SILICON MICRO DISPLAY, INC. TERMS AND CONDITIONS OF SALE
These terms and conditions are a legal agreement between you (either an individual or an entity on whose behalf you are acting) (“Purchaser,” “You” or “Your”) and Silicon Micro Display, Inc. (“SMD”, “we,” “us” or “our”) establishing terms and conditions under which You may purchase Products (as defined below) from SMD through orders placed on SMD’s website at siliconmicrodisplay.com and related domains of SMD (“Website”) and under which SMD will accept Your order (an “Order”) and sell those Products to You.
THIS IS A BINDING ORDER FOR PRODUCTS FROM SILICONMICRODISPLAY. BEFORE YOU CLICK ON THE “I ACCEPT” BUTTON, CAREFULLY READ THESE TERMS AND CONDITIONS AND COMPLETE THE PAYMENT AND OTHER ORDER INFORMATION PROVIDED BY SILICONMICRODISPLAY. BY CLICKING ON THE “I ACCEPT” BUTTON, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS AND CONDITIONS TOGETHER WITH THE ORDER INFORMATION YOU HAVE PROVIDED VIA THE ORDER FORM ON OUR WEBSITE (THE “ORDER FORM,” TOGETHER WITH THESE TERMS AND CONDITIONS, COLLECTIVELY, “THIS AGREEMENT”). YOU HEREBY ORDER THE PRODUCTS SET FORTH IN THE ORDER FORM. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “I DO NOT ACCEPT” BUTTON AND YOU WILL NOT BE PERMITTED TO ORDER PRODUCTS FROM SILICONMICRODISPLAY VIA OUR WEBSITE.
1. Order; Delivery Time Frame. You hereby order the Products for delivery by SMD. If You selected a type of order in the Order Form which provided a reduced purchase price for certain Products in exchange for an irrevocable order (an “Advance Purchase Promotion”), then You hereby agree that your Order for such Products is binding and irrevocable, to the extent permitted by applicable law. Otherwise, Your Order may be cancellable, solely to the extent set forth on the Order Form or as required by applicable law. SMD expects to ship our Products to our customers from time to time, as material becomes available. However, SMD does not guarantee delivery dates.
2. Pricing; Payment Processor. The purchase price of each Product is set forth in the Order Form on our Website. If You are purchasing through an Advance Purchase Promotion, SMD will charge You a per Product deposit (“Deposit”), up to the full purchase price of the applicable Products, at the time of placement of this Order for such Products, and SMD will charge the remaining balance of the purchase price and related fees upon shipment of the applicable Products. If You are purchasing a Product which is not subject to an Advance Purchase Promotion, then SMD will charge the remaining balance of the purchase price and related fees upon shipment of the applicable Products. SMD will not ship Products where the payment method You provided fails at the time of shipment. The costs of shipping, insurance, taxes, duties, and other related fees are not included in quoted Product prices; such costs will be quoted on a case-by-case basis on the Order Form, are Your responsibility, and if paid by SMD, will be separately invoiced to You. Any certificate of exemption or similar document or proceeding required to exempt the sale of Products or Services from sales or use tax liability, shall be obtained by You, at Your expense. We intend to use a third party payment processor, such as PayPal, in connection with your payments of the amounts due hereunder. You agree and acknowledge that Your provision of payment information to that third party, via our Website or otherwise, is subject to the terms and conditions provided by that third party.
3. Returns. You may return a purchased Product in new condition within ten (10) days of receipt of such Product, subject to first obtaining a return materials authorization (“RMA”) from SMD, paying for the shipment back to SMD and subject to SMD deducting a restocking fee of twenty-five dollars ($25) for a Product where the box was not opened or a restocking fee of one hundred twenty-five dollars ($125) or more based on the condition of the Product for a Product where the box was opened, such amount to be determined in SMD’s sole discretion. SMD shall provide a credit to Your applicable payment method in the amount of the purchase price, less the Deposit, if any, and less the applicable restocking fee.
4. Risk of Loss and Delivery. Delivery of Products shall be addressed to Your location set forth in the Order, EXW SMD’s facility in the United States or the Republic of Korea (Incoterms 2010), freight prepaid upon transfer to a common carrier, unless otherwise stated in an accepted Order. Upon delivery to You, except for title to the Software which shall remain with SMD at all times, title to the Products shall pass to You. Without limiting Your rights pursuant to the express warranty set forth herein, the Products will be deemed accepted when delivered.
5. Software License; Restrictions.
A. License. SMD may provide software necessary for operation of the Products (“Software”), embedded on such Products and/or via remote download when You receive the Products. When you download any such Software from our Website, You may be required to agree to additional terms and conditions in order to obtain that Software. With respect to any Software provided by SMD under any Order, You and SMD intend and agree that such Software is being licensed and not sold. We hereby grant to You a royalty-free, non-exclusive, non-assignable, non-sublicensable and non‑transferable limited license by SMD, to use one (1) copy of the Software solely in connection with use of each one (1) hardware Product purchased by You, solely in the country in which the Product was purchased, and solely for personal use, and not (A) for resale of the Products; and (B) in conjunction with a Product, in a way that brings physical or mental harm to You or to a third party. The Software is supplied and licensed only in machine-readable object code form. All intellectual property rights in the Products and Software are and shall remain vested in SMD (or its licensors) and nothing in this Agreement, except as expressly provided in this Section 5, shall be construed as granting to You a license to such intellectual property rights or any right of manufacture of the Products.
B. Restrictions. You agree that You will not copy, alter, adapt, improve, modify, decode, decompile, disassemble, reverse engineer, reproduce, disclose, publish, sell, transfer, assign, lease, rent, sublicense, export, provide third party access to, or otherwise distribute any Products or Software to any other party, in whole or in part, or attempt to do any of the foregoing, whether directly or through the efforts of third parties. You agree that the obligations in this paragraph shall survive termination of the License for any reason. You shall use Software solely for execution on the unit of Product originally delivered to You with such Software installed or onto which such Software was first downloaded by You.
6. International Shipments.
A. International Standards. For Products shipped to countries other than the United States of America and The Republic of Korea (each, an “SMD Country”), please note that (1) the Product may not conform to destination country voltage or other electrical standards, and may require the use of an optional adapter or converter; (2) Product manuals, instructions or safety warnings may not be in the language of the destination country; and (3) the Product may not be designed in accordance with the destination country standards, specifications or labeling requirements.
B. Warranty. In addition to paying shipping costs to and from SMD, a Purchaser seeking warranty service in a country other than an SMD Country shall be responsible for all customs clearance charges, import taxes, customs duties and fees, whether levied by an SMD Country or a non-SMD Country. The terms in this Section 6 also apply to any replacement Product provided under a warranty under this Section 6.B.
C. Import and Export. You are the importer of record for any Products ordered to a country other than an SMD Country and must comply with all laws and regulations of the destination country. You are responsible for import taxes, customs duties and fees levied by a country other than an SMD Country as well as any customs clearance charges and You shall pay for any such charges or levies. Customs clearance may cause delays beyond SMD’s control and outside of SMD’s delivery estimates. You are responsible for ensuring that the Product can be lawfully imported into the destination country. You may not export the Product to another country, except as permitted for warranty claims under Section 6.B, or for the return of a Product to SMD, in which case You will be the exporter of record, and title and risk of loss to the Products shall be borne by You until the Products are received by SMD at its facilities in the SMD Country specified in the packaging materials provided with the Product.
7. Purchaser Indemnity. You shall indemnify and hold harmless SMD in respect of any claim which may be made against SMD (a) arising in connection with any breach by You of any provision contained in this Agreement; (b) arising from Your use of the Products or Software; or (c) arising out of Your failure to observe the terms of this Agreement or to use the Products improperly or in an unsafe manner.
8. Limited Warranty.
A. Warranty. Subject to the limitations set forth elsewhere herein, SMD warrants to You that for a period of one (1) year from the date of shipment of a Product from SMD (the “Warranty Period”), the Products, under normal use and conditions, will operate in material conformance with applicable SMD specifications or standards that are current at the date of the Order. SMD does not warrant that the Software is free of all defects or that it will operate without interruption. SMD does not warrant that Products will work in combination with third party hardware or software, operate uninterrupted or error free or that non-material defects will be corrected. SMD and its suppliers are not obligated to provide service, upgrades, updates, improvements, or enhancements to SMD's Products beyond those set forth in this Agreement. This warranty does not apply to ordinary wear and tear or to any defect caused by Your failure to: provide a suitable operating environment, use Products for commercial use, use Products for a purpose or in a manner other than that for which they were designed, use Products in hazardous circumstances or any other abuse, misuse, or neglect of the Products by You.
B. Remedy Limitations. The warranties and remedies herein are exclusive, non-transferable, and effective only with respect to the original purchaser of any Products. The warranties and remedies herein do not apply to any Product or any part thereof that (a) has not been serviced, maintained, or upgraded (including all software and firmware associated with it) pursuant to SMD’s recommendations or specifications or as required by SMD; (b) has been damaged by accident, shipment, handling, abuse, misuse, modifications, misapplication, or a failure to exercise due caution in cleaning, maintenance, or operation; or (c) does not comply with the warranty requirements because of the use of non-recommended, non-SMD products or software.
C. Warranty Procedure. You will give notice of warranty failure within thirty (30) days of such failure during the Warranty Period. Within a reasonable period, SMD shall provide an RMA to You. You shall be responsible for shipment of the Product to SMD. SMD shall analyze the failures, making use, when appropriate, of technical information provided by You relating to the circumstances surrounding the failures. SMD will verify whether any defect appears in the Product. If a returned Product is not defective, You shall pay SMD all costs of handling, inspection, repairs and transportation at SMD’s then-prevailing rates. If a returned Product is defective, Your exclusive remedy shall be that SMD shall either repair or replace the defective Product with the same or equivalent Product without charge or SMD shall provide a refund to You, in SMD’s sole discretion. SMD shall ship any replacement Product EXW SMD’s premises (Incoterms 2010), freight prepaid to Your destination. Parts or components may be replaced as deemed necessary solely at SMD’s discretion, with the returnable part or components becoming the property of SMD.
D. Warranty Extension. At the time of purchase of the Product (and not at any other time), You may, at Your option, purchase one (1) additional year of warranty coverage, at a price to be determined from time to time by SMD, as presented in a quotation by SMD for You. Notwithstanding Section 8.A, in the event that You purchase such a warranty extension, the “Warranty Period” for such Product shall be two (2) years from the date of shipment of such Product from SMD.
E. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SMD, ITS SUPPLIERS, LICENSORS, AND REPRESENTATIVES SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY LAW, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGMENT, SAMPLES PREVIOUSLY PROVIDED, SECURITY (OF CONNECTION, ACCESS, OR DATA), OR COURSE OF DEALING. SMD HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY USE OF THE PRODUCTS WILL BE FREE FROM INFRINGEMENT OF THIRD PARTY RIGHTS.
9. Disclaimer and Limitations on Damages.
A. Disclaimer. YOU AGREE THAT IN NO EVENT WILL SMD OR ITS SUPPLIERS, LICENSORS, OR REPRESENTATIVES BE LIABLE TO YOU OR ANYONE ELSE, FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS OR REVENUE, LOSS OF USE OF THE PRODUCTS OR RELATED MATERIALS, LOSS OF DATA, THE COST OF RECOVERING SUCH PRODUCTS, RELATED MATERIALS OR DATA OR, THE COST OF ANY SUBSTITUTE PRODUCTS OR MATERIALS, ARISING FROM ANY BREACH OF THIS AGREEMENT, OR THE SALE, LICENSE, USE OF, OR INABILITY TO USE THE PRODUCTS, OR RELATED MATERIALS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE.
B. Maximum Damages. in no event shall SMD’s aggregate liability arising in connection with a product exceed THE AMOUNTS ACTUALLY PAID BY YOU TO SMD IN THE THEN-PRIOR TWELVE (12) MONTH PERIOD.
C. Exclusive Remedies. The remedies set forth in this Agreement are the sole and exclusive remedies for any breach of any obligation by SMD or its suppliers, licensors, or representatives hereunder.
10. Export. The Products and Software are subject to export control and import laws and regulations of the United States and/or other countries. Products and Software subject to United States jurisdiction may be exported and re-exported only in accordance with the U.S. Export Administration Regulations. Diversion contrary to United States law is expressly prohibited. You represent that You are not and are not acting on behalf of – and that You will not transfer the Products or Software to – a person or entity (1) with which U.S. persons are prohibited from engaging in export or financial transactions; (2) located in, a national of, organized under the laws of, or an instrumentality of the government of Cuba, Iran, Democratic People’s Republic of (North) Korea, Sudan or Syria; (3) designated on the U.S. Commerce Department Denied Person’s List, Entity List or Unverified List; U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons; or U.S. State Department List of Debarred Parties; (4) engaged in activities involving nuclear materials or weapons, missile, rocket or unmanned aerial vehicle technologies, or proliferation of chemical or biological weapons; or (5) that will use the Products or Software for, on behalf of or in support of any non-U.S. military organization. You must comply strictly and at Your own expense with all such regulations that are now or later in effect with regards to the Products or Software. You certify that You will not export or re-export the Products or Software furnished hereunder except in compliance with all laws and regulations relating to such export or re-export, including but not limited to the customs and export control laws and regulations of the United States and the country in which the Products or Software are received. You acknowledge that it is Your sole responsibility to comply with and abide by those laws and regulations.
11. Governing Law. This Agreement is made in, governed by and shall be construed in accordance with the laws of the Commonwealth of Massachusetts, USA, excluding (i) its principles of conflict of laws, (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. You consent to the exclusive personal jurisdiction and venue of the courts of the Commonwealth of Massachusetts in connection with all disputes related to this Agreement.
12. General. The Conditions provided herein shall supersede any prior agreements, understandings, oral agreements, or other contracts in place between the parties. This Agreement may only be modified by a written amendment or agreement signed by authorized representatives of SMD and You. If any provision of this Agreement is found to be unenforceable, the remaining provisions shall remain in full force and effect, and any unenforceable provision shall be replaced by a legally effective provision that comes as close as possible to the purpose of the unenforceable provision. Failure on any occasion by either party to enforce any term of this Agreement shall not prevent enforcement on any other occasion. If either party's performance under this Agreement (except payment of monies due) is prevented, restricted, or interfered with by reason of any act, circumstance, or condition whatsoever beyond such party's or its suppliers' or licensors' reasonable control (including government action), the party whose performance is prevented, restricted, or interfered with, upon notice to the other party, shall be excused from such performance to the extent of such prevention, restriction, or interference. This Agreement is not assignable by You and any attempt to assign any rights, duties or obligations arising hereunder shall be null and void. This Agreement shall be binding on each party’s successors and assigns.