PRODUCT SALES TERMS AND CONDITIONS
Revision 3 - September 23, 2022
This Agreement for the Sale of Goods (“Agreement”) is entered into on the date of an order (the Effective Date”), by and between Microchip USA LLC, a Florida limited liability company, with its principal place of business at 4511 N Himes Ave, Suite 100, Tampa, FL 33614 (the "Seller"), and the individual or entity submitting one or more Orders per the terms and conditions of this Agreement (the "Buyer") (collectively, “the Parties”; each, a “Party”). In consideration of the mutual promises and conditions expressed herein, and other good and valuable consideration, Seller and Buyer agree as follows:
1.
Description and Quantity of Goods. Seller shall transfer and deliver to
Buyer, and Buyer shall accept and pay for goods ordered through Seller’s
standard purchase order form subject to the terms and conditions of this
Agreement (the “Goods”). This Agreement’s Terms and Conditions apply to all Orders
submitted by Buyer or anyone acting on its behalf unless otherwise agreed in a
writing signed by Seller intended to supersede or replace the terms of this
Agreement.
2.
No Employment Relationship. Parties do not intend to form an
employment agreement. Parties further do not intend the relationship to form a
partnership or joint venture of any kind. The relationship between the Parties
is that between independent contractors.
3.
Purchase Terms and Process Regarding Orders.
(a) Relationship
with Agent. Parties understand that Seller operates through a network of Agents
working as independent contractors. An Agent assigned to Buyer will remain that
Buyer’s point of contact for future orders as well as product support and
service until further notice provided by Seller. If Buyer contacts Seller
directly, their request will be forwarded to their appropriate Agent. Seller
assigns Agents to Buyers on rotation basis. Parties understand that an Agent
periodically reaches out to Buyers to evaluate their needs and solicit future
business. At the same time, Buyer may reach out to Seller’s Agent as needed to
order products, obtain a quote, or request updates, warranty or other services.
Either Party may initiate the ordering process.
(b)
Submission of Order. Buyer
will communicate to the appropriate Seller’s Agent the types and quantities of
product requested. Seller, through its Agent will present Buyer with a price
range compiled from offers of multiple vendors. Seller’s Agent will memorialize
these amounts in a quote. Buyer then must agree to be bound by the price within
that range. Buyer then notifies Seller’s Agent that they are ready to submit
the order within the subsequent 24 hours. Seller’s Agent will then confirm the
final price via “Price Hold” email, which becomes part of this Agreement for
each order
transaction, and such pricing held
available for only 24 hours. Affirmative response by the Buyer combined with
submission of a purchase order or a virtual purchase order (VPO) will
constitute a binding order for purchase of Goods subject to the terms and
conditions of this Agreement (an “Order”). The scope of the products, testing requirements,
or shipping methods identified in the Price Hold email shall not be altered
after Buyer’s acceptance unless agreed in a writing signed by both Buyer and
Seller.
Buyer understands and agrees that, for each type
of product (date/lot/week code) identified in the Order, one (1) unit shall be
subject to destructive testing by Seller as part of its quality control and
inspection process.
(c)
Non-cancellation
of Order and return of Order. Parties understand that unless
otherwise stated by Seller, Orders are non-cancelable and non-refundable (NCNR)
by Buyer. Buyer may cancel an order only after receiving written authorization
of Seller. Seller, in its sole discretion may permit cancellation of Buyer’s Order
and in such event, Buyer will pay all reasonable cancellation and restocking
charges incurred by Seller due to Buyer’s cancellation or return of the Order,
which Seller will itemize and invoice the Seller. In the event that Seller,
prior to delivery, determines a defect or other quality issue with Order upon
inspection, Seller will, at Seller’s election, re-source for the Order or
cancel the Order and issue a credit to Buyer for the value of the purchase
price for the Order at issue.
(d)
Delivery of
Products; Risk of Loss. Parties agree that all deliveries be
made EXW (Ex Works as defined in Incoterms 2000) Seller’s facility or FOB place
of origin. Subject to Seller's right of stoppage in transit, delivery of the Goods
to the carrier constitute delivery to Buyer, and title and risk of loss will
thereupon pass to Buyer. Buyer must request in writing that packages/products
be insured prior to shipment. Buyer will pay all freight, handling, special
handling, delivery and insurance costs for the shipment of Products. Seller may
refuse or delay any shipment if Buyer fails to pay promptly any payments due to
Seller. Seller may, at its discretion, deliver Products in one single shipment
or multiple. Delivery dates provided by Seller are estimates only and Seller is
not liable for failure to deliver on such dates.
(e)
Payment. For the
Products specified in the Order, Buyer will pay Seller the total amount as
indicated in the Price Hold email in addition to any shipping, special
packaging, permits, certificates, customs declarations, testing costs, or any
other items necessary for order fulfillment that may not be identified in the
Price Lock email. Unless otherwise expressly stated on Seller’s quotation or
invoice, Buyer is responsible for any and all additional fees and costs as set
forth herein. Parties understand that prices specified by Seller only apply for
the period specified in Seller’s quotation. If no period is specified in the
Price Hold email, parties understand prices apply for no more than (24) hours
from the time the Agent has send them to Buyer and may be subject to subsequent
adjustment as described in Section 3(b) above. Buyer understands and agrees
that, for each type of product (date/lot/week code) identified in the Order,
Buyer will be charged for one (1) unit that shall be subject to destructive
testing by Seller as part of its quality control and inspection process.
Parties understand that payment is due on or before the date indicated on
Seller’s invoice. If Buyer fails to make payment in full within that time,
Seller may charge a late payment fee or interest on those unpaid balances equal
to the maximum amount or interest rate, respectively, allowed by Florida law.
At any time, in Seller’s sole discretion, Seller may change the terms of Buyer 's
credit, require financial data from Buyer for verification of their
creditworthiness, require a bank guarantee or other security, or suspend any
outstanding orders from the Buyer. Buyer understands that Credit Card payments
will incur a 3.5% credit card processing fee for all payments made by credit
card.
(f)
Buyer Support.
Buyer must contact the designated Seller's Agent to initiate returns,
cancellations, replacements and for guidance on warranty and repair procedures.
Parties agree that any technical advice offered or given in connection with the
use of the Products is an accommodation to Buyer without charge. Seller is not
liable or responsible whatsoever for the content or use of the advice, and Buyer
expressly releases Seller from any such claims. Without Seller’s express
written consent, Buyer may not use, duplicate, or disclose any technical data
delivered by Seller or disclosed by Seller to Buyer for any purpose other than
for installation, operation, or maintenance of the Goods purchased by Buyer from
Seller.
(g)
Contact of Parties. Parties will keep each other informed and updated about any changes,
developments, cancellations, returns, exchanges and extensions and any relevant
feedback from the third-party purchasers without undue delay.
4. Express
Warranty in Lieu of Implied Warranties—Repair and Replacement. Seller warrants that the products it sells will, when delivered, or when
installed, if the Order provides for installation by Seller, be free of defects
in workmanship or material. If any failure to conform to this warranty becomes
apparent during a period of sixty (60) days after date of delivery, Seller
shall, upon prompt, written notice (the earlier thirty (30) days after Buyer’s
discovery of the issue or sixty (60) days after delivery) and compliance by the
Buyer with such instructions as Seller shall give with respect to proof and
identification of defect and the method the return of defective products or
parts, F.O.B.In the event functional inventory repair or replacement is not
available within a reasonable time period in the sole discretion of Seller,
Seller will issue a credit to the Buyer’s customer account for the value of the
defective items. Correction in the manner provided above shall constitute a
fulfillment of all liabilities of Seller with respect to the quality of the
products. The remedy set forth in this paragraph shall be Buyer’s sole and
exclusive remedy of the Buyer under this Agreement.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES
OF QUALITY, WHETHER WRITTEN, ORAL OR IMPLIED (INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR PURPOSE). NO WARRANTY IS PROVIDED AS TO
COSMETIC, AESTHETIC, OR SUPERFICIAL ISSUES—ANY WARRANTY EXPRESSLY SET FORTH IN
THIS AGREEMENT IS LIMITED SOLELY TO PRODUCT FUNCTION.
5. Limitation of Liability.
IN NO EVENT SHALL SELLER BE LIABLE
UNDER THIS AGREEMENT TO THE BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT,
STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED
TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, LOSS OF DATA, INTERRUPTION OF
SERVICE OR SHUTDOWN OR SLOWDOWN COSTS, INCONVENIENCE, LOSS BUSINESS
OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR OTHER ECONOMIC LOSS,
REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT,
STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. THE LIABILITY OF SELLER,
AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND
WHATSOEVER UNDER THIS AGREEMENT, REGARDLESS OF LEGAL THEORY, SHALL NOT BE
GREATER THAN THE ACTUAL PURCHASE PRICE OF THOSE GOODS WITH RESPECT TO WHICH
SUCH CLAIM IS MADE.
6. Waiver of Warranty and Right to Return, Acceptance of Order As-Is Under
Certain Exceptions. In the event Buyer, in its sole
discretion, agrees to accept delivery of items that Seller has determined to be
defective or otherwise fail inspection, or in the event that Buyer wishes to
waive Seller’s inspection of the product, Buyer agrees to take possession of
all such product AS IS with no warranty or right to return,
repair, replacement, refund, credit, or any other post-sale remedy to Buyer
concerning the product Order received as is.
7. Non-Solicitation of/Non-Interference with Vendors and Employees. Parties
understand that Confidential Information of Seller incidentally disclosed to
Seller under this Agreement is property of the Seller, must only be used in the
furtherance of this Agreement and for benefit of the Seller and not for any other
purpose, and Buyer is not authorized to disclose or permit disclosure of the
information to third parties. Such Confidential Information includes but is not
limited to: all information relating to the Seller's products, business and
operations including, but not limited to, business plans, financial records,
customers, suppliers, vendors, products, product samples, costs, sources,
strategies, inventions, procedures, sales aids or literature, sales data, technical
advice or knowledge, contractual agreements, pricing, price lists, product
white paper, product specifications, trade secrets, procedures, distribution
methods, inventories, marketing strategies and interests, algorithms, data,
designs, drawings, work sheets, blueprints, concepts, manufacturing processes,
computer programs and systems, and know-how or other intellectual property of Seller
and/or any of its affiliates that may be at any time furnished, gleaned
directly or incidentally, communicated to, accessed by, or otherwise delivered
to Seller hereunder, whether in oral, tangible, electronic or other form, and
whether or not labeled or otherwise described to Seller as being confidential
in nature, and all other non-public information provided to, accessed by, or
gleaned by Buyer pursuant to the performance of this Agreement, including
without limitation, financial, technical, and business information of the Seller.
Buyer may not, directly or indirectly, solicit or attempt to solicit any
business from any of the Seller’s Agents or Vendors until the expiration of the
sixty (60) months after the termination of the relationship between Parties,
regardless of the reason for the termination. During that period, Buyer may not,
directly or indirectly, on its own behalf or on behalf of or in conjunction
with any person or legal entity, recruit, solicit, or induce, or attempt to
recruit, solicit, or induce, any Agent or Vendor of the Seller to terminate
their contractual or otherwise diminish their relationship with Seller.
8.
Indemnification. Buyer acknowledges that Seller acts
solely as a distributor of electronic products and that the Buyer is
exclusively responsible for detailing the specification of all products, for ascertaining
the use to which they will be put, and for determining their ability to
function for that purpose. Buyer further acknowledges that products are not
authorized for use in critical safety or other applications where a failure may
reasonably be expected to result in personal injury, loss of life, or serious
property damage. If Buyer uses or sells the products for use in any such
applications or fails to comply with the manufacturer's product specifications,
Buyer acknowledges that such use, sale, or non-compliance is at Buyer's sole
risk, and Buyer releases Seller from any claims stemming from such use. Buyer
will indemnify Seller and its employees, officers, agents, affiliates,
subsidiaries, joint venturers, partners, and contractors against any and all liabilities,
fines, fees, expenses, costs, attorney fees, damages, claims, or other losses relating
to claim or actions that result from or arise this Agreement or in connection
with products supplied by Seller and used in the Buyer’s product or in
combination with other products unless it is adjudicated by a court of
competent jurisdiction that such claim was the result of Seller’s gross
negligence or intentional misconduct. Buyer will further indemnify Seller
against all liabilities for infringement of third-party intellectual property
rights arising from Seller’s compliance with the Buyer's specific requirements
regarding design or specification for the Products or arising from the use of
the Products in combination with other products. Buyer releases Seller from all
responsibility for delays of the carrier, loss or damage to Products in transit,
or any loss after shipment has been received by the carrier in good order.
9.
Confidentiality. Parties will maintain all information
related to the negotiation, planning, financing and performance of obligation
under this Agreement, including all categories Confidential Information of
Seller previously described, confidential. This information includes trade information,
financial data, personnel information and sensitive data, and the terms of compensation
as specified in this Agreement. Parties will only review, examine, inspect or
obtain such information in extent necessary to enforce this Agreement and for
purposes consistent with it and to otherwise hold all information confidential
and secret pursuant to the terms of this Agreement. Parties will hold all
confidential or proprietary information, policies, trade information or trade
secrets in confidence and agree to use it only for the purpose of Agreement,
and not to disclose to any third party unless expressly authorized to do so, in
writing, by all Parties, prior to disclosure. Parties intend this Paragraph to
stay in force after termination and fulfillment of Agreement.
Buyer will
also maintain access to any of Seller’s vendors accounts confidential as well
as details of any relationships, contracts and transactions shared internally
by Seller. Nothing in this provision prohibits Buyer from providing any and all
information to a governmental agency or law enforcement pursuant to a
legally-binding request—in such event Buyer agrees to provide prompt notice to
Seller in writing of the request within five (5) days of receiving the request
to the extent legally permissible and to reasonably cooperate with Seller in
taking lawful measures to protect Seller’s confidential information from
disclosure to third parties.
10. Export Control Statements. Buyer warrants that all products will
be used in compliance with U.S. laws or the laws of the jurisdiction(s)
applicable to the transaction. Buyer warrants that Buyer will not permit any
products to be subsequently used nor shipped in violation of U.S. laws,
including U.S. export laws and U.S. hazardous materials laws. Buyer warrants
that products will not be subsequently used or transferred in violation of the laws
of any jurisdiction through which or into which the products are shipped. Buyer
assumes full responsibility for compliance with applicable export laws and
hazardous materials laws prior to any export or shipment from or within the
United States of products received from Seller and agrees to hold harmless and
indemnify Seller from any damages, liabilities, costs and expenses of any kind,
including attorney’s fees, relating to any violations of laws or regulation committed
by Buyer or its agents, employees, affiliates, subsidiaries, representatives,
partners, joint venturers, successors, or related entities. Buyer agrees to pay
any taxes, tariffs or duties, associated with the import or export of products
purchased from Seller in full, without offset.
11. Non-Disparagement. Buyer agrees that they will not,
either on their own account or directly or indirectly in conjunction with or on
behalf of any other person or entity, disparage or otherwise speak or write
negatively about Seller or its employees, officers, agents, affiliates, subsidiaries,
joint venturers, partners, and contractors.
12. Termination. This Agreement shall be terminated:
Upon the
expiration of thirty (30) days after either party hereto shall give written
notice to the other party of its intention to terminate. Alternatively, this
Agreement may be terminated at the option of either party hereto in the event
that the other party:
1. breaches
any obligation hereunder and fails to remedy such breach within the fifteen
(15) calendar days after being given written notice to that effect; or
2. makes an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts as they become due, or shall file any petition or
answer seeking for itself any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation, or shall file any answer admitting or not
contesting the material allegations of a petition filed against such party in
any such proceeding, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of such party or of all or
any substantial part of the properties of such party, or such party or its
directors or majority stockholders shall take any action looking to the
dissolution or liquidation of such party;
Either party
may also terminate this Agreement in the event that a law, decree or regulation
is enacted or adopted by any governmental authority which would impair or
restrict in any manner whatsoever the right of such party to terminate this
Agreement; provided, however, that such termination shall not take effect until
the day prior to the effective date of the aforementioned law, decree or
regulation.
A termination
elected by Buyer under this Section shall not relieve Buyer of its surviving
obligations set forth under Section 16, including but not limited to Buyer’s
payment obligations regarding any Order(s) in process.
13. Governing Law; Alternative Dispute
Resolution; Fees and Costs.
Except as otherwise provided for herein, this Agreement and all rights and
obligations of the parties, shall be governed by the Uniform Commercial Code as
enacted and in force in the State of Florida. The parties hereby agree that any
action arising out of this Agreement must be preceded by the good-faith attempt
to successfully mediate the case in accordance with USA&M mediation
procedures that shall not impasse until the parties have participated in at
least ten (10) hours of mediation. In the event of the impasse, the parties
agree that they, in lieu of utilizing the state or federal court systems for
litigation, will resort to binding arbitration in accordance with USA&M
procedures as the sole means of dispute resolution after an unsuccessful
mediation attempt. The arbitration shall be administered by the USA&M
office for Jacksonville, FL or another similarly situated institution of
Seller’s choosing within the State of Florida. The decision of the arbitrator
will be final, non-appealable, enforceable, and binding on the parties.
If
either party to this Agreement institutes a proceeding to enforce any provision
of the Agreement, or for damages by reason of any breach of this Agreement or
otherwise arising out of this Agreement, then the prevailing party will be entitled
to recover from the other party all associated costs, including, without
limitation, litigation costs and such amounts as the court or arbitrator may
award as reasonable attorney’s fees and expenses for services rendered to the
prevailing party during the proceedings.
14. Severability.
In the event that any term of this
Agreement is deemed to be invalid, illegal, or otherwise unenforceable (1) the
parties shall use all reasonable efforts to negotiate in good faith to amend
the term to eliminate any such invalidity, illegality, or unenforceability to
the extent practically possible, taking into full account their original intent
when entering into this Agreement in the first instance, and (2) the remaining
provisions hereof shall continue in full force and effect.
15. Force Majeure and Excuses for Non-Performance. Seller shall
not be held liable for failure to fulfill its obligations hereunder if such
failure is due to a Force Majeure Event. A "Force Majeure Event"
means, but is not limited to, an act of war; domestic and/or international
terrorism; civil riots or rebellions; quarantines, embargoes and other similar
unusual governmental actions; pandemics, epidemics, local disease outbreaks,
public health emergencies; or extraordinary elements of nature or acts of God;
provided that such Force Majeure Event is beyond the excused Party's reasonable
control, occurs without the excused Party's fault or negligence, is not caused
directly or indirectly by the excused Party and could not have been prevented
or avoided by the excused Party's reasonable diligence. In such Force Majeure
event, Seller may elect to terminate this Agreement or an Order at its sole
election without penalty; alternatively, the Parties will agree to extend the
time for Seller’s performance by a period equal to the delay caused by the
Force Majeure event.
16. Assignment. Neither party may assign or otherwise transfer this Agreement, in
whole or in part, without the prior written consent of the other party in each
instance, such consent not to be unreasonably withheld, conditioned, or
delayed. Notwithstanding the foregoing, Seller shall be free to assign this
Agreement in its entirety to any (1) affiliate of Seller or (2) successor
entity of Seller that assumes all, or a majority of, such party’s assets in
writing. Any assignment in violation of this clause shall be null and void.
17.
Survival. Provisions of this Agreement concerning payments, confidentiality,
non-disparagement & non-solicitation, indemnification, governing law,
mediation & arbitration, and limitations on Seller’s warranty and liability
shall survive any termination or expiration of this Agreement.
18. Entire Agreement; Modification; Waiver.
This Agreement is the entire agreement
between the Parties with respect to the subject matter hereof and supersedes
any prior agreement or communications between the parties, whether written,
oral, electronic or otherwise. No change or modification to this Agreement
shall be valid unless in writing and signed by an authorized representative of
the parties. No waiver of any term or right in this Agreement shall be
effective unless in writing, signed by an authorized representative of the
waiving party. The failure of either party to enforce any provision of this
Agreement shall not be construed as a waiver or modification of such provision,
or impairment of its right to enforce such provision or any other provision of
this Agreement thereafter.
19. Acceptance by Buyer.
The terms and conditions of this Agreement are incorporated by
reference into each and every Order of Buyer, and Buyer’s act of placing an
Order to Seller shall constitute acceptance by Buyer of these terms. Buyer’s
representation in this Section are a material inducement by Buyer to Seller
regarding Seller’s acceptance and processing of Orders.