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STANDARD TERMS AND CONDITIONS OF SALE: WARRANTEED ITEMS
ACCEPTANCE OF PURCHASER'S ORDER BY UpState Semiconductor Parts (hereinafter called UpState Semi®) IS MADE EXPRESSLY CONDITIONAL UPON THE PURCHASER'S AGREEMENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN. UpState Semi AGREES TO FURNISH THE MATERIALS, COMPONENTS AND/OR ANY SPARE PARTS (HEREINAFTER COLLECTIVELY CALLED "PRODUCTS") COVERED THEREBY ONLY UPON THESE TERMS AND CONDITIONS.
1. AGREEMENT: This document, including any new, additional or different terms listed in the UpState Semi sales quotation, constitutes the entire agreement between the Purchaser and UpState Semi with respect to the subject matter hereof and supersedes any and all other agreements and understandings, whether written or oral. Any terms or conditions of Purchaser's order inconsistent with or in addition to these Terms and Conditions shall not be binding upon UpState Semi, unless expressly agreed to in writing by UpState Semi and signed by a duly authorized representative of both UpState Semi and the Purchaser. These Terms and Conditions shall be applicable whether or not they are attached to or enclosed with the Products sold hereunder.
a. NOTIFICATION: Unless Purchaser notifies UpState Semi in writing to the contrary within ten (10) days of receipt hereof, acceptance of these Terms and Conditions shall be indisputably presumed. In the absence of such notification by Purchaser, the sale and/or delivery by UpState Semi of the Products covered hereby shall be indisputably presumed to be subject to these Terms and Conditions. No waiver, alteration or modification of any of the provisions hereof shall be binding upon UpState Semi unless expressly agreed to in writing and signed by a duly authorized representative of both UpState Semi and the Purchaser.
2. ACCEPTANCE: All orders or contracts from Purchaser must be approved and accepted by UpState Semi at its general offices located in Hudson, New York, United States, even if the order is taken online or elsewhere by a sales representative or agent of UpState Semi.
3. PRICING: All prices listed are subject to CHANGE WITHOUT NOTICE. UpState Semi will honor prices for Products in effect at the time of order placement by Purchaser for a period of 7 business days. Prices may increase as a result of delays in receipt of Purchasers payment or changes to Products quantity or quality requested by Purchaser, or by the failure of Purchaser to furnish pertinent information to UpState Semi in a reasonable amount of time.
4. TAXES, FEES AND OTHER CHARGES: All prices exclude manufacturer's tax, sales tax, use tax, excise tax, customs or duties charges, consular fees, inspection or testing fees, permit or license fees, or any other tax, fee, or charge of any nature whatsoever imposed currently or in the future by any federal, state, local or other governmental authority, upon or with respect to the sale, purchase, delivery, shipment, storage, processing, use, or consumption of any of the Products covered hereby, including taxes, fees, or charges upon or measured by the receipts from the sale thereof shall be borne by Purchaser in addition to the prices quoted and/or invoiced. UpState Semi shall collect at the time of sale any taxes, fees and/or other charges that it has the legal obligation to collect or pay with regards to this sale, and said amounts shall be added to the invoice or billed to the Purchaser separately. In the event UpState Semi is required to pay any additional tax, fee or charge, now or in the future, with regards to this sale on behalf of the Purchaser, the Purchaser shall reimburse UpState Semi for same not later than ten (10) business days from the date of notification or invoicing by UpState Semi.
5. PAYMENT TERMS AND FINANCIAL CONDITION: If Purchaser fails to fulfill any condition of its payment obligations, UpState Semi may, at its' option, suspend performance and/or delivery. Any cost incurred by UpState Semi in accordance with such suspension, including storage costs (including storage at the UpState Semi facility), shall be payable by Purchaser upon submission of UpState Semi invoices. Performance of UpState Semi obligations shall be extended for a period equaling the period of Purchaser's nonfulfillment of any portion of the payment terms, whether or not UpState Semi suspends performance, and any such additional time as may be reasonably necessary. If Purchaser does not correct such failure in the manner and time satisfactory to UpState Semi, then UpState Semi may, at its option, terminate the Contract in respect to the portion of the Products not delivered. Purchaser shall pay UpState Semi its' reasonable and proper termination charges in the event of such termination in addition to any non-refundable down payments.
Any order for Products by Purchaser shall constitute a representation that Purchaser is solvent. In addition, upon UpState Semi request, Purchaser will furnish a written representation concerning its' solvency at any time prior to shipment.
If Purchaser's financial condition at any time does not justify continuance of the work to be performed by UpState Semi or delivery of Products hereunder on the agreed terms of payment, UpState Semi may require full or partial payment in advance. In the event of Purchaser's bankruptcy or insolvency or in the event any proceeding is brought against Purchaser, voluntarily or involuntarily, under the bankruptcy or any insolvency laws, UpState Semi shall be entitled to cancel any order then outstanding at any time during the period allowed for filing claims against the estate and shall receive reimbursement for its proper cancellation charges. UpState Semi rights are in addition to all rights available to it at law or in equity.
a. DOMESTIC PAYMENT TERMS: Unless otherwise specified on the UpState Semi quotation or sales order, domestic payment terms are as follows: i. Products: Payment for Products is due at the time of or prior to shipment of Products unless UpState Semi grants credit, in writing, to Purchaser. ii. Progress Payments: If credit is granted, payments for progress billings are due not later than ten (10) days from date of invoice. iii. Delayed Shipment/Performance: Purchaser may request a delay in shipment of Products, subject to the terms set forth in paragraph 10. If a delay in shipment or performance is granted by UpState Semi, invoices shall still be issued on the originally agreed to date of shipment of Products. iv. Credit/Collection Fees: Unless provisions to the contrary are made in the UpState Semi quotation or sales order, all payments are due not later than ten (10) days from the date of invoice. Sums which remain unpaid ten (10) days after date of invoice shall be subject to a late payment charge of one and one-half percent (1.5%) per month from the original date due (or up to the maximum amount permitted by law, whichever is lower) and, in addition, Purchaser shall reimburse UpState Semi for all costs incurred which relate to the credit extension offered to Purchaser and to the collection of any unpaid balances. If delivery is delayed through no fault of UpState Semi or Purchaser cancels this contract, payments already made by Purchaser shall be retained by UpState Semi and applied towards payments required pursuant to this agreement. b. EXPORT PAYMENT TERMS: Unless otherwise specified in the UpState Semi quotation or sales order, Export payment terms are as follows: i. Products: 100% net cash (United States currency) upon presentation of invoice, bill of lading or other shipping documents covering each of the Products offered. ii. Irrevocable letter of Credit: UpState Semi reserves the right to require an irrevocable Letter of Credit, in favor of UpState Semi, from a bank that UpState Semi shall designate. The Letter of Credit shall be in an amount sufficient to cover the price of all Products and related expenses and shall include such terms and conditions as are acceptable to UpState Semi. In addition the Letter of Credit shall, by its terms and conditions, remain in full force and effect for a period agreed to by UpState Semi and shall be of sufficient duration to allow UpState Semi to complete its obligations and performance under this sales contract. If the Letter of Credit expires prior to the completion of this order, Purchaser is obligated to extend the Letter of Credit for a period and on terms acceptable to UpState Semi. Any and all bank charges, financing charges, taxes or other fees and expenses related to obtaining such Letter of Credit shall be borne by Purchaser.
6. SECURITY INTEREST: UpState Semi retains a security interest in any Products delivered hereunder and in any proceeds from the sale, exchange, collection, or disposition thereof, until Purchaser has made payment in full for such Products. Purchaser shall, upon the request of UpState Semi, provide all information and signatures required by UpState Semi to affect such security interest. UpState Semi reserves all rights granted to a secured creditor under the New York Uniform Commercial Code, including the right to repossess upon default by Purchaser. UpState Semi may require the Purchaser to assemble the collateral and make it available to UpState Semi at a place reasonably convenient and agreed to by both parties.
7. DELIVERY: Unless otherwise specified on the UpState Semi quotation or sales order all shipments shall be Ex Works (Incoterms 2000) UpState Semi facility located in New York, United States of America.
a. Delivery Date: Delivery dates quoted are based upon information gathered from various sources, including information from Purchaser, and are approximate only. Delays in delivery beyond quoted date, through no fault of UpState Semi, shall not be considered a breach of this agreement if the Products specified are delivered within a reasonable time after the delivery date quoted. b. Title to Products/Risk of Loss or Damage: Title to Products and all risk of loss or damage shall pass to Purchaser upon delivery of Products by UpState Semi to the Purchaser or to the Purchaser's designated carrier at UpState Semi facility. All risk of loss or damage of Products in transit shall be borne by Purchaser. c. Partial Deliveries: Unless otherwise specified in Purchaser's order, UpState Semi reserves the right to make partial deliveries, and all such partial deliveries shall be separately invoiced and paid for when due. Delay in delivery of any installment shall not relieve Purchaser of its obligation to accept such later deliveries. d. Delivery Expenses: All delivery expenses, including transportation, freight, insurance and export or import fees, risk of loss or damage, and any other costs or fees associated with the shipment of Products shall be borne by Purchaser. e. Selection of Carrier: Unless otherwise specified by Purchaser, selection of carrier shall be at the sole discretion of UpState Semi. f. Domestic Shipment Packaging: Standard packaging of Products for domestic shipment is included in all prices quoted. If customer requires specialty packaging for domestic shipment, see paragraph 7(g). g. Export Shipment / Specialty Packaging: All costs associated with the packaging of Products for Export shipment or Purchaser requested specialty packaging shall be borne by Purchaser and shall be added to the invoice.
8. EXCUSABLE DELAYS: UpState Semi shall not be liable nor be considered in breach or default of its' obligations under this agreement to the extent that performance of such obligations is delayed or prevented, due in whole or in part, directly or indirectly to any cause beyond the control of UpState Semi, including but not limited to: acts of God, acts (or failure to act) of governmental authorities, fires, severe weather conditions, acts of Purchaser, theft, accident, flood, war (declared or undeclared), sabotage, acts of terrorism (declared or undeclared), civil unrest, epidemic, work slowdown, strikes, or other labor difficulties, riot, embargo, regulation, rule, ordinance or request or the inability to obtain necessary labor, raw materials, supplies, components, fuel, manufacturing facilities, or transportation. In the event of any such contingency, the date of performance or delivery shall be extended by a period equal to the time lost by the delay. If, due to any such loss or delay, UpState Semi is unable to supply the total demands for any Products specified hereunder, UpState Semi shall have the right to allocate its available supply among existing customers at its sole discretion.
9. INSPECTION AND ACCEPTANCE: Purchaser shall examine all Products promptly upon receipt thereof. Within ten (10) days of such receipt, Purchaser shall notify UpState Semi, in writing, of any claims for defects, damages, shortages or shipping errors. Purchaser agrees that unless notified to the contrary within the prescribed timeframe, UpState Semi shall deem all deliveries irrevocably accepted by Purchaser as of the date of delivery and all rights to claims by Purchaser shall be waived, except as permitted by the UpState Semi warranty.
10. CANCELLATION, CHANGES, REDUCTION, DELAYED SHIPMENT, AND LIQUIDATED DAMAGES:
a. Cancellation, Changes and Reduction: Upon acceptance by UpState Semi, Purchaser's order shall not be subject to cancellation, change or reduction in amount unless agreed to, in writing, by UpState Semi. b. Delayed Shipment: Purchaser may request a delay in shipment for a maximum of ten (10) working days from the contract-scheduled delivery at no additional charge. Purchaser's payments shall in any such event be due and payable as though shipment has occurred as per the contract scheduled delivery date. In the event Purchaser is unable to accept or receive any Products at the time UpState Semi is prepared to make delivery UpState Semi may, upon notice to and giving Purchaser reasonable opportunity to designate a location for storage, deliver such Products and ship it to a suitable location for storage, including a location within the UpState Semi facility. All costs incurred by UpState Semi, including but not limited to the preparation and packaging of the Products for the placement into storage, storage fees, inspection fees, insurance, taxes or any other fees shall be borne by Purchaser. c. Liquidated Damages: For the purposes of this subparagraph (c) LONG TERM CONTRACTS shall be defined as any item or Products that has a lead time for delivery of greater than two (2) weeks.
Since cancellation by Purchaser of LONG TERM CONTRACTS would cause substantial damage to UpState Semi in an amount that would be difficult to establish, Purchaser agrees to pay liquidated damages for cancellation to UpState Semi as per the table below:
NOTICE RECEIVED (IN WEEKS)
PRIOR TO SHIPMENT DATE
FEE AS PERCENT OF
TOTAL P.O. VALUE
FEWER THAN 2 100% 2-4 80% 4-6 60% 6-8 40% 8-10 20% 10 OR MORE 10%
11. DISCLAIMER: UpState Semi makes no claims or guarantees as to overall performance to specifications for items originally manufactured by others. UpState Semi is not responsible for lost wages, expenses, damages or any other costs or losses that occur as a result of delay. UpState Semi hereby disclaims all other expressed and implied warranties of merchantability and fitness for a particular use or purpose.
12. LIMITATION OF LIABILITY: UpState Semi, its' contractors, subcontractors, suppliers and their respective agents or employees SHALL NOT BE LIABLE TO THE PURCHASER, PURCHASER'S INSURER OR PURCHASER'S EMPLOYEES FOR ANY CLAIM OF ANY KIND, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE FOR ANY EXPENSE, INJURY, LOSS, OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, DELIVERY, INSPECTION, REPAIR, MAINTENANCE, INSTALLATION, OR USE OF ANY PRODUCTS FURNISHED UNDER THIS CONTRACT. IN NO CASE SHALL LIABILITY EXCEED THE ORIGINAL PURCHASE PRICE OF THE PRODUCTS WHICH GIVES RISE TO THE CLAIM. IN NO EVENT SHALL UpState Semi BE LIABLE TO PURCHASER, PURCHASER'S INSURER OR PURCHASER'S EMPLOYEES FOR ANY SPECIAL INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR CONTINGENT DAMAGES, WHETHER OR NOT UpState Semi HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
13. PATENT AND TRADEMARK INDEMNITY: UpState Semi accepts no liability for and makes no warranty to the Purchaser that the Purchaser shall hold the Products sold hereunder free of claims of third parties, including claims of alleged patent, trademark or other intellectual property infringement. Purchaser shall hold UpState Semi harmless against any expense or loss from infringement of patents, trademarks, or other intellectual property rights of others arising from UpState Semi delivery of Products or from compliance with Purchaser's design, formulae, processes, specifications, or instructions, or with Purchaser's requirements that a design be produced to perform a specific process. UpState Semi specifically disclaims any patent, trademark or other intellectual property indemnity and/or warranty that may be expressed or implied by any statue of any law of any country, including the Uniform Commercial Code.
14. WARRANTY: The Products sold and covered hereunder may consist of items which are used, oftentimes with expected dents, scratches, wear and tear or other degradation inherent with used items. Subject to any such condition, UpState Semi warrants to the original Purchaser that all Products provided by UpState Semi hereunder shall be free from defects in material, workmanship and title and shall be of the kind and quality specified in the UpState Semi quotation and when used under normal operating conditions, for a period of 30 (thirty) days. The warranty provided hereunder shall not include parts or materials which UpState Semi considers being consumable under normal operating conditions. THE FOREGOING WARRANTIES ARE EXCLUSIVE OF ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
If any Products fail to meet the foregoing warranty, UpState Semi shall correct any such failure at its' option by (a) repairing any defective part of the Products either at Purchaser's facility or UpState Semi facility with shipping at Purchaser's expense or by providing information and advice to Purchaser as to how Purchaser can make such repairs; or (b) making available any repaired or replacement Products, Ex Works UpState Semi facility; or (c) giving Purchaser notice to return any such defective Products to UpState Semi within 10 (ten) business days with packaging, shipping and insurance prepaid by Purchaser so that UpState Semi receives Products in the same condition as when it was sent to Purchaser. Upon receipt of defective Products, UpState Semi shall promptly return such portion of the purchase price received or issue a credit to the account of Purchaser if full payment has not yet been received.
The preceding paragraph sets forth the exclusive remedies for claims based on defect in or failure of Products, whether the claim is in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise and however instituted. Upon the expiration of the warranty period, all such liability of UpState Semi shall terminate and Purchaser shall have a reasonable time, but in no event more than 10 (ten) business days after the warranty period, to give written notice of any defects that appear during the warranty period.
UpState Semi obligations under this Article shall not apply to any Products, or part thereof, which (a) is normally consumed in operation, or (b) has a normal life inherently shorter than the warranty period, or (c) is not properly stored, installed, used, maintained or repaired or is modified other than pursuant to UpState Semi instructions or approval, or (d) has been subjected to any other kind of misuse or detrimental exposure or has been involved in an accident. In addition, this warranty shall be void if the Purchaser makes any repairs to, or effects any changes in Products or parts thereof, which have not been authorized by UpState Semi in writing.
UpState Semi does not warrant that the Products or services sold hereunder conform with any plans or specifications or that they meet any requirements, industry specifications, codes, standards, laws, rules, regulations and ordinances of any federal, state or local government authority of any country, including the United States Occupational Safety and Health Administration (hereinafter called "OSHA") requirements pertaining to safety or insurance. Any descriptions or illustrations of Products contained in UpState Semi catalogues, price lists, internet site or other advertising materials are intended merely to present a general description of the Products and shall not form a part of the Contract. As the end use of the Products cannot be predetermined,
UpState Semi takes exception to any and all requirements as are, or may be set forth by OSHA (and/or any other similar entity in any country) with respect to the Products and UpState Semi will not be bound thereby. In the event that OSHA (and/or any other similar entity in any country) requires additions or modifications to the Products before they may be used, it shall be the obligation of Purchaser , at Purchaser's expense, to make such additions and modifications.
15. RETURNS: All returned Products must be accompanied by an UpState Semi Return Material Authorization (hereinafter called RMA) and signed by an authorized representative of UpState Semi. UpState Semi is under no obligation to accept, inspect, replace or repair unauthorized shipments, and Purchaser shall bear all expenses incurred by any such unauthorized shipments to UpState Semi.
16. MATERIALS: Products sold under this agreement may consist of parts that are new, used or refurbished (or any combination thereof). Unless otherwise specified on the UpState Semi quotation or sales order, used and/or refurbished materials may be supplied at the sole discretion of UpState Semi. All refurbished parts shall meet or exceed published Original Equipment Manufacturer (hereinafter called OEM) functionality specifications and any assemblies shall be refurbished using all new o-rings, gaskets and/or seals. Purchaser understands and agrees that refurbished and/or used items, as such, may contain blemishes, dents, scratches or other cosmetic defects or degradation that do not affect the overall function and/or operation of the Products and that UpState Semi is under no obligation whatsoever to repair said defects, except for those provided for by the warranty.
17. INDEMNIFICATION: The Products sold hereunder are not intended for application in and are therefore prohibited from use in or connection with any nuclear installation or activity, medical equipment, aircraft operation or navigation or communications systems, air traffic control, weapons systems, life support systems or any other applications representing a similar degree of hazard to life, health, property or the environment and Purchaser warrants that it shall not use the Products for any such purposes nor will Purchaser permit others to use the Products for any such purpose. In the event that any of the Products furnished hereunder is subjected to or a claimed defect arises as a result of accident, misuse, neglect, alteration, failure to install or the removal of safety devices provided or required by the OEM, unauthorized relocation, or improper repair or maintenance or is installed, maintained or used contrary to OEM's printed warnings, instructions or recommendations, PURCHASER AGREES TO DEFEND, PROTECT, INDEMNIFY, AND HOLD UpState Semi HARMLESS FROM AND AGAINST ALL CLAIMS OF ANY KIND, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE FOR ANY LOSSES, EXPENSES, DAMAGES, AND LIABILITIES, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL WHICH MAY ARISE OUT OF THE USE OF PRODUCTS.
18. ASSIGNMENT: Purchaser shall not assign its rights hereunder.
19. APPLICABLE LAW AND DISPUTES: The validity, performance and all matters relating to the interpretation and effect of this contract and any amendment hereto shall be governed by the laws of the State of New York, excluding its conflict of laws rules which would result in a choice of law for this contract other than New York law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any action based on this contract must be commenced within one (1) year after the cause of action arises.
The parties irrevocably agree that any suit, legal action or proceeding in any matter arising out of or in relation to or based upon this contract may be instituted only in the United States District Court for the Northern District of New York, or if such court refuses jurisdiction, any New York State court which shall have jurisdiction in any such matter. Each party irrevocable waives, to the fullest extent it may effectively do so, any objection which it may have or hereafter have to the jurisdiction of or the laying of venue in any of the above courts, including the defense of an inconvenient forum. If Purchaser is not otherwise subject to service of process in New York, Purchaser agrees to and does hereby irrevocably appoint the Secretary of State of the State of New York as Purchaser's agent for the acceptance of service of process, and a copy of such process shall be mailed by UpState Semi to Purchaser at Purchaser's last known address. The parties agree that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or by any other manner provided by law.
20. VALIDITY: If any provision, paragraph or part thereof of these Standard Terms and Conditions of Sale or other Terms specified in the UpState Semi quotation or sales order is found to be invalid or unenforceable in any respect, the validity and enforceability of the remainder of any such provision, paragraph or part thereof or any other article shall not be affected.
21. EXPORT REGULATION: Purchaser agrees to comply with the provisions of the United States Government's Export Administration regulations and all related documentation and internal control procedures or any amendments thereof. This shall include, but is not limited to, the proper notifications that no person in the United States or a foreign country may export or re-export any commodity or technology, directly or indirectly, without prior specific authorization, in writing, by the United States Office of Export Licensing. Purchaser shall be responsible for obtaining any and all necessary export or import licenses and permits at Purchasers own expense.
22. CONFIDENTIAL INFORMATION: UpState Semi may provide drawings, manuals or other information to Purchaser in fulfillment of this agreement. Purchaser agrees that such information may be proprietary to UpState Semi and that the information shall be held in strict confidence and shall not be used or disclosed by Purchaser to anyone without the prior written and signed consent of UpState Semi.
23. SOFTWARE: In the event that any Products contains computer software, Purchaser must contact the owner of such software to negotiate a software license agreement with such owner in order to use such software. UpState Semi makes no representation that it is the owner or licensee of such software, or that it has any right to license Purchaser to use such software.
24. WARNING: THE PRODUCTS SOLD HEREUNDER MAY BE DANGEROUS IF IMPROPERLY INSTALLED OR IMPROPERLY USED. PRODUCTS MAY CONTAIN HAZARDOUS CHEMICALS AND/OR CHEMICAL RESIDUES OR OTHER HAZARDOUS MATERIALS WHICH MAY BE HAZARDOUS TO LIFE, HEALTH OR TO PROPERTY BY REASON OF TOXICITY, FLAMMABILITY AND/OR EXPLOSIVENESS OR FOR OTHER SIMILAR OR DIFFERENT REASONS.
25. GENERAL: Any representation, warranty, course of dealing or trade usage not contained or referenced herein will not be binding on UpState Semi. These Terms and Conditions contain the entire and only agreement between the Purchaser and UpState Semi with respect to the terms and conditions and supersedes and cancels all previous negotiations, agreements, commitments, representations and writings in respect thereto. These Terms and Conditions may not be amended, supplemented, changed or modified in any manner, orally or otherwise, except by an instrument in writing of concurrent or subsequent date, signed by a duly authorized representative of each party.
26. SURVIVABILITY: The following Articles shall survive termination of any contract between Purchaser and UpState Semi regarding Products: Article 4, Article 6, Articles 10 through 14, and Articles 17 through 26 and any remaining payment obligations of Purchaser.