THESE SALES TERMS AND CONDITIONS CONSTITUTE THE ENTIRE AGREEMENT ("TERMS") BETWEEN SUPRACOR, INC. ("SUPRACOR") AND THE BUYER INDICATED ON THE FACE HEREOF ("BUYER") WITH RESPECT TO SALES BY SUPRACOR OF THE PRODUCTS LISTED ON THE FACE HEREOF (COLLECTIVELY, "PRODUCTS"). SUPRACOR WILL NOT BE BOUND BY ANY TERMS OF BUYER'S ORDER THAT ARE IN ADDITION TO OR INCONSISTENT WITH THE TERMS HEREIN. ACCEPTANCE BY BUYER OF THESE TERMS WILL BE DEEMED MADE AT THE EARLIER OF BUYER'S (1) ACCEPTANCE OR ACKNOWLEDGMENT OF RECEIPT OF THESE TERMS WITHOUT WRITTEN OBJECTION THERETO, (2) PLACEMENT OF A PURCHASE ORDER WITH SUPRACOR THAT REFERS TO A VALID SUPRACOR QUOTATION OR THESE TERMS, OR (3) FAILURE TO DELIVER TO SUPRACOR WRITTEN NOTICE OF ITS REJECTION OF THESE TERMS WITHIN 5 DAYS FOLLOWING RECEIPT OF THESE TERMS.
1. Genral: These Terms apply to all quotations, purchase orders, and acknowledgments relating to the Products. Acceptance of any Buyer order by Supracor is made only on the express condition that these Terms shall govern. Supracor's failure to object to provisions contained in any communication from Buyer will not be deemed a waiver of any provision herein. Any additional or different terms proposed by Buyer shall be deemed material, are objected to, and are hereby rejected unless specifically accepted in a signed writing by an authorized representative of Supracor.
2. Taxes, Payment, Security Interest: All prices are exclusive of all withholding, excise, sales, use and similar taxes, fees, charges, duties, and assessments, in each case imposed by any governmental authority on the transactions, shipments, or amounts payable hereunder (except taxes on Supracor's income which shall be Supracor's responsibility) (collectively, "Taxes"). Buyer will reimburse Supracor for any Taxes. Terms of payment are net 30 days from date of invoice. All payments will be made in U.S. dollars, unless otherwise agreed in writing. Supracor has the right to charge interest on late payments at the rate of 1.5% per month, or the maximum amount allowed by law, if lower, from the due date until paid. Supracor may at any time change its payment terms, including requiring payment prior to delivery. If any proceeding is brought by or against Buyer under bankruptcy or insolvency laws, Supracor has the right to cancel any outstanding orders. Until full payment has been received by Supracor from Buyer, without prejudice to any other right or remedy available to Supracor, Supracor shall be entitled to a general lien on all Products sold hereunder to Buyer, exercisable in respect of all sums lawfully due from Buyer to Supracor. Supracor shall be entitled, on the expiry of 14 days' notice in writing, to repossess or dispose of such Products in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding. Supracor may set off any liability of Supracor to Buyer against any liability of Buyer to Supracor.
3. Title; Delivery; Acceptance; Cancelation: Products will be delivered Ex Works (Incoterms 2000) Supracor's plant or shipping point designated by Supracor, at which point title to the units of Products and risk of loss shall pass from Supracor to Buyer. Buyer shall pay, or reimburse Supracor, for all transportation and freight charges and charges for insurance against loss or damage. Supracor may make partial shipments of the Products. Buyer acknowledges and agrees that all shipping dates are estimates only. All Products will be deemed accepted upon delivery to the Buyer's designated agent or common carrier, and Buyer waives any right of revocation. Upon acceptance by Supracor, all orders shall be non-cancelable and non-reschedulable by Buyer.
4. Proprietary Rights: Supracor retains ownership of all intellectual property rights in the Products. The Products are offered for sale and sold on the condition in every case that such sale does not convey any license, express or implied, under any intellectual property right of Supracor except as incidental to the use of such units by Buyer and its customers, and all such rights are reserved. Supracor grants no implied licenses.
5. Limited Warranty: Except for Supracor's standard limited warranty for end users included with the Product (the "Limited Warranty"), Supracor does not make any warranty or representation regarding the Products or these Terms. Buyer shall pass-through the Limited Warranty to end users. If Buyer returns to Supracor any Product during the warranty period for the applicable Limited Warranty (the "Warranty Period") and complies with this Section, Supracor will, as Buyer's sole and exclusive remedy, and Supracor's entire liability, have the right, at its sole option, either to: (a) repair the nonconforming Product to make it conform to the Limited Warranty, (b) replace the nonconforming Product with a conforming Product; or (c) pay Buyer a refund of the amount paid by Buyer to Supracor for such non-conforming Product. Any repaired or replaced Product under this Section will not extend the original Warranty Period. The Limited Warranty shall not apply to any Product rendered defective or non-conforming, in whole or in part, due to: neglect; misuse; excess humidity; accident; fire or other hazard; alteration, modification or repair by anyone other than Supracor; improper handling, storage, or transportation; or any other cause beyond the range of normal use of the Products. Prior to returning any Product, Buyer must obtain an RMA number from Supracor, and display such RMA number prominently on the packaging for any such returned Product. Buyer must prepay any and all shipping charges for Product returned to Supracor. Supracor will not accept collect shipments. Any Products returned to Supracor other than in accordance with these Terms may be refused by Supracor, at its sole discretion.
6.1 EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTY WHATSOEVER, AND SUPRACOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
6.2 WITHOUT LIMITING SECTION 6.1, BUYER ACKNOWLEDGES AND AGREES THAT THE PRODUCTS MAY NOT HAVE BEEN TESTED, EVALUATED, OR RATED FOR FAULT-TOLERANCE OR SAFETY, FOR ANY APPLICATION REQUIRED BY BUYER. EXCEPT TO THE EXTENT SET FORTH IN THE LIMITED WARRANTY, SUPRACOR DOES NOT WARRANT THAT THE PRODUCTS WILL BE FAULT-TOLERANT, SAFE, PROTECT AGAINST OR REDUCE THE POSSIBILITY OF INJURY OR DEATH OCCURRING UNDER ANY CIRCUMSTANCES.
7. Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SUPRACOR OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, OR FOR ANY LOST PROFITS OR LOST DATA, ARISING FROM OR RELATING TO THESE TERMS OR THE PRODUCTS, EVEN IF SUPRACOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUPRACOR’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THESE TERMS OR THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID TO SUPRACOR HEREUNDER FOR THE SPECIFIC PRODUCT UNIT GIVING RISE TO THE CLAIM. SUPRACOR DISCLAIMS ALL LIABILITY OF ANY KIND OF SUPRACOR’S SUPPLIERS. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES SET FORTH IN THESE TERMS.
8. Indemnity: Buyer will defend, indemnify, and hold Supracor and its affiliates, and their respective directors, employees, and agents, harmless from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) brought by third parties (including any customer of Buyer) resulting from or relating to: (a) any acts or omissions of Buyer, or its distributors or agents, in marketing, selling, or distributing, the Products; (b) any unauthorized representations, warranties, or guarantees made by Buyer or its distributors and agents, or each of their respective staff, relating to the Products; (c) any design, specification, or instruction furnished by Buyer to Supracor for the Products, to the extent such claim would not have arisen but for such design, specification, or instruction furnished by Buyer; or (d) any claim by any end user except to the extent the claim specifically relates to a defect covered by the Limited Warranty. Under no circumstances shall Buyer enter into any settlement that involves an admission of liability, negligence or other culpability of Supracor or requires Supracor to contribute to the settlement without Supracor's prior written consent. Supracor may participate and retain its own counsel at its own expense.
9. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without regard to any conflicts of laws principles that would require the laws of another jurisdiction to apply. Buyer and Supracor consent to the exclusive jurisdiction of, and venue in, the state court of Santa Clara County, California, U.S.A., or the federal court of the Northern District of California, U.S.A., except nothing shall restrict Supracor from seeking relief to protect its intellectual property rights in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
10. Excluded Applications: The Products shall not be used within any products where malfunction can reasonably be expected to result in personal injury or death, without the prior written consent of Supracor approving the specific use of the Product. Section 6.2 shall apply notwithstanding any such approval or consent provided by Supracor.
11. General: Buyer shall not assign or transfer these Terms or any rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Supracor. Any assignment in violation hereof shall be void. These Terms constitute the entire agreement between Supracor and Buyer, and supersedes all previous communications, course of dealing representations and agreements, whether oral or written, between Buyer and Supracor with respect to the subject matter hereof. These Terms may not be modified, supplemented, qualified, or interpreted except in writing signed by an authorized representative of Buyer and Supracor. The failure by Supracor to enforce at any time any of the provisions in these Terms will in no way be construed as a waiver of such provisions. If any provision of these Terms is unenforceable as written, the remainder of these Terms will remain in effect and the unenforceable provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of these Terms. The term "including" means “including without limitation".