ACCEPTANCE – Buyer has been informed that the material may have been used in research and development, manufacturing or other production processes and may have contained, come in contact with, or otherwise has been exposed to hazardous substances. The material has been cleaned in place in order to remove loose matter, but residual contamination may remain in the material. Buyer hereby expressly acknowledges that Buyer has heretofore made a full and complete inspection of (or has had a reasonable opportunity to inspect) the material and has been provided with any applicable reports or documentation regarding the material and cleaning process, if requested by Buyer. Buyer expressly agrees to accept the material in its present condition. Buyer accepts full and complete responsibility for the future use and operation of the material.
ASSIGNMENT – This Agreement is not assignable by Buyer without the express written consent of SemiStar Corp.. Any attempted assignment without such consent shall be null and void and shall constitute a default of this Agreement.
BUYER’S INFORMATION – No specifications, drawings, sketches, models, samples, tools, computer or other apparatus programs, technical or business information or data, written, oral or otherwise, furnished by Buyer to Seller under this agreement or order or in contemplation of this agreement or order shall be considered by Buyer to be confidential or proprietary.
CANCELLATION- Buyer hereby will be assessed a cancellation fee of 10% of the total contractual value if the buyer was to hereby void this contract
CHOICE OF LAW – The construction, interpretation and performance of this Agreement and all transactions under it shall be governed by the laws of the State of California.
COMPLIANCE WITH LAWS AND INDEMNIFICATION – Buyer and all persons furnished by Buyer shall comply with the Fair Labor Standards Act, the Occupational Safety and Health Act and the Resource Conservation and Recovery Act and all other federal, state, and local laws, ordinances, regulations, and codes, including identification and procurement of required permits, certificates, and inspections (“Legal Requirements”), in performance under this agreement and in operation and use of the material. Buyer agrees to indemnify, defend and hold harmless SemiStar Corp., from and against any and all claims, judgments, damages, penalties, fines, costs, liabilities or loss, including attorney’s fees, consultant fees and expert fees, which arise out of or in connection with the use or condition of the material, including by way of example and not in limitation of the generality of the foregoing, compliance with any and all Legal Requirements.
DETERMINATION OF COUNT AND CLASSIFICATION – At the time of shipment, Buyer or Buyer’s representative shall have the privilege of checking SemiStar Corp.’s determination of count and classification of the material. If Buyer’s determination differs from SemiStar Corp.’s, a determination of count and classification shall be reached by mutual agreement before the material is shipped. If Buyer or Buyer’s representative fails to make a check at the time of shipment, SemiStar Corp.’s determination of count and classification shall control.
DISCLAIMER OF WARRANTIES – THE MATERIAL SOLD UNDER THIS AGREEMENT IS SOLD AS USED OR SURPLUS MATERIAL AND IS SOLD “AS IS – WHERE IS” WITH ALL FAULTS, LATENT AND PATENT. SEMISTAR CORP. MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY AGAINST PATENT, TRADEMARK, COPYRIGHT, OR TRADE SECRET INFRINGEMENT.
ENTIRE AGREEMENT – This Agreement constitutes a binding contract when signed, acknowledged, or otherwise accepted by Buyer. Buyer’s acceptance of material constitutes acceptance of all the terms and conditions contained in this Agreement, and such terms and conditions supersede all prior oral or written understandings between the parties and constitute the entire agreement between the parties. No terms or conditions contained in any purchase order or other form originated by Buyer shall apply. Any reference to Buyer’s purchase order shall be for your convenience only, and SemiStar Corp. expressly rejects any offers by Buyer except by a writing signed by both parties and no changes or additions to this Agreement shall be binding upon SemiStar Corp. unless signed by an authorized SemiStar Corp. representative.
EXPORTS – Buyer will be responsible for complying with any and all laws and regulations of the United States relating to the export of the materials, including, but not limited to, the Export Control Regulations of the United States Department of Commerce.
Buyer also acknowledges and understands that any exports, re-exports or transfers of these Items, either directly by Buyer or indirectly by Buyer’s customers, are subject to U.S. export laws and regulations, including but not limited to the U.S. Export Administration Regulations (Title 15 of the U.S. Code of Federal Regulations Part 730 et seq.) and the U.S. trade sanctions regulations (Title 31 of the U.S. Code of Federal Regulations Part 500 et seq.). Buyer therefore agrees, and shall cause Buyer’s customers to agree, that no Items supplied by SemiStar Corp. under this Agreement will be exported, re-exported, or otherwise transferred by Buyer or Buyer’s customers, except as may be authorized under U.S. law. Buyer understands and acknowledges that such authorization may in some cases require that Buyer or its customers obtain a U.S. export license in advance of any such export, re-export, or transfer. Buyer further agrees to indemnify, save, and hold SemiStar Corp. harmless from any violations of U.S. export law resulting from the export, re-export, or transfer of these Items by Buyer or Buyer’s customers.
FORCE MAJEURE – SemiStar Corp. shall not be liable for any loss, damage, or delay caused by strikes, picketing, labor disturbances, riots, fires, insurrection, or the elements, embargoes, failure of carriers, inability to obtain facilities or to obtain materials, Government Regulations or requirements, acts of God or the public enemy, or any cause beyond its control whether or not similar to the foregoing.
INFRINGEMENT – The purchase of the material under this agreement does not convey by implication or otherwise any licenses under any patent, trademark, copyright, trade secret or other proprietary interest, domestic or foreign. SemiStar Corp. makes no representation or warranty that the use of any material, equipment, program, documentation or technical information furnished under this agreement will not infringe or misuse any patent, trademarks, copyright, trade secret, or other proprietary interests of any third party, and it shall be Buyer’s sole responsibility to make such determination as is necessary with respect to the acquisition of license or other rights under patents or with respect to other rights of third parties, including rights to programs and documentation. SemiStar Corp. shall not be held to any liability with respect to any claim made by any third party on account of, or arising from the use of such material, equipment, program, documentation, or technical information. Buyer agrees to indemnify and save harmless SemiStar Corp. from and against any and all judgments, damages, penalties, fines, costs, expenses, liabilities, and claims (including attorney’s fees) for infringement or misuse of any patents, trademarks, copyrights, trade secrets, or other proprietary interests in any foreign country or in the U.S.A.
- LIMITATION OF LIABILITY – IN NO EVENT WILL SEMISTAR CORP. BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES WHETHER ARISING OUT OF OR CLAIMING TO HAVE ARISEN OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT LIABILITY, OR OTHERWISE. IN NO EVENT SHALL SEMISTAR CORP. BE LIABLE FOR DAMAGES IN EXCESS OF THE PURCHASE PRICE STATED IN THIS AGREEMENT.
MEDIATION – If a dispute arises out of or relates to this Agreement, or its breach, and the parties have not been successful in resolving such dispute through negotiation, the parties agree to attempt to resolve the dispute through mediation by submitting the dispute to a sole mediator selected by the parties or, at any time at the option of a party, to mediation by the American Arbitration Association (“AAA”). Each party shall bear its own expenses and an equal share of the expenses of the mediator and the fees of the AAA. The parties, their representatives, other participants and the mediator shall hold the existence, content and result of the mediation in confidence. If such dispute is not resolved by such mediation, the parties shall have the right to resort to any remedies permitted by law. All defenses based on passage of time shall be tolled pending the termination of the mediation. Nothing in this clause shall be construed to preclude any party from seeking injunctive relief in order to protect its rights pending mediation. A request by a party to a court for such injunctive relief shall not be deemed a waiver of the obligation to mediate.
GOVERNMENT CLEARANCE – All persons furnished by Buyer shall, where required by government regulations, submit satisfactory clearance from the U.S. Department of Defense and other federal authorities concerned.
SOFTWARE – This is a sale of hardware items only and does not include a sale or license of program code (software) in any form, regardless of whether such software has been packaged with, integrated into or otherwise included with the item(s). Buyer agrees to destroy all such software or to obtain an appropriate license for its continued use and to indemnify SemiStar Corp. for any failure to do so.
TAXES – Any tax or related charge which SemiStar Corp. shall be required to pay to or collect for any government upon or with respect to services rendered or the sale, use, or delivery of material, shall be billed to Buyer as a separate item and paid by Buyer unless a valid exemption certificate is furnished by Buyer to SemiStar Corp..
TITLE AND RISK OF LOSS AND DAMAGE – Unless otherwise agreed in writing, title to the material shall at all times remain in SemiStar Corp. until SemiStar Corp. shall have received payment in full of the purchase price; and no part of the material may be removed by Buyer prior to receipt of full payment. After payment of the purchase price, SemiStar Corp. will deliver an executed Bill of Sale with the material in the form attached to this Agreement. Buyer shall have risk of loss and damage from the time the material is made available to Buyer prior to removing it from SemiStar Corp.’s premises.
USE OF INFORMATION – Any specifications, drawings, sketches, diagrams, computer or other apparatus programs, manuals, technical, or business information or data, including methods and concepts set forth or utilized therein (all hereinafter designated “information”), if any, which SemiStar Corp. may furnish hereunder or in contemplation hereof, shall be kept in confidence by Buyer and shall not be published or otherwise disclosed by Buyer without SemiStar Corp.’s written permission except as hereinafter provided. Unless such information was previously known to Buyer free of any obligation to keep it in confidence or has been or is subsequently made public by SemiStar Corp. or a third party, it shall be kept in confidence by Buyer and may be used by Buyer solely to remove, install, operate, and maintain the material supplied hereunder, and may not be for other purposes except upon such terms as may be agreed upon in writing between Buyer and SemiStar Corp.. No copies of such information may be made other than copies, which are necessary for removal, installation, operation, and maintenance of the material supplied hereunder. Such information may be disclosed to Buyer’s authorized designee for the sole purpose of removing, installing, operating, and maintaining the material supplied hereunder provided such designee, agrees in writing to keep such information in confidence and to use such information solely for such purpose (a copy of such writing to be provided to SemiStar Corp. at its request). Such information may be disclosed to a transferee of the material provided there is included in the transfer agreement the obligations respecting use and disclosure of information contained in this paragraph (a copy of the relevant portion of the transfer agreement to be provided to SemiStar Corp.).