IN CONSIDERATION OF TALEMA GROUP LLC agreeing to sell its products, every purchaser of such products (hereafter "Buyer") specifically agrees to be bound by the following terms and conditions of sale ("Terms and Conditions"), which are specifically incorporated into and made a part of any order placed by Buyer, and are intended to be binding upon the parties, their respective successors and assigns.
1.1. "Agreement" or "Contract" or shall mean the total legal obligation which results from the agreement of TALEMA to sell the Product to Buyer, including without limitation, these "Terms and Conditions of Sale" and any other written instrument executed by TALEMA and Buyer in conjunction or associated with the sale of Product by TALEMA to Buyer.
1.2. "Buyer" shall mean the entity, individual, organization or person agreeing to purchase Product from TALEMA pursuant to an Agreement or Contract.
1.3. "Product" means, without limitation, every tangible part, magnetic device, transformer, good, component, assembly or other item sold by TALEMA to Buyer, regardless of whether supplied by TALEMA off the shelf or custom manufactured by TALEMA to Buyer's specifications.
1.4. "TALEMA" means Talema Group, LLC, a Missouri limited liability company, together with any and all of its subsidiaries and affiliated companies, including, without limitation, Talema Elekronik GmbH, Nuvotem Teoranta, NT Magnetics S.R.O, and Talema India. Quotations and Contracts made directly between any Talema Group subsidiary and the buyer are bound by these terms and conditions.
2. Offer and Acceptance. TALEMA offers to sell and deliver to Buyer Product in accordance with the terms and conditions set forth in this document. Acceptance of TALEMA's offer to sell is expressly limited to and governed by these Terms and Conditions. TALEMA explicitly rejects any additional or different terms proposed by Buyer, including those contained in Buyer's purchase order, unless TALEMA shall have otherwise clearly agreed in a separate, signed writing to such additional or different terms and conditions. Absent such separate, written agreement, any terms and conditions in conflict with this document, regardless of when made or how presented, shall have no force and effect.
3. Prices. The price of product is included in a written price commitment given by TALEMA to Buyer. Unless cost of delivery etc. are specifically included in the quoted price, the Buyer shall reimburse TALEMA for insurance and transportation and shall be responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required.
4. Delayed Orders. For any order of Product, which provides for delivery within 90 days from the date of the order, TALEMA's written price commitment given by TALEMA to Buyer shall apply. If the delivery is delayed beyond 90 days, TALEMA shall notify Buyer in writing of the anticipated price increase, in which case, the Buyer shall have the right to renegotiate the price of any Product not yet manufactured. If an agreement is not reached within ten (10) days of the date written request for renegotiation is delivered, either party shall have the right to terminate any unmanufactured Product order without further liability to either party.
5. Shipment and Delivery. Shipments from TALEMA facilities shall be made F.O.B. from TALEMA's shipping dock. Shipments from TALEMA facilities outside the U.S. shall be delivered F.C.A. (applying Intercom 2010 terms) using Buyer's designated carrier. Liability for loss or damage of Product sold shall pass to Buyer upon TALEMA's delivery to Buyer's designated carrier. Any subsequent loss or damage following delivery to the Buyer shall not relieve Buyer from its obligations to TALEMA. TALEMA may deliver Product to Buyer in more than one shipment to expedite delivery unless Buyer specifically requests delivery by a single shipment. Unless a separate, written delivery guarantee is requested by Buyer and accepted by TALEMA, delivery dates are estimates and TALEMA shall not be liable for any damages, losses or expenses incurred for failure to meet estimated delivery dates. In no event shall TALEMA be responsible for delays in shipments resulting from events or acts force majeure.
6. Title. Title to the Product shall pass to the Buyer upon payment for the product and shipping in full. Title in the goods shall pass upon payment of the full Contract price.
6.1. Notwithstanding any credit terms given for the payment there of, ownership in all products supplied will not pass to the Buyer but shall remain with TALEMA until full payment has been received for all sums due to TALEMA by the Buyer.
6.2. Until such payment the Buyer shall retain all products supplied on behalf of TALEMA and shall, if required, store all products in such a way as to ensure that the same are clearly identifiable as the property of TALEMA.
6.3. In the case of default, TALEMA or its authorized agent may, without prejudice to any other right or claim which it may have, reserve the right to enter upon the premises where the products are located and take possession of any, remove the same and may dispose of any such products at its discretion without being liable to account to the buyer for the proceeds of such disposal.
6.4. Buyer shall, at the request of TALEMA, execute any and all documents or instruments necessary to allow TALEMA to obtain and perfect a security interest in any and all products for which payment has not been made in full.
7. Payment Terms. If TALEMA extends credit to Buyer, payment terms shall be net thirty (30) days after TALEMA's invoice. TALEMA may change or withdraw credit amounts or payment terms at any time for any reason. If Product is delivered in installments, Buyer shall pay for each installment in accordance with the foregoing payment terms. If Buyer fails to make any payment when due, TALEMA may suspend or cancel performance under any agreements for which TALEMA has extended credit to Buyer. TALEMA's suspension of performance may result in manufacturing and delivery delays. If, in TALEMA's judgment, Buyer's financial condition does not justify the payment terms specified herein, then TALEMA may terminate this purchase order unless Buyer immediately pays for all Product previously delivered and pays in advance for all Product to be delivered in the future. Termination in accordance with this clause shall not affect TALEMA's right to pursue any other available remedies for non-payment of prior Product orders or deliveries.
8. Taxes. Prices do not include applicable taxes, governmental fee or duties. Buyer is solely responsible for paying all applicable taxes, fees and duties. TALEMA will add sales taxes to the sales price where required by applicable law, and Buyer will pay such taxes unless Buyer provides TALEMA with a duly executed sales tax exemption certificate. If Buyer is required by law to withhold any amount of tax from its payment to TALEMA, Buyer shall promptly pay such amount to the appropriate tax authority and take all reasonable steps to minimize such withholding tax.
9. Contingencies. TALEMA shall not be in breach of its obligations to Buyer and shall not be liable for any non-performance or delay in performance if such non-performance or delay is due to force majeure or other circumstances beyond TALEMA's reasonable control, including but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, fire, flood, earthquake, explosion, terrorist act or otherwise. In the event of a shortage of Product generally, TALEMA may allocate, at its sole discretion, Product production and deliveries in order to equitably allocate orders and deliveries to all of its customers.
10. Warranties and Related Remedies.
10.1. Subject to provisions below, TALEMA warrants that every Product will conform either to TALEMA's published specifications for such Product, if any, or other mutually agreed upon, written specifications signed by an authorized TALEMA representative. Notwithstanding the foregoing, TALEMA shall not be liable for any defects that are caused by neglect, misuse or mistreatment by an entity other than TALEMA, including improper installation or testing, or for any Product that has been altered or modified in any way by an entity other than TALEMA. In addition, TALEMA shall not be liable for any defects that result from Buyer's design, specifications or instructions. Testing and other quality control techniques are used to the extent TALEMA deems necessary to assure a high quality product
10.2. If a Product fails to conform to the warranty set forth above, TALEMA's sole liability and Buyer's sole remedy shall be, at the sole option and discretion of TALEMA, to repair or replace the Product, or credit Buyer's account for the same. TALEMA's liability shall be limited to any Product that is returned within sixty (60) days of shipping to the address designated by TALEMA and thereafter determined by TALEMA not to conform to such warranty. If TALEMA elects to repair or replace such Product, TALEMA shall have a reasonable time to repair or provide replacements.
10.3. Except as set forth above, products are provided "as is" and "with all faults." TALEMA disclaims any and all other warranties, express or implied, regarding such products, including but not limited to any implied warranties of merchantability or fitness for a particular purpose. Buyer understands and agrees that there are no warranties which extend beyond those expressly described in these terms and conditions.
10.4. Buyer agrees that prior to using or distributing any systems that include Products, Buyer will thoroughly test such systems and the functionality of the Products as used in such systems. TALEMA may provide technical, applications or design advice, quality characterization, reliability data or other services. Buyer agrees that providing these services shall not expand or otherwise alter TALEMA's warranties, as set forth above, and no additional obligations or liabilities shall arise from TALEMA providing such services.
10.5. Buyer and TALEMA agree that any action brought by Buyer for an alleged breach of any warranty set forth above, shall be commenced within one year following the date such alleged breach shall have occurred, and that any such action shall thereafter be barred.
10.6. Buyer understands and agrees that the liability limitations set forth in this Section 10 are essential and material elements of TALEMA'S agreement to sell to buyer. Buyer hereby agrees to and accepts any and all of said liability limitations. Buyer agrees and understands that buyer's acceptance of said liability limitations constitutes an essential and material term of TALEMA'S agreement to sell to buyer, upon which TALEMA has relied, and without which TALEMA would not agree to sell the product to buyer.
11. Safety-Critical, Military and Automotive Applications.
11.1 TALEMA Products are not authorized for use in safety-critical applications (such as life support) where a failure of the Product might reasonably be expected to cause severe personal injury or death, unless and authorized TALEMA representative shall have executed an agreement specifically governing such use. Talema Products intended for use by the Buyer in safety-critical applications (such as life support), shall be fully tested by the Buyer and determination of suitability for use in safety-critical applications shall be Buyer's exclusive responsibility (see 10.4) . Buyer shall fully indemnify Talema against any damages arising out of the use of Products in such safety critical applications.
11.2 Buyer shall fully indemnify TALEMA against any damages arising out of the unauthorized use of Products in such safety-critical applications. TALEMA Products are not authorized for use in safety-critical applications (such as life support) where a failure of the Product might reasonably be expected to cause severe personal injury or death, unless an authorized TALEMA representative shall have executed a written agreement specifically governing such use. Talema Products intended for use by the Buyer in safety-critical applications (such as life support), shall be fully tested by the Buyer and determination of suitability for use in safety-critical applications shall be Buyer's exclusive responsibility (see 11.4). Buyer shall fully indemnify Talema against any damages arising out of the use of Products in such safety critical applications.
11.3 TALEMA Products are neither designed nor intended for use in military or aerospace applications or environments unless the Products are specifically designated by TALEMA as military-grade. Only Products designated by TALEMA as military-grade meet military specifications. Buyer acknowledges and agrees that any such use of Products which TALEMA has not designated as military-grade is solely at the Buyer's risk, and that Buyer is solely responsible for compliance with all legal and regulatory requirements in connection with such use.
11.4 Unless the specific TALEMA Products are designated and certified by TALEMA as compliant with ISO/TS 16949, Products are neither designed nor intended for use in automotive applications or environments. In any case of such use of non-designated products, TALEMA will not be responsible for any failure to meet ISO/TS16949 requirements.
11.5 Buyer represents that it has all necessary expertise in the safety and regulatory ramifications of its applications, and Buyer acknowledges and agrees that it is solely responsible for compliance with all legal, regulatory and safety-related requirements concerning its products and any use of TALEMA Products in Buyer's applications, notwithstanding any applications-related information or support that may be provided by TALEMA.
11.6 Buyer understands and agrees that the liability limitations set forth in this Section 11 are essential and material elements of TALEMA'S agreement to sell to buyer. Buyer hereby agrees to and accepts any and all of said liability limitations. Buyer agrees and understands that buyer's acceptance of said liability limitations constitutes an essential and material term of TALEMA'S agreement to sell to buyer, upon which TALEMA has relied, and without which TALEMA would not agree to sell the product to buyer.
12. Intellectual Property Indemnification
12.1 Subject to the requirements and provisions set forth below, TALEMA will pay any damages, liabilities or costs (excluding consequential and exemplary damages) finally awarded against Buyer, or agreed to by TALEMA as settlement or compromise, and will defend Buyer against any claim, suit or proceeding brought against Buyer, insofar as such claim, suit or proceeding is based on an allegation that Products manufactured and supplied by TALEMA to Buyer directly infringe any United States, Canadian, Japanese or European Union member country patent, copyright, or trade secret. TALEMA must, however, be (i) promptly informed and furnished a copy of such claim, suit, or proceeding, but, in any event, such notice shall be provided to TALEMA not less than twenty (20) days from the date Buyer becomes aware of such claim, suit or proceeding, (ii) given all evidence in Buyer's possession, custody or control, as soon as the same is available to or possessed by buyer, or comes under Buyer's control, (iii) given reasonable assistance in and sole control of the defense thereof, including without limitation, all negotiations for its settlement or compromise. Buyer hereby agrees to make available to TALEMA the benefit of any defense available to Buyer to any infringement allegation hereunder, including, but not limited to, any license or option to license or sub-license any intellectual property right that is the subject of such infringement allegation. However, TALEMA shall not be liable for any violations of intellectual property rights that result from Buyer's design, specifications or instructions (see 12.3).
12.2 In the event of an allegation for which TALEMA is obligated to defend Buyer pursuant to this Section, TALEMA may, but shall not be obligated to (i) obtain a license that allows Buyer to continue the use of the Products, (ii) replace or modify the Products so as to be non-infringing, but in a manner that does not materially affect the functionality of the Products, or (iii) if neither (i) nor (ii) is available to TALEMA at a commercially reasonable expense, then TALEMA may refund to Buyer the purchase price and the transportation costs of such Products and prospectively cease to indemnify Buyer with regard to such Products without being in breach of these Terms and Conditions. If TALEMA elects to provide either of the options set forth in clauses (i) and (ii) above, TALEMA's indemnity obligation pursuant to this Section shall be entirely fulfilled as to that individual claim, except for any damages, liabilities, or costs (excluding consequential and exemplary damages) incurred by Buyer prior to TALEMA taking such action and assuming that Buyer has fully complied with Buyer's obligations as set forth in this Section. If TALEMA elects the option set forth in clause (iii) above, TALEMA's indemnity obligation under this contract shall be entirely fulfilled, regardless of any additional claims. Also, if TALEMA elects the option set forth in clause (iii) above, Buyer shall return to TALEMA any and all products remaining in Buyer's possession, custody or control.
12.3 TALEMA shall have no liability for any costs, losses or damages resulting from Buyer's willful acts, or any settlement or compromise incurred or made by Buyer without TALEMA's prior written consent, or for any such costs, losses or damages resulting from Buyer's failure to fully comply with Buyer's obligations as set forth in this Section 12. TALEMA shall have no obligation to defend and no liability for any costs, losses or damages, to the extent that an infringement allegation is based upon: (i) Buyer's use of the Products in combination with any other product or equipment; (ii) Buyer's use of the Products in a manner or for an application other than for which they were designed or intended, regardless of whether TALEMA was aware of or had been notified of such use; (iii) Buyer's use of the Products in a manufacturing or other process; (iv) TALEMA'S compliance with specifications provided by Buyer to TALEMA; (v) Buyer's modifications to the Products; (vi) TALEMA's compliance with Buyer's particular design, instructions or specifications; or (vii) TALEMA's compliance with any industry or proprietary standard or Buyer's use of the Products to enable implementation of any industry or proprietary standard (such claims - i.e. those set forth in (i) through (vii) above - are individually and collectively referred to herein as "Other Claims").
12.4 Buyer shall indemnify and hold TALEMA harmless against any damages, liabilities or costs finally awarded against TALEMA or agreed to by Buyer as settlement or compromise, and will defend any claim, suit or proceeding brought against TALEMA insofar as such claim, suit or proceeding is based on an allegation arising from Other Claims.
12.5 The foregoing states the sole liability of the parties for intellectual property rights infringement and is in lieu of all warranties, express, implied or statutory, in regard thereto. Buyer understands and agrees that the foregoing intellectual property indemnification terms set forth in this Section 12 are essential and material elements of TALEMA'S agreement to sell to buyer. Buyer hereby agrees to and accepts any and all of said intellectual property indemnification terms. Buyer agrees and understands that buyer's acceptance of said intellectual property indemnification terms constitutes an essential and material term of TALEMA'S agreement to sell to buyer, upon which TALEMA has relied, and without which TALEMA would not agree to sell the product to buyer.
13. Additional Liability Limitations and Damages Disclaimers. In addition to any other limitation on the liability of TALEMA or any other disclaimer of liability made by TALEMA and agreed to by Buyer, the following additional limitations and damages disclaimers shall apply to the Agreement and Contract by and between TALEMA and Buyer (the "Additional Liability Limitations and Damages Disclaimers").
13.1 in no event shall TALEMA be liable for any special, collateral, indirect, punitive, incidental, consequential, or exemplary damages in connection with or arising out of these terms and conditions or the use of the products provided hereunder, regardless of whether TALEMA has been advised of the possibility of such damages. Excluded damages include, but are not limited to, cost of removal or reinstallation, ancillary costs to the procurement of substitute goods or services, retesting, labor costs, loss of goodwill, loss of profits, loss of savings, loss of use, or business interruption. No claim, suit or action shall be brought against TALEMA more than one year after the related cause of action has occurred.
13.2 In no event shall TALEMA'S aggregate liability from any warranty, indemnity, or other obligation arising out of or in connection with these terms and conditions, or any use of any TALEMA product provided hereunder, exceed the total amount paid to TALEMA for the particular products sold with respect to which losses or damages are claimed. The existence of more than one claim against the particular products sold to buyer shall not enlarge or extend this limit.
13.3 Buyer understands and agrees that the foregoing additional liability limitations and damages disclaimers are essential and material elements of TALEMA'S agreement to sell product to buyer. Buyer hereby agrees to and accepts any and all of said additional liability limitations and damages disclaimers. Buyer agrees and understands that buyer's acceptance of said additional liability limitations and damages disclaimers constitutes an essential and material term of TALEMA'S agreement to sell to buyer, upon which TALEMA has relied, and without which TALEMA would not agree to sell the product to buyer.
13.4 Buyer understands and agrees that there are no warranties which extend beyond those expressly described in these terms and conditions.
13.5 Talema and buyer agree that any and all of the warranties expressed by TALEMA, and any and all of the limitations on or disclaimers of any such warranty or of TALEMA'S liability, as described in these terms and conditions and as agreed upon by TALEMA and buyer, are made, accepted and agreed upon only following the parties' respective good faith efforts, hereby acknowledged by each of the parties, are reasonable, and are the result of each party's independent exercise of all diligence deemed due by a respective party. Such good faith efforts, reasonableness, and each party's independent exercise of due diligence, is hereby acknowledged by TALEMA and buyer with respect to such warranties and such limitations on or disclaimers of any such warranty or of TALEMA'S liability.
14. Cancellations and Rescheduling. No cancellation or rescheduling of Product order by Buyer within thirty (30) days of TALEMA's estimated shipping date for such product will be accepted. Any cancellation or rescheduling of a Product order by Buyer more than thirty (30), but less than ninety (90), days before TALEMA's estimated shipping date for such Product may result in a charge to Buyer. Such charge, if any, shall be reasonably determined by TALEMA based on factors such as whether the Product was manufactured specifically for Buyer, TALEMA's ability to change its production schedule within the period of notice provided by Buyer, whether TALEMA acquired or allocated particular supplies or equipment to meet Buyer's order and such other factors as reasonably determined by TALEMA. Orders may be cancelled or rescheduled by Buyer more than ninety (90) days before TALEMA's estimated shipping date for such Product at Buyer's discretion and without charge.
15. Non-waiver of Default. In the event of any default by Buyer, TALEMA may decline to make further shipments. If TALEMA elects to continue to make shipments, TALEMA's action shall not constitute a waiver of any such default or affect TALEMA's legal remedies for any such default.
16. Governing Law; Uniform Electronic Transactions Act. Unless Buyer and TALEMA agree in writing to the contrary, these Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of Missouri, without reference to conflict-of-laws principles. Such governing law shall expressly include those provisions of Chapter 432 RSMo relative to the Uniform Electronic Transactions Act (currently codified at Section 432.200 to 432.295 RSMo). If for any reason a court of competent jurisdiction finds any provision of these Terms and Conditions to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of the terms will continue in full force and effect. These terms shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods unless otherwise required by law. Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to this contract lies within courts located in the State of Missouri and consents to venue in Phelps County, Missouri. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and TALEMA may seek injunctive relief in any United States or foreign court.
17. U.S. Government Contracts. If the products are to be used in a U.S. Government contract or subcontract, those mandatory clauses, except as noted below, of the applicable U.S. Government procurement regulations shall be incorporated by reference. Unless otherwise agreed upon in writing, certified cost or pricing data will not be provided and Cost Accounting Standards, Defective Pricing, and Audit requirements will not apply.
18. Entire Agreement. These Terms and Conditions constitute the entire agreement between the parties relating to the sale of TALEMA Products and supersede all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No prior representations or statements relating to the sale of the Products made by any TALEMA representative, which are not stated herein, shall be binding on TALEMA. No addition to or modification of any provision of these Terms and Conditions shall be binding upon TALEMA unless made in writing and signed by a duly authorized TALEMA representative. No course of dealing or trade usage or course of performance shall be relevant to explain or supplement any term hereof. These Terms and Conditions shall prevail notwithstanding any different, conflicting or additional terms and conditions that may appear on any purchase order or other writing not expressly incorporated herein, including but not limited to data sheets, application notes and purchase order acknowledgements. The section headings contained in this contract are for reference purposes only and shall not affect in any way the meaning or interpretation of this contract.
19. No Assignment. The Buyer's rights and interests in and under the Contract, including without limitation, any rights derived through these Terms and Conditions, shall not be assigned by Buyer without the express written consent of TALEMA. Buyer agrees and acknowledges that the prohibition of its right of assignment set forth in this Section 19 is an essential and material element of TALEMA'S agreement to sell to Buyer. Buyer hereby agrees to and accepts said prohibition of its right of assignment and Buyer agrees and understands that Buyer's acceptance of said prohibition constitutes an essential and material term of TALEMA'S agreement to sell to Buyer, upon which TALEMA has relied, and without which TALEMA would not agree to sell the Product to Buyer.
20. No Third Party Benefit. The provisions of the Contract and Agreement by and between TALEMA and Buyer, as further expressed in these Terms and Conditions, shall not be deemed to create any third party benefit hereunder for anyone not a party to the agreement of TALEMA and Buyer for the sale and purchase, respectively, of the Product, nor shall such Contract and Agreement, including the provisions of these Terms and Conditions authorize anyone, not a party hereto, to maintain suit pursuant to the terms of such Contract and Agreement or the provisions of these Terms and Conditions.