STANDARD TERMS AND CONDITIONS OF SALE—Version March 15, 2012
Opto Diode Corp., a division of Illinois Tool Works Inc., is herein referred to as “Seller” and the customer or person or entity purchasing goods from Seller is referred to as the “Buyer”. Seller reserves the right in its sole discretion to refuse orders. Purchase orders, if accepted by Seller, are accepted subject to the terms and conditions set forth herein. SELLER HEREBY REJECTS ANY TERM, CONDITION AND/OR PROVISION (HEREAFTER TERMS) PROPOSED BY BUYER, WHETHER OR NOT CONTAINED IN ANY OF BUYER’S PURCHASE ORDERS, BUSINESS FORMS OR ON BUYER’S WEBSITE, WHICH IS IN ANY WAY INCONSISTENT WITH OR IN ADDITION TO THESE TERMS AND SUCH TERMS PROPOSED BY BUYER SHALL NOT BE APPLICABLE HERETO OR BINDING UPON SELLER. IN ADDITION, NO SITE USAGE AGREEMENT OR ANY OTHER CLICK THROUGH AGREEMENT ON A WEBSITE WILL HAVE ANY APPLICABILITY OR BINDING EFFECT WHETHER OR NOT SELLER CLICKS ON AN “OK,” “I ACCEPT,” OR SIMILAR ACKNOWLEDGMENT. IF BUYER OBJECTS TO ANY TERMS HEREIN, SUCH OBJECTION MUST BE IN WRITING AND RECEIVED BY SELLER AT THE ADDRESS STATED ON THE FACE HEREOF PRIOR TO COMMENCEMENT OF PERFORMANCE BY SELLER. RETENTION BY BUYER OF ANY ITEMS DELIVERED BY SELLER HEREUNDER SHALL BE CONCLUSIVELY DEEMED ACCEPTANCE OF THE TERMS HEREOF. SELLER’S FAILURE TO OBJECT TO TERMS CONTAINED IN ANY COMMUNICATION FROM BUYER WILL NOT BE A WAIVER OF THE TERMS HEREOF.
1. TAXES. Prices do not include any taxes, import duties or like charges now or hereafter enacted, applicable to the goods sold or this transaction, which taxes will be added by Seller to the sales price where Seller is required by law to collect the same, and will be paid by Buyer unless Buyer provides Seller with a proper tax-exemption certificate.
2. PRICES AND RELEASES. Prices apply only if the quantity ordered hereunder is released within twelve (12) months and shipments scheduled no more than eighteen (18) months from the date Seller received Buyer’s order, otherwise, Seller’s standard prices in effect on such shipment date for the quantity actually shipped shall apply, and Buyer shall pay the difference in price, if any.
3. TITLE AND DELIVERY. All shipments of goods shall be delivered ExWorks Seller’s plant and title and liability for loss or damage thereto shall pass to Buyer upon Seller’s tender of delivery of the goods to a carrier for shipment to Buyer, and any loss or damage thereafter shall not relieve Buyer from any obligation hereunder. For international shipments Buyer shall be responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required at port of entry and destination. Seller may deliver the goods in installments. Shipping dates are approximate only. Seller shall not be liable for any loss or expense (consequential or otherwise) incurred by Buyer if Seller fails to meet the specified delivery schedule because of unavoidable production or other delays.
4. QUANTITIES. Any variation in quantities of electronic components shipped over or under the quantities ordered (not to exceed three percent (3%) for electronic components) shall constitute compliance with Buyer’s order and the unit price will continue to apply.
5. TERMS AND METHOD OF PAYMENT. Where Seller has extended credit to Buyer, terms of payment shall be net thirty (30) days from date of invoice. The amount of credit or terms of payment may be changed or credit withdrawn by Seller at any time. If the goods are delivered in installments, Buyer shall pay for each installment in accordance with the terms of payment hereof. Payment shall be made for the goods without regard to whether Buyer has made or may make any inspection of the goods. If shipments are delayed by Buyer, payments are due from the date when Seller is prepared to make shipments. Goods held for Buyer are at Buyer’s sole risk and expense.
6. CONTIGENCIES. Seller shall be excused from performance and shall not be liable for any delay in delivery or for nondelivery, in whole or in part, caused by the occurrence of any contingency beyond the control either of Seller or Seller’s suppliers, including but not limited to, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, affecting the terms of this contract or otherwise, judicial action, labor dispute, accident, fire, explosion, flood, storm or other act of God, shortage of labor, fuel, raw material or machinery or technical or yield failure where Seller has exercised ordinary care in the prevention thereof. If any contingency occurs, Seller may allocate production and deliveries among Seller’s customers.
7. WARRANTIES. THE FOLLOWING ARE IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER WARRANTY OBLIGATION ON THE PART OF SELLER.
Seller, except as otherwise hereinafter provided, warrants the goods against faulty workmanship or the use of defective materials and that such goods will conform to mutually agreed upon written specifications, drawings, and other descriptions for a period set forth in the schedule below (“Warranty Period”). Seller warrants that at the time of delivery Seller has title to the goods free and clear of any and all liens and encumbrances. These warranties are the only warranties made by Seller and can be amended only by a written instrument signed by an officer of Seller.
A. Processed semiconductor chips and slices – sixty (60) day Warranty Period. All other electronic components – one (1) year Warranty Period.
B. All other electronic components – one (1) year Warranty Period.
Continued use or possession of the goods after expiration of the applicable Warranty Period stated above shall be conclusive evidence that the warranty is fulfilled to the full satisfaction of Buyer.
Seller’s warranties as hereinabove set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of Seller’s rendering of technical advice or service in connection with Buyer’s order of the goods furnished hereunder.
Seller’s warranties as hereinabove set forth shall not apply to (a) goods that have been altered by any party other than Seller; (b) goods that have been improperly installed, operated or repaired, or misused or neglected; (c) goods that have not had reasonable and necessary maintenance, or (d) goods which have been used for operation outside of the specifications for the goods.
8. REMEDIES AND DAMAGES. If Seller breaches its warranties as contained in paragraph 7 herein, Seller’s sole and exclusive liability and Buyer’s sole and exclusive remedy shall be (at Seller’s option) to repair, replace or credit Buyer’s account for any such goods which are returned by Buyer during the applicable Warranty Period, provided that (a) Seller is promptly notified in writing upon discovery by Buyer that such goods failed to conform to this contract with a detailed explanation of any alleged deficiencies; (b) such goods are returned to Seller, ExWorks Seller’s plant from which goods were shipped; and (c) Seller’s examination of such goods shall disclose that such alleged deficiencies actually exist and were not caused by accident, misuse, neglect, alteration, improper installment, unauthorized repair or improper testing. If such goods fail to conform to the warranty Seller shall reimburse Buyer for the transportation charges paid by Buyer for such goods. If Seller elects to repair such goods, Seller shall have a reasonable time to make such repairs or replace such goods.
SELLER’S SOLE AND EXCLUSIVE MAXIMUM LIABILITY IN CONNECTION WITH THIS CONTREACT SHALL NOT IN ANY EVENT EXCEED TOTAL CONTRACT PRICE SPECIFIED HEREIN LESS THE PURCHASE PRICE FOR ANY ITEMS DELIVERED AND ACCEPTED HEREUNDER.
IN NO EVENT SHALL SELLER BE LIABLE TO ANYONE FOR SPECIAL, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF ANY OF THE PROVISIONS OF THIS CONTRACT, INCLUDING WITHOUT LIMITATION, PROVISIONS REGARDING WARRANTIES, GUARANTEES, INDEMNITIES AND PATENT INFRINGEMENT, SUCH DAMAGES TO INCLUDE BUT NOT BE LIMITED TO, COSTS OF REMOVAL AND INSTALLATION OF ITEMS, LOSS OF GOOD WILL, LOSS OF PROFITS, OR LOSS OF USE.
9. LEGAL COMPLIANCE. Buyer at all times shall comply with all applicable federal, state and local laws and regulations. THE PRODUCTS COVERED BY THIS CONTRACT MAY FALL WITHIN THE GROUP OF “STRATEGIC” ELECTRONIC PRODUCTS THAT ARE WHOLLY OR PARTLY OF U.S. ORIGIN OR TECHNOLOGY, THE EXPORT OF WHICH IS SUBJECT TO EXPORT LICENSE CONTROL BY THE U.S. GOVERNMENT. THEREFORE, PRIOR TO EXPORTATION YOU (BUYER) ARE REQUIRED TO OBTAIN ANY LICENSES WHICH MAY BE REQUIRED UNDER THE APPLICABLE LAWS OF THE U.S. INCLUDING THE EXPORT ADMINISTRATION ACT AND REGULATIONS.
10. OWNERSHIP OF INTELLECTUAL PROPERTY. All drawings, know-how, designs, specifications, inventions, devices, developments, processes, patents, trademarks, trade names, service marks, copyrights and other information or intellectual property disclosed or provided to Buyer by Seller and all rights therein (collectively, “Intellectual Property”) will remain the property of Seller and will be kept confidential by Buyer in accordance with these terms. Buyer shall have no claim to, nor ownershipinterest in, any Intellectual Property, Buyer acknowledges that no license or rights of any sort are granted to Buyer hereunder in respect of any Intellectual Property, other than the limited right to use the Seller’s proprietary goods purchased from Seller.
11. CONFIDENTIALITY. All non-public, confidential or proprietary information furnished or made available by Seller to Buyer in connection with the subject matter of this contract shall be held in confidence by Buyer. Buyer agrees not to use such information or disclose such information to others without Seller’s prior written consent. Such information, in whatever form and any copies thereof, shall be promptly returned to Seller upon written request from Seller. The obligations in this paragraph will not apply to any information that: (a) at the time of disclosure was or thereafter becomes, generally available to the public by publication or otherwise through no breach by Buyer of any obligation herein; (b) was in Buyer’s possession prior to disclosure by Seller; (c) is legally made available to Buyer by or through a third party having no direct or indirect confidentiality obligation to Seller with respect to such information; (d) is independently developed by Buyer without reference to Seller’s confidential information; or (e) is required to be disclosed pursuant to a court order or governmental agency or other legally compelled disclosure.
12. PATENT INDEMNITY. Seller shall defend any suit or proceeding brought against Buyer insofar as such suit or proceeding is based on a claim that any goods manufactured and supplied by Seller to Buyer constitute direct infringement of any duly issued patent and Seller shall pay all damages and cost finally awarded therein against Buyer, provided that Seller is promptly informed and furnished a copy of each communication, notice or other action relating to the alleged infringement and is given authority, information and assistance (at Seller’s expense) necessary to defend or settle said suit or proceeding. Seller shall not be obligated to defend or be liable for costs and damages if the infringement arises out of compliance with Buyer’s specifications, or from a combination with, an addition to, or a modification of the goods after delivery by Seller, or from use of the goods, or any part thereof, in the practice of a process or from the use of the goods other than for their intended use or purpose. Seller’s obligations hereunder shall not apply to any infringement occurring after Buyer has received notice of such suit or proceeding alleging the infringement unless Seller has given written permission for such continuing infringement.
If any goods manufactured and supplied by Seller to Buyer shall be held to infringe any duly issued patent and Buyer shall be enjoined from using the same, Seller will exert its best efforts, at its option and its expense, (a) to procure for Buyer the right to use such goods free of any liability for patent infringement or (b) to replace such goods with a noninfringing substitute otherwise complying substantially with all the requirements of this contract or (c) refund the purchase price and the transportation costs of such goods.
If the infringement by Buyer is alleged prior to completion of delivery of the goods under this contract, Seller may decline to make further shipments without being in breach of this contract, and provided Seller has not been enjoined from selling said goods to Buyer, Seller agrees to supply said goods to Buyer at Buyer’s option, whereupon the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer.
If any suit or proceeding is brought against Seller based on a claim that the goods manufactured by Seller in compliance with Buyer’s specifications and supplied to Buyer directly infringe any duly issued patent, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer. The sale by Seller of the items ordered hereunder does not grant to, convey or confer upon Buyer or Buyer’s customers, or upon anyone claiming under Buyer, a license, express or implied, under any patent rights of Seller covering or relating to any combination, machine or process in which said items might be or are used.
THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF THE PARTIES HERETO FOR PATENT INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, IN REGARD THERETO.
13. TERMINATION AND CANCELLATION.
A. Seller reserves the right to cancel this contract in whole or, from time to time, in part upon thirty days advance written notice to Buyer.
B. Buyer may terminate or modify this contract in whole or, from time to time, in part upon thirty (30) days advance written notice to Seller. In such event, Buyer shall be liable for termination or modification charges which shall include a price adjustment based on the quantity of goods actually delivered, and all costs, direct and indirect, incurred and committed for this contract or in connection with the modification, as applicable, together with a reasonable allowance for prorated expenses and anticipated profits. In the event of termination, Buyer shall be liable for a minimum termination charge of ten percent (10%) of the dollar amount of sales terminated.
C. Unless otherwise specified on the face hereof, all quantities must be released no more than twelve (12) months and shipments scheduled no more than eighteen (18) months from the Seller’s receipt of Buyer’s purchase order, otherwise this contract may be cancelled by Seller and Buyer shall be liable for termination charges as provided herein.
D. If in Seller’s judgment, Buyer’s financial condition does not justify the terms of payment specified herein. Seller may cancel this contract unless Buyer shall immediately pay for all goods which have been delivered and pay in advance for all goods to be delivered.
14. NONWAIVER OF DEFAULT. In the event of any default by Buyer, Seller may decline to make further shipments. If Seller elects to continue to make shipments or otherwise fails to insist upon strict compliance of these terms by Buyer, Seller’s actions shall not constitute a waiver of any default by Buyer or in any way affect Seller’s legal remedies for any such default.
15. APPLICABLE LAW. The validity, performance and construction of this contract shall be governed by the federal laws of the United States of America and the State laws of the State of California.
16. U.S. GOVERNMENT CONTRACT. If the goods to be furnished under this contract are to be used in the performance of a U.S. Government contract or subcontract and a U.S. Government contract number shall appear on Buyer’s purchase order, those clauses of the applicable U.S. Government procurement regulation which are mandatorily required by Federal Statute to be included in U.S. Government subcontracts shall be incorporated herein by reference.
17. ASSIGNMENT. This contract shall be binding upon and inure to the benefit of the parties and the successors and assigns of the entire business and good will of either Seller or Buyer, or of that part of the business of either used in the performance of this contract, but shall not be otherwise assignable by Buyer.
18. MODIFICATION. THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES RELATING TO THE SALE OF THE GOODS DESCRIBED ON THE FACE HEREOF AND SUPERSEDES ALL PREVIOUS COMMUNICATIONS, REPRESENTATIONS OR AGREEMENTS, EITHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF AND NO REPRESENTATIONS OR STATEMENTS OF ANY KIND MADE BY ANY REPRESENTATIVE OF SELLER, WHICH ARE NOT STATED HEREIN, SHALL BE BINDING ON SELLER. NO ADDITION TO OR MODIFICATION OF ANY PROVISION UPON THE FACE OR REVERSE OF THIS CONTRACT SHALL BE BINDING UPON SELLER UNLESS MADE IN WRITING AND SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF SELLER LOCATED IN NEWBURY PARK, CALIFORNIA. NO COURSE OF DEALING OR USAGE OF TRADE OR COURSE OF PERFORMANCE SHALL BE RELEVANT TO EXPLAIN OR SUPPLEMENT ANY TERM EXPRESSED IN THIS CONTRACT.
19. SEVERABILITY. If any provision herein shall be held to be unlawful or unenforceable, the remaining provisions herein shall remain in full force and effect.