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.