Continental Optronics LLC
Standard Terms of Sale and Delivery (Domestic)

§1. Applicability 

In the absence of any specific written agreement to the contrary between the parties, the standard terms of sale and delivery presented below shall apply to all sales of products and services by Continental Optronics LLC, a Delaware limited liability company (the “company”), to any purchaser.

§ 2. Drawings and descriptions

All information concerning weight, dimensions, capacity, technical and technological data, etc. as well as prices listed in catalogues, advertisements, photographic material, price lists and the like is approximate. Such information shall only be considered binding in the event that such is expressly stated in the confirmation of order issued by the company or in any form of written agreement signed by the company.

§3. Prices

The company shall be entitled to change its prices at any time without advance notice. All sales shall be made in United States Dollars using the prices for products quoted by the company and confirmed in writing.   Prices quoted are ex-works from the company’s facility, and are for products and standard packaging only and are exclusive of all installation, warehousing or other services or requests, and exclusive of all tariffs, duties, sales taxes, use taxes, regional taxes and fees and like levies or taxes.   Any taxes, fees or duties which the company may be required to pay or collect relating to the sale, delivery, processing, use or transportation of the products shall be for the account of the purchaser who shall promptly reimburse the company on demand. Prices quoted are open for the time stated in the quote or a maximum of thirty (30) days from the quotation date and are based on estimated quantities, labor and material requirements and other factors, and are subject to adjustment by the company from time to time. 

§4. Delivery

Delivery is ex-works from the company’s facility. Risk of loss for the products passes to the purchaser at the time of delivery by the company to the freight carrier at the point of shipment.  The shipment will be sent at the risk and the expense of the purchaser, and the company has no liability and shall not accept responsibility for loss or damage occurring in transit. Unless the company has received specific instructions in advance, the company shall be entitled to select the means of transport and delivery route. The purchaser assumes the responsibility to obtain adequate insurance on each shipment.

§ 5. Freight policy

Unless otherwise agreed in writing, all transportation costs are the sole responsibility of the purchaser.

§ 6. Delivery times

The delivery time quoted is approximate, with reservations for delays on account of Force Majeure Events (as defined below). Should any Force Majeure Event occur, delivery times will be postponed for a period equivalent to the duration of the event(s) in question. Deliveries made on the postponed delivery date shall in all respects be considered to have been made on time.  Insofar as the delivery time may be stated as specific number of days or weeks, this period shall be calculated from the time when the company received from the purchaser all information required to implement the order. Insofar as the purchaser may fail to meet any payment obligations by or on the due dates of same, the delivery time shall be postponed for a period equivalent to the duration in the delay of the payment in question.  Insofar as delays arise for reasons other than those mentioned above, such shall not entitle the purchaser to cancel any order either fully or in part unless the delay in question can be considered significant and the company fails to complete the delivery no later than fourteen days after having been notified to do so in writing by the purchaser. The company reserves the right to delay shipment of verbal orders until it receives a written confirmation of the order.

§7. Purchase Orders; Confirmations of Orders

 By issuing a purchase order to the company or otherwise purchasing products or services from the company, the purchaser accepts these terms and conditions as applicable therein.  Any blanket replacement by the purchaser’s terms and conditions is hereby rejected, and in the event of any inconsistency between the terms and conditions hereof and the purchase order, the terms and conditions hereof shall prevail in all instances. Purchase orders shall be deemed irrevocable by purchaser for the items ordered therein, unless mutually agreed in writing otherwise; provided that purchase orders shall not be binding on the company until purchaser has received a written confirmation of order from the company.  Purchaser agrees that, except for product specifications, shipping schedules, delivery dates, quantity requirements, and addresses and contact information set forth in purchase orders, all other terms, conditions and requirements in purchase orders shall be null and void and of no effect.   

§ 8. Payment

All payments for products will be paid in full in advance of delivery until credit is established.  Payment shall be made in United States Dollars on or before the date stated on the invoice. In the event that no such date is stated on the invoice, the sum owing shall be paid in cash on delivery. Upon written approval by the company's credit department, invoices may be due thirty (30) days from the date of invoice or on such other terms as approved by the company’s credit department in writing.  The credit department may decline at any time to permit shipment of products hereunder until receipt of payment or written agreement upon terms and conditions satisfactory to the credit department in its sole discretion.  Payments shall be due on a pro rata basis in the case partial shipments are made by the company; provided that, delays in the delivery of a non-significant part of the shipment shall not entitle the purchaser to refrain from paying the full amount owing pursuant to the agreements reached.  Should the purchaser fail to make payment on time, in addition to collection costs, the company shall be entitled to charge interest on the sum owing at the lesser of (a) 1.5 percent (1.5%) per month, or (b) the maximum percentage then permitted by law, in either case on the balance remaining from the time of delivery until such time as payment may be made.  If the company retains a third party to collect overdue amounts, all collection costs resulting from such retainer, including, without limitation, legal fees and disbursements, shall be payable upon demand by the purchaser to the company. 

In the event that the purchaser fails to accept or permit delivery on time for products that are to be delivered at a specific time, the company can choose to either sell such products at the purchaser’s expense, having notified the purchaser of its intention to do so, or to store the products at the purchaser’s expense such that the purchaser is required to pay all costs linked to the period of storage. Irrespective of any delays in delivery, the purchaser is in all events obliged to make the stipulated payment on or by the applicable due date. The purchaser bears the full risk and cost for any items placed in storage.

 § 9. Inspection

 The purchaser is encouraged, immediately upon reception of the items purchased, to carry out an inspection of the products received with good business practice. The purchaser shall have no right to inspect any products prior to delivery unless permitted to do so by the company in its discretion, and any inspection of the products by the purchaser shall be made within seven (7) days after their arrival at the purchaser's receiving point.  Failure to make inspection and provide the company with written notice specifying any claimed basis for rejection within that time will constitute deemed acceptance of the products and, if the purchaser has established credit terms, a final waiver of the right to make any inspection prior to full payment for all of the products. 

§ 10. Conditions of ownership

If payment is not made before or at time of delivery, title to all products at any time delivered to the purchaser and which have not been paid for in full shall remain with the company until all payments have been made in full, and the purchaser hereby grants to the company a security interest (including without limitation, a purchase money security interest) in such products at any time delivered by the company to the purchaser, and in all replacements and substitutions thereof, all additions and accessories thereto, and all proceeds thereof, to secure payment of the purchase price of all products, any collection costs, and any other debts owing to the company by the purchaser, and interest thereon.  The company and the purchaser agree that the security interest granted hereunder attaches upon the issuance of the purchaser order by the purchaser to the company.  The purchaser agrees to do all acts necessary to perfect and maintain such right, title and security interest in the company.  The purchaser, at its expense, shall fully insure the products against all perils until the company has been paid in full.

§ 11. Changes to design or product offering

The company reserves the right, prior to delivery and without notifying the purchaser in advance, to carry out such alterations to the design, construction, etc. of its products as the company may deem necessary in its discretion.  Such alterations shall only entitle the purchaser to cancel an unfulfilled purchase order insofar as the purchaser proves that the purchase was conditional upon a specific design, construction or similar requirement.  Changes made and any resultant cancellation of the purchase order does not entitle the purchaser to any form of compensation or damages, or to a proportional discount in the purchase price. The company reserves the right to discontinue products, product components or spare parts at any time for any or no reason.

§12. Confidentiality

The purchaser agrees to protect and hold in strict confidence all trade secrets, proprietary and confidential information relating to the products or the company of which it has or gains knowledge.  All drawings, designs, estimates, descriptions and other material of the company made available on the issuing of offers or deliveries are and shall remain the sole property of the company and may not, in the absence of express permission in writing from the company, be copied, presented to other companies or used as the basis for performing work. Drawings and other materials that the company has prepared for use in connection with offers are to be returned or destroyed on request. 

§ 13. Packaging 

Products will be shipped in standard packaging designated and supplied by the company from time to time in its discretion, which may vary depending on whether the shipment is made by air or ship or other common carrier. Product containers shall be accompanied by such packing slips, and/or any other documents and materials as deemed necessary by the company.  Custom packaging will only be available at the purchaser’s expense pursuant to a written agreement, and the company is not responsible for charges associated with overseas containers, containerizing or packaging for long-term storage, pier handling, marshalling, demurrage, lighterage, heavy lifts and the like.  Boxes and/or other packaging returned will not be credited and will only be accepted on the basis of a written agreement.

§ 14. Returns

Products which are normally stocked by the company for sale (specifically excluding any custom products or products using or integrating purchaser’s equipment) ordered in error may be returned, at the purchaser’s expense, within thirty (30) days of delivery for credit, less an amount equal to 25% of the original purchase price, representing a restocking charge.  No product is to be returned to the company by the purchaser without the prior written consent, acceptance and authorization of the company via electronic mail or facsimile, and all returns require a return authorization number which must be obtained from the company and included on all shipping paperwork.  The company shall have no liability for products damaged in shipment.  To apply for permission to return products, the purchaser must first contact the company in writing with its request and for further instructions. 

§15. Company warranty policy

The company’s standard limited warranty as in existence at time of product delivery is accepted in its entirety by the purchaser as the sole warranty relating to the products, and is incorporated herein and made a part of these terms and conditions by this reference.

§ 16. Product liability

The purchaser shall at all times indemnify, defend and hold the company and its present and former directors, officers, employees agents and affiliates (collectively, “indemnitees”) harmless against all allegations, claims, proceedings, demands and liabilities of any kind whatsoever, including reasonable legal expenses and attorneys’ fees, arising out of the death of or injury to any person or persons or out of any damage to property, resulting from or relating to the use, modification, alteration, repair or resale of the purchaser’s products.  The purchaser shall obtain and carry in full force and effect at all times commercial, general liability insurance which shall protect the purchaser and the indemnitees from all such claims.  Such insurance shall be written by a reputable insurance company and shall be endorsed to include product liability coverage, and shall contain limits not less than those necessary to adequate insure for all such potential claims.  The purchaser shall, upon request, provide the company with certificates of insurance from the insurance carrier evidencing the foregoing insurance coverage.

§ 17. Product information advice liability

Absent the existence of a specific written agreement to the contrary, any product information, technical advice, consulting or other informational assistance furnished by the company relating in any manner to its products shall be furnished without additional charge and will be given and accepted at the purchaser’s sole risk.  The company has no obligation to provide any information or assistance prior to receipt of the full purchase price from the purchaser for the products. The company will have no liability for damages, loss or expense arising out of the provision of information or assistance or any act or omission, including negligence, by the company or its agents. Notwithstanding the foregoing, in the limited circumstance where the company has supplied separate, non-standard written advice to the purchaser in the form of the preparation of specific, customized written calculations or in the form of a specific, customized written statement concerning the suitability of the items sold for a specified purpose issued to a purchaser who cannot reasonably be considered to possess the requisite professional knowledge of the area to be able to evaluate the suitability of the items without assistance, then the company shall accept limited liability only if the advice provided can be considered indefensible in relation to the knowledge the company possessed regarding the object of the advice at the time same was given. The company shall accept no liability for statements if it has been made clear that such statements are based on an approximate evaluation or estimation.   Should errors be discovered in the written advice supplied by the company in connection with the delivery from the company, the purchaser shall, without undue delay and immediately after the purchaser has or should have become aware of the presence of the errors, inform the company of same. Should this provision be ignored or waived, the company shall only pay compensation for such losses as may have arisen as a direct consequence of the incorrect advice from the company at the time at which the purchaser should have informed the company.

In no event shall the liability of the company for losses incurred as a result of incorrect information or advice exceed the obligation to repair or replace the product in question with like product, and in no event shall the company be liable to purchaser for any amounts in excess of the purchase price paid for the individual product which is the subject of the cause of action.  The liability of the company for losses incurred as a result of errors in information or advice shall lapse no later than one (1) year after the items to which the information or advice is linked have been delivered.

§ 18. Intellectual Property Ownership

Unless otherwise mutually agreed in writing, the design, development or manufacture by the company of products or services for purchaser shall not be deemed to create a “work made for hire” and shall not give to purchaser any patent, copyright or any other intellectual property right interest in the products or services, or any portion thereof.  All such rights shall remain the sole property of the company.  Unless otherwise agreed in writing, all tooling, fixtures, test equipment, models, patterns, product designs, molds, manufacturing processes, processing software and technology, and proprietary information of the company, whether or not made for, obtained, created, or developed by the company for the performance of purchaser’s order, shall remain the sole property of the company.

§ 19. Limitation on liability

THE COMPANY SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE OR OTHER BREACH OF THESE TERMS AND CONDITIONS AND IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED ON CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL THE COMPANY'S LIABILITY TO THE PURCHASER EXCEED THE PURCHASE PRICE PAID FOR THE INDIVIDUAL PRODUCT WHICH IS THE SUBJECT OF THE CAUSE OF ACTION.  IN NO EVENT SHALL THE COMPANY'S LIABILITY TO THE PURCHASER EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES. The term "consequential damages" shall include, but not be limited to, loss of anticipated profits, operating losses, business interruption, loss of use or revenue, cost of capital, fines or other indirect losses, or loss or damage to property or equipment.

§ 20. Governing law and venue

These terms and conditions shall be governed by, interpreted under, and construed and enforced in accordance with the internal laws of the State of California, U.S.A. applicable to agreements made and to be performed wholly within the State of California, U.S.A., including without limitation the California Uniform Commercial Code and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods and INCOTERMS 2000.  In the event a judicial proceeding is necessary, the sole forum for resolving disputes arising under or relating in any manner to these terms and conditions and any purchase order are the state or federal district courts located in the County of Orange, State of California, U.S.A. and all related appellate courts, and the parties hereby consent to the jurisdiction of such courts, and that venue shall be in County of Orange, State of California, U.S.A.  Each party hereto waives any right to challenge or move the foregoing designated jurisdictions and venue on grounds of inconvenient forum.  Service of process may be made in any manner provided for by applicable law and if the purchaser is not otherwise subject to service of process in the State of California, U.S.A., the purchaser agrees to and does hereby irrevocably appoint the Secretary of State of the State of California, U.S.A. as the purchaser's agent for the acceptance of service of process, and a copy of such process shall be mailed by the company to the purchaser at purchaser’s last known address.   These terms and conditions are binding upon and enure to the benefit of the parties hereto and their respective heirs, executors, successors and permitted assigns, as the case may be.  Except with the prior written approval of the company, the purchaser may not assign a purchaser order or the terms and conditions applicable to it.  If any provision contained herein is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision and all other provisions shall remain in full force and effect. 

§ 21. Force majeure 

The company shall not be liable for any delay in performance, shipment or delivery or inability to provide the purchaser with any products or spare parts due to causes beyond its reasonable control, including, without limitation, strikes, lock-outs, riots, wars, terrorism, mobilization, impoundment, currency restrictions, obstacles to transport, restrictions on fuel or materials, weather, fire, flood, earthquake, pandemic, epidemic, other Acts of God, governmental order or regulation, missing or incomplete or late deliveries from suppliers or subcontractors, loss of electricity, and acts of the purchaser or any other such causes beyond the control of the company (collectively, “Force Majeure Events”).    Performance, shipment and/or delivery shall be deemed to be suspended for so long as performance of the same is delayed due to causes beyond the company’s reasonable control, and the purchaser agrees to accept deliveries whenever such causes have been remedied in accordance with the terms of the “Delivery times” section above.  

§ 22. Publicity

The purchaser shall not make or authorize any news release, advertisement or other disclosure which directly or indirectly identifies the company as the source of products without the prior written consent of the company in each instance.

§ 23. Compliance with laws

All transactions hereunder shall at all times be subject to and conditioned upon compliance with all applicable laws, such as export control laws and regulations, including those of the country from which products are shipped and those of the U.S. Government, which includes without limitation International Traffic in Arms Regulations (Title 22 U.S.C. 2778) (ITAR). The purchaser agrees that it shall not, except as said laws and regulations may expressly permit, make any disposition by way of transshipment, re-export, diversion or otherwise, of U.S. origin goods and technical data (including computer software), or the direct product thereof, supplied by the company hereunder. The obligations of the parties to comply with all applicable export control laws and regulations shall survive any termination, or discharge of any other contract obligations.  The purchaser undertakes to keep itself fully informed of, and to comply with, the applicable export control laws and regulations, including those of the U.S. Government, such as ITAR, and any amendments thereof.  Notwithstanding any other provisions herein, the purchaser shall be responsible for timely obtaining any required authorization, such as an export license, import license, foreign exchange permit, work permit or any other governmental authorization, even though any such authorization may be applied for by the company. The parties shall provide each other reasonable assistance in obtaining required authorizations.  The company shall not be liable if any authorization is delayed, denied, revoked, restricted or not renewed, and the purchaser shall not be relieved thereby of its obligations to pay the company for its products or services or any other charges which are the obligation of the purchaser hereunder.  The purchaser certifies that the products, materials, services, technical data, software or other information or assistance furnished by the company will not be (a) used by any individual or entity listed as a prohibited party on any list of the U.S. Government or foreign country of prohibited or denied parties, (b) sent to any party in a country listed as a prohibited country by the U.S. Government or any foreign country, or (c) used in the design, development, production, stockpiling or use of chemical, biological, or nuclear weapons either by the purchaser or by any entity acting on the purchaser’s behalf.

Effective Date:  November 1, 2021