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4. Shipping Terms Unless indicated otherwise in the Acknowledgment, Delivery shall be made EXW (Incoterms 2010), Shipping Point, including without limitation, freight and insurance costs. If no delivery terms are specified on the Acknowledgement, the method of shipping will be in the sole discretion of Seller. Unless directed in writing otherwise by Buyer, full invoice value will be declared for all shipments.
5. Title and Risk of Loss Title and risk of loss passes to Buyer upon delivery of the Goods at the Shipping Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Commercial Code.
6. Amendment and Modification These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
7. Inspection and Rejection of Nonconforming Goods
9. Payment Terms
10. Intellectual Property; Software License.
11. Installation and Other Services. Seller shall provide installation services (“Installation Services”) to Buyer if set forth in the Acknowledgment. If Installation Services are provided for in the Acknowledgement, Buyer will prepare the location for the installation consistent with Buyer’s written specifications and Buyer will install necessary system cable and assemble any necessary equipment or hardware not provided by Seller, unless agreed otherwise in writing by the parties. For Goods that will be operated on or in connection with Buyer supplied hardware or software, Buyer is responsible for ensuring that its hardware and software conform with Seller minimum hardware and software requirements as made available to Buyer. Seller shall provide other field services, such as maintenance visits and field repairs (the “Other Services” and together with the Installation Services, the “Services”) if set forth in the Acknowledgement.
12. Limited Warranty
13. Limitation of Liability.
14. Return Goods Policy. Seller’s products may be returned to Seller for credit within sixty (60) days of shipment subject to the following conditions.
15. Compliance with Law and Indemnification. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Goods, Services and technical data delivered by Seller shall be subject to U.S. export controls. Buyer shall, and shall cause its customers to, obtain all licenses, permits and approvals required by any government and shall comply with all applicable laws, rules, policies and procedures of the applicable government and other competent authorities. Buyer will indemnify and hold Seller harmless for any violation or alleged violation by Buyer of such laws, rules, policies or procedures. Buyer shall not transmit, export or re-export, directly or indirectly, separately or as part of any system, the Goods or any technical data (including processes and Services) received from Seller, without first obtaining any license required by the applicable government, including without limitation, the U.S. government. Buyer also certifies that none of the Goods or technical data supplied by Seller under this Agreement will be sold or otherwise transferred to, or made available for use by or for, any entity that is engaged in the design, development, production or use of nuclear, biological or chemical weapons or missile technology. No Buyer information will be deemed “technical data” unless Buyer specifically identifies it to Seller as such. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods. For all international shipments, Seller requires that all required Export Control documentations, including Form BIS-711 Statement by Ultimate Consignee and Purchases, are submitted by Buyer along with the purchase order. Seller reserves the right to postpone shipment until all documentations are completed and submitted to Seller. Seller will not be responsible for shipment delays due to non-compliance by Buyer of the foregoing two sentences.
16. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
17. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Confidential Information. All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section 18. This Section 18 does not apply to information that is: (a) in the public domain through no fault of Buyer; (b) known to Buyer at the time of disclosure without restriction as evidenced by its records; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
19. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage (each a “Force Majeure Event”), provided that, if the event in question continues for a continuous period in excess of thirty (30) days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
20. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section 20 is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
21. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
22. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
23. Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
24. Dispute Resolution.
25. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Acknowledgement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, upon confirmation of delivery by nationally recognized overnight courier or upon forty-eight (48) hours after being sent by certified or registered mail (as applicable), and (b) if the party giving the Notice has complied with the requirements of this Section 25.
26. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
27. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Compliance with Laws, Confidentiality, Governing Law, Dispute Resolution, Survival, and the restrictions on Software in Sections 10(b), (c) and (d).
Warranty for “Specialty Products”
EXCEPT FOR THE WARRANTY SET FORTH BELOW IN THIS EXHIBIT A, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS (INCLUDING ANY SOFTWARE) OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Warranty Period: The Warranty Period for Specialty Products is for one (1) year, and the Warranty Period for laser welders and laser markers is two (2) years (unlimited hours), and the Warranty Period for the laser pump diodes or modules is two (2) years or 10,000 clock hours, whichever occurs first (as applicable, the “Warranty Period”). The Warranty Period begins as follows: (i) on orders for Goods purchased directly by Buyer, upon installation at Buyer’s site or thirty (30) days after the date of shipment, whichever occurs first; or (ii) on equipment purchased by a Buyer that is an OEM or systems integrators, upon installation at the end user’s site or six (6) months after the date of shipment, whichever occurs first.
Acceptance Tests: Acceptance Tests (when required) shall be conducted at AMADA WELD TECH Inc., Monrovia, CA, USA (the “Testing Site”) unless otherwise mutually agreed in writing prior to issuance or acceptance of the Acknowledgement. Acceptance Tests shall consist of a final visual inspection and a functional test of all laser, workstation, enclosure, motion and accessory hardware. Acceptance Tests shall include electrical, mechanical, optical, beam delivery, and software items deliverable under the terms of the Acknowledgement. Terms and conditions for Additional Acceptance Tests either at Seller’s or Buyer’s facility shall be mutually agreed in writing prior to issuance or acceptance of the Acknowledgement.
Performance Warranty: The system is warranted to pass the identical performance criteria at Buyer’s site as demonstrated during final Acceptance Testing at the Testing Site during the Warranty Period, as provided in the Acknowledgement. Seller explicitly disclaims any responsibility for the process results of the laser processing (welding, marking, drilling, cutting, etc.) operations.
Exclusions: Seller makes no warranty, express or implied, with respect to the design or operation of any system in which any Seller’s product sold hereunder is a component.
Limitations: The limited warranty set forth on this Exhibit A does not cover loss, damage, or defects resulting from transportation to Buyer’s facility, improper or inadequate maintenance by Buyer, Buyer-supplied software or interfacing, unauthorized modification or misuse, operation outside of the environmental specifications for the equipment, or improper site preparation and maintenance. This warranty also does not cover damage from misuse, accident, fire or other casualties of failures caused by modifications to any part of the equipment or unauthorized entry to those portions of the laser which are stated. Furthermore, Seller shall not be liable for a breach of the warranty set forth in this Exhibit A if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; (iii) Buyer alters or repairs such Goods without the prior written consent of Seller; or (iv) repairs or modifications are made by persons other than Seller’s own service personnel, or an authorized representative’s personnel, unless such repairs are made with the written consent of Seller in accordance with procedures outlined by Seller.
Seller further warrants that all Services performed by Seller’s employees will be performed in a good and workmanlike manner. Seller’s sole liability under the foregoing warranty is limited to the obligation to re-perform, at Seller’s cost, any such Services not so performed, within a reasonable amount of time following receipt of written notice from Buyer of such breach, provided that Buyer must inform Seller of any such breach within ten (10) days of the date of performance of such Services.
Seller shall not be liable for a breach of the warranty set forth in this Exhibit A unless: (i) Buyer gives written notice of the defect or non-compliance covered by the warranty, reasonably described, to Seller within five (5) days of the time when Buyer discovers or ought to have discovered the defect or non-compliance and such notice is received by Seller during the Warranty Period; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and (a) Buyer returns such Goods to Seller’s place of business at Buyer’s cost (prepaid and insured); or (b) in the case of custom systems, Seller dispatches a field service provider to Buyer’s location at Buyer’s expense, for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective or non-compliant and the defect or non-compliance developed under normal and proper use.
All consumable, optical fibers, and expendables such as electrodes are warranted only for defect in material and workmanship which are apparent upon receipt by Buyer. The foregoing warranty is negated after the initial use.
No warranty made hereunder shall extend to any product whose serial number is altered, defaced, or removed.
Remedies. With respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: repair such Goods (or the defective part). THE REMEDIES SET FORTH IN THE FOREGOING SENTENCE SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS EXHIBIT A. Representations and warranties made by any person, including representatives of Seller, which are inconsistent or in conflict with the terms of this warranty, as set forth above, shall not be binding upon Seller.
Products manufactured by a third party and third party software (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in this Exhibit A. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Notwithstanding the foregoing, in the event of the failure of any Third Party Product, Seller will assist (within reason) Buyer (at Buyer’s sole expense) in obtaining, from the respective third party, any (if any) adjustment that is available under such third party’s warranty
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