EXHIBIT 10.26
GENERAL TERMS & CONDITIONS OF SALE OF OTI
1. ORDERS, PRODUCTS AND SOFTWARE*
Unless otherwise stated in a written agreement signed by OTI Asia
Pacific Ltd. (hereafter called "VENDOR"), the terms and conditions
herein shall apply to sales made by the Vendor. Notwithstanding
anything to the contrary stated in Buyer's conditions of purchase,
Xxxxx agrees that Vendor's acceptance in writing or by electronic mail
or by XXX (when either system has been agreed by Vendor for the
purposes hereof) of Buyer's order constitutes Buyer's acceptance (1) of
the conditions set out herein and (2) that none of the Buyer's
conditions of purchase shall apply. Where Software is supplied by
Vendor to Buyer, whether or not in combination with products, Buyer
acknowledges that use of that Software is governed by Vendor or third
party software license terms and conditions applicable to that
software. All the conditions herein included, except that in Clause
8.1, shall also apply to the supply of software so long as they are not
inconsistent with the applicable software license terms and conditions.
2. PRICE AND PACKAGING
The price is Ex-Works INyCOTERMS 1990, excluded any applicable tax,
customs duty and/or levy imposed by any public authority, all of which
Buyer shall additionally be liable to pay to Vendor and any other
expenses the Buyer shall pay directly. Prices are based on current
economic and financial conditions at the date of quotation of Vendor,
they are liable at any time to be adjusted to take account of any
fluctuation in such conditions. The cost of non standard packaging is
not included. Reasonable instructions of the Buyer concerning non
standard packaging, weight and customs shall be abided by Vendor
provided that Buyer had given precise instructions with reasonable
prior notice. The corresponding additional costs shall be charged to
Buyer.
3. DELIVERIES
3.1 Unless otherwise agreed in writing by Vendor, delivery shall be
made and transfer of products shall be at Buyer's own risk.
3.2 Any delivery dates quoted for delivery by Vendor are estimates
only. Xxxxx agrees to accept the delivery date for the products as
determined by Vendor, in Vendor's order acknowledgment form or
equivalent document.
3.3 Vendor reserves the right to allocate production and deliveries
among its various customers at Vendor's sole discretion and under
any circumstances.
3.4 In the event of any default by Xxxxx, Vendor may decline to make
further shipments or may elect to continue to make shipments
notwithstanding such default.
3.5 Orders accepted by the Vendor are firm and non cancelable by the
Buyer except (i) upon Vendor's default which shall not have been
corrected within 30 days from Buyer's notice to such effect or (ii)
upon Vendor's written agreement, which shall only be considered on
a case by case basis and shall be subject to appropriate
indemnification by Buyer for costs and lost of profit incurred by
Vendor.
3.6 Failure to deliver by the due date shall not give Buyer any right
to compensation nor impose any responsibility or liability on
Vendor
3.7 Any claim regarding non-conformity of product with specifications
will be accepted by Vendor only if each of the following three
conditions have been met:
3.7.1 The Buyer's claim must be submitted in writing to Vendor
within one month after the delivery date. After such one
month period has expired, all products shall be deemed
accepted. After agreement with Vendor, Buyer shall return the
whole batch of non-accepted products. Each allegedly
non-conforming batch of products must be accompanied by a
written statement of the Buyer containing the precise reason
for rejection and the corresponding test report and proof of
purchase,
3.7.2 The return must be made at the Buyer's cost; and
3.7.3 Products must not have been modified or damaged or
manipulated for any reason whatsoever.
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* "Software" means computer programs, software and firmware whether in printed
or machine readable form, including software on magnetic tape, disc or in a
ROM forming part of the product.
3.8 The provisions of paragraph 3.6 and 3.7 above shall not apply to
batches of products accepted by Buyer in Vendor's factory.
4. PRODUCTS SPECIFICATIONS
Specifications for products shall be Vendor's specifications as
existing in the published data sheet at the time of the order
acknowledgment, except if particular specifications are given by Buyer
and accepted by Vendor.
Except as otherwise specifically agreed in writing by Vendor, Vendor
reserves the right to change at any time the specifications of any
product manufactured by Vendor (including all statements and data
appearing in Vendor's catalogues, data sheets and advertisements)
without notice.
5. CONDITIONS OF PAYMENT
Payment shall be made by Buyer for products cash upon receipt of
invoice except as otherwise agreed in writing. Failure to pay an
invoice in the stipulated period shall permit Vendor without further
notice and without prejudice to any other rights it may have, to cancel
any discount which may have been granted to Buyer on the said invoice,
as well as to charge interest equal to the maximum allowed by the
applicable laws, for the full duration of the payment delay. Vendor
reserves the right at any time to require full or partial payment in
advance of delivery.
6. FORCE MAJEURE
Neither party shall be responsible or liable for any delay or failure
in performance arising as a result of any occurrence or contingency
beyond its reasonable control, including but not limited to, capacity
constraints, accident, act of God, acts of the public enemy,
earthquake, fire, flood, labor disputes, strikes, riots, civil
commotion, war (declared or not) unanticipated manufacturing problems,
novelty of products, requirements or acts of any government or agency
thereof, judicial action, inability to secure materials on a timely
basis (except if such inability results from negligence of Vendor) and
failure or delays in transportation. The delayed party shall send
written notice of the delay and the reason therefor to the other party
as soon as possible after the party delayed knew of the cause of delay
in question.
7. RESERVATION OF TITLE
TITLE IN THE PRODUCTS SHALL REMAIN WITH VENDOR UNTIL IT HAS RECEIVED
FULL PAYMENT FOR SUCH PRODUCTS NOTWITHSTANDING DELIVERY TO BUYER. Upon
Xxxxx's failure to make payment by the due date, Vendor may take back
possession of the products delivered and to that end, Buyer hereby
grants Vendor or anyone designated by him access to the premises,
whereat the products have been stored.
8. WARRANTY
8.1 Subject to the terms hereof, Vendor warrants that its products
shall conform to the applicable specifications referred to in
Clause 4 for a period of one year from delivery. This warranty is
given solely to the Buyer (as opposed to any third parties,
including third parties who bought the Vendor's products from
Buyer), and shall not apply: (i) if products have been damaged; or
(ii) if defects result from misapplications and/or modifications
not authorized by the Vendor which have been made to the products
by any one other than the Vendor; or (iii) if products have been
submitted to abnormal conditions (mechanical, electrical or
thermal) during storage installation of use; or (iv) if products
are used in a non-standard environment. A non standard environment
is an environment requiring a robustness not documented in the
applicable specification such as without limitation, space,
military or nuclear environments; or (v) to product supplied at
request of Buyer which Vendor has indicated may not conform (risk
products) to applicable technical specifications or constitute
experimental, developmental or non-qualified products; or (vi) if
the non-conformance of products results from excess usage of the
maximum values (temperature limit, maximum voltage etc.) defined by
Vendor, or from an incorrect choice of application by Buyer or from
use other than in accordance with the relevant specification; or
(vii) to those products referred to in clause 8.2; or (viii) to any
other default not attributable to Vendor. If Vendor determines the
products are non-conforming, Vendor will, at Vendor's option,
repair or replace the non-conforming products, or issue a credit or
rebate of the purchase price. THE FOREGOING WARRANTY IS IN LIEU OF
ALL OTHER WARRANTIES, CONDITIONS OR TERMS EXPRESS OR IMPLIED BY
STATUTE OR COMMON LAW (INCLUDING WITHOUT LIMITATION WARRANTIES AS
TO MERCHANTABLE QUALITY OR SATISFACTORY QUALITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USAGE).
8.2 Vendor's products are not designed nor are they authorized for use
in life supporting devices or systems. Vendor expressly disclaims
any responsibility for such usage which shall be made at Buyer's
sole risk, even if Vendor has been informed in writing of such
usage. Buyer shall indemnify Vendor, its officers, employees and
affiliates against all claims arising directly or indirectly from
Buyer's incorporation of the products in any application or system
where failure of the product could lead to death or personal
injury.
9. LIMITATION OF LIABILITIES
VENDOR SHALL HAVE NO LIABILITY UNDER THESE GENERAL TERMS AND CONDITIONS
OF SALE FOR LOSS ARISING FROM ANY CLAIM MADE AGAINST BUYER, OR FOR
INDIRECT INCIDENTAL CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING
WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF USE, BASED ON ANY BREACH
OR DEFAULT OF VENDOR, INCLUDING ANY BREACH OR DEFAULT ARISING FROM
INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK
COPYRIGHT, MASK WORK RIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHT.
BUYER'S SOLE REMEDY AND VENDOR'S SOLE AND TOTAL LIABILITY FOR ANY CAUSE
OF ACTION, WHETHER IN CONTRACT (INCLUDING XXXXX OF WARRANTY) OR TORT
(INCLUDING NEGLIGENCE OR MISREPRESENTATION) OR UNDER STATUTE OR
OTHERWISE SHALL BE LIMITED TO AND SHALL NOT EXCEED THE PRICE ALLOCABLE
TO THE PRODUCTS AND OR SOFTWARE WHICH GIVES RISE TO THE CLAIMS. BUYER
SHALL ALWAYS INFORM VENDOR OF ANY BREACH AND AFFORD IT REASONABLE
OPPORTUNITY TO CORRECT THE BREACH.
10. INTELLECTUAL
PROPERTY RIGHTS Because of the complexity of manufacturing techniques
for electronic components and of the intellectual property rights
pertaining thereto, Vendor is not able to declare that its products do
not infringe the intellectual property rights of third parties. In the
event that a third party makes a claim alleging that products delivered
to Buyer infringe such third party's intellectual property rights,
Vendor undertakes at its option and charge to defend the claim or seek
a compromise; if an unfavorable and final judgment is rendered against
Vendor, it shall at its option take out a license from the above
mentioned third party or shall modify the products in such a way as to
avoid infringement. If such a solution shall be impracticable for
economic and/or technical reasons, Vendor shall accept the return of
the product supplied and shall reimburse the Buyer up to a maximum
equal to the amount paid by the Buyer for the products deemed to
infringe. The preceding indemnification shall only be due by the Vendor
provided that Buyer (1) promptly notifies Vendor in writing of the
claim of infringement (2) allows Vendor to control and cooperates with
Vendor in the defense and any related settlement action. Furthermore,
such indemnification does not apply to any claims of infringement
involving products made, provided or modified by Vendor in compliance
with the requirements or specifications of Buyer, from the combination
or use of products supplied with any other product or from any
modification to the programming of products made other than by Vendor.
Xxxxx agrees to indemnify Vendor against all damages and costs
resulting from any such claims of infringement made against Vendor. The
above provisions constitute the entire undertaking of Vendor towards
Buyer in the event of any intellectual property right claim of a third
party with regard to products supplied by Vendor.
11. JURISDICTION - APPLICABLE LAW
In the case of dispute and in the absence of an amicable settlement,
the only competent jurisdiction and the applicable law shall be of the
Vendor's country. The UN Convention on Contracts for the International
Sale of Goods shall not apply to these General Terms and Conditions of
Sale.
12. GENERAL
12.1 SEVERANCE. In the event any one or more of the provisions
contained herein shall for any reason be held to be invalid,
illegal or unenforceable provision had never been contained
herein.
12.2 EXPORT CONTROL LAWS. Buyer undertakes to comply with all
applicable laws, regulations, decrees and ordinances, related to
the Buyer's use, sale or transfer of the products supplied
thereunder.
12.3 WAIVER. A waiver of a breach or default under these General Terms
and Conditions of Sale shall not be a waiver of any subsequent
default. Failure of Vendor to enforce compliance with any term or
condition hereof shall not constitute a waiver of such term or
condition.
12.4 SOFTWARE. 1. Title to Software including without limitation
copyright, is owned by Vendor or Vendor licensers and no title is
transferred to Buyer. 2. Buyer shall not copy, modify, translate,
disassemble or decompile the Software. Buyer shall use the
Software in connection with the product and not otherwise. The
Software may only be transferred when the product to which it
relates is transferred. The rights granted in this Clause 12.4 may
be terminated in the event of a breach by Xxxxx of any of the
terms of these General Terms and Conditions of Sale.
12.5 NO LICENSES. No license under any intellectual property right of
Vendor is granted herein except the right to use or resell any
product sold by Vendor to Buyer for the purposes for which it was
sold.
