Seller warrants that the Goods sold, expressly excepting any Goods made for Buyer according to Buyer's specifications, donot infringe any valid U.S. patent or copyright in existence as of the date of shipment. This warranty is given on the condition that Buyer promptlynotifies Seller of any claim or suit involving Buyer in which such infringement is alleged and cooperates fully with Seller and permits Seller to controlcompletely the defense, settlement or compromise of any such allegation of infringement. Seller's warranty as to utility patents only applies toinfringement arising solely out of the inherent operation according to Seller's specifications and instructions of such Goods. In the event such Goodsare held to infringe such a U.S. patent or copyright in such suit, and the use of such Goods is enjoined, or in the case of a compromise or settlement bySeller, Seller shall have the right at its option and expense, to procure for Buyer, the right to continue using such Goods, or replace them with noninfringingGoods, or modify same to become non-infringing, or grant Buyer a credit for the depreciated value of such Goods and accept return of them.In the event of the foregoing, Seller may also, at its option, cancel the agreement as to future deliveries of such Goods, without liability. In no eventshall Seller be liable for any incidental, consequential or punitive damages.
Seller shall not be liable for delays in performance or for non-performance due to any cause beyond itsreasonable control including, but not limited to, acts of god; acts of buyer; war; fire; flood; weather; sabotage; epidemics; strikes or labor disputes; civildisturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders, invasions, insurrections of a larger extent, or actions;unavailability of or delays in transportation; default of suppliers; or unforeseen circumstances or any events or causes beyond Seller's reasonablecontrol. Deliveries or other performance may be suspended for an appropriate period of time or cancelled by Seller upon notice to Buyer in the eventof any of the foregoing, but the balance of the agreement shall otherwise remain unaffected as a result of the foregoing. If Seller determines that itsability to supply the total demand for the Goods, or to obtain material used directly or indirectly in the manufacture of the Goods, is hindered, limitedor made impracticable due to causes set forth in the preceding paragraph, Seller may allocate its available supply of the Goods or such material(without obligation to acquire other supplies of any such Goods or material) among its purchasers on such basis as Seller determines to be equitablewithout liability for any failure of performance which may result therefrom.
In the event of Buyer cancellation, for convenience or default, Buyer assumes all liability to Seller for payment of the (a) Goodsdelivered, (b) finished good inventory, (c) work in process, and (d) raw materials on order at time of cancellation required per any and all purchaseorders, stocking agreements, VMI, Min/Max requirements, blanket orders, material agreements, or releases.
Buyer may request changes or additions to the Goods consistent with Seller's specifications and criteria. In the event such changes oradditions are accepted by Seller, Seller may revise the price, license fees and dates of delivery. Seller reserves the right to change designs andspecifications for the Goods without prior notice to Buyer, except with respect to Goods made to order for Buyer. Seller shall have no obligation toinstall or make such change in any Goods manufactured prior to the date of such change.
Seller reserves the right to re-quote if the performance or dimensional criteria change prior to Buyer’s order placementor during the period of fulfilling Buyer’s order.
Timely performance by Seller is contingent upon Buyer’s supplying to Seller, when needed, all required technical information,including drawing approval, and all required commercial documentation. All drawings furnished by Seller to Buyer are proprietary and remain theexclusive property of Seller, and are to be used by Buyer only for the purpose of operating and maintaining the Product(s), and not for manufacture ofduplicate or similar requirement or parts by others.
All production equipment, including custom tooling, dies, and fixtures shall be Seller’sproperty which Seller be free to move, transfer, dispose of, or use in any manner or for any purpose whatsoever, including but not limited toproduction of products for other customers.
All tooling, jigs, dies, Fixtures, materials, and other property supplied or paid by Buyer will bemaintained by Seller to meet the performance requirements to Buyer’s order. Seller will not be responsible for any loss or damage to property orother equipment furnished by Buyer for any reason, whether or not caused by the negligence of Seller, and Seller shall befree to move, transfer,dispose of, or use such property in any manner or for any purpose whatsoever without notice to Buyer. Seller shall nto be required to identify suchproperty or to account to Buyer in any way for such property at any time. Buyer agrees to indemnify and save Seller harmless from claims and expense(including expense of litigation) for bodily injury and property damage which may arise or result from the use of Buyer’s property, whether or notarising from joint or concurring negligence of other parties.
The Goods sold hereunder are not for use in connection with any nuclear, medical, life-support and other high risk applicationswhere failure could lead to loss of life or catastrophic property damage. Buyer accepts Goods with the foregoing understanding, agrees tocommunicate the same in writing to any subsequent purchasers or users and to defend, indemnify and hold harmless Seller from any claims, losses,suits, judgments and damages, including incidental and consequential damages, arising from such use, whether the cause of action be based in tort,contract or otherwise, including allegations that Seller's liability is based on negligence or strict liability.
Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Seller, andany such assignment, without such consent, shall be void.
Indirect and/or Non-Recurring Set Up (NRSU) fees, which may include but are not limited to, machine set up,engineering fees, CAD programming fees, tool and/or die design, maintenance and/or production; if any, are in addition to the price of the Goods andare due and payable upon completion of the Indirect and/or NRSU activities. All such Indirect and/or NRSU activities shall be and remain the propertyof Seller. Charges for Indirect and/or NRSU activities do not convey to Buyer, title, ownership interest in, or rights to possession or removal, or preventtheir use by Seller for other purchasers, except as otherwise expressly provided by Seller and Buyer in writing with reference to this provision.
Orders received in response to Seller quotations are subject to acceptance by Seller. When accepted, Seller will furnishspecified goods at quoted prices according to the schedule in Seller’s sales order acknowledgment. In the event of changes, Seller reserves the right tosuspend manufacture and delivery of goods on Buyer’s order pending mutual acceptance of the revisions. Seller reserves the right to discontinuedeliveries under Buyer’s order by reason of unfavorable changed in Buyer’s financial condition, credit status, or payment history.
Seller's intellectual property, including without limitation, all patents, copyrights, trade secrets, trade-dress and any otherintellectual property of any kind (including without limitation, that which exists in the underlying technology), furnished by Seller to Buyer inconnection with this agreement is the property of Seller and Seller retains all rights, including without limitation, exclusive rights of use, licensing, andsale. Possession of Goods, pre-production units, specifications, prints or drawings, or any other materials does not convey to Buyer any rights or licensethereto. If Seller, or any person employed by or working under the direction of Seller, conceives or first reduces to practice: (a) any invention whetherby virtue of experimental, development or research activities, including engineering related thereto and whether or not patentable; (b) any reductionto practice of any subject matter, application or discovery which could be patented or copyrighted; or (c) any improvement in the design of the Goodsor any alternative or improved method of accomplishing production of the Goods, referred to as “Inventions”, such Inventions shall be owned by Sellerand deemed confidential and the propriety property of Seller.
In connection with the transactions contemplated by this agreement, Buyer is familiar with and shall fully complywith all applicable laws, regulations, rules and other requirements of the United States and of any applicable state, foreign and local governmentalbody in connection with the purchase, license, receipt, use, transfer and disposal of the Goods.
Buyer agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitationthose of the United States and the European Union, and the jurisdictions in which the Seller and Buyer are established or from which Goods may besupplied, will apply to their receipt and use. In no event shall Buyer use, transfer, release, import, export, Goods in violation of such applicable laws,regulations, orders or requirements.
In the event Buyer supplies Goods to the U.S. government or to a prime contractor selling to the U.S.government, the following Federal Acquisition Regulation (FAR) clauses are accepted by Seller and are made part of this agreement applicable to suchsupply: 52.222-21 prohibition of segregated facilities; 52.222-26 equal opportunity; 52.222-35 equal opportunity for special disabled veterans, veteransof Vietnam era, and other eligible veterans; 52.222-36 affirmative action for workers with disabilities; and 52.219-8 utilization of small businessconcerns. No additional FAR or FAR supplement clauses are accepted by Seller. In the event Buyer elects to sell Goods to the U.S. government or anynational, state, provincial or local non-U.S. governmental entity or to a prime contractor selling to such entities, Buyer does so solely at its own optionand risk, and agrees not to obligate Seller as a subcontractor or otherwise to the U.S. government or other governmental entity except as described inthis section 18. Buyer remains solely and exclusively responsible for compliance with all statutes and regulations governing sales to the U.S.government or any national, state, provincial or local non-U.S. governmental entity. Seller makes no representations, certifications or warrantieswhatsoever with respect to the ability of its Goods or prices to satisfy any such statutes and regulations.
These Terms and Conditions supersede all other communications, negotiations and prior oral or written statements regardingthe subject matter of these Terms and Conditions. No change, modification, rescission, discharge, abandonment, or waiver of these Terms andConditions shall be binding upon the Seller unless made in writing and signed on its behalf by a duly authorized representative of Seller. No conditions,usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these Terms andConditions shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification or additional terms shall beapplicable to these Terms and Conditions of sale by Seller's receipt, acknowledgement, or acceptance of purchase orders, shipping instruction forms, orother documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are herebyrejected and deemed a material alteration hereof. No waiver by either party with respect to any breach or default or of any right or remedy, and nocourse of dealing shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiverbe expressed in writing and signed by the party to be bound. All typographical or clerical errors made by Seller in any quotation, acknowledgement orpublication shall be subject to correction by Seller. In the event that any provision or portion thereof contained in these Terms and Conditions is held tobe unenforceable such provision shall be severed and all remaining provisions shall remain in full force and effect.
(a) If Seller is a corporation, this agreement shall be governed by the laws of the state of California, U.S.A., without reference to its choice orconflict of laws principles. The parties agree to submit to the exclusive jurisdiction of the courts of the state of California for all actions arising inconnection herewith.
(b) If Seller is a European incorporated entity, this agreement shall be governed by the laws of England. Any dispute arising out of or inconnection with this agreement that cannot be resolved through friendly consultation shall be referred to and finally resolved by arbitration in London,England before the London Court of International Arbitration in accordance with its arbitration rules. The arbitral award shall be final and binding onthe parties.
(c) If Seller is an entity incorporated in the Asia pacific region, this agreement shall be governed by the laws of the Hong Kong specialadministrative region of the People's Republic of China. Any dispute arising out of or in connection with this agreement that cannot be resolvedthrough friendly consultation shall be referred to and finally resolved by arbitration in Hong Kong before the Hong Kong International ArbitrationCentre in accordance with its arbitration rules. The arbitral award shall be final and binding on the parties.
(d) No action, regardless of form, arising out of transactions relating to this agreement, may be brought by either party more than two (2) yearsafter the cause of action has accrued. The U.N. Convention on Contracts for the International Sales of Goods shall not apply to this agreement.