A. The word “goods” as used herein means products offered or acknowledged in this catalog, ordered by Buyer and furnished by Seller. B. The word “services” means testing and other services offered or acknowledged in this catalog, ordered by Buyer and provided by Seller.
2. GENERAL The terms and conditions set forth herein shall exclusively govern the sale of goods by Seller to Buyer and the furnishing of services by Seller to Buyer. Acceptance of an offer or of the goods or services furnished under quotations or acknowledgements is expressly limited to the terms and conditions contained herein. Any terms and conditions stated by Buyer in any purchase order or other document accepting or ordering such goods or services containing statements, clauses, terms or conditions modifying, adding to, repugnant to, or inconsistent with the terms and conditions of Seller herein contained, may only be deemed accepted by Seller if so stated in writing by a duly authorized signatory of Seller. Buyer further expressly agrees that such terms accepted by Seller are accepted only upon the condition and with the express understanding that, notwithstanding any statements, clauses, terms or conditions contained on any forms of Buyer, the liabilities of Seller shall be determined solely by the terms and conditions stated herein. Acceptance by Buyer of any goods offered for sale or services performed by Seller is expressly limited to the terms and conditions contained herein, and acceptance by Seller of Buyer’s performance which is inconsistent with any term or condition herein shall constitute a waiver as to said term or condition only.
3. PRICES All prices quoted are in U.S. dollars, F.O.B. Burbank, California and/or Valencia, California. Quoted prices do not include charges for shipping, handling, insurance and hazardous materials documentation. State, use, consumption, and excise taxes payable or collectible by Seller, in connection, with its sales shall be in addition to invoice prices. Buyer will reimburse Seller for same at the time of payment of the invoice whether, or not such taxes are separately stated on the invoice. If the Buyer claims exemption from any of these taxes, Buyer shall promptly furnish satisfactory proof of such exemption and shall indemnify and hold Seller harmless from any loss or damage, including attorneys’ fees, Seller incurs in the event any taxing authority finds that Seller should have collected tax.
4. DELIVERY All delivery dates are estimated as accurately as possible; however, Seller shall not be liable for any loss, damage or delay , which is unavoidable or beyond Seller’s control, including but not limited to delays caused or occasioned by acts of God, fire, strikes, insurrection, riot, accident, embargo, delay of carrier, act of civil or military authority, failure of a supplier to make timely delivery, the requirements of any statute, order or directive of any governmental authority. If delays from any such cause occur, the delivery time is correspondingly extended.
5. TITLE AND RISK OF LOSS Title to and risk of loss of goods shall pass to the Buyer upon delivery to carrier even if transportation costs are prepaid by the Seller.
6. PAYMENT TERMS Payment shall be due 30 days from date of invoice. If Buyer requests Seller to hold goods for delivery later than scheduled, the invoice shall bear the scheduled delivery date and payment shall be due 30 days from the scheduled delivery date. Buyer bears all risk of loss or damage while such goods are in Seller’s possession and shall pay all reasonable charges for goods held for more than two months and shall reimburse Seller for all use or personal property taxes levied on held goods at any time while in Seller’s possession. Seller shall have the right to modify, change or withdraw credit at any time and without notice. If in Seller’s judgment the financial responsibility of Buyer becomes impaired or unsatisfactory, or if Buyer defaults under any contract with Seller, Seller may demand and Buyer shall give advance cash payment or satisfactory security and Seller may withhold shipments until such payment or security is received. Buyer expressly waives any right of set-off and shall make no deductions from payments due here- under or for any damages of any type claimed by Buyer against Seller.
7. LIMITED WARRANTY Seller warrants its goods to be of the quality described in its current catalogs or specifications delivered by Seller to Buyer as of the date of shipment. Seller warrants that catalog goods modified in accordance with Buyer’s specifications and non-catalog goods manufactured to Buyer’s specifications will be free from defects in materials and workmanship and manufactured in conformity with specifications furnished to Seller by Buyer as of the date of shipment or specifications delivered by Seller to Buyer as of the date of shipment. Seller warrants its services to be of a workmanlike quality. SELLER MAKES NO OTHER WARRANTY. THIS WARRANTY IS EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, GUARANTIES, OBLIGATIONS OR LIABILITIES WHICH MAY BE EXPRESSED OR IMPLIED BY SELLER OR ITS REPRESENTATIVES. ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND OTHER THAN TITLE, ARE HEREBY EXPRESSLY NEGATED AND EXCLUDED. This warranty does not apply to goods which have been repaired or altered by other than authorized representatives of Seller, which have been subjected to misuse, negligence or accident or which have been operated or maintained or inspected other than in the strictest accordance with the applicable manuals or instructions furnished by Seller. Equipment and accessories not of Seller’s manufacture, if any, are warranted only to the extent they are warranted by the manufacturers thereof, and Seller hereby assigns its interest under any such warranty to Buyer. ANY COMPLAINTS FOR BREACH OF WARRANTY MUST BE RECEIVED IN WRITING BY THE SELLER WITHIN 30 DAYS OF RECEIPT OF GOODS BY BUYER OR THE PERFORMANCE OF SERVICES HERE UNDER. The maximum liability for breach of warranty shall be the invoice price of the goods or services. Upon the Seller’s request, Buyer shall return goods to Seller at Seller’s expense.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION SELLER ASSUMES NO LIABILITY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE OF ANY KIND. Upon acceptance of the goods or services, Buyer assumes all liability for and shall hold Seller harmless against the consequences of use or misuse of the goods or services by Buyer, its employees and all others. Buyer agrees to defend and hold Seller harmless from any and all suits, claims or demands for injuries to or death of any person, or damage to or loss of property arising out of, in connection with, or incidental to the goods or services furnished by Seller, regardless of whether or not such Seller is liable for injuries, damage or loss under theories of joint or concur- rent negligence. Buyer further agrees that it will pay, liquidate, discharge and satisfy any and all judgments, awards or expenses incurred by or rendered against Seller including all costs of suit, attorneys’ fees and expenses arising out of any suit, claim or demand for injuries to or death of any person, or damage to or loss of property arising out of, in connection with or incidental to the goods or services furnished by Seller, regardless of whether or not the judgment, award, or expense was made in whole or in part, due to Seller’s joint or concurrent negligence. As used in this para- graph, the term “Seller” shall include Seller, its officers, directors, employees and agents. Buyer’s care, custody or control at any time of the goods contemplated herein shall give rise to a conclusive presumption between the parties that any negligence was joint or concurrent. This paragraph also applies in its entirety to suits, claims and demands brought under the theories of strict liability and product liability.
9. CHANGES AND GOODS MADE TO BUYER’S SPECIFICATIONS Seller reserves the right to make any changes in material or design of its products, but bears no obligation to do so. Where goods are made to Buyer’s specifications, it is on the express condition that Buyer shall bear all responsibility for and shall indemnify and hold Seller harmless from all suits or claims that the goods infringe on, contribute to the infringement of, or are alleged to infringe on or contribute to the infringement of any letters, patents, copyrights or trademarks, regardless of whether, or not a portion of the specifications, drawings or designs were supplied by Seller.
10. SELLER INSPECTION AND TESTING The goods are inspected and, where practicable, submitted to Seller’s standard tests at Seller’s plant before delivery. Buyer agrees to pay Seller reasonable additional charges for any additional tests which Buyer requires Seller to perform.
11. BUYER INSPECTION AND ACCEPTANCE Within 30 days after tender of delivery to or receipt by Buyer of any shipment, Buyer shall inform Seller in writing if the goods are found defective or short in any respect. Failure to so inform Seller or any use by Buyer of the goods shall constitute conclusive evidence that Seller satisfactorily performed and Buyer waives any right to reject such goods thereafter.
12. COMPLIANCE WITH LAWS Buyer agrees that in the performance hereof it will comply with all applicable laws, statutes, rules, regulations or orders of the national government or political subdivision thereof and same shall be deemed incorporated by reference herein. A. In the United States: Federal and State regulations require a copy of a Buyer’s NRC license, Agreement State License, or Licensing State License together with all amendments, to be on file with Seller before any shipment of radioactive materials can be made. Buyer and Seller each warrant that it is an equal opportunity employer and that if this order is placed as a contract or subcontract under United States government prime contract, those clauses required by federal law to be included are herein incorporated by reference. B. In Canada: A copy of the Buyer’s AECB license, together with all amendments must be on file with Seller prior to any shipment of radioactive materials.
13. LIMITATION PERIOD Causes of action for breach of con- tract relative to any order for goods or services shall not be asserted after one year from the date that said cause of action occurs, provided that this limitation shall not apply to actions by Seller to recover purchase price of the goods.
14. CANCELLATION The contract arising out of Buyer’s order cannot be changed after receipt by the Seller, nor can it be cancelled, transferred, or assigned to another, except by mutual agreement of the parties in a writing signed by both parties.
15. APPLICABLE LAW Seller reserves any and all rights and remedies provided by law. The contract arising out of Buyer’s order shall be interpreted and construed in accordance with the laws of the State of California. Jurisdiction for disputes arising out of this contract shall be in the Courts of the State of California.
16. WAIVERS No waiver by Seller of any breach of any provision hereof shall constitute a waiver of a breach of any other provision or another breach of the same provision. Seller’s failure to object to provisions contained in any communications from Buyer shall not be deemed an acceptance of such provisions, nor as a waiver of the provisions hereof.
17. NO OTHER REPRESENTATIONS There are no understandings, agreements, representations or warranties, either written or oral, relative to the goods or services that are not fully expressed in this document. No statement, recommendation or assistance made or offered through Seller’s representatives or contained in any sales literature is or constitutes a waiver by Seller of any of the provisions hereof. The provisions of this document supersede and cancel any previous understanding or agreement between the parties with respect to the subject matter hereof and this document expresses the final and complete understanding of the parties.
18. ARBITRATION All disputes arising out of this con- tract, except actions by Seller to recover the purchase price of goods or services, shall be determined by binding arbitration in accordance with the rules of the American Arbitration Association. In such arbitration, the prevailing party shall be awarded attorneys’ fees and costs (including costs of experts) and the provisions of California Code of Civil Procedure Section 1283.05 shall apply.