AWI Terms and Conditions
TERMS AND CONDITIONS OF SALE
For purposes of these Terms and Conditions of Sale, the term "contract"
shall mean the agreement between All Weather, Inc., (hereinafter referred
to as "AWI") and Buyer arising as a result of Buyer's submission
of an order for AWI products, as hereinafter defined, for delivery and AWI's
acceptance of said order. Any such contract shall be deemed to incorporate
and be governed by these Terms and Conditions. These Terms and Conditions
shall take precedence over any terms and conditions that appear in Buyer's
order or in any documents incorporated by reference in Buyer's order. No term
or condition of Buyer's order additional to or different from these Terms
and Conditions shall become part of the contract unless explicitly referenced
and agreed to in writing by an authorized officer of AWI. Retention by Buyer
of any products delivered by AWI, or payment by Buyer of any invoice rendered
hereunder, shall be conclusively deemed acceptance of these Terms and Conditions.
AWI's failure to object to any provision contained in any communication from
Buyer shall not be construed as a waiver or modification of these Terms and
Conditions nor as an acceptance of any such provision.
1. Orders: By submitting an order to AWI, Buyer agrees to be subject
to these Terms and Conditions of Sale in their entirety. All orders must be
bona fide commitments showing mutually agreed to prices, quantities and shipping
dates. If an order is submitted to AWI in response to a written AWI quotation,
the order must contain the AWI Quotation number. No order or other commitment,
whether or not submitted in response to a quotation by AWI, shall be binding
upon AWI until such order or other commitment is accepted in writing by AWI.
2. Prices and Taxes: Prices do not include federal, state or local
taxes, including, without limitations, sales, use or excise taxes, now or
hereafter enacted, applicable to the products sold in this transaction, which
taxes may, in AWI's discretion, be added by AWI to the sales price or may
be billed separately and which taxes will, in any event, be paid by Buyer
unless Buyer provides AWI with a proper tax exemption certificate.
3. Delivery and Shipment: All products will be tendered and shipped
F.O.B. AWI's plant in California or Maryland, whichever is more convenient
for AWI, and may be so tendered in several lots. In the absence of specific
instructions, AWI will select the carrier and ship "collect", but
shall not be deemed thereby to assume any liability in connection with the
shipment nor shall the carrier be construed to be the agent of AWI. Buyer
must provide its own insurance. Title and risk of loss or damage to all products
sold hereunder shall pass from AWI to Buyer upon delivery by AWI to the possession
of the carrier, provided that AWI reserves a purchase money security interest
in the products. Any claims for loss, damage or missdelivery thereafter shall
be filed with the carrier.
4. Terms of Payment: Unless otherwise stated on AWI's invoice, all
payments shall be net thirty (30) days from date of invoice.
Buyer shall furnish to AWI all financial information reasonably requested
by AWI from time to time for the purpose of establishing or continuing Buyer's
credit limit. Buyer agrees that AWI shall have the right to decline to extend
credit to Buyer and to require that the applicable purchase price be paid
prior to shipment. AWI shall have the right from time to time, without notice,
to change or revoke Buyer's credit limit on the basis of changes in AWI's
credit policies or Buyer's financial condition and /or payment record. Unless
otherwise stated in AWI's proposal, payment terms are:
a. Components and sub-assemblies (including separate spares orders):
- i. Upon credit approval; 100% upon shipment
- ii. Without credit approval; 100% at order placement using Credit Card
(VISA, MasterCard)
b. Systems installed within the United States:
- i. Upon credit approval:
- 80% of total price upon shipment;
- 10% of total price after installation; and
- 10% of total price after commissioning
- In the case of installation and commissioning extending beyond 120
days from shipment with no fault by AWI, final payment is due at 120
days
- ii. Without credit approval:
- 20% of total price when order is placed
- 80% of total price prior to shipment
c. System sales sold Internationally:
- i. Buyer can present an Irrevocable & Confirmed Letter of Credit,
for 100% of the order, on a US Bank when placing the order
- Minimum of 80% payable upon presentation of shipping documents and
invoices to the Bank; and
- 10% of total price after installation; and
- 10% of total price after commissioning
- In the case of installation and commissioning extending beyond 120
days from shipment with no fault by AWI, final payment is due at 120
days
- All charges and fees associated with the establishment and administration
of a Letter of Credit will be borne by the Buyer.
- ii. Purchasers can Pre-Pay the full amount of the Invoice prior to shipping.
- iii. All bank fees associated with foreign currency conversions to U.S.
Dollars for payment shall be borne by the Buyer.
Buyer shall not deduct any amount from any AWI invoice without AWI's express
written approval, which approval shall be contingent upon Buyer providing
all supporting documentation for such deduction as required by AWI. If Buyer
fails to pay the price or any other payment due hereunder when due, AWI may
recover, in addition to the price or payment, interest thereon at the rate
of 1 1/2% per month where lawful, otherwise the maximum lawful monthly interest
rate, and reasonable attorney's fees. Terms of payment hereunder may be changed
by AWI at any time.
5. Security Interest: Buyer hereby grants to AWI a security interest
in all AWI products sold to Buyer as security for the due and punctual performance
by Buyer of all of its obligations hereunder. Buyer agrees to execute such
documents to evidence and perfect said security interest as AWI may require.
Buyer hereby appoints an officer of AWI as its duly authorized agent for the
purpose of executing all such documents on Buyer's behalf, including, without
limitation, financing statements on Form UCC-1, and for the purpose of taking
any and all other action deemed necessary by AWI, in its sole discretion,
for the perfection and enforcement of the security interest granted hereby.
6. Contingencies: AWI shall not be liable for any delay in delivery
or for non-delivery, in whole or in part, caused by the occurrence of any
contingency beyond the control of AWI, including, by way of illustration but
not limitation, war (whether an actual declaration thereof is made or not),
sabotage, insurrection, riot or other act of civil disobedience, act of a
public enemy, failure or delay in transportation, act of any government or
any agency or subdivision thereof, judicial action, labor dispute, accident,
fire, explosion, floods, storm or other act of God, shortage of labor, fuel,
raw material or machinery or technical failure where AWI has exercised ordinary
care in the prevention thereof. If any such contingency occurs, AWI may allocate
production and deliveries among AWI customers in such manner as AWI, in its
discretion, may determine.
7. Equipment: Equipment furnished under the contract (the "equipment")
may be newly manufactured or assembled by AWI from new parts or from serviceable
used parts which are equivalent in performance in such equipment. Where allowed
by law, AWI may modify specifications of equipment designed by AWI, provided
the modifications do not adversely affect the performance of the equipment.
In addition, AWI may furnish suitable substitutes for materials unobtainable
because of priorities or regulations established by government authority,
or non-availability of materials from suppliers.
8. Software: AWI shall at all times have and retain title and full
ownership of all software, firmware programming routines, and documentation
thereof supplied by AWI for use with the equipment, and of all copies thereof
made by Buyer (collectively "software"). AWI grants Buyer a non-exclusive
and non-transferable license to use such software solely for use with the
equipment. Buyer shall take all reasonable steps to protect AWI's proprietary
interest in the software and shall not transfer or otherwise provide the software
to any third party.
9. Warranties:
a. Components/Spares and Systems: The term of warranty for Components/Spares
is one (1) year from the date of shipment. The term of warranty for Systems
is one (18) months from the date of shipment or (1) year from the date of
commissioning, whichever is shorter. If any equipment covered by this warranty
shall be returned to the original shipping point, transportation charges
prepaid, and upon examination AWI determines to its satisfaction that such
equipment is defective in material or workmanship and such defect was not
caused by accident, misuse, neglect, alteration, improper installation,
improper adjustment, improper repair, or improper testing, AWI shall at
its option repair or replace the equipment, with shipment to Buyer prepaid.
AWI shall have reasonable time to make such repairs or to replace such equipment.
b. Repairs: Components/Spares and Systems repaired after the expiration
date of the new product warranty, the warranty is limited to the repaired
portion and is valid for ninety days from the date of its reshipment.
c. Buyer must obtain a valid Return Material Authorization ("RMA")
number from AWI for all returns. RMAs will be issued at AWI's sole discretion,
in accordance with these terms and conditions. RMA are valid for thirty
calendar days from the date of issuance. AWI must physically receive the
return within the thirty (30) calendar day window.
d. If Buyer shall fail to pay when due any portion of the purchase price
or any other payment required from Buyer to AWI under this contract or otherwise,
all warranties and remedies granted under this Section 8 and 9 and all warranties
and obligations of AWI to service, repair, replace, correct or otherwise
remedy defects, errors of failures under any other contract between Buyer
and AWI may, at AWI's option, be terminated.
e. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES
AND COVENANTS, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND ANY
DEFECTS THEREIN OF ANY NATURE WHATEVER, INCLUDING WITHOUT LIMITATION, WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AWI'S SOLE AND
EXCLUSIVE LIABILITY, AND BUYER'S SOLE AND EXCLUSIVE REMEDY, FOR ANY NONCONFORMITY
OR DEFECT IN THE PRODUCTS, IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR
OTHERWISE, SHALL BE AS SET FORTH IN SECTION 9A AND 9B HEREOF AS LIMITED
BY SUBSECTION 9D HEREOF.
f. AWI MAKES NO WARRANTIES (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) WITHOUT RESPECT TO
EQUIPMENT SOLD TO BUYER BY AWI AND NOT MANUFACTURED BY AWI. AWI shall assign
the manufacturer's warranty, to the extent permitted, to Buyer upon Buyer's
timely written request.
10. Patents: AWI shall defend any suit or proceeding brought against
Buyer to the extent that it is based on a claim that any equipment manufactured
by AWI (hereinafter "warranted equipment") infringes in construction
or design a United States patent, and shall indemnify Buyer against all costs,
damages and expenses finally awarded against Buyer provided that Buyer notifies
AWI promptly in writing of any such claim and gives AWI full and complete
authority, information and assistance for the defense of such claim and provided
further that AWI shall have sole control of the defense and of the negotiations
for settlement, if any, of such claim. If any warranted equipment is held
in construction or design directly to infringe any United States patent and
the use of said warranted equipment is enjoined, or in case any warranted
equipment may, in the opinion of AWI, be held to constitute such infringement,
AWI may, at its expense and option either (a) procure for Buyer the right
to continue using said warranted equipment, (b) replace said warranted equipment
with a suitable non-infringing product, (c) suitably modify said warranted
equipment, or (d) refund the purchase price of said warranted equipment, less
depreciation at twenty percent (20%) per year and accept its return. AWI shall
not be liable for any infringement arising from the combination of any warranted
equipment with any system or product other than warranted equipment or from
the modification of any warranted equipment unless such modification was made
by AWI. AWI shall not be liable for any cost or expense incurred without AWI's
written authorization. THE FOREGOING STATES THE ENTIRE LIABILITY OF AWI, AND
THE EXCLUSIVE REMEDY OF BUYER, WITH RESPECT TO ANY ALLEGED PATENT INFRINGEMENT
BY THE WARRANTED EQUIPMENT.
11. Limitation of Liability: UNDER NO CIRCUMSTANCES SHALL AWI's LIABILITY
ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT OR AWI's PERFORMANCE OR
ASSERTED FAILURE TO PERFORM THEREUNDER, IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE),
OR OTHERWISE, EXCEED THE PURCHASE PRICE OF THE PRODUCTS, EXCEPT AS PROVIDED
SPECIFICALLY IN SECTION 10 HEREOF PERTAINING TO PATENTS; AND IN NO EVENT SHALL
AWI BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR TORT DAMAGES, INCLUDING,
WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF USE, LOSS OF PROFITS, LOSS
OF BUSINESS, OR LOSS OF GOODWILL.
12. Proprietary Information: Buyer represents that it has adopted
reasonable procedures to protect Proprietary Information, as defined hereafter,
including binding agreements with employees and consultants to prevent unauthorized
publication, disclosure or use of Proprietary Information during or after
the term of their employment or retention by or services for Buyer. Buyer
shall not use Proprietary Information except as expressly permitted hereunder,
shall not disclose Proprietary Information of AWI to any third party, and
shall not transmit any documents or copies thereof containing Proprietary
Information to any third party, except as may be authorized in writing by
AWI.
"Proprietary Information" shall mean information or data of AWI
or of a third person to whom AWI owes obligations of confidentiality, and
which is furnished or to be furnished to Buyer in written, graphic or machine-readable
form and is marked proprietary or confidential. Where copies or alternative
forms of information or data are received from AWI, such information or data
shall be considered Proprietary Information if at least one of said copies
or alternative forms is marked proprietary or confidential.
This Section 12 shall not apply to information which Buyer demonstrates was
in Buyer's possession prior to receipt from AWI or information which Buyer
demonstrates is or has become available to the public or general knowledge
in the industry otherwise than through the fault of Buyer.
13. Cancellation and Rescheduling: Orders accepted by AWI may be canceled
or rescheduled by Buyer only with the written consent of AWI (which consent
AWI may withhold for any reason) and upon payment of any cancellation or rescheduling
charges. AWI shall have the right without penalty or payment to cancel any
order accepted, or to refuse or delay the shipment thereof, (i) if Buyer fails
to make promptly any payment due AWI or to meet any other reasonable requirements
established by AWI, (ii) if any act or omission to act of Buyer delays AWI's
performance, or (iii) if Buyer's credit becomes impaired. In any such event
AWI shall be entitled to receive reimbursement for its reasonable and proper
cancellation charges.
14. Non-Waiver of Default; Remedies: In the event of any default by
Buyer under this or any other contract between AWI and Buyer, AWI may decline
to make further shipments. If AWI elects to continue to make shipments, AWI's
action shall not constitute a waiver of any default by Buyer or in any way
affect AWI's legal remedies for any such default. All AWI's rights and remedies,
whether evidenced hereby or by any other contract or document, shall be cumulative
and nonexclusive and may be exercised singularly or concurrently.
15. Applicable Law: The validity, performance and construction of
the contract shall be governed by the laws of the State of California.
16. U.S. Government Contracts: If the products to be furnished under
the contract are to be used in the performance of a U.S. Government contract
or subcontract, the Government contract number and a statement to that effect
shall appear on Buyer's purchase order. If Buyer's purchase order includes
all of said information and if said order is accepted in writing by an authorized
officer of AWI with knowledge of said information, then those clauses of the
applicable Government procurement regulations which are mandatorily required
by Federal statute or regulation to be included in this contract (and only
such mandatory clauses) shall be incorporated herein by reference provided,
however, that in the case of items to be delivered hereunder that constitute
"Commercial Items" as defined in Section 2.101 of the Federal Acquisition
Regulation ("FAR"), no such clauses set forth in the Government
procurement regulations other than FAR 52.232-33, FAR 52.232.34, and those
set forth in Paragraph (e) of the clause set forth at FAR 52.212-5 shall be
incorporated in and apply to this contract, and provided, further, that in
no event shall this contract be deemed to incorporate by reference any clause
set forth in the Government procurement regulations that would in any way
impair or diminish AWI's rights and prerogatives under Paragraphs 8, 9, 11
or 12 hereof.
17. Export: Regardless of any disclosure made by Buyer to AWI of an
ultimate destination of AWI products, Buyer will not export either directly
or indirectly any AWI product, or any system incorporating said product, without
first obtaining all required licenses and permits from the United States Department
of Commerce and any other relevant agencies or departments of the United States
government.
18. Assignment: The contract shall be binding upon and inure to the
benefit of the parties and their respective legal representatives, successors
and permitted assigns. The contract is personal to Buyer, and Buyer may not
assign any of its rights or delegate any of its obligations, in whole or in
part, without the prior written consent of AWI which may be withheld for any
reason.
19. Complete Agreement; Modifications: This contract constitutes the
entire agreement between the parties relating to the sale of the products
described on the face hereof and no addition to or modification of any provision
of said agreement shall be binding upon AWI unless made in writing and signed
by an authorized officer of AWI.
20. Notices: All notices given under the contract shall be in writing,
mailed by first class mail, certified or registered, delivered by overnight
courier service or delivered by hand to the address of the other party set
forth in the quotation or to such other address as such party may designate
from time to time by such notice, and shall take effect (a) when mailed, (b)
when delivered to the courier service or (c) when received if delivered by
hand.
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