Terms
and Conditions of Sale
These terms govern the sale by M2
Global Technology, Ltd. or its general partner M2 Global,
Inc. ("M2Global") to M2 Global's customer ("Customer").
1) ACCEPTANCE
M2 Global’s quotation shall not
constitute an offer. It is intended as a price
quotation and a notice to Customer of M2 Global's Terms
and Conditions of sale. Customer's order, oral
or written, regardless of any contrary wording, shall
constitute an offer to purchase only on the Terms and
Conditions stated on the face hereof and as set forth
below. All Customer's Terms and Conditions
in addition to or in conflict with those contained herein
are hereby rejected and shall be void.
CUSTOMER'S OBJECTIONS, IF ANY, TO M2 Global’s TERMS AND
CONDITIONS OF SALE SHALL BE MADE IN WRITING PRIOR TO
SUBMISSION BY CUSTOMER OF ITS PURCHASE ORDER TO M2
GLOBAL. SUCH OBJECTION SHALL BE ADDRESSED TO
M2 GLOBAL’S MANAGER OF CONTRACTS AT THE PLANT IN SAN
ANTONIO, TEXAS PURSUANT TO ARTICLE 20.
2) ORDERS
Orders shall be initiated by Buyer
issuing a Purchase Order or otherwise placing an order by
electronic means acceptable to Seller. Orders
shall identify the Products, unit quantities, part numbers,
descriptions, applicable prices and requested delivery
dates. All orders are subject to acceptance by
Seller. No orders may be cancelled or rescheduled
without Seller's consent, which consent may be given by
Seller in its sole discretion. Seller reserves
the right to allocate sales of Products among its customers
in its sole discretion. Notwithstanding any
provision of these Terms and Conditions to the contrary,
all orders for Products (except those Products specifically
identified by M2 Global as Standard Products on the M2
Global Sales Order Acknowledgement) are for Products that
are special, custom, value added, or otherwise produced
specially for the Customer, including Products to be
assembled in kit form, work-in-process on hand and on
order. Because of the special nature of these
ordered Products they will be considered by both parties
to be "NCNR" or "Non-Cancelable and Non-Returnable" unless
specifically otherwise agreed to, in writing, by M2 Global.
3) PRICES
Prices shall be as specified by
Seller and shall be applicable for the period specified
in Seller's quote. If no period is specified,
prices shall be applicable for thirty (30) days.
Notwithstanding the foregoing, prices shall be subject to
increase in the event of an increase in Seller's costs or
other circumstances beyond Seller's reasonable control.
Prices are exclusive of taxes, impositions and other
charges, including: sales, use, excise, value added and
similar taxes or charges imposed by any government authority,
international shipping charges, forwarding agent's and
broker's fees, consular fees, document fees and import
duties. If Seller shall be liable for or shall
pay any of the foregoing, same shall be paid by Buyer to
Seller in addition to the price of the Products.
4) TERMS
OF PAYMENT
Payment shall be net thirty (30)
days from date of invoice or as otherwise specified by
Seller. All prices and payments are in U.S.
dollars. Buyer agrees to pay the entire net
amount of each invoice from Seller pursuant to the terms
of each such invoice without offset or deduction.
Orders are subject to credit approval by Seller,
which may in its sole discretion at any time change the
terms of Buyer's credit, require payment in cash, bank
wire transfer or by official bank check and/or require
payment of any or all amounts due or to become due for
Buyer's order before shipment of any or all of the
Products. If Seller believes in good faith
that Buyer's ability to make payments may be impaired
or if Buyer shall fail to pay any invoice when due,
Seller may suspend delivery of any order or any remaining
balance thereof until such payment is made or cancel any
order or any remaining balance thereof, and Buyer shall
remain liable to pay for any Products already shipped and
all Products ordered by Buyer, and furthermore Seller may
require new payment terms including prepayment of
remaining orders or letters of credit from a bank
acceptable to Seller. Buyer agrees to submit
such financial information from time to time as may be
reasonably requested by Seller for the establishment
and/or continuation of credit terms. Checks
are accepted subject to collection and the date of
collection shall be deemed the date of payment.
Any check received from Buyer may be applied by
Seller against any obligation owing from Buyer to Seller,
regardless of any statement appearing on or referring to
such check, without discharging Buyer's liability for any
additional amounts owing from Buyer to Seller, and the
acceptance by Seller of such check shall not constitute a
waiver of Seller's right to pursue the collection of any
remaining balance. Buyer shall pay interest on
any invoice not paid when due from the due date to the
date of payment at the rate of one and one-half (1½%)
percent per month or such lower rate as may be the maximum
allowable by law. If Buyer fails to make payment
when due, Seller may pursue any legal or equitable remedies,
in which event Seller shall be entitled to reimbursement for
costs of collection and reasonable attorneys fees.
5) DELIVERY
AND TITLE
All shipments by Seller are F.O.B.
point of origin and all transportation charges shall be
paid by Buyer in addition to the price of the Products.
Subject to Seller's right of stoppage in
transit, delivery of the Products to the carrier shall
constitute delivery to Buyer and title and risk of loss
shall thereupon pass to Buyer. Selection of
the carrier and delivery route shall be made by Seller
unless specified by Buyer. Seller shall use
reasonable efforts to initiate shipment and schedule
delivery as close as possible to Buyer's requested
delivery dates. Buyer acknowledges that
delivery dates provided by Seller are estimates only and
that Seller is not liable for failure to deliver on such
dates. Seller reserves the right to make
deliveries in installments. Delivery of a
quantity which varies from the quantity specified shall
not relieve Buyer of the obligation to accept delivery
and pay for the Products delivered. Delay in
delivery of one installment shall not entitle Buyer to
cancel other installments.
6) ACCEPTANCE
OF PRODUCTS AND PRODUCT RETURNS
Inspection and acceptance of the
Products shall be Buyer's responsibility.
Buyer is deemed to have accepted the Products unless
written notice of rejection is received by Seller within
ten (10) days after delivery of the Products.
Buyer waives any right to revoke acceptance thereafter.
Buyer shall report any discrepancy in shipment
quantity or damage within ten (10) days after delivery.
No return of Products shall be accepted by
Seller without a Return Material Authorization ("RMA")
Number, which may be issued by Seller in its sole
discretion. Returned Products must be in
original manufacturer's shipping cartons complete with
all packing materials. All Products for return
shall be returned freight prepaid in the manner specified
in the RMA. If returned Products are claimed to
be defective, a complete description of the nature of the
defect must be included with the returned Products.
Products not eligible for return shall be returned
to Buyer, freight collect.
7) FORCE
MAJEURE
Seller shall not be liable for
failure to fulfill its obligations herein or for delays
in delivery due to causes beyond its reasonable control,
including, but not limited to, acts of God, natural
disasters, acts or omissions of other parties, acts or
omissions of civil or military authority, Government
priorities, changes in law, material shortages, fire,
strikes, floods, epidemics, quarantine restrictions,
riots, war, acts of terrorism, delays in transportation
or inability to obtain labor or materials through its
regular sources. Seller's time for performance
of any such obligation shall be extended for the time
period of such delay or Seller may, at its option, cancel
any order or remaining part thereof without liability by
giving notice of such cancellation to Buyer.
8) SELLER'S
LIMITED WARRANTY
a. Seller warrants to Buyer that
upon delivery to Buyer the Products purchased hereunder
shall conform to the applicable manufacturer's
specifications for such Products and that any value-added
work performed by Seller on such Products shall conform to
applicable Buyer's specifications relating to such work.
Seller makes no other warranty, express or
implied, with respect to the Products. IN
PARTICULAR, SELLER MAKES NO WARRANTY RESPECTING THE
MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR RESPECTING
INFRINGEMENT. With respect to Products which
do not meet applicable manufacturer's specifications and
with respect to value-added work by Seller which does not
meet applicable Buyer's specifications, Seller's
liability is limited, at Seller's election, to (1) refund
of Buyer's purchase price for such Products (without
interest), (2) repair of such Products, or (3) replacement
of such Products; provided, however, that such Products
must be returned to Seller, along with acceptable evidence
of purchase, within thirty (30) days from date of
delivery, transportation charges prepaid.
Seller shall transfer to Buyer whatever transferable
warranties and indemnities Seller receives from the
manufacturer of the Products, including any transferable
warranties and indemnities respecting patent infringement.
b. M2 Global standard warranty for all ferrite
products of its own manufacture shall, at the time of
manufacture and for a period of twenty four months (2
years) thereafter, be free from defects in materials and
workmanship and to conform to M2 Global’s published specifications. All
other products shall be warranted for a period of 12 months
(1 year)
c. WARRANTY, OR OTHERWISE. SELLER SHALL NOT BE LIABLE
FOR AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER
HARMLESS FROM ANY CLAIMS BASED ON SELLER'S COMPLIANCE
WITH BUYER'S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR
MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN
SELLER, OR USE IN COMBINATION WITH OTHER PRODUCTS.
9) USE
OF PRODUCTS IN LIFE SUPPORT, NUCLEAR AND CERTAIN OTHER
APPLICATIONS
Products sold by Seller are not
designed, intended or authorized for use in life support,
life sustaining, nuclear, or other applications in which
the failure of such Products could reasonably be expected
to result in personal injury, loss of life or catastrophic
property damage. If Buyer uses or sells the
Products for use in any such applications: (1) Buyer
acknowledges that such use or sale is at Buyer's sole risk;
(2) Buyer agrees that Seller and the manufacturer of the
Products are not liable, in whole or in part, for any claim
or damage arising from such use; and (3) Buyer agrees to
indemnify, defend and hold Seller and the manufacturer of
the Products harmless from and against any and all claims,
damages, losses, costs, expenses and liabilities arising
out of or in connection with such use or sale.
10) EXPORT
CONTROL
The sale, resale or other
disposition of Products and any related technology or
documentation are subject to the export control laws,
regulations and orders of the United States and may be
subject to the export and/or import control laws and
regulations of other countries. Buyer agrees
to comply with all such laws, regulations and orders and
acknowledges that it shall not directly or indirectly
export any Products to any country to which such export
or transmission is restricted or prohibited.
Buyer acknowledges its responsibility to obtain any
license to export, re-export or import as may be required.
11) FEDERAL
CONTRACTS
For products acquired pursuant to
Federal Acquisition Regulations, the following shall be
construed to be incorporated herein: (1) Equal Opportunity
(E.O. 11246); (2) Affirmative Action for Special Disabled
and Vietnam era Veterans (38 U.S.C. 2012(a)); and (3)
Affirmative Action for Handicapped Workers (29 U.S.C.
793). No other Federal Acquisition Regulations
shall be construed to apply to Seller without Seller's
written agreement thereto.
12) EXCUSABLE
DELAY
M2 Global shall be excused from
performance under the Purchase Order and not be liable to
Customer for delay in performance attributable in whole
or in part to any cause beyond its reasonable control,
including but not limited to, actions or inactions of
government whether in its sovereign or contractual
capacity, judicial action, war, civil disturbance,
insurrection, sabotage, act of a public enemy, labor
difficulties or disputes, failure or delay in delivery by
M2 Global’s suppliers or subcontractors, transportation
difficulties, shortage of energy, materials, labor or
equipment, accident, fire, flood, storm or other act of
God, or Customer's fault or negligence. In the
event of an excusable delay, M2 Global shall make
reasonable efforts to notify Customer of the nature and
extent of such a delay and M2 Global (i) will be entitled
to a schedule extension on at least a day-for-day basis,
(ii) in the event of Customer's fault or negligence, will
be also entitled to an equitable adjustment in the price
of this contract.
13) CANCELLATION
AND TERMINATION
Cancellation of the Purchase Order
will be accepted only with the specific written approval
of M2 Global and shall be subject to the standard M2
Global cancellation charges. In the event that
either party breaches any provision of this Agreement and
fails to cure such breach within thirty (30) days after
receiving written notice from the other party, the
breaching party shall be in default. M2
Global’s maximum liability and Customer's maximum
recovery for any claim arising out of or in connection
with the sale or use of equipment hereunder shall not in
the aggregate exceed the price paid by Customer for such
equipment hereunder less the price of equipment delivered
and retained by Customer.
14) INFRINGEMENT INDEMNIFICATION
Customer agrees to promptly notify
M2 Global in writing of any notice, suit, or any action
against Customer based upon a claim that the Product
infringes a US patent, copyright, trademark, or trade
secret of a third party. M2 Global will defend
at its expense any such action, except as excluded in
these Terms and Conditions, and shall have full control
of such defense including all appeals and negotiations,
and will pay all settlement costs, or damages awarded
against Customer, but M2 Global shall not be liable to
Customer for special, incidental, indirect or
consequential damages. In the event of such
notice, suit or action, M2 Global will at its expense
procure for the Customer the right to continue using the
product, or modify the Product to render such
non-infringing, or accept return and replace such with
substantially equivalent non-infringing equipment, or
accept return of the Product and refund or credit to
Customer the amount of the original purchase price, less
a reasonable charge for depreciation and damage.
The preceding agreements by M2 Global in this section
shall not apply to any Product or portion thereof
manufactured to specifications furnished by or on behalf
of Customer, or to any infringement arising out of the
use of the Product in combination with other equipment or
software not furnished by M2 Global, or to use in a
manner not normally intended, or to any patent,
copyright, trademark or trade secret in which Customer,
or subsidiary or affiliate thereof, has a direct or
indirect interest, or if customer has not provided M2
Global with prompt notice, authority, information and
assistance necessary to defend the action.
The foregoing states the entire liability of M2 Global
for patent, copyright, trademark and trade secret
infringements by the Product or portion thereof.
15) TECHNICAL
DATA AND INVENTION
Unless specifically agreed to by M2
Global and identified and priced in this contract as a
separate item or items to be delivered by M2 Global (and
in that event, except to the extent so identified and
priced), the sale of goods hereunder confers on Customer
no right in, license under, access to, or entitlement of
any kind to any of M2 Global’s technical data including
but not limited to design, process technology, software
and drawings, or to M2 Global’s inventions (whether or
not patent able) irrespective of whether any such
technical data or invention or any portion thereof arose
out of work performed under or in the course of this
contract, and irrespective of whether Customer has paid
or is obligated to pay M2 Global for any part of the
design and/or development of the goods.
M2 Global shall not be obliged to safeguard or hold
confidential any data whether technical or otherwise,
furnished by Customer for M2 Global’s performance of
this contract unless (and only to the extent that)
Customer and M2 Global have entered into a separate
written confidential agreement. (Non-Disclosure
Agreement (NDA)).
Customer shall not violate M2 Global’s copyright of
documents or software or disclose M2 Global’s
confidential or proprietary data to others without M2
Global’s written permission.
16) STATEMENTS
AND ADVICE
If statements or advice, technical
or otherwise, are offered or given to Buyer, such
statements or advice shall be deemed to be given as an
accommodation to Buyer and without charge and Seller
shall have no responsibility or liability for the content
or use of such statements or advice.
17) ASSIGNMENT
Neither party may assign this
agreement in whole or in part without the prior written
consent signed by an officer of the other party.
Such consent shall not be unreasonably withheld.
18) GOVERNING
LAW, VENUE, AND JURISDICTION
This Agreement will be governed by
and construed in accordance with the laws of the State of
Texas. The parties agree that any action to
enforce any provision of this Agreement or arising out of
or based upon this Agreement or the business relationship
between M2 Global and Customer will be brought in a local
or Federal court of competent jurisdiction in the State
of Texas.
19) ENFORCEABILITY
If any provision of this Agreement
shall be held to be invalid, illegal or unenforceable,
the validity, legality or enforceability of the
remaining provisions shall in no way be affected or
impaired.
20) NOTICES
All notices shall be in writing and
shall be delivered or sent by registered, certified or
express mail, return receipt requested, to the addresses
indicated in this Agreement or to such other addresses as
the parties shall specify by giving notice pursuant
hereto. A copy of all notices shall be sent to
M2 Global Technology, Ltd., 5714 Epsilon Drive, San
Antonio, TX 78249, Attention: Manager of Contracts.
21) LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER
PROVISIONS OF THIS CONTRACT, UNDER NO CIRCUMSTANCES SHALL
M2 GLOBAL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY
CLAIMING UNDER CUSTOMER FOR SPECIAL, INCIDENTAL, AND
INDIRECT OR CONSEQUENTIAL DAMAGES, AS A RESULT OF A
BREACH OF ANY PROVISION OF THIS CONTRACT.
CUSTOMER HEREBY INDEMNIFIES M2 GLOBAL AGAINST ALL LOSS OR
LIABILITY FROM CLAIMS BY CUSTOMER OR A THIRD PARTY
ARISING OUT OF OR RELATING TO THE INSTALLATION,
OPERATION, OR USE OF THE EQUIPMENT, WHETHER ON ACCOUNT OF
NEGLIGENCE OR OTHERWISE.
22) BUYER
TERMS AND CONDITIONS
If Buyer attempts to supercede
these Terms and Conditions by sending to Seller a new set
of Terms and Conditions, these new Terms and Conditions
sent by Buyer shall not be valid unless agreed to in
writing by M2 Global.
23) ENTIRE
AGREEMENT
This Agreement supersedes all previous
communications, transactions, and understandings, whether
oral, or written, and constitutes the sole and entire
agreement between the parties pertaining to the subject
matter hereof. No modification or deletion
of, or addition to these terms shall be binding on either
party unless made in writing and signed by a duly authorized
representative of both parties.
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