Terms and Conditions
GENERAL TERMS & CONDITIONS OF SALE
In the terms and conditions below, SAGE Millimeter, Inc. shall be referred to as “SAGE,” the company purchasing goods and/or services under this sales order (“Sales Order”) shall be referred to as “Buyer,” and the goods and/or services described in and provided pursuant to this Sales Order are referred to as “Goods” or “Services,” as the case may be.
I. ACKNOWLEDGEMENT AND ACCEPTANCE. By purchasing and accepting delivery of products supplied by SAGE (“Products”), Buyer agrees to be bound by these terms and conditions (the “Terms and Conditions”). Terms or conditions contained in any order form or other document submitted by Buyer which are inconsistent with, or in addition to, these Terms and Conditions are rejected, objected to and shall be deemed void and of no force or effect.
II. CHANGES. Once submitted, any change(s) to Buyer’s order(s) may be made only with advance written approval of SAGE and such changes may require different terms, including a change in the price and/or time of delivery. Once submitted, Buyer may not cancel any order unless cancellation is expressly approved by SAGE in writing, which approval may be contingent on Buyer’s payment of SAGE’s costs or other charges, including, but not limited to, restocking fee, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on SAGE by its suppliers, and any other costs resulting from cancellation. A verified bill of costs issued by an officer or other authorized representative of SAGE shall be conclusive as to the amount of such costs. SAGE reserves the right to cancel any order, in whole or in part, upon Buyer’s breach of these terms and conditions or Buyer’s bankruptcy, insolvency, dissolution, receivership proceedings, or upon the occurrence of any event leading SAGE to reasonably question Buyer’s willingness or ability to perform.
III. DELIVERY. All sales will be delivered FCA SAGE's shipping point unless otherwise noted. If shipping and handling charges are quoted or invoiced, they will include charges in addition to actual freight costs. Delivery of Products to the carrier at SAGE's shipping point shall constitute delivery to Buyer, and Buyer shall bear all risk of loss or damage in transit. The general method of shipment for each order is listed on Sales Order. However, SAGE reserves the right, in its sole discretion, to determine the exact method of shipment for any particular shipment. SAGE reserves the right to make delivery in installments. All such installments are to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of Buyer’s obligations to accept remaining deliveries. Immediately upon Buyer’s receipt of any Products shipped hereunder, Buyer shall inspect the same and shall notify SAGE in writing of any claims for shortages, defects or damages and shall hold Products for SAGE's written instructions concerning disposition. If Buyer fail to so notify SAGE within sixty (60) days after the Products have been received by Buyer, such Products shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the Buyer.
A. Delays. Any specified delivery dates are estimates only and do not represent a promise by SAGE to deliver Products at a date certain. SAGE shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond SAGE's reasonable control, including, without limitation, unsuccessful reactions, act(s) of Buyer, embargo or other governmental act, regulation or request affecting the conduct of SAGE's business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices. If any such event continues for longer than 180 days, either party may terminate Buyer’s order and Buyer will pay SAGE for work performed prior to termination and all reasonable expenses incurred by SAGE as a result of termination. In the event of delays in delivery or performance caused by force majeure or by Buyer, the date of delivery or performance shall be extended by the period of time SAGE is actually delayed or as mutually agreed. If, for reasons other than the foregoing, SAGE should default or delay or not deliver Products, Buyer’s sole remedy against SAGE is an option to cancel Buyer’s purchase order, through prior written notice to SAGE.
B. Allocation of Products. If SAGE is unable for any reason to supply the total demands for Products specified in Buyer’s order, SAGE may allocate its viable supply among any or all customers (including SAGE’s distributors) on such basis as SAGE may deem fair and practical, without liability for any failure of performance which may result therefrom.
C. Returns of Conforming Goods. Returns of conforming goods are not accepted without the express authorization of SAGE. All returns must be accompanied by a Return Material Authorization (RMA) number. In the case that SAGE issues an RMA number for conforming goods, a restocking fee shall apply. See Section VII.A for policy regarding warranty returns.
IV. PAYMENT. Unless otherwise stated, payment in full shall be made within thirty (30) days of invoice date. SAGE reserves the right to require an advanced deposit of up to 100% of the purchase price at the time of order or any time prior to delivery as a condition of performance. If for any reason SAGE, in its sole and unfettered discretion, deems the ultimate collectability of the purchase price to be in doubt, SAGE may, without notice to Buyer, delay or postpone the delivery of the Products and may, at its option, change the terms of payment to payment in full or in part in advance, with respect to the entire undelivered balance of Products. In the event of default by Buyer in the payment of the purchase price or otherwise, SAGE, at its option, without prejudice to any other of SAGE's lawful remedies, may defer delivery, cancel Buyer’s order and any other order of Buyer, or sell any undelivered products on hand for the account of Buyer and apply such proceeds as a credit, without set-off or deduction of any kind, against the agreed upon purchase price, and Buyer agrees to pay the balance then due to SAGE on demand. Buyer agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by Buyer in any of the terms hereof. Invoices remaining unpaid after their due date will be subject to an interest charge of 1.5% per month (or the maximum rate allowed by law). Buyer must pay all costs of collection on unpaid amounts, including (without limitation) attorneys’ fees and related costs.
A. Credit Establishment. Buyer must cooperate fully with the credit establishment process by promptly providing bank and trade references at SAGE’s request. SAGE shall be the sole arbiter of payment terms and credit lines established on Buyer’s account. SAGE reserves the right to make adjustments to Buyer’s account during the business relationship based on Buyer’s performance.
B. Letter of Credit. Buyer may make payment by Commercial Letter of Credit with SAGE’s approval. The Letter of Credit must instruct full payment of invoice, which will include a 10% processing fee calculated based on the total order amount listed on the Sales Order Acknowledgment. The “total invoice value” includes but is not limited to any sales tax, shipping, insurance, or other processing fees. Instructions in the Letter of Credit must include an explicit order to acknowledge the processing fee. All charges accrued in this process shall be borne by Buyer. Buyer has the obligation to reimburse any fees or charges paid by SAGE with respect to any drawings under Letters of Credit.
C. Credit Card Surcharge. Buyer may make payment to SAGE by credit card. In light of the March 2015 federal court decision to enjoin the enforcement of California Civil Code section 1748.1, which prohibited credit card surcharges, payments by credit card are subject to a 4.0% surcharge calculated based on the total invoice value of Sales Order. Payments must be processed before shipment of Products. The “total invoice value” includes but is not limited to any sales tax, shipping, insurance, or other processing fees. SAGE works to protect the security of Buyer’s information during payment processing and does not retain any credit card information through third-party service providers or on file.
V. TAXES AND OTHER CHARGES. SAGE shall not be responsible for the payment of any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between, with the sole exception of any sales taxes invoiced and collected from Buyer by SAGE. All other such charges (if any) must be paid by Buyer separately and in addition to the prices quoted or invoiced. In the event SAGE is required to pay any such tax, fee or charge, Buyer shall reimburse SAGE therefore; or, in lieu of such payment, Buyer shall provide SAGE at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
VI. QUOTATIONS AND PRICING. Any quotation provided by SAGE is firm only if Buyer places a corresponding order within the time specified on the quote or, if no time period is mentioned, within thirty (30) days.
SAGE warrants that its products shall, at the time of delivery, conform to the description of such products as provided to Buyer by SAGE through SAGE's order acknowledgement for a period of twelve (12) months. This warranty is exclusive, and SAGE makes no other warranty, express or implied, including any warranty of merchantability, fitness for any particular purpose, or non-infringement of any third-party patent or intellectual property rights. SAGE's warranties made in connection with this sale shall not be effective if SAGE has determined, in its sole discretion, that buyer has misused the products in any manner, has failed to use the products in accordance with industry standards and practices, or has failed to use the products in accordance with instructions, if any, furnished by SAGE. SAGE's sole and exclusive liability and buyer’s exclusive remedy with respect to products proved to SAGE’s satisfaction to be defective or nonconforming shall be repair or replacement of such products without charge or refund of the purchase price, in SAGE's sole discretion, upon the return of such products in accordance with SAGE's instructions listed in Section VII.A. SAGE shall not in any event be liable for incidental, consequential or special damages of any kind resulting from any use or failure of the products, even if SAGE has been advised of the possibility of such damage including, without limitation, liability for loss of use, cost of capital, loss of work in progress, down time, loss of revenue or profits, failure to realize savings, any liability of buyer to a third party, or for any labor or any other expense, damage or loss occasioned by such product including, but not limited to, personal injury or property damage unless such personal injury or property damage is caused by SAGE’s gross negligence. The exclusion of such damages and/or claims shall be deemed independent of, and shall survive, any failure of the essential purpose of any limited remedy arising from the purchase and/or these terms and conditions. SAGE’s liability for damages hereunder shall in no case exceed the contract price for the specific products that give rise to the breach. These exclusions and limitations on damages shall apply regardless of how the loss or damage may be caused and against any theory of liability, whether based on contract, indemnity, warranty, tort, negligence, strict liability, or any other theory. All claims must be brought within one (1) year of shipment, regardless of their nature.
A. Warranty Returns Policy. SAGE will not accept or repair any returned Product without a Return Material Authorization (RMA) number. Buyer bears the responsibility to obtain an RMA number by contacting the SAGE customer service department, which has the sole and exclusive right to determine whether Products are covered under warranty. Products for repair must be delivered to SAGE freight prepaid within sixty (60) days of RMA number authorization. All items returned to SAGE are subject to an evaluation fee for the processing and testing required to confirm the nature of the defect, if any. The amount of the evaluation charge will be established when the RMA number is issued. This fee will be waived in all cases where testing confirms a problem covered by warranty. SAGE warrants that its products repaired under warranty shall, at the time of delivery, conform to the description of such products as provided to Buyer by SAGE through SAGE's order acknowledgement or later written agreement between SAGE and Buyer for another period of ninety (90) days. This ninety-day warranty applies only to the specific component repaired under warranty and excludes entire subassemblies.
B. Excluded Items. This warranty policy does not cover low-value products or accessories including but not limited to waveguide hardware, waveguide screws, and dowel pins. The warranty period of these products is limited to three (3) months from date of shipment or date of invoice, whichever is earlier. Certain items and quantities may not be returned for credit or under any circumstances. These items include, but are not limited to custom-designed products. “Custom-designed products” are products that are designed and manufactured in accordance with customer(s) provided specifications.
C. Out-of-Warranty Repairs. Product repairs that are deemed not to be covered by warranty policy will be considered “Out-of-Warranty” repairs. Out-of-Warranty repairs require a new purchase order from Buyer. Once SAGE receives the new request, Buyer will receive an estimate of cost and delivery time for the repair. After receipt of new estimate, Buyer must issue new purchase order within sixty (60) days. Otherwise, defective items shall be returned to Buyer at Buyer’s expense. SAGE also reserves the right to apply at its sole and final discretion an estimation fee for Products that are determined to be Out-of-Warranty.
VIII. RESALE, DISTRIBUTION. AND EXPORT PROHIBITED. As a condition of SAGE's performance, Buyer will cooperate with all procedures related to export compliance including but not limited to accurately completing end-user statements, collecting information about ultimate consignees, and performing due diligence regarding customers and their use of SAGE Products. Buyer warrants to SAGE that Buyer will use the Products directly or as reported and permitted. Buyer further agrees that SAGE Products may not be exported by Buyer for any purpose without written notice to and approval from SAGE.
IX. INTELLECTUAL PROPERTY. Intellectual Property (“Intellectual Property”) includes but is not limited to patents, copyrights, trade secrets, know-how, business records and plans, financial statements, customer lists and records, technical information, products, inventions, product design information, assembly drawings, pricing structure, discounts, costs, computer programs and listings, and other intellectual property, and other proprietary information.
A. Prior Intellectual Property. All Intellectual Property, whether or not patentable, created, developed, owned, controlled or manufactured by SAGE before the effective date of the first Sales Order placed by the Buyer shall remain the property of SAGE.
B. Subsequent Intellectual Property. All Intellectual Property created, developed, or made by SAGE in connection with or furtherance of the Sales Order shall remain the exclusive property of SAGE.
C. No License or Assignment. SAGE shall be the sole and exclusive owner of any technology created or acquired prior and subsequent to Sales Order. Nothing in this Agreement is intended to grant any rights to Buyer under any patent, copyright, trademark, trade name, mask work or other proprietary right of SAGE. Buyer agrees not to reverse engineer, disassemble, decompile, or have made any products, prototypes, software or other tangible objects that are exchanged or disclosed in the course of doing business and/or fulfilling this Sales Order. Nothing in this Agreement shall limit or restrict the rights of SAGE to assert infringement or other intellectual property claims against Buyer.
D. Patent Disclaimer. SAGE does not warrant that the use or sale of the Products delivered hereunder will not infringe the claims of any United States or other patents covering the product itself or the use thereof in combination with other products or in the operation of any process.
X. TECHNICAL ASSISTANCE. At Buyer’s request, SAGE may, in SAGE's sole and absolute discretion, furnish technical assistance and information with respect to SAGE's Products. SAGE makes no warranties of any kind or nature, express or implied, including any implied warranty of merchantability or fitness for any particular purpose, with respect to technical assistance or information provided by SAGE or its personnel. Any suggestions by SAGE regarding use, selection, application or suitability of the products shall not be construed as an express warranty unless specifically designated as such in a writing signed by an officer or other authorized representative of SAGE.
XI. INDEMNIFICATION. Buyer agrees to indemnify and hold harmless SAGE from all claims, losses, expenses, fees including attorney fees, costs, and judgments that may be asserted against SAGE that result from the acts or omissions of Buyer, Buyer's employees, if any, and Buyer's agents.
XII. LIMITATION OF LIABILITY. To the extent permitted by law, in no event will SAGE (including any subsidiaries of SAGE or other related entities) be liable for any lost revenues, lost profits, incidental, indirect, consequential, special or punitive damages relating to this Sales Order.
XIII. ARBITRATION. Any controversy or claim arising out of or relating to this Sales Order, or any breach thereof, including, without limitation, any claim that this Sales Order, or any part thereof, is invalid, illegal or otherwise voidable or void, shall be submitted exclusively to final and binding arbitration before, and in accordance with, the Commercial Rules of the American Arbitration Association, and judgment upon the award may be entered in any court having jurisdiction thereof; provided, however, that this clause shall not be construed to limit any rights which SAGE may have to apply to any court of competent jurisdiction for injunctive or other provisional relief. The arbitrator agrees to determine the arbitrability of any dispute. This arbitration provision shall be deemed self-executing, and in the event that either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party notwithstanding failure to appear. Such arbitration shall be conducted by the American Arbitration Association, at its offices and shall be governed by the rules of the American Arbitration Association then in force and effect. The parties agree that the arbitrator shall not have the power to award punitive damages against any party.
XIV. SEVERABILITY. If any provision of this Sales Order shall under any circumstances be deemed invalid or inoperative, this Sales Order shall be construed with the invalid or inoperative provision deleted, and the rights and obligations of the parties shall be construed and enforced accordingly.
XV. NONWAIVER. SAGE's failure to enforce any provisions of this Sales Order or rights hereunder shall not operate as a waiver of such provisions or rights and the same shall remain in full force and effect for the duration of this Sales Order.
XVI. GOVERNING LAW. This Sales Order and the acceptance of it shall be a contract made in the State of California and governed by the laws thereof, without giving effect to conflicts of law principles, and the United Nations Convention on Contracts for the International Sale of Goods shall not apply to such contract.