These terms and conditions govern the sale of Products(“Product or Products”) and provisions of services (“Services”) by Zymbit Inc and its affiliates (“Seller”) as well as by third party vendors and/or service providers of Seller. These terms and conditions (“Agreement”) take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Neither Seller’s commencement of performance or delivery shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. Zymbit’s failure to object to conflicting or additional terms will not change or add to the terms of this agreement. Buyer’s acceptance of the Products and/or Services from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein. Seller is predominantly a business to business supplier. By ordering, the Buyer confirms that they are qualified professional who wish to obtain the Products for the purposes of its business and not as a consumer.
All orders placed by Buyer are subject to acceptance by Seller. All orders are non-cancelable, non- returnable (“NCNR”) Orders and may not be cancelled or rescheduled without Seller’s written consent. All orders must identify the products, unit quantities, part numbers, applicable prices and requested delivery dates of the Products being purchased. Unless otherwise agreed, Seller may in its sole discretion allocate Product among its Customers. The sale of such Products shall be subject to any special terms and conditions contained in Seller’s Order Acknowledgement, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere.
2. Taxes & Duties
Unless otherwise agreed to in writing by Seller, all prices quoted are Ex-works California USA and are exclusive of transportation and insurance costs, duties, and all taxes including federal, state and local sales, excise and value added, goods and services taxes, and any other 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. When applicable, transportation and taxes shall appear as separate items on Seller’s invoice.
Payment may be made by wire transfer, credit card or PayPal with all fees borne by the Buyer, unless agreed otherwise. Where Seller has extended credit to Buyer, terms of payment shall be net thirty (30) days from date of invoice, without offset or deduction unless otherwise noted. On any past due invoice, Seller may impose interest at the rate of two percent (2%) per month. If Buyer fails to make each payment when it is due, Seller reserves the right to change or withdraw credit and thereby suspend or cancel performance under any or all purchase orders or agreements in which Seller has extended credit to Buyer. In the event of default by Buyer, Seller shall be entitled to costs, fees, and expenses, including but not limited to recovery of attorney fees, court costs and fees, and collections costs.
Except as specifically set forth in this Section, Buyer may not cancel, reduce or reschedule any purchase order, and Buyer is liable for the entire Purchase Price of any and all purchase orders. Any cancellation of purchase orders for Products is subject to a charge one hundred (100%) of the total Purchase Price for such Products. In the event of any cancellation, Buyer shall have no rights in partially completed products.
5. Delivery and Title
All sales will be made Ex Works place of shipment. Title and risk of loss pass to the Buyer upon delivery of the Product to the carrier. Seller’s delivery dates are estimates only and Seller is not liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of the Seller, nor shall the carrier be deemed an agent of the Seller. A delayed delivery of any part of an Order does not entitle Buyer to cancel any delivery.
Seller may at any time, without incurring any liability to Buyer with respect to any previously placed purchase order, modify the specifications of Products sold by Seller and substitute Product units manufactured to such modified specifications, provided such modifications will not materially affect overall product form, fit or function.
7. Limited Warranty
Seller warrants to Buyer that Products delivered pursuant to this Agreement shall be free from defects in material and workmanship and substantially perform to Seller’s applicable published specifications for a period of one (1) year from the date of delivery to Buyer (“Warranty Period”). Such Warranty Period cannot be changed, altered, amended or extended without a formal written amendment signed by both parties’ authorized executives. Notwithstanding the foregoing, Seller makes no warranty for Product defects or non-conformities that in Seller’s reasonable opinion arise, in whole or in part, from: (i) use of any Product in an application for which it was not intended; (ii) misuse, abuse, improper handling, neglect, unusual physical, electrical or optical stress, improper installation, repair, testing, or any other cause beyond normal usage; (iii) the combination of any Product with any product not furnished or prescribed by Seller; (iv) any modification of any Product by a party other than Seller; (v) accident, fire or other hazard; or (vi) designs, specifications or other information or materials furnished to Seller by Buyer.
8. Limited Remedy
Seller’s sole liability and Buyer’s exclusive remedy shall be limited to, at Seller’s sole option, (i) repair or replacement of, or (ii) credit or refund for, within the applicable Warranty Period of any non-conforming Product of which Seller is properly notified pursuant to the provisions of this Section. Buyer shall give Seller written notice within 30 days of any alleged nonconformance with the limited warranty under Section 7 and shall provide Seller with all the necessary information and materials for Seller to diagnose and correct the problem. In order to return a Product that fails to conform to the limited warranty set forth in Section 7, Buyer shall (i) notify Seller in writing that such Product failed to conform with the warranty set forth in Section 7 and furnish a detailed explanation of any alleged nonconformity; (ii) obtain a Return Material Authorization (“RMA”) number for the nonconforming Product from Seller; and (iii) within thirty (30) days of receipt of the RMA number, return such Product to Seller, freight pre-paid, with the RMA number prominently enclosed inside the package AND clearly printed on the outside label, F.O.B. Seller’s manufacturing location as Seller will designate in the RMA. Seller agrees to reimburse Buyer for reasonable freight costs incurred in the return of a Product if Seller determines that the returned Product is defective and properly rejected by Buyer. Repair or replacement of a Product shall not extend the original Warranty Period for such Product. The remedies in this Section are the sole and exclusive remedies for breach of the limited warranties under this Agreement. Seller neither assumes, nor authorizes any other person to assume for it, any other obligations or liabilities in connection with the sale of any product.
9. Disclaimer of Warranties
Except as expressly set forth in Section 7, Seller specifically disclaims any and all other warranties and conditions, whether written or oral, express or implied, with respect to the products, including, without limitation, any implied warranties and conditions of merchantability, infringement or fitness for a particular purpose.
Buyer shall defend, indemnify and hold harmless, at its sole expense, Seller from and against any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses of litigation) arising out of or relating to any acts or omissions of Buyer or the use, distribution or sale of any Product, including without limitation, any representation, warranty, covenant or guarantee made by Buyer or its employees, agents, or representatives regarding the Products that are more protective of third parties than those provided to Buyer herein.
11. Intellectual Property
Seller retains all right, title and interest in and to the Products, including related designs, specifications and information, and any and all Intellectual Property Rights related to or derived from the Products or the manufacture, support, installation or use thereof. Nothing in this Agreement shall be construed to convey any rights in or to the Products, or any part thereof, to Buyer and Buyer hereby assigns, and shall assign, to Seller any and all Intellectual Property Rights, Buyer may have in or to the Products or the manufacture, support, installation or use thereof. “Intellectual Property Rights” shall mean all worldwide intellectual property rights, including without limitation all rights relating to patents, copyrights, mask work rights, trade secrets, confidential information, trademarks, service marks, trade dress, trade names and design patents.
12. Limitation of Liability
In no event shall Seller be liable for any special, indirect, incidental, consequential or punitive damages (including without limitation the cost of procurement of substitute goods, damages for loss of business, use, or profits), whether based in contract, statute, tort (including negligence) or other legal theory, arising in connection with this agreement or the use or performance of the products even if Seller has been advised of the possibility of such damages. Seller’s total liability to buyer or any third party for any claim or damages arising out of or relating to this agreement shall in no event exceed the purchase price paid by buyer for the products giving rise to such liability.
13. Export Control
Buyer warrants that it shall, at its sole expense, comply with any and all laws, regulations, orders, permits, prohibitions or other restrictions on the export and/or delivery of the Products, or information about the Products, which may be imposed at any time or from time to time by the United States Government, including without limitation, the Export Administration Act of 1979 (as amended), any successor legislation, and the Export Administration Regulations of the Bureau of Export Administration, Department of Commerce of the United States Government.
14. Use of Products
Unless otherwise noted, 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.
15. Force Majeure
Seller is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Buyer.
16. Technical Assistance or Advice
Unless otherwise agreed as part of a Service Agreement, any technical assistance or advice are offered or given to Buyer, such assistance or advice is given free of charge and only as an accommodation to Buyer. 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 or Services constitute a representation or warranty, express or implied.
(a) This Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of law provisions thereof, (b) Buyer may not assign this Agreement without the prior written consent of Seller. Seller or its affiliates may perform the obligations under this Agreement. This Agreement is binding on successor and assigns, (c) Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses.