All quotations, products and services provided by Integrated Designs L.P. (“Seller”) or its representatives to any customer, distributor, original equipment manufacturer, end-user or other purchaser (“Buyer”) are furnished only upon the terms and conditions stated herein (“Terms”). By ordering and accepting delivery of products and/or services (“Products”) from Seller, Buyer agrees to and accepts these Terms, and agrees that, unless modified by separate negotiated agreement as provided below, these Terms, together with the item, quantity, price, delivery and similar terms set forth on Seller’s quotation, order acknowledgment, and/or invoice shall constitute the entire agreement of the parties, superseding all other communications and documentation. Seller hereby expressly rejects any different or additional terms, preprinted or otherwise, in any purchase order or other documentation furnished by Buyer, whether before or after Seller’s delivery of Products, even if receipt thereof is acknowledged by signature or otherwise. No modification of these terms shall be effective unless set out in a separate negotiated agreement signed by an authorized officer of Seller.
QUOTATIONS & PRICES: All prices are in US Dollars and, unless otherwise specified by Seller in a separate written agreement or quotation, are subject to change without notice. Quotations are valid only for the period stated therein, and may be changed or withdrawn at any time prior to acceptance. Quotations to non-U.S. Buyers are solicitations for offers to purchase. Clerical or typographical errors are subject to correction. Quoted prices and delivery dates are valid only for the quantities, terms and payment schedule specified. Prices do not include, and Buyer is responsible for payment of, any applicable sales, use, value added, excise, property, customs, stamp, documentary, import/export, or other taxes, tariffs, fees, duties, or charges, domestic or foreign, related to the Products supplied (other than taxes on Seller’s net income). Any such amounts paid by Seller will be invoiced to and paid by Buyer unless Buyer provides an exemption certificate acceptable to the applicable taxing authority.
ORDERS & ACCEPTANCE: Orders must be presented in writing or via electronic means acceptable to Seller and will be binding upon Seller only when accepted by written or electronic acknowledgement or shipment of Products ordered. Seller reserves the right, at its option and without liability, to refuse any order, in whole or in part, or to specify an alternate delivery schedule if orders from all sources exceed its inventory or ability to deliver or if Seller determines for any reason in its discretion that it cannot fill the order in its usual course of business. Seller may allocate available inventory and production in its sole discretion. Where orders are placed, acknowledged, and/or invoiced by electronic transmission, the data transmitted will be deemed “in writing” and “signed;” and any printout of electronic transmissions maintained in the ordinary course of business will be considered an “original” and admissible as between the parties to the same extent and under the same conditions as other business records maintained in documentary form. Seller shall be entitled to assume that persons placing orders on behalf of Buyer (electronically or otherwise) are authorized to do so and to accept these Terms.
CHANGE & CANCELLATION. Any changes requested by Buyer must be submitted in writing and are subject to written acceptance by an authorized representative of Seller. Costs and/or delays resulting from such changes will be solely determined by Seller and binding upon Buyer. Provided that Seller receives adequate written notice from Buyer, Buyer may cancel or suspend performance of any order for Seller-standard Products for convenience, subject to payment of Seller’s associated costs, , which may include but not be limited to tooling and work-in-progress expenses. Seller, with reasonable cause, may cancel or suspend performance of any order if Buyer fails to meet any of its obligations as provided herein.
PAYMENT TERMS: For customers without approved credit terms, all orders require payment prior to shipment by COD, letter of credit, or other payment method approved by Seller. Credit terms, if any, require Seller’s written approval and are measured from date of invoice. Deposits or stage payments, if any, are non-refundable; payment terms will not be affected by any delay in delivery or acceptance, and no discount for early payment is authorized without Seller’s written consent. Notwithstanding credit approval, Seller reserves the right to modify payment terms or require advance payment, letter of credit or COD when, in the opinion of Seller, the financial condition or previous payment record of Buyer so warrants. If Buyer is delinquent in any payment due, Seller in its discretion may exercise any and all remedies permitted by law, including set-off, and may suspend production and/or institute credit hold procedures on all open orders. Future orders will not be confirmed until Buyer’s account is brought current. A service charge not to exceed 1.5% per month may be charged on all past due balances, and if referred to an agent or attorney for collection, all costs and expenses of collection (including without limitation reasonable attorneys’ fees) will be charged to Buyer’s account, up to the maximum amount allowed by law.
DELIVERY & INSPECTION: All shipments are FCA Origin (Incoterms 2010). Title will pass upon delivery to the carrier at Seller’s dock (subject to Seller’s rights as an unpaid creditor) and, if not previously accepted, receipt of delivery by or on behalf of Buyer will constitute acceptance of these Terms. Buyer bears all risk and expense for delivery of goods, including without limitation shipping, loading, unloading, storage, freight, and insurance. Any shipping contracts made by Seller are for Buyer’s account and, if paid for by Seller, will be invoiced to Buyer in addition to the product price. Seller will endeavor to deliver accepted orders promptly; it is understood, however, that dates indicated for delivery or performance represent Seller’s best current estimates only, and Seller will have no liability for failure to perform within such dates. Products will be packaged to prevent damage in shipment in accordance with Seller’s standard commercial practice, but Seller will not be responsible for loss or damage in transit. Buyer must inspect all items upon arrival and provide written notice to Seller, within 5 business days, of any claim for shortage or other nonconformance. If Buyer fails to give timely notice, all Products will be deemed accepted. Use or resale of Products in any manner following delivery will also constitute acceptance by Buyer. Claims for loss or damage in transit should be made directly to the delivering carrier.
PRODUCT SPECIFICATIONS & VALIDATION. All Products, when delivered by Seller, will substantially conform to Seller’s published specifications at time of shipment; however, Buyer will be responsible for validation of each specific product application and any use of Products in conjunction with or as a component of any products, software, or services not supplied or specified by Seller for such purpose, including all necessary testing and qualification, and will put in place all necessary systems and protections to ensure that any failure or defect relating to the Products will not result in any other or further damage, liability, or safety issues. Any Product description, sample, or model provided hereunder is for identification or illustrative purposes only and is not to be construed as a warranty that the Products will conform to the description, sample or model. Seller reserves the right to discontinue or change the design or specifications of any product or component at any time, and will use commercially reasonable efforts to notify Buyers of any decision to discontinue Products or material changes in specifications affecting form, fit or function.
SOFTWARE & FIRMWARE: Any software provided by Seller including without limitation internal system code, firmware, and/or operating system software (”Software”) is licensed, not sold, and is provided upon the terms and subject to the conditions set forth in the applicable license agreement, the terms of which will prevail over any contrary terms and conditions herein. Buyer will be deemed to have agreed to the terms of any applicable licenses by opening the media envelope or by installing or using the Software or the product in which it is installed. Seller owns all such Software and, unless otherwise provided in the applicable license agreement, Seller grants Buyer, only for so long as Buyer owns the product, a limited, personal, non-transferable, nonexclusive license to use such Software only in machine readable form and only as part of the normal operation and maintenance of the product(s) with which it is provided. All rights in and to such Software that are not expressly granted to Buyer are expressly reserved. Buyer may not copy or duplicate the Software, in whole or in part (other than one back-up copy, bearing all original copyright notices, for archival purposes) or transfer, sublicense, distribute, sell, lease, rent, or otherwise provide or disclose any such Software, or any portion thereof, to any third party, including without limitation any use over the internet or through an application service provider model. Buyer may not circumvent any usage or other restrictions imposed by any license manager, or use the Software for application development purposes. The license granted to Buyer will terminate when Buyer discontinues use of the Products with which such Software is provided.
LIMITED WARRANTY: Seller’s Products are warranted in accordance with the applicable limited warranty below (“Warranty”). The Warranty is effective only upon payment in full for the Product(s) to be warranted, extends only to the original Buyer, and may not be transferred to end users or third parties by operation of law or otherwise. The Warranty may be altered or terminated by Seller for future product sales at any time, without prior notice. No employee, agent, dealer, reseller, or other person is authorized to modify, vary, or extend the Warranty or to assume for Seller any other liability in connection with its Products.
Seller Products. Seller warrants that all Products manufactured by Seller will be free from defects in materials and workmanship under normal use in a typical operating environment for a period of 12 months from date of shipment and invoice (6 months for repairs).
Seller Software. Seller warrants that any media on which Seller Software is furnished will be free from defects in material and workmanship, and that the Software will perform substantially in accordance with the operational features of Seller’s published specifications at the time of sale, in each case under normal use in accordance with Seller’s product instructions, for a period of 12 months from date of invoice. Buyer is responsible for providing and maintaining current back-ups and industry standard, updated virus protection and firewall programs for its systems and data. Seller does not warrant that the operation of the Software will be uninterrupted or error free.
Third Party Products Items not manufactured by Seller are warranted only by the original manufacturer and only if and to the extent set forth in the original manufacturer’s warranty. Seller will not be liable for any damage or loss of any nature with respect to such third party products or failure of any such supplier to perform under its warranty.
Limited Remedy: Products returned to Seller during the applicable warranty period and found to be defective upon factory inspection will be repaired or replaced with a conforming replacement product or part at Seller’s sole option and without charge. The repaired or replaced product is then warranted under the terms of the Warranty for the balance of the original Warranty period. If repair or replacement is not, in Seller’s opinion, commercially feasible, Seller will refund an equitable portion of the purchase price paid by Buyer for the affected product. Seller will not be responsible for any other costs or charges, including without limitation costs of dismantling, disassembly, de-installation, removal, or reinstallation. Service required beyond the normal scope of warranty (see Exclusions below) or after expiration of the Warranty period will be billable repairs, and if Buyer requests such repairs, Seller’s standard repair rates and charges will apply. Warranty repairs will be performed at Seller’s designated facility, with Buyer responsible for shipping. Receipt and acceptance of a purchase order may be required before commencement of billable repairs.
Exclusions. Seller’s Warranty does not cover defects or problems caused by Buyer’s acts (or failure to act), the acts of others, or events beyond Seller’s reasonable control. Without limiting the foregoing, any warranty claim, support claim, or liability is excluded, and Buyer will be solely responsible, for any problem, failure, defect, claim, damage, liability, or safety issue arising out of (1) inadequate or faulty installation (unless performed by Seller), (2) accident, tampering, misuse, abuse, extraordinary wear and tear, or neglect, including without limitation damage in transit or storage, (3) misapplication, improper use, or other failure to follow Seller’s operating instructions and safety precautions, including any use of Products outside of normal or specified operating or environmental conditions or in a manner not authorized in the product documentation, (4) damage, defects, problems, malfunctions, or failures of, or created by, any non-Seller products, software, or services or their interface with Seller’s Products, or (5) acts of God, explosion, fire, flood, computer viruses, power surges, or other causes external to the Products. Modification, disassembly, rewiring, re-engineering, recalibration, and/or reprogramming of Products (unless specifically authorized by Seller in writing) is prohibited and will void all warranties. Seller’s responsibility will in all events be limited to repair or replacement of the defective Seller Product(s), and will not include any further liability for or arising out of any non-Seller products in which Products may be installed or with which they are combined or used.
TO THE FULL EXTENT ALLOWED BY LAW, THE WARRANTY AND REMEDIES SET OUT HEREIN ARE EXCLUSIVE AND EXPRESSLY IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES, TERMS, OR CONDITIONS, WRITTEN OR ORAL, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES, TERMS, OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, DURABILITY, CORRESPONDENCE WITH DESCRIPTION, AND NONINFRINGEMENT, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
Certain Legal Limitations: The foregoing Warranty gives Buyer specific legal rights which may vary based on local law. When, under applicable law, implied warranties may not be excluded in their entirety, such warranties will be limited to the duration of the applicable written warranty and, for European customers, any terms herein limiting Seller’s liability shall not apply insofar as they conflict with mandatory statutory provisions of the Product Liability Act.
RETURN POLICY: No returns will be accepted without prior written authorization from Seller and Buyer’s full written explanation of the basis for rejection or return. Returned Products must be shipped freight prepaid and insured. SELLER WILL NOT ACCEPT ANY C.O.D. PARCELS. Products returned for credit must be in the same condition as when they were shipped by Seller and in their original packaging. Seller will inspect returned Products upon receipt and issue any applicable credits based on the condition of the Products and the terms of this policy. A restocking fee may be charged, except for returns covered by Warranty.
USE RESTRICTIONS & REQUIREMENTS; EXPORT CONTROL: Buyer is responsible for compliance with all applicable laws, regulations, codes, recommendations, and requirements of government authorities and for obtaining all licenses and permits pertaining to the purchase, installation, operation, and/or use of the Products or their subsequent sale, shipment, transfer, or disposition, including any use or sale with or as a component of non-Seller products, it being understood that Seller makes no warranty of any kind regarding compliance with such requirements. Buyer may not import, export, sell, transfer, service, store, handle, distribute or use any Products supplied hereunder in any manner prohibited by applicable laws and regulations, including without limitation all applicable export control laws, regulations, and requirements, or contrary to any written warning or instruction given by Seller herein, in the product documentation, on its website, or otherwise. Buyer acknowledges that the Products, related technical data, and direct products thereof may be subject to restriction under the export control laws and regulations of the United States and other jurisdictions, and Seller may refuse to make any sale or shipment of Products where prohibited under applicable law. If Buyer requests that Seller export Products outside the U.S., Buyer must provide all import certificates or documents necessary to obtain any required export licenses. Unless prohibited by applicable law, Buyer agrees to hold Seller harmless from all liabilities, claims, losses, damages, and expenses (including without limitation reasonable attorneys’ fees and expenses) arising out of Buyer’s breach of these Terms.
PROPRIETARY INFORMATION: Buyer acknowledges that Seller’s Products are based upon and embody various confidential and/or proprietary technology, processes, methods, information, know-how, and trade secrets of Seller, and that Seller shall exclusively own all inventions, technology, know-how, engineering, and other proprietary information of any kind used or embodied in the Products, drawings, designs, specifications, documentation, software, and other items furnished by Seller, all intellectual property rights with respect thereto, and all reproductions or derivatives thereof in any form (“Proprietary Information”). Buyer shall neither acquire nor claim any right, title or interest in, and shall exercise reasonable care to maintain the confidentiality of, Seller’s Proprietary Information, and shall use the same solely as required for its authorized use of the Products supplied hereunder. Buyer may not directly or indirectly (1) copy, develop, adapt, reverse engineer, recast, compile, decompile, disassemble, translate, or create derivative works from Seller’s Proprietary Information, or permit any other person to do so, (2) remove alter, or obscure any copyright, trademark, patent, logo, government restricted rights, or other notices or legends from any items provided by Seller, or (3) disclose or use Seller’s Proprietary Information for commercial purposes or in a manner detrimental to Seller. Disclosures of Proprietary Information may be made only to Buyer’s personnel having a specific need to know and a written obligation to protect such information on terms no less restrictive than those herein. Buyer will be responsible for any breach by its personnel. It is agreed that any breach of this Section may cause Seller irreparable harm for which recovery of damages would be inadequate, and that immediate injunctive or other equitable relief is appropriate and available to Seller to prevent any violation, threatened or actual, of this Section, in addition to any other remedies and without proof of actual damage.
FORCE MAJEURE: Seller will not be liable for non-performance or delay in performance of any obligation to the extent caused by events or circumstances beyond its reasonable control and without negligence on its part. For delays resulting from such causes, performance will be correspondingly extended.
LIMITATION OF LIABILITY: Any action against Seller arising out of or relating to the Products or transactions to which these Terms apply must be brought within 2 years after the cause of action arises or performance hereunder is completed or terminated, whichever first occurs. Any action must be brought in the State or Federal courts located in the State of Texas, and Buyer hereby submits to the jurisdiction of such courts for the purpose of any such action. IN NO EVENT WILL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR OTHER INDIRECT LOSSES OR DAMAGES, HOWEVER CAUSED, WHETHER FORESEEABLE OR NOT, AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND SELLER’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE FOR ANY AND ALL CAUSES SHALL BE LIMITED TO THE PURCHASE PRICE PAID OR PAYABLE TO SELLER FOR THE APPLICABLE PURCHASE ORDER. THESE LIMITATIONS WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT, TORT, STRICT LIABILITY, INDEMNIFICATION, OR OTHERWISE, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FOR EUROPEAN CUSTOMERS, THE FOREGOING SHALL BE MODIFIED SOLELY AS REQUIRED UNDER THE PRODUCT LIABILITY ACT, IT BEING AGREED THAT CLAIMS OVER AND ABOVE THOSE UNDER THE PRODUCT LIABILITY ACT WILL NOT BE MADE BY BUYER AGAINST SELLER, AS MANUFACTURER, UNDER ANY THEORY OF LIABILITY, INCLUDING BY MEANS OF INDEMNIFICATION OBLIGATIONS. Buyer acknowledges that these limitations of liability are a material part of the bargain between the parties and are reflected in Product pricing, which would be higher without these limitations.
INDUCEMENT: For customers outside the United States: customer affirms that it, and each of its owners, directors, employees, and every other person working on its behalf, has not and will not, in connection with the transactions contemplated by this Agreement, or in connection with any other business transactions involving Company, make, offer, or promise to make any payment, or transfer anything of value, directly or indirectly, (i) to any governmental official or employee (including employees of government-owned and government-controlled corporation and public international organizations), (ii) to any political party, official of a political party or candidate, (iii) to any intermediary for payment to any of the foregoing, or (iv) to any other person or entity if such payment or transfer would violate the laws of the country in which made or the laws of the United States. It is the intent of the parties that no payments or transfers of value shall be made that have the purpose or effect of public or commercial bribery, acceptance of, or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or securing an improper advantage. This shall not, however, prohibit normal and customary business entertainment or the giving of business mementos of nominal value to the extent not prohibited by applicable law.
CONNECTION TO GOVERNMENT OFFICIALS: For customers outside the United States: customer represents and warrants that no employee, officer, director, or direct or indirect owner is a government official, political party official or candidate, or an immediate family member of such an official or candidate. Customer shall immediately notify Company of any change, or any potential breach of the representations and warranties herein, and in such a case Company may immediately terminate this Agreement by written notice. For the purposes of this Section, “government official” means any officer or employee of any non-U.S. government, or any department, agency or instrumentality thereof, any government-owned or government-controlled corporation, any public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, instrumentality, corporation, or public international organization.
GOVERNING LAW: These Terms and Conditions, all transactions to which they may apply, and any disputes arising out of the Products supplied hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Texas excluding any conflict of law provisions thereof. The United Nations Convention on Contracts for The International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods, and any international discovery and service of process conventions will be inapplicable.