Palm Technology Terms and Conditions
1. Sale and Purchase. Subject to the other terms herein, Palm Technology, Inc. ("Seller"), shall sell to Buyer, and Buyer shall purchase and accept from Seller the quantities of Products scheduled for delivery or Services scheduled from time to time in accordance with the terms herein. Buyer shall give to Seller reasonable notice of the requested schedule and quantity of shipments. Buyer's obligations hereu'der may not be cancelled or deferred by Buyer (of delivery dates or otherwise) except with Seller's written consent. 'By placing an order with Seller, Buyer affirmatively accepts and assents to these Terms and Conditions. Seller may reject in whole or in part any purchase order, whether accepted or not, from Buyer, without liability to Buyer, if: (1) based on Seller's sole judgment, Buyer may not be able to timely pay or otherwise comply with the terms of sale; (2) a letter of credit required by Seller is not received; or (3) prepayment required by Seller is not received. Seller reserves the right to reject purchase orders that are not confirmed for any reason. Customer-requested order changes, including those affecting the identity, scope, and delivery of the Products, must be documented in writing and are subject to Seller's prior approval an' adjustments in price, scheduling, and other affected terms and conditions. NO MODIFICATION OR WAIVER OF THIS AGREEMENT SHALL BIND SELLER UNLESS IN WRITING AND SIGNED AND ACCEPTED BY AN OFFICER OF SELLER. SELLER WILL NOT ACCEPT AND OBJECTS TO ANY TERMS AND CONDITIONS OR OTHER WRITING ON BUYER'S PURCHASE ORDER WHICH ARE DIFFERENT FROM OR ADDITIONAL TO THE TERMS AND CONDITIONS CONTAINED HEREIN. NO TERM OR CONDITION ON BUYER'S PURCHASE ORDER, EXPRESSLY INCLUDING ANY EFFORT TO NEGATE THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE EFFECTIVE OR BINDING AGAINST SELLER. THESE TERMS AND CONDITIONS SHALL CONSTITUTE WRITTEN NOTICE SIGNED BY SELLER OF OBJECTION TO AND REJECTION OF ANY TERM OR CONDITION IN BUYER'S PURCHASE ORDER, CONTRACT, OR RELEASE INCONSISTENT WITH THE TERMS AND CONDITIONS CONTAINED HEREIN.
2. Price. Prices and other information shown in any Seller publication (including product catalogues and brochures) are subject to change without notice and confirmation by specific quotations. Such publications are not offers to sell and are maintained only as a source of general information. Acceptance of any quotation is limited to the terms and conditions of the quotation and the provisions herein. Quotations are valid for 60 days from issue unless otherwise stated in writing. All typographical and clerical errors are subject to correction. Except where expressly agreed otherwise in writing, all prices exclude miscellaneous freight and energy surcharges, goods and services, sales, use, occupation, license, customs, excise and other taxes in respect of the manufacture, sale, storage, consumption, transportation, or delivery of Product sold hereunder, all of which shall be paid by Buyer as additional charges.
3. Shipment. Product will be shipped F.O.B. Seller's plant or warehouse unless otherwise stated in writing. Method of shipment and carrier will be selected by Seller unless Buyer has specified in writing a method and carrier satisfactory to Seller. Any charges for packing, storage, and transportation (including insurance) to point of delivery are deemed to be separate charges for the account of Buyer unless otherwise stated in writing. Requested shipment dates are subject to acceptance by Seller. At Seller's option, Product m'y be shipped in advance of a requested shipment date and/or in installments or partial shipments. Buyer expressly acknowledges that Seller will not be liable and shall be excused for a Force Majeure (as defined herein). Buyer agrees to make an inspection, examination, and test of each shipment of merchandise upon delivery. Buyer's failure to give S'ller written notice of any objections within ten (10) days after date of delivery shall constitute a waiver by Buyer of all objections with respect to such shipment and shall constitute an acceptance by Buyer if not previously accepted. Buyer shall make all claims for damage to or loss of Products while in transit directly to the carrier; Seller shall have no liability whatsoever for such damage or loss, and Buyer shall hold Seller harmless from and against any claims or liability resulting from any such damage or loss. Seller will not be liable to Buyer or any third party for any damage whatsoever on account of late delivery for any reason. Buyer shall hold Seller harmless from and against any claims or liability resulting from such late delivery.
4. Terms of Payment. Payment for Products and Services is due thirty (30) days from the date of shipment or as otherwise specified in writing. Seller may require prepayment. Pro-rata payments shall be made on partial shipments. If shipments are delayed by Buyer, Seller reserves the right to issue invoices and obtain payment on Products ready to ship, or invoice progress payments based on the full contract price and percent of completion, which payments will be considered advance payments only, and shall not discharge Buyer from obligations of the contract. Seller may charge Buyer interest on all amounts unpaid after thirty (30) days at the annual rate of one (1) percent per month (12% per annum) from the date of shipment of the Products or the highest interest rate permitted by law, whichever is lower. If any invoice is not paid when due, Seller may, at any time, suspend delivery or other performance with respect to any Products or Services, without liability or penalty, and take all other action permitted under applicable law. Buyer agrees to be responsible for all costs of collection, including attorney fees, collection fees, and court costs incurred to collect amounts due.
5. Returns/Order Cancellation. All returns of Product will be subject to prior Seller approval. Non-warranty returns of unused and salable Products for credit will be subject to Seller's return policies i' effect at the time, including applicable restocking charges and other conditions of return. Shipping containers must be clearly marked per Seller's instructions and 'hipped freight prepaid F.O.B. Seller's warehouse by Buye'. An order may be cancelled by Buyer prior to shipment only by written notice and upon payment to Seller of reasonable cancellation and restocking charges, including reimbursement for direct costs. Cancellation charges associated with orders for custom Products or Products specially manufactured to the customer's specification may'equal the actual selling price of the Products.
6. Permits/Certifications. All permits, licenses, and governmental approvals of whatever nature relating to the possession, storage, processing, maintenance, handling, labeling, installation, use and/or disposition of Products or Services, including professional engineering certification, shall be obtained and paid for by Buyer in advance of delivery or Service. Buyer shall furnish copies of same to Seller upon request.
7. Title and Risk of Loss. Title to and risk of loss for Products sold hereunder will pass to the Buyer upon delivery by Seller to the carrier transporting the Products. Buyer agrees to hold Seller harmless for all claims arising out of the transportation of the Products subsequent to their delivery to the carrier.
8. Warranty. A. Limited Equipment Warranty for Equipment Manufactured by Seller. Equipment manufactured by Seller is warranted to be free from defects in material and workmanship for a period of twelve (12) months when operated under design conditions within the specifications outlined in the Operating Manual. Seller's sole liability an' Buyer's sole remedy for f'ilure of equipment under this limited warranty shall be either repair or replacement, at Seller's option, of the eq'ipment found to be defective. Seller shall have no liability under this warranty unless it receives written notice of the claimed defect within the earlier of thirty (30) days from the date of discovery by Buyer or the termination of the Warranty Period. This warranty will not apply to equipment failures due to ordinary wear, misuse, neglect, misapplication, improper installation, abuse, shipping damage, equipment modification, improper maintenance, usage contrary to Operating Manual, or failure to provide a suitable operating environment. Buyer shall obtain approval prior to returning Products for warranty service. Products returned for warranty service must be properly packed and shipping containers clearly marked per Seller's instructions. Re'urned Products shall be shipped freight prepaid F.O.B. Seller's warehouse by Buye'.
B. Warranty for Equipment Distributed by Seller. To the extent the manufacturer of equipment distributed by Seller provides a warranty, said warranty shall pass to Buyer, and shall be subject to the manufacturer's conditions and in'erpretation. The warranty, if any, provided by the manufacturer of products distributed by Seller shall be the sole warranty available to Buyer. SELLER SPECIFICALLY EXCLUDES ANY ALL OTHER WARRANTIES ON PRODUCTS MANUFACTURED BY OTHERS, INCLUDING THE WARRANTY OF MERCHANTABILTY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
C. Disclaimer of Other Warranty. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, SELLER DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS OR SERVICES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THE WARRANTY OF NON-INFRINGEMENT. BUYER ACCEPTS FULL RESPONSIBILITY FOR THE SELECTION AND USE OF THE PRODUCTS TO ACHIEVE RESULTS. Because Seller does not have control over Buyer's solutions nor tot'l knowledge of the chemistry involved in the evaporative systems located in the field, it is imperative that Buyer be certain the materials of construction of the Max-Evap, heaters, pumps, and side tanks be chemically compatible with the solutions being processed. Furthermore, Max-Evap performance data is based on actual efficiency rates logged in the field under ideal performance conditions. Data is provided as a guideline only. Efficiency rates will vary based on variables such as humidity, solution temperature, air flow, specific chemistry of the solution, and other environmental conditions of which Seller has no knowledge or control.
9. Security Interest and Reclaiming Material. Seller reserves a purchase money security interest in Products, and all proceeds from the sale thereof, until full payment is received. Buyer hereby agrees to sign upon request any documents necessary to perfect Seller's security interest'in said Products. Upon default in payment, Seller shall have all rights and remedies of a secured party, including the right to enter Buyer's premises and take'possession of and reclaim Products using self help. Buyer agrees to protect and secure products purchased from Seller and to make its premises available to Seller for such purpose.
10. Limitation of Liability and Indemnification. Buyer assumes all risk and liability for loss, damage, or injury to persons or to Product or to property of Buyer or others arising out of or relating to the handling, storage, presence, or use of the Products shipped hereunder or Services rendered, whether in manufacturing processes or otherwise, or from the failure to make appropriate warnings. Seller expressly assumes no responsibility or liability for the correctness of drawings or specifications of equipment components not manufactured by Seller. Seller does not warrant and will not be liable for any design, materials, or construction criteria furnished or specified by Buyer and incorporated into the Products. Buyer covenants and agrees to indemnify and hold Seller harmless from and against any and all liabilities, losses, damages, costs or expenses, including attorney fees and court costs, which Seller hereinafter may incur, suffer or be required to pay by reason of death, personal injury or property damage, claims of third persons or of Buyer, its agents and employees, whether groundless or not, arising from an accident or other cause relating to, arising out of, or occurring in connections with the sale, handling, transportation, storage or use of Product sold to Buyer hereunder. The total liability of Seller to Buyer from any cause whatsoever, whether arising under contract, warranty, tort (including negligence), strict liability, products liability or any other theory of liability, will be limited to the lesser of Buyer's actual damages or'the purchase price paid to Seller for the Products or Services that are the subject of Buyer's claim. However, 'his limitation of liability does not apply to damages resulting from personal injury caused by Seller's gross negligence.' Buyer's limitation or lia'ility and remedies provided herein shall be Buyer's sole and exclusiv' remedy and no other course of action may be maintained. Seller shall not under any circumstances, be liable for any indirect, special, incidental or consequential damages, including by way of illustration and not of limitation, loss of use, and loss of work in progress, downtime or loss of profits. All claims hereunder against Seller must be brought within one (1) year after the cause of action arises and Buyer expressly agrees to this one (1) year period and waives any other statute of limitations which might apply by operation of law or otherwise.
12. Patents. Buyer shall hold Seller harmless against any expense or loss resulting from infringement of patents or trademarks arising from compliance with Buyer's designs, specific'tions, or instructions. The sale of Products or Services by Seller does not convey any license, by implication, estoppel, or otherwise, under patent claims covering combinations of said Products with other devices or elements. Seller grants no patent or data rights to Buyer through the quotation or contract.
13. Force Majeure. Seller shall not be considered in default in the performance of its obligations hereunder or be liable in damages or otherwise for any failure or delay in performance which is due to strike, lockout, concerted act of workers or other industrial disturbance, fire, explosion, flood, or other natural catastrophe, civil disturbance, riot or armed conflict whether declared or undeclared, curtailment, shortage, rationing or allocation of normal sources of supply of labor, materials, transportation, energy or utilities, mechanical breakdown, equipment failure, accident, Act of God, delay of subcontractors or vendors, sufferance of or voluntary compliance with acts of government and government regulations (whether or not valid), embargo, or due to any other cause whether similar or dissimilar to any of the causes or categories of causes described above and which is beyond the Seller's reasonable contro'. Promptly upon learning of such event and ascertaining that it has or will affect its performance hereunder, Seller shall give notice to the other party, stating the nature of the event, its anticipated duration and any action being taken to avoid or minimize its effect.
14. Impairment of Credit. Unless otherwise required by law, if a petition is brought by or against Buyer under any present or future bankruptcy or insolvency laws seeking any reorganization, arrangement, readjustment, liquidation, dissolution or similar relief with respect to Buyer, or if Buyer shall make any assignment for the benefit of creditors, or if a receiver is appointed for Buyer, or if Buyer shall fail to make payments in accordance with the terms of this Agreement, or if, in Seller's opinion, Buyer's 'redit is or has 'een impaired, Seller may, at its option, terminate any Sales Contracts it by have with Buyer by written notice to Buyer or impose such payment terms, including case on delivery or letters of credit, as it deems adequate to protect its interests. The election of any option under Section 8 shall not preclude Seller's exercise of any o'her rights, remedies, or options.
15. Federal Contract Compliance. To the extent applicable, the provisions of Executive Order 11246 (FAR 52.222-26, Equal Opportunity), 38 U.S.C. 4212 (FAR 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans), and 29 U.S.C. 793 (FAR 52.222-36, Affirmative Action for Workers with Disabilities) are incorporated by reference, and Buyer certifies compliance.
16. Miscellaneous. No modification, amendment, revision, discharge, abandonment, or waiver of these and other terms and conditions of sale shall be binding upon the Seller unless set forth in writing and signed by an Officer of Seller. The Terms and Conditions contained herein, together with all documents incorporated by reference, including the quotation and purchase order, shall constitute the entire agreement between the parties. The failure of either party at any time to require performance by the other party of any provision of these Terms and Conditions shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision herein constitute a waiver of any succeeding breach of the same or any other provision. These Terms and Conditions may not be assigned by Buyer without the prior written consent of Seller. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto. This Agreement and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of Tennessee. If any term or provision of this agreement, or the application thereof to any circumstance, shall be invalid or unenforceable, the remainder of this agreement shall not be affected thereby. Buyer hereby consents to the jurisdiction and venue of the Tennessee State Courts located in Davidson or Rutherford County Tennessee.