THE SALE OF PRODUCTS AND SERVICES ("PRODUCTS") BY TRANSPARENTC AND ITS DIVISIONS AND SUBSIDIARIES ARE SUBJECT TO THESE TERMS AND CONDITIONS ("AGREEMENT") REGARDLESS OF OTHER OR ADDITIONAL TERMS OR CONDITIONS THAT CONFLICT OR CONTRADICT THIS AGREEMENT IN ANY PURCHASE ORDER, DOCUMENT, OR OTHER COMMUNICATION ("ORDER"). PREPRINTED TERMS AND CONDITIONS ON ANY CUSTOMER ("CUSTOMER") DOCUMENT (FOR EXAMPLE: PURCHASE ORDERS OR CONFIRMATIONS.) AND/OR TRANSPARENTC FAILURE TO OBJECT TO CONFLICTING OR ADDITIONAL TERMS WILL NOT CHANGE OR ADD TO THE TERMS OF THIS AGREEMENT.
1. ORDERS. All Orders are subject to acceptance by TRANSPARENTC. TRANSPARENTC reserves the right to allocate the sale of Products among its customers. Orders for special, custom, value-added and Products specifically identified by TRANSPARENTC as non-standard are non-cancelable and non-returnable ("NCNR"). The Customer may not cancel or reschedule Orders for standard Products without TRANSPARENTC consent, which shall not be unreasonably withheld.
2. PRICES. TRANSPARENTC'S quoted prices apply for 30 days or as otherwise stated in its quote. TRANSPARENTC may increase prices if TRANSPARENTCcosts increase or other circumstances beyond TRANSPARENTC's reasonable control. Prices are for Products only and do not include taxes, impositions and any other charges, fees, shipping charges and duties imposed by any government authority. Customer is responsible for any additional fees and taxes.
3. TERMS OF PAYMENT. Payment of the total invoice amount, without offset or deduction, is due 30 days from the invoice date. On any past due invoice, TRANSPARENTC may charge interest from the payment due date to the date of payment (at 1% per month), plus reasonable attorney fees and collection costs. TRANSPARENTC may change the terms of Customer's credit at any time. TRANSPARENTC may apply payments to any of Customer's accounts.
4. DELIVERY AND TITLE. Customer is responsible for all shipping costs and any applicable surcharges. Title and risk of loss pass to Customer upon delivery of the Products to the carrier. TRANSPARENTC's delivery dates are estimates only and TRANSPARENTC is not liable for delays in delivery. TRANSPARENTC reserves the right to make partial shipments and Customer will accept delivery and pay for the Products delivered. A delayed delivery of any part of an Order does not entitle Customer to cancel other deliveries.
5. ACCEPTANCE OF PRODUCTS AND PRODUCT RETURNS. Customer must notify TRANSPARENTC in writing of any damage, shortage, or other discrepancy to Products within 10 days after delivery. After the 10th day Customer is deemed to have accepted the Products and may not revoke acceptance. Customer cannot return Products without a return material authorization ("RMA") number. Returned Products must be in original manufacturer's shipping cartons or equivalent. Customer must return all Products, freight prepaid, as specified in the RMA and pay any restocking charges. At TRANSPARENTC's discretion, TRANSPARENTC will return all Products not eligible for return to Customer freight collect, or hold Product for Customer's account at Customer's expense.
6. TRANSPARENTC'S LIMITED WARRANTY. TRANSPARENTC will transfer to Customer any Product warranties and indemnities authorized by the manufacturer, including any transferable warranties and indemnities for intellectual property infringement. TRANSPARENTC warrants the Products will conform to the manufacturer's specifications. Value-added work performed by TRANSPARENTC on Products will conform to Customer's specifications. TRANSPARENTC MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED.TRANSPARENTC MAKES NO WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT. If Products do not meet manufacturer's specifications or if value-added work by TRANSPARENTC does not meet Customer's specifications, TRANSPARENTC has the option to (1) repair the Products, (2) replace the Products at no cost to Customer; or (3) refund Customer's purchase price. Customer must return Products to TRANSPARENTC, along with acceptable proof of purchase, within 30 days from date of delivery, freight charges prepaid.
7. LIMITATION OF LIABILITY.TRANSPARENTC IS NOT LIABLE FOR AND CUSTOMER IS NOT ENTITLED TO ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES; FOR EXAMPLE, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, LOSS OF USE, REWORK, MANUFACTURING EXPENSE, INJURY TO REPUTATION, OR LOSS OF CUSTOMERS. CUSTOMER'S RECOVERY FROM TRANSPARENTCFOR ANY DIRECT DAMAGES WILL NOT EXCEED THE PRICE OF THE PRODUCT AT ISSUE. CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD TRANSPARENTC HARMLESS FROM ANY CLAIMS BASED ON; (i) TRANSPARENTC'S COMPLIANCE WITH CUSTOMER'S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (ii) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN TRANSPARENTC, OR (iii) USE IN COMBINATION WITH OTHER PRODUCTS.
8. FORCES BEYOND TRANSPARENTC'S CONTROL. TRANSPARENTC is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond its reasonable control, (for example: acts of God, acts or omissions of the Customer, man-made or natural disasters, epidemic or medical crises, materials shortages, strikes, acts of terrorism, delays in transportation, or inability to obtain labor or materials through its regular sources).
9. USE OF PRODUCTS. Products are not authorized for use in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. If Customer uses or sells the Products for use in any such applications, Customer acknowledges that such use or sale is at Customer's sole risk. Customer will indemnify, defend and hold TRANSPARENTC and the Product manufacturer harmless from and against any and all liabilities and costs arising out of or in connection with such use or sale.
10. EXPORT/IMPORT. Certain Products sold by TRANSPARENTC and other related technology and documentation are subject to export control laws, regulations and orders of the United States and the export or import control laws and regulations of other countries. Customer will not directly or indirectly export or divert any Products and other related technology and documentation to any third party or country where such export or transmission is restricted or prohibited. Customer agrees it is responsible to obtain any license to export, re-export, or import as may be required.
11. PRODUCT INFORMATION. Product information, including information related to a Product's specifications, export/import control classifications, uses or conformance with legal or other requirements, is obtained by TRANSPARENTC from its suppliers or other sources. TRANSPARENTC provides such information on an "AS IS" basis.TRANSPARENTC makes no representation as to the accuracy or completeness of the Product information, and disclaims all representations, warranties and liabilities under any theory with respect to the Product information, including any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. TRANSPARENTC recommends Customer validate any Product Information before using or acting on such information. All Product information is subject to change without notice. TRANSPARENTC is not responsible for typographical or other errors or omissions in Product information.
- The laws of the State of California will exclusively govern any dispute between TRANSPARENTC and Customer without reference to California's conflict of laws principles. The United Nations Convention for the International Sale of Goods shall not apply.
- Customer may not assign this Agreement without the prior written consent of TRANSPARENTC. TRANSPARENTC or its affiliates may perform the obligations under this Agreement. This Agreement is binding on successors and assigns.
- This Agreement can only be modified in writing signed by authorized representatives of both TRANSPARENTC and Customer.
- TransparentC and Customer are independent contractors and agree that this Agreement does not establish a joint venture or partnership.
- Statements or advice (technical or otherwise) if given without charge, are an accommodation to Customer and TRANSPARENTC has no responsibility or liability for the content or use of such statements or advice.
- TRANSPARENTC's failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions.
- The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions.
- Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses.
- Customer and TRANSPARENTC will comply with applicable laws and regulations.