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All quotations and proposals covering Seller’s products are made and all contracts or purchase orders for said products are accepted under the strict limitation that the terms and conditions set forth herein shall be applicable thereto. Any provisions on Buyer’s purchase order or other documents issued by Buyer which are at variance with or in addition to these terms and conditions are rejected hereby. All contracts and orders are subject to approval and acceptance in writing by operating divisions of Custom Sensors & Technologies, Inc.
Prices are net and are not subject to trade or other discounts except those which may be authorized on the face of Seller’s invoice, and do not include any federal, state, county, local or other taxes, however designated, or costs of special packaging and insurance. Said charges, when applicable, shall be paid by Buyer. However, Buyer may provide Seller with an appropriate tax exemption certificate acceptable to the taxing authorities. Seller shall be entitled to retroactive recovery of any unearned discounts which may have been granted to buyer. Unless requested by Buyer, Seller shall have no obligation to obtain insurance for Buyer. Notwithstanding the prior sentence, Seller reserves the right at its own discretion, unless otherwise requested by Buyer in writing, to obtain insurance for Buyer on a “prepay and add” basis. Seller may obtain insurance at Buyer’s expense for any C.O.D. shipments.
Prices are subject to equitable adjustment at any time before delivery should economic factors beyond Seller’s reasonable control, such as supplier prices and deliveries or government actions, necessitate such action.
Payment for products and all other charges shall be made in full within thirty (30) days of the date of invoice, unless otherwise specified. If, in the judgment of the Seller, the financial condition of Buyer at any time does not justify shipment on the terms of payment originally specified, Seller may require full or partial payment in advance or may ship C.O.D. In the event of the Bankruptcy or insolvency of the Buyer, whether or not under the Federal bankruptcy laws, the Seller may, at its option, refuse delivery except for cash (including payment for all goods thereto delivered), stop delivery of goods in transit, reclaim the goods upon demand, or cancel or resell any order then outstanding and be entitled to reimbursement for all cancellation or resale charges.
The invoiced amount shall not be subject to set-offs for any claims by Buyer against Seller, including any claims for products returned by Buyer for repair or correction of defects. Seller reserves the right to make delivery in installments which shall be separately invoiced and paid for when due without regard to subsequent deliveries. If the invoiced amount or any part thereof is not paid by Buyer when due, Seller hereby reserves the right to assess interest charges at eighteen percent (18%) per annum on such amounts from the date due until paid, and BUYER agrees to pay such interest charges and all collection and legal fees.
If shipments are delayed by Buyer, payments shall become due on the date Seller prepared to make shipment. Products held for Buyer shall be at the expense of Buyer .
4. FAIR LABOR STANDARDS ACT
Seller certifies that products furnished hereunder have been or will be produced in compliance with applicable requirements of the Fair Labor Standards Act, as amended, and regulations and orders of United States Department of Labor issued thereunder .
Seller’s Warranty is set forth in the Warranty applicable to the product sold. Said Warranty is attached hereto or made available to Buyer upon request. Buyer’s sole and exclusive remedy with respect to the Warranty given by Seller shall be strictly limited, at Seller’s sole election, to the remedy or remedies provided for in the product Warranty.
THERE ARE NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (INCLUDING THE WARRANTIES OF MERCHANT-ABILITY AND FITNESS FOR A PARTICULAR PURPOSE) THAT EXTEND BEYOND THE DESCRIPTION ON THE FACE OF THE WARRANTY OR CONTRACT INCORPORATING THESE TERMS AND CONDITIONS
Seller will not incur any liability for any delay in delivery for any reason other than an arbitrary refusal of Seller to perform. Delivery dates furnished by Seller represent the best estimates of the time required to make shipment. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries.
Seller shall not be liable for any incidental, special or consequential damages of any nature whatsoever, or for any delay or loss of use (including, without limitation, lost revenues or lost profits) arising out of, resulting from, or in any way related to the sale of any products by Seller.
8. PROPRIETARY INFORMATION
Buyer agrees that any data, such as Seller’s specifications, drawings, software and information (including, without limitation, designs, reports, software documentation, manuals, models, process information and the like), revealed by Seller to Buyer and containing proprietary information marked or identified as proprietary, shall be kept in confidence by Buyer with at least the same care and safeguards as are applied to Buyer’s own proprietary information. Such data shall not be duplicated, disclosed to others, or used without the written permission of Seller. These obligations shall not apply to any information which is in or comes into the public domain without violation of this agreement, or is received lawfully by Buyer from a third party subsequent to this agreement or is developed by Buyer independently and without benefit of information received from Seller. The restrictions and obligations relating to Seller’s proprietary information shall expire seven (7) years after the execution of the contract incorporating these terms and conditions, unless otherwise agreed to in writing.
9. DATA RIGHTS
Seller reserves and retains all right, title, and interest in any and all intellectual property and tooling which it develops relating to the products provided pursuant to this document, including; without limitation: data, inventions, know-how, trade secrets, and copyrightable works. Nothing in this document shall be construed as granting any rights relating to the products provided pursuant to this document, except for the rights of use and resale of the products.
10. PATENT INDEMNITY
In lieu of any other warranty by Buyer or Seller against patent infringement, statutory or otherwise, it is agreed that Seller shall defend at its expense any suit against Buyer or its customers based on an allegation that the products per se furnished by Seller infringe any United States Letters Patent, and shall pay damages finally awarded in any such suit, provided that Seller is notified in writing of the suit and given authority, information and assistance at Seller’s expense for the defense or settlement of same. If the use of said products is enjoined in such suit, Seller shall, at its option, procure either for Buyer or its customers the right to use said products, or substitute and equivalent product acceptable to Buyer, and extend this patent indemnity thereto; or modify same to render them infringe; or refund the purchase price paid by Buyer.
In no event shall Seller’s total liability to Buyer under the foregoing indemnity exceed the purchase price of the alleged infringement product .
Buyer shall hold Seller harmless under the same terms and conditions applicable to Seller above against any expense or loss resulting from infringement of patents or trademarks arising from compliance with Buyer’s designs or instructions.
The sale of products by Seller does not convey any license, by implication, estoppel, or otherwise under patent claims covering combinations of said products with other devices or elements.
This clause is deleted in all instances where the Buyer has Authorization and Consent in its higher tier contract .
11. PACKAGING AND SHIPMENT
Seller’s products will be packaged in accordance with standard commercial practices for domestic shipment. Shipping charges will be paid by Buyer. In the absence of specific written instructions, Seller will select the carrier. When applicable, Buyer shall obtain ocean freight space and marine insurance. Unless requested by Buyer, Seller shall have no obligation to obtain insurance for Buyer.
12. DELIVERY, TITLE, AND RISK OF LOSS
Unless otherwise provided for in advance, all shipments will be made F.O.B. Seller’s Factory, and upon Seller’s delivery of a shipment to the carrier, Buyer shall assume the risk of any loss or damage to the shipment thereafter. However, all C.O.D. shipments will be made F.O.B. destination, and title and risk of loss shall remain in Seller until delivery to Buyer.
13. GOVERNING LAW
The terms and conditions stated herein shall be governed by and construed in accordance with the laws of the State of California.
14. COMPLETE AGREEMENT
The contract incorporating the terms and conditions set forth herein is a complete, final and exclusive statement of the agreement between Buyer and Seller. Any prior to contemporaneous agreements, understandings and representations, whether oral or written, are merged herein. The terms and conditions stated herein shall not be varied, supplemented, qualified, or interpreted by any prior course of dealings between the parties or by custom or usage of trade. No modifications or additions to said contract shall be binding upon Seller unless in writing and signed by an authorized representative of Seller.
Seller’s election not to enforce any provisions hereof shall not be deemed a waiver of any such provision and Seller reserves the right to enforce said provisions thereafter.
Waiver by Seller of a breach of any of these terms and conditions shall not be construed as a waiver of any other breach.