All quotations and sales by ENGENT, Inc. are subject to these terms and conditions and those on the front of this document.
1. WARRANTY – (a) Seller in good faith and using standard industry practices will provide "best effort" towards the assembly of subject design. Seller will only guarantee that parts will conform to standard industry practices, and may or may not meet Buyer performance or visual criteria. On Buyer product designs that require unique or novel assembly techniques, Seller will provide best effort towards a successful assembly, and Seller does not guarantee a successful outcome. Buyer shall be liable for all amounts as stated in the contract regardless of assembly outcome. (b) Buyer's exclusive remedy for assemblies that do not meet standard industry practices, with the exception of product designs requiring unique or novel assembly techniques for which no guarantee is provided, shall be the repair of the assembly pertaining to only the value added assembly processes implemented and excludes any or all materials supplied to or purchased by Seller. Seller's obligation to repair shall be in effect for (30) days from Seller's shipment of the goods, provided Buyer has sent written notice within that period of time to Seller that the goods do not conform to the above warranty detailing specifically non-conformities per the warranty above and the specific unique part and date code numbers of the non-conforming goods. At its expense, Buyer shall remove and ship to Seller any such nonconforming items and shall reinstall the repaired parts. Buyer shall grant Seller access to the goods at all reasonable times in order for Seller to determine any nonconformity in the goods. (c) SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EXCEPT THAT OF TITLE. SPECIFICALLY, IT DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING AND USAGE OF TRADE. (d) Buyer and successors of Buyer are limited to the remedies specified in this article and shall have no others for a nonconformity in the goods. Buyer agrees that these remedies provide Buyer and its successors with a minimum adequate remedy and are their exclusive remedies, whether Buyer's or its successors' remedies are based on contract, warranty, tort (including negligence), strict liability, indemnity, or any other legal theory, and whether arising out of warranties, representations, instructions, installations, or non-conformities from any cause.
2. PATENTS - Buyer shall pay costs and damages finally awarded in any suit against Seller or its vendees to the extent based upon a finding that the design or construction of the goods produced infringes any United States patent(s) (except infringement occurring as a result of specific process techniques used by Seller at the Sellers discretion and not at the request of Buyer to produce the goods), provided that Seller promptly notifies Buyer of any charge of infringement, and Buyer is given the right at its expense to settle such charge and to defend or control the defense of any suit based upon such charge. Seller shall have no obligation hereunder with respect to claims, suits or proceedings, resulting from or related to, in whole or in part, (i) compliance with Buyer's specifications, (ii) the combination with, or modification of, the goods after delivery by Seller, or (iii) the use of the goods, or any part thereof, in the practice of a process or product. THIS ARTICLE SETS FORTH SELLER'S ENTIRE LIABILITY WITH RESPECT TO PATENTS.
3. INTELLECTUAL PROPERTY- All intellectual property first conceived or reduced to practice by the Seller under this contract or arising out of work performed by Seller shall be deemed to be owned by the Seller and title to such “Intellectual Property” shall vest solely with the Seller. The Seller grants the Buyer a worldwide, fully paid up, royalty-free, nontransferable, non-exclusive license, with no right to sublicense (except for Buyer authorized distributors or value-added resellers), to make, have made, use and sell any products, equipment, apparatus, methods and processes, made from or resulting from the Sellers Intellectual Property, subject to any pre-existing rights of third parties. Nothing contained in this contract shall restrict the Seller from further licensing or sub-licensing any of the Sellers Intellectual Property resulting from this contract. Nothing contained in this contract shall give the Seller rights to intellectual property first conceived and reduced to practice by the Buyer except as required to deliver on items contracted in this agreement.
4. PERFORMANCE DELAYS - Timely performance by Seller is contingent upon Buyer's supplying to Seller, when needed, all required technical information, including but not limited to components, printed circuit boards, parts, hardware, software, tooling, stencils, and data, including but not limited to final design drawings, and electronic design data in specified electronic format, and all required construction documentation. If Seller suffers delay in performance due to any cause beyond its reasonable control, the time of performance shall be extended a period of time equal to the period of the delay and its consequences. Seller will give to Buyer notice within a reasonable time after Seller becomes aware of any such delay. Seller shall not be liable for any or all expenses suffered by the buyer as a result of the delay.
5. SHIPMENT, TITLE AND RISK OF LOSS - (a) The term "shipment" means delivery to the initial carrier in accordance with the delivery terms of this contract. Seller may make partial shipments. Seller shall select method of transportation and route, unless terms are f.o.b point of shipment and Buyer specifies the method and route and is to pay the freight costs in addition to the price. When terms are f.o.b. destination or freight allowed to destination, "destination" means common carrier delivery point (within the United States, excluding Alaska and Hawaii) nearest the destination. (b) Title to the goods and risk of loss or damage shall pass to Buyer at the f.o.b. point. Seller shall not be responsible for damage to the goods after having received "in good order" receipts from the carrier.
6. TAXES - Any applicable duties or sales, use, excise, value-added or similar taxes will be added to the price and invoiced separately (unless an acceptable exemption certificate is furnished).
7. TERMS OF PAYMENT - (a) Unless otherwise stated, terms of payment are net 30 days from invoice date; all payments shall be in United States dollars, and a pro rata payment shall become due as each shipment or delivery is made or each contract line item is completed. In some cases, Seller will require progress payments at specified milestones within a project. If shipment or delivery is delayed by Buyer, date of invoice will be based on the original delivery date for payment purposes. (b) On late payments, the contract price shall, without prejudice to Seller's right to immediate payment, be increased by 1 1/2% per month on the unpaid balance, but not to exceed the maximum permitted by law. The Buyer also forfeits all discounts itemized in the contract on late payments. In such instances, Buyer is responsible for the total contract amount excluding any and all discounts applied in the contract. (c) If any time in Seller's judgment Buyer is unable or unwilling to meet the terms specified, Seller may require satisfactory assurance or full or partial payment as a condition to commencing or continuing manufacture or making shipment or delivery, and may, if shipment or delivery has been made, recover the goods from the carrier, pending receipt of such assurances.
8. NONCANCELLATION - Buyer may not cancel or terminate for convenience, or direct suspension of manufacture, except with Seller's written consent and then only upon terms that will compensate Seller for its engineering, fabrication and purchasing charges and any other costs relating to such cancellation, termination or suspension, plus a reasonable amount for profit.
9. NUCLEAR - Buyer represents and warrants that the goods covered by this contract shall not be used in or in connection with a nuclear facility or application. If Buyer is unable to make such representation and warranty, then Buyer agrees to indemnify and hold harmless Seller and to waive and require its insurers to waive all right of recovery against Seller for any damage, loss, destruction, injury or death resulting from a "nuclear incident", as that term is defined in the Atomic Energy Act of 1954, as amended, whether or not due to Seller's negligence.
10. LIMITATION OF LIABILITY - Neither Seller, nor its suppliers shall be liable, whether in contract, warranty, failure of a remedy to achieve its intended or essential purposes, tort (including negligence), strict liability, indemnity or any other legal theory, for loss of use, revenue or profit, or for costs of capital or of substitute use or performance, or for indirect, special, liquidated, incidental or consequential damages, or for any other loss or cost of a similar type, or for claims by Buyer for damages of Buyer or the Buyer’s customers. Seller's maximum liability under this contract shall be the contract price less all purchased and ordered goods under the contract including but not limited to supplies, materials, components, parts, printed circuit boards, substrates, hardware, software, tooling, and equipment. Buyer and Seller agree that the exclusions and limitations set forth in this article are separate and independent from any remedies which Buyer may have hereunder and shall be given full force and effect whether or not any or all such remedies shall be deemed to have failed of their essential purpose.
11. INVENTORY AND CAPITAL – Buyer shall be liable to Seller for payment of all ordered and purchased goods under the contract including but not limited to supplies, materials, components, parts, printed circuit boards, substrates, stencils, hardware, equipment, and software regardless of contract status, termination, cancellation, dispute or otherwise. All such goods will be invoiced to the Buyer on order with net 20 days from invoice terms of payment.
12. GOVERNING LAW AND ASSIGNMENT - The laws of the State of Georgia shall govern the validity, interpretation and enforcement of this contract, without regard to its conflicts of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods shall be excluded. Assignment may be made only with written consent of both parties; provided, however, Seller may assign to its affiliate without Buyer's consent.
13. ATTORNEY FEES - Buyer shall be liable to Seller for any attorney fees and costs incurred by Seller in enforcing any of its rights hereunder.
14. DISPUTES - Either party may give the other party written notice of any dispute arising out of or relating to this contract and not resolved in the normal course of business. The parties shall attempt in good faith to resolve such dispute promptly by negotiations between executives who have authority to settle the dispute. If the matter has not been resolved within 60 days of the notice, either party may initiate non-binding mediation of the dispute.
15. STATUTE OF LIMITATIONS - To the extent permitted by applicable law, any lawsuit for breach of contract, including breach of warranty, arising out of the transactions covered by this contract, must be commenced not later than twelve (12) months from the date the cause of action accrued.
16. PRICES - In the event of a price increase or decrease, the price of goods on order will be adjusted to reflect such increase or decrease. This does not apply to a shipment or delivery held by request of Buyer. Goods already shipped or delivered are not subject to price increase or decrease. Orders on a bid or contract basis are not subject to this article. Orders amounting to less than $500.00 net will be invoiced at $500.00 plus transportation charges for goods covered by discount schedules. Seller's prices include the costs of standard domestic packing only. Any deviation from this standard packing (domestic or export), including U.S. Government sealed packing, will result in extra charges. To determine such extra charges, consult Seller's sales offices.
17. ADDITIONAL TERMS OF PAYMENT - Freight will be allowed to any common-carrier free-delivery point within the United States, excluding Alaska and Hawaii, on shipments exceeding $1,000 net or more providing Seller selects the carrier. On shipments to Alaska and Hawaii, freight will be allowed to dockside at the listed port of debarkation nearest the destination point on shipments of $1,000 net or more. Buyer shall pay all special costs such as cartage, stevedoring and insurance. Seller assumes no responsibility for tariff classifications on carriers.
18. SEVERABLE – The provisions of this contract are severable. The invalidity of any provision or part of any provision of this contract shall not affect the other provisions. If any provision or part thereof is determined to be invalid or unenforceable by a court of competent jurisdiction, Buyer and Seller shall negotiate in good faith to provide protection or benefits as nearly equivalent as that found to be invalid or unenforceable. Further, if any such provision shall be determined to be invalid or unenforceable by reason or the duration or geographical scope, such duration or geographical scope or both shall be considered to be reduced to a duration and scope to the extent necessary to cure such invalidity.
19. CHANGES IN LAWS AND REGULATIONS - Seller's prices and timely performance are based on all applicable laws, rules, regulations, orders, codes, standards or requirements of governmental authorities effective on the date of Seller's proposal. Any change to any law, rule, regulation, order, code, standard or requirement which requires any change hereunder shall entitle Seller to an equitable adjustment in the prices and any time of performance.