Alaris Aerospace Systems LLC (“Seller”)
General Terms and Conditions of Sale (“Terms & Conditions”)
Effective September 1, 2018
- Acceptance. Acceptance of this order will be according to the Terms and Conditions shown on the face hereof. This order supersedes any previous terms and conditions contained in any quote, purchase order or acknowledgement. All items are subject to prior sale.
- Taxes. Buyer is responsible for all taxes, duties and other charges arising from the sale, delivery or use of any goods identified in the foregoing order and will reimburse Seller for any such charges Seller may be required to pay.
- Law & Jurisdiction. The definitions of terms used, interpretation of this order, and rights and liabilities of parties hereto shall be construed under and governed by the laws of the State of Florida, U.S.A. and the courts situated in Broward County Florida shall have exclusive jurisdiction to hear any dispute arising hereunder. Buyer agrees to pay all costs and expenses, including reasonable attorneys’ fees, incurred by Seller in any action to enforce its rights hereunder. The United Nations Convention on Contracts for the International Sale of Goods, 1980, and any amendment or successor thereto is expressly excluded from this order. Buyer hereby waives: (a) the right to a jury trial in any and all proceedings; (b) any and all objections to venue and inconvenient forum in the state and federal courts referred to in this section; and (c) any and all objections to service of process by certified mail, return receipt requested.
- Delay. Seller is not responsible for any failure or delay in performance resulting from causes beyond Seller’s reasonable control. These may include, but are not limited to events such as acts of government, court order, civil unrest, sabotage, adverse weather conditions, labor troubles and shortages of any goods. Seller will give timely notice to Buyer of any such event and will endeavor to avoid or remove the cause and resume performance with minimum delay. The time for delivery will be extended accordingly.
- Payment & Delivery. It is specifically understood and agreed that the title to all goods listed or included in the foregoing invoice shall remain Seller’s until full payment of same has been received, and the funds have cleared. All payments shall be made in United States dollars. All payments shall be made in full prior to shipment of the goods; except where Seller has authorized credit terms for payment and/or scheduled advance payment, of which, such conditions will be listed on the face the invoice referenced above. The Buyer agrees to pay all cost of collection, including all reasonable attorneys’ fees in the event it becomes necessary to enforce payment thereof. A finance charge of 1.5% per month or 18% per year or the maximum allowable service charge under the State of Florida shall be applied to all past due accounts commencing from the due date until the date the invoice amount, plus any service charges, is paid. All goods are sold ExWorks Seller’s facility in Pompano Beach, Florida or the location of the “drop shipment”.
- Termination. Seller may terminate the order at any time by written notice to Buyer if Buyer becomes insolvent or performs or permits any act of bankruptcy, liquidation, reorganization or if a receiver, trustee, or custodian is appointed for Buyer or a substantial part of Buyer’s property.
- Disclaimer Of Warranties. THE GOODS ARE BEING SOLD AS IS, WHEREAS CONDITION, WITHOUT WARRANTY OF ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE).
The Goods will be delivered in as is, where is condition but subject to following:
- If the Goods are in overhauled condition a workmanship warranty of 12 months
- If the Goods are in Repaired condition a workmanship warranty of 6 months
- If the Goods are Bench tested/inspected a workmanship warranty of 30 days from ship date
For avoidance of doubt, Seller’s liability shall be limited to at Seller’s option either (a) the replacement and repair of the Goods or (b) a credit to Buyer in the amount of sale price of Buyer. Buyer expressly disclaims any other costs and expenses and agrees that the warranty claim will be limited to the options set forth in the preceding sentence.
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUE OR PROFIT AND.COST OF REPLACEMENT GOODS. NO AGREEMENT CLAIMING ANY WARRANTY OF THE GOODS SHALL BE BINDING UPON SELLER UNLESS IN WRITING AND SIGNED BY ITS DULY AUTHORIZED OFFICER OR REPRESENTATIVE.
- Indemnification. Buyer shall assume all loss and liability of any nature whatsoever arising out of the use, possession, or resale of said goods, and agrees to indemnify, protect, defend and save harmless Seller, its affiliates and their respective officers, directors, employees and agents (“hereinafter the Indemnitees”) with respect to any claim, suit, action or judgment of any kind arising out of such use, possession or resale, regardless of whether caused by the negligent acts (or omissions) of any of the Indemnitees.
- Third-Party Fees. Seller and Buyer each indemnifies the other party from liability for fees, commissions or other claims made upon the other by third party brokers or, finders when such claims were caused by the indemnifying party.
- Limitation Of Liability. SELLER’S LIABILITY ON ANY CLAIM OF ANY KIND, INCLUDING NEGLIGENCE, FOR ANY LOSS (INCLUDING DEATH) OR DAMAGE ARISING OUT OF OR CONNECTED WITH, OR RESULTING FROM THIS ORDER, OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM THE MANUFACTURE, SALE, DELIVERY, OR USE OF ANY GOODS COVERED BY OR FURNISHED UNDER THIS ORDER SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE COMPONENT WHICH GIVES RISE TO THE CLAIM. ANY SUCH LIABILITY SHALL BE CONDITIONED ON BUYER PROVIDING PROMPT WRITTEN NOTICE TO SELLER OF ANY CLAIM AND, IN ANY EVENT, WITHIN ONE YEAR FROM THE DATE OF OCCURRENCE OF THE CLAIM UNLESS THE PARTIES HAVE AGREED IN WRITING TO A DIFFERENT CLAIM PERIOD. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFIT AND COST OF REPLACEMENT GOODS.
- Severability. Any provision of this order which is prohibited or unenforceable in any jurisdiction shall, only as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such provision shall remain effective in any other jurisdiction. To the extent permitted by applicable law, each party hereby waives any provision of law which renders any provision hereof prohibited or unenforceable in any respect.
- Assignment & Waiver. Buyer may not assign, in whole or part, the order and/or the foregoing invoice without prior written consent of Seller. Failure by Seller to assert all or any rights upon breach of this order shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor shall any waiver be implied from the acceptance of any payment. No written waiver of any right shall extend to or affect any other right Seller may possess, nor shall such written waiver extend to any subsequent similar or dissimilar breach.
- Returns. All returns for credit must be made within thirty (30) days of purchase and require a written material return authorization. All returns are subject to Seller approval and a 20% restocking fee.
- Export. Buyer understands that the products and/or technology to be purchased by it pursuant to this Agreement are subject to export controls under the laws of the United States, including but not limited to: (i) U.S. exports regulations governing the export, transfer, or re-export of U.S. manufactured products, and products containing U.S. components, software, or technology as set forth in the U.S. Export Administration Regulations (EAR), 15 C.F.R. §§ 772 et seq.; (ii) U.S. export regulations and laws restricting U.S. companies and their foreign affiliates and subsidiaries from doing business with certain embargoed countries and entities as set forth in the U.S. Foreign Asset Control Regulations (FACR), 31 C.F.R. §§ 500 et seq.; and (iii) the International Traffic in Arms Regulations, 22 C.F.R. §§ 120 et seq. Buyer agrees, warrants and represents that it will not to export or re-export the products, technology, or products manufactured from the technology that are the subject of this Agreement in violation of the export laws of the United States.
- Reclamation & Right of Set-Off. This provision shall apply in the event that Seller has: (a) delivered the goods to Buyer on credit; or (b) financed the sale of the goods to Buyer. As a condition of Seller allowing the Buyer to accept delivery of the goods on credit, Buyer represents and warrants to Seller that Buyer is solvent and is not presently a debtor in any bankruptcy case in any court of competent jurisdiction. In the event of Buyer’s insolvency, the foregoing invoice together with these Terms & Conditions shall constitute a demand by Seller for reclamation of the goods in accordance with Section 2-702 of the Uniform Commercial Code and Section 546(c)(1) of the United States Bankruptcy Code. In the event of Buyer’s insolvency, Buyer does hereby waive any defenses to Seller’s right to reclamation to the goods sold and Buyer shall promptly return possession of the goods to Seller. Buyer hereby grants a general lien on and a security interest in, any assets belonging to Buyer and in the possession of Seller as security for the performance of its obligations hereunder or to satisfy any obligation owed by Buyer to Seller under any agreement.
- Entire Agreement. These Terms and Conditions of Sale govern the sale of goods by Seller, notwithstanding any different, conflicting, or additional terms or conditions which appear on any purchase order or other business form submitted by Buyer, such different conflicting or additional terms submitted by Buyer will not become a part of the contract of sale between Seller and Buyer and are expressly rejected by Seller.