Orion Microwave, Inc. 1009 E. Capitol Exp., Suite 108, San Jose, CA 95121, USA
For sale or technical support, please contact us at firstname.lastname@example.org or +1 (408) 644-3386
Copyrighted @2013 Orion Microwave Inc. All right reserved.
ORION MICROWAVE, INC. TERMS & CONDITIONS
A. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions that are not a part of the original price quotation.
B. Prices are exclusive of all federal, state, municipal or other government excise, sales, use, value added, occupational or like taxes, tariffs, customs, duties and importing fees. Prices are consequently subject to increase by the amount of any such tax, tariff, duty or fee that ORION MICROWAVE, INC. pays or is required to pay or collect upon sale or delivery of products. Any certificate of exemptions or similar document or proceeding required to exempt the sale of products from sales or use tax liability shall be obtained by Buyer, at its expense.
2. Terms of Payment: Terms are cash upon delivery, except where satisfactory open account credit is established, in which case terms are net thirty (30) days from the date of invoice. ORION MICROWAVE, INC. reserves the right at any time to revoke any credit extended to Buyer for any risk deemed sufficient by ORION MICROWAVE, INC. . ORION MICROWAVE, INC. will issue invoices on delivery in the case of all products; if deliveries are authorized in installments, each shipment shall be invoiced and payable when due without regard to other scheduled deliveries. Overdue payments shall be subject to finance charges computed at a periodic rate of 1.5% per month (18% per year) or, if less, the maximum rate permitted by law. All amounts owed by Buyer with respect to which there is no dispute shall be paid without set-off of any amount that Buyer may claim is owed by ORION MICROWAVE, INC. and regardless of any other controversies that may exist.
A. All U.S. domestic deliveries are FOB Shipping Point. All international deliveries are FCA Seller's Factory (Incoterms 2000).
B. Title and risk of loss, with respect to the products shall pass to Buyer when delivery is made under Incoterms 2000. Buyer hereby grants to ORION MICROWAVE, INC. a security interest in the products as security for the performance by Buyer of all its obligations hereunder.
C. Products held or stored by ORION MICROWAVE, INC. for Buyer shall be at the sole risk of Buyer, and Buyer shall be liable for the expense to ORION MICROWAVE, INC. of holding or storing products at Buyer's request.
D. ORION MICROWAVE, INC. shall make deliveries in installments and shall bill partial shipments as made.
E. All products will be scheduled for shipment in accordance with ORION MICROWAVE, INC. 's applicable shipment sequence and ORION MICROWAVE, INC. will confirm in writing, and amend as appropriate, the shipment schedule. Under no circumstances shall ORION MICROWAVE, INC. be liable to Buyer for any delay either in shipment or in delivery.
4. Shipment: Unless specific instructions to the contrary are supplied by Buyer, ORION MICROWAVE, INC. will select the carrier and ship the products to Buyer's address indicated on Buyer's purchase order. ORION MICROWAVE, INC. will not assume any liability in connection with the shipment or constitute any carrier as its agent. Buyer shall be responsible for making all claims with carriers, insurers, warehouses and others for non-delivery, loss, damage or delay. All claims for damage to products or shortage must be made within thirty (30) days of shipment.
5. Offer/Acceptance: ORION MICROWAVE, INC. offers to sell and deliver the products and services specified herein in accordance with the terms and conditions hereof. THIS OFFER EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS HEREOF AND ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY BUYER ARE HEREBY REJECTED UNLESS EXPRESSLY ASSENTED TO IN WRITING BY ORION MICROWAVE, INC. .
6. Cancellation, Rescheduling, Returns and Modifications; Any request for order cancellation, rescheduling, return, or modification must be made in writing and approved in writing by an authorized agent of ORION MICROWAVE, INC. at its principal office in California. No cancellations, quantity decreases, or push-outs may be made within 30 days of Factory Commit Date (FCD).
7. Cancellation Charges
A. For standard products, Buyer may cancel and/or reschedule subject to the following limitations and charges based upon the number of days from the date ORION MICROWAVE, INC. receives Buyer's written notice of cancellation to the FCD for the cancelled products:
a) Within 30 Days of FCD - No cancellations.
b) Between 30 and 90 days of FCD - No cancellations, however, Buyer may reschedule the line item to ship no later than 90 days from the original FCD.
c) More than 90 days from FCD - Cancellations accepted at no charge.
B. For non-standard products, built to Buyer's specifications or pursuant to ORION MICROWAVE, INC. 's design, Buyer shall have no right to cancel or reschedule the delivery at any time. Orders for standard RF integrated circuit products ordered in non-standard tape and reel quantities are non-cancellable and non-returnable.
8. Returns: Buyer shall not return any products for any reason without the prior authorization of ORION MICROWAVE, INC., and the issuance by ORION MICROWAVE, INC. of a Return Material Authorization (RMA). Returns must be shipped using ORION MICROWAVE, INC.'s preferred carrier. The RMA shall specify the RMA number, the terms and conditions upon which returns may be made, and ORION MICROWAVE, INC.'s preferred carrier. The RMA number must be marked on the outer shipping carton when products are returned. Returns made without obtaining prior authorization or without the RMA number properly marked on the outer shipping carton will be returned to sender at Buyer's expense. Products for which the seal of the anti-static shipping bag has been broken may not be returned.
9. Returns for Credit: ORION MICROWAVE, INC. , at its option, may accept or reject any request by Buyer to return product for credit. If authorization is granted, Buyer shall pay ORION MICROWAVE, INC. a restocking fee equal to 35% of the current list price for standard products for each product returned, in addition to charges for unearned discounts, and any other reasonable charges. Buyer shall not return product without first obtaining an RMA number as stated above.
10. No Modification or Reverse Engineering: Buyer agrees that it will not modify, adapt, alter, translate, or create derivative works from any of the products purchased under this Agreement or derive, attempt to derive or direct others to derive the source code of any software product or the physical structure or technical properties of any other product purchased under this Agreement by reverse engineering, disassembly, de-compilation or any other means.
11. Warranty: ORION MICROWAVE, INC. warrants that each product will be free of defects in material and workmanship for a period of one (1) year. This warranty commences on the date the product is shipped by ORION MICROWAVE, INC. . ORION MICROWAVE, INC.'s sole liability and responsibility under this warranty is to repair, replace or issue a credit for the purchase price of any returned product which ORION MICROWAVE, INC. determines does not conform to the warranty. Product returned to ORION MICROWAVE, INC. for warranty service will be shipped to ORION MICROWAVE, INC. at Buyer's expense and will be returned to Buyer at ORION MICROWAVE, INC. 's expense. In no event shall ORION MICROWAVE, INC. be responsible under this warranty for any defect which is caused by negligence, misuse or mistreatment of a product or for any unit which has been altered or modified in any way. The warranty for replacement products shall terminate with the warranty of the product.
12. Warranty Disclaimer: ORION MICROWAVE, INC.'S EXPRESS WARRANTY TO BUYER CONSTITUTES ORION MICROWAVE, INC.'S SOLE LIABILITY AND BUYER'S SOLE REMEDY. ORION MICROWAVE, INC. DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13. Defense of Infringement Claims: If a third party files a claim or brings an action against Buyer alleging that a product, as delivered by ORION MICROWAVE, INC. to Buyer, infringes a United States Patent, United States copyright, United States trademark or other United States intellectual property right, and if ORION MICROWAVE, INC. is promptly advised of any such claim or action by Buyer, then ORION MICROWAVE, INC. shall assume and have sole control of the defense of any such action or claim at its own expense, including the sole power and authority to negotiate any settlement or compromise, and shall be responsible for any judgment or award issued in such action based on such infringement. If at any time use of the product is enjoined or is discontinued because of such action, ORION MICROWAVE, INC. shall at its sole option and expense, either procure for Buyer the right to continue using the product, replace or modify the product so that it becomes non-infringing or grant Buyer a credit for the purchase price of the product and accept its return. ORION MICROWAVE, INC. shall not have any liability or obligation under this paragraph if the infringement of a third party right is based in any way upon (i) the use of products in combination with other components, equipment or software not furnished by ORION MICROWAVE, INC.; (ii) use of a product in practicing any process; (iii) any product which has been modified or altered; (iv) the manner in which the product is used even if ORION MICROWAVE, INC. has been advised of such use; or (v) ORION MICROWAVE, INC. 's compliance with Buyer's designs, specification or instructions. In no event shall ORION MICROWAVE, INC.'s total liability to Buyer under this section exceed the aggregate sum paid to ORION MICROWAVE, INC. by Buyer for the infringing products.
14. Substitutions and Modifications of Specifications; General Product Change and Obsolescence/End of Life Notifications : ORION MICROWAVE, INC. assumes the right to make substitutions and modifications in the specifications of any of the products or parts thereof designed by ORION MICROWAVE, INC. provided such substitutions or modifications will not materially affect the performance of such products.
15. Assignment: This Agreement is not assignable by Buyer and any attempt to assign any rights, duties or obligations arising hereunder shall be void.
16. Force Majeure: ORION MICROWAVE, INC. shall not be liable for any loss or damage resulting from any delay in delivery or failure to give notice of delay when such delay is due to any cause or event beyond ORION MICROWAVE, INC.'s control, including, without limitations, acts of nature, acts of terrorism, unavailability of supplies or sources of energy, riots, wars, fires, strikes, labor difficulties, delays in transportation, delays in delivery or defaults by ORION MICROWAVE, INC.'s vendor or acts or omissions of Buyer. In the event of delay due to any such cause, time for delivery shall be extended for a period of time equal to the duration of such delay and Buyer shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay. If, as a result of any such cause, any scheduled delivery is delayed for period in excess of one-hundred-twenty (120) days, ORION MICROWAVE, INC. or Buyer shall have the right by written notice to the other to cancel the order for the products subject to the delayed delivery without further liability of any kind.
17. Limitation of Liability: UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING BY AN AUTHORIZED AGENT OF ORION MICROWAVE, INC., ORION MICROWAVE, INC. SHALL NOT BE LIABLE TO BUYER, ITS CUSTOMERS OR ANY OTHER THIRD PARTY, IN CONTRACT, TORT, INDEMNITY OR OTHERWISE, FOR ANY LIABILITY, LOSS, DAMAGE, COST OR EXPENSE ARISING OUT OF ANY CLAIM FOR PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE RELATED TO THE PRODUCTS SOLD HEREUNDER. IN NO EVENT SHALL ORION MICROWAVE, INC. BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST OPPORTUNITIES OR INTERRUPTION OF BUSINESS) OR PUNITIVE DAMAGES DUE TO ANY CAUSE WHATSOEVER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, STRICT LIABLITY, OR OTHERWISE, EVEN IF WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE AND EVEN IF ANY OF THE LIMITED REMEDIES IN THIS CONTRACT FAIL THEIR ESSENTIAL PURPOSE. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST ORION MICROWAVE, INC. MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS ACCRUED. IN NO EVENT SHALL THE ACCRUED TOTAL LIABILITY OF ORION MICROWAVE, INC. FROM ANY LAWSUIT, CLAIM, WARRANTY OR OTHER DISPUTED MATTER EXCEED THE AGGREGATE SUM PAID TO ORION MICROWAVE, INC. BY BUYER UNDER THE ORDER THAT GIVES RISE TO SUCH LAWSUITS, CLAIM, WARRANTY OR DISPUTE.
18. Use in Safety and Life Support Applications: THE PRODUCTS SOLD BY ORION MICROWAVE, INC. TO BUYER HEREUNDER ARE NOT DESIGNED OR INTENDED FOR USE IN APPLICATIONS WHERE FAILURE CAN REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY OR DEATH (INCLUDING, WITHOUT LIMITATION, FOR NAVIGATION, WEAPONRY, AVIATION, NUCLEAR OR SAFETY EQUIPMENT, FOR SURGICAL IMPLANT, FOR RESCUE OF PERSONS OR TO SUPPORT, PROTECT OR SUSTAIN LIFE). BUYER USES, MARKETS AND SELLS THE PRODUCTS FOR SUCH APPLICATIONS AT ITS SOLE RISK AND EXPENSE, AGREES TO INDEMNIFY AND HOLD ORION MICROWAVE, INC. HARMLESS FROM ANY AND ALL DAMAGES, COSTS OR EXPENSES ARISING FROM ANY CLAIM OR ACTION OF ANY THIRD PARTY BASED ON THE ACTUAL OR ALLEGED FAILURE OF A PRODUCT TO PERFORM SUCH APPLICATIONS AND AGREES THAT ORION MICROWAVE, INC. 'S WARRANTY IN THIS AGREEMENT DOES NOT EXTEND TO ANY SUCH APPLICATIONS.
19. Waivers: All rights and remedies of ORION MICROWAVE, INC. hereunder shall be cumulative and may be exercised singularly or concurrently. In the event that either parties, shall on any occasion fail to perform any term herein, and the other party shall not enforce that term, failure to enforce on that occasion shall not prevent enforcement on any other occasion.
20. Governing Law: This Agreement is made in, governed by and shall be construed in accordance with the laws of the State of California without regard to conflicts of laws principles. If the products purchased hereunder are purchased by a Buyer residing in a country other than the United States, then the parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from this Agreement.
21. Exports: The ultimate shipment of potential orders solicited by Buyer shall be subject to the right and ability of ORION MICROWAVE, INC. to make such sales and shipments under all policies, decrees, orders, laws, rules and regulations of the United States government and agencies and instrumentalities thereof presently in effect, or which may be in effect hereafter, which govern exports or otherwise pertain to export controls, including, without limitation, the Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR) and Office of Foreign Assets Control (OFAC) regulations.
Any order which has been accepted by ORION MICROWAVE, INC., but which cannot be fulfilled due to such policies, decrees, orders, laws, rules or regulations shall be considered to have been rejected when submitted to ORION MICROWAVE, INC. for acceptance or rejection. Buyer shall not transfer, directly or indirectly, any product or technical data received from ORION MICROWAVE, INC. or the direct product of such data, to any destination subject to export restrictions under U.S. law, unless prior written authorization is obtained from the appropriate U.S. government agency.
22. Entire Agreement and Amendments: The terms and conditions herein, constitute the entire agreement between the parties and supersede all previous communications, whether oral or written. Any changes to this Agreement may be made only upon mutual agreement of the parties in writing.
23. Federal Contract Terms: In any order entered into with the federal government, or in any order entered into with any other party that is a subcontract of a contract entered into with the federal government:
a) only those clauses of the federal acquisition regulations that the regulations themselves mandate for a party in ORION MICROWAVE, INC. 's position, given all relevant limitations including ORION MICROWAVE, INC. 's status as a supplier or a subcontractor and the size and type of contract, apply; and
b) ORION MICROWAVE, INC. retains proprietary rights in all technical data and computer software provided under such order. Only limited rights or restricted rights are provided to the federal government under the narrowest provision of those rights that the regulations allow, and no rights (including rights of audit of ORION MICROWAVE, INC.'s cost or pricing data are provided to any other party, including the prime contractor or any higher tier subcontractor.