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Terms and Conditions


Terms & Conditions (Germany and all countries except North America)
Qioptiq Photonics GmbH & Co KG

Königsallee 23

D-37081 Göttingen

Telephone: +49 551 6935-0

Fax: +49 551 6935-166


Terms & Conditions (North America)
Excelitas Technologies Corp.
44370 Christy Street
Fremont, CA 94538-3180
USA
Telephone: +1 800 429 0257
Fax: +1 510 687 1140

 

 

General Terms and Conditions of Business of Qioptiq Photonics GmbH & Co.KG (Germany and all countries except North America)


All quotations and sales of products (“Products”) made by Qioptiq Photonics GmbH & Co.KG (“Seller”) to the customer identified on the offer, order form, invoice or sales acknowledgement form which reference or have attached these terms and conditions (“Buyer”) are subject to these terms and conditions (the “Terms”).

1. Acceptance of Terms. BUYER’S ACCEPTANCE OF ANY SALES QUOTATION OR OFFER IS EXPRESSLY CONDITIONED ON BUYER'S ASSENT TO THESE TERMS AND EACH AND ALL OF THE TERMS AND CONDITIONS SET FORTH IN SELLER'S QUOTATION. BUYER'S ASSENT TO THESE TERMS SHALL BE CONCLUSIVELY PRESUMED UPON BUYER’S SUBMISSION OF ITS PURCHASE ORDER. SELLER’S ACCEPTANCE OF BUYER’S PURCHASE ORDER IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THESE TERMS. IF BUYER'S PURCHASE ORDER OR OTHER CORRESPONDENCE CONTAINS TERMS OR CONDITIONS CONTRARY TO OR IN ADDITION TO THE TERMS AND CONDITIONS CONTAINED HEREIN OR IN SELLER'S QUOTATION OR OFFER, ACCEPTANCE OF ANY ORDER BY SELLER SHALL NOT BE CONSTRUED AS ASSENT TO SUCH CONTRARY OR ADDITIONAL TERMS AND CONDITIONS OR CONSTITUTE A WAIVER BY SELLER OF ANY OF THE TERMS AND CONDITIONS CONTAINED HEREIN OR IN SELLER'S QUOTATION OR OFFER. ANY CONFLICTING OR ADDITIONAL TERMS AND CONDITIONS PROVIDED BY BUYER ARE HEREBY REJECTED. THIS DOES NOT APPLY TO TERMS AND CONDITIONS INDIVIDUALLY NEGOTIATED AND MUTUALLY AGREED UPON BY SELLER AND BUYER.

2. Orders. Each purchase order (“Order”) submitted by Buyer shall include: (a) identification of the Products ordered by Buyer; (b) the requested delivery date; (c) any preferred shipping instructions and the shipping destination; (d) the price of Products ordered; (e) the billing location; and (f) Buyer’s tax status (exempt or non-exempt). Shipments of Products must be scheduled within twelve (12) months from the date ordered.

3. Order Cancellation.
a) Cancellation by Buyer. No Order cancellations by Buyer are permitted.
b) Bankruptcy. Seller reserves the right to cancel all or part of any accepted Order if bankruptcy proceedings are initiated by or against Buyer.

4. Delivery and Shipment.
a) Proposed Delivery Dates. All proposed delivery and proposed shipment dates provided by Seller to Buyer are estimates only. Seller will make reasonable efforts to meet the delivery date(s) quoted.
b) Packing and Loss or Damage in Transit. Products will be packed for shipment in a manner suitable to the method of shipment specified by Buyer, or to the method selected by Seller in the absence of instructions from Buyer. Should  Buyer request any special packing, the request will be fulfilled at Buyer’s expense.
c) Force Majeure. Seller shall not be liable for any delay or failure to perform due to any cause beyond its control.
Such causes include, but are not limited to, strikes, acts of God, acts or omissions of Buyer, interruptions of transportation, inability to obtain necessary labor, materials, or facilities, or Seller’s voluntary or mandatory compliance with any governmental act, regulation, or request. Any delivery schedule shall be extended by a period of time equal to the time lost because of any excusable delay. In the event Seller is unable to perform for a period of more than sixty (60) days because of any cause beyond its control, Seller may terminate the Order without any liability to Buyer.) Buyer Caused Delay. In the event that delivery is delayed due to any cause within Buyer’s control, including but not limited to any Buyer request for delay honored by Seller, any warehousing, freight, insurance and other costs incurred by Seller in conjunction with any shipment so delayed shall be borne by Buyer.
e) Payment Due For Partial Deliveries. If Seller is unable to provide the entire quantity of Products ordered by Buyer, Seller may, in Seller’s sole discretion and without any liability to Buyer, allocate Products among Buyer and other customers or potential customers and make deliveries in installments, and the Order shall be severable as to such
installments(s). In the event of such allocation, any payments due pursuant to Section 5 shall be pro-rated in accordance with the quantity of Products delivered to Buyer. Buyer waives § 266 BGB.
f) Delivery. All deliveries are EXW (Incoterms 2010) Seller’s manufacturing facility, and all risk of loss or damage to Products in transit is upon Buyer. All Products shall be deemed irrevocably accepted upon delivery. Title shall pass
to Buyer upon delivery. Seller retains a security interest in the Products until Buyer makes full payment. If requested by Seller, Buyer agrees to execute any financing statements necessary to perfect such security interest.
g) Inspection. Buyer shall inspect the Products immediately upon receipt and shall, within five (5) business days after receipt, give written notice to Seller of any claim for shortage or that the Products do not conform to the Order. If Buyer shall fail to give such notice, all claims for shipment shortage and non-conformance with the Order shall be deemed waived. In case the shortage or non-conformance of the Order could generally not be determined within the
inspection due to the nature of the non-conformance, Buyer shall provide notice without undue delay to retain Buyer’s rights. 
h) Return of Products. Return of Products, defective or otherwise, will not be accepted by Seller without (i) written notification from Buyer to Seller within 30 days of receipt of invoice and (ii) receipt of a return material authorization
(“RMA”) from Seller. Products authorized to be returned shall be shipped DAP (Incoterms 2010) Seller’s facility. When return of non-conforming goods has been accepted by Seller, conforming shipment may be made in accordance with this Section 4 without further liability on Seller's part. Buyer shall bear all risk of loss or damage to returned Products while in transit. Seller reserves the right to examine any alleged non-conformance. Buyer will be liable for restocking
charges in the event Products are returned to the Seller that are not defective and are in accordance with these terms.

5. Prices; Payment; Credit Terms. Buyer shall bear, in addition to the purchase price, the amount of any freight, insurance, handling and other duties levied on the shipment of Products. Buyer agrees to remit payment in full to the address provided on the Seller's invoice for all shipments, including shipments of any portion of the Products ordered, upon receipt of invoice. Payment is due net thirty (30) days from the date of Seller’s invoice. All payments shall be
made in Euro. This obligation shall not be contingent upon the completion of any installation services included in the purchase price. No cash discounts will be granted. Account balances not paid when due shall bear simple interest
until paid at the lower of 1.5% per month or the maximum prevailing legal interest rate calculated from date of delinquency. In the event Seller finds it necessary to refer an account to an attorney or an agent for collection of delinquent accounts, Buyer shall pay all costs of collection including, without limitation, reasonable attorneys’ fees. Seller reserves the right at any time to revoke any credit extended to Buyer, change the credit terms provided herein or cancel Buyer’s order because of Buyer’s failure to pay for any Products when due or for any reason deemed good and sufficient by Seller and in such event all subsequent shipments shall be suspended until Buyer’s account is current or so declared, or cancelled at Seller’s option. If Seller chooses to change Buyer’s credit terms and, within thirty (30) days of receipt of written notice of change to credit terms, Buyer fails to agree to and comply with different terms of credit, and/or fails to give adequate assurance of due performance, Seller may (a) by notice to Buyer, treat such failure or refusal as a repudiation by Buyer of the portion of the purchase order not then fully performed, whereupon Seller may cancel all further deliveries and any amounts unpaid hereunder shall immediately become due and payable; or (b) make shipments under reservation of a demand for advance payment or payment against tender of documents of title. If Seller cancels Buyer’s Order due to Buyer’s non-performance, Seller shall invoice Buyer for the price applicable to the quantity actually purchased.

6. Taxes. Buyer is responsible for the payment of all taxes which may be assessed or levied on or on account of Products sold hereunder to Buyer, whether termed a gross receipts tax, use tax, property tax, sales tax or otherwise.
Where Buyer claims that a transaction is not subject to any such tax, that Buyer is exempt, or that Seller is not required to collect such tax, Buyer agrees to provide Seller with any documentation necessary to support such a claim, to allow Seller to document its decision not to collect such tax(es), and to indemnify and hold Seller harmless from and against any and all fines, penalties, interest, taxes, and other expenses, including, without limitation, reasonable attorney’s
fees, incurred by Seller as a result of reliance upon Buyer’s position.

7. Tooling and Tools. The terms "Tooling" and "Tools" shall include all items such as molds, dies, forms, jigs, mandrels, fixtures and other special equipment, except machinery, which are required to produce the Products. Tooling and/or setup charges may include the total tooling cost for tool usage and setup. All tools shall remain the property of Seller. Seller agrees to maintain such tools in good working order, normal wear and tear and damage by fire or other casualty excepted, during the performance of the Order, and thereafter, Seller will have the right to dispose of them at Seller’s sole discretion. Buyer will be responsible for (a) costs resulting from alterations of tools requested by Buyer
or alterations necessary to complete the order and (b) costs for additional tools or tooling incurred when Buyer requires faster delivery and/or greater volume of units than that for which the original tools were designed.

8. Intellectual Property Rights; Confidentiality.
a) In all cases, the intellectual property rights in and to, and all technology relating to the Products supplied to Buyer, including but not limited to, their design and all improvements thereto shall be and remain the exclusive property of Seller.
b) In connection with these Terms, each party may have access to or be exposed to information of the other party that is not generally known to the public, such as software, product plans, pricing, marketing and sales information, customer lists, "know-how," or trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential (collectively, "Confidential Information"). Confidential Information may not be shared with third parties unless such disclosure is to the receiving party's personnel, including employees, agents and subcontractors, on a "need-to-know" basis in connection with these Terms, and such party has agreed to treat such Confidential Information under terms at least as restrictive as those herein. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party's Confidential Information
by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality.
The foregoing shall not apply to information that (i) was known by one party prior to its receipt from the other or is or becomes public knowledge through no fault of the recipient; or (ii) is rightfully received by the recipient from a third party without a duty of confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient shall provide advance notice to the other party before making such a disclosure.

9. Limited Warranty.
a) Seller warrants that the Products as delivered shall, for the Warranty Period (as defined below), be free from material defects in materials and workmanship and shall substantially conform in all material respects to the applicable Product Specification. Unless otherwise specified, the “Warranty Period” shall be period of twelve (12) months from the date of shipment to Buyer; provided that: (i) the Warranty Period for Lithium Fluoride PID lamps is thirty (30) days; (ii) the
Warranty Period for Magnesium Fluoride PID lamps is six (6) months; and (iii) the Warranty Period for MVS flashlamps (part number 302-XXXX) is six (6) months.
b) For any material breach of the foregoing warranty, Seller shall, at its option, refund the purchase price, repair or replace the non-conforming Products, provided written notice of non-conformance is received by Seller within the Warranty Period. Non-conforming Products shall be, with Seller’s prior written authorization, returned to Seller within the Warranty Period. Buyer shall bear all risk of loss or damage to returned Products while in transit. Seller reserves the right to examine any alleged non-conformance and perform a failure analysis to determine if the alleged nonconformance is a result of breach of the foregoing warranty. Upon verification by Seller that the Products do not conform to this warranty, Seller will reimburse Buyer for the cost of transporting the Products to Seller’s manufacturing plant. The foregoing states Seller’s sole and exclusive obligation and Buyer’s sole and exclusive remedy for breach of the foregoing warranty. In the event no defect or breach of warranty is discovered by Seller upon receipt of returned Products, the Products will be returned to Buyer at Buyer’s expense and Buyer will reimburse Seller for the transportation charge, labor, and associated charges incurred in testing the allegedly defective Products. Any replacement or repair provided to Buyer will not extend the Warranty Period for the Products in question. Other than in the event of breach of the foregoing warranty, Products may not be returned to Seller.
c) Except in the case of an authorized distributor of Seller that is authorized in writing by Seller to extend this warranty
to distributor’s customers, the warranty under this Section 9 applies only to Buyer and not to any subsequent owner
of a Product.
d) Exclusions and limitations:
i. The warranty excludes any equipment or accessories identified on the applicable price lists, offers, quotations, and/or special promotional materials as not being covered by this warranty. Included within this category are items produced by third-party manufacturers.
ii. This warranty does not cover loss, damage, or defects resulting from: transportation to the Buyer's facility, improper or inadequate use conditions and/or maintenance by Buyer, Buyer-supplied software or interfacing, unauthorized modification or misuse, or operation outside of the environmental specifications for the Product.
iii. No warranty is made with respect to used, reconstructed, refurbished or previously owned Products, which will be so marked and shall be sold “As Is”.
iv. The warranty herein applies only to Products within the country of original delivery. Products transferred outside the country of original delivery, either by Seller at the direction of Buyer or by Buyer’s actions subsequent to delivery, may be subject to additional charges prior to warranty repair or replacement of such Products based on the actual location of such Products and Seller’s warranty and/or service surcharges for such location(s).

10. DISCLAIMER OF WARRANTY. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 9, SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUARY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, USAGE IN TRADE, TITLE AND NON-INFRINGEMENT.

11. LIMITATION OF LIABILITY.
a) Any liability of the Seller for damages is excluded. This does not apply to damages resulting from injury to life, health or material contractual obligations (cardinal obligations) as well as liability for other damages based on intentional or grossly negligent breach of duty by the Seller, its legal representatives or vicarious agents. Material contractual obligations are those the fulfillment of which is necessary to achieve the objective of the contract.
b) In the event of a breach of essential contractual obligations, the Seller shall be liable only for the contractually typical, foreseeable damage, if caused by negligence, unless it concerns claims for damages of the Seller resulting from injury to life or health.
c) The restrictions of paragraphs a) and b) shall also apply in favor of the legal representatives and vicarious agents of the Seller, if claims are asserted directly against them.
d) The limitations of liability resulting from paragraphs a) and b) do not apply insofar as the Seller fraudulently concealed the defect or assumed a guarantee for the quality of the goods. The same applies if the supplier and the customer have made an agreement on the condition of the goods. The provisions of the Product Liability Act remain unaffected. NO ACTION SHALL BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION. BUYER ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES PURSUANT TO THESE TERMS AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE PRICING AND OTHER TERMS SET FORTH IN THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT.

12. Patent Indemnity.
a) Seller agrees to (i) defend Buyer from and against any suit or legal proceeding which may be brought against Buyer alleging infringement by Buyer of any valid, issued patent which is valid in Germany arising directly as a result of Buyer’s use of the Products sold hereunder for their intended purposes, and (ii) pay all damages finally awarded against Buyer by a court of competent jurisdiction and all reasonable attorneys’ fees assessed against Buyer in any such suit or legal proceeding, provided Buyer has complied with the conditions set forth in Section 12.c.
b) Seller’s indemnity obligations do not apply where the alleged infringement is the result of (i) additions or changes in or to the Product made by Buyer or any third party; (ii) combination of the Products with third-party equipment, hardware, software or other materials or items; (iii) Seller’s compliance with specifications furnished by Buyer; or (iv) Buyer’s continued use of the Products after delivery of notice by Seller to cease use of the Products (the “Excluded Activities”).
c) Buyer shall promptly notify Seller in writing of any claim for which it seeks indemnification hereunder. Seller shall have the right to solely control the defense (including any settlements) of any such claim. At Seller’s request, Buyer will provide reasonable cooperation with respect to any defense or settlement.
d) In the event that any portion of the Product is held or believed by Seller to infringe a patent which is valid in Germany (such portion to be deemed the “Infringing Materials”), then Seller may, at its own expense and at its option: (i) procure for Buyer the right to continue using the Infringing Materials; (ii) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation; (iii) replace the Infringing Materials with an equally satisfactory non-infringing product; or (iv) if none of the foregoing remedies is commercially feasible, remove the Infringing Materials and refund to Buyer the purchase price therefor less a reasonable amount for use, damage or obsolescence.
e) This Section 12 contains Buyer’s sole and exclusive remedy and Seller’s entire liability, with respect to infringement, misappropriation, or violation of third party intellectual property rights relating to the Products.
f) Buyer agrees to indemnify, defend, and hold Seller harmless from and against all liabilities, obligations, losses, damages, fines, claims, penalties, actions, suits, judgments, costs, expenses, and disbursements (including reasonable attorneys’ fees) arising from the Excluded Activities.

13. Authority to Export. Any or all Products may be subject to export or resale restrictions or regulation, and Buyer agrees to comply with all such regulations or restrictions and any other applicable laws and regulations regarding use of the Products. Prior to shipment of any Products, Buyer shall provide Seller with all documentation necessary for shipment to the destination country. Buyer shall indemnify and hold harmless Seller for any violation or alleged violation by Buyer of any such restrictions, regulations or applicable laws.

14. General.
a) Governing Law. These Terms shall be governed by and construed in accordance with the laws of the Federal Republic of Germany without regard to its principles of conflict of laws. Any disputes relating to these Terms shall be adjudicated in the courts of Munich, Germany and both parties hereby consent to the exclusive jurisdiction of said courts for purposes of any such litigation. The parties expressly agree to waive application of the 1980 United Nations Convention on Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended.
b) Assignment. Buyer may not assign, transfer or delegate any of its rights or obligations herein without the prior written consent of Seller, and any purported assignment of such rights or obligations without such consent shall be null and void. These Terms shall be binding on any permitted successor or assign.
c) Severability. If any provision herein is deemed unenforceable, such provision will be changed to accomplish the objectives of such provision to the greatest extent possible under applicable law and the other provisions shall remain in full force and effect.
d) Survival. Sections 3.a (Buyer Cancellation), 5 (Prices; Payment; Credit Terms), 8.a (Intellectual Property Rights), 9.b,c and d (Limited Warranty); 10 (Disclaimer of Warranty), 11 (Limitation of Liability), 13 (Authority to Export) and 14 (General) of these Terms shall survive any termination or cancellation of an Order or return for refund of any Products. The parties’ obligations under Section 8.b (Confidentiality) will survive for 3 years; provided, however, that Confidential Information that constitutes a trade secret will continue to be subject to the obligations of nondisclosure and non-use until such Confidential Information is no longer a trade secret by no wrongdoing of the receiving party or any third party.
e) No Waiver. Seller’s failure to or delay in exercising any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
f) Relationship of the Parties. Buyer’s relationship to Seller is that of an independent contractor, and neither party is an agent, partner or employee of the other.
g) Entire Contract. These Terms and the offer, quotation, invoice, purchase order or sales acknowledgement form supplied by Seller to which these Terms are attached constitute the entire agreement between the parties regarding the subject hereof and supersede all prior or contemporaneous agreements, understandings, and communication, whether written or oral. These Terms, including this subsection g), may be amended only by a written document signed by both parties that specifically references these Terms.

General Terms and Conditions of Business in the version dated: 4/2019

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Terms & Conditions (North America)

Excelitas

The terms and conditions of sale contained herein apply to all quotations made and purchase orders entered into by Excelitas Technologies Corporation (“Seller”). These terms and conditions supersede and replace any terms and conditions attached to Buyer’s order, and Seller’s acceptance is expressly conditioned upon Buyer’s acceptance of the terms and conditions.

1. Delivery Dates and Prices

a) All delivery and shipment dates indicated on the face hereof are approximate. Seller will make reasonable efforts to meet the delivery date(s) quoted. However, Seller will not be liable for its failure to meet the quoted delivery dates or for any delay in performance hereunder due to unforeseen circumstances or shortages, due to causes beyond its control, or due to its voluntary or mandatory compliance with any governmental act, regulation, or request. If, by reason of such circumstances, Seller's supplies of the equipment or service (hereinafter the "Product(s)") covered hereby are limited, Seller shall have the right to allocate the available supply among its customers in such manner as it, in its sole discretion, determines appropriate. b) With respect to orders acknowledged and accepted by Seller, under no circumstances will Seller accept requests by Buyer to (i) cancel an order, or (ii) delay or re-schedule delivery of Products. Exceptions to this prohibition must be in writing and approved by a vice president or other senior executive of Seller. No other employee or agent of Seller is authorized to approve cancellation or permit a delay or rescheduling of delivery.

 

2. Packing and Loss or Damage in Transit.

Products will be packed for shipment in a manner suitable to the method of shipment specified by Buyer, or to the method selected by Seller in the absence of instructions. Should Buyer request any special packing, it will be done at Buyer’s expense. Unless otherwise indicated on the face hereof, all sales hereunder are FOB Seller’s plant, and all risk of loss or damage to Product in transit is upon Buyer. Payment will be made in accordance with Paragraph 5 below.

 

3. Payment Due For Partial Deliveries.

Seller may, in its sole discretion, deliver any portion of the Products ordered and all such partial deliveries shall be accepted and paid for in accordance with the terms of Paragraphs 4 and 5 below. The making of a partial delivery that, to any extent, is not in accordance with the contract of sale shall not affect the Buyer's obligation hereunder to remit payment.

 

4. Inspection, Acceptance and Return of Products or Trade-Ins.

Buyer shall inspect the Products immediately upon receipt and shall, within five (5) business days after receipt, give written notice to Seller of any claim for shortage or that the Products do not conform with the terms of the contract of sale. If Buyer shall fail to give such notice, the Products shall be deemed accepted and to conform with the terms of the contract of sale, and Buyer shall be bound to pay for the Products in accordance with the terms of Paragraph 5 below. Return of Products, defective or otherwise, will not be accepted by Seller without (i) written notification from Buyer to Seller within 30 days of receipt of invoice and (ii) receipt of a return material authorization (“RMA”) from Seller. Products authorized to be returned shall be shipped FOB destination, freight pre-paid. When return of nonconforming goods has been accepted by Seller, conforming shipment may be made in accordance with Paragraph 1 above and Paragraph 8 below without further liability on Seller's part. Buyer will be liable for restocking charges in the event Products are returned to the Seller, which are not defective and are in accordance with these terms.

 

5. Payment and Credit Terms.

Unless otherwise indicated on the face hereof, Buyer agrees to remit payment in full to the address provided on the face of Seller's invoice for all shipments, including shipments of any portion of the Products ordered, upon receipt of invoice. Payment is due net thirty (30) days from the date of Seller’s invoice. This obligation shall not be contingent upon the completion of any installation services included in the purchase price. No cash discounts will be granted. Account balances not paid in accordance with these terms are subject to the maximum prevailing legal interest rate calculated from date of delinquency. In the event Seller finds it necessary to refer an account to an attorney or an agent for collection of delinquent accounts, Buyer shall pay all costs of collection including, without limitation, reasonable attorneys’ fees. Buyer agrees that Seller shall retain a security interest in the Products sold hereunder to secure any portion of the price not paid on delivery and will, on request, execute a security agreement in such form as is required by Seller, which, at Seller's option, may be filed with appropriate local, state, or other relevant authorities. Should Buyer become delinquent in the payment of any sum due hereunder, or if Buyer becomes insolvent, or if any proceedings are commenced under any bankruptcy or similar laws for Buyer’s reorganization or other debt adjustment, Seller will not be obligated to continue performance. Seller reserves the right to change the credit terms provided herein when, in Seller's opinion, the financial condition or previous payment record of Buyer so warrants. If, within thirty (30) days of receipt of written notice of such change, Buyer fails to agree and comply with different terms of credit, and/or fails to give adequate assurance of due performance, Seller may (a) by notice to Buyer, treat such failure or refusal as a repudiation by Buyer of the portion of the purchase order not then fully performed, whereupon Seller may cancel all further deliveries and any amounts unpaid hereunder shall immediately become due and payable; or (b) make shipments under reservation of a demand for advance payment or payment against tender of documents of title. Buyer's acceptance of delivery of any Products shall constitute a representation that Buyer is solvent.

 

6. Taxes.

Buyer is responsible for the ultimate payment of all taxes which may be assessed or levied on or on account of Products sold hereunder to Buyer, whether termed a gross receipts tax, use tax, property tax, sales tax or otherwise. Where Buyer claims that a transaction is not subject to any such tax, that Buyer is exempt, or that Seller is not required to collect such tax, Buyer agrees to provide Seller with any documentation necessary to support such a claim, to allow Seller to document its decision not to collect such tax(es), and to indemnify and hold Seller harmless from and against any and all fines, penalties, interest, taxes, and other expenses, including, without limitation, reasonable attorney’s fees, incurred by Seller as a result of reliance upon Buyer’s position.

 

7. Tooling and Tools.

The terms "Tooling" and "Tools" shall include all items such as molds, dies, forms, jigs, mandrels, fixtures and other special equipment, except machinery, which are required to produce the Products. Tooling or setting up charges is quoted as a partial charge of the total tooling cost for tool usage and setup. All tools shall remain the property of Seller. Seller agrees to maintain such tools in good working order, normal wear and tear and damage by fire or other casualty excepted, for a period of one (1) year following last usage, and thereafter, Seller will have the right to dispose of them at Seller’s sole discretion. Buyer will be responsible for (a) costs resulting from alterations of tools requested by Buyer or alterations necessary to complete the order and (b) costs for additional tools or tooling incurred when Buyer requires faster delivery and/or greater volume of units than that for which the original tools were designed.

 

8. Limited Warranty.

a) Warranty. i) Seller warrants to Buyer that the Products sold to Buyer are, at the time of shipment to Buyer from Seller, free from defects in materials and workmanship. ii) This warranty shall be valid for a period of twelve (12) months from the date of shipment to Buyer, unless a different period is specified in an addendum to these terms and conditions of sale, which is incorporated herein by reference and made a part hereof, in which case such specified period, shall apply. iii) Except in the case of an authorized distributor of Seller, authorized in writing by Seller to extend this warranty to distributor’s customers, the warranty herein applies only to Buyer as the original purchaser from Seller and may not be assigned, sold or otherwise transferred to any third party. iv) As Buyer's sole and exclusive remedy under this warranty, Seller agrees either to repair or replace, at Seller's sole option, any part or parts of such Products which, under proper and normal conditions of use, prove(s) to be defective within the applicable warranty period. Alternatively, Seller may at any time, in its sole discretion, elect to discharge its warranty obligation hereunder by accepting the return of any defective Product pursuant to the terms set forth herein and refunding the purchase price paid by Buyer. In order to permit Seller to properly administer this warranty, Buyer shall (a) notify Seller promptly in writing of any claims; (b) provide Seller with an opportunity to inspect and test the Products claimed to be defective (such inspection may be on Buyer’s premises or Seller may request Buyer to return the Products at Buyer’s expense; such expense will be reimbursed if the Product is found to be defective); and (c) Buyer will not return product without an RMA from Seller. b) Exclusions and Limitations. i) The warranty herein excludes any equipment or accessories, which are identified on applicable price lists, quotations, special promotional materials, or on the face hereof, for which this limited warranty may be further limited. Included within this category are items produced by third party manufacturers (as to which Seller passes to Buyer the warranty it has been provided by the manufacturer). ii) This warranty does not cover loss, damage, or defects resulting from: transportation to the Buyer's facility, improper or inadequate maintenance by Buyer, Buyer-supplied software or interfacing, unauthorized modification or misuse, or operation outside of the environmental specifications for the Product. iii) No warranty is made with respect to used, reconstructed, refurbished or previously owned Products, which will be so marked on the face hereof and, unless otherwise indicated on the face hereof, shall be sold “As Is”. iv)The warranty herein applies only to Products within the country of original delivery. Products transferred outside the country of original delivery, either by Seller at the direction of Buyer or by Buyer’s actions subsequent to delivery, may be subject to additional charges prior to warranty repair or replacement of such Products based on the actual location of such Products and Seller’s warranty and/or service surcharges for such location(s). c) Software and Firmware Products. The sole and exclusive warranty applicable to software and firmware products provided by Seller for use with a processor is as follows: Seller warrants that such software and firmware will conform to Seller's program manuals current at the time of shipment to Buyer when properly installed on the processor, provided, however, that Seller does not warrant that the operation of the processor or software or firmware will be uninterrupted or error-free. Seller shall not be responsible for data loss or file corruption. SELLER MAKES NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

9. Exclusive Remedies.

THE REMEDIES PROVIDED HEREIN ARE BUYER'S SOLE AND EXCLUSIVE REMEDIES. SELLER SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF THE DESIGN, MANUFACTURE, SALE, DELIVERY, INSTALLATION, SERVICE OR USE OF THE PRODUCTS. SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, DELIVERY, INSTALLATION, SERVICE OR USE OF THE PRODUCTS. SELLER'S LIABILITY ON ANY CLAIM OF ANY KIND, INCLUDING NEGLIGENCE, FOR LOSS OR DAMAGES ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR OR USE OF ANY PRODUCT OR SERVICES COVERED BY OR FURNISHED UNDER THIS AGREEMENT SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE ITEM OR SERVICE OR PART FURNISHED BY SELLER THEREOF WHICH GIVES RISE TO THE CLAIM.

 

10. Patent Indemnity.

Seller agrees to defend, at its own expense, any suit or legal proceeding which may be brought against Buyer alleging infringement by Buyer of any patent of the United States, as a result of Buyer's use of the Product sold hereunder for its intended purposes, provided that Buyer shall give Seller prompt written notice of any claim, threat, or institution of any such suit or legal proceeding, and provided further that Seller shall then have the sole right to control and conduct the defense and/or settlement of such claim, threat, suit or legal proceeding, either in the name of Seller or Buyer or both, and Buyer shall, at Seller's request and expense, provide relevant information and reasonable cooperation. Seller shall pay all final judgments and all costs and attorney's fees assessed against Buyer in any such suit or legal proceeding, provided Buyer has complied with the conditions hereof with respect to prompt notice and cooperation in connection with such suit or legal proceeding and given exclusive control thereof to Seller. Notwithstanding the foregoing, Seller shall not be liable for any attorney's fees or other legal expenses incurred by Buyer without the knowledge and prior written consent of Seller. Seller shall have the right, at its own expense, to procure for Buyer the right to continue using the Product claimed to infringe, replace said Product with an equally satisfactory non-infringing Product, modify said Product so that it becomes non-infringing, or remove such Product and refund the purchase price thereof less a reasonable amount for use, damage or obsolescence. The foregoing indemnity fully defines Seller's obligation for patent infringement. Such obligations shall specifically not apply to: a) an infringement claim resulting from additions or changes in or to the Product made by Buyer or any third party or from use in combination with other equipment; or b) an infringement claim which is settled without the prior written consent of Seller; or c) an infringement claim, which results from compliance by Seller with specifications furnished by Buyer. The total amount of Seller's obligation and liability under this Section shall not exceed the price paid by Buyer to Seller for the Product held to infringe, and in no event will Seller be held accountable for consequential damages under this indemnity, such as loss of business profits or goodwill. With respect to any infringement claim arising from Product manufactured in whole or in part to Buyer's specifications or from use of such Product in conjunction with any other goods , Buyer will indemnify and hold harmless Seller from and against all such claims for damages or profits arising from infringement of patents, designs, copyrights or trademarks.

 

11. Modification of Terms.

BUYER’S ACCEPTANCE OF ANY QUOTATION IS EXPRESSLY SUBJECT TO BUYER'S ASSENT TO EACH AND ALL OF THE TERMS AND CONDITIONS SET FORTH IN SELLER'S QUOTATION, AND BUYER'S ASSENT TO THESE TERMS AND CONDITIONS OF SALE SHALL BE CONCLUSIVELY PRESUMED FROM BUYER’S SUBMISSION OF ITS PURCHASE ORDER. NO ADDITION TO OR MODIFICATION OF SAID TERMS AND CONDITIONS SHALL BE BINDING UPON SELLER UNLESS SPECIFICALLY AGREED TO BY SELLER IN WRITING. IF BUYER'S PURCHASE ORDER OR OTHER CORRESPONDENCE CONTAINS TERMS OR CONDITIONS CONTRARY TO OR IN ADDITION TO THE TERMS AND CONDITIONS CONTAINED HEREIN OR IN SELLER'S QUOTATION, ACCEPTANCE OF ANY ORDER BY SELLER SHALL NOT BE CONSTRUED AS ASSENT TO SUCH CONTRARY OR ADDITIONAL TERMS AND CONDITIONS OR CONSTITUTE A WAIVER BY SELLER OF ANY OF THE TERMS AND CONDITIONS CONTAINED HEREIN OR IN SELLER'S QUOTATION. SELLER’S ACCEPTANCE OF BUYER’S PURCHASE ORDER IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THESE TERMS AND CONDITIONS.NO MODIFICATION OR WAIVER OF THESE TERMS AND CONDITIONS IS VALID, UNLESS CONFIRMED IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SELLER.

 

12. Authority to Export.

ALL ORDERS ACCEPTED FOR EXPORT (AND/OR RE-EXPORT) ARE SUBJECT TO: 1) UNITED STATES GOVERNMENT EXPORT REGULATIONS; AND 2) BUYER PROVIDING SELLER WITH ALL DOCUMENTATION NECESSARY FOR SHIPMENT TO THE DESTINATION COUNTRY.

 

13. Software Licenses and Copyrighted Material.

a) Seller provides software products by license only. The terms of the license are available from Seller and are deemed accepted by Buyer on delivery of licensed software. b) Unless otherwise specified, Seller's copyrighted material (software, firmware, and printed documentation) may not be copied except for archive purposes, to replace a defective copy, or for program error verification by Buyer.

 

14. Miscellaneous.

a) Excusable Delays. Seller shall not be liable for delays in delivery or failure to manufacture or deliver goods due to acts of God, acts or failures to act of Buyer, acts of civil military authority, fires, strikes, floods, epidemics, attack, war, delays in transportation or other causes beyond Seller’s reasonable control, including, without limitation, delays in obtaining or inability to obtain necessary labor, materials, components, or manufacturing facilities. b) Governing Law. The contract of sale shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A. without regard to its principles of conflict of laws. Any disputes relating to the contract of sale between Buyer and Seller shall be adjudicated in the state or federal courts in the Commonwealth of Massachusetts, U.S.A., and both parties hereby consent to the exclusive jurisdiction of said courts for purposes of any such litigation. The parties expressly agree to waive application of the United Nations Convention on Contracts for the International Sale of Goods. c) Confidential Data and Information. If, in connection with the sale, purchase, use, or maintenance of the Products, Seller is requested, required, or deems it advisable to furnish data or information which it, in its sole discretion, deems proprietary, confidential, or both, Seller shall not, in any event, submit or be required to furnish such data or information unless Buyer enters into an agreement concerning the handling, use, copying, retention and return of such information, the form of which agreement is available to Buyer on request. Seller does not agree to accept any proprietary or confidential information of Buyer in the absence of such a written agreement signed by an authorized representative of Seller. d) Assignment. Buyer may not assign, transfer or delegate any of its rights or obligations herein without the prior written consent of Seller, and any purported assignment of such rights or obligations without such consent shall be null and void. e) Severability. If any provision herein is deemed unenforceable by a court of competent jurisdiction, the other provisions shall remain in full force and effect as if the unenforceable provision had not been included. f) Entire Contract. This document and any addenda incorporated by reference are intended by the parties as a final expression of their agreement and as a complete and exclusive statement of the terms thereof. Seller shall not be bound by any agent's or employee's representation, promise or inducement unless set forth in this agreement. No course of prior dealings between the parties and no usage of trade shall be relevant or admissible to supplement, explain or vary any of these terms.

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