GENERAL. ADL Embedded Solutions, Inc., a California corporation (“ADLES”) agrees to provide to Buyer the services “Services” and/or products described in any firm purchase order accepted by ADLES, in accordance with these Terms and Conditions of Sale (“Agreement”). Upon acceptance of a purchase order, shipment of products or commencement of a Service, Buyer shall be bound by the provisions of this Agreement, including all provisions set forth on the face of any applicable purchase order acceptance, quotation or other writing, whether Buyer acknowledges or otherwise signs this Agreement or the purchase order, unless Buyer objects to such terms in writing prior to shipping products or commencing Services. Any terms or conditions contained in any acknowledgment, invoice, or other communication of Buyer, which are inconsistent with the terms and conditions herein, are hereby rejected.
ORDERS. Written quotes are valid for 30 days unless otherwise stated. Buyer shall submit a firm purchase order signed by an authorized party. All purchase orders are subject to acceptance by ADLES via written Order Confirmation which will confirm delivery date and credit approval.
ORDER CHANGE AND CANCELLATION. Any changes requested by Buyer shall be submitted in writing to ADLES no less than 60 days prior first shipment. A ship date can only be moved once and within the order original ship date. ADLES shall have the right, in its sole discretion, to accept or reject any such change. If ADLES agrees to make such change, it will advise Buyer in writing of any change to the price, delivery date or other terms. Buyer shall accept such ADLES changes in writing prior to ADLES proceeding and such changes shall be deemed amendments to the purchase order. If the parties do not agree, the original purchase order shall remain in effect. Buyer shall not terminate or cancel any order or portion thereof, without ADLES’s prior written consent. Any unconfirmed order is subject to cancellation by either party. ADLES may cancel open purchase orders, upon written notice to Buyer, if Buyer fails to perform or otherwise breaches these terms and conditions, files a petition in bankruptcy, becomes insolvent, or dissolves.
Upon cancellation of an order for any reason: (a) Buyer shall pay for all services performed and products shipped to Buyer prior to termination and all materials and work in progress (WIP) completed prior to the notice of termination, plus a cancellation fee of 20% of such WIP cost; (b) each party will be released from all obligations to the other arising after the date of cancellation, except for those which by their terms survive such cancellation; and (c) Buyer will promptly notify ADLES of all ADLES Confidential Information or any Work Product in Buyer’s possession and will promptly deliver to ADLES all such Confidential Information and/or Work Product.
DELIVERY. All shipments shall be FOB ADLES’ San Diego facility. ADLES will select its standard carrier unless otherwise specified by Buyer in the purchase order. Buyer will be responsible for all freight charges including taxes, duties, insurance and other applicable expenses. These expenses will be added to ADLES invoices if prepaid.
TITLE, RISK OF LOSS, INSPECTION. Title and risk of loss passes to Buyer upon ADL’s delivery to the carrier at the shipping point. ADLES is not liable for damage, shortage, or delay in delivery during shipment or storage. It is Buyer’s obligation, before accepting products from the carrier, to inspect all items and note any loss or damage on the delivery receipt. Failure to make a claim with the carrier shall constitute acceptance of the merchandise and a waiver of any damage, errors or shortages. Buyer grants ADLES a security interest in the goods until they are paid in full. Buyer hereby appoints ADLES its’ attorney in fact to execute and file UCC-1s or other documents to enforce this security interest. Unless Buyer notifies ADLES, within ten (10) of shipment, that said products are rejected, they will be deemed accepted.
EVALUATION PRODUCTS. Products designated as “for evaluation” on the purchase order or Order Confirmation will be invoiced like any other product. Products must be returned within thirty (30) days of receipt to avoid payment due on the invoice. The invoice should have a pre-designated RMA number. In case of its absence the Buyer must obtain a Return Materials Authorization (RMA) number prior to return (see Warranty). If returned product is fully functional and in same physical condition as shipped, ADLES will credit Buyer, less freight.
PAYMENT. Domestic orders: After establishing credit with ADLES, subsequent orders will be 1% 10 NET 30 calendar days from date of invoice. Advance payment may be required prior to establishing credit or if orders exceed Buyer’s credit line.
International (including Canada): Advance payment is generally required for all international shipments. Open account terms will be considered, in ADLES’s sole discretion, if Buyer possesses a first-class standing in the operating country and can demonstrate favorable credit arrangements with other U.S. suppliers. Buyer agrees, upon request, to provide ADLES with financial information acceptable to ADLES to assist ADLES in determining the credit terms, if any, that ADLES may extend to Buyer. If ADLES extends credit, all payments must be made via Electronic Funds Transfer (EFT). Buyer acknowledges that exports may require prior written authorization from the U.S. Government (see Exports).
Past due balances will accrue interest at the lesser of 1.5% per month or the maximum rate allowed by law and will trigger a credit hold until all outstanding balances have been paid. ADLES reserves the right to cancel or reduce a credit line in its sole discretion, in which case Buyer agrees to provide a letter of credit or other credit enhancement.
EXPORTS. ADLES is ITAR certified. Buyer shall comply with all applicable laws, rules and regulations, including without limitation, ITAR. Buyer shall be responsible for obtaining all export licenses or other approvals require to export or re-export the products outside the U.S. Buyer agrees to indemnify, defend and hold ADLES harmless from any unauthorized export.
WARRANTIES. ADLES agrees to repair or replace products that fail due to a Defect (as defined below) during the warranty period for each Product: (i) Standard Products – within twelve (12) months of the shipment date, (ii) Conduction and/or Convection Cooled Systems and Chassis – within twelve (12) months of the shipment date, and (iii) Custom and Non-Standard Products – will be negotiated on a case by case basis. “Defect” shall mean the product fails to operate or fails to conform to the manual or specifications agreed to in writing by ADLES. This warranty is applicable only to Buyer and does not extend to Buyer’s customers or end users. All products returned to ADLES under warranty are subject to approval and will not be accepted without an RMA number which can be obtained from customer support (Tel. 858-490-0597). Buyer shall pay cost to return product to ADLES and ADLES will pay return shipping costs.
ADL’s sole obligation under this limited warranty is to provide repair or replacement parts at ADLES’s facilities, to remedy any Defect. This limited warranty does not include expenses to repair or reinstall warranted products on site or at Buyer’s premises. This limited warranty shall not apply to any product, or parts thereof, that (a) has had the Serial Number, Model Number, or other identification markings altered, removed or rendered illegible; (b) has been damaged by, or subject to, improper installation or operation, misuse, accident, neglect and/or has been used in any way other than in strict compliance with ADLES’s manual; (c) has become defective or inoperative due to its integration or assembly with equipment or products not supplied by ADLES; (d) has been repaired, modified or otherwise altered by anyone other than ADLES; and/or sealed cabinet boxes or covers have been removed without ADLES’s prior written consent; or (e) has suffered thermal damage caused by use of a non-ADLES approved thermal solution*. Customer designed and installed thermal solutions will be covered by ADLES’ standard factory warranty if they have been approved in writing by ADLES. If any warranty claim by Buyer falls within any of the foregoing exceptions, Buyer shall pay ADLES its then current rates and charges for repair services. ADLES reserves the right to investigate warranty claims in an attempt to quickly resolve the problem or to determine whether such claims are proper. In the event ADLES is unable to find a Defect in a warranty return, ADLES reserves the right to charge a “No Failure Found” fee of $150.00.
In the event that, after repeated efforts ADLES is unable to repair or replace a defective product, ADLES’s sole obligation shall be to pay Buyer’s actual damages (after mitigation), not to exceed the invoice price actually paid by Buyer. Replacement and repaired products shall be warranted for the remainder of the warranty period or ninety (90) days, whichever is longer.
THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
LIMITATION OF LIABILITY. IN NO EVENT SHALL ADLES BE LIABLE TO BUYER, END USER OR ANY THIRD PARTY FOR INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES; DAMAGES ARISING FROM PERSONAL INJURY OR DEATH; LOSS OF GOODWILL OR PROFITS; LOSS OF USE OF THE PRODUCT; OR INTERGRATION OF THE PRODUCT WITH EQUIPMENT NOT PROVIDED BY ADLES; WHETHER OR NOT ADLES WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL ANY DAMAGES HEREUNDER EXCEED THE INVOICE PRICE OF THE PRODUCT GIVING RISE TO SUCH CLAIM.
*ADLES designs and builds thermal solutions for its entire line of PC/104 single board computers to ensure a proper heat dissipation path that maintains CPU chip temperature at acceptable levels. ADLES approved heatspreaders or heatsinks/fans ensure the board has a properly installed thermal solution and has passed stringent QA requirements.
INDEMNITY. Buyer shall indemnify, hold harmless, and at ADLES’s request, defend ADLES, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses, and expenses, including attorneys’ fees and cost of suit, arising out of or in any way connected with the products provided by ADLES including, without limitation, (i) any claim based on the death or bodily injury to any person, destruction or damage to property, (ii) the manner in which Buyer or its end users use or operate the products; (iii) any claim based on the negligence, omission, or willful misconduct of Buyer; and (iv) defects or other problems with component parts or integrated equipment or materials not supplied by ADLES. Buyer shall not settle any such suit or claim without ADLES’s prior written approval. Buyer agrees to pay or reimburse all costs that may be incurred by ADLES in enforcing this indemnity, including attorneys’ fees.
CONFIDENTIALITY. Buyer will acquire knowledge of ADLES Confidential Information (as defined below) in connection with its performance hereunder and agrees to keep such Confidential Information in confidence during and following termination or expiration of this Agreement. “ADLES Confidential Information” includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, Work Product (as defined herein), and other material or information considered proprietary by ADLES relating to the current or anticipated business or affairs of ADLES which is disclosed directly or indirectly to Buyer. Buyer agrees: (a) not to copy, alter, or directly or indirectly, disclose any ADLES Confidential Information; (b) not to use the ADLES Confidential Information for its own benefit or for the benefit of any third party; (c) not to reverse engineer, modify, improve or otherwise change and product or parts thereof; and (d) not to design or manufacture any products which incorporate ADLES Confidential Information.
OWNERSHIP OF WORK PRODUCT. For purposes of this Agreement, “Work Product” shall include, without limitation, all designs, discoveries, creations, works, devices, masks, models, work in progress, deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, information and materials made, conceived, or developed by ADLES, alone or with others, which result from or relate to the products or services performed hereunder. Standard goods manufactured by ADLES and sold to Buyer without having been designed, customized, or modified for ADLES do not constitute Work Product. All Work Product shall at all times be and remain the sole and exclusive property of ADLES. Buyer hereby assigns and transfers to ADLES all of its worldwide right, title, and interest in and to the Work Product including all associated intellectual property rights. Buyer irrevocably agrees not to assert against ADLES or its direct or indirect customers, assignees, or licensees any claim of any intellectual property rights of Buyer affecting the Work Product. Subject to Buyer’s performance of all obligations hereunder, ADLES hereby grants Buyer a non-exclusive, nontransferable and indivisible license to use ADLES’s Work Product only as it is embodied in the products and for no other purpose.
REMEDIES. If Buyer breaches this Agreement, ADLES shall have all remedies available by law and at equity. Buyer’s sole remedy in the event of breach of this Agreement by ADLES shall be the right to recover damages in the amount equal to the invoice price of the product at issue. No alternate method of measuring damages shall apply.
FORCE MAJEURE. ADLES shall not be liable for any failure to perform caused by circumstances beyond its control which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment, or transportation.
ATTORNEYS’ FEES. In any action to enforce this Agreement, the prevailing party shall be entitled to recover all collection fees, court costs and expenses and reasonable attorneys’ fees, in addition to any other relief to which it may be entitled.
SEVERABILITY. If any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
ASSIGNMENT; WAIVER. Buyer may not assign this Agreement or any of its rights or obligations under this Agreement, without the prior written consent of ADLES. Any assignment or transfer without such written consent shall be null and void. A waiver of any default hereunder or of any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
NOTICES. Except for Purchase Orders (which may be sent by mail, facsimile or electronically transmitted), all notices, and other communications hereunder shall be in writing, and shall be addressed to Buyer or to an authorized ADLES representative, and shall be considered given when: (a) delivered personally, (b) sent by confirmed facsimile, (c) sent by commercial overnight courier with written verification receipt, or (d) three (3) days after having been sent, postage prepaid, by first class or certified mail.
SURVIVAL OF OBLIGATIONS. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.
GOVERNING LAW. This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of the State of California, excluding its conflict of law rules. Jurisdiction and venue over all controversies arising out of, or relating to, this Agreement shall be in San Diego, California. The applicability of the UN Convention on Contracts for the International Sale of Goods is hereby expressly waived by the parties and it shall not apply to the terms and conditions of this Agreement.
ARBITRATION. Any controversy or claim arising out of, or relating to, this Agreement or a related Purchase Order shall be settled by arbitration conducted in San Diego, California in accordance with, and by a single arbitrator appointed pursuant to JAMS’ Streamlined Arbitration Rules and Procedures in effect at any time, and judgment upon the award rendered pursuant thereto may be entered in any court having jurisdiction thereof.
ENTIRE AGREEMENT; MODIFICATION. This Agreement is the complete, final, and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. This Agreement may not be varied, modified, altered, or amended except in writing, including a purchase order or a change order issued by ADLES, signed by the parties. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Buyer. Notwithstanding the foregoing, this Agreement will not supersede or take the place of any written agreement which is signed by both parties and covers the same subject matter as this Agreement or its related purchase orders.
AUTHORITY. The person(s) executing purchase order(s) on behalf of ADLES and Buyer warrant and represent that they have been authorized to bind their respective companies to all of the provisions of the purchase order(s) and this Agreement.
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