ALLIED CIRCUITS LLC TERMS AND CONDITIONS OF SALE
1. Agreement. These terms and conditions of sale (“Terms”) are the only terms which govern the sale of the products (“Products”) set forth on a quotation or purchase order (the “Order”) to or by Allied Circuits LLC (“Seller”) from or to the buyer named on the Order (“Buyer”). Unless Buyer has a separate, signed general or master purchase agreement with Seller which is currently in effect and explicitly applies to the Products, the Order and these Terms (collectively, the “Agreement”) constitute the entire agreement between the parties regarding the subject matter contained in this Agreement, and supersede any and all prior or contemporaneous written or oral communications, understandings, and agreements of the parties. No additions or modifications of the Agreement shall be effective unless made in writing and signed by an authorized representative of both parties. The parties acknowledge and agree that the sale of Products by Seller to Buyer shall not be governed by any terms or conditions set forth on Buyer’s purchase order or any other document provided by Buyer. Seller expressly rejects any terms and conditions proposed by Buyer which are in addition to or which conflict with the Terms, without need for further notice of rejection.
2. Delivery. Seller will use reasonable efforts to deliver the Products in accordance with the time period(s) specified on the Order. Seller shall not be liable for any delays in the delivery of the Products. Seller shall deliver the Products to the delivery site set forth on the Order (“Delivery Point”) using Seller’s standard methods for packaging and shipping such Products. Unless otherwise specified on the Order, all prices and risk of loss are Ex Works (Seller’s Designated Point of Shipment) Incoterms 2010. Seller may, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s order. If shipment of any Product is delayed at Buyer’s request, Seller may invoice Buyer for such Product and risk of loss of such Product will pass to Buyer on the date that Seller is prepared to make shipment to Buyer. If shipment of any Product is delayed for reasons other than at the request of Buyer, Seller shall use all reasonable means to ship as soon as reasonably possible.
3. Price and Taxes. Buyer shall purchase the Products at the prices set forth on the Order. All prices are exclusive of all sales, use, and excise taxes, and other taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes. In the event Seller is required to prepay any such tax, duty, custom or other fee, Buyer will reimburse Seller therefor. Notwithstanding the foregoing, Buyer shall not be responsible for taxes imposed on Seller’s income.
4. Payment Terms. Except as otherwise set forth on the Order, Buyer shall pay all invoiced amounts to Seller within thirty (30) days after the invoice date. Buyer shall make all payments in U.S. dollars. If made by check, the check must be drawn on a U.S. Bank. All banking charges, if any, are to be prepaid by Buyer. Buyer shall pay interest on all late payments at the rate of 1.5% per month, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments including, without limitation, reasonable attorneys’ fees. Buyer shall not, and waives any right to, offset or withhold payment on account of any claim by Buyer against Seller.
5. Warranties. Seller warrants to Buyer that, for a period of one (1) year from the date the Products are delivered (“Warranty Period”), such Products shall materially conform to Seller’s published specifications in effect as of such delivery date; provided, however, that this warranty shall not apply to any Product (i) which has been damaged, abused or misused physically or electrically; (ii) on which the trademark shall have been defaced or obliterated; or (iii) which has been reworked, serviced or repaired, all by any party other than Seller without Seller’s prior written authorization. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION, Seller makes no other representation or warranty whatsoever regarding the Products including, without limit-ation, the implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement, whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise. The warranties in this Section are exclusive and are in lieu of all other warranties with respect to the Products, all of which are expressly disclaimed. Seller shall not be liable for a warranty breach unless Buyer gives Seller written notice of such breach within twenty (20) days after Buyer’s discovery of the breach and Buyer requests, in writing, a return material authorization (“RMA”). Seller’s issuance of an RMA will not commit Seller to the making of any repair or replacement hereunder. Requests for RMA’s must list the types and quantities of all Products involved, the reason(s) the specific Product units are alleged to be defective or otherwise nonconforming, and provide any other information reasonably required by Seller. Returned Products must be shipped, transportation prepaid, by the most practical method of shipment. Shipping costs will be credited to Buyer for all Products found to be subject to a warranty adjustment. Excessive transportation costs will not be allowed or credited. Unless otherwise requested by Buyer, returned Products found not subject to this warranty will be sent back to Buyer, transportation collect. Seller’s determination will be final in all cases. Seller shall not be liable for a warranty breach if it arises because Buyer failed to follow industry standards, or Seller’s specifications or instructions, as to the storage, installation, commissioning, use, or maintenance of the Products. Subject to the foregoing, in the event of a warranty breach, Seller shall, in its sole discretion, (i) replace the affected Products; (ii) repair the affected Products; or (iii) credit or refund the price for such affected Products. Repair or replacement of Products will not extend the Warranty Period. The remedies set forth in this Section shall be Buyer’s sole and exclusive remedies and Seller’s entire liability for any breach of the limited warranties set forth in this Section.
As an exception to Seller’s warranty contained in this Section, Seller shall make available and pass on to Buyer any warranty made to Seller by any supplier/manufacturer of any component part(s) which are incorporated in the Products to the extent permissible by any such supplier/manufacturer.
6. Change/Cancellation. Buyer may not alter, suspend or cancel any Orders without Seller’s prior written consent. If such requested change causes an increase or decrease in the cost or price of the Products and/or an extension of the delivery schedule, Buyer shall be notified of any change in price or delivery schedule. Seller shall not be obligated to proceed with such change(s) until Buyer provides its written agreement to such change in purchase price or delivery schedule. Under no circumstances shall Seller be bound to accept any changes proposed by Buyer. In the event that either party defaults in any of the terms, conditions, obligations, undertakings, covenants, or liabilities set forth herein, the other party shall give the defaulting party written notice of such default. If the defaulting party does not remedy such default within sixty (60) days following receipt of written notice thereof, the party giving notice may cancel the Order by providing the defaulting party with a written notice of cancellation. In addition, either party may cancel an Order by providing written notice to the other party in the event the other party becomes insolvent, unable to meet its debts as they become due, files a petition for bankruptcy under any applicable bankruptcy laws, enters into any arrangement with creditors, or goes into liquidation. Cancellation of an Order shall not relieve either party from its obligations hereunder which shall have accrued prior to such cancellation.
7. Limitation of Liability. In no event shall Seller be liable for any consequential, indirect, inciden-tal, special, exemplary, punitive, or enhanced damages, lost profits or revenues, loss of opportunity, loss of goodwill, or diminution of value, arising out of, relating to, resulting from, or in connection with any breach of the Agreement, regardless of: (i) whether such damages were foreseeable, (ii) whether or not Seller was advised of the possibility of such damages, (iii) the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based, and (iv) the failure of any agreed or other remedy of its essential purpose. In no event shall Seller’s aggregate liability arising out of, relating to, resulting from, or in connection with the Agreement, whether for breach of contract, tort (in-cluding negligence), INDEMNIFICA-TION or otherwise, exceed the total amount paid for the Products sold under the Order.
8. Compliance with Law. Buyer shall comply with all applicable laws, Executive Orders, rules, regulations, orders, and ordinances in Buyer’s purchase and use of the Products. Buyer agrees to defend, indemnify and hold harmless Seller against any loss, cost, liability, expense or damage of any kind by reason of Buyer’s violation of any applicable laws, Executive Orders, rules, regulations, orders, and ordinances.
9. Export Controls. Buyer understands that the Products are subject to the laws and regulations of all applicable jurisdictions, which may include, without limitation, the United States’ Export Administration Regulations and the International Traffic in Arms Regulations. Diversion contrary to U.S. law is strictly prohibited. Products may not be sold, exported or re-exported to any person or entity designated as prohibited or restricted by an agency of the U.S. government. Sales or retransfers of Products may not be made to embargoed countries prohibited by the U.S. government. It is Buyer’s responsibility to ascertain Buyer’s compliance obligations and to comply with all applicable laws and regulations.
10. Confidentiality; Data and Intellectual Property Rights. All of Seller’s confidential or proprietary information including, without limitation, pricing, sourcing, or information regarding the Products is and shall remain Seller’s confidential or proprietary information. Buyer shall keep such information confidential in the same manner as Buyer protects its own confidential information of like significance but with no less than a reasonable degree of care, and Buyer shall have no rights to use or disclose such information. Nothing in this Agree-ment shall be deemed to transfer to Buyer any ownership right or license of any kind in or to any of Seller’s intellectual property, including, without limitation, any patent, trademark, trade secret, copyright or other intellectual property right held by Seller. Intellectual property rights to all hardware, software or other materials developed or otherwise obtained by Seller for the purpose of fulfilling the terms of an Order shall remain the exclusive property of Seller. If Seller creates derivative works of existing products, Seller shall retain the intellectual property rights to any derivative products. Under no circumstances shall any Products or research and development provided by Seller be considered “works made for hire”.
11. Indemnity. Buyer will defend, indemnify and hold harmless Seller and its members, directors, officers, employees and agents from any loss, liability, damage, cost or expense (including, without limitation, attorneys’ fees) arising out of or related to (i) Buyer’s use, sale, lease or other distribution of Products, including, without limitation, in a manner not authorized by this Agreement; (ii) damage to property or injury or death or persons to the extent caused by or arising out of any acts or omissions of Buyer, its agents, employees, or other representatives, or in connection with Products handled, stored, applied or otherwise utilized by Buyer; (iii) any breach of any of the terms of this Agreement, including, without limitation, Section 9; and (iv) any infringement on Seller’s intellectual property rights, including, without limitation, trademark and patent rights.
12. Force Majeure. Any delay or failure of Seller to perform any of its obligations hereunder will be excused if such delay or failure is the result of a cause beyond Seller’s reasonable control or if performance is commercially impracticable.
13. General. Seller and Buyer are acting hereunder as independent contractors. The Agreement is not assignable by Buyer without Seller’s prior written consent and any assignment made in violation of this Section shall be null and void. No waiver shall be effective unless made in writing and signed by the waiving party. A waiver of any of the terms or conditions of this Agreement shall not be deemed a continuing waiver, but shall apply solely to the instance to which the waiver is directed. The Agreement shall be interpreted and enforced exclusively under the laws of the State of New York, without regard to any conflict of laws principles. Any dispute arising out of the Agreement shall be resolved exclusively in Erie County, New York either in the Courts of the State of New York or the Federal Court of the Western District of New York, and both parties consent to the personal jurisdiction and venue of such courts and agree not to challenge or assert any defense to the jurisdiction or venue of such courts. If any provision in the Agreement is found to be invalid, illegal, or unenforceable, then the remainder of the Agreement shall not be affected, and shall remain in full force and effect. Except for Buyer’s remedies under Section 5 of these Terms, which are Buyer’s exclusive remedies for the events specified therein, all rights and remedies provided in the Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies. The Agreement is for the benefit of Seller and Buyer and shall not confer any legal or equitable right, benefit, or remedy on any third party. The provisions in these Terms which by their nature should survive termination or expiration of the Agreement shall survive and remain in force and effect.