VIKING ENTERPRISE SOLUTIONS TERMS AND CONDITIONS OF SALE
This quotation shall constitute an offer by SANMINA CORPORATION to sell the product described herein at the prices and upon the terms and conditions set forth on the front and the reverse sides of this document. This quotation is valid for the lesser of thirty days or the date on which it is withdrawn by SANMINA CORPORATION. You (“BUYER”) may accept this offer by issuing SANMINA CORPORATION a purchase order or by any other reasonable means. Note, however, that your acceptance of this quotation is conditioned on your acceptance of the terms and conditions set forth in this document unless an operating agreement such as a Manufacturing Services Agreement or Product Purchase Agreement has already been established between your company and SANMINA CORPORATION, in which case that Agreement shall govern all buying and selling transactions related to the products described herein. SANMINA CORPORATION hereby objects to any additional or different terms contained in any purchase order or similar document you may issue. If you do not receive or cannot read the terms and conditions on the reverse side of this offer, please contact your sales contact at Viking Enterprise Solutions or view them on our website at www.sanmina.com.
1. Pricing. Prices are in U.S. Dollars, include SANMINA CORPORATION designed packaging (unless otherwise specified), and are based on the BUYER’S specifications and the projected volumes, minimum run rates and other assumptions provided to SANMINA CORPORATION by BUYER. SANMINA CORPORATION shall have the right to revise prices in the event of (a) any variation on the market prices of components, parts and raw material (collectively “Material”), including any such variations resulting from shortages, allocations or tariffs, (b) changes to the specifications, or (c) changes in the volumes upon which such prices were quoted. Prices do not include (a) export licensing of the product or payment of broker’s fees, duties, tariffs or other similar charges; (b) taxes or charges imposed by any taxing authority upon the manufacture, sale, shipment, storage, “value add” or use of the product which SANMINA CORPORATION is obligated to pay or collect (other than those based on net income of the SANMINA CORPORATION); or (c) setup, tooling, or non-recurring engineering activities. Any charges for these items shall be paid by BUYER in addition to the product prices set forth in this quotation.
2. Terms. Payment terms are net thirty (30) days after date of invoice. On any invoice not paid by maturity date, BUYER shall pay interest from maturity to date of payment at the rate of 1.5% per month.
3. Security Interest. SANMINA CORPORATION reserves a security interest in the products sold to BUYER in the amount of the purchase price until Buyer has paid for the products and all product-related charges. In the event of default by BUYER in any of its obligations to SANMINA CORPORATION, SANMINA CORPORATION will have the right to repossess the product sold hereunder without liability to BUYER. SANMINA CORPORATION may file a copy of the invoice with appropriated authorities at any time as a financing statement and/or chattel mortgage to perfect its security interest. At SANMINA CORPORATION’s request, BUYER will execute financing statements and other instruments that SANMINA CORPORATION may request to perfect SANMINA CORPORATION’s security interest.
4. Delivery and Acceptance. All product shipments shall be FCA (Incoterms 2020) SANMINA CORPORATION’s facility of manufacture. Unless otherwise specified, the product will be shipped in standard commercial packaging. When special or export packaging is requested or, in the opinion of SANMINA CORPORATION required under the circumstances, any additional costs, if not set forth on the invoice will be separately invoiced. Title to and risk of loss or damage to the product shall pass to BUYER upon SANMINA CORPORATION’s tender of the product to BUYER’s carrier. SANMINA CORPORATION shall use reasonable efforts to notify BUYER of any anticipated delays; provided, however that SANMINA CORPORATION will not be liable for any loss, damages or penalty resulting from delay in delivery when such delay is due to causes beyond the reasonable control of SANMINA CORPORATION (including but not limited to a Force Majeure Event). In any such event, the delivery date will be deemed extended for a period equal to the delay. Acceptance of the product shall occur no later than fifteen days after shipment; product not rejected during this fifteen-day period shall be deemed accepted, and all subsequent returns shall be handled in accordance with Section 7 (Warranty).
5. Proprietary Information; No License. SANMINA CORPORATION retains for itself all proprietary rights in and to all SANMINA CORPORATION designs, manufacturing processes, engineering details, and other data pertaining to any product sold except where rights are assigned under written agreement by a corporate officer of SANMINA CORPORATION. The products are offered for sale and are sold by SANMINA CORPORATION subject in every case to the condition that such sale does not convey any license, expressly or by implication, estopped or otherwise, under any patent claim or process or manufacturing technology otherwise used to manufacture the products with respect to which SANMINA CORPORATION can grant licenses covering complete equipment or any assembly, circuit combination, method or process in which any such products are used as components. SANMINA CORPORATION expressly reserves all its rights under such patent claims.
6. Warranty. SANMINA CORPORATION’s warranty period is for one year from date of manufacture and is limited to correction of defects in SANMINA CORPORATION workmanship. For the purpose of this Section, “workmanship” shall mean manufacture in accordance with (i) the most recent version of IPC-A-600 or IPC-A-610 and (ii) compliance with any applicable BUYER specifications that have been approved by SANMINA CORPORATION. SANMINA CORPORATION shall, at its option and at its expense, repair, replace or issue a credit for product found defective during the warranty period. In addition, SANMINA CORPORATION will pass on to BUYER all manufacturers’ material, part and component (“Component”) warranties to the extent that they are transferable, but will not independently warrant any Components. All warranty returns shall be done in accordance with SANMINA CORPORATION’s returned material authorization (RMA) policy, a copy of which is available upon request. Any repaired or replaced product shall be warranted as set forth in this section for a period equal to the greater of (i) the balance of the applicable warranty period relating to such product or (ii) sixty (60) days after it is received by BUYER. SANMINA CORPORATION’s warranty does not include products that have defects or failures resulting from (a) any portion of the design contributed by BUYER including, but not limited to, design functionality failures, specification inadequacies, failures relating to the functioning of products in the manner for the intended purpose or in the specific BUYER’s environment; (b) accident, disaster, neglect, abuse, misuse, improper handling, testing, storage or installation including improper handling in accordance with static sensitive electronic device handling requirements; (c) alterations, modifications or repairs by BUYER or third parties or (d) defective BUYER-provided test equipment or test software. THE SOLE REMEDY UNDER THIS WARRANTY SHALL BE THE REPAIR, REPLACEMENT OR CREDIT FOR DEFECTIVE PRODUCTS AS STATED ABOVE. THIS WARRANTY IS IN LIEU OF ANY OTHER WARRANTIES EITHER EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
7. Cancellations/Reschedule. A purchase order provided by BUYER is non-cancellable. BUYER can request one reschedule for portions of the purchase order outside of the 45 days prior to SANMINA CORPORATION’s scheduled delivery date but subject to SANMINA CORPORATION’s approval.
A. Either party may terminate an order for default if the other party materially breaches this agreement; provided, however, no right of default shall accrue until thirty (30) days after the defaulting party is notified in writing of the material breach and has failed to cure the breach or give adequate assurances of performance within such 30-day period. Notwithstanding the foregoing, there shall be no cure period for payment-related defaults.
B. In the event an order is terminated for any reason (including a breach by SANMINA CORPORATION or a Force Majeure Event), BUYER shall pay SANMINA CORPORATION, termination charges (collectively, the “Termination Charges”) equal to (1) the contract price for all finished product existing at the time of termination; (2) SANMINA CORPORATION’s cost (including SANMINA CORPORATION’s Delivered Cost for Components plus its Burdened Cost of labor) for all work in process; and (3) SANMINA CORPORATION’s Delivered Cost of Material, including excess Material resulting from any minimum buy quantities, tape and reel quantities and multiples of packaging quantities required by the vendor. “Delivered Cost” shall mean SANMINA CORPORATION’s quoted cost (as set forth in the bill of materials) plus a fifteen percent (15%) materials margin; provided, however, that in the event this Order is terminated as a result of SANMINA CORPORATION’s breach, Delivered Cost shall mean SANMINA CORPORATION’s quoted cost. “Burdened Cost” shall mean SANMINA CORPORATION’s actual cost of labor including benefits and overhead.
9. Limitation of Liability. IN NO EVENT SHALL SANMINA CORPORATION BE LIABLE TO BUYER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTIAL OR SPECIAL DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS (HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY), EVEN IF SANMINA CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SANMINA CORPORATION’S LIABILITY UNDER THIS AGREEMENT (UNDER ANY THEORY) EXCEED THE AMOUNTS PAID TO SANMINA CORPORATION HEREUNDER. IN NO EVENT WILL SANMINA CORPORATION BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY BUYER. TO THE EXTENT PERMITTED BY LAW, THE LIMITATIONS SET FORTH HEREIN SHALL APPLY TO ALL LIABILITIES THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST BUYER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. Indemnification. BUYER shall indemnify, defend, and hold SANMINA CORPORATION and SANMINA CORPORATION’s affiliates, shareholders, directors, officers, employees, contractors, agents and other representatives harmless from all demands, claims, actions, causes of action, proceedings, suits, assessments, losses, damages, liabilities, settlements, judgments, fines, penalties, interest, costs and expenses (including fees and disbursements of counsel) of every kind (i) based upon personal injury or death or injury to property to the extent any of the foregoing is proximately caused either by a any portion of a defective product that was specified by BUYER (including strict liability in tort) or by the negligent or willful acts or omissions of BUYER or its officers, employees, subcontractors or agents, and/or (ii) arising from or relating to any actual or alleged infringement or misappropriation of any patent, trademark, mask work, copyright, trade secret or any actual or alleged violation of any other intellectual property rights arising from or in connection with any portion of the products specified by Buyer, except to the extent that such infringement exists as a result of SANMINA CORPORATION’s manufacturing processes.
11. Force Majeure Event. Neither party shall be responsible for any failure to perform due to a Force Majeure Event provided that such party gives notice to the other party of the Force Majeure Event as soon as reasonably practicable, specifying the nature and particulars thereof and the expected duration thereof. A “Force Majeure Event” shall mean the occurrence of unforeseen circumstances beyond a party’s control and without such party’s negligence or intentional misconduct, including, but not limited to, any act by any governmental authority, act of war, natural disaster, strike, boycott, embargo, shortage, supplier delay, riot, lockout, labor dispute, civil commotion.
12. Confidentiality. Each party agrees that during the term of this Agreement and for five (5) years thereafter it shall keep confidential and shall not use for its own purposes, nor without the prior written consent of the other party disclose to any third party any information of a confidential nature (including but not limited to any of information of a confidential nature related to the other party’s products, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, pricing information and other information of commercial value which may become known to a party from the other party (“Confidential Information”) unless the information is (1) public knowledge or becomes public knowledge through no breach of this Agreement, (2) already known to the receiving party at the time of disclosure as demonstrated by the receiving party’s records, (3) acquired by the receiving party from a third party who was not under an obligation of confidence to the disclosing party, (4) was independently developed by the receiving party without reference to the disclosing party’s Confidential Information, or (5) is required to be disclosed by law, subpoena or court order. Each party may disclose Confidential Information of the other party only to those of its employees or contractors who are under obligations of confidentiality at least as restrictive as those contained herein.
13. Miscellaneous. The terms and conditions set forth herein constitute the entire agreement of the parties, superseding all previous agreements covering the subject matter. This agreement shall not be changed or modified except by written agreement, specifically amending, modifying and changing this agreement, signed by a corporate officer of SANMINA CORPORATION and an authorized representative of the BUYER. BUYER hereby acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein. The failure by SANMINA CORPORATION to enforce at any time any of the provisions of this Agreement, to exercise any election or option provided herein, or to require at any time the performance by BUYER of any of the provisions herein will not in any way be construed as a waiver of such provisions. In the event the parties cannot resolve a dispute, the parties acknowledge and agree that the state courts of Santa Clara County, California and the federal courts located in the Northern District of the State of California shall have exclusive jurisdiction and venue to adjudicate any and all disputes arising out of or in connection with this agreement. The parties consent to the exercise by such courts of personal jurisdiction over them and each party waives any objection it might otherwise have to venue, personal jurisdiction, inconvenience of forum, and any similar or related doctrine. This agreement shall be construed in accordance with the substantive laws of the State of California (excluding its conflicts of laws principles). Reasonable attorney’s fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this agreement.