1.1 Acceptance. Any purchase of Garmin products by Buyer ("Order") shall be governed solely by these Terms and Conditions of Sale ("Conditions of Sale") and any other written provisions mutually agreed upon. Garmin does not accept, and hereby expressly objects to and rejects, any terms contained in any purchase order or other document issued by Buyer that are different from, conflict with, modify and/or add to these Conditions of Sale. No modification or addition to these Conditions of Sale shall be effective unless agreed to in writing and signed by an authorized representative of Buyer and Garmin. Any oral understandings are expressly excluded. Garmin shall not be deemed to have waived these Conditions of Sale if it fails to object to any additional or conflicting provisions appearing on, incorporated by reference in, or attached to Buyer’s purchase order form. Garmin’s catalogs and price lists do not constitute an offer. Garmin reserves the right to reject or refuse any Order submitted for its acceptance. Unless otherwise agreed in writing by an authorized representative of Garmin, no special marketing programs (eg. volume rebate, coop, etc.) are offered with these Conditions of Sale.
1.2 Entire Understanding. Except for (i) any payment terms agreements signed by Garmin per Section 5, and/or (ii) any addendum or separate agreement signed by an authorized representative of Buyer and Garmin that specifically amends or overrides these Conditions of Sale, these Conditions of Sale shall constitute the entire understanding and agreement between Buyer and Garmin.
2.1 Date. Any delivery date stated in any document (including an Order) is approximate only and shall not constitute any guarantee of delivery on any particular date.
2.2 Terms. Delivery shall be F.O.B. Garmin’s docking point, Olathe, KS (or FCA for export per INCOTERMS 2000) for all products purchased from Garmin USA, Inc. or Garmin International, Inc.
2.3 Freight. Transportation charges shall be pre-paid and Buyer shall reimburse Garmin upon receipt of an invoice for such charges.
2.4 Title; Risk of Loss. Title and risk of loss shall pass to Buyer upon delivery of the products by Garmin to the carrier at the FOB/FCA point, unless as otherwise agreed upon in writing by Garmin.
The Buyer shall inspect and accept or reject products delivered pursuant to an Order immediately after Buyer takes custody of such products. In the event the products do not comply with any applicable Garmin specifications, the Buyer shall promptly notify Garmin of such noncompliance, along with the reason for such noncompliance, and give Garmin a reasonable opportunity to correct any such noncompliance. The Buyer shall be deemed to have accepted any products delivered hereunder and to have waived any such noncompliance in the event Garmin does not receive written notification of noncompliance within fifteen (15) days after the Buyer takes custody of the products delivered hereunder.
Garmin at all times reserves the right in its sole discretion, without consent of Buyer, to make changes, additions or improvements to the products ordered or to discontinue any products.
Product shall be sold to Buyer at the prices quoted to Buyer upon acceptance of each Order. Garmin reserves the right to change the prices for products from time to time. Prices are stated in United States dollars and payment shall be made in United States currency. Unless other payment terms are previously agreed in writing by Garmin, Buyer shall make full payment in advance for all products ordered. In the event Buyer does not make timely payments, Garmin may, in addition to all other remedies provided at law, either: (1) declare Buyer’s performance in breach and terminate an Order for default; (2) repossess the goods for which payment has not been made; (3) withhold future shipments under an Order until delinquent payments are made; (4) deliver future shipments under an Order on a cash with order or cash in advance basis even after the delinquency is cured; (5) charge interest on the delinquency at a rate of 1½% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges, or inventory carrying charges; or (6) recover all costs of collection including reasonable attorney’s fees; and (7) at Garmin’s option, combine any of the above rights and remedies as provided by law.
Garmin reserves the right to perform a review of Buyer’s creditworthiness either before or after an Order is received. Garmin shall not be obligated to accept or honor an Order if Buyer’s creditworthiness is deemed unsatisfactory to Garmin, in Garmin’s sole discretion. Garmin reserves the right to modify or withdraw credit terms at any time without notice and to require guarantees, security or payment in advance of the amount of credit involved.
Buyer shall be responsible for, and shall pay, any taxes (sales, excise, use, etc.) and any export or import dues that may be applicable to the sale and/or delivery of the products. Accordingly, Garmin reserves the right to revise its price after the execution of an Order between the parties to include any and all taxes or duties that may become due hereunder and Garmin may invoice Buyer for said additional amount. This clause shall survive the acceptance and complete performance of an Order by the parties herein.
Any credits, allowances or other amounts payable or creditable by Garmin to Buyer shall be subject to offset for any claims or other amounts owed by Buyer to Garmin.
Neither party shall be in default hereunder by reason of any failure or delay in the performance of any obligation (other than an obligation to make payments for goods delivered in accordance with the Order)) where such failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of such party. Such causes shall include, without limitation, storms, floods, other acts of nature, fires, explosions, riots, war or civil disturbance, strikes and other labor disputes, embargoes, export control laws, delays in transportation and inability to obtain labor, supplies or manufacturing facilities, including material shortages or delays in deliveries to Garmin by its suppliers. In the event that any force majeure event shall prevent Garmin from being able to supply products to all its customers, Garmin shall be entitled to allocate its available supply of products among its customers in such proportions as Garmin, in its sole discretion, shall deem appropriate.
10.1 Limited Warranty. All Garmin products are warranted to be free from defects in materials or workmanship for one year from the date of purchase.
10.2 Exclusions. The limited warranty set forth in this Section 10 shall be void with respect to products that have been: (1) altered by Buyer or a third-party; (2) repaired by someone other than a Garmin authorized repairman; (3) subjected to misuse, abuse, neglect or accident; or (4) damaged by improper installation or application.
10.3 Limitation of Remedies. Within the warranty period, Garmin will at its sole option, repair or replace any products that fail in normal use. Such repairs or replacement will be made at no charge to the customer for parts or labor, provided that the customer shall be responsible for any transportation cost. Garmin retains the exclusive right to repair or replace the product or offer a full refund of the purchase price at its sole discretion. SUCH REMEDY SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY. To obtain warranty service and instructions, contact your local Garmin authorized dealer or call Garmin Customer Service at one of the numbers shown below:
Garmin International, Inc.
1200 East 151st Street, Olathe, Kansas 66062, U.S.A.
Toll free: 800/800.1020
Phone: 913/397.8200 FAX: 913/397.0836
Garmin (Europe) Ltd.
Unit 5, The Quadrangle, Abbey Park Industrial Estate
Romsey, S051 9DL, U.K.
Phone: 44/1794.519944 FAX: 44/1794.519222
10.4 Exclusive Warranty. THE WARRANTIES AND REMEDIES CONTAINED HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING ANY LIABILITY ARISING UNDER ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, BOTH OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
Garmin’s total liability on any claim for loss or damage arising out of, connected with, or resulting from an Order, or from the performance or breach thereof, or from the manufacture, sale, delivery, resale, repair or use of any product or services rendered covered by or furnished under an Order shall in no case exceed the price allocable to the product that gives rise to the claim, except as provided in the paragraph entitled "Patent Infringement." IN NO EVENT SHALL GARMIN BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR SALES.
During the parties’ purchase-sale relationship, Buyer may receive Confidential Information (as defined below) from Garmin. Buyer acknowledges that any such Confidential Information comprises valuable trade secrets and is proprietary to Garmin. Buyer shall hold the Confidential Information in strict confidence and shall not disclose the same to any other person, firm or corporation, nor use the Confidential information, except as required to perform its obligations under this Agreement. Buyer shall not copy or reverse engineer any Products. The foregoing obligation shall not apply to any information that becomes public through no fault of Buyer. As used herein the term "Confidential Information" means all know-how, designs, drawings, pricing information, specifications and other information, whether or not reduced to writing, relating to the design, manufacture, use, marketing and service of any products of Garmin as well as any other information relating to the business of Garmin that may be divulged to Buyer that is not generally known to the public.
All products sold to Buyer shall bear Garmin's trademarks. Buyer shall not remove, conceal or alter any such trademarks. Buyer acknowledges and agrees that these Conditions of Sale give Buyer no rights in Garmin's trademarks, except that Garmin grants Buyer a limited, non-exclusive license during the term of Buyer’s purchasing relationship with Garmin to reproduce Garmin's trademarks in advertisements and other promotional materials relating to the products in accordance with such standards for use of its trademarks as may be established from time to time by Garmin. Such license shall expire immediately upon the expiration or termination of Buyer’s purchasing relationship with Garmin. All goodwill arising from Buyer's use of Garmin's trademarks shall inure solely to the benefit of Garmin. All advertisements and other promotional materials using Garmin's trademarks prepared by Buyer shall include an appropriate notice indicating that such trademarks are the property of Garmin. Buyer shall not use Garmin's trademarks or name as part of its corporate or business name, provided that Buyer may identify itself as an authorized Buyer of Garmin.
Each party shall indemnify, defend and hold harmless the other party from and against all third-party claims, suits, actions, liabilities, damages, losses, demands, costs and expenses (including reasonable attorneys’ fees) arising out of any actual or alleged injury or death to any person or damage to any property, or any other damage or loss resulting in whole or in part from any alleged or actual defect in any products supplied by Garmin to Buyer or by Buyer to its customer (except for patent infringement claims, which are governed by the terms in Section 15); provided, however, that these indemnification obligations shall not apply to the extent any such third-party claim, suit, action, damage, loss, etc. was caused by or attributable to the acts of the other party or its agents, employees, and/or representatives.
15.1 Obligation to Defend. Upon prompt written notification by Buyer of any claim, threatened or commenced, of patent infringement, Garmin shall defend or settle any claim that a Garmin product infringes any United States patent at Garmin’s sole cost and expense, provided Garmin is offered full and exclusive control to conduct the defense or settlement thereof.
15.2 Exclusions. Garmin’s obligation to defend and settle shall not apply (1) to any products or parts specified by Buyer or manufactured to Buyer’s design; (2) to any products or parts altered or modified by Buyer; (3) to the use or manufacture of any products in conjunction with any other product, not manufactured by Garmin, or (4) where infringement would not have occurred from the normal use for which the products were designed. No responsibility is assumed for actual or alleged infringement of any foreign patent.
15.3 Remedies. Garmin’s liability for damages hereunder is limited to those computed solely on the value of any products sold to Buyer hereunder. IN NO EVENT SHALL GARMIN BE LIABLE FOR ANY CONSEQUENTIAL OR SPECIAL DAMAGES OR COSTS APPLICABLE THERETO. In the event of any claim that a product furnished hereunder infringes any United States patent, Garmin may at its option and expense (a) procure for Buyer the right to continue using the product, (b) replace or modify the product so that it becomes non-infringing, or (c) grant Buyer a credit for such product, less a reasonable depreciation for use, damage, and obsolescence upon its return to Garmin. These remedies shall constitute the sole and exclusive remedies of the Buyer and are in lieu of any other warranty, express or implied, by Garmin with respect to intellectual property (patents, trade secrets, mask works, trademarks, copyrights, or the like).
15.4 Indemnity by Buyer. In the event any product to be furnished under an Order is made in accordance with drawings, samples or manufacturing specifications provided or designated by Buyer and is not the design of Garmin, Buyer agrees to defend, indemnify and hold Garmin harmless from and against any claims of infringement with respect to such product(s) subject to the same requirements as set forth above in Garmin’s obligation to Buyer. Further, Buyer agrees to pay all costs and expenses incurred by Garmin in its defense and the amount of any judgment against Garmin in any suit or proceeding against Garmin based upon a claim of infringement, resulting solely from the Buyer combining any product furnished hereunder with any item not manufactured or furnished by Garmin or from the sale or use of any such combination by Buyer.
Unless otherwise agreed in writing, all material, software, data processes, equipment, facilities and special tooling, including, without limitation, jigs, dies, fixtures, molds, patterns, special taps, special gages, special test equipment, other special equipment and manufacturing aids and replacements thereof, used in the manufacture of products covered by an Order shall be and remain the property of Garmin. Garmin retains all rights, title and interest in drawings, engineering instructions, specifications, and all other written data, if any, furnished with the products.
Buyer shall be responsible for compliance with the export control laws and regulations of the U.S. Government, and when required by such laws and regulations shall obtain export and re-export licenses required for goods, services and technical data delivered under an Order. Garmin shall not be liable to Buyer for any failure to provide goods, services or technical data as a result of any of the following U.S. Government actions: (1) refusal to grant export or re-export license; (2) cancellation of export or re-export license; or (3) any subsequent interpretation of U.S. export laws and regulations, after the date of an Order, that limits or has a material adverse effect on the cost of Garmin’s performance of an Order.
Neither party shall assign an Order or any portion thereof without the prior written consent of the other party, which consent shall not be unreasonably withheld. The non-assigning party shall not have any obligation to an assignee of the assigning party unless such consent is obtained.
Failure by Garmin to assert all or any of its rights upon any breach of an Order shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor shall any waiver be implied from the acceptance of any payment or service. Such waiver will arise only from an express written waiver signed by a duly authorized Garmin representative. No waiver of any right shall extend to or affect any other right Garmin may possess, nor shall such waiver extend to any subsequent similar or dissimilar breach.
If any provision of these Conditions of Sale is determined to be illegal, invalid, or unenforceable, for any reason, then such provision shall be deemed stricken for purpose of the dispute in question, and all other provisions shall remain in full force and effect.
Except as otherwise specifically agreed in writing by Buyer and Garmin, any controversy or claim arising out of or relating to an Order placed by a Buyer incorporated in the United States which is not resolved by the parties shall be adjudicated by any court of competent jurisdiction. For Orders placed by a Buyer incorporated outside the United States, any controversy or claim arising out of or relating to such Order shall be determined by arbitration in accordance with the International Arbitration Rules of the International Centre for Dispute Resolution. The place of arbitration shall be Kansas City, Missouri, USA. The language of the arbitration shall be English.
The purchase-sale relationship between Buyer and Garmin shall be governed by and construed in accordance with the laws of the State of Kansas, without reference to the principles of conflicts of laws.