Terms and Conditions
1. Contract Terms.
These Terms and Conditions shall apply to all sales and supply of products made and services provided (“Products”) by Night Vision Devices, Inc. (NVD) to its Customers referred to herein as the Buyer. NVD and the Buyer may hereinafter also be referred to individually as “Party” and collectively as “Parties”.
The Terms and Conditions listed herein, together with the contents of the applicable NVD quotation and the Buyer’s purchase order acknowledgment (collectively the “Order”), constitute the entire Agreement between NVD and the Buyer. No modification, limitation, waiver, or discharge of the Order or any of its terms shall bind NVD unless in writing and signed by an NVD authorized representative.
The Buyer acknowledges and agrees that these Terms & Conditions supersede any and all of its own or third parties’ terms and conditions that may be included with the requests for a Quotation (“RFQ”) or an Order or any other correspondence, even if Buyer’s documentation or direction states otherwise unless there is a prior express agreement in writing to the contrary by NVD.
2. Acceptance of Purchase Order.
Following issuance of a Quotation, the Purchase Order is a Contract that is made by and between Night Vision Devices Inc. (NVD), and the Purchaser or Buyer. NVD and Buyer may also each be referred to herein as a “Party” and collectively as the “Parties.” The Purchase Order supersedes any prior offers or agreements concerning the subject matter thereof and the provisions therein constitute the entire agreement between the Parties. The Purchase Order is subject exclusively to NVD’s General Conditions of Sale. Additional or modified terms or conditions proposed by Buyer or included in Buyer’s acknowledgment or contained on the face or reverse side of the order or any attachment or referenced attachment thereto or any prior general agreement inconsistent with the Purchase Order are hereby expressly rejected by NVD and have no effect unless expressly accepted in writing by NVD.
NVD will use its best effort to fill all orders. However, orders will be processed in accordance with the U.S. Government’s Defense Priorities and Allocation System (DPAS) which requires that DPAS-rated orders take precedence over all non-rated orders. If any conditions arise which prevent compliance with delivery schedules, NVD shall make its best effort to advise of any delay in delivery. The Parties agree that NVD shall not be liable for any damages, general, consequential or otherwise as a result in delay in delivery, or for failure to give notice of any delay in delivery.
All deliveries shall be governed by INCOTERMS 2010 and will be made EXW from NVD’s factory for domestic orders and FCA NVD’s factory for international orders unless otherwise specified. In the absence of specific instructions, NVD will select the carrier. Title to material shall pass to Buyer upon delivery thereof by NVD to the carrier or delivery service. Thereupon the Buyer shall be responsible therefore. Products held for Buyer, or stored for Buyer, shall be at the risk, and expense of Buyer. If, at the request of Buyer, shipments are postponed more than 30 days, invoices for said products shall become due 30 days after notice that products are ready for shipment.
NVD shall perform inspections, quality control and production
tests in accordance with NVD’s normal standards and procedures.
5. Packing, Packaging, and Marking.
Unless otherwise specified, NVD will package and label items for shipment in accordance with NVD’s standard commercial practice. Product markings other than standard commercial practice must be negotiated prior to acceptance of buyer’s purchase order.
6. Title and Risk of Loss.
Title to the Products shipped and all risks of loss pass to Buyer upon NVD delivery to common carrier at NVD plant (F.O.B. Origin), unless otherwise agreed between the parties and included in the Order.
7. Force Majeure.
The following events shall constitute force majeure under any resulting Contract: (a) acts of God or of a public enemy; (b) acts of Government; (c) fires; (d) floods; (e) epidemics; (f) quarantine restrictions; (g) strikes; (h) work stoppages; (i) freight embargos; (j) unusually severe weather conditions; (k) failure of the U.S. Government to issue or the withdrawal of any required export authorization(s) or permit(s) necessary to perform this Purchase Order and (k) other events entirely beyond the control and without fault or negligence of the Parties that may impact performance. Each Party shall give the other notice, as soon as reasonably possible, that such Party claims a Force Majeure condition that would prevent the Party from performing its obligations hereunder, and of the cessation of the condition. A Party’s notice under this clause shall include the Party’s good faith estimate of the likely duration of the Force Majeure condition.
8. Alterations and Discontinuation of Products, Technical Documents.
NVD reserves the right to modify the design, configuration or specifications of equipment ordered by the Buyer; however, such modifications will not materially affect the performance, form, fit or function. Additionally, NVD reserves the right to discontinue the manufacture of a Product or the provision of a service at any time with immediate effect.
9. Obsolescence of Parts.
While NVD intends to provide parts in accordance with original design requirements, NVD reserves the right to make part substitutions provided the substituted part has the same form, fit and function as the item it replaces.
10. Intellectual Property.
All rights and interest to the inventions, information, technical data or drawings, copyrights rights, patent rights, trademark rights, know-how, trade secrets, related intellectual property, intangible and proprietary rights throughout the world, relating to the Products or disclosed to the Buyer in connection with any order or proposal, are the exclusive property of NVD.
Unless explicitly stated otherwise in the quotation, all tooling and methods used in the assembly and manufacture of Products shall be the sole and exclusive property of NVD.
The Buyer shall not (a) decompile, reverse engineer, disassemble, trace or otherwise analyze the Products, their content, operation, or functionality; or
(b) modify, adapt, or translate the Products, nor create derivative works based on the Products.
11. Warranty Statement.
(a) Subject to the conditions hereinafter stated, NVD warrants that at time of delivery to the carrier, all items will be free from defects in material and workmanship.
(b) NVD’s obligation under this warranty shall be limited to (1) repairing, or (2) replacing at its factory or (3) allowing an equitable credit for any item, which upon inspection and in the judgment of NVD, is defective in material or in workmanship, provided that NVD is notified of any such defect or nonconformance within warranty period applicable to the item(s) purchased.
(c) No item will be accepted for repair, replacement or credit adjustment without a Return Merchandise Authorization (RMA) number, issued by NVD. To obtain an RMA and shipping instructions please contact our service department by either phone (610) 395-9743 or email at email@example.com. Upon receipt of authorization, and only in accordance with instructions of NVD, items for which adjustment, evaluation, or repair is requested shall be returned to NVD for examination with all shipping charges prepaid by the Buyer. Such items shall be packed in the original shipping container or in a manner substantially equal to the original packing used by NVD or NVD’s dealer or distributor. The return package shall include a copy of the RMA number, contact information, and a brief description of the reason for return. Failure to include this documentation or to package correctly may void this warranty. If such items, after examination by NVD, are found to be defective, then credit will be allowed for reasonable shipping charges paid by the Buyer.
(d) In the event that the item appears to have been damaged in transit, NVD shall notify Buyer in a timely manner permitting the Buyer to file a claim against the carrier.
(e) In the event that, pursuant to paragraph (b) above, NVD elects not to repair or replace any such defective item, then NVD will refund the purchase price (inclusive of any documented shipping charges paid by Buyer) and NVD shall have no further obligation hereunder with respect to the defective item.
(f) This warranty does not extend to any item which has been subject to misuse, neglect, accident, operation outside of the item’s maximum/minimum ratings, incorrect wiring, improper application or installation, use in violation of instructions furnished by NVD, or has had its serial number or any part thereof altered, defaced or removed. Returned items, which are found by NVD to be within specifications, will be subject to a handling charge of 10% of the original purchase price billable to the Buyer.
(g) The system warranty is void for any system that is not serviced by either the seller or an NVD-certified service provider. To obtain a list of NVD- certified service providers, contact the NVD Warranty department.
(h) NVD will be permitted upon request to observe Buyer’s incoming
inspection testing procedures at any time that is mutually acceptable.
(i) Except as to title, NVD’s liability arising out of the supplying or use of these items, whether or not within warranty, shall not in any case exceed the limitations herein stated nor shall NVD be liable for any general, special or consequential damages for any loss, damage or expense directly or indirectly arising from the use or inability to use the items, or any inability to use them either separately or in combination with any other equipment, or from any other cause. THE WARRANTY HEREIN PROVIDED FOR SHALL BE BUYER’S EXCLUSIVE REMEDY AND IS EXPRESSLY IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE.
(j) Expressed Specific Product Warranties
1. Parts: All new parts are covered under the above listed warranty conditions for one year after the date of sale.
2. Image Intensifiers: All new Harris image intensifiers sold by NVD are covered under the above listed warranty conditions for one (1) year after the date of sale. All new L3 image intensifiers sold by NVD are covered under the above listed warranty conditions for two (2) years after the date of sale. All new Photonis image intensifiers sold by NVD are covered under the above listed warranty conditions for one (1) year after the date of sale.
3. NVD Systems: For Domestic Sales unless otherwise expressed, the following NVD manufactured systems sold by NVD are covered under the above listed warranty conditions for the following time period: The NVD-PVS- 14, NVD-PVS-7, NVD-MICRO, and all models of the NVD-BNVD series will have a ten year warranty after the date of sale; The NVD-740/760 will have a two year warranty after the date of sale. For International Sales unless otherwise expressed, the offered warranty is as communicated in the formal NVD quotation.
4. Other Systems: Unless otherwise expressed, all new systems sold by NVD, which are manufactured by other companies, are covered by the manufacturer’s original warranty. Specific manufacturer’s warranty periods for those products are listed either on NVD’s product literature sheets or on that product’s web page located at www.nvdevices.com.
The Buyer must contact NVD or its authorized distributor within the applicable warranty period to obtain a Return Merchandise Authorization (RMA) number. Dated proof of original purchase from NVD or its authorized distributor and a detailed description of the defect will be required. Products sent in for warranty service must be clean, decontaminated and free of mildew. NVD is not responsible for Products or parts thereof received without an RMA, or not clean, decontaminated, or free of mildew, and is entitled to return them to the Buyer at Buyer’s cost and expense. Products shall be packed in the original shipping container or in a manner substantially equal to the original protective packing used by NVD or NVD’s dealer or distributor The Buyer must ship the defective Products and/or parts thereof at its own cost and expense to NVD or designated work shop while repaired or replacement Products and/or parts will be shipped to the Buyer at NVD cost and expense. Such repaired Products or parts thereof will be shipped as soon as reasonably possible. NVD shall, at its sole discretion, decide on the place of performance for work under warranty. For Products and/or parts thereof forming part of a fixed installation, such place of performance shall be the site of such installation and NVD shall have the right to charge for additional costs for such services under warranty if the site of such Product and/or part is different from where such Product and/or part was originally installed or shipped.
Cost of appraisal of Products that are alleged to be defective shall be borne by the Buyer if the alleged defect cannot be identified under reasonable conditions by NVD.
13. Repairs Outside of Warranty Period.
Once the warranty period agreed between the Parties has lapsed, the Buyer may turn in the Product for repair and/or maintenance work after obtaining an RMA from NVD indicating the work shop where the Product is to be shipped to at the Buyer’s cost and expense. NVD is not responsible for Products or parts thereof received without an RMA number. NVD shall submit a Quotation to the Buyer prior to starting the repair or maintenance work. Cost of appraisal of Products that are alleged to be defective shall be borne by the Buyer (i) if the alleged defect cannot be identified by NVD and/or (ii) if the Buyer decides not to carry out the repair or maintenance work after the receipt of the Quotation from NVD.
Unless otherwise stated, payment is expected prior to shipment. When partial shipments are made, payments therefore shall become due in accordance with the designated terms, upon submission of invoices therefore.
Unless otherwise specified, the prices shown do not include any taxes or transportation charges. Unless prohibited by statute, Buyer agrees to pay to NVD the amount of any federal, state, city or other tax which NVD may be required to pay on account of the ownership at the place of installation, or the manufacture, transportation, sale or use of the material and equipment which is the subject of this contract.
16. Suspension of Deliveries and Termination.
In the event that the Buyer suspends or is late in its payments, becomes subject to a court order for settlement and/or bankruptcy proceedings are commenced against it, gives up or transfers its business, or otherwise breaches the provisions of these Terms and Conditions without providing satisfactory remedy within the remedy period notified to it, NVD shall be entitled at its sole choice, without prejudice to any other or more extensive rights, to either suspend further deliveries without regard to any Orders still pending or terminate the Order.
Buyer Requested Changes (quantity, ship method, packaging, etc.)
The Buyer may at any time request changes to the order within the general scope of work called for. If such changes cause an increase or decrease in the price of the Products sold, the Buyer shall be notified to this effect, and NVD shall not be obligated to proceed with such changes until it receives a written change order, and agrees in writing to accept such change. NVD shall also be entitled to an extension of the delivery schedule as a result of such change(s).
Buyer Requested Delivery Changes.
The Buyer may at any time request delivery changes to an existing order within the general scope of work called for. If such changes result in a delivery schedule change, which causes an increase in the price of the Products sold, the Buyer shall be notified to this effect, and NVD shall not be obligated to proceed with fulfillment of the remaining order until it receives a written change order and agrees in writing to accept such change.
Delay(s) for anticipated shipment(s) may result in significant delivery delay for any such replacement product(s) due to the fact that products which are built for specific customers’ delivery dates, which upon postponement by Buyer request, then become available to the next customer in the queue for that particular product.
Unforeseen Price Increases.
In the event Seller is subject to price increases on products when deliveries that are projected over an extended period of time or have incurred cost increases which have taken place due to unforeseen and unpredictable market conditions, Buyer shall be notified of these changes when they occur and NVD shall not be obligated to proceed with completion of the order until it receives and approves of a written change order from the customer.
18. Order Cancellation.
Orders accepted by NVD are not subject to cancellation by the Buyer except with written consent of NVD. In the event of cancellation, the Buyer will be advised of applicable cancellation charges, which may include charges for raw material, work in process and finished goods applicable to the Order, together with applicable overhead and allowance for profit. In addition, the Buyer will reimburse NVD for any expenses incurred by NVD specifically for the Buyer Order fulfillment. If the Buyer cancels an Order for standard Products, i.e. commercial off the shelf (COTS) products, at any time prior to the shipment date, NVD reserves the right to charge a cancellation charge at the rate of 25% minimum of the value of such cancelled Orders.
19. Export Control.
The Buyer hereby acknowledges receipt of notice that some or all of the items and/or technical data provided or exchanged pursuant to this Order falls under the export control of International Traffic in Arms (ITAR) regulations, 22 CFR sections 120 – 130, or the Export Administration Regulations (EAR), 15 CFR sections 768 – 799. The Buyer acknowledges that these statutes and regulations impose restrictions on the import, export, and/or transfer to foreign persons or entities of certain categories of items or technical data and that licenses from the U.S. Department of State and/or the U.S. Department of Commerce may be required before such items or technical data can be provided to non-U. S. Persons. Accordingly, the Buyer shall not disclose, provide or export such items and/or information to any foreign person or entity, whether within the U.S. or abroad, without obtaining appropriate export authorization in advance. The Buyer understands and acknowledges its awareness that intentional violation of such export requirements may constitute a crime.
20. Proof of Export.
The Buyer agrees to furnish NVD with proof of exportation of all or any part of such products within 30 days from the date of NVD’s invoice therefore or if exportation of any part shall not have occurred within that period. Buyer agrees to pay NVD upon demand the amount of any manufacturer’s excise tax or other tax which now or hereafter may be imposed on the sale of such products for consumption within the United States.
The Buyer shall defend, indemnify, and hold harmless NVD, its parents, subsidiaries and affiliates, and their respective directors, officers and employees and representatives, from and against any and all claims,
suits, losses, obligations, causes of action, damages, and expenses (including attorney’s fees) relating to or arising out of any use of the Products by the Buyer.
22. Limitation of Liability.
NVD shall not be liable for any loss, damage, cost of repairs, incidental or consequential or special damages of any kind, whether or not based upon express warranty or implied warranty (except for the obligations assumed by NVD under the Product Warranty Clause), contract, negligence, or strict liability, or other legal or equitable theory, arising in connection with the design, manufacture, sale, use or repair of the product. In no event will NVD be liable to Buyer for any amount in excess of the purchase price of the product which proves to be defective.
The Buyer agrees to comply in all respects with applicable provisions of the Foreign Corrupt Practices Act of 1997 (Public Law 95- 213) of the United States of America, which prohibits the making or offering of a bribe, kickback or payoffs to government officials, rebates to suppliers or subcontractors, violations of customs or currency control laws and violations of national laws or regulations. The Buyer agrees to save, hold harmless and indemnify NVD from Buyer’s violations thereof.
Certain Products manufactured and/or distributed by NVD contain lasers that may present a risk to health and safety and are regulated by the FDA and DOD. The Buyer agrees to resell or distribute such regulated Products in strict accordance with these agencies’ requirements. The Buyer agrees to ensure that manuals, labels and other safety information provided by NVD are forwarded with the Products to subsequent purchasers or users. The Buyer agrees to provide proof of appropriate end-user information and other documentation as required.
The following information is deemed to be Confidential Information: (a) the existence and terms of this Order (provided that NVD and the Buyer may agree to issue a press release identifying that they have concluded an arrangement, without identifying or expressing the terms of this Order); (b) any and all business, technical and other information which is identified or labeled as “Proprietary” or “Confidential,” whether written, oral or otherwise furnished and shall include, but not be limited to all data, reports, interpretations, forecasts and records which Receiving Party or its respective agents or employees shall have been furnished or had access to heretofore or hereafter in the course of the Parties’ discussions. Confidential Information shall also include information received as a result of plant tours, demonstrations or other visual or audio presentations or verbal disclosures that the Disclosing Party indicates in writing to the Receiving Party no later than thirty (30) business days after conveying such information that it is Confidential Information. The parties will observe and adhere to the following obligations regarding Confidential Information. Each Party shall: (a) limit the dissemination of Confidential Information to persons within its direct employment having a need for access, and who are informed of the obligations of confidentiality and non-use imposed by this Agreement; (b) protect Confidential Information from disclosure to third parties with at least the same degree of care (but no less than a reasonable degree of care under the circumstances) as it uses to protect its own Confidential Information of like kind from unauthorized use or disclosure; and (c) use Confidential Information only for the purpose of internally administering or enforcing this Order.
Confidential Information will not include, and the obligations described in the preceding paragraph above shall not apply to, information which the recipient can show by corroborated evidence: (a) was or is developed for the Receiving Party by employees who have not been exposed, either directly or indirectly, to the Confidential Information; (b) was publicly available and readily ascertainable to the public in substantially the same form at the time of disclosure, or later became so without breach of this Agreement; or (c) was or is rightfully received by the Receiving Party from a third party without any obligation of confidentiality or solicitation by the Receiving Party.
25. Dispute Resolution and Applicable Law.
The parties agree that any dispute arising pursuant to the Buyer’s purchase which is not resolved by mutual agreement between the parties may be resolved in an action before a state or federal court of competent jurisdiction located within the State of Pennsylvania. This Agreement shall be governed by and construed according to the substantive laws of the State of Pennsylvania and these United States (exclusive of any principles of comity or conflict of laws) as applicable to this Order and similar contracts negotiated, executed, and performed wholly within the State of Pennsylvania.
26. Amendment and Waiver.
None of the terms of this Order may be amended or revised except in a written document properly executed by both parties and expressly referring to this Order. No provision, right, or obligation under this Order may be waived except by the written consent of the Party waiving such performance or compliance.
27. Independent Relationship.
Unless explicitly set forth in a separate agreement, the relationship of the parties is that of Buyer and Seller, and each Party will act at all times as an independent Party for its own account. Neither Party may represent or hold itself out as an agent or representative of the other. Neither Party has any authority to, and is expressly prohibited from, creating or assuming any obligation on behalf of the other, and from otherwise making or extending any representation, warranty, guarantee, or other commitment for or on behalf of the other.
The terms and conditions outlined herein are severable and the invalidity, illegality or unenforceability of any one or more these provisions shall not affect the validity and enforceability of any other provisions. If any provision outlined herein is declared to be invalid, illegal, or unenforceable, the parties agree that the court of competent jurisdiction should substitute a valid and enforceable provision that, to the maximum extent possible in accordance with all applicable law, preserves the legal and economic positions of each Party as originally intended.
The Buyer shall not assign or otherwise transfer, whether by contract, operation of law or otherwise, the Order or any of the rights or duties set forth herein without the prior written consent of NVD, which consent may be withheld by NVD in its sole discretion.
Any provisions of an Order that by their nature are intended to survive any expiration or termination will survive expiration or termination of the Order for any reason.