ECS CASE QUOTATION TERMS AND CONDITIONS OF SALE
TERMS AND CONDITIONS GENERALLY: The attached quotation and these terms and conditions form an offer from ECS which can only be accepted on these exact terms and conditions. ECS will entertain proposals from a buyer who seeks different or changed terms and conditions, but ECS objects to such terms unless and until it determines, in writing, to accept them. Absent such subsequent written acceptance by ECS, buyer agrees that the terms and conditions herein shall prevail over any inconsistent provisions in any purchase order or other writing submitted by buyer.
CHANGES: Modifications to the contract shall be subject to price and/or schedule Changes as specified in FAR Part 4 3 “Contract Modifications”. ECS shall maintain configuration control of all products sold, and does not warrant that any product configurations offered by ECS shall remain in production, reserving the right to declare product configurations obsolete.
ESCALATION: If ECS pricing is in current dollars, then the buyer should expect price escalation for deliveries in subsequent periods. Rates of escalation will be calculated by supplier. The price for data items deliverable at contract close (i.e., Level III drawings and aperture cards) will be escalated annually to the date of shipment from ECS.
MINIMUM QUANTITY PURCHASES: In the event ECS is mandated to purchase minimum quantities of materials to satisfy unique customer requirements, ECS reserves the right to invoice for an advance payment and minimum purchase of materials.
ORDER QUANTITIES: ECS quotes quantities as requested and anticipates delivery of each quantity in a complete lot-unit price(s) are subject to change when schedules are phased.
PACKAGING: Packaging is to “standard commercial practice”. ECS meets MIL-E- 17555-Level C. Special packaging due to customer request or abnormal size or weight is available at an additional cost, and will be invoiced separately.
PAYMENT TERMS and OPEN ACCOUNT CREDIT: Unless otherwise quoted. Payment terms are net 30 for each individual item(s) that ships. Incomplete systems will not be cause for delay of payment. The first day is the date product leaves ECS’ dock. For non-deliverables, the first day would start on the date invoiced.
NON-EXCLUSIVE CONTRACT: Buyer agrees that the products and services purchased from ECS are “Commercial items” as defined in FAR 2.101.
PERFORMANCE and PURCHASE ORDER ACKNOWLEDGMENT: In the event ECS is given verbal direction to commence performance prior to receipt of any written acceptance from buyer, the buyer shall: 1.) be responsible for the cost of changes made to the product during the period of time between the verbal direction to proceed and receipt of a hard copy of a purchase order is received at ECS. 2.) provide purchase order within 10 days of date verbal direction to commence performance was given. In the event ECS does not receive a purchase order within 10 days, ECS reserves the right to place subject order on technical hold pending receipt of P.O. holding ECS harmless for schedule and
pricing. 3.) (In the event of cancellation) be responsible for termination costs IAW FAR PART 49.
PROGRESS PAYMENTS/PREPAYMENT of MATERIALS: The following applies only to contracts valued at $100,000 or above. Progress payment provisions may be requested as specified and governed under FAR 32.502-1. In lieu of progress payments, ECS may request a cash advance for materials purchased in the amount of 25% of the Contract value.
QUALITY CONTROL STANDARDS: ECS Quality Control Standard applies and Conforms to MIL-I-45208.
FREIGHT POLICIES: All orders are shipped FOB Grants Pass or Klamath Falls, Oregon, Freight Collect. If prepay and bill is required, there is a service charge of $10 for UPS shipment, $25 for truck shipments, and $10 for “FED EX” and other air shipments.
SHIPMENT SCHEDULES: ECS will manufacture product as expediently as possible and as material allows to meet scheduled shipment dates. All dates are quoted as dates of shipment from ECS dock and ARO. Dates are subject to change with alterations in the design as proposed. ECS reserves the right to ship 30 days early of the scheduled delivery dates. ECS reserves the right to recover costs or bill in place due to buyer delays, e.g. customer supplied parts or customer delivery originated date changes. In the event that the customer’s required lead time is shorter than the ECS Case's quoted lead-time, ECS reserves the right to charge an additional 10% per week expedite charge.
SOURCE INSPECTIONS: Customer Source Inspections, Full-Dimensional Inspections, Government Source Inspections, and Inspection reports (beyond the standard Requirements of MIL-I-45208) conducted at ECS are charged on a per hour basis depending on the amount of time spent by ECS Quality Assurance and other personnel.
STOPWORK: ECS expects timely payment from our valued customers. In the event payment is not received within seven days of the payment terms as quoted, ECS reserves the right to stop work until payment is received. All previously agreed-upon conditions are then subject to change by ECS.
TOOLING: All tooling is quoted as a Non-Recurring Tool Use Charge (NRTUC). Ownership vests with ECS. Any tooling purchase less than $10,000 shall be invoiced with order placement (net 30). The following terms of acceptance apply to tooling valued at more than $10,000 and shall be billed as follows:
a. One half (50%) payable upon receipt of the tooling order placement (net 0)
b. Twenty-five percent (25%) payable thirty (30) days after receipt of the tooling order, (net 30)
c. Twenty-five percent (25%) (balance) payable upon first article acceptance of part from the tool. (net 0) In the event that the tooling order is exceptionally large or has an unusually high Material cost, the schedule of payments may be altered in writing by ECS CASE.
TERMINATION for CONVENIENCE: The buyer would be expected to reimburse ECS in accordance with FAR PART 49. Disposition is requested within a reasonable period after termination of storage costs would be assessed to disposition costs.
TESTING: Unless otherwise noted, attached pricing does not include testing. Testing and test reports may be available separately priced. Quotations for testing are available after design and delivery schedules have been finalized and after the seller’s Qualification Test Procedure have been approved by the buyer.
TESTING UNITS: Any product manufactured or supplied by ECS for the purpose of First Article or other testing will become the property of the buyer upon shipment of the product to an outside testing facility or upon commencement of testing at ECS. The buyer will be expected to submit payment pursuant to ECS payment terms. The seller may retain test information pending receipt of payment or the test units. Testing is usually designed to simulate a lifetime of product use. Therefore, the cost to repair any resulting damage will be the responsibility of the buyer.
WARRANTY: ECS warrants its products to be free from material and workmanship defects when utilized in a reasonable and prudent manner for a period of ninety (90) days after date of shipment by ECS, provided that claims under this warranty must be received in writing by ECS within that ninety (90) day period , or coverage will be denied. Upon receipt of timely notice of a warranty claim, ECS will authorize return of the affected cases or arrange for inspection at the customer’s facility. Location of inspection shall be at the discretion of ECS. ECS will determine if the defect is the result of workmanship or material or the result of forces or actions outside the terms of this warranty. If the defect is within the terms of this warranty, ECS will at its options, repair or replace the affected containers and return them to the customer within a reasonable time frame. When this is the situation, ECS will pay both in and outbound freight by the best way, surface routing. If ECS is not able, within a reasonable period of time, to repair or replace any product to a condition as warranted, the customer shall be entitled to a refund of the purchase price upon return of the product to ECS.
If ECS determines that the defect or damage is outside the conditions of this warranty, it will recommend action to the customer. The customer will be responsible for in and outbound freight and the cost of repairs, replacement and/or disposition of the damaged goods. No goods will be accepted by ECS without issuance of a Receiving Authorization (RA) number by ECS. All goods returned for warranty service must be shipped prepaid UNAUTHORIZED COLLECT SHIPMENT(S) WILL NOT BE ACCEPTED BY ECS RECEIVING. If determination is made that the defect is with the terms of this warranty, ECS will credit the customer for inbound freight charges. ECS reserves the right to determine the method of return shipment. Failure to comply with these conditions may result in ECS refusal of shipment and/or refusal of freight charges.
LIMITATIONS OF EXPRESS WARRANTY: The foregoing warranty does not apply to defects resulting from: 1. Improper or inadequate maintenance by the customer. 2. Buyer-supplied parts or equipment. 3. Unauthorized modifications or misuse. 4. Use Outside of parameters and specifications as defined at time of sale.
WARRANTY DISCLAIMERS: There are no warranties which extend beyond the express terms of the warranty set forth herein. ECS expressly disclaims any and all implied warranties of merchantability or fitness for a particular purpose.
LIMITATION OF LIABILITY: Buyer agrees that special, incidental or consequential damages shall be available as against ECS. Buyer further agrees that ECS’s maximum liability to buyer, whether based on contract, tort or any other Legal theory, shall be for the amount of the purchase price; and further agrees that such amount is reasonable in the light of anticipated or actual harm arising from any breach.
PROTECTION OF PROPRIETARY INFORMATION: Buyer shall hold ECS’s Information confidential, and may not disclose ECS’s Proprietary Information to any third party or duplicate ECS’s Proprietary Information without ECS’s written permission. Buyer shall return to ECS, or destroy and certify as destroyed, all ECS’s Proprietary Information upon completion of buyer’s performance here under ECS’s written request, or termination of any purchase order arising from this quotation, whichever is earliest. “ECS’s Proprietary Information” means trade secret, confidential, or Proprietary information disclosed by ECS to buyer in connection with this or any prior order, which either is identified to a buyer as a trade secret, confidential or Proprietary information or which information that a reasonable person would understand to be trade secret, confidential or proprietary information, including, but not limited to; customer lists, supplier list, pricing policies, market analyses, business plans or programs, software, specifications, manuals, notes and annotations, performance data, designs, processes, data, reports, photographs and engineering, manufacturing or technical information related to Seller’s products and services, ECS financial statements, or other information concerning ECS finances, any analyses of ECS financial information, any analyses of ECS pricing, and abstracts of pricing information incorporated into vendor data systems of buyer, as well as any duplicates or copies of the foregoing
categories of information.
Notwithstanding any prior agreement, buyer agrees that neither it nor any affiliate of buyer will: (1) reverse engineer any product purchased from ECS, (2) manufacture any knock-off confusingly-similar in appearance to any ECS product, in as much as buyer agrees that ECS products have a distinctive appearance that enables consumers to identify their source: or (3) utilize ECS Proprietary Information for any business purpose other than assessing the suitability of ECS products for their business needs. Buyer further agrees that neither it nor any affiliate of buyer will accept ECS Proprietary Information from any third party, including but not limited to former employees of ECS, and shall immediately report any offered conveyance of ECS Proprietary Information to ECS, which report shall include all available information concerning the identities of any such offerors and all details concerning the offer. For purposes of this paragraph, “affiliate” means any company of which buyer owns a majority share or which is under common ownership with buyer by a corporate parent with at least a majority share of such company.
These provisions for the protection of ECS Proprietary Information are not intended to replace any available remedies under state or federal statute or common law, but to be Supplemental thereto.
DISPUTE RESOLUTION: Buyer agrees that any and all disputes arising under or relating to sale of goods offered by this quotation shall be governed by Oregon law, exclusive of the conflict of laws principles thereof, and resolved in the Circuit Court of Josephine County, Oregon. Buyer hereby consents to jurisdiction and venue in such Court.