Terms and Conditions of Sale
1. Quotations. Written quotations by Patriot Fluid Power LLC., hereinafter referred to as “Seller,” shall expire automatically within thirty (30) days after the date appearing on the quotation unless Seller receives and accepts Buyer’s order within that period, but even prior to the expiration date any quotation is subject to change by Seller at any time upon verbal or written notice to Buyer.
2. Acceptance of Purchase Orders. Notwithstanding any contrary language of Buyer’s purchase order, each purchase order shall be subject to acceptance by an authorized employee of Seller and each transaction shall be governed exclusively by these Terms and Conditions of Sale. Such acceptance is expressly limited to these Terms and Conditions of Sale, and any additional or different terms proposed by Buyer are automatically rejected unless expressly assented to in writing by Seller. No contract shall exist except as hereinabove provided. SEE 19. PURCHASE ORDERS EXPORT/IMPORT CONTROLS.
3. Price Changes. All prices are subject to adjustment at time of delivery for cost changes incurred by Seller.
4. Taxes. Any and all sales, use, personal property or other taxes assessed upon any sale or products sold, which Seller is obligated to prepay, shall be added to the purchase price of the products.
5. Payment Terms. Payment terms are net 30 days and are effective from actual date of invoice unless otherwise agreed.
6. Releases. Seller shall not fabricate or ship any items except to the extent authorized in Buyer’s purchase order or in subsequent releases from Buyer +/-10%.
7. Packaging. The cost of standard bulk packaging for shipment in the United States and Canada is included in Seller’s price. Additional charges may be imposed for special domestic packaging, overseas packaging, or special marking performed at Buyer’s request and agreed to by Seller.
8. Shipment Terms. All shipments shall be made F.O.B. Seller’s factory unless otherwise agreed. Seller shall also be entitled to impose additional charges for the completion, at Buyer’s request, of forms with respect to shipping. Unless otherwise agreed, shipment may be made by lots of reasonable commercial size as Seller deems appropriate.
9. Title and Risk of Loss. Risk of loss or damage in transit shall be borne entirely by Buyer at all times after the products are delivered to the carrier for shipment. However, title to the products and the right to stop delivery in transit shall remain with the Seller until payment in full has been received by Seller.
10. Delays or Default in Delivery. Seller shall have no liability to Buyer for Seller’s delay or default in delivery due to strikes, secondary boycotts, riots, wars, accidents, fires, floods, explosions, vandalism, government embargoes, priorities or regulations, transportation delays, shortages of labor, fuel, materials, supplies, power, transportation facilities or tooling capacity or other similar or dissimilar causes beyond Seller’s reasonable control. Under no circumstances shall Seller have any liability for penalties or other consequential damages of any kind resulting in whole or in part from Seller’s delay in delivering, or failure to deliver, any products to Buyer as agreed.
11. Patent Infringements. With respect to all products manufactured to Buyer’s specifications, Buyer shall indemnify and hold Seller harmless from and against any and all lost, cost, expense, claims, demands, suits and judgments arising from actual or alleged patent infringements. With respect to all other products sold by Seller, Seller shall defend any suit or proceeding brought against Buyer on a claim that such a product, or any part thereof, directly infringes any U.S. patent, provided that Seller is notified promptly in writing and given all necessary information, assistance and authority to defend same. Seller shall pay all damages and costs awarded against Buyer as a result thereof. If as the result of such direct infringement, the court enjoins the use of any product, or part thereof, in the manner intended by Seller, Seller shall at its sole expense, at Buyer’s option: (a) procure for Buyer the right to continue using said product or part, (b) replace such product or part with a non-infringing product or part, (c) modify said product or part so that it becomes noninfringing or (d) remove said product or part and refund its purchase price and transportation costs. Seller shall have no further liability for actual or alleged.
12. Design and Technical Information. Seller claims proprietary rights in the items and information associated with this quotation and any purchase order issued by Buyer resulting from this quotation. Drawings and technical information are issued in confidence for engineering information and mutual assistance only and may not be publicly disseminated, reproduced or used by Buyer without Seller’s prior written consent and shall be returned when its purpose has been served.
13. Special Tooling. All tooling patterns, dies, jigs, fixtures and tool expense shown in connection with special production items are priced at Seller’s costs, and title shall be vested in Seller. Seller agrees to maintain and replace at Seller’s expense such equipment during the time that the respective items (without change) continue to be purchased from Seller. Equipment may be considered obsolete and scrapped by Seller if no items have been fabricated from it during a continuous period of one (1) year. Should Buyer wish to own the equipment outright, such purchase may be effected upon mutually agreed terms.
14. Exclusion of Warranties; Limitations of Damages. ANY WARRANTIES ON THE PRODUCTS SOLD BY PATRIOT FLUID POWER ARE THOSE MADE BY THE MANUFACTURER. Goods which Seller and Buyer agree violate such warranty shall be returned to Seller at Buyer’s expense for refund or replacement. SELLER WILL HAVE NO OTHER OBLIGATION WHATSOEVER WITH REGARD TO THE GOODS. THE AVOVE WARRANTY IS EXCLUSIVE, AND SELLER HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SELLER BE RESPONSIBILITY FOR CONSEQUENTIAL OR OTHER DAMAGES. PATRIOT FLUID POWER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY LIABILITY IN CONNECTION WITH THE SALE OF ITS PRODUCTS.
15. Cancellation. Cancellation of an order or portions thereof may be made by Buyer upon written notice to Seller received at least sixty (60) days prior to scheduled date of shipment. Upon receipt of such cancellation notice, production will be stopped as promptly as reasonable possible and Buyer will be liable for cancellation charges computed as follows: a. for all complete items, established prices; b. for all incomplete items, the full cost incurred by Seller up to the time of work stoppage plus Seller’s normal profit; less an amount equal to the purchase price of items that can be used currently to fill other orders and the scrap value of other items. Any items scheduled for shipment within thirty (30) days of Buyer’s request for cancellation will be paid for in full by Buyer.
16. Returns. No products shall be returned to Seller, whether for inspection, repair, replacement, or any other reason, without prior written consent from Seller.
17. Remedies. Any lawsuit or legal claim for breach of this order must be brought within one (1) year after the breach occurs.
18. Non-discrimination in Employment. Seller agrees that the representations and provisions required by Executive Order No. 11246 of September 24, 1965 (as amended by Executive Oder No. 11375 of October 13, 1967), the Rehabilitation Act of 1973 and the Vietnam Era Veterans Readjustment Act of 1974 relating to equal opportunity are hereby incorporated in and made a part hereof.
19. PURCHASE ORDERS EXPORT/IMPORT CONTROLS.
a. Seller shall control the disclosure of and access to technical data, information and other items received under this Purchase Order in accordance with U.S. export control laws and regulations, including but not limited to the International Traffic in Arms Regulations (ITAR). Seller shall indemnify Buyer for all liabilities, penalties, losses, damages, costs or expenses that may be imposed on or incurred by Buyer in connection with any violations of such laws and regulations by Seller.
b. Information furnished to Seller under this Purchase Order may contain technical data, as defined in ITAR 120.10. Seller is advised and hereby acknowledges that such technical data, relating to export controlled items appearing on the U.S. Munitions List (USML) at ITAR Part 121, may not be exported, disclosed or transferred, as defined in ITAR 120.17, to any foreign person (whether in the United States or abroad), as defined in ITAR 120.16, without first complying with all relevant requirements of ITAR Parts 120-130 (22 CFR 120-130), including the requirement for obtaining any written export authorization from the U.S. Department of State, Office of Defense Trade Controls (DTC), or otherwise make and document the determination that an ITAR licensing exemption applies, as the case may be. A downloadable copy of the ITAR is accessible at the DTC web site at www.pmdtc.org.
c. If performance under this Purchase order requires Seller to export, as defined in ITAR 120.17 temporarily import into the U.S. , as defined in ITAR 120.18, or reexport or retransfer, as defined in ITAR 120.19, defense articles, as defined in ITAR 120.6, or to export defense services, as defined in ITAR 120.9,relating to items appearing on the USML at ITAR Part 121, to a foreign person (whether in the United States or abroad), as defined in ITAR 120.16, Seller is advised and hereby acknowledges that such defense articles may not be exported ,temporarily imported, reexported or retransferred and such defense services may not be exported to a foreign person in the U.S. or abroad without complying with all relevant requirements of ITAR Parts 120- 130, including the requirement to obtain any written export, temporary import or reexport or retransfer authorization from DTC, or otherwise make and document the determination that an ITAR licensing exemption applies, as the case may be.
d. Seller is further advised that if it engages in the United States in the business of either manufacturing or exporting defense articles as defined in ITAR 120.6 or defense services as defined in ITAR 120.9, then Seller is required by ITAR Part 122 to register with the U.S.
e. Department of State, Office of Defense Trade Controls (DTC) using forms accessible at the DTC web site at www.pmdtc.org. Manufacturers of defense articles who do not engage in exporting of same must nevertheless register with DTC. Registration does not by itself confer export rights or privileges, but is generally a precondition to the issuance of any license or other approval by DTC.
f. Information furnished to Seller under this Purchase Order, if not regulated by the ITAR, may contain technical data, as defined in the U.S. Department of Commerce, Bureau of Industry and Security (BIS), Export Administration Regulations (EAR) Part 772 (15 CFR 772) relating to export controlled items appearing on the Commerce Control List (CCL) at EAR Part 774 (15 CFR 774). Seller is advised and acknowledges that such technical data may not be exported out of the U.S. or to a foreign national in the U.S., as defined in EAR Part 772, without complying with all relevant requirements of EAR Parts 730- 774(15 CFR 730-774), including the requirement to obtain any written export authorization from BIS, or to otherwise make and document the determination that a licensing exception applies, as the case may be. A downloadable copy of the EAR is accessible at the BIS web site at www.bis.doc.gov.
g. If performance under this Purchase Order requires Seller to export or reexport, as defined in EAR Part 772, commodities, technology or software as defined in EAR Part 772, that do not relate to items appearing on the USML, but do relate to items appearing on the CCL, Seller is advised and hereby acknowledges that such commodities, technology or software may not be exported out of the U.S., reexported from one foreign country to another foreign country or to a foreign national outside the U.S. without complying with all relevant requirements of EAR Parts 730-774, including the requirement to obtain any written export authorization from BIS, or to otherwise make and document the determination that a licensing exception applies, as the case may be.
h. If performance under this Purchase Order requires the Seller to permanently import into the U.S. articles appearing on the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) U.S. Munitions Import List at 27 CFR Part 21, Seller is advised and hereby acknowledges that such items may not be permanently imported into the U.S. without an approved import permit issued by ATF pursuant to 27 CFR Part 447, Subpart E, unless an exemption applies. Additionally, if Seller is engaged in the business, in the U.S., of importing articles appearing on the U.S. Munitions Import List, Seller must register with ATF pursuant to 27 CFR Part 447, Subpart D. Downloadable copies of the ATF regulations and forms are accessible at the ATF web site at www.atf.treas.gov.
i. If performance under this Purchase Order requires the Seller to export out of the U.S. machineguns, destructive devices, explosives and certain other firearms, as defined in 27 CFR Part 479,Subpart B, Seller is advised and hereby acknowledges that such items may not be exported out of the U.S. without an approved export permit issued by ATF pursuant to 27 CFR Part 478, Subpart K and 27 CFR Part 479, Subpart H. Seller is also advised that an approved export license issued by the U.S Department of State, Office of Defense Trade Controls (DTC) may also be required pursuant to the relevant requirements of the ITAR.