This Agreement applies to the sale of products and services (hereinafter “Products”) by Annapolis Micro Systems, Inc. (hereinafter “Annapolis” or “Seller”) to Customer which are subject to the terms and conditions contained herein regardless of any other terms or conditions contained in any purchase order, document, or other communication of Customer or Seller’s failure to object to such other terms. Seller and Customer are sometimes referred to herein as “Party” or “Parties.”
1. Acceptance/Modification
Acceptance of Customer’s Order by Seller shall occur only after approval and specific written acknowledgment by an authorized representative of Seller. Any changes, revisions or modifications made to this Agreement and Customer’s Order must be approved in writing signed by authorized representatives of Seller and Customer.
2. Taxes
Taxes are not included in the price of the Products. Customer must make available to Seller an exemption certificate or state sales tax will be added to the Purchase Order for payment by the Customer.
3. Shipping
Orders are shipped FCA Annapolis, Maryland Incoterms 2010 for international customers or F.O.B. Origin for domestic customers. Shipping costs will apply to any orders that require extra or special packaging and expedited shipments that impose extra shipping charges. Customer’s shipping account numbers are preferable. Customer shall provide Seller with the account number and carrier information.
4. Delivery
Seller may deliver items partially and prior to the scheduled delivery date. Customer authorizes and accepts these shipments without penalty
5. Force Majeure
If Seller cannot perform, in whole or in part, any of its obligations under this Agreement, Seller shall not be in breach of this Agreement or liable for any excess costs or other damages if the failure to perform arises out of causes beyond the reasonable control and without the fault or negligence of Seller (a “Force Majeure” event). Force Majeure causes may include, but are not limited to (a) acts of God or of the public enemy, (b) war (whether an actual declaration thereof or not), (c) acts of terrorism or threats thereof, (d) acts of the U. S. Government in either its sovereign or contractual capacity, (e) sabotage, (f) insurrection, (g) riot or other act of civil disobedience, (h) atmospheric disturbances, (i) fires, (j) floods, (k) plagues or epidemics, (l) quarantine restrictions, (m) labor disputes or strikes, (n) failure or delay in transportation due to transportation workers strike or freight embargoes, (o) worldwide parts shortage(s) or rationing allocations, (p) shortage of labor, fuel, raw material or machinery, or (q) violent storms or unusually severe weather.
If Seller’s has a delay in delivery caused by the delay of a subcontractor/vendor of Seller and if such delay arises out of causes beyond the reasonable control of Seller, and without fault or negligence of Seller, Seller shall not be liable to Buyer in damages from default unless the articles or services to be furnished by the subcontractor/vendor were obtainable from other sources in sufficient time to permit Seller to meet the required delivery schedule and Seller can demonstrate repeated attempts to obtain or implement corrective actions with or replacement of any offending subcontractor/vendor. Seller shall notify Buyer in writing within ten (10) calendar days after the beginning of any such delay.
6. Payment
Unless otherwise provided, terms of payment shall be net thirty (30) days from the day the Products ship from Seller to Customer as designated.
For New Customers: Minimum of 40% of total PO price due upon receipt of invoice AAO.
60% or remainder of the full PO price due no later than Net 30 after shipment of order.
Payments are non-refundable.
New Customer Payment Terms apply to the initial Order. Subsequent Orders may be Net 30 for accounts in good standing. New customers will stay on these terms until management reviews and allows them to progress to the normal Net 30 Terms. This will be based on their payment history.
7. Termination and Cancellation
Customer shall be deemed in material default upon its I) failure to pay any amounts when due, ii) seeking to cancel delivery of ordered Products, iii) refusing delivery of ordered Products, or iv) otherwise failing to perform any of its obligations hereunder. In the event of a material default by Customer, Seller may, upon written notice: (a) suspend its performance and withhold shipments in whole or in part; (b) terminate this Agreement; (c) declare all sums owing to Seller immediately due and payable; and/or (d) stop or recall Products in transit, retake the same and repossess any Products held for Customer without the necessity of other proceedings and Customer agrees that all Products so recalled, taken or repossessed shall be the property of Seller, provided that Customer is given credit therefor. Application of any remedies hereunder shall not preclude, limit or waive any other remedies available to the Seller in law or equity. In the event of default in payment of the purchase price, Customer agrees to pay Seller's reasonable attorney fees and costs incurred in Seller's enforcement thereof.
Additionally, if Customer cancels its Order, then, at Seller’s option, Seller may charge Customer and Customer shall pay to Seller the following:
(a) 40% of the Total Price of the Order if Customer cancels the Order within thirty (30) days after Seller’s acceptance of the Order; or
(b) 40% of the Total Price of the Order or reasonable costs plus a reasonable profit, whichever is greater, if Customer cancels the Order during the period of thirty one (31) days after Seller’s acceptance of the Order and thirty one (31) days prior to Seller’s scheduled shipment date of the Order; or
(c) The Total Price of the Order if Customer cancels the order within thirty (30) days of Seller’s scheduled shipment of the Order.
All charges by Seller to Customer under this section shall be net of prior payments made by Customer to Seller under this Order. In no event will Customer pay more than the Total Price of the Order.
8. Hardware/Board Support Packages Warranty
Every Annapolis Micro Systems, Inc. (hereinafter “Annapolis”) hardware purchase includes a twelve (12) month Hardware Warranty and twelve (12) months of Board Support Packages (the “Warranty Period”), which commences upon delivery of the product(s) to the Customer. Additional years of Hardware Warranty and Board Support Packages are available for sale.
Hardware Warranty
Annapolis warrants that, during the Warranty Period, this product will be i) new, ii) free from defects in workmanship, design, and material and iii) will conform to applicable specifications. This warranty is void if the product is modified or repaired by anyone other than Annapolis. Additionally, this warranty does not cover failures caused by misuse of the boards, including overheating and overvoltage, nor problems caused by the inability of components to reliably meet their published functional or performance specifications. Annapolis must be notified in writing immediately upon a defect becoming apparent but, in any event, no later than thirty (30) days after its discovery and within the Warranty Period. Within a reasonable time after proper notification, Annapolis shall, during its normal business hours, Monday through Friday, correct any defect covered under this warranty with either new or replacement parts or products, without charge. Any part or product repaired or replaced is warranted to conform to applicable specifications and to be free of defects in materials or workmanship for the remainder of the Warranty Period. It is the decision of Annapolis, in its discretion, whether to repair or replace the product. A Return Material Authorization (RMA) Number from Annapolis must be obtained prior to return of the product.
RMA Warranty
For any repaired products, Annapolis warrants that the specific repair performed will be free from defects in workmanship and material and will conform to the original specifications. This warranty is valid through the duration of the original Annapolis Hardware warranty or ninety (90) days, whichever is later. This warranty is void if this product has been modified or repaired by anyone other than Annapolis. Additionally, this warranty does not cover: i) failures caused by misuse of the boards, including overheating and overvoltage and ii) problems caused by the inability of components to reliably meet their published functional or performance specifications. It is the decision of Annapolis whether to repair or replace the product.
Board Support Packages (Software and Firmware) for Supported Operating System for Hardware Products:
Annapolis products include Board Support Packages, defined as current software and firmware and future updates to the software and firmware, required to operate the Hardware Products.
Board Support Package updates for Hardware Products are provided via the Internet or physical read-only media, as applicable, for a supported operating system. Annapolis does not provide, and stock Board Support Packages do not include, the operating system itself. Installation of the Linux operating system is optional, and a root file system is available.
THE REMEDIES AND WARRANTIES EXPRESSLY SET FORTH IN THE WARRANTY ARE EXCLUSIVE. ANNAPOLIS DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTY OF QUALITY. IN NO EVENT SHALL ANNAPOLIS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES UNDER THIS WARRANTY. THE REPAIR OR REPLACEMENT OF DEFECTIVE/NONCONFORMING PARTS OR PRODUCTS AS STATED ARE THE EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY.
9. Limitation of Liability
Notwithstanding anything to the contrary in the Purchase Order, neither Party shall be liable to the other, in contract or in tort, for any consequential damages, incidental, special, or other indirect damages, including but not limited to loss of use, business interruption or loss of profits, howsoever may be caused. The remedies of Customer set forth in this Purchase Order are exclusive, and Annapolis’ cumulative liability, including attorney’s fees, with respect to the products or services purchased under the Purchase Order, whether arising out of this Purchase Order, negligence, strict liability, or under any warranty, or otherwise, shall in no event exceed the value of the Purchase Order giving rise to the claim.
10. Confidential Information
If confidential information is required to be exchanged for the performance of the Order, neither Party shall provide such confidential information without prior execution of a non-disclosure agreement executed by the Parties.
11. Intellectual Property Rights
a) For purposes of this Agreement, “Intellectual Property” means all of the following: (i) ideas, discoveries, information, improvements, inventions (whether or not capable of being patented); (ii) patents, patent applications, patent disclosures, and any other patented subject matter; (iii) copyrights, applications to register copyrights, works of authorship and symbols, names, images, drawings and designs and any other copyrightable works; (iv) computer software (including source code, executable code, databases, data and related documentation), mask works, computer models, formulae, specifications and technical data; (v) trademarks, trade secrets, proprietary information and know-how; and (vi) all improvements or modifications to any of the foregoing.
b) Intellectual Property owned or controlled by each Party prior to this Agreement (“Background IP” or “BIP”) shall remain the property of the respective Party. Unless expressly stated, this Agreement does not offer or grant any rights in or license to any BIP.
c) Except as expressly stated in this Section 10, each Party shall retain title to any Intellectual Property if developed, authored, conceived or reduced to practice independently and solely by a Party during the performance of this Agreement without the use of or any connection with the other Party's Intellectual Property (“Independent IP”). In such event, no license, express or implied, shall inure to the benefit of the other Party for use of Independent IP, except as expressly provided herein.
d) In the event one Party develops inventions or copyrighted works during the performance of this Agreement, which derive from or incorporate Proprietary Information of the other Party BIP (“Derived IP”), such Derived IP shall be the property of the Party whose Proprietary Information was used.
e) Inventions jointly conceived by the Parties hereto shall be jointly owned by the Parties.
f) Each Party hereby acknowledges and agrees that it does not, and will not, assert that it has any ownership claim to any Intellectual Property of the other Party, including the other Party’s BIP.
If Customer is purchasing Annapolis Products for use in a US Government Prime Contract, Annapolis hereby grants Customer a license in delivered Intellectual Property, solely to the extent necessary for Customer to meet its obligations to the Government under Customer’s Government Prime Contract.
Both Seller and Customer shall each retain ownership of, and all right, title, and interest in and to, their respective pre-existing Intellectual Property. Additionally, Seller may perform design work that will be embedded in its products and deliverables. Such design work will be paid for exclusively by Seller and Seller will own all right, title, and interest in any design work paid for exclusively by Seller.
12. Site Requirements
In the event Customer desires to enter Seller’s premises to conduct an on-site inspection or testing, Customer agrees that all such on-site visits must be requested, scheduled and approved by Seller in advance. Customer acknowledges and understands that on-site inspections, audits or additional testing such as, but not limited to, Source Inspection, FAT or First Article Inspections incur additional charges which must be included as a line item on the Purchase Order.
13. Exports
All US based Customers shall be responsible for obtaining and paying for any permits, licenses, or other governmental authorization(s) necessary for the exportation/importation of any goods into the designated country of importation, and shall comply with all laws and regulations thereof. Seller is not responsible for, and the price does not include, any costs relating to export and import including duties, taxes, customs formalities, and other charges.
Export Control
Performance under this Agreement may involve the use of or access to products, technical data or software that is subject to export control under 22 United States Code 2751-2799aa-2 (Arms Export Control Act) and 22 C.F.R. 120 et seq (International Traffic in Arms Regulations or “ITAR”); 15 C.F.R. 730-774 (Export Administration Regulations); and 31 C.F.R. 500-598 (Foreign Assets Control Regulations, (collectively, “Trade Control Laws”). Customer agrees to comply with all applicable U.S. Trade Control Laws. Without limiting the foregoing, Customer shall not transfer any export controlled item, technical data, technology, or service, including transfers to foreign persons employed by or associated with, or under contract to Customer or Customer’s lower tier suppliers, unless authorized in advance by an export license (such as Technical Assistance Agreement (TAA) or Manufacturing License Agreement (MLA), license exception or license exemption, collectively, “Export Authorization”), as required.
14. Disputes
All disputes under this Agreement that are not disposed of by mutual agreement may be decided by recourse to an action at law or in equity. Each Party hereby irrevocably waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect to any litigation directly or indirectly arising out of, under or in connection with this Agreement.
Until final resolution of any dispute hereunder, Seller shall diligently proceed with the performance of this Contract unless otherwise agreed to by the Parties in writing, except that Seller shall have the right to stop work on the Order if Customer fails to comply with the terms of payment stated in Paragraph 4 of this Agreement upon Seller’s ten (10) day prior written notice to Customer.
15. FLOSS Statement
Annapolis includes FLOSS in its products, as needed. In no case does Annapolis include FLOSS whose license requires anything more than delivering the software deliverable provided by Annapolis. Customer created derivative works of Annapolis provided FLOSS are subject to the license of the product from which they are derived. All other Annapolis provided software, subject only to the Annapolis License Agreement, is not required to be delivered without the Customer’s consent.
16. Compliance with Laws
This Agreement will be interpreted under, and enforced in accordance with, the laws of the State of Maryland without regard to its conflict of law principles. Jurisdiction and venue for any suit between the Parties hereto arising out of or connected with this contract shall lie exclusively in a court of competent jurisdiction in the State of Maryland. The Parties hereby irrevocably waive any right to challenge such venue on the basis of forum non conveniens or otherwise.
EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATED TO THIS CONTRACT.
17. Entire Agreement
This Agreement constitutes the entire agreement between the Parties and supersedes all previous communications, representations, understandings or agreements, either oral or written.
18. Binding Effect
This Agreement and its terms and conditions are binding on the Parties and their agents, employees, successors and assigns.
19. Non-Enforceable
Should any provisions of this Agreement and/or its terms and conditions be illegal or not enforceable, they shall be considered severable and this Agreement and its remaining terms and conditions shall remain in force and be binding upon the Parties as though said provisions had never been included.
20. Severability
Each clause, paragraph and subparagraph of this Agreement is severable, and if one or more of them are declared invalid, the remaining provisions of this Agreement will remain in full force and effect.