Standard Software Terms and Conditions of Sale

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  1. Definitions
    • “Seller” means Rudolph Technologies, Inc.
    • “Buyer” means the customer ordering/purchasing Product, as defined below, from Seller. The term “Buyer” includes the end user of the Product and any intermediate purchaser or agent provided, however, that Article 15 shall apply only to the actual end user.
    • “Services” means Seller’s installation, maintenance and/or repair services.
    • “Software” means Seller’s proprietary computer software packages, programs and software code in any form including all permitted copies, updates and enhancements.
    • “Documentation” means Seller’s user manuals, training material, programmer's guides, system guides and materials related to the use of the Software and supplied in electronic, printed or other form, plus all changes, corrections, enhancements or updates subsequently made to such documents.
    • “Product” shall mean Software, Services and Documentation.
  2. General
    These Standard Terms and Conditions of Sale (the “Terms and Conditions”) are a condition of, apply to, and must govern the agreement between Seller and Buyer for the purchase by Buyer and supply by Seller of Product as set forth in Seller’s official quotation to Buyer (the “Quotation”), except as follows. Where additional or different terms are contained in the Quotation, invoice, response to Buyer’s Request for Quotation (“RFQ”) or confirmation of order generated by Seller’s office in either Flanders, New Jersey or Bloomington, Minnesota or in any document which is signed on behalf of Seller by one of its officers or other Seller authorized person, then those additional or different terms shall control, and the later of these documents shall control over any earlier document. If Buyer has previously submitted to Seller, or in the future submits, a purchase order or similar document, Buyer should understand that whether or not Seller accepts Buyer’s offer orally or in writing, Seller expressly rejects any terms of Buyer’s purchase order or similar document that are additional to, different from, or inconsistent with, the Terms and Conditions set forth herein. Seller will regard Buyer’s failure to object to any of these Terms and Conditions within five (5) days of Buyer’s first receipt of a document containing the particular term or condition as implying Buyer’s assent thereto. These Terms and Conditions shall not be modified in any way unless agreed in writing by duly authorized representatives of Seller and Buyer.
  3. Prices, Taxes
    Prices are as stated on the Quotation. Prices are exclusive of any present or future duty, tax, charge, or other government assessment payable by reason of this transaction. All taxes, import/export duties and excises of any nature whatsoever now or hereafter levied by governmental authority, whether federal, state or local, upon the sale, use, or transportation of any goods covered hereby, shall be paid and borne by Buyer. If Buyer is exempt or holds a direct payment permit, Buyer shall, upon order placement, provide Seller a copy, acceptable to the relevant governmental authorities, of any such certificate or permit. Buyer shall reimburse Seller for any such duties, taxes, or assessments, together with associated charges, as may be incurred by Seller.
    In addition to the foregoing, prices are also exclusive of all expenses of shipment, insurance and storage, all expenses related to special packing or unique circumstances, and all living and transportation expenses. Such expenses will be charged to and paid for by Buyer at Seller’s actual cost.
    All prices are subject to change or withdrawal without notice prior to acceptance of Buyer’s order unless it has been stated in the Quotation that such prices are to remain firm for a specific period. Orders, which Seller receives during the Quotation period, will be billed at the quoted price provided shipments are authorized to be made within six (6) months of the date of acceptance. Orders Seller receives and accepts without prior written quotation will be billed at prevailing list prices at the time of Seller’s receipt of the order, providing shipments are to be made within six (6) months of the date of acceptance. In regard to shipments to be made more than six (6) months after order acceptance date, Seller’s general policy is to hold prices firm over the delivery period but Seller reserves the right to increase prices for such shipments. Seller agrees to notify Buyer of any price changes prior to shipment from Seller’s factory. SELLER RESERVES THE RIGHT TO CORRECT ALL TYPOGRAPH-ICAL OR CLERICAL ERRORS OR OMISSIONS, WHICH MAY BE PRESENT IN THE PRICES, CONFIGURATION AND SPECIFICATIONS, SET FORTH IN ALL QUOTATIONS.
  4. Payment
    Unless the invoice provides otherwise, all Seller invoices are due and payable in full, without offset, thirty (30) days after the date of the invoice. All transactions will be in U.S. Dollars unless otherwise agreed upon by Seller and Buyer. Where the invoice or any governing term of Seller’s contract or arrangement provides that a portion of the payment is due following shipment or invoice and a second portion is due following a later event in the nature of Buyer acceptance (whether characterized as “acceptance,” “customer acceptance,” “completion of requirements” or otherwise) the Software shall be deemed accepted and the second payment shall be deemed to be due and payable not later than ninety (90) days after original shipment from Seller’s factory or upon the earliest to occur of the following:
    • Seller receives written notice of Buyer’s acceptance of the Software;
    • Seller receives Buyer’s second payment;
    • acceptance would be deemed to have occurred under the UCC, as is in effect in the State of New Jersey, U.S.A. at time of shipment; or
    • any use of the Software by the Buyer, its employees or agents to produce saleable product.
    Seller’s performance of the foregoing terms is conditioned upon Buyer’s having complied with this Article 4. Unless agreed in writing by a duly authorized representative of Seller, Buyer will be invoiced, upon credit approval, 90% of contract price upon shipment to Buyer, 10% of contract price upon completion of on-site acceptance test (see Article 9 for definition of on-site acceptance testing).
    Services - Service duration:
    • less than one (1) week - 100% of contract price due upon completion of the Service.
    • duration greater than one (1) week - invoiced and due weekly for the Services performed as of the invoice date.
    Any unpaid amounts pursuant to this Article 4 shall bear interest at the lesser of one-and-one-half percent (1½%) per month or the maximum rate allowed by applicable law. All costs of collection incurred by Seller in collecting such unpaid amounts, including reasonable attorney and expert fees and costs of court, shall be paid by the Buyer.
  5. Credit Terms; Grant of Security Interest
    Where credit in Seller’s judgment is not warranted, whether at or subsequent to the time of acceptance of the order, Seller reserves the right to require payment on delivery and/or at Seller’s option, payment in advance for all items yet to be delivered. Seller reserves, and, by placing an order with Seller, Buyer grants to Seller, a security interest in all goods covered by the order and any and all additions, replacements, substitutions, and repairs thereto, as well as any products and proceeds of the foregoing for the purpose of securing payments due in connection with the order and all other promises and obligations of Buyer to Seller arising under the order. By placing an order with Seller, Buyer agrees to sign and execute at any time alone or with Seller any financing statements or other documents, which Seller deems reasonably necessary to protect and continue Seller’s security interest under the order. Buyer also grants Seller an irrevocable power of attorney to execute such financing statements or other documents on Buyer’s behalf. Buyer shall prevent and hold Seller harmless against assertions of interest or claims by third parties. When all of Buyer’s promises and obligations under the order and the related invoice(s) have been fully paid and satisfied, Seller’s security interest shall terminate.
  6. Cancellation
    Buyer may cancel a confirmed order in whole or in part at any time prior to shipment by giving written notice of such cancellation to Seller. In the event of a cancellation of a confirmed order, the following cancellation fees will apply and will be due and payable in full, thirty (30) days after the date of the cancellation:
    Number of Days Before Scheduled Shipment Date  Cancellation Fee-Percentage of Purchase Price
    Within 30 Days 50%
    31-60 Days 40%
    61-90 Days 30%
    More than 90 Days 10%

    Seller may cancel these Terms and Conditions, without penalty, if Buyer fails to remain current in its payment obligations under Article 4 of these Terms and Conditions, in which case Buyer shall immediately pay to Seller cancellation charges calculated in accordance with this Article 6.
  7. Delivery
    All deliveries quoted signify shipments from Seller’s facility on a specific date. Delivery dates quoted by Seller are estimates based upon on Seller’s current schedule commitments, Buyer’s specified requirements at the time of order acceptance and are contingent on timely receipt of Buyer’s documentation. If Buyer directs a delay in shipment, beyond the schedule ship date, or otherwise suspends performance, then:
    • Buyer shall issue to Seller an authorized “Ship-in-Place” letter whereupon title and risk of loss shall pass from Seller to Buyer;
    • Seller shall invoice Buyer as if shipment or other performance had been made as originally scheduled;
    • Buyer shall pay storage, maintenance and associated charges; and
    • Seller may increase prices one half percent (1/2%) of the contract price for each month the scheduled shipment date is delayed.
    Seller reserves the right to allocate inventories and current production when there is reason to believe that Government regulations or other business or non-business causes, whether similar or dissimilar, may make this action necessary.
  8. Transportation Expenses - Risk of Loss
    Unless otherwise specified in writing:
    • Software shipments will be made EXW, Seller’s facility in Tewksbury, Massachusetts, U.S.A. (Incoterms 2010);
    • Seller will select the means of transportation and routing; and
    • Full value will be declared on rail, air and motor freight bills of lading, and merchandise will be insured at Buyer’s expense for full value.
  9. Inspection, Testing and Acceptance
    On-site Acceptance Testing - When on-site acceptance testing is to be performed, the on-site test will be performed together by Seller personnel and Buyer personnel. The acceptance test is intended to verify that all Software supplied hereunder performs to Seller’s official published specifications.
    Completion of the on-site acceptance test constitutes full and final acceptance of the Software. If acceptance is not performed within ninety (90) days after arrival of the Software at the site due to no fault of Seller, final acceptance shall be deemed to have been made by Buyer. The Software cannot be used in production if it has not been accepted by Buyer.
  10. Changes
    Any changes affecting the Product or otherwise affecting the scope of work, must be mutually agreed on between Seller and Buyer, and resulting adjustments to affected provisions, including price, schedule, and guarantees, must be submitted in writing prior to implementation of change.
  11. Operator Training
    Training for Software, if any, shall be provided in accordance with the terms set forth in the Quotation.
    One (1) training credit equals approximately one (1) day of training. All training will be scheduled after successful installation, verification of operation and system acceptance has been completed, unless otherwise agreed to by the Seller.
    All training credits expire six (6) months following the date of shipment and may only be applied to classes that are associated with the Software purchased under which the training credits were issued.
  12. Buyer's Responsibility
    Buyer agrees to advise Seller in writing of safety practices applicable to Buyer’s site where Service will be performed, and to identify any potential health hazards or other hazardous working conditions prior to the commencement of work hereunder. Any Buyer training programs detailing site-specific safety practices will be made available to Seller’s on-site personnel at no cost to Seller.
    Buyer agrees that its right and license to use any Software licensed hereunder is expressly conditioned upon Buyer being in compliance with its obligations herein, including but not limited to its payment obligations, and in the event Buyer fails to so comply, Seller shall have the right to seek whatever remedies are available to it, including but not limited to terminating the license and disabling the Software.
  13. Product Discontinuation
    In the event that Seller decides to discontinue Software, which it may do in its sole discretion, Seller shall issue a notice identifying the Software to be discontinued at least one (1) year in advance of such discontinuation. Should Software be discontinued, Seller shall continue to provide Software Maintenance Support to Buyer in accordance with Article 16 below for period of three (3) years from the discontinuation date in the event that no upgrade path for such discontinued Software exists, provided that Buyer is and remains current in Buyer’s payment to Seller for such support.
  14. Warranty
     Software - Seller warrants that the media on which the Software is delivered shall be free from defects in materials and workmanship when delivered. Seller further warrants that it shall repair or replace, at its option, Software which fails, in a manner which significantly and adversely affects operating performance, to conform to Seller’s specifications delivered to Buyer, provided Seller receives written notification of any such failure to conform within one (1) year from date of shipment. Seller does not warrant that the Software is free from errors. All transportation charges associated with Software will be arranged and paid for by Seller.
    Service Labor - Seller warrants that it shall re-perform any Services performed which are found to have been performed other than in a professional manner and in accordance with sound, generally accepted engineering and professional practices in effect at the time of performance, provided Seller receives written notification of the observed condition within thirty (30) days from date of such performance. All transportation charges associated with Services warranty will be arranged and paid for by Seller. All Warranty work will be performed in any consecutive eight (8) hour period between the hours of 8 AM and 6 PM local time, Monday through Friday.
    Software Corrections - Software corrections installed by Seller are warranted for three (3) months from Seller’s invoice date. Seller shall repair or replace, at its option, software corrections furnished in association herewith which are found to be defective in material or workmanship, provided Seller receives written notification of any such defect within the cited warranty period. All transportation charges associated with software corrections warranty will be arranged and paid for by Seller.
    The foregoing warranties and Seller’s liability are expressly subject to Buyer’s proper use, management and supervision of the Software. The Software warranties shall not apply to and Seller shall not be responsible or liable for any deficiency or defect resulting from:
    • Software changes, modifications or alterations made by Buyer or a third party without Seller’s written consent;
    • improper installation or maintenance of the Software other than by Seller;
    • accident, neglect, failure of electric power, storage or use in improper or adverse environmental conditions, misuse, tampering, abuse, negligence, catastrophe, operator error, or causes other than use in ordinary commercial or industrial application;
    • errors which are not generated by the Software as delivered by Seller to Buyer, including errors which are created in the interaction of the Software with non-Seller software, provided such problems are not caused by the Software; or
    • failure or incompatibility of computer hardware, equipment or software not supplied by Seller.
    Should Seller determine the root cause of Buyer’s warranty claim is due to any of items listed above, any service provided by Seller under such claim will be charged to Buyer at Seller’s standard service rates, including but not limited to labor and travel costs.
    The foregoing warranties shall include the costs of labor, travel time and expense.
    Buyer’s sole right, upon a defect in the Product or a failure of the Product to perform in accordance with its specifications, is to notify Seller and have Seller (at Seller’s sole option) replace or repair the Product. Provided that Seller proceed to replace or repair the Product, Buyer shall have no right to reject the Product, rescind the purchase or recover any amounts previously paid. THESE WARRANTIES ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE TO BUYER OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Seller’s aggregate liability hereunder shall be limited to the repair, replacement, or re-performance described above, and shall in no case exceed the Contract Price.
  15. Software License
    The following Terms and Conditions reflect the provisions to which Buyer, as licensee, and Seller, as licensor, agree with regard solely to the Programs. The “Programs” are defined as the Software and/or any Seller embedded software including that which embeds programs of Oracle Corporation (“Oracle”), Hewlett-Packard Company (“HP”) and other software suppliers, each pursuant to an agreement between Seller and the named software provider (collectively, the “Embedded Software”). For the purposes hereof, Oracle, HP and other suppliers that license software to Seller shall be referred to herein as “Licensors”. Oracle and HP software are each subject to a restricted license, may include source code provided by such Licensor in its standard shipment of such Programs and may only be used hereunder in conjunction with the Programs. By installing, copying or otherwise using the Programs, Buyer expressly agrees to be bound by the Terms and Conditions herein. If Buyer does not agree to be bound by these Terms and Conditions, Buyer must promptly notify Seller and return the Programs to the place or person from which Buyer received the Programs.
    Subject to the terms below, Seller hereby grants to Buyer a non-transferable and nonexclusive license to use the Programs and the intellectual property contained therein, furnished hereunder for the limited use described herein and in the Documentation. This license shall remain in effect until retirement or decommissioning of the Programs unless terminated by Seller due to Buyer’s breach of the provisions of these Terms and Conditions. Upon termination of the license,
    Buyer shall cease using the Programs and immediately return to Seller, or certify the destruction of, all copies of the Programs in Buyer’s possession or under its control.
    Pursuant to the license granted herein, Buyer may use the Programs if Buyer meets and agrees to the following:
    Buyer may:
    • use the Programs in object form within the scope of the application package and for internal business purposes only;
    • make only one (1) copy of the Programs solely for backup or archival purposes; provided, that any copies must contain the same proprietary notices that appear in or on the original Programs;
    • permit Buyer’s agents or contractors to use the Programs on Buyer’s behalf consistent with these Terms and Conditions and provided that Buyer is responsible for such agents’ or contractors’ compliance with these Terms and Conditions;
    • load the Software into RAM or install the Software on hard disc or other storage device solely at the installation site specified in the purchase order;
    • access the Software from a hard disk or over a network which is confined internally to the installation site; and/or
    • reassign the Software within the installation site subject to the quantities described in the purchase order.
    Buyer may not:
    • transfer any Program except for temporary transfer in the event of computer malfunction;
    • sell, give, convey, assign, provide or otherwise transfer the Programs, title to the Programs or any interest in the Programs to any other individual or entity;
    • sublicense or allow leasing, timesharing, service bureau, subscription service or rental use of the Programs;
    • modify, translate, reverse engineer, decrypt, decompile, disassemble or create derivative works based on the Programs or any related materials;
    • duplicate or copy the Programs except as provided for above;
    • disclose, print or display the Programs without Seller’s prior written consent nor publish any results of benchmark tests run on the Programs;
    • copy the Programs onto or otherwise use or make it available on, to, or through any public external distributed network;
    • remove Seller or Licensor copyright or proprietary notices or legends, titles, trademarks, or trade names from Programs or any related materials, and all authorized copies of the Programs made by Buyer shall include such notices or legends, titles, trademarks, or trade names; or
    • export or re-export the Programs in violation of any export provisions of the United States or any other applicable jurisdiction.
    All title and intellectual property rights in and to the Programs and any related materials are owned by Seller or the respective Licensors, as appropriate, and no title to or ownership of the Programs or the intellectual property contained therein, in whole or in part, is transferred to Buyer. Further, Buyer may not designate the Computer Program Material a “work made for hire” under the Copyright Act.
    The Embedded Software (which for the purposes herein shall include any updates) may include third party software programs that are subject to open source, freeware or pass through commercial licenses and/or notices that Licensors are required to distribute with the Programs. These licenses and notices are available to Buyer in files in the Program directory, in documentation that accompanies the Programs or via a supplementary list provided by Seller. Buyer shall not remove these agreements and notices and shall assure they are included with the Embedded Software as part of the Programs as required by the licenses or notices or as otherwise directed by Seller. Any covenants, representations, warranties, indemnities and other commitments with respect to the Embedded Programs herein are made by the Licensors and not by any authors or suppliers of, or contributors to, such open source, freeware or commercial programs. This Agreement does not modify or abridge any rights or obligations that Buyer, its distributors, resellers and end users may have under the third party licenses and notices applicable to such programs. Any use or distribution of open source or freeware programs outside of their licensed use and distribution with the Programs hereunder, and any use and distribution of a commercial program subject to a pass through license, is subject solely to the rights and obligations under the applicable open source, freeware or pass through license. Any third party program that is separate from, but delivered with, the Programs, if any, is provided and licensed solely under the applicable open source, freeware or commercial pass through license for such software.
    While the Programs are in use by Buyer and for a period of three (3) years thereafter, Buyer shall maintain current, complete and accurate records of the location and use of all copies of the Programs. Buyer shall make these records available to Seller within ten (10) working days after Seller’s request. Buyer agrees to allow Seller, with reasonable prior notice, to enter Buyer’s premises during normal business hours, or to electronically access the Programs installed at Buyer’s site, to verify Buyer’s compliance with these Terms and Conditions. If any such audit should disclose an underpayment by Buyer, Buyer shall promptly pay Seller the amount of the underpayment, and Seller’s costs and expenses for such audit. Seller reserves the right to a) report the results of the audit; and/or b) assign its right to audit, to the respective Licensor as appropriate.
    Buyer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to assure that neither the Programs, nor any direct product thereof, are exported, directly or indirectly, in violation of applicable laws. It is agreed to hereby exclude the application of the U.S. Uniform Computer Information Transactions Act.
    In the event of termination of this license, Buyer shall immediately cease using the Programs and without retaining any copies, notes or excerpts thereof, return to Seller the Programs and all copies thereof and shall remove all machine readable Programs from all of Buyer’s storage media (volatile or non-volatile).
    If the Programs are licensed to Buyer for use in the performance of a U.S. Government prime contract or subcontract, Buyer agrees that consistent with FAR 12.211 and 12.212, commercial computer software, documentation and technical data for commercial items are licensed in accordance with these sublicense terms.
    To the extent permitted by law, HP shall not be liable for any damages, whether direct, indirect, incidental or consequential arising from the use of the Programs.
    Oracle is not required to perform any obligations or incur any liability hereunder other than that set forth in Seller’s agreement with Oracle. Buyer agrees that the Licensors are, to the fullest extent permitted by law, third party beneficiaries of the Terms and Conditions herein and that Buyer may not confer upon any other person who is not a named party herein any right or remedy under or by reason of these Terms and Conditions. In the event that these Terms and Conditions are breached by Buyer, Seller and each Licensor shall have the right to directly enforce the provisions of these Terms and Conditions.
  16. Software Maintenance Support
    For as long as Buyer uses the Software licensed hereunder and for additional Software purchased in subsequent purchases, Buyer must purchase annual Software maintenance (“Software Maintenance Support”) and pay for such maintenance, in advance, on an annual basis. Buyer must purchase annual maintenance for all Software in use. Seller will provide Software Maintenance Support to Buyer for as long as:
    • Seller provides Software Maintenance Support to its customers generally; and
    • Buyer has paid for Software Maintenance Support in advance as required by this Article 16 or Seller’s then current Software Maintenance Support pricing and policies.
    Software Maintenance Support includes:
    • Commercially reasonable efforts to correct errors in Software. The appropriate corrective action and the time frame for correcting errors are determined by Seller.
    • Telephone support services, available Monday through Friday from 9:00am to 5:00pm local time, excluding Seller-designated holidays. Seller will assist Buyer with problems encountered during use of the Software and will extend a reasonable commercial effort toward correction of all problems reported, but does not warrant that all problems will be corrected. Such telephone support is limited to the installation site.
    • Minor and maintenance Software release updates as described below
    Software Maintenance Support on Seller distributed third party software combined with the Software includes commercially reasonable efforts to diagnose errors in the third party software included as part of the Software. Seller may, at its sole discretion, contact the vendor of the third party software and seek assistance in diagnosing the error. The appropriate corrective action and the time frame for correcting it will depend on the nature and extent of the error as determined by Seller.
    Exceptions - Unless agreed in writing by Seller, Software Maintenance Support does not include:
    • diagnosis or correction of errors that result from improper or unauthorized use of the Software;
    • Software that has been modified or repaired by Buyer or any third party other than Seller;
    • customized modifications made to the Software by Seller for Buyer;
    • use of the Software in a manner for which it was not intended;
    • combination or adaptation of the Software with computer hardware or software programs which are not supported by the Software under the specifications stated in the Documentation;
    • use of any unsupported release of the Software; and
    • negligence or errors related to Software functionality controlled by Buyer, including but not limited to failure of electric power, storage or use in improper or adverse environmental conditions, misuse, catastrophe, operator error, or causes other than use in ordinary commercial or industrial applications.
    If Seller agrees to provide Software Maintenance Support for any such errors, Buyer shall pay Seller’s then current time and materials rates for such support.
    Software Error Reporting - Buyer will submit errors as soon as possible after discovery to Seller so that they can be entered into the electronic/on-line Action Request (“AR”) system included in the Software. The AR system is used to qualify, identify, manage and track the actions requested. Should Seller find that errors are in the Software or Software functionality controlled by Buyer, then Buyer shall pay Seller for the software engineering effort to identify the error at Seller’s then current time and materials rates. Buyer has the option to contract with Seller to correct the error.
    New Software, Minor and Maintenance Releases - The new Software, minor and maintenance release provisions detailed below apply only where Buyer has paid for Software Maintenance Support in advance as required by this Article 16 or Seller’s then current Software Maintenance Support pricing and policies. All new Software, minor and maintenance releases once delivered to Buyer shall be deemed part of the Software and shall be subject to all the Terms and Conditions hereof.
    Category Description Seller Policy for Software Maintenance Support
    Seller Distributed Third Party Software Upgrades An Upgrade is when one of the required base software technologies used in the Software is enhanced or otherwise revised. If an Upgrade is required, Buyer has the option to purchase the Upgrade from Seller or directly from the vendor.
    Seller Owned Software Maintenance and New Releases, Minor A Maintenance or Minor release is when functionality patches or bug fixes are released. No Charge.
    Seller Owned Software New Releases, Major A Major release occurs when significant new features are added to the Software. Examples are new functionality, new object classes, support for new operating systems, etc. Seller may charge for Major new releases.
  17. Patents
    Seller will indemnify, and may choose to defend, at Seller’s own expense, any action brought against Buyer to the extent that it is based on a claim that the Product or any part thereof, when used for the purposes for which it is sold, infringes in design or construction any presently existing United States Patent, foreign patent, or intellectual property rights of another and Seller will pay those costs and damages finally awarded against Buyer which are attributable only to such claim on condition that:
    • Seller shall be notified promptly in writing of any such action and related claim;
    • Seller shall have the right of sole control of the defense of any action, including the right to select legal counsel and the right in Seller’s sole discretion to negotiate and execute and finalize a settlement thereof;
    • Buyer provides Seller with copies of each communication, notice or other action relating to the alleged infringement and cooperates with Seller to the extent reasonably requested in defense of the action; and
    • should the Product, or any part thereof, become, or in Seller’s opinion be likely to become, the subject of a claim of infringement of a United States Patent, or foreign patent, then Buyer shall permit Seller, at Seller’s sole option and expense to:
    ο procure for Buyer the right to continue using the Product;
    ο replace or modify the Product so that it becomes non infringing; or
    ο grant Buyer a credit for the Product as depreciated and accept its return.
    The depreciation shall be in equal amounts per year over the life of the Product, which is hereby established as four (4) years from date of original shipment. Buyer shall give Seller all necessary authority and assistance to enable Seller to comply with its obligations herein. Seller shall have no liability or obligation to Buyer under any provision of this article with respect to:
    • any claim of patent infringement which is based upon the unauthorized use of the Product or use of the Product as modified by Buyer;
    • use of the Product in combination with other Product, the combination of which causes a claim of infringement, when the combined use was not previously approved by Seller in writing;
    • Product or programming customized to specifications required by Buyer; or
    • Buyer’s willful infringement of any duly issued patent.
    THE FOREGOING STATES THE EXCLUSIVE REMEDIES OF THE BUYER AND SELLER’S SOLE OBLIGATION AND ENTIRE LIABILITY WITH RESPECT TO THE INFRINGEMENT OF PATENTS. Seller’s aggregate liability hereunder shall in no case exceed the Contract Price for the allegedly infringing item and shall, with respect to each cause of action terminate one (1) year after it arises.
  18. Confidential Information
    All information and materials, specifically including computer software and related Documentation, and the intellectual property contained therein (“Confidential Information”), which are submitted to Buyer are proprietary to Seller and shall be held by Buyer in confidence and used only for the purposes specified herein. Buyer agrees to use the same standard of care to protect the Seller’s Confidential Information from disclosure as Buyer uses to protect its own confidential information, but in any event not less than a reasonable degree of care. Without the prior written consent of Seller, Buyer shall not disclose Confidential Information to third parties nor reuse Confidential Information in connection or association with hardware other than that either provided by Seller or to be serviced hereunder. Buyer shall indemnify and hold Seller harmless for any cost, loss, damage or expense (including reasonable attorney’s fees) arising from Buyer’s use of Confidential Information or hardware provided by Seller for any purpose or in any manner other than that for which it is submitted, including use thereof in connection with items supplied by others.
    Confidentiality obligations set forth in this Article 18 shall commence as of the earlier of the date of the Quotation or the date of disclosure of the Confidential Information, shall remain in effect throughout the term of these Terms and Conditions and any renewal of extension hereof, and shall survive any termination, cancellation or expiration thereof for a period of seven (7) years.
    Because of the confidential nature of the information, it is agreed that, in addition to any other remedies available, Seller will be entitled to injunctive relief, without any requirement to post bond, to enforce these Terms and Conditions as a violation of these Terms and Conditions would subject Seller to irreparable injury.
  19. Excusable Delays (Force Majeure)
    Seller will endeavor to meet a requested delivery schedule but in no case shall Seller incur any liability, consequential or otherwise, as the result of ceasing to manufacture any merchandise or because of any delay or failure to deliver for any cause, whether or not foreseeable, beyond its reasonable control or that of subcontractors or suppliers, if any, including, without limiting the generality of the foregoing, acts of God or of the public enemy, civil disturbance, war, sabotage, terrorism or threat thereof (whether actual or perceived, or general or specific), embargo, strikes or labor disputes, explosion, accident, fires, windstorm, flood, drought, earthquake, transportation conditions, inability to secure adequate material or labor, emergency requirements of other buyers, activities of the Armed Forces, governmental or agency acts or omissions of any kind, change of law, or any causes similar or dissimilar to the foregoing. In the event of any such delay, the date of performance shall be extended for a period equal to the time lost by reason of such delay, plus a reasonable time to resume performance.
  20. Indemnity
    Buyer agrees to indemnify and save Seller harmless from all loss, cost or damage incurred by Seller including, but not limited to, attorneys' fees, litigation and other costs as a result of a) the use of the Product; b) the willful misconduct or negligence of Buyer or of its subcontractors or suppliers; c) the misapplication of Seller supplied products or Services; or d) any breach of Buyer’s obligations hereunder.
  21. Certificate of Insurance
    At Buyer’s request, certificate of insurance evidencing insurance coverage will be provided.
  22. Limitations of Liability
    Modifications or adjustments to Buyer’s process or equipment which are made by Buyer upon the good faith recommendations of Seller shall be made at Buyer’s risk. In no event shall Seller be liable for conditions of Buyer’s site.
    Seller’s aggregate liability for all claims for any loss or damage arising out of or related to these Terms and Conditions, or to operation by Buyer of the Software, shall in no case exceed the Contract Price, and shall, with respect to each cause of action, terminate one (1) year after it arises. Except for the exclusive remedies contained in Articles 14 and 17, Seller shall have no liability for defects in the design, workmanship, or materials of the Software furnished pursuant to these Terms and Conditions.
    Buyer shall institute suit or claim with respect to any cause of action within one (1) year after it arises, or shall be barred from doing so.
    In no event shall Seller be liable for any indirect, special, incidental, consequential or punitive damages of any nature or kind including but not limited to delays or loss of use, data, profits, production or goodwill, even if Seller has been advised of the possibility of such damages.
    The limitations set forth in this Article 22 shall apply and be effective with respect to any claim, cause of action, or legal theory whatsoever including, but not limited to, contract or warranty (including performance guaranties) or breach thereof, indemnity, strict liability, tort (including negligence), pollution, environmental damage, toxic tort, or occupational disease.
  23. Independent Contractor
    In the performance of Services, Seller is an independent contractor and neither Seller nor its employees shall be in any sense employees or agents of Buyer.
  24. U. S. Export Controls
    If applicable, Seller shall file for a U.S. export license, but only after appropriate documentation for the license application has been provided by Buyer. Buyer shall furnish such documentation within a reasonable time after order acceptance. Any delay in obtaining such license shall suspend performance of these Terms and Conditions by Seller. If an export license is not granted or, if once granted, is thereafter revoked or modified by the appropriate authorities, these Terms and Conditions may be canceled by Seller without liability for damages of any kind resulting from such cancellation. Buyer represents and warrants that the Product provided hereunder and the “direct product” thereof are intended for civil use only and will not be used, directly or indirectly, for the production of chemical or biological weapons or of precursor chemicals for such weapons, or for any direct or indirect nuclear end use. Buyer agrees not to disclose, use, export or re-export, directly or indirectly, any information provided by Seller or the “direct product” thereof as defined in the Export Regulations of the United States Department of Commerce, except in compliance with such Regulations.
  25. Laws and Regulations
    Seller complies with all applicable federal, state and local laws and regulations. Unless specifically referred to by a federal contract identification number and classified in writing as a “government contract”, these Terms and Conditions shall be considered by the parties as not being subject to regulations applicable to government contracts.
  26. Arbitration
    Except for the right of Seller to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute, controversy or claim arising out of, or relating to these Terms and Conditions, or the breach thereof, which cannot be settled amicably by the parties, shall be settled by arbitration pursuant to the rules of the American Arbitration Association. In the event that the dispute cannot be resolved within thirty (30) days after receipt of written notice from one to the other, either party may refer it to arbitration and the other party shall be compelled to submit to arbitration. In no event shall the Arbitrators be empowered to disregard the intent of the clauses of these Terms and Conditions as construed in accordance with their English language meaning. In every case the Arbitrators will give written reasons for their award. The Arbitration shall take place in the English language and in the city of Newark, and state of New Jersey, U.S.A.
  27. Entire Agreement
    These Terms and Conditions constitute the entire agreement between Seller and Buyer, and there are no agreements, understandings, restrictions, warranties, or representations between Seller and Buyer other than those specifically agreed to and set forth on the Quotation and those set forth herein and herein provided for. BUYER ACKNOWLEDGES THAT BUYER HAS READ AND UNDERSTANDS THESE TERMS AND CONDITIONS AND AGREES TO BE BOUND BY ITS TERMS. BUYER FURTHER AGREES THAT THESE TERMS AND CONDITIONS ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN BUYER AND SELLER REGARDING THE PRODUCT AND/OR PROGRAMS, AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THESE TERMS AND CONDITIONS.
  28. Severability
    If any provision of these Terms and Conditions, including with limitation those set forth in Article 22, shall be determined by a court of competent jurisdiction to be invalid or unenforceable, the provision shall be deemed to be severable from the remainder of these Terms and Conditions and shall not cause the invalidity or unenforceability of the remainder of these Terms and Conditions or of any other remedy or limitation thereof set forth in these Terms and Conditions. Failure to enforce any of the provisions of these Terms and Conditions shall not be a waiver of such provision, or a waiver of subsequent enforcement.
  29. Governing Law
    These Terms and Conditions and the agreements related thereto shall be governed and construed in accordance with the laws of the State of New Jersey in the United States of America and governed by the laws thereof, including the Uniform Commercial Code (“UCC”), without regard for conflicts of law and without regard to any modification of the UCC which might arise from application of intentional treaty or otherwise. The 1980 U.N. Convention on Contracts for the International Sale of Goods shall not be applicable to these Terms and Conditions. No translation of these Terms and Conditions into any language other than English shall be of any effect in the interpretation hereof.

Rev. SW-060617