Wavestream Corporation (“Seller”) and the person or entity identified on the invoice to which these terms and conditions of sale and warranties (these “terms and conditions”) are attached (“Buyer”) hereby agree to the following terms and conditions:
- ACCEPTANCE OF ORDERS/TERMS. All orders are subject to acceptance by Seller. Acceptance of orders is expressly made conditional on Buyer’s assent to these terms and conditions, and Seller agrees to furnish products and/or services (as applicable) only upon these terms and conditions. Buyer’s purchase order is solely for the purpose of providing product or service description, requesting delivery or service dates, delivery schedule, shipping destinations or service locations and instructions. Any changes to a purchase order shall be subject to the Seller’s prior approval and may result in change to the originally quoted price(s). Product specifications are subject to non-material changes by Seller without notice to Buyer. Any terms and conditions of Buyer’s purchase order or other documents or communications which are in any way in addition to or inconsistent with these terms and conditions shall not be binding and shall not apply, unless specifically agreed to in writing by Seller. These terms and conditions set forth the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes all other communications, representations, understandings, agreements and course of dealings. These terms and conditions shall be applicable whether or not they are attached to or enclosed with products purchased hereunder and whether or not these terms and conditions are executed for any particular product on any sale hereafter.
- TERMS OF PAYMENT. Seller reserves the right to review and change payment terms on an order by order basis for products or services. Payment in full for all orders not subject to special payment terms shall be made by Buyer to Seller within thirty (30) days after the products are delivered pursuant to these terms and conditions, or the services have been performed. The unpaid portion of any amount not paid within thirty (30) days shall bear interest at the rate of 1.5%, of the outstanding balance per calendar month or the maximum rate permitted by law, whichever is lower. Seller may at any time suspend performance of any order or require payment in cash, security or other adequate assurance satisfactory to Seller when, in Seller’s opinion, the financial condition of Buyer or other grounds for insecurity warrant such action. If shipments are delayed by Buyer, payments shall become due and payable on the date when Seller is prepared to make shipment.
- SECURITY INTEREST. Seller retains, and Buyer grants to Seller, a security interest in products purchased hereunder and in the proceeds from any sale, exchange, collection or disposition of Buyer thereof, until Buyer has made payment in full for such products and for any other obligations of Buyer under these terms and conditions. Buyer shall, upon request and without legal demand by Seller (a) provide all information required by Seller to perfect such security interest, and (b) executing any financing statements, continuation statements, or other documents as Seller requests to attach, perfect and/or enforce its security interest.
- PRICES AND TAXES. The price of the products and services purchased hereunder is exclusive of all taxes, duties, fees, excises, and/or other charges, which are now or may thereafter be imposed (whether by foreign, federal, state, municipal or other public authority), with respect to the sale, purchase, delivery, storage or use of such products or services. Buyer shall be solely and fully responsible for such taxes, duties, fees, excises, and/or other charges. If Seller is required to pay any such taxes, duties, fees, excises, and/or other charges, Buyer shall reimburse Seller immediately upon receipt of Seller’s invoice therefore. A request for exemption for such taxes, duties, fees, excises, and/or other charges must be accompanied by a properly executed exemption certificate prior to shipment.
- FORCE MAJEURE. Seller shall not be liable for any loss or damage hereunder due to unforeseen circumstances or causes beyond its reasonable control, including without limitation, strikes, lockouts, riots, wars, acts of terrorism, acts of God, fires, floods, earthquakes and other natural disasters, inability to obtain labor, delays caused by suppliers, subcontractors or other parties, material shortages, curtailment of or inability to obtain sufficient electrical or other energy supplies, licensing and/or exporting delays or compliance with governmental laws, regulations or orders. Any such circumstance or cause shall extend delivery dates to the extent of the delay incurred.
- SHIPMENT/RISK OF LOSS; TITLE. All prices/ shipments are EXW (Inco terms 2000) Seller’s facilities or other designated location. Risk of loss and title shall pass to Buyer upon delivery to the carrier. Buyer may select the manner of shipment and the carrier by providing Seller with written shipping instructions at the time of placing the order. In the absence of specific instructions, Seller reserves the right to make arrangements as necessary and Seller will ship by the method it deems most appropriate. Title to the products sold hereunder shall remain in Seller until Seller’s receipt of payment in full by the Buyer.
- EXPORT REQUIREMENTS. Buyer shall (i) comply fully with all relevant export and re-export laws, rules and regulations, including, without limitation, the U.S. Export Administration Regulations, and (ii) not export, or allow the export or re-export of, any products or any technology related to the products in violation of such laws, rules and regulations, or without all licenses and authorizations required by the applicable authorities.
- CANCELLATIONS. Orders cannot be canceled or modified by Buyer without the written consent of the Seller. In no event shall any order be modified or canceled if any portion thereof manufactured or in the process of manufacture at the time request for modification or cancellation is received by Seller, except upon terms satisfactory to Seller which shall protect and indemnify Seller against all loss.
- LIMITATION OF LIABILITY. Seller’s aggregate liability on any claim of any kind, or loss or damages arising out of, connected with, resulting from OR RELATING TO order(s) or the performance or breach hereof including but not limited to any default termination or from the manufacture, sale, delivery, repair, use or resale of any product(s) and/or service(s) covered by or furnished under these terms and conditions shall in no case exceed the payment, if any, received by Seller for the product(s), service(s)or part(s) which gives the claim or dispute the foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction. In NO EVENT SHALL SELLER BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES or for any services rendered.
- ASSIGNMENT. Buyer shall not assign these terms and conditions in whole or in part without the prior written consent of Seller which consent shall not be unreasonably withheld. Any attempt at assignment shall be void unless made in conformity with this paragraph.
- SUITABILITY. Before using any product purchased hereunder, Buyer shall determine the suitability of such product for Buyer’s intended use by considering such factors as overall product design and the processing and environmental conditions to which such product will be subjected. Buyer shall assume all risk and liability whatsoever resulting from the use of such product.
- WARRANTY. Seller warrants for a period of twenty-four (24) months (unless specified otherwise and included in the applicable purchase order or invoice) from the date a product is shipped to Seller (the “Warranty Period”), that such product (other than any field-replaceable fan assembly) all conform in all material respects to Seller’s applicable specifications for such product in effect as of the date of purchase (the “Limited Warranty”). If a product is returned to Seller, such product must first be marked or identified with a Return Material Authorization (“RMA”) number obtained from Seller. Such product must be returned to a receiving point designated by Seller, transportation changes prepaid, within thirty (30) days after failure. Seller shall have the right to reject products that are not marked with RMA numbers or are not received within the period set forth above. Notwithstanding the foregoing, return of products under this Limited Warranty that are found by the Seller to be free from defect, or to have been damaged by anyone other than the Seller, may be subject to an evaluation charge. As Seller’s sole responsibility and Buyer’s exclusive remedy in the event of any material nonconformity, Seller, at its solediscretion, shall repair, replace or give credit for the nonconformingproduct. Any product repaired or replaced under the Limited Warranty shall be warranted only for the remainder of the original product’s Warranty Period.
The Limited Warranty shall not cover and Seller is not responsible for any loss or damage caused by misuse, abuse, improper use, improper installation, maintenance that is not in accordance with any handling or operating instructions supplied by Seller, extensive physical or electrical stress, facility power loss, power surge, static discharge, lightening, fire, water, earthquake, theft, disappearance, misplacement, neglect, reckless, willful, or intentional conduct, service, handling, repair, modification or alteration (in each case, except by Seller), accident, or other cause not within the reasonable control of Seller, as well as for any minor imperfections in the product that meet design specifications and imperfections that do not materially alter functionality. Without limiting the generality of anything set forth herein, (i) the Limited Warranty shall not cover and Seller shall not be responsible for any damage or loss to a product caused by integration, incorporation or other combination of such product with other non-Seller products, parts or components, and/or (ii) repair, modification or alteration by Buyer, or at Buyer’s direction, unless specifically authorized by Seller, shall invalidate the Limited Warranty. OTHER THAN THE EXPRESS LIMITED WARRANTY SET FORTH ABOVE, To the FULLEST extent permitted by applicable law, SELLER HEREBY EXCLUDES ALL WARRANTIES, WHETHER EXPRESSED, STATUTORY OR IMPLIED BY OPERATION OF LAW, COURSE OF DEALING, TRADE USAGE, REPRESENTATION, STATEMENT OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. SELLER SHALL NOT UNDER ANY CIRCUMSTANCE BE LIABLE TO ANYONE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS. SELLER’S MAXIMUM LIABILITY FOR ANY REASON SHALL NOT EXCEED THE TOTAL PAYMENTS TO SELLER HEREUNDER FOR THE RELEVANT PRODUCTS. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THE BUYER HAS ACCEPTED THIS DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY AS PART OF A BARGAIN WITH RESPECT TO THE PRICING OF THE PRODUCTS AND SERVICES AND UNDERSTANDS THAT THE PRICING WOULD BE HIGHER IF SELLER WERE REQUIRED TO BEAR LIABILITY IN EXCESS OF THAT STATED HEREIN. Seller neither assumes nor authorizes any person or entity to assume for Seller any other additional liability, obligation or responsibility in connection with the products or services purchased hereunder, including any affirmation, representation, or warranty concerning such products or services made by an agent, employee, or representative of Seller, unless the affirmation, representation, or warranty is specifically included with these terms and conditions. Buyer accepts all of the products and services purchased hereunder subject to the terms herein.
- INDEMNITY. Buyer shall defend, indemnify and hold harmless Seller, its officers, directors, agents, employees, successors, assigns and customers from, and release and not make claim or suit against Seller from any and all suits, claims, losses or other liabilities and expenses, including legal fees or judgments, resulting from any claim made or action brought as a result of an actual or alleged infringement, misappropriation or other misuse of any patent, copyright, trademark, or other intellectual property or proprietary right when the claim or action arises out of products manufactured to specifications provided by Buyer, or where such infringement, misappropriation or other misuse arises out of Buyer’s use, possession, sale, or delivery of the products sold hereunder or incorporation of such products into any non-Seller product.
- ROPRIETARY INFORMATION. Buyer shall not disclose Seller’s confidential business or technical information to any third party, nor to use such information for its own benefit. Buyer shall have the right to use such confidential business or technical information solely for the purpose of operation and maintenance of the products purchased hereunder. As used herein, confidential business or technical information includes, without limitation, the following Seller’s data and information: trade secrets; the identity of or other pertinent information with respect to actual or potential customers or customer contacts; research and development activities; technical, proprietary and know-how information; drawings, designs and specifications; plans for new products; methods, practices, procedures, processes and formulas with respect to manufacture, assembly, design, or processing; sources of supply for products, components, and services. Buyer shall defend, indemnify and hold harmless Seller from any loss, liability or expense suffered by Seller as a result of Buyer’s disclosure to third party or use of such confidential business or technical information for any purpose other than expressly set forth herein.
- APPLICABLE LAW. These terms and conditions and the performance hereunder shall be governed, construed and enforced in accordance with the laws of the State of California, United States of America, without regard to its conflict of law principles.
- ARBITRATION. Any controversy or claim arising out of related to these terms and conditions that is brought by Buyer against Seller shall be resolved by arbitration in the City of Los Angeles, State of California in accordance with the commercial rules of the Commercial Arbitration Rules of the American Arbitration Association by arbitrator appointed in accordance with those rules. The determination by arbitrator shall be final in binding and shall be enforceable in any court of competent jurisdiction. Whenever Buyer decides to institute arbitration proceedings against Seller, Buyer shall give written notice to that effect to Seller. The method and manner of discovery in any such arbitration proceedings shall be governed by California Code of Civil Procedure § 1282 et seq. (including without limitation California Code of Civil Procedure § 1283.05).
- MISCELLANEOUS. These terms and conditions may be amended or supplemented only by a writing that refers explicitly to these terms and conditions and that is signed by the authorized representatives of both parties. No waiver, alteration or modification of any of the provisions hereof shall be binding on Seller unless made in writing and duly authorized and executed by Seller. A waiver or modification by Seller of any condition or obligation of Buyer hereunder shall not be construed as a waiver or modification of any other condition or obligation and no waiver or modification by Seller granted on any one occasion shall be construed as applying to any other occasion. If any of the provisions in these terms and conditions are held to be in violation of applicable law or applicable court decision, then such provisions are hereby waived or amended to the extent necessary to achieve the same economic effect for these terms and conditions to be enforceable in such jurisdiction and the rest of these terms and conditions shall remain in full force and effect. All notices, reports, requests, approvals and other communications required or permitted hereunder must be in writing, sent to the receiving party’s address as specified by the receiving party and shall be deemed delivered upon receipt.
- AWARENESS. The Supplier shall ensure that supplier employees are aware of their contribution to product or service conformity, their contribution to product safety and the importance of ethical behavior.