Terms and Conditions of Sale of Finesse Solutions, Inc. (hereinafter “SELLER”)
The terms and conditions set forth herein and any additional terms and conditions that appear on SELLER’s Order Acknowledgement Form and/or in SELLER’s End User Software License Agreement shall apply to all quotations made, and to all contracts entered into, between SELLER and BUYER for the purchase by BUYER of any of SELLER’s products including systems, components, spare parts and/or Licenses for Software (“Products”), operating instructions (“Documentation”) and any Services and constitute an integral part of any contract for the sale of such Products and/or Services. SELLER will not be bound by any terms of BUYER’s purchase order that are in addition to or inconsistent with the terms hereof. These Terms and Conditions shall not be modified except in a writing signed by SELLER and no waiver by SELLER of any default hereunder or provision hereof shall be deemed a waiver of any other or subsequent default or provision.
- PRODUCTS PROVIDED AND PRICE
(a) BUYER will purchase Products from SELLER pursuant to purchase orders sent to SELLER by confirmed facsimile or electronic transmission. Within ten (10) business days of SELLER’s receipt of BUYER’s purchase order, SELLER will acknowledge receipt and acceptance or rejection of the purchase order and if accepted set forth an anticipated ship date for the Products ordered. Any shipment date quoted on an order acknowledgment is an estimate only of the time required to make shipment, and SELLER hereby expressly disclaims all liability, for any losses, consequential or otherwise, damages or penalty resulting from any delay or failure to deliver all or any part of any order for any reason. SELLER reserves the right to allocate inventories and production in any way it deems appropriate. Stenographical, typographical and clerical errors in any order acceptance document are subject to correction.
(b) Prices quoted are only for the Products and Services (if any) described in SELLER’s Order Acknowledgement Form, and do not include tests (other than SELLER’s standard tests), technical data, or patent or other proprietary rights of any kind. Unless otherwise indicated in writing, all quotations expire sixty (60) days after the date indicated on the face thereof.
(c) Prices do not include any sales, excise, use, VAT, customs or other taxes or duties which are applicable to the Products or services incident to this transaction (excluding only taxes based on SELLER’s income), which taxes will be added to the sales price if SELLER has the legal obligation to collect the same and will be invoiced to and paid by BUYER, unless BUYER provides SELLER with a valid tax exemption certificate. If SELLER is required to pay any such tax or similar charge, BUYER shall promptly reimburse SELLER for same.
(d) The obligation of SELLER to provide Products, as well as any technical assistance, shall be subject to such United States laws and regulations as govern the license and/or delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, any successor legislation, the Export Administration Regulations issued by the Department of Commerce and the Bureau of Industry and Security and of other countries as applicable, and BUYER acknowledges that the Products and technology embodied therein may include encryption technology. BUYER agrees to assume all responsibility for obtaining any required export authorization and to comply with all laws and regulations governing the use, export, re-export, an/or transfer of the Products and the technology embodied therein. BUYER and SELLER each agree to provide to the other such information and assistance as may reasonably be required in connection with securing any necessary authorizations or licenses. BUYER agrees to indemnify and hold SELLER harmless from any liability arising from the failure of BUYER to comply with all such laws and regulations, or otherwise with the provisions of this paragraph.
- PAYMENT TERMS AND SECURITY INTEREST
(a) Unless otherwise stated on the face hereof, the payment terms for Products are net 30 days from date of invoice to BUYER. Unless otherwise provided in the applicable Service Contract, payment for Services is due prior to the commencement of the Service Contract period. All payments shall be made to SELLER at its administrative office at 3501 Leonard Court, Santa Clara, California, USA, 95054 or to such other location as SELLER shall designate. Interest accrues on the unpaid balance of overdue invoices from the original due date of the invoice at the rate of the lesser of one and one-half percent (1.5%) per month, or the highest amount allowed by law. Payment shall not be withheld for delay in installation if such delay is at BUYER’s request, nor for delay in delivery of required documentation unless a separate price is stated therefore, and then only to the extent of the amount stated. All amounts payable shall be invoiced and paid in United States Dollars.
(b) All orders, and the obligation of SELLER to make delivery, are subject to the right of SELLER to ship C.O.D or to require alternative payment terms, including payment of all or any part of the purchase price in advance of delivery. If BUYER: i) fails to make advance payment when requested by SELLER, ii) is or becomes delinquent in the payment of any sum due SELLER, or iii) refuses to accept C.O.D. shipment, then SELLER shall have the right, in addition to any other remedy to which it may be entitled in law or equity, to cancel any order and/or refuse to make further deliveries and declare immediately due and payable all unpaid amounts for Products previously delivered to BUYER. Partial shipments made under any order shall be treated as a separate transaction and payment for same shall be made accordingly. However, in the event of any default by BUYER, SELLER may decline to make further shipments without in any way affecting SELLER’s rights with respect to such partial shipment
(c) SELLER reserves a purchase money security interest in the Products sold hereunder and in the proceeds thereof in the amount of the purchase price. In the event of a default by BUYER on any of its obligations to SELLER, SELLER will have the right to repossess the Products without liability to BUYER and in such event, BUYER agrees to make the Products available to SELLER and enable SELLER to repossess them without a breach of the peace. SELLER may at any time file a copy of the invoice with appropriate authorities as a financing statement and/or chattel mortgage to perfect SELLER’s security interest. BUYER shall cooperate fully with SELLER to execute such other documents and to accomplish such filings and/or recordings thereof as SELLER may deem reasonably necessary for the protection of SELLER’s interests in the Products furnished hereunder.
- SHIPMENT, RISK OF LOSS AND INSURANCE
(a) The price of all Products, unless otherwise specifically stated in SELLER’s Order Acknowledgement Form, is ex works SELLER’S facility, Santa Clara, California, USA per Incoterms 2010. The cost of packaging for normal domestic shipment is included in the invoiced price. For international shipments, or where BUYER specifies special packaging, a charge will be made to cover any extra expense. Risk of loss or damage shall pass to BUYER upon delivery of the Products to the designated transportation company at SELLER’s facility whether or not installation at BUYER’s plant is to be provided by or under the supervision of SELLER. SELLER reserves the right to select the means of transportation and routing. Confiscation or destruction of or damage to Products after delivery to the designated transportation company shall not release, reduce or otherwise affect the liability of BUYER therefor.
(b) Shipping dates are approximate only and are subject to change. SELLER shall not be liable for delays in delivery or failure to manufacture or deliver the Products or perform Services due to acts of BUYER, acts of civil or military authorities, judicial orders, embargoes, force majeure, fires, floods, earthquakes, other acts of God, terrorist acts, accidents, epidemics, wars, insurrections, riots, strikes, delays in transportation, SELLER’s inability to obtain necessary labor, materials, component parts, or manufacturing facilities or any other cause beyond SELLER’s reasonable control.
5. RETURN OF PRODUCTS
Products may not be returned to SELLER without first obtaining SELLER’s written consent. A request for return of Products for credit must include P.O. number and approximate date shipped, the type and quantity of Products, their part numbers and the reason for the return. If return authorization is granted, Products shall be returned in a clean, well packaged condition. No credit allowance for defective Product will be made, nor will a replacement for any returned Product be provided, unless the alleged defects are established to SELLER’s reasonable satisfaction. Notwithstanding any defect, nonconformity, or any other matter, all risk of loss shall remain in BUYER until the Products are returned to SELLER. BUYER shall fully insure returned Products against all loss or damage until SELLER has been paid in full therefore, or the returned Products have been received by SELLER. If it is found that any returned Product is not defective or non-conforming, BUYER will be so notified and such Product will be returned to BUYER at BUYER’s expense. In addition, a charge for testing and examination may, at SELLER’s sole discretion, be made on any Product so returned.
Any order for a standard Product accepted by SELLER but cancelled by BUYER prior to shipment, shall be subject to a cancellation charge of ten percent (10%) of the order value. Provided however, , if such cancellation occurs less than thirty (30) days before the estimated shipment date, such cancellation shall be subject to a cancellation charge of twenty-five percent (25%) of the order value. No order for non-standard Products may be cancelled by BUYER except with SELLER’s written consent, and in any event is subject to the following conditions: (a) BUYER will pay, at the applicable contract price, for all non-standard Products which are completed and allocable to BUYER at the time of SELLER’s receipt of BUYER’s request for cancellation; (b) BUYER will have no rights in partially completed non-standard Products; and (c) BUYER will pay all costs, direct and indirect, which have been incurred by SELLER with regard to nonstandard Products which have not been completely manufactured at the time of SELLER’s receipt of the request for cancellation.
Installation of Products is the responsibility of the Buyer unless otherwise agreed. At the request and expense of BUYER, SELLER will supervise the initial installation of the Products at BUYER’s plant. BUYER will, at its expense, provide facilities for the installation of the Products which comply in all respects with SELLER’S instructions and all applicable laws, codes, regulations, orders and the like and with agreements and understandings with labor unions. SELLER will: i) run a standard performance test, as defined in SELLER’s then current Customer Acceptance Procedure, ii) provide BUYER with an acceptance procedure document for BUYER’s signature, and iii) at its sole option repair or replace any Products found to be non-conforming. Until accepted by BUYER, the use of the Products will be restricted to completion of acceptance tests, which tests, except in the case of SELLER caused events or conditions, are to be completed within thirty (30) days after delivery. Use by the BUYER of the Products in production shall be conclusively deemed to constitute acceptance of the Products, the applicable warranty period shall commence and any remaining unpaid balance on the Purchase Order shall be due for immediate payment.
Notwithstanding anything contained herein to the contrary, the following terms and conditions shall apply to the Documentation and to all software which is incorporated into or accompanies the Products (“Licensed Software”):
(a) Software and Documentation License Grant. The title to all Licensed Software (including programs and Documentation) furnished by Seller shall be retained by Seller and/or the applicable third party. SELLER hereby grants to BUYER a nonexclusive right and license under SELLER’s intellectual property rights in the Licensed Software to use the object code version of the Licensed Software solely as embedded in and/or bundled with the Products in which it was supplied and solely in accordance with the provisions of FINNESSE’S End User Software License Agreement. SELLER hereby grants to BUYER a non-exclusive license to use the Documentation solely in connection with BUYER’s authorized use of the Products.
(b) License Restrictions. BUYER agrees not to attempt to modify, reverse assemble, create derivative versions of, copy, reproduce, reverse engineer, decompile, reverse compile, translate or otherwise attempt to discover or disclose the source code of the Licensed Software and/or the Documentation, or any complete or partial copy thereof. BUYER may not rent, lease, grant sublicenses to or otherwise transfer the Licensed Software and/or the Documentation or any other rights therein, without SELLER’s prior written consent. BUYER shall not remove any proprietary notices, labels or marks which are incorporated in, marked on or affixed to the Licensed Software and/or the Documentation. In no event shall BUYER sell or otherwise transfer the Licensed Software as a stand-alone product.
9. PATENT INFRINGEMENT
(a) Except as set forth herein, SELLER will defend BUYER at SELLER’s expense against a claim that a standard Product furnished hereunder constitutes an infringement of a United States Patent. BUYER shall notify SELLER promptly in writing of any such claim and shall give SELLER full authority, information and assistance in settling and/or defending such claim. SELLER shall have no liability whatsoever with respect to any claims settled by BUYER without SELLER’s prior written consent. Likewise, SELLER shall have no liability to BUYER under any provision of this clause 9 if any claim of patent infringement is based upon the use of Product: i) after modification thereof by any person other than SELLER; ii) in combination with equipment or devices not made by SELLER; iii) in a process for which the Product was not designed; or iv) in respect of any non-standard Product manufactured in accordance with BUYER’s specifications.
(b) In case a standard Product furnished by SELLER is held in and of itself to be an infringement and its use is enjoined, SELLER, within a reasonable time shall, at its option either: (i) secure for BUYER the right to continue using the Product by procuring for the BUYER a license or by some other means; (ii) at SELLER’s expense, replace the Product with a non-infringing product; or (iii) remove the enjoined Product and refund to BUYER the sums paid therefore. SELLER’S obligation shall not apply to any equipment, device or parts specified by BUYER but not manufactured by SELLER.
THE FOREGOING STATES SELLER’S ENTIRE LIABILITY AND OBLIGATION (EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) WITH RESPECT TO PATENT INFRINGEMENT OR ANY CLAIMS THEREFOR.
10. LIMITED WARRANTY, LIMITATION OF REMEDIES
(a) Except as otherwise specified herein, SELLER warrants Products to be free from defects in material and workmanship for twelve (12) months beginning five (5) days after the date of shipment.Seller’s personnel shall render all Services in a good and workmanlike manner. This warranty: i) is made to BUYER only, and is non-transferable, ii) is the only warranty made by SELLER with respect to Products and Services and no person is authorized to obligate SELLER beyond this warranty, and iii) may only be modified or amended by a written instrument signed by a duly authorized officer of SELLER.
(b) BUYER shall have the right to inspect the Products upon delivery. BUYER’s exclusive remedy with respect to any defective or non-conforming Product shall be to have SELLER repair or replace such Product at no cost to BUYER or to credit BUYER’s account, whichever SELLER may elect. Products or parts thereof which are replaced or repaired are subject to all the terms of the original warranty and are warranted only for the remaining, un-expired portion of the original warranty period applicable to the specific Product replaced or repaired. These remedies are available only if: i) SELLER is promptly notified in writing by BUYER upon discovery of a Product defect or non-conformity, and in any event, within the warranty period; ii) SELLER’s examination of such Product discloses to SELLER’s satisfaction that such defect or non-conformity actually exists and that the Product has not been repaired or altered by persons not authorized by SELLER, subject to misuse, negligence or accident, or connected, installed, used, maintained or adjusted otherwise than in accordance with the instructions furnished by SELLER. If it is found that any returned Product is not defective, BUYER will be notified and such Product returned to BUYER at BUYER’s expense. In addition, a charge for testing and examination may be made on any Product so returned.
(c) SELLER warrants that the Licensed Software will substantially conform to the user documentation supplied therewith for a period of ninety (90) days commencing upon the earlier of: (i) installation; or (ii) sixty (60) days after delivery unless acceptance is delayed due to the fault of SELLER. SELLER’s sole and exclusive obligation under this warranty shall be, at SELLER’s option and expense, to: (i) supply BUYER with a workaround for error(s); or (ii) correct error(s) and integrate such correction into SELLER’s next generally available release of the Licensed Software. To be covered by this limited warranty, such errors must be: (i) reported by BUYER during the Warranty Period; and (ii) reproducible by SELLER. SELLER does not warrant that: (1) operation of the Licensed Software shall be uninterrupted or error-free; or (2) the functions contained in the Licensed Software shall meet all of BUYER’s requirements. SELLER shall not be obligated hereunder to provide any upgrades, updates or new versions of the Licensed Software except as expressly set forth above.
(d) The software warranty set forth above shall not apply to the extent that any defects or problems are caused by: (i) a defect in any BUYER or third party hardware or equipment; (ii) the failure of any BUYER or third party hardware or equipment to function in accordance with applicable manufacturer’s specifications; (iii) any alteration, modification or enhancement made to the Licensed Software by BUYER or any third party or entity other than SELLER; (iv) any software program, hardware (other than the Products), firmware, peripheral or communications device used in connection with the Licensed Software; (v) the failure of BUYER or any third party to follow the most current instructions provided by SELLER with respect to the proper use of the Licensed Software; or (vi) the negligence of BUYER or any third party. If SELLER determines that any warranty claim by BUYER falls within any of the foregoing exceptions, BUYER shall pay SELLER for all efforts expended by SELLER at the hourly service rates then in effect.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, AND SHALL BE BUYER’S SOLE REMEDY AND SELLER’S SOLE LIABILITY IN TORT, CONTRACT OR OTHERWISE FOR PRODUCTS. SELLER EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT AS EXPRESSLY PROVIDED IN CLAUSE 9, SELLER’S LIABILITY UNDER, FOR BREACH OF, OR OTHERWISE ARISING OUT OF THIS AGREEMENT AND/OR THE SALE OF PRODUCTS WILL BE LIMITED AT SELLER’S SOLE OPTION TO REPAIR OR REPLACEMENT OF ANY DEFECTIVE PRODUCTS OR A REFUND OF THE PURCHASE PRICE OF THE PRODUCTS. IN NO EVENT WILL SELLER BE LIABLE FOR COSTS OF PROCUREMENT BY BUYER OF ANY SUBSTITUTED PRODUCTS NOR WILL SELLER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES HOWEVER CAUSED TO BUYER OR TO ANY OTHER PERSON OR ENTITY INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS AND WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST BUYER. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF SELLER ARISING OUT OF THIS AGREEMENT AND/OR THE SALE OF PRODUCTS.
11. BANKRUPTCY OR INSOLVENCY OF BUYER
If at any time the financial condition of the BUYER is such as to give SELLER reasonable grounds for insecurity concerning BUYER’s ability to perform its obligations under this agreement, SELLER may by notice in writing to BUYER, cancel this agreement, without judicial intervention or declaration of default of BUYER and without prejudice to any right or remedy which may have accrued or may accrue thereafter to SELLER.
12. SELLER’S PROPRIETARY RIGHTS
The sale of the Products hereunder to BUYER shall in no way be deemed to confer upon BUYER any right, interest in or license to any patents or patent applications, trademarks or copyrights (except as provided in clause 8) of the SELLER covering the Products. SELLER retains for itself all proprietary rights in and to all designs, engineering details, and other data and materials pertaining to any Products supplied to BUYER by SELLER and to all discoveries, inventions, patents and other proprietary rights arising out of all work done by SELLER in connection with the Products or with any products subsequently developed by SELLER.
13. APPLICABLE LAW, JURISDICTION AND VENUE, ATTORNEY’S FEES AND COSTS
This agreement will be governed by and construed in accordance with the laws of the State of California without reference to conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply in any manner to this agreement. The California State Courts of Santa Clara County, California (or if there is exclusive federal jurisdiction, the United States District Court for the Northern District of California) will have exclusive jurisdiction over and be the sole venue for the resolution of any claim, controversy or dispute arising out of or related to this agreement, and BUYER hereby consents to the jurisdiction of such courts and waives any claim or defense of forum non conveniens. Reasonable attorney’s fees and costs will be awarded to the prevailing party in the event of litigation and/or arbitration involving this agreement.
The following are some provisions we might consider adding if appropriate in a particular case.
For avoidance of doubt, BUYER shall not be entitled to use the Software for purposes of manufacturing products for third parties.
BUYER agrees to execute any End User Agreements required by any third party that supplies applicable third party software.
All orders are subject to quoted pre-payments and/or defined progress payments as specified in SELLER’s quotation.
ACCEPTANCE BY BUYER OF THESE TERMS AND CONDITIONS MAY BE MADE EITHER BY SIGNED ACCEPTANCE OR BY RECEIPT BY BUYER OF PRODUCTS HEREUNDER AND FAILURE BY BUYER TO RETURN THE SAME WITHIN (5) DAYS FOLLOWING BUYER’S RECEIPT OF SUCH PRODUCTS
All consumable Products to be used in connection with non-consumable Products must be purchased from SELLER. BUYER’s failure to comply with this provision shall nullify and void the warranties set forth herein with respect to any non-consumable Product with which a consumable Product not purchased from Seller has been used.
Notwithstanding anything in these Terms and Conditions to the contrary, as a condition to BUYER’s exercise of its remedies hereunder with respect to consumable Products. BUYER must inspect such consumable Products and advise SELLER in writing within 10 days of delivery with respect to shipment errors, within 60 days of delivery with respect to defects that are discoverable upon reasonable inspection, and within 180 days of delivery with respect to latent defects.
BUYER shall obtain, at its expense, Workers Compensation (up to applicable statutory limits), Commercial General Liability including contractual liability, product liability and property insurance covering its obligations hereunder, in each case in amounts appropriate to the conduct of its business, and shall name SELLER as an additional insured under such insurance. BUYER shall deliver upon written request by Seller certificates of insurance evidencing such insurance and that BUYER has named SELLER as an additional insured.
Any required notices shall be given in writing at the address of each party set forth herein or attached hereto, or to such other address as either Party may substitute by written notice to the other.
No action, regardless of form, arising out of or in any way connected with the Products furnished to BUYER by SELLER may be brought by BUYER more than one year after the cause of action has arisen.
The provisions hereof are severable and if any one or more such provisions are judicially determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions or portions hereof shall nevertheless be binding on and enforceable by and between the parties hereto.
Entire Agreement. These Terms and Conditions, any attachments hereto, documents expressly set forth herein as being applicable, and any Confidentiality Agreement entered into by the parties constitute the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understanding between them relating to the subject matter hereunder.