These General Terms and Conditions apply to any quote, order, order acknowledgment, and invoice, and any sale, license or delivery of products, software, or services by Cambridge Industries USA, Inc., located at 2445 Augustine Dr., Santa Clara, CA 95054 and its affiliates (collectively “CIG”) that does not have a written agreement in place executed by both CIG and Customer relating to the purchase of CIG Products. CIG does not accept, expressly or impliedly, and CIG hereby rejects and deems deleted, any additional or different terms or conditions that any potential or actual Customer presents, including, but not limited to, any terms or conditions contained or referenced in any order, acceptance, acknowledgement, or other document, or established by trade usage or prior course of dealing, unless CIG expressly and unambiguously agrees to such terms and conditions in a duly signed writing. By ordering, accepting delivery, keeping, or using Products or otherwise proceeding with any transaction after receipt of the Contract (as defined below), or after otherwise being notified that such transactions are subject to the Contract, Customer agrees to the terms of the Contract. If tender of these terms is deemed an offer, acceptance is expressly limited to the terms of the Contract.
In these General Terms and Conditions of Sale (“Terms”) the following definitions apply:
“Acknowledgment” means CIG’s standard sales order acknowledgment document.
“Customer” means the person, firm, body or company to whom a quotation is made and/or to whom an Acknowledgment is sent and/or to whom Products are delivered by CIG.
“Contract” means the binding contract between the Customer and CIG for the sale and purchase of the Products that includes by reference these Terms.
“Delivery” means the making available to Buyer the Products specified in an Acknowledgement.
“Delivery Date” means the earlier of the date on which (i) CIG puts a Product into the possession of a carrier for shipment; (ii) Customer takes possession of a Product; or (iii) CIG makes the Product available to Customer.
“Product” means a product that CIG offers to sell, sells, and/or agrees to sell, pursuant to a Contract.
References to Clauses mean clauses of these Terms; Clause headings are for convenience only.
2. FORMATION OF CONTRACT
2.1. Any written quotation of CIG is (except as otherwise stated therein): (a) an offer to sell Products in accordance with these Terms; and (b) valid for thirty (30) days from the date thereof (subject to any written extension or earlier withdrawal by CIG).
2.2. Any published price list of CIG does not represent an offer open for acceptance.
2.3. CIG shall sell the Products to the Customer in accordance with any Customer order: (a) that constitutes an unqualified acceptance of CIGs written quotation; or (b) that CIG, at its sole discretion accepts (either in whole or in part) in writing.
2.4. Any Customer order conforming to Clause 2.3 will be accepted by means of the Acknowledgement. Such acceptance shall form a Contract governed solely by these Terms. Customer’s orders are subject to acceptance at CIG’s sole discretion. No form of acceptance, except CIG’s written Acknowledgment sent to Customer or CIG’s commencement of performance, shall constitute valid acceptance of Customer’s orders, with any such acceptance being expressly conditioned on assent to the Terms hereof and the exclusion of all other terms.
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 the Customer (none of which shall apply), and no alteration of the Terms will bind CIG unless expressly accepted in writing by CIG.
2.6. Contracts shall be non-cancellable in whole or in part. Once CIG has accepted an order, Customer may not cancel, terminate, reschedule, suspend performance of, or issue a hold on, such order, in whole or in part, without the prior written consent of CIG, which consent, if given, shall be upon terms that will compensate CIG for any loss or damage therefrom, including but not limited to any work in process or services performed, the price of Product shipped to, manufactured for, or held separately for Customer, and loss of profits, incurred costs, and a reasonable allocation of general and administrative expenses.
2.7. Any waiver that CIG may make shall be at CIG’s discretion, on a case-by- case basis and subject to Clause 16.10.
3. DELIVERY & PASSING OF RISK
3.1. Unless otherwise mutually agreed in a writing between the parties, Delivery of Products shall be ex-works (EXW) CIG’s applicable shipment facility (Incoterms 2010). Customer bears shipping costs and risk of loss from the EXW point of shipment.
3.2. CIG will use its reasonable endeavors to meet the mutually agreed upon Delivery Date. Performance and shipping dates specified or communicated by CIG to Customer are approximate dates only and, (i) the failure to perform or ship on such dates shall not be considered a breach by CIG, and/or (ii) CIG is permitted to deliver, and Customer will accept, shipments, in whole or in part, in advance of any dates communicated by CIG and/or requested by Customer.
3.3. Delivery may be made in one or more separate consignments.
3.4. Immediately upon receipt, Customer shall visually inspect the shipment and notify CIG in writing of any deficiencies. Customer shall be deemed to have waived its rights to claim incorrect or incomplete delivery or packaging unless CIG receives Customer’s detailed written notice within ten (10) days following Delivery of the Products by CIG. The Customer shall be deemed to have accepted the Products within ten (10) calendar days of Delivery.
3.5. Risk of loss and damage to Products shall pass to the Customer upon Delivery. Title shall pass to Customer as provided in Section 6.3 of these Terms. CIG does not transfer ownership or title to any software, firmware, documentation, or copies thereof; CIG only grants limited, non-exclusive licenses, as provided herein.
3.6. If due Delivery is delayed for reasons attributable to the Customer or its agents, storage and any other reasonable costs will be payable by the Customer on demand by CIG, and notwithstanding Clause 3.5, the Products shall be at the Customer’s risk from the commencement of the delay. CIG reserves the right to invoice the Customer for the Products and to commence the warranty period given in Clause 8.2 with effect from the original due delivery date.
3.7. CIG is not obligated to customize or install any Products, unless CIG expressly agrees otherwise in a signed writing, in which case CIG’s obligations with respect to such services shall be separate and independent of CIG’s obligations with respect to the delivery of Products.
4.1. The price shall be CIG’s quoted price, or, in the event of any conflict, the price in the Acknowledgement. The price shall be in U.S. dollars.
4.2. The price includes packaging in accordance with CIG’s normal practice.
4.3. The price excludes (as applicable) any and all (a) Value-Added or other similar sales or other taxes levied upon Products supplied by CIG, and (b) additional costs and charges incurred by CIG for shipping, insurance and special handling from applicable CIG facility; all of which shall be charged in addition to the price.
4.4. Customer agrees to pay all such amounts due and payable pursuant to Clause 4.3, or supply exemption documentation. Also, if applicable, 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 such similar forms of taxes.
5. PRICE VARIATION
5.1. CIG 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 CIG where the change is due to any act or default of the Customer.
6.1. Payment shall be made in U.S. dollars. Subject to Clause 6.2, Customer shall pay amounts prior to shipment and in the same currency as stated in CIG’s invoice. Customer shall be liable to pay interest on any late payments at the rate of eighteen percent (18%) per annum (one and one half percent (1½%) per month or the maximum permitted by law, whichever is greater. Additionally, if any payment is more than seven (7) days past due, CIG shall be entitled to (i) immediately suspend performance of any or all of its obligations to include Delivery under the applicable Contract or any Contracts until all such payments are made, and (ii) may require payment in advance for any subsequent orders or deliveries and/or further performance.
6.2. CIG reserves the right to require payment by an irrevocable letter of credit confirmed by a high-rated world bank (chosen at CIG’s discretion) to be established in favor of CIG 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 partial shipments and provide for the release of one hundred percent (100%) of the Contract value of the Products comprising each shipment. CIG shall be under no liability to deliver any Products until a letter of credit has been opened in accordance with this Clause 6.2.
6.3. Legal and beneficial title in the Products shall remain in CIG until payment in full has been received by CIG for all sums due to CIG by the Customer under the applicable Contracts between them. Until such time, the Customer shall hold the Products as CIG’s fiduciary agent and bailee and CIG may require return of the Products. For the purpose of recovery of the Products, the Customer grants CIG an irrevocable license to enter on any premises where the Products are situated (or are reasonably thought to be situated) to repossess them and the Customer agrees to pay any costs of repossession. The Customer will store the Products separately and in such a way to enable them to be clearly identified as CIG’s property. Notwithstanding the above, risk in the Products shall pass as in Clause 3.5.
6.4. The Customer shall not be entitled to exercise any right of set-off or counter claim against CIG’s invoices.
7. SPECIFICATION & CHANGES
7.1. The specifications for Products shall be the specification relating to the part number referenced 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. CIG may make alterations to any Product as necessary to ensure compliance with Specifications, changed safety or environmental standards or governmental regulations, to make a Product non-infringing with respect to any patent, copyright or other proprietary interest, or to otherwise improve a Product. CIG will use reasonable endeavors to promptly notify Customer of any such material changes.
8. LIMITED PRODUCT WARRANTY AND DISCLAIMER
8.1. CIG warrants that the Products, but not related services, (i) are free from defects in materials and workmanship and (ii) conform in all material respects to the Specifications. 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 Delivery unless otherwise mutually agreed in writing by the parties.
8.3. If any Product is found by CIG not to function as warranted during the warranty period, CIG will determine at its sole option to either (i) make it do so, or (ii) replace it with equivalent conforming Product.
8.4. If CIG determines, at its sole option, that repair or replacement cannot be made using commercially reasonable efforts, CIG will refund to Customer the price paid for the Product.
8.5. Any replacement Product will conform to the applicable specification and will be equivalent to the original exchanged Product in all material respects. CIG shall own the replaced Product. All returns shall follow the CIG RMA procedures to be applicable for warranty provisions.
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. CIG shall be responsible for loss of, or damage to, Customer returned Product while it is in CIG’s possession during warranty service until re-delivery to Customer or until delivery of replacement or until repayment pursuant to Clause 8.4 (as applicable).
8.8. No warranty is provided, and Customer has no warranty claims, for (i) supply items normally consumed during operation of the Products; (ii) failures caused by non-CIG products; (iii) failures caused by a Product’s inability to operate in conjunction with other Customer hardware or software unless mutually agreed in writing by the parties; (iv) performance failures resulting from services not performed by CIG; (v) any other Product that CIG provides in accordance with Customer’s request, specifications, or instructions, unless CIG agrees in a duly signed writing that the provided Product shall be covered by the limited warranty; (vi) Product not returned in accordance with CIG’s RMA procedure; or (vii) development, pre-production or any form of prototype and non-qualified Product whatsoever. Further, a Customer has no warranty rights with respect to defects or non- conformities caused by: (i) use of the Product with hardware or software that was not expressly specified in writing by CIG as suited for use with the Product; (ii) Customer’s failure to follow CIG’s operating instructions; (iii) failure to implement updates; (iv) changes to the Customer environment in which Product was installed; (v) acts or omissions of persons other than CIG or its authorized representatives; (vi) installation or maintenance of Product by someone other than CIG or persons certified by CIG; (vii) being accidentally damaged, disassembled, modified, misused, repaired or reworked (by any party other than CIG or its authorized agents), improperly stored or handled, used in conjunction with another product that is incompatible or of an inferior quality, or used in applications which exceed the Product’s specifications or ratings, neglected, improperly installed or otherwise abused or is used in hazardous activities; or (viii) Force Majeure conditions as defined herein.
8.9. Warranty will be voided by misuse, improper handling or storage, improper installation or repair, accident, damage or modification, failure to maintain proper physical or storage/operating environment or improper Customer maintenance not approved by CIG in writing.
8.10. The terms of this Clause 8 set out CIG’s entire liability to remedy any defect or default in the Products. Notwithstanding any provision to the contrary (but subject to the operation of any law to the extent it cannot be excluded), CIG’s sole and exclusive obligations to Customer for any Product made by CIG and sold hereunder are solely as described in this Clause 8, with such obligations being limited solely to any Product which has been returned to CIG under the RMA procedure (as defined herein) and which in the reasonable opinion of CIG is determined to be defective in workmanship, material, or not in compliance with the CIG Specification applicable to the Product and has in fact failed under normal use. Customer shall have no warranty claims, unless CIG receives from Customer, before the end of the warranty period and within thirty (30) days of the date on which Customer first came to know, or should have known, about the warranty claim, (a) a written notice describing the warranty breach in reasonable detail, and (b) information in sufficient detail to enable CIG to reproduce and analyze the failure.
8.11. DISCLAIMER. ALL WARRANTIES, REPRESENTATIONS, TERMS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. THE REMEDIES EXPRESSLY PROVIDED IN THIS SECTION 8 WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND SHALL BE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES CUSTOMER MAY HAVE AGAINST CIG WITH RESPECT TO ANY NON-CONFORMANCE OF PRODUCTS. EXCEPT AS SPECIFIED IN CLAUSE 8, CIG MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO ANY PRODUCT. CIG DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, AND REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH IMPLIED WARRANTY MAY BE BASED, INCLUDING, WITHOUT LIMITATION, CONTRACT, COURSE OF DEALING, USAGE, OR TRADE PRACTICE
THE PRODUCTS ARE NOT AUTHORIZED FOR USE BY CUSTOMER OR ANY THIRD PARTY AS CRITICAL COMPONENTS IN LIFE SUPPORT PRODUCTS OR SYSTEMS OR FOR USE IN AVIATION, NUCLEAR OR ANY OTHER INHERENTLY DANGEROUS APPLICATIONS WITHOUT THE EXPRESS WRITTEN APPROVAL OF CIG. LIFE SUPPORT PRODUCTS OR SYSTEMS ARE THOSE WHICH 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, CAUSE FAILURE OF A LIFE SUPPORT DEVICE OR SYSTEM, OR AFFECT ITS SAFETY OR EFFECTIVENESS.
9. WARRANTY CLAIM PROCEDURE
9.1. CIG will provide warranty services to Customer consistent with CIG’s current standard practices and response times. Where applicable, before CIG provides warranty services, Customer agrees to follow the problem determination, problem analysis, and warranty services request procedures that CIG provides.
9.2. When returning Product to CIG for warranty service, Customer agrees to ship it prepaid and suitably packaged to a location CIG designates.
9.3. If not found by CIG to be in breach of warranty, the Products will be returned to the Customer at Customer’s expense and CIG may charge an evaluation and test for the Products so affected. If the Products are found to be in breach of warranty, any replacements or repaired Products will be returned to the Customer at CIG’s expense.
9.4. Post warranty services may be available at CIG’s then-current prices.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. “Intellectual Property” means any computer program or routine (in object code, source code, or embedded format, regardless of the medium on which it resides), algorithms, know-how, firmware, hardware and/ or software configurations, inventions, documentation, translations, text and other works of authorship, data, databases, information, mask works, designs, utility models, symbols, logos, marks, names, procedures, processes, methods, improvements and any other intangibles as well as the prototypes, samples, copies, and other materialized forms of the foregoing intangibles.
10.2. All intellectual property and other proprietary rights relating to Products (including, but not limited to, patents, copyright and trademarks) and all technical, business and similar information of CIG or which is created by CIG in course of the Contract shall be, and shall remain, CIGs property.
10.3. Customer agrees not to remove, alter, obscure or deface any trademarks, patent numbers, labels, serial numbers, product identification, copyright, names, notices or numbers or other notices affixed to any Products, related documentation or packaging, without the express prior written consent of CIG.
10.4. Customer agrees not to, and shall not, and will not encourage, assist, allow or authorize any other person, to reverse engineer, translate, create derivative works of, separate, decompile, and/or disassemble the Product or any software contained therein, or otherwise attempt to derive software source code or other technology related to the Product or portions thereof.
10.5. Except as expressly agreed otherwise in writing, CIG and its licensors reserve all rights, title and interests, including proprietary rights, to (i) any software, firmware and/or documentation, and (ii) all intellectual property in and/or related to the Products. CIG software, firmware and documentation are licensed, not sold. The use of a copyright notice on any Product shall not be taken to indicate that it has been published. All right, title and interest in and to any Intellectual Property and/or proprietary rights, whether or not subject to statutory protection, which are made, created, developed, written, conceived or first reduced to practice by CIG solely, jointly or on its behalf, in the course of, arising out of, or as a result of services performed, and any related tooling, set- up, fitting-up and preparation charges whether or not invoiced, shall belong to and be the sole and exclusive property of CIG.
10.6. To the extent that Customer is expressly permitted by applicable mandatory law to take any actions that are prohibited under these General Terms or any other terms of the Contract, included, but not limited to, reverse engineering, Customer agrees to refrain from exercising such rights unless and until Customer has given CIG sixty (60) days’ prior written notice of Customer’s intent to exercise any such rights and CIG has not offered reasonable alternatives to Customer’s exercise of the mandatory rights within such sixty (60) day period.
10.7. Customer acknowledges the goodwill associated with CIG’s trademarks. Customer shall display CIG’s and its licensors’ names and logos as well as the name of any Products on each copy of software or documentation made by Customer (provided that Customer shall not make any copies except as permitted by CIG in a duly signed writing).
10.8. Firmware License. Subject to the terms and conditions of the Contract, CIG grants Customer a non-exclusive, limited and restricted license to use firmware as part of the Product on, with, or for, which it is delivered or made available; CIG does not permit Customer to make any copies or derivative works of firmware and Customer may not transfer firmware, except as part of the same Product on, with, or for, which it is delivered or made available. Firmware may include license terms provided by CIG and/or its third-party licensors which will apply to the use of the firmware and take precedence over these license terms.
10.9. Documentation License. CIG grants Customer a non-sublicensable, non- exclusive, non-transferable, limited license to use the documentation that CIG provides for Customer’s internal business purposes solely in support of Customer’s use of the Products. Customer is not authorized to copy or modify documentation, except as expressly permitted by CIG in a duly signed writing.
11. INTELLECTUAL PROPERTY CLAIMS
11.1. Claims. If a third party claims that Products provided to Customer under the Contract infringe that party’s U.S. patent or copyright, CIG will defend Customer against that claim at CIG’s expense and pay all costs and damages that a court finally awards or are agreed in settlement, provided that Customer (a) promptly notifies CIG in writing of the claim and (b) allows CIG to control, and cooperates with CIG in, the defense and any related settlement negotiations.
11.2. Remedies. In the event of an infringement claim herein, CIG will pay (i) infringement claim defense costs, and (ii) settlement amounts and final court- awarded damages, provided in all cases that such costs, amounts, and/or damages do not exceed the limitations provided herein. If such a claim appears likely, CIG may, at its option, modify the Products, procure any necessary license, or replace it. If CIG determines that none of these alternatives is reasonably available, CIG will, subject to Customer’s return of the Products upon request by CIG, provide a prorated refund of the fees that Customer paid for such Products.
11.3. If such a claim is made or appears likely to be made, CIG agrees to secure the right for Customer to continue to use the Product, or to modify it, or to replace it with one that is equivalent. If CIG determines that none of these alternatives is reasonably available, Customer agrees to return the Product to CIG on CIG’s written request. CIG will then give Customer a credit equal to the depreciated value for the Product.
11.4. Any such claims against the Customer or liability for infringement arising from use of the Product following a request for return by CIG are the sole responsibility of Customer.
11.5. Exclusions. CIG has no obligation for any claim of infringement arising from: (i) CIG’s compliance with, or use of, Customer’s designs, specifications, instructions or technical information; (ii) Product modifications by Customer or a third party; (iii) Products not used as expressly provided within the documentation, CIG’s specifications or related application notes; (iv) use, combination, and/or operation of the Products with products not supplied by CIG; (v)anything Customer provides which is incorporated into the Product; (vi) functionality provided by CIG at the instruction of Customer; or (vii) Customer’s failure to install any update or upgrade provided by CIG at no cost.
11.6. This Clause states CIG’s entire liability, and Customer’s sole remedy, for infringement claims. This indemnity is given to Customer solely for its benefit. CIG disclaims all warranties, conditions and other terms of non-infringement or title with respect to any Products.
12. LIMITATION OF LIABILITY
12.1. IN NO EVENT WILL CIG OR ITS SUPPLIERS BE LIABLE FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, 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 CIG AND ITS SUPPLIERS TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THE CONTRACT PRINCIPALLY RESPONSIBLE FOR SUCH DAMAGES EXCEED THE LESSER OF (A) THE AMOUNTS ACTUALLY RECEIVED BY CIG FROM CUSTOMER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEEDING THE MOST RECENT CLAIM BROUGHT BY CUSTOMER AGAINST CIG UNDER OR RELATED TO THE CONTRACT, OR (B) ONE HUNDRED THOUSAND DOLLARS (USD $100,000). THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OR ANY OTHER FAILURE OR INADEQUACY OF ANY LIMITED REMEDY STATED IN THE CONTRACT. THE CONTRACT STATES THE ONLY AND EXCLUSIVE REMEDIES FOR ANY AND ALL CLAIMS MADE AGAINST CIG OR ITS SUPPLIERS WITH RESPECT TO CIG PRODUCTS AND/OR THE CONTRACT. THE PARTIES AGREE THAT THIS CLAUSE 11 REPRESENTS A REASONABLE ALLOCATION OF RISK. THE LIMITATIONS OF LIABILITY IN THIS CLAUSE SHALL APPLY TO ANY DAMAGES OR LIABILITIES (INCLUDING, WITHOUT LIMITATION, ANY LIABILITIES OR PAYMENTS UNDER INTELLECTUAL PROPERTY CLAIMS), HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF CIG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE UNDER THESE GENERAL TERMS, OR ANY OFFERING’S SPECIFIC TERMS, FAIL OF THEIR ESSENTIAL PURPOSE.
12.2. This 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 CIG or in the case of fraudulent misrepresentation by CIG.
12.3. In no event shall CIG or its agents or suppliers be liable for any of the following: (a) damages based on any third party claim except as expressly provided herein; or (b) loss of, or damage to, Customers records, files or data, even if CIG is informed of their possibility.
CIG may terminate the Contract forthwith if the Customer breaches any of the Terms or becomes insolvent or enters any arrangement with creditors or goes or is put into liquidation or suffers the appointment of a receiver. Upon termination CIG shall have no more obligations to the Customer under the Contract. Termination shall not prejudice CIG’s right to payment for Products delivered prior to termination but not paid for by the Customer.
14.1. “Confidential Information” means any information disclosed by one party (and with respect to CIG, 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) calendar days after initial disclosure; or (c) would otherwise 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 and conditions of the Contract. Notwithstanding the above, the Receiving Party shall not have any obligations under this Clause 14 with regard to any Confidential Information of the Disclosing Party that: (i) was generally known and available in the public domain at the time it was disclosed or becomes generally known and available in the public domain through no act or omission of the Receiving Party; (ii) can be documented as previously known by the Receiving Party without confidentiality obligations prior to disclosure thereof by the Disclosing Party to the Receiving Party; (iii) is disclosed without confidentiality obligations with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Disclosing Party’s Confidential Information; or (v) becomes known to the Receiving Party without confidentiality obligations from a third party who was permitted to disclose such information.
14.2. The Receiving Party shall not use any Confidential Information of 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 Disclosing Party to third parties, employees, or independent contractors, except that, subject to the provisions below, the Receiving Party may disclose the Disclosing Party’s Confidential Information to those employees and independent contractors of the Receiving Party who are required to have the information in order to perform the Receiving Party’s obligations and 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 reasonable care. The Receiving Party shall ensure that its employees and independent contractors who have access to Confidential Information of the Disclosing Party have signed an agreement in content at least as protective of Confidential Information as the provisions of the Contract, prior to any disclosure of the Disclosing Party’s Confidential Information to such employees and independent contractors. If the Receiving Party is required by applicable law or regulation to make any disclosure that is prohibited or otherwise constrained by the Contract, the Receiving Party will provide the Disclosing Party with prompt written notice of such requirement prior to such disclosure so that the Disclosing Party may seek a protective order or other appropriate relief. Subject to the foregoing sentence, the Receiving Party may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or is otherwise legally required to be disclosed; provided, however, that the Receiving Party provides such assistance as the Disclosing Party may reasonably request in obtaining such order or other relief at the Disclosing Party’s option and expense. Notwithstanding the other provisions of the Contract, each party may disclose the terms of the Contract: (a) in connection with the requirements of an initial public offering or other filing in connection with applicable securities law so long as the Disclosing Party redacts information to the maximum extent allowed by law; (b) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like, (c) in confidence, to accountants, banks, attorneys and financing sources and their advisors; and/or (d) in confidence, in connection with the enforcement of the Contract or rights under the Contract.
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.
15. ITEMS SUPPLIED BY CUSTOMER
15.1. 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 CIG.
15.2. Customer shall indemnify CIG 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.
16. GENERAL PROVISIONS
16.1. Customer agrees not to assign, or otherwise transfer the Contract or Customers rights under it, or delegate Customers obligations, without CIG’s prior written consent, and any attempt to do so is void. Any warranties extended by CIG are nontransferable and for Customer’s benefit only. CIG may assign its rights and delegate its obligations.
16.2. No provisions in any orders, or in any other documentation employed by or on behalf of either party, regardless of the date of such documentation, will affect the terms of the Contract, even if such document is accepted by the receiving party, with such provisions being deemed deleted. Representations made by sales or technical personnel of CIG shall have no legal effect, unless confirmed by a senior executive of CIG in writing. Furthermore, notices to CIG are invalid, unless and until received at the address specified in the preamble of these Terms with a copy to the Legal Department.
16.3. 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 CIG to Customer without receiving prior written consent from CIG.
16.4. CIG 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 CIG pursuant to the Contract except in accordance with applicable laws and regulations.
16.5. Force Majeure. Neither party shall have any liability under the Contract for non-performance or late performance for any matter beyond its reasonable control including but not limited to act of God, fire, floods, war, terrorism and civil disturbances or riot, acts of Government, world pandemic, currency restrictions, labor disputes, strikes, difficulty in obtaining materials, failure of carrier or sub- contractor or inability to obtain any necessary import or export license or other consent or permit required of any relevant authority. If by reason of any such force majeure event, CIG’s supplies of Products are limited, CIG shall have the right to prorate the available supply in such a manner as it, in its sole discretion, determines appropriate.
16.6. Except for non-payment, neither Customer nor CIG will bring a legal action under the Contract more than two (2) years after the cause of action arose.
16.7. In the event that any provision of the Contract including these Terms or portions thereof are held to be invalid or unenforceable, the remainder will remain in full force and effect.
16.8. Upon reasonable notice, CIG or its agent(s) may inspect Customer’s facilities (including computers) and records to verify Customer’s compliance with these Terms. Customer will keep records regarding its use in sufficient detail to permit this verification. Customer shall fully cooperate with such audit and grant all required assistance and dial-in and/or on-site access to all networks, records, materials and equipment. If, after an audit, it is determined that Customer had underpaid any amounts due, CIG will invoice Customer for and Customer will pay the amount of the underpayment plus interest from the date payment was due. If the underpayment is more than five (5%) percent of the amount properly due, Customer will also reimburse CIG for its audit expenses. CIG’s rights and remedies under this Clause shall be in addition to and not in lieu of any other rights or remedies that are available to CIG at law or in equity.
16.9. The Contract including these Terms forms the complete and exclusive agreement between Customer and CIG concerning the subject matter and, except for any existing non-disclosure agreements, replaces any prior oral or written proposals, correspondence or communications regarding the subject matter hereof.
16.10. 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.
16.11. Any changes to these Terms and/or to the Contract must be made by mutual agreement in writing.
16.12. 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.
16.13. 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 this Contract.
16.14. All disputes arising out of or relating to this Contract will be resolved by binding arbitration to take place in County of Santa Clara, State of California, United States of America, under the Rules of the American Arbitration Association (the “AAA”). The arbitration administration and appointing authority will be the AAA, and the arbitrator shall apply the laws the State of California, United States of America, to decide the dispute. The arbitration will be conducted by one arbitrator appointed by the AAA in accordance with the rules of the AAA and the legal principals related to the claim. Each party shall pay an equal share of the fees and expenses of the arbitrator and the ACC administrative expenses, as well as the fees and expenses of any experts appointed by arbitrator. The proceedings will be confidential and conducted in English. The arbitral tribunal will have the authority to grant any equitable and legal remedies that would be available in any judicial proceeding applying the laws of the State of California, United States of America. The arbitration award will be final and binding on the parties, and not subject to further review. The award may be entered by any court of competent jurisdiction, and each of the parties irrevocably submits to the jurisdiction of such court for confirmation and/or recognition and/or enforcement of any award rendered by the arbitral tribunal in accordance with, inter alia, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Notwithstanding the foregoing, each party will have the right at any time to immediately seek injunctive relief, an award of specific performance or any other equitable relief against the other party in any court or other tribunal of competent jurisdiction. During the pendency of any arbitration or other proceeding relating to a dispute between the parties, the parties will continue to exercise their remaining respective rights and fulfill their remaining respective obligations under this Contract, except with regard to the matters under dispute. Customer hereby consents to being served outside the State of California, United States of America with any documents relating to any dispute, or proceedings in any court, permitted under this Contract.
16.15. The parties to this Contract are independent contractors. No relationship of principal to agent, master or servant, employer to employee or franchiser to franchisee is established hereby between the parties. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever. CIG neither assumes nor authorizes any third party, person or entity to assume or accept any liability or obligation, or to make any commitment for CIG, with regard to the Products.