This page documents the most current Terms and Conditions of Sale for Anadyne products:
ANADYNE GENERAL TERMS & CONDITIONS OF SALE
1. ACCEPTANCE 0F THESE TERMS & CONDITIONS
Customer's agreement to purchase ANADYNE products shall be deemed acceptance of these terms and conditions to the exclusion of any other terms or conditions appearing in any purchase order provided to ANADYNE by Customer. ANADYNE acknowledgment of Customer's purchase order, if any, is expressly made conditional upon Customer's assent to these terms and conditions, which assent shall be presumed conclusively from Customer's failure to seasonably object in writing or from Customer's acceptance of any or all of the products ordered.
All billings for Products will be at the price indicated in ANADYNE's "Acknowledgment of Purchase Order." The prices indicated in this acknowledgment shall remain firm for the term of the order. Unless otherwise agreed to in writing by ANADYNE, if Customer fails, within 12 months of the order receipt date, to schedule release of the quantity upon which the billing price was based for delivery, the purchase price will become the billback price according to ANADYNE's price list (in effect at the time of placement of order) for the lower quantity released and actually delivered and the Customer will be billed for the difference. Any applicable taxes or shipping charges will appear as additional items on invoices.
Unless otherwise indicated therein, ANADYNE quotations shall be valid for thirty (30) days from date of issuance.
4. SCHEDULING OF SHIPMENTS
ANADYNE will schedule shipments of products based on Customer's request and ANADYNE's capability at the time Customer's order is accepted. Upon such acceptance, ANADYNE will issue an acknowledgment which will indicate the estimated shipping dates.
5. RESCHEDULING AND CANCELLATION
Customer may not cancel or postpone a scheduled shipment of products unless Customer submits its request in writing and ANADYNE consents by issuing a new formal acknowledgment. If a request to cancel a shipment is accepted by ANADYNE, Customer shall pay ANADYNE (a) the contract price for all product which has been completed prior to cancellation; (b) the cost to ANADYNE of material or work in process on the date of cancellation, plus ANADYNE's standard profit thereon, and (c) ANADYNE's reasonable and necessary expenses incurred directly incident to the cancellation.
6. TITLE AND DELIVERY
ANADYNE will use its best efforts to ship on or before the estimated shipping dates indicated in ANADYNE'S acknowledgment or Letter Agreement, except that ANADYNE will not ship before Customer's requested shipping dates if Customer's order so instructs. ANADYNE shall not, in any event, be liable for any delay or failure to deliver resulting from circumstances which are beyond ANADYNE's control or which would cause ANADYNE to incur unreasonable expense in order to avoid such delay or to effect such delivery.
All sales are made F.O.B. point of shipment. ANADYNE's title passes to Customer and ANADYNE's liability as to delivery ceases upon making delivery of product purchased hereunder to carrier at shipping point, the carrier acting as Customer's agent. All claims for damages must be filed with the carrier. Unless specific instructions from Customer specify a different carrier or method of shipment, shipments will normally be made by United Parcel Service (UPS), 2nd-Day Air.
Transportation will be prepaid and subsequently billed to Customer. Freight insurance will be provided unless otherwise specified. Claims against ANADYNE for shortages occurring before delivery to carrier shall be waived unless made within ten (10) days after delivery of shipment to Customer.
7. SECURITY INTEREST
Customer hereby grants ANADYNE a security interest in each product shipped until the entire amount due therefore has been paid. Default in payment of such price or any part of the price when due shall permit ANADYNE at its sole discretion, to declare all obligations of Customer immediately due and payable, and in such event ANADYNE shall have all the rights and remedies of a secured party under applicable law. In connection with the security interest granted herein, ANADYNE is expressly authorized, at its discretion, to file one or more financing statements or other notices under applicable law naming Customer as debtor and ANADYNE as secured party and indicating therein the goods (specifically or by general type) as items of collateral.
As used above, the term "security interest" means an interest in personal property or fixtures which secures payment or performance of an obligation. The term "secured party" means a lender, seller or other person in whose favor there is a security interest.
Any and all state and local sales, use, excise, privilege, and similar taxes imposed on ANADYNE or which ANADYNE has a duty to collect in connection with the sale, delivery, or use of any product will appear as separate items on the final invoice and will be paid by Customer. If sales to Customer are exempt from such taxes, Customer shall furnish to ANADYNE a certificate of exemption from the applicable taxing authority.
9. INVOICES AND PAYMENT
Payment terms for products are 100% of the net price on placement of orders. Upon the establishment of satisfactory credit with ANADYNE, ANADYNE may, at its option, allow 50% payment on ANADYNE's acceptance of large orders, with the balance due in 30 days; or, again at the option of ANADYNE, full payment for smaller orders thirty (30) days from the date of the invoice. ANADYNE shall submit a final invoice to Customer for each shipment at the time of shipment to the invoice point specified in Customer's purchase order.
Each shipment shall be considered a separate and independent transaction and payment therefore shall be made accordingly. If shipments are delayed by Customer, payments shall become due on the date when ANADYNE is prepared to make shipment. Products held for Customer shall be at the risk and expense of Customer.
Shipments and deliveries on credit shall at all times be subject to the granting of such credit by ANADYNE to Customer; ANADYNE may at at any time decline to make any shipments or deliveries except upon receipt of payment or upon terms and conditions or security satisfactory to ANADYNE.
If in ANADYNE's judgment, the financial condition of Customer at any time does not justify continuation of production or shipment on terms of payment
originally specified, ANADYNE may require full or partial payment in advance and, in the event of the bankruptcy or insolvency of Customer or in the event any proceeding is brought by or against Customer under bankruptcy or insolvency laws, ANADYNE shall be entitled to cancel any order then outstanding and shall receive reimbursement for its cancellation charges.
If any action is commenced to enforce payment as herein provided, Customer hereby consents to the exercise of jurisdiction over it by any State or Federal Court within the state of California, and agrees to pay such sums as the court may fix as reasonable attorneys fees and court costs.
Any additional terms and conditions contained in any supplements attached hereto are deemed a part of these terms and conditions and no subsequent modifications to these terms and conditions shall be binding on ANADYNE unless agreed to in writing.
11. EXPORT RESTRICTIONS
Customer agrees that it shall neither export nor re-export, directly or indirectly, any product or information purchased hereunder, or the direct product thereof, to any country, region, end user or for end use to which such export or re-export is restricted by United States law or regulation without the prior authorization, if required, of the Department of Commerce, Bureau of Industry and Security. ANADYNE's L-2010 integrated log video amplifier and its packaged version, the L-17D have been classified for export under the U.S. Export Administration Regulations (EAR) as EAR99 and are fully subject to the EAR.
12. LIMITED WARRANTY
ANADYNE warrants that at time of delivery and for a ninety (90) day period thereafter, product will be free from defects in material and workmanship under normal use and service.
ANADYNE'S sole liability under this warranty shall be, at ANADYNE'S discretion, to replace product found defective or to issue Customer credit for the purchase price of defective product. Customer may obtain service under this warranty if: (a) within the applicable warranty period, Customer notifies ANADYNE of the receipt of defective Product and obtains a Return Material Authorization (RMA) from ANADYNE; and (b) Customer returns said product to ANADYNE in compliance with the RMA instructions; and (c) ANADYNE, upon inspection, confirms the existence of the defective condition.
THIS WARRANTY SHALL NOT EXTEND TO PRODUCT WHICH HAS BEEN SUBJECTED TO MISUSE, NEGLIGENCE, ACCIDENT OR IMPROPER INSTALLATION OR APPLICATION, OR WHICH HAS BEEN REPAIRED OR ALTERED BY OTHERS. THIS WARRANTY IS EXPRESSED IN LIEU OF ALL OTHER IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND
OF ALL OTHER OBLIGATIONS OR LIABILITIES IN CONNECTION WITH THE SALE OF THE PRODUCT. ANADYNE'S RESPONSIBILITY TO REPLACE DEFECTIVE PRODUCTS IS THE SOLE AND EXCLUSIVE REMEDY PROVIDED TO THE CUSTOMER FOR BREACH OF THIS WARRANTY.
It is understood that if this order calls for the delivery of semiconductor devices which are not finished and fully encapsulated, (such as unpackaged die) that no warranty, statutory, expressed or implied, including the implied warranty of merchantability and fitness for a particular purpose, shall apply.
All such devices are sold as is where is. All unpackaged die sold by ANADYNE are visually screened for acceptability after plating.
However, ANADYNE agrees to replace each unpackaged die found defective by the Customer for a nominal restocking charge, regardless of the cause of failure under terms and conditions described below. This special "no-fault" arrangement is provided for failed unpackaged integrated circuits (die) purchased from ANADYNE since it is frequently not possible or cost-effective to determine with certainty whether a failed die was:
a) in fact, defective from the outset despite visual inspection prior to shipment), or
b) damaged by subsequent accident, negligence or improper installation or application after shipment to purchaser.
ANADYNE will replace each failed unpackaged die purchased from ANADYNE for a $25.00 restocking charge regardless of the cause of failure, provided each such failed die is returned to ANADYNE within one year of date of shipment by ANADYNE, and further provided that:
a) each returned die is identified as to wafer and chip number (provided by ANADYNE at time of shipment); and
b) the nature of the failure is described briefly and quantitatively (if appropriate) for possible use in improving quality control of the manufacture, handling and/or application of the die.
13. LIMITATION OF LIABILITY
ANADYNE SHALL HAVE NO LIABILITY OR OBLIGATION TO CUSTOMER OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE OF ANY KIND CAUSED IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, BY THE INADEQUACY OF ANY PRODUCTS FOR ANY PURPOSE, OR FOR ANY DEFICIENCY OR DEFECT IN ANY PRODUCTS WHETHER OR NOT COVERED BY ANY WARRANTY, OR FOR THE USE OR PERFORMANCE OF ANY PRODUCTS, OR FOR ANY INTERRUPTION OR LOSS OF SERVICE, DELAY IN SHIPMENT, OR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGE, HOWEVER CAUSED AND INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR LOSS OF BUSINESS OR PROFIT, OR OTHER DAMAGE, WHETHER OR NOT CUSTOMER SHALL HAVE INFORMED ANADYNE OF THE POSSIBILITY OR LIKELIHOOD OF SUCH OR ANY OTHER DAMAGES. CUSTOMER EXPRESSLY AGREES TO INDEMNIFY AND HOLD ANADYNE HARMLESS FROM ANY AND ALL LIABILITY, LOSS, COST OR DAMAGE DESCRIBED IN THE PRECEDING SENTENCE (EXCEPT FOR THE SOLE AND EXCLUSIVE REMEDIES SET FORTH IN PARAGRAPHS (12), ABOVE, AND (14), BELOW) AND FROM CLAIMS BY ANY PARTY (INCLUDING, WITHOUT LIMITATION, CLAIMS BY CUSTOMER'S CUSTOMERS, INSURERS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS OR AGENTS, OR THEIR RESPECTIVE EMPLOYEES AND WORKERS COMPENSATION INSURERS) FOR PERSONAL INJURIES OR DEATH OR DAMAGE TO PROPERTY (TANGIBLE OR INTANGIBLE) ARISING OUT OF THE EXISTENCE OR USE OF THE PRODUCTS OR ANY DEFECT IN THE PRODUCTS, WHETHER OR NOT SUCH LIABILITY, LOSS, COST, DAMAGE OR CLAIM IS OCCASIONED IN WHOLE OR IN PART BY ANY ACTUAL OR ALLEGED ACT OR OMISSION OF ANADYNE, ITS REPRESENTATIVES, EMPLOYEES, VENDORS, SUBCONTRACTORS OR SUPPLIERS, OR BY ANY DEFECT IN THE PRODUCTS WHETHER OR NOT IT IS CONTENDED THAT ANADYNE CONTRIBUTED THERETO IN WHOLE OR IN PART OR WAS RESPONSIBLE THEREFOR BY REASON OF NONDELEGABLE DUTY. CUSTOMER'S OBLIGATIONS UNDER THIS PARAGRAPH SHALL SURVIVE TERMINATION OF ANY CONTRACT INCLUDING THESE TERMS AND CONDITIONS.
HOWEVER, IN THE EVENT A COURT OF COMPETENT JURISDICTION SHALL FIND AS A MATTER OF LAW THAT ANY CLAUSE OF THIS SECTION 13 IS UNCONSCIONABLE, IT IS AGREED THAT ANADYNE SHALL BE LIMITED SOLELY TO A U.S. DOLLAR AMOUNT EQUAL TO THE COST OF THE MALFUNCTIONING OR DEFECTIVE PRODUCT SOLD TO CUSTOMER. THE REMEDIES PROVIDED FOR HEREIN SHALL BE EXCLUSIVE AND SHALL BE CUSTOMER'S SOLE REMEDIES.
ANADYNE, at its expense, will defend Customer against any claim based on an allegation that a product furnished hereunder infringes a patent or copyright of another in the United States, and ANADYNE will pay any resulting costs, damages, and attorney's fees finally awarded against Customer that are attributable to such claim or will pay the part of any settlement that is attributable to such claim; provided that 1) Customer notifies ANADYNE promptly in writing of the claim, 2) ANADYNE is permitted to control the defense or settlement of the claim, and 3) Customer cooperates reasonably in such defense or settlement at ANADYNE'S expense.
In its defense or settlement of any such claim, ANADYNE may
1) procure for Customer the right to continue using the product,
2) modify the product so it becomes non-infringing, or 3) replace the product with an equivalent product not subject to such claim. If the use of any product furnished hereunder is enjoined and none of the preceding alternatives is reasonably available to ANADYNE, ANADYNE will provide Customer an opportunity to return the product and receive a refund of the purchase price paid, less a reasonable allowance for use.
ANADYNE shall have no liability to Customer for claims of infringement based upon 1) the use of any product in combination with any product not supplied by ANADYNE, or 2) the use of any product designed, manufactured, or modified to the specifications of Customer.
The foregoing states the entire obligation and liability of ANADYNE with respect to infringement and claims thereof.
15. LIFE SUPPORT POLICY
ANADYNE PRODUCTS ARE NOT TO BE USED AS CRITICAL COMPONENTS IN LIFE SUPPORT DEVICES OR SYSTEMS WITHOUT THE EXPRESS WRITTEN APPROVAL OF ANADYNE, AS USED HEREIN:
1. Life support devices or systems are devices or systems which (a) are intended for surgical implant in the body or (b) support or sustain life and whose failure to perform when properly used in accordance with instructions for use provided in the labeling can be reasonably expected to result in a significant injury to the user.
2. A critical component is any component in a life support device or system whose failure to perform can be reasonably expected to cause the failure of the life support device or system or to affect its safety or effectiveness.
16. PROPRIETARY RESTRICTIONS
Customer understands and agrees that all product which is designated "L-17D" or “L-2010” by ANADYNE and purchased by Customer is protected by copyright under United States federal law and regulation and agrees that it is bound by said copyright protection for this integrated circuit. Additionally, Customer agrees that Customer or its agents will not copy said circuit, nor reverse engineer said circuit for its own or other's benefit, whether foreign or domestic.
17. U. S. GOVERNMENT CONTRACTS
ANADYNE will review with Customer its ability to accept Federal Acquisition Regulations upon request.
The failure of either party to enforce at any time any provision of these terms and conditions shall not be construed to be a waiver of such provision or the right thereafter to enforce each and every provision. No waiver by either party, either express or implied, of any breach of any of these terms and conditions shall be construed as a waiver of any other breach of such term or condition.
Customer may not assign or otherwise transfer its rights or obligations hereunder without the prior written consent of ANADYNE. No attempt to assign or transfer in violation of this provision shall be binding upon ANADYNE.
20. GOVERNING LAW
The rights of the parties hereunder shall be governed by the laws of the State of California.
21. ATTORNEY’S FEES
If litigation is commenced by either party to enforce any provision of any contract including these terms and conditions, the prevailing party shall be entitled to recover reasonable costs and attorney's fees, both at trial and upon appeal.
All notices required or authorized by these terms and conditions shall be given in writing and shall be sent to the address shown in Customer's order. Notices to ANADYNE shall be sent to the ANADYNE sales office indicated by ANADYNE as being responsible for the order.