UNIVERSAL AVIONICS SYSTEMS CORPORATION
GENERAL TERMS AND CONDITIONS FOR THE SALE OF PRODUCTS AND SERVICES
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. TITLE, RISK AND INTELLECTUAL PROPERTY. Title to the Product shall remain with Universal and shall not pass to the Customer until payment in full has been received. Risk of loss or damage to the Products shall pass to Customer at the time of Delivery. Universal retains all right, title and interest in and to the intellectual property related to or contained in the products and/or services.
5. 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 IncoTerms 2000, FCA 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. APPLICABLE LAW/FORUM. This Warranty 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.
15. 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.
16. 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.
17. 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.
18. 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 Act (“EAA”); the antiboycott and embargo regulations and guidelines issued under the EAA, and the regulations of the United States Department of the Treasury, Office of Foreign Assets Control.
19. 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.
20. 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.
21. 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.