| 1. PRICING |
- Prices are exclusive of, and Buyer will pay, all sales, use, service, value added or like taxes, unless Buyer has provided Gamma Nu with an appropriate exemption certificate for the local jurisdiction.
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| 2. ORDER PLACEMENT |
- All orders for Products by Buyer will: (a) be placed by submission of written purchase orders (“PO”) by Buyer, referring to the Terms, and will set forth Buyers and Gamma Nu’ part numbers, description of the Products to be purchased, quantity, requested delivery dates and delivery instructions; (b) be subject to acceptance in writing within ten(10) days by Gamma Nu at its principal place of business; and (c) not be binding until the earlier of such acceptance or shipment by Gamma Nu, and, in the case of acceptance by shipment, only as to the portion of the PO actually shipped. THE TERMS WILL APPLY TO EACH PO ACCEPTED OR SHIPPED BY GAMMA NU. GAMMA NU WILL NOT BE BOUND BY THE PROVISIONS OF BUYER’S FORM OF PURCHASE ORDER OR OTHER PROPOSED AGREEMENTS, AND SUCH PROVISION WILL NOT APPLY TO ANY GAMMA NU PRODUCT NOTWITHSTANDING GAMMA NU’ ACKNOWLEDGMENT OR ACCEPTANCE OF SUCH ORDER. ALL BUYER PURCHASE ORDERS ARE EXPRESSLY CONDITIONED ON ASSENT TO THESE TERMS AND THE EXCLUSION OF ALL OTHER TERMS UNLESS OTHERWISE AGREED UPON BY GAMMA NU IN WRITING; BUYER SHALL BE DEEMED TO HAVE ASSENTED TO THE TERMS HEREOF, WHETHER OR NOT PREVIOUSLY RECEIVED, UPON PROCESSING BUYER’S ORDER. IF THE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS.
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| 3. ALL SALES FINAL |
- Unless otherwise agreed in writing by Gamma Nu, all sales are final. No returns will be accepted by Gamma Nu without a written authorization to return materials signed by Gamma Nu.
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| 4. CHANGES; CANCELLATION |
- Purchase orders are non-cancellable by Buyer upon Gamma Nu’s acceptance of Buyer’s purchase order.
- Buyer may cancel a purchase order only with Seller’s express written consent. If Seller determines that a change order is required, Seller may request that Buyer provide a revised purchase order. Any change order must be in writing and signed by duly authorized representatives of Seller and Buyer.
- Change orders will state any resulting differences in delivery schedule or price.
- All orders of NRE are non-cancellable and non- returnable
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| 5. MANUFACTURING |
- Gamma Nu reserves the right to change manufacturing locations. Buyer will be notified accordingly.
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| 6.DELIVERY AND SHIPPING |
- The promised delivery date is the best estimate possible based upon current and anticipated manufacturing capabilities of when the product will be shipped. In the event Buyer incurs actual damages due to a shipment delay, Gamma Nu shall be responsible for reimbursing Buyer for such actual damages. Time is of the essence with respect to each PO, and if delivery of items is not completed by the time set forth therein or as otherwise agreed to by Buyer and Gamma Nu, Buyer reserves the right, without liability, in addition to its other rights and remedies, to terminate the applicable PO or portion thereof by notice effective immediately as to the stated items not yet delivered, and to purchase substitute items or services elsewhere and charge Gamma Nu with any damages actually incurred. Buyer may, at its option, accept delayed deliveries from Gamma Nu without thereby waiving its right to demand strict compliance with the delivery schedule set forth herein or on the face of the applicable PO with respect to all other deliveries. Except as stated above, Gamma Nu assumes no liability for loss, damage, or consequential damages due to delivery delays
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Gamma Nu standard Incoterms are Ex Works US Warehouse. Buyer will be responsible for, and will pay all shipping, freight, import duties, VAT and insurance charges. All risk of loss of or damage to Products will pass to Buyer upon receipt and acceptance by Buyer at the place of destination. Gamma Nu will bear all risk of loss or damage in transit. Gamma Nu will procure shipping insurance covering the cost of the Products being shipped for Buyer’s benefit, the cost of which shall be passed on to Buyer free of mark-up.
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Failure of Buyer to reject any Products shipped to it by Gamma Nu within thirty (30) days after receipt thereof will constitute complete and conclusive acceptance by Buyer of such Products. All claims for shipping damage must be made with the carrier.
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| 7. FORCE MAJURE |
- Gamma Nu will not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond Gamma Nu’s control, including but not limited to acts of God, war, terror, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes (other than strikes directed at or involving Gamma Nu), or shortages of transportation, facilities, fuel, energy, labor or materials. In the event of any such delay, Gamma Nu may defer the delivery date of Products for a period at least equal to the time of such delay.
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| 8. INVOICES/PAYMENT |
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Unless otherwise agreed by Gamma Nu and the customer in writing, all payments shall be in U.S. Dollars and due within thirty (30) days from the date of the invoice. Gamma Nu shall invoice Buyer under a PO Number when the Buyer has received the Product specified on the PO. If Gamma Nu has granted credit terms to the Buyer in writing and such credit terms has not been suspended or revoked by Gamma Nu, then payment for all shipment of Products to Buyer under the Terms will be due and payable under the payment terms set forth herein. Gamma Nu reserves the right to assess late charges for overdue or late payments, at the rate of 1% to 1.5% per month or the maximum rate permitted by applicable law, whichever is higher. Gamma Nu may change a customer’s credit or payment terms or withhold shipment of a PO, if in Gamma Nu’s opinion, the Buyer’s previous payment history warrants such actions. At any time, the Customer’s credit limit may be amended or withdrawn with written notice from Gamma Nu.
- Buyer hereby grants Gamma Nu a purchase money security interest in all Products shipped on credit by Gamma Nu, and in all proceeds there from, in order to secure payment in fuII to Gamma Nu of the purchase price for such Products (and any late charges if applicable). Buyer agrees to promptly take all actions and execute all instruments requested by Gamma Nu to perfect such security interest.
- Buyer agrees to pay all costs and expenses (including without limitation court costs and reasonable attorneys’ fees) incurred by Gamma Nu in any effort to collect any indebtedness of Buyer to Gamma Nu or to enforce a granted security interest
- Buyer shall make all payments to Gamma Nu in U.S. dollars.
- All payments related to NRE, pre-production parts, tooling and mass production parts are non-refundable.
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| 9. WARRANTY |
- Gamma Nu warrants that: (a) all of its products shall be free from defects in workmanship, materials, design, and fabrication, for a period of twelve(12) months from the date of shipment of the Product to Buyer, (b) materially conform to any specifications and documentation related to such Products, (c) shall be free and clear of all liens and encumbrances, Gamma Nu hereby warranting to Buyer good and merchantable title thereto, and (d) shall be fit for the use indicated in the Buyer approved specifications and documentation. If product is found to be defective, written notice of nonconformance must be sent to Gamma Nu within twelve (12) months from date of shipment to receive an RMA number. Gamma Nu will only accept packages with an RMA number clearly labeled on the outside of the box. Any product returned must follow the RMA guidelines, be sent freight prepaid, and shipped in appropriate shipping containers to protect the product. Gamma Nu reserves the right to repair, replace or refund the purchase price of any product returned under warranty.
- The warranty does not apply to any products Gamma Nu determines to have been subject to misuse or damage from the assembly.
- In no event shall Gamma Nu be liable for any loss of anticipated profits, loss of use, or for the incidental or consequential damages. Buyer waives any right, extending beyond the foregoing warranty to claim negligence in design, material or workmanship.
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| 10. TERMINATION |
- In addition to any other rights and remedies available to it, Gamma Nu may cease deliveries of Products at any time that Buyer defaults in any undisputed payment due to Gamma Nu hereunder and such default continues un-remedied for a period of ten(10) days after receipt of written notice from Gamma Nu that such undisputed payment is late.
- In addition to any other rights and remedies available to it, either party may upon written notice to the other terminate its relationship with the other (including, without limitation, accepted PO’s that haven’t shipped) at any time in the event that (i) a party is involved in any voluntary or involuntary bankruptcy proceeding or any other proceeding concerning insolvency, dissolution, cessation of operations, or reorganization of indebtedness and the proceeding is not dismissed within sixty(60) days or (ii) a party becomes unable to pay its debts as they mature in the ordinary course of business or makes an assignment for the benefit of its creditors.
- Buyer shall have the right to terminate these Terms and/or any PO (subject to Section 3.2) for any reason upon thirty (30) days’ prior written notice. The termination of these Terms shall not automatically terminate any outstanding POs unless otherwise stated in Buyer’s termination notice.
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| 11. LIMITATION OF LIABILITY |
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NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS OR OTHERWISE, GAMMA NU WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) AMOUNTS THAT IN THE AGGREGATE ARE IN EXCESS OF THE AMOUNTS PAID TO GAMMA NU HEREUNDER OR (II) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST DATA OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, OR SERVICES. GAMMA NU SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL. THIS SECTION DOES NOT LIMIT LIABILITY FOR THIRD PARTY INTELLECTURAL PROPERTY INFRINGEMENTS OR BODILY INJURY OF A PERSON.
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| 12. INDEMNIFICATION |
- At its option, Gamma Nu will defend or settle any action brought against Buyer to the extent the action is based on claims that the Products infringe any U.S. patent or U.S. copyright, and will pay all damages and costs (including reasonable attorneys’ fees) finally awarded against Buyer on such claims; provided, however, that in lieu of providing such defense and/or payments, Gamma Nu may, at its option, either (a) procure for Buyer the right or license to continue using the Product(s) which are the subject of such infringement claim; or (b) replace or modify such Product(s) so that they become non-infringing; or (c) upon return of all infringing Products, refund to Buyer the price actually paid by Buyer for such infringing Product(s), less a reasonable amount for use, damage, or obsolescence; or (d) substitute for any infringing Product other suitable, non- infringing equipment. Gamma Nu’ obligations under this Section are expressly conditioned on Buyer’s (a) promptly notifying Gamma Nu of the existence or threat of such action, (b) granting Gamma Nu sole control over the defense and settlement of the action, and (c) providing Gamma Nu reasonable assistance in connection with such action. Notwithstanding the above, Gamma Nu will have no liability for claims based on use of Products in combination with products or as part of processes not supplied by Gamma Nu, or on any modification other than a modification by Gamma Nu.
- THE FOREGOING REPRESENTS GAMMA NU’ ENTIRE LIABILITY AND BUYER’S SOLE REMEDY WITH RESPECT TO VIOLATION OF THE PROPRIETARY RIGHTS OF ANY THIRD PARTY. NOTWITHSTANDING THE FOREGOING GAMMA NU WILL NOT BE LIABLE FOR ANY CLAIM FOR INDEMNIFICATION MADE BY BUYER MORE THAN ONE (1) YEAR AFTER PURCHASE OF THE PRODUCT BY BUYER.
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| 13. CONFIDENTIAL INFORMATION |
- Any Non-Disclosure Agreement executed between the Buyer and Gamma Nu is hereby expressly incorporated into these Terms. The Buyer agrees that all inventions, improvements, patents, copyrights, trademarks, trade secrets, or other intellectual property developed by Gamma Nu relating to the Products, shall be the property of Gamma Nu, and Buyer agrees to assign to and otherwise cooperate with Gamma Nu with respect to all such inventions, improvements, patents, copyrights, trademarks, trade secrets, or other intellectual property owned by Gamma Nu or relating to the Products to the extent necessary.
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| 14. GENERAL |
- Export Control.
Buyer shall not export or re-export, directly or indirectly, (i) any technical data received from Gamma Nu, or (ii) any Products, process, or technical data using such received technical data, to any country to which such export or re- export is restricted or prohibited by United States or other relevant laws, without obtaining prior written authorization from the relevant government authorities as required by such laws.
- Controlling Law, Jurisdiction and Attorneys' Fees.
With respect to any litigation arising out of or related to the Terms: (a) California law, excluding that body of law relating to choice of law, will exclusively govern; (b) Buyer hereby consents to exclusive jurisdiction and venue in the State Courts, California and in the U.S. Federal Courts, California; and (c) the party which substantially prevails in such litigation will be entitled to all actual attorney's fees and costs and need not bring a suit to final judgment to substantially prevail.
- Complete Agreement: Amendment.
The Terms, as Implemented by, is the sole and complete statement of obligations of the parties and supersedes all prior oral and written and all contemporaneous oral understandings, negotiation, commitments, and proposals. Any changes hereto must be made in writing and signed by both parties.
- No Waiver
No delay or failure by either party to exercise or enforce at any time, any right or provision of the Terms shall be considered a waiver thereof or of such party's right thereafter to exercise or enforce each and every right and provision under the Terms. A waiver to be valid shall be in writing but need not be supported by consideration.
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