Terms and Conditions
All quotations and sales by Cubic Aerospace, LLC dba Ibeos (Seller) are subject to the following terms and conditions:
SHIPPING, DUTY AND TAXES. Prices of Products include shipping costs but do not include any taxes or any other similar charges. Seller shall bear all taxes, duties, excises, and other governmental charges (singly or collectively, “Taxes”) that are levied on or in connection with, the manufacture of the Product, the purchase of the assets and raw materials used in such manufacture, shipping and handling and/or the income of Seller. Buyer shall bear all Taxes that are levied on or in connection with the purchase or sale of the Product or the storage, use and/or consumption of the Product.
PAYMENT. Unless otherwise specified herein, payment to Seller shall be calculated from the date of Seller’s invoice which shall be rendered on the shipment date for Product or delivery date for documentation. Payment terms are net 30 days. Payment shall be deemed made when checks are received by Seller (subject to collection) or as funds are electronically transferred to Seller’s account. An interest charge of 1.0% per month will be added to all invoices not paid on time and will be prorated for any partial month. If Seller has reasonable grounds for concern about Buyer’s creditworthiness, Seller may, upon reasonable notice to Buyer, suspend shipments until concerns regarding Buyer’s creditworthiness are resolved without Seller having any liability to Buyer. Delays in receiving invoices or errors or omissions on invoices will not be cause for withholding settlement.
CANCELLATION OF ORDER. If Buyer cancels this Order, in whole or in part, or defers the date of delivery for any reason, Buyer agrees to pay Seller any damages Seller incurs as the result of such cancellation or delay including the cost of raw materials purchased and labor performed against unpaid milestones for Product manufacture and delivery, and any cancellation charges incurred by Seller not to exceed the contract value related to the cancellation. Labor costs will be burdened and include overhead, general and administrative costs. All such damages will be determined by Seller within a reasonable time after the date of such cancellation or delay and invoiced to Buyer. In the event that Buyer directs seller to delay shipment of a completed unit of Product beyond the contract delivery date, Seller may impose storage charges as determined by Seller.
DELIVERY, SHIPMENT AND RISK OF LOSS. The Seller shall make every effort to complete orders within the time promised but shipment dates are estimates. The date of shipment shown on Seller’s quotation or otherwise promised are subject to changing conditions which may be beyond the Seller’s reasonable control. Under no circumstances will the Seller assume responsibility or liability for any damage or claims resulting from delays in delivery schedule. Unless otherwise specified, shipments are FOB (US) Buyer’s facility. Responsibility for any loss or damage ends, and title passes to the Buyer when Product is delivered to the Buyer’s facility. With respect to reusable packaging containers provided by Seller, if such reusable containers arrive at destination in damaged condition, Buyer shall promptly notify (orally and in writing) the carrier and Seller about that condition. If specified in the Order, Buyer shall be responsible for all such reusable packaging containers while they are within Buyer’s possession or jurisdiction. Such containers shall be returned to Seller at Buyer’s cost and expense within thirty (30) days of delivery of the Product packaged in the reusable container.
ACCEPTANCE AND REJECTION. Buyer will be responsible to inspect the Product and all packaging within fourteen (14) days after delivery for any shortages, damage or non-conforming Product. Failure to inspect and report shortages or damage or reject non-conforming Product will be deemed acceptance by Buyer with full responsibility for payment of invoice. All Product rejected by Buyer must receive approval from Seller prior to return. Rejected Product shall be returned to Seller at Buyer’s risk, postage prepaid. Product returned to Seller will be replaced or Buyer’s account credited at Seller’s option.
SELLER’S WARRANTY Any technical information, specifications, manuals or assistance that Seller gives Buyer is provided at Buyer’s risk. Seller warrants that (a) the Product shall be in good condition and free from defects in materials and workmanship, provided the Product is properly used and is not abused, misused or altered in any way, (b) the Product was produced in material compliance with all applicable laws, and (c) Seller has good title to the Product. Any Product claimed by Buyer to be defective must be retuned to Seller, freight charges prepaid, within 18 months of the original shipment date by Seller. If Seller determines that the goods are defective in materials or workmanship, Seller shall, at its sole option, repair or replace the defective Product free of charge. If Seller determines that the claimed defect or failure is the result of any abuse, misuse, alteration or other improper treatment, Seller will not repair or replace such Product free of charge, but will, upon the written request of Buyer, repair or replace the Product at Buyer’s sole expense.
SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
LIMITATIONS ON LIABILITY. SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY CONSEQUENTIAL, INCIDENTAL AND/OR SPECIAL DAMAGES. SELLER’S MAXIMUM LIABILITY TO BUYER FOR A CLAIM, SHALL NOT EXCEED THE PURCHASE PRICE OF THE QUANTITY OF PRODUCT IN RESPECT OF WHICH THAT CLAIM IS MADE. (By “CLAIM” or “Claim,” we mean, singly or collectively, all claims, damages, losses, costs and expenses, whether based on this Contract, tort, strict liability, product liability or otherwise, that result from, or arise out of, the manufacture, delivery, non-delivery, transportation, storage, handling or use of the Product.)
BUYER’S WARRANTY. Buyer warrants that (a) Buyer will not use, consume or combine the Product for end uses intended to be toxic or lethal to humans, (b) the use of the Product by Buyer will not infringe the intellectual property rights of any third party; (d) Buyer has, and will use, the requisite expertise, personnel and equipment to handle, store, transport, use, consume, sell and dispose of the Product (i) in compliance with all applicable laws and governmental regulations, actions, orders, decrees and requests and (ii) in a manner so that the Product will not be injurious to any person or the environment. Buyer agrees to indemnify, save harmless and defend Seller from any loss, liability and expense, including legal fees, resulting from any Claim made or action brought as the result of the consumption, combination or use of the Product by Buyer or third parties or any breach of Buyer’s warranties contained in this Order.
INTELLECTUAL PROPERTY Buyer agrees that Seller is the owner or licensee of all intellectual property contained in the Product and it will not, and will not allow others to, reverse engineer, decompile, disassemble or copy the Product. Seller reserves the right to discontinue deliveries of any Product if, in Seller’s reasonable opinion, the sale, manufacture or use of the Product by Seller or Buyer would infringe intellectual property rights of third parties.
ENVIRONMENT AND SAFETY. Seller shall furnish Buyer with operating and safety information for the Products (“Manual”). Buyer shall familiarize itself and its employees with the contents of the Manual. Buyer shall disseminate all the information in the Manual to persons whom Buyer reasonably foresees utilizing the Product. Buyer shall handle, store, transport and dispose of the Product in compliance with all applicable laws and governmental regulations, orders, decrees and requests and the Manual.
FORCE MAJEURE Performance of any obligation under this Order (other than to make a payment when due) may be suspended by either party without liability to the other party, to the extent that: an Act of God; war; riot; fire; explosion; accident; flood; sabotage; mechanical breakdown; cancellation of any permit or license; labor dispute; shortages; plant shutdown; governmental laws, regulations or orders; or any other cause beyond the reasonable control of such party that delays, prevents, restricts, limits, or renders commercially infeasible or impractical, the performance of this Order(“Force Majeure Event”). The affected party shall invoke this provision by promptly giving written notice to the other party of the nature and estimated duration and effect of the Force Majeure Event. A party shall not be required to remove or cure any Force Majeure Event if that removal or cure would involve additional expense or departure from its normal practices. The total Order quantity hereunder shall be reduced by the quantity not delivered because of the Force Majeure Event, and the Order shall otherwise remain unaffected; provided, however, that this Order shall automatically terminate if such reduction continues for 180 consecutive days. Damages Seller incurs as the result of such reduction or termination, including the cost of raw materials purchased and labor performed against unpaid milestones for Product manufacture and delivery shall be reimbursed by Buyer not to exceed the contract value related to the reduction or termination.
ACCEPTANCE. All purchase orders and contracts from Buyer are subject to written approval and acceptance by the Seller or actual shipment of Product by Seller. Any terms or conditions which are in conflict with these terms and conditions shall not be binding upon the Seller unless accepted in writing by the Seller. In case of conflict not expressly accepted by the Seller, the terms and conditions of sale herein shall be considered as superseding terms stated in the Buyer’s purchase order or contract.
ENTIRE AGREEMENT This agreement contains the entire understanding of the parties and is intended as a final expression of their agreement and a complete statement of the terms thereof and shall not be modified except in writing signed by the parties hereto. No waiver by either party of any default shall be deemed a waiver of any subsequent default.
GOVERNING LAW. This Order shall be governed by, and interpreted according to, the internal laws of the State of Virginia without giving effect to any conflict of laws principles.
DISPUTES Any controversy or claim arising out of, relating to or in connection with this Agreement, including any question regarding its existence, validity or termination, or regarding a breach hereof (hereinafter, a “Dispute”) shall be submitted to arbitration before a single arbitrator to be selected by the Parties. Said arbitration shall be conducted in Arlington, Virginia under and in accordance with the arbitration rules of the American Arbitration Association then in effect.
EXPORT CONTROLS. The Products and any related materials or information provided under this Agreement may be subject to United States export laws and regulations. Buyer shall not distribute, transfer or transmit any Product including but not limited to related materials or information (even if incorporated into Buyer’s products) except in compliance with the United States export laws and regulations whether such distribution, transfer or transmission is domestic or international. The Buyer shall first obtain the written consent of the Seller prior to submitting any request to any governmental entity for authority to export the Product or related materials or information or authority to conduct any export or reexport of information or services, pursuant to the United States export laws and regulations.