Terms & Conditions of purchase and sale
- PRICES AND ORDERS
Scheduled delivery dates shall be mutually agreed to by COMPANY and CUSTOMER in the order acknowledgment. Such scheduled delivery dates are targets representing non-binding estimates only and CUSTOMER shall have no claim against COMPANY for any shipment delays. COMPANY reserves the right to make deliveries in installments which shall not relieve CUSTOMER of its obligation to accept and pay for remaining deliveries. COMPANY reserves the right to make shipments at any time up to fourteen (14) days prior to the requested delivery date and CUSTOMER shall not reject tendered Products for the sole reason of such early delivery. For volume-based quotations, if CUSTOMER does not purchase the entire quantity upon which quoted prices were based, CUSTOMER agrees to pay an increased price that reflects the lesser quantity actually purchased. Prices do not include taxes, duties or shipping charges.
- TERMS OF PAYMENT
COMPANY shall invoice CUSTOMER upon each shipment. CUSTOMER shall pay all invoiced amounts within 30 days of shipment. COMPANY reserves a purchase money security interest in the hardware products delivered until all of the COMPANY claims have been paid. COMPANY may change these credit terms if CUSTOMER’s financial condition changes. Each shipment shall be considered a separate and independent transaction.
- TITLE, DELIVERY, AND ACCEPTANCE
All deliveries will be made EXW COMPANY’s shipping dock (Incoterms 2000). Title to hardware products and risk of loss pass to the CUSTOMER at COMPANY’s shipping dock. COMPANY will select the carrier unless otherwise set forth in the accepted order. Upon receipt of each shipment, CUSTOMER shall have ten (10) days to inspect the shipment and make any claims for shortages. All shipments shall be deemed accepted if CUSTOMER does not give notice of a shortage within such ten (10) day period. COMPANY may modify the specifications or manufacturing process for Products after the acceptance of an order for such Products, provided the modifications do not adversely affect the form, fit or function of the Products.
- FORCE MAJEURE
COMPANY shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond COMPANY’s reasonable control. Examples of such causes are acts of God, war, riot, terrorism, embargoes, acts of civil or military authorities, fire, earthquakes, floods, accidents, strikes or shortages of transportation, facilities, fuel, energy, labor or materials. COMPANY may defer delivery for a period equal to the delay caused by such contingency. In the event of product shortages for any reason whatsoever, COMPANY may allocate production among its customers.
- LIMITED WARRANTY
For a period of one (1) year after the shipment date of each Product (as indicated on the applicable sales invoice), COMPANY warrants that the Products, if properly used and serviced, will conform to COMPANY’s published specifications and will be free from defects in material and workmanship. If any Product furnished by COMPANY fails to conform to the above warranty, COMPANY’s sole and exclusive liability shall be, at COMPANY’s option, to repair, replace or credit CUSTOMER’s account with an amount equal to the price paid for any such defective Product returned by CUSTOMER during the warranty period, provided that (a) CUSTOMER promptly notifies COMPANY in writing that such product failed to conform and furnishes a detailed explanation of any alleged deficiency; (b) such product is returned to COMPANY’s facility at CUSTOMER’s risk and expense in accordance with COMPANY’s then-current standard return procedures; (c) COMPANY is satisfied that claimed deficiencies actually exist and was not caused by accident, misuse, neglect, alteration, improper installation, repair or improper testing and issues Return Material Authorization Number for the product’s return. If such product fails to conform, COMPANY will reimburse CUSTOMER for the transportation charges. COMPANY shall have a reasonable time to make repairs to, replace products or credit CUSTOMER for cost of product, at its sole discretion. COMPANY reserves the right to furnish a different version of the Product, provided that it is of at least equal functionality and interchangeable with the Product originally returned. Repaired and replacement Products will be shipped prepaid by COMPANY to CUSTOMER. The shipment of repaired or replacement Products will not extend the duration of the original warranty period, and each repaired or replacement Product will be warranted for the remainder of the original warranty period. The foregoing warranty does not apply in the event of any unauthorized alterations of the Product or any operation outside the environmental specifications of the Product.
EXCEPT FOR THE LIMITED EXPRESS WARRANTIES ABOVE, COMPANY SPECIFICALLY DISCLAIMS ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF CONDUCT OR USAGE OF TRADE. COMPANY NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME ANY OTHER LIABILITIES IN CONNECTION WITH THE SALE OR USE OF ANY PRODUCT.
(a) Default. If CUSTOMER defaults, COMPANY may decline to make further shipments and/or may terminate CUSTOMER’s order without affecting COMPANY’s other rights and remedies, including, but not limited to, any right to cancellation charges and quantity priced adjustments. If COMPANY continues to make shipments after CUSTOMER’s default, COMPANY’s action shall not constitute a waiver nor affect COMPANY’s legal remedies.
(b) Cancellation – Standard Products. Upon written notice to COMPANY, CUSTOMER may cancel any order for standard (non-customized) products scheduled by COMPANY for shipments beyond forty-five (45) days after COMPANY receives CUSTOMER’s cancellation notice. CUSTOMER shall be liable for any quantity price adjustments resulting from such cancellation.
(c) Cancellation – Custom Products. Any product which is customized in any way pursuant to CUSTOMER’s request or specification shall be sold on a non-cancelable, non-returnable basis, and no reschedules will be allowed except by express written consent of COMPANY.
- INTELLECTUAL PROPERTY
As between COMPANY and CUSTOMER, COMPANY retains all right, title, and ownership in and to the technology, hardware and software designs, FPGA and ASIC designs, software/firmware source code, and all other intellectual property associated with COMPANY products, and all intellectual property rights relating to any of the foregoing.
- ASSIGNMENT OF ORDERS
COMPANY may assign all or any part of its rights and or obligations related to any individual order to any COMPANY subsidiary or an authorized representative without CUSTOMER's prior consent. Otherwise, neither party shall delegate any obligations hereunder nor assign any interest or rights, by operation of law or otherwise, without the prior written consent of the other. Any purported assignment or delegation in violation of this Section 8 is void. Subject to the foregoing restrictions, the provisions of this document shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.
- MISSION CRITICAL APPLICATIONS
CUSTOMER covenants that it shall not, and shall not authorize any third party to, use any COMPANY product purchased hereunder in any life-support, health-care, safety, aeronautical, weaponry, navigation or nuclear system or process and will indemnify COMPANY for any losses, liabilities, damages, settlements, costs (including reasonable attorneys’ fees) and expenses in connection with CUSTOMER’s failure to comply with this Section 9.
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