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The Artesyn Embedded Technologies company that accepts Buyer’s order
for Goods is herein referred to as the “Seller” and the person or entity
purchasing goods or services (“Goods”) and/or licensing software and/or
firmware which are preloaded, or to be loaded into Goods (“Software”) from
Seller is referred to as the “Buyer.” These Terms and Conditions, together
with any price list or schedule, quotation, acknowledgment or invoice from
Seller relevant to the sale of the Goods and licensing of Software and all
documents incorporated by specific reference herein or therein constitute
the complete and exclusive statement of the terms governing the sale of
Goods and license of Software by Seller to Buyer. Seller’s acceptance of
Buyer’s purchase order is expressly conditional on Buyer’s assent to all
of Seller’s terms and conditions of sale, including terms and conditions
that are different from or additional to the terms and conditions of Buyer’s
purchase order, and Seller expressly rejects any additional or conflicting
terms specified in Buyer’s purchase order or any other document provided
by Buyer. Buyer’s acceptance of the Goods and/or Software will manifest
Buyer’s assent to these Terms and Conditions. Seller reserves the right in its
sole discretion to refuse orders. Notwithstanding anything to the contrary,
in the event that the provisions of these Terms and Conditions conflict
with the provisions of an effective agreement signed by a duly authorized
representative of both parties (“Effective Agreement”) that applies to the
transaction(s) contemplated herein, the Effective Agreement shall control.
1. PRICES: Unless otherwise specified in writing by Seller, the price
quoted or specified by Seller for the Goods and/or Software shall remain in
effect for 30 days after the date of Seller’s quotation or acknowledgment
of Buyer’s order for the Goods and/or Software, whichever occurs first,
provided an unconditional authorization from Buyer for the shipment of
the Goods and/or Software is received and accepted by Seller within such
time period. If such authorization is not received by Seller within such 30
day period, Seller shall have the right to change the price and other terms
applicable to the Goods and/or Software to Seller’s standard price and
terms for the Goods and/or Software at the time of shipment. All prices and
licensee fees are exclusive of taxes, transportation and insurance, which are
to be borne by Buyer.
2. TAXES: Any current or future tax or governmental charge (or increase
in same) affecting Seller’s costs of production, sale, or shipment, or which
Seller is otherwise required to pay or collect in connection with the sale,
purchase, delivery, storage, processing, use or consumption of Goods and/
or Software, shall be for Buyer’s account and shall be added to the price or
billed to Buyer separately, at Seller’s election.
3. TERMS OF PAYMENT: Unless otherwise specified by Seller, terms are
net 30 days from date of Seller’s invoice by bank wire transfer or automated
clearing house in U.S. currency. Seller shall have the right, among other
remedies, either to terminate this agreement and/or any other agreements
between Seller and Buyer, or to suspend further performance under this
and/or other agreements with Buyer in the event Buyer fails to make any
payment when due, which other agreements Buyer and Seller hereby amend
accordingly. Buyer shall be liable for all expenses, including attorneys’ fees,
relating to the collection of past due amounts. If any payment owed to Seller
is not paid when due, it shall bear interest, at a rate to be determined by
Seller, which shall not exceed the maximum rate permitted by law, from
the date on which it is due until it is paid. Any payment due to either party
under this agreement shall be made in full without any set-off, restriction,
condition deduction or withholding for or on account of any counterclaim.
Should Buyer’s financial responsibility become unsatisfactory to Seller,
Seller may require Buyer to immediately pay in full all amounts due to
Seller, and cash payments or security satisfactory to Seller may be required
by Seller for future deliveries of the Goods and/or Software. If such cash
payment or security is not provided, in addition to Seller’s other rights and
remedies, Seller may discontinue deliveries.
4. SHIPMENT AND DELIVERY: While Seller will use commercially
reasonable efforts to maintain the delivery date(s) acknowledged or quoted
by Seller, all shipping dates are approximate and not guaranteed. Seller
reserves the right to make partial shipments. Seller, at its option, shall not
be bound to tender delivery of any Goods and/or Software for which Buyer
has not provided shipping instructions and other required information. If the
shipment of the Goods and/or Software is postponed or delayed by Buyer
for any reason, Buyer agrees to reimburse Seller for any and all storage
costs and other additional expenses resulting therefrom. Risk of loss and
legal title to the Goods shall transfer from Seller to Buyer upon delivery to
and receipt by carrier at Seller’s shipping point. As permitted by local law,
as collateral security for the payment of the purchase price of the Goods,
Buyer hereby grants to Seller a lien on and security interest in and to all of
the right, title and interest of Buyer in, to and under the Goods, wherever
located, and whether now existing or hereafter arising or acquired from time
to time, and in all accessions thereto and replacements or modifications
thereof, as well as all proceeds (including insurance proceeds) of the
foregoing. The security interest granted under this provision constitutes a
purchase money security interest under applicable law. Unless otherwise
specified by Seller, all shipments are F.C.A. Seller’s shipping point
(Incoterms 2010). Any claims for shortages or damages suffered in transit
are the responsibility of Buyer and shall be submitted by Buyer directly to
the carrier. Shortages or damages must be identified and signed for at the
time of delivery.
Buyer shall inspect Goods delivered to it by Seller immediately upon receipt,
and, any course of dealing to the contrary notwithstanding, failure of Buyer
to give Seller notice of any claim within 10 days after receipt of such Goods
shall be an unqualified acceptance of such Goods.
5. LIMITED WARRANTY: Subject to the limitations of Section 6 and
unless otherwise specified by Seller in writing, Seller warrants that the
Goods manufactured by Seller will be free from defects in material and
workmanship and substantially meet Seller’s published specifications at the
time of shipment under normal use and regular service and maintenance
for (a) the period specified in Seller’s then current product data sheets from
the date of manufacture by Seller in the case of standard Embedded Power
Goods, (b) 2 years from initial shipment in the case of standard Embedded
Computing Goods, and (c) the period, if any, specified by Seller in writing
in the case of custom Embedded Power Goods and custom Embedded
Computing Goods. Services will be performed in a professional manner and
in accordance with industry standards. Unless otherwise stated in writing
in a separate Software license agreement or otherwise, Seller makes no
warranty as to any Goods/Software. THE WARRANTIES SET FORTH IN
SECTIONS 5 AND 7 ARE THE SOLE AND EXCLUSIVE WARRANTIES
GIVEN BY SELLER WITH RESPECT TO THE GOODS AND SOFTWARE
AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR
OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT
THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN
SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR
NOT SELLER’S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR
MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE.
These warranties do not extend to any losses or damages due to misuse,
accident, abuse, neglect, negligence (other than Seller’s), unauthorized
modification or alteration, use beyond rated capacity, unsuitable power
sources or environmental conditions, improper installation, repair, handling,
maintenance or application or any other cause not the fault of Seller. To the
extent that Buyer or its agents have supplied specifications, information,
representation of operating conditions or other data to Seller in the selection
or design of the Goods and the preparation of Seller’s quotation, and in the
event that actual operating conditions or other conditions differ from those
represented by Buyer, any warranties or other provisions contained herein
that are affected by such conditions shall be null and void.
If within 30 days after Buyer’s discovery of any warranty defects within
the warranty period, Buyer notifies Seller thereof in writing, Seller shall,
at its option and as Buyer’s exclusive remedy, repair, correct or replace
per its return policy, or refund the purchase price for, that portion of the
Goods found by Seller to be defective. Failure by Buyer to give such written
notice within the applicable time period shall be deemed an absolute and
unconditional waiver of Buyer’s claim for such defects. Advance written
permission to return Goods must be obtained from Seller. Such Goods must
be shipped transportation prepaid to Seller. Returns made without proper
written permission will not be accepted by Seller. Seller reserves the right
to inspect Goods prior to authorizing return. Goods repaired or replaced
during the warranty period shall be covered by the foregoing warranties for
the remainder of the original warranty period or 90 days from the date of
shipment, whichever is longer.
Buyer assumes all other responsibility for any loss, damage, or injury to
Terms and Conditions of Sale