EMBEDDED WORKS TERMS AND CONDITIONS OF SALE
THE SALE OF PRODUCTS AND SERVICES ("PRODUCTS") BY EMBEDDED
WORKS CORPORATION AND ITS DIVISIONS AND SUBSIDIARIES ("EMBEDDED
WORKS") ARE SUBJECT TO THESE TERMS AND CONDITIONS ("AGREEMENT")
REGARDLESS OF OTHER OR ADDITIONAL TERMS OR CONDITIONS THAT
CONFLICT OR CONTRADICT THIS AGREEMENT IN ANY PURCHASE ORDER,
DOCUMENT, OR OTHER COMMUNICATION ("ORDER"). PREPRINTED TERMS AND
CONDITIONS ON ANY CUSTOMER ("CUSTOMER") DOCUMENT (FOR EXAMPLE:
PURCHASE ORDERS OR CONFIRMATIONS) AND/OR EMBEDDED WORKS'S
FAILURE TO OBJECT TO CONFLICTING OR ADDITIONAL TERMS WILL NOT
CHANGE OR ADD TO THE TERMS OF THIS AGREEMENT.
. All Orders are subject to acceptance by
Embedded Works. Embedded Works reserves the right to allocate the
sale of Products among its customers. Orders for special, custom,
value-added and Products specifically identified by Embedded Works
as non-standard are non-cancelable and non-returnable ("NCNR").
The Customer may not cancel or reschedule Orders for standard
Products without Embedded Works's consent, which shall not be
Embedded Works's quoted prices apply for 15
days or as otherwise stated in its quote. Embedded Works may
increase prices if Embedded Works's costs increase or other
circumstances beyond Embedded Works's reasonable control. Prices
are subject to change at any time. Prices are for Products only
and do not include taxes, impositions and any other charges, fees,
shipping charges and duties imposed by any government authority.
Customer is responsible for any additional fees and taxes.
3. TERMS OF PAYMENT.
Payment of the total invoice amount,
without offset or deduction, is due 30 days from the invoice date.
On any past due invoice, Embedded Works may charge interest from
the payment due date to the date of payment (at 1 1/2% per month),
plus reasonable attorney fees and collection costs. Embedded Works
may change the terms of Customer's credit at any time. Embedded
Works may apply payments to any of Customer's accounts.
4. DELIVERY AND TITLE.
Customer is responsible for all
shipping costs and any applicable surcharges. Title and risk of
loss pass to Customer upon delivery of the Products to the
carrier. Embedded Works's delivery dates are estimates only and
Embedded Works is not liable for delays in delivery. Embedded
Works reserves the right to make partial shipments 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.
5. PRODUCT RETURNS.
Customer cannot return Products
without a return material authorization ("RMA") number. RMAs will
be issued only for damage, shortage, or other discrepancy to
Products created solely by Embedded Works or the original
manufacturer, and only if Customer notifies Embedded Works in
writing of any damage, shortage, or other discrepancy to Products
within 10 days after delivery. RMAs will not be granted for
damage, shortage, or other discrepancy created by Customer, the
carrier or freight provider, or any other third party. Returned
Products must be in original manufacturer's shipping cartons or
equivalent. Customer must return all Products, freight prepaid, as
specified in the RMA and pay any restocking charges(minimum 25%).
At Embedded Works's discretion, Embedded Works will return all Products not
eligible for return to Customer, freight collect, or hold Product
for Customer's account at Customer's expense.
6. EMBEDDED WORKS'S LIMITED WARRANTY.
Embedded Works will
transfer to Customer any Product warranties and indemnities
authorized by the manufacturer, including any transferable
warranties and indemnities for intellectual property infringement.
Embedded Works warrants the Products will conform to the
manufacturer's specifications. Value-added work performed by
Embedded Works on Products will conform to Customer's
specifications. EMBEDDED WORKS MAKES NO OTHER WARRANTY,
EXPRESS OR IMPLIED. EMBEDDED WORKS MAKES NO WARRANTY OF
MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT.
Products do not meet manufacturer's specifications or if
value-added work by Embedded Works does not meet Customer's
specifications the Products will be, at Embedded Works's choice:
(1) repaired, (2) replaced at no cost to Customer; or (3) refund
Customer's purchase price. Customer must return Products to
Embedded Works, along with acceptable proof of purchase, within
the warranty period specified by the manufacturer freight charges
7. LIMITATION OF LIABILITY. EMBEDDED WORKS IS NOT LIABLE FOR
AND CUSTOMER IS NOT ENTITLED TO ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES; FOR EXAMPLE, LOSS OF
PROFITS OR REVENUE, LOSS OF DATA, LOSS OF USE, REWORK,
MANUFACTURING EXPENSE, INJURY TO REPUTATION, OR LOSS OF
CUSTOMERS. CUSTOMER'S RECOVERY FROM EMBEDDED WORKS FOR ANY
DIRECT DAMAGES WILL NOT EXCEED THE PRICE OF THE PRODUCT AT
ISSUE. CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD EMBEDDED WORKS
HARMLESS FROM ANY CLAIMS BASED ON; (i) EMBEDDED WORKS'S
COMPLIANCE WITH CUSTOMER'S DESIGNS, SPECIFICATIONS, OR
INSTRUCTIONS, (ii) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER
THAN EMBEDDED WORKS, OR (iii) USE IN COMBINATION WITH OTHER
8. FORCES BEYOND EMBEDDED WORKS'S CONTROL
. Embedded Works
is not liable for failure to fulfill its obligations for any
accepted Order or for delays in delivery due to causes beyond its
reasonable control, (for example: acts of God, acts or omissions
of the Customer, man-made or natural disasters, epidemic medical
crises, materials shortages, strikes, acts of terrorism, delays in
transportation, or inability to obtain labor or materials through
its regular sources).
9. USE OF PRODUCTS.
Products are not authorized for use in
critical safety or other applications where a failure may
reasonably be expected to result in personal injury, loss of life,
or catastrophic property damage. If Customer uses or sells the
Products for use in any such applications, Customer acknowledges
that such use or sale is at Customer's sole risk. Customer will
indemnify, defend and hold Embedded Works and the Product
manufacturer harmless from and against any and all liabilities and
costs arising out of or in connection with such use or sale.
Certain Products sold by Embedded Works
and other related technology and documentation are subject to
export control laws, regulations and orders of the United States
and the export or import control laws and regulations of other
countries. Customer will not directly or indirectly export or
divert any Products and other related technology and documentation
to any third party or country where such export or transmission is
restricted or prohibited. Customer agrees it is responsible to
obtain any license to export, re-export, or import as may be
11. PRODUCT INFORMATION.
Product information, including
information related to a Product's specifications, export/import
control classifications, uses or conformance with legal or other
requirements, is obtained by Embedded Works from its suppliers or
other sources. Such information is provided by Embedded Works on
an "AS IS" basis. Embedded Works makes no representation as to the
accuracy or completeness of the Product information, and
DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES UNDER
ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION, INCLUDING
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Works recommends Customer validate any Product Information before
using or acting on such information. All Product information is
subject to change without notice. Embedded Works is not
responsible for typographical or other errors or omissions in
12. GOVERNMENT CONTRACTS.
Embedded Works is a distributor
of "Commercial Items" as defined in FAR 2.101.
a. Embedded Works hereby advises that it will only operate under
FAR 52.244-6 when fulfilling a subcontract for a government prime
contractor. Therefore, the following FAR clauses are incorporated
by reference and made a part of any such subcontract or order to
the extent that these clauses are applicable.
- 52. 219-8 Utilization of Small Business Concerns
- 52.222-26 Equal Opportunity
- 52.222-36 Affirmative Action for Workers with Disabilities
- 52.222-39 Notification of Employee Rights Concerning Payment
of Union Dues
- 52.247-64 Preference for Privately Owned U.S. Flag
b. If the subcontract is issued in support of a DOD prime contract
the following additional clauses are incorporated by reference and
made a part of any such subcontract or order to the extent that
these clauses are applicable:
- DFARS 252.247-7023Transportation of Supplies by Sea
- DFARS 252.247-7024 Notification of Transportation of
Supplies by Sea
c. In accordance with FAR 12.211 the Customer will receive only
those rights in technical data customarily provided by Embedded
Works's supplier. By no means will this be interpreted as
providing to the Customer unlimited rights in data, software, or
intellectual property rights provided by Embedded Works's supplier
or any other third party.
d. Embedded Works hereby rejects the flow down of the requirements
of the: (i) Trade Agreements Act, FAR 52.225-5 or DFARS
252.225-7021; and (ii) the Buy American Act, FAR 52.225-1 or DFARS
252.225-7001. There is an exception to the Buy American Act for
"information technology" that applies to many of the products sold
by Embedded Works's Technology Solutions business. However,
Customer is solely responsible for determining if an exception
e. Embedded Works cannot comply with Preference for Domestic
Specialty Metals, DFARS 252.225-7014, Alt. 1, unless one of the
following conditions is met: 1) its product manufacturers indicate
they can comply; 2) an existing Domestic Non-Availability
Determination (DNAD) applies; or 3) there is an applicable
exception. However, Customer is solely responsible for determining
if a DNAD or an exception exists.
13. ELECTRONIC ORDERS.
In the event that any part of the
purchase and sale of Products utilizes electronic data
interchange, internal or third party portal, or any other
electronic means ("Electronic Purchase Order"), this Agreement, or
any other validly executed agreement between Embedded Works and
Customer, will continue to apply to the purchase and sale of
Products between Customer and Embedded Works.
a. The laws of the State of California will exclusively govern any
dispute between Embedded Works and Customer without reference to
California’s conflict of laws principles. The United Nations
Convention for the International Sale of Goods shall not apply.
b. Customer may not assign this Agreement without the prior
written consent of Embedded Works. Embedded Works or its
affiliates may perform the obligations under this Agreement. This
Agreement is binding on successors and assigns.
c. This Agreement can only be modified in writing signed by
authorized representatives of both Embedded Works and Customer.
d. Embedded Works and Customer are independent contractors and
agree that this Agreement does not establish a joint venture or
e. Statements or advice (technical or otherwise) if given without
charge, are an accommodation to Customer and Embedded Works has no
responsibility or liability for the content or use of such
statements or advice.
f. Embedded Works's failure to object to any document,
communication, or act of Customer will not be deemed a waiver of
any of these terms and conditions.
g. The unenforceability of any of these terms or conditions will
not affect the remainder of the terms or conditions.
h. Products, including software or other intellectual property,
are subject to any applicable rights of third parties, such as
patents, copyrights and/or user licenses.
i. Customer and Embedded Works will comply with applicable laws