NextInput, Inc. Terms and Conditions of Sale
A. The term “Seller” means NextInput, Inc., and/or its present and future subsidiaries. The term “Buyer” means the third party placing the purchase order.
B. No contractual relationship between Seller and Buyer will arise until such time as Buyer has placed an order which has been accepted by Seller.
C. Stenographic and clerical errors are subject to correction.
D. Subject to the provisions hereof, all quotes submitted are firm for 30 days from the date of the quotation unless indicated differently on the face of the quotation or withdrawn earlier by written notice. Alterations or changes of quotations not acknowledged and confirmed acceptable by the buyer within 30 days from the quotation date may be made at the discretion of Seller without notice.
E. Orders are subject to all of Seller’s Standard Terms and Conditions printed below.
1. SCOPE: The terms and conditions of sale contained herein, and as amended by Seller from time to time, apply to Seller’s quotations and purchase orders placed by Buyer on Seller. These terms and conditions may in some instances conflict with some of the terms and conditions on Buyer’s form of purchase order or otherwise specified by the Buyer or these terms and conditions may cover matters not addressed in Buyer’s documentation. Therefore, acceptance of the Buyer’s order is made only on the express understanding and condition that insofar as the terms and conditions of this acceptance conflict with any terms and conditions of the Buyer’s order or cover matters not addressed in Buyer’s documentation, Seller’s terms and conditions govern, irrespective of whether the Buyer accepts these conditions by a written acknowledgment, by implication, or by acceptance and payment for goods ordered. Seller’s failure to object to provisions contained in any communication from Buyer will not be deemed a waiver of the provisions of this acceptance. Any changes from the terms and conditions of sale contained herein must be specifically agreed to in writing by an authorized officer of Seller before becoming binding on the Seller. All orders or contracts must be approved and accepted by the Seller at its head office at 980 Linda Vista Avenue, Mountain View, CA. From time to time, Seller may accept certain of Buyer’s terms and conditions of sale by signing Buyer’s proposed sale agreement. If such acceptance is preceded or accompanied by Seller’s interpretation of Buyer’s terms and conditions, such interpretation shall control the construction or interpretation of the meaning of Buyer’s terms and conditions.
2. PRICES: Irrespective of any prices quoted by Seller or listed on Buyer’s order, an order is accepted only at the prices shown on Seller’s acknowledgment.
Prices listed on Seller’s quotation, and subsequent purchase order acknowledgment, are firm and not subject to audit or price redetermination or renegotiation, except that at Seller’s sole discretion any and all prices are subject to adjustment either directly or by the addition of a precious metals surcharge in order to cover the cost of precious metals utilized by Seller in supplying goods.
If Buyer fails to take delivery hereunder of the quantity of goods upon which a quantity discount price, if any, is based, Buyer will be back-billed an amount based upon the quantity actually delivered hereunder and upon the quantity pricing schedule in effect at the time the order was placed. Such charges shall be in addition to any cancellation charges.
Prices apply only if the quantity ordered hereunder is released within 12 months and shipments scheduled no more than 12 months from the date Seller received Buyer’s order. Otherwise, Seller’s standard prices in effect on the date of receipt by Buyer of the quantity actually shipped apply, and Buyer shall pay the difference in price, if any.
3. TERMS AND METHOD OF PAYMENT: Unless expressly specified otherwise on the Seller’s sales confirmation, where Seller has extended credit to Buyer, terms of payment shall be net 30 days from the date of Seller’s invoice. All payments shall be in U.S. Dollars unless otherwise agreed in writing. Buyer will be charged 1.5% per month (but not more than is permitted under applicable law) on overdue accounts. If Buyer fails to make payment for goods delivered as herein provided, or if, in Seller’s opinion, a change in Buyer’s financial condition or other circumstances has created reasonable concerns as to Buyer’s credit worthiness, Seller may at any time limit or cancel the credit of Buyer as to time and amount and may demand payment in cash before delivery of any part of the goods. On any order on which credit is not extended by Seller, shipment or delivery shall be made at Seller’s election. Payment must be made for the goods without regard to whether Buyer has made or will make any inspection of the goods.
4. INSPECTION: Buyer shall notify Seller upon receipt of goods of all discoverable defects, including quantity shortages, incorrect product, and visible defects, but no later than 30 days of receipt. No return of goods will be accepted by Seller without a Return Material Authorization (“RMA”) Number and returned goods must be in original manufacturer’s shipping cartons complete with all packing materials. In the event that Buyer does not either complete final inspection and accept the goods or present a rejection notice to Seller in writing within 30 days of delivery, the goods shall be conclusively deemed accepted. At that time, Buyer’s only recourse or remedy for non-conforming or defective goods shall be Seller’s standard warranty. Buyer’s inspection and/or acceptance tests shall not exceed the inspection and/or test procedures customary in the industry for the goods furnished and is at Buyer’s expense.
5. SELLER WARRANTY: Seller warrants to Buyer that goods sold hereunder that are standard products of Seller will conform to the applicable Seller Specifications and be free from defects caused by defective material and faulty workmanship for a period of one (1) year from date of shipment to Buyer. For goods that are not standard products of Seller, such as developmental or custom-designed goods, Seller warrants to Buyer that such goods delivered hereunder will conform to the applicable published NextInput datasheet specification and be free of defects in material and faulty workmanship upon receipt by Buyer. “Specification” as used herein shall mean the guaranteed minimum and maximum levels set forth in Seller’s published datasheets in effect at time of sale. Seller further warrants that at time of delivery, Seller has free and clear title to the goods without liens and encumbrances.
SELLER MAKES NO WARRANTY OR GUARANTEE WHATSOEVER WITH RESPECT TO SALES OR ORDERS FOR NONSTANDARD, SUB-GRADE GOODS OR PURCHASES THROUGH UNAUTHORIZED SALES CHANNELS. GOODS SOLD UNDER SUCH SALES OR ORDERS ARE FURNISHED “AS IS” AND “WITH ALL FAULTS.”
Seller’s sole and maximum liability for breach of its warranties herein is limited to the obligation, at Seller’s sole discretion to rescreen, reprocess or provide replacement goods, or credit Buyer’s account, any goods delivered hereunder which either become defective or fail to meet the applicable specifications during the warranty period and which are found by Seller to be defective under the terms of this warranty, provided that (a) Seller is notified in writing by Buyer within 30 days after discovery of defects or failure to meet Specifications; (b) Buyer obtains a Return Material Authorization Number from Seller prior to returning any defective goods to Seller; (c) the defective goods are returned to Seller, transportation charges prepaid by Buyer (provided, however, that if upon examination by Seller, it determines that the goods are entitled to this warranty, then Seller shall be responsible for all transportation charges to and from Seller’s facility); (d) the defective goods are received by Seller for adjustment no later than four (4) weeks following the last day of the warranty period; and (e) Seller’s examination of such goods shall disclose that such defects or failures have not been caused by misuse, abuse, neglect, improper installation or application, repair, alteration, damage by rain, fire or casualty or by accident or negligence in use, storage, transportation or handling. In addition, Seller shall have no liability to Buyer to the extent such failure is caused by non-compatibility with other components used by Buyer. In the event that anyone or more of the foregoing conditions is not satisfied, Seller shall have no liability under this warranty whatsoever. Buyer has an obligation to mitigate any damages related to integration of defective or non-conforming Parts. If Buyer has knowledge that such goods are defective or non-conforming or Seller has advised Buyer that goods are defective or non-conforming and in either event Buyer integrates such defective goods, Seller shall have no liability to Buyer for any damages incurred by Buyer as a result. In the event that the foregoing exclusive remedy under this warranty is determined upon judicial review to have failed in its essential purpose through no fault of Buyer, the alternate exclusive remedy shall be the refund of the purchase price of the non-conforming or defective goods. Any repairs to or alterations on the goods shipped hereunder must be authorized in writing by Seller to prevent voiding Seller’s warranty.
Seller’s goods may be prohibited for shipment to certain countries, entities or individuals under U.S. export regulations. Seller is not liable to Buyer for any delays or failure to obtain the necessary export license.
SELLER’S OBLIGATION TO HONOR THESE WARRANTIES IS CONTINGENT UPON SELLER’S RECEIPT OF ON-TIME PAYMENT IN FULL FOR THE GOODS ENTITLED TO THIS WARRANTY. SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATION OR WARRANTY OTHER THAN AS PROVIDED ABOVE.
THE FOREGOING STATES THE ENTIRE WARRANTY LIABILITY OF SELLER.
6. BUYER WARRANTY: Acceptance of goods is a warranty by Buyer that Buyer is solvent as of the date of shipment. With respect to goods delivered hereunder, Buyer agrees to accept responsibility for (i) their selection to achieve Buyer’s intended results, (ii) their use, (iii) the results obtained therefrom and (iv) the selection of, use of and results obtained from any equipment, programs or services not provided by Seller and used in connection with goods delivered hereunder. Buyer further warrants that it is buying for its own internal use and not for resale, unless otherwise agreed between Buyer and Seller under separate written agreement.
7. INFRINGEMENT: With respect to goods manufactured solely to Seller’s designs and specifications, Seller shall defend any suit or proceeding brought against Buyer insofar as such suit or proceeding is based on a claim that any such goods furnished hereunder infringe any patent(s), copyright(s) or trademark(s), or for misappropriation or use of any trade secret(s), or for unfair competition, if Seller is notified promptly in writing of such suit or proceeding and is given full and complete authority, information and assistance by Buyer for such defense. Seller shall pay all damages and costs finally awarded against Buyer in any such suit or proceeding, but Seller shall not be responsible for any compromise thereof made by Buyer without the written consent of Seller. If infringement is alleged prior to the completion of delivery of the goods, Seller may decline to make further shipments without being in breach of any agreement. In the event that such goods are held in such suit or proceeding to be infringing and their use is enjoined, or if in the opinion of Seller such goods are likely to become the subject of a claim of infringement, Seller at its sole discretion and at its own expense, may either (a) procure for Buyer the right to continue using such goods; (b) modify such goods so that they become non-infringing; (c) replace such goods with non-infringing goods; or (d) accept the return of such goods, granting Buyer a refund or credit equal to the depreciated value. Seller’s obligations hereunder shall not apply to any alleged infringement occurring after Buyer has received notice of such alleged infringement unless Seller thereafter gives to Buyer written consent for such continuing alleged infringement.
Any provision herein to the contrary notwithstanding, Seller shall have no obligation to Buyer (to defend or make any payment to or for Buyer) for any infringement, misappropriation or misuse claimed by any third party or parties if any such claim arises, in whole or in part, (a) as a result of a modification of the goods not introduced or approved by Seller; or (b) as a result of the interconnection or use of the goods in combination with goods or other devices or with a manufacturing or other process; or (c) the use of the goods in other than an application recommended by Seller or (d) compliance with Buyer’s design, specifications and/or instructions. If Buyer alleges intellectual property infringement against a third party pursuant to Buyer’s intellectual property portfolio and as a result the alleged infringement cross claims against Buyer alleging among other things infringement by goods manufactured by Seller, Seller’s liability for the resulting attorney fees and costs will be proportional to the extent to which Seller’s goods, as opposed to third party goods, are found to have infringed third party intellectual property rights.
With respect to goods manufactured to Buyer’s designs or specifications, Buyer shall defend any suit or proceeding brought against Seller, either severally or jointly with Buyer, insofar as such suit or proceeding is based on a claim, that any such goods furnished hereunder infringe (either direct or contributory) any patent(s), copyright(s), or trademark(s), or for misappropriation or use of any trade secret(s) or for unfair competition, arising from (i) compliance with Buyer’s designs, specifications, or instructions; (ii) the use of any item or any part thereof, furnished hereunder, in combination with goods not supplied by Seller, or (iii) in connection with a manufacturing or other process utilizing any item, or part thereof, furnished hereunder. Seller shall notify Buyer promptly in writing of such suit or proceeding and give Buyer full and complete authority, information and assistance for such defense. Buyer shall pay all damages and costs finally awarded against Seller in any such suit or proceeding, but Buyer shall not be responsible for any compromise thereof made by Seller without the written consent of Buyer.
Buyer agrees not to infringe on Seller’s intellectual property with respect to any equipment, component, software, or other items delivered to the Buyer by the Seller. Buyer shall not reverse engineer, disassemble, decompile, decapsulate, cross-section or otherwise analyze the physical construction of, any such items nor assist and/or commission a 3rd party to perform any such activity outlined above.
THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF THE PARTIES HERETO FOR INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT THERETO.
8. NO LICENSE: Goods or any parts thereof sold hereunder may be protected by intellectual property rights of Seller, including, but not limited to, rights under issued and pending patents, mask work rights, copyright rights, trademark rights and trade secret rights. Neither the sale of goods or any parts thereof hereunder nor the provision by Seller of any supporting or related documentation, technical information or advice shall confer on Buyer any license, express or implied, under any intellectual property rights of Seller covering or related to (i) apparatus or circuits in which the goods or parts thereof may be used; (ii) a process, machine, use or application in connection with which the goods or parts hereof may be used; (iii) the process of their manufacturer; or (iv) a combination in which the goods or parts hereof may be used.
9. TAXES: Any tax or government charge by any federal, state or municipal government applicable to the goods sold hereunder now imposed or hereafter becoming effective during the term of any contract made hereunder, except for Seller’s franchise taxes and taxes on Seller’s net income, shall be added by Seller to the sales price where Seller has the legal obligation to collect or pay same, and shall be paid by Buyer unless Buyer provides Seller with a proper tax-exemption certificate. Buyer shall pay any duties, levies, taxes, brokerage fees or customs fees imposed in the Buyer’s country to shipments made under this contract.
10. TITLE AND DELIVERY:
A. For shipments outside of the United States, Seller shall make the goods available at its shipping dock for pickup by Buyer or Buyer’s designee (EX WORKS – INCOTERMS 2010), unless otherwise agreed, and Buyer shall be responsible for all shipping charges, including freight, insurance, taxes, import duties and any other related charges. In instances where the parties determine that Seller shall select the method of transportation and the carrier, unless otherwise stipulated by Seller in the applicable sales order acknowledgement or other shipping documentation, (i) Seller shall pay for the freight charges to bring the goods to the named destination; provided that Buyer shall reimburse Seller for all(or a portion of)such costs asset for the applicable invoice issued by Seller to Buyer,(ii) Buyer shall pay for all insurance, taxes, import duties and any related charges, and (iii) Buyer shall be responsible for carrying out all customs formalities to import the goods, including acting as importer of record and paying any applicable costs and expenses incurred in connection there with. In any event, title and risk of loss transfer to Buyer when Seller sends the goods to a common carrier at the Seller designated location for shipment to Buyer.
B. For shipments to the United States, Seller shall make the goods available at its shipping dock for pickup by Buyer or Buyer’s designee (EX WORKS – INCOTERMS 2010) and, unless otherwise stipulated by Seller in the applicable sales order acknowledgement or other shipping documentation, (i) Buyer shall select the method of transportation and the carrier, and (ii) Buyer shall be responsible for all shipping charges, including freight, insurance, taxes, import duties and any other related charges. Title and risk of loss transfer to Buyer when Seller tenders the goods to a common carrier at the Seller designated location for shipment to Buyer.
11. SOFTWARE: “Software” as used herein means goods that are software, including, without limitation, software embedded in Seller goods, stand-alone software and downloadable software. Customer acknowledges that such software is proprietary, copyrighted and may be protected by patents. All Software is licensed to Buyer, subject to a license agreement, and title to Software remains with the applicable licensor (s). Buyer agrees to be bound by such license agreement in addition to these terms and conditions of sale. Buyer shall not duplicate, disassemble, decompile, reverse engineer, modify, create derivative works, or otherwise change Software or its form except to the extent it is permitted by law. Software incorporated in or packaged with Seller hardware goods shall be used solely by Buyer for the use of the hardware goods as authorized by Seller, and Buyer shall have no other rights with respect to such Software, unless otherwise stated in the Software License Agreement (“SLA”).
12. DELIVERY SCHEDULE: Buyer understands that any delivery schedule set forth herein or in any subsequent order or release is estimated only and is presented in good faith by Seller. Seller will use commercially reasonable efforts to initiate shipment and schedule delivery as close as possible to Buyer’s requested delivery schedule but shall not be liable to Buyer for failure to meet any delivery schedule or for the costs or procurement of substitute goods. Seller reserves the right to make deliveries in installments. Delivery of a quantity that varies from the quantity specified in Buyer’s order shall not relieve Buyer of its obligation to accept delivery and pay for the goods ordered. Delays or changes in schedules due to Buyer directed actions are subject to price adjustments.
Seller reserves the right to allocate production and deliveries among its various customers under any circumstances.
Buyer will be deemed to have waived any and all claims for shipments containing less than the number of goods indicated on the shipping documents unless written notice of such claims is received by Seller within 30 days after receipt of shipment.
13. CANCELLATIONS: No cancellations or reschedules will be accepted within 30 days of the earliest requested ship date. All cancellations and reschedules of orders by the Buyer greater than 30 days may result in a charge to Buyer. Any such charge will be determined by the Seller based on such factors as whether the product was manufactured specifically for Buyer, Seller’s ability to change its production schedule within the period of the notice provided by Buyer, whether Seller acquired or allocated particular supplies or equipment to meet Buyer’s order, etc.
14. NON-WAIVER DEFAULT: Each shipment made under any order will be treated as a separate sale and transaction, but in the event of any default by Buyer, if Seller elects to continue to make shipment, its action will not constitute a waiver of any default by Buyer or in any way affect Seller’s legal remedies for any such default.
15. FORCE MAJEURE: Seller shall not be liable for delay in performance or failure to perform in whole or in part the terms of this Agreement due to causes beyond the reasonable control of Seller, including, without limitation, strike, labor disputes, shortages of material, war, riot or civil commotion, acts of the public enemy, insurrection, sabotage, or fire, earthquakes, flood or other acts of God. The period for performance for the party affected by such a cause shall be extended by the duration of the condition, provided, however, if any such delay shall continue for more than 120 days from the start of the cause of delay, the quantities undelivered during such period of delay or to be delivered, may be canceled at Seller’s election without liability of Seller to Buyer by written notice to Buyer at any time.
16. ASSIGNS: Any contract made hereunder is binding upon and inure to the benefit of 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 such contract but is not otherwise assignable. Seller may subcontract any part of the work or services to be provided hereunder as Seller deems necessary. Buyer affirms that there exists no third-party beneficiaries to Buyer’s rights hereunder unless Buyer specifically identifies such beneficiary on the face of Buyer’s order or Buyer’s acceptance of Seller’s quotation.
17. MODIFICATION OF STANDARD TERMS AND CONDITIONS: No addition to or modification of any of the provisions herein or upon the face or reverse of any order shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller located in Mountain View, California, U.S.A.
18. LAW: This Agreement is governed by and construed under the laws of the State of California and the United States without regard to conflicts of laws provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. The sole jurisdiction and venue for actions related to the subject matter hereof is the state and U.S. federal courts in the State of California, located in Santa Clara County, California, U.S.A.
19. EXPORT CONTROL: Buyer acknowledges that Seller will provide Buyer with technical data/technology, services, and/or, products, in finished or unfinished state that may be subject to U.S. export controls under the laws and regulations of the United States (collectively “Export Controlled Technology”). U.S. export control laws and regulations include, but are not limited to, the International Traffic in Arms Regulations (“ITAR”), 22 C.F.R. §§ 120 et seq., and/or the Export Administration Regulations, 15 C.F.R. §§ 730 et seq. Buyer warrants and agrees that it shall not export or reexport any Export Controlled Technology or any technical data/technology or product derived from the Export Controlled Technology, except pursuant to a U.S. government license or other approval, or upon determination that such export may be lawfully exported without prior approval under a license exception, exemption, or other authority. Buyer acknowledges and understands that Seller may need to apply for export licenses in order to ship Export Controlled Technology to Buyer. Buyer agrees to provide such information, assurances, documentation or take such other steps as necessary to assist Seller in obtaining any export licenses, including, but not limited to, execution of end-user certifications, document marking, and supplemental agreements with respect to control and handling of Export Controlled Technology. Incompliance with U.S. regulations regarding Technology and Software under Restriction (“TSR”), Buyer hereby agrees that, without express approval of Seller (pursuant to issuance of an export license from the Bureau of Industry and Security), Buyer will not reexport or release any technology, direct product of the technology, software, or source code related to the technology provided by Seller to Buyer to a national of a country specified in Country Groups D:1 or E:2 as set forth in 15 C.F.R. Part 740, Supplement No. 1 and as amended. Seller shall have no responsibility for delayed delivery or non-delivery resulting from (i) any governmental action under U.S. or other applicable law suspending or revoking a necessary export license or authorization, or (ii) any failure by Buyer to furnish reasonable assurance, upon request, of its compliance with applicable export requirements, or (iii) obtaining a necessary export license for the goods to be shipped hereunder.
20. — USE OF SELLER’S GOODS IN LIFE SUPPORT AND CERTAIN OTHER APPLICATIONS: Goods sold by Seller are not designed, intended or authorized for use in life support, life sustaining, or other applications in which the failure of such goods could reasonably be expected to result in personal injury, loss of life or severe property or environmental damage. Buyer acknowledges that use of Seller’s goods in such product applications is understood to be fully at the risk of Buyer and that Buyer is responsible for verification and validation of the suitability of Seller’s goods in such application. Buyer agrees that Seller is not liable, in whole or in part, for any claim or damage arising from use in such applications. Buyer agrees to indemnify, defend and hold Seller harmless from and against any and all claims, damages losses, costs, expenses and liabilities arising out of or in connection with such use.
21. LIMITATION OF LIABILITY: THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT SELLER’S LIABILITY HEREUNDER.
EXCEPT FOR BODILY INJURY OR DEATH OF A PERSON, UNDER NO CIRCUMSTANCES WILL SELLER, ITS EMPLOYEES, OFFICERS OR DIRECTORS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE TO ANYONE UNDER ANY PRODUCT ORDER, SCHEDULE OR TERMS AND CONDITIONS HEREIN UNDER ANY CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT FORESEEABLE OR FORESEEN, FOR: (A) BUSINESS INTERRUPTION COSTS, COST OF REWORK, RETESTING, PROCUREMENT OF SUBSTITUTE GOODS, REMOVAL AND REINSTALLATION OF GOODS; OR (B) ANY SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LITIGATION COSTS, LOSS OF DATA, PRODUCTION OR PROFIT, GOODWILL, LOSS OF REVENUE, OR LOSS OF UNITS; REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THERE IS A TOTAL AND FUNDAMENTAL BREACH OF THIS AGREEMENT OR WHETHER ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
THE LIMIT OF LIABILITY FOR ANY CLAIMS SHALL NOT EXCEED 20% OF THE AMOUNT PAID OR PREPAID ON ACCOUNT BY BUYER FOR THE GOODS GIVING RISE TO SUCH CLAIMS. BUYER SHALL BE DEEMED TO ASSUME ALL LIABILITY FOR ANY AND ALL DAMAGES ARISING FROM, OR IN CONNECTION WITH, THE — USE OR MIS– USE OF THE GOODS BY BUYER, ITS EMPLOYEES, CUSTOMERS AND OTHERS.
SELLER SHALL NOT BE LIABLE FOR AND BUYER AGREES TO INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY GOODS BY PARTIES OTHER THAN SELLER, OR — USE IN COMBINATION WITH OTHER PRODUCTS.
22. RELATIONSHIP OF PARTIES: Seller and Buyer expressly understand and agree that Buyer is an independent contractor in the performance of each and every part of this order, is solely responsible for all of its employees, agents and will indemnify Seller from any and all claims, liabilities, damages, debts, settlements, costs, attorneys’ fees, expenses and liabilities of any type whatsoever that may arise on account of Buyer’s activities or those of its employees or agents (including, without limitation, direct and indirect distributors or sub-distributors), including without limitation unauthorized representations or warranties (or failing to effectively disclaim all warranties and liabilities on behalf of Seller to the same extent as disclaimed herein) to its customers.
23. BASIS OF BARGAIN: EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS HEREIN ARE MATERIAL, BARGAINED FOR BASES OF ANY ORDER OR CONTRACT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER ANY ORDER OR CONTRACT AND IN THE DECISION BY EACH PARTY TO ENTER INTO SUCH ORDER OR CONTRACT.
24. PACKAGING: Packaging for commercial shipment is included in the quoted price. When special or export packaging is specified involving a greater expense than the cost of commercial shipment included in the quoted price, a charge will be made to cover such extra expense. Reasonable care is exercised in packaging goods for shipment and no responsibility is assumed by Seller for delay, breakage, or damage after having made delivery to the carrier. All claims for breakage or damage must be made to the carrier, however, Seller will render reasonable assistance in securing satisfactory adjustment of such claims.
25. CHANGES TO SPECIFICATIONS: Seller reserves the right to change the specifications of any goods (including all statements and data appearing in Seller’s catalogs, data sheets and advertisements). If such changes to specifications are made, Seller assumes no obligation to provide the change on goods previously purchased or to continue to supply discontinued goods. Seller may substitute goods manufactured to such modified specifications for those specified herein provided such goods substantially conform to the order or contract.
26. PROPRIETARY DATA: Buyer agrees not to use or disclose drawings, specifications, technical information or other data furnished by Seller and identified by Seller as confidential or proprietary data without the prior written consent of Seller. Buyer agrees and acknowledges that any improvement or modification to such confidential or proprietary data shall be the sole property of Seller, regardless of whether any such improvement or modification was the creation of Buyer. Buyer further agrees to use all appropriate copyright and proprietary notices on all goods delivered hereunder regardless of their intended use. Buyer recognizes that such proprietary data is unique and consents to the remedy of injunction in addition to damages for violation of the terms of this provision.
27. TOOLING: Unless otherwise expressly agreed in writing, Seller retains rights and title to and possession of any tooling, drawings, mask sets, tapes, fixtures, original documentation and intellectual property used in the furnishing of goods.
28. GENERAL: In the event of the appointment of a trustee, receiver, or liquidator for all or a portion of Buyer’s property, Buyer’s insolvency, or any voluntary or involuntary petition in bankruptcy by or against Buyer, Seller may terminate any order without further obligation or liability of Seller to Buyer.
In the event any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
For more information please contact us at [email protected].
980 Linda Vista Avenue, Mountain View, CA 94043
NextInput, Inc. Terms and Conditions of Purchase
Any purchase by NextInput Inc. (hereinafter “Buyer”) is expressly made conditional on Seller’s acceptance of these Terms and Conditions of Purchase.
1. ACCEPTANCE: Seller shall be deemed to have assented to all terms and conditions contained herein upon Seller’s acknowledgment of an order (“Order”) placed by Buyer for goods (“Goods”) or commencement of performance pursuant hereto. Conditions stated in Seller’s acknowledgement or acceptance of an Order or in any quotation or invoice shall not be binding unless expressly agreed to in writing by an authorized representative of Buyer. Seller may not ship under reservation. Buyer’s failure to object to provisions contained in any communication from Seller shall not be deemed a waiver of any of the provisions contained herein. From time to time, Buyer may accept certain of Seller’s terms and conditions of sale by signing Seller’s proposed sale agreement. If such acceptance is preceded or accompanied by Buyer’s interpretation of Seller’s terms and conditions, such interpretation shall control the construction or interpretation of the meaning of Seller’s terms and conditions.
2. PAYMENT: Payment will be 2%/10 net 45 calendar days from Buyer’s receipt of Seller’s correct and valid invoice for Goods delivered and accepted or services rendered and accepted. Payment may be withheld or setoffs made against Seller if Seller is not performing work pursuant to an Order. If Buyer returns an invoice to Seller for any reason not attributable to the fault of Buyer, any applicable discount period will commence on the date of receipt of a corrected invoice by Buyer. Payment of any item will not be deemed an acceptance of the Goods or a waiver of any right to test or inspect the Goods.
3. PRICES: Unless otherwise specified on the face of an Order, prices are inclusive of all taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed charges, other than Value Added Tax. Seller will, at Buyer’s request, break-out from the price all such taxes and other charges, in its invoices. Seller shall assist Buyer in all legal efforts to minimize the taxes resulting from the performance of an Order and shall credit Buyer for any tax refund or credit adjustments received by Seller on taxes paid to Seller by Buyer with respect to Goods provided under any Order. Prices will remain firm and will not be subject to renegotiation and shall not be higher than last quoted or charged to Buyer unless otherwise agreed in writing.
4. DELIVERY: Time is of the essence for the Order. Failure by Seller to meet delivery dates specified in the Order will constitute a material breach of the Order and Purchaser may, at its option, take one or more of the following actions: (a) extend the time for delivery; (b) cancel the Order in whole or in part; (c) require Seller to ship all or part of the Goods by prepaid air freight at Seller’s expense until Seller’s deliveries are in accordance with the requirements of the Order. Seller agrees to pay Buyer any penalty and/or damages imposed upon or incurred by Buyer resulting from Seller’s failure to deliver the Goods on the specified delivery dates. Title and risk of loss shall pass to Buyer upon receipt of the Goods by Buyer.
5. CANCELLATION/RESCHEDULE: Buyer may cancel, reschedule or modify all or any part of an Order at any time for convenience upon written notice to Seller. Upon receipt of Buyer’s notice, Seller shall cease all work under the Order. Buyer shall only be liable to Seller for services satisfactorily performed to the date of termination and Goods delivered and accepted by Buyer. Any claim by Seller for reimbursement, if any, shall be presented to Buyer in writing within thirty (30) days of Seller’s receipt of Buyer’s written notice. Seller shall mitigate its claim to the maximum extent, and Buyer shall have the right to audit Seller’s books and records related to such reimbursement claim. Cancellation or termination by Buyer will not constitute a waiver or release of any rights and remedies of Buyer in contract or provided by law.
6. QUANTITIES: Seller will furnish the specific quantity of Goods called for in the Order. Except as otherwise specified in the Order or by prior written agreement signed by Buyer, no variation in these quantities will be accepted. If the shipped quantity is in excess o f the Buyer’s order, Buyer, at their sole discretion, may either delay payment on such excess shipments until 60 days after the material is consumed or return excess shipments at Seller’s expense. If the shipped quantity is less than the Buyer’s order, Seller will use all reasonable commercial efforts to expedite the balance at no cost to the Buyer.
7. PACKAGING AND SHIPPING INSTRUCTIONS: All Goods are to be suitably packed for safe transportation and handling, or otherwise prepared for shipment in accordance with Buyer’s instructions or specifications. Unless otherwise specified in the Order, Buyer is not responsible for any costs for packing, crating or carriage. Any losses resulting from Seller’s failure to follow Buyer routing instructions will be charged to Seller’s account. Each shipping container and all intermediate containers must be marked to show Buyer’s Order number, part number with revision letter and quantity, a packing list showing this information must be included in each shipment. All materials to be shipped on a given day via the same mode of transportation from a common shipping point to a common address are to be consolidated into one shipment. Seller shall ship only the quantity specified in the Order and at the lowest freight charges, unless otherwise agreed in writing by Buyer.
8. INSPECTION: Prior to shipment of Goods, Seller shall carefully inspect and test all Goods for compliance to applicable specifications. Seller shall retain proper records of such inspections and tests and provide copies to Buyer, if requested. Unless otherwise specified in the Order, final acceptance or rejection of the Goods shall be made after delivery to the final destination, however Buyer’s failure to accept or reject Goods or detect defects during inspection does not relieve Seller from its responsibility to provide Goods in accordance with Order requirements.
9. WARRANTY: Seller warrants and certifies that: (a) the Goods will conform to the specifications, drawings, sample or other descriptions furnished or specified by Buyer or furnished by Seller and accepted by Buyer; (b) all Goods will be merchantable, of good workmanship, and free from defects; (c) unless otherwise specified herein, all Goods and its components are new and have not been previously used; (d) the Goods are fit for use for their ordinary intended purposes as well as any special purpose specified by Buyer; (e) and all Goods and the sale thereof do not, and the use of the same for their ordinary intended purpose as well as any special purpose specified will not infringe upon any third party’s Intellectual Property Rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory or common law; (f) Seller has good title to the Goods free from all encumbrances; (g) the price or prices to be paid do not exceed applicable ceiling prices established by law, regulation or order of any governmental authority; and (h) the Goods, if produced in the United States, were or will be produced in compliance with the Fair Labor Standards Act of 1938, as amended or supplemented. These warranties will survive any inspection, delivery, acceptance or payment by Buyer for the Goods and are in addition to, and shall not be construed as restricting or limiting any warranties of Seller, express or implied, that are provided by law or exist by operation of law. In addition to the warranties above, Seller shall extend all warranties that it receives from its vendors to Buyer and Buyer customers. If any of the Goods and/or services furnished under the Order are found at any time to be defective in design, material or workmanship, including latent defects, or otherwise not in conformance with Seller’s warranty or the requirements of the Order, Buyer, in addition to other remedies under all applicable warranties or otherwise, may at Buyer’s option (i) require Seller to promptly correct any defective or nonconforming Goods by repair or replacement at the location specified by Buyer or (ii) return such defective or nonconforming Goods to Seller at Seller’s expense and recover from Seller the Order price. Seller will pay or reimburse Buyer promptly for all costs incurred by Buyer with regard to any defective or nonconforming Goods and/or services.
10. INFRINGEMENT: Seller agrees to indemnify, hold harmless and defend Buyer, its subsidiaries and affiliates and their respective officers, directors, agents and employees from any and all loss, expenses, damage, liability, claims or demands for actual or alleged infringement of any patent, trademark, copyright or trade secret arising from the purchase, use or sale of Goods or services furnished under the Order, except where such infringement or alleged infringement arises by reason of a design originally furnished to Seller by Purchaser. If the Goods or services or any part thereof or any use thereof be held to constitute infringement and the use enjoined, Seller shall promptly and at its own expense either: (1) procure for Buyer the right to continue using the Goods or services; or (2) replace same with non-infringing Goods or services satisfactory to Buyer or (3) modify the Goods or services in a way satisfactory to Buyer so they become non-infringing.
11. INDEMNITY: SELLER AGREES TO INDEMNIFY AND HOLD HARMLESS BUYER, ITS SUBSIDIARIES AND AFFILIATES AND THEIR RESPECTIVE OFFICERS, AGENTS, AND EMPLOYEES, AND BUYER CUSTOMERS FROM ANY AND ALL LOSSES, EXPENSES, DAMAGES, LIABILITY, CLAIMS OR DEMANDS ARISING OUT OF OR INCIDENTAL TO THE PERFORMANCE, MANUFACTURE, DELIVERY OR INSTALLATION OF GOODS OR THE FURNISHING OF SERVICES UNDER BUYER’S ORDER, INCLUDING WITHOUT LIMITATION ANY RECALL, LATENT DEFECTS, REPLACEMENT OR CORRECTION OF THE GOODS, DEATH OR INJURY TO ANY PERSON, PROPERTY DAMAGE OR LOSS OR ANY ACT OR OMISSION OF SELLER, ITS AGENTS, EMPLOYEES OR SUBCONTRACTORS.
12. ASSIGNMENT: Seller will not delegate any duties, nor assign any rights or claims under the Order, or for breach thereof, without the prior written consent of Buyer. Any attempted delegation or assignment will be void.
13. NOTICE OF LABOR DISPUTES: Whenever any actual or potential labor dispute delays or threatens to delay the timely performance of the Order, Seller will immediately give notice of that dispute to Buyer. Seller agrees to insert the substance of this clause in any lower tier subcontract and to require that in the event its lower tier subcontractors’ timely performance is delayed or threatened by delay by any actual or potential labor dispute, the lower tier subcontractor will immediately notify its next higher tier contractor of all relevant information with respect to those disputes.
14. CONFIDENTIAL INFORMATION: Any knowledge or information that Buyer discloses to Seller under Buyer’s Order, including, without limitation, specifications, technical or business information, forecasts, or schedules, shall be deemed Buyer confidential, proprietary information; and Seller shall not disclose such information, including without limitation, denial or confirmation, relative to the Order without the prior written consent of Buyer. All tools, equipment, dies, drawings or other materials paid for or furnished by Buyer under the Order shall be and remain the sole property of Buyer.
15. MODIFICATIONS: No modification, amendment or rescission of the Order may be made without the prior written agreement of Buyer. Any changes to qualified critical materials are subject to Buyer’s prior written approval, and substitutes will not be accepted unless authorized in writing by Buyer’s duly authorized management. Any overrun quantities will be subject to Buyer’s prior written approval. Buyer reserves the right to and Seller agrees to accept reasonable changes to the Order, including, without limitation, changes to quantities, packing, testing, destinations, specifications, designs and delivery schedules, but these changes will be authorized only by Buyer’s written Order. If an Order affects delivery or price, Seller will notify Buyer immediately and an equitable adjustment in prices or other terms hereof will be agreed upon in a written amendment to the Order.
16. FORECASTS: Any Buyer forecasts furnished under an Order are presented in good faith and are nonbinding on Buyer. Buyer shall only be liable for actual Order releases made by Buyer’s Purchasing Department.
17. GOVERNING LAW: The validity, interpretation, and performance of an Order and the transactions contemplated thereby shall be controlled by and construed under the laws of California. Seller hereby consents to the exclusive jurisdiction of the Courts of Santa Clara County in all matters regarding it, except to the extent that the Buyer invokes jurisdiction of the Courts of any other country. The applicability of the UN Convention on Contracts for the International Sale of Goods is hereby expressly waived by the parties and does not apply to the interpretation or enforcement of an Order.
18. REMEDIES: The remedies reserved in the Order are cumulative and additional to any other further remedies at law or in equity; however, in no event will Buyer be liable to Seller for incidental or consequential damages. All of the terms of the Order are material terms and no waiver of or exception to any of the terms, conditions or provisions contained in the Order shall be valid unless specifically agreed to in writing by Buyer.
19. NON-WAIVER DEFAULT: Each shipment made under any Order shall be treated as a separate sale and transaction, but in the event of any default by Seller, if Buyer elects to continue to accept shipments, its action shall not constitute a waiver of any default by Seller or in any way affect Buyer’s legal remedies for any such default.
20. COMPLIANCE WITH LAWS: Seller represents and warrants that it will comply fully with all applicable laws and regulations pertaining to its performance of its obligations under this Order, including, without limitation, applicable employment, tax, EU and US export control and environmental laws relating in any way to the production, manufacture, sale and delivery of the Goods. In particular, Seller shall not participate or encourage, directly or indirectly, the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party
21. FORCE MAJEURE: Neither party shall be liable for delay in performance or failure to perform in whole or in part the terms of this Agreement due to strike, labor dispute, war, riot or civil commotion, acts of the public enemy, fire, flood or other acts of God, or causes beyond the reasonable control of such party. The period for performance for the party affected by such a cause shall be extended by the duration of the condition.
22. TERMINATION: In the event Seller enters into liquidation (whether compulsorily or voluntarily) or has a receiver appointed of the whole or any assets or undertaking or has an examiner appointed to manage its affairs, business and property or it takes or suffers any similar action in consequence of debt, such events shall be deemed a material breach hereunder, entitling Buyer to immediately terminate any agreement hereunder, to cease performance hereunder, and to avail itself of any and all legal or equitable remedies it may have against Seller. Seller agrees to give written notice to Buyer of such insolvency or bankruptcy proceedings at least 30 days prior to such proceedings.
23. DISCONTINUED GOODS: In the event that Seller permanently discontinues any Goods covered under Buyer’s Order, Seller will give at least six (6) months prior written notice of such discontinuance for standard Goods and nine (9) months prior written notice for sole source or custom Goods. Seller shall accept Orders from Buyer for quantities of discontinued Goods required by Buyer during the notice period(s). The unit price for ordered quantities of the discontinued Goods shall be at the unit price(s) listed in Buyer’s Order. Discontinued Goods are not subject to termination or cancellation by Buyer and will be considered Buyer’s firm, final orders for such Goods. In the event that Buyer purchases Goods hereunder with a purchase price exceeding $2,500.00/unit or an annual purchase price total of at least $25,000.00, Seller will give Buyer at least three (3) years prior written notice of such discontinuance. In the event that continuous improvements of the Goods cease or are made obsolete by Seller hereunder, Buyer may, at its sole discretion, pursue any means necessary to perpetuate the life cycle and continued improvement of the Goods. Seller and Seller’s agents will provide Buyer with the necessary hardware and software details required, including, but not limited to artwork, schematics, vendor names, bills of material and software source code(s).
24. ISO 9000: In accordance with ISO 9000 quality control systems and related certification, a physical inspection of Seller’s facility may be required by the Buyer and/or the Buyer’s customer to satisfy certification requirements. Upon written notice from Buyer and/or Buyer’s customer, Seller agrees to make its facilities, personnel, and procedures reasonably available for a site inspection for physical audit to ensure Seller’s compliance with all laws, rules and regulations in accordance with minimum ISO 9000 requirements of the revision in effect at the time of the inspection.
25. EXPORT CONTROL CLASSIFICATION NUMBER: If applicable, Seller shall provide Buyer at time of sale with the appropriate U.S. Export Control Classification Number for your product, as determined on the Commerce Control List of the Export Administration Regulations of the U.S. Bureau of Industry and Security of the Department of Commerce. Seller agrees to assist Buyer if it is necessary to obtain an export/reexport license.
26. NOTICE: Any notice, instruction or other document given pursuant to these terms and conditions shall be in the English language, in writing and delivered by courier or sent by first class post or electronic mail (“email”) transmission (such email transmission notice to be confirmed by letter posted within 24 hours) to the address of the other party set out in the Order or its registered office (or such other address or number as may have been notified). Such notice shall be deemed to have been duly served upon and received by the addressee at the time of delivery, (if sent by post) upon the expiration of 48 hours after posting or (if sent by email transmission) upon the expiration of 24 hours after dispatch (receipt confirmed and with a confirmation copy sent by post) during normal business hours of the recipient to the email address of the recipient.
27. SEVERABILITY: If any provision of these terms and conditions (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
28. ENTIRE AGREEMENT: These terms and conditions are the entire agreement between the parties and supersede and terminate any prior agreements, understandings or representations, written or oral.
29. BUYER CODE OF CORPORATE SOCIAL RESPONSIBILITY: It is Buyer’s policy to conduct its affairs in accordance with all applicable laws, rules and regulations of the jurisdictions in which it does business. Buyer and/or Buyer customers may conduct audits of Seller’s facilities and any or all sites where work is being performed or materials are being delivered in performance of Seller’s work for Buyer under an Order, including compliance with applicable laws, rules, and regulations. Seller shall permit access to Buyer and/or Buyer customers to Seller facilities to ensure Seller’s compliance with all laws, rules and regulations, including Buyer’s Code of Corporate Social Responsibility.