Terms and Conditions of Sale

Penguin Edge is a trade name used by SMART Embedded Computing, Inc., and SMART Wireless Computing, Inc., wholly owned subsidiaries of SMART Global Holdings, Inc. Penguin Edge (“Penguin Edge”) operates this Web site (i.e., the Web site located at https://www.penguinsolutions.com/) and a portfolio of other Web sites that provide online access to information about products available from Penguin Edge (the “Products”) and facilitate transactions for the purchase of Products (the “Service”); this Web site and such portfolio of other Web sites are, collectively, referred to as the “Site”.

By accessing and using the Site, you agree to each of the terms and conditions set forth herein (“Terms of Use”). By ordering Products, you agree to the Terms of Use, as well as the Conditions of Order, set forth below. These Terms of Use, together with the Conditions of Order, are referred to as this “Agreement.”

All orders placed with Penguin Edge are subject to the terms of this Agreement, including the following Conditions of Order. Any purported change submitted by a purchaser in any additional documentation is hereby expressly rejected. Orders placed on forms deviating from these terms and conditions may be accepted, but solely on the basis that the terms of this Agreement will prevail.

1. Order Validation and Acceptance.When you place an order, we may verify your method of payment, shipping address and/or tax exempt identification number, if any, before processing your order. Your placement of an order with Penguin Edge is an offer to purchase our Products. Penguin Edge may accept your order by processing your payment and shipping the Product, or may, for any reason, decline to accept your order or any part of your order. No order shall be considered to be accepted by Penguin Edge until the Product has been shipped. If we decline to accept your order, we will attempt to notify you using the email address or other contact information you have provided with your order. Delivery dates provided in connection with any order are estimates only and do not represent fixed or guaranteed delivery dates.
2. Quantity Limitations. Penguin Edge may limit or cancel quantities available for purchase on any order on any basis, and to alter the availability or duration of any special offers at any time. Penguin Edge may reject any order, or any part of an order.
3. Electronic Communication. When you place an order via the Site, you are required to provide a valid email address, which we may use to communicate with you regarding the status of your order, advise you regarding shipment of backordered products, and to provide you with any other notices, disclosures or other communications relating to your order. You agree that Penguin Edge will not be responsible for any damage you incur, or information you do not receive, as a result of your failure to provide a valid email address.
4. Pricing and Product Information. Penguin Edge makes every effort to provide current and accurate information relating to the Products and prices, but does not guarantee the currency or accuracy of any such information. Information relating to Products is subject to change without notice. Prices are subject to change at any time prior to Penguin Edge’s acceptance of your order. In the event we discover a material error in the description or availability of a Product that affects your outstanding order with Penguin Edge, or an error in pricing, we will notify you of the corrected version, and you may choose to accept the corrected version, or cancel the order. If you choose to cancel the order, and your credit card has already been charged for a purchase, Penguin Edge will issue a credit to your credit card in the amount of the charge.
5. Payment. We offer MasterCard, VISA, American Express, Discover, PayPal and prepaid by wire transfer as payment methods. Payments must be made in the currency in which the order was placed.
6. For International Shipments: Availability of ship methods is dependent on the destination country. Except as otherwise provided on the Site, (1) the shipping costs will be prepaid and added to your order, and (2) all duties, tariffs, taxes and brokerage fees will be your responsibility. Contact PenguinEdgeSales@penguinsolutions.com for more information.
7. Taxes. Except as otherwise provided on the Site, prices shown do not include any federal, state or local taxes, or any other taxes or charges imposed by any government authority, including, without limitation, sales, use, excise, value-added or similar taxes. Where applicable, such taxes and charges shall be billed as a separate item and paid by you. Orders are accepted with the understanding that such taxes and charges shall be added, as required by law. Penguin Edge charges sales tax unless you have a valid sales tax exemption certificate on file with Penguin Edge. Penguin Edge will not refund tax amounts collected in the event a valid sales tax certificate is not provided. If you provide a certificate that is not accepted for any reason by any governmental or regulatory authority, and Penguin Edge is required to pay tax on your purchase, you will reimburse Penguin Edge for the amount of such tax, and Penguin Edge’s reasonable expenses incurred in connection with the payment and collection of such tax. E-mail your resale certificate and customer number to attention: PenguinEdgeSales@penguinsolutions.com
8. Out of Stock. If product you order is out of stock at time of order placement, you may elect to have it shipped on a subsequent shipment. Except as otherwise provided on the Site, additional shipping charges will apply to each shipment. Backorders will be held based on your request.
9. DELIVERY AND TITLE. Unless otherwise specified by Penguin Edge in writing, all deliveries by Penguin Edge are EXW Penguin Edge’s warehouses. Title and risk of loss pass to Customer upon delivery of the Products to the carrier. Penguin Edge’s delivery dates are estimates only and subject to timely receipt of supplies by Penguin Edge. Penguin Edge is not liable for delays in delivery. Penguin Edge reserves the right to make partial deliveries and Customer will accept delivery and pay for the Products delivered. A delayed delivery of any part of an Order does not entitle Customer to cancel other deliveries.
10. SMART WIRELESS’S LIMITED WARRANTY
11. PRODUCT RETURN
12. LIMITATION OF LIABILITY. To the extent permitted by law, neither Penguin Edge nor its employees or agents are liable for and customer is not entitled to any indirect, special, incidental or consequential damages; for example, loss of profits or revenue, loss of data, loss of use, rework, manufacturing expense, injury to reputation, or loss of customers. To the extent permitted by applicable law, Customer’s recovery from Penguin Edge for any direct damages will not exceed the price of the Product at issue. To the extent the preceding limitation of liability is deemed invalid under applicable law, Penguin Edge’s total liability in any event will not exceed USD 50,000 or the equivalent thereof. Customer will indemnify, defend and hold Penguin Edge harmless from any claims based on; (i) Penguin Edge’s compliance with customer’s designs, specifications, or instructions, (ii) modification of any Product by anyone other than Penguin Edge, or (iii) use of Products in combination with other products or in violation of clause 9 below.
13. FORCES BEYOND SMART WIRELESS’S CONTROL. Penguin Edge is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control, (for example: acts of nature, acts or omissions of the Customer, operational disruptions, man-made or natural disasters, epidemic medical crises, materials shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor or materials through its regular sources).
14. USE OF PRODUCTS. Customer shall comply with Penguin Edge’s Product specifications. Products are not authorized for use in critical safety or other applications where a failure may reasonably be expected to result in personal injury, loss of life, or serious property damage. If Customer uses or sells the Products for use in any such applications or fails to comply with the manufacturer’s Product specifications, Customer acknowledges that such use, sale, or non-compliance is at Customer’s sole risk.
15. EXPORT/IMPORT. Certain Products sold by Penguin Edge and other related technology and documentation are subject to export control laws, regulations and orders of the United States, the European Union, and/or other countries (“Export Laws”). Customer shall comply with such Export Laws and obtain any license, permit, or authorization required to transfer, sell, export, re-export, or import the Products and related technology and documentation.
16. PRODUCT INFORMATION. Product information (for example, statements or advice (technical or otherwise) advertisement content, and information related to a Product’s specifications, features, export/import control classifications, uses or conformance with legal or other requirements) is provided by Penguin Edge on an “AS IS” basis and does not form a part of the properties of the Product. Penguin Edge makes no representation as to the accuracy or completeness of the Product information, and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITIES UNDER ANY THEORY WITH RESPECT TO THE PRODUCT INFORMATION. Penguin Edge recommends Customer validate any Product Information before using or acting on such information. All Product information is subject to change without notice. Penguin Edge is not responsible for typographical or other errors or omissions in Product information. The Product images shown on the website may not be the actual product image. You must carefully read product description & specifications to verify your requirements. Penguin Edge does not take responsibility for an incorrect purchase as the result of not verifying the information in the model, and/or product description.
17. ELECTRONIC ORDERS. In the event that any part of the purchase and sale of Products utilizes electronic data interchange, customer’s internal portal or third party portal, or any other means (“Electronic Purchase Order”), this Agreement will continue to apply to the purchase and sale of Products between Customer and Penguin Edge.
18. GENERAL. a. This Agreement shall be governed, construed, and enforced in accordance with the laws of the country where the Penguin Edge entity that accepted Customer’s Order (“Governing Country”) is located. The courts of the Governing Country shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement. If the Governing Country is the United States of America, the laws and courts of the State of California will apply without reference to California’s conflict of laws principles. The United Nations Convention for the International Sale of Goods shall not apply. b. Customer may not assign this Agreement without the prior written consent of Penguin Edge, and Penguin Edge’s affiliates may perform Penguin Edge’s obligations under this Agreement. This Agreement is binding on successors and assigns. c. This Agreement can only be modified in writing signed by authorized representatives of both Penguin Edge and Customer. d. Penguin Edge and Customer are independent contractors and agree that this Agreement does not establish a joint venture, agency relationship, or partnership. e. Penguin Edge’s failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions. f. The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions. g. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses, and Customer will comply with such rights. h. Customer and Penguin Edge will comply with applicable laws and regulations.

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