| Terms and Conditions of Sale |
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These terms and conditions ("Terms") and the terms and provisions set forth on the front of Quotation of Acknowledgment ("Front") supersede any contrary provisions presented in any written form or otherwise by the buyer ("Buyer") of the goods ("the Goods") identified on the Front and may not be changed in any manner other than by a writing signed by an authorized representative of Comair Rotron, Inc. ("Comair"). To the extent that this Quotation or Acknowledgment constitutes an acceptance by Comair of an offer by Buyer, the acceptance is expressly conditioned on Buyer's assent to terms and conditions on the and in the Terms which are additional or different to those presented by Buyer. To the extent that any portion of this Quotation of Acknowledgment constitutes an offer, acceptance is expressly limited to the terms of the offer. If these Terms are printed on the revise side as a Quotation or Acknowledgment form, the term ("Form") refers to the Front of the Quotation or Acknowledgment. If these Terms are attached to or transmitted with a Quotation or Acknowledgment, the term ("Form") refers to the Quotation or Acknowledgment to which these Terms are attached or which they accompany. Except as otherwise provided in the Form, all prices for all Goods are F.O.B.. Comair's facility are payable in full within 30 days after shipment. Prices are subject to change by Comair's discretion in the event of any changes in Buyers specifications; delivery or other requirements approved by Comair under Paragraph 5. At any time before 10 days prior to shipment, Comair may notify Buyer of price increases that Comair considers necessary or appropriate because of increases in costs, Buyer may accept the increased prices or terminate the order subject to the increased prices. If within 10 days after giving notice of increased prices, Comair does not receive from Buyer notice of termination, Buyer shall be deemed to have accepted the increases. Prices do not include taxes, and Buyers shall be responsible and shall pay when due all taxes or other governmental fees or levies imposed on or in connection with the transactions described, except for taxes imposed on and measured by Comair's net income. Except as otherwise provided in the Form, Goods shall be packed with standard commercial packing and delivered by a carrier selected by Buyer, and Comair shall have no liability to Buyer for any matter arising out of or relating to the use of standard commercial packing or the acts or omissions of a reputable carrier. Delivery dates and schedules are good faith estimates only, and Comair shall not be liable or responsible for failure to meet specific delivery, shipment or related dates. No changes in the terms set forth or in specifications or other matters relating to the Goods or the transactions shall be binding on Comair, without Comair's prior written consent. Any cancellation by Buyer of all or any portion of an order shall be subject to cancellation charges, not in excess of the aggregate price on the Form, determined by Comair on the basis of special materials, part in process, special tools relating to the canceled order and other costs or expenses reasonably relating to the cancellation. A. Title and the full risk of loss or damage to the Goods shall pass to Buyers upon the placement of the Goods with a carrier for shipment. Buyer shall not obtain ownership of or title to dies, tools or similar items, even if the terms require that Buyer pay a price for such items; provided that, upon Buyer's written request, Comair will in good faith negotiate for the sale of any or all of such items to Buyers for an additional price, except that neither Comair nor Buyer is required to agree to any such sale for any price. B. Until Comair receives payment in full for the Goods, Comair shall retain a purchase money security interest in the Goods and Comair may (and, Buyer appoints Comair its Attorney-in-fact to) file financing statements or other documents or instruments to perfect such security interest. With respect to the security interest, Comair shall have all the rights and remedies of a secured party under the Uniform Commercial Code and any other applicable law, and the parties agree that 10 days advance notice is sufficient and commercially reasonable for any foreclosure, sale or disposition or other action with respect to the Goods. A. Comair warrants that the Goods, when used in a reasonable manner in the ordinary course, will be free from defects of material or workmanship for a period of one year after shipment. Comair's sole and exclusive responsibility under this warranty shall be, at its own expense, to repair or replace any defective Goods returned to Comair by Buyer at Comair's facility, or such other places as Comair may direct, with Buyer to bear all transportation and shipping costs. B. The warranty in Subparagraph A does not apply to any defects or damage caused in shipment or by the negligence or other misconduct of Buyer or any of its agents, employees, or contractors, or caused by, or arising from Buyer's specifications or special instructions or directions. Comair shall have no responsibility for any claim by Buyer under the warranty in Subparagraph A unless Buyer notifies Comair of the claim within one week after discovering the defect and in any event within one year after shipment. C. EXCEPT AS EXPRESSLY PROVIDED IN SUBPARAGRAPH A, COMAIR MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO THE GOODS. ALL EXPRESS OR IMPLIED WARRANTIES NOT EXPRESSLY STATED IN SUBPARAGRAPH A., INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. Comair shall defend any suit or other proceeding brought against Buyer to the extent based on a claim that the Goods infringe a United States patent, and Comair shall pay all damages, costs and attorney's fees awarded in such suit with respect to such claim, if Buyer gives Comair written notice of the claim and suit proceeding immediately upon discovery and written full authority to defend or settle the claim. If Buyer is enjoined from using the Goods because of a claim of patent infringement, Comair shall, at its option and its expense, obtain for Buyer the right to use the Goods free of the claim, provide replacement non-infringing goods or refund to Buyer a portion of the price for the Goods, equal to the full amount of the price, reduced by 20% for each full year after the date of shipment. Comair's sole and exclusive liability to Buyer (except for liability for patent infringement to the extent provided in Paragraph 8) for any matter arising our of or relating to the Goods or the transactions subject to these Terms and Conditions, whether in contract, tort (including negligence) or otherwise shall be general money damages in the aggregate not in excess of the lesser of Buyer's actual direct damages or the amount actually paid by Buyer to Comair for the Goods. IN NO EVENT SHALL COMAIR BE LIABLE TO BUYER FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND OR AMOUNT, EVEN IF COMAIR WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. It is the intention of the parties that the transactions covered by these Terms and Conditions with respect to such transactions be in conformance with all applicable laws, regulations, executive orders and other mandatory governmental standards, and conditions. California law shall govern the validity, construction, interpretation and effect of these terms and conditions and all transactions or agreements in any manner relating to the goods or other matters. Comair shall not be responsible or liable for delays in manufacture, shipping or delivery or other elements of performance because of causes beyond its reasonable control. In the event of any such delay, the period of Comair's performance shall be extended, without liability or penalty, for the period of the delay. The terms on the Form and these Terms constitute the entire agreement between Comair and Buyer with respect to the transactions described on the Form and may not be amended or modified in any manner other than by a written agreement to be executed by the party to be charged. The rights and obligations under the terms on the Front and these Terms shall be binding on the respective parties and their successors and assigns, except that Buyer may not assign or transfer any such rights or obligations without Comair's prior written consent. Rev. of 6/24/94 |
