TAXES. Except as otherwise specified, the prices stated do not include
any state, federal, or local sales, use or excise taxes applicable to the
sale, delivery, or use of equipment sold hereunder, including, as
applicable, associated software delivered with such equipment (Products),
and the Buyer expressly agrees to pay to Seller, in addition to the prices
stated, the amount of any such taxes, domestic or foreign, which may be
imposed upon or payable by Seller.
PAYMENT TERMS. Notwithstanding any statement of terms or time of
payment to the contrary appearing on the face of the order, Seller
reserves the right to require payment in advance of shipment or to ship
C.O.D. In the event Buyer fails to pay any invoice when due, in addition
to any other right reserved hereunder, Seller reserves the right to
suspend or limit performance until all past due sums are paid. Further,
Seller reserves the right to charge interest at one and one half percent
(1.5%) per month or the maximum allowable by law, whichever is less, on
any unpaid balance owing by Buyer from the date on which the unpaid
balance was due to Seller. It is agreed that title to any Product
described herein not fully paid for at the time of delivery to Buyer
shall be retained by and remain in Seller until said purchase price is
fully paid and if the purchase price is to be paid on an installment
basis, Buyer will prior to the time of delivery execute a note, security
agreement and financing statement for such purchase price, all upon
forms customarily used by Seller in similar transactions.
DELIVERY. Unless otherwise specified, delivery will be made EXW
(Incoterms 2000) the place or location of Seller's
factory from which Seller elects to make shipment, according to the
delivery schedule specified, which schedule is subject to delays due to
causes beyond Seller's control. Cancellation
or rescheduling of the delivery by Buyer may be subject to additional
charges by Seller.
FORCE MAJEURE (EXCUSABLE DELAY). Seller shall not be liable for
default or for delay in deliveries due to cause beyond its control and
without its fault or negligence, including but not limited to inability
to obtain material, labor or manufacturing facilities, acts of Nature, or
of the public enemy, any preference, priority or allocation order issued
by the Government, changes in applicable law or any other act of
Government, fires, floods, unusually severe weather, epidemics,
quarantine restrictions, strikes, freight embargoes, or delays of Seller's
suppliers. In the event of such delay, delivery dates shall be extended
accordingly for a period equal to the time lost by reason of such delay.
Seller shall use its reasonable efforts to remove the cause of delay and
resume work as soon as possible and to mitigate delivery schedule delay.
In no event shall Seller be liable for any damages. Seller reserves the
right to provide, at no change in price, a substitute product of equal
or better capability provided however that such substitute product
maintains the form, fit and functionality of the original Product.
SHIPMENT AND RISK OF LOSS. In the absence of specific instructions,
Seller will select the carrier to whom delivery will be made for
shipment to Buyer. Except for its obligations under the sections hereof
entitled "Warranty" and "Patent and Copyright Indemnification," all
responsibility of Seller, including but not limited to risk of loss for
all items purchased hereunder by Buyer, shall pass to Buyer EXW (Incoterms
2000) the place or location of Seller's factory from which Seller elects
to make shipment at the time the articles are duly delivered to the
carrier. All claims to the carrier for Products damaged or lost in
transit shall be made by the Buyer.
WARRANTY. The equipment sold hereunder and its associated software
delivered hereunder are subject to the following warranties:
Seller agrees to repair or replace at its discretion, without
charge, any such equipment, which is defective as to design,
workmanship or material, and which is returned to Seller at its
factory, transportation prepaid, provided:
Notice of the claimed defect is given Seller within one (1) year
from the date of delivery.
Software shall not be deemed to be defective if the software
or the host medium is exposed to any computer virus or to
any condition in excess of those published in the applicable
specification(s).
Seller's obligations are
conditioned upon the proper installation and operation of
software and the host medium in accordance with Seller's
written instructions.
The warranty stated in this Section 6A shall be void if such
equipment is altered or repair is attempted or made by other
than Seller or Seller's
authorized service center.
Seller warrants that any software delivered hereunder, either
embedded in equipment described herein or specifically designed
for use in or with such equipment, will substantially provide
the functions(s) set forth in the applicable specification (or
absent a specification, as described in the applicable Service
Bulletin). Seller will, at its option, without charge, revise or
replace such nonconforming software provided:
Notice of the claimed defect is given Seller within one (1) year
from the date of delivery.
Software shall not be deemed to be defective If the software
or the host medium is exposed to any computer virus or to
any condition in excess of those published in the applicable
specification(s).
Seller's obligations are conditioned upon the proper
installation and operation of software and the host medium
in accordance with Seller's written instructions.
The warranty stated in this Section 6B shall be void if such
software (or its host medium) is altered (or alterations are
attempted) by other than Seller or Seller's
authorized service center.
EXCLUSIONS: For purposes of this warranty, the following
Product are excluded from coverage: (i) Expendables,
including but not limited to: light bulbs; batteries; cables
and accessories, (ii) Equipment and software not
manufactured by Seller or from Seller's designs. Such third
party equipment and software are subject only to such
adjustments as Seller may obtain from the supplier thereof.
NO OTHER WARRANTIES, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A
PARTICULAR PURPOSE SHALL BE APPLICABLE TO ANY EQUIPMENT SOLD OR
SOFTWARE DELIVERED HEREUNDER, AND THE FOREGOING SHALL CONSTITUTE
THE BUYER'S SOLE RIGHT AND REMEDY
UNDER THIS GENERAL CONDITIONS OF SALE.
PATENT AND COPYRIGHT INDEMNIFICATION. Seller agrees that it will
defend, at its own expense, all suits against Buyer for infringement of
any United States patent or copyright covering, or alleged to cover, the
Product described herein in the form sold by Seller and Seller agrees
that it will pay all sums which, by final judgment or decree in any such
suits, may be assessed against the Buyer on account of such
infringement, provided that Seller shall be given (i) immediate written
notice of all claims of any such infringement and of any suits brought
or threatened against Buyer and (ii) authority to assume the sole
defense thereof through its own counsel and to compromise or settle any
suits so far as this may be done without prejudice of the right of the
Buyer to continue the use, as contemplated, of the Product so purchased.
If in any such suit so defended the Product is held to constitute an
infringement and its use is enjoined, or if in the light of any claim of
infringement Seller deems it advisable to do so, Seller may either
procure the right to continue the use of the same for the Buyer, or
replace the same with a noninfringing product, or modify said Product so
as to be noninfringing, or, if the foregoing options are not reasonably
available, take back the infringing Product and refund the purchase
price less a reasonable allowance for use, damage or obsolescence.
SOFTWARE LICENSE FOR EQUIPMENT SPECIFIC SOFTWARE. Software delivered
hereunder, either embedded in equipment described herein or specifically
designed for use in or with such equipment, is copyrighted by Seller and
shall remain the sole and exclusive property of Seller. Seller grants
the Buyer a perpetual, worldwide, non-exclusive license to use the
software only in or with the equipment. The Buyer shall not copy,
modify, or disassemble the software, or permit others to do so. Buyer
shall not transfer the license granted hereby or possession of the
software except as part of or with the equipment, such transfer being
subject to the restrictions contained herein. Seller may terminate this
license upon written notice for violation of any of the terms of the
foregoing license.
GOVERNING LAW. This Agreement shall be construed in accordance with,
and the rights of the parties shall be governed by, the laws of the
State of Iowa, U.S.A., as the same would be applied to transactions
between residents thereof, but without regard to that state's
conflict of laws principles and specifically excluding the provisions of
the 1980 U.N. Convention on Contracts for the International Sale of
Goods. Buyer agrees to abide by all US Government laws and export
regulations, including without limitation those applicable to re-export,
and when required by such laws or regulations, Buyer shall apply for the
necessary and appropriate export licenses. Seller shall, at no charge to
Buyer, promptly provide reasonable support and documentation if required
for such export license application.
NO WAIVER. No failure by either party to exercise and no delay in
exercising any right, power or privilege hereunder will operate as a
waiver hereof, nor will any single or partial exercise of any right or
privilege hereunder preclude further exercise of the same right or the
exercise of any right hereunder. A waiver on one or more occasions of
any of the provisions hereof shall not be deemed a continuing one.
DISCLAIMER AND LIMITATION OF LIABILITY. NOTWITHSTANDING ANY PROVISION OF
THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL SELLER BE LIABLE FOR
ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, OR BUSINESS
INTERRUPTION) ARISING OUT OF THE USE OF OR INABILITY TO USE ANY PRODUCT,
EQUIPMENT OR ASSOCIATED SOFTWARE DESCRIBED HEREIN EITHER SEPARATELY OR
IN COMBINATION WITH ANY OTHER PRODUCT, EQUIPMENT, SOFTWARE OR OTHER
MATERIALS EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OR
CERTAINTY OF SUCH DAMAGES. SELLER SHALL HAVE NO OBLIGATION OR LIABILITY
FOR ANY GRATUITOUS INFORMATION OR ASSISTANCE PROVIDED BY, BUT NOT
REQUIRED OF SELLER HEREUNDER. SELLER'S TOTAL
AGGREGATE LIABILITY HEREUNDER WHETHER BASED UPON CONTRACT, TORT
(INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, SHALL IN NO
EVENT EXCEED THE PRICE PAID BY BUYER FOR PRODUCTS SOLD HEREUNDER.
ENTIRE CONTRACT. These General Conditions of Sale shall comprise the
exclusive terms, conditions and agreements of the parties respecting
sale of Products described herein, and supersede any provisions on the
face and reverse side of Buyer's order or any
prior agreement inconsistent with the provisions hereof. Acceptance by
Buyer of such Products covered hereunder shall, absent a contrary
agreement in writing signed by Seller, constitute acceptance of these
General Conditions of Sale. The invalidity of the whole or in part of
any provisions hereof shall not affect the validity of any other
provision. The headings of the sections herein have been inserted for
convenience of reference only and shall not affect the interpretation of
any of the provisions hereof.
TAXES. Except as otherwise specified, the prices stated do not include
any state, federal, or local sales, use or excise taxes applicable to the
sale, delivery, or use of equipment sold hereunder, including, as
applicable, associated software delivered with such equipment, and the Buyer
expressly agrees to pay to Seller, in addition to the prices stated, the
amount of any such taxes, domestic or foreign, which may be imposed upon or
payable by Seller.
PAYMENT TERMS. Notwithstanding any statement of terms or time of
payment to the contrary appearing on the face of the order, Seller
reserves the right to require payment in advance of shipment or to ship
C.O.D. In the event Buyer fails to pay any invoice when due, in addition
to any other right reserved hereunder, Seller reserves the right to
suspend or limit performance until all past due sums are paid. Further,
Seller reserves the right to charge interest at the rate of one and one
half percent (1.5%) per month, or the maximum rate permitted by law,
whichever rate is lower, on any unpaid balance owing by Buyer from the
date due until the date paid. It is agreed that title to any equipment
described herein not fully paid for at the time of delivery to Buyer
shall be retained by and remain in Seller until said purchase price is
fully paid and if the purchase price is to be paid on an installment
basis, Buyer will prior to the time of delivery execute a note, security
agreement and financing statement for such purchase price, all upon
forms customarily used by Seller in similar transactions.
DELIVERY. Unless otherwise specified, delivery will be made EXW (Incoterms
2000) the place or location of Seller's
factory from which Seller elects to make shipment, according to the
delivery schedule specified, which schedule is subject to delays due to
causes beyond Seller's control. Cancellation
or rescheduling of the delivery by Buyer may be subject to additional
charges by Seller.
FORCE MAJEURE (EXCUSABLE DELAY). Seller shall not be liable for
default or for delay in deliveries due to cause beyond its control and
without its fault or negligence, including but not limited to inability
to obtain material, labor or manufacturing facilities, acts of Nature, or
of the public enemy, any preference, priority or allocation order issued
by the Government, changes in applicable law or any other act of
Government, fires, floods, unusually severe weather, epidemics,
quarantine restrictions, strikes, freight embargoes, or delays of Seller's
suppliers. In the event of such delay, delivery dates shall be extended
accordingly for a period equal to the time lost by reason of such delay.
Seller shall use its reasonable efforts to remove the cause of delay and
resume work as soon as possible and to mitigate delivery schedule delay.
In no event shall Seller be liable for any damages. Seller reserves the
right to provide, at no change in price, a substitute product of equal
or better capability provided however that such substitute product
maintains the form, fit and functionality of the original equipment.
SHIPMENT AND RISK OF LOSS. In the absence of specific instructions,
Seller will select the carrier to whom delivery will be made for
shipment to Buyer. Except for its obligations under the sections hereof
entitled "Warranty" and "Patent and Copyright Indemnification," all
responsibility of Seller, including but not limited to risk of loss for
all items purchased hereunder by Buyer, shall pass to Buyer EXW (Incoterms
2000) the place or location of Seller's factory from which Seller elects
to make shipment at the time the articles are duly delivered to the
carrier. All claims to the carrier for equipment damaged or lost in
transit shall be made by the Buyer.
WARRANTY. The equipment sold hereunder and its associated software
delivered hereunder are subject to the following warranties:
Seller agrees to repair or replace at its discretion, without charge,
any such equipment, which is defective as to design, workmanship or
material, and which is returned to Seller at its factory, transportation
prepaid, provided:
Notice of the claimed defect is given Seller within one (1) year
from date of delivery and equipment is returned in accordance with
Seller's instructions.
Such equipment shall not be deemed to be defective, if, due to
exposure to any condition in excess of those published in the
equipment specification, it shall fail to operate in a normal
manner.
Seller's obligations with respect to
such equipment are conditioned upon the proper installation,
operation and maintenance of such equipment by Buyer in
accordance with Seller's written
directions.
The warranty stated in this Section 6A shall be void if such
equipment is altered or repair is attempted or made by other
than Seller or Seller's authorized
service center.
Seller warrants that any software delivered hereunder, either
embedded in equipment described herein or specifically designed for
use in or with such equipment, will substantially provide the
functions(s) set forth in the applicable specification (or absent a
specification, as described in the applicable Service Bulletin).
Seller will, at its option, without charge, revise or replace such
nonconforming software provided:
Notice of the claimed defect is given Seller within one (1) year
from the date of delivery.
Software shall not be deemed to be defective if the software or
the host medium is exposed to any computer virus or to any
condition in excess of those published in the applicable
specification(s).
Seller's obligations are conditioned
upon the proper installation and operation of software and the
host medium in accordance with Seller's
written instructions.
The warranty stated in this Section 6B shall be void if such
software (or its host medium) is altered (or alterations are
attempted) by other than Seller or Seller's
authorized service center.EXCLUSIONS: For purposes of this
warranty, the following equipment are excluded from coverage:
(i) Expendables, including but not limited to: light bulbs;
batteries; cables and accessories, (ii) Equipment and software
not manufactured by Seller or from Seller's
designs. Such third party equipment and software are subject
only to such adjustments as Seller may obtain from the supplier
thereof.
NO OTHER
WARRANTIES, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE
SHALL BE APPLICABLE TO ANY EQUIPMENT SOLD OR SOFTWARE DELIVERED
HEREUNDER, AND THE FOREGOING SHALL CONSTITUTE THE BUYER'S
SOLE RIGHT AND REMEDY UNDER THIS GENERAL CONDITIONS OF SALE.
PATENT AND COPYRIGHT INDEMNIFICATION. Seller agrees that it will
defend, at its own expense, all suits against Buyer for infringement of
any United States patent or copyright covering, or alleged to cover, the
equipment described herein in the form sold by Seller and Seller agrees
that it will pay all sums which, by final judgment or decree in any such
suits, may be assessed against the Buyer on account of such
infringement, provided that Seller shall be given (i) immediate written
notice of all claims of any such infringement and of any suits brought
or threatened against Buyer and (ii) authority to assume the sole
defense thereof through its own counsel and to compromise or settle any
suits so far as this may be done without prejudice of the right of the
Buyer to continue the use, as contemplated, of the equipment so
purchased. If in any such suit so defended the equipment is held to
constitute an infringement and its use is enjoined, or if in the light
of any claim of infringement Seller deems it advisable to do so, Seller
may either procure the right to continue the use of the same for the
Buyer, or replace the same with noninfringing equipment, or modify said
equipment so as to be noninfringing, or, if the foregoing options are
not reasonably available, take back the infringing equipment and refund
the purchase price less a reasonable allowance for use, damage or
obsolescence.
SOFTWARE LICENSE FOR EQUIPMENT SPECIFIC SOFTWARE. Software
delivered hereunder, either embedded in equipment described herein or
specifically designed for use in or with such equipment, is copyrighted
by Seller and shall remain the sole and exclusive property of Seller.
Seller grants the Buyer a perpetual, worldwide, nonexclusive license to
use the software only in or with the specific equipment for which it was
delivered. The Buyer shall not copy, modify, or disassemble the
software, or permit others to do so. Buyer shall not transfer the
license granted hereby or possession of the software except as part of
or with the equipment, such transfer being subject to the restrictions
contained herein. Seller may terminate this license upon written notice
for violation of any of the terms of the foregoing license.
GOVERNING LAW. This Agreement shall be construed in accordance
with, and the rights of the parties shall be governed by, the laws of
the State of Iowa, U.S.A., as the same would be applied to transactions
between residents thereof, but without regard to that state's
conflict of laws principles and specifically excluding the provisions of
the 1980 U.N. Convention on Contracts for the International Sale of
Goods. Buyer agrees to abide by all US Government laws and export
regulations, including without limitation those applicable to re-export,
and when required by such laws or regulations, Buyer shall apply for the
necessary and appropriate export licenses. Seller shall, at no charge to
Buyer, promptly provide reasonable support and documentation if required
for such export license application.
FEDERAL ACQUISITION REGULATION (FAR) CLAUSES APPLICABLE TO SALES TO THE
U.S. GOVERNMENT.
The word "Contractor," as used in the FAR, shall be synonymous with the
word "Seller" as used in these General Conditions of Sale and any
reference to the "Government" or to the "Contracting Officer" shall be
synonymous with the word "Buyer." Similarly, any reference to the word
"Supplies" shall be synonymous with the word "Products."
The clause set forth at FAR 52.212-4, CONTRACT TERMS AND CONDITIONS
- COMMERCIAL ITEMS as tailored herein [pursuant to FAR 12.302],
shall be applicable to all sales made directly to the U.S.
Government.
With respect to paragraphs (a) and (o) of the FAR clause, the Seller's
Warranty set forth above at Article 6 shall have precedence and
shall govern in the event of any post acceptance activity
contemplated by said paragraph (a). The Seller's
Warranty shall supersede and replace the Warranty set forth at said
paragraph (o) of the FAR clause.
With respect to paragraph (h) of the FAR clause, the Seller's
PATENT AND COPYRIGHT INDEMNIFICATION set forth above shall
supersede and replace the Patent Indemnity set forth at said
paragraph (h) of the FAR clause.
With respect to paragraph (k) of the FAR clause, the Seller's
provision entitled "TAXES" as set forth above at Article 1 shall
supersede and replace the Taxes provision set forth at said
paragraph (k) of the FAR clause.
With respect to paragraph(s) of the FAR clause, the
clarifications set forth in this paragraph shall have precedence
over all other provisions of this contract.
The clause set forth at FAR 52.212-5, CONTRACT TERMS AND CONDITIONS
REQUIRED TO IMPLEMENT STATUTES EXECUTIVE ORDERS - COMMERCIAL ITEMS,
as clarified herein, shall be applicable to all sales made directly
to the U.S. Government.
Paragraphs (b) and (c) of said clause shall only be applicable when
Buyer and Seller have duly executed an addendum to these General
Conditions of Sale specifically citing which of the clauses
referenced in paragraphs (b) and (c) are applicable to this
contract.
FEDERAL ACQUISITION REGULATION (FAR) CLAUSES APPLICABLE TO SALES TO
COMMERCIAL CONCERNS IN SUPPORT OF SALES TO THE U.S. GOVERNMENT. The
clause set forth at FAR 52.244-6, SUBCONTRACTS FOR COMMERCIAL ITEMS AND
COMMERCIAL COMPONENTS, and the FAR clauses cited therein, shall be
applicable to sales made hereunder only when such sales are specifically
identified in the order as being in support of U.S. Government prime
contract requirements. The actions required under the referenced clauses
made applicable under this paragraph shall constitute the entirety of
Seller's FAR obligations hereunder for such
sales.
NO
WAIVER. No failure by either party to exercise and no delay in
exercising any right, power or privilege hereunder will operate as a
waiver hereof, nor will any single or partial exercise of any right or
privilege hereunder preclude further exercise of the same right or the
exercise of any right hereunder. A waiver on one or more occasions of
any of the provisions hereof shall not be deemed a continuing one.
DISCLAIMER AND LIMITATION OF LIABILITY.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR LOSS OF PROFITS, OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE OF
OR INABILITY TO USE ANY EQUIPMENT OR ASSOCIATED SOFTWARE DESCRIBED
HEREIN EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER EQUIPMENT,
SOFTWARE OR OTHER MATERIALS EVEN IF SELLER HAS BEEN ADVISED OF THE
POSSIBILITY OR CERTAINTY OF SUCH DAMAGES. SELLER SHALL HAVE NO
OBLIGATION OR LIABILITY FOR ANY GRATUITOUS INFORMATION OR ASSISTANCE
PROVIDED BY, BUT NOT REQUIRED OF SELLER HEREUNDER. SELLER'S
TOTAL AGGREGATE LIABILITY HEREUNDER WHETHER BASED UPON CONTRACT, TORT
(INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, SHALL IN NO
EVENT EXCEED THE PRICE PAID BY BUYER FOR EQUIPMENT SOLD HEREUNDER.
ENTIRE CONTRACT. These General Conditions of Sale shall comprise
the exclusive terms, conditions and agreements of the parties respecting
sale of equipment described herein, and supersede any provisions on the
face and reverse side of Buyer's order or any
prior agreement inconsistent with the provisions hereof. Acceptance by
Buyer of such equipment covered hereunder shall, absent a contrary
agreement in writing signed by Seller, constitute acceptance of these
General Conditions of Sale. The invalidity of the whole or in part of
any provisions hereof shall not affect the validity of any other
provision. The headings of the sections herein have been inserted for
convenience of reference only and shall not affect the interpretation of
any of the provisions hereof.
TAXES. Except as otherwise specified, the prices stated do not include
any state, federal, or local sales, use or excise taxes applicable to the
repair, overhaul, delivery, or use of said equipment, and the Buyer
expressly agrees to pay to Seller, in addition to the prices stated, the
amount of any such taxes, domestic or foreign, which may be imposed upon or
payable by Seller.
TERMS. The net price for all repair, overhauls, or modifications
are required to be paid thirty (30) days after receipt of invoice.
Notwithstanding any statement of terms or time of payment appearing on
the face of the order, Seller reserves the right to require payment in
advance of shipment or to ship C.O.D. In the event Buyer fails to pay
any invoice when due, in addition to any other rights reserved
hereunder, Seller reserves the right to suspend or limit performance
until all past due sums are paid. Further, Seller reserves the right to
charge interest at the rate of one and one half percent (1.5%) per
month, or the maximum rate permitted by law, whichever rate is lower, on
any unpaid balance owing by Buyer from the date due until the date paid.
DELIVERY. Unless otherwise specified, Buyer shall deliver any
equipment returned for repair to Sellers designated repair facility,
transportation prepaid. Seller will return equipment to Customer's
designated receiving facility at Customer's
expense, according to the delivery schedule specified, which schedule is
subject to delays due to causes beyond Seller's
control including but not limited to, inability to obtain material,
labor, acts of Nature, or of the public enemy, any preference, priority or
allocation order issued by the Government or any other act of
Government, fires, floods, epidemics, quarantine restrictions, strikes,
freight embargoes, or delays of Seller's
suppliers. In the event of such delay, delivery dates shall be extended
accordingly for a period equal to the time lost by reason of such delay.
Partial deliveries are acceptable. Further, subject to Buyer failing to
accept/take delivery of serviced equipment within thirty (30) days of
the service completion date, and Buyer being notified in writing of such
infringement, Seller reserves the right to charge a one-hundred dollar
($100) storage fee for each subsequent thirty (30) day period that Buyer's
equipment is not claimed (first fee to be applied and invoiced sixty
(60) days after completion of service.)
SHIPMENT. In the absence of specific instructions Seller will
select the carrier to whom delivery will be made for shipment to Buyer.
Except for its obligations under the sections hereof entitled 'Warranty'
and 'Patents and Copyright Indemnification', all responsibility of
Seller for said equipment ceases upon delivery to carrier. All claims to
the carrier for equipment damaged or lost in transit shall be made by
the Buyer.
WARRANTY. The equipment repaired, overhauled or modified hereunder
and any software provided in connection therewith are subject to the
following warranties:
Seller agrees that it will correct, without charge, any defect in
material or workmanship provided by Seller for the repair, overhaul, or
modification work performed hereunder, provided that the equipment is
returned, transportation prepaid, to Seller's
service center which performed the repair work, subject to:
Unless another warranty duration is specified in writing and signed
by Seller, written notice of the claimed defect being given to
Seller within the period stated below:
Repair and Modification Labor and Material: Warranted for one
(l) year from date equipment is shipped.
Overhauled equipment shall be covered under this warranty
clause for a period of one (1) year from date shipped,
except for conditions set forth in C below. Any repair,
modification labor and material required to repair such
overhauled equipment within the one (1) year warranty period
will be performed at no cost and such repair and/or
modification shall be covered under this warranty clause for
the remaining balance of the one (1) year overhaul warranty.
Test Equipment Repair and Modification Labor and Material:
Warranted for sixty (60) days from date equipment is
shipped.
Seller's obligations with respect to
such equipment are conditioned upon the proper installation and
operation of such equipment by Buyer in accordance with Seller's
written directions.
The warranty stated in this Section 5A shall be void if such
equipment is altered or repair is attempted or made by other
than Seller or Seller's authorized
service center.
Seller warrants that any software delivered hereunder, either
embedded in equipment described herein or specifically designed for
use in or with such equipment, will substantially provide the
function(s) set forth in the applicable specification (or absent a
specification, as described in the applicable Service Bulletin).
Seller will, at its option, without charge, revise or replace such
nonconforming software provided:
Notice of the claimed defect is given Seller within one (1) year
from the date of delivery or one hundred eighty (180) days from the
date of first installation, whichever occurs first. An exception to
the aforementioned guidelines is Test Equipment, such notice of the
claimed defect is given Seller within sixty (60) days from date
equipment is shipped or from the date of first installation,
whichever occurs first.
Software shall not be deemed to be defective if the software or
the host medium is exposed to any computer virus or to any
condition in excess of those published in the applicable
specification(s).
Seller's obligations are conditioned
upon the proper installation and operation of software and the
host medium in accordance with Seller's
written instructions.
The warranty stated in this Section 5B shall be void if such
software (or its host medium) is altered (or alterations are
attempted) by other than Seller or Seller's
authorized service center.
Repair, overhaul, or modification shall not be deemed to be
defective if failure is caused by interface with other equipment,
customer caused damage, shipping or handling damage, or exposure to
conditions in excess of those published in the equipment
specifications.
The warranty of
these paragraphs is void if the equipment is altered or repair is
attempted or made by other than Seller or Seller's
authorized service center or Buyer has supplied non-Rockwell Collins'
material(s) used in the repair.
NO OTHER
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE SHALL BE
APPLICABLE TO ANY EQUIPMENT SOLD OR SOFTWARE REPAIRED, OVERHAULED OR
MODIFIED HEREUNDER, AND THE FOREGOING SHALL CONSTITUTE THE BUYER'S SOLE
RIGHT AND REMEDY UNDER THIS AGREEMENT.
PATENT AND COPYRIGHT INDEMNIFICATION. Seller agrees that it will
defend, at its own expense, all suits against Buyer for infringement of
any United States patent or copyright covering, or alleged to cover,
repair, overhaul, and modification of equipment and any software
associated therewith in the form delivered hereunder by Seller. Seller
agrees that it will pay all sums which, by final judgment or decree in
any such suits, may be assessed against the Buyer on account of such
infringement, provided that Seller shall be given (i) immediate written
notice of all claims of any such infringement and of any suits brought
or threatened against Buyer and (ii) authority to assume the sole
defense thereof through its own counsel and to compromise or settle any
suits so far as this may be done without prejudice of the right of the
Buyer to continue the use, as contemplated, of the equipment repaired or
modified hereunder. If in any such suit so defended such repair,
overhaul, or modification is held to constitute an infringement and its
use is enjoined, or if in the light of any claim of infringement Seller
deems it advisable to do so, Seller may either procure the right to
continue the use of the same for the Buyer, or replace the same with a
noninfringing equipment or modify said equipment so as to be
non-infringing, or remove the infringing apparatus and refund the price
of the repair, overhaul or modification, less a reasonable allowance for
use, damage, or obsolescence.
SOFTWARE LICENSE FOR EQUIPMENT SPECIFIC SOFTWARE. Software
delivered hereunder, either embedded in equipment described herein or
specifically designed for use in or such equipment, is copyrighted by
Seller and shall remain the sole and exclusive property of Seller.
Seller grants the Buyer a perpetual, worldwide, nonexclusive license to
use the software only in or with the equipment. The Buyer shall not
copy, modify, or disassemble the software, or permit others to do so.
Buyer shall not transfer the license granted hereby or possession of the
software except as part of or with the equipment, such transfer being
subject to the restrictions contained herein. Seller may terminate this
license upon written notice for violation of any of the terms of the
foregoing license.
GOVERNING LAW. This agreement shall be construed in accordance
with, and the rights of the parties shall be governed by, the laws of
the State of Iowa, USA, as the same would be applied to transactions
between residents thereof, but without regard to that state's conflict
of laws principles and specifically excluding the provisions of the 1980
UN. Convention on Contracts for the International Sale of Goods. The
Parties will abide by all U.S. Government laws and regulations,
including without limitation, those applicable to export regulations and
the export and re-export, as well as the regulations promulgated by the
U.S. Dept. of Treasury, Office of Foreign Assets Control ("OFAC"),
implementing Executive Orders which require the blocking of property or
interests in property of persons and/or companies listed on the
Specially Designed Nationals and Blocked Entities List. When required by
such export and import laws or regulations, Buyer will apply for the
necessary and appropriate export licenses. Rockwell Collins will apply
for an export license when necessary for the purpose of exporting
hardware and/or data to be provided under this Agreement to the Buyer or
end user during or at the completion of this Agreement. If U.S.
Government regulation or laws preclude the approval of the issuance of
such license or performance of this Agreement in any manner, such event
will not impede payment of the fees hereunder and is to be considered an
excusable delay and not a default under this Agreement. Rockwell Collins
will inform Buyer in writing of any delays or difficulties relating
thereto. Buyer is responsible for all charges associated with obtaining
an import or export license. If Rockwell Collins pays, on behalf of
Buyer, any fees or charges associated with the export or import of
Equipment or documentation, Buyer will reimburse Rockwell Collins for
such fees or charges. Rockwell Collins and Buyer are each responsible
for any fines imposed due to their own action or in-action. In addition,
Rockwell Collins will, at no cost to Buyer, promptly provide reasonable
support and documentation, if required, for export license application.
All costs and expenses associated with import, export or re-export will
be paid by Buyer or end user in accordance with Article 2 herein. Buyer
will identify all material being sent in for repair by Part Number,
Commodity Code, Description, End Use, End User, and indicate that the
equipment is being returned for repair. In connection with the
regulations promulgated by OFAC implementing Executive Orders which
require the blocking of property or interests in property of persons
and/or companies listed on the Specially Designated Nationals and
Blocked Entities List, regardless of whether Buyer is considered to be a
U.S. Person under such regulations, Buyer will comply with such
regulations relating to any transactions under this Agreement and will
not retransfer any product received from Rockwell Collins to any persons
or companies listed on the Specially Designated Nationals and Blocked
Entities List.
FEDERAL ACQUISITION REGULATION (FAR) CLAUSES APPLICABLE TO SALES TO THE
U.S. GOVERNMENT.
The word "Contractor", as used in the FAR, shall be synonymous with the
word "Seller" as used in these General Conditions of Sale and any
reference to the "Government" or to the "Contracting Officer"- shall be
synonymous with the word "Buyer". Similarly, any reference to the word
"Supplies" shall be synonymous with the word "Equipment".
The clause set forth at FAR 52.212-4, CONTRACT TERMS AND
CONDITIONS-COMMERCIAL TERMS, as tailored herein [pursuant to FAR
12.302], shall be applicable to all sales made directly to the U.S.
Government.
With respect to paragraphs (a) and (o) of the FAR clause, the Seller's
Warranty set forth above at Article 5 shall have precedence and
shall govern in the event of any post acceptance activity
contemplated by said paragraph (a). The Seller's
Warranty shall supersede and replace the warranty set forth at said
paragraph (o) of the FAR clause.
With aspect to paragraph (h) of the FAR clause, the Seller's
PATENT AND COPYRIGHT INDEMNIFICATION set forth above at Article
6 shall supersede and replace the Patent Indemnity set forth at
said paragraph (h) of the FAR clause.
With respect to paragraph (k) of the FAR clause, the Seller's
provision entitled 'TAXES' as set forth above at Article I shall
supersede and replace the Taxes provision set forth at said
paragraph (k) of the FAR clause.
With respect to paragraph (s) of the FAR clause, the
clarifications set forth in this Article shall have precedence
over all other provisions of this contract.
The clause set forth at FAR 52.212-5, CONTRACT TERMS AND CONDITIONS
REQUIRED TO IMPLEMENT STATUTES EXECUTIVE ORDERS COMMERCIAL ITEMS, as
clarified herein, shall be applicable to all sales made directly to
the U.S. Government.
Paragraphs (b) and (c ) of said clause shall only be applicable when
Buyer and Seller have duly executed an addendum to these General
Conditions of Sale specifically citing which of the clauses
referenced in paragraphs (b) and (c ) are applicable to this
contract.
FEDERAL ACQUISITION REGULATION (FAR) CLAUSES APPLICABLE TO SALES TO
COMMERCIAL CONCERNS IN SUPPORT OF SALES TO THE U.S. GOVERNMENT. The
clause set forth at FAR 52.244-6, SUBCONTRACTS FOR COMMERCIAL ITEMS AND
COMMERCIAL COMPONENTS, and the FAR clauses cited therein, shall be
applicable to sales made hereunder only when such sales are specifically
identified in the order as being in support of U.S. Government prime
contract requirements. The actions required under the referenced clauses
made applicable under this Section shall constitute the entirety or
Seller's FAR obligations hereunder for such sales.
NO WAIVER. No failure by either party to exercise and no delay in
exercising any right power or privilege hereunder will operate as a
waiver hereof, nor will any single or partial exercise of any right or
privilege hereunder preclude further exercise of the same right or the
exercise of any right hereunder. A waiver on one or more occasions of
any of the provisions Hereof shall not be deemed a continuing one.
LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, OR BUSINESS
INTERRUPTION) RELATING TO OR ARISING UNDER THIS CONTRACT AND/OR THE USE
OF OR INABILITY TO USE ANY PRODUCT, EQUIPMENT OR ASSOCIATED SOFTWARE
DESCRIBED HEREIN, EITHER SEPARATELY OR IN COMBINATION WITH] ANY OTHER
PRODUCT, EQUIPMENT, SOFTWARE OR OTHER MATERIALS, EVEN IF SELLER HAS BEEN
ADVISED OF THE POSSIBILITY OR CERTAINTY OF SUCH DAMAGES. SELLER'S TOTAL
AGGREGATE LIABILITY HEREUNDER, WHETHER BASED UPON CONTRACT, TORT
(INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, SHALL IN NO
EVENT EXCEED THE PRICE PAID BY BUYER HEREUNDER.
PHYSICAL DAMAGE AND CANNIBALIZATION. Except as otherwise specified,
prices stated are for equipment subjected to normal use only. Physically
damaged or cannibalized equipment, or equipment which has a secondary
failure or parts availability problems, will be repaired only after
Buyer approval of an estimate of additional charges.
PRESERVATION, PACKING, AND PACKAGING. Except as otherwise
specified, Seller will use commercial standards to preserve, pack, and
package equipment for return shipping to Buyer. Equipment returned to
Seller's service center must be packaged in the original shipping
container or equivalent. Seller reserves the right to charge Buyer the
cost of such proper shipping container for return shipment should Buyer
fail to comply with the aforementioned shipping requirement.
ENTIRE CONTRACT. These General Conditions of Sale shall comprise
the exclusive terms, conditions and agreements of the parties respecting
Repair, Modification or Overhaul described herein, and supersede any
provisions on the face and/or reverse side of Buyer's order or any prior
agreement inconsistent with the provisions hereof. Acceptance by Buyer
of such Repair, Modification or Overhaul covered hereunder shall, absent
a contrary agreement in writing signed by Seller, constitute acceptance
of these General Conditions of Sale. The invalidity of the whole or in
part of any provisions hereof shall not affect the validity of any other
provision. The headings of the sections herein have been inserted for
convenience of reference only and shall not affect the interpretation of
any of the provisions hereof.
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