MINI-CIRCUITS ISRAEL LTD.
SALES ORDER TERMS AND CONDITIONS
(reference to web link)
Sales Order Terms and Conditions
Subject to the next sentence, Mini-Circuits Israel Ltd.’s (“Company”) acceptance of your company’s order is subject to the terms and conditions set forth below and on the face of the Company’s applicable invoice (collectively “Terms”). However, if such terms and conditions would not otherwise become part of the contract between our companies due to other documents or circumstances, then (i) acceptance of your company’s order is expressly made conditional upon your company’s assent to the Terms and (ii) if your company does not assent to the Terms, there is no contract. In the event any of the Terms conflict with the terms and conditions contained in your company’s order, the conflict will be resolved in favor of the Terms.
1. Conformity. The Company’s applicable invoice acknowledges the type and quantity of goods ordered by your company (“Purchaser”) as interpreted by the Company. Purchaser’s silence indicates Purchaser’s acceptance and the correctness of the Company’s invoice. However, if the goods shipped do not conform to the type and quantity ordered as reflected on the Company’s invoice, they will be deemed to have been shipped merely as an ACCOMMODATION in an effort to serve the needs of Purchaser.
2. Limitation and Disclaimer of Warranties and Liabilities. (a) Subject to the provisions and qualifications hereof, Company warrants only to Purchaser that on the date of shipment the goods sold pursuant hereto (“Goods”) will conform to Company’s applicable Specifications (as defined below) in effect on the date of shipment, as may be further amended by Company from time to time. Conformance to the Specifications will be based on Company’s then applicable established test performance criteria and measurement instructions, as determined by Company. The warranty period will be for a period of twelve (12) months after shipment from Company’s applicable plant, unless another period is specified (the “Warranty Period”). The term “Specifications” means the Company’s applicable specification sheet(s) concerning a particular Goods as designated by Company from time to time.
Without the prior written consent of Company, Goods sold pursuant hereto are not authorized for use as critical components in (i) devices, implements or systems utilized in air or space flight; (ii) medical devices, implements or systems; or (iii) life support devices, implements or systems (collectively, “Space and Medical Systems”). Accordingly, Goods that are used in Space and Medical Systems are sold “AS IS, WITH ALL FAULTS”. The express warranty specified in paragraph 2(a) does not apply to Goods used in Space and Medical Systems and Company will have no responsibility or liability in connection therewith and same are hereby waived. As used herein, “life support devices, implements or systems” are those which (i) are intended for surgical implant into the body; or (ii) support or sustain life. A “critical component” is any component of a device, implement or system whose failure to perform does or can reasonably be expected to result in injury to person or property or cause a failure in that device, implement or system or affect its safety or effectiveness.
(b) It is hereby acknowledged and agreed that there are many variables affecting the proper selection, use and installation of goods manufactured or sold by Company since each potential system utilizing these goods is unique with differing component configurations and attributes and differing requirements and environments. Accordingly, notwithstanding any information provided by Company, Purchaser is responsible for consulting with its own engineers and other appropriate professionals who are familiar with the specific systems into which Goods are to be incorporated so that the proper selection, use and installation of such goods, and the adequacy of the system and back-up systems, can be determined. As a result, Purchaser shall be barred from any recovery against Company (including, without limitation, any recovery under the express warranty specified in paragraph 2(a)) by reason of improper selection, use and/or installation of the Goods and, with respect to the systems in which such goods are to be utilized, improper system design and/or the inadequacy of back-up systems, and Company shall have no liability on account thereof, and same is hereby waived.
Further, Purchaser shall also be barred from any recovery (including, without limitation, any recovery under the express warranty specified in paragraph 2(a)) and Company shall have no liability on account of any of the following, or the use of the affected Goods:(i) any Goods which have been subject to accident, negligence, alteration, abuse, tampering, misuse, improper storage (including, without limitation, exposure to weather), improper maintenance, improper removal, improper installation or the like; (ii) any Goods which are not used with compatible components or in appropriate environments; (iii) any Goods which are used outside of stated absolute maximum ratings, or applicable service, pressure, temperature, frequency or other ranges or applications for which they were manufactured, as specified by Company; (iv) Permissible Defects (as defined below);(v) use of any Goods for Space and Medical Systems without the prior written consent of Company; (vi) failure to comply with Performance Conditions; (vii) unreasonable use, improper operation of Goods, use of Goods beyond normal fashion, failure to follow instructions, failure to maintain Goods in good condition and repair, or the like; (viii) without the prior written consent of Company, use of Non-Standard Goods (as defined below), it being understood that such goods are sold “AS IS”, “WITH ALL FAULTS”; and (ix) failures of or defects in Goods caused by another component or other element or influence within or outside of a given system including, without limitation, failures caused by voltage or current settings.
For purposes hereof, the term “Permissible Defects” means (i) deviations from the Specifications to the extent of variations and defects defined by The Institute for Interconnecting and Packaging Electronic Circuits; and (ii) permitted failures contained in Company’s applicable test performance criteria and measurement instructions as determined by Company. The term “Non-Standard Goods” means goods which are (i) derived from any specifications, drawings, technical information or other data (collectively, “Data”) supplied by Purchaser or Data supplied by Company but modified to meet Purchaser’s particular requirements or instructions; (ii) not listed as a standard product on Company’s then current catalog, as determined by Company; or (iii) developmental, experimental, first articles or prototype goods. The term “Performance Conditions” means the conditions, assumptions and recommendations contained in Company’s specifications, drawings, technical information, application notes or other data which are required to or should be satisfied in order for Goods to meet applicable Specifications on a consistent basis.
Purchaser further acknowledges and agrees that, if Purchaser purchases any Goods from an Unauthorized Source (as defined below), such goods will not be covered by the express warranty under paragraph 2(a). Accordingly, Purchaser is barred from any recovery (including, without limitation, any recovery under the express warranty specified in paragraph 2(a)) on account of the purchase of Goods from any Unauthorized Source, and such goods are sold “AS IS”, “WITH ALL FAULTS”, and Company will not provide any technical support therefor. For purposes hereof, the term “Unauthorized Source” means a Person other than Company, its subsidiaries or any of Company’s authorized representatives or distributors as specified on Company’s website at http://www.minicircuits.com/pages/contact.html, as may be modified from time to time.
For purposes hereof, the term “Person” means any natural person, corporation, division of a corporation, partnership, proprietorship, joint venture, association, trust, estate, foundation, or any other entity, whether or not incorporated, and any governmental authority, unit or agency.
(c) In the event a defect is discovered or should have been discovered from which it is reasonable to conclude that damage, either personal, property or economic, may result, the continued use of the suspect goods will constitute an assumption of the risk and a bar to any recovery against Company, including, without limitation, any recovery for breach of any express warranty.
(d) PURCHASER’S SOLE AND EXCLUSIVE RIGHTS AND REMEDIES IN CONNECTION WITH THE LIMITED WARRANTY CONTAINED IN PARAGRAPH 2(a) ARE ALSO LIMITED TO THE RIGHTS AND REMEDIES EXPRESSLY SET FORTH IN PARAGRAPH 3.
(e) IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF THE EXPRESS TERMS OF PARAGRAPH 2(a). THE EXPRESS WARRANTY SET FORTH IN PARAGRAPH 2(a) AND THE OBLIGATIONS AND LIABILITIES OF COMPANY THEREUNDER ARE EXCLUSIVE AND ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR THE PURPOSES FOR WHICH GOODS OF THE SAME DESCRIPTION WOULD ORDINARILY BE USED, CONFORMITY IN KIND (WHETHER SUCH CONFORMITY ARISES OUT OF FACTS WHICH COMPANY KNEW OR SHOULD HAVE KNOWN), DESCRIPTION, QUALITY, OR CHARACTERISTICS TO ANY MODEL OR SAMPLE, PACKAGING OR CONTAINMENT OF GOODS IN MANNER USUAL FOR SUCH GOODS OR, WHERE THERE IS NO SUCH MANNER, ADEQUATE TO PRESERVE AND PROTECT THE GOODS, AND QUALITY OR CHARACTERISTICS NECESSARY FOR ORDINARY OR COMMERCIAL USE INCONSISTENT OR INCOMPATIBLE WITH THE SPECIFICATIONS, WARRANTIES CONCERNING INFRINGEMENT, ATTACHMENT, SEIZURE OR ANY OTHER THIRD PARTY RIGHT OR THE LIKE, AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING AND USAGE OF TRADE.
It is hereby expressly understood and agreed that unless a statement is specifically identified in this Invoice as a warranty, the statements made in these Terms relating to the Goods are not express warranties and do not form a part of the basis of the bargain but are merely Company’s opinion or commendation of the Goods. Any description of the goods specified in these Terms and any description of goods contained in any and all brochures, pamphlets or other literature of Company, whether delivered before or after the date hereof, are not intended to be warranties. Instead, they are for the sole purpose of identifying such goods; and such descriptions are not part of the basis of the bargain, and do not constitute a warranty that the Goods shall conform to those descriptions. The use of any sample, graph, data curve, model or drawing is for illustrative purposes only, conformity of the Goods to such sample, graph, data curve, model or drawing is not part of the basis of the bargain, and is not a warranty that the Goods will conform with the sample, graph, data curve, model or drawing. No affirmation of fact or promise made by or on behalf of Company, whether or not in these Terms, shall constitute a warranty that the Goods will conform to the affirmation or promise.
(f) COMPANY NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF GOODS HEREUNDER.
3. LIMITATION OF REMEDIES, WAIVER OF CONSEQUENTIAL DAMAGES. (a) EXCEPT AS OTHERWISE EXPRESSLY STATED IN PARAGRAPHS 3(b) and 7, COMPANY’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO (i) ANY BREACH OF WARRANTY, EXPRESS OR IMPLIED (UNDER THESE TERMS OR OTHERWISE), (ii) DEFECTS IN GOODS, NON-CONFORMITIES OF THE GOODS OR THE TENDER THEREOF, AND/OR (iii) OTHER BREACHES OF ANY OBLIGATION OR DUTY OWED BY COMPANY HEREUNDER OR UNDER APPLICABLE LAW, AND PURCHASER’S SOLE AND EXCLUSIVE RIGHTS AND REMEDIES WITH RESPECT THERETO, SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT, AT COMPANY’S OPTION, OF ANY GOODS SOLD BY COMPANY WHICH MAY PROVE TO BE DEFECTIVE WITHIN THE WARRANTY PERIOD AS A DIRECT RESULT OF SUCH BREACH OF WARRANTY, DEFECT, NON-CONFORMITY OR OTHER BREACH. SUBJECT TO THE PROCEDURES SET FORTH BELOW, COMPANY WILL REPAIR OR REPLACE SUCH DEFECTIVE GOODS, AS THE CASE MAY BE, FREE OF CHARGE.
The determination of whether the Goods in question are defective will be made by Company in its sole and absolute discretion, and such determination shall be conclusive and binding on Purchaser. Company will give Purchaser notice of its determination within forty-five (45) days after Company receives such goods from Purchaser as provided herein. If Company determines that the Goods in question are defective, Company will identify the specific defective goods and remedy such defects in accordance with this paragraph 3 within a reasonable time after giving notice that the Goods are defective. In the event the Company determines that the Goods in question are not defective or are otherwise not covered by the express warranty contained in paragraph 2(a), a fee shall be charged to Purchaser to cover the costs of inspecting and testing such goods and any transportation and related charges incurred by Company, and Purchaser shall pay same promptly. Company will not be liable for damaged or destroyed Goods as a result of such inspection and testing, and, to the extent feasible, any remaining Goods will be returned to Purchaser at Purchaser’s expense.
In order for Purchaser to be entitled to receive the rights and remedies contained in this paragraph 3, Purchaser must, during the Warranty Period, notify Company in writing of the existence of possible defective Goods within thirty (30) days after discovery thereof or the time Purchaser should have discovered such possible defect or else such claims shall be deemed waived. Such notification shall contain a request for a return material authorization (“RMA”) from Company and Purchaser shall comply with Company’s then applicable RMA procedures. Within fifteen (15) days after receiving the RMA, Purchaser shall deliver the specified Goods to the applicable plant designated by Company for that purpose, all as stated in the RMA, free of all liens and encumbrances. Company may initially only request a small sample of Goods in the RMA. Purchaser will pay for the transportation of the suspect Goods from Purchaser’s plant to Company’s plant, all as specified in the RMA. Purchaser is also responsible and liable for all other costs and expenses in connection therewith including, without limitation, recalls and disassembly of any systems, testing, insurance, removal and installation charges and other costs and expenses incurred in connection with this paragraph 3. Purchaser shall bear the risk of loss of all such Goods returned pursuant to this paragraph 3.
If Company determines that the Goods in question are defective and are covered by the warranty specified in paragraph 2(a), Company will remedy such defects in accordance with this paragraph 3(a). However, if Company determines such Goods are not defective or are not covered by the warranty contained in paragraph 2(a), then, to the extent feasible, such non-defective Goods will be returned to Purchaser, at Purchaser’s sole cost and expense. In addition, Company shall charge a fee to Purchaser and Purchaser shall promptly pay a fee equal to the costs and expenses of testing and inspecting such Goods as incurred by Company. Purchaser shall promptly reimburse Company for such costs and expenses as well as the transportation expenses incurred by Company on account of the RMA. Company shall not be liable or responsible for damages or destroyed Goods as a result of such inspection or testing. Company shall have no liability or obligation to Purchaser for loss or damage resulting from the testing, repair, replacement, maintenance, loss of use of Goods, removal, recalls, disassembly of systems or subsequent reinstallation of Goods.
Purchaser hereby acknowledges and agrees that the notice and time periods specified in this paragraph 3 regarding discovery of defects, shipment of goods to Company, notification of defectiveness and the time to effectuate remedies are the appropriate, commercially reasonable and fair time and notice periods.
(b) IF AFTER A REASONABLE NUMBER OF ATTEMPTS BY COMPANY TO REMEDY A DEFECT PURSUANT TO PARAGRAPH 3(a) AND THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNCONSCIONABLE OR UNENFORCEABLE IN THE JURISDICTION IN WHICH ENFORCEMENT IS SOUGHT, OR IN THE EVENT REPAIR OR REPLACEMENT IS NOT APPROPRIATE OR PRACTICAL AS DETERMINED BY COMPANY IN ITS SOLE AND ABSOLUTE DISCRETION, PURCHASER SHALL, AT COMPANY’S OPTION, EITHER RECEIVE (i) A REFUND OF THE PURCHASE PRICE FOR THE DEFECTIVE GOODS; OR (ii) A CREDIT IN AN AMOUNT EQUAL TO THE PURCHASE PRICE OF SUCH GOODS, IT BEING UNDERSTOOD THAT THE REMEDIES STATED IN THIS PARAGRAPH 3(b) SHALL THEN BE PURCHASER’S SOLE AND EXCLUSIVE REMEDY.
PURCHASER’S RIGHTS AND REMEDIES PROVIDED IN PARAGRAPHS 3(a)AND 3(b), AND IF APPLICABLE, PARAGRAPH 7 FOR THE MATTERS STATED THEREIN, SHALL BE PURCHASER’S SOLE AND EXCLUSIVE RIGHTS AND REMEDIES HEREUNDER AND ARE EXPRESSLY MADE IN SUBSTITUTION OF ANY AND ALL RIGHTS AND REMEDIES OTHERWISE PROVIDED UNDER APPLICABLE LAW.
(c) Notwithstanding Company’s rights under Article 37 of the Sale Law (International Sale of Goods), 5759-1999, Company shall further have the right to cure all non-conformities of Goods and the tender thereof without regard to whether Company had reasonable grounds for believing that the tender or non-conformities would be acceptable. Any such non-conformity and the tender thereof shall not be deemed to be a fundamental breach of this contract by Company. Company shall have such right to cure any such non-conformity and/or the tender thereof at any time within sixty (60) days after Company receives written notice by Purchaser to cure such non-conformity and/or tender thereof, even if Company effects such cure beyond the initial time for performance hereunder.
(d) THE MAXIMUM LIABILITY OF COMPANY ARISING OUT OF OR RELATING TO THE SALE OF GOODS EVIDENCED BY THE COMPANY’S INVOICE SHALL BE LIMITED TO THE PURCHASE PRICE OF GOODS SOLD HEREUNDER TO THE EXTENT ACTUALLY PAID FOR BY PURCHASER AND RECEIVED BY COMPANY. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO PURCHASER OR ANY OTHER PERSON FOR ANY (i) DAMAGES ARISING OUT OF OR RELATING TO PERMISSIBLE DEFECTS; OR (ii) CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, OR LOST PROFITS, EXPENSES OR LOSSES DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY (1) BREACH OF WARRANTY, EXPRESS OR IMPLIED, UNDER THIS INVOICE OR OTHERWISE; (2) DEFECTIVE GOODS OR ANY NON-CONFORMITY OF THE GOODS OR THE TENDER THEREOF; OR (3) OTHER BREACH OF ANY OBLIGATION OR DUTY OWED BY COMPANY HEREUNDER OR UNDER APPLICABLE LAW, REGARDLESS OF WHETHER THE LIABILITY RESULTED FROM ANY GENERAL OR PARTICULAR REQUIREMENT OR NEED WHICH COMPANY KNEW OR FORESAW OR SHOULD HAVE KNOWN OF OR FORESEEN, IT BEING EXPRESSLY UNDERSTOOD THAT PURCHASER’S ONLY REMEDY SHALL BE THE REPAIR OR REPLACEMENT OR A REFUND OR CREDIT OF THE PURCHASE PRICE THEREFOR IN THE MANNER AND ONLY TO THE EXTENT SPECIFIED IN PARAGRAPHS 3(a), 3(b) or 7. IN THE EVENT THAT ANY OTHER PROVISION CONTAINED IN THESE TERMS IS FOUND UNCONSCIONABLE OR UNENFORCEABLE FOR ANY REASON, OR ANY EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE, THIS PROVISION OF WAIVER BY AGREEMENT OF CONSEQUENTIAL DAMAGES SHALL NEVERTHELESS CONTINUE IN FULL FORCE AND EFFECT.
4. Delivery; risk of loss and related matters. (a) Shipping dates are approximate and are based upon prompt receipt of all necessary documentation and information. Unless another mercantile symbol is utilized on the face of the Company’s invoice, Goods shall be delivered “ex works Company’s applicable plant”; as designated on the Company’s invoice, and in each instance Company is authorized to ship goods by carrier. Unless otherwise indicated, the foregoing mercantile symbol shall have the meaning ascribed to it under the International Commercial Terms – 2000. Payment shall be due within thirty (30) days after the later of (i) the date of shipment of the goods in question (however, if shipment is delayed by Purchaser, payment will be due thirty (30) days after the issuance of the applicable invoice by Company), or (ii) the date Company issues an invoice therefor. At Company’s option, Company may, for any reason, suspend the credit term specified above for any delivery and may demand cash payment on delivery or impose other payment terms including, without limitation, pre-payments. Notwithstanding anything to the contrary contained herein, Company reserves the right, under any circumstances, to delay deliveries indefinitely and to allocate production and deliveries of Goods among its various customers in Company’s sole discretion, and Company shall have no liability therefor. Such allocation may or may not be on a pro-rata basis and may be such that no allocation is made to Purchaser.
(b) Company shall have the right to deliver the entire order at one time or in portions from time to time within the time of delivery specified in paragraphs 7 and 8. Payment for partial shipments shall be due thirty (30) days after the later of (i) the date of such partial shipment (however, if such partial shipment is delayed by Purchaser, payment will be due thirty (30) days after the issuance of the applicable invoice by Company), or (ii) the date Company issues an invoice therefor. The price for partial shipments will be pro-rated as determined by Company and reflected on its invoice. Any delivery or portion thereof not made in accordance with the Company’s invoice shall not affect any fulfilled parts thereof, nor entitle Purchaser to reject subsequent deliveries, nor entitle Purchaser to off-set any invoices of Company. Without Company’s prior written consent (which may be withheld for any reason), orders and releases for Goods may not be rescheduled or cancelled by Purchaser and the Goods are not returnable, except that Purchaser may return defective Goods pursuant to Company’s RMA policy as specified in paragraph 3. Accordingly, Purchaser shall not have the right to accelerate, postpone, reschedule, cancel or otherwise modify the delivery dates and related shipment of Goods specified by Company on the face of Company’s invoice or in Company’s applicable quote or purchase order acknowledgement, as applicable (other than as provided in paragraph 7). If Purchaser attempts to do so, it will be deemed to have repudiated this contract.
(c) In the event Purchaser cancels orders or releases of any of the Goods which are the subject of the Company’s invoice, for Purchaser’s convenience, it shall pay Company’s then applicable cancellation fee as specified by Company from time to time.
(d) Due to fluctuations in inventory levels, RoHS compliant Goods may be substituted for Standard non-RoHS compliant Goods, unless Company receives a written instruction from Purchaser to the contrary. Goods that are RoHS compliant are clearly marked with a “+” suffix following the base model number of the Good in question. Purchaser hereby acknowledges and confirms that the designation by Company of a Good being RoHS compliant is based on and subject to the methodologies, assumptions and qualifications specified on Company’s website. To visit, please go to www.minicircuits.com and click on the “RoHS/REACH Program” button.
5. Price. Except as otherwise specified on the Company’s invoice, the purchase price for the Goods shall be the list price for such goods as reflected on Company’s price list at the time of shipment. In addition to the purchase price, Purchaser shall be responsible for and shall pay for any and all transportation costs, insurance expenses and all applicable national, regional and local sales, use, property, excise, value added tax, and other taxes, duties or governmental charges imposed on or with respect to the Goods, except taxes levied on Company’s net income. In the event of new taxes or increased rates which are applicable to the transactions contemplated hereby, the invoice issued to Purchaser shall be subsequently adjusted if necessary and Purchaser shall immediately pay any difference. Notwithstanding any prices specified on Company’s invoice, Company reserves the right to charge prices prevailing at the time of shipment for goods scheduled to be shipped on Company’s invoice more than six (6) months from the order entry date on Company’s records.
6. Title. Solely for the purpose of reserving a security interest in the Goods, Company retains title to such goods until they are paid in full by Purchaser. Such retention of title by Company shall not affect the passage of risk of loss as specified in paragraph 4.
7. Delays. Except as otherwise provided in paragraphs 3(c) and 8, Purchaser is entitled to cancel only that portion of any order which is excessively delayed, it being understood that time is not of the essence. Upon such cancellation, Purchaser shall only be entitled to a credit of the purchase price paid to Company for the portion of the order which has been canceled by Purchaser as a result of such excessive delay. Such remedy shall be Purchaser’s sole and exclusive remedy with respect to late deliveries, and is expressly made in substitution of all other rights and remedies otherwise provided under applicable law. However, if this remedy is deemed to fail of its essential purpose, paragraph 3(b) shall apply in the alternative. Purchaser acknowledges and agrees that Company shall not be liable or responsible for any resulting back-charges incurred by Purchaser on account of any such delays.
To invoke such cancellation, Purchaser must give Company ten (10) days prior written notice thereof provided, however, that (i) the Goods are not specially manufactured, or (ii) Company has not manufactured or shipped the Goods in the interim. In the event the Goods are specially manufactured, Purchaser may invoke such cancellation, provided, however, that Company has not commenced manufacturing, or made commitments for the procurement of the Goods or underlying raw materials.
8. Force Majeure. (a) Notwithstanding any provision herein to the contrary, Company shall not be liable or responsible for any delay in or failure of delivery of the Goods by reason of force majeure, including, but not limited to, Company’s inability to obtain raw materials from suppliers or to obtain same on a timely basis, or as a result of interruption of transportation, delays in delivery, governmental regulation, labor disputes, strikes, war, fire, flood, accidents, acts of God, civil disturbance, quota restrictions or any other cause beyond Company’s control, whether or not such cause be of the same class or kind as those enumerated above, such enumeration being expressly understood to be in addition to other causes or classes of causes beyond Company’s control. In the event of the occurrence of any such causes, Company shall have the right to allocate production and deliveries among its customers in such proportions as it deems appropriate, in its sole and absolute discretion.
(b) In the event Company is unable to make timely delivery of all or a portion of the Goods, by reason of any events or occurrences referred to in this paragraph 8, Purchaser must accept delivery of the Goods whenever Company is able to make such delivery regardless of the duration of the delay in delivery of the Goods, or Company may, in its sole and absolute discretion, cancel the undelivered portion of this Invoice without liability.
9. Limitation of Action. No action or proceeding at law, in equity or otherwise shall be commenced by Purchaser against Company for Company’s alleged breach of warranty (express or implied) under these Terms or otherwise, failure to deliver conforming Goods or other breach of any obligation or duty owed by Company hereunder or under applicable law, unless: (i) Purchaser notifies Company in writing at the address specified in these Terms within thirty (30) days from the date of such alleged breach or failure to deliver conforming Goods, provided Company does not remedy or correct the breach or non-conformity within sixty (60) days from the receipt of the notice; and (ii) such action or proceeding is commenced by Purchaser within twelve (12) months from the date the breach or non-conformity occurs for any action whether in contract, negligence or strict products liability, other than breach of warranty, regardless of the Purchaser’s lack of knowledge or, in the event of breach of warranty, within twelve (12) months from the date the breach occurs or from the expiration of the Warranty Period, or applicable statute of limitations period, whichever occurs first. Notwithstanding the foregoing, nothing contained in this paragraph 9 shall be construed to abridge or limit the express warranty contained in paragraph 2(a) hereof.
10. Design Protection. Other than with respect to unmodified designs submitted by Purchaser, Purchaser has no right, title or interest in or to (i) the Specifications and other specifications and technical information furnished by Company or supplied by Purchaser and modified by Company concerning the Goods or the proprietary information contained in any of the foregoing by reason of the sale of such Goods or otherwise; (ii) designs of Goods, (iii) Company Process Technology and (iv) any and all related improvements of any of the foregoing (the foregoing items (i) – (iv) are collectively, the “Company Property”). Purchaser, as a special inducement to Company, agrees not to directly or indirectly copy or reproduce any Company Property, and further agrees that it will not disassemble, decompile or reverse engineer the Goods or otherwise misappropriate or utilize the Company Property. The Company Property shall be kept confidential by Purchaser and Purchaser shall not disclose same to any third party, nor shall same be used by Purchaser for any purpose other than to assist Company in supplying the Goods. All Company Property and tooling supplied or purchased by Company shall be and remain the exclusive property of Company and/or Company’s affiliates (as applicable), and such property shall be delivered to Company at Company’s request. With respect to designs or Specifications owned by Purchaser, such ownership shall be exclusive of Company’s unique designs, technologies and internal components utilized in meeting Purchaser’s designs or the Specifications, as the case may be. All improvements to Company Property and the Goods and the related Intellectual Property shall remain the exclusive property of Company (and/or its affiliates as applicable) irrespective of whether the improvements were suggested or made by or on behalf of Purchaser or any other Person. For purposes hereof, the term “Company Process Technology” means the Intellectual Property associated with the underlying materials, manufacturing, fabrication, assembly and testing of Goods. The term “Intellectual Property” means intellectual property and proprietary rights of any kind or nature including, without limitation, know-how, designs, technical drawings and documents, specifications, processes, developments, improvements, confidential or proprietary information, trade secrets, inventions, patents, trademarks and copyrights.
Purchaser hereby acknowledges the validity of the Company Property including, without limitation, patents and patent applications presently pending. Purchaser hereby agrees that it will not directly or indirectly infringe the Company Property or contest or challenge the validity of the Company Property in any way.
11. Interest Charges and Attorneys Fees. Purchaser shall pay interest charges on past due amounts at a rate of the lesser of 1 ½ percent per month or the maximum rate permitted by law. In the event Company refers the Company’s invoice to an attorney for collection, Purchaser shall promptly pay all reasonable legal fees and disbursements incurred by Company in connection therewith.
12. Company’s Right of Possession. Purchaser acknowledges and agrees that Company shall have the right, at any time, and from time to time, for credit reasons or because of the occurrence of an Event of Default (as defined in paragraph 14) or Purchaser’s default under any other orders or agreements with Company (collectively, “Other Orders”), to withhold shipments in whole or in part hereunder or under Other Orders, and to recall all such goods in transit, retake same, and repossess all such goods which may be stored with Company for Purchaser’s account, without the necessity of taking any action and without incurring any liability for exercising its rights hereunder.
13. Insolvency Representation. Purchaser hereby represents and warrants to Company that Purchaser is not insolvent. For purposes hereof, the term “insolvent” means a Person who has ceased to pay his debts in the ordinary course of business or cannot pay his debts as they become due, or commits an act of bankruptcy within the meaning of Section 5 of the Bankruptcy Ordinance (New Version), 5745-1980 (“Bankruptcy Ordinance”), and Purchaser hereby acknowledges that it made this representation to Company immediately prior to the first delivery of Goods.
14. Default, Cancellation and Related Matters. The occurrence of one or more of the following events shall constitute an “Event of Default”: (i) Purchaser’s breach or failure to perform any of its obligations hereunder or under any Other Orders; (ii) Purchaser’s breach or misrepresentation of any representation or warranty made by Purchaser hereunder or under any Other Order; (iii) Purchaser makes a general assignment for the benefit of creditors or admits in writing an inability to pay its debts as they mature or takes advantage of, or files under any insolvency or bankruptcy statute or law, including, without limitation, the Bankruptcy Ordinance, or consents to the institution of proceedings or the filing of any petition thereunder, or any preceding is filed or commenced against Purchaser under any insolvency or bankruptcy statute or law which is not stayed and dismissed promptly, or any substantial part of the properties of Purchaser are placed in the control of a receiver, custodian, trustee or similar official, or Purchaser consents to the appointment thereof; (iv) prohibition of Company by any cease and desist order, injunction, or other valid order, decree, process of law, or restraint from shipping, selling, exporting or distributing any Goods pursuant to the terms hereof; (v) imposition of Damages by Company under paragraph 18(b), as reasonably determined by Company; or (vi) determination by Company, in its sole and absolute discretion, that the prospect of payment, or Purchaser’s financial condition, has been impaired or Purchaser may be insolvent within the meaning of Section 5 of the Bankruptcy Ordinance.
Upon the occurrence of an Event of Default, Company shall have the sole and absolute right to cancel all or any portion of the Goods ordered pursuant hereto and/or under Other Orders. Company shall exercise such right by giving written notice of its intention to do so to Purchaser. Company shall not be liable to Purchaser on account of exercising such cancellation right.
15. Insecurity. In the event Company, in its sole and absolute discretion, believes that an Event of Default has occurred or is likely to occur, then reasonable grounds for insecurity shall be deemed to exist and Company shall have the right to demand adequate assurance of due performance.
16. Choice of Law and Forum. (a) The parties acknowledge and agree that this Invoice shall be a contract made in Israel. All questions pertaining to the validity, construction, execution and performance of these Terms shall be construed and governed in accordance with the domestic laws of the State of Israel, without giving effect to principles of (i) comity of nations or (ii) conflicts of law.
(b) Any controversy or claim arising out of or relating to these Terms, or the breach hereof, shall be settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) then in force and effect (“Rules”) and administered by the ICC in accordance with the Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
The arbitration proceedings shall be conducted before a panel of three (3) neutral arbitrators. The place of the arbitration shall be in Haifa, Israel. Any award in an arbitration initiated under this Invoice shall be in accordance with the laws of the State of Israel, as more particularly specified in paragraph 16(a). The successful party will be entitled to be awarded all costs, including reasonable attorney’s fees, paid or incurred by such prevailing party during the course of the arbitration proceedings.
In any arbitration initiated under these Terms the arbitrators will have no authority to award any: (i) injunctive or other equitable relief, or (ii) consequential, exemplary, incidental, indirect or special damages, lost profits or punitive or other damages not measured by the prevailing party’s actual direct damages, except as may be required by statute and then only to the extent such requirement cannot, as a matter of law, be waived. Any award shall include no injunction or direction to any party other than the direction to pay damages in accordance with the provisions hereof.
Except as required by law, neither party nor any arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of Company and Purchaser.
If either party fails to proceed with arbitration as provided herein or unsuccessfully seeks to stay such arbitration, or fails to comply with any arbitration award, or is unsuccessful in vacating or modifying the award pursuant to a petition or application for judicial review, the other party shall be entitled to be awarded costs, including reasonable attorneys’ fees, paid or incurred by such other party in successfully compelling such arbitration or defending against the attempt to stay, vacate or modify such arbitration award and/or successfully defending or enforcing the award.
17. Cumulative Remedies. All of Company’s rights and remedies hereunder shall be cumulative and not exclusive and shall be in addition to all other rights and remedies available under applicable law. Failure by Company to exercise any right, remedy or option hereunder or under applicable law, or delay in exercising same, will not operate as a waiver, it being understood that no waiver by Company will be effective unless it is in writing and signed by Company, and then only to the extent specifically stated.
18. Intellectual Property Infringements and Indemnity. (a) Company makes no representations or warranties as to whether Goods are free from claims of third parties regarding infringement or the like, and same are hereby waived.
(b) In the event Goods are manufactured in accordance with Data supplied by Purchaser or derived from Company’s Data but modified to meet Purchaser’s particular requirements or instructions, Purchaser shall indemnify, defend and hold Company harmless from and against any and all liabilities, damages, losses, claims, actions, proceedings and expenses, including, without limitation, reasonable legal fees (collectively “Damages”) of whatsoever kind and nature, imposed upon, incurred by, asserted, threatened or awarded against Company directly or indirectly arising out of, relating to or resulting from (i) the infringement of any foreign or domestic patent, trademark, trade secret or other Intellectual Property, or (ii) the manufacture, sale or distribution of such Goods. Any and all amounts due for indemnity shall be paid as Damages are incurred, and in any event, within ten (10) days after written demand therefor.
19. Government Contracts. If Purchaser places any orders for Goods in connection with or under a government procurement contract or subcontract, then no government procurement law, regulation, supplement, or flow-down requirement shall be incorporated herein by reference, and same are hereby rejected and excluded, except Company agrees to adhere to any such mandatory government procurement law, regulation, supplement, or flow-down requirement that cannot be waived, to the extent Company is required to do so under applicable laws. However, to the extent Purchaser is the Israeli Government or one of its agencies, then, to the extent of a conflict between these Terms and any applicable law, rule or regulation (collectively, “Law”), such Law shall control and this Invoice shall be modified as provided in paragraph 21(k).
20. Inspections. Purchaser does not have the right to perform any tests, audits, inspections or surveillances (collectively, “Inspections”) at any of Company’s plants or the plants of Company’s affiliates, suppliers or subcontractors. The performance of any Inspections will be at Company’s sole discretion (i) pursuant to Company’s prior written instructions, (ii) in accordance with Company’s applicable policies, and (iii) provided that Purchaser executes Company’s standard non-disclosure agreement, and that any such Inspection does not interfere with the business or operations of Company.
21. Miscellaneous. (a) Integration. This writing is intended by the parties to be a final, complete and exclusive statement of their agreement with respect to the subject matter hereof. All prior or contemporaneous oral or written statements are hereby excluded and are superseded. It is expressly agreed that no course of performance, course of dealing or usage of trade shall be admissible to contradict, supplement or explain the terms of these Terms. Furthermore, it is expressly agreed that a party’s acceptance of or acquiescence in a course of performance under these Terms shall not be admissible to modify, waive, supplement or explain the terms hereof, even if that party is aware of the course of performance and has an opportunity to object to it.
(b) Assignability. These Terms shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Purchaser shall not have the right to assign its rights, benefits or duties hereunder without the prior written consent of Company. Any assignment in contravention of this provision shall be null and void, and of no legal force or effect.
(c) Export Control. The Goods, technology and Software (as defined in paragraph 21(e)) were exported from the United States and/or Israel in accordance with the U.S. Export Administration Regulations and/or applicable Israeli laws. Diversion therefrom contrary to such applicable U.S. or Israeli law is prohibited. Purchaser represents, warrants and covenants that Goods and Specifications will not be exported, re-exported or released to: (1)(a) any of the following countries or a national thereof, including Cuba, Iran, Sudan, North Korea, Syria or any country in Country Groups D:1 or E:2 (as specified in the then current Supplement No. 1 to Part 740 of the U.S. Export Administration Regulations), or other country (b) to any Person specified in Treasury Department Specially Designated Nationals and Blocked Persons List Supplement No. 3 to Part 764 of the U.S. Export Administration Regulations, (c) to any Person on the then current Unverified List available at the Bureau of Industry and Security Website (www.bis.gov) without the written consent of Company, or (d) to any entity as specified in Entity List Supplement No. 4 to Part 744 of the U.S. Export Administration Regulations, or (2) any countries or a national thereof or Person restricted by or in violation of any and all applicable Israeli laws, regulations and rules governing export or export controls including, without limitation, the Defense Export Control Law, 5766-2007 (“Export Control Law”), except in compliance with, and with all licenses, license exceptions and approvals required under, the Export Administration Regulations or Export Control Law and all other applicable export laws, rules, restrictions and regulations of the Department of Commerce or Israeli government and other applicable United States or Israeli agencies, ministries, bureaus and authorities, as amended from time to time, where applicable. This provision shall also apply to direct products of such Specifications. Purchaser acknowledges that the Goods will not be used in the design, development, production or use of nuclear, chemical or biological weapons or ballistic missiles or in a facility engaged in such activities or for any defense or military use (collectively, “Weapons Uses”). In the event that the intended end use of any of the Goods falls within any of the Weapons Uses, Purchaser shall immediately notify Company thereof in writing.
(d) Modification or Amendment. These Terms may not be modified or amended except by an instrument in writing signed by the party or parties against whom enforcement is sought.
(e) Notice of Software License. In the event Goods contain Software (as defined below) or Software is otherwise downloaded through the website of Company’s affiliate, Mini-Circuits, the use of such Software and the Software shall be subject to and only used in accordance with Mini-Circuit’s then applicable agreement addressing, among other things, software licensing (the “MC License Agreement”). In the event there is any conflict between any of the provisions contained in these Terms and any of the provisions of the MC License Agreement, the provisions which are more favorable to Company, as determined by Company, shall govern and control. For the purposes of these Terms, the term “Software” shall mean all Mini-Circuit’s software programs, object code, source code, drivers, dynamic-link libraries, and computer files, including without limitation, any additions, corrections, updates, modifications, upgrades, or releases thereto and any content contained in any of the foregoing made available or provided by or on behalf of Mini-Circuits to Purchaser.
(f) It is acknowledged that a breach by Purchaser of any provision of these Terms will constitute a substantial impairment to Company of the value of these Terms permitting Company to, among other things, suspend performance and/or no longer accept orders.
(g) Notices. All notices made hereunder shall be made in writing, and shall be deemed adequately delivered if delivered by certified mail, return receipt requested, postage pre-paid or by a courier service that regularly maintains records of its pick ups and deliveries, addressed to the parties at their respective addresses set forth above or to any other address designated by a party hereto by written notice of such address change. Mailed notices shall be deemed given when mailed and notices sent by courier shall be deemed given when delivered to the courier service. Both mailed and courier service notices shall be deemed received three (3) days after mailing such notice or delivering it to the courier service, as the case may be.
(h) In the event Company wishes to modify the Specifications for a particular Good, Company shall have the right to do so. If such modification affects form, fit or function of the Good in question, Company will comply with its then applicable product change notification process.
(i) Captions. The headings and subheadings of these Terms are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of these Terms or any provisions hereof.
(j) Language Pre-Emption. The parties have requested that these Terms be drafted in English; Les parties ont exigé que cette entente soit redigee en anglais.
(k) Severability. Any term or provision of these Terms which is invalid or unenforceable in any jurisdiction on account of unconscionability or otherwise, shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of these Terms or affecting the validity or enforceability of any of the terms or provisions of these Terms in any other jurisdiction. Further, to the extent that any term or provision hereof is deemed so invalid, void or otherwise unenforceable, but may be made enforceable by amendment thereto, the parties agree that such amendment may be made so that the same shall, nevertheless, be enforceable to the fullest extent permissible under the laws and public policies applied in any such jurisdiction in which enforcement is sought.
(l) Waiver of Breach. Any waiver of any of the provisions of these Terms shall not be effective unless made in writing and signed by the Company.
(m) This paragraph 21 and the following paragraphs 2, 3, 9, 10, 11, 12, 13, 16, 17, 18 and 19 shall survive the consummation, termination and cancellation of these Terms.
(n) Unless Company expressly agrees in writing and such agreement specifically pertains to the Goods (i) Company will not make any change in its customary quality control procedures to comply with any quality control requirement of Purchaser or its customers; and (ii) Company will not furnish any Specifications to Purchaser or its customers.