1. ORDER OF PRECEDENCE
The following are the terms and conditions (the “Terms”) under which Radisys Corporation and its direct and indirect subsidiaries (collectively, “Radisys”) purchase products (including software and software licenses) and services (collectively, “Products”) from other parties (“Sellers”). All requests for quotations, purchase orders and offers to purchase and/or license Products from Sellers made by Radisys are made subject to these Terms. To the extent that any quotation, order acceptance, confirmation, invoice or other document of a Seller contains conflicting, differing or additional terms from these Terms, these Terms will control and all such conflicting, differing or additional terms are rejected by Radisys and shall have no effect. A Seller’s shipment of, or acceptance of Radisys’ payment for, Products shall conclusively affirm Seller’s assent to these Terms. These Terms, in combination with the price and quantity terms agreed to by Radisys and Seller, contain the complete and final agreement, and supersede any and all prior or contemporaneous agreements, between Radisys and Seller as to the purchase of Products from Seller by Radisys. Notwithstanding the foregoing, in the event that Radisys and Seller are parties to a written agreement signed by Radisys and Seller that is in effect at the time that a Radisys order for a Product is accepted by Seller and such agreement covers the purchase of such Product by Radisys from such Seller, then such agreement shall control over these Terms.
Time is of the essence and substitutions will not be accepted. Seller shall ship and deliver Products strictly in accordance with the specification(s), schedule, quantities, and other requirements specified by Radisys (Radisys’ “Order”). Delays in shipments, including the reasons therefore, shall be reported immediately by Seller to Radisys. Radisys reserves the right to cancel any Order for any Product in whole or in part if Seller should fail to ship and deliver in accordance with the terms of the Order. Shipments shall be DDP (Radisys Designated Location) INCOTERMS 2000. Title to, risk of loss of and duty to insure the Products shall transfer from Seller to Radisys upon delivery of the Products to Radisys. Product shall be transported by carrier(s) as specified by Radisys.
3. EARLY CANCELLATION
Radisys may cancel any Order or portion thereof upon written notice to Seller delivered to Seller at least 30 days prior to the scheduled delivery date for the cancelled Products without cost and with no liability to Seller. Radisys may cancel any Order or portion thereof with less notice to Seller, in which event Radisys’ sole liability will be to pay to Seller a reasonable amount to compensate Seller for materials, if any, that cannot be reused or resold.
4. PACKAGING AND PACKING
Seller shall be responsible for proper packing and packaging of any goods purchased hereunder, so as to prevent damage to and deterioration of the goods, secure the lowest transportation rates and comply with carrier tariffs. Seller shall separately number all cases, packages, and other shipping containers and place an itemized packing slip bearing the Radisys’ Purchase Order number, line item number, Radisys part number and any revision marker corresponding to the contents of such shipping container on each such container. Charges for preparation, packing, crating, and cartage are included in the Product prices agreed to by Radisys and Seller.
5. PRICE WARRANTY, INVOICES, TAXES AND PAYMENT
Seller warrants that all prices of all Products sold by Seller to Radisys are not greater than the lowest prices at which such Products have been sold by Seller to any third party as of the date such Products are sold to Radisys. Seller shall issue a separate invoice for each delivery of Products and shall not issue any invoice prior to the scheduled or actual date of delivery, whichever is later. Due dates for payment of invoices shall be computed from the date of receipt by Radisys of a correct invoice for Products already delivered to Radisys, or from the date of receipt of the Products which are the subject of a correct invoice which is received by Radisys in advance of such Products, as applicable, and shall be deemed made on the date Radisys mails a check or otherwise initiates such payment. Payment of all invoices by Radisys shall be due in 45 days, applying the provisions of the preceding sentence.
6. INSPECTION AND ACCEPTANCE
Payment shall not constitute acceptance of Products. All Products sold by Seller to Radisys are subject to inspection and/or test by Radisys and/or its agent(s) to the extent practical at all times and places, including the period of manufacture and, in any event, prior to final acceptance. Seller agrees to permit access to its facilities at all reasonable times for inspection of Products by Radisys’ agents or employees and will provide all tools, facilities and assistance necessary for such inspection at no additional cost to Radisys. This right of inspection, whether exercised or not, shall not affect Radisys’ right to revoke acceptance or pursue other remedies if defects or nonconformities are discovered at a later date, notwithstanding that any defect or nonconformity could have been discovered upon inspection. In the event that Products do not comply with applicable specifications, Radisys shall have the option to reject and return all such nonconforming Products, or a part thereof, even though less than a commercial unit, and Seller agrees to pay or reimburse Radisys for all costs or expenses incurred in returning such nonconforming Products, and Seller shall reimburse Radisys for any purchase price paid by Radisys to Seller for such nonconforming Products. No goods returned as non-conforming shall be replaced without a new order from Radisys. Radisys’ rights under this paragraph shall be in addition to all other rights of Radisys under these Terms or under applicable law.
Seller warrants that all Products sold by Seller to Radisys are new, that Seller has conveyed good title to such Products to Radisys, and that such Products are free from all liens and encumbrances, in each case at the time such Products are delivered to Radisys. Seller further warrants that all Products sold by Seller to Radisys, at the time such Products are delivered by Seller to Radisys and for a period of twenty-four months thereafter, are and will remain: (1) free from defects in design, material and workmanship, (2) in conformity with the applicable Product specifications, designs, drawings, samples or other descriptions furnished or specified by Radisys, and (3) merchantable and fit for the purpose for which intended. In addition, Seller hereby transfers and assigns to Radisys all of Seller’s right, title and interest in and to any warranty provided to Seller by Seller’s suppliers, licensors, component manufacturers and similar parties, which provide Seller with recourse in the event of a defect in any Product sold to Radisys by Seller. The foregoing warranties are in addition to all other applicable warranties, whether express, implied or statutory, and shall survive any inspection of, delivery of, acceptance of or payment for the Products, as well as any expiration or termination of these Terms. All of these warranties shall run to the benefit of Radisys and its successors and assigns.
Seller agrees to indemnify and hold harmless Radisys, its affiliates, successors, assigns, and customers against all suits at law or in equity and from all liabilities, costs, expenses (including attorney’s fees) and damages arising from any actual or claimed infringement of patents, trademarks, service marks, trade names or copyrights with respect to Products sold by Seller to Radisys or arising from any actual or alleged misappropriation or wrongful use of any trade secret or confidential information involving any such Products, and to settle or defend, at Seller’s expense, any suits based thereon. Seller is relieved of such obligation to settle, defend, indemnify and hold harmless if the actual or claimed infringement is based solely upon Seller’s compliance with detailed designs or written specifications supplied by Radisys which could not be complied with in the absence of such infringement. Seller further agrees to defend, indemnify, and hold Radisys harmless from all claims, liabilities, damages, losses, or expenses of any kind, including attorneys’ fees, arising out of breach by Seller of any warranties, covenants, or obligations of Seller under these Terms.
Radisys may make changes in the quantities or delivery schedule applicable to Products ordered by Radisys from Seller at any time prior to the scheduled delivery date for such Products. Radisys may make changes in any Product drawings, designs, specifications, or other descriptions supplied by Radisys and applicable to Products ordered from Seller by Radisys at any time prior to the scheduled delivery date for such Products, which shall be effective when notice of the change is received by Seller. Radisys may make changes in the method of shipment or packing and place of delivery, inspection or acceptance of any Products ordered from Seller at any time prior to the scheduled delivery date for such Products. If any change made pursuant to this Section 9 increases Seller’s costs, the parties shall mutually agree to an equitable adjustment in the prices to account for such increased costs, provided that Seller has provided Radisys with written notice of such increased costs within fifteen (15) days from the date Seller receives notification of the change.
Radisys may cancel any order for Products in whole or in part without liability to Radisys at any time prior to the scheduled delivery of such Products by written notice to Seller in the event that (1) Seller fails to comply with any term or condition of these Terms, including but not limited to delivery terms; (2) the parties fail to mutually agree on any adjustment under Paragraph 9; (3) Seller appoints a receiver or trustee in bankruptcy or other similar officer over any or all of its property or assets, files a voluntary or has filed against it an involuntary petition in bankruptcy which remains in effect for thirty (30) days; (4) Seller merges with or is acquired by a third party; or (5) Seller assigns any of its rights or obligations under this Order to a third party without Radisys’ prior written consent. Any such cancellation shall made by Radisys notifying Seller in writing of said cancellation and Seller shall thereupon transfer title and deliver to Radisys such work in process or completed goods as may be requested by Radisys. In the event Radisys elects to obtain the Products subject to such cancellation from another source, any excess cost resulting therefrom will be chargeable to Seller.
11. CONFIDENTIAL INFORMATION AND PUBLICITY
Seller shall keep confidential and, without prior written consent of Radisys, shall neither disclose to any person outside its employ, nor use for purposes other than performance of orders by Radisys for Products from Seller, any confidential or proprietary information relating to the Products including but not limited to designs, drawings, blueprints, descriptions or specifications. Seller shall not make any advertisement, news release, public announcement, denial or confirmation regarding any aspect of the Products or Seller’s business relationship with Radisys without Radisys’ prior written approval. Upon Radisys’ request, Seller shall return to Radisys all information or property delivered to Seller or generated by Seller pursuant to the performance of Seller’s sales of Products to Radisys. The terms of any separate, written non-disclosure agreement between Seller and Radisys in effect at the time Seller receives an order for Products from Radisys is incorporated herein by reference.
Radisys’ rights and remedies provided in these Terms shall be cumulative and shall be in addition to any other rights or remedies provided in law or equity. RADISYS SHALL NOT BE LIABLE TO SELLER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, WHETHER BASED IN TORT, CONTRACT, OR ON ANY OTHER THEORY, AND REGARDLESS OF WHETHER RADISYS WAS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM OR RELATED TO RADISYS’ PURCHASE OF PRODUCTS FROM SELLER OR FAILURE TO PERFORM ANY CONTRACT FOR SUCH SALE AS MAY ARISE BETWEEN RADISYS AND SELLER. No waiver of any breach of any provision of these Terms by Radisys shall constitute a waiver of any other or subsequent breach of these Terms by Radisys.
13. GOVERNING LAW AND DISPUTE RESOLUTION
The agreement shall be governed by the laws of the State of Oregon, excluding the U.N. Convention on Contracts for the International Sale of Goods, regardless of the laws that might be applicable under principles of conflicts of law. Any litigation between the parties arising out of or relating to these Terms or any sale or actual or alleged contract of sale between Radisys and Seller will be brought exclusively in the state or federal courts located in Oregon, if any such court has jurisdiction to hear such action. The parties hereby submit to the personal jurisdiction of all courts located in the State of Oregon and waive any objection to the exercise by any court located in the state of Oregon of personal jurisdiction over them. The parties further waive any objection to venue in such courts.
The parties understand and intend that these Terms comply with all applicable laws, ordinances, and regulations. In the event that any provision of these Terms is held to be unenforceable, such unenforceable provision shall be severed and the remainder of these Terms shall remain in full force and effect and shall be enforced to the fullest extent permitted by law.