata. In the event of any shortfall, Buyer shall promptly notify Yokowo of the difference, and Yokowo shall deliver such difference as soon as reasonably possible.
  9. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Yokowo 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 Ohio Uniform Commercial Code.

3. Inspection and Rejection of Goods; Cancellation

  1. Buyer shall inspect the Goods within 3 days of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Yokowo in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Yokowo. "Nonconforming Goods" means only the following: (i) product shipped is different (or has different specifications) than identified in Buyer's Purchase Order; or (ii) product's label or packaging incorrectly identifies its contents.
  2. If Buyer timely notifies Yokowo of any Nonconforming Goods, Yokowo shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship the Nonconforming Goods to Yokowo's facility located at 4081 Leap Road, Hilliard, OH 43026. If Yokowo exercises its option to replace Nonconforming Goods, Yokowo shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, the replaced Goods to the Delivery Point.
  3. Buyer acknowledges and agrees that the remedies set forth in Section 3(B) are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 3(B), all sales of Goods to Buyer are final, and Buyer has no right to return Goods purchased under this Agreement to Yokowo.
  4. No Purchase Order, with respect to which Yokowo has issued or indicated an Acknowledgment, may be cancelled or the manufacture of Goods thereunder suspended without the sole and express written consent of Yokowo. Upon cancellation or suspension of an Order at the request of Buyer, and acceptance by Yokowo, Buyer shall reimburse Yokowo promptly for all expenditures incurred by Yokowo, including, but not limited to, material used, labor and engineering services, a proportionate share of direct manufacturing, engineering, selling, general and administrative expenses, and profits which would have been earned under the Purchase Order. In addition, Buyer shall also reimburse Yokowo for any extraordinary costs and other expenses attributable to such suspension or cancellation. No Goods shall be returned to Yokowo (for any reason other than as set forth in Section 3(B) above) without prior written authorization from Yokowo. An inspection and restocking charge on any returned items will, at Yokowo’s option, be required. Any request to return Goods shall include, in addition to other information reasonably requested by Yokowo, a full description of the Goods, the date of the Purchase Order, and any invoice number.

4. Minimum Order Quantity

  1. Buyer shall purchase units of the Goods from Yokowo in a quantity equal to at least the minimum amount set forth in the Yokowo Quote. If no minimum amount is included in the Yokowo Quote, the minimum amount of units Yokowo must purchase shall be one unit.

5. Price

  1. Buyer shall purchase the Goods from Yokowo at the price set forth in the Purchase Order accepted by Yokowo (the "Price”). If no price is specified in such Purchase Order, the Price shall be the price set out in Yokowo's price list in force as of the date of Buyer’s most recent Order.
  2. 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, Yokowo's income, revenues, gross receipts, personnel, real or personal property, or other assets.
  3. Except as specifically provided in the Order, the Price includes packaging for Goods destined within the continental limits of the United States. An additional charge may be made for crating and for export packing.

6. Payment Terms

  1. All Orders and shipments shall at all times be subject to the approval of Yokowo’s credit department. Yokowo reserves the right to decline to accept any Order or make any shipment whenever, for any reason, there is doubt as to Buyer’s financial responsibility, and Yokowo shall not in such event be liable for breach or nonperformance, in whole or in part.
  2. Buyer shall pay all amounts due to Yokowo upon Buyer’s receipt of the Goods. Unless otherwise specified in an Yokowo Quote, the payment terms for any Orders will be “2% 10, Net 30” (the price of the Goods being payable no later than thirty (30) days after delivery of the Goods).
  3. Buyer shall make all payments hereunder by wire transfer/check and in U.S. dollars.
  4. Buyer shall pay interest on all late payments at the lesser of (i) one and half percent (1.5%) per month or (ii) the highest rate permissible under applicable law, in each case calculated daily and compounded monthly. Buyer shall reimburse Yokowo for all costs incurred in collecting any late payments, including, without limitation, Yokowo’s attorneys' fees. In addition to all other remedies available under these Terms and Conditions or at law (which Yokowo does not waive by the exercise of any rights hereunder), Yokowo 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 10 days following written notice thereof.
  5. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Yokowo, whether relating to Yokowo's breach, bankruptcy, or otherwise.

7. Limited Warranty

  1. Yokowo warrants to Buyer that for a period of one (1) year from the date of shipment of the Goods ("Warranty Period"), the Goods will be free from defects in material and workmanship.
  2. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 7(A), YOKOWO MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
  3. Yokowo shall not be liable for a breach of the warranty set forth in Section 7(A) unless: (i) Buyer gives written notice of the defect, reasonably described, to Yokowo within 30 days of the time when Buyer discovers or ought to have discovered the defect; (ii) Yokowo is given a reasonable opportunity, after receiving the notice, to examine such Goods, and Buyer (if requested to do so by Yokowo) returns such Goods to Yokowo's facility located at 4081 Leap Road, Hilliard, OH 43026, at Yokowo's cost for the examination to take place there; and (iii) Yokowo reasonably verifies Buyer's claim that the Goods are defective.
  4. Yokowo shall not be liable for a breach of the warranty set forth in Section 7(A) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Yokowo's oral or written instructions as to the installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Yokowo.
  5. Subject to Sections 7(C) and 7(D) above, with respect to any such Goods during the Warranty Period, Yokowo shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part), or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Yokowo so requests, Buyer shall, at Yokowo's expense, return such Goods to Yokowo.
  6. Yokowo shall not be liable for any issues arising out of the use or misuse of Buyer’s product or operations. Buyer shall indemnify and hold Yokowo harmless against any and all claims, liabilities, and damages arising in connection with any alleged act or omission of Buyer, its employees, agents, or customers relating to Buyer’s product or operations.
  7. THE REMEDIES SET FORTH IN SECTION 7(E) SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND YOKOWO'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 7(A).

8. Limitation of Liability

  1. IN NO EVENT SHALL YOKOWO BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, 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 YOKOWO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  2. IN NO EVENT SHALL YOKOWO'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 YOKOWO FOR THE GOODS SOLD HEREUNDER.
  3. The limitation of liability set forth in Section 8(B) above shall not apply to (i) liability to third parties resulting from Yokowo's gross negligence or willful misconduct, and (ii) death or bodily injury to third parties resulting from Yokowo’s acts or omissions.

9. Waiver

  1. No waiver by Yokowo of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Yokowo. 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.

10. Force Majeure

  1. Yokowo shall not be liable or responsible to Buyer, nor be deemed to have defaulted 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 or circumstances beyond the reasonable control of Yokowo including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, pandemic, epidemic, lockouts, strikes or other labor disputes, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 30 days, Buyer shall be entitled to give notice in writing to Yokowo to cancel affected Orders.

11. Proprietary Product

  1. BUYER ACKNOWLEDGES THAT THE GOODS ARE PROPRIETARY PRODUCTS OF SELLER AND ARE PROTECTED BY COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAWS.

12. Applicable Law

  1. 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 Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio. The parties expressly disclaim any application to this Agreement of the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods.

13. Severability

  1. 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.