The terms and conditions (“Terms”) contained herein apply to the sale of products and services supplied by QuantalRF Inc., a Nevada Corporation, with its principal place of business at 5744 Pacific Center Boulevard, Suite 309, San Diego, CA USA 92121 (“QuantalRF”) to any buyer (“Buyer”).
1.PRICING
1.1 Prices are exclusive of, and Buyer will pay, all sales, use, service, value added or like taxes, unless Buyer has provided QuantalRF with an appropriate exemption certificate for the local jurisdiction.
2.ORDER PLACEMENT
2.1 All orders for Products by Buyer will: (a) be placed by submission of written purchase orders (“PO”) by Buyer, referring to the Terms, and will set forth Buyers and QuantalRF’ part numbers, description of the Products to be purchased, quantity, requested delivery dates and delivery instructions; (b) be subject to acceptance in writing within ten (10) days by QuantalRF at its principal place of business; and (c) not be binding until the earlier of such acceptance or shipment by QuantalRF, and, in the case of acceptance by shipment, only as to the portion of the PO actually shipped. THE TERMS WILL APPLY TO EACH PO ACCEPTED OR SHIPPED BY QUANTALRF. QUANTALRF WILL NOT BE BOUND BY THE PROVISIONS OF BUYER’S FORM OF PURCHASE ORDER OR OTHER PROPOSED AGREEMENTS, AND SUCH PROVISION WILL NOT APPLY TO ANY QUANTALRF PRODUCT NOTWITHSTANDING QUANTALRF’ ACKNOWLEDGMENT OR ACCEPTANCE OF SUCH ORDER. ALL BUYER PURCHASE ORDERS ARE EXPRESSLY CONDITIONED ON ASSENT TO THESE TERMS AND THE EXCLUSION OF ALL OTHER TERMS UNLESS OTHERWISE AGREED UPON BY QUANTALRF IN WRITING; BUYER SHALL BE DEEMED TO HAVE ASSENTED TO THE TERMS HEREOF, WHETHER OR NOT PREVIOUSLY RECEIVED, UPON PROCESSING BUYER’S ORDER. IF THE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS.
2.2 In order for a PO to qualify for any specific volume/price adjustments, the PO quantity and all scheduled shipments during a 30-day period must exceed a minimum threshold level equal to 1/4th of the annual volume at that price level.
3.POLICIES FOR RESCHEDULING / CANCELLATION OF PURCHASE ORDERS
3.1 Buyer may adjust those POs previously accepted by QuantalRF that have not been shipped but only to the extent and on the terms set forth below.
3.2 POs scheduled for shipment between:
0 to 30 days No rescheduled permitted
31to 60 days 25% reschedule out to 15 days
61 to 75 days 50% reschedule out to 30 days
>75 days 100% reschedule out to 45 days
3.3 All orders (including NRE, pre-production parts, tooling and mass production parts) are non-cancellable and non- returnable.
4.MANUFACTURING
4.1 QuantalRF reserves the right to change suppliers or manufacturing locations. Buyer will be notified accordingly.
5.DELIVERY AND SHIPPING
5.1 The promised delivery date is the best estimate possible based upon current and anticipated manufacturing capabilities of when the product will be shipped. QuantalRF assumes no liability for loss, damage, or consequential damages due to delivery delays.
5.2 QuantalRF standard Inco Terms are Ex Works Factory. Buyer will be responsible for, and will pay all shipping, freight, import duties, VAT and insurance charges. All risk of loss of or damage to Products will pass to Buyer upon tender by QuantalRF to the carrier, freight forwarder or Buyer, whichever first occurs. Buyer will bear all risk of loss or damage in transit.
5.3 Failure of Buyer to reject any Products shipped to it by QuantalRF within thirty (30) days after receipt thereof will constitute complete and conclusive acceptance by Buyer of such Products. All claims for shipping damage must be made with the carrier.
6.FORCE MAJEURE
6.1 QuantalRF will not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond QuantalRF’ control, including but not limited to acts of God, war, terror, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor or materials. In the event of any such delay, QuantalRF may defer the delivery date of Products for a period at least equal to the time of such delay.
7.INVOICES/PAYMENT
7.1 If QuantalRF has granted credit approval to Buyer in writing and such credit approval has not been suspended or revoked
by QuantalRF, then payment for all shipments of Products made to Buyer under the Terms will be due within the payment terms specified in QuantalRF written acceptance of a PO. QuantalRF reserves the right to assess late charges for overdue payments, at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is lower. QuantalRF may change credit or payment terms or withhold shipment of a PO at any time when, in QuantalRF’ opinion, Buyer’s financial condition, previous payment history, or the nature of Buyer’s relationship with QuantalRF so warrants. Customer’s credit limit may be amended or withdrawn without prior notice from QuantalRF at any time.
7.2 Buyer hereby grants QuantalRF a purchase money security interest in all Products shipped on credit by QuantalRF, and in all proceeds there from, in order to secure payment in fuII to QuantalRF of the purchase price for such Products (and any late charges if applicable). Buyer agrees to promptly take all actions and execute all instruments requested by QuantalRF to perfect such security interest.
7.3 Buyer agrees to pay all costs and expenses (including without limitation court costs and reasonable attorneys’ fees) incurred by QuantalRF in any effort to collect any indebtedness of Buyer to QuantalRF or to enforce a granted security interest.
7.4 Buyer shall make all payments to QuantalRF in U.S. dollars.
7.5 All payments related to NRE, pre-production parts, tooling and mass production parts are non-refundable.
8.WARRANTY
8.1 QuantalRF warrants that all of its products shall be free from defects in workmanship and materials for a period of twelve
(12) months from the shipment date to the customer. If product is found to be defective, written notice of nonconformance must be sent to QuantalRF within twelve (12) months from date of shipment to receive an RMA number. QuantalRF will only accept packages with an RMA number clearly labeled on the outside of the box. Any product returned must follow the RMA guidelines, be sent freight prepaid and shipped in appropriate shipping containers to protect the product. QuantalRF reserves the right to repair, replace or refund the purchase price of any product returned under warranty.
8.2 The warranty does not apply to any products QuantalRF determines to have been subject to improper packing, storage, misuse, damage from assembly, shipping or processing.
8.3 In no event shall QuantalRF be liable for any loss of anticipated profits, loss of use, or for the incidental or consequential damages. Buyer waives any right, extending beyond the foregoing warranty to claim negligence in design, material or workmanship.
9.END OF LIFE
9.1 Buyer shall provide six (6) months written notice of product end-of-life. Buyer is responsible to receive and pay for any open Purchase Orders as well as any forecasted amounts QuantalRF was requested to build ahead. If buyer chooses to dispose of remaining product, buyer is responsible for all disposal costs.
10.TERMINATION
10.1 In addition to any other rights and remedies available to it, QuantalRF may cease deliveries of Products at any time that Buyer defaults in any payment due to QuantalRF hereunder and such default continues un-remedied for a period of ten (10) days.
10.2 In addition to any other rights and remedies available to it, QuantalRF may upon written notice to Buyer terminate its relationship with Buyer (including, without limitation, accepted PO’s that haven’t shipped) at any time in the event that (i) Buyer is involved in any voluntary or involuntary bankruptcy proceeding or any other proceeding concerning insolvency, dissolution, cessation of operations, or reorganization of indebtedness and the proceeding is not dismissed within sixty
(60) days or (ii) Buyer becomes unable to pay its debts as they mature in the ordinary course of business or makes an assignment for the benefit of its creditors.
11.LIMITATION OF LIABILITY.NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS OR OTHERWISE, QUANTALRF WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) AMOUNTS THAT IN THE AGGREGATE ARE IN EXCESS OF THE AMOUNTS PAID TO QUANTALRF HEREUNDER OR (II) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST DATA OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, OR SERVICES. QUANTALRF SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL. THIS SECTION DOES NOT LIMIT LIABILITY FOR BODILY INJURY OF A PERSON.
12.INDEMNIFICATION 12.1 At its option, QuantalRF will defend or settle any action brought against Buyer to the extent the action is based on claims that the Products infringe any U.S. patent or U.S. copyright, and will pay all damages and costs (including reasonable attorneys’ fees) finally awarded against Buyer on such claims; provided, however, that in lieu of providing such defense and/or payments, QuantalRF may, at its option, either (a) procure for Buyer the right or license to continue using the Product(s) which are the subject of such infringement claim; or (b) replace or modify such Product(s) so that they become non-infringing; or (c) upon return of all infringing Products, refund to Buyer the price actually paid by Buyer for such infringing Product(s), less a reasonable amount for use, damage, or obsolescence; or (d) substitute for any infringing Product other suitable, non- infringing equipment. QuantalRF’ obligations under this Section are expressly conditioned on Buyer’s (a) promptly notifying QuantalRF of the existence or threat of such action,
(b)granting QuantalRF sole control over the defense and settlement of the action, and (c) providing QuantalRF reasonable assistance in connection with such action. Notwithstanding the above, QuantalRF will have no liability for claims based on use of Products in combination with products or as part of processes not supplied by QuantalRF, or on any modification other than a modification by QuantalRF.
THE FOREGOING REPRESENTS QUANTALRF’ ENTIRE LIABILITY AND BUYER’S SOLE REMEDY WITH RESPECT TO VIOLATION OF THE PROPRIETARY RIGHTS OF ANY THIRD PARTY. NOTWITHSTANDING THE FOREGOING QUANTALRF WILL NOT BE LIABLE FOR ANY CLAIM FOR INDEMNIFICATION MADE BY BUYER MORE THAN ONE (1) YEAR AFTER PURCHASE OF THE PRODUCT BY BUYER.
12.2 Buyer agrees to indemnify QuantalRF against and hold QuantalRF harmless from, any and all damages, losses, expenses (including reasonable attorney’s fees and costs of litigation on an ongoing basis) and claims by any other party resulting from Buyer’s acts, omissions or misrepresentations, regardless of the form of action.
13.CONFIDENTIAL INFORMATION
13.1 Any Non-Disclosure Agreement executed between the Buyer and QuantalRF is hereby expressly incorporated into these Supply Terms. The Buyer agrees that all inventions, improvements, patents, copyrights, trademarks, trade secrets, or other intellectual property developed by QuantalRF relating to the Products, shall be the property of QuantalRF, and Buyer agrees to assign to and otherwise cooperate with QuantalRF with respect to all such inventions, improvements, patents, copyrights, trademarks, trade secrets, or other intellectual property owned by QuantalRF or relating to the Products to the extent necessary.
14.GENERAL
14.1 Export Control.
Buyer shall not export or re-export, directly or indirectly, (i) any technical data received from QuantalRF, or (ii) any Products, process, or technical data using such received technical data, to any country to which such export or re-export is restricted or prohibited by United States or other relevant laws, without obtaining prior written authorization from the relevant government authorities as required by such laws.
14.2 Controlling Law, Jurisdiction and Attorneys’ Fees.
With respect to any litigation arising out of or related to the Terms: (a) California law, excluding that body of law relating to choice of law, will exclusively govern; (b) Buyer hereby consents to exclusive jurisdiction and venue in the State Courts in San Diego County, California and in the U.S. Federal Courts in San Diego County, California; and (c) the party which substantially prevails in such litigation will be entitled to all actual attorney’s fees and costs and need not bring a suit to final judgment to substantially prevail.
14.3 Complete Agreement; Amendment.
The Terms, as implemented by, is the sole and complete statement of obligations of the parties and supersedes all prior oral and written and all contemporaneous oral understandings, negotiation, commitments, and proposals. Any changes hereto must be made in writing and signed by both parties.
14.4 No Waiver.
No delay or failure by either party to exercise or enforce at any time, any right or provision of the Terms shall be considered a waiver thereof or of such party’s right thereafter to exercise or enforce each and every right and provision under the Terms. A waiver to be valid shall be in writing but need not be supported by consideration.
14.5 Arbitration.
Any controversy arising from or relating to the subject matter of these Terms shall be submitted to arbitration on the request of any party, and the arbitration shall comply with and be governed by the provisions of the California Arbitration Act, Sections 1280-1294.2 of the California Code of Civil Procedure, as amended. Notwithstanding the foregoing, QuantalRF at any time may seek injunctive or other forms of equitable relief at any time from any court of competent jurisdiction.
Controlled D 7.2-01 01/25/2024