Terms & Conditions
ADDENDUM TO BREVET INC.’S ORDER ACKNOWLEDGMENT
1. ACCEPTANCE OF TERMS AND CONDITIONS: The following are the terms and conditions (the “Terms”) under which Brevet Inc. produces products and services (collectively “Products”) for other parties (“Customer”). All requests for quotations, purchase orders and offers to produce Products for the Customer made by Brevet Inc. are made subject to these Terms. To the extent that any quotation, order, confirmation, invoice or other document of Customer contains conflicting, differing or additional terms from these Terms, these Terms shall control. All such conflicting, differing or additional terms are rejected by Brevet Inc. and shall have no effect. Customer's full or partial performance under this Acknowledgment of Purchase Order (“Acknowledgment”) will constitute acceptance of all terms and conditions contained herein. By acceptance of this Acknowledgment, Customer agrees to be bound by, and to comply with all terms and conditions of this Acknowledgment (and any supplements), and all referenced specifications or other documents. The terms and conditions listed herein apply to everything listed in this Acknowledgment and constitute Brevet Inc.’s offer to Customer, which Brevet Inc. may revoke at any time before Customer accepts it. ANY TERMS AND CONDITIONS PRESENTED BY CUSTOMER WHICH ARE DIFFERENT FROM OR IN ADDITION TO THE TERMS AND CONDITIONS IN THIS ACKNOWLEDGMENT, WHETHER CONTAINED IN ANY ACKNOWLEDGMENT OF THIS DOCUMENT, OR OTHERWISE SHALL NOT BE BINDING ON BREVET INC., WHETHER OR NOT THEY WOULD MATERIALLY ALTER THIS ACKNOWLEDGMENT, AND BREVET INC. HEREBY OBJECTS THERETO. THE TERMS AND CONDITIONS IN THIS ACKNOWLEDGMENT MAY ONLY BE MODIFIED BY A WRITTEN AGREEMENT EXECUTED BY DULY AUTHORIZED REPRESENTATIVES OF BREVET INC. AND CUSTOMER.
2. DEFAULT: Any Invoice due under the terms of this Acknowledgment, unless otherwise stated in writing, shall be due and payable to Brevet Inc. within thirty (30) days from the date of the invoice. If at any time the financial responsibility of the Customer, or the credit risk involved shall become unsatisfactory to Brevet Inc., Brevet Inc. may require cash or satisfactory security prior to subsequent shipments hereunder. This election by Brevet Inc. shall not affect the obligation of Customer to take and pay for the contracted materials. Customer agrees to pay all costs and expenses, including reasonable attorneys' fees, incurred by Brevet Inc. in the collection of any sums owed by Customer to Brevet Inc. Brevet Inc. reserves the right to terminate this Acknowledgment without liability in the event of any suspension of payment or the institution of any proceedings by or against Customer, voluntary or involuntary, in bankruptcy or insolvency, or the appointment of a receiver or trustee or an assignee for the benefit of creditors, or a determination that the Customer has become unable to pay debts as they become due.
3. INSPECTION: All goods or product (which terms throughout the Acknowledgment includes without limitation raw materials, components, intermediate assemblies, tools and end products) shall sometimes be referred to herein, interchangeably as “goods” or “product”, and services shall be subject to inspection and test by Customer, its customer, ultimate user and joint users, at all times and places including the period of manufacture and in any event prior to final acceptance by the Customer, its customer, ultimate user and joint users. Customer’s failure to inspect or reject non-conforming goods and services or failure to detect defects by inspection shall relieve Brevet Inc. from responsibility under this Acknowledgment. Customer shall provide and maintain an inspection and process control system independent of that of Brevet Inc. covering the goods and services hereunder.
4. WARRANTIES: Customer acknowledges that Brevet Inc. is not responsible for any outside designs, documentations, control systems, specifications, drawings or blueprints developed by Customer. Brevet Inc. warrants that Product will conform to the description in the drawings and specifications incorporated or provided herein. BREVET INC. MAKES NO OTHER WARRANTY REGARDING QUALITY OR PERFORMANCE OF THE PRODUCT, AND EXPRESSLY EXCLUDES THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR CUSTOMER'S PARTICULAR PURPOSE. Customer has independently determined the suitability of the Product for Customer’s use.
5. REJECTIONS: Customer shall confirm the accuracy and completeness of all shipments as to Product identity, quantity and quality upon receipt, and Customer waives claims therefore unless made in writing and delivered to Brevet Inc. within fifteen (15) days after receipt of goods. Failure to present a claim prior to the expiration of this period is deemed acceptance and waiver of all defects, whether patent or latent. In the event that Brevet Inc. delivers goods which are not in conformity with Brevet Inc.’s drawings and specifications, at its option and sole discretion may (a) inspect the goods and remove and replace non-conforming goods with goods that conform to this Acknowledgment, (b) upon notice to Customer, Brevet Inc. shall be given the opportunity to take such actions as may be required to cure all defects and/or bring the goods or services into conformity with all the requirements of this Acknowledgment assuming the reason for the delivery of such non-conforming goods is the fault of Brevet Inc. Except as set forth above, Brevet Inc.'s sole liability and Customer’s exclusive remedy for non-conforming goods shall be replacement of the parts or the refund of the purchase price, including direct costs incurred by Customer for shipping, storing, handling and return of non-conforming goods. IN NO EVENT SHALL BREVET INC. BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, SPECULATIVE OR CONSEQUENTIAL DAMAGES, if any of the goods or services ordered are found at any time to be defective, or otherwise not in conformity with the requirements of this Acknowledgment.
6. CHANGES: Upon acceptance by Brevet Inc. of the initial order, deviations considered by Customer must be submitted to Brevet Inc. in writing for review. If changes are submitted for approval, the information submitted must include a complete description of the change and the effect the change will have on all characteristics of the product. Any change which has a significant impact on the cost of manufacturing to Brevet Inc. shall entitle Brevet Inc. to an equitable adjustment in the purchase price. If Brevet Inc. considers that the conduct or work requirement of any of Brevet Inc.’s employees has constituted a change hereunder, Brevet Inc. shall notify Customer as to the nature of the change and its effect on Brevet Inc.'s performance including delivery schedule and the amount to be paid to Brevet Inc. In that event Customer shall be liable for obsolescence, scrappage, and/or rework resulting from any deviation, including, but not limited to, the value of the materials and parts in process at the time of the change, to the extent that such parts are within Brevet Inc.'s normal manufacturing cycle required to meet the established delivery schedule. Brevet Inc. at any time shall have the right to make changes in the quantities, specifications or delivery schedule.
7. ASSIGNMENT: Brevet Inc. in its sole discretion may assign its rights hereunder to its affiliates or to third party purchasers.
8. COMPLIANCE: Customer will comply with all laws, rules and regulations pertaining to handling of the Product, and assumes all risks and liability arising out of its use, storage, shipping, handling and resale of the Product. Customer agrees to defend, indemnify and hold Brevet Inc. harmless against claims by any third party, including Customer’s employees, customers, and end users of the product, arising out of Customer's use, storage, handling, incorporation of the product into other products or components of products, or resale of the Product. Customer shall pay all taxes, excises, fees or charges related to the sale or transportation of the Product. If Customer resells the product for export, it is the responsibility of Customer to ensure compliance with U.S. export laws.
9. INDEMNIFICATION: Customer will indemnify and hold harmless Brevet Inc., its subsidiaries, affiliates, licensees and assigns, and their respective officers, directors, agents, representatives, subcontractors and employees (each, an "Indemnified Party"), from all claims, liabilities, damages and expenses incurred by or asserted against an Indemnified Party, in any manner arising out of or relating to Customers design of the product, performance or failure to perform its obligations, or any goods or services referred to, under this Acknowledgment.
10. INSURANCE: Brevet Inc. shall maintain public liability, property damage, product liability and other insurance coverage of at least $5,000,000 (US) per occurrence.
11. TERMINATION: In the event Brevet Inc. determines any of Customer's representations, warranties, certifications or covenants to be untrue, Brevet Inc. shall have the right to immediately terminate this Acknowledgment without further obligation to Customer and Customer shall compensate Brevet Inc. for any damages suffered by Brevet Inc. relating thereto. Additionally, Brevet Inc., by written notice, may terminate this Acknowledgment, in whole or in part, at any time when it is in Brevet Inc.'s interest to do so. Brevet Inc. shall terminate by delivery of a notice of termination specifying the extent of termination and the effective date.
12. ENTIRE AGREEMENT: This Acknowledgment, with such documents as are expressly incorporated herein by reference, is intended by the parties as a final expression of their agreement with respect to such items as are included herein, and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties and no usage of the trade shall be relevant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.
13. GOVERNING LAW: This Acknowledgment shall be governed by and construed in accordance with the laws of the State of California, without regard to the State's conflict of law provisions, and not including the United Nations Convention on Contracts for the International Sale of Goods. Any action or suit which arises out of or is related to this Acknowledgment shall be brought in the Superior Court of California, County of Orange.
14. WAIVER: The failure of Brevet Inc. to enforce at any time or for any period of time any of the provisions hereof shall not be construed to be a waiver of such provisions nor the right of Brevet Inc. thereafter to enforce each and every such provision. No claim or right arising out of a breach of this Acknowledgment can be discharged in whole or part by a waiver of the claim or right unless the waiver is supported by consideration and is in writing signed by the aggrieved party.
15. INTELLECTUAL PROPERTY INDEMNIFICATION: Customer acknowledges that Brevet Inc. is the designer of the product described in the Acknowledgment with the exception of contract manufacturing services provided. produce all parts requested by Customer hereunder, including but not limited to all patents, processes, copyrights, trademarks, trade names and trade secrets therein or related thereto; Customer has not sold, granted, conveyed, licensed or assigned to any third party, or in any way encumbered, the goods or any part thereof, Customer has the right to enter into this Acknowledgment and to grant the rights granted herein; and the goods, services and the rights granted to Brevet Inc. herein do not infringe upon any right of any third party. Customer shall defend and indemnify at its own cost and expense each Indemnified Party from and against any and all Claims arising out of any breach or purported breach by Brevet Inc. of any representation or warranty made hereunder. If Customer should fail to defend or settle a Claim at any time after demand, the Indemnified Party shall have the right to do so without prejudice to any claims the Indemnified Party may have against Customer for indemnification pursuant to this clause or otherwise.
16. TRANSPORTATION, RISK OF LOSS, TITLE PASSAGE: Unless otherwise agreed, Customer will designate corporate or contract carriers. Transportation charges are to be billed to Customer by carrier and will be borne by Customer. All costs associated with any unauthorized shipments are Customer's responsibility. The risk of loss is FOB Brevet Inc.’s shipping dock.
17. NO AGENCY: Brevet Inc. shall provide goods and services hereunder as an independent contractor and not as Customer's agent or employee.
18. IMPORTATION OF GOODS: Unless otherwise provided in this Acknowledgment or in a writing signed by Brevet Inc., Customer agrees that Brevet Inc. will not be a party to the importation of the goods, that the transaction(s) represented by this Acknowledgment will be consummated subsequent to importation, and that Customer will neither cause nor permit Brevet Inc.’s name to be shown as "importer of record" on any customs declaration. Where Customer is importer of record, the purchase price is inclusive of all duties and other costs of customs clearance. Upon request Customer will fully cooperate in a timely manner to provide documentation and such assistance as Brevet Inc. may request to allow Brevet Inc. to claim drawback with respect to the products. Customer warrants that all sales hereunder are in compliance with applicable US export control regulation requirements. If Brevet Inc. agrees in writing to be the importer of record, the following shall apply: Customer will provide, in English, all information required by the US Customs Service to be included on documents necessary upon entry of products into the US. Customer shall accurately indicate the country of origin of all products sold hereunder on the customs invoice and other applicable documentation. Customer warrants that no sale hereunder will give rise to antidumping or countervailing duties under US law. Customer shall execute such documents as may be necessary to allow Brevet Inc. to claim duty preference under applicable programs.
19. FORCE MAJEURE: Brevet Inc. shall not be liable for any cost, damage or alleged breach resulting from acts or events beyond the control of Brevet Inc., including, but not limited to, acts of God, or the public enemy, acts of Government in either its sovereign or contractual capacity, fires, flood, epidemics, quarantine restrictions, strikes, actual or potential labor disputes, freight embargoes, and unusually severe weather. In addition, Brevet Inc. shall not be liable for any alleged breach, damage or cost if the failure to perform is caused by the default of a subcontractor, and if such default arises out of causes beyond the control of either or both Brevet Inc. and the subcontractor, and without the fault, breach or negligence of either of them.
20. ACKNOWLEDGMENT OF PRECEDENCE: This Acknowledgment constitutes the entire, fully integrated agreement of the parties as to the subject matter hereof. In the event of any inconsistency among the foregoing, the inconsistency shall be resolved by giving precedence in the following order: (i) these terms and conditions (ii) the Brevet Inc. Quotation or Brevet Inc. Purchase Order to which these terms and conditions; (iii) the drawings; (iv) the specifications; (v) other documents incorporated by reference (if any), and (vi) electronic design files.
21. NOTICES: All notices required or permitted to be given hereunder shall be deemed to be properly given if delivered in writing personally or sent by United States certified or registered mail addressed to Brevet Inc. or Customer, as the case may be, at the addresses set forth on the face of the Brevet Inc. Quotation or Brevet Inc. Purchase Order, with postage thereon fully prepaid. The effective time of notice shall be at the time of mailing.
22. WAIVER: No waiver by Brevet Inc. of any breach of this Acknowledgment or the granting of an extension for performance hereunder shall be deemed to be a waiver of any other or subsequent breach. Customer agrees that it will not claim that Brevet Inc. has waived any of Customer's performance requirements under this Acknowledgment, and no such waiver shall be effective to relieve Customer from complete and punctual performance of such requirements, unless such waiver is expressly stated in writing and signed by Brevet Inc.’s representative (or his/her successor) who signed the Acknowledgment.
23. ARBITRATION: Any and all claims, disputes or other matters in question arising out of, or relating to, this Acknowledgment or the breach thereof shall be decided by arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (the "AAA Rules"). Notice of the demand for arbitration shall be filed in writing with the American Arbitration Association and served on the other party in accordance with the AAA Rules within one (1) year after final delivery under the Acknowledgment. All arbitration proceedings shall be heard and decided by one (1) arbitrator, who shall be an attorney with experience and familiarity with contract law, appointed in accordance with the AAA Rules. The hearing shall be closed to all persons except the arbitrator, the parties, their attorneys, and witnesses (only while testifying). The arbitrator’s compensation, together with the time and manner of payment, shall be determined by the arbitrator and may be assessed against the Parties in such proportions as the arbitrator may deem fair and equitable. Any award made by the arbitrator may be enforced by entry of a judgment in the Superior Court for the County of Orange, State of California, in accordance with California law. Unless otherwise directed in writing by Customer, Brevet Inc. shall carry on the work and maintain its performance of the Acknowledgment during any arbitration proceedings. Either party to the arbitration may avail itself of discovery procedures in accordance with the then current California Rules of Civil Procedure. The arbitrator shall decide the questions in dispute in accordance with the law applicable under the provisions of this Acknowledgment, subject to review by the courts in accordance with Section 10(d) of the United States Arbitration Act (9 U.S.C. §10(d)). Arbitration under this paragraph shall be conducted in the AAA office in the County of Orange, State of California.