1. DEFINITIONS: “M Wave” shall mean M Wave Design Corporation incorporated in the state of California.
“Customer” shall mean the person(s) or company that purchases Product/Services from M-Wave pursuant to this Order.
“Order” shall mean the agreement between M Wave and the Customer (individually “Party” and collectively “the Parties”) for the sale and purchase of the Product/Services, including the Terms and Conditions of Sale herein and any contemporaneous writing, signed by both Parties, and firmly attached hereto.
“Product” means all components, spare parts, goods, Product, or materials of any kind, which are supplied by M Wave under this Order.
“Services” means all services, including maintenance and installation services, provided under this Order.
2. OFFER AND GOVERNING PROVISIONS: Each quotation and Order acknowledgement issued by M Wave is an offer by M Wave to sell the goods and/or services described in it in accordance with these Terms and Conditions of Sale, is not an acceptance of any offer made by the Customer, and is expressly conditioned upon the Customer's assent to these Terms and Conditions of Sale.
3. PAYMENT: Payment in full of the purchase price shall be made in United States currency within 30 days of the date of invoice. Punctual payment as stipulated herein is of the essence for the order. When any sum owed by Customer to M Wave under any order is overdue, M Wave reserves the right, without notice to Customer, to either: cease the supply of further Product/Services under this order without liability for any loss (including loss of profit or other financial or economic loss) to Customer or terminate the order entirely, AND revoke previously approved credit terms.
No defect in the Order of the Product/Services shall operate to interfere with the terms of payment. If payment is not made as stipulated above, Customer shall thereby be deemed to have waived the warranties provided in Section 6 hereunder. M Wave may demand different terms of payment from those specified on the face of this Order, whenever it reasonably appears that Customer’s financial condition requires such changes, and may demand assurance of the Customer’s ability to pay whenever it reasonably appears that such ability is in doubt. Such demand shall be in writing and M Wave may, upon making such demand, stop production and/or suspend shipments hereunder.
If Customer is in default of any payment obligation, M Wave is, without reminder and prejudice to any other rights, entitled to charge interest at a rate of 1.5% per month, not to exceed the legal interest for any outstanding sum, beginning with any due date of payment.
4. DELIVERY: Unless otherwise agreed to in writing, M Wave shall deliver the Product FOB destination; freight collect or as negotiated, prepaid by M-Wave and added to invoice, the place of shipment named herein within a reasonable time after receipt by M Wave of Customer’s written acceptance.
5. DELIVERY INSPECTION REPORT: To help protect both M Wave and our Customers, we ask that before signing for receipt of your Products, you complete the “Delivery Inspection Report” provided by the contracted delivery company (i.e. UPS/ Fed-X).
6. WARRANTIES: M Wave warrants that the Product sold by M Wave, and that is manufactured by M Wave, for a period of 12 months (1) conforms to M Wave specifications, and (2) is free from defects in materials and workmanship (under normal usage and provided that M Wave' operation and maintenance instructions are followed by competent personnel). Normal wear and tear or damage caused by the customer shall not be considered a defect under warranty. M Wave warrants that it shall use reasonable efforts to provide the Services ordered under the Order.
If the Customer discovers a defect within the applicable warranty period, it must be reported to M Wave customer service department at 805-527-2524 (voice) or 805-527-2523 (fax) immediately to request a RMA (returned Material Authorization) number. Returned product will not be accepted without an RMA.
7. LIMITATIONS OF LIABILITY AND INDEMNITY:
AS PROVIDED IN THE WARRANTY IN SECTION 7 ABOVE, M WAVE' LIABILITY FOR BREACH OF WARRANTY SHALL BE LIMITED TO THE REMEDIES THEREIN PROVIDED. WITH RESPECT TO OTHER BREACHES OF CONTRACT, M-WAVE SHALL HAVE NO LIABILITY MORE THAN THE AMOUNT OF THE ORDER. IN NO EVENT SHALL M WAVE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM COST OF SUBSTITUTE PROCUREMENT, LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF REVENUES. LOSS OF BUSINESS, OR FAILURE OR DELAY IN PERFORMANCE, WHETHER BASED ON BREACH OF WARRANTY OR OTHER CONTRACT BREACH, NEGLIGENCE OR OTHER TORT OR ON ANY STRICT LIABILITY THEORY, EVEN IF M WAVE HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. NOR SHALL M WAVE BE RESPONSIBLE FOR ANY CLAIM AGAINST CUSTOMER BY A THIRD PARTY.
The conditions to performance specifically stated in this provision and elsewhere in this Order shall be the only conditions precedent or after an absolute duty of performance on the part of Customer and M Wave. Any official action or legal proceeding by Customer in connection with the Order, other than provided for elsewhere in this Order, must be commenced within one (1) year from delivery. In no event of breach or repudiation of this Order by M Wave shall M Wave be liable for indirect, special, third party, incidental, or consequential damages, including without limitation lost profits, data, or goodwill, and Customer hereby agrees not to make any such claim on M Wave. Customer agrees to defend, indemnify and hold harmless M Wave from and against any claim, loss, liability, expense or damage (including liens or legal fees) incurred by M Wave with respect to any of Customers use of said product and export or re-export activities contrary to Section 10 – Export & Import Controls.
8. CHANGES AND TERMINATION: M Wave shall have the right, in its sole discretion, to terminate the Order if Customer: (i) is unable to pay its debts as and when they become due; (ii) is the subject of a legal process declaring it insolvent; (iii) ceases or threatens to cease carrying on its business; or (iv) commits a substantial breach of this Order which is incapable of remedy.
Customer may make a written request for amendment, modification, or termination. If a request for amendment or modification is accepted by M Wave, and any changes cause an increase or decrease in the cost of, or the time required for, the performance of any part of the work under this Order, an equitable adjustment shall be made in the price or delivery schedule, or both, and the Order shall be modified in writing accordingly. Wherever the cost of property made obsolete as a result of the change is included in the price adjustment, Customer shall have the right to prescribe the manner of disposition of such property. If request for termination is accepted by M Wave, equitable provision shall be made to M Wave for a recoupment of all costs incurred under the Order and for reasonable profit based on time and costs expended. The Order shall continue in effect until such time as payment is received. A written request as specified herein shall give M Wave adequate reason to demand written assurance of Customer’s ability and intent to carry out the Order.
9. CONFIDENTIALITY: The Parties agree that, in the course of performance of this Order, it may be necessary and desirable for them to exchange confidential information. For example, all updates, repairs, replacements, fixes, modifications, and other changes to the Product/Services shall be considered M Wave’ proprietary information. To accomplish this confidentiality, the Parties agree as follows: any Party disclosing confidential information to the other Party shall identify such information as confidential when disclosing it. The receiving Party shall not disclose confidential information of the disclosing Party to any person outside its employ, except when authorized by the disclosing Party. Any Party receiving confidential information under this Article shall maintain such information in confidence in the same manner it protects its own confidential information and shall use it only for the performance of this Order, and for no other purpose.
10. EXPORT AND IMPORT CONTROLS: Customer acknowledges and agrees that the ultimate destination of the Order Product/Services is in the United States, unless otherwise agreed to in writing. Customer shall not authorize or permit its employees, distributors, customers, brokers, freight forwarders, and/or agents to export or re-export any of the Order Product/Services to any foreign person without complying with applicable export and import laws and regulations of Customer’s country and of the United States, including the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). Customer agrees to obtain and properly utilize U.S. Government export authorization prior to exporting or re-exporting the Order Product/Services, either in their original form or after being incorporated into other end-items.
11. NOTIFICATION: Customer agrees to notify M Wave immediately if Customer is listed in any Denied Persons List, Entity List, or Specially Designated Nationals List, or if Customer’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. Government entity or agency.
12. PROPRIETARY INFORMATION STATEMENT: This quotation contains information proprietary to M Wave. No part of this information may be reproduced or transmitted in any form without the prior written permission of M Wave. This quotation supersedes all previous quotations and is valid for 45 days from date of issue, unless otherwise stated.
13. LEGAL REMEDIES STATEMENT: Should there be any official action of legal proceeding regarding M Wave Designs products or services the following apply; , All legal actions must be brought in Ventura County, California. The prevailing party shall be entitled to recover attorney fees and costs.