Except as may be expressly provided otherwise in writing, these "Standard
Terms and Conditions", ("T&Cs") shall apply to all sales or purchase orders,
invoices, or other transactional documents between On Electronics, Incorporated
and the Customer, named either on the reverse or in documents to which these
T&Cs are an attachment, with regard to the Goods and Services described. These
T&Cs are incorporated by reference into all Agreements with On Electronics.
ALL PROVISIONS OF ANY PURCHASE ORDER, ACKNOWLEDGEMENT, OR OTHER DOCUMENT
SUBMITTED BY CUSTOMER TO ON ELECTRONICS NOW OR IN THE FUTURE, INCLUDING, BUT NOT
LIMITED TO, FAR AND DFAR PROVISIONS, ARE EXPRESSLY REJECTED AND SHALL NOT BE
BINDING UPON ON ELECTRONICS WITHOUT ITS SPECIFIC WRITTEN CONSENT. CUSTOMER
ACKNOWLEDGES AND AGREES THAT ON ELECTRONICS? FAILURE TO SPECIFICALLY OBJECT TO
THE CONTENTS OF OR MODIFICATIONS WITHIN ANY DOCUMENT SUBMITTED BY CUSTOMER SHALL
NOT CONSTITUTE ACCEPTANCE BY ON ELECTRONICS CORPORATION.
1. PRICES AND OTHER CHARGES - Quoted prices are based upon Goods or
Services specified and assume normal delivery windows. In the event of changes
from the original order including, but not limited to, quantities or delivery
dates, On Electronics reserves the right to adjust prices and Customer shall pay
the difference, if any. Customer shall pay for freight, insurance, and all
charges imposed by government entities including, without limitation, all sales,
use, and transfer taxes and all export and import duties. Customer understands
that some or all of these additional charges may not appear on original quote or
invoice submitted by On Electronics Corporation.
2. TERMS OF PAYMENT - All payments shall be made in US Dollars and
terms are net 30 days from the date of invoice. Payments shall be due without
regard to whether Customer has inspected or accepted the Goods. If customer
delays any shipments, payments are due 30 days from the original date of invoice
or the originally scheduled shipment date, whichever is later.
3. LATE CHARGES - If Customer fails to make any payments when due, On
Electronics may additionally charge interest equal to 1.5% per month or maximum
rate permitted by Law on any portion of Customer?s outstanding balance which is
not paid within 30 days from the date of invoice. In the event that legal action
is taken by On Electronics, Customer shall be liable for On Electronics?
reasonable attorney fees plus all the costs of such legal actions.
4. DELIVERY, RISK OF LOSS AND SHIPMENT - Delivery and completion
schedules are approximate only and are based on conditions at the time of
acceptance of Customer?s orders. Unless otherwise agreed to in writing, delivery
shall be complete upon transfer of possession to common carrier, FOB Shipping
point, whereupon all risk of loss, damage or destruction to the Goods shall pass
to Customer. In the absence of written agreement to the contrary, means of
shipment will be at the discretion of On Electronics. On Electronics reserves
the right to make partial shipments and invoice for partial shipments.
5. OVER SHIPMENTS - On Electronics may at its option, increase the
aggregate quantity specified on invoices or bill of lading by not more than 5%
of original quantity ordered and Customer shall accept and pay for such
increased quantity unless timely objection thereto is made after receipt.
6. TITLE - Unless otherwise agreed to in writing, title to the Goods
shall remain with On Electronics until all payments hereunder have been made. In
the event of a default, On Electronics shall have all the rights and remedies or
a secured creditor. Financing or comparable statements under the Uniform
Commercial Code or other laws may be filed with the appropriate public
authorities and Customer agrees to sign any forms presented by On Electronics
from time to time to protect On Electronics? interests.
7. CHANGES AND CANCELLATIONS - orders accepted by On Electronics are
not subject to change or cancellation by Customer except with On Electronics?
written consent and upon payment of an appropriate charge to cover the costs or
loss incurred by On Electronics, which unless agreed to in writing, shall not be
less than fifteen percent (15%) of the price of Goods subject to cancellation or
changes.
8. WARRANTY - Unless otherwise agreed to in writing, On Electronics
warrants that the Goods sold hereunder shall be free from defects in material or
workmanship under normal use and Service for a period of one (1) year from the
date of shipment. No warranty shall apply to any Goods which have been modified,
reworked or altered by persons other than On Electronics personnel including,
but not limited to, Goods that become defective due to misuse, neglect, improper
installation, soldering, or handling in non ESD environment or accident. On
Electronics? obligation under this warranty is limited to the repair or
replacement, at On Electronics? option, of defective parts or Goods. On
Electronics reserves the right to grant credit for the value charged for the
Goods found to be defective under the terms of the warranty. This warranty is
made on the condition that immediate written notice of any defects be given to
On Electronics and On Electronics? inspection reveals that the Customer?s claim
is valid under the terms of the Warranty. No returns shall be accepted unless
accompanied by an authorized RMA number issued by On Electronics. THIS
WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, WARRANTY OF
MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSES, AND SUCH CONSTITUTES THE
ONLY WARRANTY MADE WITH RESPECT TO THE GOODS.
9. DAMAGES - IN NO EVENT SHALL ON ELECTRONICS BE LIABLE FOR ANY INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING FROM OR
RELATED TO A BREACH OF WARRANTY, THE USE OR PERFORMANCE OF THE GOODS, NEGLIGENCE
OR OTHER TORT, OR OTHERWISE ARISING OUT OF THE AGREEMENT, EVEN IF ADVISED OF THE
POSSIBILITIES OF SUCH DAMAGES. ON ELECTRONICS? MAXIMUM LIABILITY UNDER ANY LEGAL
THEORY SHALL IN NO EVENT EXCEED THE TOTAL CONTRACT PRICE LESS THE CONTRACT PRICE
FOR ANY SERVICES PROVIDED OR CONFORMING GOODS DELIVERED. THE FOREGOING
LIMITATION SHALL APPLY NOTWITHSTANDING THAT ANY OTHER PROVISION IS DEEMED TO
HAVE FAILED ITS ESSENTIAL PURPOSE.
10. RESCHEDULING AND CANCELLATIONS - Customer may reschedule or
terminate this Agreement upon 120 days prior written notice to On Electronics.
In such event, Customer shall be liable for termination charges calculated by On
Electronics, which may be based upon, but not limited to, any Goods actually
delivered or to be delivered, work in progress, costs incurred, commitments made
by On Electronics for other Goods and Services, including all direct and
indirect costs, and On Electronics? anticipated profit for the entire Agreement.
11. SERVICES - Development and design work, including, but not limited
to, nonrecurring engineering, "NRE", and some form of testing, that may be
requested as a part of this Agreement shall be considered Services and are
provided on a reasonable effort basis. On Electronics retains sole discretion to
assign and control its staff resources in the performance of Services.
Development times and milestones are estimates only and are subject to the
inherent variations normally associated with such efforts. No guarantees,
warranties or representations are made with regard to the success, timeliness,
or effectiveness of the Service.
12. FORCE MAJEURE - On Electronics will make every effort to complete
shipment, but shall not be liable for any loss or damage, for delays on delivery
due to causes beyond its control including, but not limited to, fire, acts of
God, acts of Government or compliance with government rules or regulations,
insurrection, sabotage, earthquakes, strike, civil disturbances, storm, flood,
transportation, or shipping problems.
13. NON-WAIVER OF DEFAULT - In the event of default by the Customer,
On Electronics may decline to make any further shipments. If On Electronics
elects to continue to make shipments, On Electronics? actions shall not
constitute a waiver of any default by Customer, nor in any way affect On
Electronics? other rights and remedies. On Electronics? failure to insist upon
the strict performance of any provisions of this Agreement shall not be deemed a
waiver of any subsequent defaults.
14. DISPUTE RESOLUTION - If customer fails to perform any of its
obligations under this Agreement, Customer shall pay On Electronics all costs
and expenses incurred by On Electronics in enforcing its rights under this
Agreement, whether by formal proceedings or otherwise, including all attorneys?
fees. Any dispute shall be resolved by binding arbitration in accordance with
the rules of American Arbitration Association or other mutually agreed upon
dispute resolution forum. Judgment upon the award rendered may be entered in any
upon dispute resolution forum. Judgment upon the award rendered may be entered
in any court. The parties agree and consent to the jurisdiction and venue of the
California courts, County of Santa Clara, for any litigation that may not be
subject to arbitration. This Agreement shall be governed by the laws of the
State of California except for that portion known as Conflict of Laws.
15. PATENT, TRADEMARK, AND OTHER INFRINGEMENT CLAIMS - If some or all
of the Goods and Service sold hereunder are made by On Electronics pursuant to
drawings or specifications furnished by the Customer, should a claim be made
that such Goods or Services infringe the rights of any third party under patent,
trademark or otherwise, Customer shall indemnify and hold On Electronics
harmless against any liability or expense, including reasonable attorney fees,
incurred by On Electronics in connection herewith. Any product or part not
manufactured by On Electronics, which is part of or has been incorporated in the
Goods, is furnished subject only to the manufacturer?s patent warranties, if
any, and without warranties expressed or implied by On Electronics.
16. GENERAL
16.1 - DESIGNS AND TRADE SECRETS DISCLOSURE BY ON ELECTRONICS - Any
drawings, data, designs, software programs, or other technical information
supplied by On Electronics to Customer in connection with the Sale of Goods
shall remain On Electronics? property and be held in confidence by Customer.
Such information shall not be reproduced or disclosed to others without On
Electronics? prior written consent.
16.2 - ASSIGNMENT - Customer shall not assign this order, any interest
therein, or any rights thereunder without prior written consent.
16.3 - MODIFICATION - This Agreement may not be changed, modified, or
amended, except in writing signed by authorized representatives of On
Electronics.
16.4 - HEADINGS - The headings of sections are for reference only and
shall be given no substantive effect whatsoever.
17. EXPORT - These commodities may be subject to U.S. Government
export controls. Diversion contrary to U.S. Law may be prohibited, export may
require validated export license.