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TERMS OF SALE
The sales terms and conditions of sale contained herein apply to all quotations made and purchase orders accepted by Hantronix for the purchase and sale of its products. Some of the sales terms and conditions herein may differ from those in Customer’s purchase order. This acceptance is conditional on Customer’s assent to the sales terms set out here in lieu of those in Customer’s purchase order. Hantronix’s failure to object to provisions contained in any communication from Customer shall not be deemed a waiver of the provisions of this acceptance. Any changes in the sales terms contained herein must specifically be agreed to in writing by an authorized official of Hantronix before becoming binding on either Hantronix or customer. All orders must be approved and accepted by Hantronix at its headquarters office in Cupertino, California.
Unless different specifications are established and agreed to in writing, the specifications for the Products are the written specifications issued by Hantronix for the part number assigned by Hantronix to the Products. Customer's part numbers are used for reference only. Hantronix may, without affecting the obligations of Customer, make changes to the specifications of the Products to improve design or reliability from time to time.
Prices are shown on the face hereof. If Customer does not purchase the entire quantity upon which these prices were based, Customer will pay the higher price specified by Hantronix for the quantity actually purchased. Prices do not include taxes and any tax Hantronix may be required to collect or pay upon the sale, use or delivery of the Products will be paid by Customer upon invoice.
Unless otherwise set forth on the face hereof, payment Sales Terms are net 30 days from date of invoice with interest on all unpaid amounts at the rate of 1.5% per month or the highest lawful rate, whichever is less. Hantronix reserves a purchase money security interest in the Products delivered until all of Hantronix's claims have been paid. Hantronix may, at its discretion, change these credit Sales Terms if Customer's financial condition changes. Each shipment shall be considered a separate and independent transaction.
Delivery will be FOB Hantronix's location and will occur when the Products are ready for pickup by the carrier. In the absence of specific instructions, Hantronix will select a carrier. Hantronix does not assume any liability for the shipment. Customer will be responsible for all transportation and insurance charges, including those associated with warranty repairs. Delivery dates set forth on the face hereof are estimates only. Hantronix will use its best efforts to deliver in accordance with these dates but will not be responsible for failure to deliver as estimated.
Within 30 days after delivery Customer will inspect the Products and give written notice of rejection to Hantronix detailing the manner in which any Products do not conform to the specifications. Upon receiving authorization and shipping instructions from Hantronix, Customer may return rejected Products. If Customer retains the Products after their delivery without giving Hantronix such notice within the designated period, Customer will be deemed to have irrevocably accepted the Products. Customer's inspection and acceptance tests shall not exceed the inspection and test procedures customary in the industry for the Products and shall be at Customer's expense. Hantronix may charge to Customer any costs resulting from the testing, handling, and disposition of any Products returned by Customer which are not found by Hantronix to be conforming.
PATENTS AND COPYRIGHTS
Hantronix will not have any liability to Customer for any action against the Customer alleging that Customer’s use of the Products infringes a United States patent or copyright if the alleged infringement is based upon use or sale of the Products in combination with other products or devices which are not made by Hantronix, or use of the Products for other than their intended purpose. Customer will defend and hold Hantronix harmless against any expense, judgement or loss for alleged infringement of any patents, copyrights or trademarks which result from compliance with Customer's designs, specifications or instructions. No costs or expenses shall be incurred for the account of Hantronix without its prior written consent. Hantronix’s total liability to Customer as a result of compliance with this provision will not exceed the sum paid to Hantronix by Customer for the allegedly infringing Products. The foregoing states the entire liability of Hantronix for alleged infringement of patents and copyrights by the Products, any part of them or by their operation.
CANCELLATION AND RESCHEDULING
Customer may by written notice to Hantronix reschedule any shipment of Products that is scheduled for delivery at least 60 days (unless a different time period is specified on the face hereof) from the time Hantronix receives Customer's notice. Customer may by written notice to Hantronix cancel any shipment of standard Products that is scheduled for delivery at least 90 days (unless a different time period is specified on the face hereof) from the time Hantronix receives Customer's notice. Customer may by written notice to Hantronix cancel any shipment of custom-designed Products that is scheduled for delivery at least 120 days (unless a different time period is specified on the face hereof) from the time Hantronix receives Customer's notice. An order cancellation with insufficient notice is subject to a cancellation fee of at least 25% of the total order invoice. All quantities must be released and shipments scheduled no more than 12 months from the date hereof. Hantronix may cancel this order or any portion in the event of Customer's default or a material adverse change in Customer's financial condition without affecting Hantronix's right and remedies. Except as otherwise provided herein orders accepted by Hantronix are firm and non-cancellable.
Hantronix shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond Hantronix's reasonable control. Examples of such causes are acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. Hantronix may defer delivery for a period equal to the delay caused by such contingency in the event of shortages for any reason whatsoever. Hantronix may allocate production among its customers.
LIMITATION OF LIABILITY
Liability of Hantronix to Customer, if any, under this contract for breach of contract or warranty, negligence or otherwise shall in no event exceed the total contract price specified herein less the purchase price of any items delivered and accepted hereunder. In no event shall Hantronix be liable to Customer or others for special, incidental or consequential damages for breach of any of the provisions of this contract, including without limitation, provisions regarding warranties, guaranties, indemnities, and patent infringement, or based upon any claims, demands, settlements, or lawsuits arising from or in connection with, the Products sold hereunder, such damages including, but not limited to, costs of removal and reinstallation of items, loss of good will, loss of profits, or loss of use. Customer assumes all liability for any and all damages arising from or in connection with, the use or misuse of the Products by Customer, its employees, or others.
Any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled solely and exclusively by binding arbitration in San Jose, California. Each party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator. Arbitration may proceed in the absence of any party if written notice of the proceedings has been given to such party. Each party shall bear its own attorneys fees and expenses. The parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity; provided however, that nothing in this subsection shall be construed as precluding the bringing an action for injunctive relief or other equitable relief. The arbitrator shall not have the right to award punitive damages or speculative damages to either party and shall not have the power to amend this Agreement. The arbitrator shall be required to follow applicable law. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
This is the complete and exclusive statement of the agreement between the parties and supersedes all prior agreements and communications about the subject matter. Neither this agreement nor individual transactions under it may be assigned by Customer without the prior written consent of Hantronix. Regardless of any disclosure made by Customer to Hantronix of an ultimate destination of the Products, Customer will not export, directly or indirectly, any Product without first obtaining all required licenses from the appropriate government agencies. This agreement and all transactions under it shall be governed by the laws of the state of California.
Hantronix warrants to Customer that the Products will be free from defects in material and workmanship under normal use and service for a period of one year from the date of invoice. Customer's exclusive remedy for breach of this warranty is that Hantronix will either (i) repair or replace, at its option, any Product which fails during the warranty period because of such defect (if Customer promptly reported the failure to Hantronix in writing) or, (ii) if Hantronix is unable to repair or replace, Hantronix will refund the purchase price of the Product upon its return (with authorization) to Hantronix. This warranty does not apply to any Product which has been subjected to misuse, abnormal service or handling, or which has been altered or modified in design or construction, or which has been serviced or repaired by anyone other than Hantronix. The warranties set forth herein are in lieu of, and exclusive of, all other warranties, express or implied. ALL EXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR USE AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY EXCLUDED. In no event will Hantronix be liable, or in any way responsible, for any incidental or consequential economic or property damage.