SELLER’S TERMS AND CONDITIONS OF SALE
All purchases and sales of products, including all parts, spare parts and components thereof (the “Products”) or services (the “Services”) between Buyer and Applied Physics & Electronics, Inc. (the “Seller”), and/or its direct and indirect subsidiaries (collectively, “Seller”), shall be made pursuant to Seller’s quote and/or order acknowledgment and shall be governed by these Terms and Conditions. These Terms and Conditions and Seller’s quote and/or order acknowledgement shall constitute the entire agreement between the parties pertaining to the subject matter hereof, and shall supersede all prior or contemporaneous oral or written negotiations, agreements, understanding or representations with respect thereto. These Terms and Conditions shall supersede any conflicting provision contained in any purchase order of Buyer. Unless otherwise agreed in writing, nothing contained in any purchase order of Buyer shall in any way modify or add any provision to these Terms and Conditions. These Terms and Conditions may not be amended or any provision hereof waived in any way except by an instrument in writing signed by both parties. IN THE EVENT THAT SELLER’S QUOTE IS DEEMED AN OFFER, ACCEPTANCE BY BUYER OF SUCH OFFER IS EXPRESSLY LIMITED TO THE TERMS CONTAINED HEREIN AS WELL AS THOSE STATED ON THE QUOTE, IF APPLICABLE. ISSUANCE BY BUYER OF A PURCHASE ORDER SHALL BE DEEMED AN ACCEPTANCE OF THESE TERMS AND CONDITIONS.
Buyer will have accepted (and will be deemed to have accepted) these Terms if Buyer does any of the following: (a) accepts the Terms in writing, (b) pays (in part or whole) for any Products or Services, (c) places an order referencing an estimate/quotation provide by Seller, or (d) receives delivery of any Products or Services. All Seller offers are open for acceptance for no longer than the period stated on the face of the quote issued by Seller, or, when no period is stated, thirty (30) days from the date of the offer, but any offer may be withdrawn or revoked by Seller at any time prior to the receipt by Seller of Buyer’s acceptance of such offer. No person, including any sales representative, order gatherer, or liaison officer for Seller, is an agent for Seller or has authority to extend or accept an offer on Seller’s behalf.
2. PRODUCTS PROVIDED AND PRICE
(a) Unless otherwise provided on the front of this form, Products pursuant to the Terms shall be newly manufactured products but may contain components which have been previously used in other product units that meet or exceed the Seller’s specifications for newly manufactured components.
(b) The prices for Products and Services are those set forth on the face of the quote provided by Seller. The cost of packaging for normal shipment is included in the invoiced price for Products. Where special packaging is required, involving greater expense, a charge will be made to cover such extra expense.
(c) Unless expressly agreed to in writing by Seller, prices quoted are for the Products and Services described on the face of the quote by Seller only and do not include any technical data, proprietary rights of any kind, patent rights, qualification, environmental or other than Seller’s standard tests unless expressly agreed to in writing by Seller.
(e) If the price of fuel, metals, raw materials, or other production costs increases significantly, Seller will have the right to impose a reasonable surcharge for all affected Products or Services
3. PAYMENT TERMS
(a) The prices for all Products and Services shall be as set forth in Seller’s quote and/or order acknowledgment and such prices shall be exclusive of all taxes and other charges referenced in Section 3.2 below, all of which shall be paid by Buyer. Seller shall submit an invoice to Buyer with each shipment of Products. Each invoice shall be due and payable in U.S. Dollars net thirty (30) days from the date of invoice. Such payment terms are subject to approval of credit. Seller reserves the right, at its sole discretion, to limit, cancel or modify Buyer’s credit terms as to time or amount from time to time and without prior notice. Seller reserves the right to require alternative payment terms, including but not limited to sight draft, letter of credit or payment in advance, such as a non-refundable deposit and/or payment for release of shipment..
(b) If Products or Services covered by these Terms are not delivered or performed at one time, Buyer will pay for the quantity of Products delivered or Services performed as shipped or incurred. Partial shipments made under any order will be treated as separate and independent transactions and will be invoiced accordingly. However, in the event of any default by Buyer, Seller may decline to make further shipments without in any way affecting its rights under such order.
3.2 Taxes and Charges
Buyer shall pay all transportation, handling, insurance, taxes (income taxes excluded), license fees, import, export and customs fees and duties, tariffs and other charges related to the Products or Services purchased hereunder. If claiming tax exemption, Buyer must provide Seller with valid tax exemption certificates.
3.3 Interest Charges
If Buyer fails to pay any invoice when due, Seller may charge Buyer interest in an amount equal to the lesser of one and one-half percent (1½%), or the maximum permissible rate, per started month on any past due balance. Seller may withhold delivery of any Products or Services at any time in which Buyer’s account is past due or exceeds its approved credit limit. If Seller employs any legal process to recover any amount due and payable from Buyer hereunder, Buyer shall pay all costs of collection and reasonable attorney fees.
4.1 Delivery – Title and Risk of Loss
All Products will be delivered FOB (for domestic shipments) or FCA (for international shipments), Seller’s designated factory. Title to the Products (except for title to any Software which shall at all times remain with Seller) shall pass from Seller to Buyer according to the definition of the FOB/FCA terms. Buyer shall assume all risk of loss or damage upon delivery of the Products to the carrier, unless otherwise agreed by both parties in writing. In no event shall Seller be liable for any delay in delivery (provided that Seller timely delivers the Products to the carrier as provided above), or assume any liability in connection with shipment, nor shall the carrier be deemed an agent of Seller.
4.2 Acceptance of Products
Buyer shall inspect all Products promptly upon receipt. The furnishing by Seller of a Product to Buyer shall constitute acceptance of that Product unless Seller receives a written notice of defect or nonconformity within five (5) business days after receipt by Buyer, provided, that such acceptance shall not relieve Seller of its warranty obligations hereunder.
5. CHANGES – CANCELLATIONS – RETURNS
5.1 Seller Product Changes and Substitutions
Seller reserves the right to (a) make changes in Products without notice, and without any obligation to incorporate those changes in any Products previously delivered to Buyer and (b) ship to Buyer the most current Product regardless of catalog description, if applicable.
5.2 Buyer Changes to Orders or Specifications
Buyer may make changes to any order for standard Products by providing written notice to Seller at least 30 days prior to the scheduled shipment date. Any changes to any order for custom or option configured Products, including, but not limited to, any changes to the specifications for the Products, must be approved in advance and in writing by Seller. Seller must receive Buyer’s change request at least thirty (30) days prior to the scheduled shipment date. In the event of changes to any order or the specifications for the Products, Seller reserves the right to adjust the prices and delivery dates for the Products, and to invoice Buyer for any unearned discounts based upon the actual quantities of Products delivered. In addition, Buyer shall be responsible for all costs associated with such change including, but not limited to, the burdened costs of all raw materials, work in progress and finished goods inventory on-hand or ordered which are impacted by such change.
Buyer may cancel an order by providing written notice to Seller within 30 days of acceptance of order by Seller. Any order for custom or option configured Products may be cancelled only upon Seller’s prior written approval, which may be granted or withheld in Seller’s sole discretion. Any order cancellation will be subject to the following cancellation charges with respect to all cancelled units of Products: (a) 10% of the purchase price if cancelled within 30 days of order; (b) 30% of the purchase price if cancellation is requested by Buyer greater than 30 days of order placement, and subject to Seller’s approval, and (c) other reasonable cancellation charges including, but not limited to, non-recurring engineering expenses and any other costs incurred by Seller relating to such cancellation.
(a) The Products may not be returned to Seller without first obtaining Seller’s consent. The request for return and credit must be filed with Seller and include purchase order number, approximate date shipped and any and all other identifying numbers (such as invoice number, date of invoice, P.O. numbers, etc.). Each request for return of Products for credit should state the type and quantity of goods, the part numbers and the reasons for the return. If return authorization is granted, Products shall be returned in clean condition and well packaged. No credit allowance on defective Products will be made and no replacement for defective Products will be shipped, unless the alleged defective Products have been shipped to and inspected/ tested by the Seller.
(b) Custom or option configured Products are non-returnable. Standard Products may be returned to Seller for credit within thirty (30) days of the initial invoice date (60 days outside of the U.S.) and are subject to a 25% restocking charge. Prior to returning a Product, Buyer must contact Seller’s Return Department for shipping instructions and a Return Material Authorization number (“RMA#”). Buyer must ship the Product back in its original condition and in the original or equivalent packaging, with the RMA# clearly marked on the outside of the box, freight prepaid. Seller shall not be responsible for any damage incurred in transit or obligated to accept Products returned without an RMA#. Buyer bears all risk of loss or damage to the returned Products until delivery at Seller’s designated facility. Any return shipment received by Seller without an RMA# and/or whose contents are not received in their original condition, may be returned to Buyer, freight collect.
6. PROPRIETARY RIGHTS – CONFIDENTIALITY
6.1 Seller’s Rights
Unless otherwise specifically agreed in writing by Buyer and Seller, as between Buyer and Seller, Seller retains all right, title and interest in and to the Software, all inventions, ideas, processes, methods, know-how, skills and techniques developed, discovered or conceived by Seller or its employees, including without limitation those developed and/or used in connection with the manufacture of the Products or performing Services hereunder (collectively, the “Seller Rights”). Such rights include, but are not limited to, patent rights, copyrights, trade secret rights, trademark rights, mask work rights and other proprietary rights throughout the world. Seller hereby grants to Buyer a nonexclusive, nontransferable, worldwide, limited license to use the Seller Rights solely to the extent required for Buyer to use the Products or Software sold or licensed hereunder. Seller shall retain all right, title and interest in and to all materials, fixtures or tools designed, developed or manufactured by Seller in connection with the manufacture of the Products. Seller may subcontract any portion of the manufacturing of Product, delivery of Service provided, or other work in accordance with these Terms as well as any of Seller’s obligations and rights under these Terms.
6.2 Buyer Rights
Unless otherwise specifically agreed in writing by Buyer and Seller, as between Buyer and Seller, Buyer retains all right, title and interest in and to all specifications and materials provided by Buyer to Seller, and all inventions, ideas, processes, methods, know-how, skills and techniques developed, discovered or conceived by Buyer or its employees (the “Buyer Rights”). Such rights include, but are not limited to, patent rights, copyrights, trade secret rights, trademark rights, mask work rights and other proprietary rights throughout the world. Buyer hereby grants to Seller a nonexclusive, worldwide, limited license to use and exploit the Buyer Rights solely to the extent required for Seller to perform its obligations and exercise its rights hereunder.
7. CONFIDENTIAL INFORMATION
All information provided by Seller to Buyer shall be deemed confidential information. All such confidential information of Seller will be treated as confidential pursuant to the terms of the applicable nondisclosure agreement between Seller and Buyer. But if there is no nondisclosure agreement in place, all information that Buyer knows, or should know, is confidential to Seller, including, but not limited to, pricing and lead-time information, will remain the property of Seller and may be used, reproduced and disclosed by Buyer only to the extent necessary to use the applicable Products and Services purchased under and in accordance with these Terms and not used, reproduced, or disclosed for any other purpose.
Each party agrees that it (a) will hold the Confidential Information in strict confidence and use its reasonable efforts to prevent the unauthorized disclosure of the Confidential Information; (b) will not disclose the Confidential Information in any manner whatsoever, except as required by applicable law; (c) will use the Confidential Information only for the purpose of performing its obligations hereunder or in conjunction with the operation of the Products or Software and for no other purpose; and (d) will provide access to the Confidential Information to only those of its employees or representatives who need to know the Confidential Information for the purpose of performing their duties in connection with the Products or Services. These obligations shall not apply to information that: (i) was independently developed by or for the receiving party without use of the disclosing party’s Confidential Information, in whole or in part, as demonstrated by written evidence; (ii) is or becomes generally available to the public without breach of confidentiality obligations by the receiving party; (iii) was in the receiving party’s possession or was known by the receiving party without restriction at the time of disclosure by disclosing party, as demonstrated by written evidence; or (iv) is lawfully received by the receiving party on a non-confidential basis from a third party without breach by such third party of any legal, contractual, or fiduciary obligation to the disclosing party.
8. WARRANTY – DISCLAIMER OF WARRANTY
8.1 Product Warranty
Except as otherwise expressly stated in Seller’s quote or in the current operating manual or other written guarantee for any of the Products. Seller warrants that, for the period of time set forth in Section 8.2 below with respect to each Product or component type (the “Warranty Period”), the Products sold hereunder will be free from defects in material and workmanship, and will conform to the applicable specifications, under normal use and service when correctly installed and maintained. Seller shall repair or replace, at Seller’s sole option, any defective or nonconforming Product or part thereof which is returned at Buyer’s expense to Seller’s facility, provided, that Buyer notifies Seller in writing of the discovery of the defect or nonconformity within the Warranty Period. Products may only be returned by Buyer when accompanied by a Return Material Authorization number (“RMA#”) issued by Seller’s Return Department, with freight prepaid by Buyer. Seller shall not be responsible for any damage occurring in transit or obligated to accept Products returned for warranty repair without a RMA#. Buyer bears all risk of loss or damage to the Products until delivery at Seller’s designated facility. Seller shall pay for shipment back to Buyer for Products repaired under warranty. For Products returned for repair that are not covered under warranty, Seller’s standard repair charges shall be applicable in addition to all shipping expenses. Unless otherwise stated in Seller’s repair quote, any such out-of-warranty repairs are warranted for ninety (90) days from date of shipment of the repaired Product.
8.2 Limited Warranty — Limitation of Remedies.
(a) Lasers and components thereof are warranted for the number of hours (or other measure of usage) specified in the operating manual for each laser or component thereof, or twelve (12) months from the date of shipment, whichever is shorter (except for the flash lamp components of lasers, and the optical and crystal components of pulsed lasers, which are warranted for ninety (90) days). Gratings, optical filters and replicated mirrors (whether sold as separate Products or constituting components of other Products) are warranted for a period of ninety (90) days from the date of shipment. All other Products are warranted for a period of twelve (12) months from the date of shipment.
(b) This warranty is the only warranty made by Seller with respect to the Products and no representative or person is authorized to bind Seller for any obligations or liabilities beyond the warranty in connection with the sale of Seller’s goods. This warranty is made to the original purchaser only at the original location and is nontransferable, and may only be modified or amended by a written instrument signed by a duly authorized officer of Seller. Major sub-systems manufactured by other firms but integrated into Seller’s system are covered by the original manufacturer’s warranty and Seller makes no warranty, express or implied regarding such sub-systems. Goods or parts, which are replaced or repaired under this warranty, are warranted only for the remaining unexpired portion of the original warranty period applicable to the specific product.
(c) If it is found that any Product has been returned without cause and/or is not covered by paragraph 8.1, Buyer will be notified and the Product returned at Buyer’s expense. In addition, a charge for testing and examination may, in Seller’s sole discretion, be made on Products so returned.
8.3 Warranty Exclusions
The above warranty does not apply to Products which are (a) repaired, modified or altered by any party other than Seller; (b) used in conjunction with equipment not provided or authorized by Seller; (c) subjected to unusual physical, thermal, or electrical stress, improper installation, misuse, abuse, accident or negligence in use, storage, transportation or handling, alteration, or tampering, or (d) considered a consumable item or an item requiring repair or replacement due to normal wear and tear. On-site warranty repair is not covered under the forgoing warranty.
8.4 Disclaimer of Warranties – Exclusive Remedy
THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, REGARDING THE PRODUCTS, SOFTWARE OR SERVICES. SELLER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE FOR THE PRODUCTS, SOFTWARE OR SERVICES. THE OBLIGATIONS OF SELLER SET FORTH IN THIS SECTION SHALL BE SELLER’S SOLE LIABILITY, AND BUYER’S SOLE REMEDY, FOR BREACH OF THE FOREGOING WARRANTY.
Representations and warranties made by any person including distributors, dealers and representatives of Seller which are inconsistent or in conflict with the terms of this warranty shall not binding on Seller unless reduced to writing and approved by an expressly authorized officer of Seller.
9.1 Seller Indemnity
(a) Seller shall indemnify and hold harmless Buyer from any final award of damages in any suit or proceeding instituted against Buyer based upon a claim that a Product or the Software sold or licensed hereunder infringes any patent or copyright of a third party. Seller shall defend, at its expense, any such suit or proceeding provided that: (a) Buyer gives Seller prompt notice in writing of any such suit and permits Seller through counsel of its choice, to answer the charge of infringement and defend such suit; and (b) Buyer gives Seller all the needed information, assistance and authority, at Seller’s expense to enable Seller to defend such suit. Seller shall not be responsible for payment of any amounts under any settlement made without its prior written consent. The foregoing indemnity shall not apply to the extent such alleged or actual infringement arises as a result of (i) the use or incorporation of such Product or Software in a manner or in combination with any other products, devices or parts not specified in Seller’s specifications therefor, or (ii) modifications of such Product or Software made by Buyer or any party (other than Seller) which were not approved by Seller, or (iii) Seller’s compliance with any of Buyer’s designs, specifications or instructions. In the event that a court of competent jurisdiction determines in a final, non-appealable order that the Product or the Software is infringing in a manner for which Seller is obligated to indemnify Buyer pursuant to this Section 9.1, Seller shall, at its option, either (1) procure for Buyer the right to continue using such infringing Product or Software; (2) replace the infringing Product or Software with a non-infringing item of like form, fit or function; (3) modify the Product or Software so that it no longer infringes; or (4) remove the Product or Software and refund the purchase price to Buyer. THIS SECTION STATES SELLER’S SOLE RESPONSIBILITY AND LIABILITY, AND THE BUYER’S SOLE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT OR COPYRIGHT BY ANY PRODUCT OR SOFTWARE DELIVERED HEREUNDER OR ANY PARTS THEREOF. THIS SECTION IS IN LIEU OF AND REPLACES ANY OTHER EXPRESSED, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY SUCH INFRINGEMENT.
(b) Seller will have no liability for, and the obligations of Seller under Section 9.1(a) will not apply to any claim arising from or related to (i) the use of Products as a part of or in combination with any other devices, parts, processes or methods; (ii) Seller’s compliance with any designs, specifications, or instructions provided by or for Buyer; (iii) the use of Products contrary to any instructions issued by Seller or in breach of these Terms; (iv) modifications or alterations to the Products; (v) the practice of any process or method relating to Buyer’s or its customers’ use of the Products; or (vi) use of the Products after receiving notice of such third party claim or by Seller (collectively, “Excluded Claims”).
(c) THIS SECTION 9 STATES SELLER’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT BY ANY PRODUCTS OR SERVICES DELIVERED UNDER THESE TERMS, OR ANY PART THEREOF. THIS SECTION 9 IS IN LIEU OF AND REPLACES ANY OTHER EXPRESSED, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT. IN NO EVENT WILL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR OTHER DAMAGES RESULTING FROM ANY SUCH INFRINGEMENT.
9.2 Buyer Indemnity
Buyer shall indemnify and hold harmless Seller from and against any expense or loss resulting from any actual or alleged infringement of any patent or copyright arising as a result of (a) Seller’s compliance with any of Buyer’s designs, specifications or instructions, (b) the use or incorporation of such Product or Software in a manner or in combination with any other products, devices or parts not specified in Seller’s specifications therefor, or (c) modifications of such Product or Software by Buyer or any party (other than Seller) which were not approved by Seller. Buyer shall defend, at its expense, any suit brought against Seller alleging any such infringement provided that Seller (i) gives Buyer prompt notice of any such suit and permits Buyer, through counsel of its choice, to defend such suit and (ii) gives Buyer all needed information, assistance and authority, at Buyer’s expense, necessary for Buyer to defend any such suit
9.3 Limitation of Liability
SELLER SHALL NOT BE LIABLE FOR ANY COMMERCIAL LOSSES, LOSS OF REVENUES OR PROFITS, LOSS OF GOOD WILL, INCONVENIENCE, OR EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, OR CLAIMS OF THIRD PARTIES, REGARDLESS OF THE FORM OF ANY CLAIM, WHETHER IN CONTRACT OR TORT, WHETHER FROM BREACH OF THIS AGREEMENT, OR DEFECTIVE PRODUCTS, OR LOSS OF DATA OR FROM ANY OTHER USE, EVEN IF SELLER HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGE. SELLER’S LIABILITY FOR LOSS OR DAMAGES SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PARTICULAR PRODUCT.
Any one of the following acts by Buyer will constitute a material breach of Buyer’s obligations under these Terms: (a) Buyer fails to make payment for any Products or Services in full when due; (b) Buyer fails to accept conforming Products or Services supplied under these Terms; or (c) the filing of either a voluntary or involuntary petition in bankruptcy with respect to Buyer, Buyer’s insolvency or inability, or admission in writing of its inability, to pay its debts generally as they become due, Buyer’s application for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of a substantial part of its property, Buyer’s initiation of an out of court restructuring or wind down, or Buyer’s dissolution or liquidation in full or in part or an assignment for the benefit of creditors of Buyer. In the event of Buyer’s material breach, Seller may (in addition to any other rights or remedies provided herein or at law or in equity), by written notice to Buyer, terminate its obligations or any part thereof, without incurring any liability; provided, however, that with respect to a material breach due to subsection (c) above, such termination shall be automatic and effective without notice to Buyer. Buyer will pay all costs, including reasonable attorney’s fees, incurred by Seller in any action brought by Seller to collect payments owing or otherwise enforce its rights.
11. SUBSTITUTIONS, MODIFICATIONS, AND CHANGES
Seller will have the right to substitute and modify the specifications of Products or Services sold by Seller if such substitutions or modifications will not materially degrade overall performance.
12. SAFETY-CRITICAL AND MILITARY APPLICATIONS
(a) Unless expressly specified by Seller in writing in the specifications for the applicable Product, Seller Products are not designed for and will not be used in connection with any applications where the failure of such Products would reasonably be expected to cause significant personal injury or death (“Safety-Critical Applications”) without the specific written consent of an officer of Seller. Safety-Critical Applications include, without limitation, life support devices and systems, equipment or systems for the operation of nuclear facilities and weapons systems. Buyer will fully defend (at Seller’s option), indemnify and hold Seller harmless from and against any cost, loss, liability, or expense arising out of or related to use of Seller Products in Safety-Critical Applications.
(b) Seller Products are neither designed nor intended for use in military or aerospace applications or environments unless specifically designated by Seller as military- grade. Buyer acknowledges and agrees that any such use of Seller Products, which have not been designated as military-grade, is solely at Buyer’s risk, and that Buyer is solely responsible for compliance with all legal and regulatory requirements in connection with such use.
13.1 Product Origin
Buyer acknowledges that all or part of the Products may be developed, manufactured, tested, assembled or otherwise worked on, or delivered from any of Seller’s or its contractors’ facilities, domestic, and foreign.
13.2 Exceptions to Performance
Seller’s performance of its obligations will be excused or the time frame for performance will be extended as is reasonably necessary under the circumstances, in the event that Seller is prevented from performing its obligations in whole or in part by riots, fire, flood, earthquake, explosion, epidemics, war, strike or labor disputes, embargo, civil or military authority, act of God, changes in law, regulation or governmental policy, acts or omissions of vendors or suppliers, transportation difficulties or delays, or other causes beyond its reasonable control. In such event, such performance shall take place as soon thereafter as is reasonably practicable. Failure of the Buyer to provide timely response to requests from the Seller may also result in delivery delays, which shall be excused hereunder.
Buyer acknowledges and agrees that the Ultimate Destination of the Products and Software is in the United States of America, unless otherwise indicated (through the “ship to” address) in the Seller quote and/or order acknowledgment. Buyer shall not, nor shall Buyer authorize or permit its employees, distributors, customers, and/or agents to, export or re-export any of the Products or Software (including any information relating thereto) to any foreign national, nation, firm, or country, including foreign nationals employed by or associated with Buyer, without first complying with all U.S. laws, regulations or ordinances including the International Traffic in Arms Regulation (ITAR) and the Export Administration Regulation (EAR), including the requirement for obtaining an export license, if applicable. Buyer agrees to defend, indemnify, and hold harmless Seller from and against any claim, loss, liability, expense, or damage (including liens or legal fees) incurred by Seller with respect to any of Buyer’s export or re-export activities contrary to this provision.
13.4 Legal Compliance
Buyer agrees that it will comply with all applicable laws, regulations, and administrative rules. Without limiting the generality of the foregoing, Buyer represents itself to be knowledgeable as to United States and other relevant laws, regulations and requirements regarding the environment and the export, import or re-export of Products, whether tangible or intangible, from the United States of America or elsewhere, and agrees to conduct its activities in accordance with all United States and other environmental regulations and any similar or other rules, and import and export regulations. Seller may suspend performance if Buyer is in violation of any applicable laws or regulations. Buyer will provide any additional documentation required by Seller for compliance with applicable laws.
13.5 Assignment and Waiver of Rights
(a) Buyer may not assign any of its rights or delegate any of its obligations under these Terms, whether voluntarily, by operation of law, or otherwise without Seller’s prior written consent and any purported assignment or delegation without such consent will be null and void and of no force or effect. In addition, Buyer may not assign any of its rights or delegate any of its obligations to any entity controlled by, controlling or under common control with Buyer or in connection with Buyer’s merger or the transfer or sale of all or substantially all of Buyer’s assets or stock without Seller’s prior written consent and any purported assignment or delegation without such consent will be null and void and of no force or effect. Seller may assign its rights and/or delegate its obligations under these Terms upon written notice to Buyer. Subject to the foregoing, these Terms will bind each party and its respective successors and permitted assigns.
(b) Any waiver by Seller of any right it may have or default by Buyer will not be deemed to be a continuing waiver of such right or default or a waiver of any other right it may have under these Terms or other default, nor will any delay or omission by Seller in exercising or availing itself of any right or remedy that it has or may have operate as a waiver of any right or remedy. No waiver by Seller will be effective except pursuant to a writing signed by a duly authorized representative of Seller.
If any provision of these Terms and Conditions is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall remain, nevertheless, in full force and effect. The parties agree to renegotiate in good faith any term held invalid and to be bound by the mutually agreed substitute provision in order to give the most approximate effect intended by the parties.
Seller shall have the right to terminate any order, or to delay the shipment thereof, by reason of (a) Buyer’s bankruptcy or insolvency, or the pendency of any proceedings against Buyer under any statute for the relief of debtors; (b) Buyer’s breach of these Terms and Conditions; (c) Seller’s learning that the ultimate destination of the Products is other than that set forth in the Seller quote; or (d) failure of Buyer to meet any other reasonable requirements established by Seller or to provide timely responses to requests from Seller (including acts or omissions of Buyer which may delay production).
13.8 Governing Law – Jurisdiction and Venue
These Terms and Conditions shall be construed under and according to the laws of the State of California without regard to its conflict of law provisions. The parties agree that jurisdiction and venue for any actions relating to these Terms and Conditions will be in the state or federal courts located in the County of Alameda, State of California. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in County of Alameda, State of California, for the adjudication of any dispute hereunder or in connection herewith and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, or that such suit, action or proceeding is improper.
13.9 Attorney’s Fees
In the event of any action, suite or proceeding relating to the subject matter hereof, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorneys’ fees and related costs from the non-prevailing party.