Chip 1 Exchange USA, Inc. Terms and Conditions
THE SALE OF PRODUCTS AND ASSOCIATED SERVICES (“PRODUCTS”) BY Chip 1 Exchange USA, INC. (“Chip-1”), ARE SUBJECT TO THESE TERMS AND CONDITIONS (“AGREEMENT”) REGARDLESS OF ANY OTHER, DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS THAT CONFLICT OR CONTRADICT THIS AGREEMENT IN ANY PURCHASE ORDER (“ORDER”), DOCUMENT, OTHER COMMUNICATION,OR PREPRINTED TERMS AND CONDITIONS ON ANY CUSTOMER DOCUMENT (FOR EXAMPLE: PURCHASE ORDERS OR CONFIRMATIONS) FROM CUSTOMER (“CUSTOMER”). Chip-1’S DELAY OR FAILURE TO OBJECT TO CONFLICTING OR ADDITIONAL TERMS RECEIVED FROM CUSTOMER, INCLUDING THE ORDER, WILL NOT OPERATE TO WAIVE, CHANGE OR ADD TO ANY OF THE TERMS OF THIS AGREEMENT. CUSTOMER’S RECEIPT OF PRODUCTS CONSTITUTES CUSTOMER’S ASSENT TO THE TERMS OF THIS AGREEMENT.
1. ORDERS
All Orders from Customer are offers subject to acceptance by Chip-1. Chip-1will use reasonable efforts to deliver the quantities specified in the Order accepted by Chip-1; provided however, in the event Chip-1 does not have sufficient supply of one or more Products to meet the requirements of all of Chip-1’s customers, Chip-1 may, at is sole discretion, reduce deliveries of such Products on any basis it believes equitable, allowing for priorities to classes of its customers it deems appropriate. All Orders are considered non-cancelable and non-returnable (“NCNR”) by Customer unless approved in writing by Chip-1. The Customer may not terminate or reschedule orders for any Products without Chip-1’s permission, which permission shall not be unreasonably withheld; provided however, once orders (Product) are shipped, Customer agrees that Chip-1 shall have no obligation to permit any cancellation or reschedules by Customer and continued shipment by Chip-1 will not operate to waive Chip-1’s rights or remedies hereunder.
2. PRICES
Chip-1 quoted prices are valid for 30 days or as otherwise specified in its quote. Notwithstanding this period, Chip-1 may boost prices if Chip-1’s costs increase or due to other circumstances beyond Chip-1’s reasonable control. In the event of a price increase, Chip-1 shall provide notice to customer prior to shipment, giving the Customer the opportunity to cancel its Order, which revocation shall be made in writing within 24 hours of such announcement, and Chip-1, at its sole option, may accept Customer’s cancellation or reject the cancellation and sell the Products at the original quoted price. Quoted prices are for Products only and do not include taxes, impositions and any other charges, fees, shipping charges and duties imposed by any government authority (other than taxes on Chip-1’s income), and Customer is responsible for any such additional fees and taxes. Customer will have no right to offset or deduct any disputed claims against any past, present or future invoices from Chip-1 issued under this Agreement.
3. TERMS OF PAYMENT.
All Orders are subject to credit approval by Chip-1. Payment of the total invoice amount, without offset or deduction, is due 30 days from the invoice date. Time is of the essence regarding Customer’s payment obligations. On any past due invoice, Chip-1 interest shall accrue from the payment due date to the date of payment at 1% per month up to the maximum permitted by law on any overdue amounts, withdraw credit, cease further shipments, plus if applicable, any reasonable attorney fees and collection costs, or any one or more in combination of any of the foregoing. Notwithstanding the foregoing, Chip-1 may modify the terms of Customer’s credit at any time and Chip-1 shall provide at least 10 days’ notice of any such modification. Chip-1 may apply payments to any of Customer’s accounts and may apply said payments to the oldest outstanding invoice, plus interest charges, if applicable.
4. DELIVERY AND TITLE.
Unless otherwise specified by Chip-1 in writing, all deliveries by Chip-1 are EXW (Incoterms 2020) Chip-1’s warehouse or the delivering entity’s facility, as applicable. Title shall pass to Customer upon delivery of the Products to the carrier, irrespective whether Customer or Chip-1 arranges for, or bears the cost of, transportation of the Products. Upon delivery of the Products, Customer is responsible for insuring the Products and paying such insurance cost. Chip-1’s delivery dates are estimates only and subject to timely receipt of Product by Chip-1 from Chip-1’s suppliers. Chip-1 is not liable for any loss or damage Customer may suffer due to any delays in delivery or shipment dates. Chip-1 reserves the right to make incomplete deliveries and Customer will accept delivery and pay for the Products delivered. Any shortage or delay in the delivery of any part of an Order for any reason shall not entitle Customer to reject a delivery or cancel other deliveries, the Order or any other Orders. Any reduction or shortage need not be made up, but a pro-rata adjustment will be made to the invoice.
5. ACCEPTANCE OF PRODUCTS AND PRODUCT RETURNS
Customer must notify Chip-1 in writing of any damage, shortage, or other discrepancy to Products within 5 days after delivery. After this time period, Customer is deemed to have accepted the Products and may not rescind acceptance. Customer shall permit Chip-1 to examine any such claim of damage, shortage, or other discrepancy to Products, and if Customer refuses to permit such examination, Chip-1 may deem Customer’s claim as unsupported; and provided further, Chip-1 may impose charges to reimburse it for its costs if it finds Customer’s claim is unsupported, or for rescreening conforming Products. Customer cannot return Products without a return material authorization (“RMA”) number. “RMA” Requests will only be reviewed if the application is made by Customer within 30 days of delivery. Returned Products must be in original manufacturer’s shipping containers or equivalent. Customer must return all Products, freight prepaid, as detailed in the RMA and pay any restocking charges. At Chip-1’s discretion, Chip-1 will return all Products received by Chip-1 from Customer which are not eligible for return, to Customer freight collect, or Chip-1 may, at its option, deem the Products abandoned and may either be retained by Chip-1 as its property without compensation to Customer therefor (regardless whether or not such Products are subsequently re-sold to Chip-1’s customers) or otherwise disposed at Customer’s expense.
6. CHIP 1's LIMITED WARRANTY
To the extent transferable, Chip-1 will transfer to Customer any Product warranties and indemnities authorized by the manufacturer, including any transferable warranties and indemnities for intellectual property infringement. Such transfer shall not operate to lengthening of the one (1)-year warranty period of Chip-1’s warranty: For one year from the date of delivery, Chip-1 warrants (A) the Products will conform to the manufacturer’s specifications as received by Chip-1 from the manufacturer; and to the extent applicable, (B) value-added work (if any) performed by Chip-1 on Products will conform to Customer’s specifications. EXCEPT FOR THE FOREGOING 6(A) AND 6(B), Chip-1 MAKES NO OTHER WARRANTY, AND CUSTOMER HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OFANY KIND, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THEIR CONDITION, QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE. Chip-1 DOES NOT WARRANT THAT THE PRODUCTS ARE SUITABLE FOR CUSTOMER’S NEEDS OR WILL RESULT IN ANY SPECIFIC OUTCOME OR ADDITIONAL BUSINESS FOR CUSTOMER. UPON THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD, ALL WARRANTIY LIABILITY TERMINATES. If Products do not meet manufacturer’s specifications or if value-added work by Chip-1 does not meet Customer’s specifications, Chip-1 has the option to (1) repair the Products, (2) replace the Products at no cost to Customer; or (3) credit or refund Customer’s purchase price. If instructed by Chip-1, Customer must return the contended non-conforming Products to Chip-1, along with acceptable proof of purchase, within 30 days from date of delivery, freight charges prepaid. The foregoing warranty shall not apply where (i) the Products have suffered misuse, abuse, neglect, alteration, accident, mishandling, repair, operation outside of the applicable specifications, improper installation, improper testing or the like after delivery to the Customer; (ii) the non-conformity resulted from Customer’s design, specifications, or instructions for such Products or improper system design; (iii) where the Products are designated as experimental or to be used for development purposes; (iv) to Products not provided by Chip-1; (v) to Products for which claims are made by anyone other than Customer; (vi) to Products used, sold or distributed by Customer despite failing its inspection; (vii) to any goods, product, or equipment within which the Products are contained or integrated; (viii) to any compatibility or interoperability issues involving goods, products, software or equipment inconsistent with applicable specifications; (ix) to any samples which are provided “AS IS” and “WITH ALL FAULTS”; and (x) if Customer has not fully and promptly paid for the Products subject of the warranty claim. Warranty claims may only be made by the Customer and are not assignable to third parties. Chip-1 shall have the right to make the final determination of warranty eligibility.
THIS SECTION 6 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY CLAIMS. Chip-1 WILL HAVE A REASONABLE TIME TO PROVIDE THE REMEDY SET FORTH HEREIN.
7. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL Chip-1 BE LIABLE FOR ANY INCIDENTAL, PUNITIVE, EXEMPLARY, MULTIPLE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, HOWSOEVER CAUSED, EVEN IF NOTICE WAS GIVEN OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE, INCLUDING WITHOUT LIMITATION FOR ANY LOSS OR PROFIT OR REVENUE, LOSS OF CAPITAL, LOSS OF USE, LOSS OF PRODUCTION, DELAY, COST OF PROCUREMENT OF SUBSTITUTE GOODS, COST OF REWORK, COST OF MANUFACTURING EXPENSE, ECONOMIC LOSS, LOSS OF SOFTWARE, LOSS OF DATA, LOSS OF GOODWILL, OR LOSS OF BUSINESS, CONTRACTS OR CUSTOMERS. TO THE FULLEST EXTENT PERMITTED BY LAW, Chip-1’S LIABILITY IN ALL EVENTS IS LIMITED TO THE PURCHASE PRICE PAID FOR THE PRODUCTS THAT GIVES RISE TO THE LIABILITY. IN NO EVENT SHALL Chip-1 HAVE ANY LIABILITY OR OBLIGATION TO CUSTOMER, REGARDLESS THE THEORY OF ANY CLAIM, IN CONNECTION WITH Chip-1’S COMPLIANCE WITH APPLICABLE STANDARDS ISSUED BY ANY PUBLIC OR PRIVATE STANDARDS BODY IN CHIP-1’S PROVISION OF PRODUCTS HEREUNDER.
8. FORCES BEYOND CHIP-1's CONTROL
Chip-1 is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond its reasonable control (“Force Majeure Event”), for example, without limitation: acts of God, acts or omissions of the Customer, man-made or natural disasters, epidemic or medical crises, materials shortages, strikes, acts of terrorism, delays in transportation, or inability to obtain labor or materials through its regular sources. During the Force Majeure Event, Chip-1 may suspend, modify, or cancel the delivery of Products.
9. USE OF PRODUCTS
PRODUCTS Products are not specifically designed nor authorized for use in crucial safety or other applications, including life support, safety equipment or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. If Customer uses or markets the Products for use in any such applications, Customer acknowledges that such use or sale is at Customer’s sole risk. Customer will indemnify, defend and hold Chip-1 and the Product manufacturer harmless from and against any and all Claims arising out of or in connection with such usage or sale by Customer or on its behalf.
10. INTELLECTUAL PROPERTY INFRINGEMENT.
Customer will defend, indemnify and hold Chip-1 harmless from and against all claims, suits, actions and awards, liabilities, damages, costs and attorneys’ fees (“Claims”) related to the actual or alleged infringement of any intellectual property right or misappropriation or wrongful use of information or documents, arising as a result of: (i) Chip-1’s compliance with Customer’s designs, specifications, or instructions; (ii) Customer’s use of the Products in combination with any other product, process or system; (iii) modification of the Products after Chip-1 delivered them; or (iv) use of the Products in a manner for which they were not designed.
11. EXPORT/IMPORT
Certain Products sold by Chip-1 and other related technology and documentation may be subject to export control laws, regulations and orders of the United States and the export or import control laws and regulations of other countries. Customer will not directly or indirectly export or redirect any Products and other related technology and documentation to any third party or country where such export or transmission is restricted or forbidden. Customer agrees it is their sole responsibility to obtain any license to export, re-export, or import as may be required. Customer shall comply with all applicable trade control laws and regulations, as they may be amended from time to time, and will indemnify Chip-1 for all Claims resulting from Customer’s failure to do so. If applicable, Customer will provide Chip-1 with information on the ultimate end-use and ultimate end-user of Products provided by Chip-1 to satisfy Chip-1’s compliance with applicable trade control laws and regulations.
12. PRODUCT INFORMATION
Product information, including information related to a Product’s specifications, export/import control classifications, uses or conformance with legal or other requirements (“Product Information”) is obtained by Chip-1 from its suppliers or other industry sources. Such Product Information is provided by Chip-1 on an “AS IS” basis. Chip 1 makes no representation as to the accuracy or completeness of the Product Information, and disclaims all representations, warranties and liabilities under any theory with respect to the Product Information, including any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. It is Customer’s sole responsibility to validate any Product Information before using or proceeding on such Product Information, and in no event shall Chip-1 have any obligation or liability to Customer with respect thereto. All Product information is subject to modification without notice. Chip-1 is not responsible for typographical or other errors or omissions in Product Information.
13. CONFIDENTIAL INFORMATION
13.1) Definition of Confidential Information. “Confidential Information” will mean any and all information or know-how disclosed by Chip-1 (“Disclosing Party”) to Customer (“Receiving Party”) in connection with its Agreement, which due its nature or the circumstances of its disclosure Receiving Party knew or reasonably should have known to be confidential to Disclosing Party, regardless whether such information is designated as “confidential” at the time of disclosure, including without limitation: (a) information, whether past, present or future, regarding any of Disclosing Party’s customers and their representatives, and/or the existence, contents and/or party(ies) to any contract to which Disclosing Party is party or is bound; (b) information with respect to Disclosing Party’s business plans, methods of doing business, purchasing and cost information, operations, and internal personnel and financial information; and (c) marketing and development plans, price and cost data, price and fee amounts, pricing and billing policies, quoting procedures, implementation processes, concepts, plans, procedures, techniques and strategies of Disclosing Party.
13.2) Treatment of Confidential Information. The parties hereby acknowledge and agree that all Confidential Information is and will, as between the parties, at all times remain the exclusive property of the Disclosing Party. In furtherance of this Agreement and in order to assure adequate protection against the wrongful use of disclosure of Confidential Information, Receiving Party agrees that it will: (a) hold all Confidential Information in strict confidence and safeguard the Confidential Information not less than the standard of care Receiving Party uses to protect its own confidential information, but in no event less than a reasonable standard of care; (b) not disclose Confidential Information to any of its own employees, agents, contractors or representatives, except those with a “need-to-know” such Confidential Information in order to perform his/her respective duties and are bound by confidentiality obligations at least as restrictive as the obligations hereunder; and (c) not use any of the Confidential Information for any purpose other than in connection with the performance of its obligations its Agreement, and/or in connection with the defense or prosecution of any claim relating to the Products provided thereunder.
13.3) Right to Injunctive Relief. Receiving Party recognizes that any breach or threatened breach of this Section 13 may cause irreparable injury to Disclosing Party. Accordingly, in addition to any other legal or equitable remedies that may be available to Disclosing Party, Receiving Party agrees that Disclosing Party may seek and obtain immediate injunctive relief in the form of a temporary restraining order without being required to post a bond or prove monetary damages would be inadequate, against Receiving Party to enforce this Section 13.
13.4) Exclusions. The restrictions on the use and disclosure of Confidential Information will not apply to information which Receiving Party can demonstrate: (a) is required to be disclosed in response to a valid order, law or regulation of a court of competent jurisdiction or other governmental body, but only to the extent of and for the purposes of such order; provided that Receiving Party (to the extent legally permissible) will first promptly notify Disclosing Party in writing of the order and allow Disclosing Party to avoid, protect and/or minimize the extent of such disclosure, at Disclosing Party’s cost; (b) is independently developed without access to or use of the Confidential Information; (c) is or has become generally available to the public without breach of these T&C’s or any other confidentiality restrictions by Receiving Party; (d) at the time of disclosure to Receiving Party, was known to Receiving Party free of restriction; or (e) is approved for release by Disclosing Party’s written authorization, but only to the extent of and subject to such conditions as may be imposed in Disclosing Party’s written authorization.
14. GENERAL
1) Governing Law. These T&C’s together with the Agreement and any claim, controversy or dispute arising under or related thereto, the relationship of the parties, and/or the interpretation and enforcement of the rights and duties of the parties will be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict or choice of law rules. Each party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts situated in Dallas County or Tarrant County, Texas, in connection with any action brought by either party to enforce the provisions of this Agreement, to recover damages or other relief for breach or default under this Agreement, or otherwise arising under or by reason of this Agreement; provided however, that either party may apply to any court of competent jurisdiction for injunctive or equitable relief, or to enforce debt collection claims arising hereunder. The parties expressly agree that the UN Convention on the International Sale of Goods shall not apply to this Agreement. Customer may not assign this Agreement without the prior written consent of Chip-1. Chip-1 may assign, transfer, or subcontract its rights or obligations under this Agreement. This Agreement is binding on successors and assigns.
2) This Agreement can only be altered in writing signed by authorized representatives of both Chip 1 and Customer.
3) The parties are independent contractors and neither party is an employee, agent, servant, representative, partner, or joint venturer of the other party. This Agreement does not establish a joint venture or partnership.
4) Statements or advice (technical or otherwise) if given without charge, are an accommodation to Customer and Chip-1 has no responsibility or liability for the content or use of such statements or advice. Customer agrees that Chip-1’s provision of any such statements or advice does not expand or otherwise alter Chip-1’s warranties as set forth above, and no additional obligations or liabilities arise from Chip-1’s provisions thereof. It is Customer’s sole responsibility to determine all Products from Chip-1 are suitable for Customer’s purposes, including for any product or process using or incorporating the Products, testing the Products, and determining whether products or systems using the Products infringe third party intellectual property rights, irrespective whether or not Chip-1 has provided technical advice.
5) Chip-1’s failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of any term under this Agreement.
6) Should any provision hereunder be determined to be void, invalid, unenforceable or illegal for whatever reason, only that particular offending provision or part so found, will be null and void; provided however, that the remaining provisions shall be unaffected thereby and shall continue to be valid and enforceable.
7) Products, including software or other intellectual property, may be subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses.
8) Customer will comply with applicable laws and regulations.