THESE TERMS AND CONDITIONS EXCLUSIVELY GOVERN ALL SALES OF PRODUCTS ("PRODUCTS") AND THE PROVISION OF SERVICES ("SERVICES") BY THE VELOCITY ELECTRONICS ENTITY IDENTIFIED IN THE APPLICABLE INVOICE, QUOTE, SALE CONFIRMATION OR OTHER SALE DOCUMENT (THE "SALE DOCUMENT"), WHICH SHALL BE EITHER VELOCITY ELECTRONICS CORP., VELOCITY ELECTRONICS B.V., OR VELOCITY ELECTRONICS ASIA PTE LTD. (SUCH VELOCITY ENTITY, THE "SELLER"). THE APPLICABLE SALE DOCUMENT SHALL BE PROVIDED BY SELLER TO BUYER AND THESE TERMS AND CONDITIONS TAKE PRECEDENCE OVER ANY CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS CONTAINED IN ANY PURCHASE ORDER, DOCUMENT OR OTHER COMMUNICATION ("PURCHASE ORDER") FROM BUYER.
BY ACCEPTING DELIVERY OF THE PRODUCTS OR THE PERFORMANCE OF SERVICES DESCRIBED IN THE APPLICABLE SALE DOCUMENT, BUYER SHALL BE DEEMED TO HAVE ACCEPTED THESE TERMS AND CONDITIONS WITHOUT MODIFICATION BY ANY PRIOR OR LATER COMMUNICATION FROM BUYER. SELLER'S ACKNOWLEDGMENT OF A PURCHASE ORDER OR SELLER'S FAILURE TO OBJECT TO ANY CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS IN A PURCHASE ORDER SHALL NOT BE DEEMED AN ACCEPTANCE OF SUCH TERMS AND CONDITIONS OR A WAIVER OF OBJECTION THERETO.
1. PRICES; TERMS OF PAYMENT: Prices and payment terms for Products or Services are as set forth in the Sale Document. Prices are exclusive of, and Buyer shall pay, all taxes, duty, freight charges and all other similar fees, such as forwarding agent's and broker's fees, consular fees, document fees and import duties. Buyer agrees to pay these taxes unless Buyer has provided Seller with an exemption resale certificate in the appropriate form for the jurisdiction of Buyer's place of business and any jurisdiction to which Products are to be directly shipped or where Services are to be performed hereunder, or unless the sale is otherwise exempt from these taxes. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. All payments shall be made by cash on delivery, company check, credit card, or by wire transfer to an account which will be designated by Seller in accordance with the terms specified in the Sale Document, without abatement, set-off, or deduction of any amount whatsoever and despite any defense or counterclaim Buyer may have against Seller. A late charge of 1.5% per month (or the maximum rate allowed by law if less) will be assessed on all outstanding amounts not paid within the terms specified in the Sale Document. Buyer shall be liable for costs of collection, including reasonable attorneys' fees and court costs, in any action to collect past due amounts.
Seller reserves the right to establish and/or change credit and payment terms extended to Buyer when, in Seller's sole opinion, Buyer's financial condition or previous payment record warrants such action. Further, on delinquent accounts, Seller shall not be obligated to continue performance under any agreement with Buyer. If Seller believes in good faith that Buyer's ability to make payments may be impaired or if Buyer 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 Buyer shall remain liable to pay for any Products already shipped.
2. DELIVERY; RISK OF LOSS; TITLE: All shipments of Products shall be Ex Works (as defined in Incoterms 2000) Seller's facility in Austin, Texas USA, Hoofddorp, The Netherlands or Singapore, as applicable, unless otherwise specified in the Sale Document. Title and risk of loss and damage shall pass to Buyer upon delivery of Products to a carrier at Seller's facility. Delivery dates quoted by Seller are estimates only and are subject to various delays, whether in the control or beyond the control of Seller. Buyer acknowledges that any delay in delivery shall not give rise to any liability on the part of Seller whatsoever, including for loss of use or INDIRECT OR CONSEQUENTIAL DAMAGES. Transportation and insurance shall be at Buyer's sole risk and expense, and any claim for loss or damage in transit shall be against the carrier only. In the absence of specific shipping instructions from Buyer, Seller will select the carrier and method of shipment.
3. SECURITY INTEREST: Seller retains a purchase money security interest in the Products delivered to Buyer, and in their accessories, replacements, accessions, proceeds and Products, including accounts receivable (collectively, the "Collateral") to secure payment of all amounts due under the applicable Sale Document. Buyer's failure to pay all amounts hereunder in full when and as due shall constitute a default hereof and shall give Seller all rights of a secured party, including the right to repossess and remove all or any part of the Collateral from Buyer. Any repossession or removal shall be without prejudice to any other remedy of Seller hereunder, at law or in equity. Buyer agrees, from time to time, to take any act and execute and deliver any document (including, without limitation, financing statements) reasonably requested by Seller to create, perfect, preserve, protect and enforce this security interest.
4. ACCEPTANCE/RETURNS: Shipments will be deemed to have been accepted by Buyer upon delivery to Buyer unless rejected upon receipt. Buyer shall perform whatever inspection or tests Buyer deems necessary as promptly as possible but in no event later than three (3) days after delivery, after which time Buyer will be deemed to have irrevocably accepted the Products. Any discrepancy in shipment quantity must be reported within five (5) working days of receipt of the Products. In the event of an over shipment, Buyer shall have the option to either (i) return the Products to Seller at Seller's expense or, (ii) retain the Products (subject to adjustment of the invoice or the issuance of another invoice to account for such additional items.) Any Product returns shall be subject to compliance with Seller's Return Merchandise Authorization policies and procedures, which are available upon request.
5. LIMITED WARRANTIES; DISCLAIMER: NON-CONFORMING PRODUCTS OR SERVICES: SELLER'S ONLY WARRANTIES ARE THAT (A) THE PRODUCTS CONFORM TO THE MANUFACTURER'S PUBLISHED SPECIFICATIONS FOR THE PRODUCTS IN ALL MATERIAL RESPECTS AND (B) SERVICE WILL BE PERFORMED IN A PROFESSIONAL AND WORKMANLIKE MANNER AND IN ACCORDANCE WITH ANY SERVICES SPECIFICATIONS THAT ARE AGREED TO BY BOTH PARTIES IN WRITING.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5, ALL PRODUCTS ARE SOLD, AND ALL SERVICES ARE PERFORMED, "AS IS" AND "WITH ALL FAULTS AND DEFECTS" AND SELLER DISCLAIMS ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY RELATING TO ANY PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES REGARDING THE DESIGN AND CONDITION OF THE PRODUCTS OR SERVICES, OR THEIR QUALITY, CAPACITY, SUITABILITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
Provided that (i) Buyer has given Seller written notice of the failure of the Products to conform to the Products warranty in this Section 5 within one (1) year of receipt of the Products and (ii) the non-conforming Products are returned to Seller (at Buyer's expense), no later than one (1) year from the date of receipt of the Products, and (iii) Seller confirms that the Products are non-conforming, Seller will, at its option and as the SOLE AND EXCLUSIVE REMEDY OF BUYER for nonconforming Products, either (a) refund amounts paid by Buyer for the Products, or (b) repair or replace, free of charge, the Products that are nonconforming. All sales of conforming Products, unless otherwise agreed in writing by Seller, are non-cancelable, non-returnable and non-rescheduleable.
Provided that (i) Buyer has given Seller written notice of the failure of the Services to conform to the Services warranty in this Section 5 within thirty (30) days following performance of the Services and (ii) Seller confirms that the Services are non-conforming, Seller will, at its option and as the SOLE AND EXCLUSIVE REMEDY OF BUYER for nonconforming Services, either (a) refund amounts paid by Buyer for the Services, or (b) re-perform, free of charge, the Services that are nonconforming.
6. LIMITATION OF LIABILITY: Buyer agrees that, regardless of the claim or other form in which any legal or equitable action may be brought by Buyer against Seller and/or its affiliates and their respective officers, directors, representatives, agents, subcontractors, and employees (collectively, the "Seller Parties"), none of the Seller Parties shall be liable for any indirect, special, incidental, consequential, exemplary or punitive damages, including, without limitation, loss of profits, revenue, promotional expenses, injury to reputation, or loss of customers. Buyer's recovery from the Seller Parties or any of them for any claim in any way arising from or related to the Products, Services or this Agreement shall not in the aggregate exceed the amount actually paid to Seller by Buyer for the Products or Services irrespective of the nature of the claim, whether in contract, tort, warranty, strict liability, product liability or otherwise and whether arising in whole or in part from the negligence of any of the Seller Parties.
7. LEGAL COMPLIANCE; EXPORT CONTROL: Buyer shall comply with, and be responsible for obtaining all licenses, permits and other approvals required under, all applicable foreign, national, state and local laws and regulations relating to the purchase or use of the Products or Services, including laws regulating imports and exports and transactions with non-U.S. persons. Buyer certifies that it will be the recipient of Products to be delivered by Seller. Buyer acknowledges that the Products are subject to the export and/or import control laws and regulations of various countries including the Export Administration Regulations of the United States. Buyer agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required 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. Products sold by Seller cannot be transferred, sold or re-exported to any party on the Entity List or Restricted Person List of the U.S. Department of Commerce, Bureau of Industry and Security (BIS), any party designated by the U.S. Treasury Department's Office of Foreign Assets Control, and any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department.
8. EXPORT CONROL / USE OF PRODUCTS: Buyer certifies that it will be the recipient of Products to be delivered by Seller. Buyer acknowledges that the Products are subject to the export and/or import control laws and regulations of various countries including the Export Administration Laws and Regulations of the United States and the export control regulations of Singapore, the European Union, and the UK as amended. Buyer agrees to comply strictly with all U.S. and other country's export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required 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. Products sold by Seller cannot be transferred, sold or re-exported to any party on the Entity List or Restricted Person List of the U.S. Department of Commerce, Bureau of Industry and Security (BIS), any party designated by the U.S. Treasury Department's Office of Foreign Assets Control, and any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department. 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 Buyer uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at Buyer's sole risk; (2) Buyer 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) Buyer 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.
9. LAW; VENUE; LIMITATIONS: For Products shipped from, or Services performed by personnel from, the Seller's facility in Austin, Texas, this sale is deemed to be entered into in Travis County, Texas and shall be governed and construed in accordance with the laws of the State of Texas without giving effect to the principles of conflict of laws. If any legal dispute arises between Seller and Buyer relating to the Products or Services, Buyer expressly agrees to the EXCLUSIVE jurisdiction of the state and federal courts serving Travis County, Texas.
For Products shipped from, or Services performed by personnel from, the Seller's facility in The Netherlands, this sale is deemed to be entered into in Hoofddorp, The Netherlands, and shall be governed and construed in accordance with the laws of The Netherlands, without giving effect to the principles of conflict of laws. If any legal dispute arises between Seller and Buyer relating to the Products or Services, Buyer expressly agrees to the EXCLUSIVE jurisdiction of the courts serving The Netherlands.
For Products shipped from, or Services performed by personnel from, the Seller's facility in Singapore, this sale is deemed to be entered into in Singapore, and shall be governed and construed in accordance with the laws of Singapore, without giving effect to the principles of conflict of laws. If any legal dispute arises between Seller and Buyer relating to the Products or Services, Buyer expressly agrees to the EXCLUSIVE jurisdiction of the courts serving Singapore.
ANY LEGAL ACTION BROUGHT BY BUYER AGAINST SELLER MUST BE BROUGHT WITHIN ONE YEAR AFTER SUCH CAUSE OF ACTION ACCRUES REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT OR TORT AND THEREAFTER, ALL SUCH CLAIMS SHALL BE BARRED.
10. INTELLECTUAL PROPERTY: If any Product includes software or other intellectual property, such software or other intellectual property is provided by Seller to Buyer subject to the copyright and user license, if any, for such Products, the terms and conditions of which are set forth in the license agreement accompanying such Product. 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. Buyer acknowledges and understands that Seller is not the manufacturer of any Products ordered or to be supplied to Buyer and is not liable to Buyer or any third party for any infringement claim or any other intellectual property or trade secret issue, right or claim that may arise in relation to any Product.
11. TECHNICAL ASSISTANCE OR ADVICE: Any technical assistance or advice offered by Seller in regard to the use of any Product or provided in connection with Buyer's purchases is given free of charge and only as an accommodation to Buyer. Seller shall have no obligation to provide any technical assistance or advice to Buyer and if any such assistance or advice is provided, such fact will not obligate Seller to provide any further or additional assistance or advice. Seller shall not be held liable for the content or Buyer's use of such technical assistance or advice nor shall any statement made by any of Seller's representatives in connection with the Products constitute a representation or warranty, express or implied.
12. GENERAL: The Sale Document and these Terms and Conditions, including exhibits or attachments thereto, if any, represent the entire agreement between Buyer and Seller with respect to sales hereunder, and supersede all prior understandings, written or oral. Buyer and Seller agree that each provision contained in these Terms and Conditions shall be treated as separate and independent clauses, and the unenforceability of any one clause shall in no way impair the enforceability of any other clause. Any waiver of any provision herein or any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder. Seller is not liable for its failure to perform any of its obligations hereunder during any period in which performance is delayed by Buyer or circumstances beyond Seller's reasonable control, including, without limitation, an act of God, war, civil disturbance, court order, labor dispute, third party nonperformance (including carrier delays) , acts of third parties, or failures, fluctuations or nonavailability of materials, components, electrical power, heat, light, air conditioning, computing or information systems or telecommunications. If Seller is the prevailing party in any legal proceedings brought by or against Buyer to enforce any provision of this agreement, Seller shall be entitled to recover against Buyer the reasonable attorneys' fees, court costs and other expenses incurred by Seller. Neither party may assign this agreement without the prior written approval of the other party.
14. CONFIDENTIALITY. Seller will treat information obtained or created during performance of Service as proprietary and confidential unless Buyer makes it publicly available and will notify Buyer before releasing it into the public domain or to another party.