TERMS AND CONDITIONS OF SALE
All quotations and sales by Mu-Del Electronics LLC, its subsidiaries or affiliates (“Supplier”), are subject to these terms and conditions and those on the front of this document.
1. Except as otherwise set forth on the front of this document: Terms of payment are net 30 days from invoice date; prices are Ex Works Supplier’s facility; and prices do not include any taxes, freight, handling, duty or other similar charges, payment of which will be the sole responsibility of customer. Prices are conditioned upon timely payment, and any past due balance will accrue interest at the monthly rate of 1.5% or if less, the maximum rate permitted by law. Freight charges may be constructed on the basis of standard carrier tariffs and may not reflect actual transportation costs. Supplier reserves the right to modify terms prior to shipment, require payment in advance, or delay or cancel any shipment or order by reason of customer’s creditworthiness or should customer fail to fulfill any obligation when due. Supplier will use reasonable efforts to meet specified or requested delivery dates, but such dates are estimates only and are not guaranteed. Supplier shall in no event be liable to customer for damages or losses resulting from any delays in delivery.
2. In the absence of prior agreement as to shipping or if customer fails to designate a carrier, Supplier may select a carrier. Supplier’s responsibility for any loss or damage ends, and title passes, when products are made available to the carrier. Customer will pay for storage charges if products are held by Supplier at customer’s request pending instructions or rescheduled delivery. Transportation shall be at customer’s sole risk and expense, and any claim for loss or damage in transit shall be against the carrier only unless otherwise specifically agreed to in writing by Supplier.
3. Supplier warrants to customer that those products assembled or customized by Supplier will be free from defects caused solely by faulty assembly or customization for one year after delivery. All other products, and the components and materials utilized in any assembled or customized products, are covered by, and subject to, the terms, conditions, and limitations of the manufacturer’s standard warranty, which warranty is expressly in lieu of any other warranty, express or implied, of or by Supplier or the manufacturer. Customer’s exclusive remedy, if any, under these warranties is limited, at Supplier’s election, to any one of (a) refund of customer’s purchase price, (b) repair by Supplier or the manufacturer of any products found to be defective, or (c) replacement of any such product. Customer acknowledges that, except as specifically set forth or referenced in this paragraph, THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, IN ADVERTISING MATERIALS, BROCHURES, OR OTHER DESCRIPTIVE LITERATURE) BY SUPPLIER OR ANY OTHER PERSON, EXPRESS OR IMPLIED, AS TO THE CONDITION OR PERFORMANCE OF ANY PRODUCTS, THEIR MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. SUPPLIER ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR MANUFACTURER’S PRODUCT SPECIFICATIONS OR THE PERFORMANCE OR ADEQUACY OF ANY DESIGN OR SPECIFICATION PROVIDED TO SUPPLIER BY OR ON BEHALF OF CUSTOMER. Use of the customer’s part number on this document or on any products is for convenience only and does not constitute any representation by Supplier with respect to the performance, specifications, or fitness of any part for any purpose. This warranty is automatically void with respect to any product that is repaired or otherwise modified or altered in any way by anyone other than Supplier or a person or entity authorized by Supplier.
4. Customer is responsible for all costs and expenses incurred by Supplier in collecting any sums owing by customer (which may include, but are not limited to, collection agency and attorneys’ fees). If Supplier incurs costs collecting on any judgment arising out of customer’s breach, customer will be responsible for them, and this provision will survive the entry of any such judgment. Supplier shall have the right to offset any sum owed by Supplier or any Supplier subsidiary to customer against any sum owed by customer to Supplier or any Supplier subsidiary or affiliate.
5. Products are deemed accepted by customer unless customer notifies Supplier in writing within 10 days of delivery of product shortages, damage or defect. No returns may be made for any reason without a Return Materials Authorization Form issued by Supplier. If customer refuses to accept tender or delivery of any products or returns any products without authorization from Supplier, such products will be held by Supplier awaiting customer’s instruction for 20 days, after which Supplier may deem the products abandoned and dispose of them as it sees fit, without crediting customer’s account.
6. Supplier will not be liable for any failure or delay in its performance or in the delivery or shipment of products, or for any damages suffered by customer by reason of such failure or delay, when such failure or delay is caused by, or arises in connection with, any fire, flood, accident, riot, earthquake, severe weather, war, act of terrorism, governmental interference or embargo, strike, shortage of labor, fuel, power, materials or supplies, delay in delivery by Supplier’s suppliers or any other cause or causes beyond Supplier’s reasonable control. Supplier reserves the right to cancel without liability any order, the shipment of which is or may be delayed for more than 30 days by reason of any such cause. Supplier reserves the right to allocate in its sole discretion among customers or potential customers, or defer or delay the shipment of, any product which is in short supply.
7. All quotations and sales are made only upon these terms and conditions and those on the front of this document. This document, and not any purchase order or other customer document (which, if construed to be an offer is hereby rejected), will be deemed an offer or counter-offer and is a rejection of any other terms or conditions. Customer, by accepting any products, making any payments or ordering any products having previously received these terms and conditions, will be deemed to have assented to these terms and conditions, notwithstanding any terms contained in any prior or later communication from customer and whether or not Supplier specifically or expressly objects to any of customer’s terms. Supplier’s failure to object to any document, communication or act of customer will not be deemed a waiver of any of these terms and conditions. Any addition or change to these terms and conditions must be specifically agreed to in writing by a duly authorized officer of Supplier before becoming binding on Supplier. Supplier’s failure to strictly enforce any right on one occasion does not constitute a waiver of that or any other right on any other occasion.
8. If customer’s order is placed under a contract with the United States Government, Supplier agrees to comply with those contract provisions and regulations with which, pursuant to law, it must comply and of which customer has, at the time of order placement, placed Supplier on notice. In no event will United States Government Cost Accounting Standards apply. All rights in technical data and software owned or licensed by Supplier or the manufacturer are hereby reserved and deemed restricted or limited. No provision of customer’s contract with the government will be binding on Supplier or the manufacturer except as expressly set forth in this paragraph.
9. Unless specifically otherwise agreed in writing by Supplier, customer acknowledges that products sold by Supplier are not intended for and will not be used in life support systems, human implantation, nuclear facilities or systems or any other application where product failure could lead to loss of life or catastrophic property damage. Customer will indemnify, defend and hold Supplier harmless from any loss, cost or damage resulting from customer’s breach of the provisions of this paragraph.
10. Any or all products may be subject to export or resale restriction or regulation, and customer acknowledges that it will comply with such regulations or restrictions. Any or all products may have been imported. Country of origin information is as provided to Supplier by its suppliers and is, where applicable, located on the products themselves or the supplier’s innermost packaging thereof.
11. Except for the warranty coverage referenced in paragraph 3, above, SUPPLIER’S RESPONSIBILITY WITH RESPECT TO THE PRODUCTS AND SUPPLIER’S OBLIGATIONS RELATED THERETO SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS. NEITHER SUPPLIER NOR ITS SUPPLIERS WILL HAVE ANY LIABILITY OR OBLIGATION TO CUSTOMER OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR LOSS OF BUSINESS OR PROFIT, WHETHER OR NOT SUPPLIER WILL HAVE BEEN INFORMED OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH DAMAGES.
12. The performance of any value-added service may void the manufacturer’s warranty and render products non-returnable. Orders incorporating such services are, accordingly, non-cancelable and the products are non-returnable. Any third party value-added service provider is deemed to be an agent of customer
13. Any software included in or relating to products is supplied by the manufacturer. Supplier makes no representation or warranty with respect thereto and will have no liability in connection therewith. Customer agrees to comply with the manufacturer’s or other requirements with regard to proprietary and similar rights in and to such software (including any requirement to enter into a separate license agreement and prohibitions against duplicating or disclosing the same), even if the seal on any ”shrink wrapped” software has been broken by Supplier, customer will indemnify, defend and hold Supplier harmless from any and all liability, cost or expense arising from a breach or purported breach of such requirements.
14. Supplier may assign accounts. In order to defray the cost of customer account administration, any credit balance or other sum owed to customer that remains unclaimed by customer for a period of eighteen months will become the property of Supplier.
15. No order may be cancelled, rescheduled or reconfigured without Supplier’s prior written authorization and, in such event, customer will be liable to Supplier for any additional costs and expenses incurred by Supplier.
16. Prices are subject to change by Supplier upon customer rescheduling or reconfiguration of orders. Prices are also subject to change in response to supplier price increases, whereupon, customer may cancel the undelivered portion of any affected order by delivering written notice to Supplier prior to the shipment thereof and within 10 days of its receipt of notice of the price increase.
17. Any drawings, designs, specifications, technical data, technical information, formulations, ideas, inventions, concepts, discoveries, works of authorship, trade secrets, know-how, manuals, installation instructions and other documents and intellectual property furnished or disclosed by Supplier are strictly stated for the use of customer in the assembly and use of the products. Customer acknowledges that such information and documents are valuable property, confidential information and trade secrets of, and owned by, Supplier, and customer shall take all reasonable steps to protect the confidentiality of such information and documents and shall not disclose, copy, publish, in whole or in part, or otherwise disseminate or make available such information or documents or their contents, in whole or in part, to any person without the prior written permission of Supplier. Customer must make reasonable effort to confirm the accuracy of information in documents provided by Supplier. Supplier does not guarantee the accuracy of all information contained therein. Without limiting the foregoing, customer is granted no right or license to use any such information or documents for purposes of making or having made any product, or to remanufacture or rebuild any product sold to customer by Supplier. Customer acknowledges that breach of this paragraph could cause irreparable harm to Supplier and agrees that Supplier shall be entitled to enforce customer’s obligations hereunder by court injunction, without the need for Supplier to prove actual damages or to post a bond or other security, or court-ordered affirmative action, which injunction or ordered action may restrain a future breaking of this paragraph if there is reasonable ground to believe that such a breach is threatened.
18. These terms and conditions shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to its conflicts of laws principles. Any action arising out of or in connection with any sale of products by Supplier may be brought in the state or federal courts located in the State of Delaware, and customer hereby consents to the jurisdiction of such courts and waives any defense to such action based on improper venue. The United Nations Convention on Contracts for the International Sale of Goods and any choice of law provisions that require application of any other law are excluded and shall have no force or effect. The parties waive any right to trial by jury.
19. English shall be the official language of these terms and conditions,