Buyer shall make payment in full prior to release of the Equipment. If applicable, Buyer shall include the invoice number in the comments on the wire transfer and pay all wire transfer fees. Buyer shall pay all applicable duties and taxes.
2. Delivery and Risk of Loss
The sale of the Equipment shall be FCA (Incoterms 2010) Micron’s fabrication facility. Micron’s liability for the Equipment shall cease and title and all risk of loss or damage shall pass to Buyer upon Micron making the Equipment available to Buyer on the specified date pursuant to Section 11 of this Agreement (“Pick-Up Date”), regardless of any provision for payment of freight, insurance or the form of shipping documents.
3. Conditions Precedent To Sale
As conditions precedent of this Agreement, Buyer will:
- Obtain or assist Micron and its related corporations in obtaining any required licenses and permits under all statutes, rules and regulations of the government of the United States of America and agencies thereof by supplying such documentation or information as may be requested by Micron.
- Comply with such statutes, rules and regulations of the United States of America and agencies thereof;
- Maintain the necessary records to comply with such statutes, rules and regulations;
- Obtain all governmental approvals and licenses necessary to import the Equipment into any other country; and
- Not to sell, transfer or otherwise dispose of the Equipment in violation of the export laws or other statutes, rules and regulations of the United States of America.
4. Deinstallation, Packaging, Crating and Loading of Equipment
Buyer will at its cost deinstall, package, crate and load the Equipment. All agents or employees of Buyer who participate in the deinstallation, packaging, crating, labeling, loading or shipping of the Equipment shall have all required certifications, and all shall participate subject to Micron’s approval in its sole discretion. All agents or employees of Buyer that participate in the deinstallation, packaging, crating, labeling, loading or shipping of the Equipment shall comply at all times with all relevant Micron policies. Notwithstanding any of the foregoing, if Micron in its reasonable judgment believes that Buyer’s deinstallation, packaging, crating, labeling, loading or shipping of the Equipment will in any way fail to comply with applicable laws, rules or regulations, Micron may without giving notice assume control of deinstallation, packaging, crating, labeling, loading and/or shipping the Equipment, all costs of which will be borne by Buyer.
Buyer has had full opportunity to physically inspect the Equipment prior to entering into this Agreement. Buyer acknowledges and agrees that to the extent it elects not to physically inspect the Equipment that Buyer hereby expressly waives any rights it may have, if any, to seek any recourse for any claim that such inspection would have revealed.
6. NO WARRANTY.
THE EQUIPMENT IS USED AND IS SOLD “AS IS”, WITH ALL FAULTS, DEFECTS AND WITHOUT ANY WARRANTY OF ANY KIND. MICRON EXPRESSLY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
ALL SOFTWARE, IF ANY, IS SOLD “AS IS” AND WITHOUT WARRANTY OF ANY KIND. MICRON EXPRESSLY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED ON SOFTWARE, INCLUDING BUT NOT LIMITED TO, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MICRON DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET BUYER’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MICRON OR AN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. BUYER ACCEPTS THE RISKS OF USE AND EXCEPT AS OTHERWISE STATED HEREIN SUCH RISKS FALL SOLELY ON BUYER.
BUYER EXPRESSLY UNDERSTANDS AND AGREES THAT MICRON DOES NOT WARRANT THAT THE EQUIPMENT OR SOFTWARE IS FREE OF CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT BY ANY THIRD PARTY. MICRON HEREBY DISCLAIMS ANY SUCH WARRANTY OR INDEMNIFICATION AGAINST INTELLECTUAL PROPERTY INFRINGEMENT, INCLUDING BUT NOT LIMITED TO PATENT, TRADEMARK, COPYRIGHT OR TRADE SECRET INFRINGEMENT.
7. LIMITATION OF LIABILITY.
IN NO EVENT SHALL MICRON BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE OR INTERRUPTION OF BUSINESS, RESULTING FROM MICRON’S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, OR THE FURNISHING, PERFORMANCE OR USE OF ANY EQUIPMENT OR SOFTWARE SOLD PURSUANT HERETO, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, THE NEGLIGENCE OF MICRON, OR OTHERWISE.
IN NO EVENT SHALL MICRON’S TOTAL CUMULATIVE LIABILITY TO BUYER UNDER ANY CLAIM HEREUNDER OR RELATING HERETO, WHETHER IN CONTRACT OR IN TORT, EXCEED THE SUM PAID TO MICRON BY THE BUYER FOR THE EQUIPMENT WHICH IS THE SUBJECT OF SUCH CLAIM.
8. Software Licensing
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 Equipment. Any software included with the Equipment may be the property of a third party. Buyer agrees to destroy all such software or to obtain an appropriate license for its continued use.
Buyer, on behalf of itself and its employees and agents, shall indemnify, defend and hold harmless Micron, its subsidiaries and affiliates and their directors, officers, agents and employees from and against any and all liabilities, claims, demands, damages, causes of action, losses, expenses and attorney’s fees, whether known or unknown, arising out of the Buyer’s purchase or use of the Equipment.
10. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State/Country of sale, without reference to such State’s/Country’s conflict of laws principles. The parties agree that the court in the country of sale have jurisdiction over matters arising from or in connection with this Agreement and that all litigation related to this Agreement shall, to the extent possible, be conducted in the country of sale. The parties hereby acknowledge and agree that the provisions of the Sale of Goods (United Nations Conventions) Act, Chapter 283A are expressly excluded and shall not apply to the terms and conditions of this Agreement.
11. Acceptance and Performance
Time is of the essence in the execution and performance of this Agreement. Buyer shall have this Agreement executed by a duly authorized representative of Buyer and return it to Micron within one (1) day of the date first set forth above. Buyer shall take delivery of the Equipment within ten (10) days of the date first set forth above or as otherwise specified by Micron.
Unless otherwise stated on the face hereof, stated prices do not include any customs duties, sales, use, value added, excise, goods and services, federal, state, local or other taxes. Buyer shall pay all such duties or taxes, or, in lieu thereof, Buyer shall provide Micron with an appropriate resale or exemption certificate.
13. Force Majeure
Micron shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or any other difficulties which are beyond the reasonable control of Micron.
14. Export Control Law
Buyer warrants and represents that it will not export any Equipment (and associated technical data or software, if any) that is the subject of this Agreement, whether directly or indirectly, without first obtaining all licenses and other approvals required for such export under United States law and/or other applicable foreign country law. This includes the licensable release of Equipment (and associated technical data or software, if any) to a foreign national from a restricted country.
15. Compliance with Laws
Buyer shall comply with all national, state and local laws, rules and regulations, including but not limited to laws and regulations governing manufacturing, processing, distribution, transportation, labeling, handling, discharge, treatment, disposal, recycling, reclamation, use, import, export or other activity utilizing or relating to the Equipment. Buyer agrees to indemnify and hold Micron harmless from any claims, liabilities, penalties, forfeitures, and associated costs and expenses (including attorneys’ fees) that Micron may incur due to Buyer’s non-compliance with applicable laws, rules and regulations, including any of the laws, rules and regulations mentioned in Section 14 of this Agreement.
16. Hazardous Materials
The Equipment may contain chemical residue. Buyer acknowledges this fact and agrees to indemnify Micron against any and all claims or actions for damage or other relief that may arise due to the property containing such chemical residue. Buyer agrees to meet all applicable government safety standards and environmental regulations and laws for the removal, transportation, labeling, use and disposal of the Equipment. Material Safety Data Sheets will be made available to Buyer upon request.
17. Terms and Conditions
This sale is subject to, and Micron’s acceptance is conditioned upon, Buyer’s assent to the terms and conditions stated herein and on the face hereof, which are in lieu of and replace any and all terms and conditions set forth in any documents issued by Buyer, including, without limitation, purchase orders and specifications. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY BUYER AT ANY TIME ARE HEREBY OBJECTED TO BY MICRON, AND ANY SUCH DOCUMENT SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON MICRON.
No remedy set forth herein shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. The prevailing party or parties to any litigation or other proceedings arising out of this Agreement shall be entitled to recover its reasonable costs and attorneys’ fees from the other party or parties. If it is determined by a court of competent jurisdiction as part of a final nonappealable ruling, government action or binding arbitration that any provision of this Agreement (or part thereof) is invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms. All section headings herein are for convenience only and are in no way to be construed as part of this Agreement or as a limitation or expansion of the scope of the particular sections to which they refer. No modification of, or amendment to, this Agreement (including any implied waiver) shall be effective unless in writing signed by all parties hereto. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof and merges all prior or contemporaneous agreements and understandings (whether written, verbal or implied) of the parties with respect thereto. All obligations and duties which by their nature survive the expiration or termination of this Agreement shall remain in effect beyond any expiration or termination. No actions, regardless of form, arising out of this Agreement, may be brought by either party more than two years after the cause of action has arisen, or, in the case of nonpayment, more than two years from the date payment was due. The waiver by either party of any instance of the other party’s noncompliance with any obligation or responsibility herein shall not be deemed a waiver of subsequent instances or of either party’s remedies for such noncompliance.