Terms and Conditions
1. Terms and Conditions:
(a) These 5th Axis Standard Terms and Conditions of Sale (these “Terms”) are the only terms which govern the sale of the products (the “Products”) or related services (the “Services”) by 5th Axis Inc., a California corporation (“5th Axis”), to the customer, purchaser or buyer named on any quotation, confirmation of sale or invoice (“Customer”).
(b) The accompanying quotation, confirmation of sale or invoice, as applicable (a “Quote”), and these Terms (collectively, this “Agreement”), comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customer’s terms and conditions of purchase regardless whether or when Customer has submitted its purchase order or such terms. Unless otherwise expressly accepted in writing by 5th Axis, any additional or differing terms or conditions proposed by customer or included in customer’s purchase order are objected to and rejected by 5th Axis and have no effect. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
(c) All quotations, confirmations of sale, invoices, and purchase orders are subject to these Terms.
(d) Notwithstanding anything to the contrary contained in this Agreement, 5th Axis may, from time to time, change the Terms without the consent of Customer.
2. Customer’s Purchase Orders:
(a) Regular Orders: Any purchase order for a specific item for a specific delivery date is considered a regular order. The customer has the flexibility to purchase multiple products (items) on one purchase order. Revisions to scheduled items must be negotiated on an item by item basis.
(b) Blanket Orders: In the event that the customer would like to place purchase orders for an extended period of time, they may do so under a “Blanket Order” agreement. “Blanket Orders” may be negotiated listing a specific number of parts, sell price and time frame. 5th Axis’ sell price is subject to material cost increases on “Blanket Orders” and “SMI Orders” (see Section 3). Releases may be scheduled with various quantities on a periodic basis providing the quantity is in even multiples consistent with agreed upon packaging criteria. Pricing will be predicated on production of a maximum of 60 days consumption of Product. Blanket order pricing will be reviewed quarterly. Price adjustments may be made to reflect the customer’s consumption rates of Products.
3. Supplier Managed Inventory (SMI): Supplier managed inventory may be utilized, where appropriate, when the Customer desires 5th Axis to maintain a set amount of finished goods that can be released to the Customer with short lead times. 5th Axis’ pricing will reflect the economics of this service. SMI pricing is conditional upon shipping in full box quantities and is subject to material increases. A separate document will be provided listing the negotiated details of an SMI agreement.
4. Raw Material Liability: Blanket orders and SMI orders may necessitate 5th Axis carrying inventories of raw materials or components. These inventories provide stability in pricing and decrease lead-times. Minimum order quantities, imposed by 5th Axis’ supplier, may necessitate extra material be acquired on “Regular Orders”, Blanket Orders and SMI orders. The customer is expected to assume responsibility for the raw material inventories purchased and not used. A separate document will be provided to the customer that will delineate the maximum liability incurred by the Customer as well as a time frame in which this material is intended to be consumed. If the raw material is considered to be “off the shelf” and can be returned to the raw material provider, a 20% restocking fee will be charged to the Customer in addition to other costs such as transportation back to the raw material provider. In the case where the material is unique (custom), the Customer will be responsible for the full amount of the raw material cost at the last purchase price.
5. Revisions (Changes in Specification): All revisions must be made in writing for Customer’s purchase orders. All revisions shall be reviewed by 5th Axis and approved prior to acceptance of the change. The previously quoted prices and delivery dates may be adjusted by 5th Axis.
6. Reschedules: In the event that there is a need to push-out a confirmed order, 5th Axis may choose one of the following depending on the situation:
(a) No raw material has been purchased for the order, then the order can be rescheduled with no economic impact.
(b) Raw material has been purchased but production has not begun. The customer will be responsible for a 2-1/2% monthly charge of the value of the order or a 20% restocking fee, plus the cost of shipping, provided the material supplier will accept the returned material.
(c) Production has taken place; payment of the contract price shall become due when the order is ready for shipment. The order shall ship on the pushed-out date.
7. Expedites/Move-in requests: For orders which production has not begun and the Customer requests an expedite, an expedite fee will be assessed providing that 5th Axis is able to accommodate the request and the amount of the expedite fee may vary depending upon the situation.
8. Cancellations: Customer’s purchase orders which have been accepted by 5th Axis are not subjected to cancellation; except upon 5th Axis written consent. Upon acceptance, 5th Axis may choose one of the actions described in Section 7 or require reimbursement for any cost incurred in the performance of the original contract.
9. Customer’s Specification (Blueprint/CAD data): 5th Axis assumes no liability for discrepancies in any CAD data pack and/or blueprint supplied by the Customer. It is the Customer’s explicit responsibility to provide correct and accurate data files and documentation; this includes, but is not limited to, CAD models and drawings, engineering and design, purchase part specifications, and all other forms of documentation and design requirements pertinent to completing an accepted contract.
10. Design Input: 5th Axis will provide suggestions concerning design and construction of product and will recommend various types of materials but will not assume any responsibility or liability for these design suggestions or material recommendations if adopted by the customer.
11. Pricing/Quoting: All prices are net, unless otherwise noted on the Quote. Stenographic, clerical and mathematical errors are subject to correction. Until the Customer’s purchase order is accepted and an acknowledgement is sent, quoted prices and delivery dates are subject to change.
(a) 5th Axis reserves the rights to re-quote any project upon re-order should issues not indicated or disclosed to 5th Axis by the Customer’s specifications (blueprint/CAD data) arise. These problems include, but are not limited to, hidden finishing specifications or requirements, pre-finish conditions, and product configuration changes.
12. Credit and Payment Terms: All terms are net 30. A service charge of 1-1/2% per month (18% annually), or the highest rate permissible under applicable law, will be applied to past due amounts. Customer shall reimburse 5th Axis for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. 5th Axis reserves the right at any time to suspend credit or change credit terms provided herein. Failure to pay invoices at maturity date, at our election, makes all subsequent invoices immediately due and payable irrespective of terms, and 5th Axis may hold all subsequent deliveries until the full account is settled and 5th Axis shall not, in such event, be liable for non-performance of contract in whole or part.
13. Shipping Terms; Title and Risk of Loss: All sales shall be FOB 5th Axis facility unless there is written agreement stating otherwise. Therefore, all claims for breakage, damage and losses should be made directly to the transportation company. Title and risk of loss passes to Customer upon delivery of the Products at the at the Customer’s specified delivery point. As collateral security for the payment of the purchase price of the Products, Customer hereby grants to 5th Axis a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code.
14. Special Packaging Requirements: Special packaging is available at an additional charge, should it be required. Packaging requirements shall be described in detail in the Customer’s purchase orders. The special packaging requirement shall be reviewed by 5th Axis and approved prior to acceptance and work being performed. Freight methodology shall be at 5th Axis’ discretion, unless otherwise specified by the Customer in writing and accepted by 5th Axis.
15. Quality Documentation: All shipments shall be accompanied with a Certificate of Compliance (CofC) at a minimum. Each CofC may be accompanied with Material, Hardware, and Outside Processing/Finishing Certifications, when necessary. Any additional inspection documentation/requirements shall be described in detail in the Customer’s purchase orders. The special inspection requirement shall be reviewed by 5th Axis and approved prior to acceptance and work being performed. The previously quoted prices and delivery dates may be adjusted by 5th Axis.
16. First Article Acceptance: When first article samples is requested and submitted, it shall be deemed approved if written notice of rejection is not received within two weeks after date of submittal.
17. Inspection and Rejection of Nonconforming Goods:
(a) Customer shall inspect the Products within five (5) days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Products unless it notifies 5th Axis in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by 5th Axis. “Nonconforming Products” means only the following: (i) product shipped is different than identified in Customer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Customer timely notifies 5th Axis of any Nonconforming Products, 5th Axis shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the price for such Nonconforming Products. Customer shall ship, at its expense and risk of loss, the Nonconforming Products to the 5th Axis’ facility specified by 5th Axis. If 5th Axis exercises its option to replace Nonconforming Products, 5th Axis shall, after receiving Customer’s shipment of Nonconforming Products, ship to Customer, at Customer’s expense and risk of loss, the replaced Products to the delivery point.
(c) Customer acknowledges and agrees that the remedies set forth in this Section are Customer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under this Section, all sales of Products to Customers are made on a one-way basis and Customer has no right to return Products purchased under this Agreement to 5th Axis.
18. Returns: Customer may return Products within ninety (90) days of receipt of Products along with any documentation reasonably requested by 5th Axis. 5th Axis shall, in its sole discretion, credit or refund the price for such Products properly returned within such ninety (90) day period.
19. Customer Property Liability: When 5th Axis retains possession of a Customer’s tool or material for the convenience of the Customer, 5th Axis will take reasonable steps to protect such tool or material from theft, damage or destruction from any cause. However, the customer is responsible for such loss and is expected to insure his property against any potential loss.
20. Product Liability: The customer agrees to indemnify and hold 5th Axis harmless against any loss resulting from infringement of patents or trademarks, or other liability due to use of Products or Services.
21. Warranty: 5th Axis warrants that Products shall be delivered free from defects in material, workmanship, and title and that Services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications.
(a) The warranty for Products/Services shall expire ninety (90) days from delivery. If Products/Services do not meet the above warranties, the Customer shall promptly notify 5th Axis in writing prior to expiration of the warranty period. 5th Axis shall, at its option, rework, repair or replace defective Product.
(b) 5th Axis shall not be liable for a breach of the warranty set forth above if: (i) Customer makes any further use of such Products after giving such notice; (ii) the defect arises because Customer failed to follow 5th Axis’ oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; (iii) Customer alters or repairs such Products without the prior written consent of 5th Axis, or (iv) any other accident, negligence, alteration, improper care, improper storage, improper maintenance, abuse or misuse of the Products.
(c) Unless otherwise restricted by mandatory applicable law, THE WARRANTY SET FORTH HEREIN IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, QUALITY AND FITNESS FOR USE AND FOR PURPOSE, ANY ADVICE AND RECOMMENDATION AND ANY OBLIGATIONS OR LIABILITIES WHICH MAY BE IMPUTED TO 5TH AXIS, ANY AND ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED, DENIED AND EXCLUDED. THE CUSTOMER EXPRESSLY AGREES IT WILL NOT CLAIM OR OTHERWISE ADHERE TO (AND/OR ALLOW ANYONE ACTING ON THE CUSTOMER’S BEHALF AND/OR BY ANYONE DERIVING THE LEGALITY OF ITS CLAIM FROM CUSTOMER) ANY WARRANTY THAT IS NOT SPECIFICALLY STATED IN THIS AGREEMENT. 5th AXIS NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT, ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, USE OR HANDLING OF ANY AND ALL GOODS SPECIFIED OR CONTEMPLATED BY THIS CONTRACT.
(d) THE REMEDIES SET FORTH IN THIS SECTION SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND 5TH AXIS’ ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION.
22. Force Majeure: 5th Axis shall not be liable or considered in default or in breach for any delay or failure to perform its obligations to the extent that such delay or failure arise directly or indirectly out of an act of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to 5th Axis’ workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, or by any other circumstances beyond its reasonable control and not involving any fault or negligence of the party affected. In addition, 5th Axis assumes no responsibility for damages which result from failure to deliver at time specified.
23. Limitation of Liability: IN NO EVENT SHALL 5TH AXIS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY DIRECT, CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT 5TH AXIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL 5TH AXIS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO 5TH AXIS FOR THE PRODUCTS SOLD HEREUNDER. Any action for breach of contract must be commenced within thirty (30) days upon receipt of goods and is subject to 3rd party arbitration.
24. Insurance. During the term of this Agreement, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than is customary for the business Customer is in with financially sound and reputable insurers. Upon 5th Axis’ request, Customer shall provide 5th Axis with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in these Terms. Customer shall provide 5th Axis with 30 days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against 5th Axis’ insurers and 5th Axis.
25. Compliance with Law. Customer shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
26. Termination. In addition to any remedies that may be provided under these Terms, 5th Axis may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
27. Waiver. No waiver by 5th Axis of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by 5th Axis. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
28. Confidential Information. All non-public, confidential or proprietary information of 5th Axis, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by 5th Axis to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by 5th Axis in writing. Upon 5th Axis’ request, Customer shall promptly return all documents and other materials received from 5th Axis. 5th Axis shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
29. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of 5th Axis. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
30. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
31. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
32. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
33. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of San Diego and County of San Diego, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
34. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the purchase order or other sales confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
35. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
36. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of any purchase order including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction/Arbitration and Survival.
37. Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
PURCHASE ORDER QUALITY REQUIREMENTS
Q1 – INSPECTION AND TEST SYSTEM REQUIREMENTS
The supplier shall establish and maintain an Inspection and Test System in compliance with the requirements of AS9100 or equivalent quality standards. The supplier Inspection and Test System is subject to audit, verification and approval and/or disapproval by 5th Axis designated representatives.
Q2 – MRB AUTHORITY
Material review board authority is not authorized on this purchase order.
Q3 – APPROVAL & CHANGES
The supplier shall notify the buyer of any proposed changes in the design, fabrication methods, material supplier, manufacturing/processing location, which has the potential to affect the conformity of the final product supplied to 5th Axis.
Suppliers with previously approved/locked down processes shall obtain written approval of changes from the buyer. Changed articles shall be clearly identified and in a different manner from the previous articles. When the buyer procures a proprietary item, the supplier shall notify the buyer of changes.
Q4 – RAW MATERIALS
Raw materials shall be accompanied with certifications, chemical and/or physical test results. The supplier shall certify the specific requirements defined on the face of the purchase order.
Q5 – IDENTIFICATION & DATA RETRIEVAL
Where and to the extent that traceability is a specific requirement, the supplier shall apply a unique identification to the individual product, material or batch. This identification data shall be recorded on and traceable to related suppliers records (see supplier quality records)
Q6 – SUPPLIER QUALITY RECORDS
The supplier shall maintain suitable inspection and test records to serve as evidence of conformance with specified requirements. Such records shall be legible and traceable to the product involved. These records shall be maintained for a minimum period of seven (7) years from the date of final manufacture or as stated otherwise in the contract.
Q7 – SUBMISSION & RESUBMISSION OF NONCONFORMING ARTICLES OR MATERIALS
Do not send nonconforming products or materials to 5th Axis without prior written authorization.
Nonconforming articles and/or materials returned by the buyer and subsequently resubmitted by the supplier shall bear adequate identification of such nonconformance, on the articles, materials, or applicable supplier’s records. The supplier shall provide evidence that the cause of the nonconformance was corrected and that actions were taken to preclude any reoccurrence.
Q8 – ACCESS TO SUPPLIER’S FACILITIES AND RECORDS
The supplier shall grant reasonable access to all the supplier’s facilities and records to representatives of 5th Axis, 5th Axis’ customers, US government and/or regulatory agencies for the purpose of evaluation of supplier’s conformance to all PO/Contract requirements. When applicable, the access requirement shall be flowed-down by the supplier to the supplier’s sub-tier sources.
Q9 – FIRST ARTICLE
The Seller shall perform a First Article Inspection (FAI) of one item from the first production lot, or as required by the Buyer. The FAI shall consist of recorded actual drawing, specification values, and/or requirements (dimensional, test data, processes, drawing notes, etc.) and may be documented on the drawing or on a separate report form. The first article item shall be clearly identified by a tag attached to the item or a label applied to the bag, and a copy of the FAI shall accompany the First Article part. The Buyer reserves the right to verify any or all of the characteristics documented on the FAI report at the seller’s facility.
Q10 – CERTIFICATE OF COMPLIANCE
Supplier shall provide evidence that the processes requested in this purchase order were performed by approved sources. The supplier shall maintain such evidence on file. Included with each shipment to the buyer shall be a certificate of conformance indicating as a minimum the process description, process number, name and address of the process supplier, the purchase order and part number.
Q11 – MATERIAL TRACEABILITY
Identification of each piece of material and each report is required by specification to provide traceability to heat lot or batch number
Q12 – GRAIN DIRECTION IDENTIFICATION REQUIRED
Q13 – CONTROL OF SUB-TIER SOURCES
The supplier, as the recipient of the PO or Contract, is responsible for meeting all PO/Contract specified technical and quality requirements, whether the supplier performs the work or the work is performed by the supplier’s sub-tier sources. When the supplier uses sub-tier sources to perform work on products and/or services scheduled for delivery to 5th Axis, the supplier shall include (flow-down) on Purchase Orders of Contracts, to their sub-tier sources, all of the applicable technical and quality requirements of the 5th Axis P.O. or Contract, including, when applicable the requirement to document and control “key characteristics” and/or “key processes”, and to furnish certifications and test reports required by the applicable P.O. Quality requirements.
Q14 – SUPPLIER NOTIFICATION OF NONCONFORMING PRODUCTS DELIVERED TO 5TH AXIS.
When the supplier has determined that the nonconforming product(s) have been delivered to 5th Axis, the supplier shall notify 5th Axis within twenty-four (24) hours of the initial discovery. The supplier shall use receipt acknowledgement e-mail or other positive notification method. The notification shall include the supplier name, 5th Axis PO/Contract number, part number and description, affected quantity and serial numbers (if known), dates delivered (if known), brief description of the nonconforming condition.
Q15 – REQUIREMENTS FOR QUALIFICATION OF PERSONNEL
Where applicable, only qualified/certified personnel shall be used based on process specification requirements (NDT, etc). Records shall be maintained of the personnel qualifications/certifications.
Q16 – DELEGATED AUTHORITY OF INSPECTION FOR RAW MATERIAL
Where applicable, 5th Axis authorizes the supplier to perform receiving inspection on all raw materials, purchased by 5th Axis, which was shipped directly to the supplier from another 5th Axis supplier. When the order is complete, the supplier shall ship the original packing slip and material certification to 5th Axis with the order.
Q17 – CONTROL OF ITAR REQUIREMENT
The supplier shall hereby acknowledge that any information exchanged between 5th Axis and the supplier may include documents which contain technical data, export of which is restricted by the INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (ITAR). Disclosure to foreign persons without prior U.S. Government approval is prohibited. Violations of these Export Laws and Regulations are subject to severe Civil and Criminal penalties.
Q18 – HARDWARE/COUNTERFEIT PREVENTION PROGRAM
The supplier shall comply with the requirements of AS5553, AS6174 and/or AS9120. Distributors or brokers that supply non-electrical standard parts (Hardware), like fasteners, nuts, washers, springs, o-rings, inserts, and pins, must be shipped in a sealed OCM (Original Component Manufacturer) container, which contains the name of the OCM, Part Name/Number, and a Heat/Lot/Control Number at a minimum. If that is unavailable, the original OCM Certification must be included with the shipment.
Q19 – CALIBRATION STANDARDS
The supplier shall comply with the requirements of ANSI/NCSL Z-540-1 and/or ISO/IEC 17025:2005. All standards used in the calibration process shall be traceable to the National Institute of Standard (NIST). A Certificate of Calibration is required for all items calibrated.
PURCHASE ORDER – TERMS and CONDITIONS
- SERVICES & DELIVERABLES. Seller agrees to perform the services (“Services”) and/or goods (collectively referred to as “Goods”), described in this purchase order, in accordance with the applicable purchase order, its attachments and these Terms and Conditions (“Agreement”). Upon acceptance of the purchase order, shipment of Goods or commencement of a Service, Seller shall be bound by the provisions of this Agreement, including all provisions set forth on the face of the purchase order, whether Seller acknowledges or otherwise signs the purchase order or not, unless Seller objects to such terms in writing prior to shipping Goods or commencing Services. This writing does not constitute a firm offer within the meaning of Section 2205 of the California Commercial Code, and may be revoked at any time prior to acceptance. This Agreement may not be added to, modified, superseded, or otherwise altered, except by writing signed by an authorized 5TH AXIS representative. Any terms or conditions contained in any acknowledgment, invoice, or other communication of Seller, which are inconsistent with the terms and conditions herein, are hereby rejected. 5TH AXIS hereby reserves the right to reschedule any delivery or cancel any purchase order issued at any time prior to shipment of the Goods or prior to commencement of any Services. 5TH AXIS shall not be subject to any charges or other fees as a result of such cancellation.
- DELIVERY. Time is of the essence. Delivery of Goods shall be made pursuant to the schedule, via the carrier, and to the place specified on the face of the purchase order. 5TH AXIS reserves the right to return, shipping charges collect, all Goods received in advance of the delivery schedule. If no method of shipment is specified in the purchase order, Seller shall use the least expensive carrier. In the event Seller fails to deliver the Goods within the time specified, 5TH AXIS may, at its option, decline to accept the Goods and terminate the Agreement. Seller shall package all items in suitable containers to permit safe transportation and handling. Each delivered container must be labeled and marked to identify contents without opening and all boxes and packages must contain packing sheets listing contents. 5TH AXIS’s purchase order number must appear on all shipping containers, packing sheets, delivery tickets, and bills of lading.
- RISK OF LOSS, & DESTRUCTION OF GOODS. Seller assumes all risk of loss until receipt by 5TH AXIS. Title to the Goods shall pass to 5TH AXIS upon receipt by it of the Goods at the designated destination. If the Goods ordered are destroyed prior to title passing to 5TH AXIS, 5TH AXIS may at its option cancel the Agreement.
- PAYMENT. As full consideration for the performance of the Services or delivery of the Goods, 5TH AXIS shall pay Seller (i) the amount agreed upon and specified in the applicable purchase order or subsequent price quote or price adjustment by Seller, whichever is lower. Applicable taxes and other charges such as shipping costs, duties, customs, tariffs and taxes shall be stated separately on Seller’s invoice. Payment is made when 5TH AXIS’s check is mailed. Payment shall not constitute acceptance. Seller shall invoice 5TH AXIS for all Goods delivered and all Services actually performed and must reference the applicable purchase order. 5TH AXIS reserves the right to return all incorrect invoices.
- WARRANTY. Services: Seller represents and warrants that all Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good, and sound professional procedures. Further, Seller represents and warrants that the Services shall be completed in accordance with applicable specifications and shall be correct. Goods: Seller warrants that all Goods provided will be new. Seller warrants that all Goods delivered shall be free from defects in materials and workmanship and shall conform to all applicable specifications. This warranty shall be applicable for a period of twelve (12) months from the date of delivery. All warranties and guaranties shall run both to 5TH AXIS and to its customers. 5TH AXIS will promptly notify the Seller of defects and will return the Goods to Seller, at Seller’s expense. Within five (5) business days of receipt of the returned Goods, Seller, at 5TH AXIS’s option, shall either repair or replace such Goods, or credit 5TH AXIS’s account for the same.
- INSPECTION. 5TH AXIS shall have a reasonable time after receipt of Goods or Services and before payment to inspect them for conformity hereto, and Goods received prior to inspection shall not be deemed accepted until 5TH AXIS has run an adequate test to determine whether the Goods conform to the required specifications. Use of a portion of the Goods for the purpose of testing shall not constitute an acceptance. If Goods tendered do not wholly conform to their required specifications, 5TH AXIS shall have the right to reject such Goods and return them to Seller freight collect. Risk of loss, in such case, will pass to Seller upon 5TH AXIS’s delivery to the common carrier.
- INDEMNITY. Seller shall indemnify, hold harmless, and at 5TH AXIS’s request, defend 5TH AXIS, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses, and expenses, including attorneys’ fees and cost of suit arising out of or in any way connected with the Goods or Services provided under this Agreement, including, without limitation, (i) any claim based on the death or bodily injury to any person, destruction or damage to property; (ii) any claim based on the negligence, omissions, or willful misconduct of Seller.
- CONFIDENTIALITY. Seller hereby agrees to abide by the terms of any Confidentiality Agreement entered into by and between the parties prior to the date of this Agreement. The consistent terms of any such Confidentiality Agreement are hereby incorporated by reference as though fully set forth herein in this Agreement. The terms of such Confidentiality Agreement will survive the expiration of this Agreement.
- NONINTERFERENCE WITH BUSINESS. For a period of two years immediately after the termination or expiration of this Agreement, Seller agrees not to unlawfully interfere with the business of 5TH AXIS in any manner, and further agrees not to solicit or induce any employee or independent contractor to terminate or breach an employment, contractual, or other relationship with 5TH AXIS.
- AFFIRMATIVE ACTION NOTICE. Vendors and subcontractors are hereby notified that they may be subject to the provisions as they relate to Affirmative Action Notice Postings unless exempted by rules, regulations, or orders established by the United States Department of Labor: Executive Order No. 11246, 202; 41 CFR 60-1.42; 209-212; and The Vietnam-Era Veteran’s Readjustment Assistance Act of 1974 38 USC 4211-4214; 41 CFR 60-250.4(k); 41 CFR 60-250.5; 41 CRF 60-250.44(a); and the Rehabilitation Act of 1973 29 USC 701-796L; 29 USC 793; 41 CFR 60-741.4; 41 CFR 60-741.44(a); 41 CFR 60-741.5; and 29 USC 793.
- TERMINATION. 5TH AXIS may terminate this Agreement upon written notice to Seller, if Seller fails to perform or otherwise breaches this Agreement, files a petition in bankruptcy, becomes insolvent, or dissolves. 5TH AXIS may terminate this Agreement for any other reason upon thirty (30) days’ written notice to Seller. Seller shall cease to perform Services and/or provide Goods under this Agreement on the date of termination specified in such notice. In the event of such termination, 5TH AXIS shall be liable to Seller only for those Services satisfactorily performed and those conforming Goods delivered to 5TH AXIS through the date of termination, less appropriate offsets. Seller may terminate this Agreement upon written notice to 5TH AXIS if 5TH AXIS fails to pay Seller within sixty (60) days after Seller notifies 5TH AXIS in writing that payment is past due.
- REMEDIES. If Seller breaches this Agreement, 5TH AXIS shall have all remedies available by law and at equity. For the purchase of Goods, Seller’s sole remedy in the event of breach of this Agreement by 5TH AXIS shall be the right to recover damages in the amount equal to the difference between market price at the time of breach and the purchase price specified in the Agreement. No alternate method of measuring damages shall apply to this transaction. Seller also acknowledges that the obligations and promises of Seller under this Agreement are of a unique in nature giving them particular value. Seller’s breach of any of the promises contained in this Agreement will result in irreparable and continuing damage to 5TH AXIS for which there will be no adequate remedy at law and, in the event of such breach, 5TH AXIS will be entitled to seek injunctive relief, or a decree of specific performance.
- ATTORNEYS’ FEES. In any action to enforce this Agreement, the prevailing party shall be entitled to recover all court costs and expenses and reasonable attorneys’ fees, in addition to any other relief to which it may be entitled.
- SEVERABILITY. If any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL 5TH AXIS BE LIABLE TO SELLER OR SELLER’S ASSISTANTS, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT 5TH AXIS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
- ASSIGNMENT; WAIVER. Seller may not assign this Agreement or any of its rights or obligations under this Agreement, without the prior written consent of 5TH AXIS. Any assignment or transfer without such written consent shall be null and void. A waiver of any default hereunder or of any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
17 NOTICES. All notices including Purchase Orders and other communications hereunder shall be in writing, and shall be addressed to Seller or to an authorized 5TH AXIS representative, and shall be considered given when (a) delivered personally, (b) sent by confirmed telex or facsimile, (c) sent by commercial overnight courier with written verification receipt, or (d) three (3) days after having been sent, postage prepaid, by first class or certified mail.
- GOVERNING LAW. This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of the State of California. The Superior Court of the County of San Diego or the United States District Court for the Southern District of California shall have jurisdiction and venue over all controversies arising out of this Agreement.
- ENTIRE AGREEMENT; MODIFICATION. This Agreement is the complete and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous agreements, whether oral or written, between them relating to the subject matter hereof. This Agreement may not be varied, modified, altered, or amended except in writing, including a purchase order or a change order issued by 5TH AXIS, signed by the parties. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Seller.