Terms and Conditions
Tango Systems, Inc. Terms and Conditions of Sale TERMS AND CONDITIONS OF SALE All quotations, services and sales by Tango Systems, Inc., its subsidiaries or affiliates (“Tango”) are subject to the following terms and conditions (the “Terms”):
- General. Quotations are offered for acceptance within thirty (30) days unless a longer time is specified on the face of the quotation, and if not so accepted within the designated period shall be deemed withdrawn. Unless otherwise specified, the prices quoted are based upon receipt of all Buyer furnished articles, technical data, and support equipment in good condition within thirty (30) days after receipt of order. If the Buyer-supplied items are not provided in a timely manner, the prices and delivery schedule quoted shall be subject to change. Tango’s acceptance of any order is contingent upon Tango’s approval of Buyer’s credit. Tango is under no obligation to enter an order acknowledgement and may rescind its quotation at any time prior to acknowledgement. When a quotation involves multiple items, the quotation is non-severable at the option of the Tango. If the quotation is made prior to receipt and review by Tango of all applicable specifications and proposed contract documents, then prices quoted are subject to revision once missing documents are received. The prices quoted are valid for the proposal in which they are contained only and may not be utilized as a basis for pricing similar, repeat, or subsequent orders.
- Prices and Payments. All quotes are listed in USD ($) unless otherwise specified. Prices quoted do not include sales, use or similar state or local taxes, import fees, duties or tariffs, all of which are to be paid by Buyer in addition to the price quoted. If Buyer claims exemption from any such duty or tax, Buyer will furnish appropriate exemption certificate to Tango. Payment on all sales, if on credit terms, are net 30 days from date of shipment. If Buyer fails to make full payment within such 30-day period, the unpaid balance of the invoice shall bear interest at the rate of 1.5% for each full or partial month such invoice remains unpaid.
- Shipping and Risk of Loss. All goods to be sold hereunder shall be shipped FOB (Ex-Works) Tango USA’s dock and all risk of loss shall pass to the Buyer at that point. Prices do not include any freight, crating, handling, insurance or other similar charges, payment of which will be the sole responsibility of Buyer. Quoted freight charges may be constructed on the basis of standard carrier tariffs and may not reflect actual transportation costs. In the absence of prior agreement as to shipping, Tango may select a carrier. Tango’s responsibility for any loss or damage ends, and title passes, when goods are delivered to the carrier, to Buyer, or to Buyer’s agent (including, without limitation, any test house or value added service provider), whichever occurs first. Buyer will pay for storage charges if goods are held pending instructions or rescheduled delivery. Tango reserves the right to modify terms prior to shipment, require payment in advance, or delay or cancel any shipment or order by reason of Buyer’s creditworthiness or should Buyer fail to fulfill any obligation when due.
- Order Changes, Returns and Cancelations. No order may be cancelled, rescheduled or reconfigured by Buyer without Tango’s prior written authorization, and, in such event, Buyer will be liable to Tango for any additional costs and expenses incurred by Tango. Prices are subject to change by Tango upon Buyer rescheduling or reconfiguration of orders. No returns may be made for any reason without a Return Authorization Form issued by Tango. If Buyer refuses to accept tender or delivery of any goods or returns any goods without authorization from Tango, such goods will be held by Tango awaiting Buyer’s instruction for twenty (20) days, after which Tango may deem the goods abandoned and dispose of them as it sees fit, without crediting Buyer’s account. In the event of an order cancelation by Buyer, a cancelation payment of 25% of the final sale price after issuance of a PO will be charged to the Buyer. Order cancelation is not allowed after shipment. All down payments or advance payments made shall be deemed forfeit by the Buyer upon order cancelation.
- Notice of Claims and Acceptance. Immediately upon receipt of the goods, Buyer will inspect the same. For Axcela, Sapphire and Topaz systems the Buyer will inspect and evaluate the tool based on the previously agreed upon Acceptance Criteria and Tool Specification Sheet provided by Tango. Any claim for shortage must be made within three (3) business days after Buyer’s receipt of the goods, and the original packaging, including exterior cartons, shall be saved and made available so that Tango can make a claim with the carrier. All other claims, including claims for alleged defective goods, must be made within ten (10) days after Buyer learns of the facts upon which such claim is based, but in no event later than thirty (30) days after Buyer’s receipt of the goods. With respect to any defects incapable of discovery until in use or in processing in the manufacture of other goods, all claims for any damages or losses as a result of such defects will be deemed waived unless made in writing and received by Tango within forty-five (45) days after Buyer’s receipt of the goods or within ten (10) days after Buyer learns of the alleged defect giving rise to the claim, whichever will first occur, and, after the expiration of either of said periods, Buyer expressly assumes all liability for all such damages or losses irrespective of any processing or use which will have taken place or whether the alleged defect will have occurred or been discovered prior to expiration of such period. All claims not made in writing and received by Tango within the time periods specified above are deemed waived, and the goods will be conclusively deemed accepted by Buyer. Notwithstanding and in addition to the above, Buyer shall be deemed to have conclusively accepted any goods as of the date it utilizes the same for production of products for sale.
- Limited Warranties and Disclaimers. Tango warrants that goods supplied hereunder shall perform substantially in accordance with Tango’s applicable specifications therefore for a period of one (1) year after delivery. The foregoing limited warranty is expressly in lieu of any other warranty, express or implied, of or by Tango. Buyer’s exclusive remedy, if any, under this warranty is limited, at Tango’s election, to any one of (a) refund of Buyer’s purchase price, (b) repair by Tango or the manufacturer of any products found to be defective, or (c) replacement of any such product. Buyer acknowledges that except as specifically set forth or referenced in this paragraph. Any warranty hereunder shall be void in the event of any unauthorized repair or maintenance attempts by Buyer or third party.
- Collections. Tango retains a purchase money security interest in all goods sold by Tango to Buyer, and in the proceeds of any resale of such goods, until the purchase price and any other charges due to Tango have been paid in full. Buyer agrees to execute any financing statements Tango may request in order to protect Tango’s security interest and hereby authorizes Tango to execute and irrevocably appoints Tango its attorney in fact for the execution of such financing statements. Upon any breach by Buyer of these terms and conditions, Tango will have all rights and remedies of a secured party under the Uniform Commercial Code, which rights and remedies will be cumulative and not exclusive. Buyer is responsible for all costs and expenses incurred by Tango in collecting any sums owing by Buyer (which may include, but are not limited to, collection agency and reasonable attorneys’ fees). If Tango incurs costs collecting on any judgment arising out of Buyer’s breach, Buyer will be responsible for them, and this provision will survive the entry of any such judgment. Tango shall have the right to offset any sum owed by Tango or any Tango subsidiary or affiliate to Buyer against any sum owed by Buyer to Tango or any Tango subsidiary or affiliate. Tango may assign accounts receivable to a Tango affiliate or third party.
- Limitation of Damages. Except for the warranty coverage referenced in paragraph 5, above, NEITHER TANGO NOR ITS SUPPLIERS WILL HAVE ANY LIABILITY OR OBLIGATION TO BUYER OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE CAUSED IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, BY THE INADEQUACY OF ANY GOODS FOR ANY PURPOSE, BY ANY DEFICIENCY OR DEFECT IN ANY PRODUCT (WHETHER OR NOT COVERED BY ANY WARRANTY), BY THE USE OR PERFORMANCE OF ANY GOODS OR BY ANY FAILURE OR DELAY IN TANGO’S PERFORMANCE HEREUNDER, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR LOSS OF BUSINESS OR PROFIT, WHETHER OR NOT BUYER HAS INFORMED TANGO OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH DAMAGES. TANGO’S AGGREGATE LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT OR OTHERWISE) WITH IN ANY WAY ARISING OUT OF OR RELATED TO THI AGREEMENT OR THE GOODS WILL IN NO EVENT EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE PARTICULAR ITEM(S) OF GOODS WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED.
- US Government End Users. If Buyer’s order is placed under a contract with the United States Government, Tango agrees to comply with those contract provisions and regulations with which, pursuant to law, it must comply and of which Buyer has, at the time of order placement, placed Tango on notice. In no event will United States Government Cost Accounting Standards apply. All rights in technical data and software owned or licensed by Tango or the manufacturer or licensors are hereby reserved and deemed restricted or limited. No provision of Buyer’s contract with the government will be binding on Tango or the manufacturer except as expressly set forth in this paragraph.
- No Safety Critical Applications. Unless specifically otherwise agreed in writing signed by an officer of Tango, Buyer acknowledges that goods sold by Tango are not intended for and will not be used in production of any goods for use in life support systems, human implantation, nuclear facilities or systems or any other application where product failure could lead to loss of life or catastrophic property damage. Buyer will indemnify and hold Tango harmless from any loss, cost or damage resulting from Buyer’s breach of the provisions of this paragraph.
- Export Restrictions. Any or all goods may be subject to export or resale restriction or regulation, and Buyer acknowledges that it will comply with such regulations or restrictions. Any or all goods may have been imported. Country of origin information is as provided to Tango by its suppliers and is, where applicable, located on the goods themselves or the supplier’s innermost packaging thereof.
- Intellectual Property Rights. Any custom tools, dies, gages, fixtures, or software are an integral part of the goods and included in engineering charges. Payment by Buyer of engineering charges, whether separately quoted or not, does not convey ownership such items, and in no event shall any such items be considered “works made for hire.” Transfer of title shall not operate to convey to Buyer any right to make, or have made, any Product supplied by Tango Systems, Inc. Buyer is granted no right or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by any license agreement accompanying such software or other intellectual property. Buyer shall not copy equipment or software provided by Tango Systems, Inc.; transfer it to a third party separately from the Products; modify, decompile, disassemble, reverse-engineer or otherwise attempt to copy equipment or derive the source code of the software; export the software or underlying technology in contravention of applicable US and international export laws and regulations; or use the equipment or software other than as authorized in connection with use of Products.
- Force Majeure. Tango will not be liable for any failure or delay in its performance or in the delivery or shipment of goods, or for any damages suffered by Buyer by reason of such failure or delay, when such failure or delay is caused by, or arises in connection with, any fire, flood, accident, riot, earthquake, severe weather, war, governmental interference or embargo, strike, shortage of labor, fuel, power, materials or supplies, delay in delivery by Tango’s suppliers or any other cause or causes beyond Tango’s reasonable control. Tango reserves the right to cancel without liability any order, the shipment of which is or may be delayed for more than 30 days by reason of any such cause. Tango reserves the right to allocate in its sole discretion among Buyers or potential Buyers, or defer or delay the shipment of, any product that is in short supply.
- Cumulative Remedies; Nonwaiver. Tango’s remedies herein provided will be cumulative and in addition to any other remedies by law or in equity. Tango’s failure to insist upon or enforce strict performance of any of, or to exercise any rights or remedies under, Tango’s agreement with Buyer will not be construed as a waiver or relinquishment to any extent of Tango’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
- Applicable Law; Jurisdiction, and Venue. Sales of goods pursuant to these Terms will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, U.S.A., without reference to its choice of law principles to the contrary, except that the U.N. Convention on Contracts for the International Sale of Goods (1980), or any successor thereto, does not apply. Buyer will not commence or prosecute any action, suit, proceeding or claim relating to the goods other than in the State or Federal courts located in Santa Clara County, State of California. Buyer hereby irrevocably consents to the jurisdiction and venue of such courts in connection with any action, suit, proceeding or claim arising under these Terms or by Tango’s sale of goods. The parties waive any right to trial by jury.
- Assignment. These Terms bind and inure to the benefit of Tango, its successors and assigns. Buyer may not assign any right or interest hereunder, nor delegate the performance of any of its obligations without Tango’s prior written consent. This agreement contains the entire agreement between Tango and Buyer and supersedes any prior understandings or written or oral agreements.
- Notices. Any notice will be sent by registered or certified mail with return receipt requested (airmail if sent internationally) to either party’s address set forth on the face of the purchase. Notice may also be given by such other means as may be agreed upon. Notice will be effective upon receipt.
- Entire Agreement. All quotations and sales are made only upon these terms and conditions and those in the accompanying quotation. This document, and not any purchase order or other Buyer document (which, if construed to be an offer is hereby rejected), will be deemed an offer or counteroffer and is a rejection of any other terms or conditions. Buyer, by accepting any goods, making any payments or ordering any goods having previously received these terms and conditions, will be deemed to have assented to these terms and conditions, notwithstanding any terms contained in any prior or later communication from Buyer and whether or not Tango will specifically or expressly object to any of Buyer’s terms. Tango’s failure to object to any document, communication or act of Buyer will not be deemed a waiver of any of these terms and conditions. Any addition or change to these terms and conditions must be specifically agreed to in writing by a duly authorized officer of Tango before becoming binding on Tango and the Buyer. No course of prior dealings between Buyer and Tango and no usage of the trade will be relevant to supplement, interpret or explain these Terms. Buyer shall comply