COMPLIANCE WITH LAWS
Buyer represents and warrants that it will comply in all respects with all laws, rules, regulations, ordinances, proclamations, demands, directives, or other legal requirements that now govern or may hereafter govern the Parts/Materials. Buyer agrees upon request to furnish Seller with a certificate of compliance relating to any such laws and regulations in such form as Seller may require. Buyer agrees to indemnify and hold Buyer harmless from any liability arising from any failure of Buyer to comply with such laws and regulations.
(a) Buyer represents and warrants that it will comply with all applicable import and export control laws and regulations, including, without limitation, the United States Export Administration Regulation (“EAR”), the United States International Traffic in Arms Regulations (“ITAR”), the United States Office of Foreign Assets Control Regulations, the United States Foreign Trade Regulations, European Union and country-specific import and export regulations, and will retain documentation evidencing such compliance. Buyer will obtain import and re-export approvals and licenses required for Parts, transfers, services and technical data delivered and will retain documentation evidencing compliance with those laws and regulations. Buyer agrees to indemnify and hold Seller harmless from any fines, penalties, or other liability imposed by any government entity arising from any failure of Buyer to comply with such laws and regulations.
(b) Seller will deliver Parts /Materials cleared for export, but Seller will not be liable to Buyer for any failure to provide Parts, Materials, services, transfers or technical data as a result of government actions that impact Seller’s ability to perform, including, but not limited to: (I) any governmental failure to provide, or the cancellation of, export or re-export licenses (ii) any subsequent interpretation of applicable import, transfer, export or re-export law or regulation after the date of any order or commitment that has a material adverse effect on Seller’s performance; or (iii) delays due to Buyer’s failure to follow applicable import, export, transfer, or re-export laws and regulations or to assist Seller in acquiring same. Buyer shall not be relieved of its payment obligations if any of the above events occur.
(c) If Buyer designates the freight forwarder for export shipments from the United States or any another country (whichever applicable), then, unless otherwise instructed or notified by Seller, Buyer’s freight forwarder will export on Buyer’s behalf and Buyer will be responsible for any failure of Buyer’s freight forwarder to comply with all applicable export requirements. Seller will provide Buyer’s designated freight forwarder with required commodity information.
(d) Where Buyer holds the design authority for a Part/Material or otherwise possesses the relevant export classification for a Part/Material, Buyer shall provide Seller with the relevant export classification data, such as, inter alia, classification numbers according to EU and/or country specific Military Lists, classification numbers according to Annex 1 of Regulation No 428/2009/EC setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items (European Dual Use Regulation), Export Control Classification Number (“ECCN”), Harmonized Tariff Schedule (“HTS”) code or International Traffic in Arms Regulations (“ITAR”) classification, as applicable. At Seller’s request, Buyer shall complete all questionnaires and forms requested by Seller, including Seller’s Form QAF-172 “Export Control Classification” Form and Seller’s Form QAF-230 “End User Statement” Form to facilitate the exports of Parts/Materials.
Unless and to the extent that a separately negotiated contract executed between the parties is cited on the procuring party’s purchase order, the following conditions of sale apply to any purchase order covering any products, materials or parts offered for sale by Comat Aerospace Corporation (“Seller”) to the procuring party (“Buyer”).
(a) Buyer is not obligated to buy any Parts/Materials from Seller, and, Seller is not obligated to sell any Parts/Materials to Buyer. If Buyer orders Parts/Materials from Seller, and Seller delivers Parts/Materials to Buyer, these conditions of sale will apply to all such purchase and sales transactions.
(b) Any purchase order covering the sale of Parts/Materials will be governed solely by these conditions of sale and any other mutually agreed upon written provisions. Verbal understandings are expressly excluded.
(c) Seller’s acceptance of Buyer’s purchase order is made expressly conditional on Buyer’s assent to these conditions of sale and the terms contained in any Seller purchase order acknowledgement. Seller’s automated order acknowledgements, if any, do not constitute Seller’s acceptance. Seller does not waive any term in these conditions of sale if it fails to object to provisions appearing on, incorporated by reference in, or attached to Buyer’s purchase order, except as provided below, and Seller expressly rejects such provisions.
(d) Buyer’s silence, acceptance, or use of Parts constitutes its assent to these conditions of sale.
(e) Any additional or different terms, which may be contained in any documents furnished by Buyer, are deemed material and Seller hereby objects to and rejects them. Any such additional or different terms are effective only if in writing and signed by an authorized representative of Seller.
(f) Buyer’s purchase orders must include and may only serve to specify (I) Seller’s part number or applicable specifications referenced in Seller’s quotation, including a general description of the Part/Material; (ii) requested delivery dates; (iii) price; (iv) quantity; (v) location to which the Part/Material is to be shipped; (vi) location to which invoices should be sent for payment; (vii) Buyer’s purchase order number and Seller’s quotation number, if applicable; (viii) Buyer’s carrier and mode of transportation plus any special routing, packing, labeling, handling or insurance requested by Buyer, if applicable; and (ix) the end-use and end-user, of the Parts/Materials ordered and whether the Parts/Materials will be used for military or quasi-military purposes.
(g) Buyer acknowledges that Seller is a distributor of Parts/Materials and that Seller will be purchasing Parts/Materials from third parties to the specifications Buyer provides to Seller. Therefore, Seller makes no representation about the components, composition or sufficiency of Parts/Materials to meet Buyer’s needs.
(h) If Buyer makes known to Seller a use in relation to Article 37 Section 2 of the REACH Regulation that results in Seller incurring obligations under that regulation, Buyer shall indemnify Seller for any costs or expenses incurred by Seller that arise out of or in connection with the fulfillment of any such obligations. Seller shall not be held liable for any delay in delivery arising out of the fulfillment of any such obligations. In case Seller is not able to, or elects not to, include this use as an identified use under the REACH Regulation, Seller shall notify Buyer of such decision and in the event that Buyer intends to use the applicable Parts /Materials against Seller’s recommendation, Seller may terminate Buyer’s purchase order with respect to the applicable Parts/Materials without any liability to Buyer.
(I) All Sales of "Shelf-Life Sensitive" Parts/Materials will be considered Final.
(j) Non-Stock or Made to Order Items are Non-Cancelable, Non-Returnable.
(k) Seller Must be Notified of the rejection of any item within 10 Working Days After receipt by the Customer.
(l) All materials to be returned must have prior authorization from Seller and will be subject to a pre-determined restock fee.
(m) Shipping and Return Costs are Non-Refundable
(a) Unless Seller’s quote states otherwise, prices are quoted in United States currency and are valid for Parts/Materials delivered within 90 days of quotation. Prices do not include any of Seller’s non-standard costs, including but not limited to, testing, Buyer-specific certification or inspection requirements, etc., unless specifically stated on Seller’s quotation. Seller reserves the right to change or withdraw quoted prices until Seller has accepted Buyer’s purchase order.
(b) Buyer’s order is subject to Seller’s minimum order requirements. Seller reserves the right to limit order quantities for certain Parts/Materials.
(c) Prices do not include any taxes or duties on the purchase or sale of Parts,/Materials including, but not limited to, federal, state, or municipal excise, sales, use or value added taxes or import duties, if any. Any such taxes and duties that may become due and owing will be paid by Buyer, excluding taxes based upon Seller’s gross income. Buyer shall reimburse Seller upon demand for any such taxes, duties or similar charges that Seller is required to pay or collect.
a)Provided Seller’s credit and collections department has granted credit terms to Buyer, Buyer will pay Seller’s invoices within 30 days of their date. Buyer’s payment(s) must be made in United States currency and must be accompanied by remittance detail containing at a minimum Seller’s invoice number and amount paid per invoice. Seller reserves the right to correct any inaccurate invoices. Payments, without deduction for electronic funds transfer fees, must be in accordance with the “Remit To” field on each invoice.
b) Seller may establish credit terms with Buyer through application to Seller’s credit and collections department. If applicable, Seller may re-evaluate Buyer’s credit terms at all times. If Seller determines in its sole discretion that Buyer fails to qualify for credit terms at any time, then Seller may, without notice to Buyer, modify or withdraw credit terms including, but not limited to, requiring advance payment, letters of credit, guarantees, or other security.
c) If Buyer is delinquent in its payment obligations to Seller, Seller may at its option (I) be relieved of its obligations with respect to guarantees, including without limitation, turnaround times, spares support and delivery lead-times; (ii) refuse to process any credit to which Buyer may be entitled; (iii) set off any credit or sum owed by Seller to Buyer against any undisputed amount owed by Buyer to Seller; (iv) withhold future deliveries to Buyer; (v) declare Buyer’s performance in breach and terminate the purchase order; (vi) repossess Parts for which payment has not been made; (vii) make future deliveries on a cash-with-order or cash-in-advance basis; (viii) charge interest on delinquent amounts at a rate of 1.5% per month or the maximum rate permitted by law, if lower, for each month or part thereof; (ix) charge storage or inventory carrying fees on Parts; (x) recover all costs of collection including, without limitation, reasonable attorneys’ fees; (xi) if Buyer is delinquent on a payment schedule, accelerate all remaining payments and declare the total outstanding balance then due and owing; or (xii) combine any of the above rights and remedies as may be permitted by applicable law. The above remedies are in addition to all other remedies available at law or in equity.
(d) If Buyer disputes Seller’s invoice, or any portion thereof, Buyer will so notify Seller within ten (10) working days of the date of Seller’s invoice. Buyer’s failure to provide notification within said period shall be deemed acceptance of Seller’s invoice by Buyer. The parties will use all reasonable efforts to resolve invoice disputes expeditiously. Notwithstanding any invoice disputes, Buyer shall promptly remit payment for invoices, or portions thereof, not in dispute.
Seller will prepare and package Parts/Materials in accordance with its normal commercial practices. Delivery of Parts shall be FCA (Incoterms 2010) Seller’s facility, except as indicated below with respect to passage of title and risk of loss for Parts shipped from within the United States to a destination outside the United States. Seller shall ship Parts/Materials by the mode and carrier designated by Buyer in accordance with the shipping instructions provided in the applicable purchase order. Where Buyer provides no instructions for the method of shipment, the method of shipment will be at Seller’s discretion. Seller will schedule delivery in accordance with its standard lead time unless Seller agrees in writing to a separate delivery date. Seller reserves the right to make partial shipments against total purchase order requirements and deliver in advance of the scheduled delivery date whenever possible. Buyer’s acceptance of late deliveries shall constitute a bar to a claim of late delivery. All shipping expenses from the FCA point to Buyer, including transportation and insurance costs, shall be for the account of Buyer. If Seller prepays such transportation charges, Buyer will reimburse Seller upon receipt of an invoice for those charges. Title and risk of loss will pass to Buyer when Seller hands over Parts/Materials to the shipper for carriage from Seller’s facility, except that, with respect to Parts/Materials shipped from within the United States to a destination outside the United States, title and risk of loss will pass to Buyer immediately after Parts/Materials leave the United States (which shall include the States, the District of Columbia, and the territorial waters and airspace of the United States). Seller is entitled to quote additional charges for any rush shipments, special routing, packing, labeling, handling or insurance requested by Buyer.
Buyer will inspect Parts/ Materials within a reasonable period, not to exceed 10 calendar days, after Buyer receives Parts/Materials. Parts/Materials will be deemed accepted unless Seller receives written notice of rejection explaining the basis for rejection within such period. Buyer's only recourse or remedy for non-conforming or defective Parts/Material shall be as provided in the warranty section of these conditions of sale. Seller’s delivery of quantities within five percent (+/-5%) of Buyer’s requested quantities of Parts/Materials shall be deemed completed orders. For delivery shortages, Buyer may, without further recourse, direct Seller to fulfill any Parts/Material shortfall. Buyer shall return or purchase, at its option, Parts/Materials delivered in excess of Buyer’s order. At Seller’s option, for rejected Parts /Materials Seller will (I) replace or (ii) credit Buyer with the purchase price. Following initial delivery, the party initiating shipment will bear the risk of loss or damage to Parts in transit, except that Seller will reimburse Buyer for normal and reasonable surface shipping costs incurred to return properly rejected Parts/Materials to Seller’s designated facility. If Seller reasonably determines that rejection was improper, Buyer will pay all expenses relating to the improper rejection. Buyer will comply with Seller’s return material authorization policies and will ship returned Parts/Materials to Seller suitably packed for shipment to prevent damage in transit in accordance with reasonable shipping practices.
(a) Buyer may cancel a purchase order, in whole or in part, only in the event of a default by Seller that has not been corrected within ninety (90) days following Seller’s receipt of Buyer’s written notice stating the nature of Seller’s default and the corrective action requested.
(b) Any other changes to a purchase order, including but not limited to, specification, price, delivery time, or interchangeability of any Part/Materials can only be made by a change order signed by the authorized representatives of Buyer and Seller. Such change order shall include (I) the reason for the change; (ii) a description of the change; (iii) the effect on the specification, price, delivery time and/or interchangeability of the Part/Material; and (iv) the effective date of the change. Seller will review all Part/Material specification changes requested by Buyer and will promptly advise Buyer whether such a change is technically feasible and, if so, the effect on unit price and delivery schedule.
Seller will not be liable to Buyer for any failure to meet its obligations due to any cause beyond Seller’s reasonable control and not occasioned by its fault or negligence (an “Excusable Delay”). Excusable Delay events may include but are not limited to (I)delays or refusals to grant an export license or the suspension or revocation thereof; (ii) any other acts of any government that would limit the ability for contract performance; (iii) fires, earthquakes, floods, severe weather conditions, or any other acts of God; (iv) quarantines or regional medical crisis; (v) labor strikes or lockouts; (vi) riots, strife, insurrection, civil disobedience, armed conflict, terrorism or war, declared or not (or impending threat of any of the foregoing, if such threat might reasonably be expected to cause injury to people or property); and (vii) shortages or inability to obtain materials or components. If an Excusable Delay event causes a Seller delay, then the date of Seller’s performance will be extended by the period of such delay or Seller may cancel Buyer’s order with respect to such delayed Parts/Materials. WARRANTY "Nonconformance” means (I) failure of a Part/Material to comply with then-current governmental requirements or the applicable specifications of the respective manufacturers, or (ii) a Part/Material having defects in workmanship or material.
Seller warrants to Buyer that Parts/Materials will be free from any Nonconformance at the time of delivery. Buyer must notify Seller of any Nonconformance in writing and within thirty (15) calendar days of delivery of any Parts suffering from Nonconformance.
Seller’s only obligation and Buyer’s sole remedy under this warranty is, at Seller’s option to (I) refund the purchase price of, or (ii) replace, the Part/Material that is suffering from a Nonconformance. Seller will pay reasonable transportation costs for warranty returns in an amount not to exceed normal ground shipping charges. Buyer must disposition warranty return Parts in accordance with Seller’s written instructions.
Following delivery to Buyer, Seller is not liable under this warranty for any Nonconformance resulting from a Part having been exposed or subjected to (I) any alteration, modification, maintenance, repair, installation, handling, transportation, storage, operation or use, that is improper or (ii) any accident, contamination, abuse, neglect, or negligence.
THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY SELLER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. IN NO EVENT WILL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES OR USE EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NO EXTENSION OF THESE WARRANTIES WILL BE BINDING UPON SELLER UNLESS SET FORTH IN WRITING AND SIGNED BY SELLER’S AUTHORIZED REPRESENTATIVE.
LIMITATION OF LIABILITY
ALL LIABILITY OF SELLER IS PRECLUDED UNLESS SELLER IS LIABLE BECAUSE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THESE LIMITATIONS WILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BY OPERATION OF LAW, OR OTHERWISE.
NOTWITHSTANDING ANYTHING IN THESE CONDITIONS OF SALE TO THE CONTRARY, IN NO EVENT WILL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES OR USE EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER’S LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THESE CONDITIONS OF SALE AND THE TRANSACTIONS ARISING OUT OF BUYER’S PURCHASE ORDER IS LIMITED TO THE CONTRACT PRICE FOR THE SPECIFIC PART, MATERIAL OR SERVICE THAT GIVES RISE TO THE CLAIM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BY OPERATION OF LAW, OR OTHERWISE. THESE EXCLUSIONS OF DAMAGES SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER THE TERMS OF THESE CONDITIONS OF SALE.
NOTWITHSTANDING THE PROVISIONS OF ANY APPLICABLE LIMITATIONS ACT OR OTHER STATUTE, IN NO EVENT SHALL BUYER COMMENCE ANY ACTION ARISING OUT OF THE PURCHASE ORDER OR THE CONTRACT BETWEEN THE PARTIES LATER THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.