Terms And Conditions
Antaya Technologies Corp.’s Terms and Conditions of Sale, as set forth herein, apply to all purchase orders accepted by Antaya Technologies Corp. (“ANTAYA”) and represent the sole and exclusive terms upon which ANTAYA will sell any goods or services (“Products”) to any buyer (“Buyer”). These Terms and Conditions of Sale may be accessed at http://www.antaya.com/terms.html, and a hard copy of these Terms and Conditions of Sale may be obtained from ANTAYA by written request. ANTAYA’s quotation, drawing, invoice, order acknowledgement or other correspondence does not, and shall not under any circumstances be deemed to, incorporate or assent to any terms and conditions proposed by Buyer in any Request for Quotation or other communication. Any terms and conditions proposed by Buyer that differ from or are additional to these Terms and Conditions of Sale are unacceptable to ANTAYA, are expressly rejected by ANTAYA, and shall not be binding upon ANTAYA unless expressly accepted on behalf of ANTAYA by the President of ANTAYA in a writing making specific reference to these Terms and Conditions of Sale and the precise additional or different terms and conditions to which ANTAYA agrees (an “Authorized Statement of Varied Terms”). ANTAYA’s failure to object to provisions contained in any communication from Buyer shall not be deemed an acceptance thereof nor a waiver of any right to enforce these Terms and Conditions of Sale.
CONTROLLING TERMS AND CONDITIONS. GOODS FURNISHED AND SERVICES RENDERED BY ANTAYA ARE SOLD ONLY ON THE TERMS AND CONDITIONS AS STATED HEREIN. ANTAYA’S OFFER TO SELL IS EXPRESSLY CONDITIONED ON BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS OF SALE. ALL TERMS AND CONDITIONS STATED ON BUYER’S ORDERS FOR PRODUCTS (“PURCHASE ORDERS”) SHALL BE SUBJECT AND SUBORDINATE TO THE TERMS HEREIN. SUBJECT TO THE FOREGOING, THESE TERMS AND CONDITIONS OF SALE, TOGETHER WITH ANY RELATED PURCHASE ORDER OF A BUYER ACCEPTED BY ANTAYA (COLLECTIVELY REFERRED TO HEREIN AS A “SALES CONTRACT”) EMBODY THE ENTIRE AGREEMENT OF ANTAYA AND SUCH BUYER, AND NO OTHER AGREEMENTS, VERBAL OR OTHERWISE, IN RELATION THERETO SHALL BE DEEMED TO EXIST BETWEEN ANTAYA AND SUCH BUYER.
ANTAYA’S acceptance of any Purchase Order from Buyer is expressly made conditional on Buyer’s assent to these Terms and Conditions of Sale unless otherwise specifically agreed to in any Authorized Statement of Varied Terms. In the absence of an Authorized Statement of Varied Terms, the beginning of performance or delivery by ANTAYA shall be for Buyer’s convenience only and shall not be construed to be acceptance of Buyer’s terms and conditions. Acceptance of any Product by Buyer shall be deemed acceptance of these Terms and Conditions of Sale.
PRICE. ANTAYA reserves the right to change prices for Products offered for sale without prior notice. ANTAYA will honor all prices in effect on the date of ANTAYA’s acceptance of a Purchase Order through the earlier to occur of (i) the last day of the stated term of the Purchase Order or (ii) the one hundred eightieth (180th) day from the date of ANTAYA’s acceptance of the Purchase Order. Prices quoted by ANTAYA for a specific metal or materials market are for illustrative purposes only and actual invoiced prices may be higher or lower than quoted, depending on changes in such market between the date of quotation and the date of invoice, the price of relevant precious metals and other raw materials at the time of order, manufacture and/or shipment, and other factors.
All prices are FOB Cranston, Rhode Island unless specified otherwise in an Authorized Statement of Varied Terms. All prices are quoted and billed exclusive of federal, state, and local taxes and of all duties, excise, sales, and similar taxes unless otherwise agreed in an Authorized Statement of Varied Terms.
CREDIT. Buyer’s creditworthiness is at all times subject to approval of the Credit Department of ANTAYA. ANTAYA may require full or partial payment guarantee in advance of shipment or otherwise whenever, in its sole discretion, it considers itself insecure with respect to Buyer’s performance of a Sales Contract.
If ANTAYA extends credit to Buyer, ANTAYA reserves the right to revoke such credit if Buyer fails to pay for any Products when due, and to demand payment before further shipment, delivery or provision of any other Products. Without limiting the foregoing, ANTAYA may at any time alter or suspend credit when, in its opinion, the financial condition of Buyer warrants it. In such case, ANTAYA may require cash payment or satisfactory security before shipment, and/or the payment terms established with respect to Products previously provided may be accelerated.
In the event of default by Buyer in payment, Buyer shall be liable for all of ANTAYA’S costs of collection, including reasonable attorney’s fees.
PAYMENT. Terms of payment are Net Cash 30 Days from date of invoice unless otherwise specified by ANTAYA in an Authorized Statement of Varied Terms. In the event payment is not received within the 30-day period, any unpaid balance shall commence to bear interest at the annual rate of the prime lending rate from time to time in effect at the Bank of America, Providence, Rhode Island, plus 4%, not to exceed the maximum rate allowed by applicable law.
Payment of ANTAYA’s invoices shall be made in U.S. funds by check drawn on a U.S. bank or by wire transfer to an account designated by ANTAYA. Checks received from or for the account of Buyer, regardless of writings, legends or notations on such checks, may be applied by ANTAYA against amounts owing by Buyer at the sole discretion of ANTAYA. In the event ANTAYA instructs Buyer to make remittances directly to a specific financial institution, Buyer agrees to promptly comply with such instructions.ANTAYA retains and Buyer grants a security interest in all goods purchased by Buyer, including all additions to and replacements of such goods, until Buyer has made payment in full in accordance with these Terms and Conditions of Sale and, as applicable, any Authorized Statement of Varied Terms. Buyer shall cooperate with ANTAYA in executing documents, including a Uniform Commercial Code (UCC) Financing Statement, and performing any filings and recordings as ANTAYA may consider necessary for the protection of the security interest granted hereby. If Buyer does not make payments as agreed, the security interest allows ANTAYA to repossess the subject Products. Buyer is responsible to ANTAYA for any loss or damage to any such Products until the purchase price for same is paid in full.
TERMINATION OR MODIFICATION. Purchase Orders, once accepted by ANTAYA, are non-cancelable and may only be modified or terminated by Buyer with ANTAYA’s written consent in the form of an Authorized Statement of Varied Terms. If all or part of a Purchase Order is terminated with ANTAYA’s written consent, Buyer, as a condition to the effectiveness of such termination, shall pay termination charges based on expenses and costs incurred in the production or provision of the Products through the effective time of the termination. The expenses and costs shall include, but not be limited to, adjustment in price to reflect a reduction in quantity ordered, expenses of disposing of materials on hand or on order and any losses resulting from such disposition, and a reasonable profit. Any Products delivered to or for Buyer prior to ANTAYA’s consent to termination shall be paid for in full by Buyer.
DELIVERY AND TRANSPORTATION. All delivery indications are estimated and are dependent in part on prompt receipt from Buyer of all necessary information to properly service a Purchase Order. ANTAYA shall not be liable for any premium transportation or other costs or losses incurred by Buyer as a result of ANTAYA’s inability to deliver Products in accordance with Buyer’s requested delivery dates.
ANTAYA shall not be liable for delays in delivery or for failure to perform as a result of causes beyond the reasonable control of ANTAYA, including, without limitation: Acts of God, acts or omissions of Buyer or civil or military authorities, fire, strikes, epidemics, quarantine, flood, earthquakes, riot, war, delays in transportation, or the inability to obtain necessary labor, materials, or supplies. ANTAYA reserves the absolute right to allocate inventory and production among customers of its choosing, which may or may not include Buyer, if such allocation becomes necessary in the judgment of ANTAYA.
ANTAYA reserves the right to make deliveries in installments. Partial shipments shall be billed as shipped and payments therefore are subject to the terms of payment noted in the foregoing. Failure by Buyer to pay for any installment when due shall excuse ANTAYA from making further deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligations to accept remaining installments. Upon breach by Buyer as to any installment, ANTAYA, in its sole discretion, may treat such breach as severable or as a breach of the entire Sales Contract, in which event, in addition to all other rights and remedies provided by law, ANTAYA may sell any or all Products at public or private sale without notice to Buyer and Buyer shall be liable for the difference between the contract price and the amount received on such sales, together with the costs and expenses of such a sale, it being understood that ANTAYA may be the buyer of any such Products at any such sale.
Sales are made FOB Cranston, Rhode Island unless specified otherwise in an Authorized Statement of Varied Terms; transportation is at Buyer’s expense. Subject to ANTAYA’s right to stoppage in transit, the acceptance of shipment by a common carrier or licensed public truckman shall constitute a delivery, whereupon risk of loss shall pass to Buyer. When practicable, ANTAYA will follow the shipping instructions of Buyer, but if no instructions are provided, ANTAYA will use its discretion in selecting an appropriate transportation method.
Shipments made within thirty days after the date of delivery specified by Buyer shall constitute a good delivery. Buyer’s acceptance of Products shall constitute a waiver of any claim for late delivery.
OVER-RUN OR UNDER-RUN. ANTAYA reserves the right to ship and bill for up to ten percent (10%) more or less than the exact quantity of Products ordered by Buyer in any Purchase Order. Buyer agrees to accept and pay any such bills, regardless of quantities delivered or quantities ordered.
TOLERANCES. Unless otherwise specified by ANTAYA in an Authorized Statement of Varied Terms, Products furnished by ANTAYA are subject to ANTAYA’s standard tolerances for variations in width gauge, clad thickness and location, temper and finish limits of manufacture and other measures of quantity and quality.
PROPRIETARY INFORMATION. Unless otherwise specifically agreed in an Authorized Statement of Varied Terms, Buyer acknowledges that any information disclosed to ANTAYA is subject only to Buyer’s patent rights, as applicable, and that such disclosure is made without any other restrictions on ANTAYA’s use, including reproduction, modification, further disclosure or distribution of the information. Buyer grants ANTAYA a limited license to use Buyer’s patent rights, as applicable, as reasonably necessary for ANTAYA to fulfill all its obligations to Buyer under all Sales Contracts with Buyer.
All proposals, plans, specifications, designs and other information furnished by ANTAYA are proprietary to ANTAYA and shall not be shown or disclosed to any third party or used by Buyer except as may be necessary for the selection or use of the Products. Drawings marked “ANTAYA” shall not be disclosed to third parties.
Any proprietary information, whether patentable or not, including intellectual property such as inventions, trademarks, copyrights and trade secrets, developed by ANTAYA in the performance of the Sales Contract shall remain the property of ANTAYA. ANTAYA shall be under no obligation to refrain from using in its business any of ANTAYA’s proprietary information that may have been disclosed to Buyer.
Buyer agrees that disclosure of ANTAYA’s proprietary information will cause irreparable harm to ANTAYA and agrees that monetary damages would not be sufficient remedy for any breach of a Sales Contract, and that ANTAYA shall be entitled to specific performance and injunctive relief as remedies for any such breach, in addition to all other remedies available at law or equity.
INSPECTION, RETURN, AND REMEDIES. Buyer shall inspect Products immediately on receipt. Claims for any alleged defect in ANTAYA’s performance under a Purchase Order that may be discovered on reasonable inspection must be set forth in writing and received by ANTAYA within thirty days of Buyer’s receipt of the subject Products. Buyer’s failure to make any claim within the 30-day period shall constitute a waiver of all claims and an irrevocable acceptance of the Products by Buyer.
If Buyer rejects the Products or claims that ANTAYA has breached any of its obligations under a Sales Contract, whether of warranty or otherwise, ANTAYA at its option may first inspect such Products at the premises of Buyer or may give written authorization to Buyer to return the Products to ANTAYA, transportation charges prepaid, for examination by ANTAYA. If the subject Product is found to be defective, the transportation charges shall be credited to Buyer’s account. Buyer shall bear the risk of loss until any Products authorized to be returned are redelivered to ANTAYA. ANTAYA shall not be liable for any inspection, packing, or labor costs in connection with return of any Products.
In the event ANTAYA breaches any of its obligations under a Sales Contract, whether of warranty or otherwise, the sole and exclusive remedy of Buyer is limited to replacement, repair, or credit of the purchase price at ANTAYA’s option.
WARRANTY. ANTAYA warrants to Buyer that all Products sold to Buyer will conform to the applicable agreed upon drawing specification. This warranty shall apply for a period of ninety (90) days from the date of shipment of the subject Product, unless the Product has been subjected to misuse, accident, improper storage, damage, or alteration by any person other than ANTAYA, in which event ANTAYA makes no warranty regarding the Product. Buyer shall notify ANTAYA promptly in writing of any claim based on the foregoing warranty, and the provisions of these Terms and Conditions of Sale respecting inspection and return shall thereafter apply. Remedies for breach of warranty are solely and exclusively limited to those set forth above.
ANTAYA MAKES NO FURTHER WARRANTY RESPECTING ANY PRODUCT, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY.
LIMITATION OF LIABILITY.
ANTAYA’s liability to Buyer for any and all claims for losses arising directly or indirectly under or in connection in any way with a Sales Contract, however caused, and on any theory of liability (including contract, strict liability, negligence or other tort, inclusive of third-party claims), shall not exceed the price paid for the Products that are the subject of such claim.
In no event shall ANTAYA be liable to Buyer for loss of use or profits, or other consequential, indirect, incidental or special damages, even if it has been advised of the possibility of such damages.
PATENTS. Buyer shall hold ANTAYA harmless against, and indemnify ANTAYA for any expenses, damages, or losses for infringement of any U.S. patent or trademark or other intellectual property of a third person that result from ANTAYA’s compliance with Buyer’s designs, specification, or instructions.
GENERAL.
No waiver by ANTAYA of any provision of these Terms and Conditions of Sale shall be construed as a waiver by ANTAYA of any other provision hereof.
No Sales Contract may be modified or terminated orally. No claimed modification, termination or waiver or any provision of a Sales Contract shall be valid unless in an Authorized Statement of Varied Terms.
Any controversy arising under or in relation to a Sales Contract or any modification or extension thereof, including any claim for damages and/or rescission, shall be governed and controlled by the laws of the State of Delaware and shall be resolved by binding arbitration in Boston, Massachusetts in accordance with the laws of the State of Delaware. The parties consent to the personal jurisdiction and venue of the state courts of the State of Rhode Island, and of the United States District Court for the District of Rhode Island, and further agree that any process or notice of motion or other application to either of said courts or any judge thereof, and any paper in connection with arbitration, may be served within or without the State of Rhode Island by certified mail return receipt requested or by personal service, provided that at least three (3) days for appearance is allowed. Should any of the provisions of these Terms and Conditions of Sale or any Sales Contract be declared to be invalid, such decision shall not affect the validity of any remaining provisions hereof or thereof.
Any legal action by Buyer arising in connection with a Sales Contract must begin within one (1) year after the cause of action arises. BUYER UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL FOR ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, A SALES CONTRACT AND/OR ANY DEALINGS RELATING TO THE SUBJECT MATTER OF A SALES CONTRACT, INCLUDING THESE TERMS AND CONDITIONS OF SALE.
These Terms and Conditions of Sale and all Sales Contracts shall be governed by and construed according to the laws of the State of Delaware and the customs and usages of the solder processing industry, provided, however, that if any provision of these Terms and Conditions of Sale or a Sales Contract is inconsistent with the customs and usages of such industry, then the provisions of these Terms and Conditions of Sale and such Sales Contract shall prevail.
All rights and remedies of ANTAYA under a Sales Contract are in addition to ANTAYA’s other rights and remedies and are cumulative, not alternative.
No rights of Buyer arising out of a Sales Contract may be assigned without the express written consent of ANTAYA.
INTELLECTUAL PROPERTY
Products sold by ANTAYA may be covered by one or more of the following: U.S. Patent Nos. 6,127,657; 6,253,988; 6,264,475; 6,267,630; 6,428,355; 6,406,337; 6,551,150; 6,607,409; 6,676,455; 6,520,812; 6,730,848; 6,527,043; 6,790,104; 6,039,616; 6,249,966; 6,475,043; 6,599,157; 6,599,156; 6,780,071; 6,840,780; and U.S. and foreign patents pending.
REVISED APRIL 2012 Rev 2.02
