PROPOSAL AND SALES TERMS AND CONDITIONS
A. Introduction. These Proposal and Sales Terms and Conditions (this “Agreement”) apply to all proposals and quotes provided by MicroRam Electronics, Inc. (“MicroRam”), and to all sales made by MicroRam, of products (collectively the “Product”) to you (the “Buyer”). By accepting the Product, the Buyer agrees to accept and will be bound by the terms of this Agreement. These terms and conditions may not be amended, altered, or added to without MicroRam’s prior written consent.
B. Incorporation of MicroRam’s Proposal and Sales Terms and Conditions. All terms and conditions provided to Buyer by MicroRam with any proposals or quotes for the Product are hereby incorporated by reference into this Agreement and Buyer’s acceptance of the Product shall constitute Buyer’s affirmation of its acceptance of such Proposal and Sales Terms and Conditions.
C. Product Limitations. Unless specifically stated otherwise by MicroRam in writing, the Products are not designed or intended for use in connection with contracts, environments or applications requiring fail-safe performance or sourcing from OEM or authorized distributors, such as medical devices, military devices, and other government contracts. Buyer is advised that it should not utilize the Product to perform any government contract that requires proof of authenticity or documentation of traceability.
D. Warranty. MicroRam warrants that the Product sold will be new, unused and, unless specified otherwise, free of all liens and encumbrances. THE PRECEDING WARRANTY IS THE ONLY WARRANTY MADE BY MICRORAM WITH RESPECT TO THE PRODUCT SOLD. MICRORAM DISCLAIMS ALL OTHER WARRANTIES AND THERE IS NO OTHER WARRANTY, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
E. Claims/Notice of Defects. Failure of the Buyer to object in writing to any Product shipped to it by MicroRam within thirty (30) days after receipt thereof will constitute complete acceptance by Buyer of such Product. Rejected Product must be returned to MicroRam within 45 days after receipt and prior authorization from MicroRam. MicroRam may (at its option) recondition or replace any non-conforming Product within a reasonable time period after receipt. Claims for shipping damage must be made with the carrier.
F. Limitation of Liability. Buyer agrees that in no event will MicroRam be liable for any incidental, consequential, indirect, punitive, or special damages arising out of or in connection with BUYER’S purchase, RESALE, or use of the Product, nor shall MicroRam be liable for any damage to or loss of: revenue, income, profit, savings, data, systems, business opportunity, or equipment that Buyer may incur that in any way arises from or relates to BUYER’S purchase, RESALE, or use of Product. MicroRam’s total liability for all Buyer’s claims, whether based in contract, tort, negligence, strict liability, or warranty, shall not exceed and shall be limited to the total amount paid by Buyer to MicroRam for the Product.
G. Limitation of Actions. Any cause of action arising from or related to this Agreement, breach of it, or the sale of Product to Buyer must be commenced within one (1) year of Buyer’s receipt of the applicable Product.
H. Force Majeure. Fulfillment of Buyer’s order is contingent upon the availability of materials. MicroRam shall not be liable for any delay in delivery or for nondelivery in whole or in part caused by the occurrence of any contingency beyond the control of either MicroRam or suppliers to MicroRam including but not limited to war, sabotage, acts of civil disobedience, failure or delay in transportation, act of any government or agency or subdivision thereof, judicial action, labor dispute, fire, accident, explosion, epidemic, quarantine, restrictions, storm, flood, earthquake or acts of God, shortage of labor, fuel, raw material or machinery or technical failure where MicroRam has exercised ordinary care in the prevention thereof.
I. Governing Law and Venue. This Agreement and any claim, dispute or controversy between Buyer and MicroRam arising from or in way related to this Agreement or Buyer’s purchase, resale, or use of Product shall be governed by the laws of the State of Florida, without regard to conflicts of law. The exclusive venue for any action involving MicroRam and Buyer arising from or related to this Agreement shall be either the state or the federal court located in Hillsborough County, Florida. MicroRam and Buyer agree to submit to the personal jurisdiction of such courts and hereby waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
J. Waiver of Jury Trial. BUYER AND MICRORAM HEREBY WAIVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY RIGHT TO A JURY TRIAL WITH REGARD TO ANY CLAIM OR DISPUTE BETWEEN BUYER AND MICRORAM.
K. Entire Agreement. This Agreement and MicroRam’s Proposal and Sales Terms and Conditions represent the entire agreement between MicroRam and Buyer with respect to the subject matter herein.
L. Severability. If any provision of this Agreement is found to be unenforceable for any reason, such provision shall be reformed, stricken, or modified to the extent necessary to make such provision enforceable and the other terms of the Agreement shall remain in full force and effect.
M. Attorney’s Fees. In the event of any litigation between MicroRam and Buyer, the prevailing party shall be entitled to recover the reasonable fees of its attorneys and its cost at trial and on appeal.
N. Counterfeit Parts. MicroRam shall maintain a counterfeit parts detection and avoidance system in accordance with established standards and best practices. Should Buyer determine that MicroRam may have supplied or did supply a suspect or confirmed counterfeit electronic part, Buyer shall immediately inform MicroRam and afford MicroRam a reasonable opportunity to offer information in explanation or rebuttal. MicroRam shall perform inspection and test as it in its sole discretion determines to be technically sound and report on its findings to Buyer within ten (10) business days after receipt of such notice. Should MicroRam agree that the part is a counterfeit or if MicroRam is unable to resolve whether it is counterfeit, MicroRam shall (i) quarantine and prevent further delivery of such part to any customer, (ii) cooperate as reasonably required by Buyer in giving notice to the Government Industry Data Exchange Program (GIDEP) or other authority, (iii) cooperate with any authorized law enforcement or investigative agency that acts upon the report of such counterfeit, and (iv) replace any counterfeit electronic part with an item acceptable to Buyer at no additional cost to Buyer, or, at MicroRam’s sole election, refund the purchase price paid by Buyer.