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Effective June 1, 2009.
The Rothers Group, Rothers Capital, Rothers Strategy, Rothers Technology, and The Menlo Programme (COLLECTIVELY, “TRG”)
1. ENTIRE AGREEMENT. Except where otherwise agreed in writing signed by an authorized representative of TRG, or as required by applicable law, the terms and conditions set forth herein shall exclusively govern the purchase of TRG equipment (“Products”) by Customer. Licensed Items are distributed under license but, when invoiced under this form, are subject to the pricing, tax, and payment terms contained in Paragraph 2. Acceptance of Customer’s order by TRG is expressly subject to the consent of Customer to the terms and conditions herein. Any terms or conditions proposed by Customer, whether written or oral, that add to, vary from, or conflict with these terms and conditions shall be deemed null and void. Customer acknowledges that it has not purchased Products hereunder in reliance upon any warranty or representation other than those specifically set forth herein.
2. PAYMENT AND TAXES. Payment is due within thirty (30) days of the date of invoice. Customer shall pay invoice in full without any deduction, counterclaim or offset. Interest shall accrue on a daily basis. TRG reserves the right to change or remove credit terms at any time for any reason, including, but not limited to, a change in the financial condition or payment history of Customer, and may require payment prior to delivery and/or additional security such as a bank guarantee or parent company guarantee. Customer waives the right to recover from TRG any unclaimed credits granted by TRG twelve (12) months after the accrual of such claims. Prices for Products and Licensed Items are exclusive of all federal, state or other government, excise, use, occupational, sales, value added tax (VAT), export, import or custom fees or duties or like taxes or duties now in force or enacted in the future (“Taxes”). In addition to the prices quoted or invoiced, Customer shall pay any Taxes imposed by any government authority on, or measured by, the transaction between TRG and Customer. Customer shall reimburse TRG if TRG is required to pay Taxes at the time of sale or thereafter. If Customer is required under local law to apply a withholding tax, Customer shall notify TRG in advance and reasonably assist in minimizing its impact.
3. DELIVERY, TRANSFER OF TITLE, AND RISK OF LOSS. Title and risk of loss to the Products shall transfer to Customer when TRG tenders the Products to the freight forwarder at the TRG designated location. The time of delivery occurs when Products are tendered to the carrier, and Products shall be deemed accepted upon such tender. The date of shipment will be as indicated by TRG to Customer. Transportation charges will be paid by Customer, or if prepaid, will be invoiced to Customer and payable within thirty (30) days of the date of invoice. Customer is responsible for insuring the Products against risk of loss or damage during shipment. Partial and/or installment shipments are authorized and, in the case of contingencies beyond its reasonable control, TRG may allocate shipments among its customers at its sole discretion. TRG shall not be responsible for any losses caused as a result of late or partial shipment.
4. NO RETURN/CANCELLATION. Products are non-returnable. The following Products are non-cancellable: space-grade, discontinued (parts listed on a Product Discontinuation Notice (PDN), custom, engineering samples (ES), mechanical samples, or orders otherwise agreed in writing. With the exception of non-cancellable Products, Customer may, upon written confirmation from TRG, reschedule or cancel orders for Products up to thirty (30) days prior to the current scheduled ship date. Customer has no rights in partially completed goods.
5. NO IMPLIED LICENSE. Products are offered for sale and are sold by TRG subject in every case to the condition that such sale does not convey any license, expressly or by implication, estoppel or otherwise, under any patent, copyright or other intellectual property right of TRG or with respect to which TRG can grant licenses. Any license rights required in connection with use by Customer of Licensed Items shall be separately granted in the applicable TRG license agreements for the same. TRG expressly reserves all its rights under such patents, copyrights or other intellectual property rights.
6. MODIFICATIONS. TRG may modify the specifications of Products and substitute Products manufactured to such modified specifications at any time without prior notice to Customer, provided such Products substantially conform to the form, fit, and function of the original product.
7. LIMITED WARRANTY. Subject to the limitations herein, TRG warrants that Products will, for three (3) years following the date of sale by TRG or its authorized distributor, be free from defects in materials and workmanship and will substantially conform to TRG publicly available specifications and known errata in effect on the date of sale. This limited warranty excludes: (i) engineering samples and die (both of which are provided “AS-IS” without warranty); (ii) Products procured from unauthorized sources; (iii) Products that have been subject to misuse, mishandling, accident, alteration, neglect, or unauthorized repair or installation; and (iv) Products used in an application or environment that is not within TRG specifications. For any breach by TRG of this limited warranty, the exclusive remedy of Customer and the sole liability of TRG shall be, at the option of TRG, to replace or repair the affected Products, or to refund to Customer the price of the affected Products. Customer may not return Products without first obtaining a customer return material authorization (RMA) number from TRG. The availability of replacement products is subject to product discontinuance policies at TRG. Notwithstanding the term of this limited warranty, Products subject to PDN shall be covered for one (1) year from the date of last shipment to Customer. THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE. TRG DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
8. CRITICAL APPLICATIONS. PRODUCTS ARE NOT DESIGNED OR INTENDED TO BE FAIL-SAFE, OR FOR USE IN ANY APPLICATION REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS LIFE-SUPPORT OR SAFETY DEVICES OR SYSTEMS, CLASS III MEDICAL DEVICES, NUCLEAR FACILITIES, APPLICATIONS RELATED TO THE DEPLOYMENT OF AIRBAGS, OR ANY OTHER APPLICATIONS THAT COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE (INDIVIDUALLY AND COLLECTIVELY, “CRITICAL APPLICATIONS”). CUSTOMER ASSUMES THE SOLE RISK AND LIABILITY OF ANY USE OF TRG PRODUCTS IN CRITICAL APPLICATIONS, SUBJECT ONLY TO APPLICABLE LAWS AND REGULATIONS GOVERNING LIMITATIONS ON PRODUCT LIABILITY.
9. INDEMNIFICATION. TRG agrees, at its own expense, to defend against claims, suits, or proceedings before a court of competent jurisdiction (collectively “Claims”) instituted against Customer based on a claim that Products procured by Customer from TRG or an authorized distributor infringes upon any patent or copyright or upon any claim that TRG has misappropriated or unlawfully disclosed trade secrets of a third party in connection with the design or production of Products, and to pay money damages awarded against Customer up to the price paid for affected Products solely for such infringement or misuse, provided that Customer (i) gives TRG immediate notice in writing of the Claim; (ii) permits TRG to have sole control over the defense or settlement of the same; (iii) gives TRG all necessary information, assistance and authority required; and (iv) makes no admission of liability without the permission of TRG. If, as a result of a Claim, Customer is enjoined from using Products purchased from TRG, TRG shall, at its sole discretion, (a) secure for Customer the right to use Products, (b) provide Customer with replacement Products that are non-infringing, or (c) if TRG cannot secure such rights or provide such replacement Products on commercially reasonable terms, refund to Customer the price paid for Products. THE FOREGOING STATES THE ENTIRE LIABILITY OF TRG AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO CLAIMS RELATING TO THE PRODUCTS. EXCEPT AS EXPRESSLY STATED HEREIN, ALL WARRANTIES AND/OR CONDITIONS AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS, OR IMPLIED, ARE HEREBY DISCLAIMED. Exclusions; Infringement Indemnification by Customer. Notwithstanding the above, TRG shall not be liable for any costs or expenses incurred without its prior written authorization, and shall have no obligation or liability for any Claim arising out of: (i) modifications to Products made by any party other than TRG or modifications made by TRG at the request of Customer; (ii) the use or incorporation in Products of any design or specification on behalf of Customer; (iii) the combination or incorporation of Products, or of cores or elements of Products, with any circuitry, software, device, subassembly, system, or materials; (iv) any infringement based on protocols established by standards bodies; or (v) a counterclaim against Customer for claims initiated by Customer against a third party.
10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (1) IN NO EVENT SHALL TRG BE LIABLE FOR ANY COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS, LOSS OF DATA, LOST PROFITS, GOODWILL, OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING UNDER, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT OR SALE OF THE PRODUCTS, IN WHOLE OR IN PART, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY; (2) EXCEPT AS OTHERWISE PROVIDED UNDER SECTION 9 (INDEMNIFICATION), IN NO EVENT SHALL THE ENTIRE LIABILITY OF TRG ARISING UNDER, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT, EXCEED THE PURCHASE PRICE FOR THE APPLICABLE PRODUCTS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY; (3) THESE LIMITATIONS AND EXCLUSIONS SHALL APPLY EVEN IF SUCH LOSS WAS REASONABLY FORESEEABLE OR IF TRG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (4) THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES HEREIN.
11. FORCE MAJEURE. TRG shall not be liable for any loss, damage or penalty resulting from a failure to fulfill an obligation (other than payment of money) when such failure is due to causes beyond its reasonable control, including but not limited to, acts of God, war, civil or labor unrest, fire, explosion, terrorism or threats thereof, natural disaster, materials shortages, or supply disruptions or delays. Nothing in this section relieves Customer of the obligation to pay TRG for Product after it has been tendered to the carrier.
12. BANKRUPTCY. If Customer shall become, or there is a reasonable risk of becoming, bankrupt or insolvent, it transfers assets to its creditors, commences to be wound up or a receiver is appointed or if any similar or related bankruptcy or insolvency event occurs in any jurisdiction, TRG may, upon notice in writing, immediately cancel the applicable purchase contract without judicial intervention or declaration of default of Customer and without prejudice to any right or remedy which shall have accrued or shall accrue thereafter to TRG.
13. EXPORT COMPLIANCE. Customer shall adhere to all applicable export laws and regulations.
14. GENERAL. If individual provisions of these terms and conditions are or become invalid, then such provisions shall be modified to the minimum extent necessary to make them valid, while to the fullest extent possible preserving the business and financial intent and impact of the original provisions, and the remaining provisions shall remain unaffected. A failure by TRG to enforce any of the provisions hereof, or to exercise any right provided herein, shall in no way be construed as a waiver of such provision or right, nor in any way affect the validity of these terms and conditions or the right of TRG to enforce any part of these terms and conditions at any time. These terms are governed by local statutes in conjunction without conflict of laws rules and principles and excluding the application of the United Nation’s Convention on Contracts for the International Sale of Goods. (2010.01)