1. Acceptance
of Orders
All orders are subject to written acceptance by Keragis.
2. Acceptance
of Terms
The terms and conditions contained herein apply to all quotations
made and purchase orders accepted by Keragis. Since these terms
and conditions may conflict with some of the terms and conditions
on forms supplied or specified by the buyer, it is agreed that
the acceptance of the buyer’s order is expressly made conditional
on buyers assent to the terms and conditions contained herein.
Buyer’s failure to reject these terms within 10 days after notification
thereof, or Buyer’s receipt of the merchandise, whichever occurs
first, shall be deemed an acceptance of these provisions without
reservation or condition. Any changes in the terms and conditions
of sale contained herein must be specifically agreed to in writing
by an authorized representative of each party.
Prices quoted
are subject to change or withdrawal without notice prior to acceptance
by Buyer. Prices quoted in accepted orders for delivery at a stated
price are firm and are not subject to audit, price revision, or
redetermination.
3. Payment
Payment terms shall be net 30 days with approved credit as determined
by Keragis. All invoices are due and payable at the net terms
stated on the invoices. No discounts are authorized.
Keragis shall
be entitled to make and invoice for partial and/or accelerated
deliveries, and Buyer will make payment for any such partial and/or
accelerated deliveries in a timely manner.
4. Shipping
Terms
All sales are made F.O.B. point of shipment. Unless otherwise
agreed in writing, title to the material shipped and all risks
of loss pass to Buyer upon Keragis’ delivery to common carrier
at Keragis’ inland shipping point, U.S.A.
Keragis’ liability
ceases upon making delivery of material purchased hereunder to
the carrier at shipping point in good condition: the carrier acting
as Buyer’s agent. All claims for damages must be filed with the
carrier. All shipments will normally be made by Parcel Post, Railway
Express, Air Express, or Air Freight. Unless instructions from
Buyer specify which of the foregoing methods of shipment is to
be used, Keragis will exercise its own discretion. Transportation
charges will be prepaid by Keragis and billed to the Buyer.
5. Taxes
Unless otherwise specifically provided herein, the amount of any
present or future sales revenue, excise or other sales tax applicable
to the products covered by this order or the manufacture or sales
thereof, shall be added to the purchase price and shall be paid
by the Buyer. In lieu thereof the buyer shall provide Keragis
with a tax exemption certificate acceptable to the taxing authorities.
6. Packing
and Tests
Keragis will provide domestic packing at the listed prices, unless
otherwise indicated. Keragis shall have the right to determine
special packing if deemed appropriate. Special packing, and any
testing or inspection of packing materials other than those normally
provided by Keragis, will be charged to Buyer’s account, and Keragis
shall be considered to be acting as Buyer’s agent without liability.
7. Delivery
Keragis’ delivery schedule represent its best estimate on the
basis of current schedules and priorities. In the event of delay
in delivery due to Buyer or to any cause referred to under the
caption "Force Majeure", or at any point beyond that
at which title passes to Buyer, Keragis may, at its option, deliver
products to storage for Buyer’s account and risk. Upon payment
by Buyer of all amounts due, including demurrage, storage charges,
insurance, if any, and all other costs incurred by Keragis as
a result of such storage, shipment will be made. Delivery and
acceptance shall be at the point of storage.
8. Force Majeure
While Keragis will exercise every reasonable care to meet the
expected delivery date or dates shown on the face hereof, Keragis
shall not be liable for loss or damage due to delays resulting
from any cause beyond its reasonable control, including without
limitation compliance with any Government law or regulation, acts
of God, acts or omissions of the Buyer, fires, strikes, floods,
weather, disputes with workmen, embargoes, wars, riots, epidemics,
disease, quarantine restrictions, delays or shortages in transportation,
production or engineering delays or inability of Keragis, or its
vendors to secure adequate materials, manufacturing facilities
or labor on schedule. Any such cause shall extend delivery dates
to the extent of the delay so incurred. Keragis reserves the right
to allocate its inventories and current production without liability
as it sees fit when, in the opinion of Keragis, U.S. Government
regulations make such action necessary.
9. Export
Control
Regulations of the United States Government require the exporter
to obtain required export licenses. Buyer undertakes, with respect
to any resale or other disposition of products ordered from Keragis
hereunder to comply fully with the export control regulations
of the United States Government, as amended from time to time.
Buyer shall comply with all import regulations of country of destination,
and shall be responsible for all import duties, excise taxes,
and similar charges.
10. Warranty
Keragis warrants to the Buyer that the articles at the time of
shipment under this order shall be free of defects in material
and workmanship. Keragis’ liability for the articles shall be
limited to replacing or repairing the defective article(s) or
at Keragis’ option refunding the amount paid under this order
for such defective articles returned to Keragis’ factory within
six (6) months after shipment. THIS WARRANTY IS IN LIEU OF ALL
OTHER WARRANTIES EXPRESSED OR IMPLIED, AND KERAGIS DISCLAIMS ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Buyer warrants
that any materials supplied by Buyer to Keragis for fabrication,
assembly or other integration into Keragis’ product shall be appropriately
qualified and/or tested, with traceability, prior to delivery
at Keragis. Buyer will supply sufficient quantities to meet Keragis’
delivery schedule and will assume responsibility for replacement
of defective materials at no cost to Keragis. Any additional costs
incurred as a result of Keragis’ use or reliance on such defective
materials shall be charged to the buyer. Keragis will dispose
of Buyer supplied residual inventory in accordance with the appropriate
written directions of Buyer.
11. Limitation
of Liability
Notwithstanding any other provisions of this order, under no circumstances
shall Keragis be liable for any CONSEQUENTIAL, SPECIAL, INCIDENTAL,
INDIRECT, MULTIPLE, OR PUNITIVE DAMAGES, and Keragis’ total liability
including but not limited to liability for indemnity, defense,
and hold harmless obligations shall not exceed the amount paid
to Keragis under this order, and Buyer agrees to indemnify, defend,
and hold harmless Keragis for any amounts in excess thereof. The
limitations on liability set forth in this order shall apply even
in the event of the breach of contract, active or passive negligence
or otherwise of the party whose liability is limited and shall
extend to the directors, officers, employees, agents, subcontractors
and related entities of such party.
12. Intellectual
Property Rights
Unless otherwise specifically agreed to by the parties in writing,
Keragis shall retain exclusive ownership of all unique intellectual
Property Rights with respect to the design, development, manufacture,
processing and testing of all products, services and/or related
efforts being performed hereunder.
Notwithstanding
anything herein to the contrary, Keragis shall also retain on
an exclusive basis all rights, titles and interests in Keragis’
standard circuit designs, MMIC processes, design rules, test fixtures
and other Intellectual Property owned by Keragis. Specifically,
no rights, title, interest, or licenses are granted by Keragis
with respect to any technical data or inventions or other Technology
and materials, processes, or related technology, for producing
same (the "Technology"), or to Keragis’ manufacturing,
or other proprietary processes.
13. Patent
Rights
Keragis makes no warranty or representation that any products
purchased by Buyer hereunder will be free from infringement of
any patent, unless otherwise provided on the face hereof. Keragis
shall not be under any obligation to defend Buyer or anyone claiming
under or through buyer against any claim or suit arising out of
Buyer’s purchase hereunder, nor shall Keragis be liable for any
damage assessed as a result of such claim or suit. Keragis’ monetary
liability under these terms for the sale of infringing products
is, in any event, specifically limited in accordance with section
11 above.
Buyer warrants
that the specifications and designs which it furnished to Keragis
are free from infringement of any patent, and Buyer will indemnify,
defend and hold Keragis harmless against any such claim which
arises out of Keragis’ reliance on Buyer’s specifications and/or
design.
14. Cancellation,
Changes and Reschedules
Cancellations, changes and reschedules will apply only with the
specific written approval of Keragis. Any cancellation, change
or reschedule shall be subject to charges which shall include
but not be limited to all expenditures made and committed for
this order, administrative charges, and other reasonable expenses
as determined by Keragis.
15. Disputes
and Arbitration
It is the intention of both parties that all disputes which may
arise under or in connection with this contract shall if possible
be settled by amicable agreement. If this is not possible such
disputes will be submitted and finally settled as set forth below.
In the event
of any legal dispute between Buyer and Keragis, the prevailing
party will be entitled to reasonable attorneys’ fees in addition
to any other relief to which that party may be entitled.
Buyer and
Keragis irrevocably agree that the courts of the State of California
shall have exclusive jurisdiction to settle any dispute and/or
controversy of whatsoever nature arising out of any contract agreement
between Buyer and Keragis.
16. Applicable
Law
Any contract or sale made pursuant to these terms shall be governed
by the laws of the State of California, United States of America,
excluding any conflict of laws provisions.
17. Unenforceable
Provisions
In the event any one or more of the provisions of the agreement
shall for any reason be held to be invalid or unenforceable, the
remaining provisions shall be unimpaired, and the invalid or unenforceable
provision shall be replaced by a provision which, being valid
and enforceable, comes as close as lawfully possible to the intention
of the parties underlying the invalid unenforceable provisions.
18. Supersession
This document constitutes the entire understanding between the
parties, and it supersedes and replaces all previous or additional
agreements, arrangements and drafts relating hereto, except as
specifically noted herein.
19. Amendment
of these Terms
These terms are subject to change without notice until Buyer’s
order has been accepted by Keragis. Thereafter, they may only
be amended or modified by subsequent mutual written agreement
by duly authorized officials of both parties.
