Barefoot Networks’ Standard Terms And Conditions Of Sale
All products and services (“Products”) provided by Barefoot Networks, Inc. (“Seller”) to any personto whomasalesquotationisissuedbySellerfortheProducts(“Buyer”)aresubjecttothe following terms and conditions:
The terms and conditions of sale contained herein shall apply to all Purchase Orders issued by a Buyer (“Orders”) accepted by Seller. Such acceptance from Seller is conditioned upon Buyer’s acceptance of the terms and conditions herein, irrespective of whether Buyer accepts these terms and conditions by written acknowledgment, by implication, or by acceptance of the Products ordered hereunder and such acceptance shall constitute an acceptance of all terms and conditions herein.
All Orders are subject to acceptance by Seller. Seller reserves the right to accept or reject any Order from Buyer in whole or in part and, without prejudice to any other remedy, to cancel any unfilled Order or to suspend shipment in the event of any act or omission of Buyer in breach of its obligations hereunder or which delays Seller’s performance hereunder. Seller hereby rejects all terms in Buyer’s order that are additional to or vary any part of the Seller’s Terms.
All taxes, levies and duties of any nature whatsoever applicable to the Products shall be paid by Buyer, unless Buyer provides Seller with an exemption certificate acceptable to the relevant taxing authority. Unless otherwise specified, the prices shown do not include any taxes.
4. Prices and Payment.
Pricing shall be effective and remain in effect until the sales quote from Seller is revised or superseded. All Orders are also subject to credit approval before shipment. Where Buyer has established credit, payment shall be due thirty (30) days from date of invoice. Overdue accounts shall bear interest at a rate equal to the lesser of one and one half percent per month (eighteen (18) percent per annum) or the highest rate permitted by applicable law. Payments are to be paid in United States currency. Each shipment shall be considered a separate and independent transaction and payment therefore shall be made accordingly. If, in Seller’s judgment, Buyer’s financial condition does not at any time justify payment terms as specified, Seller may cancel or suspend shipment of any unfilled Order unless Buyer shall, upon written notice, immediately pay for any Products to be shipped or pay in advance for all Products ordered but not shipped or both, at Seller’s option. If, despite any default by Buyer, Seller elects to continue to make shipments, Seller’s action shall not constitute a waiver of any default by Buyer or in any way prejudice Seller’s legal remedies for such default under these terms and conditions or otherwise.
5. Title and Delivery.
Delivery dates are approximate. Seller shall use reasonable efforts to fill all Orders according to the shipment schedule provided by Seller at time of acceptance of the applicable Order; but in no event shall Seller guarantee shipment according to such schedule or be liable for damages due to delays in the delivery.
To all Orders shall be attached the necessary information enabling work to commence, together with any import license and/or permits and related certificates which may be necessary and which shall be supplied by Buyer at Buyer’s expense.
All shipments will be made EXW (Seller’s factory) unless otherwise specified in Seller’s Sales Acknowledgment form. Title to the Products and liability for loss or damage in transit or thereafter and shall pass to Buyer upon leaving Seller’s plant or designated warehouse door. In the absence of specific instructions, Seller will select the carrier. Any Products held or stored for Buyer shall be at Buyer’s risk and expense if, at Buyer’s request, a shipment is postponed more than thirty (30) days after the date the Products are originally scheduled for shipment. Claims against Seller for shortages of Products must be made within thirty (30) days after arrival of shipment to the destination specified in the Order.
Unless otherwise agreed in writing, Seller may make partial shipments and terms and conditions herein contained shall apply separately for each shipment.
6. Warranty and Limitation of Liability.
Subject to the limitations and exclusions below, Seller warrants that the hardware Products will be free from defects in material and workmanship that cause the product to be non-conforming and will comply with Seller’s published specifications relating to such Products for a period of twelve (12) months from date of shipment of such Products.
Seller shall incur no liability under this warranty unless:
- Seller is, within the applicable warranty period, promptly notified in writing by Buyer of discovery of any defects in the Products;
- Buyer immediately returns upon written authorization from Seller to do so, transportation charges prepaid, the alleged defective Products in the form in which originally shipped, with the Return Authorization Number provided by Seller clearly displayed; and
- Seller’s test procedures disclose that the Products do not meet Seller’s applicable specifications only due to defects in materials and/or its normal standards of workmanship.
- Product has been released for mass production at the time of the Order to Seller’s then prevailing Product Qualification Specification.
In no event shall Seller be responsible for defects due to physical damage suffered to the Products as a result of improper handling during or after shipment, misuse, neglect, improper installation or operation, repair, alteration, accident or for any other cause not attributable to defects in material or workmanship on the part of Seller.
Seller’s liability under this warranty shall be limited, at Seller’s option, to either repair or replace the defective Products at its own expense or reimburse Buyer the price paid by Buyer to Seller for the defective Products. In no event shall the damages for which Seller is liable to Buyer exceed the sale price to Buyer for the defective Products. Any Products replaced or repaired hereunder shall carry only the un-expired term of the warranty applicable to the replaced or repaired Products.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED ABOVE, SELLER MAKES NO REPRESENTATION, CONDITION OR W ARRANTY , EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND SPECIFICALLY EXCLUDES ALL IMPLIED CONDITIONS AND W ARRANTIES, INCLUDING IMPLIED CONDITIONS AND W ARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THE SOLE OBLIGA TION AND ENTIRE LIABILITY OF SELLER CONTAINED IN THE LIMITED WARRANTY STATED ABOVE IS IN LIEU OF ALL OTHER OBLIGA TIONS OR LIABILITIES OF SELLER TO BUYER WHA TSOEVER AND HOWSOEVER ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THE SALE OF THESE PRODUCTS, THEIR USE OR OTHERWISE WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE. SELLER IN NO EVENT SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THESE TERMS AND CONDITIONS, THE PRODUCTS, THEIR USE OR OTHERWISE WHETHER FOR LOSS OF PROFITS, BUSINESS REVENUES OR OTHERWISE.
Both parties agree that all designs, mask works, computer programs, data, processes, trade secrets, circuits, layout, inventions (whether or not patentable), algorithms, know-how, and ideas and all other business, marketing, technical and financial information they obtain from the other party constitute “Confidential Information” of the disclosing party if identified as confidential at the time of disclosure, or if it would be considered confidential by a reasonable person. Except as expressly and unambiguously allowed under these terms and conditions, the parties agree to hold in confidence and not use or disclose the other party’s Confidential Information. The receiving party shall not be obligated for any information which it can document: (A) is in or, through no improper action or inaction by the receiving party enters the public domain and is readily available without substantial effort, or (B) was rightfully in its possession or known by it prior to receipt from the disclosing party, or (C) was rightfully disclosed to it by another person without restriction, or (D) was independently developed by it by persons without access to such information and without use of any Confidential information of the disclosing party. The obligations contained in this Section 7 shall continue for a period of five (5) years from disclosure.
8. Masks, Etc.
Unless otherwise agreed in writing, Seller shall retain title to and possession of any masks, models, patterns, dies, molds, jigs, fixtures and tools made or obtained for the furnishing of Products under this Order.
9. Custom Products.
For products manufactured to Buyer’s specifications or instructions (“Custom Products”), Seller warrants only that the Custom Products shall conform at the date of shipment to such specifications and instructions accepted in writing by Seller and will be free from defects in material and workmanship for a period of twelve (12) months from the date of shipment but that no warranty is supplied by Seller whatsoever with respect to design or functionality of the Custom Products or any products derived from the Custom Products supplied hereunder. The warranty for Custom Products is subject to the limitations and exclusions set out in Section 6 Warranty and Limitation of Liability above (except for the first paragraph thereof which does not apply in this context).
Buyer shall retain title to the Netlist or RTL Code and Test Vectors, which it provides to Seller, under license free of charge, to enable Seller to furnish the Custom Products hereunder.
In the event that Buyer cancels or reschedules any order for Custom Products within ninety (90) days of the scheduled shipment date, Seller reserves in addition to any other remedy, the right to charge Buyer for the costs of associated raw materials, work-in-progress and finished product.
10. Substitutions and Modifications.
Seller reserves the right to modify the specifications of Products designed by Seller without notice provided that the modification will not materially affect the performance, form or fit of the affected Products.
11. Force Majeure.
Neither Buyer nor Seller shall be liable for failures in performance, including delay or non-shipment, resulting from acts or events beyond its reasonable control. Such acts or events shall include, but not be limited to, acts of God, civil or military authority, civil disturbance, fire, strikes, lockouts or slowdowns, factory or labor conditions, errors in manufacture, inability to obtain necessary labor, materials or manufacturing facilities or other “force majeure” events beyond the reasonable control of the non- performing party. In the event of such delay, the date of shipment shall, at the request of Seller, be deferred for a period equal to the time lost by reason of the delay and otherwise for a reasonable time.
Any notices required by these terms and conditions shall be sufficient only if dispatched by facsimile, personally delivered, delivered by a major commercial rapid delivery courier or mailed by certified or registered mail, return receipt requested.
Buyer shall not assign any Order or any interest therein or any rights thereunder without the prior written consent of Seller.
14. Governing Law.
This Agreement shall be governed by the laws of the State of California, excluding conflict of law rules. The United Nations Convention on Contracts for the International Sale of Products (“Vienna Convention”) and the Convention on the Limitation Period in the International Sale of Products, as either may from time to time be modified, shall apply to this Agreement and the transactions contemplated under this Agreement only to the extent that the foregoing permit a binding contract to be formed exclusively on the terms and conditions set forth herein.
No waiver by either party of any breach of any term or condition of this Agreement by the other party shall be deemed to constitute a waiver of any other breach nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy hereunder operate as a waiver thereof. No waiver given by a party hereunder shall be binding upon such party unless expressed in writing and signed by such party.
16. Export Controls.
Buyer agrees that any export or re-export by it of Products purchased hereunder shall be in strict compliance with all applicable export control laws and regulations. Buyer shall obtain and bear all expenses with respect to the export from the United States of all material or items deliverable by Seller to any location and shall demonstrate to Seller compliance with all applicable laws and regulations prior to delivery thereof by Seller.
17. Entire Contract.
The terms and conditions contained herein together with the Sales quotation shall govern and shall comprise the entire agreement of the parties relating to the subject matter hereof and shall replace and supersede any provisions on Buyer’s Order which are in addition or inconsistent therewith. Seller’s failure to object to provisions contained in any Order or other communication from Buyer shall not be deemed a waiver of the provisions herein. No modification hereof shall be valid unless in writing and duly signed by a person authorized by Seller. The provisions hereof shall not be supplemented by any usage of trade or any course of prior dealings or acquiescence in any course of performance.
Seller’s Products are not authorized for use in medical lifesaving or life support, critical control or safety systems, nuclear facility applications, or any systems where failure to perform can reasonably be expected to cause significant injury to the user.
Subject to the terms and conditions set forth herein and receipt of payment for the Products by Seller, Seller grants to Buyer a worldwide, non-exclusive, royalty free license to use the Seller’s firmware (the “Software”) in binary form in the normal application of Seller’s Products. Title and intellectual property rights to the Software remains with Seller or its suppliers. Buyer assumes all liability, financial or otherwise, associated with Buyer’s use of the Software. The Software is provided “as is” without warranty of any kind, and may contain errors. Seller may make changes to the Software at any time without notice.
20. Order Reschedules and Cancellations
Within 14 days of the scheduled delivery, Orders may not be rescheduled.
Up to 15 days of delivery Buyer may reschedule for up to 30 days, but not beyond the end of the calendar quarter.
Reschedule requests are limited to one per Product order.
Buyer may not cancel orders within 30 days of Product delivery.
Prior to 30 days from the scheduled delivery Buyer may cancel, but Buyer shall be liable to Seller for all unmitigatable costs incurred by Seller.