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| Sales Terms & Conditions |
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| All sales made by Toyo Electronics Inc. ("Toyo Electronics") to its customers with Toyo Electronics U.S. resale accounts
("Purchaser") are subject to these terms and conditions. Purchaser's acceptance of these terms and conditions shall be made by
either (i) Purchaser providing a purchase order number to Toyo Electronics or (ii) Purchaser's acceptance of any Product from Toyo
Electronics, whichever occurs first. These terms and conditions shall apply to sales of all products described in Toyo Electronics'
current comprehensive product listing except as otherwise noted below ("Product"). The term Electronic Software Distribution (ESD)
product sales are subject to additional terms. |
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| Prior to placing an order, Purchaser must have an active Toyo Electronics sales account number and Purchaser's account must
be current and in good standing. Purchaser must provide Toyo Electronics with complete Product order information as required by
Toyo Electronics. The Product order information will include without limitation the (i) Product description, (ii) unit quantity, (iii)
Toyo Electronics SKU number and/or vendor part number, (iv) current unit price as provided by Toyo Electronics, and (v) correct
shipping address. For government or educational orders, Purchaser will provide the above Product order information as well as (i)
end user name and zip code and (ii) government or educational contract number. Purchaser personnel will identify, for each Product
order, the ship-to destination as either Purchaser, Purchaser's customer, or to some other specified third party. Toyo Electronics
reserves the right to require additional information based on the requirements of the manufacturer or publisher of the Product.
Purchaser shall not disclose any confidential information when ordering from Toyo Electronics. Purchaser may place orders over
telephone, via facsimile, and via Toyo Electronics approved electronic ordering methods only through persons who identify
themselves as Purchaser personnel and provide their Toyo Electronics customer number prior to placing the order. Toyo Electronics
will have no obligation to confirm the validity of any order placed or the authority of the person placing an order in this manner.
Purchaser will disclose its Toyo Electronics customer number only to its personnel with a need to know. Toyo Electronics' acceptance
of any order from Purchaser is limited to these terms and conditions in their entirety without addition, modification, or exception.
Any additional or different terms in Purchaser's purchase order or submitted by Purchaser in any form are hereby deemed to be
material alterations hereto and notice of objection to them is hereby given. Orders for direct shipment to Purchaser's customers may
require prepayment and may be subject to additional fees. Toyo Electronics will have no obligation to hold Product for future sale
to Purchaser if Purchaser's order is incomplete, on hold, or if Purchaser does not confirm it within 48 hours of notification from
Toyo Electronics that backordered Product is available for shipment. All Products sold to Purchaser hereunder are for resale only.
All Product pricing, description and availability information ("Information") provided by Toyo Electronics, in any form, is the
property of Toyo Electronics. Toyo Electronics hereby grants Purchaser a limited, non-exclusive, non-transferable license to use the
Information for Purchaser's internal use only for purposes of Purchaser's sales and purchases of Products sold by Toyo Electronics.
If Toyo Electronics provides Information to Purchaser electronically, Purchaser agrees to update such Information regularly to
ensure its accuracy. Purchaser agrees to hold in confidence and not to directly or indirectly use, reveal, report, publish, disclose
or transfer to any other person or entity any of the Information or utilize the Information for any Purpose except as permitted
herein. TOYO ELECTRONICS MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED ON THE INFORMATION. ALL INFORMATION IS PROVIDED TO PURCHASER
"AS IS." TOYO ELECTRONICS HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, RELATING TO INFORMATION INCLUDING BUT NOT
LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. |
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| All prices are subject to change without notice and will be established at time of order acceptance by Toyo
Electronics. Order acceptance and sale by Toyo Electronics occurs at time of shipment. Prices for backordered Products are not
guaranteed. |
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| 3. SHIPMENT AND DELIVERY |
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| All prices are subject to change without notice and will be established at time of order acceptance by Toyo
Electronics. Order acceptance and sale by Toyo Electronics occurs at time of shipment. Prices for backordered Products are not
guaranteed. |
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| A. |
Domestic (USA) Shipment Options - We ship products from our San Jose, CA- warehouse. For speed delivery we may ship products
from our manufacturer or distributor warehouse. Usually we use our own shipping and forwarding agent unless mentioned by our
customers. There are some shipping options available:
- Standard overnight
- Early am morning delivery, if available in your area (ADDITIONAL CHARGE)
- Saturday delivery by noon, if available in your area (for orders shipped on Friday specifically for Saturday delivery -
ADDITIONAL CHARGE)
Cut off times:
- Next day air - cut off time normally 2 P.M. Pacific Time
- 2-3 day air - cut off time 2 P.M. Pacific Time
- 3-day select - cut off time 2 P.M. Pacific Time
- FedEx Ground - cut off time 2 P.M. Pacific Time. Please note that FedEx ground residential delivery is not guaranteed
within a certain time frame by FedEx.
If you need a different type of delivery, not listed above, please call us to make special arrangements for that. |
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| B. |
U.S. Shipments - For Product shipments to an address within the fifty (50) United States or the District of Columbia,
shipment will be made FOB origin and Product title will transfer to Purchaser upon Toyo Electronics tendering the Product for
delivery to the carrier. Additional charges may apply for unusually heavy or bulky items. If Purchaser requests special shipping or
handling including without limitation, expedited shipment, third-party
billing, or freight collect, Purchaser shall bear all risk of loss in transit and is responsible for filing claims with the
carrier and all freight and handling costs. COD and additional fees may also apply. Purchaser shall examine all Products upon
receipt and shall notify Toyo Electronics, as specified herein, of all discrepancies or if rejection is intended. Such notice
shall be reasonably detailed and shall specify the discrepancy or reason for rejection. Failure to give such notice within the
time specified herein shall be deemed an acceptance of the Products as of the date of shipment. |
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| C. |
International Shipments - All shipments by Toyo Electronics to Purchaser or Purchaser's customers at an address outside of
the United States or the District of Columbia are subject to additional terms and will not be made unless Purchaser and Toyo
Electronics have entered into Toyo Electronics' International Fulfillment Agreement (IFA). Under certain circumstances, Toyo
Electronics may choose to ship Product to Purchasers located at an address outside of the United States or the District of
Columbia. These shipments will be made FCA, Toyo Electronics' warehouse via Toyo Electronics' carrier of choice. Title and
risk of loss will transfer to Purchaser upon Toyo Electronics tendering the Product for delivery to the carrier. Purchaser will
bear all the costs related to shipment and delivery. Purchaser shall examine all Products promptly upon receipt and shall notify
Toyo Electronics of all discrepancies or if rejection is intended within five (5) calendar days after receipt. Such notice shall
be reasonably detailed and shall specify the discrepancy or reason for rejection. Failure to give such notice within such time
shall be deemed an acceptance of the Products as of the date of shipment. If the approval of any government or governing
organization is required with respect to these terms and conditions or the distribution of the Products including without
limitation, giving legal effect to these terms and conditions, protecting intellectual property and other rights in the Products
or compliance with exchange regulations, Purchaser will, at its expense, immediately take whatever steps may be necessary to
secure such approvals. If any such approval requires or results in the deletion or amendment of any provision of these terms and
conditions, then Toyo Electronics will have the right to immediately terminate these terms and conditions. |
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| A. |
Payment By COD: There are few requirements for COD order. All COD exceeding $500.00 has to be paid in the form of Cashiers check
or Money Order unless our credit department approved a Company Check payment prior to the order. All orders less then $500.00 can be
paid by Personal or Company Check on delivery based on the terms and policy set by our credit department. All checks should be made
out to: Toyo Electronics |
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| B. |
Payment By Wire transfer: Please make a bank Wire Transfer directly to our bank account using the following information:
Bank Of America.
Capitol-Berryessa Branch 1186.
2650 Berryessa Road
San Jose, CA 95132
Tel: 408-277-7748 |
| Beneficiary: |
Toyo Electronics Inc. |
| Beneficiary Account#: |
1186606715 |
| ABA#: |
121000358
(please mention this ABA# to avoid any delay) |
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| 5. CREDIT AND PAYMENT TERMS |
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| Purchaser shall furnish to Toyo Electronics all financial information reasonably requested by Toyo Electronics
from time to time for the purpose of establishing or continuing Purchaser's credit limit. Purchaser agrees that Toyo Electronics
shall have the right to decline to extend credit to Purchaser and to require that the applicable purchase price be paid prior to
shipment. Purchaser shall promptly notify Toyo Electronics of all changes to Purchaser's name, address, or of the sale of
substantially all of its assets. Toyo Electronics shall have the right from time to time, without notice, to change or revoke
Purchaser's credit limit on the basis of changes in Toyo Electronics' credit policies or Purchaser's financial condition and/or
payment record. Purchaser shall not deduct any amounts owing from any Toyo Electronics invoice without Toyo Electronics' express
written approval, which approval shall be contingent upon Purchaser providing all supporting documentation for such deduction as
required by Toyo Electronics. A service charge of the lesser of one and one-half percent (1.5%) per month or the maximum amount
allowed by law will be charged on all past due balances commencing on the date payment is due. No cash payments will be accepted.
Payment by money orders or travelers check will be allowed only if the money order or travelers check is made out in the exact
amount of the invoice; payment of one invoice through multiple money orders or travelers checks will not be permitted. Additional
restrictions regarding third-party payments apply to Purchasers located in Colombia, Panama, or Venezuela. Toyo Electronics
retains (and Purchaser grants to Toyo Electronics by submitting a purchase order) a security interest in the Products to secure
payment in full, and Purchaser agrees to execute any additional documents necessary to perfect such security interest. If Purchaser
fails to make timely payment of any amount invoiced hereunder, Toyo Electronics shall have the right, in addition to any and all
other rights and remedies available to Toyo Electronics at law or in equity, to immediately revoke any or all credit extended, to
delay or cancel future deliveries and/or to reduce or cancel any or all quantity discounts extended to Purchaser. Purchaser shall
pay all costs of collection including reasonable attorneys' fees. Any obligation of Toyo Electronics under these terms and
conditions to deliver Products on credit terms shall terminate without notice if Purchaser files a voluntary petition under a
bankruptcy statute, or makes an assignment for the benefit of creditors, or if an involuntary petition under a bankruptcy statute
is filed against Purchaser, or if a receiver or trustee is appointed to take possession of the assets of Purchaser. |
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| Purchaser shall bear applicable federal, state, municipal, and other government taxes (such as sales, use,
etc.). Unless otherwise specified, prices do not include such taxes. Exemption certificates, valid in the place of delivery, must
be presented to Toyo Electronics prior to shipment if they are to be honored. |
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| Product warranties, if any, are provided by the manufacturer or publisher of the Products. Toyo Electronics
makes no warranties whatsoever. Toyo Electronics' sole obligation (and Purchaser's sole remedy) in the event of breach of any
warranty shall be the repair or replacement of defective Products. IN NO EVENT SHALL TOYO ELECTRONICS BE LIABLE FOR ANY
CONSEQUENTIAL DAMAGES OR DAMAGES OF ANY KIND OR NATURE ALLEGED TO HAVE RESULTED FROM ANY BREACH OF WARRANTY. TOYO ELECTRONICS DOES
NOT WARRANT THE MERCHANTABILITY OF THE PRODUCTS OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE. TOYO ELECTRONICS MAKES NO WARRANTY,
EXPRESS OR IMPLIED, OTHER THAN THOSE SPECIFICALLY SET FORTH HEREIN. |
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| A. |
Requirements - Purchaser must obtain a valid Return Material Authorization ("RMA") number from Toyo Electronics for all returns.
RMAs will be issued, at Toyo Electronics' sole discretion, in accordance with these terms and conditions. Purchaser must provide
its account number and all other information as required by Toyo Electronics for all returns. RMAs are valid for twenty (20)
calendar days from the date of issuance. Purchaser must allow for in-transit time for Products to be returned to Toyo Electronics,
as Toyo Electronics must physically receive Products within the twenty (20) calendar days. RMAs will be issued for authorized
returns under one of the following categories: (i) defective Products, (ii) billing or shipping discrepancies, or (iii) damaged
Product. Purchaser is responsible for ensuring that the RMA number is clearly visible on the address label of the Product packaging
when it is returned to Toyo Electronics. Toyo Electronics will refuse delivery of any boxes without a valid, clearly visible RMA
number as noted above. Overgoods are unauthorized returns. Any Products received by Toyo Electronics (i) without a valid RMA number,
including Product shipments refused by Purchaser or Purchaser's customer except those damaged in transit from Toyo Electronics to
Purchaser or from Toyo Electronics to Purchaser's customer, (ii) later than twenty calendar (20) days from the RMA date, or (iii) in
a condition unsuitable for resale (excluding defective Products), will be considered Overgoods. Toyo Electronics will return
Overgoods to Purchaser or Purchaser's customer, and will charge Purchaser a $50 processing fee per shipment plus related freight
charges. If Purchaser refuses the shipment of Overgoods from Toyo Electronics or returns the Overgoods to Toyo Electronics a second
time without Toyo Electronics' prior authorization, Purchaser agrees to relinquish all right and title to and waives all claims
against Toyo Electronics for credit related to such Products. Notwithstanding anything to the contrary, Toyo Electronics reserves
the right not to authorize the return of Products that are no longer in production or are being produced or published by a
manufacturer or publisher that (i) is insolvent, (ii) has declared bankruptcy, or (iii) will not accept returns from Toyo
Electronics. |
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| B. |
Defective Product Returns - Defective returns are only for Products purchased from Toyo Electronics that are inoperable or do
not function in accordance with the specifications published by the manufacturer or publisher and are covered under the
manufacturer's or publisher's warranty. All defective returns are subject to more restrictive manufacturer or publisher policies.
Purchaser may request an RMA for the return of defective Products, excluding Special Order Products, within forty-five (45)
calendar days of invoice date. Purchaser's defective returns will be limited to a maximum of 15% of the value of Purchaser's
Product purchases within the same vendor code as the defective Product during the forty-five (45) calendar days prior to the RMA
date, less any prior defective returns during that period. Upon receipt of the defective Product for which the RMA was issued,
Toyo Electronics may test the Products and may return to Purchaser, at Purchaser's expense, any Products found not to be
defective. Upon verification that the returned Product is defective, Toyo Electronics may, at Toyo Electronics' sole discretion,
either (i) repair the defective Product, (ii) ship Purchaser a replacement Product, or (iii) provide Purchaser a credit equal to
the lesser of the Product's invoice price or current replacement value less any applicable charges or fees. Toyo Electronics
reserves the right to require Purchaser to return defective Products directly to the manufacturer or publisher for replacement
according to its defective Products return policy. Toyo Electronics shall not be obligated to repair, replace, or issue credit to
Purchaser for Products rendered defective, in whole or in part, by causes external to the Products, including, but not limited to,
catastrophe, power failure or transients, overvoltage on interface, environment extremes, improper use, maintenance or application
of the Products or use of unauthorized parts. Purchaser shall bear all risks of loss when returning defective Products. |
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| 9. BILLING AND SHIPPING DISCREPANCIES |
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| Billing and shipping discrepancies are for Products purchased from Toyo Electronics that were invoiced or
shipped incorrectly. These include lost shipments, short shipments, wrong sales, wrong shipments and pricing/invoice errors.
Purchaser may request an RMA for verified billing and shipping discrepancies within thirty (30) calendar days of invoice date. In
addition, Purchaser must notify Toyo Electronics of any billing discrepancies related to Purchaser's authorized returns within
ninety (90) calendar days of RMA date. Such notice shall be reasonably detailed and shall specify the discrepancy. Failure to give
such notice within the time specified herein shall be deemed a waiver of Purchaser's rights to claim such discrepancy. |
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| 10. PATENT AND TRADEMARK INDEMNITY |
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| TOYO ELECTRONICS SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY, OR HOLD HARMLESS PURCHASER FROM AND AGAINST ANY OR
ALL DAMAGES AND COST INCURRED BY PURCHASER ARISING FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR THE VIOLATION OF COPYRIGHTS BY
PRODUCTS. |
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| 11. LIMITATION OF LIABILITY |
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| TOYO ELECTRONICS SHALL NOT BE LIABLE TO PURCHASER, PURCHASER'S CUSTOMERS, OR ANY OTHER PARTY FOR ANY LOSS,
DAMAGE, OR INJURY THAT RESULTS FROM THE USE OR APPLICATION BY PURCHASER, PURCHASER'S CUSTOMER, OR ANY OTHER PARTY, OF PRODUCTS
DELIVERED TO PURCHASER, UNLESS THE LOSS OR DAMAGE RESULTS DIRECTLY FROM THE INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OR OMISSIONS
OF TOYO ELECTRONICS. IN NO EVENT SHALL TOYO ELECTRONICS BE LIABLE TO PURCHASER OR ANY OTHER PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY
KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, OR ANY AGREEMENT INTO WHICH THEY ARE INCORPORATED,
OR ANY PERFORMANCE OR NONPERFORMANCE UNDER THESE TERMS AND CONDITIONS BY TOYO ELECTRONICS, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS,
IN EXCESS OF THE NET PURCHASE PRICE OF THE PRODUCTS OR SERVICES ACTUALLY DELIVERED TO AND PAID FOR BY PURCHASER HEREUNDER. IN NO
EVENT SHALL TOYO ELECTRONICS BE LIABLE TO PURCHASER OR ANY OTHER PARTY FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING,
BUT NOT LIMITED TO LOSS OF GOOD WILL, LOSS OF ANTICIPATED PROFITS, OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN CONNECTION WITH TOYO
ELECTRONICS' BREACH OF, OR FAILURE TO PERFORM IN ACCORDANCE WITH ANY OF THESE TERMS AND CONDITIONS, OR THE FURNISHING, INSTALLATION,
SERVICING, USE OR PERFORMANCE OF ANY PRODUCTS OR INFORMATION TOYO ELECTRONICS SHALL PROVIDE HEREUNDER, EVEN IF NOTIFICATION HAS BEEN
GIVEN AS TO THE POSSIBILITY OF SUCH DAMAGES. PURCHASER HEREBY EXPRESSLY WAIVES ANY AND ALL CLAIMS FOR SUCH DAMAGES. IN NO EVENT
SHALL TOYO ELECTRONICS HAVE ANY LIABILITY FOR ANY PRODUCTS USED FOR AVIATION, MEDICAL, LIFESAVING, LIFE-SUSTAINING OR NUCLEAR
APPLICATIONS. |
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| 12. COMPLIANCE WITH U.S. EXPORT LAWS |
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| If Purchaser delivers the Products to its customer who may use the Products outside the United States,
Purchaser acknowledges and shall advise its customer that the Products are controlled for export by the U.S. Department of Commerce
and that the Products may require authorization prior to export from the United States or re-export. Purchaser agrees that it will
not export, re-export, or otherwise distribute Products, or direct products thereof, in violation of any export control laws or
regulations of the United States. Purchaser warrants that it will not export or re-export any Products with knowledge that they
will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons, or in a
facility engaged in such activities, unless Purchaser has obtained prior approval from the Department of Commerce. Purchaser
further warrants that it will not export or re-export, directly or indirectly, any Products to embargoed countries or sell Products
to companies or individuals listed on the Denied Persons List published by the Department of Commerce. |
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| 13. RELATIONSHIP OF THE PARTIES |
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| Purchaser's relationship with Toyo Electronics will be that of an independent contractor. Purchaser will not
have, and will not represent that it has, any power, right or authority to bind Toyo Electronics, or to assume or create any
obligation or responsibility, express, implied or by appearances, on behalf of Toyo Electronics or in Toyo Electronics' name,
except as herein expressly provided. Nothing stated in these terms and conditions will be construed as constituting Purchaser and
Toyo Electronics as partners or as creating the relationships of employer/employee, franchisor/franchisee, or principal/agent
between the parties. Purchaser will make no warranty, guarantee or representation, whether written or oral, on Toyo Electronics'
behalf. |
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| 14. MANUFACTURER, PUBLISHER, AND SUPPLIER RESTRICTIONS |
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| If authorization for resale is required by the manufacturer or publisher of any Product, then Toyo Electronics
will not be obligated to sell such Product to Purchaser unless Toyo Electronics has received notification of such authorization
from the manufacturer or publisher. All Products delivered to Purchaser hereunder may have additional restrictions on their use
required by the manufacturer or publisher. Purchaser is solely responsible for ensuring its adherence to any and all such
restrictions and requirements. If any supplier prohibits Toyo Electronics from selling specific Products to Purchaser, then Toyo
Electronics reserves the right not to sell such Products to Purchaser. |
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| 15. CHOICE OF LAW/CHOICE OF FORUM |
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| These terms and conditions (and any agreement into which they are incorporated) shall be construed,
interpreted and enforced under and in accordance with the internal laws of the State of California, excluding its conflicts or
choice of law rule or principles which might refer to the law of another jurisdiction. Purchaser agrees to exercise any right or
remedy in connection with these terms and conditions exclusively in, and hereby submits to the jurisdiction of the State of
California, Courts of Santa Clara County, California, or the United States District Court at Santa clara, California. The state and
federal courts situated in Santa Clara County, California will have non-exclusive jurisdiction and venue over any dispute or
controversy that arises out of these terms and conditions. The United Nations Convention on Contracts for the International Sale of
Goods shall not apply to these terms and conditions. |
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| All notices, requests, demands, and other communications that either party may desire to give the other party
must be in writing and may be given by (i) personal delivery to an officer of the party, (ii) mailing the same by registered or
certified mail, return receipt requested, or via nationally recognized courier services to the party at the address of such party as
set forth herein, at the official corporate address of such party, or such other address as the parties may hereinafter designate,
or (iii) facsimile subsequently to be confirmed in writing pursuant to item (ii) above. Notices to Toyo Electronics shall be sent
to: Toyo Electronics Inc., 2050 Ringwood Ave, San Jose, CA 95131. Attn: Legal Department. |
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| 17. BINDING EFFECT/ASSIGNMENT |
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| These terms and conditions shall be binding upon and shall inure to the benefit of the parties hereto and
their respective representatives, successors and permitted assigns. Neither party may assign its rights and/or duties under these
terms and conditions without the prior written consent of the other party given at the other party's sole option. Any such
attempted assignment shall be void. Notwithstanding the foregoing, Toyo Electronics may assign any purchase order received from
Purchaser to a subsidiary or affiliate upon notice to Purchaser. |
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| 18. PARTIAL INVALIDITY |
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| If any provision of these terms and conditions shall be held to be invalid, illegal or unenforceable, such
provision shall be enforced to the fullest extent permitted by applicable law and the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby. |
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| Failure or delay of Toyo Electronics to exercise a right or power under these terms and conditions shall not
operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise
thereof. |
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| The captions used herein are for reference purposes only and shall have no effect upon the construction or
interpretation of any provisions herein. |
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| These terms and conditions, as published on Toyo Electronics' Web site located at www.Toyosys.com at the time
of sale, are the official terms and conditions of sale between Toyo Electronics and Purchaser and may be amended from time to
time without notice at Toyo Electronics' sole discretion. |
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