Terms and Conditions - Manufacturing
QUOTES AND ORDERS ARE SUBJECT TO THE SAMTEC TERMS AND CONDITIONS APPEARING HEREIN
The terms and conditions in this Agreement shall supersede any and all provisions, terms and conditions contained in or on any RFQ, purchase order, confirmation order, or other correspondence or documents ("Buyer's Documents") of the party submitting an order or request for quotation ("Buyer"), and Samtec Inc. ("Seller") expressly rejects any such terms of Buyer, and the rights of the parties shall be governed exclusively by the provisions, terms and conditions stated herein. Seller makes no representations of warranties covering this order except as expressly contained herein, and these terms and conditions may not be changed or modified except by mutual written and signed agreement of the parties.
Seller manufactures catalog products built to Seller's standards and requirements. A customer's specific requirements and standards shall not be applicable unless they are added into and fully represented in Seller's drawings by agreement of Seller. Notes in Buyer's Documents stating or requesting anything to the contrary of what is identified in Seller's drawings are nullified.
Quotations & Prices
Prices are Ex Works (EXW) the named Seller's Manufacturing Facility per Incoterms
2010 unless otherwise expressly agreed to in writing by the Seller. Prices are subject to change upon notification by Seller. Seller reserves the right to increase prices upon giving notice to the Buyer when processing the order and prior to accepting or sending a confirmation.
Prices for the products specified herein are exclusive of all city, state and federal excise taxes, including, but without limiting the generality of the foregoing, taxes on manufacture, sales, receipts, gross income, occupation, use, and similar taxes. Buyer shall be responsible for payment of any applicable sales and/or excise taxes arising from the purchase of Products from Seller.
Performance of orders and contracts, and delivery and shipment of products are subject to, and contingent upon, delay directly or indirectly caused by, or in any manner arising from, fires, floods, accidents, riots, acts of God, war, acts of terrorism, government interference, embargoes, priorities, regulations, orders and restrictions, strikes, labor difficulties, shortages of labor, fuel, power, materials or supplies, transportation delays, Seller's production schedules, or any other cause or causes (whether or not similar in nature to any of these hereinbefore specified) beyond Seller's control and Seller shall not be liable for any loss or damage suffered by Buyer arising there from.
Seller shall have the right, in the event of the happening of any of the above contingencies, at its option, to cancel this order or contract any part thereof without any resulting liability.
All shipments by Seller may be up to 10% over the exact quantity ordered by Buyer. Seller will not charge Buyer for this overage.
Seller reserves the right to make delivery in installments, unless otherwise agreed upon in writing between Buyer and Seller.
All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries.
Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries.
The total release quantity used for pricing must be requested for shipment. If multiple shipments are required, all requested shipments must be within a six month period after purchase order placement, unless specifically agreed to in writing by Seller.
Modifications in schedule made by Seller will not affect customer pricing
If shipments are cancelled or reduced in quantity requested by Buyer, Seller reserves the right to invoice at adjusted prices based on the actual shipped quantity.
Delivery & Title
Unless otherwise agreed upon in writing, in the case of domestic and export shipments, delivery of products to the common carrier or licensed trucker shall constitute delivery to Buyer at which time title shall transfer to Buyer and all risk of loss or damage in transit shall be borne by Buyer.
Seller will allow cancellations and reschedules when requested in writing submitted outside of the lead time of the part number and quantity Ordered. Charges may apply.
Application Specific/Customer Specific part numbers are special orders and must be approved by Seller prior to cancellation. Cancellation charges may apply.
Note: Lead times may change based on material availability and quantities at time of order.
Samtec, Inc., its affiliates and subsidiaries collect and retain personal data relating to our customers. For general business and record maintenance purposes, Samtec keeps and processes information concerning Personally Identifiable Information (PII). Samtec is committed to being transparent about how we collect and use your data and also to meeting our data protection obligations. The personal data we hold about you will be processed only as necessary for business related purposes and to address legal requirements.
Any questions or specific requests pertaining to the Privacy of your Personal Data should be directed to firstname.lastname@example.org.
Products furnished by Seller are to be within the limits and of the sizes published by Seller unless otherwise agreed to in writing by Seller and Buyer and subject to Seller's standard tolerance for variations.
If Buyer uses Seller's Products which does not have either (i) an ACD series part number, or (ii) a part number which has an "A-" prefix (ex. "A- ###-##-##..."), in or for the automotive industry or in other applications having specific requirements, then Buyer agrees it shall not use these Products in automotive scorecard evaluations and agrees to waive Seller's obligations under TS 16949 or any customer specific requirements. Refer to Samtec's Quality page for details (http://www.samtec.com/about- us/Quality.aspx).
Express Product Warranty
Seller represents and warrants to Buyer for a period 6 months from the date of delivery of the Products to Buyer that (i) the Products shall conform to the Seller's specifications for the Products in force at the date of delivery of the Products to Buyer, and (ii) the Products shall be free from material defects in materials and manufacturing. This warranty shall be for one (1) year on all Samtec optical products.
Seller's sole liability for any breach of warranty under this paragraph confirmed by Seller shall be to repair or replace, at its option and at its expense, the defective or nonconforming Products to a condition as warranted.
Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER MAKES NO WARRANTY EXPRESS OR IMPLIED, REGARDING THE PRODUCTS OR COMPONENTS AND WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST DATA, OR LOSS OF USE) OF THE BUYER ARISING OUT OF ANY PRODUCT OR SERVICE PROVIDED UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES CLAIMS ARE BASED IN TORT, WARRANTY, CONTRACT OR OTHER LEGAL THEORY. ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF DESIGN, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
IN ADDITION, SELLER EXPRESSLY DISCLAIMS ANY WARRANTY OBLIGATIONS IN THOSE INSTANCES WHERE THE FAILURES RESULTED FROM THE MODIFICATION OF THE PRODUCTS AND/OR COMPONENTS BY BUYER OR ITS CUSTOMER, IMPROPER DEGREE OF CARE IN HANDLING, USE OR INSTALLATION OF THE PRODUCTS AND/OR COMPONENTS BY BUYER OR ITS CUSTOMERS, OR ANY OTHER
Claims for defective products, shortages, delays, or failures in shipment or delivery, or for any other cause, shall be deemed waived and released by Buyer unless made in writing within five (5) days after arrival of said products.
The Buyer shall return samples when requested by the Seller to confirm a reported defect.
A Return Material Authorization from Seller shall be required for any product returned to
No claims will be considered for Products altered, defaced or upon which any additional operation has been performed, and no claims will be allowed for labor, rework, transportation or other expense incurred by the Buyer, without prior written approval of the Seller.
If the products fail to meet the warranty specified in the paragraph on Express Product Warranty above, Buyer shall not return them but shall notify Seller within the said five (5) day period, stating full particulars in support of its claim, and Seller will, at its option, either replace the products upon return of the defective or unsatisfactory material or seek to adjust the matter fairly and promptly.
SELLER DOES NOT WARRANT OR GUARANTEE THE TECHNICAL ADVICE GIVEN BY IT IN CONNECTION WITH THE INSTALLATION OR THE USE OF PRODUCTS SOLD HEREUNDER.
Limitation of Liability
IN NO EVENT WILL SELLER BE LIABLE TO BUYER OR TO ANY THIRD PARTIES FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS AND/OR COMPONENTS, LOST PROFITS, LOSS OF USE, LOSS OF DATA, INSTALLATION COSTS OR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES ARISING OUT OF ANY PERFORMANCE OF THIS WARRANTY, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Buyer agrees to defend, protect, indemnify and save harmless Seller against all suits at law or in equity and from all damages, claims, legal fees and costs, and demands for actual or alleged infringement of an United States or foreign patent and to defend any suit or actions which may be brought against Seller for any alleged infringement resulting from Buyer's
(a) use of Product(s) in combination with any other products not provided by Seller,
(b) any alteration of modification of the Products(s) not undertaken or authorized by
(c) Seller's compliance with Buyer's specifications, or
(d) Buyer's failure to comply with Seller's instructions regarded as necessary to render the Product(s) non-infringing.
Ownership and Licensing of Intellectual Property
The provision of Products (referred to also as "Deliverables") pursuant to a Quotation and/or Purchase Order does not convey any express or implied license under any patent, copyright, trademark, trade secret or other proprietary rights owned or controlled by Samtec. Samtec owns all intellectual property rights in any technology, products and information developed by Samtec and any improvements or modifications made to any Samtec technology, products and information by Samtec or Buyer. Buyer agrees to not infringe, directly or indirectly, any intellectual property rights of Samtec. Buyer agrees to defend, protect, and hold harmless Samtec against all suits at law or in equity and from all damages, claims, and demands for actual or alleged infringement of an United States or non-United States patent and to defend any suit or actions which may be brought against Samtec for any alleged infringement resulting from Buyer's: (a) Use of Product(s) in combination with any other products not provided by Samtec, (b) Any alteration of modification of the Products(s) not undertaken or authorized by Samtec, (c) Samtec's compliance with Buyer's specifications, or (d) Buyer's failure to comply with Samtec's instructions regarded as necessary to render the Product(s) non-infringing.
Changes in Specifications or Drawings
All additional expense to Seller due to changes in specifications or drawings which have been approved by Seller and for any products furnished in addition to that herein specified, shall be added to the purchase price and paid by Buyer. Where tooling and/or engineering charges are quoted, such tooling remains property of Seller, unless otherwise negotiated and agreed. On all tooling designed in whole or part by Seller, we reserve the right to use such design on any tool for any other customer.
Seller's Right of Possession
In addition to all rights Seller possesses, Seller shall have the right for credit reasons or because of Buyer's default or defaults, to: withhold shipments, in whole or in part; to stop products in transit and redirect the same, either before or after delivery; and to retake into general inventory all Products which may be stored with Seller for Buyer's account, without the necessity of taking any other action or proceedings.
Buyer acknowledges and consents that all products so withheld, stopped in transit, or retaken after delivery shall become the absolute property of Seller, provided that Buyer is given full credit therefor.
Payment Terms and Revocation of Credit
Invoice payment terms shall be Net 30 days from invoice date unless otherwise agreed upon in writing by Seller and Buyer. Seller reserves the right at any time to revoke any credit extended to Buyer because of Buyer's failure to pay for any products when due or for any other reason deemed good and sufficient by Seller, and in such event all subsequent shipments shall be paid for on delivery. Customer shall pay the full amount of Samtec invoice in U.S. dollars to arrive no later than thirty days after the invoice date, excluding cancellation charges or unless otherwise specified. Samtec shall have the continuing right to approve Customer's credit on a Net Thirty (30) day basis from date of shipment and/or in advance of shipment, and may, at any time, demand advance payment or satisfactory security, such as, but not limited to, a confirmed, irrevocable letter of credit (in a form acceptable to Samtec) or a written guarantee of a prompt payment, prior to shipment.
Seller shall maintain insurance coverage as required by applicable law.
Reservation of Rights
Payment by Buyer of any "partial tooling charge" or other similar expense shall not vest any right or title in Buyer, and Seller shall have unrestricted right and authority to produce, use and/or sell identical machinery or products to others.
Buyer hereby agrees to comply fully with all applicable U.S., E.U. and other National sanctions and export control laws and regulations, including without limitation those regulations maintained by the U.S. Treasury Department's Office of Foreign Assets Control ("OFAC"), Department of State, ITAR Regulations, and the U.S. Commerce Department's, Bureau of Industry and Security. Specifically, Buyer covenants that it shall not -- directly or indirectly -- sell, provide, export, re-export, transfer, divert, loan,
lease, consign, or otherwise dispose of any product, services, software, source code, or technology (collectively, "Products") received from Seller under this Agreement to any person, entity, or destination, or for any activity or use prohibited by the laws or regulations of the United States without obtaining prior authorization from the competent government authorities, including but not limited to the Dept. of State and/or Dept. of Commerce, as required by those laws and regulations.
To the extent required under U.S. law, Buyer further covenants to screen all customers and business partners against all relevant U.S., EU and Canadian Government lists of persons denied export privileges or otherwise subject to trade, export, or financial sanctions, including without limitation the U.S. Treasury Department's OFAC list of SDN, U.S. Department of Commerce "BIS" Denied Persons List and Entity List, U.S. State Department DPL, The Canadian DPL, and the EU Consolidated List before providing or agreeing to provide any Products to any person
Buyer shall be deemed in material default upon its: failure to pay any due amounts; seeking to cancel delivery or refusing delivery of ordered products other than as specifically allowed hereunder; or otherwise failing to perform any of its obligations hereunder. In the event of a material default by Buyer, Seller may, upon written notice: (a) suspend its performance and withhold shipments in whole or in part; (b) terminate this Agreement; (c) declare all sums owing to Seller immediately due and payable; and/or (d) recall products in transit, retake the same and repossess any products held for Buyer without the necessity of other proceedings and Buyer agrees that all products so recalled, taken or repossessed shall be the property of Seller, provided that Buyer is given credit therefor. Application of any remedies hereunder shall not preclude, limit or waive any other remedies available to the Seller in law or equity. In the event of default in payment of the purchase price, Buyer agrees to pay Seller's reasonable attorney fees and costs incurred in Seller's enforcement thereof.
In the event a non-disclosure agreement ("NDA") exists between Samtec and Buyer, the NDA shall be deemed incorporated herein by reference and remain in effect. Any conflict between these Terms and the NDA shall be controlled by these Terms.
All questions concerning the validity, operation, interpretation, and construction of these Terms and Conditions shall be governed by and determined in accordance with the laws of the State of Indiana, with exclusive jurisdiction in courts located in Floyd County, Indiana, USA, without regard or application of any conflict of law principles and/or the United Nations Convention on Contracts for the International Sale of Goods.
The Following Additional Terms Are Applicable to All Quotations/Orders with Samtec Microelectronics ("SME") Only
LOT DEFINITION – A "lot" is defined as identical individual parts from supplier and/or customer for which SME has received accurate and final lot documentation. The lot is processed at one time, using identical assembly processes and materials (including machine programming). Acceptable lots must have standard bondable metallization, and be free from oxidation or other contaminants which may adversely affect assembly processing. Assembly performed by SME's trained personnel do not require special engineering, fixturing, chemistries, or special handling for the lot other than as specified in final lot documentation. Any deviations from written requirements in the RFQ, and/or this Quotation, or final lot documentation, may require price adjustments at SME's discretion. This Quotation, including all pricing, may be cancelled by SME if changes to final lot documentation are made by the customer, and/or the lot cannot be processed at one time using identical parts, assembly processes, and materials.
TURN TIME – The lot "assembly clock" begins when all parts, final lot documentation, and a Customer purchase order have been received to log the job into SME's production control system. Turn time in "days", per this Quotation, is defined as "24-hour business days", unless otherwise noted.
ASSEMBLY MATERIALS – Quotations are based on SME's standard assembly materials, unless otherwise noted. Non-standard assembly material(s) requested by customer must be approved by SME, and will either be Customer responsibility to provide to SME, or will be quoted separately and acquired by SME.
YIELD –Please note that SME cannot guarantee any particular yield, often due to material conditions beyond our control. SME recommends ordering more devices than is absolutely needed. Unless noted otherwise, invoicing is based on start quantity.
Revision: July 2017
Samtec Teraspeed Consulting
Standard Terms and Conditions
The terms and conditions in this Agreement shall supersede any and all provisions, terms and conditions contained in or on any RFQ, purchase order, confirmation order, or other correspondence or documents ("Client's Documents") of the party submitting an order or request for quotation ("Client"), and Samtec Teraspeed Consulting ("Teraspeed") expressly rejects any such terms of Client, and the rights of the parties shall be governed exclusively by the provisions, terms and conditions stated herein. Teraspeed makes no representations of warranties covering this order except as expressly contained herein, and these terms and conditions may not be changed or modified except by mutual written and signed agreement of the parties.
An executed confidentiality or nondisclosure agreement ("NDA") between Teraspeed and Client must be in place prior to commencement of work. The NDA shall be deemed incorporated herein by reference and remain in effect. Any conflict between these Terms and the NDA shall be controlled by these Terms.
Initiation of Work
Work will be scheduled promptly after the date of Teraspeed's receipt of (i) a signed original of the Quotation (the quotation from Teraspeed together with all attachments, including without limitation these terms and conditions and the Teraspeed Technology attachment, is the "Quotation"), (ii) Client's valid purchase order number, and (iii) if required by the Quotation, payment of the engagement fee (all documents collectively referred to herein as the "Agreement"). The engagement fee will be credited to payment of the final invoice issued under the Quotation.
The quoted fees do not include taxes, expenses, or project materials (unless the Quotation expressly provides otherwise). Client will pay all taxes (as more specifically defined in Section 4) and expenses. In addition, Client will pay for project materials, including without limitation any subcontracted manufacturing, at a price equal to Teraspeed's cost plus 10%.
Quoted fees exclude all applicable city, state and federal excise taxes, including, but without limiting the generality of the foregoing, taxes on manufacture, sales, receipts, gross income, occupation, use, and similar taxes. Client will pay all taxes, duties and fees due to any governmental agency or entity, except for taxes on Teraspeed's income or revenue.
Invoice payment terms shall be Net 30 days from invoice date unless otherwise agreed upon in writing by Teraspeed and Client. Teraspeed reserves the right at any time to revoke any credit extended to Client because of Client's failure to pay for any products when due or for any other reason deemed good and sufficient by Teraspeed, and in such event all subsequent shipments shall be paid for on delivery.
Either party may terminate Teraspeed's engagement at any time, without cause, on fourteen (14) days' written notice to the other party. Either party may terminate Teraspeed's engagement immediately due to any material breach by the other party that remains uncured five (5) business days after receipt of written notice from the non-breaching party.
Consequences of Termination
On expiration or termination of Teraspeed's engagement, Teraspeed will invoice Client for time, materials, expenses and all other costs arising through the date of termination. Client will pay Teraspeed's final invoice not later than thirty (30) days from the date of termination. In addition, upon request, each party will promptly return to the other party all confidential information provided by that party during the engagement.
Limitation of Liability
Client will not use the Deliverables for or in Products for which errors, bugs or malfunctions could cause personal injury or death, property or environmental damages, or economic loss, including without limitation use in hazardous environments requiring fail-safe performance, the operation of nuclear facilities, aircraft navigation or communications systems, direct life support machines, or weapons systems. Client will be solely responsible for taking security precautions necessary to ensure that errors, bugs or malfunctions in the Deliverables do not cause adverse consequences. TERASPEED WILL HAVE NO LIABILITY FOR ACTIONS CONNECTED WITH, ARISING OUT OF, OR RELATED TO ITS ENGAGEMENT UNLESS DAMAGES FINALLY AWARDED BY A COURT OF COMPETENT JURISDICTION ARE SPECIFICALLY AND DIRECTLY ATTRIBUTED TO TERASPEED'S WILLFUL MISCONDUCT. IN NO EVENT WILL TERASPEED'S TOTAL CUMULATIVE LIABILITY TO CLIENT FOR ALL DAMAGES, COSTS, CLAIMS, OR DEMANDS EXCEED THE AMOUNT ACTUALLY PAID TO TERASPEED BY CLIENT UNDER THE QUOTATION DURING THE THREE MONTHS PRIOR TO THE TIME THE ACTION ARISES, REGARDLESS OF THE FORM OR TYPE OF LEGAL ACTION.
Client will indemnify and hold harmless Teraspeed, Samtec, Inc., their owners, employees, managers, officers, agents, affiliates, successors and assigns from any loss, claim, demand, action, liability and expense (including attorneys' fees, court fees, expert fees and other legal costs) for all damages resulting from, arising out of or related to the manufacture, sale, use, lease, consumption or advertisement by Client, its affiliates, agents, customers and end users of products, processes or services resulting from, arising out of or related to the performance of Teraspeed's services under the Quotation.
TERASPEED MAKES NO WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NON-INFRINGEMENT, OR WARRANTIES OF ANY PRODUCTS OR SERVICES PROVIDED BY A THIRD PARTY VENDOR.
Consequential Damages Waiver
TERASPEED SHALL NOT BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH, ARISING OUT OF OR RELATING TO THE QUOTATION OR USE OF THE TERASPEED TECHNOLOGY OR ANY DELIVERABLE IN WHOLE OR IN PART, OR FOR THE LOSS OF DATA, INFORMATION OF ANY KIND, BUSINESS, PROFITS, OR OTHER COMMERICAL LOSS, HOWEVER CAUSED, AND WHETHER OR NOT TERASPEED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TERASPEED EXPRESSLY DISCLAIMS ANY WARRANTY OBLIGATIONS IN THOSE INSTANCES WHERE THE FAILURES RESULTED FROM THE MODIFICATION OF THE PRODUCTS AND/OR DELIVERABLES BY CLIENT OR ITS CUSTOMER, IMPROPER HANDLING, USE OR INSTALLATION OF THE PRODUCTS AND/OR DELIVERABLES BY CLIENT OR ITS CUSTOMERS, OR ANY OTHER CAUSE BEYOND THE CONTROL OF TERASPEED.
Ownership and License of Intellectual Property
The provision of Deliverables pursuant to the Quotation does not convey any express or implied license under any patent, copyright, trademark or other proprietary rights owned or controlled by Teraspeed. Client agrees to not infringe, directly or indirectly, any intellectual property rights of Teraspeed. Teraspeed shall own all intellectual property rights in technology developed by Teraspeed. Jointly developed intellectual property shall be jointly owned, without the right to sublicense it to third parties without the other joint party's agreement. Teraspeed shall own all intellectual property rights in technology developed by Teraspeed. Jointly developed intellectual property shall be agreed upon in writing and signed by both parties. Client agrees to defend, protect, and save harmless Teraspeed against all suits at law or in equity and from all damages, claims, and demands for actual or alleged infringement of an United States or foreign patent and to defend any suit or actions which may be brought against Teraspeed for any alleged infringement resulting from Client's: (a) Use of Product(s) in combination with any other products not provided by Teraspeed, (b) Any alteration of modification of the Products(s) not undertaken or authorized by Teraspeed, (c) Teraspeed's compliance with Client's specifications, or (d) Client's failure to comply with Teraspeed's instructions regarded as necessary to render the Product(s) non-infringing.
Proprietary Rights and Trade Secret Protection
In performance of this Quotation or in contemplation thereof, Client and its employees and agents may have access to private or confidential information owned or controlled by Teraspeed and/or its suppliers relating to equipment, apparatus, programs software, specifications, drawings and other data, and such information may contain proprietary details and disclosures. All such information and data so acquired by Client or its employees or agents will be and will remain Teraspeed's and/or its suppliers' exclusive property, and will be subject to the Nondisclosure Agreement.
In any legal action between Teraspeed and Client, if Teraspeed is the prevailing party, Client will pay all of Teraspeed's legal costs and expenses, including reasonable attorneys' fees at trial and on appeal.
All questions concerning the validity, operation, interpretation, and construction of the Quotation, including but not limited to these Terms and Conditions, shall be governed by and determined in accordance with the laws of the State of Oregon, with exclusive jurisdiction in courts located in Floyd County, Indiana, USA, without regard or application of any conflict of law principles the Parties specifically agree that the 1980 United Nations Convention on Contracts for the International Sale of Goods, as may be amended from time-to-time, shall not apply to this Agreement. The Parties acknowledge and confirm that the selection of the governing law is a material term of this Agreement.
If Client is a branch or agency of the United States government, whether that unit or agency be civilian or part of the Department of Defense, this provision applies. The Deliverables are comprised of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212, and are provided to Client consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4. Except as otherwise specifically provided for in the Quotation, the Deliverables may not be used, reproduced or disclosed to anyone, including support service contractors or their subcontractors, by client without the prior written consent of Teraspeed, such consent may be freely withheld at Teraspeed's sole discretion. The restrictions in the provision are in addition to, and not in lieu of, any other restrictions contained in or incorporated by this Agreement.
Performance of Work and delivery of Deliverables are subject to, and contingent upon, delay directly or indirectly caused by, or in any manner arising from, fires, floods, accidents, riots, acts of God, war, acts of terrorism, government interference, embargoes, priorities, regulations, orders and restrictions, strikes, labor difficulties, shortages of labor, fuel, power, materials or supplies, transportation delays or any other cause or causes (whether or not similar in nature to any of these hereinbefore specified) beyond Teraspeed's control and Teraspeed shall not be liable for any loss or damage suffered by Client arising there from. Teraspeed shall have the right, in the event of the happening of any of the above contingencies, at its option, to cancel this order or contract any part thereof without any resulting liability.
The Agreement constitutes the entire understanding between the parties, and supersede all prior discussions, representations, understandings or agreements, whether oral or in writing, between the parties with respect to the subject matter thereof. The Nondisclosure Agreement shall remain in full force and effect in accordance with its terms. Any terms and conditions on Client's purchase order or other documents will not apply to the Quotation. Any amendment to the Quotation must be in writing and signed by authorized representatives of both parties.
Any notice will be in writing and delivered personally, by overnight mail, by reputable courier service, by pre-paid registered or certified mail, or by facsimile transmission with confirmed receipt, addressed to the parties' respective addresses as set forth on the signature page of the Quotation. Such notice will be deemed to have been received on the date actually delivered or in any event within three (3) days after the notice is sent, postage pre-paid and properly addressed, to the party. Either party may notify the other party of a change in its notice address at any time.
Revision: August 2016