Mo-Sys USA Sales Terms and Conditions

1 DEFINITIONS AND INTERPRETATION
The following denitions and rules of interpretation apply in
these Conditions.
1.1.1 "Business Day" means a day other than a Saturday,
Sunday or public holiday in the United States of America.
1.1.2 "Conditions" means these terms and conditions as
amended from time to time in accordance with clause 19.7.
1.1.3 "Contract" means the contract between Mo-Sys USA
Inc. and the Customer for the supply of Goods and/or
Services in accordance with these Conditions.
1.1.4 "Customer" means the business which purchases the
Goods and/or Services from Mo-Sys USA Inc..
1.1.5 "Force Majeure Event" has the meaning given to it in
clause 17.
1.1.6 "Goods" means the goods (or any part of them) set out
in the Order.
1.1.7 “Goods Specication” means a specication provided
by the Customer to Mo-Sys USA Inc..
1.1.8 "Intellectual Property Rights" means patents, rights
to inventions, copyright and related rights, moral rights,
trade marks and service marks, business names and domain
names, rights in get-up, goodwill and the right to sue for
passing o, rights in designs, database rights, rights to use,
and protect the condentiality of, condential information
(including know-how and trade secrets), and all other
intellectual property rights, in each case whether registered
or unregistered and including all applications and rights to
apply for and be granted, renewals or extensions of, and
rights to claim priority from, such rights and all similar or
equivalent rights or forms of protection which subsist or will
subsist now or in the future in any part of the world.
1.1.9 "Mo-Sys USA Inc." means Mo-Sys USA Inc., registered
in the United States of America with company number
C4699143, whose registered address is c/o LH Frishko & Co,
546 Fifth Avenue, 9th Floor New York. New York, 10036,
United States of America.
1.1.10 "Order" means the Customer's order for the supply of
Goods and or Services, as set out in the Customer's written
acceptance of Mo-Sys USA Inc. quotation.
1.1.11 "Services" means the services supplied by Mo-Sys
USA Inc. to the Customer as set out in the Order.
2 BASIS OF CONTRACT
2.1 The Order constitutes an oer by the Customer to
purchase Goods and/or Services in accordance with these
Conditions.
2.2 The Order shall only be deemed to be accepted when
Mo-Sys USA Inc. issues written acceptance of the Order at
which point, and on which date the Contract shall come into
existence (the “Commencement Date”).
2.3 Any samples, drawings, descriptive matter or advertising
issued by Mo-Sys USA Inc. and any descriptions of the Goods
or illustrations or descriptions of the Services contained in
Mo-Sys USA Inc.'s marketing materials are issued or
published for the sole purpose of giving an approximate idea
of the Services and/or Goods described in them. They shall
not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of
any other terms that the Customer seeks to impose or
incorporate, or which are implied by trade, custom, practice
or course of dealing.
2.5 Any quotation given by Mo-Sys USA Inc. shall not
constitute an oer and is only valid for a period of 30
Business Days from its date of issue.
2.6 All of these Conditions shall apply to the supply of both
Goods and Services except where application to one or the
other is specied.
2.7 Our terms and conditions are our fundamental terms of
business. By accepting our quotation and raising a purchase
order you agree to our terms and conditions without
exception. Our terms and conditions supersede and take
precedence over any other terms and conditions.
3 GOODS
3.1 To the extent that the Goods are to be manufactured in
accordance with a Goods Specication in relation to a
bespoke project requested by the Customer, the Customer
shall indemnify Mo-Sys USA Inc. against all liabilities, costs,
expenses, damages and losses (including any direct, indirect
or consequential losses, loss of prot, loss of reputation and
all interest, penalties and legal costs (calculated on a full
indemnity basis) and all other professional costs and
expenses) suered or incurred by Mo-Sys USA Inc. arising out
of or in connection with any claim made against Mo-Sys USA
Inc. for actual or alleged infringement of a third party's
Intellectual Property rights arising out of or in connection
with Mo-Sys USA Inc.'s use of the Goods Specication. This
clause 3.1 shall survive termination of the Contract.
3.2 Mo-Sys USA Inc. reserves the right to amend the Goods
Specication if required by any applicable statutory or
regulatory requirement, and Mo-Sys USA Inc. shall notify the
Customer in any such event.
4 DELIVERY OF GOODS
4.1 All goods shall be shipped on EX-WORKS terms from MoSys Engineering Ltd.’s London address of Thames Bank House,
Tunnel Avenue, SE10 0PA, London, United Kingdom. Mo-Sys
USA Inc. shall arrange for delivery of the Goods to the location
set out in the Order or such other location as the parties may
agree (the "Delivery Location") at any time after Mo-Sys USA
Inc. notifies the Customer that the Goods are ready.
4.2 (not used in this Contract).
4.3 Any dates quoted for delivery of the Goods are
approximate only, and the time of delivery is not of the
essence. The standard delivery time is 8 weeks from the
deposit being received in cleared funds. An estimated delivery
date shall be provided once a 50% deposit (subject to clause
11) has been received from the Customer (in cleared funds)
unless agreed otherwise in writing in the Order.
4.4 Mo-Sys USA Inc. shall not be liable for any delay in
delivery of the Goods that is caused by a Force Majeure Event
or the Customer's failure to provide Mo-Sys USA Inc. with
adequate delivery instructions or any other instructions that
are relevant to the supply of the Goods.
4.5 If Mo-Sys USA Inc. fails to deliver the Goods, its liability
shall be limited to the costs and expenses incurred by the
Customer in obtaining replacement goods of similar
description and quality in the cheapest market available, less
the price of the Goods. Mo-Sys USA Inc. shall have no liability
for any failure to deliver the Goods to the extent that such
failure is caused by a Force Majeure Event or the Customer's
failure to provide Mo-Sys USA Inc. with adequate delivery
Mo-Sys USA Inc.
instructions for the Goods or any relevant instruction related
to the supply of the Goods.
4.6 If the Customer fails to take delivery of the Goods within
three Business Days of Mo-Sys USA Inc. notifying the
Customer that the Goods are ready, then except where such
failure or delay is caused by a Force Majeure Event or by MoSys USA Inc.'s failure to comply with its obligations under the
Contract in respect of the Goods:
4.6.1 delivery of the Goods shall be deemed to have been
completed at 9.00 am on the third Business Day following the
day on which Mo-Sys USA Inc. notied the Customer that the
Goods were ready; and
4.6.2 Mo-Sys USA Inc. shall store the Goods until delivery
takes place and charge the Customer for all related costs and
expenses (including insurance).
4.7 If ten Business Days after the day on which Mo-Sys USA Inc.
notified the Customer that the Goods were ready for delivery
the Customer has not taken delivery of them, Mo-Sys USA Inc.
may resell or otherwise dispose of part or all of the Goods and,
after deducting reasonable storage and selling costs, charge the
Customer for any shortfall below the price of the Goods.
4.8 Mo-Sys USA Inc. may deliver the Goods by instalments,
which shall be invoiced and paid for separately. Each
instalment shall constitute a separate contract. Any delay in
delivery or defect in an instalment shall not entitle the
Customer to cancel any other instalment.
5 QUALITY OF GOODS
5.1 Mo-Sys USA Inc. warrants that on delivery, and for a
period of 12 months from the date of delivery ("warranty
period"), the Goods shall:
5.1.1 be free from material defects in design, material and
workmanship; and
5.1.2 be of satisfactory quality for standard professional use
5.2 Subject to clause 5.3, Mo-Sys USA Inc. shall, at its option and
its sole discretion, repair or replace the defective Goods, if:
5.2.1 the faults with the Goods cannot be resolved remotely
by initially contacting Mo-Sys USA Inc. support at
support@mo-sys.com;
5.2.2 the Customer gives notice in writing during the
warranty period within a reasonable time of discovery that
some or all of the Goods do not comply with the warranty set
out in clause 5.1; and
5.2.3 Mo-Sys USA Inc. is given a reasonable opportunity of
examining such Goods.
5.3 Mo-Sys USA Inc. shall not be liable for the Goods' failure
to comply with the warranty in clause 5.1 if:
5.3.1 the Customer makes any further use of such Goods
after giving a notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow
Mo-Sys USA Inc.'s oral or written instructions as to the storage,
installation, commissioning, use or maintenance of the Goods
or (if there are none) good trade practice;
5.3.3 the Customer alters or repairs such Goods without the
written consent of Mo-Sys USA Inc.;
5.3.4 the defect arises as a result of fair wear and tear, wilful
damage, negligence, or abnormal working conditions; or
5.3.5 the Goods dier from their description as a result of
changes made to ensure they comply with applicable
statutory or regulatory standards.
5.4 Except as provided in this clause 5, Mo-Sys USA Inc. shall
have no liability to the Customer in respect of the Goods' failure
to comply with the warranty set out in clause 5.1.
5.5 The Customer shall obtain the Mo-Sys USA Inc. RMA form
and complete and return it to Mo-Sys USA Inc. prior to the
return of any Goods. The Customer shall contact admin@mosys.com to obtain the form.
5.6 Shipping costs associated with the return of repaired
Goods to Mo-Sys USA Inc. shall be covered by the warranty. If
the Goods are no longer covered by the warranty set out in
clause 5.1, the shipping costs to send the Goods to Mo-Sys
USA Inc. shall be sole the responsibility of the Customer and
the shipping costs for the return to the Customer after repair
shall be charged to the Customer and appear in the
proforma invoice associated with the repair.
5.7 The warranty shall be extended to two years on the
condition that the end user agrees to be included in the MoSys USA Inc. client database within one month from the date
of purchase. The end user shall contact info@mo-sys.com to
express their interest in the extended warranty. The end user
shall receive Mo-Sys USA Inc. marketing material once joining
the Mo-Sys USA Inc. client database and shall be free to opt
out of such material at any time by following the instructions
on said material.
6 TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on
completion of delivery. Title to the Goods:
6.1.1 shall not pass to the Customer until Mo-Sys USA Inc.
receives payment in full (cleared funds) for the Goods that
have been purchased; and
6.1.2 shall not pass to the Customer where the Customer is
renting the Goods.
6.2 Until title to the Goods has passed to the Customer, the
Customer shall:
6.2.1 store the Goods separately from all other goods held by
the Customer so that they remain readily identiable as MoSys USA Inc.'s property;
6.2.2 not remove, deface or obscure any identifying mark or
packaging on or relating to the Goods;
6.2.3 maintain the Goods in satisfactory condition and keep
them insured against all risks for their full price on Mo-Sys
USA Inc.'s behalf from the date of delivery;
6.2.4 notify Mo-Sys USA Inc. immediately if it becomes
subject to any of the events listed in clause 15.1.3 to clause
15.1.5; and
6.2.5 give Mo-Sys USA Inc. such information relating to the
Goods as Mo-Sys USA Inc. may require from time to time.
7 SUPPLY OF SERVICES
7.1 Mo-Sys USA Inc. shall supply the Services to the Customer
in accordance with the quotation in all material respects.
7.2 The parties shall enter into a separate Service Agreement
in relation to any support Services to be provided.
8 RENTAL
8.1 If the Order stipulates that Mo-Sys USA Inc. has agreed to
rent the Goods, delivery of the Goods shall be made by MoSys USA Inc., exclusive of delivery costs, which will be subject
to a separate quotation.
8.2 Mo-Sys USA Inc. shall use all reasonable endeavours to
deliver the Goods by the date and time agreed between the
parties in the Order.
8.3 The Goods shall at all times remain the property of Mo-Sys
USA Inc., and the Customer shall have no right, title or interest
in or to the Goods (save the right to possession and use of the
Goods subject to these Conditions).
8.4 The risk of loss, theft, damage or destruction of the
Goods shall pass to the Customer on completion of delivery.
The Goods shall remain at the sole risk of the Customer
during the rental period and any further term during which
the Goods is in the possession, custody or control of the
Customer until such time as the Goods is redelivered to MoSys USA Inc..
TERMS & CONDITIONS OF SALE - GOODS & SERVICES PAGE 2
8.5 If the Customer rents any Goods it shall:
8.5.1 ensure that the Goods are kept and operated in a suitable
environment, used only for the purposes for which it is designed,
and operated in a proper manner by trained competent staff in
accordance with any operating instructions;
8.5.2 take such steps as may be necessary to ensure, so far
as is reasonably practicable, that the Goods are at all times
safe and without risk to health when it is being set, used,
cleaned or maintained by a person at work;
8.5.3 maintain at its own expense the Goods, in good and
substantial repair in order to keep it in as good an operating
condition as it was on the Commencement Date (fair wear and
tear only excepted) including replacement of worn, damaged
and lost parts, and shall make good any damage to the Goods;
8.5.4 make no alteration to the Goods and shall not remove
any existing component(s) from the Goods;
8.5.5 keep Mo-Sys USA Inc. fully informed of all material
matters relating to the Goods;
8.5.6 permit Mo-Sys USA Inc. or its duly authorised
representative to inspect the Goods at all reasonable times
and for such purpose to enter upon any premises at which
the Goods may be located, and shall grant reasonable access
and facilities for such inspection;
8.5.7 not, without the prior written consent of Mo-Sys USA
Inc., part with control of (including for the purposes of repair
or maintenance), sell or oer for sale, underlet or lend the
Goods or allow the creation of any mortgage, charge, lien or
other security interest in respect of it;
8.5.8 not do or permit to be done any act or thing which will
or may jeopardise the right, title and/or interest of Mo-Sys
USA Inc. in the Goods and, where the Goods has become
axed to any land or building, the Customer must take all
necessary steps to ensure that Mo-Sys USA Inc. may enter
such land or building and recover the Goods both during the
term of this agreement and for a reasonable period
thereafter, including by procuring from any person having an
interest in such land or building, a waiver in writing and in
favour of Mo-Sys USA Inc. of any rights such person may
have or acquire in the Goods and a right for Mo-Sys USA Inc.
to enter onto such land or building to remove the Goods;
8.5.9 not suffer or permit the Goods to be confiscated, seized
or taken out of its possession or control under any distress,
execution or other legal process, but if the Goods is so
confiscated, seized or taken, the Customer shall notify Mo-Sys
USA Inc. and the Customer shall at its sole expense use its best
endeavours to procure an immediate release of the Goods
and shall indemnify Mo-Sys USA Inc. on demand against all
losses, costs, charges, damages and expenses incurred as a
result of such confiscation;
8.5.10 not use the Goods for any unlawful purpose;
8.5.11 ensure that at all times the Goods remain identifiable as being
Mo-Sys USA Inc.'s property and wherever possible shall ensure that
a visible sign to that effect is attached to the Goods; and
8.5.12 deliver the Goods at the end of the Rental Period or on
earlier termination of this Contract at such address as Mo-Sys
USA Inc. requires, or if necessary, allow Mo-Sys USA Inc. or its
representatives access to any premises where the Goods is
located for the purpose of removing the Goods.
8.5.13 The Customer acknowledges that Mo-Sys USA Inc. shall
not be responsible for any loss of or damage to the Goods
arising out of or in connection with any negligence, misuse,
mishandling of the Goods or otherwise caused by the
Customer or its officers, employees, agents and contractors,
and the Customer undertakes to indemnify Mo-Sys USA Inc.
on demand against the same, and against all losses, liabilities,
claims, damages, costs or expenses of whatever nature
otherwise arising out of or in connection with any failure by
the Customer to comply with the terms of these Conditions.
9 DEMO SYSTEMS
9.1 If the equipment is for demonstration or any other
temporary purpose. It shall not become the property of the
customer, the customer shall not sell, or otherwise part with
possession of the equipment.
9.2 The Customer shall be solely responsible for any loss or
damage to the equipment during the loan/demo period until
the equipment is returned to Mo-Sys USA Inc.
9.3 Failure to return the equipment in its original packaging, in
good working order, on the agreed return date shall constitute
as the customers agreement to purchase the equipment at
the value in the related invoice.
9.4 Mo-Sys USA Inc. shall reserve the right to recall any demo
unit with a 1-week notice period, if there has been no
signicant interest generated within a 3-month period.
9.5 Any extensions made to the demo rental period, shall be
agreed in writing by both parties.
10 CUSTOMER'S OBLIGATIONS
10.1 The Customer shall:
10.1.1 ensure that the terms of the Order are complete and
accurate;
10.1.2 co-operate with Mo-Sys USA Inc. in all matters relating
to the Services;
10.1.3 provide Mo-Sys USA Inc., its employees, agents,
consultants and subcontractors, with access to the
Customer's premises, oce accommodation and other
facilities as reasonably required by Mo-Sys USA Inc. to
provide the Services and deliver the Goods;
10.1.4 provide Mo-Sys USA Inc. with such information and
materials as Mo-Sys USA Inc. may reasonably require in order to
supply the Goods and/or Services, and ensure that such
information is complete and accurate in all material respects; and
10.1.5 obtain and maintain all necessary licences, permissions
and consents which may be required for the Services before
the date on which the Services are to start.
10.2 If Mo-Sys USA Inc.'s performance of any of its obligations
under the Contract is prevented or delayed by any act or
omission by the Customer or failure by the Customer to
perform any relevant obligation ("Customer Default"):
10.2.1 without limiting or aecting any other right or remedy
available to it, Mo-Sys USA Inc. shall have the right to
suspend performance of the Services until the Customer
remedies the Customer Default, and to rely on the Customer
Default to relieve it from the performance of any of its
obligations in each case to the extent the Customer Default
prevents or delays Mo-Sys USA Inc.'s performance of any of
its obligations;
10.2.2 Mo-Sys USA Inc. shall not be liable for any costs or losses
sustained or incurred by the Customer arising directly or indirectly
from Mo-Sys USA Inc.'s failure or delay to perform any of its
obligations as set out in this clause 10.2; and 10.2.3 the
Customer shall reimburse Mo-Sys USA Inc. on written demand for
any costs or losses sustained or incurred by Mo-Sys USA Inc.
arising directly or indirectly from the Customer Default.
11 CHARGES AND PAYMENT
11.1 The price for Goods and/or Services:
11.1.1 shall be the price set out in the Order; and
11.1.2 shall be exclusive of all import duties and taxes which
may be payable.
TERMS & CONDITIONS OF SALE - GOODS & SERVICES PAGE 3
11.2 Full payment shall be made at the stage of the Order for
custom development goods designed in accordance with a
Good Specication.
11.3 Full payment shall be made at the stage of order for
Goods with a value of £4,500.00 or less.
11.4 Mo-Sys USA Inc. shall charge the Customer for any
expenses reasonably incurred by the individuals whom MoSys USA Inc. engages in connection with the Services
including travelling expenses, accommodation, hotel costs,
subsistence and any associated expenses, and for the cost of
services provided by third parties and required by Mo-Sys
USA Inc. for the performance of the Services, and for the cost
of any materials. Mo-Sys USA Inc. shall invoice the Customer
in relation to such costs upon completion of the Services.
11.5 Mo-Sys USA Inc. reserves the right to:
11.5.1 increase the price of the Goods, by giving notice to the
Customer at any time before delivery, to reflect any increase in
the cost of the Goods to Mo-Sys USA Inc. that is due to:
11.5.1.1 any factor beyond the control of Mo-Sys USA Inc.
(including foreign exchange uctuations, increases in taxes
and duties, and increases in labour, materials and other
manufacturing costs);
11.5.1.2 any request by the Customer to change the delivery
date(s), quantities or types of Goods ordered, or the Goods
Specication; or
11.5.1.3 any delay caused by any instructions of the
Customer in respect of the Goods or failure of the Customer
to give Mo-Sys USA Inc. adequate or accurate information or
instructions in respect of the Goods.
11.6 In respect of Goods, Mo-Sys USA Inc. shall issue a pro
forma invoice for 50% of the total invoice value to the
Customer upon placement of the order with Mo-Sys USA Inc.
which shall be either the return of a signed quotation or
Purchase Order from the Customer. Mo-Sys USA Inc. shall
issue a second pro forma invoice for the remaining 50% prior
to the shipment of goods. In respect of Services, Mo-Sys USA
Inc. shall issue a separate pro forma invoice to the Customer
in advance except for expenses as per clause 11.4.
11.7 The Customer shall pay each pro forma invoice
submitted by Mo-Sys USA Inc.:
11.7.1 50% of the total invoice value shall be paid by the
Customer upon receipt of the pro forma invoice, at the
beginning of any build of the goods. The remaining 50% shall
be paid prior to any shipment of goods.
11.8 in full and in cleared funds to a bank account nominated in
writing by Mo-Sys USA Inc.. For the avoidance of doubt,
settlement of any charges that are owned under this
Agreement by the Customer shall not be made until cleared
funds are received by Mo-Sys USA Inc., and
11.8.1 time for payment shall be of the essence of the Contract.
11.9 All amounts payable by the Customer under the Contract
are exclusive of amounts in respect of value added tax
chargeable from time to time ("VAT"). Where any taxable supply
for VAT purposes is made under the Contract by Mo-Sys USA
Inc. to the Customer, the Customer shall, on receipt of a valid
VAT invoice from Mo-Sys USA Inc., pay to Mo-Sys USA Inc. such
additional amounts in respect of VAT as are chargeable on the
supply of the Services or Goods at the same time as payment is
due for the supply of the Services or Goods.
11.10 If the Customer fails to make a payment due to Mo-Sys
USA Inc. under the Contract by the due date, then, without
limiting Mo-Sys USA Inc.'s remedies under clause 15
(Termination), the Customer shall pay interest on the overdue
sum from the due date until payment of the overdue sum,
whether before or after judgment. Interest under this clause
11.10 will accrue each day at 4% a year above the Bank of
England's base rate from time to time, but at 4% a year for any
period when that base rate is below 0%.
11.11 All amounts due under the Contract shall be paid in full
without any set-off, counterclaim, deduction or withholding (other
than any deduction or withholding of tax as required by law).
11.12 Mo-Sys USA Inc. Shall not be held accountable for
funds transferred into incorrect bank accounts, whether
accidentally or as a result of fraudulent activity. Payment
details shall be presented on the invoice only. In the instance
that The Customer has received communication indicating
that the bank account details have changed, whether from a
contact inside or outside of Mo-Sys USA Inc., Mo-Sys USA Inc.
advise that The Customer contact Mo-Sys USA Inc. via
telephone immediately to conrm. The Customer shall be
responsible for conrming any changes to bank account
details with Mo-Sys USA Inc. via telephone.
12 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights in or arising out of or in
connection with Goods and provision of Services (and for the
avoidance of doubt, development of Goods for a Customer
to a Goods Specication) shall be owned by Mo-Sys USA Inc.
13 CONFIDENTIALITY
13.1 Each party undertakes that it shall not at any time during the
Contract, and for a period of five years after termination of the
Contract, disclose to any person any confidential information
concerning the business, affairs, customers, clients or Mo-Sys
USA Inc. of the other party, except as permitted by clause 13.2.
13.2 Each party may disclose the other party's condential
information:
13.2.1 to its employees, officers, representatives,
subcontractors or advisers who need to know such information
for the purposes of carrying out the party's obligations under
the Contract. Each party shall ensure that its employees,
officers, representatives, subcontractors or advisers to whom it
discloses the other party's confidential information comply with
this clause 13; and
13.2.2 as may be required by law, a court of competent
jurisdiction or any governmental or regulatory authority.
13.3 Neither party shall use the other party's condential
information for any purpose other than to perform its
obligations under the Contract.
13.4 Mo-Sys USA Inc. shall be authorised to mention the
Customer’s name in its marketing material and to other
potential Customers in order to increase its good standing
reputation. Mo-Sys USA Inc. shall not share any confidential
information or information regarding the details of Customer’s
orders including price details with any other party.
13.5 The Customer shall not discuss any discounted prices
received from Mo-Sys USA Inc. in connection with any Goods
or Services provided.
14 LIMITATION OF LIABILITY
14.1 Nothing in these Conditions shall limit or exclude MoSys USA Inc.’s liability for:
14.1.1 death or personal injury caused by its negligence, or
the negligence of its employees, agents or subcontractors (as
applicable);
14.1.2 fraud or fraudulent misrepresentation;
14.1.3 (not used in this Contract)
14.1.4 (not used in this Contract)
14.1.5 any matter in respect of which it would be unlawful for
the Mo-Sys USA Inc. to exclude or restrict liability.
14.2 Subject to clause 14.1:
TERMS & CONDITIONS OF SALE - GOODS & SERVICES PAGE 4
14.2.1 Mo-Sys USA Inc. shall under no circumstances
whatsoever be liable to the Customer, whether in contract, tort
(including negligence), breach of statutory duty, or otherwise,
for any loss of profit, or any indirect or consequential loss
arising under or in connection with the Contract; and
14.2.2 Mo-Sys USA Inc.’s total liability to the Customer in
respect of all other losses arising under or in connection with
the Contract, whether in contract, tort (including negligence),
breach of statutory duty, or otherwise, shall in no
circumstances exceed 100% of the price of the Services and
or Goods provided to the Customer in a nancial year.
15 TERMINATION
15.1 Without aecting any other right or remedy available to
it, either party may terminate the Contract with immediate
eect by giving written notice to the other party if:
15.1.1 either party provides the other with no less than six
months’ written notice;
15.1.2 the other party commits a material breach of its
obligations under the Contract and (if such breach is
remediable) fails to remedy that breach within 14 days after
receipt of notice in writing to do so;
15.1.3 the other party takes any step or action in connection
with its entering administration, provisional liquidation or
any composition or arrangement with its creditors (other
than in relation to a solvent restructuring), being wound up
(whether voluntarily or by order of the court, unless for the
purpose of a solvent restructuring), having a receiver
appointed to any of its assets or ceasing to carry on business;
15.1.4 the other party suspends, or threatens to suspend, or
ceases or threatens to cease to carry on all or a substantial
part of its business; or
15.1.5 the other party's nancial position deteriorates to
such an extent that in the terminating party's opinion the
other party's capability to adequately full its obligations
under the Contract has been placed in jeopardy.
15.2 Without aecting any other right or remedy available to
it, Mo-Sys USA Inc. may terminate the Contract with
immediate eect by giving written notice to the Customer if
the Customer fails to pay any amount due under the
Contract on the due date for payment.
15.3 Without aecting any other right or remedy available to
it, Mo-Sys USA Inc. may suspend the supply of Services or all
further deliveries of Goods under the Contract or any other
contract between the Customer and Mo-Sys USA Inc. if the
Customer fails to pay any amount due under the Contract on
the due date for payment, the Customer becomes subject to
any of the events listed in clause 15.1.3 to clause 15.1.5, or
Mo-Sys USA Inc. reasonably believes that the Customer is
about to become subject to any of them.
16 CONSEQUENCES OF TERMINATION
16.1 On termination of the Contract:
16.1.1 the Customer shall immediately pay to Mo-Sys USA
Inc. all of Mo-Sys USA Inc.'s outstanding unpaid invoices and
interest and, in respect of Services and Goods supplied but
for which no invoice has been submitted, Mo-Sys USA Inc.
shall submit an invoice, which shall be payable by the
Customer immediately on receipt;
16.1.2 the Customer shall return all Goods which have not
been fully paid for. If the Customer fails to do so, then MoSys USA Inc. may enter the Customer's premises and take
possession of them. Until they have been returned, the
Customer shall be solely responsible for their safe keeping
and will not use them for any purpose not connected with
this Contract.
16.2 Termination of the Contract shall not aect any rights,
remedies, obligations and liabilities of the parties that have
accrued up to the date of termination, including the right to
claim damages in respect of any breach of the Contract
which existed at or before the date of termination.
16.3 Any provision of the Contract that expressly or by
implication is intended to have eect after termination or
expiry shall continue in full force and eect.
17 FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for
delay in performing or failure to perform any of its
obligations under the Contract if such delay or failure result
from events, circumstances or causes beyond its reasonable
control (a Force Majeure Event).
18 PUBLICITY
18.1 Mo-Sys USA Inc. shall be entitled at any time to identify
the Customer as a client of Mo-Sys USA Inc. using a particular
product or as part of a project, including the Customer’s logo
on marketing literature and on the Mo-Sys USA Inc. website.
18.2 Save as otherwise provided for in this Contract, Mo-Sys
USA Inc. shall obtain the Customer’s prior agreement for the
use of the Customer’s name for any other purpose.
19 GENERAL
19.1 Assignment and other dealings
19.1.1 Mo-Sys USA Inc. may at any time assign, mortgage,
charge, subcontract, delegate, declare a trust over or deal in
any other manner with any or all of its rights and obligations
under the Contract.
19.1.2 The Customer shall not assign, transfer, mortgage,
charge, subcontract, delegate, declare a trust over or deal in
any other manner with any of its rights and obligations under
the Contract.
19.2 Severance. If any provision or part-provision of the
Contract is or becomes invalid, illegal or unenforceable, it shall
be deemed modified to the minimum extent necessary to
make it valid, legal and enforceable. If such modification is not
possible, the relevant provision or part-provision shall be
deemed deleted. Any modification to or deletion of a provision
or part-provision under this clause 19.2 shall not affect the
validity and enforceability of the rest of the Contract.
19.3 Waiver. A waiver of any right or remedy under the
Contract or by law is only effective if given in writing and shall
not be deemed a waiver of any subsequent right or remedy. A
failure or delay by a party to exercise any right or remedy
provided under the Contract or by law shall not constitute a
waiver of that or any other right or remedy, nor shall it prevent
or restrict any further exercise of that or any other right or
remedy. No single or partial exercise of any right or remedy
provided under the Contract or by law shall prevent or restrict
the further exercise of that or any other right or remedy.
19.4 No partnership or agency. Nothing in the Contract is
intended to, or shall be deemed to, establish any partnership or
joint venture between the parties, constitute either party the
agent of the other, or authorise either party to make or enter
into any commitments for or on behalf of the other party.
19.5 Entire agreement. The Contract constitutes the entire
agreement between the parties and supersedes and
extinguishes all previous agreements, promises, assurances,
warranties, representations and understandings between them,
whether written or oral, relating to its subject matter. Each party
acknowledges that in entering into the Contract it does not rely
on and shall have no remedies in respect of any statement,
representation, assurance or warranty (whether made innocently
TERMS & CONDITIONS OF SALE - GOODS & SERVICES PAGE 5
or negligently) that is not set out in the Contract. Each party
agrees that it shall have no claim for innocent or negligent
misrepresentation or negligent misrepresentation based on any
statement in the Contract. Nothing in this clause shall limit or
exclude any liability for fraud.
19.6 Third party rights.
19.6.1 Unless it expressly states otherwise, the Contract does
not give rise to any rights to third parties to enforce any term
of the Contract.
19.7 Variation. Except as set out in these Conditions, no
variation of the Contract shall be eective unless it is agreed
in writing and signed by the parties (or their authorised
representatives).
19.8 Governing law. The Contract and any dispute or claim
(including non-contractual disputes or claims) arising out of
or in connection with it or its subject matter or formation
shall be governed by and construed in accordance with the
laws of the State of California, United States of America
19.9 Jurisdiction. Each party irrevocably agrees that the
courts of California shall have exclusive jurisdiction to settle
any dispute or claim (including non-contractual disputes or
claims) arising out of or in connection with the Contract or its
subject matter or formation.