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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 Seller at its California office.
In the event Federal, State or local excise, sales, use, or property taxes are assessed on the items ordered, because of Buyer’s failure to place said items into foreign commerce immediately upon delivery by Seller, the prices of said items shall be increased accordingly.
Unless otherwise provided on the Order Acknowledgement form, payment shall be made to Seller at Carlsbad, California, U.S.A. in U.S. currency, secured by a confirmed irrevocable letter of credit, opened through (Bank) ______________________________, (branch & A/N) _______________________________, with terms acceptable to Seller.
4. EXPORT DOCUMENTS
All orders will be subject to the issuance of appropriate export licenses and any other required permission for the purpose of exporting or importing the items. Both parties agree to exert prompt and diligent efforts within their respective powers to commence and successfully conclude the steps required to obtain such licenses and permission.
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 THAT EXTEND BEYOND THE DESCRIPTION ON THE FACE OF THE WARRANTY OR CONTRACT INCORPORATING THESE TERMS AND CONDITIONS
6. EXPORT DOCUMENTS
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.
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 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
Seller makes no representation that items ordered are free from infringement of any patents other than those owned by Seller, or those under which Seller is licensed, and buyer assumes all risk and liability with regard to such infringement.
11. PACKAGING AND SHIPMENT
Seller’s products will be packaged in accordance with standard commercial practices for international 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. Upon Seller’s delivery of a shipment to the carrier, title and risk of loss shall pass to Buyer. Buyer shall assume the risk of any loss or damage to the shipment thereafter.
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.
Any legal action or proceeding brought by either party against the other, which arises out of or results from, or in any way relates to the sale of any products by Seller, must be brought in the courts of the State of California or in any U.S. District Court located within the State of California.
The contract incorporating the terms set forth herein is a complete, final and exclusive statement of the agreement between Buyer and Seller. Any prior or 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.