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| CONDITIONS of SALE of TI Surplus Equipment |
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Any term, condition, and/or provision (hereinafter "terms") of Buyer's order which is in any way inconsistent with or in addition to these terms shall not be applicable hereto or binding upon Seller. If Buyer objects to any terms herein, such objection must be in writing and received by Seller at the address stated on the face hereof prior to commencement of performance by Seller, retention by Buyer of any goods delivered by Seller hereunder shall be conclusively deemed acceptance of the terms hereof. Seller's failure to object to terms contained in any communication from Buyer will not be a waiver of the terms hereof.
1. AS IS -- WHERE IS:
The goods hereunder have been designated as "surplus" by Seller. The goods are sold on an "AS IS -- WHERE IS" basis at "BUYER'S RISK" only, provided that as to goods not manufactured by TI, TI, to the extent permitted by TI's contract with its supplier, shall assign to Buyer any rights TI may have under any warranty of the supplier thereof.2. OFFERS NOT BINDING:
Seller reserves the right to refuse any and all offers of purchase for any reason whatsoever at its sole option and discretion.3. TAXES:
Prices do not include any taxes, now or hereafter enacted, applicable to the goods sold or this transaction, which taxes will be added by Seller to the sales price where Seller is required by law to collect the same, and will be paid by Buyer unless Buyer provides Seller with a proper tax-exemption certificate.4. TITLE AND DELIVERY:
Unless otherwise set forth on the face of this Sales Agreement, domestic shipments of goods within the U.S. shall be delivered F.O.B. TI's plant, and title and liability for loss or damage thereto shall pass to Buyer upon TI's tender of delivery of the goods to a carrier for shipment to Buyer, and any loss or damage thereafter shall not relieve Buyer from any obligation hereunder. Shipments of goods to destinations outside of the U.S. shall be delivered F.O.B. destination, and title and liability for loss or damage shall not pass to Buyer until TI's tender of delivery of goods to Buyer at such destination. Buyer shall bear all insurance and transportation expenses, including but not limited to, responsibility for any associated taxes, duties and other expenses incurred or documentation. licenses or clearances required at port of entry and destination. TI may deliver the goods in installments. Shipping dates are approximate only. TI shall not be liable for any loss or expense (consequential or otherwise) incurred by Buyer if TI fails to meet the specified delivery schedule because of unavoidable production or other delays. In the event of any default by Buyer, Seller may decline to make further shipment..5. TERMS AND METHODS OF PAYMENT:
Payment shall be made by cash or certified check presented on the date of sale. However, if Seller has extended credit to Buyer, terms of payment shall be net thirty (30) days from date of invoice. The amount of credit or terms of payment may be changed or credit withdrawn by Seller at any time. If the goods are delivered in installments, Buyer shall pay for each installment in accordance with the terms of payment hereof. Payment shall be made for the goods without regard to whether Buyer had made or may make any inspection of the goods. If shipments are delayed by Buyer, payments are due from the date when Seller is prepared to make shipments. If in Seller's judgment Buyer's financial condition does not justify the terms of payment specified herein, Seller may cancel this contract unless Buyer shall immediately pay for all goods which have been delivered and pay in advance for all goods to be delivered. Goods held for Buyer are at Buyer's sole risk and expense.6. CONTINGENCIES:
Seller shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control of Seller, including, but not limited to, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, shortage of labor, accident, fire explosion, flood, storm or other act of God.7. DISCLAIMER OF WARRANTIES AND INDEMNITIES:
Seller makes no warranties express or implied, including but not limited to, any implied warranty of merchantability or fitness for a particular purpose whatsoever as to the goods sold to Buyer hereunder, and does not indemnify Buyer against infringement of any patent, trademark or copyright. TI's disclaimer of warranties as hereinabove set forth shall not be diminished or affected by, and no obligation or liability shall arise or grow out of, TI's rendering of technical advice or service in connection with goods furnished hereunder.8. APPLICABLE LAW:
The validity, performance and construction of this contract shall be governed by the laws of the State of Texas.9. ASSIGNMENT:
This contract shall be binding upon and inure to the benefit of the parties and their successors but shall not be otherwise assignable.10. MODIFICATION:
This contract constitutes the entire agreement between the parties relating to the sale of the goods described on the face hereof, and no addition to or modification of any provision upon the face or reverse of this contract shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller.11. LEGAL COMPLIANCE:
Buyer at all times shall comply with all applicable federal, state, and local laws and regulations.
* Export laws: The products covered by this contract may fall within the group of "strategic" products that are wholly or partly of U.S. origin, the export of which is subject to export license control by the U.S. government, prior to export and reexport. Buyer shall obtain any licenses required under the applicable laws of the U.S. Buyer assures TI that without prior authorization from the U.S. government, it shall not knowingly export or reexport, directly or indirectly, any technical data (including software) received hereunder, or any direct product thereof, to any recipient or destination to which such export or reexport is restricted or prohibited by U.S. law. Buyer further assures TI that no goods or technical data (including software) covered by this agreement are intended for transfer to or use in, directly or indirectly, activities related to the design, production, use or stockpiling of missiles or chemical or biological weapons.12. SAFETY AND ENVIRONMENT:
To the extent that any goods sold to Buyer hereunder contain any hazardous contaminant, Buyer will take all steps necessary to properly and adequately warn, educate, train, and supervise its employees, agents, and any other third parties who come into contact with the goods (including, but not limited to, Buyer's successors and assigns), regarding the possible presence of hazardous or toxic residue in and on the goods, and the need to take special handling or cautions prior to transporting, using, disposing, or otherwise handling the equipment.13. INDEMNIFICATION:
Buyer agrees to defend, indemnify and hold harmless Seller, its officers, agents and employees from and against all claims, losses, costs, expenses, damages, arising from or related to property damage, economic injury, or bodily injury (including death) of whatsoever kind or nature arising out of Buyer's, its employees', officers' and agents' removal from TI, use or misuse, transportation, storage and disposal of the goods sold to Buyer hereunder.14. LIMITED LIABILITY OF SELLER:
TI's sole and exclusive maximum liability for any and all claims in the aggregate shall not exceed the total price of items ordered hereunder less the purchase price for any items delivered and accepted hereunder not made the subject of a claim. In no event shall ti be liable to anyone for loss of profits, loss of goodwill, loss of use, special, collateral, indirect, exemplary, incidental or consequential damages, including, but not limited to, costs of removal and reinstallation.15. RELEASE OF INFORMATION:
Neither party hereto shall, without prior written consent of the other party (which shall not be unreasonably withheld) publicly announce or otherwise disclose the existence or the terms of this Agreement, or release any publicity regarding this Agreement. This provision shall survive the expiration, termination or cancellation of this Agreement. Any knowledge or information which Buyer may disclosse to TI shall not be deemed to be confidential or proprietary informatiiton and shall be acquired by TI free from any restrictions as to use or disclosure thereof.16. WAIVER:
Any failure of TI to enforce at any time, or for any period of time, any of the provisions of this Agreement shall not constitute a waiver of such provisions nor of TI's right to enforce each and every provision.17. SETOFF:
TI shall be entitled at all times to setoff any amount owing, for any reason, at any time, from TI or any of its affiliated companies to Buyer against any amount payable at any time to TI in connection with this order.18. RESERVATION OF RIGHTS:
TI expressly reserves all rights and remedies which are available to it at law or equity, including, but not limited to, the rights and remedies set forth in the Uniform Commercial Code.19. INTELLECTUAL PROPERTY:
The sale by Seller of the items ordered hereunder does not grant, convey or confer upon Buyer or Buyer's customers or upon anyone claiming under Buyer a license express or implied under any intellectual property rights of Seller covering or relating to any combination, machine or process in which said items might be or are used.20. US GOVERNMENT CONTRACTS:
If the goods to be furnished under this contract are to be used in the performance of a U.S. Government contract or subcontract and a U.S. Government contract number shall appear on Buyer's purchase order, then those clauses of the applicable U.S. Government procurement regulations which are mandatorily required by federal statute to be included in U.S. Government subcontracts shall be incorporated herein by reference.