Terms and Conditions
Symmetry Electronics, a Division of Exponential Technology Group, Inc.
Standard Terms and Conditions of Sale
1. Acceptance and Cancellation of Orders
Each Order for Goods is subject to acceptance in writing by a duly authorized agent of Symmetry Electronics, a Division of Exponential Technology Group, Inc. (“Seller”); any written acknowledgement of receipt of an order shall not, in and of itself, constitute such acceptance. Orders accepted by Seller may be canceled by Buyer only upon written consent of Seller. Cancellations or rescheduling orders will not be accepted within 30 days of scheduled delivery. In the event of cancellation or other withdrawal of an Order for any reason and without limiting any other remedy which Seller may have as a result of such cancellation or other withdrawal, reasonable cancellation, or restocking charges, which shall include all costs incurred by Seller in fulfilling the Order, shall be paid by Buyer to Seller. Orders for Goods identified as Customer Specific Goods and/or Non-Cancelable and Non-Returnable (“NCNR”) will be identified and agreed to by Buyer at the time of order placement and such Goods will be the sole liability of the Buyer.
2. Delivery
All prices quoted and Goods shipped are F.O.B. Seller’s facility (or in the definition of International Commercial Terms - INCOTERMS 2020; EXW (Ex Works), Seller’s facility). Title to and risk of loss of all Goods shall pass upon Seller’s delivery to carrier for shipment to Buyer. Unless otherwise agreed by Seller in writing, Buyer shall pay all freight, handling, delivery, and insurance charges for shipment of Goods. Choice of carrier and shipping method and route shall be at the election of Seller unless expressly designated in writing. The contractual date of delivery, if any, shall be extended for a period equal to the time lost as a consequence of such delay without penalty to Seller. In its sole discretion, Seller may allocate, defer, delay, or cancel the shipment of any Goods which are in short supply. Seller shall be entitled to refuse or to delay shipments upon failure by Buyer to pay promptly any payments due Seller, whether on this or any other contract between Seller and Buyer. Seller shall have the right to deliver all Goods covered hereby at one time or in portions from time to time within the time for delivery provided in such Order.
3. Terms
Payment via major credit card (Visa, MasterCard, and American Express) is accepted, if Seller does not have established credit terms with Buyer. Terms may be available upon credit approval of submitted credit application.
Unless otherwise specified by Seller in writing, payment in full or net amount owing, without offset or deduction, is due 30 days from date of invoice or as mutually agreed to. If payment is not received within such 30-day period, a late fee of 1.5% per month (annual percentage rate of 18%) of the unpaid balance or the maximum amount allowed by law, whichever is less, shall be paid by Buyer.
All payments are accepted subject to collection. Buyer agrees to pay Seller’s actual costs of collection, including without limitation reasonable attorney fees, costs, and third-party collection fees. Any payment received from Buyer may be applied by Seller against any obligation of Buyer to Seller under this or any other agreement, notwithstanding any statement or direction from Buyer with regard to such payment. Acceptance of any partial payment shall not constitute a waiver of Seller’s right to payment in full of all amounts owing from Buyer to Seller.
Seller shall have the right to refuse to ship to Buyer on credit at any time and shipments made to Buyer on a prepay or other basis shall be subject to the terms and conditions of sale contained herein.
4. Inspection and Acceptance of Goods
Buyer is deemed to have accepted Goods unless written notice of rejection is given to Seller within a reasonable time, which is agreed to be within ten (10) days after receipt. CLAIMS OF LATE DELIVERY are void unless made prior to receipt of Goods, and receipt of Goods shall constitute a waiver of any claim of late delivery. No return will be accepted without prior “Return Material Authorization Number” (RMA #) from Seller with Buyer giving the reason for a return. Goods must be returned as directed by Seller’s location issuing the RMA# and be in its original packaging. Returns of Goods packaged in electrostatic packaging will not be accepted if electrostatic packaging has been opened.
5. Seller's Right to Increase Prices
Unless otherwise specified on the face of this Agreement, Seller reserves the right to increase the selling price of any and all Goods ordered by Buyer prior to shipment from Seller’s place of business due to an increase in cost of such Goods by Seller’s Original Component Manufacturer (“OCM”) supplier. The selling price quoted to Buyer shall, upon an increase in price by Seller’s OCM supplier, be increased by the same percentage of increase in Seller’s costs for the Goods and Buyer agrees to pay any such increased price in accordance with the terms hereof.
6. Taxes
Seller’s prices do not include sales, use, excise, or similar taxes. Seller shall properly impose upon, collect from Buyer, and timely remit to the appropriate governmental authorities any sales, use, or value added taxes, customs duties, tariffs, or similar levies, including fines and penalties (“Taxes”) applicable to Goods including Services sold, licensed, delivered, or furnished hereunder. Each Tax will be separately stated on any Seller invoice. To the extent software including documentation is delivered electronically, Seller’s invoice shall indicate the manner of delivery as “software delivered electronically to the customer” and identify locations where the software will be used if known. Invoices shall not include any Taxes for which Buyer has furnished a valid exemption certificate. If Seller receives a refund of any Taxes attributable to Buyer, Seller will promptly credit such amount to Buyer. If Seller receives notice of any additional Taxes applicable to an Order, Seller shall promptly notify Buyer.
7. Warranties and Limitations of Remedies
a. Except for Value-Added Services, Seller will deliver Goods to Buyer in the same condition received from the OCM or supplier. Value-Added Services will conform to Buyer specifications.
b. Buyer’s exclusive remedy for Seller-damaged Goods or Value-Added Services is expressly limited, at Seller’s election, to either: (i) refund of the purchase price paid allocated to specific Goods (without interest); or (ii) repair or replacement of Goods.
c. Disclaimer of Warranties and Limitation of Remedies. Except as otherwise provided in this Agreement, Seller makes no warranties or representations regarding Goods. SELLER DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR USE.
d. Seller is an authorized distributor of OCM Goods. Seller agrees that any transferable OCM warranties are transferred to Buyer, in accordance with OCM specifications. Seller makes Buyer aware that OCM warranties may not apply to Goods that: (i) has been subject to an accident, excessive stress, or abnormal wear and tear; (ii) has not been kept in a climate controlled well-maintained storage environment, which reasonably limits damage from heat, humidity, corrosion, contamination, and/or electrostatic discharge; and/or (iii) that has been modified by Buyer.
8. Patent Infringements
Seller makes no representation that Goods are free from third-party claims of infringement of intellectual property rights, license, patent, or trademark. Seller disclaims any warranty against intellectual property rights infringement. Buyer agrees to look solely to the OCM or licensor of the Goods for indemnification of any claim of infringement. Buyer agrees to indemnify, defend and hold harmless Seller from any costs, expenses and liability (including attorney fees) arising out of third-party of infringement of intellectual property rights, license, patent, or trademark, arising out of Buyer’s use, modification, adaptation, or enhancement of Goods.
9. Indemnification
Buyer agrees to indemnify defend, and hold harmless Seller ( along with its directors, officers, employees, agents, successors and assigns) from any alleged or actual liability, loss, cost, claim, damage or expense (including attorney fees) arising out of: a) third party claims; b) property damage; and/or c) personal injury, to the extent caused by the negligence or misconduct of Buyer (or its directors, officers, employees, agents, affiliates, successors, and assigns). Seller shall provide Buyer with prompt written notice of any potential indemnification claim. Buyer may assume the defense of any indemnification claim. Seller shall cooperate fully in the defense. Buyer shall not make any statement admitting Seller’s liability, or enter into any settlement without Seller’s consent, which shall not be unreasonably withheld.
10. Insurance
Seller shall maintain general liability insurance, Goods liability insurance, worker’s compensation, and employer’s liability insurance in limits consistent with industry standards or as required by law. Upon request, Seller will provide a certificate of insurance.
11. Installation
Buyer shall be solely responsible for the installation and operation of the Goods covered hereby, including without limitation the obtaining of all permits, licenses or certificates required for the installation of such Goods.
12. Use of Goods in Medical Applications
If Buyer intends to use Goods in medical applications, unless otherwise stated in a written agreement, Buyer acknowledges and agrees that:
a. Goods are manufactured to the OCM's specifications under normal industrial conditions. Goods have not been designed, manufactured, evaluated, or qualified for use in certain medical applications (including life support systems or devices implanted in the body). Seller has not received a ruling from the FDA or any other federal, state, or local government as to the safety, effectiveness, or appropriateness of Goods for use in such applications. Buyer is solely responsible to: (i) rely on Buyer's own medical and legal judgment without any representation by Seller; and (ii) ensure compliance with all applicable laws, regulations, codes, and standards, including but not limited to the U.S. Federal Food, Drug and Cosmetic Act and regulations of the Food and Drug Administration.
b. Buyer agrees to indemnify, defend, and hold harmless Seller (along with its directors, officers, employees, agents, affiliates, successors, and assigns) from any alleged or actual liability, loss, cost, claim, damage, or expense (including attorney fees), arising out of bodily or emotional injury, or property damage, arising from incorporation of Goods in any item for medical applications, including but not limited to cardiac pacemakers, defibrillators, electrodes, leads, or programmers
13. Technical Information and Data
Any technical data provided by Seller is a courtesy to Buyer. Buyer waives any claim against Seller arising from Buyer’s reliance upon Seller provided technical data.
14. Software
All computer software, if any, delivered by Seller to Buyer is licensed pursuant to separate licensing agreement or other arrangements, from the owner of the software or other third party directly to Buyer. Buyer acknowledges receipt of a separate agreement pursuant to which software delivered to Buyer is licensed. Buyer acknowledges that Seller is not a party to such license with respect to software supplied hereunder. Buyer agrees to look directly to the licensing party in connection with all maintenance, support, infringement, warranty, and other claims relating to software delivered to Buyer hereunder.
15. Default
In the event of any default by Buyer, Buyer shall pay all costs incurred by Seller in enforcing these Terms and Conditions, including without limitation, Seller’s actual costs of collecting any payments due Seller including attorneys’ fees and costs. The waiver by Seller of any breach hereof or default in any payment shall not be deemed to constitute a waiver of any other breach or default. In the event of default, Seller shall have all remedies provided under the Uniform Commercial Code which shall be cumulative with one another and with any other remedies which Seller may have at law, in equity, under any agreement of any type or, without limitation, otherwise. The exercise or failure to exercise any remedy shall not prelude the exercise of that remedy at another time or any other remedy at any time. No action, regardless of form, arising out of, or in any way connected with, the Goods furnished, or services rendered by Seller, may be brought by Buyer more than one year after an alleged cause of action accrues.
16. Integration and Assignment
These Terms and Conditions sets forth the sole and entire agreement between Buyer and Seller with regard to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written agreements between them regarding the same. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in this agreement. Acceptance or acquiescence in a course of performance rendered under this agreement shall not be relevant to determine the meaning of this agreement even though the accepting or acquiescing party had knowledge of the nature of the performance and opportunity for objection. No modification of these Terms and Conditions whatsoever shall be enforceable unless reduced to writing and signed by both Seller and Buyer. No affirmation, representation or warranty made by any agent, employee or representative of Seller shall be enforceable against Seller unless such affirmation, representation or warranty is reduced to writing, signed by Buyer and Seller, and expressly incorporated into these Terms and Conditions. Any assignment of an Order or any rights hereunder by Buyer shall be void without Seller’s prior written consent.
17. Buyer's Terms and Conditions
Seller desires to provide its customers with prompt and efficient service. Accordingly, Goods furnished, and services rendered by Seller are sold solely and exclusively on the Terms and Conditions stated herein. Any different, conflicting or additional terms or conditions of sale expressed or referenced web site hyperlinks to terms and conditions in the Buyer purchase orders, invoice, confirmations or other Buyer-generated documents (“Buyer Documents”) whether heretofore or hereafter submitted are expressly rejected by Seller, and all different, conflicting or additional terms or conditions expressed in any Buyer Documents are hereby deemed to be material alterations of these Terms and Conditions and notice of objection to and rejection of such terms is hereby given. Seller’s performance of any contract of sale with Buyer is expressly conditional on Buyer’s acceptance of these Terms and Conditions of Sale, unless otherwise specifically agreed in writing by Seller. In the absence of such agreement, commencement of performance and or delivery of Goods shall be for Buyer’s convenience only and shall not be deemed or construed to be acceptance of terms and conditions expressed in any Buyer Documents. Buyer’s acceptance of Goods or services from Seller shall be conclusively deemed acceptance of these Terms and Conditions of Sale.
18. Export/Import
Certain Goods and technology sold by Seller are subject to import/export control laws, regulations and orders of the United States, the European Union, and/or other countries ("Import/Export Laws"). Buyer shall comply with such Import/Export Laws and obtain any licenses, permits and authorizations required to transfer, sell, export, re-export or import all Goods and technology in full compliance with such Import/Export Laws. Buyer will not export or re-export the Goods and technology to any country, region, or entity under economic trade sanctions or embargoes administered by the United States government, including but not limited, to U.S. Department of Treasury, U.S. Department of Commerce or U.S. Department of State. Additionally, and in light of sanctions imposed by the U.S. government on various individuals and entities in Venezuela, Russia, Belarus, and the Donetsk and Luhansk regions of Ukraine, Buyer agrees that it will not export or re-export the Goods and technology to these countries in opposition to these sanctions. Buyer will not use the Goods in connection with nuclear, biological, or chemical weapons or missile systems capable of delivering same, or in the development of weapons of mass destruction. Buyer shall not sell, export, or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation, any goods supplied by Seller that fall under the scope of Article 12g of Council Regulation (EU) 833/2014 (“Article 12g”). In addition, Buyer shall maintain a monitoring mechanism to detect conduct by third parties and resellers that may circumvent Article 12g or these Terms and Conditions and shall use its best efforts to ensure that such parties do not attempt circumvention. Any violation of this requirement shall constitute a material breach of an essential element of these Terms and Conditions and Seller shall be entitled to seek appropriate remedies, including but not limited to termination of business. Buyer agrees to inform Seller of any breach of this section, including activities of third parties that attempt to circumvent Article 12g.
19. Spares for After Agreement Support
Accepting this Order does not constitute a commitment upon Seller to provide Goods for the life of the Buyer’s products or any integrated subsystem.
20. Waiver
A failure or delay in enforcing an obligation or exercising a right or remedy does not amount to a waiver of that obligation, right or remedy. A waiver of a breach of a term does not amount to a waiver of a breach of any other term in this Agreement. A waiver of a particular obligation in one circumstance will not prevent a party from subsequently requiring compliance with the obligation on other occasions.
21. Force Majeure and Constraints
Seller shall not be liable for any failure to perform under this Agreement if prevented by caused beyond Seller’s control, including, but not limited to, acts of God, fires, floods market constraints, transportation delays, material shortages, epidemics, earthquakes, riots, labor disputes, civil disobedience, war or war operations or restraints of government.
22. Security Interest
Seller waives all and does not grant to Buyer any security interest ("Security Interest") in the materials, components, contracts, Intellectual Property, and all other property and any proceeds thereof that may be acquired or allocated by Seller for use in the acquisition, assembly, and manufacture of the Goods, in the completed Goods ("Secured Property") under any purchase order of Buyer.
23. Compliance with Law
Buyer shall at all times comply with all applicable governmental laws, statutes, ordinances, rules, regulations, orders, and other requirements, including, without limitation, such governmental requirements applicable to environmental protection, health, safety, wages, hours, equal employment opportunity, nondiscrimination, anti-corruption and working conditions.
24. Compliance with Data Privacy
Each Party shall, and shall require any third-party recipient to, comply with all applicable data privacy laws.
a. “Applicable Law” includes but is not limited to: California Consumer Privacy Act (“CCPA”); EU General Data Protection Regulation (“GDPR”); China Personal Information Protection Law (“PIPL”); UK Data Protection Act 2018; United States Export Administration Regulation (“EAR”); International Traffic in Arms Regulations (“ITAR”); and any similar Applicable law.
b. “Seller’s Privacy Policy” means Seller’s then-current policy, which is incorporated by reference, available at: https://www.symmetryelectronics.com/about/privacy-policy/;
c. Each Party shall promptly notify the other if there is a data breach with details provided and to take the necessary actions in containing such data breach.
25. Government Prime Contracts
If this Order indicates that it is placed under a government contract, all Federal Laws and regulations relating to such contract shall apply and be in effect, including such portions of the Federal Acquisition Regulations (“FAR”) or applicable supplement as may be relevant to this Order. If this Order is under a covered government contract, Seller certifies, to the best of its knowledge and belief, that neither Seller nor any of its principals are debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any federal agency. Certain flow down FAR clauses or applicable supplements in an Order may not be applicable to specific Orders due to the dollar thresholds or other requirements as stated in the prescribed clause of the FAR or applicable supplemental flow downs. Clauses that are not applicable shall not be removed from an Order reference and will be considered by all Parties to be without force and effect. For certain clauses, Buyer must provide applicable language describing the circumstances under which the clauses apply to the Order.
26. General
This agreement and performance by the parties hereunder shall be construed in accordance with the internal laws (excluding the laws relating to conflicts) of the State of Texas including the provisions of the Texas Uniform Commercial Code. The parties expressly exclude the applicability of the United Nations Convention on Contracts for the International Sale of Goods, 1980, or any successor thereto to this Agreement. All agreements, covenants, conditions, and provisions contained herein shall apply to and bind the assignees and successors in interest of Buyer. If any provisions or portion of this agreement is held to be invalid, illegal, unconscionable, or unenforceable, the other provisions and portions hereof shall not be affected. The captions used herein are for the convenience of the parties only and shall not affect the instruction or interpretation hereof. The Parties hereby agree that the venue for any disputes arising under these terms and conditions of sale shall be in the applicable state or federal court in Tarrant County, Texas.
27. Affirmative Action
As applicable, Seller shall abide by the requirements of 41 CFR 60–1.4(a), 60–300.5(a) and 60–741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or veteran status. YOU ARE HEREBY NOTIFIED that acceptance of this Agreement constitutes (1) your agreement to be bound by the requirements, regulations, and provisions contained within this paragraph, to the extent required by law, and (2) your consent to provide any required certification of same to Seller, at Seller’s request.