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1. GENERAL OFFER AND ACCEPTANCE. Notwithstanding any other provision
of any proposal, purchase order, or other similar document, the
following terms and conditions shall apply to any sale of products or
services by Universal Avionics Systems Corporation (“Universal”), an
Arizona corporation having its principal place of business at 3260 E.
Universal Way, Tucson, Arizona 85756. Any order covering the sale of
Universal’s products and services shall be governed solely by these
General Terms and Conditions (“GTCs”). Universal shall not be deemed
to have waived the GTCs if it fails to object to provisions appearing
on, incorporated by, referenced in, or attached to customer’s order
which provisions are hereby expressly rejected. Customer's order shall
be deemed accepted when Universal sends an acknowledgement to
customer. Universal reserves the right to reject any order, in its
sole discretion. Customer’s silence, acceptance, or use of the products
constitutes its acceptance of the GTCs.
2. PRICES. The prices for the products and services shall be at
Universal’s standard prices in effect at the time of shipment unless
otherwise agreed to in writing by Universal. If such prices are based
on the purchase of a particular quantity of products and customer
fails to purchase such quantity, Universal shall have the right to
collect from customer the difference between the price paid by
customer for the products purchased and Universal's standard price for
such products in the quantity purchased by customer. Prices do not
include shipping charges. All shipping charges are the responsibility
of customer. Prices do not include applicable taxes including, without
limitation, excise, sales or use taxes. Any taxes (other than taxes
due on Universal’s net income) that are payable on transactions
hereunder shall be the responsibility of customer. Universal reserves
the right to invoice customer for any such taxes that are or may
become payable by Universal. Customer shall supply Universal with a
copy of an appropriate tax exemption certificate. Universal reserves a
security interest in any products sold to the extent of the invoiced
amount to secure payment of customer's obligation. At Universal's
request, customer will execute any instrument Universal shall desire
to perfect its security interest.
3. PAYMENT. All payments are due and payable thirty (30) days from
the date of invoice, provided however, that Universal shall have the
right, in its sole discretion, to require payment before shipment or
payment via letter of credit in the event Universal determines that
customer is delinquent in payment or will exceed its credit limit.
Payments shall be made in U.S. dollars to Universal Avionics Systems
Corporations, in accordance with the remittance instructions on the
invoice. If all the products and services ordered are not delivered
or performed at one time, customer shall pay the unit prices
applicable to the products delivered or services performed. Each
shipment shall be considered a separate and independent transaction.
Late payment of invoices may be assessed a charge equal to the lesser
of 1.5% per month of the balance due or the maximum rate of interest
permitted in accordance with the laws of the State of Arizona. The
customer will be charged twenty dollars ($20.00) plus bank fees for
each check returned due to insufficient funds. All products and
services ordered shall at all times be subject to the credit approval
of Universal. Universal may at any time decline to make any shipments
or deliveries, or perform any services except upon receipt of payment
for such product or service.
4. PACKAGING AND DELIVERY. All packaging will be performed by
Universal in accordance with Universal’s standard practices. Universal
shall make reasonable efforts to meet the proposed Delivery schedule
provided Universal’s standard lead times are observed. However,
Universal shall not be liable for, nor shall Universal be in breach
of, its obligations to customer because of any delays in Delivery.
Title and all risk of loss or damage to the products shall pass to
customer upon Delivery. “Delivery” means Delivery F.O.B. Universal's
Tucson, Arizona facility. All returns must be made within thirty (30)
days from the date of Delivery and may be subject to a fifteen percent
(15%) restocking fee.
5. INSPECTION. Within two (2) business days of receipt of the
products, customer shall inspect the products to check for shortages
or other non-conformity. Customer shall notify Universal of any
discrepancies within two (2) business days of inspection. Failure of
customer to comply with this Section may result in customer’s
inability to file a claim for such discrepancy. Notwithstanding the
above, all claims for loss or damage to the product caused after
Delivery are the sole responsibility of customer and customer is
responsible for pursuing such claims directly with the shipping
company.
6. CANCELLATION. Customer may not cancel an order without Universal's
prior written consent. Universal will inform customer of cancellation
fees, if any, that may be incurred by customer in the event of such
cancellation.
7. EXCUSABLE DELAY. Universal shall not be liable for any failure to
deliver, or delay in the Delivery of, any products or services due to
any cause beyond its reasonable control, including but not limited to
acts of God, acts of civil or military authority, fires, epidemics,
floods, riots, wars, sabotage, labor disputes, governmental actions or
inability to obtain materials, components, energy, manufacturing
facilities, or transportation. In the event of any such delay, the
date of Delivery or performance hereunder shall be extended by a
period equal to the time lost by reason of such delay. In the event
Universal's production is curtailed for any of the above reasons,
Universal may allocate its production among its various customers.
Such allocation shall be made in a commercially fair and reasonable
manner.
8. WARRANTY. Universal’s warranties for products are governed solely
by Universal’s Warranty Certificate provided with the products at the
time of Delivery. Notwithstanding anything to the contrary herein, in
no event shall Universal be liable for any warranties whether express
or implied under this agreement or any other document except for the
warranties set forth in Universal’s Warranty Certificate.
9. DISCLAIMER. THE LIMITED WARRANTIES CONTAINED IN THE WARRANTY
CERTIFICATE PROVIDED WITH THE PRODUCT AT THE TIME OF SHIPMENT, ARE
PROVIDED IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT,
ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL UNIVERSAL BE LIABLE
FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES UNDER THESE
GTCs EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING,
WITHOUT LIMITATION, INTERRUPTION OF BUSINESS, LOSS OF PROFITS, OR LOSS
OF USE. THE EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES AS SET
FORTH IN THIS WARRANTY SHALL BE DEEMED INDEPENDENT OF, AND SHALL
SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY
UNDER THE TERMS OF THESE GTCs. UNIVERSAL’S AGGREGATE LIABILITY ON ANY
CLAIM FOR LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING
FROM THESE GTCs, OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM
THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR OR USE OF ANY PRODUCT
OR SERVICE COVERED BY OR FURNISHED UNDER THESE GTCs SHALL IN NO EVENT
EXCEED UNIVERSAL’S STANDARD PRICE OF THE PRODUCT, AT THE TIME OF
PURCHASE, WHICH GIVES RISE TO THE CLAIM.
11. INDEMNIFICATION. Customer agrees to indemnify, defend and hold
harmless Universal, its shareholders, directors, officers, employees,
agents and affiliated companies, from and against any losses, costs,
or damages (including reasonable attorneys’ fees), or any third party
claims, resulting from or in connection with any injury to persons,
real property or tangible personal property, or infringement of third
party rights, caused by, arising out of or related to (i) anything
customer provides Universal which is incorporated into Universal’s
product or service (including, but not limited to specifications,
designs, documents, reports, or data); (ii) customer’s modification of
Universal’s product or service; (iii) the combination, operation, or
use of a product or service with any product, data, or apparatus that
Universal did not provide; (iv) infringement by a non-Universal
product; or (v) the negligence or willful misconduct of customer or
its agents; or (v) from customer’s breach of any term of the GTCs.
12. CONFIDENTIALITY. The pricing terms provided to customer shall
remain confidential and customer shall not disclose such information
to any third party without the prior written consent of Universal.
13. APPLICABLE LAW/FORUM. These GTCs shall be governed in all
respects by the laws of the United States of America and the State of
Arizona without regard to conflicts of law principles. The Parties
agree that the United Nations Convention on Contracts for the
International Sale of Goods is specifically excluded from application
to the GTCs. All disputes arising under the GTCs shall be brought in
Superior Court of the State of Arizona in Pima County or the Federal
District Court of Tucson, Arizona. Such courts shall have sole
jurisdiction over any disputes under the GTCs, and the parties hereby
consent to the personal jurisdiction of such courts.
14. ASSIGNMENT. Customer may not assign its rights or obligations
under the order without the prior written consent of Universal, and
any purported assignment without such consent shall have no force or
effect.
15. WAIVER. Any waiver by Universal of any default of customer
hereunder shall not be deemed to be a continuing waiver of such
default or a waiver of any other default or of any of the terms and
conditions of the GTCs.
16. AMENDMENT. The terms and conditions of the GTC may not be
superseded, modified, or amended except in writing by stating that it
is such a modification and signed by an authorized representative of
each party hereto, provided, however, that Universal may modify the
specifications of the products sold hereunder if such modification
does not change the form, fit or function of such products.
17. EXPORT CONTROL LAWS. The parties hereby represent and warrant
that they are familiar with and will comply in all respects with
United States laws, regulations, and administrative requirements
applicable to the GTCs including but not limited to the Foreign
Corrupt Practices Act (“FCPA”), as amended; the International Traffic
In Arms Regulations (“ITAR”); the Export Administration Regulations (“EAR”);
the antiboycott and embargo regulations and guidelines issued under
the EAR, and the regulations of the United States Department of the
Treasury, Office of Foreign Assets Control.
18. INTERPRETATION. Ambiguities, inconsistencies, or conflicts in the
order will not be strictly construed against the drafter of the
contract language; rather, they shall be resolved by applying the most
reasonable interpretation under the circumstances, giving full
consideration to the intentions of the parties at the time of
contracting.
19. SEVERABILITY. The invalidity or enforceability of any particular
provision of the GTCs shall not affect the other provisions within the
GTCs, and the remaining provisions of the GTCs shall be construed in
all respects as if such invalid or unenforceable provisions were
omitted. In the event that any part of the GTCs is held by any court
or other judicial or administrative body to be null, void or
unenforceable, said provision shall survive to the extent it is not so
declared, and all of the other provisions of the GTCs shall remain in
full force and effect.
20. ENTIRE AGREEMENT. Customer’s order, along with these terms and
conditions and any documents incorporated by reference on the face
hereof (but expressly excluding any of the terms and conditions of
customer's order or any similar document issued by customer),
constitutes the entire agreement between customer and Universal with
regard to the products or services listed in customer’s order, and
expressly supersedes and replaces any prior or contemporaneous
agreements relating to such products or services unless such agreement
is in writing and signed by both parties and expressly states that the
GTCs are superseded. Any additional or different terms set forth or
referenced in customer’s order are hereby objected to by Universal and
shall be deemed a material alteration of this offer and not a part of
any resulting order, unless specifically agreed to in writing signed
by an authorized representative of Universal.
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