PACIFIC CONTROL INC STANDARD TERMS OF SALE
All sales by Pacific Control Inc, LLC ("Seller") are governed by the subsequent terms and conditions. In this Standard Terms of Sale document, "goods" pertain to any items or services sold by Seller to the designated (“Buyer”) outlined in Seller's proposal or acknowledgment. "Services" refer to any services rendered by Seller to the Buyer.
Section 1: Complete Agreement, Amendment, and Non-Assignment
The terms outlined in Seller's quotation or acknowledgment, in conjunction with these Standard Terms of Sale, constitute the comprehensive agreement between the Buyer and the Seller. Any modification to this agreement must be effectuated through a written document bearing the signatures of both parties. This agreement is non-assignable and non-transferable by either party, except in cases of assignment to their respective successors or transferees of all or substantially all of the assets to which this contract pertains. No oral agreements, understandings, or representations outside of this written agreement shall possess any legal force or effect unless subsequently incorporated into a written amendment executed by both parties.
Section 2: Acceptance and Agreement
By submitting payment or accepting delivery of goods, the Buyer acknowledges and agrees to be bound by these Standard Terms of Sale ("Terms"). These Terms constitute a legally binding contract. Any additional or conflicting terms proposed by the Buyer, whether included in purchase orders or other documents, are expressly rejected by the Seller and shall not be binding unless explicitly accepted in writing by an authorized Seller representative. Any objections to these Terms must be communicated separately from the purchase order and in writing to the Seller. Failure to do so shall be deemed as full acceptance of these Terms. All orders are subject to approval by the Seller's credit department. The Seller reserves the right to accept or reject any order based on credit considerations.
Section 3: Pricing and Payment Terms
The prices quoted by the Seller shall remain valid for a period of 30 days from the date of the quotation, unless otherwise specified in the proposal or acknowledged in writing by the Seller. The Seller reserves the right to correct typographical errors in quotations. Payment terms shall be Net30 from the completion of services, without any discounts, unless otherwise stated in the proposal or acknowledged in writing by the Seller. In the event the Seller deems the Buyer to be insolvent or in default of any payments owed to the Seller, the Seller may, at its discretion, require payment in advance of delivery or cash on delivery. Late payments shall incur a monthly late charge of 2.5% on the outstanding balance.
Section 4: Taxes and Duties
The prices quoted by the Seller for goods or services do not include any taxes, including but not limited to privilege, occupation, personal property, value-added, sales, excise, use taxes, or any tariffs, customs duties, or similar charges ("Taxes").The Buyer acknowledges and agrees that they are solely responsible for all Taxes and duties that may be applicable to the purchase or importation of goods or services, regardless of whether the Seller has issued an invoice for such Taxes.
Section 5: Permits and Compliance
The Seller shall not be responsible for obtaining any permits, inspections, or licenses required for the operation of goods or the performance of services. The Seller does not guarantee or advertise that the goods or services conform to any law, regulation, ordinance, code, or standard.
Section 6: Delivery and Risk of Loss
The Seller fulfills its obligation to deliver the goods when they make them available for pickup at their premises or another named place, such as a factory or warehouse. The Buyer is solely responsible for all costs and risks associated with transporting the goods from the Seller's location to the final destination. The risk of loss transfers to the Buyer when the equipment or services are delivered. Delivery dates, shipping dates, and performance dates provided by the Seller are estimates and are calculated from the Buyer's order date and the complete information reasonably requested by the Seller to perform the service. Time is not of the essence in this regard. Seller shall not incur any liability, and no order shall be canceled due to delays in meeting agreed-upon schedules or dates. The Seller reserves the right to recalculate the delivery estimate upon receipt of the Buyer's order. The Seller has the sole discretion to determine the shipping methods and routing of goods unless otherwise stated in the proposal or agreed to in writing by both parties. The Buyer is an integral part of the project process and is responsible for providing necessary information and approvals. Any delay in providing these requirements may result in an appropriate adjustment of the delivery schedule.
Section 7: Adjustments or Changes to Scope of Work
The Seller reserves the right to change the design or engineering of the services provided, except that the Seller shall not modify operational or dimensional specifications that the Buyer submits unless mutually agreed upon by both the Seller and the Buyer. The Buyer has the option to request changes to the scope of work. If such changes are accepted by the Seller, the price, schedule, and any other relevant parts of the agreement shall be adjusted through a written agreement prior to the implementation of the change. Buyer is responsible for reasonable charges for agreed to modifications performed by Seller. Typographical errors and clerical errors in quotations are subject to correction by the Seller.
Section 8: Warranty, Defects, and Remedies
8.1 Warranty for Goods: The Seller provides a one-year warranty for goods, excluding known perishable items, provided that the equipment is properly installed. If such equipment fails within one year from the Seller delivering the goods to the Buyer, and the Buyer notifies the Seller or returns them F.O.B. Seller's facility within the warranty period, the Seller shall have the option to repair or replace the defective item at the Seller's expense, or refund the purchase price of the defective goods. The decision is at the Seller's discretion. If the Seller is unable to repair or replace, the Seller shall be liable to the Buyer for the reasonable costs of repair from a third party or pay the Buyer the purchase price of the defective goods, whichever is lesser. The Buyer must provide the Seller with a 14-day written notice before ordering replacement or repair from a third party. A defective item is one found to be defective in materials or workmanship and that hinders the value of the goods sold to the Buyer. Goods are not considered defective if they conform within industry-accepted tolerances or the Buyer's specifications or if the goods are used in a manner not specified in the Seller's proposal or functional design document. This section represents the entire right of the Buyer for remedies regarding defects in any goods. The Seller does not warrant work performed on the goods by others or if they have been used in an improper manner.
8.2 Warranty for Services: The Seller provides a one-year warranty for services. If the services fail to adhere to industry standards in the Seller's industry and materially impair the value of the services to the Buyer, the Seller shall have the option to reperform the service at the Seller's expense or refund the amount paid to the Seller for the defective part of the service. Services are not considered defective if they conform to the specifications approved by the Buyer or conform to industry-accepted tolerances. The Seller does not warranty services that were not completed by the Seller. This section represents the complete remedy for any warranties for services.
8.3 Conditions and Limitations: The warranty provided by the Seller is contingent upon the Buyer's receipt, handling, storage, installation, testing, operation, and maintenance of the goods or services in a normal and proper manner, in alignment with the Seller's recommendations where applicable and otherwise in alignment with generally accepted industry standards and practices. The warranty applies only to goods and services provided by the Seller and does not extend to goods purchased and installed into the goods or systems subject to the agreement between the Seller and the Buyer. OEM manufacturer warranties shall be transferred to the Buyer where applicable. The warranty does not apply to alleged defects resulting from damage, physical abuse, vandalism, misuse, alterations, modifications, additions, or repairs made without the Seller's consent, excessive electrical loads, exposure to water, corrosive substances, excessive heat, or use other than intended by the Seller. Also excluded from the warranty are goods or services delivered or performed to the Buyer's specifications. The Buyer shall, at its own expense, defend and hold harmless the Seller from any claims or suits related to such goods or services. Notice of defects must be given to the Seller within 45 days of discovery. The Buyer is solely responsible for determining the proper application and use of the goods. The Seller shall not have any tort liability to the Buyer with respect to any of the goods or services and shall not be liable for consequential, incidental, special, exemplary, indirect, or punitive damages arising from any product defect, delay, non-delivery, recall, or other breach. The Seller shall not be liable in tort for any negligent design or manufacture of the products or for the omission of any warning, or for the negligent performance of the services. No modification or expansion of this warranty is allowed unless made in writing and signed by an authorized officer of the Seller. The Buyer shall not have the right of rejection or revocation of acceptance of the goods or services. EXCEPT AS STATED IN 8.3, SELLER DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTY AS TO THE GOODS OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Section 9: Cancellation
A purchase order (PO) from the Buyer cannot be canceled for any reason without the prior written consent of the Seller. If cancellation is approved and unless otherwise agreed to in writing, the Buyer shall be responsible for (1) paying all costs and expenses incurred by the Seller prior to receiving notice of the cancellation request, (2) Buyer shall also pay the greater of the following two options: cancellation fees from OEM for any goods canceled from the order or a cancellation fee of 10% of the invoice price to the Seller, (3) Buyer shall pay for any shipping costs involved or out-of-pocket expenses incurred by the Seller in relation to the cancellation.
Section 10: Suspension
If performance under this agreement is held by the Seller and a delay or reschedule is at the request of the Buyer for more than 30 days, the agreement shall then be subject to the provisions outlined in Section 7: Adjustments or Changes to Scope of Work. If the project is held or delayed for more than 90 days at the request of the Buyer, the Seller is entitled to invoke the provisions in Section 9: Cancellation.
Section 11: Indemnification and Claim Notification
The Buyer shall indemnify and hold the Seller harmless from all damages, losses, claims, and expenses, including but not limited to attorney fees, consequential and incidental damages, that the Seller incurs as a result of the Buyer's breach of any obligations under these Standard Terms of Sale or claims of unfair competition, patent, trademark, or copyright infringement, or any other claim resulting from the Seller's manufacture of goods or performance of services to the Buyer's specifications. The Buyer agrees to promptly notify the Seller of any claims, lawsuits, or proceedings related to the goods or services and to cooperate fully in the defense of such claims. This cooperation includes providing all necessary information, assistance, and defending the Seller when necessary.
Section 12: Force Majeure
In the event that the Seller is unable to deliver the goods or services due to circumstances beyond the Seller's control, including but not limited to casualty, labor disputes, unavailability of supplies or transportation, the Buyer's failure to approve production samples, fire, flood, governmental acts or regulations, riot, terrorist acts, equipment or power failure, unscheduled maintenance, accidents, or acts of God, the estimated delivery or service timeline shall be extended accordingly. The Seller shall not be liable for any damages or losses incurred by the Buyer as a result of such delays. The Buyer acknowledges that these events are beyond the Seller's control and releases the Seller from any claims or liabilities arising from the delay.
Section 13: Assurance and Insecurity
If the Seller has reasonable grounds for insecurity regarding the Buyer's performance under the agreement, the Buyer must provide adequate assurance of acceptable performance within 14 days after the Seller demands such assurance. This period is deemed to be an adequate amount of time. If the Buyer fails to produce adequate assurance within the given time frame, it shall be considered a repudiation by the Buyer of the contract and all “outstanding contracts”. Outstanding contracts include items for which the Buyer has submitted a purchase order to Seller for goods or services that have not been considered delivered yet. "Grounds for insecurity" include, without limitation:
a. Buyer's failure to make a payment to the Seller under the said contract or outstanding contracts.
b. Buyer's insolvency.
c. Buyer's deterioration in financial position since the commencement of the contract.
d. Buyer's failure to provide financial statements or other financial information promptly upon the Seller's request.
Section 14: Limitation of Liability, Safety Responsibility, and Downtime
The Seller shall not be liable to the Buyer, under any circumstances, for incidental, indirect, special, or consequential damages arising from any action or inaction related to the Seller's performance under this Agreement. The Seller's liability for direct damages shall not exceed the lesser of the total aggregate contract value or the applicable insurance coverage. Seller shall not be held liable for injuries or fatalities resulting from improper equipment use. The customer bears sole responsibility for ensuring the safety of their staff and equipment when utilizing systems engineered by the Seller. Any loss of revenue due to equipment downtime is the sole responsibility of the Buyer. The Seller does not bear liability for such losses or impacts on the Buyer's bottom line and process effectiveness.
Section 15: Resale of Goods
On any resale of the goods, Buyer must contractually restrict its Buyer’s rights and remedies against both Buyer and Seller to the same extent as the limitations imposed on Buyer's rights and remedies in these Standard Terms of Sale.
Section 16: Confidentiality and Intellectual Property
All inventions by the Seller during the course of design, development, or manufacture of goods or services provided to the Buyer are considered intellectual property and remain the sole property of the Seller. Inventions encompass, but are not limited to, devices, technologies, ideas, improvements, processes, systems, software, and other items and works developed by the Seller. The Buyer agrees to assign all rights, title, and interest in the intellectual property, whether currently held or acquired in the future, to the Seller. The Buyer is prohibited from using the intellectual property for any purpose other than the operation of the goods or services provided by the Seller. This restriction applies to the Seller's business, operations, and activities. The Buyer is granted a non-transferable license to use the Seller's intellectual property solely for the purpose of operating and utilizing the goods or services delivered by the Seller. This license does not include the right to sublicense, disclose, disassemble, decompile, reverse engineer, or modify the intellectual property. The Seller maintains a proprietary interest in the proposal, agreement, and intellectual property developed for the goods or services provided in the agreement. The Buyer is not permitted to disclose these materials to third parties in any capacity without the written permission of the Seller.
Section 17: Statute of Limitations
If the Buyer wishes to initiate a claim against the Seller, whether under this agreement or arising from the goods manufactured or services performed, it must be done within 1 year after the cause of action occurs.
Section 18: Severability
If any provision of this agreement is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
Section 19: Applicable Law and Jurisdiction
This agreement shall be considered to have been made in the state of Oregon and shall be governed by Oregon Law. In the event of a dispute between the parties, such disputes shall be exclusively resolved in any federal or state court located in Albany, Oregon, that possesses jurisdiction over the subject matter. The Buyer hereby irrevocably consents to the personal jurisdiction of such court and waives any objection that the chosen court is an inconvenient forum.