STANDARD TERMS AND CONDITIONS OF SALE
1. DEFINITIONS:
1.1 "Seller" refers to Quartus Engineering Incorporated
1.2 "Buyer" refers to the purchaser of the Product
1.3 "Product" refers to the physical product that includes accompanying software
1.4 "Software" refers to any embedded or accompanying software provided with the Product
1.5 “Documentation” refers to technical documents accompanying software and/or Product
1.6 “Purchase Order or Order” refers to the entire agreement between Buyer and Seller regarding the Product to be procured
1.7 “Order Confirmation” refers to Seller’s acceptance of a Purchase Order
1.8 “Parties” refers to both Buyer and Seller
1.9 “Authorized Seller Representative” refers to an individual authorized by the Seller to act on their behalf in handling Product returns
1.10 “Return Materials Authorization” or “RMA” refers to a process and an authorization issued by Seller to facilitate a return of a Product by a Buyer
2. GENERAL PROVISIONS: Any quotation from Seller referencing these Standard Terms and Conditions of Sale, or subsequent sale of goods pursuant to said quotation, shall be governed exclusively by the terms and conditions stated herein. All additional terms proposed by Buyer are rejected unless agreed to by Seller in writing. By purchasing the product from Seller, the Buyer, irrespective of their location, agrees to comply with the terms and conditions outlined herein. In the event of ambiguity these Standard Terms and Conditions of Sale shall prevail.
3. PRODUCT DESCRIPTION: The product specifications and features are outlined in the product documentation. Seller reserves the right to modify product features or specifications without prior notice.
4. PRICES AND PAYMENT TERMS:
4.1 The prices for goods shall be those set forth in our Order Confirmation. Prices quoted are U.S. prices for U.S. consumption only. Any products that will be exported are subject to international pricing. If the products will be exported, Buyer must contact Seller to obtain an updated quote.
4.2 Unless expressly stated otherwise in the Order Confirmation, payment for Products shall be made Net 30 and in US Dollar. Prices are exclusive of taxes, impositions and other charges,
including, but not limited to, sales, use, excise, value added and similar taxes or charges imposed by any government authority. 4.3 Title to Products delivered shall remain vested in Seller and shall not pass to Buyer until the goods have been paid for in full.
4.4 If Buyer is delinquent in any payment due, a service charge (not to exceed 1.5% per month) may be charged on all past due balances, and Seller in its discretion may suspend production, institute credit hold procedures, and exercise any and all other available remedies, including requiring payment cash in advance or cash on delivery, bank guarantee, letter of credit or otherwise.
4.5 If Seller deems it necessary to refer an account to an agent or attorney for collection, all costs of collection (including reasonable attorneys’ fees) will be charged to Buyer’s account, up to the maximum allowed by law. Upon any bankruptcy, insolvency, or similar proceeding involving Buyer, Seller shall be entitled to cancel all open Order(s) and receive reimbursement for cancellation charges as provided above.
5. TERMS OF DELIVERY AND LATE DELIVERY:
5.1 Unless expressly stated otherwise in Seller’s Order Confirmation, all deliveries of goods shall be FOB: Quartus, San Diego, California in accordance with Incoterms 2010. The risk of loss or damage transfers to the Buyer upon delivery. Any resulting claims against carriers shall be the responsibility of the Buyer. Replacement of any damaged goods shall be the sole responsibility of Buyer. The delivery dates of goods shall be those set forth in the Order Confirmation.
5.2 If Seller fails to deliver goods within fourteen (14) calendar days of the agreed delivery date, Buyer may terminate the applicable Purchase Order in whole or in part (as to those goods affected by the delay) by providing written notice of termination to Seller within fourteen (14) calendar days of the expiration of the grace period. Further, Buyer may claim damages for any loss suffered as a result of the delay subject to the limitation of liability below. These shall be the Buyer’s exclusive remedies for late delivery. Seller reserves the right to make delivery in installments.
6. ACCEPTANCE OF GOODS:
6.1 By purchasing the Product, the Buyer agrees to be bound by these terms and conditions of sale.
6.2 Buyer must examine carefully and inspect the conformity of the Product. Remarks concerning shortages, excess, alteration, or apparently damaged Product must immediately be clearly indicated on the transport documents. For any defect not reasonably noticeable by Buyer upon receipt, despite a careful inspection, Buyer shall, in order for the claim to be valid, give notice in writing to Seller within five (5) days following the discovery of the defect, and no later than 30 days after delivery of the Product.
6.3 The Product may not be returned to the Seller without prior written Return Materials Authorization (RMA) approval. Upon receipt of an RMA, Buyer shall adhere to the instructions listed in Section 7. RETURNS to justify the claim and grant Seller a reasonable opportunity to inspect the Product. Buyer shall communicate to Seller any element or information necessary to verify the claim. If Buyer fails to provide Seller with a written timely notice, all Products shall be conclusively deemed accepted an any right of rejection shall be waived. 6.4 No claim will be valid once the Products have been transferred, resold to a third party or have undergone any treatment or processing. At that time, Buyer’s only recourse or remedy for non-conforming or defective Products shall be Seller’s Limited Warranty.
7. RETURNS:
7.1 Buyer must contact an Authorized Seller Representative to request a return of the Product. Upon issuance of an approved RMA, the Buyer shall adhere to the subsequent procedures for the return of designated Product.
7.2 Buyer shall diligently package the Product in strict accordance with provided instructions, ensuring the inclusion of all requisite documentation, including the RMA number, proof of purchase and pertinent product details.
7.3 Buyer shall commit to strict compliance with any specified shipping guidelines outlined in the RMA approval, utilizing the designated carrier (if required) and following provided addressing instructions. Timely shipment of the return must be within five (5) days of receipt of RMA as delays may impact the processing of the return, subject to further review.
7.4 The Buyer shall explicitly acknowledge that adherence to these procedures is indispensable for the successful processing of the return, and any failure to comply may affect the resolution and could be subject to additional terms and conditions. By engaging in a transaction with Seller, the Buyer shall explicitly accept and agree to abide by the terms and conditions set forth in the RMA process.
8. CANCELLATION OF ORDER: Products made to order per Buyer’s specifications cannot be cancelled or modified except on a basis that will assure Seller against any loss and upon Seller accepting such cancellation in writing. Orders approved and accepted by the Seller cannot be cancelled by the Buyer unless Seller agrees otherwise in writing and so long as Buyer indemnifies Seller in full against all loss (including loss of profit), costs, (including the cost of all labor and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation. The minimum restocking fee for such cancellation shall be 50% of the total value of the Product(s) ordered.
9. PACKING: Method of packing for shipment will be Seller’s choice, unless specified by Buyer at time of Order. The cost of special crating or packing will be to the Buyer’s account.
10. CHANGES: Any changes requested by Buyer prior to Seller’s purchase order acceptance must be submitted in writing and are subject to written acceptance by an Authorized Seller Representative. Costs and/or delays resulting from such changes will be solely determined by Seller and binding upon Buyer. Seller assumes no responsibility for any changes in design or specifications unless receipt of such changes is confirmed by Seller prior to beginning the manufacture of the product. Any price variation resulting from such changes shall become effective immediately upon acceptance of such changes. Except as otherwise provided herein,
this Purchase Order may not be amended, modified, supplemented, cancelled or discharged, except in writing signed by Authorized Seller Representative and Buyer.
11. LIMITED WARRANTY:
11.1 Seller warrants to Buyer that under normal use Products (excluding any Excluded Products (such as those defined in subsections (i), (ii), (iii) and (iv) of Section 11.3) shall, at the time of delivery to Buyer and for a period of twelve (12) months thereafter, be free from defects in material or workmanship and shall substantial conform to Seller’s specifications for such Products, or such other specifications as Seller as agreed to in writing, as applicable.
11.2 THIS IS A LIMITED WARRANTY AND IS IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, STATUTORY OR BY OPERATION OF LAW OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE. THIS LIMITED WARRANTY SHALL NOT APPLY IF THE PRODUCTS HAVE BEEN REPAIRED OR ALTERED, EXCEPT BY SELLER, OR IF IT HAS BEEN SUBJECTED TO MISUSE, NEGLIGENCE, OR ACCIDENT.
11.3 The foregoing warranty does not apply to any Product: (i) subjected to misuse, neglect, abuse, improper installation (unless performed by Seller), lack of suitable installation environment, repair and alteration by Buyer or any third party and without previous written approval of Seller, damage by rain, fire, casualty, computer viruses, failure of electrical power, or by accident or negligence in use, storage, transportation or handling, (ii) used in conjunction with physically installed on, or as a component of equipment, hardware, software, components, services, accessories, attachments, interfaces, or consumables not supplied or specified by Seller (iii) beta testing Products, and/or (iv) samples of newly developed Products. These Excluded Products shall be AS IS WITHOUT WARRANTY OF ANY KIND.
11.4 In the event that any defect in the material or workmanship of a Product arises during the Warranty Period, Seller’s sole and exclusive liability shall be, at Seller’s option, to repair or replace the nonconforming or defective Products, returned by Buyer during the Warranty Period, provided that (i) Seller is notified in writing by Buyer within five (5) days after discover of defects or failure to meet Seller’s specifications; (ii) after Seller’s authorization to do so, Buyer has returned the nonconforming Products to Seller, insured, freights prepaid, accompanied by Seller’s correctly completed standard Return Material Authorization in accordance with Section 7. RETURNS; and (iii) Seller has determined to its satisfaction that the products are non-conforming and that such a nonconformity has not been caused by misuse, neglect, abuse, improper installation or application, repair, alteration, damage by rain, fire or casualty or by accident or negligence in use, storage, transportation or handling. Seller shall have no liability to Buyer to the extent such failure is caused by non-compatibility with other components used by Buyer.
11.5 Buyer may ship Products under the Warranty Period to Seller’s designated facility so long as the returned Product is in proper and undamaged original packaging with the RMA number clearly stated on the outside of the container. Seller will have no warranty obligation for unauthorized returns or returns that fail to comply with the foregoing requirements and will be subject to reshipment to Buyer at its sole cost and expense and all risk of loss for unauthorized returns
shall be borne by Buyer. Buyer shall pay for returned Products that are not found to be defective or non-conforming together with the freight, testing and handling costs associated therewith. Non-warranty repairs or services shall require a Buyer’s purchase order.
12. INSTALLATION AND OTHER SERVICES: Product prices do not include any installation or other services which, if requested, will be provided at Buyer’s expense. Buyer is responsible for providing a suitable site with all required equipment and service and for taking all precautions reasonably necessary to prevent injury to Seller’s personnel at Buyer’s site. No services will be performed if Seller reasonably believes that conditions at Buyer’s site represent a safety or health hazard to Seller’s personnel. Buyer will reimburse Seller at its standard rates for any extra time, travel, or expense resulting from absence or inadequacy of rescheduling arrangements or delay or prolongation of installation caused by Buyer.
13. REPAIR AND MAINTENANCE SERVICES: After the warranty period, repair services are available at prevailing cost. Maintenance services may be provided based on the nature of the request.
14. SOFTWARE LICENSE TERMS:
14.1 Software updates will be free of charge for a period of twenty-four (24) months from the date of purchase. Software updates refer to minor changes, improvements, or fixes made to a software application to address bugs, security vulnerabilities, or to enhance performance.
14.2 Software upgrades will be free of charge for a period of twelve (12) months from the date of purchase. Software upgrades refer to substantial changes to a software application that according to Seller involve significant modifications, enhancements, or additions to its features and functionality. After this period, software upgrade services may be subject to a fee.
14.3 Buyer acknowledges that the software or firmware components and applications, if any, either available on a stand-alone basis or embedded or accompanying the Products sold hereunder (the "Software") and any accompanying documentation (the "Documentation") are licensed and not sold to Buyer.
14.4 Seller shall at all times have and retain title and full ownership of the Software and the Documentation, and Buyer shall receive no rights to the Software or the Documentation except as expressly provided herein. Unless the parties enter into a separate written license agreement, the following license terms shall apply: upon Seller's receipt of full payment for the Software, Buyer shall be entitled to use the Software and the Documentation only for its own internal use; Buyer may use the Software only in object code form, only per the Documentation, and only with the Products for which it is designed (if any); Buyer may not copy the Software or Documentation, except to make a reasonable number of backup copies of the Software and a reasonable number of copies of the Documentation to use the Software; and Buyer agrees to any shrinkwrap and/or clickwrap related to third party software which is provided to Buyer. For purposes of this Purchase Order, Software and Documentation shall be deemed to be "Products." No license to use the source code of the Software is provided hereunder.
14.5 Buyer shall not use, distribute, license, sublicense, resell, copy, make available or otherwise transfer all or any part of the Software or the Documentation other than as expressly permitted
hereunder without the prior written consent of Seller. Buyer shall not, nor shall it permit any employee or agent of Buyer to, adapt, modify, copy, reproduce, reverse engineer, decompile, decrypt or disassemble the Software in any way without the prior written consent of Seller. Except as expressly set forth herein, Seller shall have no obligations to Buyer whatsoever with regard to the Software. Without limiting the generality of the foregoing, Seller has no obligation to develop updates or modifications to the Software or develop or provide Software development tools to Buyer.
15. INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT:
15.1 If any goods delivered hereunder are held to infringe a third party’s patent, utility model, design, trademark or other intellectual property right and the Buyer is enjoined from using same, Seller will, at Seller’s option and expense, (a) procure for Buyer the right to continue using the goods; (b) replace the goods with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function; (c) modify the goods to make them non-infringing; or (d) refund the purchase price of the goods less a reasonable amount for usage. The foregoing states our sole liability for intellectual property rights infringement.
16. LIMITATION OF LIABILITY:
16.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO: LOST PROFITS, ANTICIPATED OR LOST REVENUE, LOSS OF PRODUCT, LOSS OF USE OF ANY SYSTEMS, NETWORKS, RENTAL EXPENSES, INCOME, FINANCING, BUSINESS AND REPUTATION, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OR ANY THIRD PARTY CLAIM), WHETHER ARISING IN NEGLIGENCE, TORT, STATUTE, EQUITY OR COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY EVEN IF THE PARTY HAS BEEN ADVISED OF THOSE POSSIBILITY OF THOSE DAMAGES.
16.2 Buyer’s recovery from Seller for any claim shall not exceed the purchase price for the goods giving rise to such claim irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise. Seller shall not be liable for any claims based on Seller compliance with Buyer’s designs, specifications or instructions or repair, modification, or alteration of any goods by parties other than the Seller’s or use in combination with other goods.
16.3 The liability of Seller on any claim, including those for defective materials and workmanship, is limited to refund of purchase price, repair, or replacement of defective materials or such combination as Seller may elect. Buyer assumes all risk and liability for loss, damage, or injury to persons or property of Buyer or others arising out of the use of the goods sold hereunder.
16.4 Buyer does hereby expressly release the Seller from any and all claims, other than pursuant to the warranties herein made, arising in whole or in part out of the goods manufactured pursuant hereto, whether such claims are based on negligence, breach of warranty, strict tort liability, or otherwise founded.
17. GOVERNMENTAL REGULATIONS: Seller makes no warranty whatsoever that the goods and installation of said goods when placed in operation and use by Buyer will comply with pertinent national, state and local health and safety laws, including but not in limitation, the Federal Occupational Safety and Health Act (OSHA) and the regulations, standard compliance therewith and for any damages, penalties, or fines arising from non-compliance; provided, however, that Seller shall cooperate with Buyer in the design, manufacture or purchase of safety features or devices which Buyer deems to be necessary under OSHA or any other statute, ordinance or governmental regulation.
18. COMPLIANCE TERMS: If the products are purchased at U.S. prices but the end destination is outside of the U.S., all product warranties will be null and void in Seller's sole discretion. By issuing a Purchase Order in connection with this quotation, Buyer certifies that if products purchased pursuant to such Purchase Order are directly or indirectly exported, re-exported or transferred, Buyer shall comply with all applicable global export control laws and regulations, including but not limited to regulations implemented under the Wassenaar Arrangement or other multilateral export control regimes, the U.S. Export Administration Regulations (EAR), and U.S. International Traffic in Arms Regulations (ITAR). In particular, Buyer declares that it will not: (1) use the products for any end-use activities restricted under Part 744 of the EAR or any equivalent end use based restrictions (to the extent applicable to the country or end user); or (2) export, re-export or transfer the products to any person, entity, and/or country, in each case without first obtaining written authorization from the applicable government agency (if required).
19. FORCE MAJEURE: Either party shall be excused from any delay or failure in performance if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, strikes, lock-outs or other serious labor disputes, riots, earthquakes, floods, explosions or other acts of nature. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the parties’ respective obligations shall resume. In the event the interruption of the excused party’s obligations continues for a period in excess of thirty calendar days, either party shall have the right to terminate the applicable contract(s) of sale, without liability, upon thirty calendar days’ prior written notice to the other party.
20. GOVERNING LAW/JURISDICTION: This Purchase Order and the acceptance of it shall be a contract made in the State of California and governed by the laws thereof, without giving effect to conflicts of law principles, and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods. The Parties shall attempt to resolve any disputes in connection with this agreement amicably and in good faith, and may use a Mediator agreed upon by all Parties. Any suits, actions or proceedings that may be instituted by either party against the other shall be instituted exclusively before the competent courts of the State of California.
21. MISCELLANEOUS:
21.1 Should any provision of these Terms and Conditions of Sale be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the parties and enforced as
modified. All other terms and conditions of these Terms and Conditions of Sale shall remain in full force and effect and shall be construed in accordance with the modified provision. 21.2 Buyer may not assign this Order related thereto and Buyer may not delegate its duties under this Order without Seller’s prior written consent which shall not be unreasonably withheld.
21.3 This agreement constitutes the entire understanding between the parties.
21.4 Notwithstanding any conflicting terms and conditions that may be presented, these Standard Terms and Conditions of Sale shall prevail and take precedence in all contractual matters.
Revision: A
Date: December 13, 2023