Legal Terms and Conditions
SMART Embedded Computing, Inc., dba Penguin Edge, that accepts Buyer’s order for Goods is herein referred to as the “Seller” and the person or entity purchasing goods or services (“Goods”) and/or licensing software and/or firmware which are preloaded, or to be loaded into Goods (“Software”) from Seller is referred to as the “Buyer.” These Terms and Conditions, any price list or schedule, quotation, acknowledgment or invoice from Seller relevant to the sale of the Goods and licensing of Software and all documents incorporated by specific reference herein or therein constitute the complete and exclusive statement of the terms governing the sale of Goods and license of Software by Seller to Buyer. Seller’s acceptance of Buyer’s purchase order is expressly conditional on Buyer’s assent to all of Seller’s terms and conditions of sale, including terms and conditions that are different from or additional to the terms and conditions of Buyer’s purchase order. Buyer’s acceptance of the Goods and/or Software will manifest Buyer’s assent to these Terms and Conditions. Seller reserves the right in its sole discretion to refuse orders. Notwithstanding anything to the contrary, in the event that the provisions of these Terms and Conditions conflict with the provisions of an effective agreement signed by a duly authorized representative of both parties (“Effective Agreement”) that applies to the transaction(s) contemplated herein, the Effective Agreement shall control.
1. PRICES: Unless otherwise specified in writing by Seller, the price quoted or specified by Seller for the Goods and/or Software shall remain in effect for 30 days after the date of Seller’s quotation or acknowledgment of Buyer’s order for the Goods and/or Software, whichever occurs first, provided an unconditional authorization from Buyer for the shipment of the Goods and/or Software is received and accepted by Seller within such time period. If such authorization is not received by Seller within such 30 day period, Seller shall have the right to change the price for the Goods and/or Software to Seller’s price for the Goods and/or Software at the time of shipment. All prices and licensee fees are exclusive of taxes, transportation and insurance, which are to be borne by Buyer.
2. TAXES: Any current or future tax or governmental charge (or increase in same) affecting Seller’s costs of production, sale, or shipment, or which Seller is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, use or consumption of Goods, shall be for Buyer’s account and shall be added to the price or billed to Buyer separately, at Seller’s election.
3. TERMS OF PAYMENT: Unless otherwise specified by Seller, terms are net 30 days from date of Seller’s invoice by bank wire transfer or automated clearing house in U.S. currency. Payment will be made no less frequent than weekly. Seller shall have the right, among other remedies, either to terminate this agreement or to suspend further performance under this and/or other agreements with Buyer in the event Buyer fails to make any payment when due, which other agreements Buyer and Seller hereby amend accordingly. Buyer shall be liable for all expenses, including attorneys’ fees, relating to the collection of past due amounts. If any payment owed to Seller is not paid when due, it shall bear interest, at a rate to be determined by Seller, which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is paid. Any payment due to either party under this agreement shall be made in full without any set-off, restriction, condition deduction or withholding for or on account of any counterclaim. Should Buyer’s financial responsibility become unsatisfactory to Seller, cash payments or security satisfactory to Seller may be required by Seller for future deliveries of the Goods and/or Software. If such cash payment or security is not provided, in addition to Seller’s other rights and remedies, Seller may discontinue deliveries.
4. SHIPMENT AND DELIVERY: While Seller will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments. Seller, at its option, shall not be bound to tender delivery of any Goods and/or Software for which Buyer has not provided shipping instructions and other required information. If the shipment of the Goods and/or Software is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom. Risk of loss and legal title to the Goods shall transfer from Seller to Buyer upon delivery to and receipt by carrier at Seller’s shipping point. Unless otherwise specified by Seller, all shipments are F.C.A. Seller’s shipping point (Incoterms 2010). Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by Buyer directly to the carrier. Shortages or damages must be identified and signed for at the time of delivery.
Buyer shall inspect Goods delivered to it by Seller immediately upon receipt, and, any course of dealing to the contrary notwithstanding, failure of Buyer to give Seller notice of any claim within 10 days after receipt of such Goods shall be an unqualified acceptance of such Goods.
5. LIMITED WARRANTY: Subject to the limitations of Section 6 and unless otherwise specified by Seller in writing, Seller warrants that the Goods manufactured by Seller will be free from defects in material and workmanship and substantially meet Seller’s published specifications at the time of shipment under normal use and regular service and maintenance for (a) the period specified in Seller’s then current product data sheets from the date of manufacture by Seller for standard Embedded Power Goods, (b) 2 years from initial shipment for standard Embedded Computing Goods, and (c) the period specified by Seller in writing for custom Embedded Power Goods and custom Embedded Computing Goods. Unless otherwise stated in a separate Software license agreement, Seller makes no warranty as to any Software. THE WARRANTIES SET FORTH IN SECTIONS 5 AND 7 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER WITH RESPECT TO THE GOODS AND SOFTWARE AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT SELLER’S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE.
These warranties do not extend to any losses or damages due to misuse, accident, abuse, neglect, negligence (other than Seller’s), unauthorized modification or alteration, use beyond rated capacity, unsuitable power sources or environmental conditions, improper installation, repair, handling, maintenance or application or any other cause not the fault of Seller. To the extent that Buyer or its agents have supplied specifications, information, representation of operating conditions or other data to Seller in the selection or design of the Goods and the preparation of Seller’s quotation, and in the event that actual operating conditions or other conditions differ from those represented by Buyer, any warranties or other provisions contained herein that are affected by such conditions shall be null and void.
If within 30 days after Buyer’s discovery of any warranty defects within the warranty period, Buyer notifies Seller thereof in writing, Seller shall, at its option and as Buyer’s exclusive remedy, repair, correct or replace per its return policy, or refund the purchase price for, that portion of the Goods found by Seller to be defective. Failure by Buyer to give such written notice within the applicable time period shall be deemed an absolute and unconditional waiver of Buyer’s claim for such defects. Advance written permission to return Goods must be obtained from Seller. Such Goods must be shipped transportation prepaid to Seller. Returns made without proper written permission will not be accepted by Seller. Seller reserves the right to inspect Goods prior to authorizing return. Goods repaired or replaced during the warranty period shall be covered by the foregoing warranties for the remainder of the original warranty period or 90 days from the date of shipment, whichever is longer.
Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Goods and/or Software, either alone or in combination with other products/components.
PRE-PRODUCTION (Prototype, Engineering Verification Test, or Design Verification Test) UNITS ARE SOLD “WHERE IS, AS IS, WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR INTENDED PURPOSE.
6. LIMITATION OF REMEDY AND LIABILITY: THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER (OTHER THAN THE WARRANTY PROVIDED UNDER SECTION 7) SHALL BE LIMITED TO REPAIR, CORRECTION OR REPLACEMENT, OR REFUND OF THE PURCHASE PRICE UNDER SECTION 5.
SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND THE REMEDIES OF BUYER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS OR SOFTWARE PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. The term “consequential damages” shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use, revenue, reputation and data, costs incurred, including without limitation, for capital, fuel, power, cover and loss or damage to property or equipment.
It is expressly understood that any technical advice furnished by Seller with respect to the use of the Goods and/or Software is given without charge, and Seller assumes no obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Buyer’s risk.
7. PATENTS AND COPYRIGHTS: Subject to the limitations of the second paragraph of Section 6, Seller warrants that the Goods sold, except as are made specifically for Buyer according to Buyer’s specifications, do not infringe any valid U.S. patent or copyright in existence as of the date of shipment. This warranty is given upon the condition that Buyer promptly notifies Seller of any claim or suit involving Buyer in which such infringement is alleged and cooperates fully with Seller and permits Seller to control completely the defense, settlement or compromise of any such allegation of infringement. Seller’s warranty as to utility patents only applies to infringement arising solely out of the inherent operation according to Seller’s specifications and instructions of such Goods. In the event such Goods are held to infringe such a U.S. patent or copyright in such suit, and / or the use of such Goods is enjoined, or in the case of a compromise or settlement by Seller, Seller shall have the right, at its option and expense, to procure for Buyer the right to continue using such Goods, or replace them with non-infringing Goods, or modify same to become non-infringing, or grant Buyer a credit for the depreciated value of such Goods and accept return of them. In the event of the foregoing or, if in Seller’s opinion, Seller receives a credible allegation of infringement, Seller may also, at its option, cancel or suspend this agreement as to future deliveries of such Goods, without liability.
8. EXCUSE OF PERFORMANCE: Seller shall not be liable for delays in performance or for non-performance due to acts of God; acts of Buyer; war; fire; flood; weather; sabotage; epidemics; strikes or labor disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of or delays in transportation; default of suppliers; or unforeseen circumstances or any events or causes beyond Seller’s reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of any of the foregoing, but the balance of the agreement shall otherwise remain unaffected as a result of the foregoing.
If Seller determines that its ability to supply the total demand for the Goods, or to obtain material used directly or indirectly in the manufacture of the Goods, is hindered, limited or made impracticable due to causes set forth in the preceding paragraph, Seller may allocate its available supply of the Goods or such material (without obligation to acquire other supplies of any such Goods or material) among its purchasers on such basis as Seller determines to be equitable without liability for any failure of performance which may result therefrom.
9. RESCHEDULE/CANCELLATION: Unless otherwise agreed in writing by Seller, orders under this agreement may not be rescheduled or canceled by Buyer for any reason.
10. CHANGES: Buyer may request changes or additions to the Goods and/or Software consistent with Seller’s specifications and criteria. In the event such changes or additions are accepted by Seller, Seller may revise the price, license fees and dates of delivery.
Seller reserves the right to change designs and specifications for the Goods and/or Software without prior notice to Buyer, except with respect to Goods and/or Software being made‑to‑order for Buyer. Seller shall have no obligation to install or make such change in any Goods and/or Software manufactured prior to the date of such change.
11. NUCLEAR/MEDICAL: GOODS AND SOFTWARE SOLD HEREUNDER ARE NOT FOR USE IN CONNECTION WITH ANY NUCLEAR, MEDICAL, LIFE-SUPPORT AND OTHER HIGH RISK APPLICATIONS WHERE GOODS OR SOFTWARE FAILURE COULD LEAD TO LOSS OF LIFE OR CATASTROPHIC PROPERTY DAMAGE. Buyer accepts Goods and Software with the foregoing understanding, agrees to communicate the same in writing to any subsequent purchasers or users and to defend, indemnify and hold harmless Seller from any claims, losses, suits, judgments and damages, including incidental and consequential damages, arising from such use, whether the cause of action be based in tort, contract or otherwise, including allegations that the Seller’s liability is based on negligence or strict liability.
12. ASSIGNMENT: Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Seller, and any such assignment, without such consent, shall be void.
13. SOFTWARE: Notwithstanding any other provision herein to the contrary, Seller or applicable third party licensor to Seller shall retain all rights of ownership and title in its respective Software, including without limitation all rights of ownership and title in its respective copies of such Software. Except as otherwise provided herein, Buyer is hereby granted a nonexclusive, non-transferable royalty free license to use the Software incorporated into the Goods solely for purposes of Buyer properly utilizing such Goods purchased from Seller. All other Software shall be furnished to, and used by, Buyer only after execution of Seller’s (or the licensor’s) applicable standard license agreement, the terms of which are incorporated herein by reference. The Software is Seller’s own or Seller’s supplier’s proprietary information, and Buyer and its employees and agents shall not disclose the Software to others without Seller’s prior written consent.
14. TOOLING: Tool, die, and pattern charges, if any, are in addition to the price of the Goods and are due and payable upon completion of the tooling. All such tools, dies and patterns shall be and remain the property of Seller. Charges for tools, dies, and patterns do not convey to Buyer, title, ownership interest in, or rights to possession or removal, or prevent their use by Seller for other purchasers, except as otherwise expressly provided by Seller and Buyer in writing with reference to this provision.
15. INTELLECTUAL PROPERTY: Seller’s intellectual property, including without limitation, all patents, copyrights, trade secrets, trade-dress and any other intellectual property of any kind (including without limitation, that which exists in the underlying technology), furnished by Seller to Buyer in connection with this agreement is the property of Seller and Seller retains all rights, including without limitation, exclusive rights of use, licensing, and sale. Possession of Goods, pre-production units, specifications, prints or drawings, or any other materials does not convey to Buyer any rights or license thereto.
16. BUYER’S COMPLIANCE WITH LAWS: In connection with the transactions contemplated by this agreement, Buyer is familiar with and shall fully comply with all applicable laws, regulations, rules and other requirements of the United States and of any applicable state, foreign and local governmental body in connection with the purchase, license, receipt, use, transfer and disposal of the Goods and/or Software.
17. EXPORT/IMPORT: Buyer agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the United States and the European Union, and the jurisdictions in which the Seller and Buyer are established or from which Goods and/or Software may be supplied, will apply to their receipt and use. In no event shall Buyer use, transfer, release, import, export, Goods and/or Software in violation of such applicable laws, regulations, orders or requirements.
18. GOVERNMENT CONTRACT CONDITIONS: In the event Buyer supplies Goods or Software to the U.S. Government or to a prime contractor selling to the U.S. Government, the following Federal Acquisition Regulation (FAR) clauses are accepted by Seller and are made part of this agreement applicable to such supply: 52.222-21 Prohibition of Segregated Facilities; 52.222-26 Equal Opportunity; 52.222-35 Equal Opportunity For Special Disabled Veterans, Veterans of Vietnam Era, and Other Eligible Veterans; 52.222-36 Affirmative Action For Workers with Disabilities; and 52.219-8 Utilization of Small Business Concerns. No additional FAR or FAR Supplement clauses are accepted by Seller. In the event Buyer elects to sell Goods or Software to the U.S. Government or any national, state, provincial or local non-U.S. governmental entity or to a prime contractor selling to such entities, Buyer does so solely at its own option and risk, and agrees not to obligate Seller as a subcontractor or otherwise to the U.S. Government or other governmental entity except as described in this Section 18. Buyer remains solely and exclusively responsible for compliance with all statutes and regulations governing sales to the U.S. Government or any national, state, provincial or local non-U.S. governmental entity. Seller makes no representations, certifications or warranties whatsoever with respect to the ability of its Goods, Software, or prices to satisfy any such statutes and regulations.
19. GENERAL PROVISIONS: These terms and conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these terms and conditions. No change, modification, rescission, discharge, abandonment, or waiver of these terms and conditions shall be binding upon the Seller unless made in writing and signed on its behalf by a duly authorized representative of Seller. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these terms and conditions shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification or additional terms shall be applicable to this agreement by Seller’s receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected and deemed a material alteration hereof. If this document shall be deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s assent to any additional or different terms set forth herein. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction. In the event that any provision or portion thereof contained in the Contract is held to be unenforceable, the Contract shall be construed without such provision or portion thereof.
(A) If Seller is a U.S. incorporated entity: This Agreement shall be governed by the laws of the State of California, U.S.A., without reference to its choice or conflict of laws principles. The parties agree to submit to the exclusive jurisdiction of the courts of the State of California for all actions arising in connection herewith.
(B) If Seller is a European incorporated entity: This Agreement shall be governed by the laws of England. Any dispute arising out of or in connection with this Agreement that cannot be resolved through friendly consultation shall be referred to and finally resolved by arbitration in London, England before the London Court of International Arbitration in accordance with its arbitration rules. The arbitral award shall be final and binding on the parties.
(C) If Seller is an entity incorporated in the Asia Pacific region: This Agreement shall be governed by the laws of the Hong Kong Special Administrative Region of the People’s Republic of China. Any dispute arising out of or in connection with this Agreement that cannot be resolved through friendly consultation shall be referred to and finally resolved by arbitration in Hong Kong before the Hong Kong International Arbitration Centre in accordance with its arbitration rules. The arbitral award shall be final and binding on the parties.
(D) No action, regardless of form, arising out of transactions relating to this agreement, may be brought by either party more than two (2) years after the cause of action has accrued. The U.N. Convention on Contracts for the International Sales of Goods shall not apply to this agreement.
Revised August 9, 2019