|
Customer service
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. |