THESE GENERAL TERMS AND CONDITIONS REPRESENT THE ENTIRE AGREEMENT BETWEEN YOU (“BUYER”) AND COLORCHIP LTD. (“SELLER”) CONCERNING THE SELLER’S PRODUCT ORDERED AND/OR RECEIVED (WHETHER FOR CONSIDERATION OR NOT) BY BUYER .
ACCEPTANCE OF TERMS
BUYER ACCEPTS THESE TERMS AND CONDITIONS (i) BY WRITTEN ACCEPTANCE (ISSUANCE OF A PURCHASE ORDER OR OTHERWISE), OR (ii) BY FAILURE TO RETURN PRODUCTS ORDERED FROM SELLER WITHIN FIVE DAYS OF DELIVERY. When the purchase order is issued by Buyer and accepted by Seller, a binding contract for the purchase and sale of goods shall have been made.
Buyer shall order products in a form acceptable to Seller by issuing a purchase order. Each purchase order shall include the products ordered, quantity, total cost in accordance with Seller’s then applicable price list and/or price quotation, shipping location, requested shipping date (in accordance with the appropriate lead times), method of delivery, requested carrier, requested packaging, requested type of insurance and method of payment. Acceptance of purchase orders and shipments are subject to availability. No order shall bind Seller until accepted by an authorized person in writing. Seller may, at any time and at its sole discretion, accept or reject any order submitted by Buyer. Seller shall have no liability to Buyer as a result of such refusal of any such orders submitted. If the terms and conditions of Buyer’s purchase order conflict, in whole or in part, with the provisions of the Terms and Conditions of Sale effective at such time, such terms and conditions set forth in Buyer’s orders shall be of no force or effect whatsoever. Seller shall make commercially reasonable efforts to meet the date(s) quoted or acknowledged; however, Buyer understands that delivery is dependant on third parties outside Seller’s control and in no event Seller shall be liable for any delays. Buyer’s sole and exclusive remedy for any unreasonable delay in delivery shall be rescission of the purchase order. Unless otherwise explicitly specified in the Seller’s order confirmation, the prices specified by Seller, whether in Seller’s quotation, Seller’s order confirmation or otherwise are Ex Works and are exclusive of freight, insurance, all applicable taxes, fees duties and other shipping expenses and charges. All such costs and taxes, including value added tax regardless of origin, shall be solely borne by Buyer.
CANCELLATION AND RESCHEDULING
Any purchase order issued by Buyer and accepted by Seller may not be rescheduled, cancelled or otherwise modified unless Buyer’s written request for such cancellation or reschedule is received by the Seller 70 days prior to scheduled shipping date. Such approval shall not be withheld by Seller subject to payment of the appropriate cancellation/rescheduling fee by Buyer.
Unless otherwise explicitly specified in Seller’s order confirmation, delivery shall be made Ex Works Seller’s premises. Risk of loss or damage shall pass to Buyer upon departure from Seller’s premises. Seller shall retain title to the products until all payment due to Seller has been effected by Buyer. The INCOTERMS of the International Chamber of Commerce shall apply insofar as they are not inconsistent with the terms of these terms and conditions.
TERMS OF PAYMENT
Terms of payment shall be as specified IN Seller’s quotation or, if not specified, by irrevocable Letter of Credit. Unless otherwise specified in Seller’s quotation, payment shall be made net 30 days from Seller’s issuance of invoice. Payment shall be made in US$. Accounts past due shall bear an interest at the rate of two percent (2%) per month (or the maximum permitted by applicable law). Seller reserves the right to change credit terms at any time at its sole discretion. Applicable sales and value added taxes will be invoiced unless a valid tax-exempt certificate is supplied by Buyer prior to delivery.
Seller warrants that the products sold, if properly used, shall be free from defects in material and workmanship and shall substantially comply with Seller’s applicable published specifications for a period of one year from the date of Seller’s shipment. The said warranty shall not include products or parts which have been subject to abuse (including repeated or extended exposure to conditions at or near the limits of applicable absolute ratings), misuse, accident, alteration (including alterations to the markings on the products), neglect, unauthorized repair or improper application. Except as provided below with respect to intellectual property in Seller’s standard products, Seller makes no warranty with respect to custom products or goods produced to Buyer’s specifications (unless specifically specified otherwise in writing). Seller does not warrant that products sold will be free from design defects or errors known as “errata”. For the purpose hereof, “errata” are design defects or errors that may cause the products to deviate from published specifications. No warranty is made with respect to products used in devices intended for use in applications where failure to perform when properly used can reasonably be expected to result in significant injury (including, without limitation, navigation, aviation or nuclear equipment, or for surgical implant or life support systems) and Buyer agrees to indemnify, defend, and hold harmless Seller from all claims, damages and liabilities arising out of any such use.
This Paragraph represents Seller’s exclusive warranty with respect to any and all ordered products and may not be modified or amended except in writing signed by an authorized representative of Seller and by Buyer.
Notwithstanding any cross-reference or any statement of compatibility, functionality, interchangeability, and the like made by Seller, Buyer hereby acknowledges and agrees not to rely on any application or circuit contained in Seller’s literature, and to test any and all parts and applications independently and under extended fields. Buyer further acknowledges that Seller’s products may differ from similar products distributed by other vendors in performance, function or operation, as well as other fields not contained in Seller’s written specifications, or as to ranges and conditions outside such specifications.
EXCEPT AS PROVIDED ABOVE, NO WARRANTIES OR REPRESENTATIONS OF ANY KIND WHATSOEVER ARE MADE IN RELATION TO OR ARISING FROM THE PROVISION OF ANY GOOD, SERVICES OR OTHERWISE AND ALL OTHER WARRANTIES, CONDITIONS OR OBLIGATIONS IMPOSED OR IMPLIED BY STATUTE OR OTHERWISE ARE EXPRESSLY EXCLUDED. SELLER EXPRESSLY EXCLUDES AND DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR APPLICATION. If any products furnished by Seller fail to conform to the warranty, Seller’s sole and exclusive liability will be, at Seller’s option, to repair, credit or replace any such products, which fail during the applicable warranty period, provided that Buyer complies with the Seller’s Return Material Authorization Policy effective at such time.
LIMITATION OF LIABILITY
IN NO CIRCUMSTANCES WHATSOEVER SHALL SELLER BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, ANTICIPATED SAVINGS, PRODUCTION, CONTRACTS, GOODWILL OR BUSINESS OPPORTUNITIES OR ECONOMIC LOSS NOT AS A RESULT OF DAMAGE TO TANGIBLE PROPERTY OR LOSS IN CONNECTION WITH THIRD PARTY CLAIMS OR FOR ANY OTHER INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS. IN NO EVENT WILL SELLER BE LIABLE FOR ANY MONETARY DAMAGES OR OTHER COSTS ASSOCIATED WITH WARRANTY CLAIMS, AND BUYER’S SOLE REMEDY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT AND/OR ANY PRODUCTS SOLD SHALL BE LIMITED TO THE RETURN OR REPAIR OF THE PRODUCTS IN THE WARRANTY PERIOD AS DETAILED ABOVE.
No action against Seller, whether for breach, indemnification, compensation or otherwise, shall be initiated more than one year after the occurrence of the cause of such action, or more than one year after either the Buyer, a user or any other person learned, or with reasonable diligence should have learned, of such any claim; and no such claim may be brought unless Buyer has first been given commercially reasonable notice, a full written explanation of all pertinent details, and a good faith opportunity to resolve the matter.
ALTERATIONS AND MODIFICATIONS
Seller may at any time make alterations and/or modifications to products which do not materially and adversely affect overall performance according to the then current Seller specifications. Seller reserves the right to halt production or alter specifications and prices without notice. Buyer shall be responsible for verifying that the literature and information is current and updated before purchasing.
CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS
Seller shall have no obligation to hold any information in confidence except as provided in a separate confidentiality and non-disclosure agreement dully executed by both parties. The sale of the products under any purchase order shall in no way be deemed to confer upon Buyer any right, interest or license in any patent, patent application, design, copyright, trademark, service mark or trade name Seller may have covering the products sold. Seller retains for itself all proprietary rights in any way pertaining to its products. Buyer warrants that it will not, and will not permit or assist any other person or entity to, divulge, disclose, or in any way distribute or make use of such proprietary information, and that it will not and will not engage, permit or assist any other person or entity to, modify, reverse engineer or manufacture any such products.
These terms and conditions (as supplemented, modified or varied from time to time by Seller) represent the entire agreement and understanding reached between Seller and Buyer and supersede all other prior terms or conditions of business whether written or oral (other than fraudulent pre-contractual misrepresentations) between Seller and Buyer and all such prior terms or conditions of business are hereby superseded. Buyer acknowledges that by accepting these terms and conditions it has not relied on any representation of whatsoever nature made by or on behalf of Seller whether orally, in writing, by conduct or any other means other than as expressly set out in these terms and conditions.
These terms and conditions and all performance and disputes arising out of or related to products in question, shall be governed by the laws of the State of Israel, without reference to conflict of laws principles and excluding the U.N. Convention on Contracts for the international Sales of Goods. The parties hereby irrevocably agree to submit any claim arising out of or related to these terms and conditions to the competent courts of Tel-Aviv – Jaffa. Buyer agrees at its sole expense to comply with all applicable laws in connection with the purchase, use or sale of the products provided hereunder.