STANDARD TERMS AND CONDITIONS OF SALE – PRODUCTS
These terms and conditions (“Terms and Conditions”) are issued on behalf of Swift Engineering Inc. (“Swift”) and will apply to all sales of Swift Products, as defined below, to you as end user or or as agent for an end user (in either capacity, a “Customer”).
- Offer, Acceptance and Modification. No agreement or other understandings purporting to cancel, add to or modify the Terms and Conditions, in whole or in part, shall be binding upon Swift unless expressly agreed to by Swift in writing and signed by Swift’s authorized representative. Cancellation by Customer of its purchase of Swift Products, after acceptance by Swift of Customer’s offer to buy such Swift Products, will result in the incurrence by Customer of charges based upon costs incurred and/or commitments made by Swift prior to such cancellation. “Swift Products” is defined herein to mean any goods, supplies, materials, articles, items, parts, components or assemblies and to include any applicable design, engineering or manufacturing services and to include Swift’s time and effort involved in providing the such services (“Services”) incidental to the manufacturing of Swift Products.
- Payment Terms. Any amounts due from product sales are payable in accord with the payment terms set forth on the Swift Engineering Inc. Order Form related to such product sale. Any amounts due Swift for the sale of Swift Products which are not cars are payable COD with the following acceptable payment methods: Cash, Cashier’s Check or Company Check (only if pre approved by Swift). Swift, upon request, will also accept cash deposits against which purchases may be made. Any other payment terms require the express written agreement of Swift.
- Delivery, Title, Risk of Loss. Delivery by Swift of any Swift Products will be FOB Swift Engineering Inc., San Clemente, California (“FOB Location”). Title to the Swift Products passes from Swift to Customer upon delivery of the Swift Products to the FOB Location. Customer bears the sole responsibility for shipment and risk of loss of the Swift Products after their delivery to the FOB Location, without regard to which party chooses the method of shipment or the carrier for shipment from the FOB Location. Unless otherwise specifically agreed, Customer hereby appoints Swift as its agent and authorizes Swift to select the method of shipment and the carrier from the FOB Location.
- Choice of Law; Binding Effect. These Standard Terms and Conditions of Sale shall be governed by the laws of the State of California and shall be binding upon and inure to the benefit of the parties hereto, their heirs, successors, assigns, executors and administrators.
- Warranty and Disclaimer.
(a) SWIFT’S EXCLUSIVE LIABILITY UNDER THIS WARRANTY SHALL EXTEND ONLY TO THE REPLACEMENT OR CORRECTION OF ANY DEFECTS IN MATERIALS AND WORKMANSHIP OF SWIFT PRODUCTS, WHICHEVER SWIFT CHOOSES, WITHIN NINETY (90) DAYS OF DELIVERY BY SWIFT. THE LIABILITY OF SWIFT ON ANY CLAIM OF ANY KIND ARISING OUT OF OR CONNECTED WITH SWIFT PRODUCTS SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE SWIFT PRODUCTS OR PART THEREOF WHICH GIVES RISE TO THE CLAIM. IN NO EVENT SHALL SWIFT BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH SWIFT PRODUCTS. ADJUSTMENTS UNDER THIS WARRANTY WILL BE MADE ONLY AFTER SHIPMENT, FREIGHT PREPAID, TO SWIFT’S FACTORY OF ORIGINAL SHIPMENT AND SUBSEQUENT DETERMINATION IN THE SOLE DISCRETION OF SWIFT THAT THIS WARRANTY APPLIES.
(b) THE WARRANTY SET FORTH HEREIN IS SWIFT’S EXCLUSIVE WARRANTY AND IS MADE IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO OTHER WARRANTIES IN ADDITION TO THE WARRANTY SET FORTH HEREIN, AND THERE IS NO WARRANTY WHICH APPLIES TO ANY SWIFT RACING CARS AND/OR THEIR COMPONENT PARTS OR OTHER SWIFT PRODUCTS INTENDED OR USED FOR ULTRA-HAZARDOUS ACTIVITIES ONCE SUCH SWIFT PRODUCTS HAVE BEEN PUT INTO USE.
(c) THIS WARRANTY SHALL NOT APPLY TO ANY SWIFT PRODUCTS WHICH SHALL HAVE BEEN REPAIRED OR ALTERED IN ANY MANNER WHATSOEVER WITHOUT THE EXPRESS WRITTEN CONSENT OF SWIFT, OR WHICH WERE OPERATED OR INSTALLED OTHER THAN IN STRICT COMPLIANCE WITH SWIFT’S INSTRUCTIONS AND THE PRODUCTS’ INTENDED USE OR WHICH WERE SUBJECTED TO MISUSE, UNINTENDED USE, FAILURE TO MAINTAIN, IMPROPER MAINTENANCE, OR ARE DAMAGED BY ACCIDENT OR NEGLIGENCE.
- Special Ultra-Hazardous Use Warning. If the Swift Products sold under these Terms and Conditions of Sale are racing cars, unmanned or manned aircraft of any type (or any other product that is by its nature inherently dangerous) and/or their component parts or are otherwise deemed by Swift to be intended to be used by Customer (or other end user for whom Customer is acting as agent) in connection with racing ,flying or some other ultra-hazardous activities, the warranty set forth above shall not apply once such Swift Products have been put into use. Additionally, the following shall also apply to Swift Products which are racing cars, unmanned or manned aircraft of any type and/or their component parts or are otherwise deemed by Swift to be intended to be used by Customer (or other end user for whom Customer is acting as agent) in connection with racing, flying or some other ultra-hazardous activities:
(a) SWIFT PRODUCTS ARE INTENDED FOR USE AS (OR AS PART OF) HIGH SPEED AND HIGH PERFORMANCE RACING VEHICLES, MANNED OR UNMANNED AIRCRAFT OR IN OTHER ULTRA-HAZARDOUS ACTIVITIES. THE RACING OF HIGH SPEED AND HIGH PERFORMANCE VEHICLES, THE FLYING OF MANNED OR UNMANNED AIRCRAFT AND OTHER ULTRA-HAZARDOUS ACTIVITIES INVOLVE A SUBSTANTIAL POSSIBILITY OF SERIOUS PHYSICAL INJURY OR DEATH. SWIFT PRODUCTS WILL NOT WITHSTAND ALL FORESEEABLE IMPACTS DURING THEIR NORMAL INTENDED USE AS (OR AS PART OF) HIGH SPEED AND HIGH PERFORMANCE RACING VEHICLES, MANNED OR UNMANNED AIRCRAFT IN OTHER ULTRA-HAZARDOUS ACTIVITIES OR FLYING WITHOUT THE SUBSTANTIAL POSSIBILITY OF SERIOUS PHYSICAL INJURY OR DEATH TO THE DRIVER, PILOT OR PASSENGER, OR DAMAGE TO SWIFT PRODUCTS WHICH MAY AFFECT SUCH SWIFT PRODUCT’S PERFORMANCE AND SAFE USE.
(b) SWIFT PRODUCTS SHOULD ONLY BE USED (1) BY PERSONS WITH THE REQUISITE TRAINING, SKILL AND EXPERIENCE NECESSARY FOR THE OPERATION OF RACING OF HIGH SPEED, MANNED OR UNMANNED AIRCRAFT AND/OR OTHER HIGH PERFORMANCE VEHICLES OR PRODUCTS OR RACING OR FLYING OR THE UNDERTAKING OF OTHER ULTRA-HAZARDOUS ACTIVITIES; (2) ON SPECIALLY DESIGNED RACING TRACKS, AIR FIELDS OR OTHER APPROPRIATE FACILITIES AND UNDER THE SUPERVISION OF A PROPER SANCTIONING RACING OR FLYING ORGANIZATIONS OR GOVERNMENT AGENCIES OR OTHERWISE UNDER PROPER AND REASONABLE OPERATING CONDITIONS; AND (3) WITH PROPER MAINTENANCE AND REPAIRS TO PARTS SUBJECT TO WEAR AND TEAR, FATIGUE, OR DISINTEGRATION AND DAMAGE DUE TO COLLISION, CRASH OR IMPROPER USE.
- Relationship of Parties; Authority. The relationship of Swift to Customer (whether as an end user or as an an agent for an end user) shall be that of an independent contractor and not that of an employee or agent. Customer represents and warrants that it has all requisite legal power and authority to purchase the Swift Products on behalf of itself and on behalf of an end user for whom it is duly acting as agent and that such purchase of Swift Products by Customer has been duly authorized by all necessary corporate (or other entity) action and constitutes the valid, binding and enforceable obligation of Customer.
- Risk of Loss. Each party is responsible for exercising reasonable care concerning any property owned by the other party while such property is in its possession and control, provided however, that absent its willful neglect, neither party shall bear the risk of loss or damage to the property of the other party, and such risk of loss or damage shall remain with the property owner. The property owner will have the right to enter the other party’s premises at reasonable times on reasonable prior notice to inspect the owner’s property.
- Applicable Taxes. Any sales, use, valued-added or other taxes (except for taxes assessed on the income or profits of Swift) assessed by any state, federal or foreign government or agency on or with respect to the sale of Swift Products to Customer shall be paid, in all instances, by Customer in addition to any amount payable to Swift for Swift Products.
- Intellectual Property.
(a) All drawings, know-how and confidential information supplied by one party (“Owner”) to the other party (“User”) and all rights therein shall remain the property of Owner. User is hereby granted a limited license to use Owner’s drawings, know-how and confidential information only for the purpose of fulfilling User’s obligations in connection with the manufacture and/or creation of Swift Products sold to Customer.
(b) Swift represents and warrants that any portion of the Swift Products that is supplied or designed by Swift does not infringe on any copyright, patent, industrial design right or other proprietary right of any third party. Customer represents and warrants that any portion of the Swift Products that is supplied or designed by Customer (including such services that are provided by an end user for whom Customer is acting as agent) does not infringe on any copyright, patent, industrial design right or other proprietary right of any third party. Each party respectively indemnifies and holds harmless the other party with respect to any claim resulting from such respective party’s breach of the foregoing representations and warranties.
(c) Unless otherwise permitted or required in any agreement between the parties, any work of authorship created by Swift in connection with the manufacture and /or creation of Swift Products, whether or not specifically ordered or commissioned by Customer, will not be considered a “work made for hire” and all copyrights for such works of authorship will belong to Swift.
(d) Except as specifically permitted or required in connection with the manufacture and/or creation of Swift Products sold to Customer, neither party will (A) sub-license or otherwise transfer or use any copyright, patent, industrial design right or other proprietary right of the other party, or (B) transfer any product that encompasses any copyright, patent, industrial design right or other proprietary right of the other party, without the express written prior consent of the other party in each instance.
(a) ”Confidential Information” means the terms and provisions of any agreement between the parties, as well as any other non-public information, drawings, sketches, specifications, documentation, trade secrets, proprietary information, computer software, technical information, know-how or data or plans that are the property of one of the parties.
(b) Except as specifically permitted or required pursuant to the manufacture and/or creation of Swift Products sold to Customer, (i) Swift agrees not to disclose Customer’s Confidential Information to any third party, without in each instance, Customer’s prior written consent, and (ii) Customer agrees not to disclose Swift’s Confidential Information to any third party, without in each instance, Swift’s prior written consent.
(c) Confidential Information does not include information which (i) was rightfully in the possession of the receiving party at the time of disclosure of such information to it by the disclosing party;(ii) becomes publicly known through no wrongful act on the receiving party’s part;(iii) is rightfully received by the receiving party from a third party; (iv) is independently developed by the receiving party without the use of the disclosing party’s confidential information; or (v) is disclosed by receiving party with disclosing party’s prior written approval.
Nothing in this Section shall be deemed to restrict either party from disclosing Confidential Information to (A) complete and file such party’s income tax returns, (B) enforce rights under any agreement between the parties, or (C) comply with process or requirements of law provided that the disclosing party shall have notified the other party promptly upon receipt of notice by the disclosing party of such process or requirements (including the Confidential Information required to be disclosed) and (to the extent reasonably possible without incurring penalty or liability) afforded the other party the opportunity to seek judicial or other protective relief from the disclosure sought.
- Advertising. Except as specifically provided in an agreement between the parties, each party agrees not to make reference to the other party or use the other party’s trade marks or logos in its advertising or publicity materials without, in each instance, the prior express, written consent and participation of such other party.
- Assignment. Neither party will assign or otherwise transfer any of its rights and/or obligations in connection with the sale of Swift Products or any agreement between the parties, without the prior written consent of the other party.
- Excusable Delays.
(a) Swift will not be liable for failure to perform that arises from any of the following (collectively, “Excusable Delays”): causes or events beyond its reasonable control and without its fault or negligence, including labor disputes, strikes or lockouts; short or late delivery of materials; unavailability or interruptions or inadequacy of supplies; acts of God or of Customer; landslides, floods, hurricanes, earthquakes; fires; delays of carriers by land, sea or air; non-delivery and/or late delivery of all Customer-furnished material and equipment as required in connection with the sale of the Swift Products to Customer; or delays due to changes in the Swift Products requested or authorized by Customer.
(b) Any stipulated date by which any Swift Products are to be ready for shipment shall be subject to extension by reason, and to the extent of, Excusable Delays. If the completion of a Swift Product is so delayed, the stipulated date by which such product is to be ready for shipment shall be extended by a period equal to the period of such delay, provided however, that Swift will use its reasonable best efforts to shorten the period of such delayed performance.
- Waiver. No waiver of any breach of any provision of any agreement between the parties will constitute a waiver of any other breach of the same or any other provision.
- Arbitration. If a dispute arises in connection with the sale of Swift Products to Customer, at the written request of either party, the dispute will be submitted to mediation and binding arbitration in accordance with this section. An aggrieved party will deliver a notice to all other parties which will set forth in detail all issues in dispute. Within twenty (20) days after the delivery of such a notice, the parties will select as a sole arbitrator/mediator an individual who is an experienced commercial arbitrator/mediator. If the parties are unable to agree upon the selection of the arbitrator/mediator, the matter will be submitted to the American Arbitration Association (“AAA”) office located closest to Newport Beach, California, for such selection. The parties agree to participate in good faith in the mediation and negotiation related thereto with such appointed arbitrator/mediator for a period of thirty (30) days after the selection of the arbitrator/mediator. If the parties are unsuccessful at resolving the dispute through such mediation, then the parties agree to submit the matter to binding arbitration by the same sole appointed arbitrator/mediator in accordance with the rules of the AAA. The arbitrator/mediator so selected will schedule a hearing in Orange County, California on the disputed issues within sixty (60) days after a determination by the arbitrator/mediator that the mediation failed to resolve the dispute. The arbitrator will render a decision after the hearing, in writing, as expeditiously as possible, and such decision will be delivered to the parties. A default judgment may be entered against any party who fails to appear at the arbitration hearing. In addition to, and not in substitution for any and all other relief in law or equity that may be granted by the arbitrator, the arbitrator may grant injunctive or other equitable relief and specific performance to compel compliance. The decision of the arbitrator will be final and unappealable and will be filed as a judgment of record in any jurisdiction designated by the successful party. The arbitrator may assess the costs of the arbitration, including reasonable attorneys’ fees, against the non-prevailing party. The party which is awarded the greater relief in the arbitration will be deemed the “prevailing party.” The parties agree that this paragraph has been included to rapidly and inexpensively resolve any disputes between them and that this paragraph will be grounds for dismissal of any court action commenced by any party with respect to a dispute arising out of the issue submitted to arbitration.