(Ascent 4 RF
Services. is designated below as "Seller")
DEFINITIONS
In these Terms:
“Ascent 4” means
Ascent 4 RF Services Ltd.
"Repair" means any
equipment serviced or service and related documentation
available from Seller. Software includes computer software owned
by Seller, third party computer software that has been provided
for use in association with Seller's software and computer
software that has been custom designed or modified for Buyer.
"Goods" mean all
hardware and other tangible products, but does not include
Software or the media on which Software is stored.
"Services" means
any services provided by Seller to Buyer. Services include
custom engineering and development, consulting, support and
training services.
"Products" means
any or all RF Power Supplies, Impedance Matching Networks, Goods
and Services.
1.SCOPE
The terms and
conditions of sale contained herein shall apply to all Purchase
Orders from a Buyer, in whatever format and however received,
that are accepted by Seller (such Purchase Orders shall be
designated below as "Orders" or "Order" as the context
requires). Any acceptance by Seller of Buyer's Order is made
conditional upon the Buyer's acceptance of a counteroffer,
consisting of the additional or different terms and conditions
contained herein. Buyer may accept the counteroffer by written
acknowledgment or by acceptance of, or payment for, any of the
Seller's Products or in any other fashion. In any event, Buyer
shall be deemed to have accepted the counteroffer unless it is
rejected in writing within ten (10) days of the Buyer's receipt
of the Terms. The acceptance by Buyer of the Terms, including
the different terms and conditions contained herein, shall
revoke any provision in the Order that purported to limit or
restrict an acceptance by the Seller to the terms in the Order.
Upon acceptance of
the Terms by the Buyer, all of the terms and conditions
contained herein shall supersede any additional or inconsistent
provision in any Order. These Terms, as well as the accepted
terms and conditions of any Order, are intended to supplement,
but are expressly made subordinate and subject to, the terms and
conditions contained in all applicable Software license
agreements as well as to any non-disclosure, license, VAR, OEM,
development, support, beta test and distribution agreement (in
total "the Agreements") previously or subsequently entered into
by the Buyer and the Seller. The acceptance by Buyer of the
Terms, including the different terms and conditions contained
herein, shall also indicate that the Buyer has accepted and
agrees to abide by the Agreements that were provided to the
Buyer with the Products. The Agreements shall supersede any
inconsistent provisions, in either these Terms or the accepted
terms and conditions of an Order, in respect of the specific
Products to which they relate and while the Agreements are
subsisting.
Provisions, terms
and conditions within any Order, or other document submitted by
Buyer to Seller, that are inconsistent with the terms contained
herein are hereby expressly rejected and shall not be binding
upon Seller without its specific written consent. Buyer agrees
that Seller's failure to specifically object to any such
provisions, terms or conditions submitted by the Buyer shall not
constitute an acceptance by Seller thereof nor shall it
constitute an acceptance by Seller of any waiver of, or
modification to, the provisions hereof.
No modification
hereof shall be valid unless in writing and duly signed by a
person authorized by Seller. The provisions hereof shall not be
supplemented by any usage of trade or any course of prior
dealings or acquiescence in any course of performance.
2. SOFTWARE
All Software is
provided to Buyer under license, it is not sold. All Buyers must
use and transfer Software strictly in accordance with the terms
and conditions in the applicable Software license agreements
entered into with the Seller. The Software license agreements
shall be specific to the Software provided and to its permitted
uses. Until such Software license agreements are in place, and
the terms therein accepted by the Buyer, the Buyer cannot use,
copy, distribute or otherwise deal with any Software. Buyers who
are end users of the Software, must accept the terms of the End
User License Agreement ("EULA") which accompanies the Software.
Any Buyer who is
unable or unwilling to accept the terms contained in any
Software license agreement with the Seller must immediately
return the Software and will receive a full refund.
In no event shall
these Terms convey any right, title, interest or license in, to
or under the Software, or any associated intellectual property
rights, over and above those contained in any Software license
accepted by the Buyer. These Terms shall not be construed to
imply a license to use the Software in the absence of a license.
By these Terms, Seller expressly rejects any implied license to
use the Software.
3. ORDERS
All Orders are
subject to acceptance by Seller. Seller reserves the right to
accept or reject any Order in whole or in part, to submit
counteroffers to the Buyer and, without prejudice to any other
remedy, to cancel any unfilled Order. The Seller may suspend
Services under, or shipment of, any unfilled Order in the event
any act or omission on the part of the Buyer is in breach of the
Buyer's obligations hereunder or delays the Seller's performance
hereunder.
4. TAXES
All taxes, levies
and duties of any nature whatsoever applicable to the Products
supplied hereunder shall be paid by Buyer unless Buyer provides
Seller with an exemption certificate acceptable to the relevant
taxing authority. Unless otherwise specified, the prices shown
do not include any taxes.
5. PRICES AND
PAYMENT
All prices are
subject to change without notice, except prices in a written
quote from Seller which if less than 30 days old shall be
honoured as stated therein. All Orders are also subject to
credit approval before shipment. Where Buyer has established
credit, payment shall be due thirty (30) days from the date of
invoice. Overdue accounts shall bear interest at a rate equal to
the lesser of one (1) percent per month compounded monthly
(annual rate of 12.68%) or the highest rate permitted by
applicable law. All amounts are stated, and payments are to be
made, in Great British currency unless otherwise agreed by the
parties in writing. Each shipment shall be considered a separate
and independent transaction and payment therefor shall be made
accordingly. If, in Seller's judgment, Buyer's financial
condition does not at any time justify payment terms as
previously specified, Seller may cancel or suspend any unfilled
Order unless Buyer shall, upon written notice, immediately pay
for any Products to be shipped or Services to be provided or pay
in advance for all Products ordered but not shipped or provided,
as applicable, or both, at Seller's option. If, despite any
default by Buyer, Seller elects to continue to make shipments or
provide Services and Products, Seller's action in so doing shall
not constitute a waiver of any default by Buyer or in any way
prejudice Seller's legal remedies for such default.
“We
understand and will exercise our statutory right to interest
under the Late Payment of Commercial Debts (Interest) Act 1998
if we are not paid according to agreed credit terms.”
6. TITLE AND
DELIVERY
Delivery dates are
approximate. Seller shall use reasonable efforts to fill all
Orders according to the shipment schedule provided by Seller at
the time of the acceptance of the applicable Order, but in no
event shall Seller guarantee shipment according to such schedule
or be liable for damages due to delays in the delivery.
Buyer shall attach
to all Orders the necessary information to permit Seller to
commence its work, together with any import license and/or
permits and related certificates which may be necessary and
which shall be supplied by Buyer, at Buyer's expense.
All shipments
shall be made by Seller Free Carrier (or "FCA"as defined in the
ICC Incoterms 1990), Seller's production and/or distribution
facilities as may be specified by Seller from time to time
unless otherwise specified in Seller's Sales Acknowledgment. To
the extent that title passes in respect of any Product shipped
by the Seller, the title to such Product shall pass to Buyer
upon delivery thereof by Seller to the carrier. Liability for
loss of, or damage to, Products in transit, or thereafter, shall
pass to Buyer upon Seller's delivery of the Products to the
carrier for shipment to Buyer. In the absence of specific
instructions, Seller shall select the carrier. Any Products held
or stored for Buyer shall be at Buyer's risk and expense if, at
Buyer's request, a shipment is postponed for more than ten (10)
days after the date the Products are ready for shipment. Claims
against Seller for shortages of Products delivered must be made
within thirty (30) days after arrival of shipment to the
destination specified in the Order. Claims against Seller
relating to shipping or the carrier must be made within seven
(7) days after such arrival date.
Unless otherwise
agreed in writing, Seller may make partial shipments and the
terms and conditions herein contained shall apply separately for
each shipment.
7. WARRANTY AND
LIMITATION OF LIABILITY
Subject to the
limitations and exclusions below, Seller warrants that the
Products will substantially conform with Seller's published
specifications relating to the Products for a period of six (6)
months from date of shipment for Products and for a period of
ninety (90) days from date of shipment for any Repairs and
Services which are furnished to Buyer.
Seller shall incur
no liability under this warranty unless:
a. Seller is,
within the applicable warranty period, promptly notified in
writing by Buyer of the discovery of any such non-conforming
Products;
b. Buyer
immediately returns, upon written authorization from Seller to
do so, transportation charges prepaid, such alleged
non-conforming Products in the form in which originally shipped,
with the "Return Material Authorization Number" provided by
Seller clearly displayed; and
c. Seller's test
procedures disclose that the Products do not substantially
conform with Seller's applicable specifications.
In no event,
however, shall Seller be responsible for any non-conformance or
other defects in the Products due to physical damage to the
Products as a result of improper handling during or after
shipment, misuse, neglect, improper installation or operation,
repair, alteration, accident or for any other cause not
attributable to defective workmanship on the part of Seller.
For Products
manufactured, created or offered in whole or in part to Buyer's
designs, specifications or instructions ("Custom Products"),
Seller warrants only that it will use commercially reasonable
efforts to make the Custom Products substantially conform, at
the date of final shipment, to such designs, specifications and
instructions that are accepted in writing by Seller. The
warranty for Custom Products is subject to all the limitations
and exclusions set out in this Section 7 (except for the first
paragraph hereof which does not apply to Custom Products).
Seller's liability
under this warranty shall be limited, at Seller's option, to
either repair or replace such non-conforming Products at its own
expense or reimburse Buyer the price paid by Buyer to Seller for
such Products. Any Products which are replaced or repaired
hereunder shall carry only the unexpired term of the warranty
applicable to such replaced or repaired Products. Any amounts
payable by Seller hereunder are based on the price of the
Products supplied. The scope of liability set out in this
Paragraph is unrelated to the value of Buyer's products or
business generally.
EXCEPT AS
EXPRESSLY WARRANTED ABOVE, PRODUCTS ARE PROVIDED "AS IS" WITHOUT
OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND,
INCLUDING IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. EXCEPT FOR THE LIMITED REMEDIES PROVIDED
ABOVE, BUYER ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND
PERFORMANCE OF THE PRODUCTS. NOTHING STATED IN THIS AGREEMENT
WILL IMPLY THAT THE OPERATION OF ANY PRODUCTS WILL BE
UNINTERRUPTED OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED.
OTHER WRITTEN OR ORAL STATEMENTS BY SELLER, ITS REPRESENTATIVES,
OR OTHERS DO NOT CONSTITUTE WARRANTIES OF SELLER.
IN NO EVENT WILL
SELLER OR ITS OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS,
DISTRIBUTORS, OR LICENSORS, (COLLECTIVELY, "ITS
REPRESENTATIVES") BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES
WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST REVENUE, LOST OR
DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, ARISING OUT
OF OR RELATING TO ANY BREACH OF THESE TERMS, THE SALE, SUPPLY OR
LICENSE OF PRODUCTS, OR ANY USE OR INABILITY TO USE PRODUCTS, OR
ANY CLAIM MADE BY A THIRD PARTY, EVEN IF SELLER OR ITS
REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE OR CLAIM.
IN NO EVENT WILL
THE AGGREGATE LIABILITY OF SELLER AND ITS REPRESENTATIVES FOR
ANY DAMAGES OR CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS,
OR THE PRODUCTS SOLD, SUPPLIED OR LICENSED TO BUYER, WHETHER IN
CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT BUYER HAS
PAID TO SELLER RELATING TO THE SALE, SUPPLY OR LICENSE OF
PRODUCTS SUBJECT TO THESE TERMS IN THE 12 MONTH PERIOD PRECEDING
THE EVENT GIVING RISE TO THE CLAIM. SELLER'S AND ITS
REPRESENTATIVES' LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL
OF SELLER'S AND ITS REPRESENTATIVES' PAYMENTS IN SATISFACTION OF
THEIR LIABILITIES BEING AGGREGATED TO DETERMINE SATISFACTION OF
THE LIMIT. THIS SECTION SHALL SURVIVE AND APPLY NOTWITHSTANDING
THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BUYER
AGREES THAT THESE LIMITATIONS OF LIABILITY ARE AGREED
ALLOCATIONS OF RISK AND ARE REFLECTED IN THE FEES AGREED UPON BY
THE PARTIES.
8. SELLER'S
OWNERSHIP OF TECHNOLOGY
Unless agreed
otherwise in writing by Seller, Seller shall retain all right,
title and interest in and to, and possession of, all its
proprietary technology, including but not limited to, all
copyright, patent, trade secret and other intellectual property
rights associated with any ideas, concepts, methods, processes,
techniques, inventions or works of authorship (including
programs, Improvements and documentation) developed or created
by or on behalf of Seller for furnishing Products under any
Order accepted by Seller. Seller may use this proprietary
technology in any of its Products, in whole or in part, even if
the proprietary technology was developed expressly for use by
Buyer.
Buyer shall take
such further actions, including the execution and delivery of
instruments of conveyance, as may be reasonably requested by
Seller, to give full and proper effect to the provisions of this
Section and/or to obtain waivers of associated moral rights.
Buyer shall own
only the authorized modifications that it makes to Products,
except for Improvements. Where used in these Terms, the word
"Improvements" means work-arounds, error corrections or
enhancements that are not specific to the intended use of the
Products and that the Buyer discloses or suggests to Seller. All
right, title and interest in and to Improvements shall be owned
by Seller, unless Seller has otherwise expressly agreed in
writing. Buyer acknowledges that it is under no obligation to
make such disclosures or suggestions to Seller.
9. CUSTOM PRODUCTS
AND SERVICES
Seller provides no
representation, guarantee, condition or warranty, expressed or
implied, with respect to (i) the correctness or applicability of
Buyer's designs, specifications or instructions for any Custom
Products, or (ii) the functionality or performance of the Custom
Products or any products derived from or using any of the Custom
Products supplied hereunder. Other than specified herein, all
Custom Products are sold, delivered or licensed to Buyer "AS IS,
WITH ALL DEFECTS".
Seller retains
sole discretion to assign and control its staff in the
production of Custom Products or in the performance of any work
associated with the development of Custom Products. Development
times and milestones provided by Seller for any Custom Products
are estimates only. No guarantee, condition, warranty or
representation is made by Seller with regard to the success,
timeliness, or successful result of the Custom Products. Design
changes may be necessary to correct unanticipated deficiencies
resulting from manufacturing process, software bugs,
functional/operational issues or other anomalies. Revisions,
modifications or testing requested by the Buyer that are beyond
the original scope of any Custom Product Order accepted by
Seller may result in additional charges to Buyer.
10. SUBSTITUTIONS
AND MODIFICATIONS
Seller reserves
the right to modify the specifications of Products designed by
or for Seller, without notice, provided that the modification
will not materially affect the performance, form, or fit of the
affected Products.
11. FORCE MAJEURE
Neither Buyer nor
Seller shall be liable for failures in performance, including
delay or non-shipment, resulting from acts or events beyond its
reasonable control. Such acts or events shall include, but shall
not be limited to, acts of God, civil or military authority,
civil disturbance, fire, strikes, lockouts or slowdowns, factory
or labour conditions, errors in manufacture, inability to obtain
necessary labour, materials or manufacturing facilities, delayed
issuance of export control licenses, or other "force majeure"
events beyond the reasonable control of the non-performing
party. In the event of such delay, the date of shipment shall,
at the request of Seller, be deferred for a period equal to the
time lost by reason of the delay and otherwise for a reasonable
time.
12. CANCELLATION
AND RESCHEDULING CHARGES
Unless agreed
otherwise in writing by Seller, the following cancellation and
rescheduling terms shall apply to all Orders:
a. should Buyer
cancel any Order for Custom Products, or Services other than
training services, Buyer shall pay to Seller that portion of the
purchase price for the Custom Products or Services equal to the
portion of the Custom Products completed or the Services
performed on the date of receipt of notice of cancellation. This
may also include any additional charges for one off engineering
on Custom Products.
b. should Buyer
cancel any Order for Services which are training services, Buyer
shall pay to Seller (i) an administration fee of 5% of the Order
or £100, whichever is greater; plus (ii) the purchase price of
the training services if Buyer cancels within 7 days of the
scheduled training course and Seller is unable to find another
buyer for the training services. All of these payments shall be
deemed to represent reasonable estimates of Seller's liquidated
damages and are not penalties.
13. ASSIGNMENT
Buyer may neither
assign nor transfer its rights to any Order accepted by Seller,
by operation of law or otherwise, without the prior written
consent of Seller. Seller's affiliated companies may participate
in Seller's performance hereunder.
14. GOVERNING LAW
and DISPUTE RESOLUTION
These Terms and
Conditions shall be governed by and construed in accordance with
English law. Disputes arising in connection with these Terms and
Conditions shall be subject to the exclusive jurisdiction of the
English courts. The United Nations Convention on Contracts for
the International Sale of Goods ("Vienna Convention") shall not
apply to any such Order or counteroffer.
If Buyer fails to
perform any of its obligations pursuant to an accepted Order and
counteroffer, Buyer shall pay Seller all costs and expenses
incurred by Seller, including all attorney's fees, in enforcing
Seller's rights relating to such Order and counteroffer, whether
by formal proceedings or otherwise, in addition to any other
remedy available to Seller.
15. WAIVER
No waiver by
either party of any breach of any of these terms and conditions
by the other party shall be deemed to constitute a waiver of any
other breach nor shall any delay or omission on the part of
either party to exercise or avail itself of any right or remedy
hereunder operate as a waiver thereof. A waiver given by a party
hereunder shall be binding upon such party only if in writing
and signed by such party.
16. EXPORT
CONTROLS
Buyer agrees to
comply with all applicable laws, rules and regulations and
obtain all permits, licenses and authorizations or certificates
that may be required in connection with its purchase or
licensing of Products. This includes any laws, regulations,
orders or other restrictions on the export of Products from the
United Kingdom which may be imposed from time to time by
Government. Buyer shall not export or re-export, directly or
indirectly, Products or information pertaining thereto to any
country for which either such government or any agency thereof
requires an export license or governmental approval at the time
of export or re-export without first obtaining such license or
approval.