No title
1. GENERAL. These general terms and conditions of sale
along with
any associated written specification, quotation and/or supplemental terms and
conditions provided by Seller exclusively will govern the sale or licensing by
Seller of all goods and services including without limitation, hardware,
firmware and software products, training, programming, maintenance, engineering,
parts, repair and remanufacturing services – hereinafter, "Products"
furnished
to Buyer hereunder, whether such sale or licensing is effected by paper-based
transactions or via facsimile or other forms of electronic data interchange
“EDI” or electronic commerce, and represents the entire agreement between
Buyer and Seller with respect thereto. Buyer’s receipt or acceptance of delivery
of any of the Products ordered or purchased hereunder will constitute its
acceptance of these terms and conditions. No addition or modification to these
terms and conditions will be binding on Seller unless agreed to in writing
signed by an authorized representative at Seller’s headquarters. Seller objects
to and rejects other terms and conditions that may be proposed by Buyer or that
appear on or are referenced in Buyer’s purchase order or requisition that are in
addition to or otherwise not consistent with the terms and conditions set forth
or referenced herein.
2. PAYMENT TERMS. Net thirty 30 days from date of invoice with
ongoing approved credit as determined by Seller. Seller may render partial
invoices and require progressive payments. Seller reserves the right to render
invoices electronically and to receive payment by way of electronic funds
transfer. Payment by credit card, when permitted, is subject to credit card
validation and authorization both at time of agreement and immediately prior to
shipment. Seller reserves the right to suspend any further performance hereunder
or otherwise in the event payment is not made when due. No payment by offset is
permitted. Interest charges will be added to overdue invoices at the rate of
1.5% per month subject to any limit imposed by applicable law .
3. DELIVERY TERMS. Delivery terms are Ex Works Seller’s plant or
warehouse per current Incoterms or as otherwise agreed to as evidenced by
Seller’s order acknowledgment. In all cases title transfers to Buyer upon the
earlier of Seller’s delivery to Buyer or receipt by the first carrier for
transport to Buyer, except that title to all intellectual property rights
associated with the Products remains with Seller or its suppliers and licensors.
Acknowledged shipping dates are approximate only and based on prompt receipt of
all necessary information from Buyer. Seller disclaims all liability for late
delivery. Where applicable, prepaid shipping will be billed as a separate
invoice item.
4. WARRANTY.
a Hardware: Seller warrants that new hardware Products
furnished hereunder will be free from defects in material or workmanship for a
period of one 1 year from the date of shipment by Seller. Repaired or
replacement Products provided as a result of this warranty subparagraph are
similarly warranted for a period of six 6 months from the date of shipment to
Buyer or the remainder of the original warranty term for that particular
Product, whichever is longer.
b Buyer Specifications/Compatibility: Seller does not warrant
and will not be liable for any design, materials, construction criteria or goods
furnished or specified by Buyer including that sourced from other manufacturers
or vendors specified by Buyer . Any warranty applicable to such Buyer-specified
items will be limited solely to the warranty, if any, extended by the original
manufacturer or vendor directly or indirectly to Buyer. Seller does not warrant
the compatibility of its Products with the goods of other manufacturers or
Buyer’s application except to the extent expressly represented in Seller’s
published specifications or written quotation.
c Recyclable Materials: In keeping with environmental policies
and practices, Seller reserves the right to utilize in its product
manufacturing, repair and remanufacturing processes certain recyclable materials
e.g., fasteners, plastics and the like or remanufactured parts equivalent to
new in performance or parts which may have been subject to incidental use.
However, such utilization will not affect any provided Product warranty or
published reliability statistics.
d Remedies: Remedies under the above warranties will be
limited, at Seller’s option, to the replacement, repair, re-performance or
modification of, or issuance of a credit for the purchase price, of the Products
involved, and where applicable, only after the return of such Products pursuant
to Seller s instructions. Replacement Products may be new, remanufactured,
refurbished or reconditioned at Seller’s discretion. Buyer requested on-site
warranty service consisting of time, travel and expenses related to such
services will be at Buyer’s expense. The foregoing will be the exclusive
remedies for any breach of warranty or breach of contract arising therefrom. THE
FOREGOING WILL BE THE EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY OR BREACH OF
CONTRACT ARISING THEREFROM. SELLER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY
RELATIVE TO CONSEQUENTIAL OR INDIRECT DAMAGES.
e General: Warranty satisfaction is available only if
a
Seller is provided prompt written notice of the warranty claim and b
Seller’s
examination discloses that any alleged defect has not been caused by misuse;
neglect; improper installation, operation, maintenance, repair, alteration or
modification by other than Seller; accident; or unusual deterioration or
degradation of the Products or parts thereof due to physical environment or
electrical or electromagnetic noise environment, and that factory affixed seals
are intact and the Product has not otherwise been tampered with. Seller’s
warranty may, in certain cases, provide for a remedy based on the age or extent
of usage of the Product in lieu of repair or replacement by Seller. Information
regarding specific warranty periods or other special warranty provisions that
may apply may be obtained from Seller’s sales offices.
f THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND
CONDITIONS, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR PERFORMANCE OR
APPLICATION WARRANTIES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Rights under the above warranty subject to noted limitations extend to Buyer’s
customers if Buyer is a Seller-appointed distributor for the Products.
5. DISCLAIMER AND LIMITATION OF LIABILITY. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, SELLER WILL NOT BE LIABLE FOR ANY BUSINESS
INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA,
CONTRACT, GOODWILL OR THE LIKE WHETHER DIRECT OR INDIRECT IN NATURE OR FOR ANY
OTHER FORM OF INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND.
SELLER S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS AND
LIABILITIES, INCLUDING OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED,
WILL NOT EXCEED THE COST OF THE PRODUCT S GIVING RISE TO THE CLAIM OR
LIABILITY. SELLER DISCLAIMS ALL LIABILITY RELATIVE TO GRATUITOUS INFORMATION OR
ASSISTANCE PROVIDED BY, BUT NOT REQUIRED OF SELLER HEREUNDER. ANY ACTION AGAINST
SELLER MUST BE BROUGHT WITHIN EIGHTEEN 18 MONTHS AFTER THE CAUSE OF ACTION
ACCRUES. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF
ANY OTHER CONTRARY PROVISION HEREOF AND REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE AND STRICT LIABILITY OR
OTHERWISE, AND FURTHER WILL EXTEND TO THE BENEFIT OF SELLER’S VENDORS, APPOINTED
DISTRIBUTORS AND OTHER AUTHORIZED RESELLERS AS THIRD-PARTY BENEFICIARIES. EACH
PROVISION HEREOF WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF
WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF
ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.
6. INTELLECTUAL PROPERTY INDEMNITY. Except as excluded herein,
Seller will defend any suit or proceeding brought against Buyer arising out of a
claim that the design or construction of the Products sold or licensed hereunder
by Seller infringes any patent, copyright or trademark granted or registered in
the country of Seller’s shipping destination, provided a Buyer promptly
notifies Seller in writing of any such claim and any suit or proceeding,
b at
Seller’s expense, Buyer gives Seller the sole right to defend, settle and
control the defense of the suit or proceeding, c Buyer provides all necessary
information and assistance for such defense or settlement, and d Buyer takes
no position adverse to Seller in connection with such claim. In the event Seller
is obligated to defend such suit or proceeding, Seller will pay all costs and
damages finally awarded or agreed upon by Seller that are directly related
thereto. Seller’s obligations under this paragraph will be fulfilled if Seller,
at its option and expense: i procures for Buyer the right to continue using
such Products, ii replaces the same with non-infringing equipment/software
having functionality similar to that of the Products, iii modifies the
Products to make them non-infringing while retaining similar functionality, or
iv if i - iii are not commercially practicable, refunds to Buyer the
purchase price of the affected Products in exchange for their return. Seller
will have no obligation to defend or for any other liability with respect to:
[a] any suit or proceeding to the extent based on or arising out of a
configuration or modification made, specified or requested by Buyer and which is
incorporated into or constitutes the Products, [b] the use of the Products in a
process or application specified, requested or controlled by Buyer or any third
parties, or [c] the use of the Products in combination with other equipment,
software or materials not supplied by Seller. As used in this paragraph, the
term “Products” shall mean only Seller’s standard hardware and software that are
generally commercially available, and expressly excludes third-party-branded
equipment/software. THIS PARAGRAPH IS IN LIEU OF ALL WARRANTIES OR
REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, THAT THE PRODUCTS WILL BE FREE OF
THE RIGHTFUL CLAIM OF ANY THIRD PARTY BY WAY OF INFRINGEMENT OR THE LIKE.
7. THIRD-PARTY BRANDED PRODUCTS. NOTWITHSTANDING ANY OTHER
PROVISION HEREIN, SELLER MAKES NO REPRESENTATIONS, PROVIDES NO INDEMNITIES
INTELLECTUAL PROPERTY OR OTHERWISE , AND DISCLAIMS ALL WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED RELATIVE TO ANY THIRD-PARTY BRANDED PRODUCT WHICH MAY BE SOLD
BY SELLER HEREUNDER. The only warranty associated with such products will be
that provided directly by the original manufacturer, if any. Seller assumes no
post-sale technical support or warranty repair obligations with respect to such
products, however, at its discretion, Seller may assist Buyer in processing
warranty claims. Seller assumes no responsibility for any information,
specifications, claims, warranties or representations made or provided relative
to such products, which in all cases will be the responsibility of the original
product manufacturer. Such information, to extent provided by or secured from
Seller, is solely for the convenience of Buyer, and Buyer must make its own
determination as to the accuracy and completeness of such information.
8. LICENSED SOFTWARE AND FIRMWARE. Use of Products comprised of
software or firmware may be subject to Buyer’s acceptance of additional terms
and conditions set forth in separate Seller or third-party license agreements
that will control to the extent necessary to resolve any conflict with the terms
and conditions stated or otherwise referenced herein. In the absence of a
separate Seller’s license agreement, Buyer is granted a non-exclusive,
non-transferable license to use provided Seller’s software or firmware only in
object code form and solely in conjunction with Seller-provided Products, with
no rights to sublicense, disclose, disassemble, decompile, reverse engineer, or
otherwise modify the software or firmware.
9. PACKING AND MARKING. Buyer-specified packing or marking may be
subject to additional charges not otherwise included in the price of the
Products.
10. WEIGHTS AND DIMENSIONS. Published or advertised weights and
dimensions are estimates or approximations only and are not warranted.
11. PRICES. Prices and other information shown in any Seller
publication including product catalogs and brochures are subject to change
without notice and to confirmation by specific quotation. Such publications are
not offers to sell and are maintained only as a source of general information.
Prices do not include sales, use, excise, customs, value-added or similar taxes.
Buyer will pay or reimburse Seller for all such taxes as may be applicable. Time
and material services will be provided in accordance with Seller’s published
service rates including applicable overtime and travel expenses in effect as
of the date such services are provided, unless otherwise confirmed by Seller’s
written quotation or order acknowledgment. Billable service time includes travel
time to and from the job site and all time Seller’s representatives are
available for work and waiting whether on or off the job site to perform the
services.
12. CHANGES AND SUBSTITUTIONS. Buyer-requested order changes,
including those affecting the identity, scope and delivery of the Products, must
be documented in writing and are subject to Seller’s prior approval and
adjustments in price, scheduling and other affected terms and conditions. In any
event, Seller reserves the right to reject any change that it deems unsafe,
technically inadvisable or inconsistent with established engineering or quality
guidelines and standards, or incompatible with Seller s design or manufacturing
capabilities. Seller further reserves the right to substitute using the latest
superseding revision or series or equivalent Product having comparable form, fit
and function.
13. RETURNS. All returns of Products will be pursuant to Seller’s
instructions. Non-warranty returns of unused and resalable Products for credit
will be subject to Seller’s return policies in effect at the time, including
applicable restocking charges and other conditions of return. Products returned
under warranty must be properly packed and shipped to Seller-specified
locations. Shipping containers must be clearly marked per Seller’s instruction
and shipped freight prepaid by Buyer.
14. ORDER CANCELLATION. Cancellation by Buyer prior to shipment is
permitted only by written notice and upon payment to Seller of reasonable
cancellation and restocking charges, including reimbursement for direct costs.
Cancellation charges associated with orders for custom Products or Products
specifically manufactured to Buyer’s specification may equal the actual selling
price of the Products. Seller has the right to cancel an order for cause at any
time by written notice, and Seller will be entitled to cancellation and
restocking charges as identified above. No termination by Buyer for cause will
be effective unless and until Seller has failed to correct such alleged cause
within forty five 45 days after receipt of Buyer’s written notice specifying
such cause.
15. FORCE MAJEURE. Seller will not be liable for any loss, damage
or delay arising out of its failure or that of its subcontractors to perform
hereunder due to causes beyond its reasonable control, including without
limitation, acts of God, acts or omissions of Buyer, acts of civil or military
authority, fires, strikes, floods, epidemics, quarantine restrictions, war,
riots, acts of terrorism, delays in transportation, or transportation embargoes.
In the event of such delay, Seller’s performance date s will be extended for
such length of time as may be reasonably necessary to compensate for the
delay.
16. GOVERNMENT CLAUSES AND CONTRACTS. Application of government
contract regulations and clauses to the Products or the agreement evidenced by
these terms and conditions are subject to the separate review and consent by an
authorized representative at Seller’s headquarters. Products sold or licensed
hereunder are not intended to be used, nor should they be used, in any
nuclear-related application either as a "Basic Component" as defined under
United States nuclear regulations or under similar nuclear laws and regulations
of any other country or otherwise.
17. EXPORT CONTROL. Products and associated materials supplied or
licensed hereunder may be subject to various export laws and regulations. It is
the responsibility of the exporter to comply with all such laws and regulations.
Notwithstanding any other provision herein to the contrary, in the event that
U.S. or local law requires export authorization for the export or re-export of
any Product or associated technology, no delivery can be made until such export
authorization is obtained, regardless of any otherwise promised delivery date.
In the event that any required export authorization is denied, Seller will be
relieved of any further obligation relative to the sale and/or license and
delivery of the Product s subject to such denial without liability of any kind
relative to Buyer or any other party. Seller will not comply with boycott
related requests except to the extent permitted by U.S. law and then only at
Seller’s discretion.
18. DISPUTES. The parties will attempt in good faith promptly to
resolve any dispute arising hereunder by negotiations between representatives of
the parties who have authority to settle the dispute. If unsuccessful, the
parties further will attempt in good faith to settle the dispute by non-binding
third-party mediation, with mediator fees and expenses apportioned equally to
each side. Any dispute not so resolved by negotiation or mediation may then be
submitted to a court of competent jurisdiction in accordance with the terms
hereof. These procedures are the exclusive procedures for the resolution of all
such disputes between the parties.
19. GOVERNING LAW AND FORUM. The agreement evidenced hereby and
all disputes arising thereunder will be governed by and interpreted in
accordance with the internal laws and will be subject to the exclusive
jurisdiction of the courts of the state, province or other governmental
jurisdiction in which Seller’s principal place of business resides, but
specifically excluding the provisions of the 1980 UN Convention on Contracts for
the International Sales of Goods. Should any term or provision hereof be held
wholly or partly invalid or unenforceable under applicable law, the remainder of
the agreement evidenced hereby will not be affected thereby.
20. ASSIGNMENT. The agreement evidenced hereby may not be assigned
by either party without the written consent of the other which consent will not
be unreasonably withheld . However, consent will not be required for internal
transfers and assignments as between Seller and its parent company, subsidiaries
or affiliates as part of a consolidation, merger or any other form of corporate
reorganization.
21. LANGUAGE. The parties acknowledge that they have required that
the agreement evidenced hereby be drawn up in English. Les parties reconnaissent
avoir exigé la rédaction en anglais du Contrat. In the event of a conflict
between the English and other language versions, the English version will
prevail.
|