THESE TERMS AND CONDITIONS GOVERN THE SALE OF ALL PRODUCTS AND SERVICES (“PRODUCTS”) BY SERRO LLC, (“SELLER”) AND APPLY NOTWITHSTANDING ANY CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS IN ANY PURCHASE ORDER OR OTHER DOCUMENT OR COMMUNICATION (“PURCHASE ORDER”) FROM CUSTOMER. THESE TERMS AND CONDITIONS MAY ONLY BE WAIVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. NEITHER SELLER’S ACKNOWLEDGMENT OF A PURCHASE ORDER NOR SELLER’S FAILURE TO OBJECT TO CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS IN A PURCHASE ORDER SHALL BE DEEMED AN ACCEPTANCE OF SUCH TERMS AND CONDITIONS OR A WAIVER OF THE PROVISIONS HEREOF.
1. ORDERS. Orders shall be initiated by Customer issuing a Purchase Order or otherwise placing an order by electronic means acceptable to Seller. Orders shall identify the Products, unit quantities, part numbers, descriptions, applicable prices and requested delivery dates. All orders are subject to acceptance by Seller. No orders for standard Products (“Standard Products”) may be cancelled or rescheduled without Seller’s consent, which consent will not be unreasonably withheld, conditioned or delayed. Seller reserves the right to allocate sales of Products among its customers in its sole discretion. Notwithstanding any provision of these Terms and Conditions to the contrary, orders for special, custom, value-added and other non-standard Products, including Products to be assembled in kit form, Products of manufacturers which do not appear on Seller’s line card, work-in-process and Products otherwise identified by Seller as “NCNR” or “Non-Cancelable and Non-Returnable” (“Non- Standard Products”) shall be non-cancelable and non-returnable.
2. PRICES. Prices shall be as specified by Seller and shall be applicable for the period specified in Seller’s quote. If no period is specified, prices shall be applicable for seven (7) days. Notwithstanding the foregoing, prices shall be subject to increase in the event of an increase in Seller’s costs or other circumstances beyond Seller’s reasonable control. Prices are exclusive of taxes, impositions and other charges, including: sales, use, excise, value added and similar taxes or charges imposed by any government authority, international shipping charges, forwarding agent’s and broker’s fees, consular fees, document fees and import duties. If Seller shall be liable for or shall pay any of the foregoing, same shall be paid by Customer to Seller in addition to the price of the Products.
3. TERMS OF PAYMENT. Sellers accepts money orders, cashier’s checks, and, in its sole discretion, major credit cards, personal checks and company checks. The full purchase price, including freight and taxes, is due at the time when goods are ordered, unless Seller, in its sole discretion, approves Customer’s creditworthiness, in which case full payment shall be due within thirty (30) days from date of shipment or as otherwise specified by Seller. Customer agrees to pay the entire net amount of each invoice from Seller pursuant to the terms of each such invoice without offset or deduction. Orders are subject to credit approval by Seller, which may in its sole discretion at any time change the terms of Customer’s credit, require payment in cash, bank wire transfer or by official bank check and/or require payment of any or all amounts due or to become due for Customer’s order before shipment of any or all of the Products. If Seller believes in good faith that Customer’s ability to make payments may be impaired or if Customer shall fail to pay any invoice when due, Seller may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Customer shall remain liable to pay for any Products already shipped and all Non-Standard Products ordered by Customer. Customer agrees to submit such financial information from time to time as may be reasonably requested by Seller for the establishment and/or continuation of credit terms. Checks are accepted subject to collection and the date of collection shall be deemed the date of payment. Any check received from Customer may be applied by Seller against any obligation owing from Customer to Seller, regardless of any statement appearing on or referring to such check, without discharging Customer’s liability for any additional amounts owing from Customer to Seller, and the acceptance by Seller of such check shall not constitute a waiver of Seller’s right to pursue the collection of any remaining balance. Customer shall pay interest on any invoice not paid when due from the due date to the date of payment at the rate of one and one-half (1-1/2%) percent per month or such lower rate as may be the maximum allowable by law. If Customer fails to make payment when due, Seller may pursue any legal or equitable remedies, in which event Seller shall be entitled to reimbursement for costs of collection and reasonable attorneys fees.
4. DELIVERY AND TITLE. All shipments by Seller are F.O.B. point of origin and all transportation charges shall be paid by Customer in addition to the price of the Products. Subject to Seller’s right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Customer and title and risk of loss shall thereupon pass to Customer. Selection of the carrier and delivery route shall be made by Seller unless specified by Customer. Seller shall use reasonable efforts to initiate shipment and schedule delivery as close as possible to Customer’s requested delivery dates. Customer acknowledges that delivery dates provided by Seller are estimates only and that Seller is not liable for failure to deliver on such dates. Seller reserves the right to make deliveries in installments. Delivery of a quantity which varies from the quantity specified shall not relieve Customer of the obligation to accept delivery and pay for the Products delivered. Delay in delivery of one installment shall not entitle Customer to cancel other installments.
5. ACCEPTANCE OF PRODUCT. All goods sold by Seller shall be deemed accepted by Customer at the time of shipment. If Customer notifies Seller, in writing within 10 days of receipt of goods, and Seller confirms, in its sole discretion, that goods received by Customer are damaged, defective or cannot be made operational at the time of delivery, and if Customer complies with the procedures governing return of the goods set forth in these Terms and Conditions, Seller shall credit Customer’s account for the purchase price of the goods upon return of the goods to the Seller.
6. PRODUCT RETURNS. Software products cannot be returned. To return unopened products other than software, Customer must request a Return Merchandise Authorization (“RMA”) Number, which may be issued by Seller in its sole discretion, which will not be unreasonably withheld. All products to be returned must be unopened, leaving the manufacturer’s external seal intact. If a product has been opened, Seller will have no obligation to accept the return of such product. Returned Products must be in original manufacturer’s shipping cartons complete with all packing materials. All Products for return shall be returned freight prepaid in the manner specified in the RMA. If returned Products are claimed to be defective, a complete description of the nature of the defect must be included with the returned Products. Products not eligible for return shall be returned to Customer, freight collect. If Customer receives shipment of goods over the quantity ordered in the Sales Contract, or an incorrect product, Customer shall notify Seller and return such goods with manufacturer’s external seal intact within five days of Customer’s receipt thereof; otherwise Customer will be responsible for the purchase price of such goods. If the goods purchased by Customer constitute an upgrade, Customer shall return the original part or product in accordance with the manufacturer’s requirements for return of the same. If Customer shall fail to return the original part within thirty days of the date that the upgrade should have been shipped, then Customer shall not receive a credit for the original part and shall pay the full purchase price for the upgrade. Customer is responsible for freight on all returns and must be able to demonstrate proof of delivery.
7. FORCE MAJEURE. Seller will make every effort to complete shipment of the goods described herein, but in no event shall Seller be liable for failure to fulfill its obligations herein or for delays in delivery due to causes beyond its reasonable control, including, but not limited to, acts of God, natural disasters, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, riots, war, acts of terrorism, delays in transportation or inability to obtain labor or materials through its regular sources. Seller’s time for performance of any such obligation shall be extended for the time period of such delay or Seller may, at its option, cancel any order or remaining part thereof without liability by giving notice of such cancellation to Customer.
8. WARRANTIES. In the case of all goods sold hereunder, the only applicable warranties will be provided by the manufacturers of such goods. Seller shall assign to Customer an warranty delivered to it by the manufacturer of such product and such warranty shall expressly be in lieu of any other warranty by Seller. Seller makes no other warranty, express or implied, with respect to the Products. IN PARTICULAR, SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR RESPECTING INFRINGEMENT.
9. LIMITATION OF LIABILITIES. OTHER THAN IN ANY INSTANCE OF SELLER’S MISCONDUCT OR GROSS NEGLIGENCE CUSTOMER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OTHER THAN IN ANY INSTANCE OF SELLER’S MISCONDUCT OR GROSS NEGLIGENCE,CUSTOMER’S CUSTOMER’S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED CUSTOMER’S PURCHASE PRICE FOR THE PRODUCT GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. SELLER SHALL NOT BE LIABLE FOR AND CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON SELLER’S COMPLIANCE WITH CUSTOMER’S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN SELLER, OR USE IN COMBINATION WITH OTHER PRODUCTS.
10. USE OF PRODUCTS IN LIFE SUPPORT, NUCLEAR AND CERTAIN OTHER APPLICATIONS. Products sold by Seller are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Customer uses or sells the Products for use in any such applications: (1) Customer acknowledges that such use or sale is at Customer’s sole risk; (2) Customer agrees that Seller and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Customer agrees to indemnify, defend and hold Seller and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
11. EXPORT CONTROL. The sale, resale or other disposition of Products and any related technology or documentation are subject to the export control laws, regulations and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries. Customer agrees to comply with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. Customer acknowledges its responsibility to obtain any license to export, re-export or import as may be required.
12. FEDERAL CONTRACTS. For products acquired pursuant to Federal Acquisition Regulations, the following shall be construed to be incorporated herein: (1) Equal Opportunity (E.O. 11246); (2) Affirmative Action for Special Disabled and Viet Nam era Veterans (38 U.S.C. 2012(a)); and (3) Affirmative Action for Handicapped Workers (29 U.S.C. 793). No other Federal Acquisition Regulations shall be construed to apply to Seller without Seller’s written agreement thereto.
13. STATEMENTS AND ADVICE. If statements or advice, technical or otherwise, are offered or given to Customer, such statements or advice shall be deemed to be given as an accommodation to Customer and without charge and Seller shall have no responsibility or liability for the content or use of such statements or advice.
14. INTELLECTUAL PROPERTY. If an order includes software or other intellectual property, such software or other intellectual property is provided by Seller to Customer subject to the copyright and user license, the terms and conditions of which are set forth in the license agreement accompanying such software or other intellectual property. Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement.
15. GENERAL. As used herein, terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular. No rights, duties, agreements or obligations hereunder may be assigned or transferred by either party, by operation of law, merger or otherwise, without the prior written consent of the other. Any attempted or purported assignment shall be void. Notwithstanding the foregoing, Seller’s obligations under these Terms and Conditions may be performed by divisions, subsidiaries or affiliates of Seller. The obligations, rights, terms and conditions hereof shall be binding on the parties hereto and their respective successors and assigns. The waiver of any provision hereof or of any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California excluding any law or principle which would apply the law of any other jurisdiction. The United Nations Convention for the International Sale of Goods shall not apply.