Terms and Conditions
1. ACCEPTANCE: If Buyer's order contains written, printed or stamped provisions or conditions inconsistent with the written, printed, or stamped provisions and conditions set forth herein, the provisions set forth herein shall prevail. Buyer shall notify Bay Associates within 5 days of receipt of Bay Associates' Terms and Conditions if any objection is raised. All orders are subject to Acceptance by Seller. Seller's acceptance is expressly conditional upon Buyer's Acceptance of Bay Associates' Terms and Conditions.
2. PRICING: Prices are based upon the total quantity ordered and lot size. Any changes to the volume or manufacturing schedule may result in additional fees.
3. APPLICABLE LAW: This agreement is subject to the laws of the State of California.
4. SHIPPING DATES: Buyer agrees that the shipping dates set forth in this Agreement are binding and may not be changed unless done so pursuant to a written agreement signed by both parties. No changes in shipping dates will be accepted by Seller within 10 business days of the agreed upon shipment date.
5. BUYER'S LIABILITY: Buyer is liable for all product on hand, work in process, and any consequential damages for lead-time specified in advance of requested date of cancellation.
6. LICENSE: The submission of a quotation or order acknowledgement does not grant or imply a license under any patents now owned or controlled by Seller, or which may become owned or controlled by Seller, except to the extent that purchases are made from Seller.
7. INDEMNITY: Buyer hereby specifically agrees to hold Seller harmless and indemnify Seller against all claims for damage or profits and for all costs and attorney's fees incurred by Buyer resulting from any suit or suits arising from alleged infringements of patents, design copyrights, or trademarks with respect to all goods manufactured, either in whole or in part, to Buyer's specifications.
8. NON-CANCELABLE ORDERS: Orders for cable and cable assemblies are non-cancelable and non-returnable. Changes or cancellations to an order may result in charges equal to the full amount of the Buyer's purchase order.
9. RETURNS: If product is returned, a return authorization number is required prior to return shipment and the product may be subjected to a restocking fee. Product must be returned in original packaging and in original condition. Damaged product may not be accepted for credit. The Buyer will pay all costs for refurbishment of damaged product. Discovery of product defect and return of product must be made within 90 days following the delivery as noted in the applicable sections of the Uniform Commercial Code. In the event of a return, Seller shall have the right to substitute a conforming part.
10. PAYMENT: All invoices are delinquent at 30 days past invoice date. Overdue accounts may be placed on credit hold and shipments held. Buyer agrees to pay all reasonable collection charges, including attorney fees, in the event that the account is delinquent more than 60 days.
11. PAYMENT OF TAXES: In the event any sales tax, manufacturer's tax, or other tax is applicable to any shipment made by the Seller on Buyer's order, such tax will be added to the selling price and shall be paid by the Buyer.
12. TITLE/RISK OF LOSS: All prices are F.O.B. Fremont, California or Nogales, Arizona depending upon the build location, Net 30 days and all Seller obligations hereunder are completed when we deliver the items, properly consigned, to a common carrier. Seller's delivery to such carrier shall constitute delivery thereof to the Buyer.
13. WARRANTIES: Seller warrants to Buyer that the goods will conform substantially to the applicable drawings or design standards. The express warranty set forth in this agreement is exclusive and is in lieu of all other express or implied warranties, including, but not limited to, warranties of merchantability and fitness for a particular purpose. Seller's warranty extends only to the original cable or cable assembly supplied to Buyer and does not apply to components added by Buyer or by others at Buyer's direction. Seller's liability shall not exceed the price paid by Buyer for the ordered cable or cable assembly. No representative of Seller is authorized to make any warranties, promises or representations as to any product; and none shall be binding upon the Seller.
14. DISPUTES AND RESOLUTION; ATTORNEY'S FEES: The parties agree that any disputes or questions arising hereunder including the construction or application of the Agreement including these terms and conditions shall be settled in the State of California, according to the Laws of the State of California. The parties hereto hereby consent to jurisdiction and venue in the Superior Court of San Mateo County, California and in the Federal District Court for the Northern District of California with respect to all disputes or disagreements under the Agreement, including these Terms and Conditions and agree that any action with respect to any of the foregoing shall be brought and maintained only in such courts sitting in the Northern District of California or San Mateo County as appropriate.
15. CONFIDENTIALITY: Both parties acknowledge that during the course of business, each may obtain confidential information regarding the other party's business. Both parties agree to treat all such information as confidential and to take all reasonable precautions against disclosure of such information to unauthorized third parties during and for five (5) years after the term of all orders. Upon request by an owner, all documents relating to the confidential information will be returned to the owner.
16. ASSIGNMENT: It is agreed by the parties that there will be no assignment or transfer of neither any order nor any interest in any orders. Action by a party in violation of this provision will dismiss the other party from any further obligations arising from any orders.
17. AMENDMENT: The Terms and Conditions herein may be modified or amended only if the amendment is made in writing and is signed by both parties; provided however, that the terms of this Agreement shall prevail in any case where there is a conflict between these Terms and Conditions and the Agreement.
18. SEVERABILITY: If any provisions of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision is invalid or unenforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
19. WAIVER OF CONTRACTUAL RIGHT: The failure of either party to enforce any provisions of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
20. LIMITATION ON DAMAGES: Buyer's consequential or incidental damages for any breach of the contract by the Seller will be limited to the purchase price. Seller will have no liability to Buyer for any damages, losses, liabilities, injuries, claims, demands or expenses arising out of or directly or indirectly connected with the use of this product. Seller shall not be liable for any exemplary, indirect, incidental, or consequential damages sustained or incurred in connection with the use of the product regardless of the form of action, whether in contract, tort (including negligence) or strict liability.
21. NRE: Non-Recurring Engineering charges necessary to introduce a product to market. This may include but is not limited to the following: tooling, engineering support, test fixtures, special testing, drawings.
22. EXPORT OF THIS CABLE MAY BE RESTRICTED BY THE INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (ITAR). SHIPMENT TO FOREIGN PERSONS WITHOUT PRIOR U.S. GOVERNMENT APPROVAL IS PROHIBITED. VIOLATIONS OF THESE EXPORT LAWS AND REGULATIONS ARE SUBJECT TO SEVERE CIVIL AND CRIMINAL PENALTIES.