OCEAN INNOVATIONS STANDARD TERMS & CONDITIONS OF SALE
GENERAL: Ocean Innovations (“OI”) and the purchaser of products or services of OI (“Purchaser”) agree that the within terms and conditions shall constitute a part of any contract for the sale of products or services by OI to Purchaser and shall take precedence over other terms and conditions. No contrary, additional or different provisions or conditions shall be binding on OI unless accepted in writing by OI. Conditions not specifically stated herein shall be governed by established trade customs. These terms and conditions shall apply to and govern Purchaser’s order, and in the event of any inconsistency between these terms and conditions and Purchaser’s order, these terms and conditions shall prevail. These terms and conditions are subject to change without prior written notice at any time, in the sole discretion of OI.
PERIOD: Unless otherwise stipulated, proposals and quotations of OI become void unless accepted by Purchaser, or extended by OI in writing, within thirty (30) days from the date of submission to Purchaser by OI.
PRICING: All pricing is F.O.B. factory unless otherwise agreed to in writing by OI. Prices are based on costs and conditions existing on the date of quotation and are subject to change by OI before final acceptance. All quotations and agreements are contingent upon and are subject to change because of strikes, accidents, fires, availability of materials and all other causes beyond the control of OI. OI reserves the right to correct all typographical errors which may occur in its prices or specifications. Unless otherwise stated, all prices are in U.S. dollars.
TAXES: All prices are exclusive of federal, state, and local use, sales, property, excise, duty, or similar taxes however designated. Unless Purchaser provides OI with a valid and correct tax exemption certificate applicable to the product ship-to location prior to OI’s acceptance of the order, Purchaser is responsible for any of the foregoing taxes, or amounts in lieu thereof paid or payable by OI. In case of new taxes or increased rates or the repeal of taxes or the reduction of rates, the contract price shall be adjusted accordingly.
SHIPPING: Separate charges for shipping and handling will be shown on Purchaser’s invoice. All risk of loss shall pass to Purchaser when the goods are delivered to the carrier.
TITLE AND SECURITY: Ocean Innovations reserves for itself, and Customer grants to Ocean Innovations a security interest in the products and all proceeds thereof until payment in full for such product(s) is received by Ocean Innovations; (ii) Customer agrees to execute all financing statements or other documents necessary to further reflect the grant or perfection of the security interest; and (iii) if Customer refuses or fails to execute any such documents, Ocean Innovations is hereby appointed as Customer’s attorney-in-fact to execute any such documents on Customer’s behalf.
DELIVERY: OI will make a reasonable effort to meet the proposed delivery schedule, but shall not be liable for loss or damage resulting from delay and non-delivery or default in shipment, in whole or in part, delivery or other failure of performance due to events beyond the control of OI and without the fault or negligence of OI, including without limitation, contingencies of transportation, procurement of materials or parts, labor difficulties, governmental, action or acts of God.
INSPECTION: Purchaser must examine the Product upon receipt. If any item is damaged or missing, Purchaser must notify OI within ten (10) days from the date of delivery. Purchaser’s failure to present a written claim respecting any shipment, within ten (10) days after receipt thereof, shall constitute a waiver of all claims with respect thereto.
PAYMENT: For orders invoiced and shipped in the United States, the terms are thirty (30) days net from the date of invoice, subject to approval of credit by OI. For orders invoiced or shipped outside of the United States, prepayment is required. If, in the judgment of OI, the financial condition of Purchaser at any time does not justify shipment or the continuation of production on the aforesaid terms of payment, OI may require payment in advance, alternative payment terms in form and substance satisfactory to OI or terminate the purchase order or any agreement related thereto without liability and without waiving any other remedies. Purchaser shall pay interest on all past due sums at the rate of 1.0% per month. Credit cards (Visa/MasterCard/American Express/Discover) are accepted but may be subject to a 3% processing fee. Prepayment by cash or electronic funds transfer (EFT) are also accepted.
COLLECTIONS: Should OI be required to seek collections on purchaser’s account due to non-payment, purchaser will reimburse OI for any and all collection-related expenses; including all attorney, paralegal, and administrative staff charges, court costs, filing and service fees, investigative fees/charges, and any other legal or non-legal costs, charges, or expenses incurred, related to collection activities.
RESTOCKS/RETURNS/CANCELLATIONS: Unused OI products may only be returned with prior written authorization by OI and must be resalable as new. A 20% restock fee will be charged ($50.00 minimum). Cancelled orders are subject to a 35% cancellation fee.
SUBCONN SPECIFIC WARRANTY: 12 months from delivery ex works against faulty design and/or manufacture. The warranty includes labor and parts for all work carried out in the manufacturer’s work shop. All freight costs to be covered by the buyer. Warranty work carried out outside the manufacturer workshop includes labor and parts.Travel time, travel costs and accommodation to be covered by the buyer. SUBCONN CONNECTORS must always be greased with Molykote M44 per Subconn Handling Instructions. Refer to www.macartney.com/support for more information.Standard items may be returned unused within 90 days. A 20% restock fee may apply. Custom items cannot be cancelled once confirmed confirmed and are not returnable. OTHER TERMS/CONDITIONS:According to
NL01E (available on request).
U.S. GOVERNMENT CONTRACTS: If the goods or services being purchased are to be used in the performance of a U.S. Government contract or subcontract and a U.S. Government contract number appears on Purchaser’s purchase order, those clauses of the applicable U.S. Government procurement regulations which are mandatory under federal statute to be included in U.S. Government subcontracts shall be incorporated herein by reference.
LIMITATION OF LIABILITY: OI makes no other warranty regarding its products or the products of others either express or implied, and, any implied warranty of merchantability or fitness for a particular purpose which exceeds the forgoing warranties is hereby disclaimed by OI and excluded from any agreement made by acceptance of any order. OI does not accept liability beyond the remedies set forth herein including any liability for products not being available for use or for lost or corrupted data, loss of business, loss of profits, loss of use of the product or any associated equipment, cost of capital, cost of substitute or replacement product, facilities or services, down-time, charges for purchaser’s time and effort, the claims of third parties, injury to property, or any other direct, indirect, special, reliance, incidental or consequential damages, regardless of the nature of the claim and whether or not foreseeable and whether or not based on breach of warranty, contract or tort (including negligence) or strict liability, even if OI has been advised of the possibility of such damages, or for any claim by any third party except as expressly provided herein. This limitation of liability applies both to products and services and support provided to purchaser under this agreement. No oral or written information or advice given by OI, its agents or employees shall create a warranty. Any and all liability of OI is expressly limited to the price purchaser has paid for the products. Purchaser’s sole remedy against OI in any dispute under this agreement shall be to seek recovery of the amounts purchaser paid, upon the payment of which OI, its agents and employees, and affiliates, will be released from and discharged of all further obligations and liability to purchaser.
APPLICABLE LAW: Purchaser agrees to comply with all applicable laws and regulations of the various states and of the United States or any foreign country, as applicable.
HEADINGS: The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived there from.
ASSIGNMENTS: The rights and duties of Purchaser hereunder shall not be assignable by Purchaser without the prior written consent of OI, and any purported assignment or assumption without such consent shall be void.
SEVERABILITY: The terms and conditions contained herein are separate and severable and the invalidity or unenforceability of one or more of such terms and conditions shall not affect the validity or enforceability of any other term or condition.
GOVERNING LAW: The U.N. Convention on Contracts for the International Sale of Goods, 1980 will not apply to this transaction. This Agreement is to be governed by and construed in according with the laws of the State of California.
WAIVER: The failure of OI 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 OI thereafter to enforce each and every such provision.
DISPUTE RESOLUTION: The parties agree to attempt to resolve any and all disputes, claims or controversies through good faith negotiations prior to pursuing any dispute resolution pursuant to this Section 19. The parties agree that any and all disputes, claims or controversies equal to or exceeding $5,000 arising out of or relating to this Agreement shall be submitted to JAMS (fka Judicial Arbitration and Mediation Services, Inc.), or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration. Judgment upon any award resulting from such arbitration may be entered and enforced in a court having proper jurisdiction. Any such mediation or arbitration shall be held in San Diego, CA, or such other location as the parties may agree.
ENTIRE AGREEMENT: This Agreement shall constitute the entire understanding of the applicable parties as to the subject matter hereof and replaces and supersedes all prior or contemporaneous agreements, written or oral, as to such subject matter. No addition to, or modification of the Agreement or of these Terms and Conditions shall be binding on OI unless agreed to in writing.