SALES TERMS & CONDITIONS
Sales Terms and Conditions
1. Acceptance. The following terms and conditions (“Terms and Conditions”) apply to all transactions for a good (“Good”) produced by SP Craftech I LLC (“Craftech”), and each Quotation (defined below), order acknowledgement, and invoice from Craftech and to each purchase order (“Purchase Order”) from each customer (“Customer”), and are the only terms and conditions applicable to the sale of Craftech’s Goods, except those relating solely to quantities, shipping instructions, or descriptions of the Goods set forth in Customer’s Purchase Orders (collectively, “Purchase Order Terms”). Purchase Orders, if accepted by Craftech, are accepted subject to the Terms and Conditions set forth herein. CRAFTECH HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY CUSTOMER, WHETHER OR NOT CONTAINED IN ANY OF CUSTOMER’S BUSINESS FORMS OR ON CUSTOMER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SHALL BE VOID AND OF NO EFFECT UNLESS IN A WRITTEN AGREEMENT, SIGNED BY AN OFFICER, DIRECTOR, OR LEGAL COUNSEL (“Authorized Representative”) OF CRAFTECH, WHICH SPECIFICALLY REFERS TO “A MODIFICATION OF” OR “DEVIATION FROM” THE LANGUAGE OF “CRAFTECH’S GLOBAL TERMS AND CONDITIONS”. The parties agree that it is their intention that the battle of the form section of § 2-207 of the Uniform Commercial Code shall not apply to these Terms and Conditions.
2. Quotations. Any quotation or pricing proposal (a quotation or pricing proposal hereinafter “Quotation”) is only valid if in writing and then only for thirty (30) days from the date of the Quotation unless otherwise set forth in such Quotation. All Quotations by Craftech are subject to change or withdrawal without prior notice to Customer unless otherwise specifically stated in the Quotation. Craftech shall have no obligation to provide, deliver, or sell Goods covered by Craftech’s Quotation unless and until Craftech issues an order acknowledgement or upon the shipment of Goods by Craftech.
3. Prices. Unless otherwise stated in the applicable documents, prices are stated in U.S. Dollars ($USD) and are subject to change without notice. If a raw material or component is subject to a price increase, or if a supplier raises its prices or imposes a surcharge on Craftech, Craftech reserves the right to increase prices and/or surcharge Customer and Customer agrees to accept such price increase or surcharge until the term of such price increase or surcharge or until the termination of the contract to which these Terms and Conditions apply is reached. Craftech reserves the right to charge Customer overtime and other applicable charges to the extent that Craftech incurs additional costs in producing Goods due to the actions (or inaction) of Customer. Time of payment is of the essence. All orders are accepted subject to Craftech’s price in effect at time of shipment. Customer is responsible to pay for, on or prior to the end of any program, order, etc., any unused materials (packaging, coating materials, etc.) specifically made or acquired for Customer’s order.
4. Terms of Payment. The inspection rights granted to Customer will not affect or alter the payment terms or the timing of Customer’s payment obligations. Under no circumstances will Customer have a right of setoff. Craftech shall have the right to offset its payables against its receivables from Customer. Unless otherwise expressly agreed to by Craftech in Craftech’s Quotation, terms of payment are thirty (30) days net from the date of Craftech’s invoice. In the event of Customer’s failure to pay Craftech timely Craftech reserves the right to take any or all of the following actions: (a) any actions allowable under law; (b) withhold shipment of Goods; (c) demand the return of previously shipped Goods; (d) institute new payment terms; and/or (e) cancel any Purchase Orders. Customer agrees to pay interest on overdue invoices at the rate of the lesser of one and one half percent (1½ %) per month or the highest rate permitted by law. If Customer fails to make any payment as required, Customer agrees to indemnify Craftech for all costs and expenses, including reasonable attorneys’ fees, court costs, and associated expenses incurred by Craftech in collecting the past due amount.
5. Credit Approval. All Quotations and shipments to be made hereunder are subject to the approval of Craftech’s accounting department. If, in Craftech’s sole judgment, the financial viability or responsibility of Customer is or becomes unsatisfactory, then Craftech may, at its option and without prejudice to any of its other remedies hereunder or at law or equity, (a) defer or decline to make any shipments hereunder except upon receipt of satisfactory security or cash payments in advance, and / or (b) terminate all Purchase Orders of Customer.
6. Cancellation. Craftech reserves the right to cancel any Purchase Orders or releases thereunder, or terminate any Agreement relating to Goods on not less than thirty (30) days notice. Unless specifically agreed to by Craftech in writing signed by an Authorized Representative of Craftech, once Craftech has either accepted a Purchase Order or has begun taking actions with respect to such Purchase Order, such Purchase Order cannot be canceled, terminated or modified by Customer, in whole or in part, except with Craftech’s consent in writing signed by an Authorized Representative of Craftech and then only upon terms and conditions to be agreed upon which shall include protection of Craftech against all losses related to the termination. If Customer nonetheless repudiates the Purchase Order or contract or notifies Craftech to proceed no further therewith, Craftech shall have the right to deliver all Goods, and Customer agrees to accept same and to pay to Craftech the contract price for all such Goods plus reimbursement of any costs associated with the early termination.
7. Inspection / Non – Conforming Shipments. Craftech grants Customer the right to inspect Goods for a period of fifteen (15) business days immediately following delivery (“Inspection Period”). Customer must notify Craftech of any Goods that do not conform to the terms applicable to its order within the Inspection Period, and afford Craftech a reasonable opportunity to inspect such Goods and cure any nonconformity. If Customer fails to provide Craftech with a Non-Conformance Report (as defined below) within the Inspection Period, Customer shall be deemed to have accepted such Goods. Customer will have no right to return any Good without Craftech’s prior written authorization. Any return authorized by Craftech must be made in accordance with Craftech’s return policies then in effect and must be accompanied by a written statement by Customer documenting the reason why the Goods were returned. Craftech, in its sole discretion, may reject any return of Goods not approved by Craftech in accordance with this paragraph or otherwise not returned in accordance with Craftech’s then current return policies.
8. Title / Risk of Loss / Delivery. Unless other arrangements are made in writing, Craftech anticipates use of common carriers for transport of Goods. Unless specifically otherwise provided in Craftech’s invoice or Quotation, the carrier, not Craftech, will bill for freight rates and other transportation charges. Freight payments are solely the responsibility of the Customer, to be paid directly by the Customer to the carrier. Craftech reserves the right to adjust prices to cover additional costs a) when the Customer specifies that deliveries are to be made in installments that do not conform to Craftech’s typical production schedule, and b) when Craftech elects to deliver as specified by Customer. All Goods shall be shipped F.O.B. Craftech’s plant and shall become the property (if not already the property) of Customer upon delivery to the carrier and receipt of payment in full to Craftech. Customer assumes all risk and liability for loss, damage, or destruction, as well as the results of any use or misuse by third parties who may acquire or use the Goods illicitly after the delivery to the carrier. Unless mutually agreed upon in writing, shipping dates are approximate and are based upon prompt receipt of all necessary information. Craftech reserves the right to ship items in a single or multiple shipments.
9. Indemnification. Customer shall indemnify and hold Craftech harmless from and against any and all claims, demands, liabilities, suits, actions, proceedings, damages, costs and expenses (including, but not limited to, attorney’s fees), etc. incident to or arising out of or in connection with or relating to any breach of this Agreement or Customer’s negligent or willful acts related to this Agreement. Craftech may participate in any such defense to such extent as it, in its sole discretion, may determine.
10. WARRANTY. CRAFTECH WARRANTS ONLY THAT THE GOODS CONTRACTED FOR HEREUNDER (A) WILL CONFORM TO THE DESCRIPTION ON THE FACE OF THE QUOTATION, INVOICE, PACKING LIST, ETC., AND (B) WILL BE CONVEYED FREE AND CLEAR OF ANY LIEN, SECURITY INTEREST OR ENCUMBRANCE CREATED BY CRAFTECH OR ANY PARTY CLAIMING BY, THROUGH, OR UNDER CRAFTECH.
CRAFTECH SHALL HAVE THE RIGHT EITHER TO REPLACE OR REPAIR ANY DEFECTIVE GOODS (TO THE EXTENT SUCH DEFECT IS PROXIMATELY CAUSED BY CRAFTECH), TO REFUND THE CONTRACT PRICE, REPLACE (OR PAY FOR REPLACEMENT OF) DAMAGED PARTS, OR TO GRANT A REASONABLE ALLOWANCE ON ACCOUNT OF SUCH DEFECTS, AND CRAFTECH’S LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR DEFECTIVE GOODS SHALL BE LIMITED SOLELY TO RE-PERFORMANCE, REPLACEMENT, REPAIR, REFUND OR ALLOWANCE AS CRAFTECH MAY ELECT.
CRAFTECH SHALL BE GIVEN A REASONABLE OPPORTUNITY TO INVESTIGATE ALL NON-CONFORMANCE CLAIMS.
11. DISCLAIMER OF FURTHER WARRANTIES. EXCEPT AS SET FORTH ABOVE, CRAFTECH MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE), WITH RESPECT TO ITS GOODS.
12. LIMITATION OF LIABILITIES AND REMEDIES. CRAFTECH SHALL NOT BE LIABLE, AND CUSTOMER WAIVES ALL CLAIMS AGAINST CRAFTECH FOR INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON CRAFTECH’S NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. CRAFTECH WILL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS, DAMAGE, OR INJURY TO PERSONS OR PROPERTY RESULTING FROM THE HANDLING, STORAGE, TRANSPORTATION, RESALE, OR USE OF ITS GOODS IN MANUFACTURING PROCESSES, OR IN COMBINATION WITH OTHER SUBSTANCES, OR OTHERWISE.
13. Technical Data. All physical properties, statements and recommendations are either based on the tests or experience that Craftech believes to be reliable, but they are not guaranteed.
14. Tooling / Molds / Dies. Unless otherwise agreed to in writing by both parties, all material, equipment, facilities, and special tooling (tooling includes, but is not limited to, tools, jigs, dies, fixtures, molds, patterns, special taps, special gauges, special test equipment, and manufacturing aids and replacements thereof) used in the manufacture of the Goods covered by any Purchase Order shall remain the property of Craftech until paid in full by the Customer. Tooling must be paid for in full prior to shipping production parts.
15. Taxes. Customer shall pay to Craftech, in addition to the agreed price, the amount of all fees, duties, licenses, tariffs, and all transactions, use, privilege, occupation, excise, value added or other taxes, federal, state, local or foreign, which Craftech is required to pay or collect in connection with the Goods contracted for under this Agreement. Failure by Craftech to collect any such fees or taxes shall not affect Customer’s obligations hereunder and Customer shall fully defend, indemnify and hold harmless Craftech with respect to such tax obligations.
16. Ownership of Intellectual Property. All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights, trademarks, patents, etc. and applications therefore, and other information or Intellectual Property disclosed or otherwise provided by Customer to Craftech and all rights therein (collectively, “Intellectual Property”) will remain the property of Customer. Craftech acknowledges that no license or rights of any sort are granted to Craftech hereunder in respect of any such Intellectual Property. Unless otherwise agreed in a writing signed by an Authorized Representative of Craftech, the sale of Goods by Craftech to Customer does not include any design, development or related services associated with the Intellectual Property of Craftech. Unless otherwise agreed to in a writing signed by an Authorized Representative of Craftech, any Intellectual Property developed by it or mutually with Customer in the course of providing, preparing to provide, or in any way related to the production/development of Goods, shall be owned by Craftech.
17. Confidential Information. Information furnished or made available by Craftech (including, but not limited to, information disclosed prior to the applicability of these Terms and Conditions) to Customer in connection with the subject matter of these Terms and Conditions or of Customer’s Purchase Order shall be held in confidence by the Customer. Customer agrees not to use or disclose such information without the prior written consent of an Authorized Representative of Craftech. The obligations in this Section 17 do not apply to information that (a) at the time of disclosure was or becomes, generally available to the public by no breach by the Customer of any obligation herein, (b) the Customer can show by written records was in its possession prior to disclosure by Craftech, or (c) is legally disclosed to Customer by a third party having no direct or indirect confidentiality obligation to Craftech respecting such information.
18. Updates. Craftech may revise these Terms and Conditions at any time by posting them to their website.
19. Force Majeure. Craftech shall not be liable for failure in delivery of any Goods due to (a) fires, floods, other natural disaster, strikes, or other labor disputes, accidents, sabotage, terrorism, war, riots, financial distress of a supplier or other disruption in Craftech’s supply chain, acts of precedence or priorities granted at the request or for the benefit, directly or indirectly, of any federal, state or local government or any subdivision or agency thereof, delays in transportation or lack of transportation facilities, restrictions imposed by federal, state or local laws, rules or regulations; or (b) any other cause beyond the reasonable control of Craftech. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be useful to enable Craftech to perform. Craftech may, during any period of shortage due to any of the above circumstances, allocate its available supply of resources to provide Goods among itself and its Customers in such manner as Craftech, in its judgment, deems fair and equitable.
20. Assignment and Delegation. No assignment of any rights or interest or delegation of any obligation/duty of Customer under these Terms and Conditions, Craftech’s Quotation, order acknowledgement, invoice, or Customer’s Purchase Order may be made without prior written consent of Craftech’s Authorized Representative. Any attempted assignment or delegation will be wholly void and totally ineffective for all purposes.
21. Integration Clause. Except as otherwise indicated herein, these Terms and Conditions constitute the entire Terms and Conditions to transactions between Craftech and Customer with respect to the Goods.
22. Waiver. No failure of Craftech to insist upon strict compliance by Customer with these Terms and Conditions or to exercise any right accruing from any breach of Customer shall impair Craftech’s rights in case Customer’s breach continues or in case of any subsequent breach by Customer. Waiver by Craftech of any breach by Customer of these Terms and Conditions shall not be construed as a waiver of any other existing or future breach.
23. Limitation of Actions. Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of these Terms and Conditions by Craftech shall be barred unless commenced by Customer within one (1) year from the accrual of such cause or action.
24. Dispute Costs. In any litigation or arbitration between Craftech and Customer concerning these Terms and Conditions, the prevailing party is entitled, in addition to such other relief that is granted, to a reasonable sum for their attorney’s fees, provided that if each party prevails in part, such fees shall be allocated in such manner as the court or arbitrator shall determine.
25. Choice of Laws. Any dispute arising out of or related to these Terms and Conditions shall be governed by and construed according to the laws of the State of California and litigated exclusively in a court located in Orange County, California (to the extent that a matter may only be litigated in a federal court the parties agree that venue for such dispute shall be the Federal Court for the Central District of California). The parties hereby agree to the exclusive jurisdiction and venue of such courts. These Terms and Conditions and the rights and obligations of the respective parties hereunder shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
26. JURY WAIVER. THE PARTIES HERETO EXPRESSLY RELEASE AND WAIVE ANY AND ALL RIGHTS TO A JURY TRIAL AND CONSENT TO HAVE ANY DISPUTE HEARD SOLELY BY THE COURT OF COMPETENT JURISDICTION SET FORTH IN SECTION 25.
27. Severability. The parties intend that these Terms and Conditions are severable. If any provision herein is or is deemed to be unlawful or unenforceable then the remaining provisions shall remain in full force and effect.
28. Survival. Any provision of these Terms and Conditions, which by its nature extends beyond the expiration, termination, or cancellation of these Terms and Conditions, shall remain in full force and effect.