1. Acceptance – Entire Agreement
The standard terms and conditions of sale contained herein, together with any written specifications or written certifications stated on Seller’s sales order, is an offer by Seller to sell to the purchaser listed on the face hereof (“Purchaser”) the products described on the face hereof (the “Products”). Neither the sales order, any quotation, acknowledgement or other document issued by Seller nor Seller’s manufacture or delivery of Products shall constitute an acceptance of any terms and conditions attached to or incorporated into any purchase order or other document issued by Purchaser, and any such general terms and conditions issued by Purchaser are specifically excluded and shall not apply to Seller’s sale of the Products to Purchaser. Any of the following acts by Purchaser shall constitute its acceptance of the sales order and all terms and conditions contained herein in their entirety: (i) acknowledging the sales order; (ii) issuing a purchase order for the Products on the same or substantially the same terms as reflected on the face of the sales order; (iii) accepting delivery of the Products; or (iii) by other conduct which fairly recognizes the existence of a contract for the purchase and sale of the Products. Any additional or different terms proposed by Purchaser, whether in its purchase orders, any request for a quotation, or otherwise, are unacceptable to and expressly rejected by Seller and shall have no effect with respect to any sale of Products by Seller to Purchaser. Acceptance by Purchaser of this offer and Seller’s performance is expressly limited to and conditioned upon Purchaser’s acceptance of the terms of the sales order and these Terms of Sale exclusively.
Seller shall deliver the Products EXW –Seller’s Madison Heights, MI facility (Incoterms 2010). Delivery dates are approximate and are based upon prompt receipt by Seller of all necessary information. Seller shall use commercially reasonable efforts to deliver the Products on the dates specified on the face hereof but shall not be liable for delays in delivery. If delivery of the Products is delayed or postponed by Purchaser for any reason, Purchaser shall arrange for storage of the Products and Purchaser shall assume the risk of loss of, or damage to, such Products and shall be responsible for any change in connection with storage and reconditioning.
Unless otherwise indicated on the face hereof, payment shall be net 30 days of Seller’s invoice. If the Products are to be shipped outside the 50 states of the United States of America, Purchaser shall payment shall be made in advance of shipment.
Unless otherwise indicated on the face hereof, all prices are exclusive of any applicable federal, state or local duty, sales, use, excise or other similar taxes applicable to the manufacture, sales, use, import or export of any Products ordered by Purchaser. All such taxes shall be for Purchaser’s account and shall be paid directly by Purchaser to the governmental authority concerned. If Seller is required by law or otherwise to pay any such duty, tax, fine, penalty or assessment in the first instance, or as a result of Purchaser’s failure to comply with any applicable laws or regulations governing the payment of such levies by Purchaser, the amount of any payments so made by Seller shall be reimbursed by Purchaser to Seller upon submission of Seller’s invoices therefor.
5. Title- Security Interest
Title to the Products sold hereunder shall remain with Seller until all payments hereunder shall have been made in full cash. Seller shall retain a security interest in the Products and the proceeds thereof as security for Purchaser’s performance of its obligations hereunder. Upon Seller’s request, Purchaser shall promptly execute and deliver to Seller financing statements and any other documents necessary to create, perfect, preserve or enforce such security interest.
6. Risk of Loss
Title and risk of loss to Products shall transfer to Purchaser upon Seller’s delivery of the Products in accordance with such Incoterms delivery term.
7. Warranty and Exclusive Remedy
(a) Material and Workmanship. Subject to the provisions of Paragraph 7 (b) hereof, Seller warrants to Purchaser only that the Products shall be free from defects in materials and workmanship during the shelf life of the Products as the same is indicated on each Product. Seller’s obligation and Purchaser’s exclusive remedy shall be limited to replacement by Seller, at its expense, of any Product which Seller determines does not comply with this warranty during the warranty period. Transportation charges for any Product claimed to be nonconforming with this warranty and any replacement Product shall be borne by Purchaser.
(b) Exclusions. SPECIFICALLY EXCLUDED FROM THE ABOVE PARAGRAPH AND ANY WARRANTY ARE THE FOLLOWING, FOR WHICH SELLER SHALL HAVE NO LIABILITY WHATSOEVER: (i) defects or damage caused by unauthorized or improper installation, alteration, repair, maintenance (including failure to provide appropriate maintenance), handling or operation of the Products by Purchaser or any third party; (ii) Products considered by Seller to be samples, prototype, or development, which are provided on an “AS IS” basis only; (iii) any product, component, system, or assembly not manufactured or sold by Seller and/or the integration, incorporation, interaction, connection, placement, or use of conforming Products in or with any such product, component, system, or assembly, (iv) Products that have been subject to damage attributable to or caused by: (a) misuse, accident, neglect, abuse, or vandalism or any transit related damage; (b) exposure to excess temperature, fire, water or other fluid, (c) acts of God or insurrection; (d) normal wear and tear; (e) or any other acts that are beyond Seller’s reasonable control.
(c) Notice of Claims. Purchaser shall inspect the products immediately upon delivery. Notice of any claim for shortage of Products or alleged nonconformity with this warranty that was or could have been discovered on such inspection shall be made to Seller within five (5) days thereafter, and if not discoverable upon inspection, within five (5) days after. Purchaser shall, upon Seller’s request, furnish reasonable proof of any claimed defect and Seller shall be given an opportunity to investigate the claim. Only if Seller determines that the Product is nonconforming shall Purchaser be entitled to replacement of the Product. Failure of Purchaser to give notice of any claim within the specified period shall be deemed an absolute and unconditional waiver of such claim any remedy.
(d) Warranty Disclaimer. EXCEPT AS PROVIDED HEREIN, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR AGAINST INFRINGEMENT, ALL OF WHICH ARE HEREBY EXPRESLY DISCLAIMED. THE REMEDIES OF THE PURCHASER SHALL BE LIMITED TO THOSE PROVIDED HEREIN TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES. NO AGREEMENT VARYING OR EXTENDING THE FOREGOING WARRANTIES, REMEDIES OR THIS LIMITATION WILL BE BINDING UPON SELLER UNLESS IN WRITING AND SIGNED BY A DULY AUTHORIZED OFFICER OF SELLER. NO PERSON, INCLUDING PURCHASER, IS AUTHORIZED BY SELLER TO MAKE WARRANTIES OR ASSUME ANY LIABILITY FOR SELLER WITH RESPECT TO THE PRODUCTS. ORAL STATEMENTS OR AFFIRMATIONS OF FACT DO NOT CONSTITUTE WARRANTIES AND SHALL NOT BE RELIED UPON BY PURCHASER AND ARE NOT PART OF THE AGREEMENT FOR SALE.
(e) ANY PRODUCT RETURNED WITHOUT A RETURN AUTORIZATION WILL BE REFUSED. A MINIMUM RESTOCKING FEE OF FORTY (40%) PLUS ALL TRANSPORTATION CHARGES AND PROCESSING FEES (INCLUDING DISPOSAL) WILL BE CHARGED.
8. Limitation of Liability
(a) SHOULD THE REMEDY OF REPLACEMENT BE FOUND TO BE INADEQUATE OR TO HAVE FAILED OF ITS ESSENTIAL PURPOSE FOR ANY REASON WHATSOEVER, SELLER’S LIABILITY, WHETHER FOUNDED IN CONTRACT, TORT, STATUTE OR OTHERWISE (INCLUDING NEGLIGENCE, WARRANTY AND STRICT LIABILITY), ARISING OUT OF OR RELATED TO THE PRODUCT SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCT WITH RESPECT TO WHICH LOSS OR DAMAGED IS CLAIMED. PURCHASER THEREFORE AGREES THAT RETURN TO IT OF THE FULL PURCHASE PRICE OF THE PRODUCT AT ISSUE SHALL BE A FAIR AND ADEQUATE REMEDY.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM THE SALE OF THE PRODUCTS OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE PRODUCTS FOR ANY PURPOSE WHATSOEVER, IRRESPECTIVE OF WHETHER THE CLAIMS OR ACTIONS FOR SUCH DAMAGES ARE BASED UPON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR OTHERWISE. IN NO EVENT SHALL SELLER INCUR ANY LIABILITY WHATSOEVER FOR DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO DELAY IN DELIVERY.
(c) THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE.
9. Exclusion of Liabilities of Boeing.
PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF BOEING COMPANY, ITS DIVISIONS, SUBSIDIARIES AND AFFILIATES, THE ASSIGNEES OF EACH, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (“BOEING”) AND THE REMEDIES OF PURCHASER ARE EXCLUSIVE, AS AGREED TO BY SELLER AND IN SUBSTITUTION FOR, AND PURCHASER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF BOEING AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF PURCHASER AGAINST BOEING, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY SPARE PARTS, AIRCRAFT SOFTWARE, STANDARDS, REPAIR/OVERHAUL/ EXCHANGE PARTS, LEASED PARTS, LEASED TOOLS, MATERIALS AND INFORMATION, SERVICES (INCLUDING, BUT NOT LIMITED TO, TECHNICAL ASSISTANCE AND TECHNICAL CONSULTING) OR ANY OTHER THINGS PROVIDED DIRECTLY OR INDIRECTLY TO SELLER AND/OR PURCHASER UNDER ANY , OR IN ANY BOEING SPARE PARTS, AIRCRAFT SOFTWARE, STANDARDS AVAILABLE THROUGH THE SPARES CATALOG, REPAIR/OVERHAUL/EXCHANGE PARTS, OR MATERIALS AND INFORMATION PROVIDED TO DIRECTLY OR INDIRECTLY TO SELLER AND/OR PURCHASER BY A THIRD PARTY, 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 IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF BOEING; AND
ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY AIRCRAFT OR SPARE PART.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT BOEING WILL HAVE NO OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF BOEING) 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 ANY SPARE PARTS, AIRCRAFT SOFTWARE, STANDARDS, REPAIR/OVERHAUL/EXCHANGE PARTS, LEASED PARTS, LEASED TOOLS, MATERIALS AND INFORMATION, SERVICES (INCLUDING, BUT NOT LIMITED TO, TECHNICAL ASSISTANCE AND TECHNICAL CONSULTING) OR ANY OTHER THINGS PROVIDED BY BOEING, OR IN ANY BOEING SPARE PARTS, AIRCRAFT SOFTWARE, STANDARDS AVAILABLE THROUGH THE SPARES CATALOG, REPAIR/OVERHAUL/EXCHANGE PARTS, OR MATERIALS AND INFORMATION PROVIDED TO DIRECTLY OR INDIRECTLY TO SELLER AND/OR PURCHASER BY A THIRD PARTY.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT IT WILL CAUSE THE OWNER OF ANY BOEING COMMERCIAL TRANSPORT AIRCRAFT (EXLCUDING ANY DERIVATIVES DEVELOPED, MODIFIED, OR OPERATED FOR MILITARY OR GOVERNMENT MISSIONS) TO ACCEPT THE PROVISIONS OF SECTION 9 TO THE SAME EXTENT AS PURCHASER.
To the fullest extent permitted by law, Buyer shall defend, indemnify and hold harmless Seller and its affiliates, directors, officers, agents, servants, employees, successors and assigns from and against any and all claims, demands, actions, causes of action, suits, liabilities, losses, damages of any kind or nature whatsoever (including judgments, settlements and compromises, as well as costs and expenses and reasonable attorney and professional fees),including, without limitation, claims for personal injury, death, property damage, or economic loss, whether such claims are premised on contract, tort or otherwise, which arise out of and/or are related to, in whole or in part, the acts or omissions of Purchaser, the use, performance, application, operation, or ownership of the Products, or any condition of the Products (except for nonconformities with the warranty provided in Section 7(a) above).Force Majeure Seller shall not be liable for any delay or impairment of performance resulting in whole or in part from any cause beyond Seller’s control including, without limitation, fires, floods, explosions, accidents or other catastrophes, acts of God, strikes, lockouts or labor disruption, wars, riots or embargo delays, government allocations or priorities, shortages of transportation, fuel, labor or materials, inability to procure the Products or raw materials, severe weather conditions, changes of law or regulation, or any other circumstance or cause beyond Seller’s control. Such excuse from performance shall extend so long as the event continues to delay or impair Seller’s performance.
11. Remedies/Cost of Collection
The rights and remedies of Seller are cumulative with and in addition to all other or legal or equitable remedies. Purchaser will reimburse Seller for any and all damages, including any indirect, incidental and consequential damages (including attorney and professional fees and expenses), caused by Purchaser’s breach hereunder.
12. No Assignment
Purchaser may not assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written approval of Seller.
13. Governing Law
This agreement shall be governed by and construed in accordance with the laws of the State of Michigan without regard to its conflict of law or doctrine.
14. Equal Employment Opportunity Clause
This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. Contractor/subcontractor agrees to comply with all the provisions set forth in 29 CFR Part 471, Appendix A to Subpart A (Executive Order 13496).
If in any jurisdiction, any provision of this order or its application to any party or circumstance is restricted, prohibited or unenforceable, such provision shall, as to such jurisdiction, be ineffective only to the extent of such restriction, prohibition or unenforceability without invalidating the remaining provision hereof and without affecting the validity or enforceability of such provision in any other jurisdiction for any reason be other parties or circumstances. In addition, if any one or more of the provisions contained in this order shall in any jurisdiction for any reason be held to be excessively broad as to time, duration, geographical scope, activity or subject, it shall be construed, by limiting and reducing it so as to be enforceable to the extent compatible with the applicable law then in effect of such jurisdiction.
16. No Waiver
Seller’s failure to insist on performance of any of the items and conditions herein or to exercise any right or privilege, or Seller’s waiver of any breach hereunder, shall not act as a waiver of any term, condition, right or privilege contained herein.
The terms and conditions of sale herein contain the entire and only agreement between the parties hereto relating to the subject matter hereof, and any representation, affirmation of fact and course of prior dealings, promise or condition in connection therewith or usage of the trade not incorporated herein shall not be binding on either party. No change, modification, rescission, discharge, abandonment or waiver of these standard conditions of sale shall be binding upon Seller unless made in writing and signed on its behalf by one of Seller’s authorized representatives.