TO ALL MY CLIENTS PLEASE MUST READ
TERMS AND CONDITIONS
OFFER, CONFIRMATION, OR AGREEMENT
Upon signing the quote, proposal, and contracts the signatory or signatories will become the purchaser of the product and receiver of service(s) is/are assuming all liabilities. Thus, constate a legally binding document(s). The Seller has the right to amend, change, and modify the Term and Condition as it sees fit and without prior notifications.
Seller’s Offers are open for acceptance within the period stated by Seller in the Offer or, when no period is stated, within thirty (30) days from the date of the Offer, but any Offer may be withdrawn or revoked by Seller at any time before the receipt by Seller of Buyer's acceptance related thereto. If Seller receives an order from Buyer for the sale by Seller and purchase by Buyer of Products and such order is not a response to an Offer by Seller, or if Seller receives an order or acceptance by Buyer which deviates from Seller's Offer, such order or acceptance, respectively, shall be deemed to be a request for an Offer only. An acceptance by the Buyer of any Offer made by an order gatherer, liaison officer, agent, or sales representative for the Seller shall constitute an Agreement between Seller and Buyer upon explicit Confirmation by the Seller itself.
PRODUCTS, QUANTITIES, AND PRICING
There will be no return or exchange of the product unless the product(s) is/are defective or damaged.
Prices in any Offer, Confirmation, or Agreement are in USD and do not include any taxes, duties, or similar levies, now or hereafter enacted, applicable to the Products. Seller will add taxes, duties, and similar levies to the sales price where Seller is required by law to pay or collect them and will be paid by Buyer together with the price. Regarding Custom Products Seller may deliver a quantity that is a maximum amount of ten percent (10%) more or less than the ordered quantity of any order line item. Such delivered quantity will be accepted and paid for (against an amount being the delivered quantity times the unit price) in satisfaction of each party's obligation under the Agreement for the quantity ordered.
PAYMENT
All payments must be paid in full and good faith; otherwise, legal action will be taken, and all liabilities and legal expenses will be paid by the buyer(s) or the signatory of the documents. a. Unless agreed otherwise between Seller and Buyer in writing, Seller may invoice Buyer for the price of the Products and services. Net payment is due within thirty (30) days of the date of invoice unless agreed otherwise between Seller and Buyer in writing. All payments shall be made to the designated Seller's address. If deliveries or services are made in installments, each installment may be separately invoiced and shall be paid for when due. No discount is allowed for advance payment unless agreed to in writing by the Seller. Interest will accrue on all late payments, at the rate of eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is lower, from the due date until payment in full.
b. All deliveries or services agreed to by Seller shall always be subject to credit approval of Seller. If in Seller's judgment, Buyer's financial condition at any time does not justify production, the performance of work, or delivery of services on the above payment terms, Seller may require full or partial payment in advance or other payment terms as a condition for delivery, and Seller may suspend, delay, or cancel any credit, delivery or any other performance by Seller. c. Payment by Buyer of non-recurring charges (as may be made to Seller for special design, engineering work, or production materials) shall not convey title to any design, engineering work, or production materials, and title shall remain in Seller. d. If Seller incurs exchange rate losses due to Buyer's failure to pay when payments are due, Seller shall be entitled to equivalent compensation from Buyer for such losses. f. In the event of any default by Buyer in the payment of any fees or charges due, or any other default by Buyer, Seller shall have the right to refuse the performance of any work and delivery of any Products until payments are brought current and Seller may suspend, delay, or cancel any credit, delivery, or any other performance by Seller. Such right shall be in addition to, and not instead of, any other rights and remedies available under these Terms and Conditions or at law or in equity.
DELIVERY AND QUANTITIES
Buyer will give Seller written notice of failure to deliver and thirty (30) days within which to cure. If Seller does not cure within thirty (30) days, Buyer's sole and exclusive remedy is to cancel the affected and undelivered portions of the Agreement.
In the event of shortages, Seller may allocate its available production and Products, in its sole discretion, among its customers, and as a result may sell and deliver to Buyer fewer Products than specified in Seller’s Offer, Confirmation, or Agreement, as the case may be.
RESCHEDULING AND CANCELLATION
Any part thereof may be rescheduled or canceled without the Seller’s prior written consent.
FORCE MAJEURE
Seller shall not be liable for any failure or delay in performance if such failure or delay results from the fact that the Sellers of the Products concerned is due to interruptions in the manufacturing process; or such failure or delay does not result from its fault; or such failure or delay is caused by Force Majeure as defined below or by law. In case of such a non-attributable failure, the performance of the relevant part(s) of the Agreement will be suspended for the period such non-attributable failure continues, without Seller being responsible or liable to Buyer for any damage resulting therefrom. The expression “Force Majeure” shall mean and include any circumstances or occurrences beyond Seller’s reasonable control (whether or not foreseeable at the time of the Offer, Confirmation, or Agreement) as a result of which Seller cannot reasonably be required to execute its obligations. Such circumstances or occurrences include but are not restricted to: acts of God, war, civil war, terrorism, insurrections, strikes, fires, floods, earthquakes, labor disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, non-availability of any permits, licenses and/or authorizations required, defaults or delays of suppliers or subcontractors and/or inability or impracticability to secure transportation, facilities, fuel, energy, labor, materials or components. In the event that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by Seller to extend for a period of three (3) consecutive months), Seller shall be entitled to cancel all or any part of the Agreement without any liability of Seller towards Buyer. In the event Seller’s production is curtailed, for any reason, Seller shall have the right to allocate its available production and Products, in its sole discretion, among its various customers, and as a result may sell and deliver to Buyer fewer Products than specified in Seller’s Offer, Confirmation or Agreement, as the case may be.
LIMITED WARRANTY AND DISCLAIMER
Seller warrants that under normal use the Products (excluding any Excluded Products shall, at the time of delivery to Buyer and for twelve (12) months thereafter (or such other period as may be agreed upon in writing by the parties), be free from defects in material or workmanship and shall substantially conform to Seller’s specifications for such Products, or such other specifications as Seller has agreed to in writing, as applicable. Seller’s sole and exclusive obligation, and Buyer's sole and exclusive right, concerning claims under this warranty shall be limited, at Seller’s option, either to (a) the replacement or repair of a defective or non-conforming Product, or (b) an appropriate credit for the purchase price thereof. Seller will have a reasonable time to repair, replace, or credit. The non-conforming or defective Products shall become Seller’s property as soon as they have been replaced or credited for.
Notwithstanding the foregoing, Seller shall have no obligations for breach of warranty if the alleged defect or non-conformance is found to have occurred as a result of environmental or stress testing, misuse, neglect, improper installation, accident, improper repair, alteration, modification, improper storage, improper transportation or improper handling of the Products, after the risk of loss in the Products has passed to Buyer. Buyer may ship Products returned under warranty claims to Seller’s designated facility only so long as the returns are in conformance with Seller’s then-current return material authorization policy and are accompanied by a duly completed return material authorization form issued by Seller. Where warranty adjustment is made, Buyer shall pay for returned Products that are not found to be defective or non-conforming together with the freight, testing, and handling costs associated therewith. Subject to the exclusions and limitations outlined in Section 11 of these Terms and Conditions, the foregoing states the entire liability of Seller in connection with defective or non-conforming Products supplied hereunder.
CONFIDENTIALITY
Except for non-confidential documentation provided to Buyer for distribution with a corresponding Product, Buyer acknowledges that all technical, commercial, and financial information (including without limitation any source code) disclosed to Buyer by Seller is the confidential information of Seller. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transactions contemplated herein.
COMPLIANCE WITH LAWS
Each party hereto represents that it is duly authorized to enter into these Terms and Conditions and represents that with respect to its performance hereunder, it will comply with all applicable federal, state, and local laws, including, but not limited to those pertaining to U.S. Export Administration or the export or import controls or restrictions of other applicable jurisdictions. If the delivery of Products under these Terms and Conditions is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, Seller may suspend its obligations and Buyer's rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and Seller may even terminate any Agreement related to such Products, without incurring any liability towards Buyer. Furthermore, if an end-user statement is required, Seller shall inform Buyer immediately thereof and Buyer shall provide Seller with such document upon Seller’s first written request; if an import license is required, Buyer shall inform Seller immediately thereof and Buyer shall provide Seller with such document as soon as it is available.
By accepting Seller’s Offer, entering into any Agreement, and/or accepting any Products, Buyer agrees that it will not deal with the Products and/or documentation related thereto in violation of any applicable export or import control laws and regulations.
ASSIGNMENT AND SETOFF
Buyer shall not assign any rights or obligations under these Terms and Conditions or any Agreement without the prior written consent of Seller. Buyer hereby waives all rights to offset existing and future claims against any payments due for Products sold under these Terms and Conditions or under any other agreement that Buyer and Seller may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf. Seller is allowed to assign any rights or obligations under these Terms and Conditions and any Agreement to its affiliates or to any third party in connection with a merger or a change of control.
GOVERNING LAW AND FORUM
These Terms and Conditions, and all Offers, Confirmations, and Agreements are governed by and construed in accordance with the laws of the USA. All disputes arising out of or in connection with these Terms and Conditions, or any Offer, Confirmation, or Agreement, shall first be attempted by Buyer and Seller to be settled through consultation and negotiation in good faith and a spirit of mutual understanding. All disputes that are not so settled within a period of thirty (30) days from the date the relevant party notified the other party to that effect, shall be submitted to the courts of the USA, the USA, provided that Seller shall always be permitted to bring any action or proceedings against Buyer in any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions, or any Offer, Confirmation, or Agreement. Nothing in this Section 15 shall be construed or interpreted as a limitation on either Seller’s or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.
BREACH AND TERMINATION
Without prejudice to any rights or remedies Seller may have under these Terms and Conditions or the Agreement or at law, Seller may, by written notice to Buyer, terminate with immediate effect any Agreement, or any part thereof, without any liability whatsoever, if:
Buyer fails to make payment for any Products to Seller when due. Buyer fails to accept conforming Products supplied hereunder.
any proceedings in insolvency, bankruptcy (including reorganization) liquidation, or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer; or Buyer violates or breaches any of the provisions of these Terms and Conditions and/or the Agreement.
Upon the occurrence of any of the events referred to under 16(a) through 16(d) above, all payments to be made by Buyer under the Agreement shall become immediately due and payable. In the event of cancellation, termination, or expiration of any Agreement the terms and conditions destined to survive such cancellation, termination, or expiration (which shall include without limitation all defined terms and Sections 4, 8 through 16, and 19 through 24 of these Terms and Conditions) shall survive.
RIGHTS IN DOCUMENTATION AND INTELLECTUAL PROPERTY
Seller shall retain title to and possess all designs, masks, database tapes, and source code of the Products. Individual segments or parts of Product designs, including but not limited to standard libraries, are the property of the Seller and may be used by the Seller in other designs and may not be used by Buyer except as a part of Products designed and manufactured by the Seller. under any intellectual property rights to any combination, machine, or process in which Products might be used, or to any modifications of Products, or documentation. concerning any trademark, trade or brand name, corporate name, or any other name or mark, contraction, abbreviation, or simulation thereof. under any intellectual property rights covering an industry standard set by a standard-setting body or agreed to between at least two companies.
INTELLECTUAL PROPERTY RIGHTS INDEMNITY
Seller, shall: (i) defend against a claim in a legal proceeding brought by a third party against Seller.
PRODUCT AND PRODUCTION CHANGES
Seller reserves the right to make at any time Product and/or production changes. In such event, Seller represents that said changes shall not negatively affect the form, fit, or function of the Products and their performance characteristics.
DISCONTINUATION OF PRODUCT
Seller reserves the right to discontinue manufacturing and sale of Products at any time. If however at any time during the term of an Agreement under which Seller sells and Buyer purchases Products on a regular basis, such regularly sold and purchased Products are to be permanently discontinued (“Discontinued Product”), Seller shall use its reasonable commercial efforts to give Buyer prior written notice of such discontinuance and shall use reasonable commercial efforts to accept last-time-buy orders for such Discontinued Product all in accordance with Seller’s product discontinuation process and general information related thereto as published on Seller’s website.
SEVERABILITY
If any provision(s) of the Agreement or these Terms and Conditions 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 thereof.
WAIVER
The failure on the part of either party to exercise, or any delay in exercising, any right or remedy arising from any Offer, Confirmation or Agreement, or these Terms and Conditions, shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising therefrom preclude any other or future exercise thereof or the exercise of any other right or remedy arising from any Offer, Confirmation or Agreement, or these Terms and Conditions or by law.
NOTICES
All notices and communications to be given under these Terms and Conditions shall be in writing and shall be deemed delivered upon hand delivery, confirmed facsimile communication, or three (3) days after deposit in the mail of the home country of the party, postage prepaid, by certified, registered, first class or equivalent mail, addressed to the parties at their addresses set forth on the Offer, Confirmations and/or Agreement.
ATTORNEYS' FEES
Should a dispute arise from the subject matter of any Offer, Confirmation, or Agreement, or these Terms and Conditions, the prevailing party in any resulting litigation shall be reimbursed by the other party for any and all reasonable attorneys' fees and expenses incurred.
RELATIONSHIP OF PARTIES
The parties hereto intend to establish a relationship of buyer and seller and as such are independent contractors with neither party having authority as an agent or legal representative of the other to create any obligation, express or implied, on behalf of the other.
MODIFICATIONS AND CHANGES
Seller reserves the right to make any amendments or modifications to these Terms and Conditions at any time. Such amendments and modifications shall have an effect (1) on all Offers, Confirmations, and Agreements referring to such amended or modified Terms and Conditions as from the date of such Offer, Confirmation, or Agreement, and (2) on any existing Agreement thirty (30) days from notification of such amendments or modifications by Seller to Buyer unless Buyer has notified Seller within such thirty (30) days period that it objects thereto.
DEFINITIONS
In this Agreement the terms defined hereunder shall have the following meaning:
‘Seller means the person or company who is providing the services
'Buyer means the person who is receiving the product or services