Term & Conditions
PICKERING LABORATORIES, INC. (“SELLER”)
GENERAL TERMS AND CONDITIONS OF SALE (“T&C”)
1. Controlling Document.
These T & C’s and only these T & C’s apply to all goods sold and services provided by Seller to Buyer. By the placement of Buyer’s purchase order, Buyer consents to these T & C’s and no others.
2. Terms of Payment.
All payments are due and payable thirty (30) days from the date of the invoice. A service charge of 1 1/2% per month shall apply to all invoices not paid within 30 days.
3. Security Agreement.
(a) As security for Buyer’s payment, Buyer grants Seller a purchase money security interest in the specific goods for which payment is due.
Seller has the right to file a financing statement evidencing this security interest.
(b) This security interest shall terminate upon receipt by Seller of payment for the specific goods.
4. Delivery, Title and Risk of Loss.
Title to goods and risk of loss of goods shall pass to Buyer when Seller delivers such goods to a common carrier or Buyer’s agent. Delivery shall be EX Works Seller’s Factory. Delivery dates agreed to by Seller are approximate only. Seller shall not be liable for, nor shall Seller be in breach of its obligations to the Buyer because of any delivery made within a reasonable time after the stated delivery date. Seller may, by written notice to Buyer, change any delivery date, and such date shall become the agreed upon delivery date unless Buyer objects to such date in writing delivered to Seller within ten (10) days of receipt of Seller’s notice.
5. Force Majeure.
Seller shall not be liable for any failure to deliver, or delay in the delivery of, any goods or services due to any cause beyond its control, including but not limited to natural phenomena, government actions, fires, labor disputes, or inability to obtain components, energy, materials, manufacturing facilities, or transportation. In the event of such delay, the date of delivery or performance hereunder shall be extended by a period equal to the time lost by reason of such delay. In the event Seller’s production is curtailed for any of the above reasons, Seller may allocate its production to its various Buyers.
6. Seller’s Liability
If Buyer notifies Seller within 30 days after the date of invoice of a claimed defect, Buyer shall concurrently offer Seller an opportunity to investigate the claim and to inspect allegedly defective goods. Failure to offer Seller such opportunity shall constitute acceptance by Buyer and a waiver of all claims for defects .If Seller determines that Buyer’s claim is valid, Seller may repair the defective goods or replace the defective goods with conforming goods at the Seller’s Factory. Replacement of defective goods will only be made only upon return of the defective product…
7. Seller’s Remedies
If Buyer fails, with or without cause, to furnish Seller with specifications and/or instructions for, or refuses to accept deliveries of, any of the products sold under this contract, or is otherwise in default under or repudiates this contract or any other contract with Seller or fails to pay when due any invoice under this contract, then in addition to any and all remedies allowed by law, Seller without notice
(1) may deter shipment under this or any contract between Buyer and Seller until such default, breach or repudiation is removed and/or
(2) may cancel any undelivered portion of this and/or any other contract in whole or in part, Buyer remaining liable for damages.
8. Patent Indemnity.
(a) Seller shall, at its own expense, defend any suit that is instituted against Buyer to the extent such suit alleges that any goods, other than prototypes, or any part thereof sold or leased hereunder infringes on any United States patent, trademark, or copyright (except goods covered by Section 8(b) below), provided that such alleged infringement does not arise from any modification or addition to the goods by anyone other than Seller, or the use of such goods as a part of or in combination with any other device or parts or from the use of such goods to practice any method or process. Provided further that the Buyer gives Seller immediate notice in writing of any such suit and permits Seller, through counsel of its choice, to answer the charge of infringement and defend such suit; and the Buyer gives Seller all the needed information, assistance, and authority, at Seller’s expense, to enable Seller to defend or settle such suit. In the case of a final award of damages in any such suit, Seller shall pay such award but shall not be responsible for any settlement made without its prior written consent. In the event the use, lease, or sale of the goods is enjoined, Seller may at its own option and expense:
(1) procure for Buyer the right to use, lease, or sell such goods,
(2) replace such goods,
(3) modify such goods, or
(4) remove such goods and refund the purchase price paid by Buyer less a reasonable sum for use, damage, and obsolescence. THIS SECTION STATES SELLER’S TOTAL RESPONSIBILITY AND LIABILITY, AND THE BUYER’S SOLE REMEDY FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK, OR COPYRIGHT BY ANY GOODS DELIVERED HEREUNDER OR ANY PART THEREOF. THIS SECTION 8 IS IN LIEU OF AND REPLACES ANY OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT.
(b) The Buyer shall, at its own expense, indemnify and hold Seller harmless from and against any expense or loss resulting from any infringement of any patent, trademark, or copyright arising as a result of Seller’s compliance with any of the Buyer’s designs, specifications, or instructions, and shall defend at its own expense including attorney fees, any suit brought against Seller alleging any such infringements provided that Seller
(i) gives the Buyer immediate notice of any such suit and permits the Buyer through counsel of its choice, to defend such suit, and
(ii) gives Buyer all needed information, assistance, and authority, at the Buyer’s expense, necessary for the Buyer to defend any such suit.
9. Order Cancellation.
Buyer may, at any time, cancel its purchase of goods or services but only by paying 15% of the purchase price if such cancellation is received by Seller more than 90 days before the scheduled delivery date, 50% if received more than 45 days but less than 90 days, 75% if received more than 15 days but less than 45 days, and 100% if received less than 15 days.
10.Warranty and Limitation of Liability.
(1) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY LOSS PROFITS, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM SELLER’S PERFORMANCE OR FAILURE TO PERFORM HEREUNDER OR THE FURNISHING, PERFORMANCE, OR USE OF ANY GOODS OR SERVICES SOLD PURSUANT HERETO.
(2) IN NO EVENT SHALL THE AMOIJNT OF SELLER’S LIABILITY EXCEED THE AMOUNTS PAYABLE BY BUYER HEREUNDER.
(3) IN NO EVENT SHALL SELLER BE LIABLE FOR DAMAGES RELATING TO ANY INSTRUMENT, EQUIPMENT OR APPARATUS WITH WHICH THE GOODS SOLD HEREUNDER ARE USED
(4) SELLER EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDED BUT NOT LIMITED TO WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EXCEPT SUCH WARRANTIES EXPRESSLY IDENTIFIED AS WARRANTIES AS ARE SET FORTH IN SELLER’S CURRENT OPERATING MANUAL, CATALOG OR OTHER WRITTEN GUARANTY COVERING THE PRODUCT.
(a) The sale of goods shall be governed by Uniform Commercial Code and others laws of the State of California and Santa Clara County, California shall be the appropriate venue and jurisdiction for the resolution of disputes hereunder.
(b) The Buyer may not assign its rights or obligations under this acknowledgement without the prior written consent of Seller, and any purported assignment without such consent shall have no force or effect.
(c) Any waiver by Seller of any default by the Buyer hereunder shall not be deemed to be a continuing waiver of such default or a waiver of any other default or any of the terms and conditions of this acknowledgement.
(d) These T & C’s may not be superseded, modified, or amended except in writing stating that there is such a modification and signed by an authorized representative of each party hereto, provided, however that Seller may modify the specifications of the goods sold hereunder if such modification does not change the form, fit, or function of such goods.
(e) This document constitutes the entire terms and conditions agreement between the Buyer and Seller with regard to the goods or services purchased or provided and expressly supersedes and replaces any prior or contemporaneous agreements, written or oral relating to such goods or services.
(f) Any lawsuit, sounding either in contract or tort, must be filed within a year from the date of delivery of the goods/services to the Buyer.