All quotations, products, and services provided by the seller named in the order quote or order acknowledgement or its representatives (“Seller”) to its customer, distributor, original equipment manufacturer, end-user, or other purchaser (“Buyer”) are furnished only on the terms and conditions stated herein (collectively, “Terms”). By ordering and accepting delivery of tangible goods (“Products”) and/or services (“Services”) from Seller, Buyer agrees to and accepts these terms and conditions and agrees that, unless modified by separate negotiated agreement as provided below, these terms and conditions, together with the item, quantity, price, and similar terms as set out in Seller’s written quotation, order acknowledgment, and/or invoice, constitute the entire agreement between Seller and Buyer (“Agreement”), superseding all other communications and documentation. Seller hereby expressly rejects any different or additional terms or provisions, preprinted or otherwise, contained or referenced in any purchase order or other documentation furnished by Buyer, whether before or after delivery of Products or performance ofServices, even if receipt thereof is acknowledged by signature or otherwise, and Seller shall not be required to separately object thereto.
QUOTATIONS & PRICES: Quotations are valid only for the period stated therein, and may be changed or withdrawn at any time prior to written acceptance. Clerical or typographical errors are subject to correction. Unless otherwise specifically agreed by Seller in a separate written agreement or quotation, all prices are subject to change at any time without notice. Prices exclude, and Buyer is responsible for payment of, any sales, use, excise, value added, goods and services, customs, documentary, import/export, or similar tax, tariff, fee, or duty now or later imposed upon the production, storage, sale, transportation, or use of the Products or Services, all of which, if paid or provided by Seller, will be invoiced to and paid by Buyer in addition to the price unless, in the case of taxes, Buyer provides an exemption certificate acceptable to the applicable taxing authority.
ORDERS & ACCEPTANCE: Orders must be presented in writing or via electronic means acceptable to Seller and will be considered accepted only by written or electronic order acknowledgment or shipment of the Products ordered or performance of the Services. Seller reserves the right, at its option and without liability, to refuse any order, in whole or in part, or to specify an alternate delivery schedule if orders from all sources exceed its inventory or ability to deliver. Where orders are placed, acknowledged, and/or invoiced by electronic transmission, the data transmitted will be deemed “in writing” and “signed;” and any printout of electronic transmissions maintained in the ordinary course of business will be considered an “original” and admissible as between the parties to the same extent and under the same conditions as other business records maintained in documentary form. Seller shall be entitled to assume that persons placing orders on behalf of Buyer (electronically or otherwise) are authorized to and do so to accept the terms and conditions herein.
CHANGE & CANCELLATION: Changes requested by Buyer after order acceptance must be submitted in writing and are subject to written acceptance by an authorized representative of Seller. Costs and/or delays resulting from such changes will be solely determined by Seller and binding on Buyer. Seller's performance is subject to either pre-payment by Buyer or Seller’s approval of Buyer's credit, and Seller may cancel or suspend performance of any order if Buyer fails to meet any of its obligations herein.
SHIPMENT, INSPECTION, AND RISK OF LOSS: Seller will endeavor to deliver accepted orders promptly; it is understood, however, that dates indicated for delivery or performance represent best current estimates only and Seller will have no liability for failure to perform within such dates. Unless otherwise agreed in Seller’s written order acknowledgement, all shipments within the United States of America will be FCA origin and all orders outside the United States of America will be EX Works (in each case per Incoterms 2010). Title and risk of loss will pass to Buyer when Products are delivered to carrier (subject to Seller’s rights as an unpaid creditor) and, if not previously accepted, receipt of delivery by or on behalf of Buyer will constitute acceptance of these Terms. Buyer is responsible for all freight, shipping, handling, and insurance costs and any such amounts prepaid by Seller will be invoiced to and paid by Buyer. Buyer must inspect all Products upon arrival and provide written notice, within 5 business days, of any claim for shortage or other nonconformance. If Buyer fails to give timely notice, all Products will be deemed to conform to the order and deemed accepted. Use or resale of Products in any manner by Buyer or any of its employees, officers, directors, agents, representatives, contractors, licensees, or affiliates (“Representatives”) after delivery without Seller’s express written consent will also constitute acceptance. Any claim for loss or damage in transit should be made directly to the delivering freight carrier and/or insurance provider and will not affect Buyer’s liability to pay the full invoice price to Seller.
PAYMENT: For customers without approved payment terms, all orders require payment prior to shipment by COD, letter of credit, or other payment method approved by Seller, unless otherwise specified in Seller’s written quotation or acknowledgement. Seller’s standard payment terms are Net 30, subject to credit approval. Payment terms, if any, require Seller’s written approval and are calculated from date of invoice. Deposits or stage payments, if any, are non-refundable; no discount for early payment is authorized without Seller’s written consent. If deemed necessary by Seller, partial shipments will be made and Buyer will be invoiced for each partial shipment. Payment terms will not be affected by any delay in delivery, installation or acceptance; provided, however, that if shipment of Products or performance of Services is delayed due to Buyer’s acts or omissions, payment will be due on the scheduled shipment date, and the Products will be stored at Buyer’s expense and risk for the duration of such delay. Notwithstanding credit approval, Seller reserves the right to modify payment terms if, in its sole opinion, the payment record or financial condition of Buyer warrants. If Buyer is delinquent in any payment due, Seller in its discretion may exercise any and all available remedies hereunder or at law, including set off, and may institute credit hold procedures on all open orders. Future orders will not be confirmed until Buyer’s account is brought current, including any outstanding interest charges. A service charge of 1% per month may be charged on all past due balances. Seller reserves a purchase money security interest in the Products and any accounts receivable, general intangibles, or proceeds arising from the sale, license, or disposition of the Products, until the entire amount due Seller under this Agreement has been paid in full. If Buyer defaults and this account is turned over to an agency and/or attorney for collection, Buyer will pay all reasonable attorney fees and/or the cost of collection whether or not suit is filed.
LIMITED WARRANTY: Seller Products and Software are warranted in accordance with the applicable limited warranty set out below (“Warranty”). The Warranty is effective only upon payment in full for the item(s) to be warranted, extends only to Buyer, and may not be transferred to third parties by operation of law or otherwise. The Warranty may be altered or terminated by Seller in whole or in part for future sales at any time, without prior notice. No employee, agent, dealer, reseller, or other person is authorized to modify, vary, or extend the Warranty or to assume for Seller any other liability in connection with its Products.
Seller Products: Each Product manufactured by Seller is warranted to be free from defects in material and workmanship under normal use and service. The warranty period is controlled by the documents furnished with each Product and begins on the date of shipment. This Warranty does not cover consumables or Services.
Seller Software: Seller warrants that the media on which all Seller software is furnished will be free from defects in materials and workmanship and the Software, when properly installed, will operate substantially in accordance with Seller’s published functional specifications at time of sale, in each case under normal use in accordance with Product instructions, for one (1) year from date of invoice. Seller does not warrant that the operation of the Software will be uninterrupted or error free. Buyer is responsible for providing and maintaining current back-ups and industry standard, updated, virus protection and firewall programs for its systems and data.
Third Party Products: Products and Software not manufactured by Seller are warranted only by the original manufacturer and only if and to the extent set forth in the original manufacturer’s warranty. Seller will not be liable for any damage or loss of any nature with respect to such third party products or failure of any such supplier to perform under its warranty.
Limited Remedy: Any breach of the foregoing warranties must be reported prior to expiration of the applicable warranty period, and Buyer’s exclusive remedy and Seller’s entire liability for breach of the foregoing warranties will be repair or replacement, at Seller’s option, of the non-conforming Product or part or, if neither is in Seller’s opinion commercially feasible, refund of an amortized portion of the purchase price paid for the Product. Any replacement of Products or software may be made by substitution of similar or upgraded Products having the same or similar functionality. For repairs covered by Warranty, the Product will be returned to Buyer at Seller’s expense. For Seller Software, Seller will provide software support, updates and upgrades for the duration of the Warranty period during normal working hours or at an additional charge outside normal working hours. Seller will not provide support or upgrades for Software not representing the then-current or most recent upgrade for the Product to be serviced. If Seller determines that an exclusion from coverage applies (see Exclusions below), or for service after expiration of the Warranty period, Seller will contact Buyer with a cost of a replacement product. Product repairs after the expiration of the warranty will not be serviced. Seller will provide an estimate of repair costs and obtain authorization before commencing the work. Following non-warranty repair, the Product will be returned to the Buyer, and Buyer will be billed for the repair and return transportation charges.
Exclusions: Seller’s Warranty does not cover defects or problems caused by Buyer’s acts (or failure to act), the acts of others, or events beyond Seller’s reasonable control. Without limiting the foregoing, any warranty claim, support claim, or liability is excluded, and Buyer shall be solely responsible, for any problem, failure, malfunction, defect, claim, damage, liability, or safety issue arising out of (1) accident, theft, misuse, abuse, extraordinary wear and tear, or neglect, including without limitation damage in transit or storage, improper or inadequate handling, storage, care, or maintenance; (2) misapplication, improper use, or other failure to follow Seller’s product instructions and safety precautions, including without limitation use or storage of Products outside of normal or specified operating or environmental conditions or specifications, or in a manner not authorized in the applicable Product documentation; (3) use of Products in conjunction with, physically installed on, or as a component of non-Seller equipment, hardware, software, components, services, accessories, attachments, interfaces, or consumables, other than those supplied or specified by Seller; (4) Products that have been repaired or maintained by anyone other than a Seller authorized service provider; (5) computer viruses, failure of electrical power, and other changes to the operating system or environment that adversely affect the Product, including without limitation acts of God, electrical power surges, or other causes external to the Products; or (6) latent defects discovered after expiration of the applicable warranty period. Modification, disassembly, rewiring, re-engineering, recalibration, and/or reprogramming of Products other than as specifically authorized by Seller in writing is prohibited and will void all warranties.
Certain Legal Limitations: The foregoing warranties give Buyers specific legal rights which may vary based on local law. When, under applicable law, implied warranties are not allowed to be excluded in their entirety, such warranties will be limited to the duration of the applicable written warranty and, for European customers, any terms herein limiting Seller’s liability shall not apply insofar as they conflict with mandatory statutory provisions of the Product Liability Act.
To the full extent allowed by law, the foregoing limited warranties and remedies are exclusive and expressly in lieu of all other warranties, representations, terms, or conditions, written or oral, express or implied, statutory or otherwise, including but not limited to any warranties, terms or conditions of merchantability or fitness for a particular purpose, satisfactory quality, correspondence with description, and non-infringement, all of which are hereby expressly disclaimed.
PRODUCT SPECIFICATIONS AND VALIDATION: All Products, when delivered by Seller, will conform to specifications as set out in Seller technical files; however, Buyer is responsible for validation of each specific Product application and any use of Products as a component of, physically installed on, or in conjunction with any Products not provided by Seller for such purpose, including all necessary testing and qualification, and will put in place all necessary protections to ensure that any failure or defect relating to Products will not result in any other or further liability, damage, or safety issues. Any description, sample, or model is for identification or illustrative purposes only and does not constitute a warranty of any sort. Seller’s responsibility shall not include any further liability for or arising out of any non-Seller products in which or with which Seller’s Products may be installed, combined, or used. Seller reserves the right to discontinue or change the design or specifications of its Products at any time, and will use commercially reasonable efforts to notify Buyer of any decision to discontinue Products or any material change in specifications affecting form, fit or function.
USE RESTRICTIONS & REQUIREMENTS: Buyer is responsible for compliance with all applicable laws, regulations, codes, recommendations, and requirements of government authorities and for obtaining all licenses and permits pertaining to the purchase, installation, operation, and/or use of the Products or their subsequent sale, shipment, transfer, or disposition, including any use or sale with or as a component of non-Seller products, it being understood that Seller makes no warranty of any kind regarding compliance with such requirements. All international orders are contingent upon approval of export licenses required by the Government. Buyer may not (1) modify, alter, disassemble, or make any changes to any Products by Seller, including but not limited to Product Software, firmware, packaging, labels, and instructions for use, or permit any third party to do so, without Seller’s prior written consent; (2) import, export, sell, transfer, service, store, handle, distribute, or use any product, or item supplied hereunder in any manner prohibited by applicable laws and regulations, including all applicable export control laws, restrictions and regulations, or contrary to any written warning or instruction given by Seller herein, in the Product documentation, on Seller’s website, or otherwise; or (3) make any representations or warranties on behalf of Seller as to the quality, merchantability, fitness for a particular use, or other features of the Products. Buyer agrees to hold Seller harmless from all liabilities, claims, losses, damages, and expenses (including without limitation reasonable attorneys’ fees and expenses) arising out of Buyer’s breach of these Terms.
PROPRIETARY INFORMATION: Buyer acknowledges that Seller’s Products and Services are based upon and embody various confidential and/or proprietary technology, processes, methods, information, and trade secrets of Seller and its suppliers and licensors. Seller and its suppliers or licensors (as applicable) shall exclusively own all inventions, technology, know-how, trade secrets, and other proprietary information of any kind used or embodied in the Products or Services, documentation, drawings, designs, specifications, Software, and other items furnished by Seller, all intellectual property rights with respect thereto, and all reproductions or derivatives thereof in any form (“Proprietary Information”). Buyer shall neither acquire nor claim any right, title, or interest in, and shall exercise reasonable care to maintain the confidentiality of, Seller’s Proprietary Information and shall use the same solely as required for its authorized use of Seller’s Products or Services as supplied hereunder. Buyer may not directly or indirectly (1) copy, adapt, develop, disassemble, reverse engineer, recast, compile, decompile, translate, or create derivative works from any Products or Services, instructions, manuals, schematics, or other items provided by or on behalf of Seller, or permit any third party to do so, (2) remove, alter, or obscure any copyright, trademark, patent, logo, government restricted rights, or other notices or legends from items provided by Seller, or (3) disclose or use Seller’s Proprietary Information for commercial purposes or in a manner detrimental to Seller. Disclosures of Proprietary Information may be made only to Buyer’s Representatives having a specific need to know and a written obligation to protect such information no less restrictive than the restrictions herein, and Buyer will be responsible for any breach by its Representatives. It is agreed that any breach of this Section may cause Seller irreparable harm for which recovery of damages would be inadequate, and that immediate injunctive or other equitable relief is appropriate and available to Seller to prevent any violation, threatened or actual, in addition to other remedies and without proof of actual damage.
SOFTWARE & FIRMWARE: Any software provided by Seller, including without limitation internal system code, firmware, and/or operating system software (“Software”) is licensed, not sold, and is provided upon the terms and subject to the conditions set forth in the applicable license agreement, the terms of which will prevail over any contrary terms and conditions herein. Buyer will be deemed to have agreed to the terms of any applicable licenses by opening the media envelope or by installing or using the Software or the product in which it is installed. Seller or its suppliers or licensors own all such Software and, unless otherwise provided in the applicable license agreement, Seller grants Buyer, only for so long as Buyer owns the Product, a personal, non-exclusive license to Buyer to use such Software only in machine readable form for use on a single unit of the Product. Title to the software remains with Seller or its suppliers, and rights not expressly granted to Buyer are hereby expressly reserved. Buyer may not copy or duplicate the Software, in whole or in part (other than one back-up copy, bearing all original copyright notices, for archival purposes), or transfer, sublicense, distribute, sell, lease, rent, or otherwise provide or disclose any such Software, or any portion thereof, to any third party, including without limitation any use over the internet or through an application service provider model, except that Buyer may sublicense the software along with the transfer of the Product to another party. Buyer may not circumvent any usage or other restrictions imposed by any license manager, or modify, adapt, copy, recast, alter, compile, decompile, translate, or create any derivative work based on the Software, or use the same for application development purposes. The license granted to Buyer will terminate if Buyer discloses or transfers the software to others without Seller's consent or discontinues use of the Product for which such Software is provided.
LIMITATION OF LIABILITY: No claims, regardless of form, arising out of the Products, Services or transactions to which these Terms apply may be brought by Buyer more than 2 years after the cause of action arises or performance is completed or terminated, whichever is earlier. With respect to bodily injury liability to third parties, each party will be responsible in such proportion as reflects its relative fault for damages arising from or related to the use or operation of Seller’s Products; provided, however, that Seller will have no responsibility whatsoever and, unless prohibited by applicable law, Buyer will defend and hold harmless Seller from and against, any losses, liabilities, damages or injuries arising out of (1) the handling, storage, installation, operation, service, or use of any product in violation of these Terms, (2) any non-Seller or custom design, manufacture, or installation of Products pursuant to Buyer’s requirements, specifications or designs. This Section states each party’s entire liability for bodily injury. IN NO EVENT WILL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR OTHER INDIRECT DAMAGES OR LOSSES, INCLUDING WITHOUT LIMITATION LOSS OF DATA, HOWEVER CAUSED, WHETHER OR NOT FORESEEABLE, AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND SELLER’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE FOR ANY AND ALL CAUSES SHALL BE LIMITED TO THE PURCHASE PRICE PAID OR PAYABLE FOR THE APPLICABLE PURCHASE ORDER. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FOR EUROPEAN CUSTOMERS, THE FOREGOING SHALL BE MODIFIED SOLELY AS REQUIRED UNDER THE PRODUCT LIABILITY ACT, IT BEING AGREED THAT CLAIMS OVER AND ABOVE THOSE UNDER THE PRODUCT LIABILITY ACT WILL NOT BE MADE BY BUYER AGAINST SELLER, AS MANUFACTURER, UNDER ANY THEORY OF LIABILITY, INCLUDING BY MEANS OF INDEMNIFICATION OBLIGATIONS.
Buyer acknowledges that these limitations of liability are a material part of the bargain between the parties and are reflected in product pricing, which would be higher without these limitations.
EXCUSABLE DELAYS: Seller will not be liable for non-performance or delay in performance when such delay is directly or indirectly caused by or in any manner arises from events beyond its reasonable control, including without limitation delay or failure to deliver by Seller's suppliers, fires, floods, accidents, riots, war, governmental action or embargoes, strikes, or shortages of materials or labor, or other causes (whether or not similar to those specified) beyond its control. For delays resulting from such causes, time for performance will be correspondingly extended, and Seller agrees to make, and Buyer will accept, delivery or performance at a reasonable time after the causes for delay or non-performance have been removed.
ASSIGNMENT: This order is not assignable without Seller’s prior written consent. This Agreement is binding upon and enforceable against any successor or permitted assignee.
GOVERNING LAW: Except where expressly prohibited by statutory or constitutional restrictions governing choice of law by a political subdivision, agency, or instrumentality, these Terms, all transactions to which they may apply, and any disputes arising out of Products supplied or Services performed hereunder will be governed by the laws of the State of Delaware and the United States of America, excluding any conflict of law provisions thereof. Buyer and Seller consent to the mandatory jurisdiction of the Federal or State courts of Delaware or Seller’s principle place of business. The United Nations Convention on Contracts for The International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods, and any applicable international discovery and service of process conventions will be inapplicable.
WAIVER, SEVERABILITY: The failure of Seller to enforce any provision of this Agreement will not constitute a waiver of that provision. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, then that provision will be amended to achieve as nearly as possible the same economic and practical effect as the original provision and the remaining provisions of this Agreement will not be affected.
CREDIT REPORT AUTHORIZATION: Buyer consents to Seller’s use of a consumer credit report to evaluate the credit worthiness of Buyer in connection with the extension of credit as contemplated by this Agreement.