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For
the purposes of these Terms and Conditions of Sale ("Terms and Conditions" or
"Agreement"), "SIERRA IC" shall mean SIERRA IC Inc., SIERRA IC is also referred to as
"SELLER." The following Terms and
Conditions exclusively govern any orders placed or products ordered or purchased
("Products") through this website found at www.SIERRAIC.com ("Website"). Please
read this contract carefully as the Products are offered conditional upon
acceptance, without modification, of the terms, conditions and notices contained
herein. If you do not accept the Terms and Conditions stated herein, please do
not place orders or purchase Products from this Website. These Terms and
Conditions may be revised at any time by updating this posting. You are
encouraged to visit this page before each purchase to review the Terms and
Conditions. Products furnished and services rendered by SIERRA IC are done so
only in accordance with these Terms and Conditions. These Terms and Conditions
take precedence over your supplemental or conflicting terms and conditions, to
which notice of objection is hereby given. Neither SELLER's commencement of performance nor delivery shall be deemed or construed as acceptance of
any of your supplemental or conflicting terms and conditions. Your indication of
acceptance of these Terms and Conditions prior to purchase and/or your
acceptance of the Products from SELLER shall be deemed to constitute agreement
to all of the Terms and Conditions contained herein. THESE TERMS AND CONDITIONS
MAY ONLY BE WAIVED OR MODIFIED BY SELLER IN A WRITTEN
AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER.
I. Product
Sale
Terms
1.
Orders: All orders placed by or for
you (the "Buyer") are subject to acceptance by SELLER. Orders may not be
cancelled or rescheduled without SELLER's prior
written consent. SELLER may in its sole discretion allocate Product among its
customers. SELLER designates All Products as non-cancelable ("NCNR").
Due to the constant fluctuations in SELLER's inventory
levels, some information featured on this Website regarding availability and
inventory levels may not be up to date. Products may be out of stock or in short
supply. If a Product cannot be shipped within 30 days of receipt of the order by
SELLER, SELLER will notify Buyer and allow buyer the opportunity to cancel the
order for the Product. 2. Prices: (a) The
prices of the Products are those specified on this Website and as further
reflected on the front of SELLER's invoice. Pricing
for undelivered Product may be increased in the event of any increase in SELLER's cost, change in market conditions or any other
causes beyond SELLER's reasonable control. Due to the
extremely volatile market for certain types of electronic components, prices
quoted on this Website may, on occasion, no longer be in effect. Whenever such a
discrepancy exists, Buyer will be advised of the discrepancy before the order is
shipped. Subject to the foregoing, Buyer shall pay the prices quoted on the
Website. Prices stated or quoted through this Website are quoted in U.S.
dollars. (b) Unless otherwise agreed to in writing by SELLER, all
prices quoted are exclusive of transportation and insurance costs, duties, and
all taxes including, but not limited to, federal, state, provincial and local
sales, excise, goods and services and value added taxes and any other taxes.
Buyer agrees to pay these taxes unless Buyer has provided Seller with an
exemption resale certificate in the appropriate form for the jurisdiction of
Buyer's place of business and any jurisdiction to which products are to be
directly shipped hereunder, or unless the sale is otherwise exempt from these
taxes. Buyer agrees to indemnify and hold SELLER harmless for any liability for
tax in connection with the sale, as well as the collection or withholding
thereof, including penalties and interest thereon. When applicable,
transportation and taxes shall appear as separate items on Seller's
invoice. 3. Payment: (a) Full
payment is due promptly upon placing an order. SIERRA IC reserves the right to
take all steps necessary and to impose interest, late charges or other payment
terms as SIERRA IC may deem appropriate to collect full payment from you for
products supplied. (b) All late payments shall be charged interest computed on a
daily basis from the due date until paid in full. A late charge of one and
one-half percent (1 1/2%) per month or the maximum rate permitted by applicable
law, whichever is less, will be imposed on all past due accounts. Buyer shall be
liable for costs of collection, including reasonable attorneys' fees and court
costs, in any action to collect past due amounts. (c) Transportation
charges from SELLER's facility to Buyer's facility
shall be paid by Buyer to SELLER, in addition to the purchase price of the
Product, unless otherwise agreed to in writing by SELLER. SELLER will select the
carrier. (d) If SELLER believes in good faith that Buyer's ability to
make payments may be impaired or if Buyer shall fail to pay for an order when
due, SELLER may suspend delivery of any order or any remaining balance thereof
until such payment is made or cancel any order or any remaining balance thereof,
and Buyer shall remain liable to pay for any Products already shipped and all
NCNR or C/S Products ordered by Buyer. (e) SELLER retains a
purchase money security interest in the Products delivered to Buyer, and in
their accessories, replacements, accessions, proceeds and Products, including
accounts receivable (collectively, the "Collateral") to secure payment of all
amounts due under this Agreement. Buyer's failure to pay all amounts hereunder
in full when and as due shall constitute a default hereof and shall give SELLER
all rights of a secured party. If Buyer fails to pay any amount when due, SELLER
shall have the right to repossess and remove all or any part of the Collateral
from Buyer, but not from Buyer's Customers. Any repossession or removal shall be
without prejudice to any other remedy of SELLER hereunder, at law or in equity.
Buyer agrees, from time to time, to take any act and execute and deliver any
document (including, without limitation, financing statements) reasonably
requested by SELLER to transfer, create, perfect, preserve, protect and enforce
this security interest. (f) Any payment received from Buyer may be applied by Seller
against any obligation owing from Buyer to Seller, regardless of any statement
appearing on or referring to such payment, without discharging Buyer's liability
for any additional amounts owing from Buyer to Seller, and the acceptance by
Seller of such payment shall not constitute a waiver of Seller's right to pursue
the collection of any remaining balance. 4. Delivery and
Title: All deliveries will be made EXW (Ex Works as defined in Incoterms 2000) SELLER's facility
or FOB place of origin. Subject to SELLER's right of
stoppage in transit, delivery of the Products to the carrier shall constitute
delivery to Buyer and title and risk of loss shall thereupon pass to Buyer.
Selection of the carrier and delivery route shall be made by SELLER unless
specified by Buyer. Buyer acknowledges that delivery dates provided by SELLER
are estimates only and SELLER shall not be liable for delays in delivery or for
failure to perform due to causes beyond the reasonable control of SELLER nor
shall the carrier be deemed an agent of SELLER. In the event of delay caused by
such event, the date of delivery shall be extended for a period equal to the
time lost as a consequence of the delay in delivery without subjecting SELLER to
any liability or penalty. If the Products perished while in the custody of the
carrier, the SELLER shall be deemed to have performed its obligations in full.
Delivery of a quantity which varies from the quantity specified shall not
relieve Buyer of the obligation to accept delivery and pay for the Products
delivered. Delay in delivery of one installment shall not entitle Buyer to
cancel other installments. 5. Acceptance/Returns: Shipments
will be deemed to have been accepted by Buyer upon delivery of the said
shipments to Buyer unless rejected upon receipt. Buyer shall perform whatever
inspection or tests Buyer deems necessary as promptly as possible but in no
event later than five (5) days after delivery, after which time Buyer will be
deemed to have irrevocably accepted the Products. Any discrepancy in shipment
quantity must be reported within five (5) working days of receipt of the
Products. In the event of an over shipment, Buyer shall have the option to
return the Products to SELLER at SELLER's expense or
alternatively, Buyer may elect to retain the Products (subject to adjustment of
the invoice price to account for additional items). Any Product returns shall be
subject to compliance with SELLER's Return Merchandise
Authorization ("RMA") policies and procedures as well as a restocking charge
equivalent to 50% of the value of such Product as specified in SELLER's invoice to Buyer. Returned Products must be in the
original packaging and conform with minimum package
quantity ("MPQ") requirements. Products not eligible for return shall be
returned to Buyer freight collect. 6. Limited Warranty
and Limitation of Liability: (a) SELLER will transfer to Buyer any transferable warranties
or indemnities that the manufacturer of the Product or the third party
vendor/service provider provides to SELLER. SELLER SHALL HAVE NO LIABILITY
TOWARDS BUYER BEYOND THE EXPRESS TERMS OF SUCH MANUFACTURER PRODUCT WARRANTIES.
SELLER ASSUMES NO LIABILITY FOR THE QUALITY OF THE WORK PERFORMED OR SERVICES
RENDERED BY THIRD PARTY VENDORS/SERVICE PROVIDERS. IT IS BUYER'S OBLIGATION TO REQUEST COPIES OF ANY APPLICABLE
MANUFACTURER WARRANTIES AND BUYER SHALL BE DEEMED TO HAVE ACCEPTED SUCH
WARRANTIES UPON ACCEPTANCE OF THE PRODUCTS AND/OR SERVICES
. (b) SELLER's exclusive obligations
with respect to a non-conforming Product or service shall be, at SELLER's option, to repair or replace the Product, if it is
determined to be defective, or to re-perform the service, or to refund to Buyer
the purchase price paid for the Product or service. Notwithstanding anything
herein to the contrary, the liability of SELLER under this Section 6(b) for all
claims shall not exceed the sum of Buyer's payments for the Products or services
which are the subject of the dispute and the foregoing is Buyer's sole and
exclusive remedy for all claims under this Section 6(b). IRRESPECTIVE OF THE
NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE, THE
FOREGOING WARRANTIES ARE THE SOLE WARRANTIES, EXPRESS OR IMPLIED, GIVEN BY
SELLER IN CONNECTION WITH THE PRODUCTS AND SERVICES, AND SELLER DISCLAIMS ALL
OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND
WARRANTIES AGAINST LATENT DEFECTS. (c) Replacement Products
shall be warranted as set forth in Section 6(a) above. Any Products repaired or
serviced by SELLER shall be warranted as provided in this Section 6(b) for the
remainder of the manufacturer's warranty period. (d) No warranty shall
apply to any Product that has been subject to misuse, improper testing,
assembly, mishandling, or which has been operated contrary to current
instructions relating to installation, maintenance or operation, or contrary to
industry standards relating to acceptable input power. (e) SELLER disclaims, and
shall have no liability for, any trademark, trade dress, trade secret,
copyright, design or patent infringement, or any other intellectual property
claim which may arise, as a result of the sale of Products to Buyer. The only
remedy or recourse for trademark, trade dress, trade secret, copyright, design
or patent infringement or any other intellectual property right shall be against
the manufacturer of the Products. There shall be no remedy or recourse against
Seller or the manufacturer to the extent the infringement arises from or is
otherwise based upon (i) the manufacturer's compliance
with the particular requirements of Buyer that differ from the manufacturer's
standard specifications for the Product; (ii) modifications or alterations of
the product other than by the manufacturer; or (iii) a combination of the
Product with other items not furnished or manufactured by the manufacturer.
(f)
BUYER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR,
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE
INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR
REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF
DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR
LOSS OF CUSTOMERS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT,
WARRANTY, OR OTHERWISE. SELLER SHALL NOT BE LIABLE FOR AND BUYER SHALL
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 PRODUCTS BY PARTIES OTHER THAN SELLER, OR USE IN COMBINATION WITH OTHER
PRODUCTS. IF, FOR ANY REASON, THE FOREGOING LIMITATIONS ARE FOUND BY AN
ARBITRATION PANEL OR COURT OF COMPETENT JURISDICTION TO BE INVALID OR
INAPPLICABLE UNDER THE CIRCUMSTANCES UNDER ANY APPLICABLE FEDERAL, STATE OR
PROVINCIAL LAW, BUYER AGREES THAT SELLER'S TOTAL LIABILITY FOR ALL DAMAGES,
LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO ACTUAL
DAMAGES WITHOUT REGARD TO ANY PUNITIVE OR EXEMPLARY DAMAGES PROVIDED BY ANY SUCH
APPLICABLE LAW. (g) Buyer acknowledges that this Agreement was entered into
at arms length and that it was not fraudulently induced to enter into this
Agreement, in whole or any part, and Buyer explicitly disclaims and waives any
claim with respect thereto. 7. Intellectual Property: If any Products include software or other intellectual
property, such software or other intellectual property is provided by SELLER to
Buyer subject to the copyright and user license, if any, for such Products, the
terms and conditions of which are set forth in the license agreement
accompanying such software or other intellectual property. Nothing herein shall
be construed to grant any rights or license to use any software or other
intellectual property in any manner or for any purpose not expressly permitted.
Buyer acknowledges and understands that SIERRA IC is not the manufacturer of any Products
ordered or to be supplied to you and is not liable to you or any third party for
any copyright, design, patent or other intellectual property issue, right or
claim that may arise in relation to any Product. 8. Export Control/Use
of Products: Buyer certifies that it will be the final recipient and
consumer of Products to be delivered by SELLER. Buyer acknowledges that the
Products are subject to the export and/or import control laws and regulations of
various countries including the Export Administration Laws and Regulations of
the United
States and similar
laws in USA. Buyer agrees to comply
strictly with all U.S. and Canadian export laws and assumes sole responsibility
for obtaining licenses to export or re-export as may be required and
acknowledges that it shall not directly or indirectly export or make available
for export any Products to any country to which such export or transmission is
restricted or prohibited. Products sold by SELLER are cannot be transferred,
sold or reexported to any party on the Entity List or
Restricted Person List of the U.S. Department of Commerce, Bureau of Export
Administration (BXA), any party designated by the U.S. Treasury Department's
Office of Foreign Assets Control, and any party debarred or sanctioned for
proliferation or terrorism reasons by the U.S. State Department. Products sold
by SELLER are not designed, intended or authorized for use in life support, life
sustaining, nuclear, or other applications in which the failure of such Products
could reasonably be expected to result in personal injury, loss of life or
catastrophic property damage. If Buyer uses or sells the Products for use in any
such applications: (1) Buyer acknowledges that such use or sale is at Buyer's
sole risk; (2) Buyer agrees that SELLER and the manufacturer of the Products are
not liable, in whole or in part, for any claim or damage arising from such use;
and (3) Buyer agrees to indemnify, defend and hold SELLER and the manufacturer
of the Products harmless from and against any and all claims, damages, losses,
costs, expenses and liabilities arising out of or in connection with such use or
sale, including reasonable attorneys fees. 9. Technical
Assistance or Advice: Any technical assistance or advice offered by SELLER in
regard to the use of any Product or provided in connection with Buyer's
purchases is given free of charge and only as an accommodation to Buyer. SELLER
shall have no obligation to provide any technical assistance or advice to Buyer
and if any such assistance or advice is provided, such fact will not obligate
SELLER to provide any further or additional assistance or advice. SELLER shall
not be held liable for the content or Buyer's use of such technical assistance
or advice nor shall any statement made by any of SELLER's representatives in connection with the Products or
services constitute a representation or warranty, express or
implied. 10. Limitation Period: Subject to
any of the limitations expressed in the applicable manufacturer's warranty, no
action by Buyer may be brought at any time for any reason more than twelve (30)
day after the facts occurred upon which the cause of actions arose.
II. Miscellaneous
11. Dispute Resolution: (a) Except for situations
governed by Section 12, the parties agree that any and all disputes, claims, or
controversies arising out of or related to the validity, interpretation or
performance of this Agreement for all Products delivered outside of U.S.A., and
all Services performed outside of U.S.A. shall be resolved pursuant to this
Section 11 and that the validity, interpretation and performance of this
Agreement for all Products delivered, and all Services performed hereto, shall
be governed by, and construed in accordance with, the internal law of
Massachusetts, without giving effect to conflict of law principles. Both parties
agree that any action, demand, claim or counterclaim relating to the terms and
provisions of this Agreement, or to any claimed breach, shall be commenced in a
state or federal court located in the Commonwealth of Massachusetts, and both
parties expressly acknowledge that personal jurisdiction and venue shall lie
exclusively and is properly in Massachusetts. Both parties further agree that
any action, demand, claim or counterclaim relating to the validity,
interpretation and performance of this Agreement, or any other matter between
the parties, shall be resolved by a judge alone in
Massachusetts
, and both
parties hereby waive and forever renounce the right to a trial before a civil
jury. (b) For all disputes to
which this Section 11 applies and the amount, in the aggregate, of the
obligations arising out of this agreement equals or exceeds $250,000, the
validity, interpretation and performance of this Agreement shall be governed by,
and construed in accordance with the laws of the State of North Carolina, without
giving effect to conflict of laws principles, and the Federal Rules of Civil
Procedure to any dispute. (c) With respect to all disputes, the provisions of the
United Nations Convention on Contracts for the International Sale of Goods 1980
(as amended, replaced or codified from time to time) shall not
apply.
13. Force Majeure: SELLER shall not be liable for its inability to secure
sufficient quantities of any Product or failure to deliver due to causes beyond
SELLER's reasonable control including, but not limited
to, acts of God, natural or artificial disaster, riot, war, strike, delay by
carrier, or shortage of Product, acts or omissions of other parties, acts or
omissions of civil or military authority, Government priorities, changes in law,
material shortages, fire, strikes, floods, epidemics, quarantine restrictions,
acts of terrorism, delays in transportation or inability to obtain labor,
materials or products through its regular sources, which shall be considered as
an event of force majeure excusing SELLER from
performance and barring remedies for non-performance. In an event of force majeure condition, the SELLER's
time for performance shall be extended for a period equal to the time lost as a
consequence of the force majeure condition without
subjecting SELLER to any liability or penalty. SELLER may, at its option, cancel
the remaining performance, without any liability or penalty, by giving notice of
such cancellation to Buyer. 14. Non-Waiver: No course of dealing or failure of either party to strictly
enforce any term, right or condition of this Agreement shall be construed as a
waiver of that term, right or condition nor shall SELLER's acceptance of a purchase order be deemed as an
acceptance of any terms and conditions therein. 15. Entire
Agreement: This Agreement (together with any agreements, policies or
terms incorporated by reference) shall constitute the complete, final and
exclusive statement of the terms of the Agreement between the parties with
respect to the subject matter of this Agreement and the transactions between the
parties and shall not be modified or rescinded, except by a writing signed by
SELLER and Buyer. The provisions of this Agreement supersede all prior oral and
written quotations, communications, agreements, and understandings of the
parties with respect to the subject matter of this Agreement. Products furnished
and services rendered by SELLER are done so only in accordance with these Terms
and Conditions. If any provision of these Terms and Conditions are found to be
invalid by any court having competent jurisdiction, the invalidity of such
provision shall not affect the validity of the remaining provisions of these
Terms and Conditions, which shall remain in full force and effect.
16.
General: As used herein, terms appearing in the singular shall include
the plural and terms appearing in the plural shall include the singular. No
rights, duties, agreements or obligations hereunder may be assigned or
transferred by Buyer, by operation of law, merger or otherwise, without the
prior written consent of SELLER. Any attempted or purported assignment shall be
void. Notwithstanding the foregoing, SELLER's
obligations under these Terms and Conditions may be performed by divisions,
subsidiaries or affiliates of SELLER. The obligations, rights, terms and
conditions hereof shall be binding on the parties hereto and their respective
successors and assigns. Any provision hereof which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other
jurisdiction.
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