Terms & Conditions
MARTONE RADIO TECHNOLOGY, INC.
STANDARD TERMS AND CONDITIONS OF SALE
THESE TERMS AND CONDITIONS OF SALE (THIS “AGREEMENT”) APPLY TO ALL QUOTATIONS, PURCHASE ORDERS, ACKNOWLEDGMENTS AND OFFERS FOR PRODUCTS ISSUED OR RECEIVED BY MARTONE RADIO TECHNOLOGY, INC. (the “COMPANY”) TO OR FROM CUSTOMER (“CUSTOMER”). COMPANY’S ACCEPTANCE OF ANY CUSTOMER PURCHASE ORDER IS EXPRESSLY CONDITIONED ON CUSTOMER’S ASSENT TO THIS AGREEMENT. NO TERMS OR CONDITIONS SET FORTH IN CUSTOMER’S PURCHASE ORDER, TO WHICH NOTICE OF OBJECTION IS HEREBY GIVEN, OR IN ANY FUTURE CORRESPONDENCE BETWEEN CUSTOMER AND COMPANY, SHALL ALTER OR SUPPLEMENT THIS AGREEMENT UNLESS BOTH PARTIES HAVE AGREED IN WRITING TO MODIFY THIS AGREEMENT. NEITHER COMPANY’S COMMENCEMENT OF PERFORMANCE NOR DELIVERY OF ANY PRODUCTS SHALL BE DEEMED OR CONSTRUED AS ACCEPTANCE OF CUSTOMER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS. COMPANY RESERVES THE RIGHT TO REJECT ANY ORDER OR TO CANCEL ANY ORDER PREVIOUSLY ACCEPTED IF COMPANY DETERMINES THAT CUSTOMER IS IN BREACH OF ANY TERM OR CONDITION HEREIN.
1. PRICES. All quotations shall constitute offers subject to this Agreement. Unless otherwise stated in writing by Company, all prices quoted: (i) expire thirty (30) days after the date they are provided to Customer; and (ii) are exclusive of transportation, insurance, federal, state, local, excise, value-added, use, sales, property (ad valorem) and similar taxes or duties now in force or hereafter in effect. In addition to the prices quoted or invoiced, Customer agrees to pay all taxes, fees, or charges of any nature whatsoever imposed by any governmental authority on, or measured by, the transaction between Customer and Company. In the event that Company is required to collect such taxes, fees, or charges, such amounts will appear as separate items on Company’s invoice and will be paid by Customer.
2. TERMS OF PAYMENT. Unless otherwise set forth on the face hereof, all invoices shall be paid in full in U.S. dollars. Customer shall pay a late fee equal to the lesser of (a) 1.5% per month, or (b) the maximum amount permitted by law. Company reserves the right at any time and for any reason to require payment in advance or COD, or to otherwise modify, suspend, or terminate any credit terms previously extended to Customer. If Company believes in good faith that Customer’s ability to make any payment required hereunder is or may be impaired, Company may cancel this Agreement (or any remaining balance thereof), and Customer shall remain liable to pay for any products previously shipped. When partial shipments are made, payments shall become due in accordance with the designated terms upon submission of an invoice covering any such partial shipment.
3. DELIVERY AND TITLE. Title to the products and risk of loss or damage to the products shall pass to Customer at the products’ manufacturing location, immediately upon delivery to a suitable carrier, subject to Company’s security interest in such products as described below. Notwithstanding title to the products passing to Customer, title shall not pass to Customer as to any Company intellectual property rights or Company software.
4. SHIPMENTS. In the absence of specific shipping instructions, Company shall select a carrier who shall be deemed to act as Customer’s agent. Company shall be under no obligation to ship via any carrier selected by Customer if such carrier does not comply with applicable laws. Transportation charges will be collected on delivery or, if prepaid, will be subsequently invoiced to Customer. Unless otherwise indicated, Customer is obligated to obtain insurance against damage to products being shipped, and all products will be shipped in standard commercial packaging. When special or export packaging is requested or, in the opinion of Company, required under the circumstances, the cost of the same, if not set forth on the invoice, will be separately invoiced. All shipping dates are approximate and Company may change the delivery date without penalty provided Company provides Customer with reasonable notice of such change. Company shall not be responsible for any failure to perform or delay in performing under this Agreement which is directly or indirectly due to circumstances beyond its reasonable control, including, without limitation, earthquakes, governmental regulation, fire, flood, labor difficulties, civil disorder, and acts of God.
5. ACCEPTANCE. Customer shall accept or reject products within ten (10) days of receipt of each shipment. Failure to notify Company in writing of nonconforming products within such period shall be deemed an unqualified acceptance.
6. DEFAULT, CANCELLATION AND RESCHEDULING. In the event of Customer’s default in payment for the products purchased hereunder, Customer shall be responsible for all reasonable costs and expenses incurred by Company in collection of any sums owing by Customer (including reasonable lawyers’ fees), and Company may decline to make further shipments to Customer without in any way affecting its rights under this Agreement. If, despite any such breach by Customer, Company elects to continue to make shipments, such shipments shall not constitute a waiver of any breach by Customer or in any way affect Company’s legal remedies arising from such breach. Company may ship products in quantities that vary by up to five percent (5%) of the quantity ordered by Customer and such variance shall be deemed agreed to and accepted by Customer.
7. SECURITY INTEREST. Company hereby reserves for itself a purchase money security interest in all products sold hereunder and the proceeds thereof, in the amount of the purchase price. In the event of default by Customer in any of its obligations to Company, Company will have the right to repossess the products sold hereunder without liability to Customer. Such security interest will be satisfied by payment in full. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage to perfect Company’s security interest. Upon request, Customer will execute such financing statements and other instruments as Company may request to perfect Company’s security interest herein.
8. LIMITED WARRANTY.
(a) Company warrants for a period of one (1) year from the date of delivery (the “Warranty Period”) that products (except any excluded software) purchased and sold hereunder will substantially conform to Company’s published specifications. Repaired or replacement products provided under warranty are warranted for a period of one (1) year from the date of delivery. Notwithstanding the foregoing, Company products are not designed, and no warranty is made with respect to products used in devices intended for use in applications where failure to perform when properly used can reasonably be expected to result in significant injury (including, without limitation, space applications, nuclear equipment, fire fighting or for surgical implant or to support or sustain life). Customer hereby represents and warrants to Company that it will not use or sell any products for any of the foregoing purposes and Customer agrees to indemnify, defend, and hold Company harmless from all claims, damages and liabilities arising out of any such uses. This limited warranty is contingent upon proper use of the products in the applications for which they were intended and does not apply to any products that are subjected to unusual physical or electrical stress, misuse, neglect, accident or which have been altered or soldered such that they are not capable of being tested under normal test conditions, improper testing or storage, unauthorized repair, or problems that arise from any use of Company products with other products not approved by Company. This limited warranty does not include expendable components. This limited warranty is non-transferable and shall extend only to Customer, and not to any third parties (including, without limitation, Customer’s suppliers, customers, or any end users).
(b) In the event of a breach of this limited warranty, Customer shall notify Company in writing by describing the nature of the non-conformity, and return such products to Company in accordance with Company’s then-current returned material authorization (“RMA”) policies, within the Warranty Period. Customer shall ship such products back to Company at Customer’s expense. Company shall, at its option, promptly repair or replace non-conforming products, or issue a credit for the purchase price of the nonconforming products, and shall pay the costs of any such repair or replacement, including transportation costs incurred in returning repaired or replaced products to Customer unless (i) the products are not defective, in which case Customer shall pay Company reasonable costs of inspection and all transportation charges, or (ii) the products are defective due to Customer’s or any third party’s improper installation, repair, damage, misuse, abuse, or failure to use replacement parts and materials equivalent to Company’s parts and materials, in which case Customer shall pay all costs of repair or replacement and transportation. The remedy stated in this Section 8 shall be Customer’s sole remedy in case of any breach of limited warranty by Company. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
(c) Customer must mark each package it returns to Company under this Section 8 with a RMA number, which Company shall furnish to Customer on request. Customer shall include with any returned products: (i) the RMA number; and (ii) a written statement specifying the reasons why Customer rejected those products.
(d) EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES. ALL PRODUCTS ARE PROVIDED AS IS, AS AVAILABLE AND WITH ALL FAULTS, AND COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OUT OF A COURSE OF DEALING, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
(a) Customer Indemnity. Customer shall indemnify, defend and hold Company harmless from and against any and all claims brought by any third party against Company arising out of or related to Customer’s use or distribution of the products purchased hereunder, including (i) any claim arising out of or related to any warranty made by or on behalf of Customer to its customers that expands any warranties provided herein or fails to limit any liability as provided herein or (ii) any breach of this Agreement by Customer; provided, Company: (a) gives prompt written notice to Customer of the institution of the suit or proceedings; and (b) permits Customer through its counsel to defend the same and gives Customer all needed information, assistance and authority to enable Customer to do so.
(b) Company Indemnity. Subject to the limitations herein, Company shall defend any suit or proceeding brought against Customer if it is based on a claim that any product furnished hereunder constitutes an infringement of any third party copyright, trade secret or United States patent issued as of the date hereof, provided Company is promptly notified in writing by Customer and is given full and complete authority, information and assistance (at Company’s expense) for defense of same.
Company shall pay damages and costs therein finally awarded against Customer but shall not be responsible for any compromise or settlement made without its written consent. In providing such defense, or in the event that such product is held to infringe or the use of such product is enjoined, Company shall have the right in its sole discretion to obtain the right to continue using such product, modify such product so that it becomes noninfringing, or require the return of such product and refund to Customer the purchase price paid by Customer to Company for such product. Company’s indemnity does not extend to claims of infringement arising from Company’s compliance with Customer’s design, specifications or instructions or the modification of the product by parties other than Company, or arising from the use of the product in combination with other products or in connection with a manufacturing or other process not supplied by Company. THE FOREGOING REMEDY IS EXCLUSIVE AND CONSTITUTES COMPANY’S SOLE OBLIGATION FOR ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, OR FOR ANY LOSS OF PROFITS OR LOSS OF USE, INCLUDING LOSS OR DAMAGE TO ANY NETWORKS, SYSTEMS, DATA OR FILES, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR OTHER DAMAGES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THIS EXCLUSION ALSO INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST CUSTOMER. EXCEPT AS SET FORTH IN SECTION 9(b), COMPANY ASSUMES NO OBLIGATIONS OR LIABILITY OF ANY KIND WITH RESPECT TO INFRINGEMENTS OR ALLEGED INFRINGEMENTS OF UNITED STATES OR FOREIGN PATENTS, COPYRIGHTS, TRADEMARKS, OR OTHER PROPRIETARY RIGHTS ARISING OUT OF CUSTOMER’S PURCHASE, USE, OR POSSESSION OF COMPANY’S PRODUCTS AND CUSTOMER ASSUMES ALL SUCH RISK. IN NO EVENT SHALL COMPANY’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS PAID BY CUSTOMER TO COMPANY AND SUBJECT TO THIS AGREEMENT. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF COMPANY ARISING OUT OF THIS AGREEMENT AND/OR THE SALE OF PRODUCTS TO CUSTOMER, AND THE PARTIES EXPRESSLY AGREE WITH THE RESULTING ALLOCATION OF RISK.
11. SUBSTITUTIONS AND MODIFICATIONS. Company reserves the right to (i) make substitutions and modifications in the specifications of products sold by Company, provided that such substitutions or modifications do not materially affect overall product performance, and (ii) discontinue or otherwise end-of-life any product sold hereunder.
12. PROPRIETARY RIGHTS. Customer acknowledges that the products sold by Company hereunder contain and embody trade secrets belonging to Company and Customer shall not reverse engineer any products purchased hereunder. In addition to the foregoing, Company owns all rights, title and interest in and to all other intellectual property rights, including patent and copyrights, embodied by or reflected in the products. A license solely for the use of the software contained in the product is granted hereunder and Company retains for itself all proprietary rights in and to all designs, engineering details, and other data pertaining to the products.
13. NOTICES. Any notice contemplated by or made pursuant to this Agreement shall be in writing and shall be deemed delivered on the date of delivery if delivered personally, or three (3) days after mailing if placed in the U.S. mail, postage prepaid, registered or certified mail, return receipt requested, addressed to Customer or Company (as the case may be) at the designated address, or such other address as shall be designated by at least ten (10) days prior written notice. A notice given by any means other than as specified herein will be deemed duly given when actually received by the addressee.
14. IMPORT AND EXPORT REQUIREMENTS. Customer shall, at its own expense, pay all import and export licenses and permits, pay all value-added and other VATs, customs charges and duty fees, and take all other actions required to accomplish the export and import of the products purchased by Customer. Customer understands that Company may be subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibits export or diversion of certain technical products to certain countries. Customer warrants that it will comply in all respects with the export and reexport restrictions set forth in the export license for every product shipped to Customer.
15. APPLICABLE LAW, JURY TRIAL WAIVER, JURISDICTION, AND LIMITATION ON ACTIONS. This Agreement shall be governed by and construed under the laws of the State of California, without regard to choice of law provisions, as applied to agreements entered into and to be performed entirely within the State of California. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement or to any of the transactions contemplated hereby. The parties hereby irrevocably and unconditionally submit to the jurisdiction of the Courts of the State of California and of the United States of America for the Northern District of California and agree that any legal action or proceeding relating to this Agreement may be brought in such courts. The parties hereby agree that any action or claim arising out of any dispute in connection with this Agreement, any rights, remedies, obligations, or duties hereunder, or the performance or enforcement hereof or thereof shall be determined by judicial reference. Customer shall not bring any action relating to any dispute Customer may have after one (1) year of the accrual of such dispute.
16. ATTORNEYS’ FEES. In the event litigation shall be instituted to enforce any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover reasonable attorneys’ fees and expenses incurred in such litigation, including on appeal, in addition to any other recovery to which such party may be legally entitled.
17. ASSIGNMENT. This Agreement shall bind and inure to the benefit of Company’s successors and assigns, including, without limitation, any entity into which Company shall merge or consolidate. Customer may not assign, directly or indirectly, by operation of law or otherwise, any of Customer’s rights or obligations under this Agreement without Company’s prior written consent. Any attempted assignment, delegation, or transfer by Customer without such consent of Company shall be void.
18. U.S. GOVERNMENT CONTRACTS. If the products to be sold hereunder are to be used in the performance of a U.S. Government contract or sub-contract and a U.S. Government contract number appears on Customer’s purchase order, those clauses of the applicable U.S. Government procurement regulation, which are mandated by Federal Statute to be included in U.S. Government subcontracts, shall be incorporated herein by reference.
19. CONFIDENTIALITY. Customer acknowledges that all technical or business and other documentation, information and materials delivered to or learned by Customer hereunder shall be considered Company’s confidential information (the “Confidential Information”). Customer hereby agrees: (i) to hold and maintain in strict confidence all Confidential Information of Company; and (ii) not to use any Confidential Information of Company except as permitted hereunder. Customer will use at least the same degree of care to protect the Company’s Confidential Information as it uses to protect its own confidential information of like importance, and in no event shall such degree of care be less than reasonable care. Customer agrees that it will only provide Confidential Information to those employees who have a need to know for the purposes hereunder. Customer agrees that it shall not disclose the Company Confidential Information to any third party, including third party contractors, without written authorization from Company.
20. ERRORS AND VALIDITY OF AGREEMENT. Stenographic and clerical errors in sales made under this Agreement are subject to correction. In the event any provision of this Agreement is held to be invalid or unenforceable, then such provision shall be deemed automatically adjusted to the minimum extent necessary to conform to the requirements for validity as declared at such time and, as so adjusted, shall be deemed a provision of this Agreement as though originally included herein. In the event that the provision invalidated is of such a nature that it cannot be so adjusted, the provision shall be deemed deleted from this Agreement as though such provision had never been included herein. In either case, the remaining provisions of this Agreement will remain in full force and effect.
21. ENTIRE AGREEMENT. The terms and conditions set forth herein constitute the entire Agreement between Customer and Company and supersede any other agreements or offers, including any purchase order of Customer, prior or contemporaneous oral or written understandings, or communications relating to the subject matter hereof. Notwithstanding the foregoing, in the event Customer and Company have a written Supply Agreement, the terms of the Supply Agreement shall govern.