General Terms and Conditions of Sale
- General. All reference to “APCT” shall mean APCT, Inc., acting through the business operation or affiliate whose address is set forth on the Quotation. References to “Terms” or “Terms and Conditions” shall mean any additional terms and conditions specified in the quotation issued by APCT to Customer (the “Quotation), together with these General Terms and Conditions of Sale.
- Prices. Unless otherwise stated, all prices are quoted in U.S. currency. APCT prices are exclusive of taxes, shipping, and insurance.
- Quotations. A Quotation shall be valid for thirty (30) days from the date of issuance unless it specifically states otherwise.
- Purchase Orders. Customer’s written purchase order issued in response to a Quotation shall specify the quotation number, product, part number, and quantities of each product ordered and extended pricing for each, as specified in the Quotation, and the requested shipping dates, shipping destinations, and invoice point. A binding agreement obligating APCT to perform pursuant to the Quotation (the “Agreement”) shall arise only upon APCT written acknowledgement of Customer’s order, which acknowledgement is expressly made conditional upon Customer’s assent to the Terms and Conditions. In the absence of objection as provided below, Customer’s submission of a purchase order in response to any Quotation shall constitute Customer’s acceptance of the Terms to the exclusion of any other terms or conditions appearing on or incorporated in or by reference into such purchase order, or in any other Customer document relating to the Quotation, even if the purchase order or other document has been signed or acknowledged by a APCT representative. If Customer objects to any of the Terms, such objection must be in writing and received by APCT prior to commencement of performance by APCT. Customer’s consent to the commencement of performance prior to the delivery of such written objection shall be deemed acceptance of the Terms.
- Scheduling of Shipments. Except as provided below, shipments shall be scheduled by APCT based on the estimated dates set forth in Quotation. If Customer requests in its purchase order that products be shipped according to a specific shipping schedule, then subject to production scheduling considerations and shipping constraints, APCT will use commercially reasonable efforts to accommodate Customer’s request. However, a request that products be shipped later than twelve (12) months after the date of the order will not be honored. If Customer’s request is granted, APCT will issue a written acknowledgement indicating the estimated shipping dates that have been scheduled in light of the request.
- Customer Documentation Obligations and Representations. Customer is responsible for the timely submission of all drawings, designs, specifications, processes, testing or other procedures and artwork (“Documentation”) necessary for APCT to manufacture the products within its established production schedule. Customer warrants and represents that the products to be produces by APCT do not infringe any patent, trademark, or copyright, that it has the right to grant the licenses required for APCT performance hereunder and all the Documentation provided to APCT with respect to the product is accurate, current and complete, and sufficient for APCT timely manufacture of same. Customer acknowledges that delivery may be adversely affected by Customer’s delay in the timely provision of consigned parts, test equipment or procedures, Documentation approvals, interruption of production, or other Customer acts or omissions. If APCT’ scheduled production is interrupted due to Customer’s act or omissions, Customer shall be responsible for any increased costs incurred by APCT.
- Rescheduling and Cancellation. Once a shipment has been scheduled by APCT, it shall not be re-scheduled for Customer’s convenience in the absence of a written Customer request, approved in writing by APCT in its sole discretion, and Customer’s agreement to pay the re-scheduling fees specified by APCT in the response to Customer’s re-scheduling request. An order may not be cancelled unilaterally by Customer. If Customer submits a written request to cancel APCT agrees to the request, Customer shall pay APCT a Cancellation Fee comprised of the following: (a) the contract price of all product which has been completed prior to cancellation; (b) the cost to APCT of material or work in process on the date of the cancellation, plus a reasonable administrative fee and profit on such costs; and (c) APCT’ reasonable and necessary expenses incurred directly incident to the cancellation.
- Shipping and Delivery. APCT will use commercially reasonable efforts to ship on or before the estimated shipping dates reflected in APCT’ acknowledgement, except that APCT will not ship before an estimated shipping date if Customer’s purchase order so instructs. APCT shall not, in any event, be liable for any delay or failure to deliver resulting from the circumstances which are beyond APCT’ reasonable control or which would cause APCT to incur unreasonable expenses in order to avoid such delay or to effect such delivery.
Shipping terms for delivery within the United States shall be FOB APCT’ shipping dock. In the absence of specific written instructions from Customer, APCT will select the carrier, but APCT shall not thereby assume any liability in connection with the shipment. Products will be shipped within the United States as Freight Prepaid & Add, and freight charges and, if requested by Customer, insurance charges, will be shown as separate items on the invoice and shall be paid by Customer. Products shipped to or from outside the United States shall be shipped Freight Collect.
- Export Restrictions. Customer represents and warrants that it shall neither export nor re-export, directly or indirectly, and product purchased under the Agreement, or the direct product that includes a APCT product, to any country or to any foreign person to which such export or re-export is restricted by United States law or regulation without the prior authorization. If required, of the Office of Export Administration, Department of Commerce or Office of Munitions Control, Department of State, Washington, D.C. or their successor regulatory organizations. Customer shall indemnify and hold harmless APCT and its successors and assigns and its respective officers, directors, shareholders, employees and agents, against, and in respect of, any and all damages, claims, losses, liabilities and expenses, including, without limitation, reasonable legal, accounting and other expenses, which may arise out of any misrepresentation or other breach or violation of this provision by Customer.
- Title, Risk of Loss, and Security Interest. Title and risk of loss for all products shall pass to Customer upon tender of the products by APCT to the carrier for shipment. APCT reserves a security interest in each product shipped until the entire amount due in respect of the products has been paid. Customer agrees to cooperate with APCT and promptly execute and deliver, upon APCT’ request, all documentation reasonably necessary to perfect APCT’ security Interest.
- Taxes. All sales, use, excise, privilege, VAT, impost, assessment or similar taxes or charges imposed on APCT or which APCT has a duty to collect in connection with the sale, delivery, or use of any product will appear as separate items on the invoice and will be paid by Customer unless a valid exemption certification is applicable and presented by Customer to APCT.
- Invoices and Payments. APCT shall submit an invoice to Customer when the products are shipped, or upon such other progress billing interval as specified in APCT’ Quotation. APCT shall submit an invoice to Customer for any rescheduling or cancellation charge when such charge is assessed. Restrictive endorsements or other statements on checks accepted by APCT will not apply. Customer shall pay interest on any undisputed amounts that are more than thirty (30) days overdue and payable to APCT under this Agreement. Interest shall accrue from the date an amount becomes due to the date payment is actually received by APCT, and shall be at the lesser of the highest rate allowed by applicable law or 1-1/2% per month. Subject to APCT’ credit approval, payment terms are cash upon delivery or, at the option of APCT, net thirty (30) days from the date of the invoice. All payments shall be in the United States currency, and Customer’s liability to make payments then due to shall survive the termination or expiration of the Agreement.
APCT retains the right to change its credit terms at any time upon notice to Customer when, in APCT’ opinion, Customer’s financial condition or record of payment so warrants. Should Customer become delinquent in the payment of any amount under this Agreement, APCT, at its option and upon notice to Customer, may suspend performance under any outstanding order, and such suspension shall not constitute a breach of APCT’ obligations.
- Price Changes. The price or products may be increased by APCT if (a) the market price of fuels, materials, raw materials, equipment, labor and other production costs increase beyond normal variations in pricing and (b) the parties agree to the increase after good faith negotiation. If the parties are unable to agree on increased pricing within a reasonable time, APCT may terminate this Agreement for its convenience upon notice to Customer, and shall have no further la ability under this Agreement except for any liabilities which have been incurred prior to termination.
- Limited Warranty. APCT warrants to Customer only that for one (1) year after the initial shipment of ordered products (the “Warranty Period”), the products will be free from defects in materials and will conform, at the time of manufacture, in all material respects, to (a) industry-wide workmanship standards applicable to the products and (b) Customer’s applicable specifications which have been expressly accepted in writing by APCT. Product defects subject to this limited warranty shall include electrical characteristic defects only if, and to the extend that, APCT is expressly obligated to perform continuity testing prior to shipment with respect to the products.
APCT with either repair or replace, in its sole discretion, any product containing a defect caused by a breach of this limited warranty (a “Defect”) if, within the Warranty Period, or no later than thirty (30) days after Customer initially learns of the Defect, whichever event is earlier, (i) APCT receives notice of such Defect and (ii) the product with the claimed Defect is received by APCT for warranty claim determination. Returns under this limited warranty shall be made at Customer’s risk and expense in accordance with APCT’ standard return material authorization process and procedure (“RMA”), shall include the APCT-assigned RMA number on the delivery packaging and shipping documents, and shall be accompanied by all applicable test, acceptance or other documentation relevant to the claimed Defect. APCT will analyze the returned product and documentation and if APCT determines that a Defect existed during the Warranty Period, APCT will reimburse Customer for the reasonable costs of returning the product to APCT, and will repair or replace the product and deliver to Customer the repaired product or its replacement, as the case shall be, at APCT’ sole risk and expense, If no Defect is found, Customer shall reimburse APCT for all costs, fees and expenses incurred in analyzing the product and, if requested by Customer, the repair or replacement and delivery of the repaired or replaced product to Customer. Customer shall cooperate with APCT in resolving the claim by providing such additional documentation and other information as APCT may request from time to time.
This limited warranty shall not apply to any product defect, failure, or damage caused by improper use or improper or inadequate maintenance and care, as determined by APCT, including, without limitation, any product subjected to (1) testing for other than specified electrical characteristics, (2) operating and/or environmental conditions in excess of the maximum values established by applicable specifications, standards or APCT product information, (3) external or environmental factors after shipment from APCT, (4) follow-on handling, processing, or manufacturing of products after shipment of the product from APCT, (5) repair, attempted repair, modification, or alteration of the product by a party other than APCT, or (6) mishandling, accident, misuse, neglect, alteration, damage, assembly, processing or any other inappropriate or unauthorized action or inaction that alters physical or electrical properties. This warranty shall not apply to any defect in the product arising from any drawing, design, specification, process, testing or other procedure, adjustment or modification supplied and/or approved by Customer.
THE FOREGOING CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF APCT’ LIMITED WARRANTY AS PROVIDED IN THIS SECTION, AND IS IN LIEU OF, AND APCT EXPRESSLY DISCLAIMS AND CUSTOMER EXPRESSLY WAIVES, ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING BY COURSE OF DEALING OR PERFORMANCE, CUSTOM, USAGE IN THE TRADE OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN STATEMENT BY APCT OR ITS AGENTS OR EMPLOYEES SHALL CONSTITUTE OR CREATE A WARRANTY OR EXPAND THE SCOPE OF ANY WARRANTY UNDER THIS AGREEMENT
- Tooling. All tooling materials, including computer programs or data provided by Customer, are the property of Customer and shall be used by APCT at Customer’s risk. All such materials will be returned to Customer upon request at the earlier of the conclusion of performance or termination of this Agreement.
- Infringement. Customer warrants that the manufacture, use, or sale of products in accordance with the designs (including without limitation, product specifications and/or drawings or any part thereof) provided by Customer under this Agreement will not infringe upon or violate any patent, copyright, trade secret, or any other proprietary right of any third party. In the event of any threatened or actual claim made or litigation filed by a third party against APCT asserting or involving a patent, copyright, trade secret or proprietary right violation involving the products, Customer will defend at its sole expense, and will indemnify and hold harmless APCT against any loss, damages, cost, expense (including attorney’s fees), or liability arising out of such a claim, whether or not such claim is successful; provided, however, that Customer is notified by APCT in writing within a reasonable time after APCT first receives written notice of any such claim, action, or allegation of infringement.
- Limitation of Liability. APCT LIABILITY TO CUSTOMER FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO DIRECT DAMAGES. IN NO EVENT SHALL APCT OR ITS VENDORS BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY UNDER ANY CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE CLAIM OR THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSS OF GOODWILL OR BUSINESS PROFITS, LOST REVENUE, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MISFUNCTION, OR ANY DAMAGES OR LOSSES INCLUDING WITHOUT LIMITATION, PUNITIVE OR EXEMPLARY DAMAGES, ARISING OUT OF OR RELATED TO CUSTOMER’S PURCHASE OR USE OF ANY PRODUCT, EVEN IF APCT OR ITS VENDORS WERE INFORMED OR AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL APCT OR ITS VENDORS TOTAL LIABILITY UNDER ANY OR ALL PROVISIONS OF THIS AGREEMENT FOR ALL CLAIMS OR CAUSES OF ACTION ON A CUMULATIVE BASIS EXCEED THE PAYMENTS ACTUALLY MADE TO APCT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF SUCH CLAIM OR CAUSE OF ACTION. THE FOREGOING SHALL NOT EXCLUDE OR LIMIT APCT’ OR ITS VENDORS RESPECTIVE LIABLITY FOR DEATH OR PERSONAL INJURY RESULTING FROM SUCH PARTY’S NEGLIGENCE, TO THE EXTEND THAT SUCH LIABILITY CANNOT BY LAW BE LIMITED OR EXCLUDED.
- Force Majeure. Except for the obligation to pay money, nonperformance by either party shall be excused to the extend that such failure of performance is caused by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control, and not caused by the negligence, of the non-performing party. The party experiencing a force majeure occurrence shall immediately provide the other party, by e-mail, facsimile or other expeditious notice, with detailed information regarding the event, including, without limitation, the cause, if known, the extent of the effect of the event on performance, and the party’s best good faith estimate as to when the event will end. If the event continues for more than thirty (30) days, the other party, by written notice to the non-performing party, may terminate this Agreement immediately on notice, in which case neither party shall have any liability to the other except for any liabilities which have been incurred prior to termination.
- Product Liability. In the event of any threatened or actual claim made, or litigation filed, by a third party against APCT for personal injury or property damage arising out of or in any way connected with the design or manufacture of a product furnished under this Agreement, Customer shall defend, at its sole expense, and will indemnify and hold harmless APCT against, any loss, damages cost, expense, including attorney’s fees, or liability arising out of such claim, whether such claim is based on contract, tort (including negligence and strict liability), or any other legal theory, except where the design giving rise to the claim or litigation was solely created by APCT for its own purposes.
- Confidentiality. All written information and data exchanged between parties for the purpose of enabling APCT to manufacture and deliver products under this Agreement that is mark “Confidential” or with similar marking shall be deemed to be Confidential Information. The party receiving such Confidential Information agrees not to disclose it directly or indirectly to any third party, or to use it for any purpose other than as required under this Agreement, without the prior written consent of the disclosing party. Confidential Information disclosed pursuant to this Agreement shall be maintained confidential for a period of three years after being disclosed to other party.
- Waiver. The failure of either party to enforce at any time any provision of these terms and conditions shall not be construed to be a waiver of such provision or the right thereafter to enforce each and every provision. No waiver by either party, either express or implied, or any breach of any of these terms and conditions shall be constructed as a waiver of any other breach of such term or condition.
- Assignment. Customer may not assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of APCT. No attempt to assign or transfer in violation of this provision shall be binding upon APCT.
- Exclusion of UN Convention. The United Nations Convention for the International Sale of Goods (1980) is hereby excluded and shall not apply to this Agreement or to the purchase and sale of goods pursuant to this Agreement.
- Governing Law and Jurisdiction. If this Agreement is made by APCT, the rights of the parties shall be governed by, construed and enforced in accordance with, the internal laws of the State of California without giving effect to conflict of laws rules or principles, and the parties consent to the exclusive jurisdiction and venue of the state and federal courts in Santa Clara, California to adjudicate any dispute or controversy related to this Agreement.
- Attorneys’ Fees. If litigation is commenced by either party to enforce any provision of the Agreement, the prevailing party shall be entitled to recover reasonable costs and attorneys’ fees, both trial and upon appeal.
- Notices. All notices required or authorized by these terms and conditions shall be given in writing and shall be deemed effective upon receipt. Notices to Customer shall be sent to the address shown in Customer’s purchase order. Notices to APCT shall be sent to the attention of APCT’ Chief Financial Officer.
- Governing Language. This Agreement is written in the English language only, which language shall be controlling in all respects, and all versions of this Agreement in any other language, even if initialed or signed by the parties, shall be for accommodation purpose only and shall not be binding on the parties. All correspondence, notices, orders, claims, suits, and other communications between the parties shall be written or conducted in English.
- Survival of Terms. The provisions of Section 1, 4, 9, 10, 12, 15, 17, 18, 20, 21, 25, 26, 28, and 29, and any other Terms which by their express terms extend beyond termination or expiration of this Agreement or which by their nature are intended to so extend, shall survive and continue in full force and effect after any termination or expiration of this Agreement.
- Government Contract. If the products to be furnished under this Agreement are to be used by Customer in the performance of a U.S. government contract or subcontract, a government contract number shall appear on the Customer’s purchase order and only those clauses of applicable government procurement regulations which are mandatorily required by federal statute to be included in agreements below the tier of a government prime contract shall be incorporated in this Agreement.
- Termination For Cause. Either party may terminate this Agreement upon notice to the other party if the other party fails to perform any material obligation, duty or responsibility imposed by this Agreement and such failure remains unremedied thirty (30) days following written notice of such failure (the “Cure Notice”), except that (a) with respect to any default in the payment of money owed APCT, no such Cure Notice shall be required, and (b) Customer’s insolvency; filing, or being the subject of, a petition in bankruptcy; or making an assignment for the benefit of its creditors, will be deemed a material breach of this Agreement that cannot be cured. The right to terminate as specified in this Section is in addition to any other remedies available to the non-breaching party.
THIS AGREEMENT CONSTITUTES THE FINAL AND COMPLETE EXPRESSION OF ALL THE TERMS OF THE AGREEMENT BETWEENTHE PARTIES. IT SUPERSEDES ALL UNDERSTANDINGS AND NEGOTIATIONS CONCERNING THE MATTERS SPECIFIED. ANY REPRESENTATIONS, ORAL STATEMENTS, PROMISES, OR WARRANTIES MADE BY EITHER PARTY THAT DIFFER IN ANY WAY FROM THE TERMS OF THIS AGREEMENT SHALL BE GIVEN NO FORCE OR EFFECT. NO ADDITION TO OR MODIFICATION OF ANY PROVISION OF THE AGREEMENT SHALL BE BINDING UPON A PARTY UNLESS MADE IN WRITING AND SIGNED BY THE DULY AUTHORIZED REPRESENTATIVE OF THE PARTY.