The sale of products and services (“Products”) by Rorke Data, Inc. and its
divisions, subsidiaries, and affiliates (“Rorke”) are subject to these terms and
conditions (“Agreement”) regardless of other or additional terms or conditions
that conflict with or contradict this Agreement in any purchase order, document,
or other communication (“Order”). Preprinted terms and conditions on any
document of customer (“Customer”) (for example: Orders or confirmations) and/or
Rorke’s failure to object to conflicting or additional terms will not change or
add to the terms of this Agreement.
1. ORDERS. Quotes from Rorke are invitations to tender and
are subject to change at any time without notice. All Orders are subject to
acceptance by Rorke. Contracts between Customer and Rorke are formed upon
Rorke’s written acceptance or execution of Customer’s Order and shall be subject
to this Agreement. Rorke reserves the right to allocate the sale of Products
among its customers. Orders for special, customized, and value-added Products
and Products specifically identified by Rorke as non-standard or “NCNR” are
non-cancelable, non-reschedulable, non-changeable, and non-returnable. Customer
may not change, cancel or reschedule Orders for standard Products without
Rorke’s consent.
2. PRICES. Prices are subject to change at any time. Prices
are for Products only and do not include taxes, shipping charges, freight,
duties, and other charges or fees, such as fees for special packaging and
labeling of the Products, permits, certificates, customs declarations and
registration (collectively, “Additional Fees”). Customer is responsible for any
Additional Fees.
3. TERMS OF PAYMENT. Payment of the total invoice amount,
without offset or deduction, is due 30 days from the invoice date or as
otherwise approved in writing by Rorke. On any past due invoice, Rorke may
charge (i) interest from the payment due date to the date of payment at 18% per
annum), plus reasonable attorney fees and collection costs; or (ii) the maximum
amount that is allowed under the applicable law if Rorke’s interest rate is
deemed invalid. At any time, Rorke may change the terms of Customer’s credit,
require financial data from Customer for verification of Customer’s
creditworthiness, require a bank guarantee or other security, or suspend any
outstanding Orders of Customer. Rorke may apply payments to any of Customer’s
accounts. If Customer defaults on any payment under this Agreement, Rorke may
reschedule or cancel any outstanding delivery and declare all outstanding
invoices due and payable immediately. Unless otherwise provided by applicable
law, any credit issued by Rorke to Customer in respect of any of Customer’s
accounts will expire if unused for twelve (12) months following the date of
issuance of such credit.
4. DELIVERY AND TITLE. Unless otherwise specified by Rorke
in writing, all deliveries by Rorke are EXW Rorke’s warehouse (INCOTERMS 2000).
Title and risk of loss pass to Customer upon delivery of the Products to the
carrier. Rorke’s delivery dates are estimates only and subject to timely receipt
of supplies by Rorke. Rorke is not liable for delays in delivery. Rorke reserves
the right to make partial deliveries and Customer will accept delivery and pay
for the Products delivered. A delayed delivery of any part of an Order does not
entitle Customer to cancel other deliveries.
5. RORKE’S LIMITED WARRANTY. Rorke will pass through to
Customer any transferable Product warranties, indemnities, and remedies provided
to Rorke by the manufacturer, including any warranties and indemnities for
intellectual property infringement. If required by law, Rorke warrants that at
the time of delivery, the Products shall have the specifications stated by the
manufacturer in its published data sheet for the Products for 12 months from
delivery of Products. Rorke warrants that for a period of 90 days after delivery
of the Products to Customer, value-added work performed by Rorke on Products
will conform to Customer’s specifications that are in writing and accepted by
Rorke, and Customer shall be deemed the manufacturer of such value-added
Products. To the extent permitted by law, Rorke makes no other warranty,
express or implied, such as warranty of merchantability, fitness for purpose or
non-infringement. Customer’s sole remedies for breach of Rorke’s
warranty are, at Rorke’s choice: (i) repair the Products; (ii) replace the
Products at no cost to Customer; or (iii) refund Customer the purchase price of
the Products.
6. PRODUCT RETURN Customer may return Products to Rorke only
with a return material authorization (“RMA”) number issued by Rorke. Customer
must notify Rorke in writing of any damage to the outer packaging or the
Products, shortage, or other discrepancy (“Visual Defect”) within 3 days after
receipt of the shipment; otherwise, Customer is deemed to have accepted the
Products and may not revoke acceptance. RMAs will be issued only for Visual
Defects created solely by Rorke or the original manufacturer, and only if
Customer satisfies the notice requirement. RMAs will not be granted for damage,
shortage, or other discrepancy created by Customer, the carrier or freight
provider, or any other third party. Product return pursuant to a warranty
requires written notice from Customer to Rorke within the warranty period
detailing the Product defect. Customer must return the Products to Rorke freight
prepaid in original manufacturer’s shipping cartons or equivalent, along with
acceptable proof of purchase, within the warranty period and as specified in the
RMA. At Rorke’s discretion, Rorke will return all Products not eligible for
return to Customer, freight collect, or hold Product for Customer’s account at
Customer’s expense.
7. LIMITATION OF LIABILITY. To the extent permitted by law, neither
Rorke nor its employees or agents are liable for and customer is not entitled to
any indirect, special, incidental or consequential damages; for example, loss of
profits or revenue, loss of data, loss of use, rework, manufacturing expense,
injury to reputation, or loss of customers. To the extent permitted by
applicable law, Customer’s recovery from Rorke for any direct damages will not
exceed the price of the Product at issue. To the extent the preceding limitation
of liability is deemed invalid under applicable law, Rorke’s total liability in
any event will not exceed USD 50,000 or the equivalent thereof. Customer will
indemnify, defend and hold Rorke harmless from any claims based on; (i) Rorke’s
compliance with customer’s designs, specifications, or instructions, (ii)
modification of any Product by anyone other than Rorke, or (iii) use of Products
in combination with other products or in violation of clause 9 below.
8. FORCES BEYOND RORKE’S CONTROL. Rorke is not liable for
failure to fulfill its obligations under this Agreement due to causes beyond its
reasonable control, (for example: acts of nature, acts or omissions of the
Customer, operational disruptions, man-made or natural disasters, epidemic
medical crises, materials shortages, strikes, criminal acts, delays in delivery
or transportation, or inability to obtain labor or materials through its regular
sources).
9. USE OF PRODUCTS. Customer shall comply with the
manufacturer’s or supplier’s Product specifications. 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 Customer uses or sells the Products for use in any such applications
or fails to comply with the manufacturer’s Product specifications, Customer
acknowledges that such use, sale, or non-compliance is at Customer’s sole risk.
10. EXPORT/IMPORT. Certain Products sold by Rorke and other
related technology and documentation are subject to export control laws,
regulations and orders of the United States, the European Union, and/or other
countries (“Export Laws”). Customer shall comply with such Export Laws and
obtain any license, permit, or authorization required to transfer, sell, export,
re-export, or import the Products and related technology and documentation.
11. PRODUCT INFORMATION. Product information (for example,
statements or advice (technical or otherwise) advertisement content, and
information related to a Product’s specifications, features, export/import
control classifications, uses or conformance with legal or other requirements)
is provided by Rorke on an “AS IS” basis and does not form a part of the
properties of the Product. Rorke makes no representation as to the accuracy or
completeness of the Product information, and DISCLAIMS ALL REPRESENTATIONS,
WARRANTIES AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT
INFORMATION. Rorke recommends Customer validate any Product Information before
using or acting on such information. All Product information is subject to
change without notice. Rorke is not responsible for typographical or other
errors or omissions in Product information.
12. GOVERNMENT CONTRACTS. Rorke is a distributor of
“Commercial Items” as defined in FAR 2.101. Rorke agrees only to the clauses in
the Federal Acquisition Regulation (“FAR”) and Defense Federal Acquisition
Regulation (“DFAR”) that are required to be inserted in subcontracts for
commercial items as set forth in FAR 52.244-6(c)(1), FAR 52.212-5(e)(1), and
DFAR 252.244-7000 if it is a subcontract under a Department of Defense prime
contract. In accordance with FAR 12.211, Customer will receive only those rights
in technical data customarily provided to Rorke by the manufacturers. By no
means will this be interpreted as providing to Customer unlimited rights in
data, software, or intellectual property rights provided by the manufacturers or
any other third party. Rorke specifically rejects the flow down of the
requirements of the: (i) Trade Agreements Act, FAR 52.225-5 or DFARS
252.225-7021; (ii) the Buy American Act, FAR 52.225-1 or DFARS 252.225-7001; and
(iii) any Preference for Domestic Specialty Metals regulation.
13. ELECTRONIC ORDERS. In the event that any part of the
purchase and sale of Products utilizes electronic data interchange, customer’s
internal portal or third party portal, or any other electronic means
(“Electronic Purchase Order”), this Agreement will continue to apply to the
purchase and sale of Products between Customer and Rorke.
14. GENERAL.
a. This Agreement shall be governed,
construed, and enforced in accordance with the laws of the country where the
Rorke entity that accepted Customer’s Order (“Governing Country”) is located.
The courts of the Governing Country shall have jurisdiction and venue over all
controversies arising out of, or relating to, this Agreement. If the Governing
Country is the United States of America, the laws and courts of the State of
Arizona will apply without reference to Arizona’s conflict of laws principles.
The United Nations Convention for the International Sale of Goods shall not
apply.
b. Customer may not assign this Agreement without the prior written
consent of Rorke, and Rorke’s affiliates may perform Rorke’s obligations under this Agreement. This Agreement is binding on successors and assigns.
c. This Agreement can only be modified in writing signed by authorized representatives
of both Rorke and Customer.
d. Rorke and Customer are independent contractors and agree that this Agreement does not establish a joint venture, agency relationship, or partnership.
e. Rorke’s failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions.
f. The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions.
g.Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses, and Customer will comply with such rights.
h. Customer and Rorke will comply with applicable laws and regulations