sale of services
These terms and conditions (“Terms and Conditions”) are issued on behalf of Swift Engineering Inc. (“Swift”) and will apply to all sales of Swift Services, as defined below to you as end user or as agent for an end user customer (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 order for Swift Services, after acceptance by Swift of Customer’s order, will result in the incurrence by Customer of charges based upon costs incurred and/or commitments made by Swift prior to such cancellation. “Swift Services” is defined herein to mean any applicable design, engineering or manufacturing services and to include Swift’s time and effort involved in providing the such services, including any goods, supplies, materials, articles, items, parts, components or assemblies (“Products”) incidental to the performance of Swift Services.
- Payment Terms. Any amounts due Swift for the sale of Swift Services are payable in cash upon receipt by Customer of Swift’s invoice for such services 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 prior express written agreement of Swift. Swift shall have the right to cease performing any services in the event of the failure of the Customer to pay Swift in accordance with the terms stated on any accepted purchaser order or invoice.
- Delivery of Products, Title, Risk of Loss. To the extent applicable, delivery by Swift of any Swift Services will be FOB Swift Engineering Inc., San Clemente, California (“FOB Location”), and title to the Swift Services passes from Swift to Customer upon delivery of the Swift Services to the FOB Location. Customer bears the sole responsibility for shipment and risk of loss of the Swift Services 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. The Final Agreement 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 WARRANTY SHALL BE THAT ALL SWIFT SERVICES WILL BE PERFOMRED IN ACCORDANCE WITH THE STANDARDS OF CARE AND DILIGENCE NORMALLY EXERCISED BY PERSONS PERFORMING SUCH SERVICES IN THE INDUSTRY AND CONFORM TO THE REQUIREMENTS OF THE CUSTOMER’S ORDER. SELLER SHALL EITHER CORRECT OR RE-PERFORM ANY DEFECTIVE OR NON-CONFORMING SERVICES, AT SWIFT’S ELECTION. SWIFT’S WARRANTY OBLIGATIONS HEREUNDER SHALL CEASE UPON THE EARLIER OF (i) CUSTOMER’S INSPECTION AND ACCEPTANCE OF THE SWIFT SERVICES, AND (ii) NINETY (90) DAYS FROM DELIVERY BY SWIFT. THE LIABILITY OF SWIFT ON ANY CLAIM OF ANY KIND ARISING OUT OF OR CONNECTED WITH SWIFT SERVICES SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE SWIFT SERVICES 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 SERVICES. IF SWIFT HAS UTILIZED THE DESIGN OR ENGINEERING SPECIFICATIONS OF CUSTOMER FOR THE SWIFT SERVICES, SWIFT DOES NOT MAKE ANY WARRANTY (INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE) EXPRESSED OR IMPLIED, WITH RESPECT TO BUYER’S DESIGN, ENGINEERING OR SPECFICATIONS. ADJUSTMENTS UNDER THIS WARRANTY WILL BE MADE ONLY 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 THAT EXTEND BEYOND THE WARRANTY SET FORTH HEREIN.
(c) THIS WARRANTY SHALL NOT APPLY TO ANY SWIFT SERVICES WHICH SHALL HAVE BEEN AMENDED OR MODIFIED OR ALTERED IN ANY MANNER WHATSOEVER WITHOUT THE EXPRESS WRITTEN CONSENT OF SWIFT, OR WHICH WERE UTILIZED OTHER THAN IN STRICT COMPLIANCE WITH SWIFT’S INSTRUCTIONS AND THE SWIFT SERVICES’ INTENDED 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 Services on behalf of itself or on behalf of an end user for whom it is duly acting as agent and that such purchase of Swift Services by Customer has been duly authorized by all necessary applicable 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 Services to Customer shall be paid, in all instances, by Customer in addition to any amount payable to Swift for Swift Services.
- 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 provision of Swift Services sold to Customer.
(b) Swift represents and warrants that any portion of the Swift Services 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 Services 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 Services, 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 provision of Swift Services 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 provision of Swift Services 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 confidential 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 the 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 provision of Swift Services 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 provision of the Swift Services to Customer; or delays due to changes in the Swift Services requested or authorized by Customer.
(b) The stipulated date by which any Swift Services are to be completed shall be subject to extension by reason, and to the extent of, Excusable Delays. If the completion of a Swift Services is so delayed, the stipulated date by which such services are to be providedfor 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 provision of Swift Services 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. 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. 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 thirty (30) days after his/her appointment, and 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.