Terms and Conditions
The following Terms and Conditions (“Terms”) shall be binding if they have been declared applicable in Seller’s quote, product/price list, or in a confirmation of an order. Terms and conditions of the Buyer that diverge from the following Terms shall not be binding unless and only to the extent they have been expressly accepted by Seller in writing. As used herein, the term “Seller” shall mean Envoy Data Memory, a division of Envoy Data Corporation, the term “Goods” shall refer to any and all products or services purchased from Seller, and the term “Buyer” shall refer to the purchaser of Goods from Seller.
1.1 Purchase Price. The total purchase price due to Seller from Buyer for the Goods shall include the price of the Goods, plus any taxes, packaging charges and shipping fees.
1.2 Currency. Except as otherwise provided, all prices are deemed to be in United States dollars.
1.3 Taxes. The amount of any tax which Seller may be required to pay or collect under any existing or future law upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of the Goods shall be the responsibility of the Buyer and may be added to the price of such Goods. Exemption certificates must be presented to Seller prior to shipment if they are to be honored.
2. TERMS OF PAYMENT
2.1 Payment. Unless Seller otherwise provides, payment on account of an invoice is due immediately and payment shall be made not later than thirty (30) days from the date of the invoice. Payment shall be by the method described on the invoice. Payments made after the thirtieth day from the date of the invoice shall accrue interest at a rate of 1.5% per month (18% per annum).
2.2 Offset. Buyer authorizes Seller to credit toward the payment of any monies that may become due Seller hereunder, any sums which may now or hereafter be owed to Buyer by Seller or by Envoy Data Corporation.
2.3 Suspension of Delivery for Nonpayment. Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
2.4 No Buyer Set-off Rights. Buyer shall not withhold payment of any amounts due and payable to Seller by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
3. DESIGNS & TECHNICAL DOCUMENTS
Each party reserves all rights with respect to designs, documents and software handed over to the other party. The receiving party acknowledges these rights. Subject to the previous and explicit authorization in writing by the other party, the receiving party shall not make such designs, documents and software accessible to any third parties and shall use them exclusively for the purpose for which it has received.
4. RISK OF LOSS & TITLE; DELIVERY
4.1 Risk of Loss. All shipments are F.O.B. point of manufacture, and title and risk of loss to goods shall pass to Buyer upon delivery to carrier.
4.2 Title. Title to Goods shall pass to Buyer upon delivery to carrier; provided, however, that Seller shall have a purchase money security interest in the Goods until paid in full.
4.3 Delivery. The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order. Seller shall not be liable for any delays, loss, or damage in transit.
5. INSPECTION, ACCEPTANCE & REJECTION OF GOODS; CLAIMS NOTIFICATION
5.1 Inspection. If any Goods should arrive at Buyer’s destination in a damaged condition or should a shortage exist, the damage or shortage shall immediately be reported to the delivering carrier and the Seller. In case of damaged Goods, a joint inspection of the loaded carrier shall be arranged with the representatives of the carrier and Seller. Where the carrier’s equipment cannot be held for inspection, the Goods shall be unloaded, protected and held for joint inspection. Before unloading, the alleged damage or shortage shall be noted on the carrier’s delivery receipt and signed by the carrier’s agent.
5.2 Notification of Claims. Buyer shall notify carrier and Seller of any claim resulting from damage or shortage incurred after the F.O.B. point within ten (10) days of delivery of the Goods to the first destination to which they are available for Buyer’s inspection, which Seller and Buyer agree is a reasonable time. Any other claim respecting the condition of goods, compliance with specifications, or other defects must be made no later than ninety (90) days after delivery of Goods to the first destination to which they are available for Buyer’s inspection. All claims must be made only for substantial cause, be in writing, and must specify the reason(s) for the claim. All sales are final. The Goods are not sold on approval or on return. The failure to notify Seller of any claim within the time period specified by this section shall constitute a waiver and bar such claim.
5.3 Disposition of Goods Subject to Claim. Buyer should set aside, protect, and hold any Goods subject to a claim without further processing until Seller has an opportunity to inspect such goods and advise Buyer of the disposition, if any, to be made of such goods. No Goods, in any event, shall be returned without first securing the authority of Seller in accordance with Seller’s Return Material Authorization process. No allowance will be made to Buyer for storage, materials or labor involved in the movement of rejected goods from the plant of Buyer or Buyer’s processor or Buyer’s storage facility.
5.4 Failure to Accept Purchased Materials. If Buyer requests deferral of shipment, fails to accept shipment, fails to pick up the Goods, or otherwise fails to provide information, material or documentation necessary for the delivery of the Goods and as a result Goods are placed in storage, Seller may charge Buyer reasonable storage fees commencing five (5) days after Seller’s notice to Buyer of the availability of the Goods.
5.5 Security Interest. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the applicable Uniform Commercial Code.
6. WARRANTIES & REMEDIES
6.1 Limited Warranty; Exclusive Remedy. Seller warrants to Buyer that for a period of twelve (12) months from the date of shipment of the Goods, that the Goods will conform to Seller’s standard manufacturing variations and tolerances. SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED. AT SELLER’S DISCRETION, BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO THE CONFORMANCE OF ANY GOODS FURNISHED BY SELLER UNDER THIS AGREEMENT SHALL BE LIMITED TO EITHER: (1) REPLACEMENT OF SUCH GOODS AT THE F.O.B. POINT, OR (2) REPAYMENT OF OR CREDIT AGAINST THE PURCHASE PRICE THEREOF UPON AUTHORIZED RETURN OF THE GOODS. SUCH REMEDY IS IN SUBSTITUTION FOR ANY OTHER REMEDIES OTHERWISE AVAILABLE.
6.2 Limitation of Liability. SELLER’S LIABILITY, WHETHER IN CONTRACT, IN TORT, UNDER WARRANTY, IN NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS, AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING COSTS OF SHIPMENT, DOWNTIME, LOST PROFITS, OR LOST SALES. BUYER’S LIMITED WARRANTY OF REPLACEMENT OR RETURN OF OR CREDIT ON THE PURCHASE PRICE ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES. SELLER AND BUYER EXPRESSLY AGREE TO THIS ALLOCATION OF RISK AND THE PRICE STATED FOR THE GOODS IS A CONSIDERATION IN LIMITING SELLER’S LIABILITY.
6.3 Limitation on Use of Goods. Goods are not authorized for use as critical components in life support equipment or for applications in which the failure or malfunction of the Goods would create a situation in which personal injury or death is likely to occur. Seller shall not be liable for the death of any or any loss, injury, or damage to persons or property by use of the Goods in applications, including, but not limited to, military or military-related equipment, traffic control equipment, disaster prevention systems, and medical or medical-related equipment.
6.4 Technical Advice. Seller assumes no obligation or liability for any technical advice furnished by Seller, including without limitation, technical advice with respect to the use of Seller’s goods and services, all such technical advice being given and accepted at Buyer’s risk.
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for fifteen (15) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
8.1 Severability. If any provision of these Terms is declared invalid under applicable law, the affected provision will be considered omitted or modified to conform to applicable law. All other provisions will remain in full force or effect.
8.2 Nonwaiver. Seller’s failure to enforce or declare a default or breach with respect to Buyer’s nonperformance of these Terms shall not be construed to be a waiver of Seller’s right to insist on strict compliance of any other term or condition or, on a subsequent occasion, with respect to that particular term or condition.
8.3 Force Majeure. Seller will not be liable for any delay in performance resulting in whole or in part from fires, floods, or other catastrophes; unusually severe weather conditions; strikes, lockouts or labor disruptions; wars, terrorist attacks, riots or embargo delays; mill conditions; shortages of transportation or other equipment, fuel, labor or materials; pandemics or epidemics, or any other circumstances or causes or acts of God or public enemy, whether similar or dissimilar, beyond the reasonable control of Seller in the reasonable conduct of its business.
8.4 Indemnification. Buyer agrees to indemnify and hold Seller harmless from all liability, damages, or costs, including attorney’s fees, relating to Buyer’s use of the Goods. If Goods are manufactured in accordance with Buyer’s designs, blueprints, drawings or specifications, Buyer agrees to indemnify and hold Seller harmless from all liability, damages and costs, including attorney’s fees, arising out of patent infringement claims.
8.5 Exclusivity. Buyer acknowledges that Buyer has engaged Seller to specifically produce and manufacture the Goods for Buyer based upon specifications and requirements that Buyer has provided to Seller. As a result, Buyer agrees that it shall (i) only purchase the Goods through Seller, and (ii) not seek to purchase the Goods, directly or indirectly, through any agents, representatives or distributors, from any subcontractor, manufacturer or other third party that Seller engages to produce or manufacture the Goods for Seller for sale to Buyer.
8.6 Governing Law. These Terms shall be governed by and construed in accordance with the law of Arizona, including the Arizona Uniform Commercial Code, without regard to conflict of law principles.
8.7 Jury Waiver; Jurisdiction; Venue. BUYER WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION ARISING FROM OR RELATED TO THESE TERMS AND BUYER SUBMITS TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS OF ARIZONA AND WAIVES ANY RIGHT TO ASSERT THAT ANY ACTION INSTITUTED BY SELLER IN ANY SUCH COURT IS IN THE IMPROPER VENUE OR SHOULD BE TRANSFERRED TO A MORE CONVENIENT FORUM.
8.8 Attorney’s Fees. In the event that suit is brought in connection with any contract for the sale of the Goods or to collect any sum due in connection with the sale of the Goods, the prevailing party shall be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorney’s fees, court costs, costs of investigation, and other related expenses incurred in connection with bringing such action.
8.9 Export Controls. The Goods subject to these Terms are or may be subject to the export control laws and regulations of the United States, including, but not limited to, the Export Administration Regulations and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Controls. Buyer shall not, without prior U.S. government authorization, export, re-export, or transfer any Goods subject to such export control laws, directly or indirectly, to any country subject to a U.S. trade embargo or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked Persons” maintained by the U.S. Department of Treasury. In addition, any such Goods may not be exported, re-exported, or transferred to an end-user engaged in activities related to weapons of mass destruction. Such activities include, but are not necessarily limited to, activities related to: (1) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production, or use of missiles or support of missiles projects; and (3) the design, development, production, or use of chemical or biological weapons.
8.10. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section 8.10 is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
8.11. No Third-Party Beneficiaries. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
8.12 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of a Purchase or Sales Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), electronic (email) transmission (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). 8.13 Entire Agreement. These Terms represent the entire agreement between the parties relating to the subject matter herein and supersede any prior representations or agreements, oral or written, and all other communications. These Terms will not be varied except in writing, signed by the parties.