GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS
  1. Applicability.
    1. The sale of the goods (“Goods”) by Digilens Inc. (“Seller”), along with the licensing of any Software (as defined below) delivered as part of the sale of Goods, to the person or legal entity purchasing the Goods (“Buyer”) are governed by these General Terms and Conditions for the Sale of Goods (“Terms”). Notwithstanding anything to the contrary herein, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
    2. The accompanying quotation, confirmation of sale and/or invoice (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
  2. Delivery.
    1. The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order. Seller shall not be liable for any delays, loss or damage in transit.
    2. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
    3. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point with Seller fulfilling the obligations in this Agreement, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
  3. Non-Delivery.
    1. The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
    2. The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within 5 days of the date when the Goods would in the ordinary course of events have been received or installed.
    3. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
    4. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
  4. Limitations as to Use.
    In some cases, Seller may provide certain Goods for only limited use, such as internal development use only or not for resale. Such restrictions shall be stated on the Sales Confirmation and shall be binding on the Buyer.
  5. Shipping Terms.
    Delivery shall be made EXW SELLER’S LOCATION (the “Delivery Point”). Seller shall make delivery in accordance with the terms on the face of the Sales Confirmation and provide necessary documents for Buyer’s carrier/forwarder for custom clearance, including but not limited to the invoice and packing list.
  6. Title and Risk of Loss.
    Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. 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 the California Uniform Commercial Code.
  7. Intellectual Property Ownership.
    1. Buyer acknowledges and agrees that: (a) any and all of Seller’s intellectual property rights are the sole and exclusive property of Seller or its licensors; (b) Buyer shall not acquire any ownership interest in any of Seller’s intellectual property rights under this Agreement; and (c) Buyer shall use Seller’s intellectual property rights solely for purposes of using the Goods under this Agreement and only in accordance with this Agreement and the instructions of Seller. Buyer shall not (and shall not enlist any third party to): (q) disclose, distribute, or license the Goods to third party(ies); (r) reverse engineer, disassemble, decompile or otherwise attempt to derive the design, material characteristics, or manufacturing techniques used to make, or the internal functionality of the Goods, Software or any part thereof, or any prototypes, hardware, software, or other tangible or intangible objects relating to any of the foregoing, and shall not attempt to circumvent any controls, restrictions or security measures, other than as necessary for the Buyer’s permitted use of the Goods and Software; (s) take any action that might interfere with any of Seller’s rights in or to Seller’s intellectual property rights, including Seller’s ownership or exercise thereof; (t) challenge any right, title, or interest of Seller in or to Seller’s intellectual property rights; (u) make any claim or take any action adverse to Seller’s ownership of Seller’s intellectual property rights; (v) register or apply for registrations, anywhere in the world, for Seller’s trademarks or any other trademark that is similar to any of Seller’s trademarks or that incorporates Seller’s trademarks in whole or in confusingly similar part; (w) use any mark, anywhere that is confusingly similar to Seller’s trademarks in whole or in confusingly similar part; (x) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or any Seller’s trademarks; (y) misappropriate any of Seller’s trademarks for use as a domain name without prior written consent from Seller; or (z) alter, obscure or remove any Seller’s trademarks, or trademark or copyright notices or any other proprietary rights notices placed on the Goods, marketing materials or other materials that Seller may provide.
    2. Notwithstanding any other provision to the contrary, any software provided by the Seller either with the Goods or separately (“Software”) is licensed, not sold, by Seller. The Software may contain certain software code and/or materials, including, without limitation, open source software components, that are written or owned by third parties (“Third Party Software”), in which case Seller may provide Buyer with any of the following: a separate document; a digital file; release notes; a Seller support website; or software code (“Notice File”) that may contain notices pertaining to such Third Party Software. Except where expressly prohibited by a third party license contained in the Notice File, including, without limitation, any open source license included therein, the content of such Notice File is provided solely to satisfy Seller’s attribution and notice requirement and Buyer’s use of such Third Party Software together with the Software is subject to these Terms. Buyer further acknowledges and agrees that: (a) compliance with all copyright laws and third party license(s) included in the Notice File are the responsibility of Buyer and Buyer shall indemnify Seller for any breach of such terms; (b) Buyer must not remove or alter any such Notice File; (c) except as may be granted by separate express written agreement, the Notice File provides no license to any patents, trademarks, copyrights, or other intellectual property of Seller; (d) any Software provided to Buyer is NOT A CONTRIBUTION to any open source project; and (e) in the event of any conflict between these Terms and any third party license included in the Notice File, these Terms shall control except as otherwise expressly provided for in the Notice File.
    3. Unless otherwise provided in a separate click-through or hand-signed software license agreement between Seller and Buyer, Seller grants to Buyer the right to use any Software provided pursuant to these terms (whether as part of a delivery of Goods or otherwise) solely for its intended use with Goods supplied by Seller, provided always that Buyer agrees not to: (i) reverse engineer, decompile, disassemble, modify, adapt, alter, translate, or create derivative works from the Software or allow others to do so, without the prior written consent of Seller (except to the extent expressly permitted by law notwithstanding any contractual prohibition); (ii) merge the Software with any other software; (iii) assign, sub-license, lease, rent, loan or otherwise transfer the Software to any third party in whole or in part, except in conjunction with the sale or transfer of an item that incorporates Seller’s Goods containing the Software; (iv) use the Software in connection with the operation of a bureau or for the benefit of any third party; (v) copy the Software except as expressly authorized in writing by Seller or as permitted by law notwithstanding any contractual prohibition; (vi) use the Software except as specifically contemplated in a Sales Confirmation or (vii) cause any Software delivered as part of the Goods (or any part thereof) to become subject to any obligation or condition that would require that the Software (or any of Seller’s software): (1) be disclosed, distributed or made available in source code form; (2) be licensed with permission to create derivative works; or (3) be redistributable at no charge. The license granted by Seller in this Section 7(c) shall immediately terminate in the event of termination of these Terms for any reason, including, without limitation, any breach by Buyer of any term in a Sales Confirmation or these Terms. The entire right, title and interest in the Software shall remain in Seller and Buyer shall not remove any copyright notices or other legends from the Software.
  8. Amendment and Modification.
    These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
  9. Inspection and Rejection of Nonconforming Goods.
    1. Buyer shall inspect the Goods within five business days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents. For the avoidance of doubt, if any support services are offered in connection with the Goods, notwithstanding any other provision in these Terms, any Buyer request for support services shall be deemed as acceptance of any Goods for which support services are requested.
    2. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at Seller’s expense and risk of loss, the Nonconforming Goods to Seller’s facility located at Seller’s direction. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Seller’s expense and risk of loss, the replaced Goods to the Delivery Point.
    3. Buyer acknowledges and agrees that the remedies set forth in Section 9(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 9(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
  10. Price.
    1. Buyer shall purchase the Goods from Seller at the price(s) (the “Price(s)”) set forth in Seller’s Sales Confirmation.
    2. Taxes. All Prices and other sums payable under this Agreement are exclusive of taxes. Buyer shall be solely responsible for all sales, use, excise, property taxes and value added taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local Governmental Authority (regardless of whether such Governmental Authority is foreign or US based) on any amounts which are payable by Seller, and/or Buyer hereunder. Buyer shall pay all such sums payable hereunder free and clear of all deductions and withholdings whatsoever, unless the deduction or withholding is required by law. If any deduction or withholding is required by law regardless of whether such deduction or withholding is imposed on the Buyer or Seller, Buyer shall pay to Seller such sum as well, after the deduction or withholding has been made, to leave the Seller with the same amount as it would have been entitled to receive without any such requirement to make a deduction or withholding.
  11. Payment Terms.
    1. Buyer shall pay all invoiced amounts due to Seller immediately upon receipt of Seller’s invoice based on the payment terms or milestones outlined in the Sales Confirmation. Buyer shall make all payments hereunder by wire transfer and in US dollars.
    2. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for 5 days following written notice thereof.
    3. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
  12. Limited Warranty.
    1. Hardware Warranty. Seller warrants that all Seller Goods, excluding Software and Third Party Products, (“Hardware Products”) shall be free from material defects in materials and workmanship under normal use and service for which they are intended for one year (the “Warranty Period”), beginning from the date of shipping, but only if the Hardware Product has been properly installed, operated and maintained. This warranty does not cover failure of systems or components due to accident, abuse, neglect, normal expected wear, improper maintenance, unauthorized repair, unauthorized modification, unauthorized disassembly, usage not in accordance with product instructions, or misuse of the systems or components. Seller’s obligation under this warranty is limited to replacing or repairing, free of charge, any defective Hardware Products that were manufactured and sold by Seller. This shall be the limit of Seller’s liability for any breach of warranty. Buyer must notify Seller by email at support@digilens.com during Warranty Period; otherwise, such claims shall be deemed waived. No allowance will be granted for any repairs or alterations made by Buyer without Seller’s prior written consent. Except where prohibited by applicable law, this warranty is nontransferable and is limited to the original purchaser. Any replacement or repaired Hardware Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, or for any additional period of time that may be applicable in Buyer’s jurisdiction. Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Hardware Products. Third Party Products are not covered by this warranty.
    2. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE HARDWARE PRODUCTS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Seller shall not be liable for any loss or damage resulting, directly or indirectly, from the use or loss of use of the hardware product, including consequential damages, including without limitation, Buyer’s expenses for downtime or for making up downtime, damages for which the Buyer may be liable to other persons, damages to property, and injury to or death of any persons. Seller neither assumes nor authorizes any person to assume for it any other liability in connection with the sale or use of Seller’s products, and there are no oral agreements or warranties collateral to or affecting this Agreement. The parties also agree that, regardless of the failure of the sole and exclusive remedy, Seller will not be liable for any consequential damages of whatsoever kind or nature. The parties intend the exclusion of consequential damages as an independent Agreement apart from the sole and exclusive remedy herein.
    3. Software Warranty Disclaimer. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED OR STATUTORY WARRANTY OF ANY KIND. SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. FURTHER, SELLER DISCLAIMS ANY WARRANTY THAT BUYER’S USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
  13. Limitation of Liability.
    1. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD OR LICENSED, AND SOFTWARE LICENSED, HEREUNDER.
    3. The limitation of liability set forth in Section 13(b) above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s grossly negligent or willful acts or omissions.
  14. Assumption of Risk.
    IT IS BUYER’S RESPONSIBILITY TO USE ALL GOODS IN COMPLIANCE WITH APPLICABLE LAW AND CONSISTENTLY WITH ALL SAFETY REGULATIONS AND INSTRUCTIONS. THE USE OF THE GOODS MAY DISTRACT THE USER FROM THEIR SURROUNDINGS AS A RESULT OF DISTRACTIVE INFORMATIONAL CONTENT, LIGHT REFRACTION, EXCESSIVE BRIGHTNESS, OR OTHER CAUSES. IT IS BUYER’S RESPONSIBILITY TO USE THE GOODS IN A SAFE AND RESPONSIBLE MANNER. THIS DEVICE MAY DISPLAY FLASHING, BLINKING OR FLICKERING IMAGERY – PHOTOSENSITIVE USERS SHOULD USE WITH CAUTION. ALL USERS MUST DISCONTINUE USE IMMEDIATELY IF THE USER EXPERIENCES NAUSEA, HEADACHES OR OTHER DISCOMFORT, OR IF THE DEVICE EXCEEDS NORMAL APPLICATION AND OPERATING TEMPERATURES, SCREEN IS FLICKERING, LENSES ARE DAMAGED, OR BATTERY IS DAMAGED. USE OF A SAFETY RETENTION STRAP IS STRONGLY RECOMMENDED. FAILURE TO PAY ATTENTION TO SURROUNDINGS WHILE USING THE GOODS MAY CAUSE DEATH, PERSONAL INJURY OR PROPERTY DAMAGE. BUYER ACKNOWLEDGES AND ASSUMES THESE RISKS AND AGREES THAT THE USE OF THE GOODS IS AT BUYER’S OWN RISK. BUYER AGREES TO STRICTLY OBSERVE ALL SAFETY PRECAUTIONS, SAFETY WARNINGS AND OPERATING INSTRUCTIONS PROVIDED WITH THE GOODS AND SOFTWARE AND WITH ANY CONTROLLER OR OTHER THIRD-PARTY HARDWARE OR SOFTWARE USED IN CONNECTION WITH THE GOODS.
  15. Compliance with Law.
    Both Seller and Buyer shall comply with all applicable laws, regulations and ordinances. Both parties shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Both Seller and Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Either party may terminate this Agreement if the other party cannot maintain in effect the required licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement, or any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
  16. Termination.
    1. Unless otherwise stated in a Sales Confirmation, cancellation of any order or Sales Confirmation is not permitted.
    2. In addition to any remedies that may be provided under these Terms, either party may terminate this Agreement with immediate effect upon written notice to the other party, if the other party: (i) fails to pay any amount when due under this Agreement and such failure continues for 5 days after Buyer’s receipt of written notice of non-payment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
  17. Waiver.
    No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  18. Confidential Information.
    All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a nonconfidential basis from a third party.
  19. Force Majeure.
    The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, embargo, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 30 days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
  20. Assignment.
    Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
  21. Relationship of the Parties.
    The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  22. No Third-Party Beneficiaries.
    This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
  23. Governing Law.
    All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
  24. Arbitration, Jurisdiction and Venue.
    Any dispute arising hereunder shall be settled by arbitration administered by the American Arbitration Association pursuant to its then-current rules. The arbitration shall be conducted before a panel of one arbitrator in Santa Clara County, California. The arbitration shall be conducted in the English language. The arbitrators will be bound to apply the laws of the State of California. The decision of the arbitrator(s) will be made in writing and shall be final and binding on the parties. Each party shall be responsible for its own costs with respect to the proceedings irrespective of the outcome. This Section provides the sole recourse for the settlement of disputes arising hereunder, except that either party may seek a preliminary injunction or other form of injunctive relief in any court of competent jurisdiction if, in its reasonable, good faith judgment, such action is necessary to prevent or curtail irreparable harm. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in Santa Clara County in the State of California, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts in any such suit, action or proceeding. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
  25. Notices.
    All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
  26. Severability.
    If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  27. Survival.
    Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Intellectual Property Ownership, Payment Terms, Limited Warranty, Limitation of Liability, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Venue, and Survival.
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