1. Offer and Acceptance. These terms and conditions shall apply to Buyer’s purchase of products from Alliance Memory, Inc. (for sales within the United States) or Alliance Memory, Inc. (for sales outside the United States) and/or any of their subsidiary or parent companies (the relevant selling party shall be referred to as “Alliance Memory”). Any purchase order or other document which purportedly modifies, supersedes or otherwise alters these terms and conditions is rejected by Alliance Memory and shall be of no force or effect whatsoever. Acceptance is conditional upon the Customer’s consent to the terms and conditions set forth herein, which are in lieu of and replacer any and all terms and conditions set forth on Customer’s purchase order. No waiver or amendment of any of the provisions hereof shall be binding on Alliance Memory unless made in a writing expressly stating that it is such a waiver or amendment and signed by an authorized representative of Alliance Memory.
2. Price and Payment. All prices published or quoted by Alliance Memory may be changed at any time without notice. Prices are in U.S. dollars. Transportation and all sales, vat, property, excise, duties, and other federal, state and local taxes (other than those based on Alliance Memory’s net income) shall be paid by Buyer. All invoices are (COD) unless payment terms have been extended. Overdue invoices shall incur a finance charge of one percent (1%) per month or the maximum amount permitted by law, whichever is lower. Alliance Memory may require full or partial payment prior to delivery. There is no discount for advance payment.
3. Cancellation and Reschedule. Buyer may cancel or reschedule orders for standard product with thirty (30) days written notice prior to the then current scheduled shipment date. Buyer may cancel or reschedule orders for non-standard product with ninety (90) days written notice prior to the then current scheduled shipment date. Buyer may not cancel, reschedule or return orders for custom product. The designation of “non-standard product” or “custom product” is made by Alliance Memory in its sole discretion. Buyer is responsible for confirming the status of any product with Alliance Memory prior to placing its order.
4. Delivery. Delivery terms shall be EX WORKS Alliance Memory and/or its designated shipping point(s). (INCOTERMS 2000). Title and risk of loss shall pass to Buyer at the applicable shipping point set forth above. Delivery shall be subject to Alliance Memory then current lead times. Shipment dates are approximate and there shall be no penalty for early or late shipment. Alliance Memory reserves the right to adopt an equitable plan of allocation and to adjust delivery schedules accordingly in the event of reasonably unforeseeable shortages. Alliance Memory shall not be liable for any loss, expense, or damage caused by delays or failures in performance resulting from acts of God, or other causes beyond its reasonable control. Alliance Memory reserves the right to make partial shipments with the consent of Buyer, which consent shall not be unreasonably withheld, and invoices will be issued accordingly by purchase order line item. Delay in delivery or other default of any installment of any one or more product types shall not relieve Buyer of its obligation to accept and pay for the remaining deliveries.
5. Limited Warranty. Alliance Memory warrants that all products, when delivered, shall conform to Alliance Memory’s published specifications and be free of defects in manufacture and workmanship. On condition that Buyer notifies Alliance Memory in writing within one (1) year of the date of Delivery to Buyer of such defective or non-conforming product, and that Buyer promptly returns such product to Alliance Memory in accordance with Alliance Memory’s instructions, freight prepaid, Alliance Memory shall, at Alliance Memory’s option and expense, either repair, replace or refund the purchase price of any nonconforming or defective product. Alliance Memory shall have no obligation with respect to any damage arising from misuse (including but not limited to use outside of published specification parameters), neglect, tampering, unauthorized or improper use, or installation, disassembly, repair, alteration or accident. Notwithstanding the foregoing, if any product is designated developmental or experimental, such product shall be purchased “as is, with all faults” and the remedy granted above shall have no force or effect whatsoever. ALLIANCE MEMORY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR THE STATUTORY WARRANTY OF TITLE, THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES.
6. Intellectual Property Indemnity. Alliance Memory shall defend Buyer at its expense against any third party claims to the extent based upon an allegation that an Alliance Memory product infringes a United States patent, copyright or other intellectual property right of such third party (“Claim”). In connection with its defense of such Claim, Alliance Memory shall pay those costs and damages (including legal costs and reasonable attorney fees) finally awarded against Buyer pursuant to the Claim. In the event of a settlement of a Claim, Alliance Memory shall pay any amounts agreed to in a written settlement agreement of such Claim provided that Alliance Memory has reviewed and approved the terms of the settlement prior to its signing. Alliance Memory’s indemnity obligation shall be conditioned on Buyer promptly notifying Alliance Memory in writing of any Claim, giving Alliance Memory sole control of the defense and settlement thereof, and providing all reasonable assistance in connection therewith. If any Alliance Memory product is finally adjudged to so infringe or is likely to so infringe in Alliance Memory’s judgment, Alliance Memory will, at its own option and expense, either (a) procure for Buyer the right to continue using the product; (b) modify or replace the product so there is no infringement; or (c) refund the purchase price paid upon return of the product. Alliance Memory shall have no liability or obligation regarding any claim, and Buyer shall defend and hold Alliance Memory harmless from any claim, that Alliance Memory’s products infringe the intellectual property rights of a third party or any other claim of misappropriation to the extent such claims arise as a result of: (i) Buyer’s combination of products with other products or services and the infringement would have been avoided but for such combination; (ii) Supplier’s implementation of a Buyer originated design or specification; or (iii) modification of the Products made other than by Supplier or without Supplier’s authorization. THIS SECTION 6 CONSTITUTES ALLIANCE MEMORY’S SOLE AND ENTIRE LIABILITY AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY RIGHTS, INCLUDING ANY INTELLECTUAL PROPERTY RIGHTS
7. Limitation of Liability. THE REMEDIES SET FORTH HEREIN CONSTITUTE THE EXCLUSIVE REMEDIES OF BUYER WHETHER ARISING IN CONTRACT, TORT, OR OTHER LEGAL THEORY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOSS OF PROFITS, REWORK COSTS, EXCESS COSTS, OR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALLIANCE MEMORY’S LIABILITY HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE AFFECTED PRODUCT. THIS LIMITATION OF LIABILITY SHALL NOT BE AFFECTED BY ANY FAILURE OF BUYER’S REMEDIES UNDER THE EXPRESS WARRANTY SET FORTH ABOVE. THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN, IN THE ABSENCE OF WHICH THE PRICING AND OTHER APPLICABLE TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
8. Export Controls. Buyer agrees to comply with all applicable export laws, regulations, and orders. Buyer specifically acknowledges that it may be required to obtain export or re-export licenses from the United States Government in order to export or re-export some Products or technology to certain locations. Buyer, by accepting these products, certifies that in will not export or re-export products furnished hereunder unless it complies fully with laws and regulations of the United States of America relating to such export or re-export, including but not limited to the Export Administration Act of 1979 and the Export Administration Regulations of the U.S. Department of Commerce.
9. Choice of Law. This Agreement is made in and governed by the laws of California, without regard to the conflicts of laws provisions thereof. The parties consent to personal jurisdiction and venue in the California courts in San Mateo County. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
10. Force Majeure. Alliance Memory shall not be liable to Buyer for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event beyond Alliance Memory’s reasonable control, including but not limited to war, civil unrest, strikes, lock-outs, acts of government, natural disasters, accidents, fire, explosions, and general shortages of energy and materials.
11. Time Limit for Suit. Any action by Buyer must be commenced within one year of delivery of the product or the date the cause of action arose, whichever is earlier.
12. No Use in Life Support Applications. Alliance Memory’s products are net authorized for use as critical components in life support devices or systems without the express written approval of an officer of Alliance Memory. These include devices or systems which are intended for surgical implant into the body or support and sustain life and whose failure to perform when properly used in accordance with instructions for use provided in the labeling can reasonable to be expected to result in a significant injury. A critical component is any component in a life support device or system whose failure to perform can reasonably be expected to cause the failure of the life support device or system or to affect its safety of effectiveness.
13. Entire Agreement. This Agreement sets forth the entire agreement of the parties with respect to the subject matter hereof and may only be modified by a written instrument signed by each party hereto.