All Products supplied to Buyer by Avionic Instruments LLC (Seller) are considered standard, commercial, off-the-shelf items and are subject to the Terms and Conditions contained herein unless otherwise agreed toin writing. Any non-standard or modified Products as agreed to by Seller are equally subject to these Terms and Conditions, unless otherwise agreed to in writing. Any other Terms and Conditions noted by Seller in quotations, proposals, or offers are in addition to those contained herein. All Products are delivered in accordance with Seller’s specification and quality management system requirements. Under no circumstances may Buyer cancel any order.
2.0 ACCEPTANCE OF ORDERS
THE ACCEPTANCE OF ALL ORDERS AND ALL SALES BY SELLER ARE MADE SUBJECT TO AND EXPRESSLY CONDITIONAL UPON THESE TERMS AND CONDITIONS. ANY OF BUYER’S TERMS AND CONDITIONS OR FAR/ DFAR FLOWDOWNS WHICH ARE DIFFERENT FROM OR IN ADDITION TO THOSE CONTAINED HEREIN ARE HEREBY OBJECTED TO AND SHALL BE OF NO EFFECT UNLESS SPECIFICALLY AGREED TO IN WRITING. Orders are deemed accepted upon receipt of Seller’s formal purchase order acknowledgement.
Each quotation is valid for 30 days from its date unless otherwise stated in the quotation.
4.0 MINIMUM ORDER
Seller will not accept an order of less than $1000 in value exclusive of transportation charges as indicated under “TITLE AND DELIVERY”. The minimum billing will be $250 for each line item ordered.
Unless Seller has extended credit to Buyer, Buyer shall pay in advance of shipment. Should Seller elect to extend credit to Buyer, payment shall be made in full within 30 days of the date of the invoice. Unpaid balances over 30 days will be subject to a finance charge of 1.5% per month or portion thereof. Seller reserves the right at any time to change the amount of or to withdraw any credit extended to Buyer. Each shipment shall be considered a separate and independent transaction and payment therefore shall be made accordingly. Buyer shall be liable for all collection costs (including attorney’s fees) incurred by Seller in connection with past due payments.
TITLE AND RISK OF LOSS Seller shall deliver Products to Buyer FCA (INCOTERMS 2010) Seller’s facility, at which point title and risk of loss shall pass to Buyer. Partial deliveries shall be permitted. All shipping charges and expenses shall be paid by Buyer.
7.0 FORCE MAJEURE
Seller shall not be liable for delay or failure to deliver or perform due to any cause beyond its reasonable control, including but not limited to acts of God, acts of Buyer, acts of any government authority, strikes or other labor disturbances, delays in transportation, fuel or energy shortages, or inability to obtain necessary materials, components, services, or facilities from usual sources.
8.0 HELD ORDERS
Any orders held, delayed, or rescheduled at the request of the Buyer will be subject to the prices and conditions of sale in effect at the time of the release of the hold or reschedule, plus any additional costs incurred due to the hold or reschedule. Any such order held, delayed, or rescheduled beyond a reasonable period of time as determined in Seller’s sole discretion will be treated as a Buyer termination.
Prices include Products having standard commercial packing only. Where special packing is required, contact Seller for additional costs.
10.0 U.S. EXPORT LAWS
Seller’s obligations are subject to the export administration and control laws and regulations of the U.S. Government. The Buyer shall comply fully with such laws and regulations in the export, resale or other disposition of Products.
11.0 PRODUCT NOTICES
Buyer shall provide the user (including its employees) of the Product with all Seller supplied product notices, warnings, instructions, recommendations and similar materials.
12.0 STANDARD WARRANTY
a) Sellers warrants all Products to be furnished under this contract shall be free from defects due to faulty workmanship or material for the period of twelve (12) months from the date of shipment to Buyer.
b) Seller neither expressly nor impliedly warrants against defects in design, or against defects due to faulty workmanship or material of parts or materials supplied by others and utilized by Seller in such Products. Seller shall give to Buyer (insofar as it is assignable) the benefits of any express written warranties given to Seller by such manufacturer or other vendors. Seller shall have no obligation to process any warranty claim against such manufacturer or vendor for the benefit of Buyer.
c) Seller neither expressly nor impliedly warrants nor makes any representation whatsoever, as to service life of Products.
d) This warranty shall apply only to the condition that:
e) The obligations and liabilities of Seller under this warranty are expressly limited to the replacement or repair by Seller of such Products and shall not include the removal or reinstallation costs incident to such correction or replacement.
f) Buyer may effect warranty repairs of the Products at its facility only with Seller’s prior written approval. Seller will reimburse Buyer for such repair at labor rates to be mutually agreed upon, but not exceeding Seller’s own rates. Buyer is responsible for all inbound and outbound transportation costs, fees, duties, and any other costs associated with the return of Products.
g) Repaired Products will have a warranty period equal to the balance of the original warranty or three (3) months from reshipment of the repaired goods to Buyer, whichever is greater.
h) THE WARRANTIES, OBLIGATIONS AND LIABILITIES, EXPRESS OR IMPLIED, AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER SET FORTH IN THESE TERMS AND CONDITIONS ARE EXCLUSIVE AND IN SUBSTITUTION FOR, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN THE PRODUCTS OR SERVICES PROVIDED UNDER THIS ORDER, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS; ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY ARISING FROM THE NEGLIGENCE OF SELLER OR ANY MANUFACTURER OF AIRCRAFT INCORPORATING THE PRODUCTS; AND ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR DAMAGE TO ANY AIRCRAFT.
i) NEITHER SELLER NOR ANY MANUFACTURER OF AIRCRAFT WILL HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN THE PRODUCTS OR SERVICES PROVIDED UNDER THIS ORDER.
13.0 EXTENT OF SELLER’S LIABILITY
The aggregate total liability of any damages under this Order shall in no event exceed the contract price of the Product giving rise to the claim (or claims) of liability, whether resulting from delays in delivery or performance, breach of warranty, claims of negligent manufacturing, patent or copyright infringement, or otherwise. Buyer agrees to indemnify and hold harmless Seller from all claims by third parties which extend beyond the foregoing limitations of Seller’s liability.
Seller may revise these Terms and Conditions at any time and without any prior notice to Buyer, and such revised versions will be posted at http://www.avionicinstruments.com. It is Buyer’s sole responsibility to access the Terms and Conditions periodically to verify the revision status.
15.0 IP OWNERSHIP
All intellectual property used in connection with the Products or the manufacture thereof is and will remain the property of Seller, whether or not such intellectual property was developed during the course of the order or other work for Buyer and whether or not Buyer provided any funding for the development of such intellectual property.
16.0 GOVERNING LAW
All matters arising out of or relating to these Terms and Conditions and the Products sold hereunder are governed by and construed in accordance with the laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of New Jersey or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of New Jersey. The United Nations Convention on the International Sale of Goods does not apply to any matter arising out of or relating to the Agreement.
17.0 SUBMISSION TO JURISDICTION
Any suit, action or proceeding arising out of or relating to these Terms and Conditions and the Products sold hereunder shall be instituted in the federal courts of the United States or the courts of the State of New Jersey, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Buyer shall not assign any of its rights or delegate any of its obligations under the Agreement without Seller’s prior written consent. Any purported assignment or delegation in violation hereof is null and void. No assignment or delegation relieves Buyer of any of its obligations under the Agreement.
19.0 CONFIDENTIAL INFORMATION
All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Agreement is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller ’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation hereof. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure, or (c) obtained by Seller on a non- confidential basis from a third party who was not under an obligation of confidentiality.
a) The invalidity, in whole or in part, of any provision herein, shall not affect the validity of any other provision herein.
b) Any representation, warranty, the course of dealing or trade usage not contained or referenced herein shall not be binding on Seller.
c) No modification, amendment, rescission, waiver or other change in these terms and conditions shall be binding on Seller unless assented to in writing by its authorized representative.