STANDARD TERMS AND CONDITIONS OF SALE
1.1 PARTIES -The terms “DDI” and “Seller” shall refer to DIGITAL DYNAMICS, INC., a California corporation located at 5 Victor Square, Scotts Valley, CA 95066. The term “Buyer” and “Customer” shall refer to any individual or business who purchases products or services from DDI.
1.2 ACCEPTANCE – The prices listed in standard DDI price lists or quotations for hardware or services are contingent upon Buyer’s acceptance of all of the terms and conditions of sale listed in this document and on the DDI quotation documents. In the event some term or condition is exempted by special agreement, all remaining terms and conditions shall continue to apply. All exemptions, amendments or modifications to this agreement shall be in writing and must be executed by both parties to be valid. Placement of an order with DDI shall constitute acceptance of these terms and conditions of sale by the Buyer. If any term or condition of a Buyer’s standard order form conflicts with the terms contained herein, DDI’s terms shall supersede the terms and conditions in Buyer’s contract/quotation document.
1.3 DURATION – Prices listed on DDI standard price lists or quotations will be firm for 60 days from the date listed on the price list or quotation, whichever is later.
LIMITED WARRANTY – Seller warrants to Buyer that the original equipment catalogued or manufactured by Seller and furnished hereunder will be free from defects in material and workmanship, and will be of the kind and quality designated or described in Seller’s Quotation. The foregoing warranty is exclusive and in lieu of all other warranties whether oral, or implied, and Seller makes no warranty of merchantability or fitness for a particular purpose. Seller’s Warranty shall be for 24 months on the product enclosure and mounting systems and 12 months for all electrical and electronic components from the date of shipment to Buyer. If this equipment does not meet the warranty specified above, and Buyer notifies DDI of this promptly, DDI shall, at its option, and without charge to Buyer correct any such defect, or any alleged non-conformance with the product specifications, either by (a) repairing any defective part or parts which are returned to Seller freight prepaid or (b) by delivering to Buyer’s plant a repaired or replacement part. The conditions for any tests of any of this equipment alleged to be defective shall be mutually agreed upon, and Seller shall be notified of and may be represented at all tests that may be made. Seller’s liability to Buyer arising out of supplying this equipment, or its use, whether based on warranty, contract, or negligence, shall not in any case exceed the cost of the equipment. Upon the expiration of the applicable warranty period as aforesaid, all such liability shall terminate. Product disassembly or modifications by Buyer void Sellers Warranty. The foregoing shall constitute Buyer’s sole remedy and Seller’s sole liability. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES.
2.1 PAYMENT TERMS – A) All sales are F.O.B. DDI’s plant in Scotts Valley, CA USA. F.O.B. is defined as Free On Board, Buyer to pay all freight, delivery and associated charges for transporting the product. Payments are due in U.S. funds, Cash on Delivery (COD), unless otherwise agreed to by the parties. Subject to credit approval, DDI may grant payment terms: 0.5%, 10 days or Net 30 days. Where credit terms are approved, orders in excess of $10,000.00 may require 25% down payment with the order. A 1.50 % per month service charge will be applied to all overdue accounts. All orders are subject to credit approval by DDI’s accounting department. B) Special Payment Terms: Large engineering development or software projects (defined as in excess of $100,000.00) may be purchased as follows: 30% Down Payment with order, 30% in 60 days, 30% upon full order shipment of deliverables, and 10% due upon final acceptance.
3.0 INTELLECTUAL PROPERTY
3.1 DDI EXCLUSIVE OWNERSHIP RIGHTS – DDI expressly reserves all right, title and interest in and to hardware or software designs, engineering improvements and innovations (including all intellectual property therein and any licensing rights) which are developed by DDI pursuant to the contractual agreement between DDI and Buyer. Buyer shall derive no interest in any hardware or software designs, improvements and innovations developed by DDI, unless such rights are expressly granted, in writing, by DDI to Buyer as part of a Purchase Order accepted by DDI. Payment by Buyer of any non-recurring engineering (NRE) charges (or similar terminology) for work performed by Seller, shall not constitute a transfer to Buyer of any ownership or licensing rights unless otherwise stipulated in writing by Buyer and Seller.
3.2 SOFTWARE LICENSE AGREEMENT—Buyer agrees to be bound by the terms contained in the DDI Software License Agreement, attached as Exhibit A.
3.3 TRADE SECRETS – DDI and Buyer agree to execute a separate Nondisclosure Agreement, which shall be attached to and become part of the contractual agreement between DDI and Buyer.
4.0 OTHER TERMS
4.1 CANCELLATION OR DEFERRED DELIVERY – Buyer may not cancel Buyer’s order without Seller’s written consent. Seller’s written consent shall not be unreasonably withheld provided Buyer agrees to reimburse Seller of reasonable and proper expenses incurred by Seller in connection with the performance of the contract as of the date of cancellation. Buyer’s request for deferral of delivery may be treated the same as cancellation of Buyer’s order, and, in such event, cancellation charges will apply.
4.2 DELIVERY – Shipping dates are approximate and are based upon prompt receipt by Seller of all necessary information, including written purchase orders and any partial payments. Partial shipments may be made unless Buyer instructs Seller otherwise. If this contract calls for the shipment of goods in separate lots, or if partial shipments are made as herein authorized, this contract shall be deemed an “installment contract ” within the meaning of the applicable law.
4.3 DELAYS – Seller shall not be liable for delays in delivery which are due to causes beyond Seller’s reasonable control, including, but not limited to, delays due to: (1) acts of God, including earthquakes, floods or similar disasters, civil or military authority actions, strikes, labor actions, fire, epidemics, war, riot, delays in transportation, or the like; (2) inability to reasonably obtain necessary labor, materials, components, or manufacturing facilities; (3) changes in specifications, directions, or design requested by Buyer or agreed to by Buyer; or Buyer’s delay in approving documents or any act by Buyer that reasonably contributes to Seller’s ability to perform. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of the delay. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES.
4.4 TAXES, FEES, OR DUTIES – The prices quoted herein do not include any export fees or duties, federal, state, local, or other taxes levied on the equipment, its use or sale, or on this agreement. All such taxes and fees, however designated, shall be billed to Buyer in accordance with the law in effect at the time of delivery unless Buyer furnishes satisfactory documentation of Buyer’s exemption from such tax. Buyer shall also reimburse Seller for any state, county, or local property taxes respecting the equipment, imposed, assessed, billed or becoming due and payable by Seller on or after the date such equipment or its component parts are shipped from Seller’s plant.
4.5 ADDITIONAL PROJECT COSTS – Buyer agrees to reimburse Seller for any additional costs attributable to changes in the specifications, directions, or design of the equipment furnished hereunder which are requested or approved by Buyer at Seller’s standard prices in effect at the time such changes are ordered.
4.6 RISK OF LOSS OR DAMAGE IN TRANSIT – Seller’s responsibility for damage to or loss of the equipment furnished hereunder ceases when Seller delivers it to the carrier at Seller’s plant. Any claim for damage to or loss of this equipment in transit should be made by Buyer against the carrier. Any equipment which Buyer obtains from Seller to replace equipment damaged or lost in transit will be sold to Buyer at Seller’s standard prices in effect at the time of such replacement. Buyer may request Seller to purchase shipping insurance at Buyer’s expense.
4.7 SELLER’S ACCEPTANCE AND APPLICABLE LAW – All orders are subject to acceptance by Seller at our main office in the city of Scotts Valley, Santa Cruz County, California. This contract will be governed by the laws of the State of California, United States of America.
4.8 INTERNATIONAL SALES – International Sales will be offered at standard DDI list prices quoted in U. S. Dollars, but prices do not include export packaging, export or import fees, tariffs or taxes, which shall be the responsibility of the Buyer.