1. DEFINITIONS / PARTIES
The term “Buyer” as used herein shall refer to the Customer indicated on the Quotations, Order Confirmations and/or Acknowledgements, and Invoices. The term “Seller” as used herein shall refer to the titled name Solid State Optronics as indicated on the Quotations, Order Confirmations and/or Acknowledgements, and Invoices.
Along with the price, quantities, delivery schedule and other provisions set out in the Seller’s Quotations, Order Confirmations and/or Acknowledgements, and Invoices the following terms and conditions of sales apply.
THE FOLLOWING TERMS AND CONDITIONS ARE AN INTEGRAL PART OF THE SELLER’S QUOTATIONS AND ORDER CONFIRMATIONS AND/OR ACKNOWLEDGEMENTS AND INVOICES, ACCEPTANCE IS EXPRESSLY MADE SUBJECT TO THE TERMS AND CONDITIONS STATED IN THIS AGREEMENT. NONE OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT MAY BE ADDED TO, MODIFIED, SUPERSEDED OR OTHERWISE CHANGED EXCEPT IN WRITING. ALL ORDERS RECEIVED FROM BUYER BY THE SELLER SHALL BE GOVERNED ONLY BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT REGARDLESS OF THOSE THAT MAY BE STATED ON BUYER’S PURCHASE ORDER, RELEASE OR OTHER DOCUMENT FOR PRODUCT OR SERVICE PURCHASE. SELLER’s FAILURE TO OBJECT TO TERMS CONTAINED IN ANY COMMUNICATION FROM BUER SHALL NOT BE DEEMED A WAIVER OF THESE TERMS OF SALE.
All products will be shipped in accordance with the terms of delivery agreed between the parties in an accepted purchase order as set out in the Seller’s Quotation and Order Confirmation or acknowledgement. All shipments should be inspected by the Buyer immediately upon receipt and should there be evidence of damage or loss in transit, claims upon carrier must be filed by Buyer. The Seller will assist in tracing shipments upon request. Any trade terms mentioned shall be interpreted in accordance with the Incoterms 2002 of the International Chamber of Commerce, unless otherwise specified in the Quotation and Order Confirmation and/or Acknowledgement and Invoice.
4. WARRANTY AND REMEDIES
The Seller hereby warrants that all products furnished under a Buyer’s purchase order accepted by the Seller shall conform to the design, specifications, drawings, samples or other description, the Seller’s published applicable standard quality level or as may be agreed to between the parties in an accepted purchase order or other documents referenced therein; shall be free from defects in material and workmanship; and that the Seller has title to the products. This warranty does not extend to any product, which fails to operate because of misapplication or has been subject to misuse, neglect or accident or been repaired or substantially altered. Such warranties shall survive any inspection, delivery, acceptance or payment for one (1) year from date of delivery.
PRODUCTS SOLD BY THE SELLER ARE NOT RECOMMENDED FOR USE IN CRITICAL LIFE APPLICATION, OR LIFE SUPPORT SYSTEMS, UNLESS OTHERWISE STATED EXPRESSLY IN WRITTEN FORM TO THE BUYER. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED; AND THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE HEREBY EXCLUDED. THE SELLER’S OBLIGATION UNDER ANY PURCHASE ORDER IS LIMITED SOLELY AND EXCLUSIVELY TO REPAIR AND REPLACEMENT OF DEFECTIVE OR NONCONFORMING PARTS REPORTED IN WRITING WITHIN THE WARRANTY PERIOD. THE COMPANY SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGE WHETHER FOUNDED ON CONTRACT, TORT OR ANY OTHER THEORY OF LAW, NOR FOR ANY DAMAGE THAT MAY BE CAUSED BY A DELAY IN DELIVERY.
Seller’s warranties as hereinabove set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of, Seller’s rendering of technical advice or service in connection with Buyer’s order of the goods furnished hereunder.
The repair or replacement of product by the Seller will be at no charge to the Buyer, EXW destination, but is conditioned upon the Seller’s receipt of written notice of any alleged defect or non-conformance promptly upon discovery. No product shall be returned to the Seller without its prior written consent. The warranty extends directly to the Buyer and not to Buyer’s customers, agents or representatives.
5. PRICES & TAXES
The prices set forth in this quote or acknowledgement, as applicable, supersedes all previous prices or quotations. All quotations are in effect for a period of thirty (30) days, except as may be specifically noted on the face of the quotation. The prices show will not include sales, excise or other government charges payable by the Company to Federal, State or local authority. Any such tax, duty or charges now or hereafter imposed upon the sale or shipment of the product to the Buyer will be added to the purchase price. Buyer agrees to reimburse the Seller for such tax or charge or provide the Seller with an acceptable exemption certificate. It is fully understood that it is a matter of principle to the agreement that, unless expressly stated otherwise, the prices specified reflect a standard allocation of risk provided by the limited remedies and limitations of liability set forth here. Any modification of the allocation of risk would affect the prices. Failure of any limited remedy in the Terms and Conditions to fulfill its essential purpose shall not be ground to set aside the limitations of the Seller’s liability.
Payment shall be Cash on Delivery (COD) or Pre-Pay unless other payment terms have been agreed in writing between the parties prior to the sale. Buyer will execute a financing statement, security agreement, lease and any other documents reasonably requested by Seller. If at any time the financial condition of the Buyer so warrants, or if the Buyer fails to make payment when due, or defaults in any way, the Seller may either alter the terms of payment, suspend credit and withhold further shipment or pursue any remedies available at law or under this agreement. In such event, the Seller will be entitled to compensation from the Buyer for its reasonable expenses, including attorney’s fees. All right, title and interest in and to all items covered by Buyer’s order are reserved to Seller until the full purchase price for all such items has been paid.
7. DELIVERY RESCHEDULING
The Seller will exercise reasonable business practice to meet the delivery date(s) set forth on the front or as otherwise agreed, provided the Buyer has given all shipping information sufficiently prior to the shipment date(s). Any quantity discrepancies in shipping must be reported to Seller in writing within thirty (30) days of arrival at the Buyer’s designated shipping destination. Rescheduling requests are subject to Seller’s rescheduling policy. The Seller’s minimum order quantities (MOQ) shall apply. In the event of shortages, the Seller may allocate available products among its customers.
Buyer may cancel its order or any part thereof, by sending written notice of cancellation to the Seller and paying a reasonable cancellation fee. The reasonable cancellation fee will reflect among other factors, the expenses already incurred and commitments made by the Seller, sales and administrative cost and profit as determined by the Seller. If Buyer received a reduced price based on quantity of products ordered, but has not purchased the applicable quantity at the time of cancellation, Buyer will pay the difference between the price Buyer paid and the price it would have paid had Seller’s prices been based on the quantity actually purchased.
If Buyer makes any changes in its drawings, designs or specifications applicable in any resulting contract that causes an increase or decrease in the cost of performance of the contract, or if such changes result in rework or obsolescence, an equitable adjustment shall be made to the affected contract. The Seller may make changes in design, material or processes used in the manufacture or assembly of its product with reasonable notice to the Buyer or responsibility to change or replace product manufactured or assembled prior to such change.
10. EXCUSABLE DELAY
The Seller shall under no circumstances be responsible for failure to fill any order or orders when due to fires; floods, riots; wars; strikes; freight embargoes or transportation delays; shortage of labor; inability to secure fuel, material, supplies, or power at current prices or on account of shortages thereof; act of God or of the public enemy; any existing or future laws or acts of the Federal or of any State Government (including specifically but not exclusively any orders, rules or regulations issued by any official or agency of any such government) affecting the conduct of the Seller’s business with which the Seller in its judgment and discretion deems it advisable to comply as a legal or patriotic duty; or to any cause beyond the Seller’s reasonable control. The Seller shall inform the Buyer on the occurrence of such failure and the estimated duration as soon as possible. In the event the suspension has lasted for four (4) consecutive months, either party is entitled to terminate as far as the suspended agreement without being held liable to any indemnity whatsoever towards the other party.
The Seller shall defend all suits or proceedings brought against Buyer or its customers arising from claimed infringements of any patent, trademark, service mark or copy right for any product furnished by the Seller under this contract where such claim is based solely on the Seller’s product and not its use in combination. The Seller shall indemnify Buyer against all costs fees, and damages. This is on the condition that the Buyer promptly notifies the Seller in writing, allows the Seller to assume the defense and provides information and assistance (at the Seller’s expense) for such defense.
12. PROPRIETORY INFORMATION AND PUBLICITY
Except where intended to serve as instructions for use or advertising matter, all technical information in relation to the Seller’s products and their maintenance remains the Seller’s property and may without its consent not to be utilized or copied, reproduced, transmitted or communicated to third parties. Illustrations, catalogues, colors, drawings, dimensions, statements of weight and measurements and media presentations made available by the Seller are only meant to present a general idea of the products to which they refer; they are approximate only and therefore not binding upon the Seller. Neither party shall, without the other party’s prior written consent, use the other party’s name or trademark as such and /or use same in connection with any advertisement or sales literature.
This agreement shall be binding upon and inure to the benefit of the successors and assigns of the Seller but shall not be assignable by the Buyer voluntarily or involuntarily without the written consent of the Seller.
In the event that any provision(s) of the agreement shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions hereof.
The failure on the part of either party to exercise, or any delay in exercising, any right or remedy hereunder shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy hereunder preclude any other or future exercise thereof or the exercise of any other right or remedy granted hereby or by any related document or by law.
16. SET OFF
The Buyer hereby waives any and all rights to offset existing and future claims against any payments due for products sold hereunder or under any other agreement that the Buyer and the Seller may enter into and agrees to pay the amounts due regardless of any claimed offset which may be asserted by the Buyer or on its behalf.
17. APPLICABLE LAW
This document and any resulting contract shall be governed by and construed in accordance with the laws of the State of California as set out in the preamble, exclusive of its choice of law rules and the UN convention for the International Sales of Goods. In any action or proceeding brought pursuant to this agreement venue shall be laid in Santa Clara County, California, USA.
The aforesaid terms and conditions along with the prices, quantities, delivery schedules and other provisions and instructions on the written Quotation and Order Confirmation and /or Acknowledgement document shall constitute the entire agreement between the Seller and Buyer pertaining to any resulting contract. They can only be modified in writing.