TERMS & CONDITIONS
TERMS & CONDITIONS OF SALE – USA
1. INTERPRETATION AND DEFINITIONS
1.1 In these conditions “Seller” means Braemac CA LLC and any other Company that is associated with Braemac CA LLC in accordance with the law and whether acting as trustee of a trust or in its own capacity and being the entity named as the Seller or Supplier in the Quote and the Order. “Buyer” means the person, body, firm or company with whom the Seller enters into a contract for the sale of Goods and/or the supply of Services.
1.2 These terms and conditions of trade apply to all contracts of sale entered into by the Seller and supersede and prevail over all terms and conditions which may be contained in any customer purchase order or in sales confirmation or otherwise.
1.3 Typographical and clerical errors are subject to correction and revision.
1.4 These conditions bind the Seller, the Buyer and their respective executors, administrators, successors and permitted assigns.
1.5 Words importing persons shall include corporations and words importing the singular number or plural number shall be deemed to include the plural number or singular number respectively and words importing the masculine gender shall include all genders as the case may require.
1.6 A reference to writing includes email and other communication established through the Seller’s website (if any).
1.7 “Goods” means any goods supplied by the Seller including those supplied in the course of providing Services.
1.8 “Green requirements” means any requirements that goods or services comply with specified standards to minimize harmful environmental effects.
1.9 “Sales Tax” means the sales tax payable pursuant to the Board of Equalization.
1.10 “Order” means a purchase order for goods or services placed by a Buyer in response to a Quote and as varied in writing from time to time by the parties.
1.11 “Quote” means a description of the Goods or Services to be provided by the Seller, whether in writing or oral, an estimate of the Seller’s charges for the supply of the Goods or performance of the required Services and an estimate of the time frame for the delivery of the Goods or performance of the Services.
1.12 “RoHS” means the directive on the restriction of the use of certain hazardous substances in electrical and electronic equipment adopted in February 2003 by the European Union.
1.13 “Services” means the services to be provided by the Seller to the Buyer in accordance with these terms and conditions of trade
2. QUOTE AND PURCHASE ORDER
2.1 Any Quote given by the Seller is a mere invitation to treat and does not constitute a contractual offer and the Seller reserves the right to vary or withdraw a Quote at any time.
2.2 Once the Seller has sent to the Buyer an acknowledgment of the acceptance of the Order- the Buyer may not alter or modify the Order without the written consent of an authorized employee of the Seller.
3. PAYMENT OF PRICE
3.1 Unless specifically stated otherwise all quoted prices are net of any applicable freight and insurance charges, Sales Tax Payable, customs duty and any other government charges of any kind which are all to be added to the amount payable by the Buyer.
3.2 All prices of imported Goods quoted are based on the FOB price of the Seller’s supplier and the rates of exchange, freight, insurance, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials, customs duties and other charges affecting the cost of production ruling at the date of Quote. The quoted prices may be varied by the same amount by which the Seller’s actual costs have been varied as a result of any change in the said rates.
3.3 Subject to clause 3.4 all accounts are on a COD/Credit Card basis and all Goods and Services shall be paid for before they are supplied.
3.4 If the Buyer has an approved credit account with the Seller, the Goods and Services supplied must be paid for within thirty (30) days of the date of invoice or thirty (30) days from the date of shipment whichever occurs first. Where the Buyer is overdue with any payment or the Seller is in receipt of credit reference, which it regards as unsatisfactory, then the Seller reserves the right to change the Buyer to a COD/Credit Card account.
3.5 Each consignment shall be considered a separate and independent transaction and payment therefore shall be made accordingly.
3.6 Without prejudice to any other remedy the Seller reserves the right to charge interest on any overdue payment at the rate of one and a half per cent (1½%) per calendar month calculated from the due date for payment until the date payment is received. Unpaid interest will be capitalized at the end of each month.
3.7 Failure to pay any invoice by the due date may result in the account being referred to a debt collection agency for recovery. All costs incurred in recovering the amount outstanding, including but not limited to collection costs, legal action, mercantile agent fees and solicitor’s costs will be payable by the Buyer.
4. SALES TAX PAYABLE
4.1 If the Buyer is located within California, the Buyer must provide the Seller with an authorized tax exempt certificate, A.K.A. a Signed Resale Certificate. If the Buyer does not provide the Seller with one at the time of sale the Seller will charge destination Sales Tax.
4.2 If the Buyer has the order shipped to outside California, the Buyer is required to handle all taxes pertaining to the order.
5. PASSING OF RISK AND PROPERTY
5.1 Risk in the Goods passes to the Buyer when the Goods are loaded at the Seller’s premises for delivery to the Buyer. Risk of loss in transit is the responsibility of the Buyer.
5.2 The Seller shall retain title to the Goods until it has received payment in full for them. Goods belonging to the Seller, which have not been paid in full shall be stored by the Buyer so that they are identifiable as such. The fact that the Seller retains title to the Goods until they have been paid for shall not affect its right as an unpaid Seller or the passing of the risk of the Goods to the Buyer pursuant to clause 5.1. Furthermore if payment is overdue, or the Buyer enters into bankruptcy, liquidation, administration, a composition with its creditor, has a receiver or manager appointed over all or any of its assets or becomes insolvent the Seller shall be entitled without prejudice to any other remedy, to retake possession of the Goods belonging to it.
6.1 The Buyer shall make its own transport arrangements. Where the Buyer fails to make transport arrangements the Seller can use a freight service of its own choosing and add a standard freight charge to the invoice.
6.2 The Seller is not responsible to the Buyer or any person claiming through the Buyer, for any loss or damage to Goods in transit caused by any event of any kind or by any person (whether or not the Seller is legally responsible for the actions of that person).
7. DELIVERY TIME
7.1 Delivery dates are estimated in good faith by the Seller and are not of the essence of the contract.
7.2 Under no circumstances will the Seller be liable for damages of any kind (including consequential, special or incidental damages including loss of profits) for failure to deliver or for delay in delivery howsoever occasioned.
7.3 The Buyer is not relieved from accepting delivery at the agreed price when the causes delaying delivery are removed.
7.4 If delivery is in installments, delay in delivery of any installments shall not relieve the Buyer of its obligation to accept the remaining deliveries.
7.5 In the event of any happening beyond the Seller’s reasonable control in consequence of which the Seller cannot effect delivery by the time or times quoted or specified in the Order, the Seller shall be entitled to deliver part only of an Order, suspend delivery or extend time for delivery for the period during which such cause of delay operated or may cancel the Order and in the event of such suspension, extension or cancellation the Seller shall not be liable for damages of any kind including damages of the kind referred to in Clause 8.2.
8. MINIMUM ORDER
8.1 The minimum order value and the minimum order quantity per line item that the Seller will accept are indicated in the Seller’s Quote, where less than minimum quantities are ordered the Seller will automatically increase the quantity to meet minimum levels.
8.2 Where quantities are ordered which constitute broken pack sizes, those quantities will be increased to the next highest unbroken pack size.
9.1 The Buyer must inspect all Goods supplied upon delivery. The Seller will not be liable for shortages and other errors in delivery unless the Buyer submits a claim in writing to the Seller within seven (7) days of the date of delivery to which the claim relates.
9.2 Goods cannot in any circumstances be returned to the Seller:
a) Without the prior written consent of an authorized employee of the Seller; and
b) Unless accompanied by a delivery document showing the Seller’s Return Materials Advice (RMA) number.
9.3 Whilst the Seller will take all reasonable steps to ensure that all Goods supplied to the Buyer comply, where possible, with RoHS, Lead-free or Green requirements, the Seller makes no warranty or promise in this regard and will not be liable to the Buyer on any account whatsoever in the event that the Goods do not so comply.
10.1 All Goods are supplied by the Seller to the Buyer on an “as is” basis without any warranty of any kind. However the Seller shall assign to the Buyer in so far as it is able to do so the benefit of any condition, warranty or guarantee express or implied in the Seller’s contract with its own supplier.
10.2 Subject to clause 11.3, clause 11.1 sets forth the full extent of the Seller’s obligation and liability to the Buyer with respect to the Goods and Services supplied and all terms, conditions warranties and representations that might otherwise be implied by statute or otherwise are hereby excluded.
10.3 Certain legislation imply warranties or conditions or impose obligations upon the Seller which cannot be excluded, restricted or modified except to a limited extent. These terms and conditions must be read and construed subject to such statutory provisions. Where such statutory provisions apply to the extent to which the Seller is entitled to limit its liability then its liability shall be limited at its option to:-
a) In the case of a supply of Goods:
i) The replacement of the Goods or supply of equivalent Goods;
ii) The payment of the cost of replacing Goods or acquiring equivalent Goods;
iii) The payment of the cost of having the Goods repaired; or
iv) The repair of the Goods; and
b) In the case of the supply of Services:
i) The supply of the Services again; or
ii) The payment of the cost of having the Services supplied again.
11. LIMITATION OF LIABILITY
11.1 To the extent permitted by law and subject only to any exceptions contained in these terms and conditions the Seller will under no circumstances be liable in any way whatsoever to the Buyer for any loss, damage or expense sustained or incurred by the Buyer or any other party, or for which the Buyer may be liable, in consequence of or resulting directly or indirectly out of the supply of the Goods or Services by the Seller, the use or performance thereof, any breach by the Seller of any provision of any contract incorporating these terms and conditions or the negligence of the Seller.
12. DISCLAIMER WHERE SPECIFICATIONS AVAILABLE
12.1 Despite any law or rule or any other provision of these terms and conditions to the contrary, if the specifications for any Goods or Services supplied by the Seller to the Buyer can be obtained from the Seller, the manufacturer or the supplier to the Seller of the Goods or Services (including where such specifications are available from the manufacturer’s or supplier’s website), then the Buyer will have no claim or action of any kind against the Seller on account of the fact that the Goods or Services are, or are alleged to be, unsuitable for the purpose for which they are intended as a consequence of the specifications for the Goods or Services being inadequate for such purpose, irrespective of whether the Seller was aware or ought to have been aware of such purpose, and the Buyer shall in all cases be taken to have satisfied itself, prior to ordering the Goods or Services, of their adequacy, suitability or fitness for such purpose.
13. PURCHASE FROM NOMINATED SUPPLIER OR MANUFACTURER
13.1 If the Seller has, at the request of the Buyer, agreed to acquire any Goods (including components for incorporation into other Goods) from a third party supplier nominated by the Buyer, or if the Buyer has nominated specific Goods or components by description, then the Buyer acknowledges and agrees that the Seller has only agreed to do so strictly on the following additional terms and conditions:
a) The Buyer agrees to purchase the Goods without any warranty or representation of any kind in relation to the quality or merchantability of the Goods nor as to the fitness of the Goods for the purpose for which they are intended.
b) The Buyer agrees to accept the Goods in the condition in which they are supplied and releases the Seller absolutely and holds the Seller harmless from any claims, actions and suits of any kind including for legal expenses arising directly or indirectly from the supply of the Goods by the Seller to the Buyer and the Buyer indemnifies and agrees to keep indemnified the Seller from any such claims, actions and suits including for legal expenses that may be made against the Seller by a third party claimant.
c) The Buyer acknowledges and agrees that this release may be pleaded by the Seller in defense of any such action, claim or suit brought by the Buyer against the Seller and shall act as an absolute bar to any such proceedings.
d) The Buyer agrees to take out and keep current at all times a Product Liability Insurance Policy in respect of the Goods with a reputable insurer for not less than $20 million and that the interest of the Seller shall be noted on such policy.
13.2 In the event of inconsistency between this clause and any other of these terms and conditions, this clause shall, to the extent of any such inconsistency, prevail.
14. GOVERNING LAWS
14.1 The construction validity and performance of any contract incorporating these terms and conditions shall be governed by the laws of the State of California, USA and the Buyer shall submit to the jurisdiction of the Courts of that State.
15.1 If any provision of these terms and conditions at any time is, or becomes void, voidable or unenforceable the remaining provisions will continue to have full force and effect.
15.2 Headings are included for ease of reference and do not form part of or affect interpretation of these terms and conditions.
15.3 These terms and conditions and any Quotes or Orders and written variations agreed to in writing by the Seller represent the whole agreement between the parties relating to the subject matter of these terms and conditions.
15.4 A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote and delivered personally, sent by pre-paid post to the address of the addressee specified in the relevant Quote; sent by facsimile transmission to the facsimile number of the addressee specified in the relevant Quote, with acknowledgement of receipt from the facsimile machine of the addressee or sent by email to the email address of the addressee specified in the relevant Quote with acknowledgement of delivery.
15.5 A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by facsimile or email before 4:00 PM one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
16. SALES RESTRICTIONS
16.1 The Seller does not sell electronic components to countries, organizations and individuals that have been banned or embargoed by the governments of Australia and USA. This applies specifically to those known to be engaged in the manufacture of weapons of mass destruction and other warfare applications. Accordingly, the Seller’s sales force endeavors to establish the potential customers’ intended applications and take steps to decline sales and black list customers and/ or countries recognized engaging in such applications.
TERMS & CONDITIONS RELEVANT TO SALES OF WIRELESS, CELLULAR BASED PRODUCTS
17. WIRELESS PRODUCT USE RESTRICTIONS
17.1 “2G” means one or more of the following standards: GSM, GPRS, EDGE.
17.2 “3G” means one or more of the following wireless air interface standards: the CDMA2000 family of standards (e.g., CDMA2000 1xRTT, 1xEV-DO, 1xEV-DO Rev. A, 1xEV-DO Rev B.), WCDMA (e.g., UMTS, HSDPA, HSUPA, HSPA+), TD-CDMA and TD-SCDMA and any revisions or updates to any of the foregoing. Each 3G standard includes one or more 2G standards, except the CDMA2000 family of standards.
17.3 “4G” means (i) any and all future releases (beginning with Release 8) of the OFDM-based standard resulting from the Long Term Evolution (LTE) project and the Long Term Evolution Advanced (LTE Advanced) project, each within the 3rd Generation Partnership Project (3GPP) and all improvements and revisions thereto.
17.4 “Embedded Application” means the use of any assembly, module or modem card, including any 3G or 4G modem, embedded within another product in such a way that such assembly, module or modem card is not attachable to or detachable from such other product by an end-user consumer without the use of a tool.
18. U-BLOX USE RESTRICTIONS
18.1 “2G M2M” means a 2G module that may only be used in and sold for use in applications without voice capability except as an ancillary feature not used in the normal mode of operations and must be physically integrated or connected into one or more of the following types of product categories: meter reading, vending machines, security & surveillance systems, traffic management or control, fleet or asset management systems, smart grid systems, industrial supervision and control systems, telematics, e-call, router, mobile tracking, people and animal tracking, standalone industrial PDAs, point of sale equipment, facsimile machines, photocopy machines, automated teller machines, health care monitoring devices, and similar M2M product categories. 2G M2M modules which use voice capability in the normal mode of operation may only be used in and sold for use in i) car phones and computers permanently wired into the car, ii) desktop phones or iii) fixed wireless terminals.
18.2 “2G Consumer” means a 2G module that must be physically integrated into a device which is a) designed, marketed or sold for use by individuals for entertainment, communications or productivity purposes and not for manufacture and whose primary functionality and use is not related to wireless voice communications and which falls in one of following product categories: cameras, pc card modems, USB sticks, PNDs, mobile computing, gaming, and similar entertainment, communication or productivity devices or b) a computer, including without limitation, a personal computer, laptop, tablet, e-reader, netbook, Mobile Internet Device (MID), or Ultra Mobile Personal Computer (UMPC).
18.3 “2G Handset”, “3G Handset”, “4G Handset” means a 2G, 3G or 4G module that must be physically integrated into a device marketed and sold for use in a terminal product in final form ready for use by the end user (or substantially completed in a partially or assembled form for final manufacturing, packaging, sale and distribution) that (a) contains the necessary hardware and/or software to enable voice communications (including without limitation using a cellular voice channel, VOIP, or otherwise) without the need to be coupled to another device (though the need to be coupled to a separate microphone or speaker, such as a Bluetooth earpiece (e.g., a watch phone) shall not disqualify a product from being a Handset); and (b) is designed to be easily carried on one’s person (e.g., in one’s hand, on one’s wrist, on one’s ear, or in one’s pocket) or in one’s vehicle. By way of example, Handsets include, without limitation, devices commonly referred to in the industry as low/voice centric phones, basic mobile phones, smart phones, feature mobile phones, enhanced phones, multimedia-centric phones).
18.4 “3G M2M”, “4G M2M” means a 3G or a 4G module that is used only for permanent integration into a complete device or item of equipment for use and sold for use as: (1) utility meter, (2) vending machine, (3) cargo container, (4) ATM machine, (5) POS device, (6) remote monitoring, automation and control system, (7) digital sign or digital billboard, (8) portable health care device or medical apparatus used to treat a medical condition (e.g., a defibrillator), (9) alarm or security system, or (10) portable tracking devices that are primarily utilized to track people, pets, livestock, wildlife or goods, provided that all of the aforementioned equipment or devices (i) either (A) are data only (i.e. does not support two-way voice communications and does not provide or incorporate any direct connectors and/or pins which are dedicated for audio input/output or a microphone or a means of interfacing a microphone (whether by wire or wireless connection) to such device), or (B) are only capable of transmitting and receiving twoway voice communications to and from a maximum of five (5) pre-programmed telephone numbers that can only be altered in a set-up mode, and which can be called i) automatically (for example in an emergency, accident or intrusion detection) and/or ii) manually after an activation period of no less than two minutes after the alteration of the telephone number (i.e. the pre-programmed telephone number cannot be called during such period) provided that the device is not a smart phone or other wireless telephone, and (iii) cannot provide a wireless hotspot for other subscriber devices by means of 3G, or 4G respectively, technology or other wireless technology.
18.5 ”3G Telematics”, “4G Telematics” means a 3G or a 4G module that is used only for permanent integration into a device which (i) is incorporated into and is not detachable from an automobile, truck, bus or ship, and (ii) is not capable of initiating or receiving 3G, or 4G respectively, communications unless such device is physically and electrically connected to an automobile, truck, bus or ship. A 3G or a 4G Telematics Module cannot be attached or detached from the vehicle by an end user consumer without losing the capability to initiate or receive wireless communication transmissions.
18.6 “3G Laptop”, “4G Laptop” means a 3G or a 4G module that is used only for permanent integration into a complete end-user terminal that (i) is designed primarily for use as a personal computer, (ii) includes a keyboard with a minimum of 26 keys, (iii) has a non-foldable screen with a screen size of at least 7 inches diagonal (or across its largest dimension), (iv) weighs at least 12 ounces, and (v) includes a tracking/pointing stick, touch screen, rollerball or touchpad to move the cursor. The 3G or 4G Laptop Module cannot be attached or detached from the terminal by an end-user consumer without the use of a tool.
18.7 “3G External Modem”, “4G External Modem” means a 3G or a 4G modem module that is not designed for use or sold for use in an Embedded Application that (i) is designed, packaged and sold as an end-user consumer product solely for external use and coupling to a telephone, personal computer, industrial computer, personal digital assistant, facsimile machine, monitoring device, multimedia terminal, data entry terminal or point of sale terminal by a consumer via a cable, a physical connector, or a wireless personal network interface (e.g., Bluetooth), (ii) is not capable of initiating or receiving 3G, or 4G respectively, communications without being connected to or coupled with any of the foregoing end-user devices, provided that the end-user device and the 3G or 4G modem must at all times remain separate and distinct products (i.e., such that the two products would not be handled as a single, or complete integrated product by an end-user).
18.8 “3G PC/USB Modem”, “4G PC/USB Modem” means a 3G or a 4G modem that (i) is not designed for use or sold for use in an Embedded Application, (ii) is designed, packaged and sold as an end-user consumer product solely for external use and coupling to a telephone, personal computer, industrial computer, personal digital assistant, facsimile machine, monitoring device, multimedia terminal, data entry terminal or point of sale terminal, (iii) is attachable to and detachable from such devices by an end user consumer without the use of a tool, (iv) connects to such end user consumer product by (A) complying with the physical specifications for PCMCIA cards or ExpressCards (including minimum physical dimensions) or (B) integrating a connector that complies with the USB Standard in which case the modem must have at least one physical dimension of greater than 50 millimeters and (v) includes an integrated antenna.
18.9 “3G Other”, “4G Other” are 3G or 4G modules which do not fall into any of the above categories
18.10 In-band modem features may only be used for emergency purposes.
18.11 Acknowledgment of Use Restrictions: Customer expressly acknowledges and agrees that the wireless Products purchased by Customer from u-blox as indicated in u-blox’s order confirmation (a) may be used by Customer only for the limited purposes specified in the applicable Use Restriction(s), and (b) except as otherwise provided in this paragraph, may not be resold by Customer on a standalone basis. Customer expressly acknowledges and agrees to use the Products strictly in compliance with such restrictions. If Customer is a distributor, then notwithstanding the foregoing, such distributor Customer acknowledges and agrees that it (i) will not use the Products for any purpose, (ii) will resell the Products to third parties only in accordance with the restrictions set forth above, and (iii) will include such restrictions in its agreements with such third party purchasers.
18.3 Audit: Upon u-blox’s reasonable request, made at any time during a five-year period following delivery of Products, Customer agrees to provide u-blox with access to its books, records and customer contracts solely to enable u-blox to confirm that Customer has complied with the Use Restrictions set forth herein.
18.4 Third Party Beneficiary: u-blox’s licensors are intended third party beneficiaries or may become assignees of the foregoing provisions with the right to enforce such provisions in as far as Customer fails to comply with the Use Restrictions, and in the event of such enforcement, to collect the amount of such additional royalties directly from Customer (instead of u-blox collecting the amount of such royalties from Customer).