Simco-Ion, Technology Group Terms & Conditions
A. Acceptance/Agreement
All orders are subject to acceptance by Simco-ION. Additional or different terms or any attempt by the Buyer to vary, in any degree, any of the terms of this sales agreement form shall be deemed material and are objected to or rejected, but this sales agreement form shall not operate as a rejection of the Buyer's offer unless it contains variances in the terms of the description, quantity, price or delivery schedule of the goods.
B. Payment Terms
Ion System's payment terms are net 30 days unless special written arrangements have been made. Simco-ION may, at any time, suspend performance of any order or require payment in cash, security or other adequate assurance satisfactory to Simco-ION when, in Ion System's opinion, the financial condition of Buyer or other grounds for insecurity warrant such action. Simco-ION reserves the right to assess late charges on accounts due past 30 days at the rate of 18% per annum. All goods are shipped Ex Works and are the property of the Buyer upon shipment.
Buyer expressly grants a security interest in the products to Simco-ION, and all proceeds from any sale thereof, sold to the extent of the invoice amount. If Buyer defaults in any obligation hereunder, Simco-ION, in addition to all other rights and remedies under these terms and conditions, will be entitled to all rights, powers and remedies, available to a secured party under the California Commercial Code. Buyer acknowledges that this Section B constitutes a security agreement and hereby authorizes Simco-ION to file a copy of this acknowledgment. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement. On request of Simco-ION, Buyer will execute any instruments Simco-ION will desire to perfect its security interest.
C. Cancellation/Termination
Upon written notice of cancellation or termination for the Buyer's convenience of standard catalog items, for standard product only, the Buyer is subject to a minimum 15% charge on the remaining balance and a charge reflecting a reversion to the quantity pricing of items actually delivered. In the event that the goods are special, non-standard or custom the Buyer may terminate this order in whole or in part for its convenience upon written notice to Simco-ION in which event Simco-ION shall be entitled to termination charges consisting of a percentage of the order price reflecting the percentage of the work performed prior to termination plus actual direct costs resulting from termination.
D. Remedies in the Event of Cancellation or Default
In the event the Buyer cancels this order, or becomes overdue on its account payable to Simco-ION by failing to pay for this order when due in accordance with the terms hereof, in addition to the charges assessed to the Buyer pursuant to Paragraphs B and C of this Agreement, the Buyer shall be required to pay all costs of collection, including, whether suit be brought or not, attorney fees, court costs, collection expenses and other expenses which Simco-ION may incur or pay in the prosecution of defense of its rights hereunder whether in judicial proceedings at law or in equity, including bankruptcy court and appellate proceedings, or whether out of court. In addition, Simco-ION shall retain the right to terminate this Agreement and Buyer’s right to use the Software (as term is defined below) upon any material breach of this Agreement by Buyer. Buyer agrees to return to Simco-ION or to destroy all copies of the Software upon termination of this Agreement.
E. Delivery
The promised delivery date is the best estimate possible, based upon current and anticipated manufacturing capabilities, of when the product will be shipped. Simco-ION assumes no liability for loss, damages or consequential damages due to delay.
In any event, Simco-ION shall not be in default for any failure to deliver Products to Buyer by the promised delivery date. In the event that Simco-IONso defaults, Buyer's sole remedy for such default shall be cancellation of the applicable order. Simco-ION shall have no other liability to Buyer as a consequence of any such default.
F. Force Majeure
Fulfillment of this order is contingent upon the availability of materials. Simco-ION shall not be liable for any delay in delivery or for non-delivery in whole or in part caused by the occurrence of any contingency beyond the control of either Simco-ION or suppliers to Simco-ION including but not limited to delay in transportation, labor disruption, earthquake, fire, acts of God, or any other act outside of Simco-ION' reasonable control.
G. Warranty; Disclaimers
Simco-ION. expressly warrants that the materials covered by this sale will conform to the specifications, drawings or other descriptions specified by the Buyer or if none are so specified, to Ion System's standard specifications for such material. The materials will be new and unless specified to the contrary on the order acknowledgment or invoice, will be free of all liens and encumbrances. THIS WARRANTY IS THE ONLY WARRANTY MADE BY SIMCO-ION WITH RESPECT TO THE GOODS SOLD UNDER THIS AGREEMENT. THERE IS NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SIMCO-ION FURTHER DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, LIABILITY OR SUPPORT OBLIGATION FOR ALTERED, DAMAGED OR MODIFIED SOFTWARE OR ANY PORTION OF THE SOFTWARE INCORPORATED WITH OR INTO THIRD-PARTY PRODUCTS OR PRODUCT PROBLEMS CAUSED BY CUSTOMER’S NEGLIGENCE, ABUSE OR MISAPPLICATION OR USE OF THE PRODUCT OTHER THAN AS SPECIFIED BY SIMCO-ION. Simco-ION shall not be liable for any incidental, special, indirect or consequential damages, losses or expenses directly or indirectly arising from the sale whether in contract, tort, or any other legal theory. In any event, Ion System's liability hereunder is expressly limited to the repair or replacement (at Ion System's option) of non-conforming goods or, at Ion System's election, to the repayment or crediting to Buyer the purchase price of such goods.
H. Claims/Notice of Defects
Failure of the Buyer to object in writing to any merchandise shipped to it by Simco-ION within 30 days after receipt thereof will constitute complete acceptance by Buyer of such merchandise. Rejected material must be returned to Simco-ION within 45 days after receipt and with prior authorization from Simco-ION. Simco-ION may (at its option) recondition or replace the rejected material to meet Buyer's specifications within a reasonable time period after receipt. Claims for shipping damage must be made with the carrier.
All products must be returned in the same packing conditions in which it left Simco-ION' manufacturing location(s) (anti-static rails and boxes, adequately protected, etc.). Buyer must pay return shipping.
I. Confidential Information
All drawings, diagrams, specifications and other materials furnished by Simco-ION and identified as confidential, or information which the Buyer knows or has reason to know is confidential, proprietary or trade secret information of Simco-ION, relating to the use and service of articles furnished hereunder and the information therein, are proprietary to Simco-ION. Buyer may not reproduce or distribute such materials except to Buyer's employees who may use the articles as part of their duties.
Customer agrees that it will take all reasonable measures to maintain the confidentiality of all confidential information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of equal importance. Accordingly, Simco-ION will be entitled to preliminary and permanent injunctive relief and other equitable relief for any breach of this Section I.
Buyer further acknowledges and agrees that the sale of products to Buyer does not convey any license express or implied, and Buyer shall not, manufacture, modify, reverse engineer, duplicate, otherwise copy or reproduce any of the products or any part thereof.
Simco-ION will treat drawings, specifications or data furnished by Buyer as confidential, when identified as such, in connection with this purchase.
J. Patent or Trademark Infringement
Simco-ION warrants that the goods delivered hereunder do not infringe on any third party's U.S. patents or trademarks issued as of the date such goods were shipped by Simco-ION and agrees to indemnify the Buyer against any claims made against Buyer based upon any assertion that the goods do infringe on the claimant's U.S. patents or trademarks, subject to the following:
- The Buyer notifies Simco-ION promptly in writing of any claim.
- Simco-ION shall have sole control of the defense in any action arising from such a claim, including settlement negotiations.
- Buyer provides Simco-ION with the assistance, information and authority necessary to perform the above. The Buyer will indemnify and hold Simco-ION harmless from any claim of patent or trademark infringement if such claim relates to either use or sale by Buyer or any of Ion System's products in any combination, method or process or compliance to specifications furnished by the Buyer. In no case shall Simco-ION indemnify a Buyer who has modified the product.
Simco-ION will not pay or indemnify Buyer against any settlement costs or damage awards, made without its knowledge and written consent. Simco-ION will have no obligation to Buyer with respect to infringement beyond that stated in this Section J. The foregoing are Simco-ION' sole and exclusive obligations, and Buyer's sole and exclusive remedies, with respect to infringement or misappropriation of intellectual property rights. In no event will Simco-ION have any obligations under this Paragraph J or any liability for any claim or action if the infringement claim is caused by, or results from: (1) Buyer’s combination or use of the Software with software, services, or products developed by Buyer or third parties, other than as intended under this Agreement, (2) modification of the Software by anyone other than Simco-ION if such infringement claim would have been avoided by use of the unmodified Software, (3) Buyer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, or (4) Buyer’s use of the product in a manner not in accordance with this Agreement.
K. Ion Software; Restricted License
The Simco-ION products consist of certain proprietary hardware (the “Hardware”) and certain proprietary software (the “Software”). Simco-ION hereby grants to Buyer or Buyer’s end user, a limited, non-transferable (without the right to distribute or sublicense), non-exclusive right and license to use the Software solely in conjunction with such Hardware during the term of this Agreement. Buyer receives no title or ownership rights to such Software. Except for the license granted in this Section K, all right, title and interest in the Software shall remain the exclusive property of Simco-ION or its licensors. This Agreement does not entitle Buyer to the receipt or use of, or access to, Software source code or any right to reproduce the Software or any related documentation, and Buyer agrees that it shall not decompile, dissassemble, compile or reverse engineer the Software or otherwise attempt to gain access to the Software source code, except with sample applications and integration tools that are provided with source code to assist in customer integration. See Paragraph G regarding warranty disclaimers.
L. General Provisions
Any cause of action arising from this agreement, or breach of it, must be commenced within one year after the cause of action occurs. Simco-IONreserves the right to correct any stenographical or clerical errors in any of the writings issued by it. The terms and conditions of sale and any description on the face of Ion System's writings constitute a complete and exclusive statement of the terms and conditions of the sale of the goods by Simco-ION to Buyer unless amended in a writing between Buyer and Simco-ION. Buyer may not assign any rights to, or delegate any performance owed under the agreement without the written consent of Simco-ION.
This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements entered into, and to be performed entirely, within California between California residents. The U.N. Convention on the International Sale of Goods will not apply. Any suit hereunder will be brought solely in the federal or state courts in the Northern District of California, and Buyer hereby submits to the personal jurisdiction thereof.
This agreement, as amended by any posted notices, constitutes the entire terms and conditions on which products listed on the website shall be offered for sale by Simco-ION.
Simco-ION may amend this Agreement at any time by posting the amended terms on the site. Except as stated below, all amended terms shall automatically be effective after they are posted on the website. This Agreement may not be otherwise amended except in a writing signed by Buyer and Simco-ION. This agreement was last revised on May 27, 2004.
The Simco-ION Product Web site (the "Web site") is an online service provided by Simco-ION. Access and use of the Web site is subject to compliance with the terms and conditions set forth in this agreement ("Agreement"). Please take the time to examine this document carefully and understand its full contents before accessing or using the Web site. By accessing or using the Web site, Buyer will agree to be legally bound by the terms and conditions set forth below. Buyers should not access or use the Web site if they do not want to be bound by these terms and conditions, without exception. This Agreement may be modified at any time without notice, and any such modification shall be effective immediately upon posting. By accessing and using this Website Buyer agrees to periodically review this Agreement and be bound by any modifications or amendments to this Agreement.