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Terms and Conditions
Terms & Conditions (Germany and all countries except North America)
Qioptiq Photonics GmbH & Co KG
Telephone: +49 551 6935-0
Fax: +49 551 6935-166
Terms & Conditions (North America)
Excelitas Technologies Corp.
44370 Christy Street
Fremont, CA 94538-3180
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)
1. Area of application
With regard to all orders placed with Qioptiq Photonics GmbH & Co. KG, the following General Terms and Conditions of Business shall apply exclusively. They shall also apply with regard to all future consignments delivered, services rendered and offers made to the Customer, even if they are not separately agreed in each case. Derogating, conflicting or supplemental general terms and conditions of business of the Customer shall only form an integral part of the contract in so far as we have expressly agreed in writing to the application thereof. This requirement of consent shall apply in all cases, for instance also if we execute a delivery unconditionally in the knowledge of conflicting or derogating general terms and conditions of business of the Customer.
2.1 Our offers are subject to confirmation and shall not be binding. Ordering of goods by the Customer shall be deemed a binding contract offer. Unless otherwise stated in the order, we shall be entitled to accept such contract offer within three weeks of receipt by us. Delivery of the goods may also constitute formal acceptance by us.
2.2 Our order confirmation must be carefully checked by the Customer. Any discrepancies from the order must be notified to us immediately.
2.3 All information contained in our printed documentation relating to design, dimensions and weight shall only be approximate unless usability for the contractually intended purpose requires precise conformity. If precise conformity is required by the Customer, this must be indicated by the Customer when placing the order.
2.4 Call-off orders must be taken up within one year unless otherwise agreed in writing.
3.1 Unless otherwise agreed in writing, prices shall apply as per the price list in force at the time of conclusion of contract. The prices indicated are ex works and exclusive of cost for transportation, packaging and value added tax in the respective statutory amount.
3.2 In so far as shipping has been agreed, all of our consignments shall be insured by us against transportation risks for the account of the Customer. Any customs duties, fees, taxes and other public levies shall be borne by the Customer.
3.3 Unless expressly otherwise agreed in writing, upon receipt of the goods, the packaging material shall pass into the ownership of the Customer. This shall relate in particular to outer packaging, transport packaging and product packaging. We do not take back transport packaging or any other packaging pursuant to the Packaging Ordinance (Verpackungsverordnung).
4. Terms and conditions of payment
4.1 Unless otherwise stated in our order confirmation, the purchase price shall be due for payment without discount within 30 days from the invoice date. Payment by bill or cheque accepted by us shall only be deemed made once cashed or discharged, whereby discount charges shall be borne by the Customer. In addition, the respective payment terms as stated in the current price list shall apply.
4.2 If the Customer does not make payment by the due date, he shall be deemed in default without further notice. In such an event, we shall be entitled to claim default interest from the Customer in the sum of eight percentage points above the respectively valid base rate of the Deutsche Bundesbank. Any damages claims shall remain unaffected.
4.3 In the event of payment default, we shall be entitled to immediately claim all outstanding amounts owed. The same shall apply if circumstances exist which significantly impair the Customer's creditworthiness or give rise to justified doubts as to the creditworthiness of the Customer (such as in particular unsuccessful seizure, failure to honour bills or cheques, petition for institution of composition or bankruptcy proceedings).
4.4 Claims secured by bills shall also be included in the right to demand immediate payment of all claims pursuant to the terms of clause 4.3 above.
5. Place of performance, delivery, transfer of risk and formal acceptance
5.1 Unless otherwise agreed in writing, place of performance with regard to all obligations under the contractual relationship shall be Göttingen, Germany. Unless otherwise stated in these General Terms and Conditions of Business, the Incoterms 2010 EXW shall be deemed agreed.
5.2 The delivery times as indicated in our order confirmation shall apply. Unless otherwise agreed in writing, the delivery times indicated are to be understood merely as guidelines and shall not be binding.
5.3 In the event that we should be temporarily prevented from rendering services due to force majeure, acts of a state authority – whether or not these relate to the territory of the Federal Republic of Germany or territories from which and/or through which deliveries of supplies to us are undertaken –, disaster, war, civil unrest or strike in our own plants, despatch facilities, supplier companies or in relation to means of transportation, and we thereby cannot meet agreed performance deadlines, we are entitled to make good the performance at a later date. In so far as a performance time was agreed, this shall be reasonably extended as a result of the events described in sentence 1 above. In this regard, the Customer shall have no claims for non-performance or delayed performance. We shall inform the Customer immediately in writing of the occurrence of such events.
5.4 If, in an individual instance, not all goods ordered should be in stock, we shall be entitled to effect part delivery if the part consignment can be used by the Customer within the framework of the contractually intended use, delivery of the remaining goods ordered is assured and the Customer does not incur any significant additional expenditure as a result of part delivery.
5.5 In addition, we are entitled to effect excess and short deliveries of up to 10%.
5.6 The risk of accidental destruction and accidental deterioration of the goods as well as the risk of delay shall pass to the Customer as soon as the goods are delivered to the carrier, the forwarding agent or other person charged with shipping the goods.
5.7 The Customer shall be under a duty to examine the goods supplied by us immediately upon receipt, in so far as this is feasible in the normal course of business. Evident defects must be notified by the Customer to us in writing without delay and in any event no later than within five working days of delivery of the goods or rendering of the service. Defects not evident upon examination but which subsequently become apparent must be notified by the Customer to us in writing without delay and in any event no later than within five working days of discovery. The Customer must describe the respective defect in as much detail as possible. If the Customer omits notification, then the goods shall be deemed as having been approved notwithstanding the defect in question.
6. Liability for defects
6.1 Unless otherwise stated below, the statutory rules shall apply as regards the rights of the Customer in the event of material and legal defects (Sach- und Rechtsmängel) including incorrect delivery and short delivery as well as improper assembly or defective assembly instructions). In all instances, the special statutory provisions upon end supply of the goods to a consumer shall not be affected (supplier's right of recourse pursuant to Sections 478 and 479 of the Civil Code (Bürgerliches Gesetzbuch, BGB)).
6.2 We assume no guarantee with regard to condition or durability or any other guarantee unless we have in an individual instance given a written pledge identified as a guarantee. In the event of a minor reduction in value and/or suitability of the goods, the Customer shall also not have any claims to liability for defects.
6.3 In the event of a prompt and substantiated notice of defects, we shall either remedy the defect or supply a replacement item free of defects as we shall see fit. We shall be entitled to effect at least three substitute performance attempts.
6.4 The Customer shall be under a duty to give us a reasonable amount of support free of charge as required within the framework of work to remedy defects.
6.5 With regard to entitlement to damages, the general restrictions on liability pursuant to clause 7 below shall apply.
6.6 The time limit applying to liability for claims due to defects shall be 12 months with effect from delivery and/or, in so far as relevant, from formal acceptance. This shall not apply if we are liable for damages pursuant to clause 7.6 of the general liability provision.
7.1 Subject to the provisions contained in the following clauses 7.2 - 7.7, we shall only be liable, irrespective of the relevant legal grounds, for losses caused due to our intentional or grossly negligent conduct.
7.2 With regard to losses based on other conduct, we shall only be liable in so far as we culpably breach a duty, compliance with which is of particular significance for the purpose of achieving the contractual object (a primary contractual duty, Kardinalpflicht). If we are entrusted with items of property belonging to the Customer, we shall only be liable for not adhering to the same standard of care as the customer exercises in respect of its own property. In the aforementioned instances, our liability shall be limited to such losses as could be typically anticipated within the framework of the contractual relationship.
7.3 Typical losses within the meaning of clause 7.2 are maximum losses of 1 Mio US$ per liability case, limited to a maximum of 7 Mio US$ per year.
7.4 Any liability for losses arising from injury to life, body or health, from the assumption of a guarantee or a procurement risk, as well as under the Product Liability Act (Produkthaftungsgesetz) shall not be affected.
7.5 In the context of production according to third-party drafts and specifications, we assume no liability in respect of the infringement of intellectual property rights of third parties.
7.6 If we act with intent or gross negligence as well as in the context of losses arising from injury to life, body or health, the statutory time limits shall apply in place of the time limits for defect claims stated in clause 6.6 of the above provision on liability for defects.
7.7 In so far as, under the above clauses 7.1 - 7.6, our liability is excluded or limited, this shall also be valid for the benefit of our employees and/or other vicarious agents in the event of a direct claim against our employees and/or other vicarious agents on the part of the Customer.
8. Retention of title
8.1 We retain title to the goods supplied until all claims under the business relationship existing with us have been paid in full. For as long as claims exist under the business relationship, we shall be entitled to take back the goods in the event of payment default, without this amounting to a withdrawal from the purchase contract.
8.2 The Customer shall be entitled to resell the item purchased in the ordinary course of business. The claims arising from resale shall hereby be assigned to us by way of security. The same shall apply with regard to other claims that may take the place of the item purchased or which otherwise arise with regard to the item purchased, such as insurance claims or claims arising in tort upon loss or destruction. In the event that the goods are sold by the Customer together with other goods not belonging to us, the purchase-price claim shall only be deemed assigned to us in the amount of the value of the goods supplied by us.
8.3 The Customer is authorized to collect the ceded claims as long as it has met its payment duty in relation to us, has not fallen into payment arrears and in particular no petition has been filed for institution of insolvency proceedings. Otherwise we may insist that the Customer shall notify us of the claims assigned and the relevant debtors, provides all information required for collection, surrenders to us the related documentation and informs the third parties as to the assignment.
8.4 We undertake to release the security due to us at the request of the Customer in so far as the realizable value of our security exceeds the claims to be secured by more than 20%. The choice of security to be released shall be incumbent upon us.
8.5 Upon infringement of our ownership rights by third parties, in particular in the event of confiscation or attachment in respect of the goods subject to retention of title, the Customer must notify us immediately in writing and inform the third party of our ownership rights. The Customer shall bear all costs incurred in remedying the infringement of our rights.
8.6 Findings and technical data created by us in the context of developing products to be produced on the instructions of the Customer shall always remain our property even if we invoice the Customer the pro-rata costs in respect thereof.
9. Tools and type specific tools
In so far as we charge pro-rata costs for tools or type specific materials, the tools shall remain our property also after payment has been made. We merely undertake with regard to subsequent orders placed within a reasonable time to use such tools for production without charging again for the same.
10.1 No offsetting rights may be asserted against us. This shall not apply with regard to claims against us which are undisputed, established as res judicata in a court of law, or which have been acknowledged by us.
10.2 Rights of retention or other rights to withhold performance may only be asserted against us in so far as they are based on claims of the Customer from the respective order on the basis of which we are asserting payment claims against the Customer.
10.3 Any amendments or additions to these General Terms and Conditions of Business must be made in writing. This shall also apply with regard to any amendment to this written-form clause.
10.4 These General Terms and Conditions of Business as well as the interpretation and generation hereof shall be subject exclusively to German law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) are excluded.
10.5 The contractual language shall be German.
10.6 Exclusive place of jurisdiction with regard to all claims against merchants and public corporations shall be Göttingen, Germany, with regard to all types of proceeding. We shall additionally be entitled to take proceedings against the Customer at its general place of jurisdiction. In such event, the Customer shall be under a duty to reimburse our costs of legal prosecution and enforcement including the costs and fees of the lawyers engaged even if, under the provisions of the local law, these are not owed.
10.7 In the event that any term of these General Terms and Conditions of Business should be or become wholly or partially invalid, this shall not affect the validity of the other provisions hereof. Any invalid provision shall be replaced by such a term as is legally possible and which comes as close as possible in terms of content to the invalid term which it replaces and also corresponds as closely as possible to the evident economic interests of the parties in the invalid provision. The same shall apply by way of analogy with regard to any omissions.
10.8 In the event of conflicts or inconsistencies between this English translation of our General Terms and Conditions of Business and the original German version, the German version shall take precedence.
General Terms and Conditions of Business in the version dated: 3/2014
Terms & Conditions (North America)
Terms & Conditions (North America)
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.
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.
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.