BIRNS' Terms and Conditions of Sale
These terms and conditions represent the entire agreement between the parties hereto and there are no collateral, oral or other agreements or understandings unless expressly agreed to in writing by BIRNS. Any proposal for additional or different terms or any attempt by Customer to vary in any degree from the terms and conditions hereof shall be null and void. In the event of any and all conflicts between the terms and conditions of this order or any other instrument shall be resolved in favor of the terms and conditions contained herein notwithstanding any statements to the contrary on the conflicting instrument.
In these Conditions:
a. “Conditions” means these Terms and Conditions of Sale;
b. “BIRNS” means BIRNS Oceanographics, Inc., doing business as BIRNS Inc., a California corporation with offices located at 1720 Fiske Place, Oxnard CA 93033-1863 USA;
c. “Customer” means any person, firm or corporation seeking to acquire goods or services from BIRNS.
2. BIRNS TERMS AND CONDITIONS PREVAIL—BIRNS’ acceptance of Customer’s order is expressly conditioned upon Customer’s agreement to and acceptance of the Conditions contained herein, together with any special terms set forth in BIRNS’ Quotation and/or Sales Order, which together constitute the entire final contract between the parties which may not be varied except by and express written modification signed by BIRNS’ duly authorized representative. BIRNS SHALL NOT BE BOUND BY ANY TERMS OR CONDITIONS contained in Customer’s forms which in any way seek to alter the Conditions. BIRNS’ failure to object to provision contained in Customer’s forms shall not be deemed an acceptance by BIRNS or a waiver of the Conditions. BIRNS’ Conditions shall govern and control, regardless of whether Customer’s Purchase Order or any other forms precedes or succeeds BIRNS’ document(s) and regardless of whether the Customers’ forms indicate that the terms and conditions therein contained are controlling and cannot be varied.
3. ORDERS AND CREDIT APPROVAL
a. An order shall not be binding on BIRNS until approved by BIRNS at its home office at 1720 Fiske Place, Oxnard CA 93033-1863 USA.
b. Payment in full shall be received by BIRNS by the date the goods are ready for shipment. For those instances wherein BIRNS extends credit to Customer, Customer grants BIRNS the right to investigate Customer’s credit, to exchange credit information with others and to report to others on Customer’s account and relationship with BIRNS and BIRNS is released from any liability emanating therefrom.
c. BIRNS reserves the absolute and sole right to set and/or modify payment terms, including partial or advanced payment requirements.
4. CUSTOMER TO PAY TAXES AND ADDITIONAL COSTS—In addition to the purchase price the Customer shall be obligated to pay for all sales, excise use privilege, ad valorem, customs and any other taxes, assessments, tariffs or similar charges imposed, levied or increased by authority of any local, county, state, federal, international or any other country’s law, rule, ordinance or regulation concerning the goods or any parts, components or materials thereof, sold to Customer including the importation, processing, manufacturing, distribution sale or exportation of the raw materials, parts or manufactured goods. Additionally Customer shall be liable for any additional costs incurred by BIRNS arising from any local, county, state, federal, international or any other country’s laws regulation the hours and costs of labor for producing the goods. In the event BIRNS shall be required to pay such taxes, assessments, duties, tariffs or similar charges or incur such additional costs, the Customer upon demand shall immediately reimburse BIRNS for such amounts. Customer shall furnish BIRNS upon demand any appropriate tax exemption certificates.
5. PAYMENT DEFAULT—If the Customer defaults in payment by the due date of any amount payable to BIRNS, then all money which would become payable by the Customer to BIRNS at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and BIRNS may, without prejudice to any other remedy available to it:
a. Charge interest on any outstanding sum due at the rate of one and a half percent (1.5%) per month, or eighteen percent (18%) per annum, for the period from the due date until the date of payment in full. In any jurisdiction where this rate is deemed usurious, then the amount of the interest rate shall be deemed decreased to the maximum allowable rate in such jurisdiction;
b. Charge the Customer for all expenses and costs (including retention of counsel, court costs, and/or other legal costs) incurred by it in taking whatever action it deems appropriate to recover any sum due—whether or not suit is initiated;
c. Cease of suspend for such period as BIRNS thinks fit, supply of any further goods or services to the Customer without liability to the Customer or any third party for any loss of damage whether of a direct or consequential nature;
d. Terminate any contract with the Customer so far as unperformed by BIRNS, without liability for any direct or indirect loss or damage that may be caused to the Customer or any third party and without any effect on the accrued rights of BIRNS under any contract.
6. CUSTOMER’S INSOLVENCY OR DEFAULT
a. Customer represents to Seller that Customer has not ceased to pay its debts in the ordinary course of business, that it can pay its debts as they become due, and that Customer is solvent within the meaning of the federal bankruptcy act.
b. In addition to any rights reserved to BIRNS under law or these Conditions, in the event that Customer becomes insolvent, or if any insolvency petition is filed by or against Customer, or an assignment for the benefit of creditors filed by Customer, or a trustee receiver, fiscal agent or other court officer appointed for Customer, or if Customer makes fraudulent transfers or preferential payments, or in the event Customer refuses to accept conforming goods or otherwise breaches its obligations to BIRNS, or repudiates any agreement with BIRNS, or in the event that BIRNS in its sole discretion deems itself insecure or feels that Customer’s financial condition is impaired or does not justify continuance of production or shipment on the terms agreed upon herein, BIRNS reserves the right to cancel the order or to refuse to continue production and/or deliveries (and/or recall any goods in transit) until it receives full payment in advance or satisfactory security and guarantee that payment will be made when due. In the event of non-payment for any delivery made, installment or otherwise, BIRNS may suspend future deliveries due until full payment is made, or may cancel the agreement. Notwithstanding BIRNS’ actions however, Customer shall remain liable for all moneys due to BIRNS under the agreement for the goods as well as for any costs and expenses incurred by BIRNS due to Customer’s default, including all cancellation charges, court costs and attorney’s fees.
a. Any written quotation provided by BIRNS to the Customer in respect of the proposed supply of goods or services by BIRNS to the Customer is deemed to be an invitation only to the Customer to place an order based upon that quotation.
b. Quotations are based upon a specific revision level of particular drawing(s). If a Quotation is provided, and a Purchase Order is subsequently issued to BIRNS on the basis of a different revision/drawing, BIRNS will adjust the price as needed.
c. Prices stated on BIRNS’ quotation are firm for thirty (30) days from date of quotation for orders accepted within that period, unless expressly stated otherwise by BIRNS. Otherwise, prices (including those shown on any price list or e-Commerce site) are subject to change without notice.
d. Quoted prices do not include any carriage costs, insurance costs, bank charges, handling charges, taxes, duties and/or tariffs imposed or levied by any government or subdivision thereof by reason of a sale, all of which shall be for the account of, and are assumed by the Customer.
e. Any period or date for delivery of goods is intended as an estimate only and is not a contractual commitment. BIRNS will use its best endeavors to meet any estimated dates for delivery of the goods but will in no circumstances whatsoever be liable for any loss or damage suffered by the Customer and/or any third party for failure to meet any estimated date.
8. SHIPPING/DELIVERY TERMS—All shipments are EXW (Ex Works per Incoterms 2010) BIRNS’ factory in Oxnard unless expressly specified by BIRNS. Customer assumes all risk of loss, shortage, delay or damage to the goods in transit once the goods are made available to the carrier. Customer shall be responsible for all freight, transportation, insurance, shipping, storage, handling demurrage or similar charges, including risks and costs of loading the goods onto the vehicle provided by the Customer or for clearing the goods for export, unless otherwise agreed.
9. AMENDMENT/REVISION OF ORDER—Quotations and orders are based upon a specific revision level of particular drawing(s). Different revision levels of the same part number shall be considered wholly different items. The Customer may request to modify an order (by increase or decrease in order quantity, change in drawing revision, substitution for new item, or change of technical specifications, or any other change to the purchase agreement or its terms, material or otherwise). The Customer shall submit all such requests to BIRNS in writing. BIRNS reserves the right to deny or grant at its sole discretion any request by the Customer to modify an order. When the Customer requests to modify an order, BIRNS may submit for the Customer’s approval a new Quotation for changes which affect price or lead time. No modification will take effect without BIRNS’ explicit written acceptance of the Customer’s request to modify the order.
10. CANCELLATION OF ORDER—The Customer may not cancel this order without written authorization from BIRNS. In the event that BIRNS authorizes a cancellation, Customer shall be liable for payment of a cancellation charge equal to twenty-five percent (25%) of the value of the order cancelled plus the costs of all materials ordered by BIRNS to complete Customer’s order, which amount Customer agrees is a fair and reasonable liquidated damage and agrees to pay to BIRNS upon receipt of an invoice therefore. Customer shall not have the right to cancel its purchase order because of any delay or default in delivery. Orders may not be canceled for work or shipment delayed by BIRNS except with the consent, and upon the terms and conditions approved by BIRNS in writing. Such terms will include cancellation charge, payment in full for all work in progress, work finished, goods identified to the order, and all other damages or losses incurred by BIRNS as a result of such cancellation or delay.
11. RETURNS—Customer may not return goods unless written authorization is received from BIRNS. In the event that BIRNS authorizes a return, the Customer shall be liable for payment of a restocking charge equal to a percentage of the value of the returned goods, the percentage based on the type of good to be returned. Any returns accepted shall be for credit only. All carriage costs shall be at the Customer’s expense. BIRNS retains the sole discretion to determine the value, if any, at which returned goods will be credited. BIRNS reserves the right to dispose of any unauthorized returns of materials without affording credit. Any verbal instructions must be confirmed in writing by BIRNS to be valid.
12. INTELLECTUAL PROPERTY—BIRNS reserves all rights in the patents, copyrights, trade secrets and other intellectual property inherent in the goods. Although title to the goods passes to the Customer when payment in full has been received, the intellectual property therein does not; the Customer is expressly forbidden from decompiling, “reverse-engineering”, and/or copying any or all of the details embodied in the goods, whether or not for financial or other gain for itself or any third party or parties.
13. OWNERSHIP OF TOOLING—Any drawings, designs, special materials, tools, molds, dies, jigs, gauges, printing plates, patterns, fixtures and equipment, and any replacements thereof or charges, additions or accessories thereto (hereinafter “tooling”) shall become and remain the property of BIRNS regardless of whether the customer paid for same, the charge therefore only representing a portion of the cost thereof and the Customer hereby grants to BIRNS a non-exclusive irrevocable license without charge or royalty to use same and any improvements, ideas, procedures or innovations created, conceived or arising during the manufacturing of the goods being sold to Customer. The Customer agrees to indemnify and save BIRNS harmless from all claims, judgments, decrees, damages, costs and expenses, including attorney’s fees, arising from any claim of infringement of any United States patent, registration, trademark or logo in connection with the production, use or sale of the tooling or the goods sold to the Customer to the extent that such infringement arises from the design, specification or instructions furnished by Customer or undertaken at Customer’s suggestion or request.
14. CUSTOMER’S REPRESENTATION AND ASSUMPTION OF RISK—Customer represents to BIRNS that it is purchasing the goods for industrial or commercial uses and that it is knowledgeable with respect to the type of merchandise sold by BIRNS and that Customer, based solely on its own expertise, has selected the merchandise purchased from BIRNS and has determined that same is suitable for Customer’s intended purposes. Customer hereby assumes all responsibility and risk of loss and damage if the merchandise purchased from BIRNS fails to meet Customer’s intended uses.
15. EXCLUSION OF WARRANTIES—THERE ARE NO WARRANTIES WHICH EXTEND BEYOND BIRNS’ STANDARD WARRANTY AND BIRNS EXPRESSLY AND SPECIFICALLY DISCLAIMS AND EXCLUDES ANY OTHER REPRESENTATIONS, GUARANTEES, OR WARRANTIES, WHETHER ORAL OR WRITTEN, STATUTORY, COMMON LAW, OR CONTRACTUAL, EXPRESSED OR IMPLIED, SUCH AS BUT NOT BY WAY OF LIMITATION, ANY WARRANTIES OR MERCHANTABILITY, FITNESS FOR USE, FITNESS FOR A PARTICULAR PURPOSE OR QUALITY. In no event shall BIRNS have any liability after the expiration of twelve (12) months from the initial date of delivery of the goods.
16. NO LIABILITY FOR DAMAGES—BIRNS shall not be liable for any compensatory, indirect, incidental, consequential, general, special, exemplary or punitive damages, losses, costs, expenses, or attorney’s fees, including, but not by way of limitation, Customer’s additional manufacturing expenses, costs of cover, loss of profit or goodwill, or Customer’s costs and expenses of defending any claim or suit or damages or judgments sustained thereby resulting from the transportation, receipt, inspection, custody, purchase, sale, resale, handling, use of or inability to use BIRNS’ goods for any purpose whatsoever.
17. CUSTOMER’S DUTY TO INSPECT—Customer must examine the goods carefully and fully upon receipt and before using, installing or reselling same and any claim for defective or non-conforming goods must be immediately reported in detail to BIRNS in writing. Customer’s failure to give such detailed written notice to BIRNS within 30 days of its receipt of the goods shall constitute an unqualified acceptance of the goods and a release and waiver of all claims. BIRNS, at its discretion, shall be afforded an opportunity to inspect any non-conforming or defective goods and to cure any problems and BIRNS shall have the right to require Customer to assemble and return any defective or non-conforming goods before BIRNS incurs any liability to Customer. BIRNS’ sole liability to Customer and Customer’s sole recourse shall be expressly limited to BIRNS (at BIRNS’ sole option) either replacing any defective goods or reimbursing Customer for the original price charged for said goods. In no event shall BIRNS’ liability exceed the original price charged for the goods.
18. WARRANTY AND LIMITATIONS
a. BIRNS warrants that its products are free from defects in workmanship and materials for a period of one year from customer’s receipt date. In case of defect in product material or workmanship, BIRNS will replace or repair, at its option, the defective part or parts after the item(s) have been returned to BIRNS’ facility. This warranty is null and void if any other than genuine BIRNS parts are introduced into or used with BIRNS products, and/or if in BIRNS’ sole estimation the user has abused, neglected, or misused the BIRNS product.
b. Total remedies under this warranty are limited to repair and/or replacement only of BIRNS’ furnished equipment and does not extend to any personal liability of any user or his agent nor any property damage to any other equipment or facility wherein the product is used, nor can BIRNS accept responsibility of any kind for errors on the part of user personnel.
c. Customer assumes all liability for accidents or damage caused by or incurred in the use or transportation of BIRNS products. Customer shall defend, indemnify and hold harmless BIRNS, its officers, agents, and employees from any and all damages and/or liability to any person whomsoever, arising out of or resulting from the usage, storage or transportation of BIRNS products and/or equipment by the Customer or anyone while they are in the custody of the Customer. BIRNS shall not be liable for any special, indirect, incidental or consequential damages, whether arising from negligence, warranty, strict liability or otherwise.
d. BIRNS’ liability in any event is limited to the sale price of the product and does not include the cost of any other charges. BIRNS shall not be liable to or responsible for any consequential damages whatsoever, including but not limited to any damage or loss resulting for delay or default in delivery due to any cause.
e. In no event shall BIRNS be liable for anticipated profits or for incidental or consequential damages or penalties. BIRNS’s liability on any claim of any kind or any loss or damage arising out of or in connection with or resulting from this agreement or from the performance or breach thereof shall in no case exceed the price allocable to the Good or unit thereof which gives rise to the claim and Customer specifically waives any other remedy at law or in equity including but not limited to any lien rights whatsoever.
f. Customer shall defend, indemnify and hold harmless BIRNS against all damages, claims or liabilities and expenses (including but not limited to court costs and attorney’s fees) arising out of or resulting in any way from any defect in the Goods subject hereto, or from any act or omission of BIRNS, its agents, employees or subcontractors.
19. GOVERNING LAW AND JURISDICTION—The agreement between the parties shall be deemed to be made in California and shall be governed by the laws of California and specifically the Uniform Commercial Code (hereinafter “Code”) in affect in California as of the date of this document. By accepting this document, Customer hereby submits to the jurisdiction of the Courts of California for any purposes dealing with this document or any subsequent agreement between Customer and BIRNS or of the breach of or the enforcement thereof or for any purposes for BIRNS enforcing any of its rights against the Customer. Whenever a term defined by said Code is used in this instrument, the definitions in the Code shall control its meanings. The parties submit to the jurisdiction of the courts of California in Ventura County, which shall be the only forum for litigating any disputes arising under this agreement. In the event that any provision of this agreement shall be invalid under the laws of any jurisdiction, such invalidity shall not affect the other provisions of this agreement which shall remain in full force and effect.
20. NO WAIVER OF RIGHTS—BIRNS’ failure to exercise or enforce any of its rights under this agreement or under law shall not constitute a waiver of BIRNS’ rights.
21. NO ASSIGNMENT BY CUSTOMER—The Customer shall not assign its contract with BIRNS.
22. CORRECTION OF ERRORS—BIRNS shall have the right to correct any stenographic, clerical, typographical or patent errors contained in this document or any of the documents relating to the transaction between the parties.
23. CAPTIONS—The captions of the clauses contained herein are for identification only and shall not be construed as being a substantive part of the agreement nor as having any independent meaning.
24. ENTIRE AGREEMENT—These Conditions constitute the entire agreement between the parties and there are no oral understandings, representations or warranties affecting it. These Conditions shall not be amended or altered except in writing making specific reference to this order and signed by authorized representatives of the parties hereto.