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15
Warranty
part thereof, is in such suit held to constitute infringement
and the use of said product or part is enjoined, then Seller
shall at its own expense and at its option, either procure for
the Buyer the right to continue using said product or part,
or replace same with non-infringing comparable products, or
modify it so it becomes non-infringing, or refund the purchase
price thereof. The forgoing states the entire liability of Seller
for patent infringement by said product or part thereof.
6. TERMS OF PAYMENT. Unless other arrangements
are made, standard payment terms for sales to established
customers within the USA are Net Thirty (30) days from date
of shipment. International sales require advanced payment by
wire transfer (electronic funds transfer). All unpaid invoices
will be charged 1-1/2% interest per month. Interest accrues
from the day the invoice is past due.
A. In the event of default of payment when due, all costs of
collection, including attorney's fees and court costs, shall be
paid by the applicant.
B. Any credit extended to the applicant may be reduced or
eliminated in the event Seller, in its sole reasonable discretion,
determines that the applicant's payment history, financial
situation or ability to pay is impaired.
7. SECURITY INTEREST. A security interest in all
goods and equipment purchased shall be retained by Seller
until payment in full has been received for such goods and
equipment, and Seller may file UCC-1 forms to perfect its
security interests.
8. TITLE AND DELIVERY. All shipments within the 48
contiguous United States by Seller shall be F.O.B. point of
shipment. Title to hardware products and risk of loss pass to
Buyer upon delivery to carrier at shipping point. Buyer shall
pay all transportation and storage charges. Seller will select
the carrier if Buyer does not. Claims for shortages must be
made within Ten (10) days after receipt of the order.
9. CONTINGENCIES. Seller shall not be responsible for
any failure to perform due to unforeseen circumstances or
to causes beyond its control. Examples of such causes are
acts of God, War, Riot, Embargoes, Acts of Civil or Military
Authorities, Fire, Floods, Accidents, Strikes or Shortages of
Transportation, Facilities, Fuel, Energy, Labor or Materials.
Seller may defer delivery for a period equal to the delay
caused by such contingency.
10. CANCELLATION.
A. Default. If Buyer defaults, Seller may decline to make
further shipments and/or may terminate Buyer's order
without affecting Seller's rights and remedies including, but
not limited to, any right to cancellation and bill-back charges.
If Seller continues to make shipments after Buyer default,
action shall not constitute a waiver nor affect Seller's legal
remedies.
B. Cancellation: Standard Products. Buyer is responsible for
one hundred percent (100%) payment if any order scheduled
for delivery within thirty (30) days is canceled. Upon written
notice to Seller, Buyer may cancel any order for standard
products scheduled for shipment beyond thirty (30) days
after Seller receives Buyer's cancellation notice. Buyer shall
be liable for any applicable bill-back charges resulting from
such cancellation. Buyer shall also pay, as a rescheduling/
restocking charge, twenty-five percent (25%) of the price
specified on order sheet for each canceled product unless
Buyer reschedules the order for delivery within one hundred
twenty (120) days.
C. Cancellation: Custom Products. If Buyer cancels orders
for products containing design, markings, packaging or other
specifications unique to Buyer, Buyer shall pay the following
cancellation charges in addition to any applicable bill-back
charges.
Percentage of Purchase Price
to be Paid Upon Cancellation Notice
Number of Days Before Scheduled Delivery
that Written Cancellation is Received
100
0-30
75
31-60
50
61-90
20
91-120
11. SEVERABILITY. In case any one or more of the
provisions or parts of a provision contained in this
agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect ay other provision or part
of a provision of this agreement but this agreement shall be
construed as if such invalid, illegal or unenforceable provision
or part of a provision had never been contained herein.
12. ARBITRATION. Any controversy or claim arising out
of or relating to this agreement shall, at the option of either
party, be settled by arbitration in accordance with the rules
of American Arbitration Association. Provided, however that
in the event of a violation of the provisions of paragraph 13,
General Digital shall be entitled to injunctive or other relief to
enforce its rights under this agreement without prejudice to
its rights under this paragraph. Such injunctive or equitable
relief shall not preclude the award of monetary damages, if
appropriate. The parties acknowledge that, by agreeing to this
provision, each waives its right to a jury trial in exchange for
a quicker and less expensive method of resolving any dispute
concerning this agreement or anything relating thereto.
13. CONTROLLING LAW. This Agreement shall be
governed by, subject to, and construed according to the
laws of the State of Connecticut. For purposes of applying
to Connecticut law, this Agreement shall be deemed to have
entered into and wholly performed in Connecticut. Buyer
warrants, and it is a condition of this acknowledgment,
that Buyer has complied, and will continue to comply with
applicable laws, regulations, and order of the United States
Government, and of any state or political subdivision
thereof, including all statutes, regulations, and directives
that are applicable to Buyer's purchase thereunder. Without
limiting the foregoing, Buyer further warrants that they
have complied with all applicable provisions of the Fair
Labor Standards Act of 1938, as amended; and all regulations
and orders issued by the US Department of Labor, as well
as US export regulations including, but not limited to, the
International Trafficking and Arms Regulations (ITAR).
Buyer further agrees to defend, indemnify and hold Seller
harmless from and against claims, losses, damages, costs and
expenses that may be sustained by reason of Buyer's failure to
meet any of the above requirements.
14. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
A. Rights in any and all of Seller's information, know-how,
trademarks, data, trade secrets, inventions, patents, plans,
drawings, specifications, processes, designs, etc., whether
or not acquired or reduced to practice during the course or
as a result of this order, shall remain the property of Seller
and Seller shall not be obligated to provide any of such
property to Buyer. Buyer shall obtain no rights in any of such
property and the price charged shall include no consideration
for such property unless specifically so stated on the face of
Seller's Standard Terms and Conditions of Sale. Listing as a
separate line item and separately billing for Non-Recurring
Engineering (Engineering Services) does not accrue to Buyer
rights in any of the aforementioned property of Seller unless
specifically stated on the face of Seller's Standard Terms and
Conditions of Sale.
B. Buyer acknowledges that propriety property of Seller is a
valuable business asset of Seller and that unauthorized use
or disclosure of such would result in irreparable damage to
Seller. Buyer agrees that it will:
• use proprietary information of Seller only for the purposes
intended and necessitated by this order, not otherwise use
or disclose any proprietary information of Seller without
Seller's express informed written consent;
• take all reasonable precautions to insure protection against
use or disclosure;
• and return, at Seller's request, all proprietary property of
Seller which is in the possession or control of Buyer.
C. Any data, information, specifications, processes, drawings,
designs, plans, know-how, etc. of Buyer supplied to Seller in
conjunction with this order must be considered free from
proprietary restrictions unless expressly agreed otherwise
in writing signed by and authorized by an officer of General
Digital Corporation.
Saber PanelMount NVIS 90-3104-005 User's Manual
Page 20
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