1. SOLE AGREEMENT AND ACCEPTANCE: The terms and conditions set forth herein contain the sole entire and exclusive terms applicable to any contractual relationship between the Seller and any resellers or purchasers (collectively, \u201cBuyer\u201d) and supersede all prior oral or written discussions, proposals, negotiations, representations, and agreements relating thereto. Any additional or conflicting terms, whether or not material, shall not govern the relationship between Seller and Buyer. Seller objects to and shall not be bound to any past or future terms or conditions not set forth herein, including any additional terms shown on Buyer\u2019s purchase order or acknowledgement or shipping documents, which order, acknowledgement or shipping document shall be accepted for billing purposes only, and any inconsistencies therein with the provisions hereof shall be null and void. Shipment pursuant to Buyer\u2019s order containing different or additional terms does not constitute acceptance of such terms and Seller\u2019s shipment pursuant to such order is expressly made conditional on Buyer\u2019s assent to the additional and different terms contained herein. ANY WAIVER, MODIFICATION, OR AMENDMENT OF THESE TERMS AND CONDITIONS SHALL ONLY BE EFFECTIVE AS AGAINST EITHER PARTY IF SUCH WAIVER, MODIFICATION, OR AMENDMENT IS CONTAINED IN A WRITTEN INSTRUMENT DULY EXECUTED BY OR ON BEHALF OF BOTH PARTIES. All orders are subject to acceptance by Seller. <\/p>\n\n\n\n
2. PRICE AND PAYMENT: The price(s) herein specified may be revised by written notice from Seller by providing not less than fifteen (15) days prior to the date on which any such price change commences. In the absence of such written notice from Seller to Buyer, the price then in effect shall continue in effect until such notice is given. If no price is specified on the face hereof, all orders shall be priced in accordance with Seller\u2019s price quotation in effect on the date of shipment. Payment for all shipments hereunder shall be made by Buyer against Seller\u2019s invoice within thirty (30) days from the date of the invoice, term\u2019s net cash, unless otherwise indicated on the face hereof. Past due invoices shall be subject to a finance charge of 1.5% per month or the maximum rate allowed by law, whichever is less. If at any time, in Seller\u2019s opinion, the financial responsibility of Buyer becomes impaired or unsatisfactory to Seller or inadequate to meet the obligations hereunder the terms of payment may, at Seller\u2019s option, be revised or withdrawn, and Seller may require cash or other satisfactory security before making further shipments to Buyer. <\/p>\n\n\n\n
3. TAXES: Any tax, excise, inspection fee, duty, or other governmental charge upon the sale and\/or shipment of the material(s) herein specified now imposed by federal, state or local authorities, in the U.S. or outside the U.S., or hereafter becoming effective within the life of this Agreement, shall be paid by Buyer or Receiving Party whether billed directly by Seller or billed by the taxing authority. <\/p>\n\n\n\n
4. DELIVERY: Shipment dates are based upon Seller\u2019s best judgment, are subject to production limitations and factory schedules, and hence are not guaranteed. All sales are F.O.B. Seller\u2019s shipping point. Unless Seller specifically agrees in writing otherwise, Buyer will pay the freight or other delivery charges and all other charges levied or imposed after the loading is completed. If the Seller prepays such charges on Buyer\u2019s request or for Buyer, Buyer will reimburse Seller. Seller\u2019s weights or measurements taken at the shipping point shall control unless proven to be in error. <\/p>\n\n\n\n
5. TITLE AND RISK OF LOSS: Title and risk of loss of the goods shall pass to the Buyer upon loading of the goods into transportation equipment at the shipping point. <\/p>\n\n\n\n
6. FORCE MAJEURE: In case performance of any terms or provisions hereof shall be delayed or prevented because of compliance with any law, decree, request, or order of any governmental agency or authority, either local, state or federal, or because of riots, war, public disturbances, strikes, lockouts, differences with workmen, fires, floods, acts of God, epidemic, pandemic, accidents of navigation, breakdown or failure of transportation or transportation facilities, failure of or interference with the manufacture, receiving, handling, or consumption of the material covered hereby, inability to obtain raw materials, fuel, power, labor, containers or transportation facilities, or commercial impracticability, or for any other reason (whether or not of the same class or kind as herein set forth) which is not within the control of the party whose performance is interfered with and which by the exercise of reasonable diligence said party is unable to prevent, the party so suffering may at its option suspend deliveries or receipts during the period such cause continues and no liability shall attach against either party on account thereof. The provisions of this paragraph shall not be available to any party which fails to use reasonable diligence to remedy the situation and remove the cause in an adequate manner and with all reasonable dispatch. The requirement that any force majeure be remedied with all reasonable dispatch shall not require settlement of strikes or labor controversies by acceding to the demands of the opposing party or parties. <\/p>\n\n\n\n
7. WARRANTY AND LIABILITY: Seller warrants that the goods furnished shall meet Seller\u2019s standard specifications. Any technical advice by Seller in reference to the use of its products is given without any warranty whatsoever as to advice given or results obtained. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR ARISING FROM ANY COURSE OF DEALING WITH RESPECT TO SAID GOODS EXCEPT AS SPECIFICALLY SET FORTH HEREIN. Buyer assumes all risk, liability, and damage resulting from the use of the goods, whether used singularly or in combination with other goods, of technical advice furnished, or of specification changes. If any model or sample was shown to Buyer, such model or sample was used merely to illustrate the general type and quality of the goods and not to represent that the goods would necessarily be of that type and nature. Neither Seller nor its suppliers or licensors warrant that the goods furnished by Seller will meet Buyer\u2019s requirements, will operate in combination with other technologies or products, do not infringe third-party rights, or that the operation or use will be uninterrupted or error-free. If any of the foregoing warranties cannot be excluded by operation of law, Seller nonetheless has no obligation, responsibility or liability with respect to any claim for defense, indemnification, infringement, or misappropriation, arising out of or relating to: (a) technology, products, or specifications that Buyer provides; (b) modification of a product provided by Seller unless such modification was made by Seller; (c) use of a product in a manner not contemplated by the documentation provided by Seller; or (d) Buyer\u2019s combination of Seller\u2019s product with any products or materials not provided by Seller. IN NO EVENT WILL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND. <\/p>\n\n\n\n
8. REMEDIES OF BUYER: Seller\u2019s sole liability and Buyer\u2019s sole and exclusive remedy in the event of Seller\u2019s liability is expressly limited, at Seller\u2019s sole option, to either (a) the repair of defective goods or the replacement thereof with conforming goods at the F.O.B. shipping point, or (b) the repayment of the net unit billing price. Failure by Buyer to give written notice to Seller of a claim as to defective goods within ninety (90) days from the date of invoice shall constitute a waiver by Buyer of all claims of any kind with respect to such goods. As a condition of repayment for defective goods, Buyer must, after obtaining authority from Seller, return such goods to Seller for inspection, repair and\/or replacement (see paragraph 17). Seller shall not be liable for goods, which have been altered or defaced. In-transit breakage, damage, or loss claims must be filed directly with carrier. <\/p>\n\n\n\n
9. LIMITATION OF LIABILITY: The remedies of Buyer are limited to those set forth herein and are exclusive. The total liability of Seller, with respect to the goods furnished hereunder or with respect to the manufacture, sale, delivery, repair, or technical direction covered by or furnished pursuant to these terms and conditions, whether such liability of Seller is based on contract, warranty, negligence, strict liability, alleged infringement, indemnity, or otherwise, shall not exceed the purchase price of the goods in respect of which claim is made. Seller shall in no event be liable to the Buyer, any <\/p>\n\n\n\n
successors in interest or assignee of Buyer, any customers of Buyer or any beneficiary or assignee of Buyer for any consequential, incidental, indirect, special, or punitive damages arising out of any alleged infringement by such goods, or any defect in or failure of or malfunction of the goods sold hereunder, whether such damages are based upon lost goodwill, lost profits or revenue, interest, work stoppage, impairment of other goods loss by reason of shutdown or non-operation, increased expenses of operation, alleged infringement, loss of use of related goods or operations and\/or cost of purchase of replacement goods, whether or not such loss or damage is based on contract, warranty, negligence, indemnity, strict liability or otherwise. Buyer agrees to defend, indemnify and hold harmless Seller and its subsidiaries and affiliates, and its and their respective officers, directors, employees and agents, from and against any and all damages, losses, liabilities, judgments, penalties, fines, settlement amounts, fees, costs and expenses (including, but not limited to, the reasonable fees and expenses of attorneys and other professionals) that Seller may suffer or incur, to the extent arising out of or attributable to, or allegedly arising out of or attributable to: (i) Buyer\u2019s acts and omissions and claims by third parties of bodily injury (including death) or damage to tangible property to the extent such claims arise from Buyer\u2019s negligence or willful misconduct, or (ii) Buyer\u2019s breach of its obligations under any agreement between Seller and Buyer, including these terms and conditions. <\/p>\n\n\n\n
10. PATENT INFRINGEMENT: Seller reserves the right to discontinue deliveries of any goods, the manufacture, sale or use of which in its sole opinion might involve patent infringement. <\/p>\n\n\n\n
11. PATENT LICENSE: The contract of sale formed by these terms and conditions in no way provides Buyer with any license, express or implied, to practice any patented inventions or discoveries owned by Seller except for any patented invention or discovery that is embodied by the form and\/or composition of the product(s) as sold by Seller to Buyer. Seller is and shall be the sole and exclusive owner of all worldwide rights, titles and interest in and to: (a) all products and\/or services offered or sold by Seller to Buyer, including any improvements thereto and all intellectual property rights therein, including but not limited patents, copyrights, trademarks, trade secrets and other proprietary rights; (b) any feedback, ideas, reports, data and other information provided by Buyer related to Seller\u2019s products and services, including in connection with any pre-release products provided to Buyer for testing, or any samples, whether free or not; (c) all discoveries, inventions, engineering details, improvements, enhancements, and other data and materials pertaining to Seller\u2019s products or services; and (d) all logos, designs, works of authorship, derivative works, and other proprietary rights arising out of or related to the products sold by Seller, services provided by Seller, or work done by Seller. Buyer agrees that Seller has the sole right to manufacture or have manufactured the products sold by Seller to Buyer, and as such, Buyer will not at any time manufacture or have manufactured products competitive with those of Seller, or attempt to design around or reverse engineer any of Seller\u2019s products. <\/p>\n\n\n\n
12. CANCELLATION: Seller may cancel the Agreement formed by these terms and conditions at any time if Buyer fails to perform or observe any term or condition hereof by giving Buyer ten (10) days written notice of cancellation. Cancellation hereunder shall not prevent Seller from pursuing any other remedy available to Seller by law or from seeking all such damages to which Seller may be entitled. <\/p>\n\n\n\n
13. ASSIGNMENT: This Agreement shall extend to and be binding upon the parties hereto their successors and assigns provided however that Buyer shall not assign its rights nor delegate its duties under this Agreement without the written consent of the Seller. <\/p>\n\n\n\n
14. APPLICABLE STATE LAW: THE CONSTRUCTION OF THIS AGREEMENT and the rights and obligations of the parties hereunder SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, excluding any choice of law rules which may direct the application of the laws of any other jurisdiction. All orders and the rights and obligations of the Seller and Buyer arising from these Conditions of Sale shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sales of Goods application of which is hereby excluded pursuant to Article 6 thereof. Exclusive jurisdiction and venue for any and all disputes, claims, or causes of action arising out of or relating to these terms and conditions or any agreement between the parties shall be in the federal or state courts located in Austin, Texas. In the event that Buyer breaches these terms and conditions, Seller shall be entitled to recover its reasonable costs and attorneys\u2019 fees in any proceeding arising out of or relating thereto. <\/p>\n\n\n\n
15. CONFIDENTIALITY: Nothing stated herein shall be construed to relieve Buyer from any obligation of confidentiality owed to Seller or its affiliates with respect to any materials or information furnished to Buyer subject to such obligation. <\/p>\n\n\n\n
16. SEVERABILITY: If any term or other provision of these terms and conditions are determined by a non-appealable decision of a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of these terms shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, that provision shall be modified to the minimum extent necessary to comply with the parties\u2019 intentions and purpose of the terms as set forth herein. If and to the extent that the invalid, illegal or unenforceable provision cannot be so modified, it shall be severed from the terms and a similar term or provision shall be substituted therefor in order to accomplish the intent of the parties as closely as possible to the original term or provision, as determined by any court or arbitrator having jurisdiction, to the extent permitted by applicable law, and the remaining provisions shall be given full force and effect. <\/p>\n\n\n\n
17. RETURNS: In ALL cases, a return authorization number (RA#) is required and must be clearly marked on the exterior of the shipping package or the package will not be accepted. All returns must be received within 30 days of issuance of an RA# and must be in original packaging. Seller will accept returns only under the following conditions: <\/p>\n\n\n\n
Potential Defects: Product may be returned under the terms described in paragraph 8. <\/p>\n\n\n\n
Products shipped in error: Buyer must notify Seller within thirty (30) days of the date of the invoice. Full credit will be issued for the merchandise and shipping, less any refurbishing costs. <\/p>\n\n\n\n
Other returns: Any product can be returned for any reason (except non-stock, special or discontinued items), if Seller is notified within thirty (30) days of the date of the invoice. Return shipments will not be accepted if Seller does not receive notification within 30 days of the invoice or if goods are not received within 30 days of notification. Credit will be given for the merchandise returned after assessing any differences in price due to volume discounts given at the time of purchase and after assessing a 25% restocking fee. No credit will be given for inbound or outbound shipping and handling. No credit will be given for partial containers of product.<\/p>\n\n\n\n
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