ACCEPTANCE OF BUYER'S ORDER IS CONDITIONAL ON BUYERS ASSENT
TO THE TERMS AND CONDITIONS CONTAINED HEREIN. IF BUYER OBJECTS TO ANY TERMS
HEREIN, SUCH OBJECTION MUST BE IN WRITING AND DELIVERED TO SELLER WITHIIN A
REASONABLE TIME, NOT TO EXCEED 10 DAYS OF RECEIPT OF THIS DOCUMENT. FAILURE TO
MAKE SUCH A TIMELY EXCEPTION. OR ACCEPTANCE BY BUYER OF ANY GOODS DELIVERED BY
SELLER HEREUNDER, SHALL BE CONCLUSIVELY DEEMED ASSENT TO THE TERMS AND
CONDITIONS HEREIN SELLER'S FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY
COMMUNICATION FROM BUYER WILL NOT BE A WAIVER OF THE PROVISIONS HEREOF.
Prices do not include any taxes, now or hereafter enacted, applicable to the
goods sold on this transaction. Taxes will be added by Seller to the sales
price where Seller invoices the same to comply with law, and will be paid by
Buyer unless Buyer provides Seller with a proper tax exemption certificate.
Releases and Setoff
Prices apply only if the quantity ordered hereunder is released for shipment
within six (6) months (or longer if mutually agreed to in writing) from the
date of Seller's receipt of Buyer's order. Otherwise, Seller's standard price
in effect at time of release shall apply to quantity shipped and Buyer shall
pay the difference in price, if any, and Seller has the right to terminate this
contract. In such event, Buyer is liable for termination charges as set forth
in Paragraph 15a.
Buyer grants to Seller the right at
any time during the course of this contract to revise prices hereunder by
Seller's giving to Buyer written notice, such revised prices to apply to all
goods thereafter shipped.
If buyer provides written objection
within ten (10) days following notice of a price change established by Seller,
Seller shall have the option of terminating this contract with no liability to
Buyer waives any rights of setoff,
except with respect to its claims against Seller which arise from transactions
with the division at the address shown on the face hereof.
All shipments of goods shall be delivered F.O.B. Seller's plant, and title and
liability for loss or damage thereto shall pass to Buyer upon Seller's delivery
of the goods to a carrier for shipment to Buyer, and any loss or damage
thereafter shall not relieve Buyer from any obligation hereunder. Buyer shall
be liable for costs of insurance and transportation and for all import duties,
taxes and any other expenses incurred or licenses or clearance required at port
of entry and destination.
Seller may deliver goods in
installments. Shipping dates are approximate only. Seller shall not be liable
for any loss or expense, whether by way of contract or tort, (consequential or
otherwise) incurred by Buyer if Seller fails to meet the specified estimated
delivery schedule because of unavoidable production or other delays.
All provisions of the Paragraph 3
apply to both domestic and international shipments, except that title to goods
shipped outside the U.S. shall pass at the point of destination; risk of loss
or damage and all expense associated with goods shipped outside the U.S. shall
be the responsibility of the Buyer. Notwithstanding any other provisions of the
Paragraph 3 to the contrary, if Buyer is an international subsidiary of Seller,
title shall pass at the point of destination and Seller shall be liable for
loss or damage to such goods until receipt by Buyer at point of destination.
Any variation in quantities shipped over or under the quantities ordered (not
to exceed 10%) shall constitute compliance with Buyer's order and the stated
unit price will continue to apply.
and Method of Payment
Where Seller has extended credit to Buyer, terms of payment shall be net thirty
(30) days from date of invoice. The amount of credit or terms of payment may be
changed, or credit withdrawn by Seller at any time. If the goods are delivered
in installments, Buyer shall pay separately for each installment. Payment shall
be made for the goods without regard to whether Buyer has made or may make any
inspection of the goods. If shipments are delayed by Buyer, payments are due
from the date when Seller is prepared to make shipments. Goods held for Buyer
are at Buyer's risk and expense.
and Force Majeure
Seller shall not be liable for any delay in delivery or for non-delivery, in
whole or in part, caused by the occurrence of any contingency beyond the
control either of Seller or Seller's suppliers, including, but not limited to,
war (whether an actual declaration thereof is made or not), sabotage,
insurrection, riot or other act of civil disobedience, act of a public enemy,
failure or delay in transportation, act of any government or any agency or
subdivision thereof, judicial action, labor dispute, accident, fire, explosion,
flood, storm or other act of God, shortage of labor, fuel, raw material or
machinery or technical failure where Seller has exercised ordinary care in the
prevention thereof. Seller may allocate production and deliveries among
and Modifications of Goods
Seller may modify the specifications of goods designed by Seller, and
substitute goods manufactured to such modified specifications for those
specified herein, provided such goods substantially conform to this contract.
Where Buyer orders goods subject to military specifications, Buyer agrees that
seller may supply goods which conform with the most current version or revision
of the applicable military specifications.
Buyer, at all times, shall comply with all applicable federal, state and local
laws and regulations. Export of the products covered by this quotation or
acknowledgment may be subject to export license control by the U.S. government.
It is Buyer's responsibility to obtain any licenses which may be required under
the applicable laws of the U.S. including the Export Administration Act and
regulations promulgated thereunder.
Any notice or instruction from the Buyer received subsequent to Seller's
acknowledgment, including supplementary information contained in a confirming
purchase order, which has the effect of changing the specifications, scope of
work, or other terms, will be effective only upon an appropriate adjustment in
the price and/or delivery date, and acceptance of any change by Seller in
10. Limited Warranty
THE FOLLOWING IS IN LIEU OF ALL WARRANTIES EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OBLIGATION ON THE PART OF
Seller, except as otherwise
hereinafter provided, warrants the goods against faulty workmanship or the use
of defective materials, and that such goods will conform to Seller's written
specifications, drawings, and other descriptions for a period set forth in the
schedule below. Seller warrants that at the time of delivery Seller has title
to the goods free and clear of any and all liens and encumbrances. These
warranties are the only warranties made by Seller and can be amended only by a
written instrument signed by an officer of Seller.
Seller's warranties shall be for
the following periods:
Electrical components or devices – twelve (12) months from the date of shipment
or six (6) months from the date of resale by Buyer to Buyer's customers,
whichever is first to expire. Continued use or possession of goods after
expiration of the applicable warranty period stated above shall be conclusive
evidence that the warranty is fulfilled to the full satisfaction of Buyer.
Seller makes no warranty as to experimental or developmental goods or goods not
manufactured by Seller, provided that as to goods not manufactured by Seller,
Seller, to the extent permitted by Seller's contact with its supplier shall
assign to buyer any rights Seller may have under any warranty of the supplier
Seller's warranties are herein
above set forth shall not be enlarged, diminished or affected by, and no
obligation or liability shall arise or grow out of Seller's rendering of
technical advice or service in connection with Buyer's order of the goods
11. Product Application
Buyer agrees to indemnify and hold harmless Seller for all claims, whether
arising in tort or contract, against Buyer and/or Seller, including Attorney's
fees, expenses and costs, arising out of the application of Seller's products
to Buyer's designs and/or products, or Seller's assistance in the application
of Seller's products.
12. Exclusive Remedies
If the goods furnished by Seller fail to conform to Seller's exclusive limited
warranty, Seller's sole and exclusive liability shall be (at Seller's option)
to repair, replace or credit Buyer's account for any such goods which are
returned by Buyer during the applicable warranty period set forth above,
provided that (i) Seller is promptly notified in writing upon discovery by
Buyer that such goods failed to conform to this contract with a detailed
explanation of any alleged deficiencies, (ii) such goods are returned to
Seller, F.O.B. Seller's plant, and (iii) Seller's examination of such goods
shall disclose to Seller's satisfaction that such alleged deficiencies actually
exist and were not caused by accident, misuse, neglect, alteration, improper
installation, unauthorized repair or improper testing. If such goods are non-conforming,
Seller shall reimburse Buyer for the transportation charges paid by Buyer for
such goods. If Seller elects to repair or replace such goods, Seller shall have
a reasonable time to make such repairs or replace such goods.
THIS IS THE SELLER'S ONLY LIABILITY
AND BUYER'S EXCLUSIVE REMEDY FOR ANY CLAIM, WHETHER ARISING IN TORT OR
CONTRACT, AND IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, COLLATERAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES.
13. Acceptance of Product
Acceptance shall be presumed conclusively to have occurred thirty (30) days
following delivery of product to Buyer, unless Buyer has accepted the product
prior to that date.
Seller shall defend any suit or proceeding brought against Buyer insofar as
such suit or proceeding is based on a claim that any goods manufactured and
supplied by Seller to Buyer constitute direct infringement of any duly issued
United States patent and Seller shall pay all damages and costs finally awarded
therein against Buyer, provided that the Seller is promptly informed and
furnished a copy of each communication, notice or other action relating to the
alleged infringement and is given authority, information and assistance (at
Seller's expense) necessary to defend or settle said suit or proceeding. Seller
shall not be obligated to defend or be liable for costs and damages if the
infringement arises out of compliance with Buyer's specification (s), or from a
combination with, an addition to, or a modification of the goods after delivery
by Seller, or from use of the goods, or any part thereof, in the practice of a
process. Seller's obligations hereunder shall not apply to any infringement
occurring after Buyer has received notice of such suit or proceeding alleging
the infringement unless Seller has given written permission for such continuing
If any goods manufactured and
supplied by Seller to Buyer shall be held to infringe any United States patent
and Buyer shall be enjoined from using the same, Seller will exert its
reasonable efforts, at its option and at its expense, (i) to procure for Buyer
the right to use such goods free of any liability for patent infringement or
(ii) to replace such goods with a non-infringing substitute otherwise complying
substantially with all requirements of this contract or (iii) refund the
purchase price and the transportation costs of such goods.
If the infringement by Buyer is
alleged prior to completion of delivery of the goods under this contract,
Seller may decline to make further shipments without being in breach of this
contract, and provided Seller has not been enjoined from selling said goods to
Buyer, Seller agrees to supply said goods to Buyer, at Buyer's option,
whereupon the patent indemnity obligation herein stated with respect to Seller
shall reciprocally apply with respect to Buyer.
If any suit or proceeding is brought
against Seller based on a claim that the goods manufactured by Seller in
compliance with Buyer's specifications and supplied to Buyer directly infringe
any duly issued United States patent, then the patent indemnity obligations
herein stated with respect to Seller shall reciprocally apply with respect to
The sale of the items ordered
hereunder does not grant or convey or confer upon Buyer upon Buyer or Buyer's
customers, or upon anyone claiming under Buyer, a license express or implied
under any patent rights of Seller covering or relating to any combination,
machine or process in which said item might be or are used.
THE FOREGOING STATES THE SOLE AND
EXCLUSIVE LIABILITY OF SELLER FOR PATENT INFRINGEMENT AND IS IN LIEU OF ALL
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO, AND IN NO EVENT
SHALL SELLER BE LIABLE FOR SPECIAL, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL
15. Termination and
(a.) Buyer may terminate this contract in whole, or from time to time, in part,
upon thirty (30) days advance written notice to Seller. In such event, Buyer
shall be liable for termination charges which shall include: a price adjustment
based on the quantity of goods actually delivered and all cost, direct and
indirect, incurred and committed for this contract; together with a reasonable
allowance for prorated expenses and anticipated profits. (b.) If, in Seller's
judgment, the Buyer's financial condition does not justify the terms of payment
specified, Seller may cancel this contract unless Buyer shall immediately pay
for all goods which have been delivered and pay in advance for all goods prior
16. Non-Waiver of Default
and Collection Rights
In the event of any default by Buyer, Seller may invoke any remedy provided by
law or by the terms herein stated, and may decline to make further shipments.
If Seller elects to continue to make shipments, Seller's actions shall not
constitute a waiver of any default by Buyer or in any way affect Seller's legal
remedies for any such default.
In the event Seller resorts to a
third party or to litigation in order to collect amounts due Seller, Buyer
agrees to pay costs of collection for amount owed to Seller, including, but not
limited to, attorney's fees, court costs, and interest in the amount of 1% per
month (12% per annum), from the date the amount is due.
17. Applicable Law and
The validity, performance and construction of this contract shall be governed
by the laws of the County of Los Angeles, State of California and such shall be
the only jurisdiction in which any suit may be brought regarding any dispute
arising of this transaction.
18. U.S. Government
If the goods to be furnished under this contract are to be used in the
performance of a U.S. Government contract or subcontract, and a U.S. Government
contract number shall appear on Buyer's purchase order, those clauses of the
applicable U.S. Government procurement regulations which are required by
Federal Statute to be included in U.S. Government subcontracts are incorporated
herein by reference.
This contract is binding upon and inures to the benefit of the parties and the
successors and assigns of the entire business and good will of Buyer, or of
that part of the business used in the performance of this contract, but shall
not be otherwise assignable, without the prior consent of Seller.
20. Affidavits and Certificates
No certificates of compliance, conformance, or chemical analysis shall be
provided unless Buyer's detailed requirements are stated on the face of the
Buyer's order. Seller reserves the right to charge an additional fee for any
21. Sizes, Tolerances,
Inspection and Samples
Quotations are preferably made on the basis of Buyer's prints. When quotations
are made on the basis of samples or otherwise, the dimensions on which the
quotation is based will be stated. USE OF, OR REFERENCE TO SAMPLES, SHALL NOT
ENLARGE, AFFECT OR ALTER THE LIMITED AND EXCLUSIVE WARRANTY (PARAGRAPH 10) OR
REMEDY (PARAGRAPH 12).
Where Buyer requires samples from
Seller to verify completion of fitting-up, Buyer will pay for such fitting-up
within (30) days after receipt of the samples, unless Buyer within such period
gives Seller a detailed written description of any allowable variance from
specifications, in which case Buyer will promptly pay upon correction of such
The dimensions for quoting and
manufacturing are the mean specifications and are subject to the normal
tolerances for variations. Unless otherwise specified in Buyer's prints or
specifications, for precious metal clad products inlay will be interpreted to
be the average reading of the samples cross-sectioned; for flat sections, three
readings across the surface will be averaged; for radial faced surfaces, the
center readings will be averaged. Standard tolerance in inlays over .001 shall
be plus or minus 10% from the nominal. With regard to metallurgical materials
and other related products, all manufactured goods will be inspected to a 1.5%
AQL unless otherwise specified.
22. Tools and Dies
Unless otherwise provided herein, even though fitting-up charges may be
specified, all tools and dies, including, without limitation, fixtures, gauges
and assembly equipment manufactured for this contract, will be Seller's property,
but will be retained by Seller for Buyer's non-exclusive use; provided,
however, that Seller may dispose of such tools and dies if Buyer does not order
from Seller goods for manufacture therefrom within any one (1) year period. If
any tools and dies manufactured by Seller are to become Buyer's property, it
must be specifically so provided on the face hereof. Any such tools and dies,
or any materials, tools, dies and other equipment furnished by Buyer to Seller,
shall be at Buyer's sole risk and expense, and Seller shall not be liable for
loss, damage, maintenance, repair or renewal, regardless of cause. If Buyer
desires to withdraw such tools and dies from Seller's plant, and if Seller
consents to permit Buyer to withdraw them, for any reason, Buyer will first
compensate Seller for any cost incurred with respect to them, including,
without limitation, design and development costs.
23. Severability of Terms
If any phrase, clause or provision shall be declared void, the validity of any
other provisions shall not be affected thereby.
24. Release of Information
Neither party hereto shall, without the prior written consent of the other
party which will not be unreasonably withheld), publicly announce or otherwise
disclose the existence of the terms of this agreement, or release any publicity
regarding this amendment. This provision shall survive the expiration,
termination or cancellation of this Agreement.
THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES RELATING TO
THE SALE OF THE GOODS DESCRIBED ON THE FACE HEREOF, AND NO ADDITION TO OR
MODIFICATION OF ANY PROVISION OF THIS CONTRACT SHALL BE BINDING UPON SELLER
UNLESS MADE IN WRITING AND SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF SELLER
LOCATED AT SELLER'S APPROPRIATE ORDER ENTRY LOCATION.