Alpha Data Incorporated ("Alpha Data") agrees to supply and you ("Customer") agree to purchase / license / sublicense products and services ("Products") quoted herein subject to these terms and conditions, regardless of other or additional terms or conditions that conflict with or contradict this Agreement on any purchase order form or document you submit to Alpha Data.
1. USE OF PRODUCTS: You agree that the Products will not be used for, or in the design of any ultra-hazardous applications, including but not limited to; air traffic control, critical care operations, mining, nuclear installations, safety critical systems, or any other applications that could lead to death, personal injury or severe property or environmental damage.
2. PAYMENT TERMS: Credit terms are granted or revoked at the sole discretion of Alpha Data. Cash in advance of shipment is required, or upon approved credit net thirty (30) days from our invoice date, or as otherwise approved in writing by Alpha Data. Each shipment will have a separate invoice. A late payment fee of the lesser of 1.5% (18% APR), or the maximum interest rate allowed by law, of the invoice total will be charged for each month (or portion thereof) that an invoice remains past due. If Customer defaults on any payment under this Agreement, Alpha Data may reschedule or cancel any outstanding delivery and declare all outstanding invoices due and payable immediately. Customer is also responsible for any reasonable costs, including legal fees, incurred by Alpha Data in the collection of any invoice balance not paid within the previously stated credit term.
3. SHIPPING AND DELIVERY: Unless otherwise expressly agreed to by Alpha Data, Products shipped by Alpha Data to you will be shipped at your expense F.O.B. origin. Freight charges will be prepaid and added to the Alpha Data invoice, or billed via your carrier account when provided. Alpha Data's delivery dates are estimates only and subject to timely receipt of materials from suppliers. Alpha Data is not liable for delays in delivery. Alpha Data reserves the right to make partial deliveries and Customer will accept delivery and pay for the Products delivered. A delayed delivery of any part of an Order does not entitle Customer to cancel other deliveries.
4. TAXES: Prices quoted do not include any federal, state, municipal or other foreign government duties or taxes (such as sales, use, etc.) that may be imposed. We will honor properly presented sales tax exemption certificates supplied at the time of the order.
5. CANCELLATIONS AND RESCHEDULING: Customer may reschedule orders for standard products (items listed on www.alpha-data.com at time of order) without charge if notification is provided in writing 60 days or more before Alpha Data's acknowledged shipment date. Customer may cancel orders for standard products for a 30% fee if notified in writing 29 or more days before Alpha Data's acknowledged shipment date. Orders within 28 days of Alpha Data's acknowledged date of shipment may not be cancelled. Any cancellations that result in fewer units shipped than the number of units in Customer's purchase order may result in a bill-back for the difference in price due to a lesser quantity discount applicable to the number of units delivered. Any order placed for custom or special products (items not listed on www.alpha-data.com at time of order) are non-cancellable. All Alpha Data Products are non-returnable.
6. PATENT AND TRADEMARK INDEMNITY: Alpha Data shall have no duty to defend, indemnify, or hold Customer harmless from and against any or all damages and costs incurred by Customer arising from the infringement of Patents or Trademarks or the violation of Copyrights by goods which were not manufactured by Alpha Data.
7. WARRANTY: Products returned to Alpha Data within one year of the date of invoice and found to have defective material or workmanship will be repaired or replaced at Alpha Data's discretion, material and manufacturing costs of repairs will be met by Alpha Data provided damage has not been caused by misuse or handling. Alpha Data must be contacted prior to return of goods in order to issue Customer with a valid RMA (Returns Material Authority) number.
8. LIMITATIONS OF LIABILITY: The above warranty provides the exclusive remedies in lieu of any other warranty, including but not limited to Warranty of Merchantability, Fitness for Particular Purpose, and Fitness for Ordinary Purpose Used or Purpose Intended. Alpha Data's sole liabilities and Customer's sole remedies under this agreement are limited as provided in the Warranty by repair, or by replacement, or by refund of the purchase price. Alpha Data shall not be liable for any direct, indirect, consequential, or incidental damages resulting from defects in any instrument, equipment, product, or service, nor for failure of delivery in whole or in part, nor for injuries resulting from its use or for any other causes.
9. ERRORS, PRICE CHANGES & AVAILABILITY: Alpha Data shall not be held liable for mistakes or typographical errors. Prices are subject to change without notice. Products listed are subject to availability and may change without notice.
10. FORCE MAJEURE: Alpha Data shall not be liable for any failure to perform under a purchase Agreement resulting from any cause beyond the reasonable control of Alpha Data, including, but not limited to, an act of God; accident; telephone service provider problem; war; fire; lockout; strike or labor dispute; riot or civil commotion; act of the public enemy; enactment, rule, order or act of civil or military authority; or acts or omissions of any other party, including Alpha Data's Vendor.
11. EXPORT/IMPORT. Certain Products and related technology and documentation sold by Alpha Data are subject to export control laws, regulations and orders of the United States, the European Union, and/or other countries ("Export Laws"). The Customer shall comply with such Export Laws and obtain any license, permit or authorization required to transfer, sell, export, re-export or import the Products and related technology and documentation.
12. PRODUCT INFORMATION: Information related to a Product's specifications, features, export/import control classifications, uses or conformance with legal or other requirements is provided by Alpha Data on an "AS IS" basis and does not form a part of the properties of the Product. Alpha Data has a policy of continually improving its products; hence it reserves the right to change product specifications without prior warning, provided such Products substantially conform to the form, fit, and function of the original product. Alpha Data reserves the option to substitute faster speed grade and/or higher rated parts, provided it substantially conforms to the form, fit, and function of the product as ordered.
13. APPLICABLE LAW, CHOICE OF VENUE: This Agreement is entered in Colorado, USA and shall be governed by, construed and enforced in accordance with, the laws of the State of Colorado, notwithstanding any application of choice of law principles.
14. TERMINATION: Alpha Data has the right to terminate or change this Agreement without notice.
15. ASSIGNMENT & SURVIVAL: This Agreement, including, all of its underlying obligations, may not be assigned by you without the express, written consent of an officer of Alpha Data. The provisions of the Patent and Trademark Indemnity, Disclaimer of Warranties and Limitation of Liability, Assignment and Survival, and Applicable Law, Choice of Venue sections of this Agreement shall survive any termination of this Agreement.
16. SEVERABILITY: In the event any term, provision or covenant of this Agreement shall be judged by any court of competent jurisdiction to be unenforceable, then the validity of the remaining terms, provisions and covenants shall be unaffected and this Agreement shall be construed as if the unenforceable provision had never been a part of it. If any term, provision or covenant of this Agreement shall be judged unenforceable by a court of competent jurisdiction by reason of its duration, scope or a combination thereof, such covenant shall be adjusted to the extent necessary to cure such lack of enforceability, and this Agreement shall be construed as if such provision had originally been agreed to in its adjusted form.
17. ENGINEERING SAMPLES: Engineering Samples are made available solely for purposes of research, development and prototyping. Customer agrees not to use Engineering Samples for production purposes.. Alpha Data's limited warranty does not apply to Products with part number containing "ES" as part of the part number.