These terms and conditions govern the sale of Products ("Products") and the provision of services ("Services") by Boda Technology Inc. ("Boda") as well as by third party vendors and/or service providers of Boda to Boda's customers ("Customers").

These terms and conditions ("Agreement") take precedence over Customer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Acceptance by Customer is limited to and conditioned upon Customer’s assent to these terms and conditions. Neither Boda’s commencement of performance or delivery shall be deemed or constituted as acceptance of Customer’s supplemental or conflicting terms and conditions. Customer’s acceptance of the Products and/or Services from Boda shall be deemed to constitute acceptance of the terms and conditions contained herein.

1. Orders

All orders placed by Customers are subject to acceptance by Boda. Orders may not be cancelled or rescheduled without Boda’s written consent. All orders must include delivery dates, quantities, approved vendors and complete description of Products being purchased. Boda may in its sole discretion allocate Product among its Customers.

Boda may designate certain Products as non-cancellable, non-returnable (“NCNR”) or customer specific (“CS”) Products for reasons of obsolescence and/or non-standard character and/or otherwise. Notwithstanding anything to the contrary herein, any order of such Products shall constitute a firm order which is non-cancellable and non- reschedulable, and, except for returns made in accordance with the applicable manufacturer’s warranty, the Products are non-returnable for any reason whatsoever, including, without limitation, any force majeure. Any delays by Boda in delivering NCNR or CS Products (i) that are due to manufacturer’s lead times or to any cause beyond Boda’s reasonable control shall not give rise to liability on the part of Boda, and (ii) shall not affect the binding character of this Agreement nor Customer’s commitments hereunder. Customer’s liability to Boda for NCNR or CS Products shall be the aggregate of the full purchase price of all such Products: (a) already shipped to Customer, and/or (b) held in Boda’s inventory for Customer, and/or (c) manufactured, in whole or in part, by Boda’s supplier. Without limiting the generality of the foregoing, any order for cut or broken tape, mini-reels or other customized parts shall be deemed NCNR. Given the special nature of such an order, Boda reserves the right to cancel any such NCNR or CS order within 7 business days following delivery of Boda’s order acknowledgement. The sale of NCNR or CS Products may alternatively be subject to the special terms and conditions contained in Boda’s Special Product Agreement, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere.

2. Prices

2.1. The prices of the Products are those specified on the front of Boda’s invoice. Quotes and pricing for undelivered Product may change at any time, including, without limitation, in the event of any increase in Boda’s cost, change in market conditions or any other causes beyond Boda’s reasonable control.
2.2. Unless otherwise agreed to in writing by Boda, prices are for Products only and do not include any costs relating to transportation, insurance, permits, certifications or customs declarations nor do they include any taxes or similar charges, including, but not limited to, applicable federal, state, provincial and local sales, excise, value added, goods and services taxes as well as any tariffs, duties and related surcharges (“Additional Taxes and Charges”). Customer is responsible for all such amounts and shall pay all Additional Taxes and Charges unless Customer has provided Boda with an exemption resale certificate in the appropriate form for the jurisdiction of Customer’s place of business and any jurisdiction to which Products are to be directly shipped hereunder, or unless the sale is otherwise exempt from such Additional Taxes and Charges. Customer agrees to indemnify and hold Boda harmless for any liability for Additional Taxes and Charges in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, the Additional Taxes and Charges will appear as separate items on Boda’s invoice or in a separate invoice.

3. Payment

3.1. Full payment is due promptly upon placing an order on this website. For all other orders, upon approval of credit, corporate standard terms of payment are net thirty (30) days from the date of invoice unless otherwise specified in writing by Boda. In addition, Customer will be deemed to have accepted an invoice upon the fifteenth (15th) day from the date of invoice and no further objections to the invoice will be permitted or accepted. If Boda otherwise specifies in writing payment terms longer than thirty (30) days from the date of invoice, then: (i) the invoice will be deemed accepted upon the thirty (30th) day from the date of invoice and no further objections will be permitted or accepted; and (ii) Customer must certify within thirty (30) days from the date of invoice that payment has been submitted for processing. Boda may invoice each shipment separately and each shipment shall be considered a separate and individual contract. Customer agrees to pay such invoice pursuant to its terms without the benefit of setoff or deduction.

3.2. All late payments shall be charged interest computed on a daily basis from the due date until paid in full. A late charge of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, will be imposed on all past due accounts. Customer shall be liable for costs of collection, including reasonable attorneys’ fees and court costs, in any action to collect past due amounts.

3.3. Transportation charges from Boda’s facility to Customer’s facility shall be paid by Customer to Boda, in addition to the purchase price of the Product, unless otherwise agreed to in writing by Boda. Boda will select the carrier in the absence of specific instructions by Customer.

3.4. Boda reserves the right to establish and/or change credit and payment terms extended to Customer when, in Boda’s sole opinion, Customer’s financial condition or previous payment record warrants such action. Further, on delinquent accounts, Boda shall not be obligated to continue performance under any agreement with Customer.

3.5. If Boda believes in good faith that Customer's ability to make payments may be impaired or if Customer shall fail to pay any invoice when due, Boda may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Customer shall remain liable to pay for any Products already shipped and all NCNR and CS Products ordered by Customer.

3.6. Boda retains a purchase money security interest in the Products delivered to Customer, and in their accessories, replacements, accessions, proceeds and Products, including accounts receivable (collectively, the "Collateral") to secure payment of all amounts due under this Agreement. Customer’s failure to pay all amounts hereunder in full when and as due shall constitute a default hereof and shall give Boda all rights of a secured party. If Customer fails to pay any amount when due, Boda shall have the right to repossess and remove all or any part of the Collateral from Customer, but not from Customer’s Customers. Any repossession or removal shall be without prejudice to any other remedy of Boda hereunder, at law or in equity. Customer agrees, from time to time, to take any act and execute and deliver any document (including, without limitation, financing statements) reasonably requested by Boda to transfer, create, perfect, preserve, protect and enforce this security interest.

3.7. Any payment received from Customer may be applied by Boda against any obligation owing from Customer to Boda, regardless of any statement appearing on or referring to such payment, without discharging Customer's liability for any additional amounts owing from Customer to Boda, and the acceptance by Boda of such payment shall not constitute a waiver of Boda's right to pursue the collection of any remaining balance.

4. Delivery and Title

Subject to Boda's right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Customer and title and risk of loss shall thereupon pass to Customer. Selection of the carrier and delivery route shall be made by Boda unless specified by Customer. Customer acknowledges that delivery dates provided by Boda are estimates only and Boda shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Boda nor shall the carrier be deemed an agent of Boda. In the event of delay caused by such event, the date of delivery shall be extended for a period equal to the time lost as a consequence of the delay in delivery without subjecting Boda to any liability or penalty. If the Products perished while in the custody of the carrier, the Boda shall be deemed to have performed its obligations in full. Delivery of a quantity, which varies from the quantity specified, shall not relieve Customer of the obligation to accept delivery and pay for the Products delivered. Delay in delivery of one installment shall not entitle Customer to cancel other installments.

5. Acceptance/Returns

Shipments will be deemed to have been accepted by Customer upon delivery of the said shipments to Customer unless rejected upon receipt. Customer shall perform whatever inspection or tests Customer deems necessary as promptly as possible but in no event later than five (5) days after delivery, after which time Customer will be deemed to have irrevocably accepted the Products. Any discrepancy in shipment quantity must be reported within five (5) working days of receipt of the Products. In the event of an over shipment, Customer shall have the option to return the Products to Boda at Boda’s expense or alternatively, Customer may elect to retain the Products (subject to adjustment of the invoice or the issuance of another invoice to account for such additional items.) Any Product returns shall be subject to compliance with Boda’s Return Policy, as well as a restocking charge equivalent to 20% of the value of such Product as specified in Boda’s invoice to Customer. Returned Products must be in the original manufacturer’s sealed packaging and conform to minimum package quantity ("MPQ") requirements. Products not eligible for return shall be returned to Customer freight collect.

6. Limited Warranty and Limitation of Liability

(a) Boda will transfer to Customer any transferable warranties or indemnities that the manufacturer of the Product or the third party vendor/service provider provides to Boda. BODA SHALL HAVE NO LIABILITY TOWARDS CUSTOMER BEYOND THE EXPRESS TERMS OF SUCH MANUFACTURER PRODUCT WARRANTIES. BODA ASSUMES NO LIABILITY FOR THE QUALITY OF THE WORK PERFORMED OR SERVICES RENDERED BY THIRD PARTY VENDORS/SERVICE PROVIDERS. IT IS CUSTOMER'S OBLIGATION TO REQUEST COPIES OF ANY APPLICABLE MANUFACTURER WARRANTIES AND CUSTOMER SHALL BE DEEMED TO HAVE ACCEPTED SUCH WARRANTIES UPON ACCEPTANCE OF THE PRODUCTS AND/OR SERVICES.

(b) Boda’s exclusive obligations with respect to a non-conforming Product or Service shall be, at Boda’s option, to repair or replace the Product, if it is determined to be defective, or to re-perform the Service, or to refund to Customer the purchase price paid for the Product or Service. Notwithstanding anything herein to the contrary, the liability of Boda under this Section for all claims shall not exceed the sum of Customer’s payments for the Products or Services which are the subject of the dispute and the foregoing is Customer’s sole and exclusive remedy for all claims under this Section. THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES, EXPRESS OR IMPLIED, GIVEN BY BODA IN CONNECTION WITH THE PRODUCTS AND SERVICES, AND BODA DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.

(c) Replacement Products shall be warranted as set forth in Section 6(a) above. Any Products repaired or serviced by Boda shall be warranted as provided in this Section 6 for the remainder of the manufacturer’s warranty period.

(d) No warranty shall apply to any Product that has been subject to misuse, improper testing, assembly, mishandling, or which has been operated contrary to current instructions relating to installation, maintenance or operation, or contrary to industry standards.

(e) Boda disclaims, and shall have no liability for any trademark, trade dress, trade secret, copyright, design or patent infringement, or any other intellectual property right, which may occur, as a result of the sale of Products to Customer. The only remedy or recourse for trademark, trade dress, trade secret, copyright, design or patent infringement, or any other intellectual property right, shall be against the manufacturer of the Products which is explicitly subject to the limited warranty of the manufacturer of the Product. There shall be no remedy or recourse against Boda or the manufacturer to the extent the infringement arises from or is otherwise based upon (i) the manufacturer's compliance with the particular requirements of Customer that differ from the manufacturer's standard specifications for the Product; (ii) modifications or alterations of the product other than by the manufacturer; or (iii) a combination of the Product with other items not furnished or manufactured by the manufacturer.

(f) CUSTOMER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND BODA SHALL NOT BE LIABLE FOR, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, EVEN IF BODA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER'S RECOVERY FROM BODA FOR ANY CLAIM SHALL NOT EXCEED CUSTOMER'S PURCHASE PRICE FOR THE PRODUCT GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. BODA SHALL NOT BE LIABLE FOR AND CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD BODA HARMLESS FROM ANY CLAIMS BASED ON BODA'S COMPLIANCE WITH CUSTOMER'S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN BODA, OR USE IN COMBINATION WITH OTHER PRODUCTS. IF, FOR ANY REASON, THE FOREGOING LIMITATIONS ARE FOUND BY AN ARBITRATION PANEL OR COURT OF COMPETENT JURISDICTION TO BE INVALID OR INAPPLICABLE UNDER ANY APPLICABLE STATE OR PROVINCIAL LAW, CUSTOMER AGREES THAT BODA’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO ACTUAL DAMAGES WITHOUT REGARD TO ANY PUNITIVE OR EXEMPLARY DAMAGES PROVIDED BY ANY SUCH APPLICABLE LAW.

(g) Customer acknowledges that this Agreement was entered into at arms length and that it was not fraudulently induced to enter into this Agreement, in whole or any part, and Customer explicitly disclaims and waives any claim with respect thereto.

7. Intellectual Property

If any Product includes software or other intellectual property, such software or other intellectual property is provided by Boda to Customer subject to the copyright and user license, if any, for such Products, the terms and conditions of which are set forth in the license agreement accompanying such software or other intellectual property. Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement. Customer acknowledges and understands that Boda is not the manufacturer of any Products ordered or to be supplied to Customer and is not liable to Customer or any third party for any copyright, design or patent issue, right or claim that may arise in relation to any Product.
 

8. Export Control/Use of Products

Customer certifies that it will be the recipient of Products to be delivered by Boda. Customer acknowledges that the Products are subject to the export and/or import control laws and regulations of various countries including the Export Administration Laws and Regulations of the United States. Customer agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. Products sold by Boda cannot be transferred, sold or re-exported to any party on the Entity List or Restricted Person List of the U.S. Department of Commerce, Bureau of Industry and Security (BIS), any party designated by the U.S. Treasury Department’s Office of Foreign Assets Control, and any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department. Products sold by Boda are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Customer uses or sells the Products for use in any such applications: (1) Customer acknowledges that such use or sale is at Customer's sole risk; (2) Customer agrees that Boda and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Customer agrees to indemnify, defend and hold Boda and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.

9. Technical Assistance or Advice

Any technical assistance or advice offered by Boda in regard to the use of any Product or provided in connection with Customer’s purchases is given free of charge and only as an accommodation to Customer. Boda shall have no obligation to provide any technical assistance or advice to Customer and if any such assistance or advice is provided, such fact will not obligate Boda to provide any further or additional assistance or advice. Boda shall not be held liable for the content or Customer’s use of such technical assistance or advice, nor shall any statement made by any of Boda’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.

10. Limitation Period

Subject to any of the limitations expressed in the applicable manufacturer’s warranty, no action by Customer may be brought at any time for any reason against Boda or the manufacturer more than twelve (12) months after the facts occurred upon which the cause of action arose.

11. Dispute Resolution

(a) Except for situations governed by Section 12, the parties agree that any and all disputes, claims, or controversies arising out of or related to the validity, interpretation or performance of this Agreement for all Products delivered outside of Canada, and all Services performed outside of Canada, shall be resolved pursuant to this Section 11 and that the validity, interpretation and performance of this Agreement for all Products delivered, and all Services performed hereto, shall be governed by, and construed in accordance with, the internal law of Massachusetts, without giving effect to conflict of laws principles. Both parties agree that any action, demand, claim or counterclaim relating to the terms and provisions of this Agreement, or to any claimed breach, shall be commenced in a state or federal court located in the Commonwealth of Massachusetts, and both parties expressly acknowledge that personal jurisdiction and venue shall lie exclusively and is properly in Massachusetts. Both parties further agree that any action, demand, claim or counterclaim relating to the validity, interpretation and performance of this Agreement, or any other matter between the parties, shall be resolved by a judge alone in Massachusetts, and both parties hereby waive and forever renounce the right to a trial before a civil jury.

(b) For all disputes to which this Section 11 applies and the amount, in the aggregate, of the obligations arising out of this agreement equals or exceeds $250,000, the validity, interpretation and performance of this Agreement shall be governed by, and construed in accordance with the laws of the State of New York, without giving effect to conflict of laws principles, and the Federal Rules of Civil Procedure to any dispute.

(c) With respect to all disputes, the provisions of the United Nations Convention on Contracts for the International Sale of Goods 1980 (as amended, replaced or codified from time to time) shall not apply.

12. Dispute Resolution - Canada

The validity, interpretation and performance of this Agreement for all Products delivered to or in Canada, and all Services performed in Canada, shall be governed by, and construed in accordance with the laws of Quebec, without giving effect to conflict of laws principles. Both parties agree that any action, demand, claim or counterclaim relating to the terms and provisions of this Agreement, or to any claimed breach, shall be commenced in a court of competent jurisdiction in the judicial district of Montreal, Quebec, and both parties expressly acknowledge that personal jurisdiction and venue shall lie exclusively and is properly in Montreal, Quebec. With respect to all disputes, the provisions of the United Nations Convention on Contracts for the International Sale of Goods 1980 (as amended, replaced or codified from time to time) shall not apply.

13. Force Majeure

Force Majeure: Boda shall not be liable for its inability to secure sufficient quantities of any Product or failure to deliver due to causes beyond Boda’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing Boda from performance and barring remedies for non-performance. In an event of force majeure condition, the Boda’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Boda to any liability or penalty. Boda may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to Customer.

14. Non-Waiver

No course of dealing or failure of either party to strictly enforce any term, right or condition of this Agreement shall be construed as a waiver of that term, right or condition nor shall Boda’s acceptance of a purchase order be deemed as an acceptance of any terms and conditions therein.

15. Entire Agreement

This Agreement (together with any agreements, policies or terms incorporated by reference) shall constitute the complete, final and exclusive statement of the terms of the Agreement between the parties with respect to the subject matter of this Agreement and the transactions between the parties and shall not be modified or rescinded, except by a writing signed by Boda and Customer. The provisions of this Agreement supersede all prior oral and written quotations, communications, agreements, and understandings of the parties with respect to the subject matter of this Agreement. Products furnished and services rendered by Boda are done so only in accordance with these terms and conditions. If any provision of this Agreement are found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these terms and conditions, which shall remain in full force and effect.

16. General

As used herein, terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular. No rights, duties, agreements or obligations hereunder may be assigned or transferred by Customer, by operation of law, merger or otherwise, without the prior written consent of Boda. Any attempted or purported assignment shall be void. Boda's obligations under these terms and conditions may be performed by divisions, subsidiaries or affiliates of Boda. The obligations, rights, terms and conditions hereof shall be binding on the parties hereto and their respective successors and assigns. The waiver of any provision hereof or of any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction.