Global BIW T C s, Products: BIW Connector Systems

Global BIW T C s, Products: BIW Connector Systems
ITT CORPORATION- INTERCONNECT SOLUTIONS DIVISION
GENERAL TERMS AND CONDITIONS OF SALE
(Designated Herein As ITT or Seller.)
1.
ENTIRE AGREEMENT. ITT’s Terms and Conditions of Sale shall
apply to all Orders and obligations negotiated between the Parties. 8. ORDER SCHEDULE & PRICES. Orders shall be scheduled for
These terms supersede any prior written or oral agreements or
delivery within twelve (12) months from order date. One reschedule
understandings, or any preprinted or standard terms on any purchase
per order will be allowed at no charge and a one hundred dollar
order, invoice, acknowledgement, or similar document exchanged
($100) charge shall apply to each schedule change thereafter.
between the parties, and shall not be supplemented by any previous
course of dealing, performance, or usage of trade. Buyer’s assent to 9. MODIFICATIONS. Unless otherwise provided, ITT reserves the
ITT’s Terms and Conditions of Sale as set forth herein shall be, within
right to modify product specifications of items ordered by Buyers,
three (3) days from receipt hereof, conclusively presumed from either
provided that the modification will not materially affect form, fit or
Buyer’s failure to object in writing or acceptance of any or all of the
function.
products ordered. ITT's acknowledgement of the Buyer’s purchase
order does not imply ITT's acceptance of the terms and conditions 10. ENERGY PRICING AND DELIVERY. The prices, specifications,
thereof, regardless of how they are prefaced or described.
ITT
and delivery schedules set forth in this order assume that materials,
reserves the right to modify these Terms and Conditions at any time
fuels, and energy supplies will continue to be available at not less
and, as of the date of modification, all new transactions entered into
than present levels, and that ITT and its subcontractors, suppliers,
between ITT and its Buyers shall be governed by the modified
and transporters will continue to have unimpeded use of their
document. The paragraph titles in this Agreement are for convenience
facilities and equipment. Any significant reduction in the availability
only and shall not be used to vary the meaning of the text of this
of any of the foregoing as a result of any situation commonly
Agreement, or interpreted as a complete list of topic referrals. If any
described as an “Energy Crisis,” whether resulting from
provision of this Agreement is found to be invalid, such provision shall
Governmental action or otherwise, here or abroad, shall render the
be ineffective only to the extent of such invalidity, construed in accord
prices and delivery schedules of this order subject to adjustment, so
with its economic intent, and all other provisions shall remain in effect.
as to reflect the impact thereof.
2. PRICES. Prices are FOB Origin for the specific quantity stated. Prices 11. PAYMENT TERMS: Payment terms are net thirty (30) days from
do not include taxes, duties, or license fees, nor charges for
date of invoice, subject to approval by ITT of amount and terms of
transportation, engineering documentation, or special testing, marking,
credit, unless otherwise stated. If for any reason Buyer’s credit is or
or packaging. Buyer agrees to remit to ITT any tax or other government
becomes exceptionable to ITT, either before or after order
charge, domestic or foreign, upon the production, sales, shipment or
acceptance, ITT reserves the right to require payment in advance, or
use of the product which ITT is required to pay or collect from Buyer,
to deliver COD, or to otherwise modify credit terms. Pending
unless Buyer furnishes a tax exemption certificate to ITT. List prices
correction of any unsatisfactory credit situation, ITT may withhold
are in USD and subject to change without notice.
shipments without incurring any liability to Buyer.
When partial
shipments are made, payment therefor shall become due in
3. QUANTITY DISCOUNTS. When quantity price discounts are quoted,
accordance with the designated terms of the invoice. If, at the
they are computed separately for each type of product or equipment,
request of Buyer, shipment is postponed for more than thirty (30)
and are based on the quantity of each type and each size ordered at
days, payment will become due thirty (30) days after notice to Buyer
any one time for immediate delivery. If any order is reduced or
that products are ready for shipment.
cancelled, it is agreed that prices will be adjusted upward to the higher
prices, if applicable, for the remaining quantity.
A Service Charge of 1½% per month on any unpaid balance shall be
imposed on all accounts not paid when due. The Buyer agrees to pay
4. QUANTITY ADD-ONS. Change orders or additional orders for identical
all cost of collection, including reasonable attorneys’ fees in the event
items received within seven (7) days of the original order may be
it becomes necessary to enforce payment therefor.
combined for quantity price advantage, if any.
12. DELIVERY. All deliveries will be FOB ITT Factory, unless
5. QUANTITY MINIMUMS. Unless otherwise agreed, the minimum order
otherwise agreed. In the absence of specific instructions, ITT will
is three hundred dollars ($300) per item, per delivery, per destination.
select the carrier. All risks, title, and right of possession to such
goods, pass to the Buyer upon ITT’s delivery to the carrier at the
6. QUANTITY VARIATIONS. The normal variation between an ordered
point of shipment, subject to a security interest until payment is
and the actual manufactured quantity is, for larger production runs, plus
received. Products held for Buyer, or stored for Buyer, shall be at the
2% minus 5% per item. Buyer agrees to accept and pay for overages
risk and expense of Buyer.
up to 2% of item order quantities. Orders with shipments of 95% or
more of the order quantity shall be considered complete and the Buyer 13. DELIVERY DATES, FORCE MAJEURE. All acknowledged
shall be invoiced for the actual quantity shipped. Claims against ITT for
shipping dates are approximate, based upon known conditions
shortages must be made within ten (10) days after arrival of shipment.
existing at the time of order placement. ITT will, in good faith,
endeavor to ship by the estimated shipping date, but shall not be
7. QUALITY LEVELS. Prices are based on quality levels commensurate
responsible for any delay or any damage arising therefrom. If
with ITT’s standard specifications and normal processing. If a different
Buyer’s order does not cite desired delivery date(s) and/or does not
quality level is required, Buyer shall specify the requirements in writing
expressly prohibit delivery in advance of scheduled date(s), Buyer
and pay any additional costs that may apply.
agrees that immediate delivery is acceptable if conditions arise which
Rev June 2010 prevent compliance with delivery schedules. ITT shall not be liable for
any damages, including
general, incidental, consequential or
otherwise, arising from delays in delivery, or for failure to give notice of
delays, and, further, such delays shall not constitute grounds for
cancellation. Without limiting the generality of the foregoing, ITT shall
under no circumstances be responsible for any failure to fill an order
when due to failure to obtain export licenses, export controls, fires,
floods, earthquakes, riots, strikes, freight embargoes, transportation
delays, shortage of labor, inability to secure fuel, material, supplies or
power or other energy requirements, or on account of shortages
thereof, acts of God or of the public enemy, or any existing or future
laws or acts of Government (including specifically, but not exclusively,
any orders, rules, or regulations issued by any official of any such
government) affecting the conduct of ITT’s business which, in its
judgment and discretion, ITT deems advisable to comply with either as
a legal, or patriotic duty, or to any other cause beyond ITT’s reasonable
control. In the event ITT is prevented from completing any part of
Buyer’s order, because of any rule, regulation or order of any local,
state or national government, or of any such government’s commission,
body, or authority having jurisdiction, then Buyer agrees, upon request
and receipt of invoice therefor, to promptly remit to ITT, for any product
or products which are completed or are in process, an amount
proportionate to the stage of completion of the work as reasonably
determined by ITT.
14. INSPECTION AND ACCEPTANCE. Unless Buyer notifies ITT in
writing within thirty (30) days from date of shipment of any products that
said products are rejected, they will be deemed to have been accepted
by Buyer. In order to be effective, the notice of rejection must specify in
writing the reason(s) why the products are being rejected.
15. TOOLING: Unless otherwise expressly agreed, in a separately
executed writing, ITT shall retain title to and possession of any models,
patterns, dies, molds, jigs, fixtures, tools, and test equipment made or
obtained for the performance of this order.
16. PRODUCT WARRANTY. ITT warrants that at the time of shipment
the products manufactured by ITT and sold hereunder will be free from
defects in material and workmanship, and will conform to specification.
Buyer shall notify ITT immediately if any defect within this warranty
should appear.
A. Warranty Adjustment. (1) If any defect within this warranty appears,
Buyer shall notify ITT immediately. 2) ITT agrees to repair or furnish a
replacement for, but not install, any product which within one (1) year from
the date of shipment by ITT shall, upon examination by ITT, prove defective
within the above warranty. (3) No product will be accepted for return or
replacement without written authorization of ITT. Upon such authorization,
and in accordance with instructions by ITT, the product will be returned
shipping charges prepaid by Buyer. Replacements made under this
warranty will be shipped prepaid by Seller.
B. Exclusions From Warranty. (1) This warranty does not extend to any
product manufactured by ITT which has been subjected to misuse, neglect,
accident, improper installation or to use in violation of instructions furnished
by ITT. (2) This warranty does not extend to or apply to any unit which has
been repaired or altered at any place other than at ITT's factory, or by
persons not expressly approved by ITT. (3) Components purchased by
Buyer from any supplier other than ITT shall bear only the warranty given
by the manufacturer of that product, and ITT assumes no responsibility for
the interface of its product with any other product.
THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL
OTHER EXPRESSED OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR USE, OR OTHERWISE.
17. INDEMNIFICATION. ITT will defend, hold harmless, and
indemnify Buyer from and against any liability arising from or in
connection with any third party claims or demands to recover for
personal injury or death caused by Seller’s negligence in the
performance of this agreement (excepting to the extent such injury,
damage or loss results from Buyer’s specifications as to design or
materials, or from alteration, or from improper use, repair,
maintenance, or installation by any party other than Seller), each
party to bear its own attorneys fees. Nothing in this agreement shall
exclude or limit the liability of either party for death or personal injury
caused by negligence.
18. PATENT INDEMNITY. A. Patent indemnity by ITT to Buyer. ITT
agrees to indemnity and hold harmless the Buyer from and against all
legal expenses which may be incurred as well as from damages and
costs (excepting all consequential and special damages and costs)
which may be finally assessed against the Buyer in any action for
infringement of any United States Letters Patent by the items delivered
to Buyer hereunder. This, the aforesaid, provided that (1) Buyer shall
give ITT prompt written notice of any action, claim or threat of patent
infringement suit, either oral or written, or of the commencement of any
patent infringement suit against Buyer relating to items sold by ITT to
Buyer hereunder; and (2) Buyer shall give ITT opportunity to elect to
take over, settle or defend any such claim, action or suit through counsel
of ITT’s own choice and under its sole direction, and at its sole expense;
and (3) Buyer, in the event ITT elects to take over, defend or settle
such, will make available to ITT all defenses known by or available to
Buyer, and (4) ITT shall have the right to substitute for any such item
or any part thereof claiming to infringe the patent rights of others, noninfringing items which will give equally good service. However, if the use
of any such item or any part thereof should be enjoined, ITT shall have
the right at its own expense to take any of the following courses of action:
(a) Procure for Buyer the right to continue using such item; or to (b)
Replace said item with a non-infringing item; or to (c) Modify the item so
that it becomes non-infringing; or to (d) Remove said item and refund
the purchase price and the transportation and installation costs thereof.
B. Limitations. The foregoing provisions as to patent protection by ITT
to Buyer shall not apply to any of the following: (1) To any items
manufactured to the design or specifications furnished by the Buyer. (2)
To orders for special non-commercial items which ITT has not sold or
offered for sale to the public on the open commercial market. (3) To any
infringement occasioned by modification by Buyer for any item without
ITT’s written consent, or any infringement arising from the use of an item
with any adjunct or device added by the Buyer.
C. Buyer’s Patent Indemnity to ITT. To the extent that items delivered
hereunder are manufactured pursuant to designs furnished by the Buyer,
Buyer agrees to indemnify ITT and hold ITT harmless from all legal
expenses which may be incurred as well as all damages and costs
which may finally be assessed against ITT in any action for infringement
of any United States Letters Patent by such items delivered hereunder.
ITT agrees promptly to inform the Buyer of any claim for liability made
against ITT with respect to such items and ITT agrees to cooperate with
the Buyer in every way reasonably available to facilitate the defense
against any such claim.
19. LIMITATION OF LIABILITY. EXCEPT FOR THE OBLIGATIONS
ASSUMED BY ITT UNDER THE PRODUCT WARRANTY, AND
INDEMNITY CLAUSES, SELLER WILL NOT BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR
LOSSES, DAMAGES, OR EXPENSES DIRECTLY OR INDIRECTLY
Rev June 2010 ARISING FROM THE DESIGN, MANUFACTURE, SALE, USE OR
REPAIR OF THE PRODUCTS, OR ANY INABILITY TO USE THEM
EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER
EQUIPMENT OR MATERIAL, OR FROM ANY OTHER CAUSE. BUYER
AND SELLER AGREE THAT IN NO EVENT WILL ITT BE LIABLE FOR
ANY AMOUNT IN EXCESS OF THE CONTRACT PRICE OF THE
PRODUCT WHICH PROVES TO BE DEFECTIVE. THE REMEDIES
PROVIDED FOR IN THIS AND THE PRECEDING PARAGRAPHS
SHALL CONSTITUTE THE SOLE RECOURSE OF BUYER AGAINST
SELLER FOR ANY ALLEGED BREACH OF SELLER’S OBLIGATIONS
UNDER THE CONTRACT WITH BUYER, WHETHER SUCH CLAIM IS
MADE IN TORT OR IN CONTRACT, INCLUDING CLAIMS BASED ON
WARRANTY, NEGLIGENCE OR OTHERWISE.
20. TERMINATION. Buyer’s order may not be modified, terminated, or
otherwise rescinded except in writing (email is acceptable), signed by
Seller and Buyer. If all or part of Buyer’s order is terminated by such
modification or rescission (such termination must be accepted and
acknowledged by Seller in writing), Buyer, absent a signed written
agreement to the contrary, shall pay termination charges to Seller of
costs, as determined by accepted accounting principles, plus a
reasonable profit; except that any product scheduled for completion
within 60 days of Buyer’s request for termination or rescheduling will be
accepted and paid for in full by Buyer. ITT reserves the right to prepurchase material and to begin production in time to meet Buyer’s
delivery date based on conditions in its plant and lead time required by
ITT’s suppliers. In the event of Buyer’s default, breach, or cancellation
for any cause including failure to obtain an export license, Buyer shall
be responsible for any losses resulting there from.
sole arbitrator, in Orange County, California, USA. This arbitration shall
be governed by the USA’s Federal Arbitration Act, Title 9, US Code,
Section 1-16, in accordance with the governing law of the State of
California, excepting that no conflicts of laws rules, or the United
Nations Convention on the International Sale of Goods, shall
apply. Judgment upon an arbitration award may be entered in any court
having jurisdiction, or application may be made for judicial acceptance of
the arbitration award or an order of enforcement, as may be the case.
D. Interim Relief. Nothing herein shall affect either Party’s right to
apply to a court of appropriate jurisdiction for interim relief.
E. Service. The Parties hereto irrevocably agree to accept service of
process by registered mail, postage prepaid, or by personal service,
on an officer or registered agent of the Party, within or without the
State of California, or in any other manner permitted by law.
24. SUPPLEMENTAL CLAUSES FOR EXPORT ORDERS.
A. Proof of Export. If Purchaser intends on exporting products sold
under this agreement, Purchaser is responsible for obtaining, at its own
risk and expense, any export license or other official authorization for the
exportation of the goods. The Purchaser shall be responsible for
complying with any legislation or regulations governing the export of
goods.
B. Export License Requirements. If ITT secures the export license
required by the United States Government, the Buyer will furnish an
original signed end-user statement to acquire such licenses. If such
licenses are not paid for by Buyer, such payments will be added to the
contract price.
21. STATUTE OF LIMITATIONS. Buyer agrees that any action for an
alleged breach of this Agreement must be commenced within one year
after the cause of action has accrued, without regard to the date the
breach is discovered. Any action not brought within this one year time
period shall be barred, without regard to any other limitations period set
forth by law or statute.
C. Export Drop-Shipments. If agreed, ITT will secure all export licenses
and permits required by the U.S. Government for drop-shipments
abroad. However, it shall be the sole responsibility of the Buyer, and the
importing entity as identified on the End User Statement, to provide any
additional import documentation that the receiving country may require.
22. GOVERNING LAWS. The terms of this Agreement and all rights
and obligations hereunder, shall be governed in accordance with the
laws of the State of California. Buyer hereby consents and submits to the
jurisdiction of the appropriate courts in the State of California for
adjudication of any question of law or fact arising hereunder.
D. Schedules. Delivery schedules for exported products are contingent
upon securing all necessary export licenses and permits. Failure to
obtain a required license or permit in sufficient time to permit delivery
within the time set forth in the contact, and without fault or negligence of
the parties, shall occasion an equitable adjustment in the delivery and
payment schedules.
23. NEGOTIATION, MEDIATION, ARBITRATION. Any dispute arising
out of or relating to this Agreement shall be resolved per the procedures
specified by the International Institute for Conflict Prevention &
Resolution (CPR) (www.cpradr.org).
A. Negotiation Between Executives. The parties shall first attempt to
resolve any dispute arising out of this contract by prompt negotiation
between executives who have authority to settle the matter.
B. Mediation. If not resolved by negotiation, the parties agree to
submit the dispute to mediation under CPR rules. The mediation shall
be held in Orange County, California, and if one party has failed to
participate in negotiation the other party may initiate mediation
immediately. Unless otherwise agreed, the parties will select a
mediator from the CPR’s panel of neutrals.
C. Binding Arbitration. Any dispute arising from this Agreement not
resolved within forty-five (45) days after initiation of such mediation, shall be
finally resolved by arbitration in accordance with CPR Rules for NonAdministered Arbitration then currently in effect, conducted in English, by a
E. Export Controls Destination Statement. Buyer acknowledges that
the goods purchased, licensed, or sold hereunder, and the
transaction contemplated by this Agreement, are subject to the
customs and export control laws and regulations of the United States,
and may also be subject to the customs, regulations, and export laws
of the receiving country. Buyer and Seller agree that all exchange of
data and information pursuant to this Agreement shall strictly comply
with all laws, rules, and regulations of the United States regarding
exportation and re-exportation of the Goods sold under this Contract.
Under U.S. law, certain products shipped under this Agreement may
not be sold, leased or otherwise transferred to restricted countries, or
used by restricted end-users. Seller shall not be liable for any delays,
or refusals by the U.S. Government to approve the export of the
requirements under this contract and Buyer agrees that it is Buyer’s
sole risk and responsibility to know and comply with all such laws and
regulations.
25.CONFIDENTIAL OR PROPRIETARY INFORMATION AND
PROPERTY
Rev June 2010 A. " Confidential Information" shall mean all information or items identified by
ITT as confidential and disclosed by ITT to Buyer, relating to this Agreement.
B. If a separate confidentiality nondisclosure, or proprietary information
agreement exists between ITT and Buyer which relates to the subject
matter of this Order, then confidential or proprietary information
furnished by one (1) party to the other party shall be protected pursuant
to such agreement, and paragraphs (C) through (F) below of this clause
shall not apply.
C. Buyer agrees to keep confidential and protect from disclosure to any
third party all Confidential Information obtained from ITT regardless of
form, including but not limited to, drawings, specifications, requirements
documents, and samples obtained from ITT in connection with this
Order.
D. Buyer further agrees that such Confidential Information shall be
distributed internally on a need to know basis and shall not be used,
except to perform obligations pursuant to this Order, without prior
written permission of ITT.
E. Buyer shall be liable to ITT for any loss of the Confidential
Information.
F. Upon the request of ITT, Buyer will, at its own expense, return to ITT or
confirm the destruction of all Confidential Information.
26. ASSIGNMENT OF AGREEMENT
Buyer shall not assign this Agreement or any of its rights, benefits,
duties or obligations under this Agreement to a third party without the
written consent of ITT.
Rev June 2010 
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