The following terms and conditions of sale shall apply to any sale of goods and services by D3 Embedded. Purchaser shall be deemed to have full knowledge of the terms and conditions herein and such terms and conditions shall be binding if either the goods and services referred to herein are delivered to and accepted by Purchaser, or if Purchaser does not within five days from the date hereof deliver to D3 Embedded written objection to said terms and conditions or any part thereof.
1. GENERAL
In the event of any conflict or inconsistency between the terms and conditions of sale herein and the terms and conditions contained in Purchaser’s order or in any other form issued by Purchaser, whether or not any such form has been acknowledged or accepted by D3 Embedded, D3 Embedded’s terms and conditions herein shall prevail. No waiver, alteration or modification of these terms and conditions shall be binding upon D3 Embedded unless made in writing and signed by a duly authorized representative of D3 Embedded.
2. THE CONTRACT
All orders must be in writing and are accepted subject to these Terms and Conditions of Sale. No terms or conditions put forward by Buyer and no representations, warranties, guarantees or other statements not contained in D3 Embedded’s quotation or Acknowledgement of Order nor otherwise expressly agreed in writing by D3 Embedded shall be binding on D3 Embedded.
The Contract shall become effective only upon the date of acceptance of Buyer’s order on D3 Embedded’s Acknowledgement of Order form or upon the date of fulfilment of all conditions precedent stipulated in the Contract, whichever is the later (the “Effective Date”). If the details of the Goods described in D3 Embedded’s quotation differ from those set out in the Acknowledgement of Order Form the latter shall apply.
No alteration or variation to the Contract shall apply unless agreed in writing by both parties. However, D3 Embedded reserves the right to effect minor modifications and/or improvements to the Goods before delivery provided that the performance of the Goods is not adversely affected and that neither the Contract Price nor the delivery date is affected.
3. PRICES / COST OF TRANSPORTATION
All quoted prices are based on the current exchange rates, tariffs and costs of manufacture. Unless otherwise stated in the quotation, quoted prices are subject to change by D3 Embedded with or without notice until Purchaser’s acceptance. Prices are subject to correction for error. In the event of a substantial change in applicable tariffs, duties, or trade-related government-imposed charges after the issuance and acceptance of a quotation, D3 Embedded reserves the right to adjust the final invoiced price to reflect such changes. Purchaser agrees to pay any additional costs resulting from these adjustments. D3 Embedded will provide written notice and supporting documentation of the tariff changes upon request. Unless otherwise stated, domestic shipments of Goods will be made under U.S. Uniform Commercial Code shipping term F.O.B. Origin, unless otherwise specified in writing by Buyer. When shipment is F.O.B. Origin, title and risk of loss or damage shall remain with Seller until picked up by carrier, at which point title and risk of loss or damage transfers to the Buyer. International shipments of Goods will be made under Incoterms 2020 shipping term FCA Origin, unless otherwise specified in writing by Buyer. When shipment is FCA Origin, title and risk of loss or damage shall remain with Seller until picked up by carrier, at which point title and risk of loss or damage transfers to the Buyer. Seller shall make no declaration concerning value of Goods shipped, except as contractually obligated by the PO. Additionally, all labels and documents shall disclose “Country of Manufacture.” Special methods of transportation will be used upon Purchaser’s request and at Purchaser’s additional expense provided reasonable notice of Purchaser’s transportation requirements are given by Purchaser to D3 Embedded prior to shipment.
4. TAXES
Prices do not include State sales, use, value-added or similar tax. Accordingly, in addition to the price specified herein, the amount of any present or future sales, use, value-added or similar tax applicable to the sale of the goods hereunder to or the use of such goods by Purchaser shall be paid by Purchaser to the entire exoneration of D3 Embedded.
5. DELIVERY
Delivery schedules are approximate and are based on prevailing market conditions applicable respectively at the time of D3 Embedded’s quotation and D3 Embedded’s acceptance of Purchaser’s order. If D3 Embedded is delayed in or prevented from performing any of its obligations under the Contract due to the acts or omissions of Buyer or its agents (including but not limited to failure to provide specifications and/or such other information as D3 Embedded reasonably requires to proceed expeditiously with its obligations under the Contract), the delivery/completion period and the Contract Price shall both be adjusted accordingly. If delivery is delayed due to any act or omission of Buyer, or if having been notified that the Goods are ready for dispatch the Buyer fails to take delivery or provide adequate shipping instructions, D3 Embedded shall be entitled to place the Goods into a suitable store at Buyer’s expense. Upon placing the Goods into the store, delivery shall be deemed to be complete, risk in the Goods shall pass to Buyer and Buyer shall pay D3 Embedded accordingly. D3 Embedded may extend delivery schedules or may, at its option, cancel Purchaser’s order in full or in part without liability other than to return any deposit or prepayment which is unearned by reason of the cancellation.
Where the Customer orders a product that is subject to a minimum order quantity and the quantity delivered does not meet the minimum order quantity or where 60 days have elapsed between deliveries of the minimum shipment quantity, D3 Embedded reserves the right to deliver and invoice the balance of the minimum order quantity immediately.
6. FORCE MAJEURE
D3 Embedded shall not be responsible or liable for any loss or damage incurred by Purchaser herein resulting from causes beyond the reasonable control of D3 Embedded including, but without limitation, acts of God, war, invasion, insurrection, riot , the order of any civil or military authority, fire, flood, weather, acts of the elements, delays in transportation, unavailability of equipment or materials, breakdown, sabotage, lock-outs, strikes or labor disputes, faulty castings or forgings, or the failure of D3 Embedded’s suppliers to meet their delivery promises. The acceptance of delivery of the equipment by Purchaser shall constitute a waiver of all claims for loss or damage due to any delay whatsoever.
7. SHIPMENT/DAMAGES OR SHORTAGES IN TRANSPORT/RISK
Except for obligations stated under “Warranty” herein, D3 Embedded’s responsibility for goods ceases upon delivery to the carrier. In the event of loss or damage during shipment, Purchaser’s claim shall be against the carrier only. D3 Embedded will, however, give Purchaser any reasonable assistance to secure adjustment of Purchaser’s claim against the carrier provided immediate notice of such claim is given by Purchaser to D3 Embedded. Claims for shortages must be made in writing within ten (10) days after receipt of goods by Purchaser. If D3 Embedded does not receive written notification of such shortages within such ten (10) days, it shall be conclusively presumed that the goods were delivered in their entirety. Unless agreed upon otherwise in writing, D3 Embedded reserves the right to make partial shipments and to submit invoices for partial shipments.
8. TITLE
Title to the goods or any part thereof shall not pass from D3 Embedded to Purchaser until all payments due hereunder have been duly made in cash, except as otherwise expressly stipulated herein. The goods shall be and remain personal or moveable property, notwithstanding their mode of attachment to realty or other property. If default is made in any of the payments herein, Purchaser agrees that D3 Embedded may retain all payments which have been made on account of the purchase price as liquidated damages, and D3 Embedded shall be free to enter the premises where the goods may be located and remove them as D3 Embedded’s property, without prejudice to D3 Embedded’s right to recover any further expenses or damages D3 Embedded may suffer by reason of such nonpayment.
9. LIABILITY
D3 Embedded shall not be liable for and shall be held harmless by Purchaser from any damage, losses or claims for personal injury, loss of business profits, business interruption, loss of business information, or any other pecuniary loss, contractual or edictal, consequential or incidental, direct or indirect, arising out of, in connection with or resulting from the sale governed hereby or the goods, including, but without limitation, the manufacture, repair, handling, installation, possession, use, operation or dismantling of the goods and any and all claims, actions, suits, and proceedings which may be instituted in respect to the foregoing.
10. WARRANTY
Goods sold hereunder are covered by a warranty against defects in material and workmanship provided the goods and services are subjected to normal use and service. Some goods are not sold as production-verified tested. Use in end-of-line production units may vary depending on the specific product. Purchaser should consult D3 Embedded prior to incorporating Goods into any end-of-line production units to ensure suitability. The applicable warranty period is twelve (12) months from the date of shipping to Purchaser of any item of the goods, or any other warranty period otherwise stipulated in writing by D3 Embedded under this sale. For components not supplied by D3 Embedded, the original manufacturer’s warranty shall apply to the extent assignable by D3 Embedded. The obligation under this warranty is limited to the repair or replacement, at D3 Embedded’s option, of defective parts f.o.b. shipping point provided that prompt notice of any defect is given by Purchaser to D3 Embedded in writing within the applicable warranty period and that upon the Purchaser’s return of the defective parts to D3 Embedded or, if designated by D3 Embedded, to the location where the works are made, properly packed and with transportation charges prepaid by Purchaser, an inspection thereof shall reveal to D3 Embedded’s satisfaction that Purchaser’s claim is valid under the terms of this warranty. The Purchaser will be responsible for paying an inspection fee of $95 per hour (minimum 2 hours) which will be refunded back to the Purchaser only if the items pass inspection. Purchaser shall assume all responsibility and expense for dismantling, removal, re-installation and freight in connection with the foregoing. The same obligations and conditions extend to replacement parts furnished by D3 Embedded hereunder. D3 Embedded does not assume liability for installation, labor or consequential damages. D3 Embedded makes no warranty other than the one set forth herein. All other warranties, legal, expressed or implied, including but not limited to any expressed or implied warranty of merchantability, of fitness for the intended use thereof or against infringement are hereby expressly excluded.
The applicable warranty ceases to be effective if the goods are altered or repaired other than by persons authorized or approved by D3 Embedded to perform such work. Repairs or replacement deliveries do not interrupt or prolong the term of the warranty.
11. PATENT, ETC. INFRINGEMENT
Buyer warrants that any design or instructions furnished or given by it shall not cause D3 Embedded to infringe any Intellectual Property Rights in the performance of D3 Embedded’s obligations under the Contract and shall indemnify D3 Embedded against all reasonable costs and damages which D3 Embedded may incur as a result of any breach of such warranty.
12. STATUTORY AND OTHER REGULATIONS
If D3 Embedded’s obligations under the Contract shall be increased or reduced by reason of the making or amendment after the date of D3 Embedded’s quotation of any law or any order, regulation or by-law having the force of law that shall affect the performance of D3 Embedded’s obligations under the Contract, the Contract Price and delivery period shall be adjusted accordingly and/or performance of the Contract suspended or terminated, as appropriate.
D3 Embedded delivers D3 Embedded evaluation boards, kits, or modules, including any accompanying demonstration software, components, and/or documentation which may be provided together or separately (collectively, an “EVM” or “EVMs”) to the User (“User”) in accordance with the terms set forth herein. User’s acceptance of the EVM is expressly subject to the following terms.
FCC NOTICE: The following notice is required by the US Code of Federal Regulations, Title 47, Chapter I: This kit is designed to allow product developers to evaluate electronic components, circuitry, or software associated with the kit to determine whether to incorporate such items in a finished product and software developers to write software applications for use with the end product. This kit is not a finished product and when assembled may not be resold or otherwise marketed unless all required FCC equipment authorizations are first obtained. Operation is subject to the condition that this product not cause harmful interference to licensed radio stations and that this product accept harmful interference. Unless the assembled kit is designed to operate under part 15, part 18 or part 95 of this chapter, the operator of the kit must operate under the authority of an FCC license holder or must secure an experimental authorization under part 5 of this chapter.
13. COMPLIANCE WITH LAWS
Buyer agrees that all applicable import, export control and sanctions laws, regulations, orders and requirements, as they may be amended from time to time, including without limitation those of the United States, the European Union and the jurisdictions in which D3 Embedded and Buyer are established or from which items may be supplied, and the requirements of any licenses, authorizations, general licenses or license exceptions relating thereto will apply to its receipt and use of goods. In no event shall Buyer use, transfer, release, export or re -export any such goods in violation of such applicable laws, regulations, orders or requirements or the requirements of any licenses, authorizations or license exceptions relating thereto. Buyer agrees furthermore that it shall not engage in any activity that would expose D3 Embedded to a risk of penalties under laws and regulations of any relevant jurisdiction prohibiting improper payments, including but not limited to bribes, to officials of any government or of any agency, instrumentality or political subdivision thereof, to political parties or political party officials or candidates for public office, or to any employee of any customer or supplier. Buyer agrees to comply with all appropriate legal, ethical and compliance requirements.
14. INSTALLATION
Unless otherwise expressly stipulated, the goods shall be installed by and at the risk and expense of Purchaser. In the event that D3 Embedded is requested to supervise such installation, D3 Embedded’s responsibility shall be limited to exercising that degree of skill customary in the trade in supervising installations of the same type. Purchaser shall remain responsible for all other aspects of the work including compliance with the local regulations.
15. RETURNED GOODS
No goods may be returned to D3 Embedded without D3 Embedded’s prior written permission. D3 Embedded reserves the right to decline all returns or to accept them subject to a handling/restocking charge of 20% of the total invoice amount. Even after D3 Embedded has authorized the return of goods for credit, D3 Embedded reserves the right to adjust the amount of any credit given to Purchaser on return of the goods based on the conditions of the goods on arrival in D3 Embedded’s warehouse. Credit for returned goods will be issued to Purchaser only where such goods are returned by Purchaser and not by any subsequent owner of the goods. Goods will be considered for return only if they are in their original condition and packaging.
16. CANCELLATION OF ORDER
Unless otherwise stated, orders cancelled after payment processing, but prior to shipment will be subject to a 10% processing fee of the total invoice amount.
17. TERMS OF PAYMENT
Unless otherwise stated, invoices on “open account” shipment are payable within thirty (30) days of invoice date. Unless specifically provided, no cash discount shall be available to Purchaser. When cash discount is offered, the discount price is computed from the date of invoice. D3 Embedded does not offer cash discount on C.O.D. shipments.
18. DEFAULT, INSOLVENCY AND CANCELLATION
D3 Embedded shall be entitled, without prejudice to any other rights it may have, to cancel the Contract forthwith, wholly or partly, by notice in writing to Buyer, if (a) Buyer is in default of any of its obligations under the Contract and fails, within 30 (thirty) days of the date of D3 Embedded’s notification in writing of the existence of the default, either to rectify such default if it is reasonably capable of being rectified within such period or, if the default is not reasonably capable of being rectified within such period, to take action to remedy the default or (b) on the occurrence of an Insolvency Event in relation to Buyer. “Insolvency Event” in relation to Buyer means any of the following: (i) a meeting of creditors of Buyer being held or an arrangement or composition with or for the benefit of its creditors being proposed by or in relation to Buyer; (ii) a charge holder, receiver, administrative receiver or similar person taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of Buyer; (iii) Buyer ceasing to carry on business or being unable to pay its debts; (iv) Buyer or its directors or the holder of a qualifying floating charge giving notice of their intention to appoint, or making an application to the court for the appointment of , an administrator; (v) a petition being presented (and not being discharged within 28 days) or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of Buyer; or (vi) the happening in relation to Buyer of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets. D3 Embedded shall be entitled to recover from Buyer or Buyer’s representative all costs and damages incurred by D3 Embedded as a result of such cancellation, including a reasonable allowance for overheads and profit (including but not limited to loss of prospective profits and overheads).
19. THE AGREEMENT
An acceptance and official confirmation of Purchaser’s order by D3 Embedded shall constitute the complete agreement, subject to the terms and conditions of sale herein set forth, and shall supersede all previous quotations, orders or agreements. The law of the State of New York shall govern the validity, interpretation and enforcement of these terms and conditions of sale and of any contract of which these terms and conditions are a part. Any dispute, controversy, proceeding or claim arising out of or relating to Purchaser’s order or any transaction hereunder, including without limitation the breach, termination, enforcement, interpretation or validity of this Purchaser’s order shall be brought exclusively in either the United States District Court for the Western District of New York or the Supreme Court of the State of New York. No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound. If any clause, sub-clause or other provision of the Contract is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Contract. Buyer shall not be entitled to assign its rights or obligations hereunder without the prior written consent of D3 Embedded. D3 Embedded enters into the Contract as principal. Buyer agrees to look only to D3 Embedded for due performance of the Contract. All Notices relating to this Purchase Order must be in writing. Notices to the parties will be sent to their respective addresses appearing on the face of this Purchase Order. Notices must be delivered personally; or delivered by recognized overnight courier; or mailed certified first class mail, postage prepaid; or sent by facsimile transmission to the facsimile number provided by Purchaser or Supplier respectively; or sent by electronic transmission (email) with proof of delivery.
09.20.2022