These Terms and Conditions of Sale (“Terms and Conditions”) and any attached exhibits, together with those terms and conditions appearing on the front of Bay’s invoice, govern the sale of Bay’s products (“Products”) being purchased hereunder, constitute the complete and exclusive agreement between Bay and Buyer and prevail over any conflicting or inconsistent terms and conditions appearing on any purchase order submitted by Buyer (“Buyer’s Purchase Order”). Bay’s acceptance of Buyer’s Purchase Order is expressly made conditional on Buyer’s assent to these terms and conditions, which assent will be exclusively presumed from Buyer’s failure to reasonably object to these Terms and Conditions in writing within ten (10) days of receipt of this document or from Buyer’s acceptance of a portion or all of the Products ordered.
1.1. Prices, Insurance, and Taxes
All prices published by Bay or quoted by representatives of Bay may be changed at any time without notice. Written quotations expire automatically thirty (30) days from the date of issue and are subject to change or termination by notice during that period. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements, or other terms and conditions that are not part of the original price quotation. If no price has been specified by Bay, the price shall be Bay’s price in effect at the time of delivery. Prices are exclusive of all postage, shipping, handling, and insurance charges, all freight, customs and license fees, and all excise, sales, use, or other taxes imposed by any federal, state, municipal or other governmental authority, all of which taxes shall be paid by Buyer. Buyer agrees to pay such taxes unless Buyer has provided Bay with an exemption resale certificate in the appropriate form for the jurisdiction to which the Product is to be directly shipped hereunder or other evidence that such sale is otherwise exempt from such taxes. When applicable, such taxes will appear as a separate item on Bay’s invoice. Title and liability for loss or damage of goods will pass to Buyer upon Bay’s tender of delivery of the goods to a carrier for shipment to Buyer, and any loss or damage thereafter shall not relieve Buyer from any obligation hereunder.
Unless otherwise agreed to in writing by Bay, Buyer will pay all invoices issued within thirty (30) days from the date of invoice. Bay reserves the right to change the credit terms at any time. If Buyer fails to pay any charges when due and payable, Buyer agrees that Bay will have the right to invoice Buyer for, and Buyer will pay, all costs, including, without limitation, reasonable attorney fees, expended in collecting overdue charges, plus the overdue payments will be subject to finance charges computed at a periodic rate of 1½% per month (18% per year) or, if less, the highest rate permitted by applicable law. Amounts owed by Buyer with respect to which there is no dispute will be paid without set-off for any amounts which Buyer may claim are owed to it by Bay and regardless of any other controversies which may exist. All accounts are payable at Bay’s office as shown on the invoice or at the bank designated by Bay. Should Buyer become delinquent in the payment of any sum due Bay, after ten (10) days from the date of written notice of such delinquency to Buyer, Bay will not be obligated to continue performance under any agreement with Buyer. If, in the judgment of Bay, the financial condition of Buyer at any time does not justify the commencement or continuance of performance, Bay may, in addition to all other remedies it may have at law or in equity, make a written demand for full or partial payment in advance, suspend its performance until such payment is made, or cancel Buyer’s Purchase Order in whole or in part.
Deliveries shall be Ex-Works (Bay’s indicated premises), as such term is defined in the Incoterms 2010. Bay will use commercially reasonable efforts to ship the Product to arrive on or before any requested delivery dates quoted or acknowledged by Bay. Bay will not, however, be liable for any delay in performance hereunder due to unforeseen circumstances or due to causes beyond its control including, but not limited to, acts of nature, acts of governments, terrorist acts, riots, wars, fires, floods, labor disputes, delays in transportation, and delays in delivery or inability to deliver by Bay’s suppliers. In the event of a delay due to any such unforeseen circumstance or cause, the time for delivery will be extended for a period of time which will be mutually agreeable to Bay and Buyer, but in no event more than ninety (90) days after the termination of such unforeseen circumstance or cause. If as a result of any such unforeseen circumstance or cause, the time for delivery of any scheduled delivery is delayed for a period in excess of ninety (90) days, Bay and Buyer will agree to any of the following: (a) a cancellation of the order for which delivery is being delayed; (b) a further rescheduling of the time for delivery; and/or (c) any other modifications to the order and terms of delivery which may be mutually acceptable to Bay and Buyer. Products on which delivery is delayed due to any cause within Buyer’s control may be placed in storage by Bay at Buyer’s risk and for Buyer’s account. Buyer will be liable for all costs and expenses incurred by Bay in holding or storing Products for Buyer or at Buyer’s request.
Unless specific instructions to the contrary are supplied by Buyer, methods and routes of shipments will be selected by Bay, but Bay will not assume any liability in connection with shipment or constitute any carrier as an agent of Bay. All shipments will be insured at Buyer’s expense and made at Buyer’s risk, and Buyer will be responsible for making all claims with carriers, insurers, warehousemen, and others for misdelivery, non-delivery, loss, damage, or delay. Bay may terminate this contract at any time prior to the shipment date if Buyer makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts as they mature, or proceedings are instituted by or against Buyer under the bankruptcy laws of the United States.
1.5. Security Interest
Bay reserves, and Buyer grants to Bay, a purchase money security interest in all Products sold and all proceeds thereof to secure the full payment and performance of its liabilities and obligations to Bay. Buyer acknowledges that this document or copies of this document may be filed with appropriate authorities as a financing statement and agrees to execute and deliver such other documents as may be requested to perfect Bay’s security interest granted hereby.
1.6. Changes and Cancellations
If Buyer issues a change order causing a delivery change or cancels an order less than ninety (90) days but more than thirty (30) days prior to scheduled shipment, Buyer will be subject to a maximum restocking/rescheduling charge of twenty-five percent (25%) based on the invoice price of the affected Product(s) or item(s). Restocking fees may be adjusted at Bay’s discretion; any restocking/rescheduling charge less than twenty-five percent (25%) of the invoice price must be approved in a written instrument that is signed by a duly authorized officer of Bay. If Buyer issues a change order requesting a delivery change or order cancellation within thirty (30) days of scheduled shipment, or after the goods have been shipped, Buyer will be subject to a minimum restocking/rescheduling charge of twenty-five percent (25%) based on current invoice price. Buyer may be required to pay up to one hundred percent (100%) of invoice price for any such cancellations at the discretion of Bay. If Buyer issues change orders causing a delivery change resulting in a delay of ninety (90) days or more from the shipment date specified at the time Buyer’s Purchase Order was originally placed, Buyer will nonetheless be invoiced on the original delivery date. Except as Bay may otherwise agree in writing, Buyer may only reschedule an order, or any portion thereof, one (1) time. If Buyer enters into a separate and specific “Purchasing Agreement” with Bay and the terms of such Purchasing Agreement are in conflict with any of the provisions of these Terms and Conditions, then the terms of the Purchasing Agreement shall prevail for all purchases made during the period such Purchasing Agreement is in effect.
Unless otherwise specified, Bay assumes no obligation to install any Products sold to Buyer or to place them in working order at Buyer’s premises.
1.8. Inspection and Acceptance
Buyer will be allowed a maximum of ten (10) days from the receipt of any Product to inspect such Product. If Buyer does not give written notice to Bay within such ten (10) day period of its rejection of such Product (and the reasons for such rejection), Buyer will be deemed to have accepted such Product. For any claims validly and timely made, Bay reserves the right to repair any defective or damaged Products or to replace the same, including any missing Products, with identical or similar products. Nothing in this paragraph will affect Buyer’s obligation to make payment within thirty (30) days of the invoice date.
Bay warrants to Buyer only that (a) the hardware portion of its Products will be free from defects in materials and workmanship and will conform and function to Bay’s published specifications for a period of one (1) year from the original date of shipment, and (b) the software portion of it Products will be free from defects in materials and workmanship and will conform and function to Bay’s published specifications for a period of ninety (90) days from the original date of shipment. The foregoing warranties do not apply to any Products which have been subjected to misuse, including electrostatic discharge, neglect, accident or modification, or which have been mechanically altered and are not capable of being tested by Bay under its normal test conditions. Bay’s sole obligation for Products failing to meet these warranties will be to replace the nonconforming Products, provided that Bay will only be obligated to replace the nonconforming Products where, within the applicable warranty period, (a) Bay has received written notice of any nonconformity, (b) after Bay’s written notice to do so, Buyer has returned the nonconforming Product to Bay freight prepaid, and (c) Bay has determined that the Product is nonconforming and that such nonconformity is not the result of improper installation, repair, or other fault of Buyer. Any replacement Products will carry only the remaining term of the original warranty. These warranties are the sole and exclusive warranties made by Bay with respect to the goods delivered hereunder and may be modified or amended only by a written instrument that is signed by a duly authorized officer of Bay and accepted by Buyer. SUCH LIMITED WARRANTY IS GIVEN ONLY TO BUYER AS THE ORIGINAL BUYER OF THE PRODUCT AND IS NOT GIVEN TO, AND MAY NOT BE USED BY, ANY THIRD PARTY INCLUDING, WITHOUT LIMITATION, CUSTOMERS OR BUYERS. EXCEPT AS PROVIDED ABOVE, BAY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES PROVIDED HEREIN ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES. Bay makes no warranty whatsoever with respect to Products which are not manufactured by Bay; however, Bay will assign or otherwise make available to Buyer any warranty which has been assigned to Bay by the manufacturer and/or vendor of those Products and which Bay has the right to assign or otherwise make available to Buyer. Acceptance of Products by Buyer from the carrier constitutes a waiver of all claims based on delay in delivery, and every claim on account of breakage, short count, or any defect ascertainable upon inspection at the time of delivery to Buyer will be deemed waived by Buyer unless made in writing within ten (10) days after the receipt of the Products to which the claim relates.
1.10. Discontinued Products, Modifications, and Substitutions
Bay may discontinue the manufacture and/or sale of any Product at any time without notice. Bay has the right to make substitutions and/or modifications in the specifications of Products sold by Bay provided that such substitutions or modifications will not materially affect overall Product performance. Bay will use its best efforts to provide end of life cycle notice and offer lifetime buys for Products for which Bay may not provide replacements and/or substitutions.
1.11. Limitation of Liability
BAY’S LIABILITY UNDER OR FOR BREACH OF THESE TERMS AND CONDITIONS WILL BE LIMITED TO THE REFUND OF THE PURCHASE PRICE FOR THE AFFECTED PRODUCT. IN NO EVENT WILL BAY BE LIABLE FOR COST OF PROCUREMENT FOR SUBSTITUTE GOODS BY BUYER. IN NO EVENT WILL BAY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT BAY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM OR RELATED TO LOSS OF USE, LOSS OF DATA, FAILURE OR INTERRUPTION IN THE OPERATION OF ANY EQUIPMENT OR SOFTWARE, DELAY IN REPAIR OR REPLACEMENT, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF GOODWILL, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS OR PERSONAL INJURY OR PROPERTY DAMAGE. Bay’s Products are not authorized for use as critical components in life support devices or systems, operation of nuclear facilities or military use without the express written approval of the President of Bay. As used herein, (a) life support devices or systems are devices or systems which (i) are intended for surgical implant into the body, or (ii) support or sustain life and whose failure to perform can be reasonably expected to result in significant injury or death to the user, and (b) a critical component is any component of a life support device or system whose failure to perform can be reasonably expected to cause the failure of the life support device or system, or to affect its safety or effectiveness.
1.12. Patent Indemnity
Bay will defend and hold harmless Buyer from any and all claims, liabilities, damages, and expenses based on an allegation that any Product sold infringes a United States issued patent as of the date hereof provided that Buyer (a) promptly advises Bay in writing of any such claim, action, or liability, (b) cooperates fully with Bay in its defense or settlement of any such allegation, and (c) immediately stops the use of the allegedly infringing intellectual property after notice thereof by Bay, and provided further that Bay has sole control of the defense of any such action and of all negotiations for its settlement or compromise. The foregoing indemnity will not apply (i) to claims arising in respect of the making, use, or sale of Products manufactured in accordance with any designs or specifications provided by Buyer, (ii) in the event Bay discloses that the use of a particular Product may require Buyer to secure the right to use, from a third party, one or more patents which are the intellectual property rights (“Intellectual Property Rights”) of said third party, or (iii) to any infringement arising from use of Products in combination with other goods where such infringement would not have occurred from the normal use for which the Product supplied by Bay was designed. Buyer will defend, indemnify and hold Bay harmless from and against any and all claims, liabilities, damages, and expenses resulting from infringements or alleged infringements of United States or foreign patents, copyrights, trademarks, trade secrets, or other Intellectual Property Rights arising from compliance by Bay with any designs or specifications provided by Buyer. If the use of any Product by Buyer is enjoined, or if Bay believes that the use of any Product may infringe any Intellectual Property Rights of others, Bay may, at its option, require Buyer to discontinue use of the allegedly infringing Product and will (A) modify such Product so that it no longer infringes but remains equivalent, or (B) procure for the Buyer the right to use such Product free of any liability for patent infringement, or (C) replace such Product with non-infringing substitute goods otherwise complying substantially with all the requirements of these Terms and Conditions. If, after reasonable commercial efforts, Bay is unable to effect a satisfactory solution to such infringement claim under any of (A), (B), or (C) above, Bay will refund the purchase price of the infringing Product, less a depreciation amount based on a three (3) year useful life of the Product, which refund will be Buyer’s sole remedy. This Section 1.12 states Bay’s entire liability with respect to actual or alleged infringement of any Intellectual Property Rights by any Product or any parts or use thereof and Bay will have no additional liability with respect thereto.
1.13. Patents and Other Intellectual Property Rights
Except as provided herein and in any separate license, all Bay Intellectual Property Rights in or related to the Products sold hereunder are and will remain the exclusive property of Bay or Bay’s licensors, as applicable, and Buyer will not hereby acquire any ownership in or rights to any of Bay’s Intellectual Property Rights which are incorporated into any of Bay’s Products except as provided in these Terms and Conditions.
Buyer agrees to indemnify and hold Bay harmless from and against any and all claims, demands, obligations and liabilities, including, without limitation, those arising from violation of local, state or federal laws, codes or regulations (including, without limitation, environmental and safety laws, codes and regulations) relating to the use or operation of the Products or loss of Products, except for such claims, demands obligations and liabilities resulting from the sole and exclusive negligence of Bay, its employees and its duly authorized agents.
In the event a Product is comprised of both hardware and embedded “source code” software, the software is provided to the Buyer under a non-transferable and non-exclusive license or sublicense for use by Buyer solely in connection with the use of the Product, which license may be more fully set forth in a separate license agreement with respect to the Product. The price of the license fee may not be included in the price of the Product. No title to or ownership of the software or any part thereof is hereby transferred to Buyer. Except as set forth herein and in any separate license, Buyer will not have any license or right, by implication, estoppel, or otherwise, to sublicense, modify, distribute, or manufacture Products embodying Bay’s proprietary technology.
1.16. Proprietary Information
No Bay proprietary information disclosed to Buyer will be reproduced, in whole or in part, or in any form whatsoever, or disclosed, published, or discussed with or to third parties by Buyer without Bay’s prior written consent. Bay’s proprietary information includes, without limitation, manufacturing processes and techniques, and documentation, including reports, drawings, and designs, whether or not such information is patentable or the subject of Bay’s patents or patent applications.
Buyer will not delegate any duties or assign any rights or claims under these Terms and Conditions without Bay’s prior written consent, and any such attempted delegation or assignment will be null and void. Bay may assign these Terms and Conditions or any interest herein to a third party. Subject to the foregoing, the rights and obligations hereunder will be binding upon the successors and assigns of both Bay and Buyer.
1.18. Entire Agreement
The terms and conditions set forth herein constitute the entire agreement between Bay and Buyer. These Terms and Conditions may not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of these Terms and Conditions by its express terms. Buyer hereby acknowledges that it has not entered into these Terms and Conditions in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein.
The failure by Bay to enforce at any time any of the provisions of these Terms and Conditions, to exercise any election or option provided herein, or to require at any time the performance by Buyer of any of the provisions herein will not in any way be construed as a waiver of such provisions.
1.20. Applicable Law
Any disputes arising in connection with these Terms and Conditions and any attachments hereto will be governed by and construed in accordance with the internal laws of the State of California, U.S.A., without reference to the conflict of laws principles therein. The federal and state courts within Santa Clara County in the State of California shall have exclusive jurisdiction over any and all disputes arising under these Terms and Conditions.
1.21. Government Rights
Certain Products, whether it be hardware and/or software, including, without limitation, technical data, may be subject to export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulation in other countries. Buyer shall be responsible for complying with all such laws and regulations.
Stenographic and clerical errors in sales made pursuant to these Terms and Conditions are subject to correction.
Any required notices shall be given in writing to Bay at its facility at 2055 Gateway Place, Suite 650, San Jose, California 95110, U.S.A., and to Buyer at the address as evidenced on the face of Buyer’s Purchase Order, or such other address as either party may substitute by written notice to the other.