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Asia - Terms & Conditions for Sales and Service

NORTHROP GRUMMAN SPERRY MARINE ASIA INC., HONG KONG BRANCH
General Terms & Conditions of Sale & Service Work Effective from 1st April 2014 NGSM Asia Inc./GTS Rev. 1
 

Sales and Purchases

1.1    In these general terms of sale the following designations are used: “Sperry Marine” refers to Northrop Grumman Sperry Marine Asia Inc., Hong Kong Branch. “Buyer” refers to the natural person or corporate body making or accepting an offer or otherwise entering into a legal relationship with Sperry Marine whereby Sperry Marine supplies goods (“Products”) and/or services (“Service Work”) to Buyer as they are described in the offer or in the order acceptance.

1.2    These general terms of sale shall be applicable exclusively to all offers and order acceptances by Sperry Marine and to all engagements of Sperry Marine for the sale and supply of Products by Sperry Marine and to all Service Work and the words “this Agreement” herein shall apply to all such agreements based on these terms.

1.3    Deviations from, changes and/or supplements to these general terms of sale will only be valid and binding if and in so far as these have been explicitly accepted by Sperry Marine in writing.

1.4    An agreement is effected at the moment when Sperry Marine has accepted the order in writing.

1.5    In each case the Agreement is concluded under the condition precedent that Buyer is creditworthy, as is to be determined by Sperry Marine in its exclusive discretion.
 

Offers, Contents of the Agreement

2.1    All offers of Sperry Marine are without obligation, particularly as regards price, quantity, time of delivery and possibilities of delivery, and can be revoked by Sperry Marine at all times. Offers of which Sperry Marine has not received a written acceptance within 60 days after the relevant date shall be cancelled automatically. Orders placed by buyer are only accepted by Sperry Marine in written format.

2.2    Representations made by employees of Sperry Marine or by third parties cannot be relied upon or invoked by Buyer, unless these have been confirmed by an authorized representative of Sperry Marine in writing.

2.3    Samples or models of Products shown or provided shall only serve the purpose of supplying information, which the product sold need not comply with in all details.

2.4    Sperry Marine may without need for Buyer’s consent introduce improvements and alterations to the Products, provided that such improvements and alterations do not fundamentally change the ordered Product in form, fit or function.
 

Prices

3.1    Unless otherwise expressly agreed upon in writing, prices shall apply as they have been published by Sperry Marine at the moment of delivery of the Products.

3.2    All prices quoted in offers and order acceptances are based on delivery FCA (Incoterms 2010), and exclusive of any other taxes and charges in effect at the date of quotation and applicable to the Products. Unless appropriate exemption certificates are furnished, the amount of all such present and future taxes and charges shall be charged to Buyer and added to the invoice.

3.3    If at the request of Buyer changes in or supplements to the Agreement are executed, the price will be increased in accordance with the Sperry Marine hourly rates and product list prices then in effect at the moment of execution.   

3.4    The minimum order value which is applicable to all sales of products, spare parts and services, is      HK $ 2,500.00 (HK$ TWO THOUSAN FIVE HUNDRED). In the event that an order does not reach this amount, Sperry Marine in its sole discretion is entitled to invoice the difference as an additional lumpsum to reach the minimum order value.
 

Delivery and Transport

4.1    Times of delivery are invariably stated as approximations, even if this has not been mentioned explicitly, and are deemed to commence at the date on which Sperry Marine has accepted the order of Buyer, or where required the date an export license is granted, or at such later date as provided hereafter in this article. The dates of dispatch are deemed to have been based on immediate receipt of all the information to be provided by Buyer necessary for Sperry Marine to process the order and, in the event of export dispatches, they also depend on receipt of all required official export documents and licenses required. Sperry Marine will endeavor to comply with the stated time of delivery. Buyer shall be obliged to accept delivery of shipments, immediately upon being notified of such by Sperry Marine. If the time of delivery which has been stated as an approximation is inordinately exceeded in relation to all or a portion of the order, Buyer shall be entitled to terminate that portion of the Agreement affected by the delay.
Buyer cannot, however, exercise this right prior to first consulting with Sperry Marine. Sperry Marine shall not be liable for damages of any nature or kind, including indirect, liquidated or consequential damages in the event the Agreement is so terminated.

4.2    Unless otherwise agreed upon, all deliveries are FCA (Incoterms 2010) and after delivery the Products shall be at the risk of Buyer, including those cases in which transport has been arranged by Sperry Marine and in which at the carrier’s demand the transport document stipulates that transport shall be at the risk of Sperry Marine. Sperry Marine reserves the right to determine the means of conveyance and the route of transport, unless Buyer gives express written instructions accepted by Sperry Marine.

4.3    Any costs incurred by Sperry Marine (including storage costs) ensuing from delay on the part of Buyer in accepting delivery or in his compliance with the requirements of article 6, shall be paid by Buyer.

4.4    Sperry Marine is entitled to make partial deliveries and in that case Sperry Marine may send Buyer a separate invoice for each partial delivery and demand payment therefore.
 

Cancellation

5.1     Buyer may cancel its order only with the prior written consent of Sperry Marine, which consent shall be entirely at Sperry Marine’s discretion. In the event of such a cancellation, Buyer shall pay Sperry Marine an amount equal to the total of the following amounts:

(a)    the contract price for any completed work not already paid ; and
(b)     all costs incurred by Sperry Marine in performance of the order and allocable thereto including, without limitation, overhead and general and administrative expense, exclusive of any cost attributable to completed work under (a); and
(c)     to the extent not already included under (a), a sum for lost profits equal to 15% of the contract price of the cancelled part of the order, or such higher amount of lost profits as Sperry Marine can reasonably demonstrate it has incurred by accepting the cancellation; and
(d)     to the extent not already covered by (a) and (b), an amount equal to the costs of settling and paying any claims arising out of the cancelling of work under any subcontracts or purchase orders.

5.2    Without prejudice to any other right or remedy which Sperry Marine may have, in the event that Buyer cancels the order without the prior written consent of Sperry Marine, Sperry Marine shall be entitled to compensation for all loss or damage thereby incurred, including any loss of profit, or to demand specific performance.
 

Inspection and Service

6.1    During the warranty period referred to in article 10, Sperry Marine shall at its discretion be entitled at its cost, to inspect any installed Products.

6.2    If Buyer should request an inspection of the Products by Sperry Marine or its authorized service representatives, either during the warranty period or after expiry thereof, or if Buyer should request repairs, “Service Work” which Sperry Marine is not obliged to execute pursuant to its obligations by virtue of article 10, this inspection or Service Work, if agreed upon by Sperry Marine, will be executed at the hourly rate applicable to the district from which the service personnel travels. In addition, Sperry Marine may charge for the actual travelling and accommodation expenses of such personnel, and for their travelling time at the rates applicable, as defined above. If Service Work is required outside regular working hours, Buyer shall pay these extra hours at the hourly rate for overtime applicable in the district of the Sperry Marine service personnel provided.

6.3    Publications in which Sperry Marine has indicated in which places service stations are to be found are for information purposes only and Sperry Marine is not liable to retain such service stations.
 

Terms of Payment

7.1    Unless expressly otherwise agreed upon in writing, full payment in the invoiced currency shall be made by Buyer not later than within 30 days after the invoice  (or billing for orders based in Hong Kong)  date, by means of payment into the bank and/or giro account stipulated by Sperry Marine, without any suspension, set-off, deduction or discount. All costs incurred in connection with payment of the invoice (or billing for orders based in Hong Kong) shall be at the expense of Buyer. Buyer may only submit a written notice of objection against the invoice (or billing for orders based in Hong Kong) within the term set out therein.

7.2    Without prejudice to any other rights of Sperry Marine, Buyer shall be in default without any further notice thereof being required, if he exceeds the aforesaid term of payment of 30 days. From such moment, Buyer shall owe interest at 1.5% a month compounded on the amount still outstanding. For the calculation of the amount payable due to interest parts of months shall apply as whole months. All judicial or extrajudicial costs including all legal and professional fees (on an indemnity basis) and all court costs incurred with respect to collection of the debt shall be at the expense of Buyer.

7.3    At any time Sperry Marine shall be entitled to demand reasonable security (or, as the case may be, additional security) from Buyer for the payment of the Products and/or to suspend deliveries, until the security demanded has been provided.

7.4    If Buyer:

(a)    fails to comply with any obligation towards Sperry Marine pursuant to the Agreement; and/or
(b)    is unable to pay its debts, has a petition for bankruptcy filed against it, has a petition filed against it (or passes a resolution) for its winding up or for the appointment of an administrator or a receiver or applies for or is granted a payment moratorium or any similar events occur within the jurisdiction to which Buyer is subject; and/or
(c)    suffers any substantial change in his financial or business situation, Sperry Marine shall be entitled to suspend the performance of any still current agreements wholly or partly, and in such circumstances all outstanding claims shall become payable on demand. In this event, Sperry Marine is furthermore entitled to terminate any still current agreements wholly or partly without any further notice of default by written notice to Buyer. Buyer shall be liable for all damages suffered by Sperry Marine as a result of such termination.

Retention of Title

8.1    Sperry Marine shall retain title to the Products delivered or to be delivered until Buyer has complied with all its obligations under the Agreement including but not limited to:

(a)    payment in full of the price for the Products;
(b)     payment for any work performed on or in relation to the Products pursuant to the Agreement; and
(c)    payment of any claims against Buyer by Sperry Marine arising out of failure on the part of Buyer to comply with one or more of his obligations ensuing under any sales agreements with Sperry Marine.

8.2    As long as title to the Products has not passed to Buyer, Buyer shall not dispose of the Products or encumber them. Buyer is not permitted to attach the Products to other objects in such a manner that they cannot be easily removed. The Products shall be held separate from Buyer’s own goods and clearly marked as Sperry Marine’s property.

8.3    If Buyer does not comply with its payment obligations, or Sperry Marine considers that Buyer will not be able to comply with its payment obligations, Sperry Marine shall be irrevocably authorised by Buyer to gain access to Buyer’s business premises or the premises of a third party holding the goods on behalf of Buyer without prior notice, and to take all the necessary steps to recover the Products. Buyer is obliged to co-operate with Sperry Marine for this purpose.

8.4    Buyer is obliged to inform Sperry Marine without delay of the fact that third parties are claiming rights to the Products which are the property of Sperry Marine, as well as of Buyer’s bankruptcy or moratorium, or of an attachment. Buyer is obliged to inform this third party, official receiver, trustee or attaching creditor of Sperry Marine’s title with respect to these Products without delay.

8.5    Sperry Marine may request such financial information respecting the Buyer’s ability to pay for Product or Service Work as in its discretion it deems necessary. Failure to provide such information within fifteen (15) days of a written request shall entitle Sperry Marine to enter upon the Buyer’s premises or premises where the Products are held and take possession of them.
 

Complaints and Buyer’s obligation to inspect products

9.1    Buyer is obliged to inspect the Products carefully after delivery and to inform Sperry Marine of any discoverable defects. Any complaints with respect to the Products shall be notified to Sperry Marine in writing within 10 days after delivery of the Products. If Buyer reasonably demonstrates that it was not possible to discover the defect upon delivery, the complaint must be notified in writing within 8 days after the date on which the defect was discovered or could reasonably have been discovered, but in no event shall Buyer be entitled to reject the Products more than thirty (30) days after delivery.

9.2    After expiry of the dates mentioned in paragraph 9.1 Buyer is deemed to have accepted the Products and Products can no longer be rejected.

Warranty

10.1    Sperry Marine warrants that all Products manufactured by Sperry Marine or its subsidiaries or affiliates and sold by Sperry Marine to Buyer at the time of delivery will be free from material defects in material and workmanship under normal use and service when installed in accordance with the applicable Sperry Marine installation drawing, and Supervision of Installation (SOI) performed by a Sperry Marine Service Engineer (MSE) or any authorised service representative of Sperry Marine.

10.2    Unless otherwise stated, or any other compulsory warranty period required by the  regulations of Singapore in the event of contract dispute, for all Products sold as new, Sperry Marine’s obligation under the warranty shall be limited to defects as defined in article 10.1 above of which Sperry Marine is notified within twelve (12) months after the date that a Sperry Marine authorised service representative and Buyer representative sign a completed Commissioning Report (the “date of installation”) or twenty four (24) months after date of shipment, from Sperry Marine, whichever period shall first expire.

10.3    For Service Work (except where performed under warranty) the warranty period shall be thirty (30) days from the date of performance and completion of the Service Work. The warranty period for new spare parts shall be twelve (12) months after date of installation or shipment, whichever period shall first expire. The warranty for reconditioned items or items not sold as new shall be for a period of ninety (90) days after the date that a Sperry Marine authorised service representative and Buyer representative sign a completed Commissioning Report (the “date of installation”) or six (6) months after date of shipment, from Sperry Marine, whichever period shall first expire.

10.4    In case of Products sold but not manufactured by Sperry Marine or its subsidiaries or affiliates, Sperry Marine’s sole obligation shall be to extend to Buyer the manufacturer’s warranty, provided that Buyer complies with all applicable conditions of such warranty.

10.5    Sperry Marine’s warranty obligations shall in any event be limited to the replacement or repair (at Sperry Marine’s discretion) of any defective part. Replacement or repair of defective parts pursuant to this warranty shall be made at Sperry Marine’s expense at any city, town or port at which Sperry Marine regularly maintains qualified service personnel. The publishing of a list of service stations shall not imply any obligation upon Sperry Marine to maintain a regularly established service station on any of the locations specified in such list.

10.6    It shall sometimes be necessary for an engineer to travel to the service location to effect the warranty repair. Where Sperry Marine sends an engineer to the service location to effect the warranty repair, Buyer shall pay all travel expenses of the Sperry Marine engineer and Buyer shall pay the hourly rate for the engineer for any travel time in excess of a total of 4 hours round trip.

10.7    Defective Product or parts which are replaced under warranty shall be returned by Buyer at Buyer’s cost to Sperry Marine to be received by Sperry Marine at Sperry Marine’s warehouse no later than four weeks after the replacement has been installed and the respective commissioning report has been signed. Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine. Where the defective Product or parts are not received by Sperry Marine within four weeks, Buyer shall pay Sperry Marine the full list price of the relevant Product or part and Sperry Marine shall invoice Buyer accordingly.

10.8    Replacement and repair of a defective part shall be made where the Products are sent to a Sperry Marine establishment or to a service station appointed by Sperry Marine within the warranty period, provided that shipping costs, excluding import customs fees and duties, are prepaid by Buyer and the part is found defective after inspection at the establishment or service station.

10.9    No warranty shall be effective with respect to any Product that has been subjected to conditions beyond the limits of its specifications, or which has been physically damaged, or to which is attached any apparatus other than apparatus supplied by Sperry Marine for attachment or specifically approved for attachment by Sperry Marine in writing, nor does it apply to Products found to be defective due to abuse, lightning or other electrical discharge. Damages or failure of any product supplied by Sperry Marine caused due to incorrect set up or use is not covered under Sperry Marine’s warranty terms.
No warranty shall be effective if a defective product has been repaired or in any way worked on by anyone other than Sperry Marine personnel or an authorized Sperry Marine agent without Sperry Marine’s prior consent.

10.10 In the event of an unjustified warranty claim, including but not limited to instances where no fault is found or where the fault is not covered by the warranty set out in article 10.1, Buyer shall compensate Sperry Marine for any cost that it has incurred in responding to the claim.

10.11 For the avoidance of doubt, the warranty set out in these terms includes any software installed as standard within the Product and which is required for its proper operation. The warranty therefore covers the remedy of defects in the software only where this materially affects the use of the Product, and where the defects can be reproduced at any time. Updates of software to newer versions in case of obsolescence may be provided free of charge at Sperry Marine’s discretion. Software upgrades resulting in an enhancement of the system’s capabilities are not covered under warranty, and the cost of labour and material for any such upgrades where requested by Buyer and agreed to by Sperry Marine shall be paid by the Buyer.
Sperry Marine shall not be liable nor shall Sperry Marine provide any warranty for software, interfaces, etc. made available to the Buyer by Sperry Marine but produced by other manufacturers. Where possible warranty rights against a manufacturer concerned shall be transferred by Sperry Marine to the Buyer.

Sperry Marine does not warrant that the software will function without interruption or error, that all software defects can be eliminated and that the software will correspond to the Buyer’s requirements and will function without error in each configuration the Buyer selects, unless such configuration has been specified by Sperry Marine.
Sperry Marine accepts no liability hereunder for claims for loss of data and it is strongly recommended that the Buyer perform a data backup in a machine readable form at intervals adequate to the application concerned, but not later than at the end of the day on which the software was used, to better enable the restoration of data.

10.12 The foregoing provisions set forth Sperry Marine’s sole liability for breach of warranty in respect of, or for any defect or nonconformity in, any Product, and Sperry Marine shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above. All other warranties, whether express or implied, in contract, statute or at law, are, to the extent permissible by law, herewith expressly excluded.

Return of exchanged Products or parts

11.1    Where Sperry Marine agrees to receive used or defective equipment in return for a reduction in the price of a product or part, such as under Sperry Marine’s Spares Exchange (SPEX) scheme, Buyer shall ensure that the returned equipment is delivered at Buyer’s cost to Sperry Marine at Sperry Marine’s warehouse no later than four weeks after the Product has been installed and the respective commissioning report has been signed.

Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine.

11.2    Where the used or defective equipment is not received by Sperry Marine within four weeks, Buyer shall pay Sperry Marine a surcharge and Sperry Marine shall invoice Buyer accordingly. The surcharge shall be equivalent to the difference in the agreed price and the price that would have been charged had there been no supply of used or defective equipment by Buyer.

Limitation of Liability

12.1    Sperry Marine’s liability to Buyer or any third party arising out of or in relation to the Agreement or the performance thereof, whether based on contract, wrongful act or tort (including negligence), or for any damage or injury to or loss of any vessel, equipment, cargo or stores, or other property or for any consequences thereof shall be limited as specifically set forth above in article 10, and subject to the limitations there set out. In no event shall Sperry Marine’s liability exceed the purchase price of the particular Products or Service Work with respect to which losses or damages are claimed or which have caused the damage. Sperry Marine shall not have any other or further obligation or liability for any other damages whatsoever. Without limiting the foregoing, liability for consequential damages including but not limited to loss of profit, loss of turnover or damage caused as a result of inoperability of equipment, is expressly excluded.

12.2    The limitations of liability set out in these general terms of sale shall not apply to the extent that it might purport to exclude any liability imposed for product liability under any applicable statute where such liability cannot be so limited or excluded.

12.3    Buyer shall defend, indemnify and hold Sperry Marine harmless from all claims, actions, demands, loss and causes of action from any third party relating to any Product sold to Buyer or the performance of work by Sperry Marine on behalf of Buyer, if and to the extent that under these general terms and conditions, Sperry Marine would not have been liable towards Buyer.

12.4    Sperry Marine shall not be liable for costs and/or damage directly ensuing from any shortcoming of Sperry Marine as a result of Force Majeure. Force Majeure is defined to be any circumstance independent of the control of Sperry Marine - whether foreseeable or not - due to which the fulfilment of the Agreement by Sperry Marine has become impossible or cannot reasonably be demanded from Sperry Marine, or which causes Sperry Marine to default under any of its obligations towards Buyer. Included in Force Majeure (but without limitation) are extreme weather conditions, fire, illness of personnel of Sperry Marine or its service representatives, lockouts and strikes at Sperry Marine’s plants or service stations of third parties to be used by Sperry Marine, difficulties or delay in the supply or delivery by suppliers or from Sperry Marine’s own stock of components or materials, and disturbances within the company of Sperry Marine, its service representatives or suppliers and the inability to obtain export licenses or the suspension of export licenses or approvals which have been issued. If the event of Force Majeure of a temporary nature, fulfilment will be suspended until the circumstance in question has ceased to exist. If Force Majeure is of a permanent nature or if temporary Force Majeure has continued or shall reasonably be expected to continue for more than 90 days, Sperry Marine shall be entitled to terminate the Agreement in whole or in part without any liability.

12.5    Sperry Marine shall not be liable for damages that may occur as a result of inappropriate or inadequate sites, facilities, installations or transport routes provided by the Buyer.

Work on Sperry Marine’s premises

13.1    In the event that Buyer or Buyer’s employees or agents enter into Sperry Marine’s premises for any reason in connection with the Agreement, Buyer and such parties shall observe all security requirements and all plant safety, plant protection and traffic regulations.

Buyer shall defend, indemnify and hold Sperry Marine harmless from all claims, actions, demands, losses and causes of action arising from injury, including death, to any person, or damage to any property, when such injury or damage results in whole or in part from the acts or omissions of Buyer, Buyer’s employees, agents, representatives, or subcontractors, save and except for damage caused by the gross negligence of Sperry Marine.

Patents

14.1    Under the following conditions Sperry Marine shall indemnify Buyer against all actions, costs, demands and claims ensuing from a violation of EU or US patent or patents by the Products or any component thereof. This indemnity is subject to Buyer notifying Sperry Marine of such a claim or alleged violation which is being raised against him, in writing immediately after having become acquainted with it. Furthermore, Buyer shall do everything possible (with the exception of not using the Products in question) in order to limit the extent of the rights, claims, damage and expenses which would have to be paid by Sperry Marine as a result thereof. Sperry Marine shall, at its discretion, be entitled to take over, manage, carry on negotiations of, settle and/or defend any such claim and/or legal proceedings brought against Buyer with respect to the claim or allegation.

14.2    If the validity of the claim or allegation with respect to the Products has been proved to the satisfaction of Sperry Marine or in a court of final instance and the use of these Products is prohibited, Sperry Marine shall at its discretion and at its expense:

(a)    grant Buyer the right to continue to use the Products, or
(b)     replace or change the Products in such a way that violation ceases to exist, or
where (a) or (b) are not possible, refund to the Buyer the purchase price for the Products.
Beyond the aforesaid Sperry Marine shall have no liability whatsoever.

14.3    Sperry Marine shall not have any obligations towards Buyer with respect to any violation of a patent or a claim related to it, which is the result of:

(a)    change or expansion of the Products according to special designs or specifications provided by or on behalf of Buyer, or
(b)    the use of the Products in combination with appliances or equipment which have not been made by Sperry Marine, or
(c)     the use of the Products in a manner for which they have neither been designed nor intended, or
(d)     violation of any patent in which Buyer or his subsidiary or branch office have any direct or indirect interest on account of a licence or otherwise.

The aforesaid provides the sole and exclusive liability of Sperry Marine for or ensuing from violation of a patent or claims related to it.

14.4    The provisions in the preceding paragraphs shall also apply if a claim is based on violation of any trade mark right.


Export Control Compliance

15.1    Products may contain parts of multiple origin including USA. Buyer shall comply with all applicable export laws, rules and regulations including but not limited to those of the United Kingdom, Germany, the European Community and the United States of America and will not export or re-export the product in violation of any such laws, rules or regulations. Buyer warrants that all reasonable and appropriate steps will be taken to ensure that any other person or entity purchasing or otherwise acquiring the product from Buyer will not export or re-export in violation of the aforementioned laws, rules and regulations.

15.2    If an Export License is required for the performance of any Sperry Marine obligation, including but not limited to supply of Product, Service Work or warranty repairs in accordance with article 10, and such Export License is not granted or having been granted is revoked, Sperry Marine shall have no further obligations to Buyer under this Agreement and this Agreement shall automatically terminate. In case of a cancellation due to this reason the Buyer shall have no right to repayment of costs already incurred by him or for any other compensation howsoever arising but Sperry Marine shall be entitled to all payments for Product or Service Work already performed under this Agreement.

15.3    Orders that in the reasonable opinion of Sperry Marine appear to be in conflict with 15.1 shall not be accepted by Sperry Marine.

15.4    Where an order has been accepted and Sperry Marine subsequently establishes that, in its reasonable opinion, the order is in conflict with 15.1, this order will be immediately cancelled by Sperry Marine. In this case, Buyer shall have no right to repayment of costs already incurred by him or for any other compensation howsoever arising.

Applicable Law and Jurisdiction

16.1    The Agreement and all orders concluded between Sperry Marine and Buyer shall be interpreted and governed by the laws of Hong Kong and expressly exclude the UN Convention on Contracts for the International Sale of Goods,

16.2    Any dispute which may arise from or be related to the Agreement shall first be attempted to be settled through mediation in accordance with the mediation procedures of the Hong Kong International Arbitration Centre (HKIAC).  Should the dispute or any part thereof not be resolved within thirty (30) days of the mediation being commenced or such further period as agreed by the parties in writing it shall be settled by final and binding arbitration in accordance with the Rules of the Singapore International Arbitration Centre (SIAC) then in effect. The seat of arbitration shall be Singapore and the matter shall be determined by a Tribunal composed of three (3) arbitrators appointed in accordance with the Rules. The proceedings shall be conducted  in the English language and costs of the proceedings and the Tribunal shall be assessed by the arbitrators.

16.3    The Agreement is for the benefit of the parties to the Agreement only and nothing in these terms or any other part of the order or the Agreement is intended to provide, or should therefore be interpreted as providing, a right to any party that is not a party to the Agreement to enforce or otherwise benefit from the Agreement or any of its terms.

No Waiver and Cumulative Remedies

17.1    No failure or delay on the part of Sperry Marine in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The rights and remedies of the Buyer provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.

Severability

18.1    The invalidity, illegality or unenforceability of any provisions of this agreement will not affect the continuation in force of the remainder of this Agreement.

Assignment

19.1    This Agreement shall be binding upon and insure to the benefit of Sperry Marine and buyer and their respective successors and assigns. Buyer may not assign its rights or obligations under this Agreement without the prior written consent of Sperry Marine.

Governing Language

20.1    This Agreement is written and governed in English language.

Counterparts

21.1    This Agreement may be executed in any number of counterparts each of which when executed by one or more of the parties to this Agreement will constitute an original but all of which will constitute one and the same instrument.

Anti-Bribery

22.1    Buyer is familiar with, has complied with, and will comply, in all respects, with all applicable anticorruption and anti-bribery laws. If at any time during the term of this Agreement, Buyer breaches this article, then, in addition to any other rights Sperry Marine may have under this Agreement, Sperry Marine may immediately terminate this Agreement.
 

 

Shanghai - Terms & Conditions for Sales and Service

 

NORTHROP GRUMMAN SPERRY MARINE TRADING (SHANGHAI) Co., Ltd.
General Terms & Conditions of Sale & Service Work Effective from 1st April 2014 NGSM T (S) Co. Ltd/GTS Rev. 1
 

Sale and Purchase

1.1    In these general terms of sale the following designations are used: “Sperry Marine” refers to Northrop Grumman Sperry Marine Trading (Shanghai) Co., Ltd. “Buyer” refers to the natural person or corporate body making or accepting an offer or otherwise entering into a legal relationship with Sperry Marine whereby Sperry Marine supplies goods (“Products”) and/or services (“Service Work”) to Buyer as they are described in the offer or in the order acceptance.

1.2    These general terms of sale shall be applicable exclusively to all offers and order acceptances by Sperry Marine and to all engagements of Sperry Marine for the sale and supply of Products by Sperry Marine and to all Service Work and the words “this Agreement” herein shall apply to all such agreements based on these terms.

1.3    Deviations from, changes and/or supplements to these general terms of sale will only be valid and binding if and in so far as these have been explicitly accepted by Sperry Marine in writing.

1.4    An agreement is effected at the moment when Sperry Marine has accepted the order in writing..

1.5    In each case the Agreement is concluded under the condition precedent that Buyer is creditworthy, as is to be determined by Sperry Marine in its exclusive discretion.

Offers, Contents of the Agreement

2.1    All offers of Sperry Marine are without obligation, particularly as regards price, quantity, time of delivery and possibilities of delivery, and can be revoked by Sperry Marine at all times. Offers of which Sperry Marine has not received a written acceptance within 60 days after the relevant date shall be cancelled automatically. Orders placed by buyer are only accepted by Sperry Marine in written format.

2.2    Representations made by employees of Sperry Marine or by third parties cannot be relied upon or invoked by Buyer, unless these have been confirmed by an authorized representative of Sperry Marine in writing.

2.3    Samples or models of Products shown or provided shall only serve the purpose of supplying information, which the product sold need not comply with in all details.

2.4    Sperry Marine may without need for Buyer’s consent introduce improvements and alterations to the Products, provided that such improvements and alterations do not fundamentally change the ordered Product in form, fit or function.

Prices

3.1    Unless otherwise expressly agreed upon in writing, prices shall apply as they have been published by Sperry Marine at the moment of delivery of the Products.

3.2    All prices quoted in offers and order acceptances are based on delivery FCA (Incoterms 2010), exclusive of value added tax (VAT), and exclusive of any other taxes and charges in effect at the date of quotation and applicable to the Products. Unless appropriate exemption certificates are furnished, the amount of all such present and future taxes and charges shall be charged to Buyer and added to the invoice.

3.3    If at the request of Buyer changes in or supplements to the Agreement are executed, the price will be increased in accordance with the Sperry Marine hourly rates and product list prices then in effect at the moment of execution.   

3.4     The minimum order value which is applicable to all sales of products, spare parts and services, is RMB 2,000.00 (RMB TWO THOUSAND). In the event that an order does not reach this amount, Sperry Marine in its sole discretion is entitled to invoice the difference as an additional lumpsum to reach the minimum order value.

Delivery and Transport

4.1    Times of delivery are invariably stated as approximations, even if this has not been mentioned explicitly, and are deemed to commence at the date on which Sperry Marine has accepted the order of Buyer, or where required the date an export licence is granted, or at such later date as provided hereafter in this article. The dates of dispatch are deemed to have been based on immediate receipt of all the information to be provided by Buyer necessary for Sperry Marine to process the order and, in the event of export dispatches, they also depend on receipt of all required official export documents and licences required. Sperry Marine will endeavour to comply with the stated time of delivery. Buyer shall be obliged to accept delivery of shipments, immediately upon being notified of such by Sperry Marine. If the time of delivery which has been stated as an approximation is inordinately exceeded in relation to all or a portion of the order, Buyer shall be entitled to terminate that portion of the Agreement affected by the delay.
Buyer cannot, however, exercise this right prior to first consulting with Sperry Marine. Sperry Marine shall not be liable for damages of any nature or kind, including indirect, liquidated or consequential damages in the event the Agreement is so terminated.

4.2    Unless otherwise agreed upon, all deliveries are FCA (Incoterms 2010) and after delivery the Products shall be at the risk of Buyer, including those cases in which transport has been arranged by Sperry Marine and in which at the carrier’s demand the transport document stipulates that transport shall be at the risk of Sperry Marine. Sperry Marine reserves the right to determine the means of conveyance and the route of transport, unless Buyer gives express written instructions accepted by Sperry Marine.

4.3    Any costs incurred by Sperry Marine (including storage costs) ensuing from delay on the part of Buyer in accepting delivery or in his compliance with the requirements of article 6, shall be paid by Buyer.

4.4    Sperry Marine is entitled to make partial deliveries and in that case Sperry Marine may send Buyer a separate invoice for each partial delivery and demand payment therefore.

Cancellation

5.1     Buyer may cancel its order only with the prior written consent of Sperry Marine, which consent shall be entirely at Sperry Marine’s discretion. In the event of such a cancellation, Buyer shall pay Sperry Marine an amount equal to the total of the following amounts:

(a)    the contract price for any completed work not already paid ; and
(b)     all costs incurred by Sperry Marine in performance of the order and allocable thereto including, without limitation, overhead and general and administrative expense, exclusive of any cost attributable to completed work under (a); and
(c)     to the extent not already included under (a), a sum for lost profits equal to 15% of the contract price of the cancelled part of the order, or such higher amount of lost profits as Sperry Marine can reasonably demonstrate it has incurred by accepting the cancellation; and
(d)     to the extent not already covered by (a) and (b), an amount equal to the costs of settling and paying any claims arising out of the cancelling of work under any subcontracts or purchase orders.

5.2    Without prejudice to any other right or remedy which Sperry Marine may have, in the event that Buyer cancels the order without the prior written consent of Sperry Marine, Sperry Marine shall be entitled to compensation for all loss or damage thereby incurred, including any loss of profit, or to demand specific performance.

Inspection and Service

6.1    During the warranty period referred to in article 10, Sperry Marine shall at its discretion be entitled at its cost, to inspect any installed Products.

6.2    If Buyer should request an inspection of the Products by Sperry Marine or its authorized service representatives, either during the warranty period or after expiry thereof, or if Buyer should request repairs, “Service Work” which Sperry Marine is not obliged to execute pursuant to its obligations by virtue of article 10, this inspection or Service Work, if agreed upon by Sperry Marine, will be executed at the hourly rate applicable to the district from which the service personnel travels. In addition, Sperry Marine may charge for the actual travelling and accommodation expenses of such personnel, and for their travelling time at the rates applicable, as defined above. If Service Work is required outside regular working hours, Buyer shall pay these extra hours at the hourly rate for overtime applicable in the district of the Sperry Marine service personnel provided.

6.3    Publications in which Sperry Marine has indicated in which places service stations are to be found are for information purposes only and Sperry Marine is not liable to retain such service stations.

Terms of Payment

7.1    Unless expressly otherwise agreed upon in writing, full payment in the invoiced currency shall be made by Buyer not later than within 30 days after the invoice  (or billing for orders based in the PRC)  date, by means of payment into the bank and/or giro account stipulated by Sperry Marine, without any suspension, set-off, deduction or discount. All costs incurred in connection with payment of the invoice (or billing for orders based in the PRC) shall be at the expense of Buyer. Buyer may only submit a written notice of objection against the invoice (or billing for orders based in the PRC) within the term set out therein.

7.2    Without prejudice to any other rights of Sperry Marine, Buyer shall be in default without any further notice thereof being required, if he exceeds the aforesaid term of payment of 30 days. From such moment, Buyer shall owe interest at 1.5% a month compounded on the amount still outstanding. For the calculation of the amount payable due to interest parts of months shall apply as whole months. All judicial or extrajudicial costs including all legal and professional fees (on an indemnity basis) and all court costs incurred with respect to collection of the debt shall be at the expense of Buyer.

7.3    At any time Sperry Marine shall be entitled to demand reasonable security (or, as the case may be, additional security) from Buyer for the payment of the Products and/or to suspend deliveries, until the security demanded has been provided.

7.4    If Buyer:

(a)    fails to comply with any obligation towards Sperry Marine pursuant to the Agreement; and/or
(b)    is unable to pay its debts, has a petition for bankruptcy filed against it, has a petition filed against it (or passes a resolution) for its winding up or for the appointment of an administrator or a receiver or applies for or is granted a payment moratorium or any similar events occur within the jurisdiction to which Buyer is subject; and/or
(c)    suffers any substantial change in his financial or business situation,

Sperry Marine shall be entitled to suspend the performance of any still current agreements wholly or partly, and in such circumstances all outstanding claims shall become payable on demand. In this event, Sperry Marine is furthermore entitled to terminate any still current agreements wholly or partly without any further notice of default by written notice to Buyer. Buyer shall be liable for all damages suffered by Sperry Marine as a result of such termination.

Retention of Title

8.1    Sperry Marine shall retain title to the Products delivered or to be delivered until Buyer has complied with all its obligations under the Agreement including but not limited to:

(a)    payment in full of the price for the Products;
(b)     payment for any work performed on or in relation to the Products pursuant to the Agreement; and
(c)    payment of any claims against Buyer by Sperry Marine arising out of failure on the part of Buyer to comply with one or more of his obligations ensuing under any sales agreements with Sperry Marine.

8.2    As long as title to the Products has not passed to Buyer, Buyer shall not dispose of the Products or encumber them. Buyer is not permitted to attach the Products to other objects in such a manner that they cannot be easily removed. The Products shall be held separate from Buyer’s own goods and clearly marked as Sperry Marine’s property.

8.3    If Buyer does not comply with its payment obligations, or Sperry Marine considers that Buyer will not be able to comply with its payment obligations, Sperry Marine shall be irrevocably authorised by Buyer to gain access to Buyer’s business premises or the premises of a third party holding the goods on behalf of Buyer without prior notice, and to take all the necessary steps to recover the Products. Buyer is obliged to co-operate with Sperry Marine for this purpose.

8.4    Buyer is obliged to inform Sperry Marine without delay of the fact that third parties are claiming rights to the Products which are the property of Sperry Marine, as well as of Buyer’s bankruptcy or moratorium, or of an attachment. Buyer is obliged to inform this third party, official receiver, trustee or attaching creditor of Sperry Marine’s title with respect to these Products without delay.

8.5    Sperry Marine may request such financial information respecting the Buyer’s ability to pay for Product or Service Work as in its discretion it deems necessary. Failure to provide such information within fifteen (15) days of a written request shall entitle Sperry Marine to enter upon the Buyer’s premises or premises where the Products are held and take possession of them.

Complaints and Buyer’s obligation to inspect products

9.1    Buyer is obliged to inspect the Products carefully after delivery and to inform Sperry Marine of any discoverable defects. Any complaints with respect to the Products shall be notified to Sperry Marine in writing within 10 days after delivery of the Products. If Buyer reasonably demonstrates that it was not possible to discover the defect upon delivery, the complaint must be notified in writing within 8 days after the date on which the defect was discovered or could reasonably have been discovered, but in no event shall Buyer be entitled to reject the Products more than thirty (30) days after delivery.

9.2    After expiry of the dates mentioned in paragraph 9.1 Buyer is deemed to have accepted the Products and Products can no longer be rejected.

Warranty

10.1     Sperry Marine warrants that all Products manufactured by Sperry Marine or its subsidiaries or affiliates and sold by Sperry Marine to Buyer at the time of delivery will be free from material defects in material and workmanship under normal use and service when installed in accordance with the applicable Sperry Marine installation drawing, and Supervision of Installation (SOI) performed by a Sperry Marine Service Engineer (MSE) or any authorised service representative of Sperry Marine.

10.2     Unless otherwise stated, or any other compulsory warranty period required by the PRC regulations in the event of contract dispute, for all Products sold as new, Sperry Marine’s obligation under the warranty shall be limited to defects as defined in article 10.1 above of which Sperry Marine is notified within twelve (12) months after the date that a Sperry Marine authorised service representative and Buyer representative sign a completed Commissioning Report (the “date of installation”) or twenty four (24) months after date of shipment, from Sperry Marine, whichever period shall first expire.

10.3     For Service Work (except where performed under warranty) the warranty period shall be thirty (30) days from the date of performance and completion of the Service Work. The warranty period for new spare parts shall be twelve (12) months after date of installation or shipment, whichever period shall first expire. The warranty for reconditioned items or items not sold as new shall be for a period of ninety (90) days after the date that a Sperry Marine authorised service representative and Buyer representative sign a completed Commissioning Report (the “date of installation”) or six (6) months after date of shipment, from Sperry Marine, whichever period shall first expire.

10.4     In case of Products sold but not manufactured by Sperry Marine or its subsidiaries or affiliates, Sperry Marine’s sole obligation shall be to extend to Buyer the manufacturer’s warranty, provided that Buyer complies with all applicable conditions of such warranty.

10.5    Sperry Marine’s warranty obligations shall in any event be limited to the replacement or repair (at Sperry Marine’s discretion) of any defective part. Replacement or repair of defective parts pursuant to this warranty shall be made at Sperry Marine’s expense at any city, town or port at which Sperry Marine regularly maintains qualified service personnel. The publishing of a list of service stations shall not imply any obligation upon Sperry Marine to maintain a regularly established service station on any of the locations specified in such list.

10.6     It shall sometimes be necessary for an engineer to travel to the service location to effect the warranty repair. Where Sperry Marine sends an engineer to the service location to effect the warranty repair, Buyer shall pay all travel expenses of the Sperry Marine engineer and Buyer shall pay the hourly rate for the engineer for any travel time in excess of a total of 4 hours round trip.

10.7     Defective Product or parts which are replaced under warranty shall be returned by Buyer at Buyer’s cost to Sperry Marine to be received by Sperry Marine at Sperry Marine’s warehouse no later than four weeks after the replacement has been installed and the respective commissioning report has been signed. Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine. Where the defective Product or parts are not received by Sperry Marine within four weeks, Buyer shall pay Sperry Marine the full list price of the relevant Product or part and Sperry Marine shall invoice Buyer accordingly.

10.8    Replacement and repair of a defective part shall be made where the Products are sent to a Sperry Marine establishment or to a service station appointed by Sperry Marine within the warranty period, provided that shipping costs, excluding import customs fees and duties, are prepaid by Buyer and the part is found defective after inspection at the establishment or service station.

10.9     No warranty shall be effective with respect to any Product that has been subjected to conditions beyond the limits of its specifications, or which has been physically damaged, or to which is attached any apparatus other than apparatus supplied by Sperry Marine for attachment or specifically approved for attachment by Sperry Marine in writing, nor does it apply to Products found to be defective due to abuse, lightning or other electrical discharge. Damages or failure of any product supplied by Sperry Marine caused due to incorrect set up or use is not covered under Sperry Marine’s warranty terms.
No warranty shall be effective if a defective product has been repaired or in any way worked on by anyone other than Sperry Marine personnel or an authorised Sperry Marine agent without Sperry Marine’s prior consent.

10.10 In the event of an unjustified warranty claim, including but not limited to instances where no fault is found or where the fault is not covered by the warranty set out in article 10.1, Buyer shall compensate Sperry Marine for any cost that it has incurred in responding to the claim.

10.11 For the avoidance of doubt, the warranty set out in these terms includes any software installed as standard within the Product and which is required for its proper operation. The warranty therefore covers the remedy of defects in the software only where this materially affects the use of the Product, and where the defects can be reproduced at any time. Updates of software to newer versions in case of obsolescence may be provided free of charge at Sperry Marine’s discretion. Software upgrades resulting in an enhancement of the system’s capabilities are not covered under warranty, and the cost of labour and material for any such upgrades where requested by Buyer and agreed to by Sperry Marine shall be paid by the Buyer.
Sperry Marine shall not be liable nor shall Sperry Marine provide any warranty for software, interfaces, etc. made available to the Buyer by Sperry Marine but produced by other manufacturers.Where possible warranty rights against a manufacturer concerned shall be transferred by Sperry Marine to the Buyer.

Sperry Marine does not warrant that the software will function without interruption or error, that all software defects can be eliminated and that the software will correspond to the Buyer’s requirements and will function without error in each configuration the Buyer selects, unless such configuration has been specified by Sperry Marine.
Sperry Marine accepts no liability hereunder for claims for loss of data and it is strongly recommended that the Buyer perform a data backup in a machine readable form at intervals adequate to the application concerned, but not later than at the end of the day on which the software was used, to better enable the restoration of data.

10.12 The foregoing provisions set forth Sperry Marine’s sole liability for breach of warranty in respect of, or for any defect or nonconformity in, any Product, and Sperry Marine shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above. All other warranties, whether express or implied, in contract, statute or at law, are, to the extent permissible by law, herewith expressly excluded.

Return of exchanged Products or Parts

11.1     Where Sperry Marine agrees to receive used or defective equipment in return for a reduction in the price of a product or part, such as under Sperry Marine’s Spares Exchange (SPEX) scheme, Buyer shall ensure that the returned equipment is delivered at Buyer’s cost to Sperry Marine at Sperry Marine’s warehouse no later than four weeks after the Product has been installed and the respective commissioning report has been signed.

Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine.

11.2     Where the used or defective equipment is not received by Sperry Marine within four weeks, Buyer shall pay Sperry Marine a surcharge and Sperry Marine shall invoice Buyer accordingly. The surcharge shall be equivalent to the difference in the agreed price and the price that would have been charged had there been no supply of used or defective equipment by Buyer.

Limitation of Liability

12.1     Sperry Marine’s liability to Buyer or any third party arising out of or in relation to the Agreement or the performance thereof, whether based on contract, wrongful act or tort (including negligence), or for any damage or injury to or loss of any vessel, equipment, cargo or stores, or other property or for any consequences thereof shall be limited as specifically set forth above in article 10, and subject to the limitations there set out. In no event shall Sperry Marine’s liability exceed the purchase price of the particular Products or Service Work with respect to which losses or damages are claimed or which have caused the damage. Sperry Marine shall not have any other or further obligation or liability for any other damages whatsoever. Without limiting the foregoing, liability for consequential damages including but not limited to loss of profit, loss of turnover or damage caused as a result of inoperability of equipment, is expressly excluded.

12.2    The limitations of liability set out in these general terms of sale shall not apply to the extent that it might purport to exclude any liability imposed for product liability under any applicable statute where such liability cannot be so limited or excluded.

12.3     Buyer shall defend, indemnify and hold Sperry Marine harmless from all claims, actions, demands, loss and causes of action from any third party relating to any Product sold to Buyer or the performance of work by Sperry Marine on behalf of Buyer, if and to the extent that under these general terms and conditions, Sperry Marine would not have been liable towards Buyer.

12.4     Sperry Marine shall not be liable for costs and/or damage directly ensuing from any shortcoming of Sperry Marine as a result of Force Majeure. Force Majeure is defined to be any circumstance independent of the control of Sperry Marine - whether foreseeable or not - due to which the fulfilment of the Agreement by Sperry Marine has become impossible or cannot reasonably be demanded from Sperry Marine, or which causes Sperry Marine to default under any of its obligations towards Buyer. Included in Force Majeure (but without limitation) are extreme weather conditions, fire, illness of personnel of Sperry Marine or its service representatives, lockouts and strikes at Sperry Marine’s plants or service stations of third parties to be used by Sperry Marine, difficulties or delay in the supply or delivery by suppliers or from Sperry Marine’s own stock of components or materials, and disturbances within the company of Sperry Marine, its service representatives or suppliers and the inability to obtain export licenses or the suspension of export licenses or approvals which have been issued. If the event of Force Majeure of a temporary nature, fulfilment will be suspended until the circumstance in question has ceased to exist. If Force Majeure is of a permanent nature or if temporary Force Majeure has continued or shall reasonably be expected to continue for more than 90 days, Sperry Marine shall be entitled to terminate the Agreement in whole or in part without any liability.

12.5     Sperry Marine shall not be liable for damages that may occur as a result of inappropriate or inadequate sites, facilities, installations or transport routes provided by the Buyer.

Work on Sperry Marine’s premises

13.1     In the event that Buyer or Buyer’s employees or agents enter into Sperry Marine’s premises for any reason in connection with the Agreement, Buyer and such parties shall observe all security requirements and all plant safety, plant protection and traffic regulations. Buyer shall defend, indemnify and hold Sperry Marine harmless from all claims, actions, demands, losses and causes of action arising from injury, including death, to any person, or damage to any property, when such injury or damage results in whole or in part from the acts or omissions of Buyer, Buyer’s employees, agents, representatives, or subcontractors, save and except for damage caused by the gross negligence of Sperry Marine.

Patents

14.1     Under the following conditions Sperry Marine shall indemnify Buyer against all actions, costs, demands and claims ensuing from a violation of EU or US patent or patents by the Products or any component thereof. This indemnity is subject to Buyer notifying Sperry Marine of such a claim or alleged violation which is being raised against him, in writing immediately after having become acquainted with it. Furthermore, Buyer shall do everything possible (with the exception of not using the Products in question) in order to limit the extent of the rights, claims, damage and expenses which would have to be paid by Sperry Marine as a result thereof. Sperry Marine shall, at its discretion, be entitled to take over, manage, carry on negotiations of, settle and/or defend any such claim and/or legal proceedings brought against Buyer with respect to the claim or allegation.

14.2     If the validity of the claim or allegation with respect to the Products has been proved to the satisfaction of Sperry Marine or in a court of final instance and the use of these Products is prohibited, Sperry Marine shall at its discretion and at its expense:

(a)    grant Buyer the right to continue to use the Products, or
(b)     replace or change the Products in such a way that violation ceases to exist, or
where (a) or (b) are not possible, refund to the Buyer the purchase price for the Products.
Beyond the aforesaid Sperry Marine shall have no liability whatsoever.

14.3    Sperry Marine shall not have any obligations towards Buyer with respect to any violation of a patent or a claim related to it, which is the result of:

(a)    change or expansion of the Products according to special designs or specifications provided by or on behalf of Buyer, or
(b)    the use of the Products in combination with appliances or equipment which have not been made by Sperry Marine, or
(c)     the use of the Products in a manner for which they have neither been designed nor intended, or
(d)     violation of any patent in which Buyer or his subsidiary or branch office have any direct or indirect interest on account of a licence or otherwise.

The aforesaid provides the sole and exclusive liability of Sperry Marine for or ensuing from violation of a patent or claims related to it.

14.4     The provisions in the preceding paragraphs shall also apply if a claim is based on violation of any trade mark right.
 

Export Control Compliance

15.1     Products may contain parts of multiple origin including USA. Buyer shall comply with all applicable export laws, rules and regulations including but not limited to those of the United Kingdom, Germany, the European Community and the United States of America and will not export or re-export the product in violation of any such laws, rules or regulations. Buyer warrants that all reasonable and appropriate steps will be taken to ensure that any other person or entity purchasing or otherwise acquiring the product from Buyer will not export or re-export in violation of the aforementioned laws, rules and regulations.

15.2     If an Export Licence is required for the performance of any Sperry Marine obligation, including but not limited to supply of Product, Service Work or warranty repairs in accordance with article 10, and such Export License is not granted or having been granted is revoked, Sperry Marine shall have no further obligations to Buyer under this Agreement and this Agreement shall automatically terminate. In case of a cancellation due to this reason the Buyer shall have no right to repayment of costs already incurred by him or for any other compensation howsoever arising but Sperry Marine shall be entitled to all payments for Product or Service Work already performed under this Agreement.

15.3     Orders that in the reasonable opinion of Sperry Marine appear to be in conflict with 15.1 shall not be accepted by Sperry Marine.

15.4     Where an order has been accepted and Sperry Marine subsequently establishes that, in its reasonable opinion, the order is in conflict with 15.1, this order will be immediately cancelled by Sperry Marine. In this case, Buyer shall have no right to repayment of costs already incurred by him or for any other compensation howsoever arising.

Applicable Law and Jurisdiction

16.1     The Agreement and all orders concluded between Sperry Marine and Buyer shall be interpreted and governed by the laws of the Peoples Republic of China (PRC) and expressly exclude the UN Convention on Contracts for the International Sale of Goods,

16.2     Any dispute which may arise from or be related to the Agreement shall first be attempted to be settled through mediation in accordance with the mediation procedures of the Hong Kong International Arbitration Centre (HKIAC).  Should the dispute or any part thereof not be resolved within thirty (30) days of the mediation being commenced or such further period as agreed by the parties in writing it shall be settled by final and binding arbitration in accordance with the Rules of the Singapore International Arbitration Centre (SIAC), then in effect. The seat of arbitration shall be Singapore and the matter shall be determined by a Tribunal composed of three (3) arbitrators appointed in accordance with the Rules. The proceedings shall be conducted in the English language and costs of the proceedings and the Tribunal shall be assessed by the arbitrators.

16.3     The Agreement is for the benefit of the parties to the Agreement only and nothing in these terms or any other part of the order or the Agreement is intended to provide, or should therefore be interpreted as providing, a right to any party that is not a party to the Agreement to enforce or otherwise benefit from the Agreement or any of its terms.

No Waiver and Cumulative Remedies

17.1    No failure or delay on the part of Sperry Marine in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The rights and remedies of the Buyer provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.

Severability

18.1    The invalidity, illegality or unenforceability of any provisions of this agreement will not affect the continuation in force of the remainder of this Agreement.

Assignment

19.1    This Agreement shall be binding upon and insure to the benefit of Sperry Marine and buyer and their respective successors and assigns. Buyer may not assign its rights or obligations under this Agreement without the prior written consent of Sperry Marine.

Governing Language

20.1    This Agreement is written in both English and Chinese. In case of any discrepancy between the two languages, the English language version shall prevail.

Counterparts

21.1    This Agreement may be executed in any number of counterparts each of which when executed by one or more of the parties to this Agreement will constitute an original but all of which will constitute one and the same instrument.

Anti-Bribery

22.1    Buyer is familiar with, has complied with, and will comply, in all respects, with all applicable anticorruption and anti-bribery laws. If at any time during the term of this Agreement, Buyer breaches this article, then, in addition to any other rights Sperry Marine may have under this Agreement, Sperry Marine may immediately terminate this Agreement.
 

 

Europe - Terms & Conditions for Sales and Service

 NORTHROP GRUMMAN SPERRY MARINE BV
General Terms & Conditions of Sale & Service Work
Effective from 1st June 2013
NGSM B.V/GTS Rev. 4

1. Sale and Purchase

1.1 In these general terms of sale the following designations are used: “Sperry Marine” refers to Northrop Grumman Sperry Marine BV “Buyer” refers to the natural person or corporate body making or accepting an offer or otherwise entering into a legal relationship with Sperry Marine whereby Sperry Marine supplies goods (“Products”) and/or services (“Service Work”) to Buyer as they are described in the offer or in the order acceptance.
1.2 These general terms of sale shall be applicable exclusively to all offers and order acceptances by Sperry Marine and to all engagements of Sperry Marine for the sale and supply of Products by Sperry Marine and to all Service Work and the words “this Agreement” herein shall apply to all such agreements based on these terms.
1.3 Deviations from, changes and/or supplements to these general terms of sale will only be valid and binding if and in so far as these have been explicitly accepted by Sperry Marine in writing.
1.4 An agreement is effected at the moment when Sperry Marine has accepted the order in writing, or, in the absence of an order acceptance, as soon as Sperry Marine has commenced execution of the order.
1.5 In each case the Agreement is concluded under the condition precedent that Buyer is creditworthy, as is to be judged by Sperry Marine.

2. Offers, Contents of the Agreement

2.1 All offers of Sperry Marine are without obligation, particularly as regards price, quantity, time of delivery and possibilities of delivery, and can be revoked by Sperry Marine at all times. Offers of which Sperry Marine has not received a written acceptance within 60 days after the relevant date shall be cancelled automatically. Written engagements and orders of Buyer shall apply as irrevocable offers.
2.2 Representations made by employees of Sperry Marine or by third parties cannot be relied upon or invoked by Buyer, unless these have been confirmed by the management of Sperry Marine in writing.
2.3 Samples or models of Products shown or provided shall only serve the purpose of supplying information, which the product sold need not comply with in all details.
2.4 Sperry Marine may without need for Buyer’s consent introduce improvements and alterations to the Products, provided that such improvements and alterations do not fundamentally change the ordered Product in form, fit or function.

3. Prices

3.1 Unless otherwise expressly agreed upon in writing, prices shall apply as they have been published by Sperry Marine at the moment of delivery of the Products.
3.2 All prices quoted in offers and order acceptances are based on delivery FCA (Incoterms 2010), exclusive of value added tax (VAT), and exclusive of any other taxes and charges in effect at the date of quotation and applicable to the Products. Unless appropriate exemption certificates are furnished, the amount of all such present and future taxes and charges shall be charged to Buyer and added to the invoice.
3.3 If at the request of Buyer changes in or supplements to the Agreement are executed, the price will be increased in accordance with the rates used by Sperry Marine at the moment of execution.
3.4 The minimum order value which is applicable to all sales of products, spare parts and services, is EUR 250,00. In the event that an order does not reach this amount, Sperry Marine will invoice the difference as an additional lumpsum to reach the minimum order value.

4. Delivery and Transport

4.1 Times of delivery are invariably stated as approximations, even if this has not been mentioned explicitly, and are deemed to commence at the date on which Sperry Marine has accepted the order of Buyer, or where required the date an export licence is granted, or at such later date as provided hereafter in this article. The dates of dispatch are deemed to have been based on immediate receipt of all the information to be provided by Buyer necessary for Sperry Marine to process the order and, in the event of export dispatches, they also depend on receipt of all required official export documents and licences required. Sperry Marine will endeavour to comply with the stated time of delivery. Buyer shall be obliged to accept delivery of shipments, immediately upon being notified of such by Sperry Marine. If the time of delivery which has been stated as an approximation is inordinately exceeded in relation to all or a portion of the order, Buyer shall be entitled to terminate that portion of the Agreement affected by the delay. Buyer cannot, however, exercise this right prior to first consulting with Sperry Marine. Sperry Marine shall not be liable for damages of any nature or kind, including indirect, liquidated or consequential damages in the event the Agreement is so terminated.
4.2 Unless otherwise agreed upon, all deliveries are FCA (Incoterms 2010) and after delivery the Products shall be at the risk of Buyer, including those cases in which transport has been arranged by Sperry Marine and in which at the carrier’s demand the transport document stipulates that transport shall be at the risk of Sperry Marine. Sperry Marine reserves the right to determine the means of conveyance and the route of transport, unless Buyer gives express written instructions accepted by Sperry Marine.
4.3 Any costs incurred by Sperry Marine (including storage costs) ensuing from delay on the part of Buyer in accepting delivery or in his compliance with the requirements of article 6, shall be paid by Buyer.
4.4 Sperry Marine is entitled to make partial deliveries and in that case Sperry Marine may send Buyer a separate invoice for each partial delivery and demand payment therefore.

5. Cancellation

5.1 Buyer may cancel its order only with the prior written consent of Sperry Marine, which consent shall be entirely at Sperry Marine’s discretion. In the event of such a cancellation, Buyer shall pay Sperry Marine an amount equal to the total of the following amounts:
(a) the contract price for any completed work not already paid ; and
(b) all costs incurred by Sperry Marine in performance of the order and allocable thereto including, without limitation, overhead and general and administrative expense, exclusive of any cost attributable to completed work under (a); and
(c) to the extent not already included under (a), a sum for lost profits equal to 15% of the contract price of the cancelled part of the order, or such higher amount of lost profits as Sperry Marine can reasonably demonstrate it has incurred by accepting the cancellation; and
(d) to the extent not already covered by (a) and (b), an amount equal to the costs of settling and paying any claims arising out of the cancelling of work under any subcontracts or purchase orders.
5.2 Without prejudice to any other right or remedy which Sperry Marine may have, in the event that Buyer cancels the order without the prior written consent of Sperry Marine, Sperry Marine shall be entitled to compensation for all loss or damage thereby incurred, including any loss of profit, or to demand specific performance.

6. Inspection and Service

6.1 During the warranty period referred to in article 10, Sperry Marine shall at its discretion be entitled at its cost, to inspect any installed Products.
6.2 If Buyer should request an inspection of the Products by Sperry Marine or its authorised service representatives, either during the warranty period or after expiry thereof, or if Buyer should request repairs, “Service Work” which Sperry Marine is not obliged to execute pursuant to its obligations by virtue of article 10, this inspection or Service Work, if agreed upon by Sperry Marine, will be executed at the hourly rate applicable to the district from which the service personnel travels. In addition, Sperry Marine may charge for the actual travelling and accommodation expenses of such personnel, and for their travelling time at the rates applicable, as defined above. If Service Work is required outside regular working hours, Buyer shall pay these extra hours at the hourly rate for overtime applicable in the district of the Sperry Marine service personnel provided.
6.3 Publications in which Sperry Marine has indicated in which places service stations are to be found are for information purposes only and Sperry Marine is not liable to retain such service stations.

7. Terms of Payment

7.1 Unless expressly otherwise agreed upon in writing, full payment in the invoiced currency shall be made by Buyer not later than within 30 days after the invoice date, by means of payment into the bank and/or giro account stipulated by Sperry Marine, without any suspension, set-off, deduction or discount. All costs incurred in connection with payment of the invoice shall be at the expense of Buyer. Buyer may only submit a written notice of objection against the invoice within the term set out therein.
7.2 Without prejudice to any other rights of Sperry Marine, Buyer shall be in default without any further notice thereof being required, if he exceeds the aforesaid term of payment of 30 days. From such moment, Buyer shall owe interest at 1.5% a month compounded on the amount still outstanding. For the calculation of the amount payable due to interest parts of months shall apply as whole months. All judicial or extrajudicial costs including all legal and professional fees (on an indemnity basis) and all court costs incurred with respect to collection of the debt shall be at the expense of Buyer.
7.3 At any time Sperry Marine shall be entitled to demand reasonable security (or, as the case may be, additional security) from Buyer for the payment of the Products and/or to suspend deliveries, until the security demanded has been provided.
7.4 If Buyer:
(a) fails to comply with any obligation towards Sperry Marine pursuant to the Agreement; and/or (b) is unable to pay its debts, has a petition for bankruptcy filed against it, has a petition filed against it (or passes a resolution) for its winding up or for the appointment of an administrator or a receiver or applies for or is granted a payment moratorium or any similar events occur within the jurisdiction to which Buyer is subject; and/or
(c) suffers any substantial change in his financial or business situation, Sperry Marine shall be entitled to suspend the performance of any still current agreements wholly or partly, and in such circumstances all outstanding claims shall become payable on demand. In this event, Sperry Marine
is furthermore entitled to terminate any still current agreements wholly or partly without any further notice of default by written notice to Buyer. Buyer shall be liable for all damages suffered by Sperry Marine as a result of such termination.

8. Retention of Title

8.1 Sperry Marine shall retain title to the Products delivered or to be delivered until Buyer has complied with all its obligations under the Agreement including but not limited to:
(a) payment in full of the price for the Products;
(b) payment for any work performed on or in relation to the Products pursuant to the Agreement; and (c) payment of any claims against Buyer by Sperry Marine arising out of failure on the part of Buyer to comply with one or more of his obligations ensuing under any sales agreements with Sperry Marine.
8.2 As long as title to the Products has not passed to Buyer, Buyer shall not dispose of the Products or encumber them. Buyer is not permitted to attach the Products to other objects in such a manner that they cannot be easily removed. The Products shall be held separate from Buyer’s own goods and clearly marked as Sperry Marine’s property.
8.3 If Buyer does not comply with its payment obligations, or Sperry Marine considers that Buyer will not be able to comply with its payment obligations, Sperry Marine shall be irrevocably authorised by Buyer to gain access to Buyer’s business premises or the premises of a third party holding the goods on behalf of Buyer without prior notice, and to take all the necessary steps to recover the Products. Buyer is obliged to co-operate with Sperry Marine for this purpose.
8.4 Buyer is obliged to inform Sperry Marine without delay of the fact that third parties are claiming rights to the Products which are the property of Sperry Marine, as well as of Buyer’s bankruptcy or moratorium, or of an attachment. Buyer is obliged to inform this third party, official receiver, trustee or attaching creditor of Sperry Marine’s title with respect to these Products without delay.
8.5 Sperry Marine may request such financial information respecting the Buyer’s ability to pay for Product or Service Work as in its discretion it deems necessary. Failure to provide such information within fifteen (15) days of a written request shall entitle Sperry Marine to enter upon the Buyer’s premises or premises where the Products are held and take possession of them.

9. Complaints and Buyer’s obligation to inspect products

9.1 Buyer is obliged to inspect the Products carefully after delivery and to inform Sperry Marine of any discoverable defects. Any complaints with respect to the Products shall be notified to Sperry Marine in writing within 10 days after delivery of the Products. If Buyer reasonably demonstrates that it was not possible to discover the defect upon delivery, the complaint must be notified in writing within 8 days after the date on which the defect was discovered or could reasonably have been discovered, but in no event shall Buyer be entitled to reject the Products more than thirty (30) days after delivery.
9.2 After expiry of the dates mentioned in paragraph 1 Buyer is deemed to have accepted the Products and Products can no longer be rejected.

10. Warranty

10.1 Sperry Marine warrants that all Products manufactured by Sperry Marine or its subsidiaries or affiliates and sold by Sperry Marine to Buyer at the time of delivery will be free from material defects in material and workmanship under normal use and service when installed in accordance with the applicable Sperry Marine installation drawing, and Supervision of Installation (SOI) performed by a Sperry Marine Service Engineer (MSE) or any authorised service representative of Sperry Marine.
10.2 Unless otherwise stated, for all Products sold as new, Sperry Marine’s obligation under the warranty shall be limited to defects as defined in article 10.1 above of which Sperry Marine is notified within twelve (12) months after the date that a Sperry Marine authorised service representative and Buyer representative sign a completed Commissioning Report (the “date of installation”) or twenty four (24) months after date of shipment, from Sperry Marine, whichever period shall first expire.
10.3 For Service Work (except where performed under warranty) the warranty period shall be thirty (30) days from the date of performance and completion of the Service Work. The warranty period for new spare parts shall be twelve (12) months after date of installation or shipment, whichever period shall first expire. The warranty for reconditioned items or items not sold as new shall be for a period of ninety (90) days after the date that a Sperry Marine authorised service representative and Buyer representative sign a completed Commissioning Report (the “date of installation”) or six (6) months after date of shipment, from Sperry Marine, whichever period shall first expire.
10.4 In case of Products sold but not manufactured by Sperry Marine or its subsidiaries or affiliates, Sperry Marine’s sole obligation shall be to extend to Buyer the manufacturer’s warranty, provided that Buyer complies with all applicable conditions of such warranty.
10.5 Sperry Marine’s warranty obligations shall in any event be limited to the replacement or repair (at Sperry Marine’s discretion) of any defective part. Replacement or repair of defective parts pursuant to this warranty shall be made at Sperry Marine’s expense at any city, town or port at which Sperry Marine regularly maintains qualified service personnel. The publishing of a list of service stations shall not imply any obligation upon Sperry Marine to maintain a regularly established service station on any of the locations specified in such list.
10.6 It shall sometimes be necessary for an engineer to travel to the service location to effect the warranty repair. Where Sperry Marine sends an engineer to the service location to effect the warranty repair, Buyer shall pay all travel expenses of the Sperry Marine engineer and Buyer shall pay the hourly rate for the engineer for any travel time in excess of a total of 4 hours round trip.
10.7 Defective Product or parts which are replaced under warranty shall be returned by Buyer at Buyer’s cost to Sperry Marine to be received by Sperry Marine at Sperry Marine’s warehouse no later than four weeks after the replacement has been installed and the respective commissioning report has been signed. Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine. Where the defective Product or parts are not received by Sperry Marine within four weeks, Buyer shall pay Sperry Marine the full list price of the relevant Product or part and Sperry Marine shall invoice Buyer accordingly.
10.8 Replacement and repair of a defective part shall be made where the Products are sent to a Sperry Marine establishment or to a service station appointed by Sperry Marine within the warranty period, provided that shipping costs, excluding import customs fees and duties, are prepaid by Buyer and the part is found defective after inspection at the establishment or service station.
10.9 No warranty shall be effective with respect to any Product that has been subjected to conditions beyond the limits of its specifications, or which has been physically damaged, or to which is attached any apparatus other than apparatus supplied by Sperry Marine for attachment or specifically approved for attachment by Sperry Marine in writing, nor does it apply to Products found to be defective due to abuse, lightning or other electrical discharge. Damages or failure of any product supplied by Sperry Marine caused due to incorrect set up or use is not covered under Sperry Marine’s warranty terms.
No warranty shall be effective if a defective product has been repaired or in any way worked on by anyone other than Sperry Marine personnel or an authorised Sperry Marine agent without Sperry Marine’s prior consent.
10.10 In the event of an unjustified warranty claim, including but not limited to instances where no fault is found or where the fault is not covered by the warranty set out in article 10.1, Buyer shall compensate Sperry Marine for any cost that it has incurred in responding to the claim.
10.11 For the avoidance of doubt, the warranty set out in these terms includes any software installed as standard within the Product and which is required for its proper operation. The warranty therefore covers the remedy of defects in the software only where this materially affects the use of the Product, and where the defects can be reproduced at any time. Updates of software to newer versions in case of obsolescence may be provided free of charge at Sperry Marine’s discretion. Software upgrades resulting in an enhancement of the system’s capabilities are not covered under warranty, and the cost of labour and material for any such upgrades where requested by Buyer and agreed to by Sperry Marine shall be paid by the Buyer.
Sperry Marine shall not be liable nor shall Sperry Marine provide any warranty for software, interfaces, etc. made available to the Buyer by Sperry Marine but produced by other manufacturers. Where possible warranty rights against a manufacturer concerned shall be transferred by Sperry Marine to the Buyer.
Sperry Marine does not warrant that the software will function without interruption or error, that all software defects can be elimininated and that the software will correspond to the Buyer’s requirements and will function without error in each configuration the Buyer selects, unless such configuration has been specified by Sperry Marine.
Sperry Marine accepts no liability hereunder for claims for loss of data and it is strongly recommended that the Buyer perform a data backup in a machine readable form at intervals adequate to the application concerned, but not later than at the end of the day on which the software was used, to better enable the restoration of data.
10.12 The foregoing provisions set forth Sperry Marine’s sole liability for breach of warranty in respect of, or for any defect or nonconformity in, any Product, and Sperry Marine shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above. All other warranties, whether express or implied, in contract, statute or at law, are, to the extent permissible by law, herewith expressly excluded.

11. Return of exchanged Products or parts

11.1 Where Sperry Marine agrees to receive used or defective equipment in return for a reduction in the price of a product or part, such as under Sperry Marine’s Spares Exchange (SPEX) scheme, Buyer shall ensure that the returned equipment is delivered at Buyer’s cost to Sperry Marine at Sperry Marine’s warehouse no later than four weeks after the Product has been installed and the respective commissioning report has been signed.
Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine.
11.2 Where the used or defective equipment is not received by Sperry Marine within four weeks, Buyer shall pay Sperry Marine a surcharge and Sperry Marine shall invoice Buyer accordingly. The surcharge shall be equivalent to the difference in the agreed price and the price that would have been charged had there been no supply of used or defective equipment by Buyer.

12. Liability

12.1 Sperry Marine’s liability to Buyer or any third party arising out of or in relation to the Agreement or the performance thereof, whether based on contract, wrongful act or tort (including negligence), or for any damage or injury to or loss of any vessel, equipment, cargo or stores, or other property or for any consequences thereof shall be limited as specifically set forth above in article 10, and subject to the limitations there set out. In no event shall Sperry Marine’s liability exceed the purchase price of the particular Products with respect to which losses or damages are claimed or which have caused the damage. Sperry Marine shall not have any other or further obligation or liability for any other damages whatsoever. Without limiting the foregoing, liability for consequential damages including but not limited to loss of profit, loss of turnover or damage caused as a result of inoperability of equipment, is expressly excluded.
12.2 The limitations of liability set out in these general terms of sale shall not apply to the extent that it might purport to exclude any liability imposed for product liability under any applicable statute where such liability cannot be so limited or excluded.
12.3 Buyer shall defend, indemnify and hold Sperry Marine harmless from all claims, actions, demands, loss and causes of action from any third party relating to any Product sold to Buyer or the performance of work by Sperry Marine on behalf of Buyer, if and to the extent that under these general terms and conditions, Sperry Marine would not have been liable towards Buyer.
12.4 Sperry Marine shall not be liable for costs and/or damage directly ensuing from any shortcoming of Sperry Marine as a result of Force Majeure. Force Majeure is defined to be any circumstance independent of the control of Sperry Marine - whether foreseeable or not - due to which the fulfilment of the Agreement by Sperry Marine has become impossible or cannot reasonably be demanded from Sperry Marine, or which causes Sperry Marine to default under any of its obligations towards Buyer. Included in Force Majeure (but without limitation) are extreme weather conditions, fire, illness of personnel of Sperry Marine or its service representatives, lockouts and strikes at Sperry Marine’s plants or service stations of third parties to be used by Sperry Marine, difficulties or delay in the supply or delivery by suppliers or from Sperry Marine’s own stock of components or materials, and disturbances within the company of Sperry Marine, its service representatives or suppliers and the inability to obtain export licenses or the suspension of export licenses or approvals which have been issued. If the event of Force Majeure of a temporary nature, fulfilment will be suspended until the circumstance in question has ceased to exist. If Force Majeure is of a permanent nature or if temporary Force Majeure has continued or shall reasonably be expected to continue for more than 90 days, Sperry Marine shall be entitled to terminate the Agreement in whole or in part without any liability.
12.5 Sperry Marine shall not be liable for damages that may occur as a result of inappropriate or inadequate sites, facilities, installations or transport routes provided by the Buyer.

13. Work on Sperry Marine’s premises

13.1 In the event that Buyer or Buyer’s employees or agents enter into Sperry Marine’s premises for any reason in connection with the Agreement, Buyer and such parties shall observe all security requirements and all plant safety, plant protection and traffic regulations. Buyer shall defend, indemnify and hold Sperry Marine harmless from all claims, actions, demands, losses and causes of action arising from injury, including death, to any person, or damage to any property, when such injury or damage results in whole or in part from the acts or omissions of Buyer, Buyer’s employees, agents, representatives, or subcontractors, save and except for damage caused by the gross negligence of Sperry Marine.

14. Patents

14.1 Under the following conditions Sperry Marine shall indemnify Buyer against all actions, costs, demands and claims ensuing from a violation of EU or US patent or patents by the Products or any component thereof. This indemnity is subject to Buyer notifying Sperry Marine of such a claim or alleged violation which is being raised against him, in writing immediately after having become acquainted with it. Furthermore, Buyer shall do everything possible (with the exception of not using the Products in question) in order to limit the extent of the rights, claims, damage and expenses which would have to be paid by Sperry Marine as a result thereof. Sperry Marine shall, at its discretion, be entitled to take over, manage, carry on negotiations of, settle and/or defend any such claim and/or legal proceedings brought against Buyer with respect to the claim or allegation.
14.2 If the validity of the claim or allegation with respect to the Products has been proved to the satisfaction of Sperry Marine or in a court of final instance and the use of these Products is prohibited, Sperry Marine shall at its discretion and at its expense: (a) grant Buyer the right to continue to use the Products, or (b) replace or change the Products in such a way that violation ceases to exist, or where (a) or (b) are not possible, refund to the Buyer the purchase price for the Products. Beyond the aforesaid Sperry Marine shall have no liability whatsoever.
14.3 Sperry Marine shall not have any obligations towards Buyer with respect to any violation of a patent or a claim related to it, which is the result of: (a) change or expansion of the Products according to special designs or specifications provided by or on behalf of Buyer, or (b) the use of the Products in combination with appliances or equipment which have not been made by Sperry Marine, or (c) the use of the Products in a manner for which they have neither been designed nor intended, or (d) violation of any patent in which Buyer or his subsidiary or branch office have any direct or indirect interest on account of a licence or otherwise. The aforesaid provides the sole and exclusive liability of Sperry Marine for or ensuing from violation of a patent or claims related to it.
14.4 The provisions in the preceding paragraphs shall also apply if a claim is based on violation of any trade mark right.

15. Export Control Compliance

15.1 Products may contain parts of multiple origin including USA. Buyer shall comply with all applicable export laws, rules and regulations including but not limited to those of the United Kingdom, Germany, the European Community and the United States of America and will not export or re-export the product in violation of any such laws, rules or regulations. Buyer warrants that all reasonable and appropriate steps will be taken to ensure that any other person or entity purchasing or otherwise acquiring the product from Buyer will not export or re-export in violation of the aforementioned laws, rules and regulations.
15.2 If an Export Licence is required for the performance of any Sperry Marine obligation, including but not limited to supply of Product, Service Work or warranty repairs in accordance with article 10, and such Export License is not granted or having been granted is revoked, Sperry Marine shall have no further obligations to Buyer under this Agreement and this Agreement shall automatically terminate. In case of a cancellation due to this reason the Buyer shall have no right to repayment of costs already incurred by him or for any other compensation howsoever arising but Sperry Marine shall be entitled to all payments for Product or Service Work already performed under this Agreement.
15.3 Orders that in the reasonable opinion of Sperry Marine appear to be in conflict with 15.1 shall not be accepted by Sperry Marine.
15.4 Where an order has been accepted and Sperry Marine subsequently establishes that, in its reasonable opinion, the order is in conflict with 15.1, this order will be immediately cancelled by Sperry Marine. In this case, Buyer shall have no right to repayment of costs already incurred by him or for any other compensation howsoever arising.

16. Applicable Law and Jurisdiction

16.1 The Agreement and all orders concluded between Sperry Marine and Buyer shall be interpreted and governed by the laws of England and expressly exclude the UN Convention on Contracts for the International Sale of Goods.
16.2 Any dispute which may arise from or be related to the Agreement shall first be attempted to be settled through mediation in accordance with the mediation rules of CEDER (England). Should the dispute or any part thereof not be resolved within thirty (30) days of the mediation being commenced or such further period as agreed by the parties in writing it shall be settled by final and binding arbitration in accordance with the Rules of the International Chamber of Commerce (ICC), then in effect. The seat of arbitration shall be London, England and the matter shall be determined by a Tribunal composed of three (3) arbitrators appointed in accordance with the Rules. The proceedings shall be conducted in the English language and costs of the proceedings and the Tribunal shall be assessed by the arbitrators. Sperry Marine reserves the right to file a lawsuit at the location of the customer in case of a delay in payment
16.3 The Agreement is for the benefit of the parties to the Agreement only and nothing in these terms or any other part of the order or the Agreement is intended to provide, or should therefore be interpreted as providing, a right to any party that is not a party to the Agreement to enforce or otherwise benefit from the Agreement or any of its terms.

 

Americas - Terms & Conditions for Sales and Service

 

TERMS & CONDITIONS APPLICABLE TO THE SALES & SUPPORT OF SPERRY MARINE PRODUCTS & SERVICES

APPLICABLITY

The following terms and conditions shall apply to all quotations and resultant sales for marine products. Hereinafter, the term “Sperry Marine” shall mean Sperry Marine, a unit of Northrop Grumman Systems Corporation. The Term "Customer" shall mean the person or firm to whom the quotation is furnished.  In the event of any inconsistency between any of the following terms and conditions and terms and conditions specifically set forth in any quotation, such specific terms and conditions of the quotation shall govern. Acceptance of this quotation is limited to its terms, and Sperry Marine reserves the right to reject any other terms imposed by the purchaser. In addition, Sperry Marine reserves the right to increase the cost of the original quotation in consideration of the acceptance of different or
additional terms and conditions.

DURATION OF QUOTATION

Unless otherwise stated each quotation expires sixty (60) days from the date of the quotation. Quotations are subject to availability at issuance of order.

PRICES

Unless otherwise stated, prices are quoted FCA (Incoterms 2010) Sperry Marine facility or plant. The price applicable to each item shall be the currency amount set forth in the quotation. Prices shall be quoted in U.S. dollars unless otherwise stated in the contract.

TAXES

Unless otherwise stated all prices are quoted excluding all federal, state and local sales, use, excise, or other taxes, and charges in effect at the date of the quotation and directly
applicable to the product covered by the quotation. Unless appropriate exemption certificates are furnished, the amount of all such present and future taxes and charges shall be charged to
the Customer.

PARTIAL SHIPMENT

Sperry Marine shall be permitted to make an invoice for partial shipment of completed products.

PAYMENT AND TITLE

Payment terms applicable to all quotations and resultant sales are in accordance with the terms specified in the quotation letter. Unless stated otherwise in the quotation letter, payment for goods and/or services shall be NET 30 DAYS from the date of invoice. Finance charges will accrue at a rate of one and onehalf percent (1 1/2%) per month (18% per annum) on delinquent invoices. Title shall pass to the Customer upon receipt of payment in full for the Products and Services provided.

DELIVERY

Unless otherwise stated, delivery shall be F.O.B. Sperry Marine plant or facility (in the case of delivery to/from foreign destinations FCA Point of Origin, INCOTERMS 2010 applies). Title and risk of loss shall pass to the Customer at the shipping point. Sperry Marine reserves the right to select the means of transportation and routing of shipments unless the Customer supplies specific instructions, which are incorporated herein by mutual agreement. Shipping dates are approximate and based on prompt receipt of all necessary information from the Customer, and, in the case of export shipments, are also
contingent upon receipt of all necessary export related documents and receipt of any required and approved export license from the U.S. Government. If Customer elects to call for expedited shipments, the Customer will pay the difference between the method of shipping specified in the Purchase Order and the actual expedited rate (cost) incurred. Sperry Marine reserves the right to ship items in advance of the agreed schedule, and the Customer is to pay invoices covering items shipped in advance.

DELAYS AND DAMAGES

Sperry Marine shall not be liable for any loss damages, detentions, or delay resulting from causes beyond reasonable control or resulting from acts of God or a public enemy, acts of any Government in either their sovereign or contractual capacity, priorities, allocations, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unusually severe weather, insurrection or riot, car shortages, damage in transportation, and inability due to causes beyond its reasonable control to obtain necessary labor, materials, or manufacturing facilities. In the event of delays resulting from any such causes, the date of delivery shall be extended for a reasonable length of time, but in no event for less than the period of delay. The receipt by the Customer of any delayed shipment shall, upon
delivery thereof, constitute a waiver of all claims for delay. In no event shall Sperry Marine be liable for special or consequential damages by reason of any delay in delivery or any failure to deliver.

INSTALLATION

Sperry Marine shall furnish an installation drawing showing sizes, weights, mounting and overall dimensions, and other information of interest to the installing activity. The Customer shall furnish all foundations, all interconnections between units and between units and the source of supply, all necessary labor to install and fit the complete equipment, and all necessary material except that which is required to be furnished by Sperry Marine in accordance with the applicable specifications or installation drawings.

SUPERVISION

Upon request, Sperry Marine will provide the Customer a qualified engineer to supervise the unpacking, assembly, and installation of any product and final testing and adjusting thereof. In such case, the Customer shall pay for the time of such engineer at Sperry Marine hourly charge prevailing in the base area from which the engineer operates. In the event supervision is requested by the Customer at a city, town or port where Sperry Marine does not at the time regularly maintain qualified personnel, Customer shall pay the applicable hourly charge as aforesaid for all travel time of such engineer to and from the place of the work and in addition thereto actual living and traveling expenses of the engineer. If the services of any engineer are required for more than eight hours in any workday or for more than forty hours in any workweek, the Customer shall pay for such excess hours at Sperry Marine’ hourly overtime charge prevailing in the engineer’s base area. Customer is responsible for modification of an existing purchase order or issuance of a new purchase order to cover the additional cost of this service.

INSPECTION AND SERVICE

During the warranty period Sperry Marine may, at its expense, without charge to the Customer, inspect at any reasonable time any product installed. If inspection by Sperry Marine is requested by the Customer, whether during the warranty period or subsequent to the expiration thereof, or if repair service or other work ("service work") is requested by the Customer that Sperry Marine is not obligated to perform pursuant to its obligations under the section hereof entitled "Warranty," such inspection or service work shall be provided at Sperry Marine hourly charge prevailing in the base area from which Sperry Marine personnel operate. If the Customer requested such inspection or service work at a city, town or port where Sperry Marine does not at the time regularly maintain qualified personnel, spare parts or equipment to handle the inspection or service work, the Customer shall pay at the applicable charge as aforesaid for all travel time of Sperry Marine personnel to and from the place of inspection or service work, and in addition thereto actual living and traveling expenses of such personnel. If the services of personnel are required for more than eight (8) hours in any working day or more than forty (40) hours in any work week, the Customer shall pay for such excess hours at Sperry Marine hourly overtime charge prevailing in the base area of the personnel. This inspection service cannot be maintained, nor shall performance be guaranteed, should any apparatus other than that supplied by Sperry Marine be used with or attached in any way or modifications made to the equipment, unless written approval has first been secured from Sperry Marine.

WARRANTY

Sperry Marine warrants that all products sold pursuant to the quotation at the time of delivery will be free from defects in material and workmanship under normal use and service and when installed in accordance with the applicable Sperry Marine installation drawing and with Sperry Marine Supervision of Installation (SOI) performed by a Sperry Marine Service Engineer (MSE) or a Sperry Marine authorized Service Representative. Sperry Marine obligation under this warranty shall be limited to defects of which Sperry Marine is notified within twelve (12) months after date of installation (date of
installation is defined as the date that a Sperry Marine authorized Service Representative and the customer representative sign a completed Installation Report) or eighteen (18) months after date of shipment whichever period shall first expire, and shall be limited to the replacement or repair of any defective part or parts. (Except electron tubes and cathode ray tubes (CRT), for which this warranty applies only for a period of ninety (90) days after date of installation or six (6) months after date of shipment, whichever period shall first expire). For service work, as defined in the section “Inspection and Service” preceding this section, the warranty period shall be for a period not to exceed thirty (30) days from date of performance and completion of the service work for equipment for which service is requested and not related to warranty. The warranty for items repaired or overhauled in accordance with Sperry Marine procedure, drawings, designs and specifications and for spare parts shall be for a period not to exceed ninety (90) calendar days from the date of shipment or installation by Sperry Marine personnel. Except for warranty as to title and warranty set forth above, Sperry Marine makes no warranty, express, implied or implied by law as to any product; and EXCEPT AS SPECIFICALLY SET FORTH HEREIN SPERRY MARINE MAKES NO WARRANTY, EXPRESSED OR IMPLIED, OF FITNESS OR MERCHANTABILITY.

No warranty, however, shall be effective as to any product to which is attached any apparatus other than apparatus supplied by Sperry Marine for attachment or specifically approved for attachment by Sperry Marine in writing. Warranty shall also be voided if modifications are made to Sperry Marine provided parts or equipment, by other than a Sperry Marine Service Engineer (MSE) or Sperry Marine authorized Service Representative, unless Sperry Marine specifically approves modifications in writing. Replacement or repair of defective parts pursuant to this warranty shall be made at Sperry Marine
expense at any city, town, or port at which Sperry Marine regularly maintains or has arranged for qualified service personnel, has available equipment to handle such work, and has available replacement parts at the time of notice of defect. If replacement parts are not so available, they can be obtained at no charge, F.O.B. Sperry Marine plant, provided the defective part is returned prepaid for examination or has been found defective by a Sperry Marine authorized Service Representative. In the event that service personnel are not available at the city, town or port at which the Customer requests replacement of a defective part, Sperry Marine shall, at the request of the Customer, furnish qualified service personnel in connection with such replacement, provided that for each service engineer
so furnished the Customer shall pay for travel time to and from such city, town, or port, at the hourly rate prevailing in the base area from which the service engineer operates, plus actual living
and traveling expenses incidental to providing such personnel.

The foregoing provision sets forth Sperry Marine’s complete liability for breach of warranty in respect of, or for any defect or nonconformity in, any product; and Sperry Marine shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above; and, in no event, shall Sperry Marine have any other or further obligation or any liability for special or consequential damages. The publishing of a list of service stations shall not impose or imply any obligation upon Sperry Marine to maintain a regularly established service station at any of the locations specified in such list.

SOFTWARE

Sperry Marine neither represents nor warrants that it will provide later versions of software for any reason whatsoever, including, but not necessarily limited to, correcting errors or adding enhancements or new features. Any such successor versions of software will be released solely at Sperry Marine's discretion and release schedule. If Sperry Marine does offer successor versions of software, Sperry Marine does not and will not make any representations that it will be compatible or operate on hardware currently used by customer to run the current version of software, or that Sperry Marine will provide warranty support or other services beyond the period covered by Customer's current software and applicable hardware warranties.

Customer shall not reverse engineer, decompile or disassemble any software disclosed to it that is Proprietary Information of the Sperry Marine.

LIMITATION OF LIABILITY

Sperry Marine’s liability or responsibility to Customer for any injury to any person (including death), or for damage or injury to or loss of any vessel, equipment, cargo, stores, or other property, or for any consequences thereof (including but not limited to pollution clean up and remediation), shall be limited to those remedies available to Customer under these Terms and Conditions, subject to the limitations and exclusions of remedies and damages herein set out. Sperry Marine shall have no other responsibility or liability, whether claim is made in negligence, strict liability, in tort, or any other legal theory, whether such claim is made by Customer or any party in privity with Customer. In no event shall Sperry Marine’s liability exceed the purchase price of the particular service, equipment or part with respect to which injuries, losses or damages are claimed.

INDEMNIFICATION

Customer agrees to defend, indemnify and hold Sperry Marine harmless of and from any claims, actions, causes of action, demands, losses and judgments arising from any injury to any person (including death), or damage to property, when such injury or damage results in whole or in part from any act or omission of Customer, or Customer’s agents, employees, contractors or subcontractors, in the installation or use of any equipment or parts sold or provided to Customer by Sperry Marine, or the use of any services sold or provided to Customer by Sperry Marine.

LAWS

Any dispute should be resolved by mutual agreement between the parties. If the parties are unable to resolve their dispute despite good faith negotiations, either party may file an action in court to seek appropriate legal or equitable relief. Exclusive jurisdiction over actions relating to or arising under this agreement shall reside in any Federal or Commonwealth Court in the Commonwealth of Virginia having jurisdiction over the parties. This agreement shall be interpreted and controlled by the laws of the Commonwealth of Virginia without regard to its conflicts of laws provisions.

CONTRACTUAL COMMITMENTS

Sperry Marine and the Customer agree that there shall be no adjustments in the price, time for performance, or any other provision on this sale unless an authorized representative of Sperry Marine Contracts Department shall have issued a written order directing a change hereto.

NOTICES

All notices required or permitted to be given hereunder shall be deemed to be properly given if delivered in writing personally or sent by United States certified or registered mail addressed to Sperry Marine or Customer, as the case may be, to the addresses set forth on the face or in the body of the Purchase Order with postage thereon fully prepaid. The effective time of notice shall be at the time of mailing.

WORK ON SPERRY MARINE PREMISES

In the event that Customer or Customer's employees or agents enter onto Sperry Marine premises for any reason in connection with the Purchase Order, Customer and such other parties shall observe all security requirements and all plant safety, plant protection and traffic regulations. Customer shall defend, indemnify and hold Sperry Marine harmless from all claims, actions, demands, loss and causes of action arising from injury, including death, to any person, or damage to any property, when such injury or damage results in whole or in part from the acts or omissions of Customer, Customer's employees, agents, representatives, or subcontractors of Customer save and except damage caused by the negligence of Sperry Marine. Customer, and any contractor used by Customer in connection with this
Purchase Order, shall carry Workmen's Compensation and Employee's Liability insurance to cover Customer and contractor's legal liability on account of accidents to their employees. Customer and any contractor used by Customer in connection with the Purchase Order, shall carry adequate Comprehensive General Liability and adequate Comprehensive Automobile Liability Insurance to cover the legal liability of Customer and the contractor on account of accidents arising out of the operations of Customer or the contractor and resulting in bodily injury, including death, being sustained by any person or
persons, or any damage to property. At Sperry Marine’s request, Customer shall furnish to Sperry Marine certificates from Customer and its contractor's insurers showing such coverage in affect and agreeing to give Sperry Marine ten (10) days’ prior written notice of cancellation of the coverage.

CANCELLATION

The Customer may cancel the Purchase Order only with the consent of Sperry Marine. In the event of any such consent and cancellation, the Customer shall pay Sperry Marine an amount equal to either (i) the sum of (a) the contract price for any completed work not theretofore paid; and (b) all costs reasonably incurred by Sperry Marine in performance of the order and allocable thereto in accordance with generally accepted accounting principles including, without limitation, overhead and general and administrative expense, exclusive of any cost attributable to completed work in (a); and (c) a sum of
profit equal to eighteen percent (18%) of all costs in (b); and (d) an amount equal to the reasonable costs of settling and paying the claims arising out of the canceling of work under any subcontracts or purchase orders, all less the reasonable resale or salvage value of any work or materials allocated to the performance of the Customer's order; or (ii) a fifteen percent (15%) service/cancellation charge based on the part of the contract price being terminated if that amount is greater than the combined totals of (a) through (d) above. In the event of bankruptcy or insolvency of the Customer, or in the event of any proceeding is brought by or against the Customer under any bankruptcy or insolvency laws, Sperry Marine shall be entitled to treat such event as a material breach of the order.

PATENT INFRINGEMENT

Sperry Marine shall defend any suit or proceeding brought against the Customer to the extent that it is based on a claim that any of the products sold pursuant to the quotation constitute an infringement of any patent of the United States. If Sperry Marine is notified promptly in writing and given authority, information and assistance (at Sperry Marine expense) for defense or settlement of the same, and Sperry Marine shall in such case pay all damages and costs which by final judgment shall be awarded there under against the Customer or which shall be agreed upon by settlement provided, however, that no such obligation or liability shall result from the foregoing provision if any such settlement shall be made by the Customer without Sperry Marine consent, and provided further that no obligation or liability shall result from the foregoing provision if and to the extent that any such product is manufactured in accordance with specifications furnished Sperry Marine by the Customer and not based upon Sperry Marine design, and provided further that no obligation or liability shall result from the foregoing provision where infringement results from the addition to any product of, or the use of any product in
combination with, other equipment or supplies not furnished by Sperry Marine for the purpose of such addition or use. If in any such suit or proceeding any product is held to constitute infringement and the use thereof is therefore enjoined (or Sperry Marine consents to the non-use thereof). Sperry Marine shall at its own expense and its option either (i) procure for the Customer the right to continue using such product, or (ii) modify such product to become non-infringing, or replace such product with non-infringing equipment, or (iii) refund the amount paid Sperry Marine therefore less a reasonable
allowance for use, damage, and obsolescence. In the event of any such refund, Sperry Marine shall have the right to remove the product in respect of which such refund is made. The foregoing states the entire liability of Sperry Marine for patent infringement by any product or any part thereof.

INTELLECTUAL PROPERTY RIGHTS

This Purchase Order does not confer or grant, in any manner whatsoever, any license or right under any patent, trademark, trade secret, maskwork, copyright or other intellectual property right held by Sperry Marine, unless specifically set forth in the body of the Purchase Order.

PROTECTION OF INFORMATION

(a) If a separate confidentiality, nondisclosure, or proprietary information agreement exists between Customer and Sperry Marine which relates to this Purchase Order, then confidential or proprietary information furnished by one party to the other party shall be protected pursuant to such agreement, and paragraphs (b) through (g) of this clause shall not apply.

(b) If no separate confidentiality, nondisclosure, or proprietary information agreement exists between Customer and Sperry Marine, paragraphs (c) through (g) of this clause apply.

(c) For purposes of this clause, “Information” shall mean information disclosed to Customer by Sperry Marine in connection with this Purchase Order, which is either identified to Customer as being proprietary or which is information a reasonable person would understand to be such information. Examples of Information include, but are not limited to, pricing policies, business plans or programs,
software, specifications, manuals, print-outs, notes and annotations, performance data, designs, drawings, dimensions, processes, data, reports, photographs, and engineering, manufacturing or technical information related to Sperry Marine’s products, services, equipment or processes, as well as duplicates, copies or derivative works thereof. Information shall not mean any information previously known to Customer without obligation of confidence, or which becomes publicly disclosed, or which is rightfully received by Customer from a third party without obligation of confidence.

(d) Information furnished to Customer shall remain Sperry Marine’s proprietary property, shall be duplicated only as authorized in writing by Sperry Marine, and shall be returned to Sperry Marine upon request or when no longer required for the performance of this Customer Order.

(e) Customer shall not disclose Information to any third party, and shall take all reasonable precautions to prevent the disclosure of Information to third parties, including any foreign national, firm or country, and foreign nationals employed by or associated with Customer’s company except as specifically authorized by Sperry Marine. Customer agrees not to use Information to develop any product, service or system, or to support any third party in the development of any product, service or system.

(f) Data and information provided by Sperry Marine shall be considered proprietary only when marked as proprietary. Sperry Marine’s proprietary data and information will be used by Customer only upon approval by Sperry Marine.

(g) Customer’s obligations with respect to Information disclosed hereunder prior to the performance in full, termination or cancellation of this Purchase Order shall not, except as expressly set forth herein, be affected by such performance in full, termination, or cancellation.