KRATOS General Microwave Terms and Conditions of Sale
1. CONTROLLING PROVISIONS: Seller is the division/subsidiary of KRATOS. that accepts the order of the Buyer. ALL SALES ARE EXPRESSLY LIMITED TO AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED EXCLUSIVELY BY THE TERMS AND CONDITIONS STATED HEREIN WHETHER THIS CONTRACT, OF WHICH THIS CONDITIONS OF SALE IS A PART, REPRESENTS AN OFFER BY SELLER OR SELLER’S CONDITIONAL ACCEPTANCE OF BUYER’S OFFER. SELLER’S OFFER IS EXPRESSLY CONDITIONED ON BUYER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS CONTRACT. SELLER’S ACCEPTANCE OF BUYER’S OFFER IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THE TERMS AND CONDITIONS OF THIS CONTRACT No addition to, waiver or modification of these terms and conditions shall be binding on Seller unless expressly agreed to in writing by Seller. All quotations or resulting contracts shall be interpreted under the laws of the State of Delaware and exclude the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods and the U. N. Convention on the Limitation Period in the International Sale of Goods, as amended by Protocol. No sale shall be final until acknowledged in writing by Seller. All offers involving the export of goods are contingent upon the ability of Seller to get required export license(s).
2. TERMS, TAXES AND PRICES: (a) Terms of payment are subject to the approval of Seller’s credit department. Unless otherwise agreed to in writing by Seller, all payments are due net thirty (30) days from the date of invoice. In the event that the Buyer his failed to pay Seller for products or services ordered under different contracts or under this Contract as required by the terms and conditions of said contracts or Contract Seller, at its option shall have the right to make any delivery under this Contract payable on a cash before shipment basis. In the case of export sales, unless otherwise agreed to in writing by Seller, all payments are to be by means of a confirmed irrevocable letter of credit. (b) In addition to the prices specified in the Contract between the parties, (referred to in this Conditions of Sale as “Contract”), Buyer shall pay Seller the amount of any excise, sales, privilege, use or any other taxes or government charges, local, state or federal, which arise from the sale or delivery of the products, or in lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to the appropriate taxing authorities. (c) Prices and deliveries are F.O.B.. Ex Works Seller’s plant. Prices on accepted orders and covering Seller-manufactured products are firm for a period of six months from date of acceptance. Seller reserves the right to increase the prices at the time of shipment to the extent of any increase in cost to it of any item not of Sellers manufacture on which firm prices were not available on the date of acceptance.
3. SHIPMENT: Deliveries are F.O.B. Ex Works Seller’s plant. Risk of loss shall pass to the Buyer upon delivery to the carrier. Any claims for damage or loss in shipment are between the carrier and Buyer. Seller shall not be involved in such claims beyond Seller’s assistance is processing and securing information pertaining to such damage claims.
4. DELAYS: The delivery date(s) under the Contract is only an estimate and is based upon prompt receipt of all necessary information from Buyer. The delivery date(s) is subject to and shall be extended by delays caused by strikes. fires, accidents, shortages of labor or materials, embargoes. or delays in transportation, compliance with government agency or official requests, or any other similar or dissimilar cause beyond the reasonable control of Seller. FAILURE TO DELIVER WITHIN THE TIME ESTIMATED SHALL: NOT BE A BREACH OF CONTRACT ON SELLER’S PART AND IN NO EVENT WHATSOEVER WILL SELLER BE RESPONSIBLE OR BUYER ENTITLED TO ANY DIRECT OR INDIRECT INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OR OF OR RELATING TO ANY DELAY IN DELIVERY. If Buyer causes Seller to delay shipment or completion of work, Seller shall be entitled to any and all extra cost and expenses resulting from such delay.
5. CANCELLATIONS AND ALTERATIONS: (a) Accepted orders may by cancelled by Buyer only with Seller’s express written consent. If cancellation is allowed, Buyer agrees to pay to Seller all expenses incurred and damage sustained by Seller on account of such cancellation, plus a reasonable profit. (b) The delivery date(s) or specifications of accepted orders, whether completed or in process, cannot be altered except by Seller’s express written consent and upon terms which will indemnify Seller for all expenses incurred and damages sustained by Seller on account of such alteration, plus a reasonable profit
6 WARRANTY: Subject to the terms, conditions and limitations hereinafter set forth, Seller warrants, to the original Buyer only, each new product manufactured by seller to be free from defects in material and workmanship. Seller’s entire and exclusive obligation and liability, and Buyer’s sole and exclusive remedy, under the warranty is limited to repairing or replacing at Sellers option, free of charge; F.O.B. Ex Works Seller’s plant, any part proving defective during the duration of this express warranty. The obligations of Seller under this warranty shall not include any transportation cost, labor costs,. installation costs. or other costs or charges associated with the repair or replacement This warranty shall not be enforceable if the Buyer is in default in making any contract payment The duration of this express warranty (a) for new equipment is one year from the date of shipment and (b) for any SELLER replacement part is 90 days after the date of installation, but no more than 6 months after shipment. This warranty does not cover failures caused in whole or in part by (1) improper installation, by other than SELLER, or maintenance; (2) improper use or application; (3) corrosion; (4) normal deterioration; (5) operation beyond rated capacity, (6) the use of replacement parts or lubricants which do not meet or exceed Seller’s specifications, or (7) improper repairs. Products furnished, but not manufactured by Seller, are not covered by this warranty, but by only such warranties as are given by the said manufacturers to Seller. To qualify for warranty consideration at the earlier of the Buyer’s discovery of the defect or the time at which the Buyer should have discovered the defect; Buyer must immediately notify Seller and must promptly thereafter return to Seller (freight prepaid) all defective parts. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WHICH ARE HEREBY DISCLAIMED THE OBLIGATION AND LIABILITY OF SELLER UNDER THE EXPRESS WARRANTY STATED SHALL NOT INCLUDE LIABILITY FOR LOSS OF USE, LOSS OF PROFITS OR ANY OTHER DIRECT OR INDIRECT INCIDENTAL OR CONSEQUENTIAL DAMAGES CAUSED BY THE FAILURE OF ITS PRODUCT OR ANY DEFECT IN THAT PRODUCT OR DELAY IN REMEDYING THE SAME.
7. LIABILITY: Seller shall not be liable to Buyer for (a) any losses; (b) any direct or indirect incidental or consequential damages or (c) any delays, caused by the failure of its product or any defect in that product, except to repair or replace defective parts as provided for in the Warranty provision. Seller’s warranty runs only to Buyer and does not extend expressly or by implications, to any other person. Buyer agrees that Seller’s fulfillment of its obligations under the Warranty provision shall constitute a fulfillment of all Seller’s liabilities. whether in contract or in tort, with respect to the Contract. Buyer also agrees that Seller shall not be liable for any damages to Buyer or to a third person arising out of the presence of the installed products on Buyer’s or third person’s premises or out of the use or operation thereof. In no event whatsoever, shall Seller be held liable to Buyer for any direct or indirect incidental, exemplary, or consequential damages
8. PATENTS: Seller agrees to indemnify. Buyer against all damages and costs recovered in any patent litigation upon Buyer’s use of Seller’s products in the manner intended by Seller in an amount not exceeding the sum paid for the infringing products provided (a) Buyer immediately notifies the Seller in writing of any such claim of infringement (b) Buyer allows Seller to employ counsel, conduct the defense to a finality and assist Seller with the defense; and (c) Buyer shall have paid for all the products or shall not be in default in any of the required payments. Seller assumes no liability as to possible patent infringement by virtue of the use of its products in combination with other elements or structures or the use of products manufactured to Buyer specifications. If any of its products should be held in any such suit to constitute infringement and its use enjoined Seller shall have the right, at Seller’s option, at its own expense, either to procure for Buyer the right to continue such use or to substitute, other non infringing or to remove such infringing products and refund to Buyer all money paid to Seller. Except as herein specifically provided, Seller shall not be liable to Buyer for any patent infringement by said products or any part thereof.
9. EQUIPMENT NOT SPECIFIED: Machinery, equipment, materials and labor services, including engineering or mechanical services. not specified in the Contract, are to be furnished in all cases by Buyer.
10. CHANGES OF CONSTRUCTION AND DESIGN: Seller reserves the right to change or revise the construction and design of the products purchased by Buyer, if in its judgment it is to its own or Buyer’s best interest to do so. Buyer agrees to bear the expense of meeting any changes or modifications in regulatory or code requirements which become effective after Seller has accepted Buyer’s order.
11. MATERIAL SPECIFIED BY CONTRACT: The Contract specifies the products supplied by Seller. The amount or the kind of such products is not changed nor increased by anything shown upon drawings furnished by Seller which are not a part of the Contract documents.
12. RETURNED PRODUCTS AND RESTOCKING: Including Products covered in paragraph 6, Products may not be returned without the express written consent of Seller and in accordance with shipping instructions from Seller. All transportation charges to and from Seller’s factory are to be paid by Buyer. Products made to special order are not returnable. A restocking charge of not less than twenty percent (20%) will apply on standard products accepted by Seller for a return and credit. Seller will not be responsible for the disposition of returned products unless the terms of this provision are complied with.
13. ENTIRE AGREEMENT: The parties agree that there an no agreements or representations express or implied, between the parties other than what is contained in this Contract of which this Conditions of Sale is a part. which represents the entire agreement between Seller and Buyer with the exception of those agreements, if any. expressly agreed to in writing by Seller. No course of prior dealings and no usage of the trade shall be relevant to supplement or explain any terms used in this Contract. The Contract between the parties may be modified or rescinded only by a writing signed by both Seller’s contracts representative and Buyer’s procurement representative.
14. CHARACTER OF PRODUCT AND SECURITY INTEREST: The products delivered by Seller under the terms of the Contract shall remain personal property and retain its character as such no matter in what manner affixed or attached to any structure or property. Buyer grants Seller a security interest in said products, including any proceeds there from, with remedy of self help until all sums due Seller have bean paid to it in cash.
15. FORCE MAJEURE: Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.
16. INSTALLATION: If installation by the Seller is included within this quotation, Purchaser shall provide all of the following at its own expense and at all times pertinent to the installation :
(a) Free, dry, unrestricted and continuous access to Purchaser’s premises.
(b) Proper foundations, lighting, power, water and storage facilities
Conditions of sale(1 year) 0509