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Lark Terms & Conditions

all you need to know

HOW TO ORDER:
If ordering a standard filter, a part number is all that is necessary. Contact the Lark Applications Engineering Department or your local Lark representative for any special requirements.

PRODUCT INFORMATION:
Information relating to Lark products is current at the time of publication. However, as part of continuing improvement, Lark reserves the right to change specifications and designs without prior notice.

ORDERING ADDRESS:
Your order may be placed by:
Phone: 602-333-3600
sales@larkengineering.com

Lark RF Technology
3201 E. Harbour Dr. Phoenix, AZ 85034

Orders by phone will be accepted and processed pending receipt of your confirming purchase order.

TERMS AND CONDITIONS OF SALE

These terms and conditions (“Terms”) of sale govern the sale of goods, manufacturing services, design support or other services, production equipment, or prototypes (altogether known as “Products”) by Benchmark Electronics, Inc. or its affiliates (“Benchmark”)to a Benchmark customer (“Buyer”). Benchmark and Buyer are each a “Party” and collectively the “Parties”.

1) Precedence. Buyer’s submission of any purchase order to Benchmark is Buyer’s acknowledgment and acceptance of these terms. Benchmark rejects any other terms, including any other terms recited on or incorporated by reference in any purchase order. Fulfillment of a Buyer order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. However, if Benchmark and Buyer negotiated and signed a separate written contract covering the sale of Products, or if Buyer ac cepted in writing a Benchmark quote offering different or modified terms, then the terms and conditions of such contract or accepted quotation shall prevail only to the extent they are inconsistent with these Terms.


2) Prices. Prices are per delivery terms as indicated on pricing template and are valid for thirty (30) days from the date of the proposal. Unless otherwise stated in the proposal, prices do not include duties, taxes or other charges; export licensing; and cost of compliance with any environmental legislation. Prices are quoted in U.S. dollars and are based on quantities stated in the request for proposal or quotation. Benchmark’s ISO9001/AS9100 Quality System and IPC-A-610F workmanship standards were the basis for this proposal.


3) Orders. Buyer purchase orders shall identify the Products, and mutually agreed unit quantities, part numbers, part revision, descriptions, designs, specifications, unit or lot prices and delivery dates. All accepted purchase orders are binding obligations upon Buyer. Buyer shall provide any Buyer required materials or equipment in a form fit for purpose and ready for use. Replacement tooling due to ECO changes and /or tool wear will be billed as required. Buyer will assist in the expeditious disposition of any excess or obsolete components.


4) Delivery. The Products will be delivered or performed within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of components, materials and resources. Benchmark may make partial shipments of Products to Buyer unless otherwise stated on the purchase order. Buyer shall pay for the units shipped whether such shipment is a whole or partial shipment. All Product shipments shall be “EXW Benchmark facility Incoterms® 2010”. Title to and risk of loss or damage to the Product shall pass to Buyer upon “delivery” per the applicable Incoterm. Acceptance shall occur no later than fifteen (15) days after Buyer receipt of product or Benchmark performance of services.


5) Payment. Benchmark shall invoice Buyer upon shipment of Products or as incurred with respect to NRE charges. Payment terms are thirty (30) days net from date of shipment or performance of services or as otherwise stated on the purchase order. Benchmark reserves the right to accrue and charge interest on all invoices not paid within ten (10) days after the due date at the rate of 1.5% per month. Buyer shall reimburse Benchmark for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.


6) Credit. Benchmark reserves the rights to review and approve Buyer’s creditworthiness before accepting any purchase order. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Benchmark a lien on and security inter est in and to all of the right, title and interest of Buyer in, to and under the Products. The security interest granted under this provision constitutes a purchase money security interest under the Arizona Uniform Commercial Code.


7) Limited Warranties. This Section sets forth Benchmark’s sole and exclusive warranty and Buyer’s sole and exclusive remedies with respect to Benchmark’s breach of such warranty.
a) Benchmark warrants for five (5) years for passive filters, and twelve (12) months for other hardware, from date of manufacture that its workmanship shall conform to specifications at shipment and shall be free of defects. Benchmark shall, at its option and at its expense, repair, replace or issue a credit for product found defective during the warranty period. Benchmark will pass on to customer all manufacturers’ component warranties to the extent that they are transferable, but will not independently warrant any components.
b) Benchmark warrants for a period of ninety (90) days following acceptance that any services provided will be performed in a professional and workmanlike manner and in accordance with any applicable spec ification, or documentation. Should the services fail to conform to this warranty, Benchmark's sole liability and Buyer’s exclusive remedy is for Benchmark to re-perform such non-conforming services or test fabrication at Benchmark’s cost.
c) Benchmark shall concur in advance on all units to be returned for repair or rework. Buyer must obtain a return material authorization number from Benchmark prior to return shipment. All returns shall state the specific reason for such return. Return shipping costsfor valid returns shall be paid by Benchmark. Buyer shall pay all shipping costs and a handling charge for invalid or no defect found returns. The warranty for any replacement or repaired item shall continue for the full remaining balance of the original warranty period, calculated as of the date that Buyer returns
the defective Products to Benchmark, or an additional sixty (60) day period from the date that the replacement Product is returned to Buyer, whichever is greater.
d) Unless stated in the specification, Benchmark’s warranty excludes defects or failures resulting from “tin whiskers” or other similar phenomena; manufacturing process phenomena that are unknown to the industry or of limited knowledge base within the industry, such that reasonably informed engineers would not reasonably have knowledge of such, or where no sovereign remedy or cure is known to the industry, and Benchmark has followed all reasonably well known prevention and mitigation steps; or result from Buyer specified or stipulated manufacturing methods.
e) This warranty shall be void with respect to product which has been subject to accident, disaster (including lightning or excessive voltage), neglect, abuse, misuse, improper handling (including improper handling in accordance with static sensitivity e electronic device handling requirements, testing, storage, operation, maintenance or installation), alterations, modifications, or repairs by Buyer or third parties; defective Buyer-furnished items, including test equipment or test software; products without specified functional tests to allow adequate failure diagnosis; or products found to be non-operable which have passed all Buyer-specified tests prior to shipment, yet failed some functionality or performance criteria in the field.

f) Buyer will provide its own warranties directly to any of its end users or other third parties. Buyer will not pass through to end users or other third parties the warranties made by Benchmark under these Terms. Furthermore, Buyer will not make any representations to end users or other third parties on behalf of Benchmark, and Buyer will expressly indicate that the end users and third parties must look solely to Buyer in connection with any problems, warranty claims or other matters concerning the Product.


8) Termination. Benchmark may terminate this agreement for cause if Buyer materially breaches these Terms, and such breach is not cured within forty-five (45) days after the Buyer is notified in writing of the breach. The following breaches shall not be subject to cure: (i) payment-related breaches; (ii) Buyer becomes insolvent or otherwise generally unable to pay debts as they come due, or makes a general assignment for the benefit of creditors; or (iii) Buyer files a voluntary petition, or any involuntary petition is filed against Buyer, under any bankruptcy law or similar statute that
is not vacated within ten (10) days through court order.


9) Indemnity.
a) Benchmark shall indemnify, defend, and hold Buyer and Buyer's affiliates, shareholders, directors, officers, employees, contractors, agents and other representatives harmless from all demands, claims, actions, causes of action, proceedings, suits, assessments, loss es, damages, liabilities, settlements, judgments, fines, penalties, interest, costs and expenses (including fees and disbursements of counsel) of every kind (each a “Claim,” and, collectively “Claims”) based upon personal injury or death or property damage to the extent any of the foregoing is proximately caused by either Benchmark’s manufacturing processes, or the gross negligence or willful acts or omissions of Benchmark or its officers, employees, subcontractors or agents; or intellectual property infringement arising from or in connection with Benchmark’s manufacturing processes or Benchmark background IP.
b) Buyer shall indemnify, defend, and hold Benchmark and Benchmark's affiliates, shareholders, directors, officers, employees, contractors, agents and other representatives harmless from all Claims based upon personal injury or death or property damage to the extent any of the foregoing is proximately caused either by a defective Product, alleged infringement or dilution of any copyright or other proprietary rights of a third party due to products built to Buyer’s information or specification, any defect in buyer-specified materials, components or design of the products or caused by buyer-specified suppliers or by the negligent or willful acts or omissions of Buyer or its officers, employees, subcontractors or agents, or strict liability in tort; or intellectual property infringement arising from or in connection with the Products, Specifications, Buyer background IP and/or Buyer Furnished Items.
c) A Party entitled to indemnification pursuant to subsections a) & b) (“Indemnitee”) shall promptly notify the other Party from whom indemnity is sought (“Indemnitor”) in writing of any claims covered by this indemnity. Promptly after receipt of such notice, the Indemnitor shall assume the defense of such claim with counsel reasonably s atisfactory to the Indemnitee. If the Indemnitor fails, within a reasonable time after receipt of such notice, to assume the defense with counsel reasonably satisfactory to the Indemnitee or, if in the reasonable judgment of the Indemnitee, a direct or indirect conflict of interest exists between the Parties with respect to t he claim, the Indemnitee shall have the right to
undertake the defense, compromise and settlement of such claim for the account and at the expense of the Indemnitor. Notwithstanding the foregoing, if the Indemnitee in its sole judgment so elects, the Indemnitee may also participate in the defense of such action by employing counsel at its expense, without waiving the Indemnitor’s obligation to indemnify and defend. The Indemnitor shall not compromise any claim or consent to the entry of any judgment without an unconditional release of all liability of the Indemnitee to each claimant or plaintiff.


10) Limitations. To the fullest extent allowable by law and except as provided in Section 9) above (Indemnity), IN NO EVENT SHALL BENCHMARK BE LIABLE TO BUYER FOR ANY LOST PROFITS, COSTS OF COVER, OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND OR NATURE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR CONNECTED WITH OR RESULTING FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT, OR USE OF ANY PRODUCTS OR THE FURNISHING OF ANY SERVICE OR PART THEREOF, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAD BEEN WARNED OF THE POSSIBILITY OF ANY SUCH DAMAGES. In no event will Benchmark’s aggregate cumulative liability for any claims arising out of or related to these terms or the products exceed the price actually paid by Buyer for Products which gave rise to such claims. No action relating to Products may be brought by Buyer more than one (1) year after shipment or provision thereof.


11) Confidential Information. “Confidential Information” or “CI” shall mean information (in any form or media) provided by a Party (“Discloser”) to another Party (“Recipient”) regarding Discloser’s customers, prospective customers, methods of operation, engineering methods and processes, programs and databases, patents and designs, vendors and suppliers, prices, business methods and procedures, finances, management, or any other business information relating to Discloser that is marked “Confidential”, or if disclosed orally or otherwise in non -documented form, is identified as confidential at the time of initial disclosure, and is designated as confidential in a writing provided to Recipient within thirty (30) days  after disclosure; provided, however, that CI does not include information that: (i) was known to Recipient prior to receipt from Discloser; (ii) is or becomes part of the public domain through no breach of these Terms; (iii) is received from a third party without breach of any obligation of confidentiality; or (iv) is independently developed by Recipient without reference to CI. For a period of three (3) years from receipt of CI, Recipient shall: (i) maintain as confidential all CI heretofore or hereafter disclosed to it by Discloser; (ii) not, directly or indirectly, disclose any such CI to any person or entity other than those whose duties justify the need to know such CI and then only after each such person or entity has agreed in writing to be bound by terms substantially similar to this Section 11) and clearly understands his or her obligation to protect the confidentiality of such CI and to restrict the use of such CI; and (iii) treat such CI with the same degree of care as it treats its own CI (but in no case with less than a reasonable degree of care). The CI is solely for the purpose of enabling each Party to perform under these Terms, and Recipient shall not use any CI disclosed by Discloser for any other purpose. Except as otherwise set forth in these Terms, all CI shall remain the property of Discloser, and Recipient will promptly return (or certify as to its destruction) within thirty (30) days after written request, except that Recipient may (i) electronically retain CI in its e-mail and other electronic, paper and other archival systems, subject to the obligations not to disclose or use such CI and to use at least the same degree of care in safeguarding the CI as Recipient uses for its own confidential and proprietary information, but wit h no less than reasonable care; (ii) retain any data or record received into or created by the Services that is required by law, rule or regulation to be retained; (iii) retain any data or information as otherwise expressly set forth in these Terms, so long as any retained CI continues to be protected as required under these Terms; and, (iv) retain a single set of copies by and under the control of Recipient’s legal department or counsel for archival purposes. If CI must be disclosed under operation of law or regulation or a court order, Recipient shall notify Discloser prior to disclosing CI to any third party, so that Discloser may intervene to protect its CI.


12) Intellectual Property. Buyer hereby grants to Benchmark a non-exclusive, royalty free license (without the right to sublicense) to use Buyer’s technology (including Buyer-furnished Items) to manufacture and sell the Products exclusively to customer and to no other Party. Except as may be required to perform warranty or other continuing obligations, upon the termination or expiration of this agreement: (a) the licenses granted herein by Buyer shall terminate; (b) Benchmark shall deliver to Buyer all materials possessed by it relating to Buyer’s technology; and (c) Benchmark shall cease all further use of Buyer’s technology. Each Party retains all right, title and interest in and to any respective background IP.


13) Insurance. Buyer agrees to carry the following insurance: Workers’ Compensation and Employers Liability Insurance a s prescribed by state or country law with minimum limits of $5,000,000 per accident / $5,000,000 per disease / $5,000,000 policy limit; Comprehensive Automobile Liability – Bodily Injury/Property Damage Insurance covering all motor vehicles used in connection with these Terms, with minimum limits of $1,000,000 combined single limit per occurrence; Comprehensive General Liability Insurance, including blanket contractual liability and broad form property
damage, with minimum limits of $5,000,000 combined single limit per occurrence and an aggregate limit of at least $20,000,000 but in no event less than the amount otherwise carried by the contract holder. Coverage must be written on ISO occurrence form CG 00 01 12 04 (or an equivalent substitute form) or ISO claims-made form CG 00 02 12 04 (or an equivalent substitute form). The policy must include coverage for, but not limited to, Bodily Injury and Property Damage, Personal Injury and Advertising Injury, Fire legal liability, Products Liability (including with respect to the design of the Products and all components) and completed operations.


14) Compliance with Laws. Buyer and Seller shall, respectively, at all times comply with all applicable governmental laws, statutes, ordinances, rules, regulations, orders, and other requirements, health, safety, wages, hours, immigration, equal employment opportunity, nondiscrimination, working conditions, import or export control, customs, and transportation. These laws include all laws covering anti -corruption/anti-bribery, including the Foreign Corrupt Practices Act (FCPA) and applicable export regulations (EAR, ITAR and OFAC). The Parties hereby represent that neither Party nor any parent, subsidiary or affiliate of a Party is included on any of the restricted party lists maintained by the U.S. Government or the consolidated list of asset freeze targets designated by the United Nations, European Union, and United Kingdom.
a) Product Content Regulation. Upon written request, Benchmark shall: (i) certify in writing that its Product manufacturing processes comply with applicable PCR; (ii) provide Buyer with compliance information regarding applicable PCR for the consumable (MRO) materia ls which Benchmark adds to the Product and which are not typically listed on the bill of materials (“BOM”)(for example, solder paste), and for open source components, if any, for which Buyer has delegated selection authority to Benchmark; (iii)provide Buyer with SVHC compliance information o n Products obtained through “passive sourcing” (notifying the manufacturer once of requirements and passing supplied PCR information to Buyer), as may be required of Benchmark under REACH Article 33; (iv) provide Buyer with Product environmental documentation obtained from Component suppliers through Passive Sourcing; and (v) provide disclosures legally required regarding Conflict Minerals. Except as provided in the prior sentence, Benchmark has no responsibility or obligation to evaluate, document or demonstrate that any design, Spe cification(s), BOM, components, Products, packaging or labeling satisfy any PCR which may be applicable to the components and/or Product(s). Buyer shall have the sole responsibility to evaluate and ensure that all Product design elements (including any Specifications, BOM, components, approved vendor list and/or approved manufacturer list) meet the requirements of any applicable PCR, including whether all components and materials incorporated into, and the packaging and labeling of, such Product(s) conform to any applicable PCR. Buyer shall have the sole responsibility and expense for any Product’s required PCR compliance, including: (i) any REACH-required application and registration, and/or otherwise obtaining compliance for all Products, Buyer-directed processes and/or components; and (ii) any WEEE-required funding or utilizing recycling mechanisms applicable to any Product and/or Component. “Product Content Regulation” or “PCR” shall refer to the following laws and/or regulations on content, packaging, or labeling of Products, components or substances, and/or similar issues concerning the Products or components: “RoHS” (EU Directive 2002/95/EC on Restriction on the use of certain Hazardous Substances in electrical and electronics equipment); “WEEE” (EU Directive 2002/96/EC on Waste Electrical and Electronic Equipment); “REACH” (EC Regulation No 1907/2006 on Registration, Evaluation and Authorization of Chemicals); and EU Member State’s implementations of the foregoing; “Conflict Minerals” as defined in the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act § 1502(b), implementing legislation and rules; the People’s Republic of China (PRC) Measures for Administration of the Pollution Control of Electronic Information Products of 2006; and/or any other mutually agreed PCR; together with implementing regulations and/or administrative rules.


15) Force Majeure. Benchmark shall not be responsible for any failure to perform due to the occurrence of unforeseen circumstances beyond Benchmark’s reasonable control and which could not have been avoided by exercise of due care.


16) Audit. Buyer shall not be allowed the right to audit or examine Benchmark’s financial books and records.


17) Assignment. Neither these Terms nor any rights or obligations hereunder shall be transferred or assigned by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Any purported assignment without written consent shall be void.


18) Notices. Any notices required or permitted hereunder shall be given to the appropriate Party at the address specified in the Quote or at such other address as the Party shall specify in writing, and sent to the attention of such Party’s Chief Executive Officer. Such notice shall be sent by certified mail, return receipt requested, or by FedEx or other reputable delivery service.


19) Governing Law. These Terms shall be interpreted in accordance with the laws of the state of Arizona. The Parties acknowledge and agree that the state courts of Maricopa County, Arizona and the United States District Court for the District of Arizona shall have exclusive jurisdiction and venue to adjudicate any and all disputes arising out of or in connection with these Terms. Buyer and Benchmark specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods. Each Party irrevocably submits to the jurisdiction of the Courts for the litigation of Disputes, and irrevocably waives and agrees not to assert any claim or defense that the Party is not subject to the jurisdiction of the Courts, or that the Courts are an inconvenie nt forum or an improper venue. Each Party shall bear their own attorneys’ fees and costs expended in connection with the resolution of any Disputes.


20) Survival/Waiver. If any provision of these Terms is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. Sections of these Terms relating to limitation of liability, warranties, confidentiality, exclusivity, notices, disputes and governing law, and such other clauses which by their nature govern rights and obligations of the Parties after the expiration or termination of these Terms shall survive such expiration or termination. The waiver by either Party of a breach of any provision of these Terms will not operate or be interpreted as a waiver of any other or subsequent breach.


21) Business Ethics and Compliance. Benchmark is committed to industry best practices in business ethics, worker safety and fairness, environmental responsibility, integrity and efficiency, and requires the same of all of its business partners. In the event that Buyer has cause to believe that Benchmark or any employee or agent of Benchmark has acted improperly or unethically under these Terms, Buyer should report such conduct to Benchmark at www.bench.ethicspoint.com.


22) Integration. These Terms set forth the entire understanding and agreement of the Parties and supersedes any and all oral or written agreements or understandings between the Parties as to the subject matter of these Terms, and may be changed only by a writing signed by both Parties. Any purported oral modification of these Terms shall be void. This Agreement is intended for the sole and exclusive benefit of the Parties and is not intended to benefit any third party. A person who is not a Party to these Terms may not enforce any of its terms.

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