An expression of Seller's acceptance of this offer that contains provisions that are additional or different from the provisions of this Purchase Order ("P.O.") shall form a contract only on the provisions of this P.O. Any additional or different provisions on Seller's acknowledgement form, or otherwise communicated by Seller in accepting this P.O., shall be deemed to be a material alteration of this P.O., are hereby objected to by Quantum Design, and shall not become a part of the contract unless specifically accepted by authorized signature of Quantum Design. Acceptance of the goods or services (hereafter "goods") covered by this P.O. shall not constitute acceptance by Quantum Design of Seller's terms and conditions. Quantum Design reserves the right to revoke this offer at any time before acceptance. This is NOT A FIRM OFFER.
All items shall be prepared and packed for shipment in a manner that will prevent damage in transit. Seller is responsible for all costs of packing and shipping unless otherwise stated on the reverse side hereof. Seller shall mark the number of this P.O. on all containers, and enclose a packing slip with the number of this P.O. in all containers.
3. F.O.B., Title, Risk of Loss.
Unless otherwise specified on the face of this P.O., the F.O.B. point shall be Quantum Design's location designated on the face of this order. If transportation is F.O.B. Seller's location, Seller shall bear all risk of loss or damage to the goods and title shall not shift to Quantum Design until delivery of the goods to the carrier. If transportation is F.O.B. Quantum Design's location, Seller shall bear all risk of loss or damage to the goods, and title shall not shift to Quantum Design until delivery of the goods to Quantum Design's location.
4. Time of Delivery.
Seller shall follow the delivery schedule shown on this P.O., and shall not make deliveries later or substantially earlier. Time is of the essence in this P.O.
Quantum Design shall have the right to inspect and test the goods at all practical times and places including, without limitation, during the period of manufacture, and in any event prior to final acceptance. Final acceptance or rejection shall be made within a reasonable time; but failure to detect defects by inspection, or failure to inspect and test, or accept or reject goods, shall not relieve Seller from responsibility for such goods as are not in accordance with this P.O. Payment of invoice shall not constitute acceptance of the goods and shall be subject to appropriate adjustment for failure of Seller to meet the requirement of this P.O. Quantum Design reserves the right of setoff.
Seller warrants all goods and services furnished pursuant to this P.O. shall be free from defects in material and workmanship and shall be in conformity with the requirements of this P.O., and fit for the purposes disclosed in this P.O. or in the drawings and specifications. Where Quantum Design does not provide design, Seller warrants that the goods will be free from defects in design. Unless otherwise stated on the reverse side, all warranties shall be for one year from the date of shipment. Quantum Design's approval of the design or the acceptance of the goods shall not relieve Seller of the foregoing warranties.
Quantum Design may make changes on the drawings and specifications on any item at any time. If such changes result in delay, or additional expense to Seller, an equitable adjustment of price and delivery schedules will be made.
Quantum Design may cancel all or any part of this P.O. at any time prior to shipment without cause. In the event of such cancellation, Seller may charge Quantum Design for reasonable costs incurred which are properly allocable or apportionable to the terminated portion of this P.O. under generally accepted accounting principles. Despite the preceding, after a reasonable time Quantum Design may not cancel orders for nonstandard goods that so depart from Seller's standard goods that such goods cannot be diverted to other use.
9. Quantum Design's Property.
All tools, dies, jigs, molds, patterns, masks, equipment or material and other items purchased, furnished, charged to or paid for by Quantum Design shall be, and shall remain or vest with Quantum Design. Such property shall be plainly marked to show it is the property of Quantum Design. Seller shall not use such property except in filling Quantum Design's orders. Upon the written request of Quantum Design, Seller shall promptly deliver such property to Quantum Design at Quantum Design's expense.
10. Proprietary Rights.
The drawings, specifications, photographs, and other documentation and information supplied by Quantum Design, including all ideas, data, formulae, layouts, designs and other information contained in or shown upon such documentation and information, whether in paper, electronic or other form (a) shall remain Quantum Design's property; (b) shall be retained in secret by Seller and not disclosed to any other person or entity; and (c) shall not be used or incorporated into any product or item manufactured or assembled by Seller, or otherwise provided by Seller to, any person or entity other than Quantum Design.
Seller shall be responsible for all sales and use taxes, duties and other government charges arising under this Purchase Order unless specified otherwise on the reverse side hereof.
Quantum Design and Seller shall have all remedies afforded by the Uniform Commercial Code.
This Purchase Order is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms of their agreement. If these Terms and Conditions conflict with the provisions contained on the reverse side hereof, the provisions on the reverse side shall prevail.
This Purchase Order can be modified or rescinded only by a writing signed by both Quantum Design and Seller.
No claim or right arising out of a breach of this agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver of any provision or consent to any action shall constitute a waiver of any other provision or consent to any other action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a party to provide a waiver in the future except to the extent specifically set forth in writing.
Neither assignment of this P.O., nor delegation of the performance of any obligation hereunder shall be made without the written permission of the other party.
17. Applicable Law.
The Uniform Commercial Code shall govern this agreement. Whenever the term "Uniform Commercial Code" is used, it shall be construed as meaning the Uniform Commercial Code as adopted in the State of California as effective and in force on the date of this Purchase Order.
18. Force Majeure.
If Seller exercises due care, Seller shall not be liable for delays in delivery due to acts of God, floods, fire, war, terrorist activity, riot, strikes and damage in transit beyond its reasonable control. However, if Seller does not adhere to the delivery schedule regardless of the cause (acts of God, etc.) Quantum Design may terminate this P.O. without any liability.
If you have any questions regarding these Terms, please contact us at:
Quantum Design, Inc.
10307 Pacific Center Court
San Diego, CA 92121