1. Formation of Contract

    1. These terms and conditions ("Terms and Conditions") together with any quotation, proposal, estimate, or fee quote ("Quotation") provided by or on behalf of the Company (as defined in this sub-condition) shall apply to all contracts for the supply of hot isostatic pressing services ("Services") carried out by KITTYHAWK INC DBA KITTYHAWK PRODUCTS ("Company') providing the services contemplated therein to the customer ("Customer").

    2. Written and oral Quotations shall be valid for twelve (12) months from the date thereof and the Company may withdraw any such Quotation at any time.

    3. The Customer wishes to engage the Company to provide services in such capacity and the Company represents that it possesses the skills and expertise required to supply Services per the Customer specifications.

    4. The Company reserves the right to review and amend any Quotation prices where documentation, specification or other materials relating to the Contract have materially changed since the original Quotation was given or where additional services not envisaged by the Quotation are requested, for example, producing written descriptions of detailed procedures undertaken as part of the Services. For the avoidance of doubt, approval of such additional requests shall remain at the Company's discretion.

  2. Prices & Payment

    1. The Customer shall pay the Company the charges set out in the Quotation, if applicable, or as otherwise contemplated for the provision of the Services ("Consideration") and shall pay the Company on demand for any expenses incurred in the provision of the Services ("Costs"), unless expressly agreed otherwise in writing.

    2. The Customer shall pay the Consideration and Costs stated in any invoice for Services provided pursuant to these Terms and Conditions in full, without deduction or set-off, within thirty (30) days of the date stated on that invoice. The Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by the Customer. Any such taxes shall be in addition to the amount of the Consideration. In the event that the Customer is required by law to make such payment of the Consideration subject to the deduction of withholding tax, the sum paid by the Customer shall be increased to the extent necessary to ensure that after such deduction or withholding the Company receives an amount equal to Consideration and Costs it would have received had no such deduction or withholding been required.

    3. The Customer shall pay the Consideration and Costs to the Company by electronic bank transfer in cleared funds in the currency specified in the Company's Quotation, proposal or order confirmation. All payments due to the Company shall be payable within the specified time irrespective of whether or not the Customer has recovered payment from a third party and, for the avoidance of doubt, but without prejudice to the generality of the foregoing, including fees due to the Company when acting as or engaged to serve as experts or as expert witnesses in an adjudicatory proceeding.

    4. When there is a default of payment within the thirty (30) days stated on the invoice, the Company may: suspend any further Services being carried out for the Customer; withhold the provision of Reports (as defined in sub-condition 4.2); alter or withdraw credit terms; and amend terms, prices or Service levels. The amount outstanding from time to time shall bear interest, calculated from the due date of the invoice to the date of receipt of the amount in full at a rate equivalent to 3% per annum above the base rate from time to time of HSBC Bank in the relevant currency specified in the Company's Quotation, proposal or order confirmation.

    5. The Company may retain or set off any sums owed to it by the Customer which have fallen due and payable against any sums due to the Customer under this Contract or any other agreement between the parties or any Affiliated Company of a party. "Affiliated Company' means, in relation to a party, that party, any subsidiary or holding company of that party, and any subsidiary of a holding company of that party.

  3. Services

    1. Subject to the remaining sub-conditions of this condition 4, the Company warrants that it will complete the Services in a satisfactory and workmanlike manner, consistent with industry standards.

    2. The Company will use its commercially reasonable efforts to complete Services and provide written information, results, technical reports, certificates, test or inspection records, drawings, recommendations, advice or the like in respect of the Services (the "Report") or certificate thereon to the Customer by any date reasonably requested in writing by the Customer, but the Company shall not be liable to the Customer for: any delay in the performance of any obligation under the Contract; or damages suffered by the Customer by reason of such delay.

    3. The Company's obligation to complete Services under the Contract shall be subject to any obligation it may have to comply with any law or other regulation binding on it which may be in force from time to time.

  4. Title & Security

    1. Title to the Customer's property which is delivered to the Company and all risk of loss or damage to such property (except for loss or damage caused by the Company and for which and to the extent that the Company accepts liability under these Terms and Conditions) shall remain with the Customer at all times, who shall be responsible for effecting and maintaining its own insurance coverage thereof, it being hereby acknowledged by the Customer that the charges of the Company do not include insurance. The Company may retain all property delivered to it until all sums due and owing to the Company by the Customer have been paid.

  5. Warranties; Remedies

    1. Company warrants that the Services will conform in all respects to the Specifications, as applies to HIP process only, and does not warrant the Products if the Product has a defect unknown to Company. However, if Company deviates from the Specifications provided by the Customer, Company warrants the Products up to the replacement value of the as cast Product. Company will provide the Services in conformance with the Specifications and will exercise the same diligence and degree of care with respect to the performance of the Services for CUSTOMER as is exercised by Company with respect to processing the Products of its other customers. Company will perform the Services in a good and workmanlike manner.

    2. All warranties of Company under this Agreement will survive delivery and will not be deemed waived either by reason of acceptance of the completed Product or payment for the Services by Customer.

    3. If Company damages the Products, or the Products are otherwise damaged while in Company's possession, excluding damages induced by the transportation carrier, in addition to any rights and remedies available in law or equity, Company will, at Customer’s  option, (i) restore such Products to the same condition they were at the time of delivery to Company or (ii) pay the difference between the scrap value of the damaged Products and the replacement cost of such Products.

    4. Rework or reprocessing of material due to Company nonconformance will be sent back to Company for no charge rework.

    5. In the performance of Services hereunder, Company will comply with all applicable laws and regulations.

  6. Title; Bailment; Liens

    1. The parties expressly acknowledge that Company will hold the Customer’s property solely as Bailee for the purpose of performing the Services and subject to the terms and conditions of this Agreement.

    2. Company acknowledges and agrees that it does not and will not be deemed to have any ownership interest, other than Company's materialman's lien, in any Products provided for processing. It is expressly understood and agreed that all rights, title and interest in the Products will be and remain in Customer’s name at all times. Upon demand by Customer, Company immediately will return the Products to the facility specified by Customer in such demand, or immediately make such Products available for pickup by Customer.

    3. Company agrees that while the Products are in Company's possession, Company will clearly identify such Products as property of Customer. Company will, and will commit its subcontractors to, do all things necessary to keep the Products free and clear of all claims, liens and encumbrances. In order to protect Customer’s title to the Products, Customer may, and Company hereby authorizes Customer to, file a financing statement in all appropriate jurisdictions to preserve and protect the interest of Customer in the Products. In the event that Company files for bankruptcy, becomes insolvent or an assignment is made for the benefit of its creditors, (i) Customer will retain all right, title and interest to the Products and the Products will not be "property of the estate" under §541 of Title 11 of the United States Code (the "Bankruptcy Code") or subject to §362 of the Bankruptcy Code; and (ii) Customer shall have the right to enter the premises of Company and retrieve the Products.

  7. Insurance

    1. Company agrees to provide, at its sole expense, Workmen's Compensation and Employer's Liability Insurance protection for all of its employees engaged in the performance of this Agreement.

    2. Company shall procure and maintain in force at all time during the performance of this Agreement: General Liability insurance covering bodily injury, property damage, including contractual liability and property damage and completed operations insurance coverage, in the minimum amount of $1,000,000 each occurrence;

    3. Insurance carriers must have a minimum A.M. Best Rating of A- as of the date of this Agreement, during the term hereof and any renewals or extensions hereof. Prior to and upon completion of this Agreement, Company will furnish to CUSTOMER certificates evidencing the insurance coverages required. CUSTOMER will be included as an additional insured as respects all general liability. CUSTOMER shall not be responsible for any policy deductible or retention for claims. Any such deductible or retention will be the sole responsibility of Company. Company will waive all subrogation rights against CUSTOMER for any claim paid or payable by any of the above-required insurance policies. Certificate(s) delivered to CUSTOMER shall require thirty (30) days prior written notice to CUSTOMER of any change or cancellation in the aforementioned coverage.

  8. Indemnification

    1. Company will indemnify Customer and their successors, assigns, officers, directors, employees and agents against all liability, claims, loss, damage, and expense, including reasonable attorneys' fees that they sustain or incur in the investigation, settlement, attempted settlement, or defense of any claim arising or alleged to have arisen from Company's performance or failure to perform under this Agreement, any breach of the warranties set forth herein or any other breach by Company of this Agreement.

    2. Company will be solely responsible for the selection and operation of equipment and processing to carry out its obligations hereunder and will indemnify, save harmless and defend Customer from and against any and all suits, actions, legal proceedings, claims, demands, damages, costs, expenses and reasonable attorneys' fees incident to any infringement or claimed infringement of any third party patent or patents arising from the equipment used or the methods practiced by Company in its performance of the Services under this Agreement.

  9. Premises

    1. The Company's premises (the "Premises") are a designated security area and:

      1. the Company reserves the right to refuse admission to the Premises;

      2. unless otherwise agreed in advance by the Company, one visitor per Customer may be admitted on request to witness the Services carried out for that Customer; and

      3. visitors to the Premises shall conform to the Company's regulations and procedures.

    2. Where any aspect of the Service is undertaken on premises not occupied by the Company or under its direct control, the Customer must ensure that all necessary safety measures are in place to comply with all applicable health and safety regulations, and save as otherwise agreed in writing between the parties or where identification of asbestos is part of the scope of the Services to be provided by the Company to the Customer, the Customer must ensure all asbestos has been removed and/or is safely contained in every area to be visited by the Company's personnel during the visit to said premises.

    3. In addition to any specific Customer obligations set out in the Quotation and the provisions of sub-condition 11.2, where Services are provided at the premises of the Customer, the Customer shall: (i) provide the Company with necessary access to any Customer premises; (ii) ensure that any premises provided by the Customer for the provision of any part of the Service is suitable for that purpose; (ii) provide all usual auxiliary and operating materials (including gas, water, electricity, lighting etc.) relevant to any Customer supplied premises; and (iv) provide the Company with any permits required for the performance of the Service.

  10. Court and Other Proceedings

    1. In the event that the Customer requires the Company to present the results or findings of Services carried out by the Company in witness statements, court hearings or other legal proceedings, the Customer shall pay to the Company such costs and fees for such presentations and the preparation thereof as the Company may charge to customers generally from time to time for such services and the Customer shall be liable for such costs in addition to the Consideration.

    2. In the event that the Company is required by a party other than the Customer to present the results or findings of Services carried out by the Company for the Customer in any legal proceedings relating to the Customer, the Customer shall pay all costs and fees arising from any services which the Company is required to do as a result, including the preparation of any witness statement and the preparation for and appearance at any court hearing and reasonable travel and out-of-pocket expenses. The Customer shall pay all such costs, whether or not the Customer has paid all outstanding Consideration under the Contract and whether or not the Company has closed the Customer's file in respect of the matter.

    3. If any aspect or element of the Services (including any Sample) is, or is likely to be, the subject of or relevant to legal proceedings, this fact must be notified to the Company in writing before the Services are carried out. If that fact is not disclosed to the Company at that stage, the Company may not, in its absolute discretion, be prepared to provide testimony and/or documentation, or serve as the expert witness on behalf of the Customer.

  11. Confidential Information

    1. During the term of this Agreement and thereafter, each party and their respective employees and representatives shall keep confidential and not disclose to any third party or use any knowledge, information or documentation obtained in connection with the performance of this Agreement or otherwise concerning the other party or its products, customers, business and operations, except for such information which is public domain.

  12. Force Majeure

    1. In the event that either party's performance hereunder is delayed or made impossible or commercially impracticable due to causes such as fire, explosion, strike or other difference with workers, shortage of energy sources, major equipment breakdown, compliance with or other action taken to comply with any law, regulation, or other requirement of any governmental authority, or any cause beyond the reasonable control of the party affected thereby, such party shall have such additional time within which to perform its obligations hereunder as may be reasonably necessary under the circumstances. In the event such a condition exists preventing Company's performance hereunder for a continuous period of ninety (90) days, CUSTOMER shall have the right to terminate this Agreement upon ten (10) days' notice to Company following such ninety (90) day period. It is further agreed that during the period of a force majeure occurrence affecting Company's performance hereunder, CUSTOMER shall have the right to divert Products that would otherwise have been processed by Company pursuant to a Purchase Order to other processors pending cessation of such force majeure occurrence.

  13. Waiver of Compliance

    1. Waiver by either party hereto of a breach by the other party of any of the provisions of these Terms and Conditions shall not be deemed a waiver of future compliance therewith, and such provisions shall remain in full force and effect.

  14. Entire Agreement

    1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.

    2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

  15. Export Control License

    1. For the purposes of this condition, "Export Control License" shall mean any public or governmental license, approval, permit or similar (whether temporary or permanent), issued directly or indirectly, by any United States or foreign authority which, from time to time, it is necessary to obtain in order to be entitled to market, import, export, or re-export products and/or provision of services, and/or transfer of technology and/or Intellectual Property Rights including without limitation, the U.S. Export Administration Regulations, and the U.S. International Traffic in Arms Regulations.

    2. The Company's performance of its obligations under this Contract may, wholly or partly, be subject to Export Control Licenses. If any such Export Control License requires signed end user certificates or any other United States or foreign governmental or court approvals or consents, the parties agree to assist each other in completing the relevant end user certificates or other such approvals or consents and the Customer undertakes to conform to and apply the terms of such, end user certificates, Export Control Licenses or restrictions.

    3. The Customer represents and warrants that it shall inform the Company in writing, prior to the Company carrying out any Service, of any applicable import or export restrictions that may apply to the Services to be provided, including any instances where any products, information or technology may be exported/imported to or from a country that is banned from such transaction.

    4. The Company shall make reasonable efforts to obtain the necessary Export Control Licenses, but the parties acknowledge that the issuance of Export Control Licenses is at the sole discretion of the relevant authorities. If any necessary Export Control License is delayed, denied or revoked, the Company shall notify the Customer thereof in writing as soon as reasonably practicable, and the Company shall be entitled to a corresponding extension of the time for provision of the Services, and, in case any necessary Export Control License denied or revoked, terminate the Contract, wholly or partly, without liability in relation to the Customer.

    5. Should the Services or any product of the Company be subject to any Export Control Licenses or any other United States or foreign governmental or court restrictions, the Customer undertakes to conform to and apply the from time to time valid terms of such Export Control Licenses or restrictions.

  16. Anti-Corruption

    1. The Customer undertakes to comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Foreign Corrupt Practices Act of 1977 and the U.K. Bribery Act 2010 ("Anti-Corruption Laws") and that it shall not do, nor omit to do, any act that will lead to the Company being in breach of any of the Anti-Corruption Laws.

  17. No Waiver

    1. No failure or delay by the Company to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same or of some other right, power or remedy.

  18. Governing Law

    1. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed under the laws of the State of Delaware, USA, without giving effect to any choice or conflict of law provision or rule.

    2. Notwithstanding sub-condition 27.1, the Contract shall be deemed executed and to be performed in the state where the Services are performed ("Jurisdictional State"). Each party irrevocably agrees that any legal suit, action or proceeding arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims) shall be instituted in the state or federal courts located in the Jurisdictional State, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or proceeding in such courts of the Jurisdictional State and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

    3. If any legal proceeding is instituted to enforce or interpret the provisions of the Contract, the prevailing party(s) shall be entitled to recover its, his, her or their costs, including reasonable attorney fees and expert witness fees, from the non-prevailing party(s) in the proceeding. For purposes of this sub-condition 27.3, reasonable legal fees include the reasonable fees, charges, expenses of counsel, whether in house or outside counsel, whether incurred at the trial court level, appeal or in bankruptcy, administrative or probate proceedings or otherwise and court costs.

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NV-100                                                           CA-200                                               OR-300

4730 S Fort Apache, Ste 300                        11651 Monarch St                            301 S Redwood St

Las Vegas, NV 89147                                    Garden Grove, CA 92841                  Canby, OR 97013

www.kittyhawkinc.com                                 P: 714-895-5024                               P: 503-936-4240

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