Unless and to the extent that a separately negotiated contract executed between the parties is cited on the procuring party's purchase order, the following terms and conditions of sale apply to any purchase order covering any products, systems or parts offered for sale ("Product(s)") by ODS OmniSynk Distribution Services, Inc., and its affiliates and subsidiaries (collectively, "Supplier" or "ODS") to the procuring party ("Buyer").
2.1 Buyer is not obligated to purchase any Products from Supplier, and Supplier is not obligated to sell any Products to Buyer. If Buyer places an order and Supplier accepts the order, these Conditions of Sale will apply to such purchase and sale transactions.
2.2 Notwithstanding any Buyer terms referenced in Buyer's purchase documentation, all purchases of Products will be governed solely by these Conditions of Sale and any other mutually agreed written provisions which take precedence. Verbal agreements are expressly excluded.
2.3 Supplier's acceptance of Buyer's purchase order is expressly conditional on Buyer's assent to these Conditions of Sale and any terms in Supplier's purchase order acknowledgement. Automated acknowledgements, if any, do not by themselves constitute acceptance. Supplier does not waive any term by failing to object to provisions appearing on Buyer's purchase order, except as expressly agreed in writing.
2.4 Buyer's silence, acceptance, or use of Products constitutes assent to these Conditions of Sale.
2.5 Any additional or different terms appearing in Buyer-supplied documents are material and are hereby objected to and rejected by Supplier. Such additional or different terms are effective only if agreed in writing and signed by an authorized representative of Supplier.
2.6 Buyer's purchase orders must include, and may only be used to specify, the following information: (i) Supplier's part number or applicable specifications referenced in Supplier's quotation and a general description of the Product; (ii) requested delivery dates; (iii) price; (iv) quantity; (v) shipping location; (vi) invoice remit-to address; (vii) Buyer's purchase order number and Supplier's quotation number, if applicable; (viii) Buyer's carrier and mode of transportation plus any special routing, packing, labeling, handling or insurance requested by Buyer; and (ix) the end-use and end-user, if known, and whether the Product will be used for military or quasi-military purposes.
3.1 Unless Supplier's quote states otherwise, prices are quoted in United States dollars and are valid for Products delivered within ninety (90) calendar days of quotation. Prices do not include non-standard costs such as testing, Buyer-specific certifications, inspections or other special services unless specified in Supplier's quotation. Supplier reserves the right to change or withdraw quoted prices until Supplier has accepted Buyer's purchase order.
3.2 Buyer's purchase order is subject to Supplier's minimum order requirements. Supplier may limit order quantities for certain Products.
3.3 "Taxes" means all taxes, duties, fees, assessments, levies and similar charges imposed by any domestic or foreign taxing authority. Unless otherwise stated, prices are exclusive of Taxes. Buyer is responsible for and will pay all Taxes associated with the Products, except for Supplier's corporate income taxes where applicable. If withholding tax applies, Buyer will gross up payments so Supplier receives the full amount invoiced.
3.4 For Products with published catalogue prices from manufacturers, Supplier will invoice and Buyer will pay the catalogue price effective on the date Supplier ships the Product, regardless of the date of order. For other Products, prices are based on material costs as of the date Supplier accepts Buyer's purchase order. If, after acceptance but prior to shipment, Supplier's cost from the manufacturer or open market increases by more than ten percent (10%) (including but not limited to import duties and transportation costs), Supplier may re-quote or adjust pricing accordingly. If parties cannot agree on revised pricing, Supplier may cancel the affected portion of Buyer's purchase order.
4.1 Subject to Supplier's credit approval, Buyer will pay Supplier's invoices within thirty (30) calendar days from invoice date in U.S. dollars, accompanied by remittance details referencing Supplier's invoice numbers. Supplier may correct any inaccurate invoices. Payments must follow the "Remit To" instructions on Supplier's invoices.
4.2 Supplier may establish or reevaluate credit terms for Buyer at any time. Supplier may require advance payment, letters of credit, guarantees, or other security if Buyer does not qualify for credit.
4.3 If Buyer is delinquent in payment, Supplier may, at its option, suspend performance or exercise one or more remedies including: withhold deliveries, refuse credits, set off amounts owed, repossess Products, require cash-in-advance, charge interest on overdue amounts (1.5% per month or the maximum lawful rate, if lower), charge storage fees, recover collection costs (including attorneys' fees), accelerate payments, or terminate orders for breach.
4.4 Buyer must notify Supplier of any invoice dispute within ten (10) working days of invoice date. Failure to notify within that period constitutes acceptance of the invoice. Parties will use reasonable efforts to resolve disputes promptly. Notwithstanding disputes, Buyer will timely pay undisputed portions of invoices.
5.1 Supplier will prepare and package Products in accordance with its standard commercial practices. Unless otherwise agreed, delivery will be FCA (Incoterms 2020) Supplier's facilities.
5.2 Supplier will ship by the carrier and mode designated by Buyer per shipping instructions. If Buyer provides no instructions, Supplier will select the method of shipment. Supplier will use standard lead times unless otherwise agreed in writing.
5.3 Shipping dates are estimates based on conditions at order time and information provided by Buyer. Supplier will use reasonable efforts to meet estimated dates but is not liable for delays or damages arising from missed dates.
5.4 Supplier may make partial shipments and deliver in advance of scheduled dates.
5.5 Buyer's acceptance of late deliveries constitutes a waiver of late delivery claims.
5.6 Shipping expenses and insurance from Supplier's FCA facility to Buyer are for Buyer's account. If Supplier prepays transportation, Buyer will reimburse Supplier upon invoice.
5.7 Title and risk of loss pass to Buyer upon delivery under the applicable Incoterm selected in Section 5.1.
5.8 Supplier may quote additional charges for rush shipments or special routing, packing, labeling, handling or insurance requested by Buyer.
6.1 Buyer will inspect Products within a reasonable period not to exceed ten (10) calendar days after receipt. Products are deemed accepted unless Supplier receives written notice of rejection explaining the basis for rejection within that period.
6.2 After acceptance, Buyer's sole remedy for non-conforming or defective Products will be Supplier's remedies set forth in Section 10.
6.3 Prior to acceptance, Supplier may, at its option, replace rejected Products or credit Buyer for the purchase price paid for rejected Products to the extent already paid.
6.4 The party initiating return shipment bears the risk of loss in transit, except Supplier will reimburse Buyer for reasonable surface shipping costs to return properly rejected Products to Supplier's designated facility.
6.5 If Supplier reasonably determines Buyer's rejection was improper, Buyer will be responsible for expenses relating to the improper rejection.
6.6 Deliveries within five percent (+/-5%) of ordered quantities constitute fulfillment. Buyer may require Supplier to fulfill shortages and may return or purchase excess deliveries at Supplier's option.
6.7 Buyer will comply with Supplier's RMA policy when returning Products and will ship returned Products suitably packed to prevent transit damage.
7.1 Either party may cancel a purchase order for default only if the other party fails to cure a stated breach within ninety (90) calendar days after written notice describing the breach and cure requested.
7.2 Buyer-initiated changes to purchase orders (specification, price, delivery, interchangeability) are effective only by a signed change order that addresses the reason, description, effect on price/delivery/interchangeability and effective date. Supplier will advise on feasibility and any impact on price and schedule.
7.3 If Buyer terminates or cancels all or part of a purchase order without Supplier's consent, Buyer will pay termination charges based on Supplier's costs plus reasonable profit, as determined by accepted accounting principles, unless otherwise agreed in writing.
Supplier retains ownership of and title to specifications, drawings, data, equipment, tooling, software, processes and related items except where title is expressly transferred in writing.
These Conditions of Sale do not supersede any separate confidentiality agreement. Absent such agreement, Buyer may use Supplier's Proprietary Information only to the extent necessary to use the Products or to perform obligations under these Conditions of Sale. Proprietary Information remains Supplier's property and may only be disclosed to Buyer's employees on a need-to-know basis and subject to protections against inadvertent disclosure.
10.1 Buyer acknowledges Supplier is a distributor and purchases Products from third-party manufacturers. Buyer relies on manufacturer specifications and not on Supplier for sufficiency of Products for Buyer's particular needs.
10.2 Buyer is responsible for maintaining airworthiness (including compliance with airworthiness directives) for any aircraft use of Products. Supplier has no duty or responsibility for airworthiness; any assistance Supplier provides regarding airworthiness directives is an accommodation only and does not create liability.
10.3 Supplier warrants it has title or the right to provide Products sold. Where transferable, Supplier will convey manufacturer warranties to Buyer; such conveyed manufacturer warranties are Supplier's sole liability with respect to Products.
10.4 TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED (INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), ARE DISCLAIMED. BUYER WAIVES ALL OTHER CLAIMS, REMEDIES OR LIABILITIES AGAINST SUPPLIER, WHETHER IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
10.5 IN NO EVENT WILL SUPPLIER'S LIABILITY EXCEED THE PRICE PAID FOR THE SPECIFIC PRODUCT GIVING RISE TO THE CLAIM. THIS LIMITATION CONSTITUTES BUYER'S SOLE AND EXCLUSIVE REMEDY.
10.6 SUPPLIER WILL NOT BE LIABLE FOR LOSS OF USE, REVENUE, PROFIT, OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES.
10.7 For purposes of this Section 10, Supplier includes ODS, its divisions, subsidiaries, affiliates, assignees and their directors, officers, employees and agents.
Supplier does not indemnify Buyer for third-party intellectual property claims. Supplier may, upon Buyer's request, assign or transfer to Buyer any assignable indemnities provided to Supplier by its manufacturers, to the extent such indemnities are assignable.
Buyer acquires no rights in Supplier's Intellectual Property or Proprietary Information except as expressly granted. Unauthorized manufacture, repair, sale, regulatory filings or use of Supplier's Intellectual Property or Proprietary Information constitutes infringement or unauthorized use and entitles Supplier to injunctive and other remedies.
Buyer will defend, indemnify and hold Supplier harmless from and against claims, liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees) arising out of Buyer's use, installation, operation, maintenance, repair or modification of Products, Buyer's contractual relationships with third parties, or Buyer's breach of these Conditions of Sale, except to the extent such claims arise from Supplier's gross negligence or willful misconduct.
Supplier will not be liable for delays due to causes beyond its reasonable control ("Excusable Delays"), including but not limited to governmental actions, acts of God, epidemics, labor disputes, riots, terrorism, war, shortages of materials or components, or other events outside Supplier's control. Supplier's performance will be extended for the period of the delay or Supplier may cancel the affected purchase order.
Buyer may not assign or delegate rights or obligations under any purchase order or these Conditions of Sale without Supplier's prior written consent. Any attempted assignment without consent is void.
Non-routine notices between the parties will be in writing and sent by prepaid overnight courier to the addresses set forth on the purchase order or such other addresses as the parties may designate in writing. Notices are effective upon receipt.
Failure or delay by Supplier to enforce any provision will not constitute a waiver of that provision or right to enforce it later.
18.1 Buyer will comply with all applicable laws, regulations and orders relevant to its business and obligations hereunder and will obtain and pay for permits, approvals and licenses required to perform its obligations.
18.2 Buyer will comply with applicable import and export control laws and regulations (including U.S. EAR, ITAR, OFAC and applicable EU or country-specific regimes) and will retain documentation evidencing such compliance. Buyer will obtain any necessary import or re-export approvals, licenses or permits required for Products, technical data or services and will retain supporting documentation.
18.3 Supplier will deliver Products cleared for export as stated on the order, but Supplier is not liable for inability to perform due to governmental actions affecting export or re-export licenses. Buyer's payment obligations remain despite such events.
18.4 If Buyer designates a freight forwarder, Buyer assumes responsibility for export compliance by the forwarder and any failures thereof.
18.5 Routed export transactions (RET) will be transacted under EXW (Incoterms 2020) Supplier's U.S. facilities where applicable, and Buyer will act as the Foreign Principal Party in Interest and provide required authorizations and documentation to Supplier or Buyer's U.S. agent to enable AES filings and related export compliance.
18.6 Where Buyer holds design authority or export classification responsibility for a Product, Buyer will provide accurate export classification data and complete requested Supplier export control questionnaires and end user statements.
18.7 Buyer will not export, re-export, or transfer Products to sanctioned destinations or parties where prohibited by applicable sanctions laws. Noncompliance with such restrictions may constitute a material breach allowing Supplier to terminate orders.
18.8 For Products that are Chemical Products or otherwise subject to chemical regulations, Buyer will be responsible for compliance with applicable chemical legislation and regulations in the destination jurisdiction and will indemnify Supplier for costs arising from Buyer's noncompliance where applicable.
19.1 These Conditions of Sale and related transactions will be governed by the laws of the State of Florida, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
19.2 Venue and jurisdiction for legal proceedings will lie exclusively in the courts of the State of Florida, and Buyer irrevocably submits to such jurisdiction.
19.3 Buyer irrevocably waives any sovereign immunity defenses to the extent permitted by law.
Supplier will only incorporate FAR/DFARS provisions or other government flow-downs if Buyer requests their inclusion in writing and Supplier expressly accepts those provisions in writing.
Buyer represents that Products purchased will not be used in a manner that affects Supplier's rights to data, technology or intellectual property in performance of any government contract unless specifically agreed in writing.
Buyer will not set off amounts owed to Supplier against claims Buyer may assert against Supplier or its affiliates.
Provisions that by their nature should survive completion of Buyer's purchase order will remain in force after expiration or termination.
If any provision is invalid or unenforceable, it will be severed and replaced by a valid provision that most closely effects the parties' intent, leaving the remainder in full force and effect.
These Conditions of Sale are for the benefit of the contracting parties and not for third parties, except as expressly provided.
The parties are independent contractors; nothing creates a partnership, joint venture, agency or employment relationship.
Headings are for convenience only and do not affect interpretation.
If you have questions about these Conditions of Sale, please contact us at: