A.
Q4 shall sell and the Buyer shall purchase the
Goods and/or Services in accordance with Q4’s written
Quotation, which is accepted by the Buyer or any written
order of the Buyer which is accepted by Q4, subject in
either case to these Conditions.
B.
A Quotation is not an offer and may be withdrawn
without notice and an order given in respect of a
Quotation is not binding on Q4 until accepted by the
Seller.
C.
The quantity, quality and description of any
specification for the Goods and / or Services shall be
those set forth in Q4’s Quotation or similar such
documentation.
D.
Goods and Services will be produced in accordance
with best commercial practice. In the event the
Quotation is requested in support of a Government prime
contract, Q4 SERVICES LLC will accept only those
applicable commercial terms and conditions as defined in
FAR 52.212-15.
E.
Packaging and shipping will be in accordance with
commercial standards. Delivery is FOB Origin with title
and liability for the Goods passed to Buyer upon
shipment.
F.
All payments shall not be later than net 30 days
from receipt of invoice. In the event payment is not
received on or before the due date listed on invoice for
payment. Then, without prejudice to any other right or
remedy available to Q4, Q4 shall be entitled to:
(a)
cancel the Contract or suspend any further
deliveries to the Buyer; and
(b) charge the Buyer
interest retroactively on the amount unpaid from the
day on which payment was due at a rate of interest
of 1% per annum.
G.
If the Buyer fails to take delivery of the Goods
or to permit performance of the Services or fails to
give Q4 adequate delivery instructions at the time
stated for delivery (other than by reason of any cause
beyond the Buyer’s reasonable control) then, without
prejudice to any other right or remedy available to Q4,
Q4 may:
(a)
store the Goods until actual delivery and
charge the Buyer for the reasonable costs (including
insurance) of storage; or
(b)
Invoice the Buyer for all Q4 costs
additionally incurred as a result of the delay in
the performance of the Services.
H.
Q4 shall not be liable to the Buyer or be deemed
to be in breach of the Contract for any delay in
performance, or any failure to perform, any of Q4’s
obligations in relation to the Goods and/or Services, if
the delay or failure was due to any cause beyond Q4’s’
reasonable control, including, but not limited to,
(a)
Act of God or natural disaster, including,
but not limited to explosion, flood, tempest, fire
or accident;
(b)
war or threat of war, terrorism, sabotage,
insurrection, civil disturbance or requisition;
(c)
acts, restrictions, regulations, by-laws,
prohibitions or measures of any kind on the part of
any government
(d)
import or export regulations or embargoes;
(e)
strikes, lock-outs, or other industrial
actions or trade disputes (whether involving
employees of Q4 or of a third party).
I.
No order which has been accepted by Q4 may be
cancelled by the Buyer except with an agreement in
writing to Q4 and on terms that the Buyer shall
indemnify Q4 in full against all loss (including loss of
profit), costs (including the cost of all labor and
materials used), damages, charges and expenses incurred
by Q4 as a result of cancellation.
J.
Warranty will vary according to the type of
product or service provided. Item-specific warranty
will be referenced by Q4 on the applicable Quotation,
Statement of Work, Packing Slip and/or Invoice. No
reference to the warranty indicates that there is no
warranty. Any warranty listed on the Quotation,
Statement of Work, Packing Slip and/or invoice is
subject to the following conditions:
(a)
Q4 shall be under no liability in respect of
any defect arising from fair wear and tear, willful
damage, negligence, abnormal working conditions,
misuse or alteration or repair of the Goods and / or
performance of the Services without Q4’s approval;
(b)
*The above Warranty does not extend to parts,
materials or equipment not manufactured, repaired
and/or refurbished by Q4 (including the metallized
film used in reskinning simulator mirrors) or
software not proprietary to Q4, in respect of which
the Buyer shall only be entitled to the benefit of
any such warranty or guarantee as is given by the
manufacturer or software proprietor to Q4.
(c)
Q4 shall be under no liability under the
above Warranty (or any other warranty, condition or
guarantee) if the total price for the Goods and / or
Services has not been paid by the due date for
payment.
(d)
Warranty seal affixed to item shall not be
tampered with or removed, unless agreed upon, in
writing, by an Officer of Q4.
Q4 shall remedy any defect or nonconformity
from faulty materials or workmanship provided the
Buyer notifies Q4 of the defect in writing prior to
the expiration of the warranty period defined above.
Q4 shall be entitled to replace the Goods (or the
part in question) or carry out remedial work in
respect of the defective performance of any Services
free of charge, or at Q4’s sole discretion, refund
the Buyer the price of the Goods and / or Services
(or a proportionate part of the price), but Q4 shall
have no further liability to the Buyer.
In any event and notwithstanding anything contained
in this Contract, in no circumstances shall Q4 be
liable, in contract, tort (including negligence or
breach of statutory duty) or otherwise, howsoever
and whatever the cause thereof for; any loss of
profit, business, contracts, revenues or anticipated
savings, or for any special, indirect or
consequential damages of any mature whatsoever.In
any event and notwithstanding anything contained in
this Contract, the total maximum cumulative
liability of Q4 arising by reason of or in
connection with this Contract shall be limited to
the price of the relevant Goods and/or Services
supplied under the provisions of the Contract.
K.
No rights in intellectual and industrial property
(which without prejudice to the generality of the
foregoing shall include patents, registered designs,
trade marks and copyrights) are hereby granted by Q4 to
the Buyer nor shall such rights be deemed or granted.
The Buyer shall keep confidential all software,
drawings, technical information, data, diagrams and
documents provided by Q4 whether of a commercial or
technical nature and the Buyer shall use the same only
for the purpose of the Contract and the operation
calibration and maintenance of the Goods in respect of
which they were supplied and shall not disclose or
permit disclosure to any third party without the prior
written consent of Q4. The Buyer shall not without the
prior written consent of Q4 copy or permit any third
party to copy the aforementioned supplied for uses with
the Goods or any part or parts thereof.
Buyer may disclose
intellectual and industrial property of Q4 to its
subcontractors and customers as required for the
performance of the relevant order, provided that each
first agrees in writing to the same obligations imposed
upon Buyer under this clause relating to intellectual
and industrial property. Buyer shall be liable to Q4
for any breach of such obligation. The provisions of
this clause are effective in lieu of any restrictive
legends or notices applied to intellectual and
industrial property. The provisions of this article
shall survive the performance, completion, termination,
or cancellation of this Contract. Information disclosed
hereunder shall be considered “Proprietary Information”
and subject to the terms and conditions of this contract
if:
(a) With respect to
information which is in written form, the
information is conspicuously marked with astamp or
legend identifying it as “Proprietary” or
“Confidential” or with a substantially equivalent
designation, or subsequently confirmed as being
Proprietary Information in a written communication
to the Buyer
(b) With respect to
information which is in non-written form, the
information is orally or otherwise identified to the
Buyer as being Proprietary Information at the time
it is disclosed and subsequently confirmed as being
Proprietary Information in a written communication
to the Buyer.
The foregoing
restrictions imposed by this Contract upon use and
disclosure of Proprietary Information shall not apply
with respect to information that:
(a)
is or becomes available to the Buyer without
restriction form another source that does not
violate any obligation to Q4; or
(b)
which at the time of disclosure is readily
available to the trade or the public;
(c)
which Buyer can establish, by documented and
competent evidence, was in its possession prior to
the date of disclosure of such Information by Q4; or
(d)
is developed by the Buyer completely
independently of the access provided by Q4 to the
Proprietary Information; or
(e)
is disclosed or produced in accordance with
an order of a court or governmental agency of
competent jurisdiction, provided that Q4 is first
given every available opportunity to challenge,
appeal or seek modification to such order.
Due to the valuable and
proprietary nature of the Information from Q4, the
obligations assumed by the Buyer hereunder shall
(a) be unlimited
in time or territory or
(b) if it is
held by a court of competent jurisdiction that this
provision is illegal, invalid or unenforceable,
shall apply only within those territories within
which Q4 then carries on business and only up to 10
years after disclosure of such Information. When
requested by Discloser, Recipient will promptly
provide a list containing the full name and address
of any person having access to or copies of the
Information and the reason such access is necessary.
L. This Contract
may not be assigned by the Buyer without the prior
written consent of Q4 Services.
M. If any provision
of this Contract is held to be invalid or unenforceable
in whole or in part, such invalidity or unenforceability
shall attach only to such provision or part thereof and
remaining part of such provision and all other
provisions hereof shall continue in full force and
effect.
N.
This Contract shall be governed by and
interpreted in accordance with law of Florida. All
disputes between the Parties in connection with or
arising out of the existence, validity, performance or
termination of this Contract (or any terms thereof),
which the Parties are unable to resolve between
themselves, shall be finally resolved by arbitration
under the rules of Commercial Arbitration of the
American Arbitration Association by a panel of one or
more neutral arbitrator(s), and judgment upon the award
rendered by the arbitrator shall be final and may be
entered in any court of competent jurisdiction. The
arbitration shall be held in the State of Florida.
