APPLICABILITY OF TERMS AND CONDITIONS
The following terms and conditions form the basis for the offer from Profense, LLC to sell its products to customers. Any modification to these terms and conditions by the Customer either implied or in writing as part of the Customer’s Purchase Order, is explicitly not binding unless authorized in writing from Profense, LLC Contract’s Department. In case of any conflicts between the terms on the face of a Profense, LLC quotation and the terms and conditions set forth below, the terms on the face of the quotation shall control.
AUTHORIZATION TO PURCHASE PRODUCTS
This quote does not constitute Profense, LLC’s agreement to sell goods to customer. Additional documentation, not limited to the End User Certificate may be required to be received and accepted by Profense, LLC to verify authorization to purchase goods. Order will not be accepted or processed until the documentation is approved by Profense, LLC.
This contract shall be governed by and construed in accordance with the laws of the State of Arizona – USA.
Pricing provided by Profense, LLC excludes any federal, state or municipal taxes as well as duties, tariffs or other taxes that may be imposed by the foreign government. Profense, LLC is not responsible for any taxes and is the responsibility of the purchaser to ensure all tax laws are adhered to.
MINIMUM PURCHASE REQUIREMENTS
Minimum purchase requirements are subject to Profense, LLC’s discretion.
Pre-payment, in U.S. dollars, on all orders is required until credit terms are established by Profense, LLC. After credit terms are established, payments received more than 30 days following invoice submittal by Profense, are subject to late charges of 1.5% per month of the balance due. All amounts in excess of established credit terms are subject to prepayment before products will ship.
Profense, LLC will provide lead time at the time of Quotation based on Profense, LLC manufacturing workload, anticipated date of receipt of the Customer’s Order, and Customer delivery date requirements. Actual ship date(s) will be confirmed after acceptance of Order (AAO). Profense, LLC reserves the right to ship orders of the Customer or portions thereof, a reasonable time ahead of any scheduled delivery dates unless delivery is specifically restricted by the Customer in writing prior to such shipment.
All shipments are EXWORKS (EXW) Scottsdale, AZ – USA, unless otherwise indicated on the Profense, LLC quotation. Origin is defined as Profense facility in Scottsdale, AZ – USA. Title to products and risk of loss shall transfer to the Customer at the time products are delivered to carrier at Profense, LLC facility in Scottsdale, AZ. Shipment packaging will be “Best Commercial Practices”. For shipments requiring electronic export information (EEI) filing via the Automated Export System (AES), Customer authorizes Profense, LLC to file any and all information EEI via AES.
Profense, LLC retains all rights of ownership for design, development, and tooling developed in the performance of the contract irrespective of whether nonrecurring payments are made by the Customer.
Profense, LLC retains the right to control and make changes to the technical data package that do not affect fit, form or function, without prior notification or concurrence by the Customer, through Profense, LLC Material Review Board procedure. All change requests provided to Profense from the Customer will be assessed by Profense, LLC for cost (increase or decrease) and schedule impact. Profense, LLC will provide impact analysis to the Customer within seven days. Written acceptance of any contractual changes for cost and schedule impact, and direction to implement changes must be received within seven working days of Profense, LLC impact analysis; otherwise, Profense, LLC will consider the request for change cancelled.
Any data delivered hereunder from Profense, LLC to the Customer may contain trade secrets, proprietary information, or competition sensitive information. Such data will contain a restrictive legend prohibiting disclosure to a third party without Profense, LLC prior written consent. The Customer agrees to abide by all indicated restrictions.
Profense, LLC will not be in default for schedule delays in delivery of products due to Acts of God, fire, embargoes, trade restrictions, labor disputes, unavailability of materials or defaults of suppliers where replacement materials are not readily available or other causes beyond reasonable control of Profense. A revised schedule shall be mutually agreed to by both parties. Profense, LLC will not be responsible for any consequential damages associated with a delay.
TERMINATION FOR CONVENIENCE
In the event that the Customer decides to terminate the contract for their convenience or the convenience of a third party, the Customer will be subject to prorated cancellation charges up to the total value of the contract.
If the Customer breaches any terms or conditions hereof, or is behind schedule in making payment under any other contract between Profense and the Customer, Profense, LLC may in addition to exercising any other right it has under law, accelerate all sums due to PROFENSE, LLC under the terms hereof, and/or terminate the contract and discontinue Profense, LLC performance.
ACCEPTANCE OF PRODUCTS AND PRODUCT RETURNS
Customer must notify Profense, LLC in writing of any damage, shortage, or other discrepancy to Products within 30 days after delivery. After the 30th day, Customer is deemed to have accepted the Products and may not revoke acceptance. Customer cannot return Products without a return material authorization (“RMA”) number. Returned Products must be in original manufacturer’s shipping cartons or equivalent. Customer must return all Products, freight prepaid, as specified in the RMA and pay any restocking charges. At Profense, LLC sole discretion, Profense will return all Products not eligible for return to Customer freight collect, or hold Product for Customer’s account at Customer’s expense.
The Customer warrants that it is solvent and able to meet the payment terms contained herein for the goods placed on order. If the financial condition of Customer at any time does not, in Profense, LLC sole and commercially reasonable judgment, justify continuing performance on Profense, LLC part, Profense, LLC may in addition to any other remedies provided hereunder or available under law, require full or partial payment prior to completion, or may terminate the order. The Customer shall be liable to Profense, LLC for the full contract price, together with any changes or expenses incidental to such termination loss. If the Customer becomes insolvent under Washington State or Federal law, or if a receiver trustee or assignee is appointed for the Customer, such event shall be deemed a material breach of contract thereof.
EXPORT REGULATIONS COMPLIANCE
The Profense M134 Weapon System (and subsequent weapon systems provided by Profense) fall within the rules and regulations of the International Traffic in Arms Regulation (ITAR) as defined in Subchapter M, Part 121.1 Category I – Firearms, Close Assault Weapons and Combat Shotguns; (b) Fully automatic firearms to .50 caliber inclusive (12.7mm).
The information within this website (and is subsequent marketing presentations) in accordance with § 125.4 Exemptions of general applicability; (b) (6).Technical data, including classified information, related to firearms not in excess of caliber .50 and ammunition for such weapons, except detailed design, development, production or manufacturing information.
As such, any Profense customer represents that it shall comply with all applicable export and import laws and regulations during performance of this Agreement, including but not limited to, the U.S. Arms Export Control Act (AECA), as amended, the International Traffic in Arms Regulations (ITAR), as amended, the Export Administration Act (EAA), as amended, the U.S. Export Administration Regulations (EAR), as amended, the Foreign Assets Control Regulation (OFAC-FACR), as amended, The Trading with the Enemy Act (TWEA), as amended, the International Emergency Economic Powers Enhancement Act (IEEPA Enhancement Act), as amended, the Bureau of Alcohol, Tobacco, Firearms & Explosives (BATFE), as amended, Customs Regulations (CR), as amended, and Foreign Trade Regulations (FTR), as amended. The Customer shall not export, disclose, furnish or otherwise provide any article, technical data, technology, defense service, or technical assistance of Profense, LLC to any foreign person or entity, whether within the U.S. or abroad, without obtaining, in advance, appropriate U.S. government export authorization. Customers shall indemnify and hold Profense, LLC harmless against any loss, cost (including reasonable attorneys’ fees), penalty, claim or demand on any kind arising out of or occasioned by any violation of this section or change thereof.
Profense, LLC warrants all products manufactured by Profense, LLC and when used in accordance with instructions will be free from defects in workmanship and materials for a period of one year from the date of shipment. Those units found to be defective by the factory will be repaired free of charge for parts and labor. All freight and duties are the responsibility of the owner; however, return freight will be paid by Profense. The Warranty is specifically in lieu of all other warranties, expressed or implied, and does not apply to any unit, which has been subject to misuse, neglect or accident. Profense, LLC will be the sole determiner as to unit misuse, neglect or accident. Profense, LLC obligation hereunder shall be limited to the remainder portion of the original Warranty. In no event shall Profense, LLC be liable to the purchaser for loss of profits, loss of use or consequential damages of any kind. Products supplied by Profense, but manufactured by other manufacturers, will be covered by that manufacturer’s warranty only. These products should be returned for repair to a repair facility authorized by that manufacturer.
If any form of this agreement or other application thereof in any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this agreement and the application of such term to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby and each term of this agreement shall be valid and shall be enforced to the fullest extent permitted by law.
Rev A Sep 2014