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Whittaker Controls Inc - Standard conditions of sale

1. TERMS AND CONDITIONS:  Seller's offer to sell and acceptance of Buyer's purchase order for the goods or services set forth therein, is expressly conditioned upon acceptance by Buyer of these Terms and Conditions. Seller shall not be bound by the Terms and Conditions set forth in Buyer's purchase order. No modifications of these Terms and Conditions shall be binding upon Seller unless accepted by Seller in writing.

2.  DELIVERY:  Unless otherwise specifically provided, delivery of products shall be made (INCOTERMS 2000) EXW (Seller’s dock, North Hollywood, CA) for domestic shipments and (INCOTERMS 2000) FCA (Los Angeles, CA) for international shipments.  Title and risk shall pass to Buyer at that time.  Shipments shall be at the risk of the Buyer, who shall make all claims to the carrier in the event of damage to shipped material or losses in transit.  Buyer shall notify Seller in writing relative to any shortages, within 10 days from receipt of shipment.

 Shipping dates are approximate and are dependent on:  (i) prompt receipt by Seller of all information required for Seller to proceed with work immediately and without interruption; (ii) Buyer’s compliance with payment and other terms of Buyer’s performance obligations; and (iii) Buyer’s timely submission of any required export/import documents that Seller may require.  In the event Seller can deliver any item quoted herein early, Buyer shall accept such early delivery as if so scheduled for the actual time period in which shipped.  Seller will use its best efforts to deliver as specified herein but shall not be liable for delays in delivery occasioned by force majeure or any cause beyond its control.

3.  ACCEPTANCE   Seller is entitled at its discretion to make delivery of goods by partial installments, and to invoice for each installment individually. 

 Buyer will be deemed to have accepted the goods on the earliest of the following:

 a)  within 14 days of the date of delivery of the goods, unless the Buyer notifies the Seller in writing of any failure of the goods to conform with the Order; or

 b)  the Buyer notifies the Seller in writing of any failure of the goods to conform with the Order within a reasonable time, where the defect or failure would not be so apparent within 14 days of the date of delivery; or

 c)  when the goods are first put into use by the Buyer or its customer.

Thereafter, the Buyer shall not be entitled to reject the goods, and the Buyer shall be bound to pay the price for the goods.

 4.  FORCE MAJEURE:  Neither party shall be in default of its obligations under this Order by reason of failure to perform if such failure arises out of causes beyond the control and without the fault or negligence of the party, including but not restricted to, acts of God, acts of the Government, fires, floods, epidemics, strikes, quarantine restrictions, earthquakes, terrorism and unusually severe weather.

Seller shall give prompt written notice to Buyer upon Seller becoming aware of any circumstance or event which may reasonably be anticipated to cause or constitute an excusable delay as described herein.  Such notice shall contain a description of the delay and of the affected portion of the Work.  Seller, in its discretion, may delay delivery, cancel delivery, make price adjustments and/or allocate delivery among customers as necessary due to such unexpected event and during the period of such excusable delay.  If the excusable delay is expected to be longer than reasonably acceptable, Buyer may temporarily subcontract the affected work to an alternate source until the reason for the excusable delay is corrected.

 5.  PRICING:  Prices are in U.S. dollars ($) unless otherwise stated.  The prices stated in this order are Firm-Fixed and cannot be modified, except as a result of mutually agreed upon written change orders.

6.  PAYMENT TERMS:  For customers with established credit approved by Seller’s finance group, payment terms are Net 30 days from the date of invoice based on established credit limits.  Seller reserves the right to deny, modify or revoke payment terms at any time based on customer’s late payment record or change in financial condition.   Seller accepts payment by Visa, MasterCard and American Express credit cards.

7.  TAXES:  The Seller’s prices do not include sales, use, excise or similar taxes.  Consequently, in addition to the price specified the amount of any present or future sales, use, excise or similar tax applied directly to the sale hereunder shall be paid by the Buyer or in lieu thereof the Buyer shall provide a tax-exemption certificate acceptable to the taxing authorities.

 8.  EXPORT COMPLIANCE:  The information, which the Parties disclose, and Goods, which the Parties deliver to each other pursuant to this Agreement, may be subject to the provisions of the trade compliance regulations (including export and import regulations) of various countries.  The Parties acknowledge that licenses from the applicable regulatory agency may be required before the Parties may disclose or deliver such information and/or Goods hereunder, and that such licenses may impose further restrictions on use and further disclosure of such information and/or Goods.  The Parties agree to comply with all applicable governmental regulations as they relate to the import, export and re-export of information and/or Goods under this Agreement.  Each Party shall indemnify and hold the other Party harmless to the full extent of any loss, damage or expense, excluding lost profits, for any failure of the other Party to comply with such laws and regulations.

 9.  TERMINATION FOR CONVENIENCE:  In the event Buyer terminates the contract or purchase order for Buyer’s convenience, Buyer shall pay the Seller within thirty days of the cancellation or as mutually agreed to by the Parties, as follows:

 a)  All amounts due under the order in respect of work performed and goods delivered up to the date of termination, including all applicable overheads and profit.

 b)  Any sums which have been paid by the Seller to its subcontractors and supply chain to carry out the Buyer’s requirements including all applicable overheads and profit.

 c)  The cost of any work, materials and tooling purchased by the Seller including initial costs, overheads,  profit and preparatory expenses allocable thereto, exclusive of costs attributable to goods and services paid or to be paid for the Order above (and not otherwise used by the Seller).

 d)  Any non-recurring engineering and project investment costs not paid by the Buyer or recovered by the Seller under the Order.

 e)  The costs of settling and paying claims arising out of the termination of work under subcontracts as provided above, exclusive of the amounts paid or payable on account of supplies or materials delivered or services furnished by the subcontractor prior to the effective date of the termination of work under this Order.

 10.  WARRANTY AGREEMENT:

a)       Whittaker Controls, Inc. expressly warrants that all articles ordered will conform to those specifications, drawings and samples which have been mutually agreed to by the parties, and that all articles, at the time of shipment to the Buyer are merchantable and free from defects in material and workmanship.

b)       The sole obligation of Whittaker Controls, Inc. under its warranties shall be, at its option, to repair or replace any article or part thereof which is proved to be other than as warranted.  In order for Whittaker to be obligated under its warranties, it is necessary that when an article is claimed to be defective in material or workmanship or not to conform to specifications, Whittaker must receive prompt written notice, but in no event will such written notice be received by Whittaker later than fourteen days after discovery, and the article that is claimed to be defective must be promptly returned to Whittaker Controls for a warranty determination.  Upon determination by Whittaker Controls that said defect is covered by this warranty, Whittaker Controls shall at its option correct the defects by repair or replacement without charge to Buyer, F.O.B. Whittaker Controls’ plant.  Should said defect be determined to be not covered by this warranty, Whittaker Controls shall advise the Buyer of this fact and shall not proceed further until receipt of written authorization from the Buyer to do so.  Whittaker’s liability under this warranty is limited to the repair or replacement of defective articles, or, if repair or replacement is impossible or cannot be accomplished within a reasonable period of time, Whittaker Controls at its sole discretion will return the purchase price including transportation.  No allowances shall be made to Buyer for any transportation, labor charges or parts, adjustments or repairs, or any other work performed by Buyer or third parties, unless such charges are authorized in advance by a specific Whittaker Controls’ Product Support Agreement.

 c)       PERIOD OF WARRANTY:  Whittaker’s liability under this warranty for NEWLY MANUFACTURED and OVERHAULED components shall expire if it has not received written notice of defect within thirty days after discovery of defect, or twelve months from the date the article is delivered to Buyer, whichever period first expires.  Whittaker’s warranty period for REPAIRED components shall expire six months from the date repaired article is delivered to Buyer for parts replaced only.

d)       EXCLUSIONS FROM WARRANTY:

(i)  These warranties shall not extend to any articles or parts thereof which have been modified, altered, installed, used or serviced otherwise than in conformity with Whittaker’s applicable specifications, manuals, bulletins or instructions, or, if none, which shall have been subjected to improper installation, misuse or neglect.  The warranties shall not apply to any articles or parts thereof furnished by Buyer or acquired from others at Buyer’s request and/or to Buyer’s specifications.

(ii)  No warranty whatever is made as to items which are expendable in nature, such as, but not limited to, diodes, transistors, o-rings, packings, or fuses, and Whittaker does not agree to repair or replace these items.

(iii)  Whittaker shall not be responsible for the removal of the Product from, or installation of the Product into, any other property to which it may be attached or incorporated, costs attendant thereto, or any special, indirect, consequential, collateral, or other damages.

(iv)  Whittaker Controls hereby waives all responsibility or liability for the performance of any Whittaker Controls product in which the use of parts not manufactured by or authorized by Whittaker Controls are installed on the Whittaker Controls’ product. 

(v)  Minor deviations from specifications which do not affect performance of the products shall not be deemed to constitute defects in materials or workmanship or a failure to comply with these specifications referred to herein.   The need for regular overhaul of warranted equipment shall not constitute a defect or failure under this warranty.

ANY OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED IN FACT OR IMPLIED IN LAW, ARE HEREBY SPECIFICALLY EXCLUDED, INCUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.  THE REMEDIES OF BUYER SHALL BE LIMITED TO THOSE PROVIDED HEREIN.  IN NO EVENT WILL WHITTAKER CONTROLS BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFIT, LOSS OF REVENUES OR LOSS OF USE.

11.  LIMITATION OF LIABILITY: Nothing in this contract shall exclude or limit Seller’s liability for death or personal injury caused by Seller’s negligence or for fraudulent misrepresentation or for any liability that cannot legally be excluded or limited.

EXCEPT AS STATED ABOVE, THE TOTAL AGGREGATE LIABILITY OF THE SELLER ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE ORDER, WHETHER FOR NEGLIGENCE OR OTHERWISE, SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY BUYER UNDER THIS CONTRACT IN THE YEAR PRECEDING NOTIFICATION OF LIABILITY.  IN NO EVENT SHALL SELLER BE LIABLE FOR LOSS OF PROFIT, LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE OR FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS HOWSOEVER CAUSED.

These clauses set out the entire liability of the Seller (including any liability for the acts or omissions of its sub-contractors) in respect of any breach of this contract or orders placed under it and any representation, statement or tortuous act or omission including negligence arising under or in connection with the contract.  All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the contract.

12.  GOVERNING LAW, ARBITRATION AND DISPUTES:  This contract or purchase order and any dispute or claim arising or in connection with it shall be subject to the laws of California and exclude the United Nations Convention on Contracts for the International Sale of Goods (CISG). Place of jurisdiction shall be Los Angeles, California US.  All disputes or claims arising or in connection with this Order shall be finally settled under the American Arbitration Association by one arbitrator appointed in accordance with such Rules.  Such arbitration shall take place in the English language in Los Angeles, California. 

Either party may elect to commence the arbitration.  Each party shall pay its own costs of the arbitration including costs of the forum, but the arbitrator may award costs to a party against the other.  Separate arbitrations between the parties regarding disputes under this Agreement shall be consolidated to the extent practical.  The award by be enforced as a judgment in a court of competent jurisdiction.

The parties agree to limit the number of depositions that a party may take to three (3) and the duration of each deposition to four (4) hours unless the arbitrator shall determine that additional depositions are justified.  The parties agree that the record of the arbitration and the matters disclosed therein shall be kept confidential, except a party shall be free to make required disclosures to its auditors and government regulators.

Notwithstanding the foregoing clause above, either party may take proceedings or seek remedies before the courts or any competent authority of any country for interim or injunctive remedies in relation to any breach or threatened breach of this Order or to misappropriation or infringement of Intellectual Property rights.

13.  SELLER’S DATA:  Drawings, data, designs, inventions and other technical information supplied by Seller in connection herewith (hereinafter called “Data”), shall remain Seller’s sole property and shall be held in confidence by Buyer.  Such Data shall not be reproduced, used or disclosed to others by Buyer without Seller’s express written consent.  Upon completion of work under this Order, Buyer shall promptly return all Data to Seller.  Buyer shall make no future use, either directly or indirectly of any Data or information derived from Seller’s Data without Seller’s express written consent.  The foregoing shall in no way obligate Seller to supply any Data in support of this offer or any resulting order.

14.  TOOLS: Any special equipment, tools, dies, fixtures, jigs, etc., produced or acquired by Seller for the manufacture of articles on this order shall remain the property of the Seller. 

15.  CONFIGURATION REVISION LEVEL Seller reserves the option of delivering goods that meet Seller’s current revision level drawing at the time of order placement.  Seller’s current drawing revision shall take precedence over obsolete Seller drawing revision levels that are referenced on any resulting purchase order or contract. 

16.  ACCEPTANCE OF QUOTATIONS:  Seller’s quotation or proposal shall automatically expire unless accepted by Buyer by issuance of a purchase order or Notice of Award within thirty (30) days from the date of this quotation or proposal, or such longer period as may be specified in the quotation or proposal. The quotation may not be accepted in part unless agreed to in writing by Seller.