TERMS AND CONDITIONS OF SALE

1. Applicability of these Terms.

These terms and conditions of sale (“Terms”) apply to all quotations and offers made, and purchase orders accepted by, Martian Solutions. The Martian Solutions entity shown on the front of this Sales Order Acknowledgement is the Seller (“Seller”) of the products listed on the front hereof (individually “Product” and collectively “Products”). Seller’s acceptance of any Buyer purchase order is strictly conditioned on Buyer’s acceptance of these Terms. Buyer’s acceptance of the Terms shall be indicated by any of the following, whichever first occurs: (a) Buyer’s written acknowledgment hereof, (b) Buyer’s acceptance of any part of a shipment of the Products specified on the front side hereof (c) Buyer’s failure to acknowledge or reject this sales order in writing within 5 calendar days of the date of issuance, or (d) any other act or expression of acceptance by Buyer. Unless otherwise agreed in writing by Seller, the sale and purchase of the Product between Seller and Buyer are limited exclusively to the Terms (the “Agreement”). Seller hereby objects to and rejects any additional or different term proposed by Buyer, including those in Buyer’s purchase order. Seller’s silence or failure to respond to any such subsequent term, condition, or proposal shall not be deemed to be Seller’s acceptance or approval thereof.

2. Shipment and Delivery.

a.

Unless otherwise specified on the front of this form, shipment will be in Seller’s standard packaging. Seller may, at its discretion, comply with any special packaging instructions of Buyer, in which case any incremental costs as a result of such compliance shall be paid by Buyer.

 

b.

Unless otherwise specified on the front of this form, Seller shall deliver all Products EXW (Seller’s plant or warehouse) (Incoterms 2000). Seller reserves the right to ship from any plant or warehouse of Seller or any subsidiary or subcontractor. Buyer shall pay all shipping, insurance, and related delivery charges. Buyer shall designate the carrier and method of shipment within a reasonable time prior to delivery. If Seller has not received such designation within a reasonable time prior to delivery Seller may, at its discretion, select the carrier and otherwise make arrangements for delivery at Buyer’s expense. Title to and all risk of loss or damage for Products shall pass to Buyer upon Seller’s delivery to the Buyer’s designated freight forwarder.

c.

Delivery dates are approximate. Seller will use commercially reasonable efforts to deliver on the requested date but will not be responsible for any claimed damages from late deliveries. Seller reserves the right to deliver Product in installments. If Supplier’s ability to supply Products becomes constrained for any reason, Supplier may, in its sole discretion, reduce quantities, delay shipments, or allocate Products among its customers.

 

d.

Buyer shall promptly notify Seller within 15 calendar days of delivery, of any claimed shortage or rejection as to such delivery. Such notice shall be in writing and reasonably detailed, stating the grounds for such rejection or claimed shortage. Failure to give such notice within such time shall be deemed an acceptance in full of the delivery.

 

e.

Seller must authorize in writing the return of any Products for repair, replacement, or credit. Products designated as Non-cancelable, Not-returnable (“NCNR”) may not be returned. Issuance of credit for returned Products shall be made exclusively at Seller’s discretion upon Buyer’s request.

3. Force Majeure.

Seller shall endeavor to meet delivery schedules but shall not be liable for any failure to perform, or delay in performance caused by circumstances beyond Seller’s reasonable control, if such non-performance or delay is caused, without limitation, by flood; natural disaster; explosion; Acts of God; governmental action, embargoes; war, terrorist act; labor disputes; shortages of transportation, labor, energy, fuel, machinery or raw materials through normal commercial channels at customary and reasonable rates; or inadequate yield of product despite Seller’s reasonable efforts.

4. Price and Payment.

Each Product will be invoiced at the price specified on the Invoice form and shall be payable in Mexican Pesos unless another currency is specified on the front of the Invoice form. Prices do not include any applicable taxes or duties levied on the sale and delivery of such Product (“Taxes and Duties”). Buyer shall pay all Taxes and Duties on Product or present a valid exemption certificate prior to shipment. Unless Seller otherwise agrees in writing, Buyer shall pay net thirty (30) days from the date of the invoice provided a credit line has been established with the Seller, otherwise payment will be TT(cash in advance). Seller reserves the right to charge interest on amounts past due at the rate of 1.5% per month or the highest rate permitted by law, whichever is less. If ordered Products are not delivered at one time, Buyer will pay for the Products as delivered. Each shipment is considered a separate and independent transaction and will be invoiced separately. Seller may require payment to be secured by an irrevocable letter or credit, prior funds transfer to trust or escrow accounts, or in such other manner as agreed by Seller and Buyer. Seller has no continuing obligation to deliver Products on credit and may withdraw credit approval or change credit amounts or payment terms at any time for any reason.

5. Schedule Changes.

Buyer may not cancel or reschedule delivery of Product within thirty (30) days of the delivery date. Buyer may cancel or reschedule delivery of Product more than thirty (30) days before the delivery date. Orders for NCNR Products may not be cancelled or rescheduled and such Products may not be returned.

6. Specification Changes.

Seller is not obligated to continue production of any Product. Process and design changes that will not adversely affect form, fit, or function requirements of ordered Products may be made by Seller without prior approval or notification to Buyer.

7. Warranty.

a.

Seller warrants that for a period of one (1) year from the date of shipment to Buyer (“One-year Period”) the Product will perform in accordance with Seller’s final published datasheet for the Product and will be free from defects in material and workmanship (“Warranty”). Buyer must make any warranty claim within the One-year Period by notification to Seller in writing of such defect. Buyer’s sole remedy under this Warranty is the replacement or repair, at Seller’s election, of the defective Product. Seller shall have the right to examine at Buyer’s facilities any Products claimed to be defective. Seller’s examination, testing, and determination of liability for returned Products alleged to be defective shall be final. Seller extends this Warranty exclusively to Buyer and not to Buyer’s customers or to users of Buyer’s products unless otherwise agreed in writing by Seller.

 

b.

Any technical or application advice, quality characterization, reliability data, or other assistance Seller may provide Buyer with respect to the Products is provided free of charge and solely as an accommodation to Buyer and shall not expand, diminish, or otherwise modify the Warranty. Seller is not obligated to provide, or continue to provide, such assistance with respect to any Product.

 

c.

Seller assumes no liability for (a) any defects that result from Buyer’s design, specifications, or instructions; (b) results of use of the Products purchased including without limitation (i) use in combination with any electrical or electronic components, circuits, systems, assemblies, or other products and (ii) unsuitability of any Product for use in any circuit, assembly, product, or environment. In no event shall Seller’s warranty obligation extend to Products which have been altered, misused, improperly maintained, damaged by excessive electrical current, or in any other manner negligently handled, stored or operated by Buyer or by other users.

 

d.

Products that are samples, prototypes, pre-production units, evaluation units, or purchased other than directly from Seller or an authorized distributor are taken by Buyer AS IS, WHERE IS, and WITH ALL FAULTS, and with no warranty whatsoever.

 

REPAIR OR REPLACEMENT IS BUYER’S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF THE WARRANTY AND SELLER WILL NOT IN ANY EVENT BE LIABLE FOR COSTS ASSOCIATED WITH THE RETURN OF PRODUCTS FOR REPAIR OR REPLACEMENT (INCLUDING COSTS RELATED TO REMOVAL OF THE PRODUCT FROM END APPLICATIONS), INCREASED MANUFACTURING COSTS, DOWNTIME COSTS, PURCHASE OF SUBSTITUTE PRODUCTS, LOST PROFITS, REVENUE, OR GOODWILL, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES CAUSED BY A BREACH OF THE WARRANTY. SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.

8. Unauthorized Uses of Product.  

The Products are not designed, intended, or authorized for use:

a.

as critical components in life support systems or devices without the express written approval of an officer of Martian Solutions Corporation. Life support systems or devices are systems or devices which are intended for surgical implant into the body, or support or sustain life, and whose failure to perform, when properly used in accordance with instructions for use provided in the labeling, could be reasonably expected to result in significant injury to the user; or

 

b.

in nuclear applications in which the failure could be reasonably expected to result in personal injury, loss of life or severe property or environmental damage. Buyer acknowledges that Seller is not liable, in whole or in part, for any claim or damage arising from such unauthorized use of the Product supplied to Buyer. Buyer agrees to indemnify and hold Seller harmless from and against any and all claims, damages losses, costs, expenses, and liabilities arising out of any such unauthorized use of Product.

9. Limitation of Liability.

IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, THE PRODUCTS, OR THE USE OF THE PRODUCTS PROVIDED HEREUNDER REGARDLESS OF WHETHER SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOT WITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

EXCEPT FOR LIABILITY UNDER ARTICLE 10, IN NO EVENT SHALL SELLER’S MAXIMUM AGGREGATE LIABILITY FROM ANY WARRANTY, INDEMNITY, OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT OR AGREEMENT, OR ANY USE OF ANY PRODUCT PROVIDED HEREUNDER, EXCEED THE TOTAL AMOUNT PAID TO SELLER FOR THE PRODUCTS SOLD UNDER THIS AGREEMENT WITH RESPECT TO WHICH THE LOSSES ARE CLAIMED. THE EXISTENCE OF MORE THAN ONE CLAIM AGAINST A PARTICULAR PRODUCT SOLD TO BUYER HEREUNDER SHALL NOT ENLARGE THIS LIMIT.

10. Intellectual Property Indemnification.

a.

If a Product becomes the subject of a claim, suit or proceeding based on the infringement of Mexican or patents, copyrights, or trademarks relating to the Products manufactured and supplied by Seller (“Claim”), Seller shall defend Buyer against such Claim, and pay any final judgment awarded against Buyer based on such Claim or damages agreed to in a settlement of such Claim. Seller shall not be liable under this Article unless Buyer provides Seller: (1) prompt written notice of the claim, suit or proceeding for infringement; (2) reasonable assistance in defending including following Seller’s instructions regarding continued use of Products; and (3) permits Seller at its sole discretion to defend, settle, or otherwise terminate such claim, suit or proceeding.

 

b.

Seller shall have no liability for any costs, losses, damages, or any settlement or compromise made by Buyer, for an infringement based on: (1) use of Products either singly or in combination with any element, product, software, or equipment; (2) use in a manner or for an application other than for which the Product was designed or intended; (3) modifications to the Products made by anyone other than Seller; or (4) Seller’s compliance with Buyer’s specific instructions, designs or specifications for the Products (1 through 4 collectively, “Non-liability Claims”).

 

c.

Buyer further agrees to indemnify and hold Seller harmless from and against any and all claims, damages losses, costs, expenses, judgments, and liabilities arising based on or arising from Non-liability Claims related to Products sold to Buyer.

 

d.

If Seller determines in its sole discretion that a Product is likely to constitute an infringement or if Buyer’s use of the Product is enjoined, Seller may, at its sole option and expense, (i) procure for Buyer the right to continue using the Product as provided in this Agreement so as to avoid any such infringement, or (ii) modify or replace the Product so that it is non-infringing, or (iii) if, neither option (i) nor (ii) is available on commercially reasonable terms, then, Buyer may return the infringing Product and receive a refund.

 

THE FOREGOING INDEMNITY (1) EXTENDS ONLY TO BUYER; (2) IS SUBJECT TO THE LIMITATIONS OF ARTICLE 9; (3) IS THE SOLE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT; AND (4) IS IN LIEU OF ANY OTHER STATUTORY, EXPRESS, OR IMPLIED WARRANTIES AGAINST INFRINGEMENT.

11. Import and Export Requirements.

Buyer acknowledges that the Products are subject to the export laws and regulations of various countries, including the Mexico Customs Law.  Buyer will provide Seller information and documentation as requested by Buyer in order to take all necessary steps to comply with applicable export laws. Seller will not be liable for delays in shipment due to Buyer’s failure to timely provide adequate information or documentation. Buyer warrants that it will comply in all respects with applicable export control laws, including restrictions set forth in any applicable export license. Buyer will be the importer of record for all shipments and is responsible for customs clearance and other import matters.

12. Buyer Information.

In the course of carrying out this Agreement, Seller will use Buyer related data, some of which may be confidential, including but not limited to Buyer business address, contact person, and shipping location. Unless otherwise agreed in writing, Buyer accepts that such data will be used and distributed within Seller’s organization and to certain third parties, such as subcontractors. 

13. Cancellation at Seller’s option.

Seller may at its option cancel an order if (a) Buyer’s payment is default on this or any other order, (b) Buyer breached any material provision of the Agreement, (c) causes beyond Seller’s reasonable control make it impossible to assure shipment (e.g., substantial changes in raw materials or those specified in Article 3) or (d) Buyer becomes insolvent or files a petition in bankruptcy.

14. Governing Law and Forum.

When Martian Solutions is the manufacturer's representative or as seller itself, the Agreement shall be governed by the laws of the State of Nuevo Leon, Mexico. Any dispute involving the Agreement shall be subject to the exclusive jurisdiction and venue of the states courts of Monterrey County, Nuevo Leon, Mexico.

15. Assignment.

Buyer shall not assign this Agreement without Seller’s prior written consent. Any unauthorized assignment of this Agreement by Buyer shall be null and void. Seller may assign this Agreement without Buyer’s prior written consent to an affiliate or a third party in connection with the Seller’s business or assets to which this Agreement relates.

16. Invalidity.

The invalidity, illegality, or unenforceability of any of Terms under Agreement shall not affect the validity of the remaining the Terms.

17. Entire Agreement.

The Agreement supersedes all prior offers, negotiations, and understanding between Seller and Buyer and constitutes the entire agreement regarding the sale and purchase of Product.