TERMS AND CONDITIONS
TERMS AND CONDITIONS OF SALE
October 7, 2021
All quotations and sales by Brainchip, Inc., its subsidiaries, or affiliates ("Seller") to you (“You” or “Your”) are subject to these terms and conditions (“Terms”) which shall apply to the purchase of development kit products (“Products”) from Seller. These Terms are deemed an offer and a rejection of any other terms or conditions contained in any of Your documents (which, if construed to be an offer, is hereby rejected). This transaction with Seller is expressly made conditional on Your assent to the Terms set forth below, which are binding to the exclusion of any additional or different terms contained in any other document, any course of dealing or performance, and any trade custom or usage. Your acceptance of any product or service will manifest Your assent to these Terms.
- Terms of payment are made at time of purchase; prices do not include any taxes, freight, handling, duty, tariffs, or other similar charges, payment of which will be solely Your responsibility.
- Shipment terms are FCA Seller's facility (INCOTERMS 2020), and Seller may select a carrier. Seller's responsibility for any loss or damage ends, and title passes, when products (including software, hereafter, “Products”) are tendered or delivered to the carrier, to You, or to Your agent, whichever occurs first. You shall pay for storage charges if Seller holds Products at Your request for up to a maximum of 60 days, and You agree to accept delivery or tender of Products upon completion of such period. Seller retains a purchase money security interest in Products sold to You and in the proceeds of any resale of such Products until Seller’s invoices to You have been paid in full.
- Products are meant for research and testing and development purposes only and are not to be used for any commercial or production implementation use.
- For 30 days after delivery, Seller warrants Products assembled or customized by Seller against defects caused solely by faulty assembly or customization. Seller warrants that any services performed exclusively by it are performed in accordance with industry standards. To the extent provided by Seller’s supplier(s) (“Supplier(s)”), Products, services, and the components and materials utilized in any assembled or customized Products or services are subject to Supplier’s standard warranty, which is expressly in lieu of any other warranty, express or implied, by Seller or Supplier. Your exclusive remedy, if any, under these warranties is limited, at Seller's election, to: (a) refund of Your purchase price, (b) repair by Seller or Supplier(s)of any Products or services found to be defective, or (c) replacement of any such Product or reperformance of any services. If there is no Supplier warranty, You take all such Products and services “as-is” without any warranty. You acknowledge that except as specifically set forth herein, THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND BY SELLER, EXPRESS OR IMPLIED, AS TO THE CONDITION OR PERFORMANCE OF ANY PRODUCTS OR SERVICES, THEIR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, NONINFRINGEMENT, OR OTHERWISE. SELLER ASSUMES NO RESPONSIBILITY OR LIABILITY FOR SUPPLIERS’ PRODUCT OR SERVICE SPECIFICATIONS OR THE PERFORMANCE OR ADEQUACY OF ANY DESIGN OR SPECIFICATION PROVIDED TO SELLER.
- Seller’s rights and remedies will be cumulative and not exclusive. You are responsible for all losses, costs, and expenses, including attorney’s fees, incurred by Seller in collecting any sums You owe. Seller will have the right to offset against any amounts owed by Seller to You. Seller further reserves the right to suspend or terminate access to products or services, and such suspension or termination by Seller does not modify the amounts due under the transaction. These Terms and any matter arising out of or related thereto are governed solely by the laws of the State of California, without regard to its conflict of law principles. No provisions of the United Nations Convention on Contracts for International Sale of Goods, including any amendments thereto, will apply. Any proceeding arising out of or related to this Agreement must be commenced in any court of competent jurisdiction located in the State of California. The parties hereby submit to the exclusive jurisdiction of such court and waive (a) any right to a jury trial and (b) defense of lack of personal jurisdiction in such court. EACH OF THE PARTIES IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH PROCEEDING IN SUCH COURTS AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN ANY SUCH COURTS HAS BEEN BROUGHT IN ANY INCONVENIENT FORUM. Each party agrees that a final judgment in any such proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
- Products or services are deemed accepted by You unless You notify Seller of shortages, damage, or defects in writing within 10 days of delivery of Products or performance of services. All returns or refunds must comply with Seller’s returns or refunds policy. If You refuse to accept tender or delivery of any Products or return any Products without authorization from Seller, Seller shall hold such Products awaiting Your instructions for 20 days, after which Seller may deem the Products abandoned and dispose of them without crediting Your account. You warrant that any Products returned are the original Products Seller shipped to You and are unaltered.
- Seller will not be liable for any damages due to any failure or delay in its performance as result of any events beyond its reasonable control. In its sole discretion, Seller may allocate, defer, delay, or cancel the shipment of any Product without liability.
- If Your order is placed under a contract with the United States Government, Seller agrees to comply only with those contract provisions and regulations that meet both of the following conditions: (a) Seller must comply with such provisions and regulations applicable to a distributor as a matter of law, and (b) You have identified them in writing, and they have been accepted in writing by Seller, at the time of order placement. In no event will United States Government Cost Accounting Standards apply. To the extent not exempt, You 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, or national origin. You covenant that Products and services provided by Seller 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. In the event that You breach such covenant, You will fully defend, indemnify, and hold harmless Seller, its agents and Suppliers from any claims resulting from such breach.
- You will comply with any applicable export or resale restrictions and regulations. Seller does not warrant and will not be liable for any error regarding the accuracy of any statement as to product country of origin, ECCN, HTS Code, RoHS compliance, parametric data, conflict mineral data, or compliance with applicable law. You certify that You comply with all applicable laws, including the labor laws and regulations and anti-bribery regulations in the jurisdictions where You operate.
- Except for the exclusive warranty in paragraph 3, NEITHER SELLER NOR SUPPLIER(S) WILL HAVE ANY LIABILITY OR OBLIGATION TO YOU OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE CAUSED IN WHOLE OR IN PART BY (a) ANY INADEQUACY, DEFICIENCY, OR DEFECT IN ANY PRODUCTS OR SERVICES (WHETHER OR NOT COVERED BY ANY WARRANTY), (b) THE USE OR PERFORMANCE OF ANY PRODUCTS OR SERVICES, OR (c) ANY FAILURE OR DELAY IN SELLER'S PERFORMANCE HEREUNDER, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, COST OF REPLACEMENT GOODS OR SERVICES, REWORK, LOSS OF DATA, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWSOEVER CAUSED, INCLUDING VIA SELLER’S OR SUPPLIER’S NEGLIGENCE, WHETHER OR NOT YOU HAVE INFORMED SELLER OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH DAMAGES. IN NO EVENT WILL SELLER’S LIABILITY, REGARDLESS OF BASIS, EXCEED THE PRICE PAID FOR THE PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM.
- Notwithstanding paragraph 3, the performance of any value added service may void Supplier’s warranty. Orders incorporating such services may become non cancelable and the Products non returnable. Any third-party value added service provider is deemed to be Your agent. Seller will have no liability for any technical advice offered or given.
- All rights in intellectual property owned or licensed by Seller or Supplier are hereby reserved and deemed restricted or limited. Seller makes no representation or warranty with respect to such rights and will have no liability in connection with them. You agree to comply with all requirements with regard to any intellectual property (including any requirement to enter into a separate license agreement and prohibitions against duplicating, reverse engineering, or disclosing the same), even if Seller has broken the seal on any “shrink wrapped” software. If You provide Seller with any intellectual property, You represent and warrant that You have all necessary legal rights to provide such intellectual property, and Seller’s use or sale of such intellectual property will not infringe the proprietary rights of any third party. You shall indemnify Seller against and defend and hold it harmless from all liability, cost, or expense arising out of or relating to any (a) breach or alleged breach of these terms and conditions, (b) allegation or claim, including infringement claims, that arise from Your use of Products or services in combination with other Products or services, or (c) alleged or actual infringement of any intellectual property rights provided by You to Seller.
- None of Your orders may be cancelled, rescheduled, reconfigured, or assigned without Seller's prior written authorization, and in such event, You will be liable to Seller for any additional costs and expenses incurred by Seller. Prices are subject to change by Seller for any reason, including (a) upon Your rescheduling or reconfiguration of orders, or (b) in response to Supplier’s price increases or if a price has been quoted in error, whereupon You may cancel the undelivered portion of any affected order by delivering written notice to Seller prior to the shipment thereof and within 10 days of Your receipt of notice of the price increase. Seller may assign its accounts receivable. In order to defray the cost of Your account administration, any amount owed to You which remains unclaimed by You for a period of 12 months will become the property of Seller. If a delay is caused by You, Seller reserves the right to apply a penalty.
- If any term or provision set forth herein is deemed to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a court determination that any term or provision is invalid, illegal, or unenforceable, the court may modify these terms and conditions to affect our original intent as closely as possible in order that the transactions contemplated hereby be consummated to the greatest extent possible as originally contemplated.
- These Terms are subject to change and are effective upon Seller posting the updated Terms to its website. (available at https://www.brainchipinc.com/terms-and-conditions-of-sale)