WARRANTY – (a) Seller warrants that on the date of shipment the goods are of the kind and quality described herein and are free of non-conformities in workmanship and material.
(b) Buyer’s exclusive remedy for a nonconformity in any item of the goods shall be the repair or the replacement (at Seller’s option) of the item and any affected part of the goods. Unless otherwise specified, the Seller’s obligation to repair or replace shall be in effect for a period of (i) three (3) years from the initial operation of single programming site engineering programmers (ii) one (1) year from initial operation of other goods but not more than eighteen (18) months from Seller’s shipment of the goods or (iii) sixty (60) days from date of installation of spare parts where properly used, stored and maintained, and if properly assembled and installed. Warranty is valid provided Seller has received written notice within that period of time set forth above that the goods do not conform to the above warranty. Said warranty shall not extend to sockets, which are classified herein as consumable items. Repaired and replacement parts shall be warranted for the remainder of the original period of notification set forth above. At its expense, Buyer shall remove and ship to Seller any such nonconforming items and shall reinstall the repaired or replaced parts. Buyer shall grant Seller access to the goods at all reasonable times in order for Seller to determine any nonconformity in the goods. Seller shall have the right of disposal of items replaced by it. If Seller is unable or unwilling to repair or replace, or if repair or replacement does not remedy the nonconformity, Seller and Buyer shall negotiate an equitable adjustment in the contract price.
(c) SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EXCEPT THAT OF TITLE. SPECIFICALLY, IT DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING AND USAGE OF TRADE.
(d) Buyer and successors of Buyer are limited to the remedies specified in this article and shall have no others for a nonconformity in the goods. Buyer agrees that these remedies provide Buyer and its successors with an adequate remedy and are the exclusive remedies of Buyer, regardless of whether Buyer’s or its successors’ remedies are based on contract, warranty, tort (including negligence), strict liability, lost profits, direct damages, indemnity, or any other legal theory, and whether arising out of warranties, representations, instructions, installations, or non-conformities from any cause.
(e) Note: This Article 1 does not apply to any software, which may be furnished by Seller. In such cases, Article 2 applies.
SOFTWARE LICENSE, WARRANTY, FEES – (a) Seller hereby grants to Buyer: a non-exclusive, non-transferable right to use the computer software program licensed under this Contract in machine-readable, object code form and any modifications made and generally distributed by Seller thereto (“Software”), but only in connection with the configuration of the goods and operating system for which the Software is ordered and for the end-use purpose stated in the related Seller operating documentation. Buyer agrees that neither it nor any third party shall modify, reverse engineer, decompile or reproduce the Software, without Seller’s prior written consent, except for making a single copy for backup or archival purposes in accordance with the related Seller operating documentation, and provided that Seller’s confidential and proprietary legend is included. Buyer shall not provide or otherwise make available the Software in any form or any portion thereof to any person other than Buyer’s employees who agree to maintain the confidentiality of same. Except to the extent that the parties otherwise agree in writing, Buyer’s license to use the copy of such Software shall terminate upon breach of this license or the Contract by Buyer, including, without limitation, breach of payment or confidentiality obligations. All copies of the Software are the property of Seller, and all copies for which the license is terminated shall be returned to Seller promptly after termination.
(b) Seller may in its sole discretion authorize Buyer (such as a Seller distributor or original equipment manufacturer) to transfer this software license and warranty to a third party in the case where the entirety of said license is transferred (“Seller-authorized transferee”). Such authorization to transfer shall be in writing and signed by a Seller authorized representative. Seller-authorized transferee must have the same rights and obligations as Buyer, except it shall not have the right to transfer such license. Such transferee must assume Buyer’s obligations hereunder.
(c) Seller warrants that on the date of shipment of the Software only to Buyer or Buyer’s Seller-authorized transferee hereunder that: (1) the Software media contain a true and correct copy of the Software and are free from material defects; (2) Seller has the right to grant the license hereunder; and (3) the Software will function substantially in accordance with the related Seller operating documentation. Seller disclaims any warranty that the operation of the Software will be uninterrupted or error-free, meet Buyers requirements or work in conjunction with any other software of Buyer. This warranty does not apply to software delivered by other entities be it “Corporate” or “Personal”. The warranty for software produced by others shall be the warranty as stated by the software producer.
(d) If within one (1) year from date of initial installation (but not more than eighteen (18) months from date of shipment by Seller to Buyer) of Software, Buyer or its Seller-authorized transferee hereunder discovers that the Software is not as warranted above and promptly notifies Seller in writing, within this period of time, of the nonconformity, and if Seller cannot correct the nonconformity or deems correction to be commercially impracticable or prohibitively expensive, Buyer’s and Buyer’s Seller-authorized transferee’s exclusive remedies, at Seller’s option and expense, are: (1) replacement of the nonconforming Software; or (2) termination of this license and a refund of an equitable, pro rata share of the Contract price or license fee paid.
(e) This warranty will apply for the period specified in (d) above, provided that: (1) the Software is not modified, changed, or altered by anyone other than Seller or its designated suppliers, unless authorized by Seller in writing; (2) there is no change by anyone other than Seller to the goods for which the Software is ordered; (3) the goods are in good operating order and are installed in a suitable operating environment with appropriate hardware; (4) the nonconformity is not caused by Buyer, Buyer’s Seller-authorized transferee, or any of their agents, servants, employees, or contractors, or any third party; (5) Buyer or Buyer’s Seller-authorized transferee promptly notifies Seller in writing, within the period of time set forth in (d) above, of the nonconformity after it is discovered; and (6) all fees for the Software due to Seller have been paid. SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING AND USAGE OF TRADE.
(f) Buyer and successors of Buyer are limited to the remedies specified in this Article 2 and shall have no others for a nonconformity in the Software. Buyer agrees that these remedies provide Buyer and its successors with a minimum adequate remedy and are their exclusive remedies, whether Buyer’s or successors’ remedies are based on contract, warranty, tort (including negligence), strict liability, lost profits, direct damages, indemnity, or any other legal theory, and whether arising out of warranties, representations, instructions, operating documentation, installations, or non-conformities from any cause.
(g) Unless otherwise provided in this Contract, the fees for this Software license are included in the purchase price of the goods. Any subsequent modifications or enhancements to the Software made by Seller are, at Seller’s option, subject to a fee.
(h) Seller warrants that Buyer will receive all Software Releases for up to a year from the Buyer’s purchase/product Software Date. Due to the cyclical nature of the Software Releases, no betas will be made available for a Base Code Software version that is made available after Warranty expires. (i.e. Purchase made in October with an August Base Code Software Date will allow Buyer to receive software releases until September 1st (Warranty Release date) of the year warranty expires.) No Beta Software Releases will be made available after Warranty Release date. Upon reaffirmation of Warranty, all latest versions of Software will be available for download.
PATENTS – Seller shall pay costs and damages finally awarded in any suit against Buyer or its vendees to the extent based upon a finding that the design or construction of the goods as furnished infringes a United States patent or third party intellectual property claims (except infringement occurring as a result of incorporating a design or modification at Buyer’s request) or the combination with Seller’s goods and Buyer’s goods, provided that Buyer promptly notifies Seller of any charge of infringement, and Seller is given the right at its expense to settle such charge and to defend or control the defense of any suit based upon such charge. Seller shall have no obligation hereunder with respect to claims, suits or proceedings, resulting from or related to, in whole or in part, (i) the use of software or software documentation, (ii) compliance with Buyer’s specifications, (iii) the combination with, or modification of, the goods after delivery by Seller, or (iv) the use of the goods, or any part thereof, in the practice of a process. THIS ARTICLE SETS FORTH SELLER’S ENTIRE LIABILITY WITH RESPECT TO PATENTS AND INTELLECTUAL PROPERTY.
PERFORMANCE; DELAYS – Timely performance by Seller is contingent upon Buyer’s supplying to Seller, when needed, all required technical information and data, including drawing approvals, and all required commercial documentation. If Seller suffers delay in performance due to any cause beyond its reasonable control, the time of performance shall be extended a period of time equal to the period of the delay and its consequences. Seller will give to Buyer notice within a reasonable time after Seller becomes aware of any such delay.
SHIPMENT, TITLE, AND RISK OF LOSS – (a) The term “shipment” means delivery to the initial carrier in accordance with the delivery terms of this contract. Seller may make partial shipments. Terms are Ex Works BPM Microsystems, Houston, Texas. Seller shall select a method of transportation and route unless Buyer specifies the method, and Buyer is to pay the freight costs plus a $20 handling fee in addition to the price.
(b) Title to the goods and risk of loss or damage shall pass to Buyer at the Ex Works point. Seller shall not be responsible for damage to the goods after having received “in good order” receipts from the carrier.
TAXES – Any applicable Texas state sales taxes shall be added to the price and invoiced separately (unless an acceptable exemption certificate is furnished). All other duties or sales, use, excise, value-added or similar taxes will be the direct responsibility of the Buyer.
TERMS OF PAYMENT – (a) Unless otherwise stated, all payments terms are net 30 upon credit approval and shall be in United States dollars, and a pro rata payment shall become due as each shipment is made. If shipment is delayed by Buyer, date of notice of readiness for shipment shall be deemed to be date of shipment for payment purposes.
(b) On late payments, the contract price shall, without prejudice to Seller’s right to immediate payment, be increased by 18% per annum on the unpaid balance, but not to exceed the maximum permitted by law.
(c) If any time in Seller’s judgment Buyer is unable or unwilling to meet the terms specified, Seller may require satisfactory assurance or full or partial payment as a condition to commencing or continuing manufacture or making shipment, and may, if shipment has been made, recover the goods from the carrier, pending receipt of such assurances.
NONCANCELLATION – Buyer may not cancel or terminate for convenience, or direct suspension of manufacture, except with Seller’s written consent and then only upon terms that will compensate Seller for its engineering, fabrication and purchasing charges and any other costs relating to such cancellation, termination or suspension, plus a reasonable amount for profit. Cancellation charges shall be computed on the basis of Seller’s full costs, plus 100% of all engineering work, all work in process, all raw materials, all supplies, and commitments made by Seller in connection with this order.
LIMITATION OF LIABILITY – Neither Seller, nor its suppliers shall be liable, whether in contract, warranty, failure of a remedy to achieve its intended or essential purposes, tort (including negligence), strict liability, indemnity or any other legal theory, for loss of use, revenue or profit, or for costs of capital or of substitute use or performance, or for indirect, special, liquidated, incidental or consequential damages, or for any other loss or cost of a similar type, or for claims by Buyer for damages of Buyer’s customers. In the event this provision fails its intended purposes, Seller’s maximum liability under this contract shall be the contract price. Buyer and Seller agree that the exclusions and limitations set forth in this article are separate and independent from any remedies which Buyer may have hereunder and shall be given full force and effect whether or not any or all such remedies shall be deemed to have failed of their essential purpose.
GOVERNING LAW AND ASSIGNMENT – The laws of the County of Harris in the State of Texas shall govern the validity, interpretation and enforcement of this contract, without regard to its conflicts of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods shall be excluded. Assignment may be made only with written consent of both parties; provided, however, Seller may assign to its affiliate without Buyer’s consent. The parties agree that venue shall be in a court situated in Harris County, Texas.
ATTORNEY FEES – Buyer shall be liable to Seller for any attorneys’ fees and costs incurred by Seller in enforcing any of its rights hereunder.
DISPUTES – Either party may give the other party written notice of any dispute arising out of or relating to this contract and not resolved in the normal course of business. The parties shall attempt in good faith to resolve such dispute promptly by negotiations between executives who have authority to settle the dispute. If the matter has not been resolved within 60 days of the notice, either party may initiate non-binding mediation of the dispute.
STATUTE OF LIMITATIONS – To the extent permitted by applicable law, any lawsuit for breach of contract, including breach of warranty, arising out of the transactions covered by this contract, must be commenced not later than twelve (12) months from the date the cause of action accrued.
PRICES – In the event of a price increase or decrease, the price of goods on order will be adjusted to reflect such increase or decrease. This does not apply to a shipment held by request of Buyer. Goods already shipped are not subject to price increase or decrease. Orders on a bid or contract basis are not subject to this article. Seller’s prices include the costs of standard domestic packing only. Any deviation from this standard packing (domestic or export), including U.S. Government sealed packing, will result in extra charges. To determine such extra charges, consult Seller’s sales offices.
CHANGES IN LAWS AND REGULATIONS – Seller’s prices and timely performance are based on all applicable laws, rules, regulations, orders, codes, standards or requirements of governmental authorities effective on the date of Seller’s proposal. Any change to any law, rule, regulation, order, code, standard or requirement which requires any change hereunder shall entitle Seller to an equitable adjustment in the prices and any time of performance.
TIME IS OF THE ESSENCE – Time is of the essence and material to the terms herein.