Calmax Technology Inc.
Sales Terms & Conditions
1.1. Terms and Conditions. These Terms and Conditions apply to all sales of products (“Products”) and services for Product development (“Services”) by Calmax Technology Incorporated (“Calmax”) to Customer.
1.2. Order Submission by Customer.
1.3. Order Approval; Credit. Customer acknowledges that all orders will be subject to approval and acceptance by Calmax in writing. Calmax will use commercially reasonable efforts to provide acceptance or rejection of each order within five (5) business days of receipt. Based on Calmax’s review of Customer’s credit, Calmax may require pre-payment or other payment assurances prior to shipment of the applicable order. All Purchase Orders are non-cancellable and Customer acknowledges that Calmax may purchase parts in reliance on such Purchase Order, including, without limitation, long lead time parts.
2.1. Price. The purchase price for Products and Services (“Purchase Price”) is based in part on the costs of Product parts, shop rates and Services fees. The Purchase Price will be as set forth in the applicable Sales Quotation or as otherwise adjusted or specified by Calmax in writing to Customer prior to shipment. Customer acknowledges that prior to shipment Calmax may make adjustments to the Purchase Price due to parts costs and/or supply chain constraints. Calmax may notify Customer of changed pricing at any time prior to shipment. If Customer does not notify Calmax in writing within five (5) days of the date of Calmax’s notice of the change, then Customer will be deemed to have accepted the change.
2.3. Taxes. Unless otherwise stated in the applicable Sales Quotation, Purchase Prices do not include, and are net of, any governmental taxes, including but not limited to national, state, or local sales, value added and use taxes, customs duties and other governmental assessments (“Taxes”). Customer will be solely responsible for payment of all such Taxes and will indemnify and hold Calmax harmless in the event of any claim related to Taxes.
Customer must provide all specifications, CAD drawings and instructions and the like (“Specifications”) for the Products via upload to the Calmax customer portal or as otherwise specified by Calmax. Customer hereby grants Calmax a non-exclusive, non-transferable license to use the Specifications to provide the Services and in connection with the development and provision of the Product. All other rights in and to the Specifications are hereby reserved by Customer. Customer acknowledges that delivery dates may be delayed due to Customer’s failure to promptly provide the Specifications to Calmax and/or due to any changes that Customer makes to the Specifications.
All Products delivery dates are subject to Calmax’s leadtimes and are estimates only. Products will be packed for shipment and delivered Ex Works Incoterms 2020 to Customer or its carrier agent at Calmax’s facility, at which time risk of loss and title will pass to Customer, unless otherwise agreed upon between Calmax and Customer. In the absence of specific shipping instructions from Customer, Calmax will choose the method of shipment in its discretion. Customer will pay all freight, insurance, and other shipping expenses. Calmax may make partial shipments, to be separately invoiced and paid for when due. Calmax will use reasonable efforts to meet Customer’s requested delivery schedules for Products and Services, but delay in delivery of any installment shall not relieve Customer of its obligation to accept the remaining deliveries. Upon delivery of all or part of any Products and Services, such sales will be deemed final.
5.1. Hardware. Calmax warrants that each hardware component of a Product will, for a period of one (1) year from the date of delivery of the Product to Customer, be free from defects in material and workmanship under normal use.
5.2. Remedy. Customer’s sole and exclusive remedy and the sole and exclusive and entire liability and obligation of Calmax in the event of a violation of the warranty set forth herein is, at Calmax’s option, to repair or replace any Product (or component) that fails during the warranty period at no cost to Customer.
5.3. Restrictions. The foregoing limited warranties extend only to the original Customer (and not to any subsequent purchasers or third parties). The foregoing limited warranties do not apply if a Product: (i) has been altered or serviced, except by Calmax; (ii) has not been installed, operated, repaired, or maintained in accordance with Calmax’s instructions,; (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence or accident, (iv) is licensed for beta, evaluation, testing or demonstration purposes for which Calmax does not receive a payment of full Purchase Price; or (v) has been damaged or rendered defective by the use of parts not manufactured or sold by Calmax.
5.4. Time Limitation. As a condition of Calmax’s warranty-related obligations, Customer must notify Calmax of any warranty claim within the applicable warranty period set forth above and comply with Calmax’s reasonable requirements in connection with such claim, including, without limitation, obtaining a RMA from Calmax.
EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY GRANTED IN SECTION 5, CALMAX AND ITS THIRD PARTY SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES AND GUARANTEES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCTS OR SERVICES DELIVERED HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NEITHER CALMAX NOR ITS THIRD PARTY SUPPLIERS HAVE AUTHORIZED ANYONE TO MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PRODUCTS OR SERVICES DELIVERED HEREUNDER. THE PRODUCTS ARE NOT FAULT-TOLERANT AND THE PRODUCTS ARE NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING WITHOUT LIMITATION, IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, DIRECT LIFE-SUPPORT MACHINES OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE PRODUCTS COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). CALMAX EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY AND ANY OTHER LIABILITY FOR HIGH RISK ACTIVITIES.
Customer will, at its expense, defend any suit brought against Calmax based upon a third party claim that the Product or its Specifications misappropriate any trade secret or infringe a copyright or patent. Customer will pay costs and damages finally awarded against Calmax directly attributable to any such claim. Calmax will promptly notify Customer in writing of such claim and allow Customer to control the defense of the claim provided that Customer will not settle a claim on behalf of Calmax without first obtaining Calmax’s prior written approval.
8.1. Obligations. Each party (“Recipient”) agrees that it will not disclose to any third party or use any technical information or other proprietary information (collectively, "Confidential Information") disclosed to it by the other party (“Discloser”) except as necessary to perform its obligations hereunder or as agreed in writing by Discloser. Recipient will take all reasonable measures to maintain the confidentiality of all Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. "Confidential Information" will not include information that: (a) is in or enters the public domain without breach of these Terms and Conditions; (b) Recipient lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (c) Recipient develops independently, which it can prove with credible evidence.
8.2. Injunctive Relief. Recipient acknowledges that the disclosure of Discloser’s Confidential Information may cause substantial harm to Discloser that could not be remedied by the payment of damages alone. Accordingly, Discloser will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any breach of this Section.
9.1 Limit on Direct Damages. THE COLLECTIVE AND AGGREGATE LIABILITY OF CALMAX AND ITS THIRD PARTY SUPPLIERS UNDER THESE TERMS AND CONDITIONS WILL BE LIMITED TO THE AMOUNTS PAID FOR THE PRODUCTS.
9.2 Disclaimer of Consequential Damages. NEITHER CALMAX NOR ITS THIRD PARTY SUPPLIERS WILL HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY) OR OTHERWISE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF REVENUE OR PROFIT, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR SERVICES FURNISHED TO CUSTOMER BY CALMAX, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Failure of Essential Purpose. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9.4 Jurisdictional Issues. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER. IN SUCH EVENT, THE LIABILITY OF CALMAX AND ITS THIRD PARTY SUPPLIER FOR SUCH DAMAGES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
10.1. Assignment. These Terms and Conditions will bind and inure to the benefit of each party's permitted successors and assigns. For the avoidance of doubt, Calmax may freely assign these Terms and Conditions to any successor in interest by way of merger, acquisition or other sale of all or substantially all of its assets. Customer may not assign these Terms and Conditions, in whole or in part, without Calmax's written consent. Any attempt to assign these Terms and Conditions without such consent will be null and void.
10.2. Governing Law and Venue. These Terms and Conditions will be governed by and construed in accordance with the laws of the State of California applicable to agreements entered into, and to be performed entirely, within California between California residents. Any suit hereunder will be brought solely in the federal or state courts in the Northern District of California and Customer hereby submits to the personal jurisdiction thereof. EACH OF THE PARTIES UNCONDITIONALLY AND IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL FOR ANY DISPUTES UNDER THESE TERMS AND CONDITIONS.
10.3. Severability. If any provision of these Terms and Conditions is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms and Conditions will remain in force.
10.4. Force Majeure. Neither party will be responsible for any failure to perform due to causes beyond its reasonable control (each a "Force Majeure"), including, but not limited to, acts of God, pandemics or epidemics, supply chain constraints, war, riot, embargoes, acts of civil or military authorities, denial of or delays in processing of export license applications, fire, floods, earthquakes, accidents, strikes, or fuel crises, provided that such party gives prompt written notice thereof to the other party. The time for performance will be extended for a period equal to the duration of the Force Majeure, but in no event longer than sixty (60) days.
10.5. Notices. All notices under these Terms and Conditions will be deemed given when delivered personally, sent by confirmed email transmission, or sent by certified or registered U.S. mail or nationally-recognized express courier, return receipt requested, to the address shown below or as may otherwise be specified by either party to the other in accordance with this section.
10.6. Independent Contractors. The parties to these Terms and Conditions are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.
10.7. Waiver. No failure of either party to exercise or enforce any of its rights under these Terms and Conditions will act as a waiver of such rights.
10.8. Export Control. Customer acknowledges and agrees that the Products and technology subject to these Terms and Conditions are subject to the export control laws and regulations of the United States, including but not limited to the Export Administration Regulations (“EAR”), and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Controls. Customer will comply with these laws and regulations. Customer shall not without prior U.S. government authorization, export, reexport, or transfer any goods, software, or technology subject to this Agreement, either directly or indirectly, to any country subject to a U.S. trade embargo (currently Cuba, Iran, North Korea, Sudan, and Syria) or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked Persons" maintained by the U.S. Department of Treasury. In addition, any Products or any technology subject to this Agreement may not be exported, reexported, or transferred to an end-user engaged in activities related to weapons of mass destruction. Such activities include but are not necessarily limited to activities related to: (1) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production, or use of missiles or support of missiles projects; and (3) the design, development, production, or use of chemical or biological weapons. If Customer breaches any of the foregoing, Customer shall indemnify, defend and hold harmless Calmax from any and all losses, claims and damages.
10.9 Entire Terms and Conditions. These Terms and Conditions are the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. Customer further agrees that all other preprinted terms and conditions (including but not limited to any terms and conditions of any Purchase Order or other document issued by Customer in connection with an order or purchase) are expressly excluded from these Terms and Conditions and are rejected by Calmax and are of no force or effect, unless otherwise expressly agreed by an instrument in writing signed by Calmax. These Terms and Conditions may only be modified, or any rights under it waived, by a written document executed by both parties.