Terms and Conditions
CPS 04092020
1. Applicable Terms and Conditions (a) These terms and conditions of sale establish the rights, obligations, and remedies of Buyer and Seller that apply to any order issued additional or different terms or conditions, whether purchase order form or in any other document or communication pertaining to order, will be binding on Seller unless accepted in writing by an authorized representative of Seller. Seller expressly objects to and rejects any additional or different terms and conditions, which shall be ineffective. (b) or electronic transmittal including or attaching these terms and conditions is found to be an acceptance of an offer, acceptance is expressly made conditional upon Buyer's assent solely to these terms and conditions, and acceptance of any part of Products delivered by Seller shall be deemed to constitute such assent by Buyer. If the order acknowledgement, invoice, other document, or electronic transmittal including or attaching these terms and conditions constitutes an offer, Buyer's acceptance of the offer is hereby limited to the terms of the offer. 2. Price, Payment Terms, and Title (a) All prices represent those in effect at the time of quotation and are subject to change without notice. Unless prices are bid or quoted as "firm," Seller reserves the right to invoice at prices in effect at the date of shipment, regardless of any prior bid and whether notice was received by Buyer. Unless otherwise indicated, prices are stated in United States dollars and are exclusive of shipping, handling, shipping insurance, duties, and sales, use, excise or similar taxes. Export packaging or any other special handling requested by A service charge of $25 will be assessed for any order less than $250. Seller requires a minimum $100 emergency handling charge for all orders that require shipment the same day or next day. (b) Buyer acknowledges that the pricing of the Products has been set based on the agreed allocation of risks contained in these terms and conditions. payments.conditions will be components. Seller shall have the right to make partial deliveries and to ship up to forty (40) days in advance of shipping date. 4. Acceptance Acceptance shall occur, if not before, when Buyer fails to reject within ten (10) days after delivery of the Products. Buyer may rightfully reject only when a reasonable inspection shows that the Products fail to conform substantially to the specifications for the Products. Buyer waives any right to revoke acceptance. Buyer's remedies for any nonconformity detected after acceptance are limited to those expressly provided in these terms and conditions for breach of warranty. 5. Limited Warranty (a) Seller warrants to each original Buyer of Products that Products are, at the time of delivery to the Buyer, in good working order and published specifications, provided that no warranty is made with respect to any Products, component parts, or accessories manufactured by others but supplied by Seller. (b) Seller's obligation under this warranty for any Product proved not to be as warranted within the applicable warranty period is limited to, at its option, replacing the Product, refunding the purchase price of the Product, or using reasonable efforts to repair the Product during normal business hours at any authorized service facility of Seller. All costs of transportation of any Product claimed not to be as warranted and of any repaired or replacement Product to or from such service facility shall be borne by Buyer. (c) Seller may require the return of any Product claimed not to be as warranted to one of its facilities as designated by Seller, transportation prepaid by Buyer, to establish a claim under this warranty. The cost of labor for removing a Product and for installing a repaired or replacement Product shall be borne by Seller, in an amount not to exceed $10,000.00 per piece of switchgear assembly. Replacement parts provided under the terms of this warranty are warranted for the remainder of the warranty period of the Products in which they are installed to the same extent as if such parts were original components. Warranty services provided under these terms and conditions do not assure uninterrupted operations of Products; Seller shall not be liable for damages caused by any delays involving warranty service. (d) The warranty period for Products is the shorter of twelve (12) months from the date of installation or eighteen (18) months from the date of shipment unless otherwise agreed by Seller in writing. (b) Unless different credit terms have been extended to Buyer in writing by Seller, payment terms are net 30 days after delivery or date of invoice, whichever first occurs, in the currency invoiced. Seller reserves the right to modify or withdraw credit terms at any time without notice. If Buyer fails to fulfill the terms of payment, Seller may defer further shipments to Buyer or, at its option, cancel the unshipped portions of Buyer's orders. Buyer agrees to pay interest on all past due invoices at the lesser of 18% per annum, compounded monthly, or the highest contractual rate allowable under the law. (e) EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, SELLER PROVIDES PRODUCTS AS-IS AND MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE PRODUCTS, THEIR FITNESS FOR ANY PARTICULAR PURPOSE, THEIR MERCHANTIBILITY, THEIR QUALITY, THEIR NONINFRINGEMENT, OR OTHERWISE. IN NO EVENT SHALL SELLER BE LIABLE FOR THE COST OF PROCUREMENT OR INSTALLATION OF SUBSTITUTE GOODS. (c) Unless otherwise agreed to in writing, title and risk of loss shall pass to Buyer upon delivery to the agreed upon F.O.B. point, or payment in full, whichever occurs first. If the Buyer defaults in payment or performance or becomes subject to insolvency, receivership or bankruptcy proceedings or makes an assignment for the benefit of creditors, or without the consent of Seller voluntarily or involuntarily sells, transfers, leases or permits any lien or attachment on the Products, Seller may treat all amounts then or thereafter owing by Buyer to be immediately due and payable and Seller at its election may repossess Products for which Buyer has not paid in full. In the event of repossession of Products under this section or under the section entitled "Security Interest,". 3. Delivery and Risk of Loss (a) Unless otherwise agreed in writing, all deliveries of Products will be F.O.B. destination. Products will be packed commercial shipping packages. Charges for shipping may not reflect net transportation costs paid by Seller. Buyer shall reimburse Seller for all costs of storage and handling incurred by Seller after the date that Seller is prepared to make shipment. (b) Delivery and shipping dates are approximate and represent best estimate of the time required to make delivery or shipment. Time is not of the essence with respect to the transactions covered by these terms and conditions, except with respect to to make all related6. LIMITATION OF LIABILITY IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL DAMAGES, CONSEQUENTIAL DAMAGES,INDIRECT DAMAGES, INCIDENTAL DAMAGES, STATUTORY DAMAGES, EXEMPLARY OR PUNITIVE DAMAGES, LOSS OF PROFITS, LOSS OF REVENUE, LIQUIDATED DAMAGES, OR LOSS OF USE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. OUT OF OR RELATED TO A PRODUCT SHALL IN NO CASE EXCEED THE PURCHASE PRICE OF THE PRODUCT FROM WHICH THE CLAIM ARISES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY WHETHER LIABILITY ARISES OR RESULTS FROM BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE, GROSS NEGLIGENCE, MALICE, OR INTENTIONAL CONDUCT), STRICT LIABILITY, BY OPERATION OF LAW, OR OTHERWISE. 7. Cancellation and Return of Products Orders shall not be subject to cancellation or modification either in whole or in part without Seller's written consent and then only with terms that will reimburse Seller for reasonable termination charges, including all progress billings and all incurred direct manufacturing costs. Seller's written consent must be given in advance of Buyer's return of Products for credit. Seller reserves the right to cancel any sale of Products without liability to Buyer (except for refund of monies already paid), if the manufacture or sale of the goods is or becomes technically or economically impractical. 8. Force Majeure Seller shall not be liable for any failure to perform or delay in performing its obligations resulting directly or indirectly from or contributed to by any acts of God, acts of Buyer or those under control, acts of government or other civil or military authorities, priorities, strikes, or other labor disputes, fires, accidents, floods, epidemics, war, riot, embargoes, delays in transportation, lack of or inability to obtain raw materials, components, labor, fuel or supplies, or other circumstances beyond Seller's reasonable control ("Force Majeure Event"). If Seller elects, the time for performance shall be extended by a period of time equal to the time lost because of any delays caused by reasons of a Force Terms and Conditions
CPS 04092020
Majeure Event. any part thereof because of any Force Majeure Event, then Buyer agrees promptly upon request and upon receipt of invoice therefor, to pay Seller for any Product or Products then completed. 9. Work Product "Work Product" shall include, without limitation, all designs, discoveries, creations, works, devices, masks, models, work in progress, service deliverables, inventions, products, special tooling, computer programs, procedures, improvements, developments, drawings, notes, documents, business processes, information and materials made, conceived or developed by Seller alone or with others that result from or relate to the Products. All Work Product shall at all times be and remain the sole and exclusive property of Seller. Buyer hereby agrees to irrevocably assign and transfer to Seller and does hereby assign and transfer to Seller all of its worldwide right, title and interest in and to the Work Product including all associated intellectual property rights. Buyer hereby waives any and all moral and other rights in any Work Product or any other intellectual property created, developed or acquired in respect of the Products. Seller will have the sole right to determine the treatment of any Work Product, including the right to keep it as trade secret, execute and file patent applications on it, to use and disclose it without prior patent application, to file registrations for copyright or trademark in its own name or to follow any other procedure that Seller deems appropriate. 10. Confidentiality (a) Buyer may acquire knowledge of Seller Confidential Information (as defined below) in connection with Products and/or its performance hereunder and agrees to keep Seller Confidential Information in confidence during and following termination or expiration of this Agreement. "Seller Confidential Information" includes but is not limited to all information, whether written or oral, in any form, including, without limitation, information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, Work Product, and other material or information considered proprietary by Seller relating to the current or anticipated business or affairs of Seller that is disclosed directly or indirectly to Buyer. In addition, Seller Confidential Information means any third party's proprietary or confidential information disclosed to Buyer in the course of providing Products to Buyer. Any purchase Information. (b) Buyer agrees not to copy, alter or directly or indirectly disclose any Seller Confidential Information. Additionally, Buyer agrees to limit who have a need to know, and to take steps to ensure that the dissemination is so limited. In no event will Buyer use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use of Seller Confidential Information. Buyer may disclose Seller Confidential Information that is required to be disclosed pursuant to a requirement of a government agency or law but only after Buyer provides prompt notice to Seller of such requirement and gives Seller the opportunity to challenge or limit the scope of the disclosure. (c) Buyer further agrees not to use Seller Confidential Information except in the course of performing hereunder and will not use such Seller Confidential Information for its own benefit or for the benefit of any third party. All Seller Confidential Information is and shall remain the property to Seller all Seller Confidential Information, including all Work Product, and all copies containing Seller Confidential Information. 11. Patent Indemnity (a) In the event any Product is made in accordance with drawings, samples or manufacturing specifications designated by Buyer, Buyer agrees to indemnify, defend, and hold Seller harmless from any and all damages, costs and expenses (including attorney's fees) relating to any claim arising from or relating to the design, distribution, manufacture, marketing, sale, or use of the Product or arising from or relating to a claim that such Product furnished to Buyer by Seller, or the use thereof, infringes any claim of any patent, foreign or domestic, and Buyer agrees at its own expense to undertake the defense of any suit against Seller brought upon such claim or claims. (b) IP Indemnification by Seller. Seller will defend Buyer against any claim brought against Buyer by a third party alleging that a Product, when used as authorized under these terms and conditions, infringes a valid patent or registered copyright of such third party, and Seller will indemnify Buyer and hold Buyer harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed-to settlement by Seller (including use of a Product is Seller determines such actions are reasonably necessary to avoid material n: (i) procure for Buyer the right to continue using the Products; (ii) replace the Products with non-infringing products that are reasonably equivalent; or (iii) modify the Products so they become non-infringing, but are reasonably equivalent. If the foregoing alternatives are not available on terms that are supply of such Products under this Agreement, and (ii) in the event use of such Products is enjoined by a court of competent jurisdiction, Buyer shall return such be a refund of the such returned Products. As a condition section, (i) Buyer shall provide Seller with prompt written notice of any threat, demand, allegation or indication, r shall have sole control of the defense or settlement of any indemnified Intellectual Property Infringement Claim, including all communications regarding the claim, and (iii) Buyer shall provide Seller with reasonable assistance in connection with such defense or settlement. Buyer may employ counsel at its own expense to assist Buyer with respect to any such claim. (c) Seller shall have no indemnification obligation under this section if any claim of infringement would not have occurred but for one or more of the following: (i) use of a Product, other than for its intended purpose; (ii) use or combination of any Product with any other product, equipment, software or data intended use; (iii) use of any release of software or firmware other recommended changes or modifications to a Product, where Seller has offered to implement those changes or modifications; (v) use of a Product after Seller has advised Buyer that a non-infringing alternative is not available on reasonable terms and has requested the return of such Products as specified above, (vi) any modification to a Product made by a person other than Seller or an authorized representative of Seller; or (vii) product or design specifications provided by Buyer to Seller. In the event that any exceptions (i) through (vii) apply, or actions, statements or admissions by Buyer have a material adverse impact on the claim, and as a result fees, Buyer shall indemnify and hold Seller harmless from and against all such expenses. In no event will Seller be liable for enhanced damages resulting from willful infringement by Buyer or any punitive liable for any of special or consequential damages or business interruption expenses. This Section provides the sole and exclusive remedy for actual or alleged intellectual property infringement or misappropriation, or representation or warranty of noninfringement. 12. Changes in Product Design or Manufacture Seller shall have the right to change, discontinue or modify the design and construction of any of its products and to substitute material equal to or superior to that originally specified. 13. Software License Software, if included with a Product, is hereby licensed and not sold. The license is nonexclusive, and is limited to use with the Product with which it is included. No other use is permitted and Seller retains for itself (or, if applicable, its suppliers) all title and ownership to any software delivered hereunder, all of which contains confidential and proprietary information and which ownership includes without limitation all rights in patents, copyrights, trademarks and trade secrets. Buyer shall not attempt any sale, transfer, sublicense, reverse compilation or disassembly (save to the extent expressly permitted by law) or redistribution of the software. Buyer shall not copy, disclose or display any such software, or otherwise make it available to others. In the event that Product is subject to a separate license agreement, Seller shall provide that license agreement to Buyer for review and acceptance, in advance.
Terms and Conditions
CPS 04092020
14. Compliance with LawsThe Parties shall comply with all laws and regulations applicable to Products including all applicable import and export laws and regulations. Each Party and their agent shall provide all information requested by the other Party (Requesting Party) relating to the Requesting voluntary or mandatory compliance with any law or regulation, and Each Party shall indemnify the other Party for any losses incurred by t h e o t h e r P a r t y arising from or their a failure to provide the information requested by the Requesting Party. 15. Waiver No waiver of any provision of these terms and conditions (or any right or default hereunder) shall be effective unless in writing and signed by an authorized representative Seller. Any such waiver shall be effective only for the instance given, and shall not operate as a waiverwith respect to any other rights or obligations under these terms and conditions or applicable law in connection with any other instances or circumstances. 16. Language The parties have expressly required that these terms and conditions be prepared in the English language. Les parties aux présentes ont expressément exigé que les présents termes et les bons de commandes émisaux termes des présentes soient rédigés en langue Anglaise. 17. Choice of Law and Dispute Resolution Except as set forth below, these terms and conditions shall be governed by and construed in accordance with the laws of the State of California , without reference to its choice of law rules. A n y claim or litigation arising out of or relating to Products shall be brought exclusively in a court of competent jurisdiction in Santa Clara County . In all cases, Buyer and Seller expressly exclude from application the United Nations Convention on Contracts for the International Sale of Goods. 18. Assignment (a) Buyer may not assign, transfer or subcontract the performance of its services, or any of its rights and/or obligations hereunder, (b) Seller may not assign, transfer or subcontract the performance of its services, or any of its rights and/or obligations hereunder, without Buyer's prior written consent. 19. Severability If any provision of these terms and conditions is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions of these terms and conditions will not be affected and, in lieu of such illegal, invalid, or unenforceable provision, there will be added, as part of these terms and conditions, one or more provisions as similar in terms as may be legal, valid and enforceable under applicable law. 20. Epidemic Seller shall not be responsible for any failure to perform, or delay in performance of, its obligations resulting from the COVID-19 pandemic or any future epidemic, and Buyer shall not be entitled to any damages resulting thereof. The Parties acknowledge and accept these Terms and Conditions as evidenced by the following signatures of their duly authorized representatives. Approved as to Form: By: Dated: Print name: GLEN R. GOOGINS City Attorney By: Dated: Print name: City Manager City of Santa Clara 1500 Warburton Avenue Santa Clara, CA 95050 Telephone: (408) 615-2210 Fax: (408) 241-6771 By: Dated: Print name: Title: Principal Place of Business Address: Email Address: