IXIA Standard Terms of Purchase1. Agreement To Terms. Acceptance of the offer represented by this order is expressly limited to the terms of this purchase order. Any terms and conditions of Seller's acknowledgement or other document which is in any way inconsistent with or in addition to these terms shall not be binding on IXIA. Reference to Seller's bids or proposals if noted on Seller's acknowledgement of a Purchase Order or otherwise, shall not affect the terms and conditions hereof. Any of the following acts of Seller shall constitute acceptance of this order and all of its terms and conditions; signing and returning a copy of this order; delivery of any of the items ordered; informing IXIA in any manner of commencement of performance; or returning Seller's own form of acknowledgement. This Agreement supersedes any proposal, prior or contemporaneous agreement, oral or written, and other communications between IXIA and Seller relating to the subject matter of this Agreement. This agreement (including these terms and conditions) shall not be modified, amended or in any way altered except by an instrument in writing signed by an authorized representative of IXIA.
2. Prices, Delivery And Payment Terms. Seller shall furnish the Products ordered in accordance with terms specified in a Purchase Order submitted in accordance with the terms of the Agreement. Except as may be otherwise provided in a Purchase Order, prices include all applicable national, state and local taxes. Seller agrees to pay any taxes imposed by law upon or on account of the Products ordered hereunder. The payment terms stated on the Purchase Order shall be calculated from the date of IXIA's receipt of Products conforming to the Purchase Order or the date of a correct invoice, whichever occurs later.
3. Packing and Shipping. Seller will comply with IXIA's routing and shipping instructions specified in a Purchase Order. No charges for packing, crating, or insurance will be paid by IXIA unless such charges are separately stated in a Purchase Order. All Products shall be packaged, marked and otherwise prepared in accordance with good commercial practices to obtain lowest transportation rates. Each container or package must be marked with the Purchase Order number and must contain an itemized packing list also showing the Purchase Order number.
4. Delivery, Time and Rate of Deliveries Are of The Essence of This Order. Delivery shall not be deemed complete until the Products are received and subsequently accepted by IXIA, notwithstanding any agreement to pay freight or other transportation charges. The risk of loss of or damage to the products in the course of delivery shall be upon Seller. Whenever any delay (or any threatened delay) in delivery is foreseeable, Seller shall immediately notify IXIA of such delay, but no such notice shall adversely affect the rights of IXIA hereunder. If Seller shall be unable to deliver Products in accordance with the requested delivery date for such Products, IXIA, without limiting its other remedies, may direct expedited routing and any excess delivery costs incurred thereby shall be the liability and obligation of Seller. Seller shall not make material commitments or production arrangements in anticipation of IXIA's requirements except at Seller's own risk. Products which are delivered in advance of their requested delivery date schedule may, at IXIA's option, either (i) be returned at Seller's expense for proper delivery; (ii) have payment therefor delayed by IXIA until the date that Products are actually scheduled for delivery; or (iii) be held for Seller's account until the delivery date specified in the applicable Purchase Order.
5. Default. If (i) Seller fails to make any Product delivery or perform any services in accordance with the delivery date(s) specified in a Purchase Order, or if Seller otherwise fails to comply with a Purchase Order and does not remedy such failure within ten (10) days after Seller's receipt of written notice thereof, (ii) Seller breaches any term or condition of the Agreement or of these Terms and Conditions and such breach is not cured within ten (10) days after Seller's receipt of written notice thereof, or (iii) any proceeding is filed by or against Seller in bankruptcy, or for appointment of a receiver or trustee, Seller becomes insolvent or admits its inability to pay its debts as they become due, then IXIA may, without any liability to Seller, cancel all or any part of such Order by written notice to Seller and may purchase substitute items elsewhere and Seller shall be liable to IXIA for any excess cost occasioned IXIA thereby. If a Purchase Order is terminated as provided in this section, IXIA may require the Seller to transfer title and deliver to the IXIA (i) any completed Products, and (ii) such partially completed Products and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information and contract rights as Seller has specifically produced or specifically acquired for the performance of such part of the Purchase Order as has been terminated. The foregoing rights and remedies of IXIA shall not be exclusive and are in addition to any other rights and remedies IXIA may have as law or in equity.
6. Changes, Additions, Deletions. IXIA shall have the right by written notice to make changes to a Purchase Order as to packing, packaging, testing, specifications, quantities, designs, delivery schedules, place of delivery or any other phase of the work to be performed. If any such changes cause an increase or decrease in Seller's material costs or in the time required for performance of Seller's obligations under a Purchase Order, an equitable adjustment to the purchase price and/or costs appearing on an invoice may be made; provided, however, that Seller must advise IXIA in writing of any proposed adjustment within ten (10) days from the date Seller receives notice of the change(s) and said adjustment shall be subject to the prior approval of IXIA in writing. Seller shall not be obligated to make any changes to a Purchase Order requested by IXIA unless IXIA approves any corresponding adjustment to the purchase price and/or costs. Seller shall not substitute other materials or revise specifications for those specified in a Purchase Order without the prior written consent of IXIA. Changes made by Seller without IXIA's authorized written consent shall be made at the sole risk of Seller with no right of financial or other recourse against IXIA.
7. Termination for Convenience. IXIA may cancel at any time for its convenience all or any part of a Purchase Order by written notice to Seller. If Seller receives notice of such cancellation at least 30 days prior to the scheduled delivery date, then IXIA shall not be liable for any cancellation fee or other penalty. If IXIA cancels all or part of a Purchase Order written 30 days prior to the requested delivery date, IXIA shall be liable for reasonable cancellation charges based on direct damages suffered by Seller thereby with respect to work in process at time of notification. Seller must notify IXIA in writing of the amount and basis of such damages within ten (10) days after notice and offer IXIA reasonable opportunity to verify such calculations. No cancellation charges or other damages will be payable for Purchase Orders canceled hereunder which are past due delivery, unless IXIA has agreed in writing to accept late delivery, or for work in process which exceeds quantities necessary to effect delivery within normal lead times for such goods. Seller shall take all reasonable steps to mitigate its damages. In no event will IXIA be liable for special, indirect, incidental or consequential damages or lost profits on account of a cancellation of all or any part of a Purchase Order nor for any damages in excess of the purchase price for the Products canceled. Seller agrees that the foregoing shall be its exclusive remedy for a cancellation of a Purchase Order under this section 7.
8. Inspection. All Products ordered are subject to in-process inspection by IXIA or its designees at any place where work thereon is being performed. Seller agrees to provide, and to require its vendors to provide, all reasonable facilities and assistance for such inspection. Notwithstanding any such preliminary or "in-process" inspection, or any F.O.B. point specified, all Products are subject to final inspection at the "ship to" point specified in a Purchase Order and will not be deemed accepted by IXIA until so inspected (whether or not payment therefor has been made). Acceptance will be made at time of final inspection and will be conclusive except as with regard to latent defects, breach of any warranties, fraud or such gross mistakes as amount to fraud. IXIA may, at its sole discretion, deal with nonconforming Products as follows: return nonconforming Products to Seller at Seller's expense; hold nonconforming Products, at Seller's expense, subject to Seller's disposition instructions; or accept such nonconforming Products at an equitable reduction in price. Seller shall refund any payments made for Products not accepted immediately upon receipt of notice thereof. If nonconforming Products are rejected by IXIA and Seller does not, or advises IXIA that it cannot, replace such nonconforming Products with conforming Products in accordance with the delivery schedule specified in such Purchase Order, IXIA may cancel such Purchase Order without any liability to Seller and Seller shall provide return authorization numbers to enable IXIA to return the rejected Products.
9. Warranty. In addition to any other express or implied warranties, Seller warrants for a period of one year following IXIA's acceptance of Products that only new materials have been used in Products delivered under a Purchase Order and that such Products will be (i) free from defects in materials and workmanship, (ii) free from defects in design, except to the extent that such Products are manufactured in accordance with detailed designs furnished by IXIA, and (iii) in conformity with all applicable drawings, specifications, samples or other requirements. All rights under this warranty shall survive acceptance and shall inure to the benefit of and be enforceable by IXIA and/or its customers. Upon a breach by Seller of any warranty hereunder, Seller shall, at the election of IXIA, (i) refund the purchase price of the defective Products or services (in which case, IXIA shall whenever feasible, request and follow reasonable instructions from Seller to dispose of same at Seller's expense) plus any transportation or other costs and expenses incurred by IXIA as a result of the breach, (ii) replace or repair such defective Products and pay any transportation charges or other costs and expenses incurred by IXIA as a result of the breach. The foregoing remedies shall be in addition to all other remedies that IXIA may be entitled to at law or in equity. Failure by Seller to repair or replace a defective Product within a reasonable time after request to do so by IXIA shall be considered a default and IXIA shall be entitled to purchase substitute items in which case Seller shall be liable for any excess cost occasioned IXIA thereby.
10. Patents and Copyrights. Seller warrants that the Products and any parts thereof furnished under a Purchase Order do not infringe any U.S. or foreign patent, copyright, trade secrets and other intellectual property rights (collectively "intellectual property rights") of any third party, and Seller agrees to defend at its own expense any claim or suit against IXIA and to pay all awards or damages arising out of such suits or claims respecting infringement of any such intellectual property rights provided IXIA notifies Seller of any claim or suit for such infringement and grants Seller sole control of the defense of such claim. IXIA shall have the right to be represented in such action by its own counsel at its own expense. The foregoing does not apply to the extent such infringement is based on a claim that a detailed design provided by IXIA infringes the intellectual property rights of a third party. If any Product or part thereof is held to constitute an infringement and the use thereof enjoined, Seller shall, at its own expense, either procure for IXIA the right to continue using the Product or any part thereof, modify the Product so that it becomes noninfringing without adversely affecting such Product's functionality or performance, or refund to IXIA the purchase price paid for the Product and accept its return.
11. Drawings and Data. Seller shall keep confidential all information, drawings, specifications, data and documents furnished by IXIA and marked confidential or proprietary and all copies or partial copies thereof, and shall not divulge or use such information, drawings, specifications or data for the benefit of any person or entity other than IXIA. Except as required for the efficient performance of a Purchase Order, Seller shall not make copies or permit copies to be made without the prior written consent of IXIA. Seller shall thereafter make no further use, either directly or indirectly, of any such data or any information derived therefrom without obtaining IXIA's prior written consent. Seller shall promptly, upon IXIA's request, return all such confidential or proprietary items.
12. Liability for Injury. Seller shall indemnify, defend and hold harmless IXIA against all loss and liability for personal injury and property damage caused directly or indirectly by Products furnished or services performed by Seller pursuant to a Purchase Order, whether occurring on the premises of Seller or IXIA or elsewhere. Seller shall carry and maintain insurance coverage satisfactory to IXIA to cover the above and upon request shall furnish appropriate evidence of such insurance.
13. Tooling. Unless otherwise specified in a Purchase Order, all tooling and/or all other articles required for the performance thereof shall be replaced or repaired when necessary at Seller's expense. If IXIA agrees to pay Seller for special tooling and/or other such articles either separately or as a stated part of the unit price of Products purchased herein, title to same shall pass to IXIA upon payment therefor.
14. Advertising. Without the prior written consent of IXIA, Seller shall neither disclose to any person outside of its employ, nor use for purposes other than performance of a Purchase Order, any information pertaining to IXIA or IXIA's affairs (including all drawings, blueprints, descriptions, specifications and the contents of a Purchase Order) and upon termination of the Agreement will return to IXIA all such items which embody any such information. Without the prior written consent of IXIA, Seller shall not in any manner disclose, advertise or publish the fact that Seller has furnished or contracted to furnish IXIA any products or services.
15. Subcontracting. Seller agrees to obtain IXIA's prior written consent before subcontracting all or a portion of a Purchase Order; provided, however, this limitation shall not apply to the purchase of standard commercial supplies or raw materials.
16. Compliance with Laws. Seller warrants that in connection with its performance of its work under the Agreement and all Purchase Orders issued pursuant thereto, it shall fully comply in all respects with all applicable Federal, state and local laws and all orders, rules and regulations thereunder.
17. Force Majeure. Neither party shall be liable for failure to perform its obligations under the Agreement or any Purchase Order issued thereunder to the extent such failure results from any act of God, war, fire, earthquake, labor dispute, accident, commotion, epidemic, act of government or any cause beyond such party's reasonable control.
18. General Provisions. This Agreement shall be construed and enforced in accordance with the laws of the State of California which are applicable to the construction and enforcement of contracts between parties resident in California and which are entered into and fully performed in California. If either party brings an action against the other party to enforce its rights under this Agreement, the prevailing party shall be entitled to recover its costs and expenses, including, without limitation, attorneys' fees and costs incurred in connection with such action, including any appeal of such action. With respect to all disputes arising out of or related to this Agreement or the transactions contemplated hereunder, the parties hereby submit to the in personam jurisdiction of the state and Federal courts in the county of Los Angeles, California.
Seller shall not assign this Agreement or any interest herein or right hereunder without the prior written consent of IXIA. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of each party as permitted herein.
No waiver of any provision of the Agreement or these Terms and Conditions shall be effective unless made in writing and signed by an authorized representative of IXIA. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any subsequent breach of the same or any other provision of the Agreement or these Terms and Conditions. In the event that any provision hereof is found invalid or unenforceable pursuant to a judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms. The Agreement (including these Terms and Conditions) constitutes the entire agreement between IXIA and Seller and supersedes all prior or contemporaneous agreements and understandings between IXIA and Seller relating to the subject matter hereof, and no modification of the Agreement shall be binding on either of the parties unless it is in writing and signed by both parties.
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