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Mini-Circuit’s Standard Terms
1. LIMITATION AND DISCLAIMER OF WARRANTIES AND LIABILITIES
(a) Subject to the provisions and qualifications set forth in these standard terms and conditions ("Standard Terms"), Scientific Components Corporation ("Mini-Circuits") warrants only to your company ("Purchaser") that on the date of shipment the goods sold pursuant hereto (the "Parts") will conform to Mini-Circuit’s applicable Specifications (as defined below) in effect on the date of shipment, as may be further amended by Mini-Circuits from time to time. Conformance to the Specifications will be based on Mini-Circuit’s then applicable established test performance criteria and measurement instructions, as determined by Mini-Circuits. The warranty period will be for a period of twelve (12) months after shipment from Mini-Circuit’s applicable plant, unless another period is specified (the "Warranty Period"). The term "Specifications" means Mini-Circuit’s applicable specification sheet(s) concerning a particular Part as designated by Mini-Circuits from time to time.
Without the prior written consent of Mini-Circuits, Parts sold pursuant hereto are not authorized for use as critical components in (i) devices, implements or systems utilized in air or space flight; (ii) medical devices, implements or systems; or (iii) life support devices, implements or systems (collectively, "Space and Medical Systems"). Accordingly, Parts that are used in Space and Medical Systems are sold "AS IS, WITH ALL FAULTS". The express warranty specified in section 1(a) does not apply to Parts used in Space and Medical Systems and Mini-Circuits will have no responsibility or liability in connection therewith and same are hereby waived. As used herein, "life support devices, implements or systems" are those which (i) are intended for surgical implant into the body; or (ii) support or sustain life. A "critical component" is any component of a device, implement or system whose failure to perform does or can reasonably be expected to result in injury to person or property or cause a failure in that device, implement or system or affect its safety or effectiveness.
(b) It is hereby acknowledged and agreed that there are many variables affecting the proper selection, use and installation of parts manufactured or sold by Mini-Circuits since each potential system utilizing these parts is unique with differing component configurations and attributes and differing requirements and environments. Accordingly, notwithstanding any information provided by Mini-Circuits, Purchaser is responsible for consulting with its own engineers and other appropriate professionals who are familiar with the specific systems into which Parts are to be incorporated so that the proper selection, use and installation of such parts, and the adequacy of the system and back-up systems, can be determined. As a result, Purchaser shall be barred from any recovery against Mini-Circuits (including, without limitation, any recovery under the express warranty specified in section 1(a)) by reason of improper selection, use and/or installation of the Parts and, with respect to the systems in which such parts are to be utilized, improper system design and/or the inadequacy of back-up systems, and Mini-Circuits shall have no liability on account thereof, and same is hereby waived.
Further, Purchaser shall also be barred from any recovery (including, without limitation, any recovery under the express warranty specified in section 1(a)) and Mini-Circuits shall have no liability on account of any of the following, or the use of the affected Parts: (i) any Parts which have been subject to accident, negligence, alteration, abuse, tampering, misuse, improper storage (including, without limitation, exposure to weather), improper maintenance, improper removal, improper installation or the like; (ii) any Parts which are not used with compatible components or in appropriate environments; (iii) any Parts which are used outside of stated absolute maximum ratings, or applicable service, pressure, temperature, frequency or other ranges or applications for which they were manufactured, as specified by Mini-Circuits; (iv) Permissible Defects (as defined below); (v) use of any Parts for Space and Medical Systems without the prior written consent of Mini-Circuits; (vi) failure to comply with Performance Conditions (as defined below); (vii) unreasonable use, improper operation of Parts, use of Parts beyond normal fashion, failure to follow instructions, failure to maintain Parts in good condition and repair, or the like; (viii) without the prior written consent of Mini-Circuits, use of Experimental Parts (as defined below), it being understood that such parts are sold "AS IS", "WITH ALL FAULTS"; (ix) failures of or defects in Parts caused by another component or other element or influence within or outside of a given system including, without limitation, failures caused by voltage or current settings; and (x) the occurrence of a Software Issue (as defined below) in the event any Parts contain or require the use of software.
For purposes hereof, the term "Permissible Defects" means deviations from the Specifications to the extent of permissible variations and defects as defined by Mini-Circuit’s applicable test performance criteria and measurement instructions as determined by Mini-Circuits. The term "Experimental Parts" means parts which are developmental, experimental, first articles or prototype parts. The term "Performance Conditions" means the conditions, assumptions, and recommendations contained in data, specifications, drawings, technical information, application notes or other literature (collectively "Data") of Mini-Circuits which are required to or should be satisfied in order for Parts to meet applicable Specifications on a consistent basis. The term "Software Issue" means a particular Part fails to meet applicable Specifications due to an error, defect, failure, or malfunction associated with the software contained in or used with that Part.
For purposes hereof, the term "Person" means any natural person, corporation, division of a corporation, partnership, proprietorship, joint venture, association, trust, estate, foundation, or any other entity, whether or not incorporated, and any governmental authority, unit or agency.
(c) In the event a defect is discovered or should have been discovered from which it is reasonable to conclude that damage, either personal, property or economic, may result, the continued use of the suspect parts will constitute an assumption of the risk and a bar to any recovery against Mini-Circuits, including, without limitation, any recovery for breach of any express warranty.
(d) PURCHASER'S SOLE AND EXCLUSIVE RIGHTS AND REMEDIES IN CONNECTION WITH THE LIMITED WARRANTY CONTAINED IN SECTION 1(a) ARE ALSO LIMITED TO THE RIGHTS AND REMEDIES EXPRESSLY SET FORTH IN SECTION 2.
(e) IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF THE EXPRESS TERMS OF SECTION 1(a). THE EXPRESS WARRANTY SET FORTH IN SECTION 1(a) AND THE OBLIGATIONS AND LIABILITIES OF MINI-CIRCUITS THEREUNDER ARE EXCLUSIVE AND ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES CONCERNING INFRINGEMENT OR THE LIKE AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING AND USAGE OF TRADE.
It is hereby expressly understood and agreed that unless a statement is specifically identified in these Standard Terms or on Mini-Circuit’s website or on an Order as a warranty, the statements made herein and therein relating to the Parts are not express warranties and do not form a part of the basis of the bargain but are merely Mini-Circuit’s opinion or commendation of the Parts. Any description of the parts specified in these Standard Terms or any description of parts contained in Mini-Circuit’s website, an Order or any and all brochures, pamphlets or other literature of Mini-Circuits, whether delivered before or after the date hereof, are not intended to be warranties. Instead, they are for the sole purpose of identifying such parts; and such descriptions are not part of the basis of the bargain, and do not constitute a warranty that the Parts shall conform to those descriptions. The use of any sample, graph, data curve, model or drawing is for illustrative purposes only, conformity of the Parts to such sample, graph, data curve, model or drawing is not part of the basis of the bargain, and is not a warranty that the Parts will conform with the sample, graph, data curve, model or drawing. No affirmation of fact or promise made by or on behalf of Mini-Circuits, whether or not in these Standard Terms, shall constitute a warranty that the Parts will conform to the affirmation or promise.
(f) Mini-Circuits neither assumes nor authorizes any other person to assume for it any other liability in connection with the sale of Parts hereunder.
(g) Purchaser acknowledges that Mini-Circuits has acted in good faith in making the warranty contained in section 1(a). Purchaser further acknowledges that such warranty is intended to be the only warranty of Mini-Circuits. In the event of a conflict of warranties, the rules of section 2-317 of the New York Uniform Commercial Code ("UCC") shall be applied to determine the dominant warranty, and Mini-Circuits shall be excused from performance on the conflicting non-dominant warranty.
(h) In consideration for Mini-Circuits accepting the Order and providing the express warranty specified in section 1(a), Purchaser shall be barred from any recovery against Mini-Circuits’ affiliates, including the manufacturer of the Parts, if other than Mini-Circuits, purchased by Purchaser hereunder and such affiliates and manufacturer shall have no liability whatsoever on account of (i) the Parts or otherwise, (ii) arising out of or relating to the purchase or use of Parts, (iii) use of the Mini-Circuits website, or (iv) the transactions contemplated hereby, and same are hereby waived and released by Purchaser, all to the fullest extent permitted by applicable law. In this regard, Purchaser hereby acknowledges and agrees that Mini-Circuits’ affiliates are entitled to rely on this waiver and release as third party beneficiaries as more particularly stated in section 17(d).
2. LIMITATION OF REMEDIES, WAIVER OF CONSEQUENTIAL DAMAGES
(a) EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTIONS 2(b) and 8, MINI-CIRCUIT’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO (i) ANY BREACH OF WARRANTY, EXPRESS OR IMPLIED (UNDER THESE STANDARD TERMS OR OTHERWISE), (ii) DEFECTS IN PARTS, NON-CONFORMITIES OF THE PARTS OR THE TENDER THEREOF, AND/OR (iii) OTHER BREACHES OF ANY OBLIGATION OR DUTY OWED BY MINI-CIRCUITS HEREUNDER OR UNDER APPLICABLE LAW, AND PURCHASER'S SOLE AND EXCLUSIVE RIGHTS AND REMEDIES WITH RESPECT THERETO, SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT, AT MINI-CIRCUIT’S OPTION, OF ANY PARTS SOLD BY MINI-CIRCUITS WHICH MAY PROVE TO BE DEFECTIVE WITHIN THE WARRANTY PERIOD AS A DIRECT RESULT OF SUCH BREACH OF WARRANTY, DEFECT, NON-CONFORMITY OR OTHER BREACH. SUBJECT TO THE PROCEDURES SET FORTH BELOW, MINI-CIRCUITS WILL REPAIR OR REPLACE SUCH DEFECTIVE PARTS, AS THE CASE MAY BE, FREE OF CHARGE.
The determination of whether the Parts in question are defective will be made by Mini-Circuits in its sole and absolute discretion, and such determination shall be conclusive and binding on Purchaser. Mini-Circuits will give Purchaser notice of its determination within forty-five (45) days after Mini-Circuits receives such parts from Purchaser as provided herein. If Mini-Circuits determines that the Parts in question are defective, Mini-Circuits will identify the specific defective parts and remedy such defects in accordance with this section 2 within a reasonable time after giving notice that the Parts are defective.
In order for Purchaser to be entitled to receive the rights and remedies contained in this section 2, Purchaser must, during the Warranty Period, notify Mini-Circuits in writing of the existence of possible defective Parts within thirty (30) days after discovery thereof or the time Purchaser should have discovered such possible defect or else such claims shall be deemed waived. Such notification shall contain a request for a return material authorization ("RMA") from Mini-Circuits, and Purchaser shall comply with Mini-Circuit’s then applicable RMA procedures. Within fifteen (15) days after receiving the RMA, Purchaser shall deliver the specified Parts to the applicable plant designated by Mini-Circuits for that purpose, all as stated in the RMA, free of all liens and encumbrances. Mini-Circuits may initially only request a small sample of Parts in the RMA. Purchaser will pay for the transportation of the suspect Parts from Purchaser’s plant to Mini-Circuit’s plant, all as specified in the RMA. Purchaser is also responsible and liable for all other costs and expenses in connection with the return of parts under the RMA including, without limitation, recalls and disassembly of any systems, testing, inspections, insurance, removal and installation charges and other costs and expenses incurred in connection with this section 2. Purchaser shall bear the risk of loss of all such Parts returned pursuant to this section 2.
If Mini-Circuits determines that the Parts in question are defective and are covered by the warranty specified in section 1(a), Mini-Circuits will remedy such defects in accordance with this section 2(a). However, if Mini-Circuits determines such Parts are not defective or are not otherwise covered by the express warranty contained in section 1(a), then, to the extent feasible, such non-defective Parts will be returned to Purchaser, at Purchaser's sole cost and expense. In addition, Mini-Circuits shall charge a fee to Purchaser and Purchaser shall promptly pay a fee equal to the costs and expenses of testing and inspecting such Parts as incurred by Mini-Circuits. Purchaser shall promptly reimburse Mini-Circuits for such costs and expenses as well as the transportation expenses incurred by Mini-Circuits on account of the RMA. Mini-Circuits shall not be liable or responsible for damages or destroyed Parts as a result of such inspection or testing. Mini-Circuits shall have no liability or obligation to Purchaser for loss or damage resulting from the testing, repair, replacement, maintenance, loss of use of Parts, removal, recalls, disassembly of systems or subsequent reinstallation of parts.
Purchaser hereby acknowledges and agrees that the notice and time periods specified in this section 2 regarding discovery of defects, shipment of parts to Mini-Circuits, notification of defectiveness and the time to effectuate remedies are the appropriate, commercially reasonable and fair time and notice periods.
(b) IF AFTER A REASONABLE NUMBER OF ATTEMPTS BY MINI-CIRCUITS TO REMEDY A DEFECT PURSUANT TO SECTION 2(a) AND THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNCONSCIONABLE OR UNENFORCEABLE IN THE JURISDICTION IN WHICH ENFORCEMENT IS SOUGHT, OR IN THE EVENT REPAIR OR REPLACEMENT IS NOT APPROPRIATE OR PRACTICAL AS DETERMINED BY MINI-CIRCUITS IN ITS SOLE AND ABSOLUTE DISCRETION, PURCHASER SHALL, AT ITS OPTION, EITHER RECEIVE (I) A REFUND OF THE PURCHASE PRICE FOR THE DEFECTIVE PARTS; OR (II) A CREDIT IN AN AMOUNT EQUAL TO THE PURCHASE PRICE OF SUCH PARTS, IT BEING UNDERSTOOD THAT THE REMEDIES STATED IN THIS SECTION 2(b) SHALL THEN BE PURCHASER'S SOLE AND EXCLUSIVE REMEDY.
PURCHASER'S RIGHTS AND REMEDIES PROVIDED IN SECTIONS 2(a) AND 2(b), AND IF APPLICABLE, SECTION 8, FOR THE MATTERS STATED THEREIN, SHALL BE PURCHASER'S SOLE AND EXCLUSIVE RIGHTS AND REMEDIES HEREUNDER AND ARE EXPRESSLY MADE IN SUBSTITUTION OF ANY AND ALL RIGHTS AND REMEDIES OTHERWISE PROVIDED UNDER APPLICABLE LAW.
(c) In addition to Mini-Circuit’s rights under section 2-508 of the UCC, Mini-Circuits shall have the right to cure all non-conformities of Parts and the tender thereof without regard to whether Mini-Circuits had reasonable grounds for believing that the tender or non-conformities would be acceptable. Mini-Circuits shall have such right to cure even if Mini-Circuit’s time to do so pursuant hereto extends beyond the initial time for performance hereunder. The parties acknowledge and agree that, to the extent an Order refers to more than one delivery, such Order is, and shall be deemed to be, an installment contract within the meaning of section 2-612 of the UCC and the parties' rights and obligations hereunder shall be construed in accordance therewith, even if it is determined that this is a unitary contract with several deliveries.
(d) THE MAXIMUM LIABILITY OF MINI-CIRCUITS ARISING OUT OF OR RELATING TO THE SALE OF PARTS EVIDENCED BY ANY ORDERS AND THE TRANSACTIONS CONTEMPLATED THEREBY AND BY THESE STANDARD TERMS SHALL BE LIMITED TO THE PURCHASE PRICE OF THE PARTS SOLD HEREUNDER TO THE EXTENT ACTUALLY PAID FOR BY PURCHASER AND RECEIVED BY MINI-CIRCUITS. (IN RESPECT THEREOF, PURCHASER HEREBY ACKNOWLEDGES THAT SUCH LIMITATION OF LIABILITY IS NOT SUBJECT TO THE PROVISIONS OF UCC SECTIONS 2-718, 2-719(1)(b) OR 2-719(2), AND IF AND TO THE EXTENT SUCH SECTIONS MAY BE APPLICABLE, WAIVES APPLICATION OF SUCH).
UNDER NO CIRCUMSTANCES SHALL MINI-CIRCUITS BE LIABLE TO PURCHASER OR ANY OTHER PERSON FOR ANY: (i) DAMAGES ARISING OUT OF OR RELATING TO PERMISSIBLE DEFECTS; OR (ii) CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, OR LOST PROFITS, EXPENSES OR LOSSES DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY (1) BREACH OF WARRANTY, EXPRESS OR IMPLIED, UNDER THE STANDARD TERMS OR OTHERWISE; (2) DEFECTIVE PARTS OR ANY NON-CONFORMITY OF THE PARTS OR THE TENDER THEREOF; OR (3) OTHER BREACH OF ANY OBLIGATION OR DUTY OWED BY MINI-CIRCUITS HEREUNDER, UNDER ANY ORDER OR UNDER APPLICABLE LAW, REGARDLESS OF WHETHER THE LIABILITY RESULTED FROM ANY GENERAL OR PARTICULAR REQUIREMENT OR NEED WHICH MINI-CIRCUITS KNEW OR SHOULD HAVE KNOWN OF, IT BEING EXPRESSLY UNDERSTOOD THAT PURCHASER'S ONLY REMEDY SHALL BE THE REPAIR OR REPLACEMENT OR A REFUND OR CREDIT OF THE PURCHASE PRICE THEREFOR IN THE MANNER AND ONLY TO THE EXTENT SPECIFIED IN SECTIONS 2(a), 2(b) OR 8. IN THE EVENT THAT ANY OTHER TERM OF THE STANDARD TERMS OR AN ORDER IS FOUND UNCONSCIONABLE OR UNENFORCEABLE FOR ANY REASON, OR ANY EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE, THIS PROVISION OF WAIVER BY AGREEMENT OF CONSEQUENTIAL DAMAGES SHALL NEVERTHELESS CONTINUE IN FULL FORCE AND EFFECT.
For purposes of these Standard Terms, the term "Order" means the Order Summary Page generated after Purchaser submits a Secure Order during a particular Session that is specifically acknowledged by Mini-Circuits pursuant to its standard written or electronic acknowledgment. The term "Secure Order" means a Secure Order Form on Mini-Circuit’s website completed by Purchaser and submitted to Mini-Circuits by clicking the applicable "Continue Order" button on such website for the purchase of Parts. The Secure Order Form contains the Part model number, Part description, Part unit price, quantity to be ordered, total price, billing information, shipping information and credit card information. Any other terms specified by Purchaser that are different from, additional to, or conflict with these Standard Terms are not applicable to the Secure Order, and shall be of no force or effect. The term "Session" means that certain time period commencing from the time Purchaser clicks onto a "Click to add to Shopping Cart" icon and ending when Purchaser clicks the "Submit Order" button on the Order Summary Page.
Accordingly, Purchaser acknowledges and agrees that a Secure Order and the related Order Summary Page is merely an offer to purchase Parts and is not binding on Mini-Circuits unless and until Mini-Circuits accepts such offer by issuing a written or electronic acknowledgement of the offer in question. Purchaser's offer will be irrevocable for a period of five (5) business days (the "Offer Period"). If Mini-Circuits accepts an offer by issuing an acknowledgment during the applicable Offer Period, a binding contract consisting of an Order will be created based on these Standard Terms. If Mini-Circuits fails to issue an acknowledgment for a particular offer during the applicable Offer Period, or if Mini-Circuits otherwise rejects an offer, no binding contract is created and the particular offer will be deemed to be rejected.
3. DESIGN PROTECTION
(a) Purchaser has no right, title or interest in or to (i) the Specifications and other specifications and technical information furnished by Mini-Circuits or supplied by Purchaser and modified by Mini-Circuits concerning the Parts or the proprietary information contained in any of the foregoing by reason of the sale of such Parts or otherwise; (ii) designs of Parts, (iii) Mini-Circuits Process Technology and (iv) any and all related improvements of any of the foregoing (the foregoing items (i) – (iv) are collectively, the "Mini-Circuits Property"). Purchaser, as a special inducement to Mini-Circuits, agrees not to directly or indirectly copy or reproduce any Mini-Circuits Property, and further agrees that it will not disassemble, decompile or reverse engineer the Parts or otherwise misappropriate or utilize the Mini-Circuits Property. The Mini-Circuits Property shall be kept confidential by Purchaser and Purchaser shall not disclose same to any third party, nor shall same be used by Purchaser for any purpose other than to assist Mini-Circuits in supplying the Parts. All Mini-Circuits Property and tooling supplied or purchased by Mini-Circuits shall be and remain the exclusive property of Mini-Circuits and/or Mini-Circuit’s affiliates (as applicable), and such property shall be delivered to Mini-Circuits at Mini-Circuit’s request. With respect to designs owned by Purchaser, such ownership shall be exclusive of Mini-Circuit’s unique designs, technologies and internal components utilized in meeting Purchaser’s designs. All improvements to Mini-Circuits Property and the Parts and the related Intellectual Property shall remain the exclusive property of Mini-Circuits (and/or its affiliates as applicable) irrespective of whether the improvements were suggested or made by or on behalf of Purchaser or any other Person. For purposes hereof, the term "Mini-Circuits Process Technology" means the Intellectual Property associated with the underlying materials, manufacturing, fabrication, assembly and testing of Parts. The term "Intellectual Property" means intellectual property and proprietary rights of any kind or nature including, without limitation, know-how, designs, technical drawings and documents, specifications, processes, developments, improvements, confidential or proprietary information, trade secrets, inventions, patents, trademarks and copyrights.
(b) Purchaser hereby acknowledges the validity of the Mini-Circuits Property including, without limitation, patents and patent applications presently pending. Purchaser hereby agrees that it will not directly or indirectly infringe the Mini-Circuits Property or contest or challenge the validity of the Mini-Circuits Property in any way.
4. FORCE MAJEURE
(a) Notwithstanding any provision herein to the contrary, Mini-Circuits shall not be liable or responsible for any delay in or failure of delivery of the Parts by reason of force majeure, including, but not limited to, Mini-Circuit’s inability to obtain raw materials from suppliers or to obtain same on a timely basis, or as a result of interruption of transportation, delays in delivery, governmental regulation, labor disputes, strikes, war, fire, flood, accidents, acts of God, civil disturbance, quota restrictions or any other cause beyond Mini-Circuit’s control, whether or not such cause be of the same class or kind as those enumerated above, such enumeration being expressly understood to be in addition to other causes or classes of causes beyond Mini-Circuit’s control. In the event of the occurrence of any such causes, Mini-Circuits shall have the right to allocate production and deliveries among its customers in such proportions as it deems appropriate, in its sole and absolute discretion.
(b) In the event Mini-Circuits is unable to make timely delivery of all or a portion of the Parts, by reason of any events or occurrences referred to in this section 4, Purchaser must accept delivery of the Parts whenever Mini-Circuits is able to make such delivery regardless of the duration of the delay in delivery of the Parts, or Mini-Circuits may, in its sole and absolute discretion, cancel the undelivered portion of the Order in question, without liability.
5. INTELLECTUAL PROPERTY INFRINGEMENTS AND INDEMNITY
(a) Mini-Circuits makes no representations or warranties as to whether Parts are free from claims of third parties regarding infringement or the like, and same are hereby waived.
(b) In the event Parts are manufactured in accordance with Data supplied by Purchaser or derived from Mini-Circuit’s Data but modified to meet Purchaser's particular requirements or instructions, Purchaser shall indemnify, defend and hold Mini-Circuits and its affiliates, suppliers, and subcontractors harmless from and against any and all liabilities, damages, losses, claims, actions, proceedings, and expenses, including, without limitation, reasonable legal fees (collectively "Damages") of whatsoever kind and nature, imposed upon, incurred by, asserted, threatened or awarded against Mini-Circuits directly or indirectly arising out of, relating to or resulting from (i) the infringement of any foreign or domestic Intellectual Property right, or (ii) the manufacture, sale or distribution of such Parts. Any and all amounts due for indemnity shall be paid as Damages are incurred, and in any event, within ten (10) days after written demand therefor.
6. DELIVERY, RISK OF LOSS AND RELATED MATTERS
(a) Shipping dates specified in an Order are approximate and are based upon prompt receipt of all necessary documentation and information. Unless another mercantile symbol is utilized on the face of the applicable invoice, Parts shall be delivered, (i) for sales having an ultimate destination within the United States and its territories, "F.O.B. Mini-Circuit’s applicable plant"; or (ii) for sales having an ultimate destination outside the United States or its territories, "ex works Mini-Circuit’s applicable plant"; as designated on the face thereof, and in each instance Mini-Circuits is authorized to ship parts by carrier. Unless otherwise indicated, the foregoing mercantile symbols shall have the meaning ascribed to them under the UCC for sales within the United States and its territories, and under the International Commercial Terms – 2000 for sales outside the United States and its territories. Payment shall be due within thirty (30) days after the later of (i) the date of shipment of the parts in question (however, if shipment is delayed by Purchaser, payment will be due thirty (30) days after the issuance of the applicable invoice by Mini-Circuits), or (ii) the date Mini-Circuits issues an invoice therefor. At Mini-Circuit’s option, Mini-Circuits may, for any reason, suspend the credit term specified above for any delivery and may demand cash payment on delivery or impose other payment terms including, without limitation, pre-payments. Notwithstanding anything to the contrary contained herein, Mini-Circuits reserves the right, under any circumstances, to delay deliveries indefinitely and to allocate production and deliveries of Parts among its various customers in Mini-Circuit’s sole discretion, or, if applicable, in accordance with the U.S. Defense Priority and Allocation Systems Regulations (15 CFR Part 700), and Mini-Circuits shall have no liability therefor. Such allocation may or may not be on a pro-rata basis and may be such that no allocation is made to Purchaser.
(b) Unless otherwise specified by these Standard Terms or on the face of the applicable invoice, delivery shall occur and risk of loss of the Parts shall pass to Purchaser upon delivery of Parts, at Mini-Circuit’s applicable plant, to a carrier or the truck of Mini-Circuits or Purchaser, as the case may be. Further, for purposes of these Standard Terms and the applicable invoice, "shipment" shall also be deemed to occur upon such delivery, loading Parts onto trucks at Mini-Circuit’s plant and transportation. Transportation of such parts shall be at Purchaser’s sole risk and expense. In the event Purchaser breaches any provision hereof or otherwise repudiates its obligations hereunder, the risk of loss of identified Parts at Mini-Circuit’s plant shall immediately pass to Purchaser.
(c) Mini-Circuits shall have the right to deliver the entire Order at one time or in portions from time to time within the time of delivery specified in sections 4 and 8.Payment for partial shipments shall be due thirty (30) days after the later of (i) the date of such partial shipment (however, if such partial shipment is delayed by Purchaser, payment will be due thirty (30) days after the issuance of the applicable invoice by Mini-Circuits), or (ii) the date Mini-Circuits issues an invoice therefor. The price for partial shipments will be pro-rated as determined by Mini-Circuits and reflected on its invoice. Any delivery or portion thereof not made in accordance with these Standard Terms shall not effect any fulfilled parts thereof, nor entitle Purchaser to reject subsequent deliveries, nor entitle Purchaser to off-set any invoices of Mini-Circuits. Without Mini-Circuit’s prior written consent (which may be withheld for any reason), orders and releases for Parts may not be rescheduled or cancelled by Purchaser and the Parts are not returnable, except that Purchaser may return defective Parts pursuant to Mini-Circuit’s RMA policy as specified in section 2. Accordingly, Purchaser shall not have the right to accelerate, postpone, reschedule, cancel or otherwise modify the delivery dates and related shipment of Parts specified by Mini-Circuits on the applicable invoice or in the Order or purchase order acknowledgment, as applicable (other than as provided in section 8). If Purchaser attempts to do so, it will be deemed to have repudiated this contract.
(d) In the event Purchaser cancels orders or releases any of the Parts which are the subject of an applicable Order or purchase order acknowledgment, Purchaser shall pay Mini-Circuit’s then applicable cancellation fee as specified by Mini-Circuits from time to time.
(e) Due to fluctuations in inventory levels, RoHS compliant Parts may be substituted for Standard non-RoHS compliant Parts, unless Mini-Circuits receives a written instruction from Purchaser to the contrary. Parts that are RoHS compliant are clearly marked with a "+" suffix following the base model number of the Part in question. Purchaser hereby acknowledges and confirms that the designation by Mini-Circuits of a Part being RoHS compliant is based on and subject to the methodologies, assumptions and qualifications specified on Mini-Circuit’s website. To visit, please go to www.minicircuits.com and click on "RoHS/Reach" under the "Quality" header.
Except as otherwise specified on the Order, the purchase price for the Parts shall be the list price for such parts as reflected on the Order, and if not so stated, then as otherwise reflected on Mini-Circuit’s price list at the time of shipment. In addition to the purchase price, Purchaser shall be responsible for and shall pay for any and all transportation costs, insurance expenses and all applicable federal, state and local sales, use, property, excise and other taxes, duties or governmental charges imposed on or with respect to the Parts, except taxes levied on Mini-Circuit’s net income. To the extent permissible, New York state sales tax will not be imposed on parts identified as samples on the face hereof. In the event of new taxes or increased rates which are applicable to the transactions contemplated hereby, the applicable Order shall be subsequently adjusted if necessary and Purchaser shall immediately pay any difference. Notwithstanding any prices specified on the face of the applicable Order or invoice, Mini-Circuits reserves the right to charge prices prevailing at the time of shipment for parts scheduled to be shipped on an Order more than six (6) months from the order entry date on Mini-Circuit’s records.
(a) Except as otherwise provided in sections 2(c) and 4, Purchaser is entitled to cancel only that portion of any order which is excessively delayed, it being understood that time is not of the essence. Upon such cancellation, Purchaser shall only be entitled to a credit of the purchase price paid to Mini-Circuits for the portion of the order which has been canceled by Purchaser as a result of such excessive delay. Such remedy shall be Purchaser's sole and exclusive remedy with respect to late deliveries, and is expressly made in substitution of all other rights and remedies otherwise provided under applicable law. However, if this remedy is deemed to fail of its essential purpose, section 2(b) shall apply in the alternative. Purchaser acknowledges and agrees that Mini-Circuits shall not be liable or responsible for any resulting back-charges incurred by Purchaser on account of any such delays.
(b) To invoke such cancellation, Purchaser must give Mini-Circuits ten (10) days prior written notice thereof provided, however, that (i) the Parts are not specially manufactured, or (ii) Mini-Circuits has not caused the Parts to be manufactured or shipped the Parts in the interim. In the event the Parts are specially manufactured, Purchaser may invoke such cancellation, provided, however, that Mini-Circuits has not commenced manufacturing, or made commitments for the procurement of the Parts or underlying raw materials.
9. LIMITATION OF ACTION
No action or proceeding at law, in equity or otherwise shall be commenced by Purchaser against Mini-Circuits for Mini-Circuit’s alleged breach of warranty (express or implied) under these Standard Terms or otherwise, failure to deliver conforming Parts or other breach of any obligation or duty owed by Mini-Circuits (including without limitation by negligent acts or omissions) hereunder or under applicable law, unless: (i) Purchaser notifies Mini-Circuits in writing at the address specified in these Standard Terms within thirty (30) days from the date of such alleged breach or failure to deliver conforming Parts, provided Mini-Circuits does not remedy or correct the breach or non-conformity within sixty (60) days from the receipt of the notice; and (ii) such action or proceeding is commenced by Purchaser within twelve (12) months from the date the breach or non-conformity occurs for any action whether in contract, negligence or strict products liability, other than breach of warranty, regardless of the Purchaser's lack of knowledge or, in the event of breach of warranty, within twelve (12) months from the date the breach occurs or from the expiration of the Warranty Period, or applicable statute of limitations period, whichever occurs first. Notwithstanding the foregoing, nothing contained in this section 9 shall be construed to abridge or limit the express warranty contained in section 1(a) hereof.
10. GOVERNMENT CONTRACTS
(a) If Purchaser places any orders for Parts in connection with or under a U.S. Government contract or sub-contract, then, no Federal Acquisition Regulation ("FAR") or Defense Federal Acquisition Regulations Supplement ("DFARS") clauses shall be incorporated herein by reference, and same are hereby rejected and excluded, except Mini-Circuits agrees to adhere to mandatory FAR and DFARS clauses to the extent Mini-Circuits is required to do so under applicable U.S. laws. However, to the extent Purchaser is the United States Government or one of its agencies, then, to the extent of a conflict between these Standard Terms and any applicable law, rule or regulation (collectively, "Law") that cannot be waived, such Law shall control and the applicable Order shall be modified as provided in section 17(o).
(b) Purchaser acknowledges and confirms that DFARS clause 252.225-7009 (Restriction on Acquisition of Certain Articles Containing Specialty Metals) (the "Specialty Metals Clause") is not applicable to the sale of Parts transactions evidenced hereby because the Parts which are the subject of the applicable Orders meet the definition of electronic components (as defined under the Specialty Metals Clause) and therefore, qualify for the electronic components exception at DFARS 252.225-7009(c). If the Parts which are the subject of the applicable Orders do not meet the definition of electronic components (as defined under the Specialty Metals Clause), the Parts alternatively qualify for the commercially available off-the-shelf (COTS) items exception at DFARS 252.225-7009(c).
(c) If Purchaser is the U.S. federal government, or a contractor or subcontractor purchasing Parts under a U.S. federal government contract or sub-contract, Mini-Circuits provides the Parts, including the related Software (as defined below at section 17(g)), Data, and technology, as follows:
(i) Government technical data and software rights related to the Parts (including without limitation rights to Data and Software) include only those rights defined in these Standard Terms, which are the rights customarily provided to the public. This customary license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).
(ii) If a U.S. federal government agency has need for rights not conveyed under these Standard Terms, such rights must be negotiated with Mini-Circuits to determine if there are acceptable terms for transferring such rights; and if agreement is reached for transferring such rights, a mutually acceptable written agreement specifically conveying such rights must be approved and signed by Mini-Circuits and the applicable U.S. federal government agency in order for such transfer to be effective.
11. DEFAULT, CANCELLATION AND RELATED MATTERS
(a) The occurrence of one or more of the following events shall constitute an "Event of Default": (i) Purchaser's breach or failure to perform any of its obligations hereunder, under any Orders or under any other orders or agreements with Mini-Circuits (collectively, "Other Orders"); (ii) Purchaser's breach or misrepresentation of any representation or warranty made by Purchaser hereunder or under any Other Order; (iii) Purchaser makes a general assignment for the benefit of creditors or admits in writing an inability to pay its debts as they mature or takes advantage of, or files under any federal or state insolvency statute or law, including, without limitation, the United States Bankruptcy Code, or consents to the institution of proceedings or the filing of any petition thereunder, or any preceding is filed or commenced against Purchaser under any insolvency statute or law which is not stayed and dismissed promptly, or any substantial part of the properties of Purchaser are placed in the control of a receiver, custodian, trustee or similar official, or Purchaser consents to the appointment thereof; (iv) prohibition of Mini-Circuits by any cease and desist order, injunction, or other valid order, decree, process of law, or restraint from shipping, selling, exporting or distributing any Parts pursuant to the terms hereof; (v) imposition of Damages by Mini-Circuits under section 5(b), as reasonably determined by Mini-Circuits; or (vi) determination by Mini-Circuits, in its sole and absolute discretion, that the prospect of payment, or Purchaser's financial condition, has been impaired or Purchaser may be insolvent within the meaning of § 1-201(23) of the UCC.
(b) Upon the occurrence of an Event of Default, Mini-Circuits shall have the sole and absolute right to cancel all or any portion of the Parts ordered pursuant hereto and/or under any Order or Other Orders. Mini-Circuits shall exercise such right by giving written notice of its intention to do so to Purchaser. Mini-Circuits shall not be liable to Purchaser on account of exercising such cancellation right.
12. CHOICE OF LAW AND FORUM
(a) The parties acknowledge and agree that the Standard Terms, the Orders and the transactions contemplated hereby and thereby shall be a contract made in the United States, State of New York. All questions pertaining to the validity, construction, execution and performance of these Standard Terms, the Orders and the transactions contemplated hereby and thereby shall be construed and governed in accordance with the domestic laws of the State of New York (including, without limitation, the UCC), without giving effect to principles of (i) comity of nations or (ii) conflicts of law, and these Standard Terms, the Orders and the transactions contemplated hereby and thereby shall not be governed by the provisions of the U.N. Convention on Contracts for the International Sale of Goods.
(b) (i) Any controversy or claim arising out of or relating to these Standard Terms, the Orders or any of the transactions contemplated hereby and thereby, including without limitation claims for breach hereof, shall be settled by arbitration in accordance with the United States Arbitration Act and administered by the American Arbitration Association in accordance with its commercial arbitration rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
(ii) The arbitration proceedings shall be conducted before a panel of three (3) neutral arbitrators. The place of the arbitration shall be in New York, New York. Any award in an arbitration initiated hereunder shall be in accordance with New York law, as more particularly specified above. The successful party will be entitled to be awarded all costs, including reasonable attorney’s fees, paid or incurred by such prevailing party during the course of the arbitration proceedings.
(iii) In any arbitration initiated under these Standard Terms, the arbitrators will have no authority to award (A) injunctive or other equitable relief, or (B) consequential, exemplary, incidental, indirect or special damages, lost profits or punitive or other damages not measured by the prevailing party’s actual direct damages, except as may be required by statute and then only to the extent such requirement cannot, as a matter of law, be waived. Any award shall include no injunction or direction to any party other than the direction to pay damages in accordance with the provisions hereof.
(iv) Except as required by law, neither party nor any arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of Purchaser and Mini-Circuits.
(v) If either party fails to proceed with arbitration as provided herein or unsuccessfully seeks to stay such arbitration, or fails to comply with any arbitration award, or is unsuccessful in vacating or modifying the award pursuant to a petition or application for judicial review, the other party shall be entitled to be awarded costs, including reasonable attorneys’ fees, paid or incurred by such other party in successfully compelling such arbitration or defending against the attempt to stay, vacate or modify such arbitration award and/or successfully defending or enforcing the award.
(c) To the extent that arbitration is unavailable by operation of law or otherwise, any action commenced in connection with these Standard Terms, the Orders or any of the transactions contemplated hereby and thereby shall be brought in a federal or state court located in the United States of America, State of New York, County of Kings, and to the extent not otherwise subject to the jurisdiction of such courts, Purchaser agrees to waive any objection to such jurisdiction and to subject itself to the jurisdiction of such courts. Both Mini-Circuits and Purchaser further agree that service of process for any such action or proceeding shall be made by either an international courier service that regularly maintains records of its pick-ups and deliveries or by certified mail, return receipt requested, addressed to the parties at their respective addresses. In addition, a party may at its option, elect to use any other method of service of process authorized by applicable law.
13. CUMULATIVE REMEDIES
All of Mini-Circuit’s rights and remedies hereunder shall be cumulative and not exclusive and shall be in addition to all other rights and remedies available under applicable law. Failure by Mini-Circuits to exercise any right, remedy or option hereunder or under applicable law, or delay in exercising same, will not operate as a waiver, it being understood that no waiver by Mini-Circuits will be effective unless it is in writing and signed by Mini-Circuits, and then only to the extent specifically stated.
14. 30-DAY MONEY BACK GUARANTEE ON CERTAIN PRODUCTS
(a) Products Eligible for a Refund. Only the Parts consisting of portable test and measurement equipment explicitly designated on the Order as being subject to a 30-day money back guarantee (the "Eligible Goods") are eligible for the refund contained in this section 14(a), which is only available to Purchaser and only during the 30-day Evaluation Period (the "30-day Guarantee"). If such Parts are not (i) portable test and measurement equipment or (ii) explicitly designated on the Order as being subject to a 30-day money back guarantee, then those Parts are not eligible for the 30-day Guarantee and do not constitute Eligible Goods. For purposes hereof, the term "Evaluation Period" means the period beginning on delivery of the Eligible Goods to the shipping point and ending on the thirtieth day thereafter.
Subject to the provisions of section 14, if for any reason Purchaser is not satisfied with Eligible Goods, we will issue Purchaser a refund of the purchase price (less shipping charges) of the Eligible Goods Purchaser wishes to return, provided: (i) Purchaser provides Effective Notice and an Effective Return of the Eligible Goods within the Evaluation Period, and (ii) the Eligible Goods are not subject to any Ineligibility Events. Notwithstanding anything to the contrary contained herein, this 30-day Guarantee is not, nor is it intended to be, a warranty of kind with respect to the Eligible Goods, but rather is a guarantee to refund the purchase price for Eligible Goods returned in accordance with this section 14.
(b) Products that are Not Eligible for a Refund. Purchaser shall not be eligible for the 30-day Guarantee for any Eligible Goods that have been subject to or affected by any of the following (collectively "Ineligibility Events"): (i) use by someone other than Purchaser; (ii) use for a commercial or production purpose, or for any purpose other than for evaluation of the Eligible Goods; (iii) accident, negligence, alteration, abuse, tampering, misuse, improper storage (including, without limitation, exposure to weather), improper maintenance, improper removal, improper installation or the like; (iv) use with incompatible components or in inappropriate environments; (v) use outside of stated absolute maximum ratings, or applicable service, pressure, temperature, frequency or other ranges or applications for which they were manufactured, as specified by Mini-Circuits; (vi) unreasonable use or improper operation of Eligible Goods, use of Eligible Goods beyond normal fashion, failure to follow instructions, failure to maintain Eligible Goods in good condition and repair, or the like; or (vii) Eligible Goods showing signs of wear and tear (as determined by Mini-Circuits). The determination of whether an Ineligibility Event has occurred will be made by Mini-Circuits in Mini-Circuits’ discretion, which determination shall be conclusive and binding.
(c) Obtain an RMA Authorizing the Return of Eligible Parts . In order to return an item, you must obtain an RMA from Mini-Circuits. RMAs for a refund for Eligible Goods may only be obtained by emailing us at firstname.lastname@example.org. We must receive an email from you within the Evaluation Period that contains the following information so that we may process your return ("Effective Notice") and issue you an RMA:
Any request for an RMA that is in an unintelligible or garbled form (as determined by Mini-Circuits) shall be deemed defective and not Effective Notice.
(d) How to Return a Product for a Refund. After Purchaser has received an RMA, Purchaser shall deliver the specified Eligible Goods to Mini-Circuits. Eligible Goods must be received by Mini-Circuits in accordance with the following (collectively constituting an "Effective Return"): (i) returned in the original, undamaged condition, accompanied with the RMA and the original undamaged packaging, documentation, enclosures, and software (if any) ; (ii) delivered to the applicable plant designated by Mini-Circuits, all in accordance with and as stated in the RMA, free of all liens and encumbrances; and (iii) to the extent that any Eligible Good returned to Mini-Circuits is accompanied by software, Purchaser must uninstall the software from any computers and storage devices and delete any backup copies prior to returning the Eligible Good to Mini-Circuits. Any shipping costs incurred to return Eligible Goods will be the responsibility of Purchaser and Mini-Circuits will have no liability therefor. Purchaser shall bear the risk of loss of all such Eligible Goods returned to Mini-Circuits pursuant to the 30-day Guarantee.
(e) Acceptance. Notwithstanding anything to the contrary contained in these Standard Terms, for purposes of the 30-day Guarantee, Purchaser’s acceptance of Eligible Goods shall be deemed to have occurred upon delivery by Mini-Circuits of such goods to the applicable shipping point at which time title and risk of loss shall transfer to the Purchaser. Purchaser will have the right to return Eligible Goods after acceptance, pursuant and subject to the provisions of section 14.
Purchaser does not have the right to perform any tests, source inspections, audits, surveillances or other inspections (collectively, "Inspections") at any of Mini-Circuit’s plants or the plants of Mini-Circuit’s affiliates, suppliers or subcontractors. The performance of any Inspections will be at Mini-Circuit’s sole discretion and only (i) pursuant to Mini-Circuit’s prior written instructions, (ii) in accordance with Mini-Circuit’s applicable policies, and (iii) provided that Purchaser and any of its agents or representatives that would be performing such Inspection execute Mini-Circuit’s standard non-disclosure agreement, and that any such Inspection does not interfere with the business or operations of Mini-Circuits.
16. WEEE COMPLIANCE.
Purchaser acknowledges that it will be incorporating the Parts into Purchaser’s own products and reselling such products under Purchaser’s own brand, and may ultimately import such products into a member state of the European Union. In that regard, Purchaser acknowledges that it is a Producer (as defined under WEEE) and hereby assumes any and all related obligations, duties, and responsibilities under WEEE with respect to such Parts, and Mini-Circuits will have no liability whatsoever on account thereof. For purposes hereof, the term "WEEE" means Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical and electronic equipment.
(a) Integration. These Standard Terms and the applicable Orders are intended by the parties to be a final, complete and exclusive statement of their agreement with respect to the subject matter contained herein and therein. All prior or contemporaneous oral or written statements, agreements, promises or understandings are hereby excluded and are superseded. It is expressly agreed that no course of performance, course of dealing or usage of trade shall be relevant or admissible to contradict, supplement, explain, or modify any express provisions of these Standard Terms or the applicable Orders. Furthermore, it is expressly agreed that a party's acceptance of or acquiescence in a course of performance under these Standard Terms shall not be admissible to modify, waive, supplement or explain the terms hereof, even if that party is aware of a course of performance and has an opportunity to object to it.
(b) Assignability. These Standard Terms and the applicable Orders shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Purchaser shall not have the right to assign any of its rights or benefits hereunder or under any applicable Order, nor delegate any of its obligations or duties hereunder or under any applicable Order without the prior written consent of Mini-Circuits. Any assignment in contravention of this provision shall be null and void, and of no legal force or effect.
(c) Modification or Amendment. Neither these Standard Terms nor the Order may be modified or amended except by an instrument in writing signed by the party or parties against whom enforcement is sought.
(d) Third Party Beneficiaries. Purchaser and Mini-Circuits agree that Mini-Circuits’ affiliates are intended third party beneficiaries under these Standard Terms and the Mini-Circuits affiliates are entitled to rely upon all rights, representations, warranties, waivers, releases, and covenants made by Purchaser pursuant to these Standard Terms and Mini-Circuits’ affiliates shall have the right to enforce these Standard Terms against Purchaser, except that no party hereto shall have any rights or claims against Mini-Circuits’ affiliates by virtue of this section 17(d) or the use by Purchaser of the Mini-Circuits website.
(e) Export Control. The Parts, technology, and Software (as defined in section 17(g)) will be exported from the United States in accordance with the U.S. Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Purchaser represents, warrants and covenants that Parts and Specifications will not be exported, re-exported or released: (i) to any of the following countries or a national thereof: Cuba, Iran, North Korea, Sudan, Syria or any other country specified in Country Groups D:1 or E (as specified in the then current Supplement No. 1 to Part 740 of the U.S. Export Administration Regulations), (ii) to any Person specified in the then current U.S. Treasury Department Specially Designated Nationals and Blocked Persons List available at the U.S. Department of Treasury website (www.treasury.gov), (iii) to any Person on the then current Unverified List available at the Bureau of Industry and Security website (www.bis.doc.gov), (iv) to any Person on the then current Denied Persons List also available at the Bureau of Industry and Security website, (v) to any Person as specified in Entity List Supplement No. 4 to Part 744 of the U.S. Export Administration Regulations, or (vi) in any manner, to any Person, entity or country, or for any use, except in compliance with, and with all applicable licenses, license exceptions and approvals required under all applicable United States and foreign laws, rules, restrictions and regulations, including, without limitation, the U.S. Export Administration Regulations, the Arms Export Control Act, and the International Traffic In Arms Regulations. This provision shall also apply to direct products of such Specifications. Purchaser acknowledges that the Parts will not be used in the design, development, production or use of nuclear, chemical or biological weapons or ballistic missiles or in a facility engaged in such activities or for any defense or military use (collectively, "Weapons Uses"). In the event that the intended end use of any of the Parts falls within any of the Weapons Uses, Purchaser shall immediately notify Mini-Circuits thereof in writing.
(f) ITAR. In the event Purchaser provides Mini-Circuits with technical data (within the meaning of the International Traffic in Arms Regulations, 22 CFR 120 ("ITAR")), Purchaser shall be responsible for complying with the following prior to providing any such technical data: (i) Purchaser and Mini-Circuits shall have signed a prior written agreement that such technical data is to be handled in accordance with the provisions of ITAR, and (ii) Purchaser shall specifically mark each item of technical data as "ITAR-controlled." All such technical data shall be sent only to ITAR@minicircuits.com in accordance with the foregoing. In the event (x) Purchaser fails to mark any item of technical data as "ITAR-controlled," (y) there is no written understanding between Purchaser and Mini-Circuits that such technical data is to be handled in accordance with ITAR, or (z) the technical data is sent to a recipient other than ITAR@minicircuits.com, Mini-Circuits will have no responsibility or liability to treat any information as technical data under ITAR and Purchaser shall be barred from any recovery against Mini-Circuits with respect to the handling or export of any such technical data, and Mini-Circuits shall have no liability on account thereof, and same is hereby waived. Further, in such event, Purchaser shall defend, indemnify and hold Mini-Circuits harmless from and against any and all Damages of whatsoever kind and nature, imposed upon, incurred by, asserted, threatened or awarded against Mini-Circuits directly or indirectly arising out of, relating to or resulting from a violation of ITAR with respect to any technical data subject to ITAR that is provided by Purchaser. Any and all amounts due for indemnity shall be paid as Damages are incurred, and in any event, within ten (10) days after written demand therefor.
(g) Notice of Software License. In the event Parts contain Software (as defined below) or Software is supplied to Purchaser in connection with the purchase of Parts hereunder, the Software shall be subject to and used in accordance with Mini-Circuit’s then applicable agreement addressing, among other things, the license to use the Software (the "MC License Agreement"). In the event there is any conflict between any of the provisions of these Standard Terms and any of the provisions of the MC License Agreement, the provisions which are more favorable to Mini-Circuits, as determined by Mini-Circuits, shall govern and control. For the purposes of these Standard Terms, the term "Software" shall mean all Mini-Circuit’s software programs, drivers, dynamic-link libraries, and computer files, including without limitation, any additions, corrections, updates, modifications, upgrades, or releases thereto and any content contained in any of the foregoing made available or provided to Purchaser in connection with Parts.
(h) It is acknowledged that a breach by Purchaser of any provision of these Standard Terms will constitute a substantial impairment to Mini-Circuits of the value of the Order, Other Orders, and these Standard Terms permitting Mini-Circuits to, among other things, suspend performance.
(i) Notices. All notices permitted, required or provided for by these Standard Terms shall be made in writing, and shall be deemed adequately delivered if delivered by hand or by the mailing of the notice in the U.S. mail, pre-paid certified or registered mail, return receipt requested, or by an international courier service that regularly maintains records of its pick-ups and deliveries, if to Mini-Circuits, at the following address:
Scientific Components Corporation Attention: Sales Supervisor 13 Neptune Avenue Brooklyn, New York 11235
and if to Purchaser, at the email address used by Purchaser to submit an Order or at the shipment address for Parts on file with Mini-Circuits. Mailed notices shall be deemed given when mailed and notices sent by courier shall be deemed given when delivered to the courier service. Both mailed and courier service notices shall be deemed received three (3) days after mailing such notice or delivering it to the courier service, as the case may be.
and if to Purchaser, at the email address used by Purchaser to submit an Order or at the shipment address for Parts on file with Mini-Circuits. Mailed notices shall be deemed given when mailed and notices sent by courier shall be deemed given when delivered to the courier service. Both mailed and courier service notices shall be deemed received three (3) days after mailing such notice or delivering it to the courier service, as the case may be.
(j) Product Change Notification. In the event Mini-Circuits makes changes to a Part, or related Specifications, materials or processes used to fabricate a Part, Mini-Circuits shall have the right to do so. To the extent any such change adversely affects: (i) Fit; or (ii) Mini-Circuit’s published performance specification sheet limits and causes a fundamental change in a characteristic curve of a predominant parameter for the Part in question, Mini-Circuits will provide an applicable notice to Purchaser of such change in accordance with Mini-Circuit’s then applicable product change notification process. For purposes hereof, the term "Fit" means the external dimensions of a Part as specified by Mini-Circuits.
(k) IRO Numbers. Internal reference only (or IRO) numbers are referenced at Purchaser’s request for Purchaser’s convenience. Any references by Mini-Circuits to part numbers, specifications, drawings or other technical documents contained in any documents issued by Purchaser that are not currently authorized Mini-Circuits part numbers or documents as determined by Mini-Circuits (such unauthorized part numbers and documents are collectively, "Purchaser Internal Reference Documents") are referenced merely for Purchaser’s internal reference convenience. Accordingly, Purchaser Internal Reference Documents are not expressly or implicitly incorporated by reference herein, nor are they intended to be incorporated by reference herein, and they are not binding on Mini-Circuits or its affiliates.
(l) Wood Packaging. Wood packaging material that is compliant with International Standards for Phytosanitary Measures ("ISPM") contains an official mark per the Revision of ISPM No. 15 (2009). Compliance with the Revision of ISPM No. 15 (2009) is based solely upon and in reliance of the presence of such official mark on the wood packaging material provided by Mini-Circuit’s suppliers without individual authentication by Mini-Circuits. Accordingly, Mini-Circuits assumes no responsibility for non-compliance therewith and Mini-Circuits shall have no liability therefor.
(m) Captions. The headings and subheadings of these Standard Terms are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of these Standard Terms or any provisions hereof.
(n) Language Pre-Emption. The parties have requested that the Standard Terms be drafted in English. Les parties ont exiges que cette entente soit redigee en anglais.
(o) Severability. Any term or provision of these Standard Terms which is invalid or unenforceable in any jurisdiction on account of unconscionability or otherwise, shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of these Standard Terms or affecting the validity or enforceability of any of the terms or provisions of these Standard Terms in any other jurisdiction. Further, to the extent that any term or provision hereof is deemed so invalid, void or otherwise unenforceable, but may be made enforceable by amendment thereto, the parties agree that such amendment may be made so that the same shall, nevertheless, be enforceable to the fullest extent permissible under the laws and public policies applied in any such jurisdiction in which enforcement is sought.
(p) Waiver of Breach. Any waiver of any of the provisions of these Standard Terms shall not be effective unless made in writing and signed by Mini-Circuits.
(q) Survival. Section 17 and the following sections 1, 2, 3, 5, 9, 10, 12, 13, 14, 15, and 16 shall survive the consummation, termination and cancellation of these Standard Terms.
(r) Unless Mini-Circuits expressly agrees in writing and such agreement specifically pertains to the Parts (i) Mini-Circuits will not make any change in its customary quality control procedures to comply with any quality control requirement of Purchaser or its customers; and (ii) Mini-Circuits will not furnish any Specifications to Purchaser or its customers.
(s) Mini-Circuits shall have the right, at its sole discretion, to modify, add or remove any terms or conditions of the Standard Terms from time to time without notice or liability to Purchaser. Any changes to the Standard Terms shall be effective immediately.
In the event Purchaser is unable to print or store these Standard Terms, Purchaser shall be entitled to obtain a hard copy of these Standard Terms by submitting a written request to:
Scientific Components Corporation Attention: Sales Supervisor 13 Neptune Avenue Brooklyn, New York 11235