ACCEPTANCE. Acceptance by the persons or entity to whom this Price Quotation and these terms and conditions of said Price Quotation is addressed (hereinafter “Buyer” must be in exact compliance with these terms and conditions herein. This Price Quotation constitutes an Offer by Orange Charger Inc. (hereinafter “Seller” or “Orange”) and shall not be construed as an acceptance of any offer made by Buyer. When Buyer accepts this Price Quotation, either by purchase order, commencement of performance, or by acceptance of any items contained in the Price Quotation, it shall be a binding contract (“Contract”). THIS PRICE QUOTATION IS LIMITED TO AND EXPRESSLY CONDITIONAL UPON BUYER’S ACCEPTANCE OF THE TERMS AND CONDITIONS SPECIFIED IN THIS DOCUMENT AND ANY ATTACHMENTS MADE BY ORANGE. ORANGE DOES NOT AGREE AND EXPRESSLY REJECTS ANY PROPOSED ADDITION, ALTERATION OR DELETION BY BUYER. THESE TERMS AND CONDITIONS CAN BE VARIED ONLY BY A WRITING SIGNED BY BUYER AND ORANGE. ANY OTHER STATEMENT OR WRITING OF BUYER SHALL NOT ALTER, ADD TO, OR OTHERWISE AFFECT THESE TERMS AND CONDITIONS. AN ELECTRONIC MAIL IS NOT A WRITING.
DELIVERY AND TITLE; ACCEPTANCE OF DELIVERABLES: All sales are made F.O.B. Orange’s designated shipping point; freight collect or pre-paid and added. Subject to Orange’s right of stoppage in transit, delivery of Products to a carrier at the shipping point in good condition or delivery by Orange to Buyer’s representative at Orange’s warehouse or plant shall constitute delivery to Buyer, and risk of loss shall thereupon pass to Buyer. Immediately upon Orange’s delivery of the Products to a carrier, the Products will be conclusively, irrevocably and expressly deemed to be accepted by Buyer. Orange shall have no liability for any events occurring during shipment or thereafter and any claim for damages or loss must be filed with the carrier. Delivery of any installment of Products within thirty (30) days after the date specified therefore shall constitute a timely delivery. Thereafter, delivery shall be deemed timely unless Orange receives written notice of cancellation prior to shipment. Immediately upon Buyer’s receipt of any Products shipped hereunder, Buyer shall inspect same and shall promptly notify Orange in writing of any claims for shortages, defects, or damages and shall hold the Products for Orange’s written instructions concerning disposition.
ASSIGNMENT AND SUBCONTRACTS. Buyer shall not assign, transfer, subcontract or delegate this Price Quotation or any right or obligation hereunder, or any part thereof, including the accounts payable without the written consent of Orange. Any assignment without Orange’s written consent shall be void and have no binding effect upon Orange. No subcontract entered into by Buyer shall relieve Buyer of any of its liabilities and/or obligations.
TAXES. Unless otherwise specified, the prices set forth in this Price Quotation exclude all applicable federal, state and local taxes. All such taxes shall be stated separately on Orange’s invoice.
TRANSPORTATION. F.O.B. Unless otherwise specified, shipment will be made F.O.B. Orange’s designated plant or plants.
DELIVERY. Partial or complete delivery may be made prior to the date or dates shown. In the absence of specific shipping instructions, Orange shall select a carrier who shall be deemed to act as Buyer’s agent, notwithstanding any payment by Orange of freight charges made for Buyer’s account. Transportation charges will be collected on delivery or, if prepaid, will be subsequently invoiced to Buyer. Orange shall not be obligated to obtain insurance against damage to Products being shipped, and unless otherwise specifically agreed in writing between Buyer and Orange, all Products will be shipped in standard commercial packaging. When special or export packaging is requested or, in the opinion of Orange, required under the circumstances, the cost of the same, if not set forth on the invoice, will be separately invoiced. All shipping dates are approximate and Orange may change the delivery date without penalty, provided Orange provides Buyer with reasonable notice of such change. Orange shall not be responsible for any failure to perform or delay in performing which is directly or indirectly due to any governmental or military regulation or requirement, act of God, war, riot, embargo, fire, flood, natural disaster, strike or other labor dispute, unavailability of materials or transportation facilities, or any other unforeseen circumstances or causes beyond Orange’s control. Any affected delivery date shall be deemed extended for a period of time at least equal to the delay incurred.
CHANGES. The Buyer must not, without the express written approval of Orange, at any time, make changes to this Price Quotation. If any such change causes an increase or decrease in the cost of, or the time required for performance of this Price Quotation, an equitable adjustment shall be made in the Price Quotation price or delivery schedule, or both and the Price Quotation shall be modified in writing accordingly.
RESPONSIBILITY FOR GOODS. Buyer shall bear all risks of loss, damage, or destruction for any and all goods.
PATENTS, COPYRIGHTS AND TRADEMARKS. Actions Against Buyer. Orange will defend at its own expense any suit brought against Buyer and pay those damages finally awarded against Buyer in any suit to the extent that it is based on a claim that Product in the form delivered to Buyer, constitutes an infringement of any valid United States Patent or Copyright provided that (i) Buyer shall notify Orange promptly in writing of any claim of infringement, (ii) Orange shall have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise, (iii) Buyer shall provide authority, information, and assistance to Orange and its counsel for the defense of such claim. Exclusions. Orange shall have no liability or obligation to Buyer hereunder with respect to any infringement claims based upon (i) compliance with designs, plans, or specifications of Buyer, (ii) use of Products in combination with products not purchased hereunder where the Products would not itself be infringing, (iii) use of Products in an application or environment for which such Products were not designed or contemplated, (iv) modifications to the Products, or (v) any claims of intellectual property right in which Buyer or any affiliate of Buyer has an interest or license. Replacement. In the event that any Product is held to constitute an infringement or its use is enjoined, Orange may at its option and at its own expense, either (i) procure for Buyer the right to continue using such Product, or (ii) replace such Product with non-infringing Product of equivalent performance, or (iii) modify such Product so that it is non-infringing, or (iv) accept return of such Product less deduction for depreciation, damage and obsolescence. LIMITATIONS OF LIABILITY. THE FOREGOING STATES THE ENTIRE LIABILITY OF ORANGE WITH RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS AND TRADEMARKS OF ANY PRODUCT DELIVERED UNDER THIS AGREEMENT.
TERMINATION AND LIMITATION OF LIABILITY. Orange may terminate this Price Quotation for convenience in whole or in part, at any time, by verbal and/or written notice by giving five (5) days written notice of such termination. At such time, Orange shall cease all related work unless otherwise directed by Buyer. Orange’s termination of this Price Quotation shall not constitute a default. If any deliverable is not delivered within 45 days of its due date, then Buyer may terminate this Contract immediately by giving written notice to Orange and will not owe any amount for deliverables which have not been accepted. Orange may terminate this Contract immediately if Buyer or any of its agents breach the confidentiality provisions or the indemnity provisions. IN NO EVENT SHALL BUYER BE ENTITLED TO OR ORANGE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, GOODWILL, OR PRODUCTION DOWNTIME, EVEN IF ORANGE IS ADVISED OF THE SAME. IN NO EVENT WHATSOEVER WILL ORANGE’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTION, WHETHER IN TORT, CONTRACT OR OTHERWISE, EXCEED THE LESSOR OF $1,000 USD OR THE AMOUNT ACTUALLY RECEIVED BY ORANGE FROM BUYER UNDER THIS PRICE QUOTATION ONLY.
INSURANCE. Before commencement of any work on Buyer’s premises, Orange represents that it has and shall maintain and shall furnish Buyer with certificates of insurance evidencing worker’s compensation insurance, state disability insurance, and such other insurance as Buyer may reasonably request.
CONFIDENTIALITY. Orange Confidential Information means information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, finances, and personal data related to the business or affairs of Orange. Orange Confidential Information does not include any information i) which Buyer knew before Orange disclosed it to Buyer; (ii) which has become publicly known through no wrongful act of Buyer; or (iii) which Buyer developed independently, as evidenced by appropriate documentation. Buyer agrees not to disclose any Orange Confidential Information and to take all reasonable precautions to prevent its unauthorized dissemination, both during and after the Contract. Without limiting the scope of this duty, Buyer agrees to limit its internal distribution of Orange Confidential Information to its employees and agents who have a need to know and to take steps to ensure that the dissemination is so limited. Buyer agrees not to use any Orange Confidential Information for its own benefit or for the benefit of anyone other than Orange. Without limiting the scope of this duty, Buyer agrees not to design or manufacture any products, which incorporate Orange Confidential Information. All Orange Confidential Information remains the property of Orange and no license or other rights in the Confidential Information is granted hereby. All information is provided "AS IS" and without any warranty, express, implied, or otherwise, regarding accuracy or performance. Further, upon Orange' written request, Buyer agrees to return to Orange, all Orange Confidential Information, including but not limited to all computer programs, documentation, notes, plans, drawings and copies thereof.
PROPRIETARY RIGHTS. (a) Buyer acknowledges that the Products sold by Orange hereunder contain trade secrets and other intellectual property owned or licensed to Orange. Orange retains for itself all proprietary rights in and to all designs, Products, software, engineering details, and other data pertaining to any Products sold except where rights are assigned under written agreement by an authorized representative of Orange. Except for Buyer’s limited right to use Orange’s product software (“Product Software”) only with the Product, Orange retains all intellectual property rights in and to the Products and any portion thereof (including without limitation any and all Product Software). Any and all Product Software is copyrighted and Orange and/or its licensors retain and reserve all title, interest, ownership and rights in and to all copies of the Product Software and product documentation (including all related intellectual property rights thereto), except for the limited license herein. Buyer will not directly or indirectly engage in, cause or permit the reverse engineering, disassembly or recompilation or similar manipulation of the Products. (b) Orange may terminate this Agreement as to any Products without liability if Orange determines that in its opinion there is any potential intellectual property rights infringement resulting from Buyer's or End User’s use of the Products or its incorporation of Products in equipment used by Buyer or End User.
LICENSE TO USE ORANGE'S RELATED RIGHTS. Orange acknowledges that from time-to-time Orange may have its own and/or third-party intellectual property rights, which Orange wishes to incorporate or utilize into the Work Product or has incorporated into the Software Product Software or Products subject to this Contract ("Orange's Related Rights"). If and only if Orange has the right to grant licenses to third parties, then Orange hereby grants Buyer, and its subsidiaries and affiliates, a royalty free, worldwide, non-sublicensable, non-exclusive license to use Orange's Related Rights only as part of the Product in which the Orange Related Rights have been incorporated or for which it has been delivered. Orange’s Software Product and/or software/hardware product to be provided to Buyer for use by Buyer includes open-source code and freeware. Notwithstanding the foregoing, under no circumstances whatsoever does Orange grant any right, title or interest in and to any of Orange’s patents or patent applications. Third party software incorporated into the products is subject to separate license restrictions and related terms and conditions and buyer’s use of such software is subject in every case to all such terms and conditions. The current restrictions and related terms and conditions are set forth in Orange’s Important Notices and System Specifications document. Orange is not liable for any acts, errors or omissions of Buyer or any third party with respect to Open-Source Software. Any and all Product Software licensed in this Contract is “commercial computer Software” and ‘commercial computer Software documentation” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any license, use reproduction, release, performance, display or disclosure of the product software and accompanying documentation by the US Government is governed solely by the terms of this Contract and are prohibited except to the extent expressly permitted by the terms of this Contract.
REIMBURSABLE EXPENSES. Orange will not be reimbursed for any expenses incurred in connection with performance of services under this Contract, unless approved in advance and in writing by the Buyer’s technical monitor, or as expressly provided for in the Contract statement of work. Orange shall utilize standard coach air fare, mid-size automobile rental, and Holiday Inn or equivalent hotel accommodations, unless authorized by Buyer to the contrary; and agrees to make its own reservations for such, utilizing such Orange discounts which may be available.
TITLE. Orange warrants title to all goods sold and services supplied.
WARRANTIES. Orange warrants, for a period of 30 days from the date the products are delivered to the carrier (the “Warranty Period”), that all Products and/or Services will materially conform to the then current specifications written by Orange. In the event of a non-conformity during the Warranty Period, Buyer shall promptly notify Orange by generally describing the nature of the non-conformity in writing. Return of non-conforming Products must be made according to Orange’s then-current return and RMA (Returned Merchandise Authorization) policies, including returning the Product with a proper RMA authorization. If Orange does find a non-conformity under this warranty, at Orange’s option and election and as Buyer’s exclusive remedy, Orange will repair or replace the Product. OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 17, ORANGE MAKES NO WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE. ORANGE SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW. ORANGE DOES NOT WARRANT THAT THE PRODUCT WILL OPERATE UNINTERRUPTED, ERROR FREE OR IN THE COMBINATIONS OR APPLICATIONS INTENDED BY ANY THIRD PARTY.
LIMITATION OF LIABILITY. IN NO EVENT SHALL ORANGE BE LIABLE TO BUYER OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY RESELLER, OR FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR OTHER DAMAGES, HOWEVER CAUSED AND ARISING UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), WHETHER OR NOT ORANGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THIS EXCLUSION INCLUDES ANY LIABILITY, WHICH MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST BUYER. IN NO EVENT SHALL ORANGE’S LIABILITY ARISING OUT OF THIS PURCHASE QUOTE EXCEED THE PURCHASE PRICE OF THE PRODUCTS PAID BY BUYER TO ORANGE AND SUBJECT TO THIS PURCHASE QUOTE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. THE PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF ORANGE ARISING OUT OF THIS CONTRACT AND/OR SALE OF PRODUCTS TO RESELLER AND END USERS, AND THE PARTIES EXPRESSLY AGREE WITH THE RESULTING ALLOCATION OF RISK.
RELATIONSHIP OF PARTIES. Orange is an independent contractor and, not an employee of Buyer. No employment relationship is created by this Contract for contracted services, and Orange is not a Buyer’s employee and is ineligible for any of Buyer’s employee benefits. Buyer acknowledges it is not eligible to receive, and expressly waives any and all rights or entitlement to Orange-provided benefits. Orange shall retain independent, professional status throughout this Contract and shall use its own discretion in performing the tasks assigned.
MISCELLANEOUS: a) Equitable Relief. Any breach of the confidentiality provisions of this Contract by Buyer will result in irreparable harm to Orange. Buyer therefore agrees that Orange shall have the right to an injunction or other equitable relief to enforce this Contract and any of its provisions, without prejudice to any other rights and remedies that Orange may have; (b) Compliance with Laws and Regulations. Buyer agrees to comply with all applicable federal, state and local laws, rules, regulations and ordinances; (c) Governing Law; Severability. California law shall govern and enforce this Contract. Any litigation or arbitration between the parties shall take place in Santa Clara County, California; both parties waive any objection to personal jurisdiction or venue in any forum located in that County. If any provision of this Contract is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of this Contract shall continue in full force and effect; (d) Arbitration. At the option of either party, any dispute arising from or with respect to this Contract shall be decided by arbitration by in accordance the American Arbitration Association Commercial rules but neither party shall use the American Arbitration Association as the arbitrator(s). At the request of either party, the proceedings will be conducted in secrecy. Under no circumstances will the Buyer be awarded attorney fees. The parties shall pay their own costs of arbitration; (e) Advertising / Publicity Releases. The terms and existence of this Contract and everything supplied in connection with it by Orange shall be held in confidence by Buyer. Buyer shall not in any manner, advertise, publish or release any information concerning this Price Quotation, or any portion thereof, without the prior written consent of Orange. Buyer shall not use Orange’ name in any way, including without limitation, a general or sample listing of Orange’s customers, without Orange’ prior written consent. This Contract does not grant or confer any right to use any trademark, trade name, logo, service mark or other mark of Orange or its affiliates, in any advertising, publications, promotional activities, or for any other purpose. Any violation of this paragraph shall be deemed a material breach (f) Survival of Terms. The provisions of paragraphs 12, 13, 15, 16, and 20 hereof shall survive termination of this Contract; (g) Complete Understanding; Modification: This Contract and the attached exhibits constitute the full and complete understanding and agreement of the parties relating to the subject matter hereof and supersede all prior understandings and agreements relating to such subject matter. Any waiver, modification, or amendment of any provision of this Contract shall be effective only if in writing and signed by the parties. The provisions of this Contract shall prevail over any conflicting provisions in a purchase order, acceptance notice or other document.
COMMUNICATIONS TO ORANGE. All communications to Orange must be made in writing to the following address: Orange, Inc., 1225 Clinton Street, Redwood City, CA.