Terms and Conditions of Sale
1. Offer; Acceptance. These terms and conditions (these "Terms") are deemed
part of all quotations, acknowledgments, invoices, purchase orders and other
documents, whether electronic or in writing, relating to the sale of products or
services (collectively, the "Products") by Omron Electronic Components LLC
("Seller"). Seller hereby objects to any terms or conditions proposed in
Buyer's purchase order or other documents which are inconsistent with, or in
addition to, these Terms.
2. Prices; Payment. All prices stated are current, subject to change without
notice by Seller. Buyer agrees to pay the price in effect at time of shipment.
Payments for Products received are due net 30 days unless otherwise stated
in the invoice.
3. Discounts. Cash discounts, if any, will apply only on the net amount of
invoices sent to Buyer after deducting transportation charges, taxes and
duties, and will be allowed only if (i) the invoice is paid according to Seller's
payment terms and (ii) Buyer has no past due amounts owing to Seller.
4. Currencies. If the prices quoted herein are in a currency other than U.S. dol-
lars, Buyer shall make remittance to Seller at the then current exchange rate
most favorable to Seller and which is available on the due date; provided that if
remittance is not made when due, Buyer will convert the amount to U.S. dol-
lars at the then current exchange rate most favorable to Seller available during
the period between the due date and the date remittance is actually made.
5. Governmental Approvals. Buyer shall be responsible for, and shall bear all
costs involved in, obtaining any government approvals required for the impor-
tation or sale of the Products.
6. Taxes. All taxes, duties and other governmental charges (other than general
real property and income taxes), including any interest or penalties thereon,
imposed directly or indirectly on Seller or required to be collected directly or
indirectly by Seller for the manufacture, production, sale, delivery, importation,
consumption or use of the Products sold hereunder (including customs duties
and sales, excise, use, turnover and license taxes) shall be charged to and
remitted by Buyer to Seller.
7. Financial. If the financial position of Buyer at any time becomes unsatisfactory
to Seller, Seller reserves the right to stop shipments or require satisfactory
security or payment in advance. If Buyer fails to make payment or otherwise
comply with these Terms or any related agreement, Seller may (without liability
and in addition to other remedies) cancel any unshipped portion of Products
sold hereunder and stop any Products in transit until Buyer pays all amounts,
including amounts payable hereunder, whether or not then due, which are
owing to it by Buyer. Buyer shall in any event remain liable for all unpaid
accounts.
8. Cancellation; Etc. Orders are not subject to rescheduling or cancellation
unless Buyer indemnifies Seller fully against all costs or expenses arising in
connection therewith.
9. Force Majeure. Seller shall not be liable for any delay or failure in delivery
resulting from causes beyond its control, including earthquakes, fires, floods,
strikes or other labor disputes, shortage of labor or materials, accidents to
machinery, acts of sabotage, riots, delay in or lack of transportation or the
requirements of any government authority.
10. Shipping; Delivery. Unless otherwise expressly agreed in writing by Seller:
1. Shipments shall be by a carrier selected by Seller;
2. Such carrier shall act as the agent of Buyer and delivery to such carrier
shall constitute delivery to Buyer;
3. All sales and shipments of Products shall be FOB shipping point (unless
otherwise stated in writing by Seller), at which point title to and all risk of
loss of the Products shall pass from Seller to Buyer, provided that Seller
shall retain a security interest in the Products until the full purchase price is
paid by Buyer;
4. Delivery and shipping dates are estimates only.
5. Seller will package Products as it deems proper for protection against
normal handling and extra charges apply to special conditions.
11. Claims. Any claim by Buyer against Seller for shortage or damage to the
Products occurring before delivery to the carrier must be presented in writing
to Seller within 30 days of receipt of shipment and include the original trans-
portation bill signed by the carrier noting that the carrier received the Products
from Seller in the condition claimed.
12. Warranties. (a) Exclusive Warranty. Seller's exclusive warranty is that the
Products will be free from defects in materials and workmanship for a period of
twelve months from the date of sale by Seller (or such other period expressed
in writing by Seller). Seller disclaims all other warranties, express or implied.
(b) Limitations. SELLER MAKES NO WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, ABOUT NON-INFRINGEMENT, MERCHANTABIL-
ITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PRODUCTS.
BUYER ACKNOWLEDGES THAT IT ALONE HAS DETERMINED THAT THE
PRODUCTS WILL SUITABLY MEET THE REQUIREMENTS OF THEIR
INTENDED USE. Seller further disclaims all warranties and responsibility of
any type for claims or expenses based on infringement by the Products or oth-
erwise of any intellectual property right. (c) Buyer Remedy. Seller's sole obli-
gation hereunder shall be to replace (in the form originally shipped with Buyer
responsible for labor charges for removal or replacement thereof) the non-
complying Product or, at Seller's election, to repay or credit Buyer an amount
equal to the purchase price of the Product; provided that in no event shall
Seller be responsible for warranty, repair, indemnity or any other claims or
expenses regarding the Products unless Seller's analysis confirms that the
Products were properly handled, stored, installed and maintained and not sub-
ject to contamination, abuse, misuse or inappropriate modification. Return of
any Products by Buyer must be approved in writing by Seller before shipment.
Seller shall not be liable for the suitability or unsuitability or the results from the
use of Products in combination with any electrical or electronic components,
circuits, system assemblies, or any other materials or substances or environ-
ments. Any advice, recommendations or information given orally or in writing
are not to be construed as an amendment or addition to the above warranty.
13. Limitation on Liability; Etc. SELLER SHALL NOT BE LIABLE FOR SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF
PROFITS OR PRODUCTION OR COMMERCIAL LOSS IN ANY WAY CON-
NECTED WITH THE PRODUCTS, WHETHER SUCH CLAIM IS BASED IN
CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY. Further, in
no event shall liability of Seller exceed the individual price of the Product on
which liability is asserted.
14. Indemnities. Buyer shall indemnify and hold harmless Seller, its affiliates and
its employees from and against all liabilities, losses, claims, costs and
expenses (including attorney's fees and expenses) related to any claim, inves-
tigation, litigation or proceeding (whether or not Seller is a party) which arises
or is alleged to arise from Buyer's acts or omissions under these Terms or in
any way with respect to the Products. Without limiting the foregoing, Buyer (at
its own expense) shall indemnify and hold harmless Seller and defend or settle
any action brought against Seller to the extent that it is based on a claim that
any Product made to Buyer specifications infringed intellectual property rights
of another party.
15. Property; Confidentiality. The intellectual property embodied in the Products is
the exclusive property of Seller and its affiliates and Buyer shall not attempt to
duplicate it in any way without the written permission of Seller. Notwithstand-
ing any charges to Buyer for engineering or tooling, all engineering and tooling
shall remain the exclusive property of Seller. All information and materials sup-
plied by Seller to Buyer relating to the Products are confidential and propri-
etary, and Buyer shall limit distribution thereof to its trusted employees and
strictly prevent disclosure to any third party.
16. Miscellaneous. (a) Waiver. No failure or delay by Seller in exercising any right
and no course of dealing between Buyer and Seller shall operate as a waiver
of rights by Seller. (b) Assignment. Buyer may not assign its rights hereunder
without Seller's written consent. (c) Law. These Terms are governed by Illi-
nois law (without regard to conflict of law principles). Federal and state courts
in Illinois shall have exclusive jurisdiction for any dispute hereunder.
(d) Amendment. These Terms constitute the entire agreement between Buyer
and Seller relating to the Products, and no provision may be changed or
waived unless in writing signed by the parties. (e) Severability. If any provision
hereof is rendered ineffective or invalid, such provision shall not invalidate any
other provision. (f) Setoff. Buyer shall have no right to set off any amounts
against the amount owing in respect of this invoice.. (g) Definitions. As used
herein, "including" means "including without limitation".
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