Standard Terms and Conditions of Sales

 
CHRONTEL’s products are offered for sale under the terms and conditions contained herein.

1. Order Acceptance. Notwithstanding any terms or conditions on the Buyer’s order, CHRONTEL’s acceptance of any order is expressly made conditional on Buyer’s agreement to CHRONTEL’s Terms and Conditions of Sale. Commencement of performance and/or delivery shall be for Buyer’s convenience only and shall not be deemed or construed to be acceptance of any or all of Buyer’s terms and conditions.

2. Prices. CHRONTEL’s published and quoted prices are subject to the following:

A. All published prices are subject to change without notice.
B. Shipments will be billed at prices in effect on the date of acceptance of Buyer’s order.
C. Stenographic and/or clerical errors are subject to correction.
D. Published or quoted prices do not include taxes, duties or transportation. Buyer shall be responsible for the payment of all export and import licenses, customs fees and duties, federal, state and local excise, sales, use, property and similar taxes levied in respect to the products sold to the buyer herein, except income taxes levied upon CHRONTEL.
E. Published and quoted prices are for standard products only and do not include technical data, proprietary rights of any kind, patent rights, etc. other than CHRONTEL’s standard tests and normal commercial packaging.

3. Title and Risk of Loss. All sales are made Free Carrier, FCA (Incoterms 2000), point of shipment. Transportation charges are Buyer’s expense with title passing to Buyer at point of shipment (Ex Factory). Risk of loss or damage shall pass to Buyer upon CHRONTEL’s delivery of products to transportation company. CHRONTEL reserves the right to ship products freight charges collect and to select the best means of transportation and routing. Further, if Buyer specifies transportation by Parcel Post, CHRONTEL reserves the right to select an alternative means of economical transportation. CHRONTEL will insure the product shipped to full value or declare full value thereof to the transportation company and any insurance cost shall be charged to Buyer’s account.

4. Delivery. CHRONTEL reserves the right to make deliveries in installments. Partial shipments will be billed as made and payments therefor are subject to the terms of payment noted above. The delivery of any part of any order will not obligate CHRONTEL to make further deliveries. All delivery dates are approximate and are dependent in part upon prompt receipt of all necessary information to service an order. In the absence of such regulations, CHRONTEL reserves the right in its sole discretion to allocate inventories and current production when in its opinion such allocation is necessary.

5. Terms of Payment. Payment for products shipped on an open account basis on which credit has been approved, shall be due thirty (30) days from date of invoice, otherwise cash upon delivery will be required on accounts without credit approval. Seller and Buyer acknowledge that late payment by Buyer will cause Seller to incur costs not contemplated, the exact amount of such costs being extremely difficult and impractical to fix. Such costs include, without limitation, processing and accounting charges and additional interest and late charges payable by Seller. Therefore, if payment is not made when due, Buyer shall pay to Seller as liquidated damages 1-1/2% per month of the overdue payment. Seller and Buyer agree that said sum is a fair and reasonable estimate of the costs that Seller will incur by reason of late payment by Buyer.

6. Contingencies. CHRONTEL shall not be responsible for any liability due to any delay in the performance of any order accepted by it due to unforeseen circumstances or to causes beyond its reasonable control, including, without limitation, acts of God, strikes, war, riots, fire, accident, freight embargoes, lock-out of suppliers necessary to the execution of the order, failure, breakdown or shortage of components necessary to the completion of the order, subcontractor caused delays, or the compliance with any law, regulation or order, whether valid or invalid, of any cognizant government body or any instrumentality thereof, whether now existing or hereafter created. Performance of an order shall be deemed suspended so long as any such circumstances or causes delay its execution. Whenever such circumstances or causes have been remedied, Buyer shall accept performance under said order. As used herein “performance” shall include, without limitation, fabrication, shipment, delivery, assembly, installation, testing and warranty repair of replacement. CHRONTEL may modify specifications or manufacturing processes provided the modifications do not adversely affect the form, fit or function of the products.

7. Acceptance of Product. Each CHRONTEL product shall be deemed to have been accepted by Buyer if it meets specifications as set forth in CHRONTEL’s sales order. Notwithstanding the foregoing, use of said product by Buyer, its agents, employees, or licensees for any purpose shall constitute acceptance of product by the Customer. Any CHRONTEL product not rejected within ten (10) days of receipt shall be deemed accepted.

8. Limited Warranty. CHRONTEL warrants each part to be free from defects in material and workmanship for a period of one (1) year from date of shipment. This warranty is expressly in lieu of all other obligations or liabilities on the part of CHRONTEL. THE FOREGOING WARRANTY IS SPECIFICALLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUATORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. CHRONTEL NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME ANY OTHER LIABILITIES IN CONNECTION WITH THE SALE OR USE OF ANY PRODUCT. THE FOREGOING WARRANTIES AND REMEDIES ARE FOR BUYER’S EXCLUSIVE BENEFIT AND ARE NOT TRANSFERABLE.

9. Exclusive Remedy. Buyer’s sole remedy for breach of the limited warranty set forth above shall be repair or replacement, at CHRONTEL’s option, of the defective product. Buyer shall notify CHRONTEL of any warranty claim during the warranty period and obtain CHRONTEL’s authorization (RMA) prior to the return shipment of products for warranty adjustment. Products returned shall be sent with shipping charges prepaid. When any product is returned for examination and inspection, Buyer must assume responsibility for damage resulting from improper packaging and damage or loss in transit. Buyer shall provide explicit information as to the nature of the claimed defects, operating conditions to which the product had been exposed and any other pertinent information which will enable CHRONTEL to determine the cause of claimed warranty defects. In all cases, CHRONTEL has sole responsibility for determining the validity of any warranty claim and sole discretion in determining the nature and extent of remedy, if any, to which the Buyer will be entitled. In the event that product has been returned without cause and is still serviceable, or that the product was misused, stolen, vandalized, mishandled due to fire, water or other peril, or otherwise damaged subsequent to shipment by CHRONTEL, Buyer will be notified and the product returned at Buyer’s expense. In addition, a charge for testing and examination may be made on certain products so returned.

10. Change of Orders.

A. Cancellation. No order accepted by CHRONTEL may be cancelled by Buyer except by mutual agreement in writing. CHRONTEL reserves the right to adjust the billing prices applicable to quantities actually delivered. Buyer may submit written notice to cancel any standard product order scheduled for shipment beyond sixty (60) days after CHRONTEL receives Buyer’s written cancellation notice. Buyer is liable for any quantity price adjustments resulting from such cancellation. Buyer shall also pay a rescheduling/restocking fee of ten percent (10%) of the price for each product scheduled for shipment within sixty (60) days of CHRONTEL’s receipt of Buyer’s written cancellation notice.
B. Reschedules. No order scheduled for delivery within thirty (30) days will be rescheduled. Upon written notice to CHRONTEL, Buyer may reschedule any order scheduled for shipment beyond thirty (30) days from the date of receipt by CHRONTEL of Buyer’s request for rescheduling. Rescheduling any order is limited to one time for a maximum of thirty (30) days.
C. Defaults. If Buyer defaults, CHRONTEL may decline to make further shipments and/or may terminate Buyer’s order without affecting CHRONTEL’s rights and remedies including, but not limited to, any right to cancellation charges and quantity price adjustments. If CHRONTEL continues to make shipments after Buyer’s default, CHRONTEL’s actions do not constitute a waiver nor affect its legal remedies.

11. Patents. CHRONTEL will defend Buyer against any claim or action to the extent based on a claim that the design or manufacture of any product in CHRONTEL’s standard line of products or manufactured to specifications set forth by CHRONTEL and furnished herein constitutes an infringement of any patent of the United States. Chrontel will pay damages and costs either awarded in a suit or paid in CHRONTEL’s sole discretion, by way of settlement, which are based on such claim of infringement provided that CHRONTEL is notified promptly in writing of such claim of infringement and is given full authority, information and assistance in settling such claim. In the event any product is, or in CHRONTEL’s sole opinion is likely to be, held to infringe the United States patent of any third party, CHRONTEL will, in its sole discretion and at its expense, either procure for Buyer the right to continue using said product, replace it with non-infringing products, or remove it and refund an equitable portion of the selling price and transportation costs thereof.
CHRONTEL shall not be liable for any costs or damages and Buyer will indemnify, defend and hold CHRONTEL harmless from any expenses, damages, costs or losses resulting from any suit or proceeding based upon a claim arising from: (i) compliance with Buyer’s designs, specifications or instructions; (ii) modification of the product by a party other than CHRONTEL after delivery by CHRONTEL; (iii) the use of any product or any part thereof furnished herein in combination with any other product, or (iv) the direct or contributory infringement of any process patent using any product furnished herein. Sale of any product or any part thereof by CHRONTEL does not confer upon the Buyer any license under any patent rights or copyrights.
THE FOREGOING STATES THE ENTIRE OBLIGATION AND THE EXCLUSIVE REMEDY OF EACH PARTY HERETO WITH RESPECT TO ANY ALLEGED PATENT, COPYRIGHT, MASK WORK, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT BY ANY PRODUCT OR PART FURNISHED HEREIN.

12. Damages and Liability. IN NO EVENT WILL CHRONTEL’S LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR SALE EXCEED THE PURCHASE PRICE RECEIVED BY CHRONTEL FOR THE PRODUCT(S) WHICH ARE THE SUBJECT OF ANY CLAIMS OR DISPUTE. IN NO EVENT WILL CHRONTEL BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY BUYER. IN NO EVENT WILL CHRONTEL BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT) WHETHER OR NOT CHRONTEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST BUYER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. The liability to third parties for bodily injury, including death, resulting from CHRONTEL’s performance shall be determined in accordance with applicable law and the total liability limitation stated above shall not be construed as a limitation on CHRONTEL for damages for any such bodily injury, including death, nor shall such liability limitation be construed as a limitation on CHRONTEL for damages caused by CHRONTEL’s fraud or willful injury to the person or property of another.

13. Assignment. CHRONTEL may assign all or any part of its rights and/or obligations hereunder to any CHRONTEL subsidiary or an authorized distributor without Buyer’s prior consent. Otherwise, neither party shall delegate any obligations herein or assign any interest or rights without the prior consent of the other.

14. Import and Export Controls. Any and all obligations of CHRONTEL to provide products, as well as technical assistance, shall be subject in all respects to such United States laws and regulations as shall from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including the Export Administration Regulations issued by the Department of Commerce, Bureau of Export Administration. Without in any way limiting the provisions of this Agreement, Buyer agrees that it will not export, re-export or transship, directly or indirectly, any of the products or technical data sold or disclosed to Buyer in violation of U.S. export laws and regulations.

15. Modifications. No modifications of, additions to, or deletions from these terms shall be binding upon either party unless accepted in writing by an authorized representative of each. A waiver by CHRONTEL of any default by Buyer shall not be deemed to be a continuing waiver or a waiver of any other default but shall apply solely to the instance to which the waiver is directed.

16. Controlling Law. This Agreement shall be governed by and subject to the laws of the State of California, U.S.A. This Agreement shall be considered entered into in the State of California, U.S.A. The Federal (Northern District of California) and State (Santa Clara County) courts within the State of California shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. Buyer hereby expressly consents to (i) the personal jurisdiction of these federal and state courts within California, (ii) service of process being affected upon it by registered mail sent to the address set forth at the beginning of this Agreement.

17. Professional Fees. In any suit or proceeding relating to this Agreement, the prevailing party will have the right to recover from the other its reasonable costs and expenses incurred in connection with such suit or proceeding, including reasonable fees and expenses of attorney, accountants and other professionals.

18. Entire Agreement. This Agreement is intended as the complete and exclusive statement between CHRONTEL and Buyer and supersedes all prior agreements and negotiations relating to the subject matter hereof. CHRONTEL and Buyer each represent that the individual signing this Agreement on its behalf has the power and authority to enter into this Agreement and that this Agreement constitutes its valid and binding obligation.