Unless otherwise specified by other written agreement of the parties, any purchase by Buyer from Intellisense Systems Inc. (ISI) under this agreement shall be (a) a purchase of the equipment, components, and services and (b) a non-exclusive right to use all software incorporated therein solely in the product in which it was delivered, and will be subject to the following terms and conditions and with any additional terms and conditions of the service set forth in ISI?s proposal or purchase order, as applicable.
- Firm Orders. Except in the case of a breach, as provided in Section 10, once an order is placed with and accepted by ISI, it may be changed or cancelled only with the written consent of ISI.
- Delivery. All shipments shall be F.O.B. ISI, Torrance, California, and Buyer shall bear the cost of delivery, insurance and handling. Title and risk of loss shall transfer to Buyer upon delivery of goods to the carrier. Partial deliveries shall be permitted, but ISI shall not ship excess quantities without the prior written consent of Buyer. ISI will make every reasonable effort to complete shipment on or before the dates indicated set forth in a written quotation; HOWEVER, ISI shall not be liable for delay in performance or inability to perform occasioned by acts beyond its reasonable control, including acts of God, fire, flood, strike, war, embargo, government regulation or materials shortage. If performance is delayed by such an event, ISI shall notify Buyer, and time of performance shall be extended for the period of such contingency. If any delay extends for more than ninety
(90) days, either party, upon thirty (30) days written notice may terminate the order in respect to the unexecuted portion of the work where upon Buyer shall promptly pay ISI for the work performed prior to cancellation. Cancellations or modifications of delivery or performance schedules by the Buyer many result in pricing adjustments and or cancellation fees. - Terms of Payment. All prices are F.O.B. Torrance, California, paid in advance. If buyer credit application is accepted, ISI will provide payment terms of net 30 days. Unless expressly provided, all prices set forth in any order are exclusive of any freight, taxes, duties or imposts, all of which are the responsibility of Buyer. Buyer agrees to pay all amounts due within 30 days from the date of invoice; plus a service charge of 1% per month (or portion thereof), or such lesser maximum allowable by law, on all balances not paid within 30 days. Buyer?s obligation to pay the purchase price of goods delivered shall accrue as of delivery by ISI to its carrier. Buyer grants ISI a security interest in and the right to repossess the goods until the goods are paid in full; Buyer will further execute and deliver to ISI any document required to perfect this security interest upon request of ISI. In the event Buyer fails to make payments as required, Buyer agrees to indemnify and hold harmless ISI from any and all reasonable cost and expenses, including attorneys? fees, court costs, related costs and costs of settlements, compromises and judgments arising there from, incurred by ISI in the collection of any amounts due and enforcing its rights hereunder.
- Inspection and Testing. All quality control exercised in the manufacture of the Products shall be in accordance with ISI?s normal quality control policies, procedures and practices.
- Packing, Marking, and Shipping. Products shall be prepared, packed and shipped by or on behalf of ISI in accordance with good commercial practices unless otherwise directed in the purchase order. A complete packing list shall be enclosed with all shipments. Buyer agrees to reimburse ISI for any costs for any non-standard packing, making or shipping directions contained in the purchase order.
- Warranty. ISI warrants for a period of 12 months from the date of delivery, that the products manufactured and delivered by ISI, will be free of manufacturing defects in materials and workmanship as specified by ISI quality standards; provided such product has not been altered or repaired other than with authorization from ISI and by its approved procedures, not been subjected to misuse, improper handling or maintenance, negligence or accident or otherwise had its serial number or any part thereof altered, defaced or removed. In addition, ISI shall extend to Buyer, on a ?pass through? basis, the manufacturer?s warranty on purchased components to the extent permissible. The sole obligation of ISI will be, in its sole discretion, to (1) repair or replace the defective product (2) return any product that does not meet the warranty criteria, or (3) credit Buyer?s account for the full purchase price of the defective part. All items returned to customer will be at Buyer?s expense. All defective items replaced pursuant to the above warranty become the property of ISI. Any product repaired or replaced after the warranty period are warranted for the greater of (i) the balance of the original warranty period, or (ii) ninety (90) days from the date of shipment.
SUCH WARRANTY IS IN LIEU OF AND BUYER WAIVES ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE, AND SETS FORTH THE EXCLUSIVE AND ENTIRE LIABILITY OF ISI WITH RESPECT TO ANY DEFECTIVE PRODUCT OR COMPONENT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR OTHERWISE. IN NO EVENT SHALL ISI BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES. - Limitation of Liability. The total liability of ISI on any claim, whether in contract, tort, negligence or otherwise, arising out of
or in connection with the performance of nonperformance of any order shall not exceed the price allocable to the product or
service which gives rise to the claim. Except as to title, any such liability shall terminate upon the expiration of the warranty
period. In no event shall ISI be liable for any special, consequential, incidental, punitive or exemplary damages, including loss of profit or revenues, loss of use of the product or any associated equipment, cost of capital, cost of substitute goods, facilities, services or replacement power or claims of Buyer?s customers for such damages. Buyer, in its agreements with its customers, shall cause any liability of ISI to any such third parties to be limited as provided herein. - Returns. All shipments shall be deemed accepted by Buyer, and Buyer waives the right of rejection, unless ISI receives a notice of rejection within 10 days following delivery, or such other period agreed in writing in advance by the parties. No return of products will be accepted by ISI without a Return Material Authorization Number (RMA Number) obtained from ISI. All returned products must be shipped prepaid, clearly marked RMA number, and be accompanied by a complete description of the nature of the defect.
- Intellectual Property. All Products purchased by Buyer pursuant hereto are solely for use by Buyer or its customers as shipped, and may not be used as a replication master or otherwise copied (except for archival purposes), unless expressly set forth in the order or with the expressed consent of ISI. Buyer acknowledges that all software furnished by ISI hereunder and the contents thereof are the proprietary property of ISI, and Buyer has no right or interest in said software except the nonexclusive right to use it in the product in which it was delivered. Buyer agrees not to directly or indirectly reproduce (except for archival purposes), decompile or provide or otherwise make available to any third party any ISI software or other ISI intellectual property. Buyer shall be liable for all damages, including loss of anticipatory profits, incurred by ISI as a result of such unauthorized copy or replication. The rights granted hereunder or use of ISI products does not convey any rights or ownership in ISI patents, copyrights, trademarks, intellectual property or know-how.
- Remedies for Breach
a. By ISI: If ISI shall be in material breach of this agreement Buyer may cancel the undelivered portion of purchase orders upon 30 days written notice unless ISI cures such breach with such notice period. Any money paid in advance by Buyer to ISI for goods not shipped will be promptly reimbursed. The foregoing shall be the exclusive remedy of Buyer for any ISI breach of this agreement.
b. By Buyer: If Buyer shall be in material breach of this agreement and fails to cure said breach within 30 days of written notice thereof from ISI, ISI shall thereupon have the right without further notice to (1) bill and declare due and payable the aggregate purchase price for all undelivered products under this agreement, (2) defer shipment hereunder and under any other agreement until such default, breach or repudiation is removed, and/or (3) cancel the undelivered portion of this and/or any other agreement in whole or in part (Buyer remaining liable for damages). Further, if Buyer fails to pay any amount hereunder as it becomes due or wrongfully rejects goods hereunder, in addition to any other remedies it may have in law or equity or hereunder, ISI shall have the right to recover, in addition to the purchase price of such goods, all costs incurred by ISI to collect the same.
- Notices. Any notice required or permitted to be sent under this order shall be delivered by mail, return receipt requested, or via an international courier service (e.g. FedEx, DHL, UPS, etc.) to the addresses of the parties set forth in this order. Notice so sent will be deemed effective three days following deposit in the mail, proper first class postage prepaid or one day following delivery to an international courier, prepaid for overnight delivery.
- Entire Agreement.
a. This document and attached proposal contains the entire agreement between Buyer and ISI and supersedes any prior or contemporaneous oral or written agreements or communications between them relating to the subject matter hereof. No printed terms in any document of Buyer shall apply to the products delivered under this agreement nor shall they be binding on ISI.
b. No delay or omission to exercise any right, power, or remedy upon a breach or default under this agreement shall impair any such right, power, or remedy of the non-defaulting party or be construed as a waiver of any such breach or default.
c. In the event that any provisions in this agreement, for any reason, shall be held void or unenforceable, the remaining provisions shall remain in full force and effect and shall control. - Governing Law. All orders shall be governed by and construed under the laws of the State of California, and shall be subject to the exclusive jurisdiction of the courts in Los Angeles County, California. In any action brought to enforce this agreement, the prevailing party shall be entitled to also recover the cost of enforcement, including attorney fees related thereto.