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  1. Standard Terms and Conditions

Any offer made by Ushio America, Inc. (“Seller”) to sell Care222® modules and/or related items (“Products”) to you (“Purchaser”) is subject to these terms and conditions (“Terms”).  Seller’s offer to sell Products expressly limits Purchaser’s acceptance to these Terms without modification, and no modification of the Terms will bind Seller unless expressly accepted in writing by Seller. Any different or additional terms and conditions proposed by Purchaser are hereby rejected and shall be of no effect, even if such terms and conditions have not been expressly rejected by Seller.  Seller and Purchaser are referred to individually as a “Party” and collectively as the “Parties.”

  1. ORDERS

Purchaser shall submit to Seller written purchase orders for all Products to be purchased by Purchaser from Seller.  All purchase orders for Products shall be subject to Seller’s written acceptance.

  1. PRICING AND TAXES

3.1    Unless otherwise specified by Seller, prices are in US currency.  Prices do not include, and Purchaser shall pay (or reimburse Seller for), (a) freight and associated charges, (b) insurance, and (c) any and all duties, excise, sales, use, personal property, inventory or similar taxes, charges or levies imposed on or in connection with the sale or use of Products sold by Seller to Purchaser or held by Seller for Purchaser pending shipment.

3.2    Price quotations are subject to change without notice.  After acceptance, price terms are subject to increase to cover cost increases, including increases in any applicable duties or tariffs.

  1. PAYMENT TERMS

4.1    Unless otherwise specified by Seller, payment terms are net 30 days from the date of invoice.

4.2    Interest at a rate equal to the lower of 1.5% per month or the maximum rate permitted by law shall accrue on the outstanding balance of all payments not made when due, and any such interest shall be payable on demand.

  1. DELIVERY AND RISK OF LOSS

5.1    All delivery dates are approximate and Seller shall have no liability to Purchaser for late deliveries.

5.2    Unless otherwise specified by Seller, shipment is FCA shipping point, Incoterms® 2010. Purchaser bears all risks of loss of or damage to the Products upon delivery to carrier for shipment.    Upon such delivery, title to and all risk of loss of or damage to the Products shall pass from Seller to Purchaser.  Seller shall have no liability or responsibility in connection with claims for loss of or damage to Products incurred after delivery to the carrier, and Purchaser shall pursue all such claims directly with the carrier.  All freight, duties, taxes, and other similar charges are the sole responsibility of Purchaser.

  1. ORDER CHANGES, CANCELLATION AND RETURNS

6.1    Orders accepted by Seller are not subject to change or cancellation by Purchaser unless Seller consents in writing and Purchaser pays to Seller an amount, not to exceed 15% of the purchase price, which covers Seller’s losses (including lost profit, if any) and actual costs incurred in connection with such change or cancellation.

6.2    Seller may, but is not obligated to, accept returns of Products.  Any such returns (other than returns requested by Seller in connection with warranty claims) will be limited to current Products in original cartons and in standard package
quantities.  Any credit issued by Seller will be for the original net purchase price of the Products less any return transportation charge paid by Seller and a restocking charge equal to 20% of the original net purchase price.

6.3    Products may not be returned to Seller unless Seller consents in writing and assigns a return authorization number.  Any unauthorized returns or shipping containers received from Purchaser that do not bear a return
authorization number will be returned to Purchaser at Purchaser’s expense.  Return shipments must be prepaid, insured, and shipped at Purchaser’s expense.

  1. SPECIFICATION & CHANGES

7.1    The specifications for Products shall be those set out in Seller’s catalog in effect from time to time, delivered to Purchaser along with Products, or otherwise set forth in Seller’s order acknowledgment (“Specifications”). No other specification, descriptive material, written or oral representation, correspondence, or statement shall form part of or be incorporated by reference into these Terms.

7.2    Seller may make modifications to any Product or Specifications: (a) to conform to any applicable laws, (b) to make a Product non-infringing with respect to any rights under patent, copyright, and trademark, trade secret, or other intellectual property laws (“Intellectual Property Rights”), or (c) to otherwise improve a Product, so long as such modifications do not materially affect the quality or performance of the Products. Seller will use reasonable endeavors to promptly notify Purchaser of any such material changes.

  1. WARRANTY, DISCLAIMER, AND LIMITATION OF LIABILITY

8.1    Subject to the provisions of Sections 8.2, 8.3, and 8.4, Seller warrants that all Products shall, for the Warranty Period (as defined below):  (a) conform to the Specifications; (b) be of good material and workmanship, and free from defect; and (c) be manufactured, packaged, labeled, stored, loaded for shipment and shipped in compliance with all applicable Laws relating thereto.  As used in these Terms, “Warranty Period” means the warranty period set forth in Seller’s Specifications that are delivered along with Products.

8.2    The product warranty set forth in Section 8.1 does not apply to any Product that: (a) has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Seller; (b) has been reconstructed, repaired, or altered by anyone other than Seller; (c) has been used with any third-party products, hardware, or product that has not been previously approved in writing by Seller; or (d) is a development, pre-production, or any form of prototype whatsoever.

8.3    EXCEPT FOR THE PRODUCT WARRANTY SET FORTH IN SECTION 8.1, (a) NEITHER SELLER NOR ANY PERSON ON SELLER’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR PERFORMANCE OF PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED; AND (b) PURCHASER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS.

8.4    Notwithstanding any other provision of these Terms, if any Products are found to be defective in material or workmanship, or otherwise fail to comply with the warranties set forth above (“Defective Products”), this Section 8.4 sets forth Purchaser’s exclusive remedy for Defective Products.  Purchaser’s remedy under this Section 8.4 is conditioned upon Purchaser’s compliance with its obligations set forth below.  Purchaser shall notify Seller in writing of any alleged claim or defect within ten (10) business days from the date Purchaser discovers, or upon reasonable inspection should have discovered, such alleged claim or defect (but in any event before the expiration of the applicable Warranty Period). Purchaser shall ship, at Purchaser’s expense and risk of loss, such allegedly Defective Products to Seller’s facility for inspection and testing by Seller. If Seller’s inspection and testing reveals, to Seller’s reasonable satisfaction, that such Products are indeed defective and any such defect has not been caused or contributed to by any of the factors described under Section 8.2 above, then subject to Purchaser’s compliance with the conditions set forth in this Section, Seller shall in its sole discretion and at its expense repair or replace such Defective Products or provide a refund or issue a credit for an amount not to exceed the original purchase price paid by Purchaser to Seller for the Defective Product.  If Seller elects to provide a repair or replacement, Seller shall ship to Purchaser, at Seller’s expense and risk of loss, the repaired or replaced Products to a location designated by Purchaser.  THIS SECTION SETS FORTH PURCHASER’S SOLE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED PRODUCT WARRANTY SET FORTH IN SECTION 8.1.

  1. INDEMNIFICATION

9.1    Seller Indemnification–General.  Seller shall defend, hold harmless, and indemnify Purchaser, its affiliates, directors, officers, agents, shareholders and employees (collectively, “Purchaser Indemnitees”) from and against all damages (whether as the result of breach of contract, warranty, tort, strict liability, or any other theory), losses, costs (including reasonable attorneys’ fees and other expenses), civil penalties, claims, demands, lawsuits, or other actions, liabilities and/or obligations of any kind (including death of or injury to person or damage to any property (personal, real or otherwise) or environmental harm) (collectively, “Liabilities”) to the extent brought by a third party alleging injury arising or resulting or alleged to have arisen or resulted from (a) the failure of Seller or the Products to comply with any of the representations, warranties, covenants, or other provisions of these Terms; (b) any negligent acts or omissions of Seller, its agents, representatives, employees or subcontractors; or (c) the Products, whether due to the method of disinfection, any alleged defect, or any alleged failure in the Products or otherwise.  This indemnity shall be inapplicable to the extent the Liabilities arise from matters indemnified by Purchaser.

9.2    Exceptions and Limitations on Seller Indemnification.  Notwithstanding anything to the contrary in these Terms, Seller is not obligated to indemnify or defend (if applicable) a Purchaser Indemnitee against any action, demand, lawsuit, arbitration, proceeding, litigation, subpoena, or investigation of any nature (“Claim”) brought against Purchaser if such Claim or corresponding Liabilities arise out of or result from, in whole or in part, (a) the Purchaser Indemnitee’s or its customer’s negligence or more culpable act or omission; (b) the Purchaser Indemnitee’s bad faith failure to comply with any of its obligations set forth in these Terms; (c) the Purchaser Indemnitee’s or its customer’s use of the Products in any manner not otherwise authorized under these Terms or that does not materially conform with any usage instructions provided by Seller; or (d) products manufactured by Purchaser in which the Products produced by Seller are incorporated.

9.3    Seller Indemnification—Intellectual Property.  In addition to its indemnification obligations above, Seller further agrees to defend, hold harmless, and indemnify the Purchaser Indemnitees from and against all Liabilities arising or alleged to have arisen from any and all Claim of a third party alleging that any of Products infringe any Intellectual Property Rights of a third party.  If Products become, or in Seller’s opinion is likely to become, subject to a third-party Claim that qualifies for intellectual property indemnification coverage under this Section 9.3, Seller shall, at its sole option and expense, notify Purchaser in writing to cease using all or a part of the Products, in which case Purchaser shall immediately cease all such use of such Products on receipt of Seller’s notice.  In such case, Seller agrees (a) to secure the right for Purchaser to continue to use the Product, (b) to modify it, or (c) to replace it with one that is equivalent. If Seller determines that none of these alternatives is reasonably available, Purchaser agrees to return the Product to Seller on Seller’s written request. Any Claim against Purchaser for infringement of third-party Intellectual Property Rights arising from the continued use of the Product following a request for return by Seller is the sole responsibility of Purchaser.

9.4    Exception to Seller Intellectual Property Indemnification.  Notwithstanding anything to the contrary in these Terms, Seller is not obligated to indemnify or defend any Purchaser Indemnitee against any Claim under Section 9.3 if such Claim or corresponding Liabilities arise out of or result from, in whole or in part: (a) the circumstances described in Section 9.2; (b) Purchaser’s marketing, advertising, promotion, or sale of Products; (c) use of Products in combination with any products, materials, or equipment supplied to Purchaser by a person other than Seller if the infringement would have been avoided by the use of Products or use of Products not so combined; (d) any modifications or changes made to Products by any person other than Seller if the infringement would have been avoided without such modification or change; (e) products manufactured or designed by Purchaser in which Products were incorporated; (f) functionality provided by Seller at the instruction of Purchaser; (g) Seller’s compliance with any design or specification furnished and required by Purchaser; or (h) Purchaser’s failure to install any upgrade provided by Seller at no cost.

9.5    Purchaser Indemnification.  Purchaser shall defend, hold harmless and indemnify Seller, its affiliates, directors, officers, agents, shareholders and employees (collectively, “Seller Indemnitees”) from and against all Liabilities to the extent brought by a third party alleging injury or infringement of third-party Intellectual Property Rights arising or resulting or alleged to have arisen or resulted from: (a) the failure of Purchaser to comply with any of the representations, warranties, covenants, or other provisions of these Terms; (b) any negligent act or omission of Purchaser, its agents, representatives, or employees; (c) products manufactured by Purchaser in which the Products produced by Seller are incorporated; or (d) Product’s compliance with Purchaser’s specifications or requirements that are not part of Seller’s Standard Product (as defined below) that is offered to the general public in the normal course of Seller’s business.  This indemnity shall be inapplicable to the extent the Liabilities arise from matters indemnified by Seller. “Standard Product” means a product as sold by Seller to Purchaser that (a) has not been modified specifically for Purchaser, (b) is available to the general public for purchase from Seller, and (c) has been packaged and tested before delivery to carrier for shipment.

9.6    Indemnification Procedures.  In the event any indemnified party is named as a party to a Claim, the indemnifying party will, at the option of the indemnified party, defend such matters with counsel of its own choosing.  The indemnified party has the right (but no obligation) to participate in the defense of such Claim at its expense.  In no event will the indemnifying party settle any Claim or consent to the entry of any judgment against the indemnified party without the indemnified party’s prior written consent, not to be unreasonably delayed or withheld.

  1. DISCLAIMER AND LIMITATION OF LIABILITY

10.1  SUBJECT TO SECTION 10.3 BELOW, IN NO EVENT SHALL SELLER OR PURCHASER BE LIABLE TO THE OTHER  OR TO ANY OTHER PERSON OR ENTITY WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS, UNDER ANY EQUITY, COMMON LAW, TORT, CONTRACT, ESTOPPEL, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY (a) INCIDENTAL, SPECIAL OR CONSEQUENTIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES OR (b) DAMAGES RESULTING FROM LOSS OF SALE, BUSINESS, PROFITS, DATA, OPPORTUNITY OR GOODWILL, EVEN IF THE REMEDIES PROVIDED FOR IN THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING DAMAGES.  NO DAMAGES FOR BREACH OF THESE TERMS WILL BE PAYABLE BEYOND THE AMOUNTS THAT CAN BE PROVEN WITH REASONABLE CERTAINTY.

10.2  SUBJECT TO SECTION 10.3 BELOW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON OR ENTITY FOR ANY AMOUNTS IN EXCESS OF THE GREATER OF (i) $1,000,000 OR (ii) THE AGGREGATE CONTRACT PRICE FOR PRODUCTS PROVIDED BY SELLER TO PURCHASER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

10.3  SECTIONS 10.1 AND 10.2 SHALL NOT APPLY TO OR OTHERWISE LIMIT DAMAGES ARISING OUT OF OR RELATING TO (i) PURCHASER’S BREACH OF SECTION 11 (SELLER INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS) (ii) EITHER PARTY’S BREACH OF SECTION 12 (CONFIDENTIALITY), (iii) PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE, (iv) gross negligence or willful misconduct of either party; (vi) INFRINGEMENT, VIOLATION, OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS; (vii) INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 ARISING OUT OF OR RELATED TO THIRD-PARTY CLAIMS AS SET FORTH IN (a) SECTION 9.1 AND SECTION 9.5 AS THEY RELATE TO PERSONAL INJURY/PROPERTY DAMAGE, GROSS NEGLIGENCE, OR WILLFUL MISCODUCT; (b) SECTION 9.3 (SELLER INTELLECTUAL PROPERTY INDEMNIFICATION) (BUT LIMITED, FOR DAMAGES THAT ARE NOT PUNITIVE DAMAGES, TO AMOUNTS THAT CAN BE PROVEN WITH REASONABLE CERTAINTY AND, FOR PUNITIVE DAMAGES ONLY, AROSE DUE TO SELLER’S ACTS OR OMISSIONS); OR (viii) ANY OTHER LIABILITY TO THE EXTENT THAT IT CANNOT BE LIMITED BY APPLICABLE LAW.

  1. SELLER INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS

10.1  All Intellectual Property Rights and other proprietary rights relating to Products including, but not limited to, any drawings, data, designs, or other technical information supplied by Seller to Purchaser in connection with the sale of any Products shall remain Seller’s property.

10.2  Purchaser agrees not to, and will not encourage, assist, or authorize any other person to reverse engineer, decompile, or disassemble the Product.

10.3  Purchaser agrees to comply with Seller’s Trademark Usage Policy, which can be accessed at https://www.ushio.com/corporate/ushio-logo-release/.    The Care222 standard character mark and stylized logo mark (“Trademarks”) are registered trademarks of Ushio America, Inc. The Trademarks shall be introduced with a referential phrase, such as “featuring” or “built with”—for example, “[Purchaser’s product name] featuring Ushio’s CARE222® technology” and “[Purchaser’s product name] built with Ushio’s CARE222® technology.”  Purchaser agrees not to remove, alter, obscure, or deface any marks, names, notices, or numbers affixed to the Products without Seller’s written consent.

  1. CONFIDENTIALITY

12.1  “Confidential Information” means any non-public, confidential, or proprietary information disclosed by one Party (and with respect to Seller, including its affiliates and subsidiaries) (the “Disclosing Party”) to the other Party (the “Receiving Party”) that: (a) if disclosed in tangible form, is conspicuously marked with a “confidential,” “proprietary,” or some similar legend to indicate its confidential nature; (b) if disclosed orally, is clearly designated as confidential at the time of disclosure and is specifically identified in a confirmatory writing sent to the Receiving Party within thirty (30) days after initial disclosure; or (c) would otherwise be reasonably expected to be treated in a confidential manner under the circumstances of disclosure.

12.2  The Receiving Party will not disclose any of the Confidential Information to any third party, other than to those of its Representatives (as defined below) who (a) have a need to know the Confidential Information to fulfill its obligations under these Terms or to properly use Products; and (b) are under a duty, contractual or otherwise, to maintain the confidentiality of the Confidential Information.  “Representatives” means directors, officers, employees, agents, subcontractors, attorneys, accountants or advisers of a Party and its Affiliates.  “Affiliate” means with respect to a Party any corporation or entity that directly or indirectly controls or is controlled by such Party, where control is by ownership of more than 50% of the outstanding voting securities or voting ownership interests of such corporation or other entity.

12.3  The Receiving Party shall use the same degree of care in protecting Confidential Information of the Disclosing Party against unauthorized disclosure or use as it uses in protecting its own Confidential Information, but in any event will use at least a reasonable degree of care.

12.4  Information shall not constitute Confidential Information of the Disclosing Party if: (a) at the time of disclosure to the Receiving Party it was public information, or thereafter becomes public information without any fault on the part of the Receiving Party or its Representatives; (b) it was already known to the Receiving Party at the time of receipt and not subject to any other contractual restriction on disclosure; (c) it is independently developed by the Receiving Party or its affiliates without using Confidential Information of the Disclosing Party; (d) it is received by the Receiving Party from a third party without restrictions on disclosure and, to the knowledge and belief of the Receiving Party, without any breach of any confidentiality obligation to the Disclosing Party; or (e) (i) it is approved for disclosure by written authorization of the Disclosing Party or (ii) it is disclosed by the Disclosing Party to others without restriction on disclosure.

12.5  The Receiving Party may disclose the Confidential Information of the Disclosing Party pursuant to the order of any court, governmental agency or arbitrator, or pursuant to applicable law, provided that the Receiving Party provides the Disclosing Party with prompt notice of such requirement in order to allow the Disclosing Party the opportunity to seek a protective order or other appropriate relief.

12.6  Except as otherwise specifically provided in these Terms, neither Party grants to the other Party any right or license to use, or any estoppel, forbearance, or exhaustion of any rights under its Confidential Information or Intellectual Property Rights.

12.7  Each Party agrees that any violation or threatened violation of the confidentiality obligation set forth herein may cause irreparable injury to the Disclosing Party, entitling the Disclosing Party to seek injunctive relief in addition to all legal remedies available to it.

  1. COMPLIANCE WITH EXPORT CONTROL LAW

Purchaser agrees that Products may be subject to the export and re-export control laws and regulations of the United States, including but not limited to the Export Administration Regulations (“EAR”) and Department of the Treasury Office of Foreign Asset Controls (“OFAC”) Regulations and agrees to comply with these laws and regulations. Without limiting the foregoing, Purchaser will not, without proper authorization from the applicable United States Government Agency, export, re-export, or transfer any Product, either directly or indirectly, to any entity, country, or national of any country in breach of such laws and regulations. Furthermore, Purchaser shall indemnify and hold harmless Seller from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any noncompliance with export control regulations by Purchaser, and Purchaser shall compensate Seller for all losses and expenses resulting thereof.

  1. FORCE MAJEURE

Seller shall have no liability to Purchaser for any delay or failure in carrying out its obligations to Purchaser for reasons beyond Seller’s control including, without limitation, acts of God, war, terrorism, natural disasters, epidemic or pandemic, labor disputes, changes in or compliance with laws, regulations or governmental policies and shortages of supplies and services, and governmental actions, including without limitation shelter-in-place or similar orders.  Seller may extend delivery until any such cause of delay has been removed or, at its option, cancel the undelivered portion of any order so affected without liability to Purchaser except for the return of any payment made by Purchaser to Seller with respect to any undelivered portion of the order so canceled.

  1. NO RESALE OF PRODUCTS ON A STANDALONE BASIS; FURTHER RESTRICTION IN NORTH AMERICA

15.1  Purchaser represents and warrants that it is buying Products for its own internal use and/or for incorporation in other Purchaser fixture to be sold to third parties as an aggregate product or system. Purchaser agrees that it shall not resell Products to third parties in the same or similar form as sold by Seller to Purchaser without receiving prior written consent from Seller.

15.2  Purchaser shall not market or sell any lighting fixture, luminaire, or lighting-related product using a visible light source in the general illumination field containing or connected to the Products to any entity or person in North America.  The general illumination field specifically excludes automotive and avionics parts, lighting incorporated into medical instruments, and electronics display illumination.

  1. MISCELLANEOUS

16.1  Purchaser’s rights, duties, and claims under these Terms may not be assigned, transferred, or delegated without prior written consent of Seller in each instance.

16.2  Except for non-payment, neither Purchaser nor Seller will bring a legal action under these Terms more than two (2) years after the cause of action arose.

16.3  These Terms form the complete and exclusive agreement between Seller and Purchaser and replace any prior oral or written proposals, correspondence, or communications regarding the subject matter hereof.

16.4  No forbearance, delay, or indulgence by either Party in enforcing the provisions of these Terms shall prejudice or restrict the rights of that Party, nor shall any waiver of its rights operate as a waiver of any subsequent breach.

16.5  These Terms may not be modified or amended except in writing signed by a duly authorized representative of Seller and Purchaser.

16.6  These Terms and any contract of sale between Seller and Purchaser shall be governed by the laws of the State of California, USA, without regard to its conflict of law provisions other than such provisions directing application of California law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms or to any contract of sale between Seller and Purchaser.

16.7  If there is a dispute between the Parties (whether or not the dispute arises out of or relates to these Terms), the Parties agree that they will first attempt to resolve the dispute through one senior management member of each Party. If they are unable to do so within sixty (60) days after the complaining Party’s written notice to the other Party, the Parties will then seek to resolve the dispute through non-binding mediation conducted in Orange County, California. Each Party must bear its own expenses in connection with the mediation and must share equally the fees and expenses of the mediator. If the Parties are unable to resolve the dispute within sixty (60) days after commencing mediation, either Party may commence litigation in the state or federal courts in Orange County, California. The Parties irrevocably submit to the exclusive jurisdiction of those courts and agree that final judgment in any action or proceeding brought in such courts will be conclusive and may be enforced in any other jurisdiction by suit on the judgment (a certified copy of which will be conclusive evidence of the judgment) or in any other manner provided by law. Process served personally or by registered or certified mail, return receipt requested, will constitute adequate service of process in any such action, suit, or proceeding. Each Party irrevocably waives to the fullest extent permitted by applicable law (a) any objection it may have to the laying of venue in any court referred to above; (b) any claim that any such action or proceeding has been brought in an inconvenient forum; and (c) any immunity that it or its assets may have from any suit, execution, attachment (whether provisional or final, in aid of execution, before judgment or otherwise), or other legal process.

16.8 If any provision contained in these Terms or any contract of sale between Seller and Purchaser or any portion of any such provision is held to be unenforceable or invalid, the remaining provisions and portions shall nevertheless be carried into effect.

16.9  The headings contained in these Terms are for convenience only and do not in any way interpret, limit, or amplify the scope, extent or intent of any of the provisions.

  1. Standard Terms and Conditions

Any offer made by Ushio America, Inc. (“Seller”) to sell goods is subject to these terms and conditions, and, unless otherwise expressly agreed by Seller in writing, any different or additional terms and conditions proposed by the purchaser are hereby objected to and rejected and shall be of no effect.

  1. Prices, Taxes and Minimum Order

2.1    Unless otherwise specified by Seller, prices are in US currency.  Prices do not include, and the purchaser shall pay (or reimburse Seller for), any and all excise, sales, use, personal property, inventory or similar taxes, charges or levies imposed on or in connection with the sale or use of goods sold by Seller to the purchaser or held by Seller for the purchaser pending shipment.

2.2    Price quotations are subject to change without notice.  After acceptance, price terms are subject to increase to cover cost increases, including increases in any applicable duties or tariffs.

2.3    Orders are subject to stock availability.

  1. Payment Terms

3.1    Payment terms are as set forth on the front side of this quotation.

3.2    Interest at a rate equal to the lower of 1.5% per month or the maximum rate permitted by law shall accrue on the outstanding balance of all payments not made when due, and any such interest shall be payable on demand.

  1. Delivery and Risk of Loss

4.1    Unless otherwise specified on the quotation, (a) shipments of the goods will be made EXW warehouse at such location as Seller may designate, Incoterms® 2010, and (b) all risk of loss of or damage to the goods will pass to the purchaser when the goods are delivered by Seller to the carrier for shipment.  Seller will not be liable in any respect for any loss or damage caused by any failure or delay in making delivery.

4.2    Terms of delivery are as set forth on the front side of this quotation.  Notwithstanding delivery and the passing of risk in the goods, or any other provision of these conditions, the title to the Products will not pass to the purchaser until Seller has received in cash or cleared funds representing payment in full of the price of the goods and all other goods agreed to be sold by Seller to the purchaser for which payment is then due.

 

4.3    Seller will not ship goods without the signature of an authorized representative of the purchaser on the specifications for such goods.

  1. Changes, Cancellation and Returns

5.1    Orders accepted by Seller are not subject to change or cancellation by the purchaser unless Seller consents in writing and the purchaser pays to Seller 100% of the purchase price, which covers Seller’s losses (including lost profit, if any) and actual costs incurred in connection with such change or cancellation.

5.2    Claims relating to nonconforming or defective goods shall be handled as agreed between Seller and the purchaser.

5.3    Goods may not be returned to Seller unless Seller consents in writing and assigns a return authorization number.  Any unauthorized returns or shipping containers received from the purchaser that do not bear a return
authorization number will be returned to the purchaser at the purchaser’s expense.  Return shipments must be prepaid, insured, and shipped at the purchaser’s expense.

  1. Force Majeure

Seller shall have no liability to the purchaser for any delay or failure in carrying out its obligations to the purchaser for reasons beyond Seller’s control including, without limitation, acts of God, war, terrorism, natural disasters, labor disputes, changes in or compliance with laws, regulations or governmental policies and shortages of supplies and services.  Seller may extend delivery until any such cause of delay has been removed or, at its option, cancel the undelivered portion of any order so affected without liability to the purchaser except for the return of any payment made by the purchaser to Seller with respect to any undelivered portion of the order so canceled.

 

  1. Warranty and Limitation of Liability

7.1    Seller warrants to the purchaser that goods sold by Seller to the purchaser will be free from manufacturing defects in materials and workmanship.

7.2    EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE MANUFACTURING SPECIFICATIONS, SELLER EXCLUDES AND EXPRESSLY DISCLAIMS ALL WARRANTIES AND TERMS, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE.

7.3    The warranty set forth in Section 7.1 is subject to the specific terms of the manufacturing specifications, a copy of which will be provided by Seller to the purchaser.

7.4    IN NO EVENT SHALL SELLER BE LIABLE TO THE PURCHASER 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.

  1. Infringement

8.1    Subject to Section 8.2, Seller shall indemnify and hold the purchaser harmless from any claims that goods sold by Seller to the purchaser infringe on the patent or other proprietary rights of third parties, except that Seller shall have no liability under this provision unless the purchaser gives to Seller prompt written notice of any such claim, full authority to settle, compromise or defend any such claim, and full cooperation in connection therewith.  In the event the purchaser notifies Seller of any such infringement claims, Seller shall at its option (a) defend or settle such claims, (b) procure for the purchaser the right to use the goods, (c) substitute non-infringing goods, or (d) accept the return of the product and refund the purchase price less appropriate deductions in the event the goods are not returned in the condition in which sold.

8.2    The purchaser shall indemnify and hold Seller harmless from any claims that goods sold by Seller to the purchaser in accordance with specifications furnished by purchaser or the use of such goods infringe on the patent or other proprietary rights of third parties.

  1. Designs and Trade Secrets

Any drawings, data, designs, specifications, or other technical information supplied by Seller to the purchaser in connection with the sale of any goods shall remain Seller’s property and shall be held in confidence by the purchaser, and the same shall not be reproduced or disclosed to others without Seller’s prior written consent.

  1. Export Controls

The purchaser will comply with all applicable export control laws as in effect from time to time.

  1. Miscellaneous

11.1  The purchaser’s rights, duties and claims under these terms and conditions may not be assigned, transferred or delegated without prior written consent of Seller in each instance.

11.2  These terms and conditions and any contract of sale between Seller and the purchaser shall be governed by the laws of the State of California, USA, without reference to conflicts of law principles.

11.3  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these terms and conditions or to any contract of sale between Seller and the purchaser.

11.4 If any provision contained in these terms and conditions or any contract of sale between Seller and the purchaser or any portion of any such provision is held to be unenforceable or invalid, the remaining provisions and portions shall nevertheless be carried into effect.

11.5  The headings contained in these items and conditions are for convenience only and do not in any way interpret, limit or amplify the scope, extent or intent of any of the provisions.

1. STANDARD TERMS AND CONDITIONS
Any offer made by Ushio America, Inc. (“Seller”) to sell goods is subject to these terms and conditions, and, unless otherwise expressly agreed by Seller in writing, any different or additional terms and conditions proposed by the purchaser are hereby objected to and rejected and shall be of no effect, even if such terms and conditions have not been expressly rejected by Seller.

2. PRICES, TAXES, AND MINIMUM ORDER
2.1   Unless otherwise specified by Seller, prices are in US currency.  Prices do not include, and the purchaser shall pay (or reimburse Seller for), (a) freight and associated charges, (b) insurance, and (c) any and all duties, excise, sales, use, personal property, inventory or similar taxes, charges or levies imposed on or in connection with the sale or use of goods sold by Seller to the purchaser or held by Seller for the purchaser pending shipment.

2.2   Price quotations are subject to change without notice.  After acceptance, price terms are subject to increase to cover cost increases, including increases in any applicable duties or tariffs.

2.3   Orders are subject to stock availability.  The minimum order is for $250 of goods on a net purchase price basis.

3. PAYMENT TERMS
3.1   Unless otherwise specified by Seller, payment terms are net 30 days from the date of invoice.

3.2   Interest at a rate equal to the lower of 1.5% per month or the maximum rate permitted by law shall accrue on the outstanding balance of all payments not made when due, and any such interest shall be payable on demand.

4. DELIVERY AND RISK OF LOSS
4.1   All delivery dates are approximate and Seller shall have no liability to the purchaser for late deliveries.

4.2   Unless otherwise specified by Seller, shipment is FCA shipping point, Incoterms® 2010. Purchaser bears all risks of loss of or damage to the goods upon delivery to carrier for shipment.    Upon such delivery, title to and all risk of loss of or damage to the goods shall pass from Seller to the purchaser.  Seller shall have no liability or responsibility in connection with claims for loss of or damage to goods incurred after delivery to the carrier, and the purchaser shall pursue all such claims directly with the carrier.  All freight, duties, taxes, and other similar charges are the sole responsibility of the purchaser.

5. CHANGES, CANCELLATION AND RETURNS
5.1   Orders accepted by Seller are not subject to change or cancellation by the purchaser unless Seller consents in writing and the purchaser pays to Seller an amount, not to exceed 15% of the purchase price, which covers Seller’s losses (including lost profit, if any) and actual costs incurred in connection with such change or cancellation.

5.2   Seller may, but is not obligated to, accept returns of goods.  Any such returns (other than returns requested by Seller in connection with warranty claims) will be limited to current goods in original cartons and in standard package
quantities.  Any credit issued by Seller will be for the original net purchase price of the goods less any return transportation charge paid by Seller and a restocking charge equal to 20% of the original net purchase price.

5.3   Goods may not be returned to Seller unless Seller consents in writing and assigns a return authorization number.  Any unauthorized returns or shipping containers received from the purchaser which do not bear a return
authorization number will be returned to the purchaser at the purchaser’s expense.  Return shipments must be prepaid, insured, and shipped at the purchaser’s expense.

6. FORCE MAJEURE
Seller shall have no liability to the purchaser for any delay or failure in carrying out its obligations to the purchaser for reasons beyond Seller’s control including, without limitation, acts of God, war, terrorism, natural disasters, labor disputes, changes in or compliance with laws, regulations or governmental policies and shortages of supplies and services.  Seller may extend delivery until any such cause of delay has been removed or, at its option, cancel the undelivered portion of any order so affected without liability to the purchaser except for the return of any payment made by the purchaser to Seller with respect to any undelivered portion of the order so canceled.

7. WARRANTY AND LIMITATION OF LIABILITY
7.1   Seller warrants to the purchaser that goods sold by Seller to the purchaser will be free from manufacturing defects in materials and workmanship on the earlier of (a) the date the first end user purchaser initially installs such goods in an electrical circuit having the correct characteristics for proper use of such goods, and (b) the first anniversary of the purchase date.

7.2   EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER EXCLUDES AND EXPRESSLY DISCLAIMS ALL WARRANTIES AND TERMS, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR USE OR PURPOSE.

7.3   The warranty set forth in Section 7.1 is subject to the specific terms of Seller’s standard limited warranty on goods, a copy of which will be provided by Seller upon request.  The warranty does not apply to goods which have been subject to abuse, misuse, neglect, improper installation or alteration (other than by Seller or its authorized representatives) after delivery to the carrier for shipment to the purchaser.  Seller makes no warranty as to the useful life of the goods.  At Seller’s request, the purchaser shall return goods to Seller at its original shipping point for verification that the warranty set forth in Section 7.1 of this Agreement, as limited by this Section 7.3, is applicable.  Any such returns are subject to the provisions of Section 5.3.

7.4   In the event Seller determines that the warranty set forth in Section 7.1 as limited by Section 7.3 is applicable to any goods, Seller shall, as the purchaser’s sole remedy and at Seller’s sole option, repair, replace, refund, or issue to the purchaser a credit for an amount not to exceed the original purchase price paid by the purchaser to Seller for the affected goods.

7.5   Seller shall have no liability with respect to warranty claims made by the purchaser more than one year after Seller’s sale of the goods involved to the purchaser.  IN NO EVENT WILL SELLER BE LIABLE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY, FOR (A) ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, AND (B) LOSS OF PROFITS, LOSS OF PRODUCTION, LOSS OF USE, LOSS OF BUSINESS OPPORTUNITIES, OR LOSS OF REVENUES; IN EACH CASE, WHETHER OR NOT THE POSSIBILTY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY THE PURCHASER OR COULD HAVE BEEN REASONABLY FORESEEN BY THE PURCHASER, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

8. INFRINGEMENT
8.1   Subject to Section 8.2, Seller shall indemnify and hold the purchaser harmless from any third-party claims, judgments, decrees, costs and expenses, and reasonable attorney’s fees incident to any infringement or to any claimed infringement of any patent or other proprietary rights of third parties arising out of the use by the purchaser of any goods sold by Seller to the purchaser, unless (a) the goods are of the purchaser’s design, specifications, or formula, (b) the infringement claim arose solely from modifications to the goods after delivery to the purchaser, or (c) the infringement claim arose solely based on a combination with any products or components not supplied by Seller.  Seller shall have no liability under this provision unless the purchaser gives to Seller prompt written notice of any such claim, full authority to settle, compromise, or defend any such claim, and full cooperation in connection therewith.  In the event the purchaser notifies Seller of any such infringement claims, Seller shall, at its option, (a) defend or settle such claims, (b) procure for the purchaser the right to use the goods, (c) substitute non-infringing goods, or (d) accept the return of the product and refund the purchase price less appropriate deductions in the event the goods are not returned in the condition in which sold.

8.2   The purchaser shall indemnify and hold Seller harmless from any claims that goods sold by Seller to the purchaser in accordance with specifications furnished by the purchaser infringe on the patent or other proprietary rights of third parties.

9. DESIGNS AND TRADE SECRETS
Any drawings, data, designs, or other technical information supplied by Seller to the purchaser in connection with the sale of any goods shall remain Seller’s property and shall be held in confidence by the purchaser, and the same shall not be reproduced or disclosed to others without Seller’s prior written consent.

10. EXPORT CONTROLS
The purchaser will comply with all applicable export control laws as in effect from time to time.

11. MISCELLANEOUS
11.1 The purchaser’s rights, duties, and claims under these terms and conditions may not be assigned, transferred, or delegated without prior written consent of Seller in each instance.

11.2 These terms and conditions and any contract of sale between Seller and the purchaser shall be governed by the laws of the State of California, USA, without reference to conflicts of law principles.

11.3 The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these terms and conditions or to any contract of sale between Seller and the purchaser.

11.4 If any provision contained in these terms and conditions or any contract of sale between Seller and the purchaser or any portion of any such provision is held to be unenforceable or invalid, the remaining provisions and portions shall nevertheless be carried into effect.

11.5 The headings contained in these items and conditions are for convenience only and do not in any way interpret, limit, or amplify the scope, extent or intent of any of the provisions.

Revised on 8/16/2017

Necsel Standard Terms and Conditions of Sale

  1. DEFINITIONS

In these Standard Terms and Conditions of Sale (“Terms”), the following definitions apply:
“Acknowledgment” means Seller’s standard sales order acknowledgment document.
“Customer” means the person or entity to whom a quotation is made and/or to whom Acknowledgment is sent by Seller.
“Contract” means the binding contract between Customer and Seller for the sale and purchase of the Products.
“Delivery” means the making available to Customer the Products specified in an Acknowledgement.
“Product” means a product that Seller offers to sell, and/or sells (or agrees to sell) pursuant to a Contract.
“Seller” means either Necsel Intellectual Property, Inc., or any of its subsidiaries and/or affiliates as indicated on a quotation and/or an Acknowledgement.
“Standard Product” means a product as sold by Seller to Customer that (a) has not been modified specifically for Customer, (b) is available to the general public for purchase from Seller, and (c) has been packaged and tested before Delivery.
References to sections mean sections of these Terms; section headings are for reference only and do not affect the interpretation of these Terms.

  1. FORMATION OF CONTRACT

2.1            Any written quotation of Seller is (except as otherwise stated therein):

  1. a) an offer to sell Products in accordance with these Terms; and
  2. b) valid for thirty (30) days from the date thereof (subject to any written extension or earlier withdrawal by Seller).

2.2            Any published price list of Seller does not represent an offer open for acceptance.

2.3            Seller shall sell the Products to Customer in accordance with any Customer order:

  1. a) that constitutes an unqualified acceptance of Seller’s written quotation and these Terms; or
  2. b) that Seller, at its sole discretion, accepts either in whole or in part.

2.4            Any Customer order conforming to Section 2.3 will be accepted by means of the Acknowledgement. Such acceptance shall form a Contract governed solely by these Terms.  Seller reserves the right in its sole discretion to reject any Customer order regardless of whether Seller gave Customer a written quotation.

2.5            These Terms shall override all other terms and/or conditions or warranties (if any) imprinted on or referred to in an order, form, or other document issued by Customer (none of which shall apply). Seller’s offer to sell Products expressly limits Customer’s acceptance to these Terms without modification, and no modification of the Terms will bind Seller unless expressly accepted in writing by Seller. Any different or additional terms and conditions proposed by Customer are hereby rejected and shall be of no effect, even if such terms and conditions have not been expressly rejected by Seller.

2.6            Contracts shall be non-cancellable in whole or in part.  If Customer cancels, reschedules, or rejects any Delivery of Products, in whole or in part, Customer shall pay the full price for such Products.  Any indulgence or waiver that Seller may make shall be at Seller’s sole discretion on a case-by case basis and subject to Section 16.8.

  1. DELIVERY & PASSING OF RISK

3.1            Unless otherwise agreed in the Acknowledgement or specified by Seller, Delivery of Products shall be EXW, Seller’s applicable shipment facility as stated in the Acknowledgment, Incoterms® 2010.

3.2            Seller will use its reasonable endeavors to meet any time or date for Delivery stated in the Acknowledgement.  However, Seller will not be liable in any respect for any loss or damage caused by any failure or delay in making delivery.

3.3            Delivery may be made in one or more separate consignments.

3.4            Customer shall be deemed to have accepted the Products within fourteen (14) days of Delivery.

3.5            Risk of loss and damage to Products shall pass to Customer upon delivery of Products to the carrier for shipment. Title shall pass to Customer as provided in Section 6.3 of these Terms.

3.6            If due Delivery is delayed for reasons attributable to Customer or its agents, storage and any other reasonable costs will be payable by Customer on demand by Seller and notwithstanding Section 3.5, the Products shall be at Customer’s risk from the commencement of the delay. Seller reserves the right to invoice Customer for the Products and to commence the warranty period set forth in Section 8 with effect from the original due Delivery date.

  1. PRICE

4.1            The price shall be Seller’s quoted price, or, in the event of any conflict, the price in the Acknowledgement.

4.2            The price includes packaging in accordance with Seller’s normal practice.

4.3            The price excludes (as applicable) any and all:

  1. a) value-added or other similar sales or other taxes levied upon Products supplied by Seller, and
  2. b) additional costs and charges incurred by Seller for shipping, insurance, and special handling from applicable Seller’s facility, all of which shall be charged in addition to the price.

4.4            Customer agrees to pay all amounts due and payable in accordance with Section 4.3 unless it has a valid resale certificate or tax exemption certificate, in which case Customer would be exempt from sales taxes in applicable states. Also, Customer shall be responsible for any personal property taxes arising in relation to each item of the Products from the date of Delivery.

4.5            Reference in these Terms to “tax” or “taxes” include excise, duties, levies, and all similar forms of taxes.

  1. PRICE VARIATION

Seller reserves the right to vary the price of the Products to be supplied pursuant to the Contract in proportion to any verifiable change of costs to Seller between the date of the Acknowledgement and the date of Delivery (including but not limited to exchange rate variations, labor costs, material costs, transport costs, and taxes) or where the change is due to any act or default of Customer.

  1. PAYMENT

6.1            Subject to Section 6.2, Customer shall pay amounts due within thirty (30) days of the invoice date in the same currency as stated in Seller’s invoice. Invoices may be sent at any time on or after shipment of the Products. Customer shall be liable to pay interest on any late payments at a rate equal to the lower of eighteen percent (18%) per annum (one and one half percent (1.5%) per month) or the maximum rate permitted under applicable law. Additionally, if any payment is more than fifteen (15) days past due, Seller shall be entitled to suspend performance of any or all of its obligations under the Contract, including withholding warranty coverage, until all such payments are made.

6.2            Seller reserves the right to require payment by an irrevocable letter of credit confirmed by a high-rated international bank (chosen at Seller’s discretion) to be established in favor of Seller and to have an initial validity period not less than the Delivery period in the Acknowledgement plus one (1) calendar month. The letter of credit shall permit part shipments and provide for the release of one hundred percent (100%) of the Contract value of the Products comprising each shipment. If Seller determines in its sole discretion that payment by an irrevocable letter of credit is necessary, Seller shall be under no liability to deliver any Products until a letter of credit has been opened in accordance with this Section 6.2.

6.3            Legal and beneficial title in the Products shall remain in Seller until payment in full has been received by Seller for all sums due to Seller by Customer under all contracts between them. Until such time, Customer shall hold the Products as Seller’s fiduciary agent and bailee, and Seller may require return of the Products. For the purpose of recovery of the Products, Customer grants Seller an irrevocable license to enter on any premises where the Products are situated (or are reasonably thought to be situated) to repossess them, and Customer agrees to pay any costs of repossession. Customer will store the Products separately and in such a way to enable them to be clearly identified as Seller’s property. Notwithstanding the foregoing, risk in the Products shall pass as set forth in Section 3.5.

6.4            Customer shall not be entitled to exercise any right of sell-off or counter claim against Sellers invoices.

  1. SPECIFICATION & CHANGES

7.1            The specifications for Products shall be those set out in its catalog in effect from time to time or otherwise set forth in the Acknowledgement (“Specifications”). No other specification, descriptive material, written or oral representation, correspondence, or statement shall form part of or be incorporated by reference into the Contract.

7.2            Seller may make modifications to any Product or Specifications: (a) to conform to any applicable laws, (b) to make a Product non-infringing with respect to any rights under patent, copyright, and trademark, trade secret, or other intellectual property laws (“Intellectual Property Rights”), or (c) to otherwise improve a Product, so long as such modifications do not materially affect the quality or performance of the Products. Seller will use reasonable endeavors to promptly notify Customer of any such material changes.

  1. WARRANTY OF PRODUCTS

8.1            Seller warrants that the Products:

  1. a) are free from defects in materials and workmanship, and
  2. b) conform in all material respects to the Specifications.

No obligation or liability will arise out of Seller’s rendering of advice or service in connection with Customer’s purchase of the Products or any repair or replacement of a Product.

For Products that contain an optoelectronic component subject by its nature to a normal degree of performance degradation with operational use and/or time, such degradation shall not constitute a “defect” for purposes of this warranty.

8.2            The warranty period for Products shall be twelve (12) months from the date of shipment unless otherwise stated on the Acknowledgment.

8.3            If any Product is found by Seller not to function as warranted during the warranty period, Seller will determine, at its sole option, to either:

  1. a) make it to function as warranted, or
  2. b) replace it with equivalent conforming Product.

8.4            If Seller determines, at its sole option, that repair or replacement cannot be made using commercially reasonable efforts, Seller will refund to Customer the price paid for the Product.

8.5            Any replacement Product will conform to the original applicable Specification and will be equivalent to the exchanged Product in all material respects. Seller shall own the replaced Product.

8.6            The warranty period for the replacement Product shall be the greater of ninety (90) days from the date of such replacement or the remaining replaced Product warranty period.

8.7            Seller shall be responsible for loss of, or damage to, Customer returned Product while it is in Seller’s possession during warranty service until redelivery to Customer or until delivery of replacement or until refund pursuant to Section 8.4 (as applicable).

8.8            No warranty is provided for:

  1. a) supply items normally consumed during operation of the Products;
  2. b) failures caused by non-Seller products;
  3. c) failures caused by a Product’s inability to operate in conjunction with other Customer hardware or software;
  4. d) performance failures resulting from services not performed by Seller; or
  5. e) development, pre-production, or any form of prototype whatsoever.

8.9            Warranty will be voided by misuse, improper handling or storage, improper installation or repair, accident, damage, modification, failure to maintain proper physical or storage/operating environment, or improper Customer maintenance not approved by Seller in writing.

8.10          The terms of this Section 8 set forth Seller’s entire liability and Customer’s entire remedy with respect to any defect or default in the Products.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL WARRANTIES, REPRESENTATIONS, TERMS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR USE OR PURPOSE ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. THE PRODUCTS ARE NOT AUTHORIZED FOR USE BY CUSTOMER OR ANY THIRD PARTY AS CRITICAL COMPONENT IN LIFE SUPPORT PRODUCTS OR SYSTEMS OR FOR USE IN AVIATION, NUCLEAR, OR ANY OTHER INHERENTLY DANGEROUS APPLICATION WITHOUT THE EXPRESS WRITTEN APPROVAL OF SELLER. LIFE SUPPORT PRODUCTS OR SYSTEMS ARE THOSE THAT ARE INTENDED TO SUPPORT OR SUSTAIN LIFE AND WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO RESULT IN A SIGNIFICANT INJURY TO THE USER. CRITICAL COMPONENTS ARE THOSE COMPONENTS WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE FAILURE OF A LIFE SUPPORT DEVICE OR SYSTEM OR AFFECT ITS SAFETY OR EFFECTIVENESS.

  1. WARRANTY CLAIM PROCEDURE

9.1            Seller will provide warranty services to Customer consistent with Seller’s current standard practices and response times. Where applicable, before Seller provides warranty services, Customer agrees to follow the problem determination, problem analysis, and warranty services request procedures that Seller provides.

9.2            When returning Product to Seller for warranty service, Customer agrees to ship it prepaid and suitably packaged to a location Seller designates.

9.3            If not found by Seller to be in breach of warranty, the Products will be returned to Customer at Customer’s expense, and Seller may charge an evaluation and test fee not exceeding fifteen percent (15%) of the price of the Products so affected. If the Products are found to be in breach of warranty, any replacements or repaired Products will be returned to Customer at Seller’s expense.

9.4            Post warranty services may be available at Seller’s then-current prices.

  1. INTELLECTUAL PROPERTY

10.1          All intellectual property and other proprietary rights relating to Products including, but not limited to, any Intellectual Property Rights and all technical, business, and similar information of Seller or any Intellectual Property Rights that are created by Seller in the course of performing the Contract shall be, and shall remain, Seller’s property.

10.2          Customer agrees not to remove, alter, obscure, or deface any marks, names, notices, or numbers affixed to the Products without Seller’s written consent.

10.3          Customer agrees not to, and will not encourage, assist, or authorize any other person to reverse engineer, decompile, or disassemble the Product or any software contained therein, or otherwise attempt to derive software source code or other technology related to the Product.

10.4          Seller will indemnify and hold Customer harmless from and against any claim, damage, liability, loss, cost, expense, obligation, action or cause of action arising out of any actual or alleged infringement of any Products sold by Seller to Customer under the Contract on any Intellectual Property Rights of any third party, provided that Customer:

  1. a) promptly notifies Seller in writing of the claim, and
  2. b) provides Seller full power and authority to defend or settle any such third party claim and cooperates with Seller in the process.

However, Customer may, by counsel of its own choosing and at its sole expense, participate in any legal proceeding or settlement relating to any matter as to which a claim is made by Customer under this indemnity.

10.5          If such a claim is made or appears likely to be made, Seller agrees (a) to secure the right for Customer to continue to use the Product, (b) to modify it, or (c) to replace it with one that is equivalent. If Seller determines that none of these alternatives is reasonably available, Customer agrees to return the Product to Seller on Seller’s written request. Seller will then give Customer a credit equal to the depreciated value of the Product.

10.6          Any such claims against Customer or liability for infringement arising from the use of the Product following a request for return by Seller are the sole responsibility of Customer. This represents Seller’s entire obligation to Customer regarding any claim of infringement.

10.7          Seller has no obligation to defend or indemnify Customer if the third party claims arise from any of the following:

  1. a) anything Customer provides that is incorporated into the Product;
  2. b) functionality provided by Seller at the instruction of Customer;
  3. c) Seller’s compliance with any design or Specification furnished and required by Customer;
  4. d) Customer’s modification of Product;
  5. e) the combination, operation, or use of Product with other products not provided by Seller; or
  6. f) Customer’s failure to install any upgrade provided by Seller at no cost.

10.8          If any Product is sold by Seller to meet Customer’s particular specifications or requirements that are not part of Seller’s Standard Product that is offered to the general public in the normal course of Seller’s business, Customer will indemnify and hold Seller harmless from and against any claim, damage, liability, loss, cost, expense, obligation, action or cause of action arising out of any actual or alleged infringement of any Products sold by Seller to Customer under the Contract on any Intellectual Property Rights of any third party.

  1. LIMITATION OF LIABILITY

11.1          IN NO EVENT WILL SELLER OR ITS SUPPLIERS OR SUBCONTRACTORS BE LIABLE FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOSS OF USE, OPPORTUNITY, MARKET POTENTIAL, GOODWILL, REVENUE, OR PROFITS, ARISING FROM OR RELATING TO THE CONTRACT, HOWEVER CAUSED AND ARISING UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY, AND NEGLIGENCE), AND EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SELLER’S AND ITS SUPPLIERS’ OR SUBCONTRACTORS’ TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THE CONTRACT EXCEED THE LESSER OF:

(A)            THE AMOUNTS ACTUALLY RECEIVED BY SELLER FROM CUSTOMER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE MOST RECENT CLAIM BROUGHT BY CUSTOMER AGAINST SELLER UNDER OR RELATED TO THECONTRACT, OR

(B)            TWO HUNDRED FIFTY THOUSAND U.S. DOLLARS (US$250,000).

THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. THE CONTRACT STATES THE ONLY AND EXCLUSIVE REMEDIES FOR ANY AND ALL CLAIMS MADE AGAINST SELLER OR ITS SUPPLIERS OR SUBCONTRACTORS WITH RESPECT TO SELLER’S PRODUCTS AND/OR THE CONTRACT. THE PARTIES AGREE THAT THIS SECTION 11 REPRESENTS A REASONABLE ALLOCATION OF RISK.

11.2          The foregoing limitation will not apply to claims for damages for bodily injury (including death) and damage to real property and tangible personal property caused by the negligence of Seller or in the case of fraudulent misrepresentation by Seller.

11.3          In no event shall Seller or its affiliates, subsidiaries, agents, suppliers, or subcontractors be liable for any of the following:

  1. a) damages based on any third-party claim except as expressly provided in Sections 10 and 11; or
  2. b) loss of, or damage to, Customer’s records, files, or data, even if Seller is informed of the possibility of such loss or damage.
  3. INDEMNIFICATION BY CUSTOMER

Customer will indemnify Seller, its affiliates, and their respective officers, directors, shareholders, employees, agents, legal representatives, successors, and assigns from and against any claim, damage, liability, loss, cost, expense, obligation, action or cause of action arising out of any breach by Customer of its obligations under the Contract or any negligent or willful misconduct of Customer. Customer’s obligations under this Section 12 will survive the expiration or termination of the Contract.

  1. TERMINATION

Seller may terminate the Contract forthwith if Customer: (a) breaches any of the Terms; or (b) becomes insolvent or enters into any arrangement with creditors or is put into liquidation or suffers the appointment of a receiver. Upon termination, Seller shall have no more obligations to Customer under the Contract. Termination shall not prejudice Seller’s right to payment for Products delivered prior to termination but not paid for by Customer.

  1. CONFIDENTIALITY

14.1          “Confidential Information” means any non-public, confidential, or proprietary information disclosed by one party (and with respect to Seller, including its affiliates and subsidiaries) (the “Disclosing Party”) to the other party (the “Receiving Party”) that:

(a)            if disclosed in tangible form, is conspicuously marked with a “confidential,” “proprietary,” or some similar legend to indicate its confidential nature;

(b)            if disclosed orally, is clearly designated as confidential at the time of disclosure and is specifically identified in a confirmatory writing sent to the Receiving Party within thirty (30) days after initial disclosure; or

(c)            would otherwise be reasonably expected to be treated in a confidential manner under the circumstances of disclosure. Neither party may disclose the existence and the general nature of the Contract nor the Terms. Notwithstanding the foregoing, the Receiving Party shall not have any obligations under this Section 14 with regard to any Confidential Information of the Disclosing Party that:

(i)             was in the public domain when received or thereafter enters the public domain through no fault of the Receiving Party;

(ii)             was known to the Receiving Party at the time of receipt;

(iii)            is received by the Receiving Party from a third party without restrictions on disclosure and, to the knowledge and belief of the Receiving Party, without any breach of any confidentiality obligation to the Disclosing Party;

(iv)            is approved for disclosure by written authorization of the Disclosing Party or is disclosed by the Disclosing Party to others without restriction on disclosure;

(v)            was independently developed by the Receiving Party or its affiliates without using the Disclosing Party’s Confidential Information; or

(vi)            is disclosed by the Receiving Party pursuant to statute, regulation, or the order of a court of competent jurisdiction, provided that the Receiving Party promptly notifies the Disclosing Party of such required disclosure in order to permit the Disclosing Party to seek a protective order or other appropriate relief.

14.2          The Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose except to perform its obligations and exercise its rights under the Contract. The Receiving Party shall not disclose any Confidential Information of the Disclosing Party to third parties or to such party’s employees and independent contractors, except that, subject to the provisions below, the Receiving Party may disclose the Disclosing Party’s  confidential  Information to its and its affiliates’ directors, officers, employees, agents, subcontractors, attorneys, accountants, or advisers (“Representatives”) who have a need to know the Confidential Information to perform the Receiving Party’s obligations or to exercise the Receiving Party’s rights under the Contract. The Receiving Party shall take at least those measures that it takes to protect its own confidential information of a similar nature but in no event less than a reasonable degree of care. The Receiving Party shall ensure that its Representatives who have access to Confidential Information of the Disclosing Party are under a duty, contractual or otherwise, to maintain the confidentiality of the Confidential Information.

14.3          Each party agrees that any violation or threatened violation of the Contract may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies available to it.

  1. ITEMS SUPPLIED BY CUSTOMER

Any items supplied by Customer for the purposes of the Contract (“Infeed Item”) shall be of suitable quality in accordance with the relevant Specification and shall be provided free of charge in sufficient quantities and at the times required by Seller. Customer shall indemnify Seller, its affiliates, and their respective officers, directors, shareholders, employees, agents, legal representatives, successors, and assigns from and against all actions, demands, claims, proceedings, losses, or costs resulting from a defective Infeed Item, or from any liability for infringement of a third party’s Intellectual Property Rights arising from the supply or subsequent use or sale of Infeed Items.

  1. GENERAL PROVISIONS

16.1          Customer agrees not to assign, or otherwise transfer the Contract or Customer’s rights under it, or delegate Customer’s obligations, without Seller’s prior written consent. Any purported transfer in violation of this section is void and prohibited.

16.2          Customer represents and warrants that it is buying Products for its own internal use and/or for incorporation in other Customer hardware or software to be sold to third parties as an aggregate product or system. Customer agrees that it shall not resell Products to third parties in the same or similar form as sold by Seller to Customer without receiving prior written consent from Seller.

16.3          Seller and Customer agree to comply with all applicable laws including, without limitation, all applicable export and import laws and regulations. Customer shall not export any Products or technical data received from Seller pursuant to the Contract except in accordance with applicable export control laws and regulations.

16.4          If the performance of the Contract or of any obligation thereunder by either party is prevented by reason of the act of God, fire, floods, war, terrorism and civil disturbances or riot, acts of government, currency restrictions, labor disputes, strikes, difficulty in obtaining materials, failure of carrier or sub-contractor, inability to obtain any necessary import or export license or other consent or permit required of any relevant authority, or any other act or condition whatsoever beyond the reasonable control of such party, such party will, except for payment obligations, be excused from performance for so long as such cause continues.

16.5          Except for non-payment, neither Customer nor Seller will bring a legal action under the Contract more than two (2) years after the cause of action arose.

16.6          In the event that any provision of the Contract including these Terms or portions thereof are held to be invalid or unenforceable, the remainder of the Contract will remain in full force and effect.

16.7          The Contract including these Terms forms the complete and exclusive agreement between Customer and Seller and replaces any prior oral or written proposals, correspondence, or communications regarding the subject matter hereof.

16.8          No forbearance, delay, or indulgence by either party in enforcing the provisions of these Terms shall prejudice or restrict the rights of that party, nor shall any waiver of its rights operate as a waiver of any subsequent breach.

16.9          The Contract including these Terms may not be modified or amended except in writing signed by a duly authorized representative of each party.

16.10        The parties shall execute and do all such further deeds, documents, and things as may be necessary to carry the provisions of the Contract into full force and effect.

16.11        The Contract shall be governed by and construed under and according to the laws of the State of California, United States of America, without regard to its conflict of law provisions other than such provisions directing application of California law. The United Nations Convention on Contracts for the International Sale of Good does not apply to the Contract.

16.12        If there is a dispute between the parties (whether or not the dispute arises out of or relates to the Contract), the parties agree that they will first attempt to resolve the dispute through one senior management member of each party. If they are unable to do so within sixty (60) days after the complaining party’s written notice to the other party, the parties will then seek to resolve the dispute through non-binding mediation conducted in Orange County, California. Each party must bear its own expenses in connection with the mediation and must share equally the fees and expenses of the mediator. If the parties are unable to resolve the dispute within sixty (60) days after commencing mediation, either party may commence litigation in the state or federal courts in Orange County, California. The parties irrevocably submit to the exclusive jurisdiction of those courts and agree that final judgment in any action or proceeding brought in such courts will be conclusive and may be enforced in any other jurisdiction by suit on the judgment (a certified copy of which will be conclusive evidence of the judgment) or in any other manner provided by law. Process served personally or by registered or certified mail, return receipt requested, will constitute adequate service of process in any such action, suit, or proceeding. Each party irrevocably waives to the fullest extent permitted by applicable law (a) any objection it may have to the laying of venue in any court referred to above; (b) any claim that any such action or proceeding has been brought in an inconvenient forum; and (c) any immunity that it or its assets may have from any suit, execution, attachment (whether provisional or final, in aid of execution, before judgment or otherwise), or other legal process.

Revised September 2019