All quotations and sales by Serendipity Electronics Incorporated (“Serendipity”) are subject to these terms and conditions, those on the front of this document and any addendum to these terms and conditions by Serendipity (collectively, ‘Customer Purchase Order’). All prior proposals, negotiations and representations, if any, are merged herein. Customer will be deemed to have assented to all terms and conditions contained herein by accepting any products, making any payments or ordering any products having previously received these terms and conditions. Upon acceptance of this request for quote by Serendipity, this document shall become a contract subject to these terms and conditions.
- Except as otherwise set forth on the front
of this document: Terms of payment are net 30 days from invoice date; prices
are FOB Serendipity’s facilities; and prices do not include any taxes, freight,
handling, duty or other similar charges, payment of which will be the sole
responsibility of Customer.
Prices are conditioned upon timely payment and any past due balance will accrue interest at the monthly rate of one and one-half percent. Freight charges may be constructed on the basis of standard carrier tariffs and may not reflect actual transportation costs. Serendipity reserves the right to modify terms prior to shipment, require payment in advance, or delay or cancel any shipment or order by reason of Customer’s creditworthiness or should Customer fail to fulfill any obligation when due.
- In the absence of prior agreement as to shipping, Serendipity may select a carrier. Serendipity’s responsibility for any loss or damage ends, and title passes, when products are delivered to the carrier, to Customer, or to Customer’s agent (including, without limitation, any test house or value-added service provider), whichever occurs first. Customer will pay for storage charges if products are held by Serendipity at Customer’s request pending instructions or rescheduled delivery.
- For all 6081 contracts Serendipity will provide a product warranty for one year. Product was found to be reliable and free from known defects once shipped to customer following the 6081 standards. A replacement or refund will be issued if defective material is found.
- Serendipity warrants those products assembled or customized by it against defects caused solely by faulty assembly or customization. We must be notified within 30 days on any discrepancies to extend a one-year guarantee for the product. All other products, and the components and materials utilized in any assembled or customized products, are covered by, and subject to, the terms, conditions, and limitations of the manufacturer’s standard warranty, which warranty is expressly in lieu of any other warranty, express or implied, of or by Serendipity or the manufacturer. Customer’s exclusive remedy, if any, under these warranties is limited, at Serendipity’s election, to any one of (a) refund of Customer’s purchase price, or (b) replacement of any such product. Customer acknowledges that except as specifically set forth or referenced in this paragraph, THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, IN ADVERTISING MATERIALS, BROCHURES, OR OTHER DESCRIPTIVE LITERATURE) BY SERENDIPITY OR ANY OTHER PERSON, INCLUDING SERENDIPITY’S AGENTS, EMPLOYEES AND REPRESENTATIVES, EXPRESS OR IMPLIED, AS TO THE CONDITION OR PERFORMANCE OF ANY PRODUCTS, THEIR MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE. SERENDIPITY ASSUMES NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR MANUFACTURER’S PRODUCT SPECIFICATIONS OR THE PERFORMANCE OR ADEQUACY OF ANY DESIGN OR SPECIFICATION PROVIDED TO SERENDIPITY BY OR ON BEHALF OF CUSTOMER. Use of the Customer’s part number on this document or on any products is for convenience only and does not constitute any representation by Serendipity with respect to the performance, specifications, or fitness of any part for any purpose.
- Serendipity retains a purchase money security interest in all products sold by Serendipity to Customer, and in the proceeds of any resale of such products, until the purchase price and any other charges due to Serendipity have been paid in full. Customer agrees to execute any financing statements Serendipity may request in order to protect Serendipity’s security interest and hereby authorizes Serendipity to execute and irrevocably appoints Serendipity’s attorneys for the execution of such financing statements. Upon any breach by Customer of these terms and conditions, Serendipity will have all rights and remedies of a secured party under the Uniform Commercial Code, which rights and remedies will be cumulative and not exclusive. Customer is responsible for all costs and expenses incurred by Serendipity in collecting any sums owing by Customer (which may include, but are not limited to, collection agency fees and costs, and reasonable attorneys’ fees). If Serendipity incurs costs collecting on any judgment arising out of Customer’s breach, Customer will be responsible for them, and this provision will survive the entry of any such judgment. Serendipity shall have the right to offset any sum owed by Serendipity or any Serendipity subsidiary to Customer against any sum owed by Customer to Serendipity or any Serendipity subsidiary. All transactions are governed by the laws of the state of New York. The parties waive any right to trial by jury, and Customer waives any right to assert any counterclaim, set-off or recoupment claims in any action brought by Serendipity.
- Products are deemed accepted by Customer unless Customer notifies Serendipity in writing within 10 days of delivery of product shortages, damage or defect. No returns may be made for any reason without a Return Authorization Form issued by Serendipity. If Customer refuses to accept tender or delivery of any products or returns any products without authorization from Serendipity, such products will be held by Serendipity awaiting Customer’s instruction for 20 days, after which Serendipity may deem the products abandoned and dispose of them as it sees fit, without crediting Customer’s account.
- Serendipity will not be liable for any failure or delay in its performance or in the delivery or shipment of products, or for any damages suffered by Customer by reason of such failure or delay, when such failure or delay is caused by, or arises in connection with, any Act of God, fire, flood, accident, riot, earthquake, severe weather, war, governmental interference or embargo, strike, shortage of labor, fuel, power, materials or supplies, delay in delivery by Serendipity’s suppliers or any other cause or causes beyond Serendipity’s reasonable control. Serendipity reserves the right to cancel without liability any order, the shipment of which is or may be delayed for more than 30 days by reason of any such cause. Serendipity reserves the right to allocate in its sole discretion among Customers or potential Customers, or defer or delay the shipment of, any product which is in short supply.
- This Customer Purchase Order contains the complete and entire agreement between the parties with respect to the subject matter of this Purchase Order. No other purchase order or other Customer document will be deemed an offer or counter-offer and any such document is specifically rejected. Serendipity’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. Any addition or change to these terms and conditions must be specifically agreed to in writing by a duly authorized officer of Serendipity before becoming binding on Serendipity.
- If this Customer Purchase Order is placed under a contract with the United States Government, Serendipity agrees to comply with those contract provisions and regulations with which, pursuant to law, it must comply and of which Customer has, at the time of order placement, placed Serendipity on notice. In no event will United States Government Cost Accounting Standards apply. All rights in technical data and software owned or licensed by Serendipity or the manufacturer are hereby reserved and deemed restricted or limited. No provision of Customer’s contract with the government will be binding on Serendipity or the manufacturer except as expressly set forth in this paragraph.
- Unless specifically otherwise agreed in writing by Serendipity, Customer acknowledges and agrees that products sold by Serendipity are not intended for and will not be used in life support systems, human implantation, nuclear facilities or systems or any other application where product failure could lead to loss of life or catastrophic property damage. Customer will defend, indemnify and hold Serendipity, and its officers, directors, employees, agents and advisors, harmless from and against any and all claims, suits, obligations, judgments, losses, damages and costs, including without limitation reasonable attorneys’ fees and expenses arising out of or in connection with Customer’s breach of the provisions of this paragraph.
- Any or all products may be subject to export or resale restriction or regulation, and Customer acknowledges that it will comply with such regulations or restrictions. Any or all products may have been imported. Country of origin information is as provided to Serendipity by its suppliers and is, where applicable, located on the products themselves or the supplier’s innermost packaging thereof.
- Serendipity certifies that it complies with all applicable requirements of Sections 6, 7 and 15 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.
- Limitation on Liability: Except for the warranty coverage referenced in paragraph 3, above, SERENDIPITY WILL NOT HAVE ANY LIABILITY OR OBLIGATION TO CUSTOMER OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE CAUSED IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, BY THE INADEQUACY OF ANY PRODUCTS FOR ANY PURPOSE, BY ANY DEFICIENCY OR DEFECT IN ANY PRODUCT(WHETHER OR NOT COVERED BY ANY WARRANTY), BY THE USE OR PERFORMANCE OF ANY PRODUCTS OR BY ANY FAILURE OR DELAY IN SERENDIPITY’S PERFORMANCE HEREUNDER. SERENDIPITY SHALL IN NO EVENT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, COLLATERAL, DIRECT OR INDIRECT, SPECIAL OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUE, WORK STOPPAGE, IMPALEMENT OF OTHER GOODS, LOSS BY REASON OF SHUTDOWN OR NON-OPERATION OR INCREASED EXPENSES OF OPERATION, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE.
- The performance of any value-added service may void the manufacturer’s warranty and render products non-returnable. Orders incorporating such services are, accordingly, non-cancelable and the products are non-returnable. Any third-party value-added service provider is deemed to be an agent of Customer.
- Any software included in or relating to products is supplied by the manufacturer. Serendipity makes no representation or warranty with respect there to and will have no liability in connection therewith. Customer agrees to comply with the manufacturers or other requirements with regard to proprietary and similar rights in and to such software (including any requirement to enter into a separate license agreement and prohibitions against duplicating or disclosing the same), even if the seal on any “shrink wrapped” software has been broken by Serendipity, and will indemnify Serendipity against and hold it harmless from any and all liability, claims, suits, obligations, judgments, losses, damages and costs, including without limitation reasonable attorneys’ fees and expenses arising out of or in connection with a breach or purported breach of such requirements.
- Serendipity will make every effort to authenticate all products through its 4-tier counterfeit inspection process. However, it is understood and agreed that occasionally, due to the limited availability of product resources, information or electrical data, for a particular product, Serendipity may be unable to conduct a thorough investigation of a particular product or part. Accordingly, Serendipity shall provide Customer with a specified amount of time for Customer to evaluate such product or part independently (Customer’s Evaluation), as set forth in the attached addendum. After Customer’s Evaluation, Customer will then have the option to return such product to Serendipity within an allotted period of time. Serendipity will follow strict counterfeit disposal policies after receiving the returned product for any product which is believed to be counterfeit. Customer assumes all responsibility and liability upon acceptance of the product or part after Customer’s Evaluation. Serendipity specifically disclaims any and all liability whatsoever upon Customer’s acceptance of the product or part after Customer’s Evaluation.
- All information pertaining to and the results of Customer’s Evaluation of the products supplied by Serendipity shall be deemed strictly confidential (the Confidential Information) and shall not be disclosed to any third party unless approved in writing by Serendipity. If Customer is subpoenaed or otherwise ordered by a court to disclose the Confidential Information, Customer shall immediately notify Serendipity before responding to any such subpoena or court order in order to provide time for Serendipity to seek a protective order or other appropriate relief. It is understood that a breach of this provision by Customer shall cause irreparable harm to Serendipity the loss of which cannot be reasonably or adequately compensated in damages in an action at law.
- The information pertaining to and the results of Customer’s Evaluation shall not be considered confidential if the information: (a) was in the possession of the Customer before receipt from Serendipity; (b) is or becomes a matter of public knowledge through no fault of the Customer; (c) is rightfully received by the Customer from a third party without a duty of confidentiality to Serendipity; or (d) is disclosed by Customer after receiving prior written approval from a duly authorized representative of Serendipity.
- Serendipity may assign accounts receivable to a Serendipity affiliate. In order to defray the cost of Customer account administration, any credit balance or other sum owed to Customer which remains unclaimed by Customer for a period of eighteen months will become the property of Serendipity.
- No Customer Purchase Order may be cancelled, rescheduled or reconfigured without Serendipity’s prior written authorization and, in such event, Customer will be liable to Serendipity for any additional costs and expenses incurred by Serendipity.
- Prices are subject to change by Serendipity upon Customer’s rescheduling or reconfiguration of Orders. Prices are also subject to change in response to supplier price increases, whereupon, Customer may cancel the undelivered portion of any affected Order by delivering written notice to Serendipity prior to the shipment thereof and within 10 days of its receipt of notice of the price increase.
- If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from this Customer Purchase Order.
- The provisions of this Customer Purchase Order shall be interpreted in accordance with the laws of the State of New York without resort to said state’s Conflict of Law rule, and in accordance with its fair meaning and not strictly against either party. Any claims arising hereunder or relating hereto shall be prosecuted only in the appropriate court of the State of New York within the county of Suffolk. The parties hereby consent to venue and to the exercise of personal jurisdiction over them in such courts and agree not to make any claim or demand in any other jurisdiction or forum.
- Additionally, if Customer is a foreign entity: any dispute, controversy or claim arising out of or relating to this contract, including the validity, invalidity, breach, or termination thereof, shall be finally settled by binding arbitration administered by the American Arbitration Association and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction. The arbitration shall be conducted in English in New York, New York, United States in accordance with the United States Arbitration Act, and the substantive laws of the State of New York. There shall be one arbitrator, named in accordance with such rules.
- The Fabrication Authorization is 2.0 weeks and the material authorization is 2.0 additional weeks, for a total of 4.0 weeks. All information provided by Serendipity beyond 4.0 weeks is for planning purposes only and does not obligate Serendipity to purchase any amounts over the 4.0 weeks of finished goods and raw material.