QUOTATIONS AND PRICES
All quotations are subject to the terms and conditions stated
herein as well as any additional terms and conditions that may appear
on the face hereof. In the case of a conflict between the terms and
conditions stated herein and those appearing on the face hereof, the
latter shall control. Seller's prices and quotation are subject to
the following:
- (a) All published prices are subject to change without notice.
- (b) UNLESS OTHERWISE SPECIFIED IN WRITING, ALL QUOTATIONS ARE FIRM
FOR AND EXPIRE, THIRTY (30) DAYS AFTER DATE THEREOF AND CONSTITUTE
OFFERS.
- (c) Unless otherwise stated in writing by Seller, all prices quoted
shall be exclusive of transportation, insurance, taxes, license fees,
customs fees, duties and other charges, premiums, and fees related
thereto, and shall hold Seller harmless therefrom, provided that,
if Seller, in its sole discretion, chooses to make any such payment,
Customer shall reimburse Seller in full upon demand.
TERMS OF PAYMENT
Unless credit is granted, payment is due upon delivery. All
payments for Products released and shipped on approved credit accounts
shall be due in full thirty (30) days from date of invoice therefor.
Past due balances shall be subject to a service charge of 1.5% per
month (18% per annum), but not more than the amounts allowed by law.
Seller may cancel or delay delivery of Products in the event Customer
fails to make prompt payment.
TRANSPORTATION AND RISK OF LOSS
Transportation will normally follow Customer's shipping instructions,
but Seller reserves the right to ship Products freight collect and
to select the means of transportation and routing when Customer's instructions
are deemed unsuitable. Unless otherwise advised, Seller may insure
to full value of the Products or declare full value thereof to the
transportation company at the time of delivery and all freight and
insurance costs shall be for Customer's account. Risk of loss or damage
shall pass to Customer upon delivery of the Products to the transportation
company at the EXW point, whether or not installation is provided by
or under supervision of Seller. Confiscation or destruction of, or
damage to Products shall remain in Customer until the Products are
returned at Customer's expenses to such place as Seller may designate
in writing. Customer, at its expense, shall fully insure Products against
all loss or damage until Seller has been paid in full therefor, or
the Products have been returned, for whatever reason, to Seller. All
Products must be inspected upon receipt and claims should be filed
with the transportation company when there is evidence of shipping
damage, either concealed or external. As used in the clauses appearing
herein or attached hereto, "delivery" shall occur when the
Product is delivered at the EXW point, which shall be the point of
manufacture or such other place as Seller shall specify in writing,
notwithstanding installation by or under supervision of Seller.
PERFORMANCE
Seller will make all reasonable efforts to observe its dates
indicated for delivery or other performance. However, Seller shall
not be liable in any way because of any delay in performance hereunder
due to unforeseen circumstances or to cause beyond its control, including,
without limitation, strike, lockout, war, fire, act of God, accident,
failure or breakdown of components necessary to order completion, subcontractor,
supplier of Customer caused delays, inability to obtain labor, materials
or manufacturing facilities, or compliance with any law, regulation
or order, whether valid or invalid, of any governmental body or any
instrumentality thereof whether now existing or hereafter created.
Performance shall be deemed suspended during and extended for such
time as any such circumstances or causes have been remedied, after
which Seller will make and Customer shall accept performance hereunder.
No penalty clause of any kind shall be effective. As used herein, "performance" shall
include, without limitation, fabrication, shipment, delivery, assembly,
installation, testing and warranty repair or replacement as applicable.
ACCEPTANCE
Seller reserves the right to ship order complete with yield
quantities plus or minus five percent (5%). Justified reject parts
within yield quantity limits shall be credited to Customer account
and not be replaced unless reordered. Each Product furnished by Seller
shall be deemed accepted by Customer unless notice of defect or nonconformity
is received within ten (10) days of delivery thereof, provided that
Products for which Seller agrees in writing to provide installation
by its personnel, shall be deemed accepted by Customer upon completion
by Seller of its applicable acceptance tests or execution of Seller's
acceptance form by Customer. Notwithstanding the foregoing, use of
any such Product by Customer, its agents, employees or licensees, for
any purpose after delivery thereof, shall constitute acceptance of
the Product by Customer.
TERMINATIONS/RESCHEDULES
Termination and reschedule provisions shall be in accordance
with Seller's standard practices and procedures unless otherwise specified
by mutual agreement.
QUALITY ASSURANCE
Quality assurance provisions applicable to the Product(s)
specified herein shall be in accordance with Seller's standard practices
and procedures unless otherwise specified by mutual agreement.
WARRANTY
Seller warrants to the original purchaser that each Product
delivered shall be free from defects in material or workmanship at
time of shipment, and that each Product delivered will meet the published
specifications for that Product or any contractually agreed upon specifications.
Seller's obligation under the Warranty contained herein is limited
to the repairing or replacing of any Product that does not meet this
Warranty, provided that said Product is returned to Seller, transportation
charges pre-paid, and provided that upon Seller's examination, the
Product, when tested within the specified ratings and in accordance
with good engineering practice, does not meet the Warranty contained
herein. This Warranty does not extend to any of the Seller's Products
which have been subject to misuse, neglect, or accident, nor shall
it extend to material which has been altered or repaired outside of
Seller's factory. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES,
EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTY OF
MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE,
AND OF ANY OTHER LIABILITY OR OBLIGATION.
WARRANTY REPLACEMENT AND ADJUSTMENT
All claims under warranty must be made promptly, in writing,
after occurrence of circumstances giving rise thereto, and must be
received within the applicable warranty period by Seller or its authorized
representative. Such claims should include the Product type and serial
numbers and a full description of the circumstances giving rise to
the claim. Before any Products are returned for repair and/or adjustment,
written authorization from Seller or its authorized representative
for the return and instructions as to how and where these Products
should be shipped must be obtained. Any Product returned to Seller
for examination shall be sent prepaid via the means of transportation
indicated as acceptable by Seller. Seller reserves the right to reject
any warranty claim not promptly reported and any warranty claim on
any item that has been altered or has been shipped by non-acceptable
means of transportation. When any Product is returned for examination
and inspection, or for any other reason, Customer will be responsible
for all damage resulting from improper packing or handling and for
loss in transit, notwithstanding any defect or nonconformity in the
Product. In all cases Seller has sole responsibility for determining
the cause and nature of failure, and Seller's determination with regard
thereto shall be final. If it is found that Seller's Product has been
returned without cause and is still serviceable, Customer will be notified
and the Product returned at its expense, in addition, a charge for
testing and examination may, in Seller's sole discretion, be made on
Products so returned.
DAMAGES AND LIABILITY
SELLER'S LIABILITY FOR DAMAGES SHALL NOT EXCEED THE PAYMENT,
IF ANY, RECEIVED BY SELLER FOR THE UNIT OF PRODUCT OR SERVICE FURNISHED
OR TO BE FURNISHED AS THE CASE MAY BE WHICH IS THE SUBJECT OF CLAIM
OR DISPUTE. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL
OR SPECIAL DAMAGES. LIABILITY TO THIRD PARTIES, FOR BODILY INJURY INCLUDING
DEATH, RESULTING FROM SELLER'S PERFORMANCE SHALL BE DETERMINED IN ACCORDANCE
WITH APPLICABLE LAW AND THE TOTAL LIABILITY LIMITATION STATED ABOVE
SHALL NOT BE CONSTRUED AS A LIMITATION ON SELLER FOR DAMAGES FOR ANY
SUCH BODILY INJURY OR DEATH.
DISPUTES
All disputes under any contract concerning Products, not otherwise
resolved between Seller and Customer, shall be resolved using California
law in a court of competent jurisdiction in San Diego County, California,
and in no other place. However, in Seller's sole discretion such
action may be heard in some other place designated by Seller (if
necessary to acquire jurisdiction over third persons), so that the
dispute can be resolved in one action. Customer hereby consents to
the jurisdiction of such court or courts and agrees to appear in
any such action upon written notice thereof. No action, regardless
of form, arising out of, or in any way connected with the Products
or services furnished by Seller, may be brought by Customer more
than one (1) year after the cause of action has accrued. In any dispute
arising out of Customer's failure to pay for Seller's goods and services
as provided herein, the prevailing party shall be entitled to recover
reasonable attorney fees and costs, including those incurred for
the purpose of enforcing a judgment. If any part of the terms and
conditions stated herein is held void or unenforceable, such part
will be treated as severable, leaving valid the remainder of the
terms and conditions notwithstanding the part or parts found void
or unenforceable.
