Terms and conditions for excess inventory sales
1. Scope
These terms and conditions (“Terms”) shall apply to those items sold Vicor Corporation (“Vicor”) which are designated as excess inventory products (the “Products”). By submitting your online order to Vicor, you (the buyer indicated on the order submission form and the company or other entity on whose behalf the purchase is made) (“You” or the “Buyer”), hereby accept these Terms. In the event that you do not agree with these Terms, do not submit your online order to Vicor. Upon Vicor’s acceptance of your order these Terms along with your completed online order form shall become a binding, bilateral contract between you and Vicor (the “Sales Agreement”). No party has been authorized by Vicor to make any statement or representation as to the sale of Products inconsistent with these Terms, and no such statements, if made, will be binding upon Vicor.
The Sales Agreement shall not fail as a contract due to the presence of conflicting terms and conditions of purchase of the Buyer set forth in Buyer’s Purchase Order (if any), as any and all such terms and conditions, including but not limited to provisions of purchase accompanying a Purchase Order, are hereby rejected and shall be of no effect. In the event of any conflict between these Terms and terms and conditions of purchase of the Buyer, these Terms shall prevail.
2. Prices; taxes and related costs
All prices for Goods are invoiced and payable in U.S. Dollars. Prices do not include applicable taxes (federal, state, municipal, or other government sales, use, excise, VAT or similar transactional taxes) or import costs (tariffs, duties, customs charges, or similar fees), the payment of which shall be the sole responsibility of Buyer, regardless of whether Buyer is invoiced by Vicor for such taxes or import costs. Vicor’s invoice will set forth the amounts of any such taxes, import costs, or related charges required to be collected from Buyer upon sale or delivery of the Goods as reimbursement to Vicor for payment of such charges on behalf of Buyer. Buyer, at its own expense, shall be responsible for delivery of a certificate of exemption (or similar document) required to exempt the sale or importation of Goods from any taxes, import costs, or other charges.
3. Shipment; Carriage
These Terms, together with Buyer’s Purchase Order (inclusive of all specifications, drawings, and data submitted to Vicor with such Purchase Order) and Vicor’s SOA (inclusive of a SOW for Services, if any), shall constitute the complete and final Sales Agreement between Vicor and Buyer, superseding completely any prior oral or written communications. In the event a modification of the Sales Agreement is required due to subsequent changes in circumstance, the specific changes to these Terms or the provisions related to quantities, specifications, shipping arrangements, or other related variables shall be memorialized in the form of a letter agreement representing an amendment to a referenced SOA and attached thereto; provided, however, such letter agreement shall be effective and binding upon Vicor only if it is signed by an authorized Vicor representative.
4. Title to products; Risk of loss
Title to the Products and all risk of loss to those Products pass to Buyer at the point of EXW shipment from Vicor's facility, whether freight prepaid or freight collect to destination, regardless of whether Buyer elects to choose a carrier. Buyer may obtain insurance to cover the Products from the time title has passed from Vicor to Buyer. Risk of loss for damage or delay in transit shall be born solely by Buyer. Buyer shall file and pursue any claims directly with the carrier related to loss, damage, or delay in transit, and Buyer shall not assert such claims against Vicor or deduct from amounts owed to Vicor. Buyer shall indemnify and hold harmless Vicor from and against any claims, damages, or liabilities suffered by Vicor resulting from any acts or omissions of carrier.
In the event Buyer refuses to accept delivery of any Products, such Products will be held by Vicor awaiting Buyer’s instructions for 15 days, after which Vicor may deem the shipment as abandoned and dispose of the Products as it sees fit, without crediting Buyer’s for amounts paid.
5. Force majeure
Vicor will not be liable for any loss or damage of Buyer resulting from any delay in delivery or failure to give notice of delay when such delay is due to any cause or event beyond Vicor’s control, including, without limitation, acts of nature, extreme weather, strikes or labor difficulties, delays in transportation, delays in delivery or defaults by Vicor’s vendors, governmental actions and prohibitions. Buyer shall not be entitled to refuse delivery or otherwise be relieved of any obligations hereunder as a result of the force majeure delay.
6. Delays and cancellation
Buyer is not entitled to delay or cancel all or any part of a shipment of Products under a Sales Agreement. In the event of a breach of the Sales Agreement by Buyer, Vicor may cancel the Sales Agreement upon 10 days prior written notice to Buyer of such cancellation. Vicor may postpone a delivery date or cancel a transaction in the event Buyer has not met its payment obligations under these Terms or if there is an error regarding product availability or pricing or to comply with applicable laws.
7. Warranties; Disclaimer of warranties
THE PRODUCTS AND ANY ACCOMPANYING MATERIALS AND DOCUMENTATION ARE PROVIDED “AS IS” AND WITH ALL FAULTS. THE PRODUCTS ARE NOT COVERED BY VICOR’S STANDARD PRODUCT WARRANTY AND VICOR HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER SURVIVES THE TERMINATION OF THE SALES AGREEMENT OR THE CANCELLATION OF ANY SHIPMENTS THEREUNDER.
8. Limitations of liability
IN NO EVENT IS VICOR RESPONSIBLE TO BUYER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ALL DIRECT AND INDIRECT LOSSES (INCLUDING LOST PROFITS AND ANY OTHER FORM OF ECONOMIC LOSS) ASSOCIATED WITH THE SALE OF GOODS, REGARDLESS OF WHETHER THOSE DAMAGES WERE FORESEEABLE. THE LIABILITY OF VICOR ARISING OUT OF OR RELATING TO SALE OF GOODS SHALL BE LIMITED TO THE ACTUAL AMOUNTS PAID BY BUYER TO VICOR FOR THE PRODUCTS OR SERVICES, RESPECTIVELY, GIVING RISE TO SUCH DAMAGES.
9. Applicable law
This Sales Agreement shall be governed by and any disputes between Vicor and Buyer, whether arising from or relating to this Sales Agreement or arising from alleged extra-contractual facts, shall be resolved under the laws of the Commonwealth of Massachusetts, excluding its principles of conflicts of laws. The parties agree that the United Nations Convention on Contracts for the Sale of Goods shall not apply to the Sales Agreement. You hereby consent to the exclusive jurisdiction of the state and federal courts located in Suffolk County, Massachusetts.
10. Ownership
All rights, title and interest in the intellectual property embodied in the Product and accompanying materials are owned by Vicor and may be protected by copyright, trademark, patent or trade secret laws. Any rights, express or implied, in such intellectual property are reserved by Vicor.
11. Export restrictions
The Products are subject to applicable export regulation of the United States, including, without limitation, the U.S. Export Administration Regulations. You agree to comply with such laws and regulations as well as other applicable import/export laws or regulations.
12. Miscellaneous
This Sales Agreement constitutes the full and complete understanding of the parties on this subject matter and supersedes all prior agreements or understandings. If any provision of the Sales Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be interpreted and changed so as to best accomplish the objectives of this original provision to the fullest extent allowed by law and the remaining provisions shall remain in full force and effect. No modification, amendment or waiver of the Sales Agreement shall be effective except by written agreement signed by an officer of Vicor. No failure or delay in exercising any right, power, or remedy hereunder shall operate as a waiver of such right, power or remedy.
4/27/2018