1. OFFER, CONFIRMATION
OR AGREEMENT
These terms and conditions of
commercial sale of Awt technologies (the “Terms and Conditions”) apply to and
from an integral part of all quotations and offers made by Awt technologies
(“Awt”), all acceptances, acknowledgements and confirmations by Awt of any
orders by Buyer and any agreements (“Agreements”) regarding the sale by Awt
and purchase by Buyer of goods and services (“Products”), unless and to the
extent Awt explicitly agrees otherwise.
Any terms and conditions set forth
on any document or documents issued by Buyer either before or after issuance
of any document by Awt setting forth or referring to these Terms and
Conditions are hereby explicitly rejected and disregarded by Awt, and any
such terms shall be wholly inapplicable to any sale made by Awt to Buyer and
shall not be binding in any way on Awt.
Awt´s offers are open for
acceptance within the period stated by Awt in the offer or, when no period is
stated, within thirty (30) days from the date of the offer, but any offer may
be withdrawn or revoked by Awt at any time prior to the receipt by Awt of
Buyer’s acceptance thereof.
2. PRICING
Prices in any offer, confirmation
or Agreement are in US Dollars , based on delivery Ex-Works (INCOTERMS latest
version) Awt’s manufacturing facility or other facility designated by Awt,
unless agreed otherwise in writing between Buyer and Awt and do not include
any taxes, duties or similar levies, now or hereafter enacted, applicable to
the Products. Awt will add taxes, duties and similar levies to the
sales price where Awt is required or enabled by law to pay or collect them
and these will be paid by Buyer together with the price.
3. PAYMENT
(a) Unless agreed otherwise
between Awt and Buyer in writing, Awt may invoice Buyer for the price of the
Products delivered upon delivery of the Products in accordance with the
applicable INCOTERM. Net payment is due within thirty (30) days of date of
invoice unless agreed otherwise between Awt and Buyer in writing. All
payments shall be made to the designated Awt address. If deliveries are made
in instalments, each instalment may be separately invoiced and shall be paid
for when due. No discount is allowed for early payment unless agreed to in
writing by Awt. In addition to any other rights and remedies Awt may have
under applicable law, interest will accrue on all late payments at the rate
of eighteen percent (18%) per annum or the applicable statutory rate,
whichever is higher and to the extent permitted by applicable law, from the due
date until payment in full.
(b) All deliveries of
Products agreed to by Awt shall at all times be subject to credit approval of
Awt. If, in Awt’s judgment, Buyer’s financial condition at any time does not
justify production or delivery of Products on the above payment terms, Awt
may require full or partial payment in advance or other payment terms as a
condition to delivery, and Awt may suspend, delay or cancel any credit,
delivery or any other performance by Awt.
(c) In the event of any
default by Buyer in the payment of any fees or charges due, or any other
default by Buyer, Awt shall have the right to refuse performance and/or
delivery of any Products until payments are brought current and Awt may
suspend, delay or cancel any credit, delivery or any other performance by
Awt. Such right shall be in addition to, and not in lieu of, any other rights
and remedies available under the Agreement or at law.
4. DELIVERY AND QUANTITIES
(a) Products shall be
delivered Ex-Works (INCOTERMS latest version) as designated by Awt, unless
otherwise agreed in writing. Delivery dates communicated or acknowledged by
Awt are approximate only, and Awt shall not be liable for, nor shall Awt be
in breach of its obligations to Buyer, for any delivery made within a
reasonable time before or after the communicated delivery date. Awt agrees to
use commercially reasonable efforts to meet the delivery dates communicated
or acknowledged by it on the condition that Buyer provides all necessary
order and delivery information sufficiently prior to the such delivery date.
(b) Buyer will give Awt
written notice of failure to deliver and thirty (30) days within which to
cure. If Awt does not deliver within such thirty (30) day period, Buyer's
sole and exclusive remedy is to cancel the affected and undelivered portions
of the Agreement.
(c) Title in the Products
shall pass to Buyer upon payment in full of the purchase price in respect
thereof. Risk of loss in the Products shall pass to Buyer upon Awt's delivery
in accordance with the applicable INCOTERMS.
(d) If Buyer fails to take
delivery of Products ordered, then Awt may deliver the Products in
consignment at Buyer’s cost.
(e) In the event Awt’
production is curtailed for any reason, Awt shall have the right to allocate
its available production and Products, in its sole discretion, among its
various customers and as a result may sell and deliver to Buyer fewer
Products than specified in the Agreement, as the case may be.
5. FORCE MAJEURE
Awt shall not be liable for any
failure or delay in performance if:
(i) such failure or delay results from interruptions in the Product
manufacturing process; or
(ii) such failure or delay is caused by Force Majeure as defined below
or by law.
In case of such a failure as set
forth above, the performance of the relevant part(s) of the Agreement will be
suspended for the period such failure continues, without Awt being
responsible or liable to Buyer for any damage resulting there from.
The expression "Force
Majeure" shall mean and include any circumstances or occurrences beyond
Awt' reasonable control - whether or not foreseeable at the time of the
Agreement - as a result of which Awt cannot reasonably be required to execute
its obligations including force majeure and/or default by one of Awt’
suppliers. In the event that the Force Majeure extends for a period of three
(3) consecutive months (or in the event that the delay is reasonably expected
by Awt to extend for a period of three (3) consecutive months), Awt shall be
entitled to cancel all or any part of the Agreement without any liability
towards Buyer.
6. RIGHTS IN SOFTWARE,
DOCUMENTATION AND INTELLECTUAL PROPERTY
Subject to the provisions set
forth herein, the sale by Awt of a Product implies the non-exclusive and
non-transferable limited license to Buyer under any of Awt’ and/or its
affiliates’ intellectual property rights (“Awt’ IPR”) in the territory to use
and resell Products as sold by Awt to Buyer.
To the extent that software and/or documentation is embedded in or delivered
with a Product, the sale of such Product shall not constitute the transfer of
ownership rights or title in such software and/or documentation to Buyer,
but, subject to the provisions set forth herein, shall only imply a
non-exclusive and non-transferable license to Buyer under Awt intellectual
property rights to use such software and/or documentation in conjunction with
and as embedded in or delivered with the Products as supplied by Awt in the
territory.
Buyer shall not: (a) modify,
adapt, alter, translate, or create derivative works from any software
residing in or provided by Awt in conjunction with any Products; (b) assign,
sublicense, lease, rent, loan, transfer, disclose, or otherwise make
available such software; (c) merge or incorporate such software with or into
any other software; or (d) reverse assemble, decompile, disassemble, or
otherwise attempt to derive the source code for such software without written
authorization from Awt except as explicitly allowed under applicable law.
Buyer shall reproduce, without any amendments or changes thereto, any
proprietary rights legends of Awt and/or its affiliates or its third party
suppliers in any software or documentation provided by Awt. License terms of
third parties may apply.
7. LIMITED WARRANTY AND DISCLAIMER
(a) Awt warrants that under
normal use in accordance with the applicable user manual the Products,
(excluding any software that is not embedded in a Product by Awt) shall, at
the time of delivery to Buyer and for a period of twelve (12) months from the
date of delivery (or such other period as may be agreed upon in writing by
the parties), be free from defects in material or workmanship and shall
substantially conform to Awt’ specifications for such Product, or such other
specifications as Awt has agreed to in writing, as applicable. Awt’ sole and
exclusive obligation, and Buyer’s sole and exclusive right, with respect to
claims under this warranty shall be limited, at Awt’ option, either to the
replacement or repair of a defective or non-conforming Product or to an appropriate
credit for the purchase price thereof. Awt will have a reasonable time to
repair, replace or credit. The non-conforming or defective Products shall
become Awt' property as soon as they have been replaced or credited.
(b) Buyer may ship Products
returned under warranty to Awt’ designated facility only in conformance with
Awt’ then-current return material authorization policy. Where a warranty
claim is justified, Awt will pay for freight expenses. 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.
(c) Notwithstanding the
foregoing, Awt shall have no obligations under warranty if the alleged defect
or non-conformance is found to have occurred as a result of environmental or
stress testing, misuse, use other than as set forth in the user manual,
neglect, improper installation or accident, or as a result of improper
repair, alteration, modification, storage, transportation or improper handling.
(d) The express warranty
granted above shall extend directly to Buyer and not to Buyer’s customers,
agents or representatives and is in lieu of all other warranties, whether
express or implied, including without limitation any implied warranties of fitness
for a particular purpose, merchantability, or non-infringement of
intellectual property rights. All other warranties are hereby specifically
disclaimed by Awt.
(e) Subject to the exclusions
and limitations set forth in Section 9 of the Terms and Conditions, the
foregoing states the entire liability of Awt in connection with defective or
non-conforming Products supplied hereunder.
8. INTELLECTUAL PROPERTY
RIGHTS INDEMNITY
(a) Awt shall: (i) defend any
legal proceeding brought by a third party against Buyer to the extent that
the proceeding includes a claim that any Product as furnished by Awt under an
Agreement directly infringes the claimant’s patent, copyright, trademark, or
trade secret; and (ii) hold Buyer harmless against damages and costs awarded
by final judgment in such proceeding to the extent directly and solely
attributable to such infringement.
(b) Awt shall have no
obligation or liability to Buyer under Section (a) (1) if Awt is not:
(i) promptly notified in writing of any such claim; (ii) given the sole right
to control and direct the investigation, preparation, defence and settlement
of such claim, including the selection of counsel; and (iii) given full
reasonable assistance and cooperation by Buyer in such investigation,
preparation, settlement and defence; (2) if the claim is made after a period
of three (3) years from the date of delivery of the Product.
(c) If any Product is, or in
Awt’ opinion is likely to become, the subject of a claim of infringement as
referred to under
Section 8 (a) above, Awt shall have the
right, without obligation and at its sole option, to: (i) procure for
Buyer the right to continue to use or sell the Product; (ii) provide
replacement Product, or (iii) modify the Product in such a way as to make the
modified Product non-infringing; or (iv) terminate any Agreement to the
extent related to such Product.
(d) Subject to the exclusions
and limitations set forth in Section 9 of the Terms and Conditions, the
foregoing states Awt’ entire liability and obligation to Buyer and Buyer’s
sole remedy with respect to any actual or alleged infringement of any
intellectual property rights or any other proprietary rights of any kind.
9. LIMITATION OF LIABILITY
(a) AWT SHALL NOT BE LIABLE
FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF REPUTATION, LOSS OF GOODWILL,
INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT
OF OR IN CONNECTION WITH THE AGREEMENT OR THE SALE OF ANY PRODUCTS OR
SERVICES BY AWT OR THE USE THEREOF WHETHER OR NOT SUCH DAMAGES ARE BASED ON
TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY – EVEN IF AWT HAS BEEN
ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES.
AWT’ AGGREGATE AND
CUMULATIVE LIABILITY TOWARDS BUYER UNDER ANY AGREEMENT SHALL NOT EXCEED AN
AMOUNT OF TEN PERCENT (10%) OF THE RELATED AGREEMENT.
(b) Any Buyer’s claim for damages must be brought by Buyer within ninety
(90) days of the date of the event giving rise to any such claim, and any
lawsuit relative to any such claim must be filed within one (1) year of the
date of the claim. Any claims that have been brought or filed not in
accordance with the preceding sentence are null and void.
(c) The limitations and
exclusions set forth above in this Section 9 shall apply only to the extent
permitted by applicable mandatory law.
10. CONFIDENTIALITY
Buyer acknowledges that all
technical, commercial and financial data disclosed to Buyer by Awt and/or its
affiliates is the confidential information of Awt and/or its affiliates.
Buyer shall not disclose any such confidential information to any third party
and shall not use any such confidential information for any purpose other
than as agreed by the parties and in conformance with the purchase
transaction contemplated herein.
11. EXPORT/IMPORT CONTROLS
If the delivery of Products under
the Agreement is subject to the granting of an export or import license by a
government and/or any governmental authority under any applicable law or
regulation, or otherwise restricted or prohibited due to export or import
control laws or regulations, Awt may suspend its obligations and Buyer’s
rights regarding such delivery until such license is granted or for the
duration of such restriction and/or prohibition, respectively, and Awt may
even terminate the Agreement, without incurring any liability towards Buyer.
Furthermore, if an end-user statement is required, Awt shall inform Buyer
immediately thereof and Buyer shall provide Awt with such document upon Awt’
first written request; if an import license is required, Buyer shall inform
Awt immediately thereof and Buyer shall provide Awt with such document as
soon as it is available.
By accepting Awt’ offer, entering into any Agreement and/or accepting any
Products, Buyer agrees that it will not deal with the Products and/or
documentation related thereto in violation of any applicable export or import
control laws and regulations.
12. ASSIGNMENT AND SETOFF
Buyer shall not assign any rights
or obligations under the Agreement without the prior written consent of Awt.
Buyer shall have no right to withhold or reduce any payments or to offset
existing and future claims against any payments due for Products sold under
the Agreement or under any other agreement that Buyer may have with Awt or
any of its affiliates may have and agrees to pay the amounts hereunder
regardless of any claimed offset which may be asserted by Buyer or on its
behalf.
13. GOVERNING LAW AND FORUM
All offers, confirmations and
Agreements are governed by and construed in accordance with the laws of
California, U.S.A.. All disputes arising out of or in connection with any
Agreement shall first be attempted by Buyer and Awt to be settled through
consultation and negotiation in good faith in a spirit of mutual cooperation.
All disputes which cannot be resolved amicably shall be submitted to the
exclusive jurisdiction of the Superior Court of California, County of
Ventura, provided that Awt shall always be permitted to bring any action or
proceedings against Buyer in any other court of competent jurisdiction. The
United Nations Convention on Contracts for the International Sale of Goods
shall not apply to any offer, confirmation or Agreement. Nothing in this
Section 13 shall be construed or interpreted as a limitation on either Awt’
or Buyer’s right under applicable law for injunctive or other equitable
relief or to take any action to safeguard its possibility to have recourse on
the other party.
14. BREACH AND TERMINATION
Without prejudice to any rights or
remedies AWT may have under the Agreement or at law, AWT may, by written notice
to Buyer, terminate with immediate effect the Agreement or any part thereof
without any liability whatsoever, if:
(a) Buyer violates or breaches any of the provisions of the Agreement;
(b) any proceedings in insolvency, bankruptcy (including reorganization)
liquidation or winding up are instituted against Buyer, whether filed or
instituted by Buyer, voluntary or involuntary, a trustee or receiver is
appointed over Buyer, or any assignment is made for the benefit of creditors
of Buyer.
Upon occurrence of any of the
events referred to above, all payments to be made by Buyer under the
Agreement shall become immediately due and payable.
In the event of cancellation, termination or expiration of an Agreement the
terms and conditions destined to survive such cancellation, termination or
expiration shall so survive.
15. MISCELLANEOUS
(a) In the event that any
provision(s) of these Terms and Conditions shall be held invalid or
unenforceable by a court of competent jurisdiction or by any future
legislative or administrative action, such holding or action shall not negate
the validity or enforceability of any other provisions thereof. In the event
that any provision of these Terms and Conditions shall finally be determined
to be unlawful or unenforceable, such provision shall be deemed severed from
these Terms and Conditions, but every other provision shall remain in full
force and effect, and in substitution for any such provision held unlawful or
unenforceable, there shall be substituted a provision of similar import
reflecting the original intent of the clause to the extent permissible under
applicable law.
(b) The failure on the part
of either party to exercise, or any delay in exercising, any right or remedy
arising from the Agreement shall not operate as a waiver thereof; nor shall
any single or partial exercise of any right or remedy arising there from
preclude any other or future exercise thereof or the exercise of any other
right or remedy arising from the Agreement or from any related document or by
law.
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