Disclaimers
The following Terms and Conditions of Sales (hereinafter "T&C") are hereby incorporated into all purchase orders received by Marvin Test Solutions, Inc. from Customer. Customer and Marvin Test Solutions agree that the purchase and sales of Marvin Test Solutions' hardware and software products (hereinafter "Products") are made under these T&C. Unless otherwise agreed to by Marvin Test Solutions IN WRITING, Marvin Test Solutions shall not be bound by any additional and/or different T&C imposed or required by Customer. Placing a purchase order with Marvin Test Solutions for Products or any other services by the Customer constitutes acceptance of these T&C.
  1. TITLE. Title to the Products and risk from loss or damage shall pass to Customer at EXW point (Irvine, CA). Notwithstanding the foregoing, Marvin Test Solutions shall retain a security interest and right of possession in the Products until Customer makes full payment.
  2. TAXES. Product prices are exclusive of any and all applicable sales, use, service, value added or like taxes which shall become the sole responsibility of Customer. All sales in California shall be subject to applicable Sales Tax unless Customer has furnished Marvin Test Solutions, prior to Products' shipment, a California Sales exemption certificate.
  3. PRICES AND QUOTATIONS. Unless other specified in writing, all quotations shall expire thirty (30) days from date of issuance. Unless other specified in writing, prices quoted are only valid for the Customer and location listed on the quotation.
  4. PAYMENTS. Payment terms are subject to Marvin Test Solutions credit approval. Unless otherwise indicated in the quotation or separate written agreement between the Customer and Marvin Test Solutions, payment for products is due Net 30 days from Marvin Test Solutions invoice date. All sums not paid when due shall accrue interest at the monthly rate of 1.5% on the unpaid balance until paid in full. Marvin Test Solutions may change credit or payment terms at anytime should customer’s financial condition or previous payment record so warrant. Customer shall make payment in full prior to or upon delivery by cashier's check, wire transfer, credit card, money order or if required by Marvin Test Solutions, Letter of Credit, if terms are not established. Marvin Test Solutions may discontinue performance if Customer fails to pay any sum due, or fails to perform under this or any other Marvin Test Solutions agreement if, after 10 days written notice, the failure has not been cured. Payments for all orders shall be made in U.S. Dollars.
  5. ORDERS. All orders are subject to acceptance by Marvin Test Solutions. Orders shall be considered as accepted by Marvin Test Solutions only when Marvin Test Solutions provides a Sales Order Confirmation to Customer.
  6. DELIVERY. Unless otherwise accepted by Marvin Test Solutions IN WRITING, all orders are EXW Irvine CA. Customer shall pay all freight charges, applicable import duties, and other necessary fees and shall bear the risks of loss, damage, and customs clearance. Any claims for shipment shortage shall be deemed waived unless presented to Marvin Test Solutions in writing within thirty (30) days of shipment.
  7. EXPORT CONTROL. In the event the Customer exports or re-exports Marvin Test Solutions’ Products, technology or technical data, Customer assumes sole responsibility for complying with applicable laws and regulations, specifically including, but not limited to, the International Traffic in Arms Regulation (ITAR) and the Export Administration Regulation, and for obtaining required export and import authorizations. Marvin Test Solutions reserves the right not to ship Products ordered if, at any time, Marvin Test Solutions believes that such shipment may violate U.S. export control laws.
  8. PRODUCT ACCEPTANCE. Any special acceptance procedure required by the Customer including Source Inspection shall be agreed to in writing by Marvin Test Solutions and may be subject to an additional fee.
  9. COMMERCIAL OFF THE SHELF ITEMS. No source inspection for COTS items.
  10. LIMITED WARRANTY (HARDWARE). Marvin Test Solutions’ Hardware products are warranted against defects in materials and workmanship for a period of 12 months from the date of shipment. Marvin Test Solutions shall repair or replace, at Marvin Test Solutions’ discretion, any defective product during the warranty period provided that the damage to the product is not a result of misuse or abuse and that the damage has been reported by Customer to Marvin Test Solutions prior to the expiration of the warranty Period.
  11. LIMITED WARRANTY (SOFTWARE). Marvin Test Solutions’ Software products are warranted for a period of 12 months from the date of shipment. If properly installed, Marvin Test Solutions warrants that the product will perform substantially in accordance with its specifications and that the media, which the software product is recorded on, will be free from defects. The software warranty includes free upgrades for those software versions released during the warranty period. All software products are licensed to Customer under the terms of the individual End-User License Agreement (EULA) provided with the each software product.
  12. EXTENDED WARRANTY. Marvin Test Solutions offers extended Warranties for hardware and software products. Contact Marvin Test Solutions’ Customer Sales Services (CSS) department for additional information.
  13. PRODUCT RETURN/CANCELLATION/CHANGE POLICY. Customer may return price list Products within thirty (30) days of the Delivery Date for any reason whatsoever. Customer must contact Marvin Test Solutions’ Customer Technical Services (CTS) department via phone, e-mail or M@GIC and request a Returned Material Authorization (RMA) prior to the expiration of said 30-day period. Customer shall not be charged any restocking fee for such returns, provided that Product is undamaged and in original packaging. Custom products and products not listed in Marvin Test Solutions’ price list are NOT COVERED by this return policy. Such returns as well as returns after the expiration of the 30-day period, if agreed to by Marvin Test Solutions, shall be subject to a restocking fee. Marvin Test Solutions may terminate any order if any representations made by customer to Marvin Test Solutions are false or misleading. Customer cancellation of any order may be subject to a cancellation fee. Changes to orders shall not be binding upon nor be put into effect by Marvin Test Solutions unless confirmed in writing by Marvin Test Solutions’ appropriate representative.
  14. NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED ARE MADE WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ABILITY OR INABILITY TO USE, TITLE OR NONINFRINGEMENT OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. MARVIN TEST SOLUTIONS DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. MARVIN TEST SOLUTIONS EXPRESSLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN. MARVIN TEST SOLUTIONS’ PRODUCTS ARE NOT INTENDED TO BE USED IN LIFE-SUPPORT APPLICATIONS AND ANY DEVIATION FROM THIS DIRECTIVE BECOMES THE SOLE RESPONSIBILITY OF CUSTOMER.
  15. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. THE ENTIRE LIABILITY OF MARVIN TEST SOLUTIONS AND ITS REPRESENTATIVES AND DISTRIBUTORS (INCLUDING THAT OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS) IS SET FORTH ABOVE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MARVIN TEST SOLUTIONS AND ITS REPRESENTATIVES AND DISTRIBUTORS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS) BE LIABLE FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, EXPENSES, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOST BUSINESS INFORMATION, OR ANY OTHER DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF MARVIN TEST SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THE APPLICABLE PURCHASE PRICE OR LICENSE FEE FOR THE PRODUCTS REFLECTS THIS ALLOCATION OF RISK. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. IF THE FOREGOING LIMITATION OF LIABILITY IS NOT ENFORCEABLE BECAUSE A MARVIN TEST SOLUTIONS PRODUCT SOLD OR LICENSED TO CUSTOMER IS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL, NON-APPEALABLE JUDGMENT TO BE DEFECTIVE AND TO HAVE DIRECTLY CAUSED BODILY INJURY, DEATH, OR PROPERTY DAMAGE, IN NO EVENT SHALL MARVIN TEST SOLUTIONS' LIABILITY FOR PROPERTY DAMAGE EXCEED THE FEES PAID FOR THE SPECIFIC PRODUCT THAT CAUSED SUCH DAMAGE.
  16. LIMITED INDEMNITY AGAINST INFRINGEMENT. Marvin Test Solutions shall, at its own expense, defend any litigation resulting from sales of Products to the extent that such litigation alleges that the Products or any part thereof infringes any United States patent, copyright, or trademark, provided that such claim does not arise from the use of the Products in combination with equipment or devices not made by Marvin Test Solutions or from modification of the Products, and further provided that Customer notifies Marvin Test Solutions immediately upon its obtaining notice of such impending claim and cooperates fully with Marvin Test Solutions in preparing a defense. If Customer provides to Marvin Test Solutions the authority, assistance, and information Marvin Test Solutions needs to defend or settle such claim, Marvin Test Solutions shall pay any final award of damages in such suit and any expense Customer incurs at Marvin Test Solutions’ written request, but Marvin Test Solutions shall not be liable for a settlement made without its prior written consent. If the Products are held to be infringing and the use thereof is enjoined, Marvin Test Solutions shall, at its option, either (i) procure for the Customer the right to use the Products, (ii) replace the Products with others which do not constitute infringement, or (iii) remove the infringing Products and refund the payment(s) made therefor by Customer. The foregoing states the Customer’s sole remedy for, and Marvin Test Solutions’ entire liability and responsibility for, infringement of any patent, trademark, or copyright relating to the Products provided hereunder. THIS LIMITED INDEMITY IS IN LIEU OF ANY OTHER STATUTORY OR IMPLED WARRANTY AGAINST INFRINGEMENT.
  17. FORCE MAJEURE. In the event that Marvin Test Solutions is unable to perform its contractual obligations to the Customer due to any cause beyond its reasonable control, Marvin Test Solutions’ shipping schedule may be extended without any penalty regardless of the requirements of the contract or purchase order.
  18. ACCEPTANCE OF TERMS AND CONDITIONS. Customer hereby acknowledges reading these Terms and Conditions, understanding them, and agreeing to be bound by them. A waiver of any provision of this agreement shall not be construed as a waiver or modification of any other term hereof.
  19. GOVERNING LAW. Any dispute arising in connection with these T&C and/or the Customer’s purchase order shall be governed by the laws of the State of California without regard to principles of conflicts of laws. Venue shall be in Orange County, California.