TERMS AND CONDITIONS OF SALE - FINISHED GOODS
1. Offer and Acceptance. The sale of products and services (“Products”) by Sourcery LLC (“Seller”) to the purchaser (“Purchaser”) are exclusively governed by the terms and conditions herein, together with Seller’s order, specific terms agreed to in writing by the parties relating to Product prices, quantity, specifications, delivery schedules and locations (collectively referred to as “this Contract”). Issuance of a purchase order or acceptance of the Products by Purchaser constitutes acceptance of the terms and conditions of this Contract. Any additional or different terms or modifications to this Contract proposed by Purchaser, whether in a purchase order or otherwise, are expressly rejected by Seller and are not part of this Contract.
2. Price. Prices in a quotation are valid for one day from date of quotation. Except where otherwise prohibited by law, all applicable sales, excise, use or similar taxes or charges for the sale of Products will be in addition to the stated price and paid by Purchaser. Purchaser may provide Seller with acceptable tax exemption certificate. Seller reserves the right to increase any price in the event of increased costs beyond Seller’s reasonable control including, without limitation: (a) raw material costs; (b) modifications to specifications or Product acceptance criteria requested by Purchaser; or (c) price of goods manufactured by others and re-sold by Seller.
3. Payment. Purchaser agrees to pay in U.S. Dollars, without offset, all invoiced amounts within thirty (30) days from date of Seller’s invoice. Seller shall have the right, among other remedies, including the right of setoff, either to terminate this Contract or to suspend further deliveries under this Contract and/or other agreements with Purchaser in the event Purchaser fails to make any payment when due. Purchaser shall be liable for all expenses related to collection of past due amounts, including attorneys’ fees. Seller may require full or partial payment in advance of shipment or change credit or payment terms if, in Seller’s opinion, the credit or financial condition of Purchaser is, or is about to become, impaired. If Purchaser requests delayed shipment beyond thirty (30) days, Seller may bill for Products at the prices then in effect when ready for shipment and may charge reasonable daily storage fees. If shipment is delayed by Purchaser, Products held for Purchaser shall be at the risk of and expense of Purchaser. To the extent allowable by law, Seller retains a security interest in Products, equipment and tooling until shipment and payment, and Purchaser will execute any paperwork required by Seller to perfect any such security interest.
4. Shipping and Delivery. Seller will use reasonable efforts to perform and deliver the Products on time, but will not be liable for any expenses or damages incurred as a result of late delivery. If Purchaser does not provide routing instructions, Seller will decide the method for routing shipment. All shipping and insurance expenses and risk of loss are assumed by Purchaser. Orders will be shipped either freight collect, billed to a third party or with freight charges prepaid and charged to Purchaser. Purchaser may only cancel an order pursuant to ¶ 13 herein, and such cancellation will be Purchaser’s sole remedy if Seller is unable to deliver Products on time.
5. Rejections and Returns. Purchaser will be deemed to have inspected and accepted all delivered Products unless written notice of rejection, specifying the basis therefore in reasonable detail, is provided to Seller within thirty (30) days after delivery. Within this 30 day period, Purchaser may return non-conforming Products, or request the return of Products otherwise, but in any case may not return any Product without Seller’s prior written approval in the form of Seller’s Return Material Authorization (“RMA”) which must include lot numbers, quantities, catalog numbers and the specific reason for return. Seller’s Customer Service will then either authorize or deny the request for return. Only Products listed on the approved RMA are acceptable for return, and no credit will be due Purchaser if Products are returned without an RMA. The return of Products must be shipped freight prepaid to the Seller’s location provided on the RMA. All returns, if approved for return at Seller’s Discretion, are subject to a 25% handling/restocking charge except for Products shipped due to Seller’s error or Products that are defective. For authorized Product returns, a credit will be issued to Purchaser at the net purchase price of the Product. further provided that: (a) an approved RMA has been obtained prior to return of Products; (b) Products are in their original packaging and Purchaser has not changed, adulterated, obscured, removed or defaced trademarks, trade names or labels appearing on any Product; (c) Products are current inventory items; and (d) Products have been shipped and billed by Seller to Purchaser and Purchaser has paid for said Products. The following Products are not eligible for return: (1) Products that have deteriorated due to improper handling, storage, abuse or other factors; (2) Products which have been opened, partly used or which the labels or seals have been removed or tampered; (3) Products that have been purchased in a special promotion; (4) broken, damaged or opened cases; (5) resealed cartons; and (6) custom or special Products made to Purchaser’s specifications.
6. Manufacturers’ Warranties. Products may be covered, to the extent available, by warranties that are extended by the manufacturer of the individual materials used in the Products. Copies of applicable warranties are available upon request. Please contact your local Sourcery office for details. Purchaser acknowledges that any applicable warranties are the warranties of the manufacturer of the individual materials only, not warranties of Seller, and that any claim brought by Purchaser with respect to these warranties will be brought against such manufacturer.
7. Seller’s Limited Warranty. Seller warrants to Purchaser that Seller’s processing of the materials used in the Products will be free from defects in workmanship and will conform to Seller’s specifications and/or Seller’s statements of work, or those specifications provided by Purchaser and agreed to by Seller. As noted in ¶ 6 immediately above, Seller provides no warranty regarding the materials used in the Products. Seller’s limited warranty will continue for thirty (30) days from the date of shipment of the Products. THIS WARRANTY AND ANY ASSOCIATED REMEDIES SET OUT OR REFERENCED HEREIN ARE EXCLUSIVE. NO OTHER WARRANTY, WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED BY SELLER OR MAY BE INFERRED FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT ALLOWED BY LAW, SELLER DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF NONINFRINGEMENT. No agent, representative or employee of Seller has any authority to bind Seller to any affirmation, representation, or warranty concerning the Products sold under this Contract, and unless an affirmation, representation or warranty made by an agent, representative or employee is specifically included within this Contract, it will not be enforceable by Purchaser.
8. Limited Remedy. Any warranty claims by Purchaser shall be provided to Seller in writing within the 30 day warranty period. Failure by Purchaser to give written notice of claim within the warranty period shall be deemed an absolute and unconditional waiver of Purchaser’s warranty claim. Purchaser’s sole and exclusive remedy for a valid warranty claim is either replacement of the Product or a full refund of the price paid by Purchaser for the Product. This remedy does not include the cost of installation, removal, dismantling, or reinstallation. Purchaser will provide Seller with access to all available warranty data and field returned Products. At Seller’s option, Purchaser will also provide Seller with an opportunity to participate in root cause analysis performed by Purchaser concerning the Products. Seller shall have no liability to the extent Products are or have been: (a) modified by Purchaser or a third party; (b) modified by Seller at Purchaser’s request; (c) made to specifications not provided by Seller; (d) used or installed in a way not known to Seller or operated under conditions not known to Seller; or (e) subject to misuse, abuse or improper storage, installation or maintenance. Products replaced during the warranty period shall be under warranty for thirty (30) days.
9. Limitation of Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, , SELLER SHALL NOT BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THE OBLIGATIONS UNDER THIS CONTRACT. THE TERM “CONSEQUENTIAL DAMAGES” INCLUDES, BUT IS NOT LIMITED TO, LOSS OF USE, LOSS OF REVENUE AND COST OF CAPITAL. THE TOTAL DAMAGES THAT CAN BE AWARDED IN ANY CLAIM BY PURCHASER RELATING TO SELLER’S OBLIGATIONS UNDER THIS CONTRACT (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS INVOLVED IN THE CLAIM OF LIABILITY. THE PARTIES EXPRESSLY AGREE THAT THE ABOVE LIMITATIONS ON LIABILITY PROVISION SHALL REMAIN IN FULL FORCE AND EFFECT EVEN IF IT IS FOUND THAT PURCHASER’S EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. Technical Advice. Unless otherwise agreed mutually in writing, any technical advice furnished by Seller to Purchaser before or after delivery of the Products is provided “as is” on a good faith judgment basis, but without warranty of any kind, and is accepted at Purchaser’s sole risk.
11. Compliance with Law. The parties will comply with all applicable federal, state, local and foreign laws, orders, rules, ordinances. If Purchaser exports, re-exports, or imports Products, Purchaser assumes responsibility for complying with applicable laws and regulations and for obtaining required export and import authorizations of any applicable jurisdiction or country.
12. Termination by Seller. In addition to any other rights of Seller to terminate or suspend performance of this Contract, Seller may, upon written notice to Purchaser, immediately terminate all or any part of this Contract or suspend performance under this Contract, without any liability to Purchaser: (a) if Purchaser (1) repudiates, breaches, or threatens to breach any of the terms of this Contract, (2) fails to accept or threatens not to accept Products in accordance with this Contract, or (3) fails to make timely payment; or (b) upon the occurrence or threat of insolvency or bankruptcy of Purchaser. Upon termination of this Contract by Seller: (i) Seller shall be relieved of any further obligation to Purchaser; (ii) Purchaser shall be liable to Seller for the immediate payment of amounts then billed to date by Seller to Purchaser; (iii) Purchaser shall purchase and pay Seller immediately for all unique raw materials, work in process and finished goods under this Contract; (iv) Purchaser shall reimburse Seller for any unreimbursed and unamortized research and development costs, capital equipment, and supplies that are unique to the Products; and (v) Purchaser shall immediately reimburse Seller for all preparation and other expenses incurred by Seller or its subcontractors in connection with this Contract and for all other losses or costs arising from termination.
13. Termination by Purchaser. If Seller fails to perform any material obligation under this Contract or delivers Product after an agreed upon delivery date, and, if the non-performance can be cured but Seller fails to cure the non-performance within thirty (30) business days after written notice from Purchaser, Purchaser may terminate this Contract without further obligation. Otherwise, upon giving written notice to Seller not less than ninety (90) days prior to shipment, Purchaser may cancel any purchase order or scheduled delivery under this Contract, in which case: (a) Seller will be relieved of any further obligation to Purchaser; (b) Purchaser will pay all amounts then due; (c) Purchaser will purchase and pay Seller immediately for all unique raw materials, work in process and finished goods under this Contract; and (d) Purchaser shall reimburse Seller for any unreimbursed and unamortized research and development costs, capital equipment, and supplies that are unique to the Products.
14. Force Majeure. Seller will not be liable if its performance is delayed or made impossible or commercially impracticable due to acts of God, civil commotion, terrorism, military authority, war, riot, fire, labor trouble or strikes, unavailability of materials or components, explosion, breakdown or accident, delay in transportation, plant shutdown, compliance with governmental requests, laws, regulations, order or actions, unforeseen circumstances, or causes beyond Seller’s reasonable control. In the event of a delay in performance due to any such cause, Seller may postpone its performance by such length of time as may be reasonably necessary.
15. Governing Law, Jurisdiction and Venue. This Contract will be governed by and construed in accordance with the laws of the State of California without reference to the choice of law principles thereof. Subject to the provisions of Dispute Resolution below, each party irrevocably submits to the jurisdiction of the Courts of the State of California, and hereby waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.
16. Dispute Resolution. In the event of any dispute or disagreement between Seller and Purchaser arising out of or relating to this Contract or a Product (“Dispute”), such Dispute, upon the written request of Seller or Purchaser, shall be referred to the chief financial officers of each party or their respective designees. The chief financial officers or their respective designees shall promptly meet in good faith to resolve the Dispute and if they do not agree upon a resolution within thirty (30) calendar days after the reference of the Dispute to them, then such Dispute, upon written notice from one party to the other of its intent to arbitrate (“Arbitration Notice”), shall be submitted to and settled exclusively by final and binding arbitration in lieu of any judicial proceeding; provided, however, that nothing contained in this Section shall preclude any party from seeking or obtaining from a court of competent jurisdiction: (a) injunctive relief, or (b) equitable or other judicial relief to specifically enforce the provisions of this Contract or to preserve the status quo prior to the event(s) leading to the Dispute. Arbitration shall be conducted by the American Arbitration Association in Orange County, California, before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association existing at the date of submission of the Dispute to arbitration. Any arbitration award shall be binding and enforceable against Seller and Purchaser and judgment may be entered thereon in any court of competent jurisdiction. Notwithstanding the forgoing, any Dispute relating to or arising out of, in whole or in part, any breach of Purchaser’s obligations of confidentiality hereunder or for the misuse or infringement of Seller’s intellectual property rights by Purchaser shall not be subject to binding arbitration under this Contract.
17. Assignment, Waiver, Entire Agreement, Severability. Purchaser may not assign or delegate any of its rights or obligations under this Contract without prior written consent from Seller. Seller may terminate this Contract upon giving at least sixty (60) days written notice to Purchaser, without any liability to Purchaser, if there is a change of control of Purchaser. Seller may assign its rights and obligations under this Contract at any time, without Purchaser’s prior written consent. The failure of either party to enforce any right or remedy provided in this Contract or by law on a particular occasion will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy. This Contract constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior oral or written representations or agreements by the parties with respect to the subject matter of this Contract. This Contract may not be modified unless in writing and signed by authorized representatives of both parties. Any provision found invalid or unenforceable will not affect the validity or enforceability of any other provision and the invalid provision may be judicially modified to the extent enforceable.
18. Two Year Limitation. Neither party may bring a claim or action arising out of or related to this Contract, including any claim of fraud or misrepresentation, more than two (2) years after the cause of action accrues.