Surplus Equipment General Conditions of Sale
In addition to the General Conditions of Sale presented below, please take time to review the Letter of Agreement and the Terms and Conditions documents referenced at the top of each Surplus listing page.
GENERAL CONDITION OF SALE
1. Payment
Buyer shall make payment in full, prior to delivery of the Equipment. Payment shall be made in U.S. Dollars by either a cashier's check or wire transfer. Buyer shall pay all sales commissions, unless otherwise agreed to in writing by Micron. If applicable, Buyer shall include the invoice number in the comments on the wire transfer.
2. Delivery and Risk of Loss
Shipping terms are EXW (INCOTERMS 2000) Seller's facility. Seller's liability for delivery shall cease and title and all risk of loss or damage shall pass to Buyer upon Seller making the Equipment available to Buyer on the delivery date, regardless of any provision for payment of freight or insurance or the form of shipping documents. Equipment held by Seller for Buyer shall be at Buyer's risk and expense. Buyer is responsible for packing and loading the Equipment for shipment and/or for clearing the Equipment for export. Buyer shall pay all packing, packaging, loading, transportation, export, customs and insurance costs.
3. NO WARRANTY
THE EQUIPMENT IS USED AND IS SOLD "AS IS", WITH ALL FAULTS, DEFECTS AND WITHOUT ANY WARRANTY OF ANY KIND. SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
ALL SOFTWARE, IF ANY, IS SOLD "AS IS" AND WITHOUT WARRANTY OF ANY KIND. SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED ON SOFTWARE, INCLUDING BUT NOT LIMITED TO, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET BUYER'S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER OR AN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. BUYER ACCEPTS THE RISKS OF USE AND EXCEPT AS OTHERWISE STATED HEREIN SUCH RISKS FALL SOLELY ON BUYER.
BUYER EXPRESSLY UNDERSTANDS AND AGREES THAT SELLER DOES NOT WARRANT THAT THE EQUIPMENT OR SOFTWARE IS FREE OF CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT BY ANY THIRD PARTY. SELLER HEREBY DISCLAIMS ANY SUCH WARRANTY OR INDEMNIFICATION AGAINST INTELLECTUAL PROPERTY INFRINGEMENT, INCLUDING BUT NOT LIMITED TO PATENT, TRADEMARK, COPYRIGHT OR TRADE SECRET INFRINGEMENT.
4. LIMITATION OF LIABILITY
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM SELLER'S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS SALE, OR THE FURNISHING, PERFORMANCE OR USE OF ANY EQUIPMENT OR SOFTWARE SOLD PURSUANT HERETO, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, THE NEGLIGENCE OF SELLER, OR OTHERWISE.
5. Indemnification
Buyer, on behalf of itself and its employees and agents, shall indemnify, defend and hold harmless Micron, its subsidiaries and affiliates and their directors, officers, agents and employees from and against any and all liabilities, claims, demands, damages, causes of action, losses, expenses and attorney's fees, whether known or unknown, arising out of the Buyer's use of the Equipment.
6. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho, without reference to such State's conflict of laws principles. The parties agree that Idaho courts have jurisdiction over them and this Agreement, that Idaho is an appropriate venue for any litigation arising hereunder, and that all litigation related to this Agreement shall, to the extent possible, be conducted in Idaho.
7. Acceptance and Performance
Time is of the essence in the execution and performance of this Agreement. Buyer shall have this Agreement executed by a duly authorized representative of Buyer and return it to Seller within ten (10) days of the date first set forth above. Buyer shall take delivery of the Equipment within fifteen (15) days of the date first set forth above.
8. Taxes
Unless otherwise stated on the face hereof, stated prices do not include any customs duties, sales, use, value added, excise, goods and services, federal, state, local or other similar taxes. All such duties or taxes shall be paid by Buyer, or, in lieu thereof, Buyer shall provide Seller with an appropriate resale or exemption certificate.
9. Force Majeure
Seller shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or any other difficulties which are beyond the reasonable control of Seller.
10. Terms and Conditions
This sale is subject to, and Seller's acceptance is conditioned upon, Buyer's assent to the terms and conditions stated herein and on the face hereof, which are in lieu of and replace any and all terms and conditions set forth in any documents issued by Buyer, including, without limitation, purchase orders and specifications. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY BUYER AT ANY TIME ARE HEREBY OBJECTED TO BY SELLER, AND ANY SUCH DOCUMENT SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON SELLER. No remedy set forth herein shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. The prevailing party or parties to any litigation or other proceedings arising out of this Agreement shall be entitled to recover its reasonable costs and attorneys' fees from the other party or parties. If it is determined by a court of competent jurisdiction as part of a final nonappealable ruling, government action or binding arbitration that any provision of this Agreement (or part thereof) is invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the state intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms. All section headings herein are for convenience only and are in no way to be construed as part of this Agreement or as a limitation or expansion of the scope of the particular sections to which they refer. No modification of, or amendment to, this Agreement (including any implied waiver) shall be effective unless in writing signed by all parties hereto. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof and merges all prior or contemporaneous agreements and understandings (whether written, verbal or implied) of the parties with respect thereto.