Alpine Optoelectronics, Inc. Terms and Conditions of Sale
All quotations and sales by Alpine Optoelectronics, Inc., its subsidiaries or affiliates (“Alpine Optoelectronics”) are subject to these terms and conditions; provided, however, that in the event that Customer has a written contractual agreement with Alpine Optoelectronics, regarding the purchase of Alpine Optoelectronics products, then the terms and conditions contained in that agreement (supplemented by the non-conflicting terms contained in these Terms and Conditions) shall govern the quotations and sales of products purchased from Alpine Optoelectronics.
1. Except as otherwise set forth on the front of an Alpine Optoelectronics invoice or acknowledgment, terms of payment are net 30 days from invoice date, subject to credit approval; prices are EXW Alpine Optoelectronics’ facility (INCOTERMS 2010); and prices do not include any taxes, freight, handling, duty or other similar charges, payment of which will be the sole responsibility of customer. Prices are conditioned upon timely payment and any past due balance will accrue interest at the monthly rate of 1.5%. Freight charges may be constructed on the basis of standard carrier tariffs and may not reflect actual transportation costs. Alpine Optoelectronics reserves the right to modify terms prior to shipment, require payment in advance, or delay or cancel any shipment or order by reason of customer´s creditworthiness or should customer fail to fulfill any obligation when due. If Customer elects to purchase Products/Service, Customer must submit a written Purchase Order to Alpine Optoelectronics requesting specific quantities and types of desired Alpine Optoelectronics Products/Service. If Alpine Optoelectronics elects to fill a Customer Purchase Order, Alpine Optoelectronics will send a written Order Confirmation sent by electronic or other means, to Customer. No Purchase Order will be binding on Alpine Optoelectronics unless and until Customer receives an Alpine Optoelectronics Order Confirmation. Alpine Optoelectronics may revoke its acceptance of a Purchase Order for any reasonable reason, including Customer’s inability to provide Alpine Optoelectronics with adequate comfort that Customer (i) will comply with all relevant laws, such as export regulations, or (ii) are, in Alpine Optoelectronics’ sole discretion, credit worthy.
2. In the absence of prior agreement as to shipping, Alpine Optoelectronics may select a carrier. Alpine Optoelectronics’ responsibility for any loss or damage ends, and title passes, when products are delivered to the carrier, to customer, or to customer´s agent (including, without limitation, any test house or value added service provider), whichever occurs first. Customer will pay for storage charges if Alpine Optoelectronics holds products at customer´s request pending instructions or rescheduled delivery.
3. Alpine Optoelectronics warrants those products assembled or customized by it against defects caused solely by faulty assembly or customization for 12 months after delivery. All other products, and the components and materials utilized in any assembled or customized products, are covered by, and subject to, the terms, conditions, and limitations of the manufacturer´s standard warranty, which warranty is expressly in lieu of any other warranty, express or implied, of or by Alpine Optoelectronics or the manufacturer. Customer´s exclusive remedy, if any, under these warranties is limited, at Alpine Optoelectronics’ election, to any one of (a) refund of customer´s purchase price, (b) repair by Alpine Optoelectronics or the manufacturer of any products found to be defective, or (c) replacement of any such product. Customer acknowledges that except as specifically set forth or referenced in this paragraph, THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, IN ADVERTISING MATERIALS, BROCHURES, OR OTHER DESCRIPTIVE LITERATURE) BY ALPINE OPTOELECTRONICS OR ANY OTHER PERSON, EXPRESS OR IMPLIED, AS TO THE CONDITION OR PERFORMANCE OF ANY PRODUCTS, THEIR MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. ALPINE OPTOELECTRONICS ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR MANUFACTURER'S PRODUCT SPECIFICATIONS OR THE PERFORMANCE OR ADEQUACY OF ANY DESIGN OR SPECIFICATION PROVIDED TO ALPINE OPTOELECTRONICS BY OR ON BEHALF OF CUSTOMER. Use of the customer´s part number on any document or on any products is for convenience only and does not constitute any representation by Alpine Optoelectronics with respect to the performance, specifications, or fitness of any part for any purpose.
4. Alpine Optoelectronics retains a purchase money security interest in all products sold by Alpine Optoelectronics to customer, and in the proceeds of any resale of such products, until the purchase price and any other charges due to Alpine Optoelectronics have been paid in full. Upon any breach by customer of these terms and conditions, Alpine Optoelectronics will have all rights and remedies of a secured party under applicable law, which rights and remedies will be cumulative and not exclusive. Customer is responsible for all costs and expenses incurred by Alpine Optoelectronics in collecting any sums owing by customer (which may include, but are not limited to, collection agency and reasonable attorneys´ fees). Alpine Optoelectronics shall have the right to offset any sum owed by Alpine Optoelectronics or any Alpine Optoelectronics subsidiary to Customer against any sum owed by Customer to Alpine Optoelectronics or any Alpine Optoelectronics subsidiary. All transactions are governed by the laws of the State of California. The parties waive any right to trial by jury.
5. Products are deemed accepted by customer unless customer notifies Alpine Optoelectronics in writing within 10 days of delivery of product shortages, damage or defect. No returns will be made for any reason without an RMA number issued by Alpine Optoelectronics. If customer refuses to accept tender or delivery of any products or returns any products without authorization from Alpine Optoelectronics, such products will be held by Alpine Optoelectronics awaiting customer´s instruction for 20 days, after which Alpine Optoelectronics may deem the products abandoned and dispose of them as it sees fit, without crediting customer´s account.
6. Alpine Optoelectronics will not be liable for any failure or delay in its performance or in the delivery or shipment of products, or for any damages suffered by customer by reason of such failure or delay, when such failure or delay is caused by, or arises in connection with, any fire, flood, accident, riot, earthquake, severe weather, war, governmental interference or embargo, strike, shortage of labor, fuel, power, materials or supplies, delay in delivery by Alpine Optoelectronics’ suppliers or any other cause or causes beyond Alpine Optoelectronics’ reasonable control. Alpine Optoelectronics reserves the right to cancel without liability any order, the shipment of which is or may be delayed for more than 30 days by reason of any such cause. Alpine Optoelectronics reserves the right to allocate in its sole discretion among customers or potential customers, or defer or delay the shipment of, any product which is in short supply.
7. This document, and not any purchase order or other customer document (which, if construed to be an offer is hereby rejected), will be deemed an offer or counteroffer and is a rejection of any other terms or conditions. Customer, by accepting any products, making any payments or ordering any products having previously received these terms and conditions, will be deemed to have assented to these terms and conditions, notwithstanding any terms contained in any prior or later communication from customer and whether or not Alpine Optoelectronics will specifically or expressly object to any of customer´s terms. Alpine Optoelectronics’ failure to object to any document, communication or act of customer will not be deemed a waiver of any of these terms and conditions. Any addition or change to these terms and conditions must be specifically agreed to in writing by a duly authorized officer of Alpine Optoelectronics before becoming binding on Alpine Optoelectronics.
8. If customer´s order is placed under a contract with the United States Government, Alpine Optoelectronics agrees to comply only with those contract provisions and regulations with which, pursuant to law, it must comply and of which customer has, at the time of order placement, placed Alpine Optoelectronics on written notice. In no event will United States Government Cost Accounting Standards apply. All rights in technical data and software owned or licensed by Alpine Optoelectronics or the manufacturer are hereby reserved and deemed restricted or limited. Unless specifically otherwise agreed in writing by Alpine Optoelectronics, customer acknowledges that products sold by Alpine Optoelectronics are not intended for and will not be used in life support systems, human implantation, nuclear facilities or systems or any other application where product failure could lead to loss of life or catastrophic property damage. Customer will indemnify and hold Alpine Optoelectronics harmless from any loss, cost or damage resulting from customer´s breach of the provisions of this paragraph.
9. Products may be subject to export or resale restriction or regulation, and customer acknowledges that it will comply with such restrictions and regulations. Any statement as to product country of origin, Export Control Classification Number, or compliance with applicable law (including, without limitation, that products are lead-free or RoHS compliant) is as provided to Alpine Optoelectronics by its suppliers, and Alpine Optoelectronics does not warrant its accuracy and will not be liable for any error with regard to same. Customer uses such information at its own risk. Customer understands that the commodities, software, and ⁄ or technology it purchases may be subject to export, re-export, or other restrictions under the laws of the country of manufacture, the country of the seller ⁄ distributor, and the country in which the Customer resides. Therefore, Customer, on behalf of itself, its subsidiaries and affiliates, warrants and agrees to abide by all applicable laws and regulations relating to the export and re-export of such commodities, software, and ⁄ or technology and the direct products thereof in relation to goods obtained by Customer and its subsidiaries and affiliates. In particular:
a. Customer understands that U.S. origin commodities, software, and ⁄ or technology, exported from the U.S., and ⁄ or foreign manufactured products made with U.S. origin technology or more than de-minimis U.S. component content are subject to U.S. re-export laws. In the event of re-export, Customer agrees to ensure that the required permissions (license, license exception, etc., as applicable) will be obtained.
b. Customer certifies that the commodities, software, and ⁄ or technology will not be used, sold, re-exported or incorporated into products used directly or indirectly, in the design, development, production, stockpiling, or use of chemical or biological weapons, nuclear programs (including activities related to nuclear explosive devices, nuclear reactors, and nuclear fuel-cycle activities), missiles (including cruise and ballistic missile systems, space launch vehicles, sounding rockets, target drones, remotely piloted vehicles, and reconnaissance drones), and maritime nuclear propulsion projects except as authorized under applicable laws and regulations relating to the export and ⁄ or re-export of these items.
c. Customer certifies that the commodities, software, and ⁄ or technology will not be sold, re-exported or incorporated into products for use by military, police, or intelligence entities, or for any space applications except as authorized under applicable laws and regulations relating to the export and ⁄ or re-export of items to such entities.
d. Customer certifies that the commodities, software, and ⁄ or technology will not be used directly or indirectly, sold, re-exported or incorporated into products for the foreign vessels or aircraft except as authorized under applicable laws and regulations relating to the export and ⁄ or re-export of these items.
e. Customer certifies that the commodities, software, and ⁄ or technology will not be used directly or indirectly, sold, re-exported or incorporated into products for the benefit of certain Countries or any other persons named by the U.S. government on the Entity List at Part 744 of the Export Administration Regulations, or to persons designated by the U.S. government as Specially Designated Global Terrorists (SDGTs), Specially Designated Terrorists (SDTs), Foreign Terrorist Organizations (FTOs) on the Specially Designated National (SDN) list, or to persons on the SDN List.
f. Customer certifies that the commodities, software, and ⁄ or technology will not be used directly or indirectly, sold, re-exported or incorporated into products that constitute general purpose microprocessors for military end-uses or military end- users except as authorized under applicable laws and regulations relating to the export and ⁄ or re-export of items to such items.
g. Customer certifies that no commodities, software, and ⁄ or technology obtained from Alpine Optoelectronics, Inc., its subsidiaries and ⁄ or affiliates, or of U.S. origin will be exported or re-exported (directly or indirectly), diverted, or transshipped to or via any country in violation of U.S. unilateral or U.N. economic embargo.
h. Alpine Optoelectronics also reserves the right to cancel any order, the shipment of which would require an export license.
10. Except for the warranty coverage referenced in paragraph 3, above, NEITHER ALPINE OPTOELECTRONICS NOR ITS SUPPLIERS WILL HAVE ANY LIABILITY OR OBLIGATION TO CUSTOMER OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE CAUSED IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, BY THE INADEQUACY OF ANY PRODUCTS FOR ANY PURPOSE, BY ANY DEFICIENCY OR DEFECT IN ANY PRODUCT (WHETHER OR NOT COVERED BY ANY WARRANTY), BY THE USE OR PERFORMANCE OF ANY PRODUCTS OR BY ANY FAILURE OR DELAY IN ALPINE OPTOELECTRONICS’S PERFORMANCE HEREUNDER, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR LOSS OF BUSINESS OR PROFIT, WHETHER OR NOT CUSTOMER WILL HAVE INFORMED ALPINE OPTOELECTRONICS OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH DAMAGES.
11. The performance of any value added service may void the manufacturer´s warranty and render products nonreturnable. Orders incorporating such services are, accordingly, noncancelable and the products are nonreturnable. Any third party value added service provider is deemed to be an agent of customer.
12. Any software or other intellectual property included in or relating to products is supplied by its manufacturer or licensor. Alpine Optoelectronics makes no representation or warranty with respect thereto and will have no liability in connection therewith. Customer agrees to comply with all requirements with regard to proprietary and similar rights in and to any intellectual property (including any requirement to enter into a separate license agreement and prohibitions against duplicating or disclosing the same), even if Alpine Optoelectronics has broken the seal on any "shrink wrapped" software. If Customer provides Alpine Optoelectronics with any intellectual property, Customer warrants that it has all necessary legal rights to such property. Customer will indemnify Alpine Optoelectronics against and hold it harmless from any and all liability, cost or expense arising from a breach or purported breach of the requirements described in this section.
13. Alpine Optoelectronics may assign accounts receivable to an Alpine Optoelectronics affiliate. In order to defray the cost of customer account administration, any credit balance or other sum owed to customer which remains unclaimed by customer for a period of twelve months will become the property of Alpine Optoelectronics.
14. No order or Customer obligation may be cancelled, rescheduled, reconfigured, or assigned without Alpine Optoelectronics’ prior written authorization and, in such event, customer will be liable to Alpine Optoelectronics for any additional costs and expenses incurred by Alpine Optoelectronics. Prices are subject to change by Alpine Optoelectronics upon customer rescheduling or reconfiguration of orders. Prices are also subject to change in response to supplier price increases or if a price has been quoted in error, whereupon, customer may cancel the undelivered portion of any affected order by delivering written notice to Alpine Optoelectronics prior to the shipment thereof and within 10 days of its receipt of notice of the price increase.