General.These terms and conditions apply to all bids, quotations, offers, and orders for the sale of SPYRUS products. Except as may be otherwise expressly set forth in an agreement executed by the authorized representatives of both parties, these terms and conditions represent the sole understanding between SPYRUS and buyer (“Buyer”) with respect to the purchase by Buyer and sale by SPYRUS of products. Buyer’s purchase order is solely for the purpose of requesting delivery dates, quantities and shipping destinations. Any provision of Buyer’s purchase order (or other documents and communications) which is in any way inconsistent with or in addition to these terms and conditions of sale shall not become part of this contract or otherwise be binding on SPYRUS.
Price and Payment.(a) All prices published by SPYRUS are in U.S. dollars and may be changed at any time without notice. Unless otherwise specified in writing, written quotations expire thirty (30) calendar days from the date issued and are subject to change or termination upon notice during this period. Unless otherwise agreed to in writing by SPYRUS, all prices are exclusive of transportation and insurance costs, applicable duty charges, foreign forwarding agent’s fees or fees covering consultant invoices, any documents required by the country of designation, and all taxes including federal, state and local use, sales, property (ad valorem) and similar taxes. Buyer agrees to pay such taxes (except taxes based upon SPYRUS’s net income) unless Buyer has provided SPYRUS with an exemption resale certificate in the appropriate form for the jurisdiction of Buyer’s place of business and any jurisdiction to which any product is to be directly shipped hereunder or unless such sale is otherwise exempt from such taxes. Buyer agrees to indemnify and hold harmless SPYRUS for any liability for such cost, expense or tax, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, such cost, expense and taxes shall appear as separate items on SPYRUS’s invoice.(b) SPYRUS will invoice Buyer no sooner than the date the product is tendered by SPYRUS to the carrier at SPYRUS’s shipping point (the “Delivery Date”). Unless otherwise indicated in writing, all invoices will be due and payable net thirty (30) days from date of invoice. In the event payment is not timely received, a service charge of one and one-half percent (1-1/2%) per month or the maximum rate permitted by law, whichever is less, shall be assessed on overdue payments. Buyer understands and agrees that this service charge is reasonable in light of the anticipated or actual harm, the difficulties of proof of loss, and the inconvenience of otherwise obtaining a remedy arising out of a default in payment. Buyer agrees to pay all costs and expenses incident to the collection of past due amounts including reasonable attorney’s fees.(c) SPYRUS retains the right to require, at SPYRUS’s option, that sales be entered into on the express condition that Buyer establish in favor of SPYRUS an irrevocable letter of credit confirmed by a federally chartered banking association acceptable to SPYRUS and payable to SPYRUS in United States dollars on presentation of a sight draft, a copy of a commercial invoice, a packing list, and a bill of lading indicating delivery to a carrier of the product for delivery to Buyer or to Buyer’s designee.(d) For sales to a Buyer having its principal place of business outside the United States of America, SPYRUS reserves the right to bill in either United States dollars or the currency of the country in which the product is shipped. In the event SPYRUS invoices Buyer in a foreign currency, the rate of exchange will be that in effect on the date of invoice.(e) Shipments, deliveries and performance of work shall at all times be subject to the approval of SPYRUS’s credit department and SPYRUS may at any time decline to make any shipments or deliveries or perform any work except upon receipt of payment or upon terms and conditions or security satisfactory to such department. If, in SPYRUS’s judgment, Buyer’s financial condition at any time does not justify continuation of production or shipment on the terms of payment originally specified, SPYRUS may require full or partial payment in advance. If Buyer refuses to accept such change in credit terms, the order may be cancelled without liability arising therefrom to either party, in whole or in part, at SPYRUS’s option. Further, on delinquent accounts, SPYRUS shall not be obligated to continue performance under any agreement with Buyer. Buyer warrants to SPYRUS that, upon each date on which Buyer placed an order with SPYRUS covered by this acknowledgment or agreement, Buyer was financially solvent within the meaning of Section 2702 of the California Uniform Commercial Code.(f) In the event of (i) Buyer’s bankruptcy or insolvency, (ii) any proceeding is brought or threatened against Buyer or brought by Buyer under any bankruptcy or insolvency laws or their equivalent or (iii) Buyer commences to be wound up or suffers a receiver to be appointed, SPYRUS may cancel any order then outstanding without liability to SPYRUS and SPYRUS shall receive reimbursement from Buyer for costs incurred, including but not limited to attorneys’ fees, lost profit for product so cancelled, and all other costs associated with the cancellation, direct and indirect, including without limitation costs for work in process or custom goods.
Title and Delivery.(a) All sales are made F.O.B. point of shipment, SPYRUS’s facility, unless otherwise specified by SPYRUS in writing. Title and risk of loss shall pass to Buyer upon tender by SPYRUS of the product to the carrier at SPYRUS’s shipping point. Unless otherwise agreed, SPYRUS will exercise its own discretion with respect to the manner of shipment, packaging, insurance, carrier and the like. All claims for damages must be filed directly with the carrier. Buyer is responsible for duty payments and/or duty exempt qualifications with regard to sales and/or shipment of products outside the U.S.A.
(b) SPYRUS will ship products in accordance with the planned shipment date as confirmed in SPYRUS’s order acknowledgment. However, the planned shipment date is an estimate only, and SPYRUS will not be subject to liability for failure to ship on or before such date under any circumstances. SPYRUS reserves the right to make partial shipments, and invoices will be issued accordingly. Unless otherwise agreed, SPYRUS shall not be obligated to arrange for deliveries outside the U.S.A.
SPYRUS shall not be liable for nonperformance or delays, under any circumstances, which occur due to any causes beyond its reasonable control. These causes shall include, but shall not be limited to, acts of God, wars, riots, strikes, fires, storms, floods, earthquakes, shortages of labor or materials, labor disputes, vendor failures, transportation embargoes, acts of any government or agency thereof and judicial actions. In the event of any such delay or failure of performance, the date of delivery shall, at the request of SPYRUS, be deferred for a period equal to the time lost by reason of the delay. In no event shall SPYRUS be liable for any delay or reprocurement costs for failure to meet any shipment date. SPYRUS reserves the right to allocate goods in a fair and equitable manner among all of its customers. SPYRUS shall notify Buyer within a reasonable time in writing of any such circumstances causing delay or nonperformance and, in the event of an allocation, of the estimated goods made available.
Limitation of Liability.
SPYRUS’s liability hereunder for all claims shall be limited to a refund or credit to Buyer of the purchase price, or to the repair or replacement of the product, at SPYRUS’s option. In no event shall SPYRUS be liable for Buyer’s costs of procurement of substitute goods, inability to obtain substitute goods or lost profits. IN NO EVENT SHALL SPYRUS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OR WARRANTY, NEGLIGENCE, OR OTHERWISE.
Proprietary Rights Infringement.
(a) SPYRUS shall defend any suit or proceeding brought against Buyer that is based on a claim that any product, or any part thereof, furnished under this agreement constitutes an infringement of any, patent, copyright, or other proprietary right of a third party resulting from Buyer’s use or possession of such product as authorized hereunder. SPYRUS shall defend and settle at its sole expense all suits or proceedings arising out of the foregoing, provided that Buyer notifies SPYRUS promptly of such claim and gives SPYRUS authority, information and assistance (at SPYRUS’s expense) for, and complete control of, the defense of the same. In case a product, or any part thereof, is held to infringe such patent, copyright, or proprietary right and its use is enjoined, SPYRUS may at its own expense, either procure for Buyer the right to continue using said product or part, replace the same with a non infringing product, modify it so it becomes non infringing or remove said product and refund the purchase price and the transportation and installation costs thereof. The foregoing states SPYRUS’s entire liability for infringement of any patent, copyright or other proprietary rights by its products or any part thereof. THIS PROVISION IS STATED IN LIEU OF ANY OTHER EXPRESS, IMPLIED, OR STATUTORY WARRANTY AGAINST INFRINGEMENT AND SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR PATENT, COPYRIGHT OR OTHER PROPRIETARY RIGHTS INFRINGEMENT OF ANY KIND, AND SPYRUS SHALL HAVE NO OBLIGATION TO OTHERWISE INDEMNIFY BUYER.
(b) Buyer agrees to defend, indemnify, and hold harmless against any loss, cost, liability, or expense (including reasonable attorneys’ fees and costs) (“Claims”) arising from or in connection with its impermissible use by Buyer of any SPYRUS product, including but not limited to: (i) use or incorporation of any SPYRUS technology that infringes on any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right of SPYRUS; (ii) which occurs as a result of a breach by Buyer hereunder, or (iii) which occurs as a result of the gross negligence or willful misconduct of Buyer or its employees, agents, representatives, or contractors.
Buyer may not assign this agreement or any interest or right herein without SPYRUS’s prior written consent. Any assignment without such consent shall be null and void at the SPYRUS’s option.
(a) Buyer shall give written notice to SPYRUS (and the carrier where appropriate) of (i) discrepancies between type and quantity of product ordered and product delivered or (ii) product defects, within thirty (30) days of delivery of the product to a common carrier or to Buyer, whichever is earlier. Lacking such notice, the Buyer shall be deemed to have accepted the product as invoiced.
(b) Product may be returned to SPYRUS as authorized only after prior notification and receipt of a Return Material Authorization (“RMA”) number. Product returned without a valid RMA number will be returned to Buyer at Buyer’s expense, or, at SPYRUS’s option, will not be accepted by SPYRUS.
(c) No credit allowances for defective products will be made or replacements therefor shipped until it is established to SPYRUS’s satisfaction after suitable testing and inspection that the product was in fact defective on the Delivery Date.
In the event of (a) any breach by Buyer of any term or condition set forth herein, (b) breach by Buyer of any representation or warranty made by Buyer in connection with this transaction or (c) default by Buyer in the payment of any amount due hereunder, SPYRUS may, in its sole discretion, decline to make further shipments without in any way affecting its rights under this agreement and may exercise all rights and remedies available to it in law or in equity. If, despite any such breach by Buyer, SPYRUS elects to continue to make shipments of the products, SPYRUS’s action shall not constitute a waiver of any such breach or default or in any way affect SPYRUS’s rights and remedies arising out of any such breach or default.
With respect to those products which SPYRUS licenses (software and related documentation) and which are supplied hereunder, the word “purchase” or similar or derivative word is understood to mean “license,” and “Buyer” or similar or derivative word is understood to mean “Licensee.” Title of licensed products shall remain with SPYRUS, notwithstanding anything to the contrary herein. Licensing of SPYRUS computer software shall be subject to standard SPYRUS software terms applicable to the product. SPYRUS® WORKSAFE™ AND WORKSAFE PRO™ AND OTHER DEVICES SOLD TO BUYER ARE SUBJECT TO THE TERMS AND CONDITIONS AND WARRANTIES PROVIDED HEREIN AND OTHERWISE WITH THE PRODUCTS WHEN THEY ARE SHIPPED TO BUYER. SPYRUS IS NOT RESPONSIBLE FOR THE LOSS OF BUYER’S DATA. SPYRUS DEVICES SHOULD NOT ACT AS THE SOLE REPOSITORY OF BUYER’S DATA AND SHOULD NOT BE USED AS A SUBSTITUTE FOR DATA BACK-UPS. BUYERS MUST ALWAYS UNDERTAKE TO MAINTAIN SYSTEM BACK-UPS FOR THEIR DATA, ON A SEPARATE SPYRUS DEVICE OR OTHERWISE AT BUYER’S DISCRETION. BUYER SHOULD FAMILIARIZE HIM/HER/IT SELF WITH THE TERMS AND CONDITIONS AND ANY DOCUMENTATION INCLUDED WITH BUYER’S DEVICE FOR AN ENUMERATION OF THE WARRANTIES PROVIDED AND THE METHODS BY WHICH TO SEEK ASSISTANCE IF THERE IS A PROBLEM.
EXCEPT FOR ANY WARRANTY PROVIDED IN THE PACKAGING OF A SPYRUS PRODUCT, OR CONTAINED IN ANY END USER LICENSE AGREEMENT, ALL SPYRUS PRODUCTS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY. SPYRUS SPECIFICALLY DISCLAIMS ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING DESIGN WARRANTIES, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PERFORMANCE OF THE PRODUCTS. BUYER SHALL HAVE NO RIGHT TO MAKE OR PASS ON ANY SUCH WARRANTY ON BEHALF OF SPYRUS TO ANY THIRD PARTY.
If SPYRUS delivers non-conforming goods or otherwise fails to perform any of its obligations hereunder, SPYRUS shall have ten (10) business days from Buyer’s written notice of the nonconformity or default to cure. If the default cannot be cured within such ten (10) business days, SPYRUS will be in compliance if it commences cure within such ten (10) business days and diligently pursues the cure to completion.
Buyer agrees to comply strictly and fully with all export controls imposed on the products by any country or organization of nations within whose jurisdiction Buyer operates or does business. Buyer agrees not to export or permit exportation of any part of the products or any related technical data or any direct product of any related technical data, without complying with the export control laws in the relevant jurisdiction.
All products are subject to SPYRUS’s standard specifications. SPYRUS reserves the right to make substitutions and modifications, including package and performance grade, in the specifications of any product without notification to or approval from Buyer provided that such substitutions or modifications do not materially, adversely affect the performance of the products or the purposes for which they can be used, or the form, fit, or function thereof.
If the goods to be furnished under this agreement are to be used in the performance of a U.S. Government contract or subcontract and a U.S. Government contract number appears on Buyer’s purchase order, those clauses of the applicable U.S. Government Procurement Regulations which (i) are mandatory under federal statute or regulation and (ii) must be included in the U.S. Government subcontracts for commercial products, shall be incorporated herein by reference. Buyer shall provide SPYRUS upon request with appropriate information relating thereto.
The validity, performance, and construction of this agreement shall be governed by the laws of the State of California as applied to transactions taking place wholly within California between California residents. The parties agree to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Santa Clara County, California.
SPYRUS hereby reserves a purchase money security interest in the products sold and the proceeds thereof, in the amount of its purchase price. In the event of default by Buyer of any of its obligations to SPYRUS, SPYRUS shall have the right to repossess the products sold hereunder without liability to Buyer. In such event, Buyer agrees to make the products available to SPYRUS so that SPYRUS can repossess them without a breach of the peace. This security interest will be satisfied by payment in full. A copy of this agreement may be filedwith appropriate authorities at any time as a financing statement and/or chattel mortgage, in order to perfect SPYRUS’s security interest. On request of SPYRUS, Buyer will execute any other financing statements and instruments SPYRUS desires to perfect its security interest.
Acceptance of Terms.
Any purchase order tendered in response to a SPYRUS quotation, of which these terms and conditions are an integral part, is deemed to be full acceptance of these terms and conditions.
Data and Proprietary Rights in Data.
Portions of the data supplied are proprietary to SPYRUS. SPYRUS retains for itself all proprietary rights in and to all designs, engineering details, and other data pertaining to any product sold.
This agreement may be amended or supplemented only by a writing that refers explicitly to this agreement and that is signed on behalf of both parties.
No term or provision of this agreement will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
If any part of this agreement is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this agreement will remain in full force.
All notices, reports, requests, approvals and other communications required or permitted under this agreement must be in writing. They will be deemed given when (a) delivered personally, (b) sent by confirmed telex or facsimile, (c) sent by commercial overnight courier with written verification of receipt, or (d) sent by registered or certified mail, return receipt requested, postage prepaid. All communications must be sent to the receiving party’s address that the receiving party provided for purpose of notice as provided in this Section 23.
Allocation of Risk.
The sections on limitation of liability, limitation of warranties and the infringement indemnity allocate the risks of this agreement between the parties. This allocation is reflected in the pricing of the products purchased hereunder and is an essential element of the basis of the bargain between the parties.
These terms and conditions constitute the entire agreement between the parties. This agreement shall not be modified, supplemented, qualified or interpreted by any trade usage or prior course of dealing without SPYRUS’s and Buyer’s written consent. No representation, promise or condition not expressly provided in writing and signed by authorized representatives of Buyer and SPYRUS shall be binding on either party.