Legal, Terms & Conditions
LEGAL & PRIVACY
Attention: please read all these provisions ("terms") carefully before using this web site. Using this web site indicates your agreement and acceptance of these terms. If you do not accept these terms, do not use this web site or download materials from this site.
The Site and its Use
The Artesyn Embedded Technologies Inc. ("Artesyn") website ("Site") is owned and provided by Artesyn from its offices in Carlsbad, California and Tempe, Arizona. Each Site is provided for your personal information and non-commercial use. Please feel free to browse the Site; however, your access to and use of the Site is subject to these Terms and all applicable laws. You shall use the Site for lawful purposes only. You shall not post or transmit through the Site any information or material which violates or infringes, in any way, the rights of others, or which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, harassing, or otherwise objectionable. Nor shall you post or transmit through the Site any information or material which encourages conduct that would constitute a criminal offense, give rise to liability or otherwise violate any law or administrative ruling or guidelines, is in violation of these Terms, or which, without Artesyn's prior written approval, contain advertising or any solicitation with respect to products or services. Any conduct by you that, in Artesyn's opinion, restricts or inhibits any other user from using or enjoying the Site will not be permitted.
The Site contains information and materials, including but not limited to, text, software, photos, video, graphics and audio, (collectively "Materials") which are derived in whole or in part from information and materials supplied by Artesyn and other sources, and are protected by international copyright, trademark and other laws and the entire content of the Site is copyrighted as a collective work under the United States Copyright Laws. Artesyn owns the copyright in the overall selection, coordination, arrangement and enhancement of such content, and owns the rights in, or license to use, the individual components of such content. Materials may not be copied, reproduced, republished, modified, uploaded, posted, transmitted or distributed in any way or decompiled, reverse engineered or disassembled, including but not limited to the text, images, audio and/or video, as well as any software (including but not limited to any images or files incorporated in or generated by the software or data accompanying such software), except that you may download one copy of the Materials on any single computer for your personal, non-commercial use only, provided you keep intact all copyright, trademark and other proprietary notices and make no change in or deletion of author attribution. This limited authorization is not a transfer of title in the Materials and by your use of the Site, you acknowledge that you do not acquire any license, ownership or other rights to the Materials. Modification of the Materials or use of the Materials for any other purpose is a violation of Artesyn's or such other sources' copyright, trademark and other proprietary rights and may violate other laws. The use of any such Materials on any other website or networked computer or environment is prohibited without Artesyn's express written consent. If you breach any of these Terms, your authorization to use the Site automatically terminates and you must immediately destroy any downloaded or printed Materials.
The site and materials and related communications are provided "as is" without any representations or warranties, express or implied, of any kind, including, but not limited to, warranties of merchantability, non-infringement, or fitness for particular purpose. Some jurisdictions do not allow for the exclusion of implied warranties, so the above exclusions of implied warranties may not be applicable under certain circumstances. Artesyn also does not warrant the accuracy or completeness of the materials, including but not limited to the reliability of any advice, statement or other information displayed or distributed through the Site. You acknowledge by the use of the Site that any reliance on any such materials, advice, statement or information shall be at your sole risk. Artesyn assumes no responsibility, and shall not be liable for any damages to, or viruses that may infect, your computer equipment or other property on account of your access to, use of, or browsing in the Site (including any bulletin board and chat room) or your downloading of any materials from the site.
Artesyn may provide as a convenience to you, links to websites operated by other entities and persons, but makes no representations whatsoever about any other website which you may access through this one. Any link to a non-Artesyn website does not mean that Artesyn endorses or accepts any responsibility for the content, or the use of such website. If you use these sites, you do so at your own risk. Artesyn makes no warranty or representation regarding, and does not sponsor or endorse, any linked websites or the information or materials appearing thereon or any of products and services described thereon. Furthermore, links do not imply that Artesyn is affiliated or associated with, or that any linked site is authorized to use any trademark, trade name, logo, or copyright of Artesyn.
Third Party Content
Any opinions, statements, services, offers or other information or content expressed or made available in the Site by any third party are those of the respective author(s) or distributor(s) and not of Artesyn.
Limitation of Liability
Your use and browsing of the Site is at your risk. If you are dissatisfied with any of the Materials contained in the Site, or with any of these Terms, your sole and exclusive remedy is to discontinue accessing and using the Site. Under no circumstances will Artesyn, its suppliers or other third parties mentioned at, or involved in creating, producing, or delivering the Site be liable for any direct, incidental, consequential, indirect, special or punitive damages whatsoever (including without limitation, costs and expenses of any type incurred, lost profits, lost data or programs, and business interruption) arising out of your access to, use, inability to use or the results of use of the site, any websites linked to the site, or any materials contained at any or all such sites (including but not limited to those caused by or resulting from a failure of performance; error; omission; linking to other websites; interruption; deletion; defect; delay in operation or transmission; computer virus; communication line failure; or destruction, unauthorized access to, alteration of, or use of any computer or system), whether based on warranty, contract, tort, negligence, strict liability, or any other legal theory and whether or not Artesyn was advised of the possibility of such damages. Artesyn shall have no liability or responsibility for any acts, omissions, or conduct of any user or other third party. Artesyn's obligations and responsibilities regarding its products and services are governed solely by Artesyn's terms and conditions of sale or license under which such products and services are sold or licensed. Copies of such terms and conditions are available from Artesyn.
Year 2000 Information and Readiness Disclosure Act of 1998
Information contained on Artesyn's past and present Year 2000 website pages regarding products and services offered by Artesyn are "Year 2000 Readiness Disclosures" under the Year 2000 Information and Readiness Disclosure Act of 1998, a U.S. statute. Information on Year 2000 regarding non-Artesyn products and services are "Republications" under the Act based on information supplied by other companies and persons about the products and services they offer. Artesyn has not independently verified the contents of these Republications and takes no responsibility for the accuracy or completeness of information contained in such republications.
Information Provided By You
It has been and remains Artesyn's policy not to accept or consider ideas, suggestions or materials other than those that Artesyn has specifically requested from you. Accordingly, Artesyn does not want you to, and you should not, send any confidential or proprietary information to Artesyn through the Site unless specifically requested by Artesyn. Please note that any unsolicited information or material sent to Artesyn will be deemed not to be confidential or proprietary. By submitting information and material to the Site, you automatically grant to Artesyn (or warrant that the owner of such information and material has expressly granted to Artesyn) a royalty-free, perpetual, irrevocable, unrestricted, right and license to use, reproduce, display, perform, modify, adapt, publish, translate, transmit and distribute, or otherwise make available to other such information and material (in whole or in part and for any purpose) worldwide and/or to incorporate it in other works in any form, media, or technology now known or hereafter developed. You also agree that Artesyn is free to use any ideas, concepts, know-how, or techniques that you send Artesyn for any purpose. As further provided above, Artesyn does not want to receive, and you are deemed to covenant and agree through the use of the Site not to provide, any information or materials to Artesyn that are defamatory, threatening, obscene, harassing, in violation of any law, governmental requirements or otherwise unlawful, or that incorporate the proprietary information or materials of another person or entity. You shall not upload, post or otherwise make available on the Site any information and material protected by copyright, trademark or other proprietary right without the express written permission of the owner of such right(s). You shall be solely liable for any damages resulting from any infringement of copyright, proprietary rights, or any other harm resulting from such a submission.
Artesyn reserves the right, in its sole discretion, to revise these Terms at any time and correct any errors or omissions in any portion of the Site and Materials. Materials may also be changed, modified, added, or removed and updated without notice at any time; however, Artesyn is under no obligation to update Materials. Artesyn may also make changes in the products, services, programs, or prices (if any) described in the Site at any time without notice. Your continued use of the Site after any change Artesyn makes to the Site will be considered acceptance of those changes. You should revisit these Terms from time to time to review the then-current Terms because they are binding on you.
Linking to Site:
Anyone linking to Artesyn's Site must comply with Artesyn's guidelines for linking to Artesyn's Site, which may be requested from Artesyn, and all applicable laws.
The Site is administered by Artesyn from its offices in the United States. Materials published at the Site may refer to products, programs, or services that are not available in your country. Consult your local Artesyn business contact in this regard. Furthermore, Artesyn makes no representation that the Materials at the Site are appropriate or available for use at other locations outside of the United States and access to them from territories where their contents are illegal is prohibited. You may not use the Site or export information and materials in violation of the export laws of the United States or any other country. If you access the Site from a location outside of the United States, you are responsible for compliance with all applicable laws.
These Terms shall be governed by the laws of the State of California, without giving effect to any principles of conflicts of law. If any provision of this Agreement and Terms shall be unlawful, void, or for any reason unenforceable then that provision shall be severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms constitute the entire agreement between Artesyn and you with respect to your use of the Site. Any cause of action you may have with respect to your use of the Site must be commenced within six (6) months after the claim or cause of action arises.
Artesyn is aware of the need to address Internet privacy issues and we believe you should be aware of how we intend to treat any information about you that we might receive on the Internet as a result of your visit to the Site.
Information About Artesyn On-Line Visitors
You can visit Artesyn on the Site without telling us who you are or revealing any information about yourself. Our web servers collect the domain names, not the e-mail addresses, of visitors. In general, we gather information about users of the Site collectively in order to determine, for example, which areas users access more frequently and which Materials users access the most. This information helps us to determine what is most beneficial for our users, and how we can continually create a better overall experience for our users by improving the content of the Site. There are times however, when we may need information from you, such as your name and address. Customarily, the personal information Artesyn obtains is used only to respond to inquiries, to process orders, product registration or to allow the user to access specific account information. We may also ask you to voluntarily provide us with information for market research such as, your interests, demographics, and experience with our products. Occasionally, we may make the e-mail addresses of those who provide information available to other reputable organizations whose products or services we think you may find interesting.
If at anytime Artesyn changes its privacy commitment, Artesyn will post those changes here so that you will know what information Artesyn gathers and how Artesyn might use that information.
© 2014, Artesyn Embedded Technologies Inc., All Rights Reserved
Terms and Conditions of Sale
The Artesyn Embedded Technologies company that accepts Buyer’s order for Goods is herein referred to as the "Seller" and the person or entity purchasing goods or services ("Goods") and/or licensing software and/or firmware which are preloaded, or to be loaded into Goods ("Software") from Seller is referred to as the "Buyer." These Terms and Conditions, together with any price list or schedule, quotation, acknowledgment or invoice from Seller relevant to the sale of the Goods and licensing of Software and all documents incorporated by specific reference herein or therein constitute the complete and exclusive statement of the terms governing the sale of Goods and license of Software by Seller to Buyer. Seller’s acceptance of Buyer’s purchase order is expressly conditional on Buyer’s assent to all of Seller’s terms and conditions of sale, including terms and conditions that are different from or additional to the terms and conditions of Buyer’s purchase order, and Seller expressly rejects any additional or conflicting terms specified in Buyer’s purchase order or any other document provided by Buyer. Buyer's acceptance of the Goods and/or Software will manifest Buyer's assent to these Terms and Conditions. Seller reserves the right in its sole discretion to refuse orders. Notwithstanding anything to the contrary, in the event that the provisions of these Terms and Conditions conflict with the provisions of an effective agreement signed by a duly authorized representative of both parties (“Effective Agreement”) that applies to the transaction(s) contemplated herein, the Effective Agreement shall control.
1. PRICES: Unless otherwise specified in writing by Seller, the price quoted or specified by Seller for the Goods and/or Software shall remain in effect for 30 days after the date of Seller's quotation or acknowledgment of Buyer's order for the Goods and/or Software, whichever occurs first, provided an unconditional authorization from Buyer for the shipment of the Goods and/or Software is received and accepted by Seller within such time period. If such authorization is not received by Seller within such 30 day period, Seller shall have the right to change the price and other terms applicable to the Goods and/or Software to Seller’s standard price and terms for the Goods and/or Software at the time of shipment. All prices and licensee fees are exclusive of taxes, transportation and insurance, which are to be borne by Buyer.
2. TAXES: Any current or future tax or governmental charge (or increase in same) affecting Seller's costs of production, sale, or shipment, or which Seller is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, use or consumption of Goods and/or Software, shall be for Buyer's account and shall be added to the price or billed to Buyer separately, at Seller’s election.
3. TERMS OF PAYMENT: Unless otherwise specified by Seller, terms are net 30 days from date of Seller's invoice by bank wire transfer or automated clearing house in U.S. currency. Seller shall have the right, among other remedies, either to terminate this agreement and/or any other agreements between Seller and Buyer, or to suspend further performance under this and/or other agreements with Buyer in the event Buyer fails to make any payment when due, which other agreements Buyer and Seller hereby amend accordingly. Buyer shall be liable for all expenses, including attorneys' fees, relating to the collection of past due amounts. If any payment owed to Seller is not paid when due, it shall bear interest, at a rate to be determined by Seller, which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is paid. Any payment due to either party under this agreement shall be made in full without any set-off, restriction, condition deduction or withholding for or on account of any counterclaim. Should Buyer's financial responsibility become unsatisfactory to Seller, Seller may require Buyer to immediately pay in full all amounts due to Seller, and cash payments or security satisfactory to Seller may be required by Seller for future deliveries of the Goods and/or Software. If such cash payment or security is not provided, in addition to Seller's other rights and remedies, Seller may discontinue deliveries.
4. SHIPMENT AND DELIVERY: While Seller will use commercially reasonable efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments. Seller, at its option, shall not be bound to tender delivery of any Goods and/or Software for which Buyer has not provided shipping instructions and other required information. If the shipment of the Goods and/or Software is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom. Risk of loss and legal title to the Goods shall transfer from Seller to Buyer upon delivery to and receipt by carrier at Seller’s shipping point. As permitted by local law, as collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under applicable law. Unless otherwise specified by Seller, all shipments are F.C.A. Seller’s shipping point (Incoterms 2010). Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by Buyer directly to the carrier. Shortages or damages must be identified and signed for at the time of delivery.
Buyer shall inspect Goods delivered to it by Seller immediately upon receipt, and, any course of dealing to the contrary notwithstanding, failure of Buyer to give Seller notice of any claim within 10 days after receipt of such Goods shall be an unqualified acceptance of such Goods.
5. LIMITED WARRANTY: Subject to the limitations of Section 6 and unless otherwise specified by Seller in writing, Seller warrants that the Goods manufactured by Seller will be free from defects in material and workmanship and substantially meet Seller's published specifications at the time of shipment under normal use and regular service and maintenance for (a) the period specified in Seller’s then current product data sheets from the date of manufacture by Seller in the case of standard Embedded Power Goods, (b) 2 years from initial shipment in the case of standard Embedded Computing Goods, and (c) the period, if any, specified by Seller in writing in the case of custom Embedded Power Goods and custom Embedded Computing Goods. Services will be performed in a professional manner and in accordance with industry standards. Unless otherwise stated in writing in a separate Software license agreement or otherwise, Seller makes no warranty as to any Goods/Software. THE WARRANTIES SET FORTH IN SECTIONS 5 AND 7 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER WITH RESPECT TO THE GOODS AND SOFTWARE AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT SELLER'S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER'S USE OR PURPOSE.
These warranties do not extend to any losses or damages due to misuse, accident, abuse, neglect, negligence (other than Seller's), unauthorized modification or alteration, use beyond rated capacity, unsuitable power sources or environmental conditions, improper installation, repair, handling, maintenance or application or any other cause not the fault of Seller. To the extent that Buyer or its agents have supplied specifications, information, representation of operating conditions or other data to Seller in the selection or design of the Goods and the preparation of Seller's quotation, and in the event that actual operating conditions or other conditions differ from those represented by Buyer, any warranties or other provisions contained herein that are affected by such conditions shall be null and void.
If within 30 days after Buyer's discovery of any warranty defects within the warranty period, Buyer notifies Seller thereof in writing, Seller shall, at its option and as Buyer’s exclusive remedy, repair, correct or replace per its return policy, or refund the purchase price for, that portion of the Goods found by Seller to be defective. Failure by Buyer to give such written notice within the applicable time period shall be deemed an absolute and unconditional waiver of Buyer's claim for such defects. Advance written permission to return Goods must be obtained from Seller. Such Goods must be shipped transportation prepaid to Seller. Returns made without proper written permission will not be accepted by Seller. Seller reserves the right to inspect Goods prior to authorizing return. Goods repaired or replaced during the warranty period shall be covered by the foregoing warranties for the remainder of the original warranty period or 90 days from the date of shipment, whichever is longer.
Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Goods and/or Software, either alone or in combination with other products/components.
PRE-PRODUCTION (Prototype, Engineering Verification Test, or Design Verification Test) UNITS ARE SOLD “WHERE IS, AS IS, WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR INTENDED PURPOSE.
6. LIMITATION OF REMEDY AND LIABILITY: OTHER THAN WITH RESPECT TO THE PATENT AND COPYRIGHT WARRANTY PROVIDED UNDER SECTION 7 (FOR WHICH THE EXCLUSIVE REMEDIES ARE THOSE EXPRESSLY SET FORTH IN THAT SECTION), BUYER’S SOLE AND EXCLUSIVE REMEDY RELATING TO THIS AGREEMENT OR ANY GOODS OR SOFTWARE PROVIDED HEREUNDER, WHETHER ARISING UNDER CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO REPAIR, CORRECTION OR REPLACEMENT, OR REFUND OF THE PURCHASE PRICE UNDER SECTION 5.
SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND THE REMEDIES OF BUYER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. EXCEPT FOR DAMAGES ARISING FROM DEATH, BODILY INJURY OR PROPERTY DAMAGE, IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER'S LIABILITY TO BUYER AND/OR ITS CUSTOMERS FOR ANY DIRECT DAMAGES OF ANY VARIETY (INCLUDING ANY BREACH OF SECTION 19 BELOW) EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS OR SOFTWARE PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT IN NO EVENT SHALL SELLER'S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. The term "consequential damages" shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use, revenue, reputation and data, costs of procurement of substitute goods or services, costs incurred, including without limitation, for capital, fuel, power, cover and loss or damage to property or equipment.
It is expressly understood that any technical advice furnished by Seller with respect to the use of the Goods and/or Software is given without charge, and Seller assumes no obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Buyer's risk.
7. PATENTS AND COPYRIGHTS: Subject to the limitations of the second paragraph of Section 6, Seller warrants that the Goods sold, except as are made specifically for Buyer according to Buyer's specifications, do not infringe any valid U.S. patent or copyright in existence as of the date of shipment. This warranty is given upon the condition that Buyer promptly notifies Seller of any claim or suit involving Buyer in which such infringement is alleged and cooperates fully with Seller and permits Seller to control completely the defense, settlement or compromise of any such allegation of infringement. Seller's warranty as to utility patents only applies to infringement arising solely out of the inherent operation according to Seller’s specifications and instructions of such Goods. In the event such Goods are held to infringe such a U.S. patent or copyright in such suit, and / or the use of such Goods is enjoined, or in the case of a compromise or settlement by Seller, Seller shall have the right, at its option and expense and as Buyer’s sole and exclusive remedy for a violation of the warranty contained in this Section, to procure for Buyer the right to continue using such Goods, or replace them with non-infringing Goods, or modify same to become non-infringing, or grant Buyer a credit for the depreciated value of such Goods and accept return of them. In the event of the foregoing or, if in Seller’s opinion, Seller receives a credible allegation of infringement, Seller may also, at its option, cancel or suspend this agreement as to future deliveries of such Goods, without liability.
8. EXCUSE OF PERFORMANCE: Seller shall not be liable for delays in performance or for non-performance due to acts of God; acts of Buyer; war; fire; flood; weather; sabotage; epidemics; strikes or labor disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of or delays in transportation; restrictions, allocations or disruption of suppliers or default of suppliers; or unforeseen circumstances or any events or causes beyond Seller's reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of any of the foregoing, but the balance of the agreement shall otherwise remain unaffected as a result of the foregoing.
If Seller determines that its ability to supply the total demand for the Goods, or to obtain material used directly or indirectly in the manufacture of the Goods, is hindered, limited or made impracticable due to causes set forth in the preceding paragraph, Seller may allocate its available supply of the Goods or such material (without obligation to acquire other supplies of any such Goods or material) among its purchasers on such basis as Seller determines to be equitable without liability for any failure of performance which may result therefrom.
9. RESCHEDULE/CANCELLATION: Unless otherwise agreed in writing by Seller, orders under this agreement may not be rescheduled or canceled by Buyer for any reason.
10. CHANGES: Buyer may request changes or additions to the Goods and/or Software consistent with Seller's specifications and criteria. In the event such changes or additions are accepted by Seller, Seller may revise the price, license fees and dates of delivery.
Seller reserves the right to change designs and specifications for the Goods and/or Software without prior notice to Buyer, except with respect to Goods and/or Software being made‑to‑order for Buyer. Seller shall have no obligation to install or make such change in any Goods and/or Software manufactured prior to the date of such change.
11. NUCLEAR/MEDICAL: GOODS AND SOFTWARE SOLD HEREUNDER ARE NOT FOR USE IN CONNECTION WITH ANY NUCLEAR, MEDICAL, LIFE-SUPPORT, AIRCRAFT CONTROL, AND OTHER HIGH RISK APPLICATIONS WHERE GOODS OR SOFTWARE FAILURE COULD LEAD TO LOSS OF LIFE OR CATASTROPHIC PROPERTY DAMAGE. Buyer accepts Goods and Software with the foregoing understanding, agrees to communicate the same in writing to any subsequent purchasers or users and to defend, indemnify and hold harmless Seller from any claims, losses, suits, judgments and damages, including incidental and consequential damages, arising from such use, whether the cause of action be based in tort, contract or otherwise, including allegations that the Seller’s liability is based on negligence or strict liability.
12. ASSIGNMENT: Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Seller, and any such assignment, without such consent, shall be void.
13. SOFTWARE: Notwithstanding any other provision herein to the contrary, Seller or applicable third party licensor to Seller shall retain all rights of ownership and title in its respective Software, including without limitation all rights of ownership and title in its respective copies of such Software. Except as otherwise provided herein, Buyer is hereby granted a nonexclusive, non-transferable royalty free license to use the Software incorporated into the Goods solely for purposes of Buyer properly utilizing such Goods purchased from Seller. All other Software shall be furnished to, and used by, Buyer only after execution of Seller's (or the licensor’s) applicable standard license agreement, the terms of which are incorporated herein by reference. The Software is Seller’s own or Seller’s supplier’s proprietary information, and Buyer and its employees and agents shall not disclose the Software or any part thereof to others without Seller’s prior written consent.
14. TOOLING: Tool, die, and pattern charges, if any, are in addition to the price of the Goods and are due and payable upon completion of the tooling. All such tools, dies and patterns shall be and remain the property of Seller. Charges for tools, dies, and patterns do not convey to Buyer, title, ownership interest in, or rights to possession or removal, or prevent their use by Seller for other purchasers, except as otherwise expressly provided by Seller and Buyer in writing with reference to this provision.
15. INTELLECTUAL PROPERTY: Seller's intellectual property, including without limitation, all patents, copyrights, trade secrets, trade-dress and any other intellectual property of any kind (including without limitation, that which exists in the underlying technology), furnished by or on behalf of Seller in connection with this agreement is the property of Seller and Seller retains all rights, including without limitation, exclusive rights of use, licensing, and sale. Possession of Goods, pre-production units, specifications, prints or drawings, or any other materials does not convey to Buyer any rights or license thereto.
16. BUYER’S COMPLIANCE WITH LAWS: In connection with the transactions contemplated by this agreement, Buyer is familiar with and shall fully comply with all applicable laws, regulations, rules and other requirements of the United States and of any applicable state, foreign and local governmental body in connection with the purchase, license, receipt, use, transfer and disposal of the Goods and/or Software.
17. EXPORT/IMPORT: Buyer agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the United States and the European Union, and the jurisdictions in which the Seller and Buyer are established or from which Goods and/or Software may be supplied, will apply to their receipt and use. In no event shall Buyer use, transfer, release, import, export, Goods and/or Software in violation of such applicable laws, regulations, orders or requirements.
18. GOVERNMENT CONTRACT CONDITIONS: In the event Buyer supplies Goods or Software to the U.S. Government or to a prime contractor selling to the U.S. Government, the following Federal Acquisition Regulation (FAR) clauses are accepted by Seller and are made part of this agreement applicable to such supply: 52.222-21 Prohibition of Segregated Facilities; 52.222-26 Equal Opportunity; 52.222-35 Equal Opportunity For Special Disabled Veterans, Veterans of Vietnam Era, and Other Eligible Veterans; 52.222-36 Affirmative Action For Workers with Disabilities; and 52.219-8 Utilization of Small Business Concerns. No additional FAR or FAR Supplement clauses are accepted by Seller. In the event Buyer elects to sell Goods or Software to the U.S. Government or any national, state, provincial or local non-U.S. governmental entity or to a prime contractor selling to such entities, Buyer does so solely at its own option and risk, and agrees not to obligate Seller as a subcontractor or otherwise to the U.S. Government or other governmental entity except as described in this Section 18. Buyer remains solely and exclusively responsible for compliance with all statutes and regulations governing sales to the U.S. Government or any national, state, provincial or local non-U.S. governmental entity. Seller makes no representations, certifications or warranties whatsoever with respect to the ability of its Goods, Software, or prices to satisfy any such statutes and regulations.
19. CONFIDENTIALITY: All non-public, confidential or proprietary information of a party that (i) is marked as “confidential” or “proprietary” or (ii) is reasonably understood to be confidential or proprietary given the content of the information and the circumstances of disclosure (“Confidential Information”). Each party (as a “Receiving Party”) shall (a) hold all Confidential Information of the other party (as the “Disclosing Party”) in strict confidence; (b) not disclose Disclosing Party’s Confidential Information to any third party without express prior written approval from Disclosing Party; (c) disclose Disclosing Party’s Confidential Information only to such of its employees as actually require knowledge thereof in order to carry out their duties and are bound by confidentiality obligations at least as protective as the provisions contained in this agreement; and (d) use Disclosing Party’s Confidential Information only for the purpose of performing its obligations hereunder. Upon Disclosing Party’s request, Receiving Party shall promptly return all Confidential Information to Disclosing Party, as well as all documents and other materials incorporating any Disclosing Party Confidential Information. Disclosing Party shall be entitled to injunctive relief for any violation of this Section without the necessity of posting bond. This Section does not apply to information that is: (x) freely available in the public domain; (y) known to Receiving Party at the time of disclosure without any obligation of confidentiality; or (z) rightfully obtained by Receiving Party on a non-confidential basis from a third party. The obligations of this provision shall continue as to each piece of Confidential Information for a period of three (3) years following the date of disclosure of such Confidential Information, except as to Confidential Information that constitutes a trade secret under applicable law and is expressly identified as a trade secret in writing, in which case the foregoing obligations shall continue in perpetuity. In the event the parties have separately entered into a separate Non-Disclosure Agreement, the terms of such separate Non-Disclosure Agreement shall supersede this provision.
20. GENERAL PROVISIONS: These terms and conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these terms and conditions. No change, modification, rescission, discharge, abandonment, or waiver of these terms and conditions shall be binding upon the Seller unless made in writing and signed on its behalf by a duly authorized representative of Seller. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these terms and conditions shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification or additional terms shall be applicable to this agreement by Seller's receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected and deemed a material alteration hereof. If this document shall be deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s assent to any additional or different terms set forth herein. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction. In the event that any provision or portion thereof contained in this agreement is held to be unenforceable, this agreement shall be construed without such provision or portion thereof. Provisions of this agreement which by their nature should apply beyond the termination of this agreement shall survive any such termination and will remain in full force and effect, including, but not limited to, Sections 6 (Limitation of Remedy and Liability), 11 (Nuclear/Medical), 12 (Assignment), 13 (Software), 14 (Tooling), 15 (Intellectual Property), 17 (Export/Import), 19 (Confidentiality), 20 and 21 (General Provisions).
(A) If Seller is a U.S. incorporated entity: This agreement shall be governed by the laws of the State of Delaware, U.S.A., without reference to its choice or conflict of laws principles. The parties agree to submit to the exclusive jurisdiction of the courts of the State of Delaware for all actions arising in connection herewith.
(B) If Seller is a European incorporated entity: This agreement shall be governed by the laws of England. Any dispute arising out of or in connection with this agreement that cannot be resolved through friendly consultation shall be referred to and finally resolved by arbitration in London, England before the London Court of International Arbitration in accordance with its arbitration rules. The arbitral award shall be final and binding on the parties.
(C) If Seller is an entity incorporated in the Asia Pacific region: This agreement shall be governed by the laws of the Hong Kong Special Administrative Region of the People’s Republic of China. Any dispute arising out of or in connection with this agreement that cannot be resolved through friendly consultation shall be referred to and finally resolved by arbitration in Hong Kong before the Hong Kong International Arbitration Centre in accordance with its arbitration rules. The arbitral award shall be final and binding on the parties.
(D) No action, regardless of form, arising out of transactions relating to this agreement, may be brought by either party more than two (2) years after the cause of action has accrued. The U.N. Convention on Contracts for the International Sales of Goods shall not apply to this agreement.
Revised October 23, 2017