All descriptions, quotations, proposals, offers, acknowledgments, acceptances and sales of goods and related services (hereinafter referred to as "goods") of Continental Aerospace Technologies, Inc. (CONTINENTAL) are subject to the terms and conditions set forth on the face and back of this form which constitutes CONTINENTAL’s contract for sale of the goods ("Contract"). CONTINENTAL’s acceptance of any offer by Buyer (as designated on the face of this Contract) is expressly conditioned on Buyer's assent to the express terms contained on the face and back of this Contract, whether additional to or different from those contained in Buyer's purchase order or any other form or document previously or hereafter supplied by Buyer to CONTINENTAL. Buyer will be deemed to have assented to these terms and conditions unless CONTINENTAL receives notice of objections within 10 days after Buyer's receipt of this Contract or prior to delivery or other performance of Buyer's purchase order, whichever occurs earlier.
All quotations by CONTINENTAL are subject to change or withdrawal without prior notice to Buyer unless otherwise specified in the quotation. Quotations are subject to CONTINENTAL’s approval of Buyer's credit.
This contract is not an offer to sell by CONTINENTAL. If, however, this Contract is deemed to be an offer to sell, acceptance of this Contract is expressly limited to acceptance of the express terms and conditions contained on the face and back of this Contract. Any proposal for additional or different terms in any document supplied by Buyer or any attempt by Buyer to vary in any degree any of the terms of the offer in Buyer's acceptance is hereby objected to and rejected.
Prices are F.O.B. CONTINENTAL’s plant. All prices quoted are subject to change, without notice, at any time prior to CONTINENTAL's acceptance of Buyer's order. Prices are exclusive of applicable sales, excise, manufacturer's, use or other taxes, duties, tariffs or similar charges levied by either local, state or federal authorities. All such taxes, duties, tariffs or similar charges are for Buyer's account.
Terms of payment shall be net 30 days, from date of shipment or receipt of invoice, whichever is earlier, unless otherwise specified on the face of this Contract. Payments are to be made in United States funds. Delinquent accounts will be charged interest at the rate of 1½% per month, or the maximum allowed by applicable law, whichever is lower. If Buyer defaults in any payment when due under this Contract or any other contract, CONTINENTAL, at its option and without prejudice to its other lawful remedies, may defer delivery or cancel this Contract.
If the financial condition of Buyer at any time does not, in the judgment of CONTINENTAL, justify continuance of the work to be performed by CONTINENTAL hereunder on the terms of payment agreed upon, CONTINENTAL may require full or partial payment in advance or shall be entitled to cancel any order then outstanding and shall receive reimbursement for its reasonable and proper cancellation charges. In the event of bankruptcy or insolvency of Buyer or in the event any petition is filed against Buyer, voluntarily or involuntarily, under the bankruptcy or any insolvency laws, Buyer agrees that these terms and conditions shall not be deemed to constitute an executory contract and that CONTINENTAL shall be entitled to cancel any order then outstanding at any time during the period allowed for filing claims against the estate and shall receive reimbursement for its reasonable and proper cancellation charges. The rights of CONTINENTAL under this paragraph are cumulative and in addition to all rights available to CONTINENTAL at law or in equity.
DELIVERY; RISK OF LOSS
Unless otherwise stated on the face of this Contract, delivery shall be F.O.B. CONTINENTAL's plant. All delivery dates are estimates. CONTINENTAL SHALL NOT BE LIABLE FOR ANY LOSSES, DAMAGES OR PENALTIES IF ESTIMATED SHIPPING OR DELIVERY DATES ARE NOT MET. CONTINENTAL reserves the right without penalty to deliver prior to requested delivery dates and to deliver in installments, each to be separately invoiced and paid when due without regard to subsequent deliveries. Risk of loss shall pass to Buyer upon CONTINENTAL's delivery to a carrier at CONTINENTAL's plant. Buyer shall inspect products immediately upon receipt, notify CONTINENTAL in writing of any claims for shortages, defects or damages and hold the damaged or defective products for CONTINENTAL's written instructions concerning disposition. If Buyer fails to so notify CONTINENTAL within 10 days after the goods have been received by Buyer, the goods shall conclusively be deemed to conform to the terms, conditions and specifications of this Contract and to have been accepted by Buyer. Goods may be returned at the expense of CONTINENTAL only after inspection by CONTINENTAL and upon receipt by the Buyer of definite shipping instructions from CONTINENTAL. Goods returned prior to receiving shipping instructions from CONTINENTAL or which do not conform to such instructions are at Buyer's sole risk and expense. Buyer shall pay all transportation charges covering any goods returned to CONTINENTAL that are not defective. CONTINENTAL shall have the right to cure the tender of damaged or defective goods by substituting a conforming tender within a reasonable time.
CONTINENTAL shall not be responsible for delays or failures in performance and shall have no liability to Seller resulting from causes beyond its reasonable control. Causes beyond CONTINENTAL's reasonable control include but shall not be limited to acts of God, epidemics, earthquakes, unusually severe weather, floods or other natural disasters, war, riot, fire, accident, explosion, strikes or other labor trouble, government acts or omissions, delay or default by subcontractors or suppliers of materials or services, transportation difficulty or shortages in labor, fuel, materials, supplies or power at current prices (the "Force Majeure Event").
If a Force Majeure Event impairing CONTINENTAL's performance should last more than 30 days, CONTINENTAL may elect, at its option, to terminate this Contract.
If CONTINENTAL is unable because of a Force Majeure Event to supply the total quantity of goods specified in Buyer's order, CONTINENTAL may allocate its available supply among any or all of its buyers on such basis as CONTINENTAL may deem commercially fair and practical, without liability for any failure of performance which may result therefrom.
PACKING; STORAGE; SPECIAL SERVICES
Prices do not include storage, packing or cartage service. Storage for any reason, including a Force Majeure Event, shall be at Buyer's risk and expense.
Buyer may make a written request for changes in drawings, designs or specifications for the goods, but acceptance of any requested change shall be at CONTINENTAL's sole discretion, must be in writing and shall be upon such terms and conditions as CONTINENTAL may require. If any such change causes an increase or decrease in the cost of or in the time required for performance, an equitable adjustment shall be made and this Contract modified accordingly.
WARRANTY DISCLAIMER AND EXCLUSION OF CONSEQUENTIAL DAMAGES.
CONTINENTAL warrants the goods it sells with respect to defects and otherwise only under the terms of its published written warranties applicable to such goods. The provisions of such warranties are hereby incorporated by reference into these terms and conditions. Copies of these warranties are available upon request. THE SOLE AND EXCLUSIVE REMEDY UNDER CONTINENTAL’s WRITTEN WARRANTIES IS LIMITED TO REPAIR OR REPLACEMENT AS SPECIFIED IN SUCH WARRANTIES. THERE ARE NO OTHER WARRANTIES EXPRESS OR IMPLIED APPLICABLE TO THE GOODS SOLD BY CONTINENTAL TO BUYER. SPECIFICALLY, BUT WITHOUT LIMITATION, THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT WILL CONTINENTAL BE RESPONSIBLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY DEFECT IN ANY GOODS IT SELLS, ARISING OUT OF THE FAILURE OF ANY GOODS IT SELLS TO OPERATE OR PERFORM PROPERLY OR ADEQUATELY, OR ARISING OUT OF ANY BREACH OF CONTINENTAL'S WRITTEN WARRANTIES. No person is authorized to give any other warranty or to assume any additional obligation or liability on behalf of Seller.
There are no understandings, agreements, representations, or warranties, either oral or written, relative to the goods sold by CONTINENTAL, including statements made in or conduct implied from past dealings, that are not fully expressed or incorporated herein, except for Converter Customer Program Agreements as applicable. No statement, recommendation, or assistance made or offered by CONTINENTAL through its representatives in connection with the use of any goods sold shall be or constitute a waiver by CONTINENTAL of any of the provisions hereof. The provisions of this document supersede and cancel any previous understanding or agreement between the parties with respect to the subject matter hereof, and, except for clerical errors, this document shall express the complete and final understanding of the parties.
LIQUIDATION OF DAMAGES AND LIMITATION OF REMEDY
CONTINENTAL's liability on any claim of any kind, including negligence, for any loss or damage arising out of, connected with, or resulting from the performance or breach of any contract of sale shall be liquidated as the price allocable to the goods which gives rise to the claim. IN NO EVENT WILL CONTINENTAL BE RESPONSIBLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM SUCH PERFORMANCE OR BREACH.
ANY ACTION FOR BREACH OF CONTRACT MUST BE COMMENCED WITHIN ONE YEAR FROM THE DATE WHEN TENDER OF DELIVERY OF THE PRODUCT WHICH GIVES RISE TO THE CLAIM IS MADE. The provisions of this contract are for the benefit of the parties hereto and not for any other person.
Buyer's order and this Contract may not be terminated or canceled, either in whole or in part, without CONTINENTAL's written consent, and then only under terms that will reimburse CONTINENTAL for all applicable costs incurred by it, including but not limited to the costs of purchased materials and a reasonable allowance for profit.
CONTINENTAL does not warrant that the use or sale of the goods delivered under this Contract will not infringe the claim of any patents covering the goods themselves or their use in combination with other products or in operation of any process. The sale of goods under this Contract is not intended as an inducement to infringe nor shall it be construed as recommending the infringement of any patent, extending any license, express or implied, or assuming any liability under any issued or pending patent. If goods are to be manufactured to meet Buyer's specifications, requirements or designs, Buyer will defend, indemnify and hold CONTINENTAL (and its officers, directors, employees, agents, customers and other vendors) harmless from and against any and all claims, demands, suits, proceedings, costs, liabilities, expenses, royalties, profits, judgments, fines or penalties, including interest, court costs and attorney's fees, which, in whole or in part, arise out of or are in connection with any actual or alleged infringement or violation of any patent, registered design, copyright, trademark, tradename, license or other proprietary right of any third party, relating to the manufacture, sale or use of the goods.
This Contract shall be governed by the laws of the State of Alabama without regard to its choice of law rules.
Buyer shall consider all materials and information furnished by CONTINENTAL in the course of bidding, negotiating or performing this Contract to be confidential and proprietary to CONTINENTAL and shall not disclose any such materials or information to any other persons, or use such material or information itself for any purpose other than performing this Contract unless Buyer obtains prior written permission from CONTINENTAL to do so. All such material and information shall be returned to CONTINENTAL upon termination of this Contract for any reason. Unless otherwise agreed in writing, no information or knowledge, whether commercial, financial, or technical or otherwise, disclosed in any manner or at any time by Buyer to CONTINENTAL shall be deemed proprietary or confidential. CONTINENTAL may use such information or knowledge without restriction.
a. Entire Agreement; Amendment. This Contract, together with any documents referred to on the face hereof, constitutes the complete and exclusive agreement between the parties, herein, except for Converter Customer Program Agreements as applicable. All prior and contemporaneous agreements, understandings and proposals, oral or written, between the parties relating to this subject area are null and void and superseded by this Contract, herein, except for Converter Customer Program Agreements as applicable. This Contract may be modified or amended only by a writing signed by a duly authorized representative of both parties.
b. Waiver, Severability. No right or obligation of a party shall be waived and no breach excused unless the waiver or consent is in writing and signed by a duly acknowledged representative of the party claimed to have waived or consented. Any provision of this Contract prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remaining provisions of the Contract.
c. Assignment. Buyer may neither delegate its performance nor assign any rights or claims under this Contract without the prior written consent of CONTINENTAL, which may be granted or withheld in CONTINENTAL's sole discretion. Any such attempted delegation or assignment shall be void. CONTINENTAL may subcontract the performance of any of the work under this Contract without Buyer's permission.
d. Continuing Obligations. Each party's rights and obligations under paragraphs 2, 7, 11, 12 and 13 shall survive cancellation or termination of this Contract.
e. Notices. All notices under this Contract shall be in writing and shall be deemed duly given if hand-delivered or if mailed by United States certified mail, prepaid, return receipt requested, or by Federal Express, to the parties or registered at the address stated on the face of this Contract (or to such other individual or address specified by either party in a notice to the other). Notice is effective upon receipt.
f. Security Interest. To secure Buyer's obligation to make full payment to CONTINENTAL, Buyer grants to CONTINENTAL a security interest in all goods until the price for such goods is fully paid. Buyer agrees to execute financing statements and other documents reasonably necessary to create and perfect the security interest granted under this paragraph, each in form and substance satisfactory to CONTINENTAL and its counsel.