Ownership. The Optichron Website and Website Materials are the property of Optichron, Inc. ("Optichron") and its licensors.
Use and Limitations. Subject to these Terms, you may access the Optichron Website and view, copy, print and distribute Website Materials or any portion thereof solely for informational purposes. You may not (i) make derivative works of the Website Materials, (ii) copy, distribute or use Website Materials or any derivative thereof, for any commercial purpose, or (iii) incorporate the Website Materials in any other document or materials, including without limitation any other web page. All rights, title and interest in and to the Website Materials, including without limitation all intellectual property rights, remain with Optichron and its licensors, and no ownership interest is granted or transferred by making the Website Materials available on the Optichron Website or granting the foregoing licenses. All reproductions of the Website Materials or portions thereof must contain the following copyright notice: "© 2006-07 Optichron, Inc., 4221 Technology Drive, Fremont, CA 94553. All Rights Reserved." Further, nothing in the Optichron Website shall be construed as conferring by implication, estoppel or otherwise, any license or right under any patent, trademark or other intellectual property right of Optichron or any third party.
Separate or Additional Terms. Notwithstanding anything in the foregoing paragraph, certain Website Materials (such as downloadable software and documentation) may be subject to separate or additional terms or conditions of use as stated either on the Optichron Website or in such Website Materials. You agree to comply with such terms and conditions respecting your use of those Website Materials.
Feedback. Optichron will treat questions, comments, data and materials or the like sent to Optichron, other than personally identifiable information ("Feedback") as non-confidential and non-proprietary information. Optichron shall have no obligation of any kind to you or a third party respecting Feedback. You agree that Optichron is free to reproduce, use, disclose, exhibit, display, transform, create derivative works of and distribute such Feedback to others without limitation and without payment to you or a third party. You further agree that Optichron is free to use and exploit in any manner any idea, concept, know-how or technique contained in Feedback for any purpose without your consent or the consent of any third party.
Mailings. By submitting your name, company name, e-mail address, classification or any other personally identifiable information through the Optichron Website, you hereby grant to Optichron a royalty-free license, transferable on merger or acquisition, if any, of Optichron, to use and disclose such information in accordance with Optichron's Privacy Policy. Please review Optichron's [Privacy Policy] before using the Optichron Website or Website Materials. You also grant to Optichron a royalty-free license, transferable on merger or acquisition, if any, of Optichron, to use and disclose such information in connection with periodic mailings to you about Optichron's products, services and news ("Mailings"). These Terms shall apply to all such Mailings.
Errors, Revisions and Access. OPTICHRON DOES NOT WARRANT THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE INFORMATION ON THE OPTICHRON WEBSITE OR IN WEBSITE MATERIALS. OPTICHRON RESERVES THE RIGHT TO REVISE OR WITHDRAW ACCESS TO THE OPTICHRON WEBSITE OR WEBSITE MATERIALS AT ANY TIME WITHOUT PRIOR NOTICE. NOTWITHSTANDING THE FOREGOING, OPTICHRON SHALL HAVE NO OBLIGATION TO UPDATE THE OPTICHRON WEBSITE OR WEBSITE MATERIALS. IN NO EVENT SHALL OPTICHRON OR ANY THIRD PARTY BE LIABLE TO YOU IN ANY MANNER WHATSOEVER FOR YOUR USE OF THE WEBSITE AND WEBSITE MATERIALS, EVEN IF SUCH THIRD PARTY WAS INVOLVED IN CREATING, PRODUCING OR DELIVERING THE OPTICHRON WEBSITE OR WEBSITE MATERIALS, AND EVEN IF YOU MADE A DECISION, ACTED OR FAILED TO ACT IN RELIANCE THEREON.
Disclaimer. YOU UNDERSTAND AND AGREE THAT, UNLESS OTHERWISE AGREED IN A WRITING SIGNED BY AN OFFICER OF OPTICHRON, THE OPTICHRON WEBSITE AND WEBSITE MATERIALS ARE PROVIDED "AS IS". TO THE FULLEST EXTENT PERMISSIBLE UNDER ALL APPLICABLE LAWS, OPTICHRON MAKES NO EXPRESS WARRANTY OF ANY KIND, AND DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY ALL APPLICABLE LAWS ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. OPTICHRON ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS ON THE OPTICHRON WEBSITE OR IN WEBSITE MATERIALS (INCLUDING WITHOUT LIMITATION MATERIALS CREATED OR PUBLISHED BY THIRD PARTIES) OR OTHER DOCUMENTS REFERENCED BY OR LINKED TO THE OPTICHRON WEBSITE. YOU UNDERSTAND AND AGREE THAT OPTICHRON CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT ANY INFORMATION AVAILABLE FOR DOWNLOADING THROUGH THE OPTICHRON WEBSITE OR THE WEBSITE MATERIALS WILL BE FREE OF INFECTION OR VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE OR DEFECTS THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. IT IS YOUR RESPONSIBILITY TO MAINTAIN SAFEGUARDS TO PROTECT YOUR COMPUTER FROM SUCH ITEMS.
Limitation of Liability/Exclusion of Damages. IN NO EVENT WILL OPTICHRON BE LIABLE FOR ANY DAMAGES OF ANY KIND MADE AGAINST YOU BY ANY THIRD PARTY, NOR IN ANY CLAIM BY YOU FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES OF ANY KIND, NOR FOR PUNITIVE OR OTHER EXEMPLARY DAMAGES OF ANY KIND ARISING OR RESULTING FROM YOUR USE OF OR INABILITY TO USE THE OPTICHRON WEBSITE OR WEBSITE MATERIALS OR ANY OTHER WEBSITE LINKED TO THE OPTICHRON WEBSITE OR WEBSITE MATERIALS, EVEN IF ANY SUCH DAMAGES ARE FORESEEABLE BY OR IN THE CONTEMPLATION OF OPTICHRON OR ANY PARTY. THE FOREGOING EXCLUSIONSINCLUDE WITHOUT LIMITATION CLAIMED DAMAGES IN THE NATURE OF LOST USE, PROGRAMS, DATA, SALES, PROFITS, BUSINESS, REVENUE, GOODWILL, ANTICIPATED SAVINGS OR PROSPECTIVE ECONOMIC ADVANTAGE, OR BASED ON INTERRUPTION OF USE OR BUSINESS OR CORRUPTION OF PROGRAMS OR OTHER DATA, WHETHER OR NOT OPTICHRON IS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BY USING THE OPTICHRON WEBSITE OR WEBSITE MATERIALS, YOU ASSUME THE RISK OF DAMAGES ARISING FROM ANY FAILURE OF THE OPTICHRON WEBSITE OR WEBSITE MATERIALS TO PERFORM AS YOU MAY HAVE EXPECTED. YOU FURTHER ACKNOWLEDGE AND AGREE THAT AS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND OPTICHRON FOR YOUR USE OF THE OPTICHRON WEBSITE OR WEBSITE MATERIALS, UNLESS OTHERWISE AGREED IN A WRITING SIGNED BY AN OFFICER OF OPTICHRON OR SUPERSEDED BY TERMS ON OTHER PAGES OF THE OPTICHRON WEBSITE (INCLUDING WITHOUT LIMITATION THE TERMS OF USE FOR PRODUCT(S) AND SERVICES), OPTICHRON'S TOTAL CUMULATIVE LIABILITY FOR DIRECT DAMAGES IS LIMITED TO ONE HUNDRED U.S. DOLLARS ($100)..
Amendment. Optichron may at any time revise these Terms by updating this posting. By using the Optichron Website, you agree to be bound by any such revisions and therefore you should periodically visit this page of the Optichron Website to examine the then-current Terms by which you are bound. Certain provisions of these Terms may be superseded or supplemented by expressly designated legal notices or terms on other pages of the Optichron Website.
General. If any provision of these Terms is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. These Terms shall for all purposes be governed by and interpreted in accordance with the laws of the State of California without giving effect to any choice of law or conflicts of laws principles that might require the application of the law of a different forum. Any suit or proceeding arising out of or relating to these Terms shall be commenced exclusively in a state court in Santa Clara County, California, or the federal court in the Northern District of California, and you irrevocably submit to the exclusive jurisdiction and venue of such courts. Nothing herein limits Optichron's right to proceed directly to any court of competent jurisdiction to obtain injunctive or other equitable relief, or to enforce its intellectual property rights. TheseTerms constitute the sole and entire agreement between Optichron and you regarding use of the Optichron Website and/or Website Materials, and supersede all prior or contemporaneous communications, promises, offers, quotations, terms, understandings and/or agreements, whether written or oral regarding your use of the Optichron Website and/or Website Materials. You also may be subject to additional or different terms and conditions regarding your use of Website Materials or Optichron products or services.
If you have any questions about the foregoing, please contact Optichron at the following e-mail address: webmaster@optichron.com.
OPTICHRON®, TURBOLINEAR™, and Hexagon Design™ are all trademarks of Optichron, Inc. Any product name of another company mentioned is the property or trademark of its respective owner.
© 2006-07 Optichron, Inc., 4221 Technology Drive, Fremont, CA 94553. All Rights Reserved
STANDARD TERMS AND CONDITIONS OF SALE (“STANDARD TERMS”)
1. GENERAL. These Standard Terms and Conditions of Sale (“Standard Terms’) apply to all quotations and offers made, and purchase orders received, by Optichron, Inc., a Delaware corporation (“Optichron”) for Optichron products (“Product(s)”) and/or services to be provided to the entity ordering such Product(s) and/or Services (“Buyer”). (Notwithstanding the use of “Buyer”, these Standard Terms apply to all deliveries to such entity regardless of whether fees are quoted, due and owing by such entity. For clarity, these Standard Terms apply to evaluation, demonstration and development Product(s), whether fees are charged by Optichron or not.) Optichron’s fulfillment of an order for Product(s) and/or Services in response to a Buyer purchase order, other Buyer procurement or ordering document or other Buyer communication, is strictly conditioned on Buyer’s acceptance of these Standard Terms. Unless otherwise set forth in a writing agreed to and signed by an officer of Optichron, these Standard Terms alone govern the purchase, sale, delivery and use of Product(s) and services provided by Optichron or a related entity. These Standard Terms apply to the exclusion of any supplemental, conflicting or like terms and conditions contained on or in any Buyer purchase order, other procurement or ordering document, or other Buyer communication, and as to any such terms, notice of objection is hereby made. Optichron’s failure to object to a provision in any Buyer purchase order, other Buyer procurement or ordering document, or other communication from Buyer shall not be deemed a waiver of any of these Standard Terms. No change to the terms herein, or in any document or agreement referred to herein, is binding unless agreed to in a writing signed by a corporate officer of Optichron. No order is binding on Optichron unless and until accepted in writing on Optichron’s behalf by an authorized official of Optichron at its corporate office in Fremont, California, U.S.A. Optichron may accept or reject any order at its sole discretion.
2. PRICING. Prices quoted are subject to modification or withdrawal without notice, unless otherwise stated in a written quotation provided by Optichron. All invoices and charges for Products and services will be at the price indicated in Optichron’s written order acknowledgement.
Optichron’s price in effect at the time Optichron receives Buyer's purchase order shall continue to apply if the quantity ordered is released by Optichron within twelve (12) months and shipments are scheduled within eighteen (18) months. Otherwise, Optichron’s price in effect on the release date for the quantity shipped shall apply.
If the price of fuels, metals, raw materials, equipment or other production costs increases materially, Optichron shall have the right and Buyer shall have the obligation to renegotiate the price of Products not yet shipped, and if an agreement is not reached, Optichron shall have the right to terminate this contract without liability.
3. TITLE AND DELIVERY. Unless agreed to in a writing signed by a corporate officer of Optichron, all sales are made Ex-Works (EXW) Optichron’s facility in Fremont, California, U.S.A. (Incoterms 2000) or other shipping point designated by Optichron. Title shall pass to Buyer, and Optichron’s exposure to liability shall cease, when Optichron places the Product(s) at the disposal of Buyer (or Buyer’s selected carrier as Buyer’s agent) at Optichron’s facility in Fremont, California, U.S.A., or other shipping point designated by Optichron. All claims for loss or damages must be filed with the carrier. In the absence of timely and specific shipping instructions from Buyer, or the failure of Buyer’s selected carrier to accept Products on the acknowledged shipment date, Optichron may select another carrier and service level similar to that of Buyer’s selected carrier, if any, so as to complete the order as acknowledged by Optichron. In such cases, Buyer will promptly accept all ordered Products as if placed at the disposal of Buyer or its selected carrier at Optichron’s facility. Claims against Optichron for shortages must be made within ten (10) days after arrival of shipment. Optichron assumes no responsibility for delay, breakage or damage after having placed Products in good order at the disposal of Buyer or its carrier at Optichron’s facility. Delivery dates are estimates. Optichron shall not be liable for any damage, losses or expenses incurred by Buyer if Optichron fails to meet the estimated delivery dates.
4. ACCEPTANCE BY BUYER. Buyer shall accept or reject Products within thirty (30) days following receipt of each shipment. In the event Buyer fails to notify Optichron in writing of rejection and the specific grounds therefore within such time period, Buyer shall be conclusively deemed to have accepted the Product(s) without qualification.
5. PAYMENT TERMS. Terms are cash on delivery, except where satisfactory open account credit is established, in which case payment terms are net thirty (30) days from date of invoice. Optichron reserves the right to require payment in advance, C.O.D. or guarantee by letter of credit, and to modify credit terms at its discretion based on the financial condition of Buyer. Optichron will issue invoices on delivery for all Product(s); and if deliveries are made in installments, each shipment shall be invoiced and paid when due without regard to other scheduled deliveries. Overdue payments shall be subject to finance charges computed at a periodic rate equal to the lesser of 1.5% per month (18% per year) or the maximum amount permitted by law. Amounts owed by the Buyer as to which there is no dispute shall be paid without set-off for any amount(s) which the Buyer may claim are owed by Optichron and regardless of any other controversies which may exist.
6. CONFIDENTIAL INFORMATION. All Product(s), and all other materials and information furnished by Optichron or Buyer and identified as containing confidential information (“Confidential Information”), shall be held in confidence by the recipient using at least the degree of care the recipient uses for its own confidential information, but no less than reasonable care. Recipient may not disclose Product(s) or Confidential Information except to employees who require use of it in the performance of their duties. Confidential Information does not include information rightfully placed in the public domain or generally known to the public from a source not under obligation of confidentiality with respect thereto, information known to recipient through a source not under obligation of confidentiality with respect thereto prior to any disclosure hereunder, information developed independently of any disclosure hereunder, or information later communicated without obligation of confidentiality to recipient by another not under obligation of confidentiality with respect thereto.,
7. WARRANTY. 7.1 Subject to this Section 7, Optichron warrants that the Optichron Product(s) will conform either to Optichron’s published specifications for the Product(s) or other specifications mutually agreed and set forth in a writing signed by an officer of Optichron. For finished Products, this warranty lasts for one (1) year after the date Optichron ships the Product(s) to Buyer. For Products sold in wafer or die form, the warranty period is thirty (30) days. Notwithstanding the foregoing, Optichron shall not be liable for defects caused by neglect, misuse or mistreatment, including improper installation or testing, nor for Product(s) altered or modified in any way by an entity other than Optichron. Moreover, Optichron shall not be liable for defects, or for any claim, resulting from Buyer's design, specifications or instructions for the Product(s). Testing and other quality control techniques are used to the extent Optichron deems necessary. Unless mandated by government requirements, Optichron does not necessarily test all parameters of each Product. 7.2 If a Product fails to conform to the warranty set forth above, Optichron’s sole liability shall be at its option to repair or replace the Product(s) or credit Buyer's account for such Product(s). Optichron’s liability under this warranty shall be limited to Product(s) returned during the warranty period to the address designated by Optichron and determined by Optichron not to conform to the warranty. If Optichron elects to repair or replace the Product(s), Optichron shall have a reasonable time within which to repair or provide replacements. Repaired Product(s) shall be warranted for the remainder of the original warranty period. Replaced Product(s) shall be warranted for a new standard warranty period. 7.3 Buyer agrees that prior to using or distributing systems that include Products, Buyer will thoroughly test such systems and the functionality of such Products as used in such systems. Optichron may provide technical, applications or design advice, quality characterization, reliability data or other services when and to the scope Optichron deems appropriate in its sole discretion. Buyer agrees that providing these services shall not expand or otherwise alter Optichron’s warranties, as set forth above, and no additional obligations or liabilities shall arise from Optichron providing such services. 7.4 EXCEPT AS SET FORTH ABOVE, SEMICONDUCTOR PRODUCTS, EXPERIMENTAL AND ENGINEERING SAMPLES, AND PRODUCT(S) PROVIDED FOR EVALUATION, DEMONSTRATION AND/OR DEVELOPMENT ARE PROVIDED "AS IS" AND "WITH ALL FAULTS." Notwithstanding anything to the contrary, LICENSED PROGRAMS AND SOFTWARE DEVELOPMENT PRODUCTS ARE PROVIDED "AS IS" AND "WITH ALL FAULTS."
EXCEPT AS SET FORTH ABOVE, OPTICHRON MAKES NO WARRANTY, AND EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING PRODUCTS, WHETHER IMPLIED BY STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES RELATING TO A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
8. PATENT, MASK WORK RIGHTS AND COPYRIGHT INDEMNIFICATION. Subject to all other provisions of these Standard Terms, including without limitation paragraph 15: (a) Optichron agrees to defend any claim, suit or proceeding asserted against Buyer based on a claim that any Product purchased hereunder, excluding software, directly infringes any patent, mask work right or copyright effective in the United States of America and to pay costs and damages finally awarded therefrom, provided that Optichron is promptly notified in writing of the claim and given, at Optichron's expense, control of the defense or response to such claim. Buyer shall provide Optichron with reasonable assistance in the defense or response to any such claim. If such a claim has occurred or in Optichron’s sole and reasonable judgment is likely to occur Buyer agrees to allow Optichron to (i) obtain for Buyer the right to use and sell the Product, (ii) replace or modify the Product, or (iii) accept the return of the Product and refund the purchase price less reasonable wear and tear. This indemnity does not extend to any suit based on infringement or alleged infringement of any patent, mask work right or copyright (i) for any use by Buyer (or its customers) for which the Product was not designated; (ii) if the product was altered and which alteration has caused the infringement; (iii) by combination of any Product with other elements if such infringement would be avoided by the use of the Product alone; (iv) by any Product not in Optichron’s catalog or any Product made to Buyer's design or specification; or (v) is attributable to the process or method of making such Products. The foregoing states Optichron's entire liability for patent, mask work right, or copyright infringement. (b) Buyer agrees to defend any claim, suit, or proceeding asserted against Optichron based on a claim that any Product sold hereunder, which Product was not in Optichron's catalog or was made to Buyer's design or specification, directly infringes any patent, mask work right or copyright effective in the United States of America and to pay costs and damages finally awarded therefrom. (c) Except for Buyer’s license to use a Product incident to its purchase, the sale of a Product does not convey any license, by implication, estoppel or otherwise, in respect of a Product alone or in combination with any other product(s). Optichron does not warrant that Product(s) (or licensed programs under section 9) do not infringe any patent(s), copyright(s) or other proprietary rights of third parties. In no event shall Optichron be liable for claimed damages, costs, fees or expenses arising from a claim of infringement of any patent(s), copyright(s) or other intellectual property rights in the nature of lost sales, profits, business, revenue, goodwill, anticipated savings, or prospective economic advantage, nor for any special, incidental, consequential or other indirect damages of any kind, nor for punitive or other exemplary damages of any kind.
(d) Buyer, without the express prior written consent of Optichron, has no right to use Optichron’s trademarks, trade names, corporate slogans, corporate logos, or corporate designations in the sale, lease or advertising of any Buyer products, or any product containers, component parts, business forms, sales, advertising or promotional materials, or other business supplies or materials, whether in writing, orally or otherwise.
9. LICENSED PROGRAMS. In the absence of a separate agreement between Buyer and Optichron, the following terms and conditions apply to software code provided in or with any Product(s), whether in source or object form, and whether designated as a software program, firmware or any other description (“Licensed Programs”): (a). Title to Licensed Programs delivered hereunder remains with Optichron or Optichron's licensor and cannot be assigned or transferred without Optichron's written authorization. Buyer agrees not to reverse engineer, disassemble, decompile, or otherwise discern the source code or other files or commands of the Licensed Program(s), and not to modify or create any derivative work of any Licensed Program(s). (b) Unless agreed otherwise in a writing signed by a corporate officer of Optichron, for standalone Licensed Programs, Optichron grants to Buyer a non-exclusive, non-transferable, limited license to use the Licensed Program(s) for its own internal use in a single computer system. Buyer may make up to five (5) copies of the licensed programs for Buyer's internal use so long as Buyer has paid Optichron’s then-current licensing fees and Buyer faithfully reproduces all of Optichron’s copyright notices and other proprietary legends on the copies. Buyer agrees not to disclose, in any form, the Licensed Program(s) or any portion thereof to any person other than employees of Buyer. (c) For Licensed Programs embedded in Products, Optichron grants to Buyer a non-exclusive, non-transferable, limited license to use such embedded Licensed Program(s) in the Product(s), subject to these Standard Terms. (d) If Buyer is in default of any of these Standard Terms, the rights granted herein by Optichron may be terminated on one (1) month's prior written notice. Within one (1) month after termination, Buyer will provide Optichron a certificate certifying that the original and all copies, in whole or in part and in any form, of the Licensed Program(s) have been destroyed.
10. CANCELLATION. Buyer may cancel orders for standard Product(s) at no charge with thirty (30) days written notice prior to the scheduled ship date. Non-standard or custom Product(s), or Product(s) unique to Buyer (“Special Product”) may be cancelled at no charge with ninety (90) days written notice prior to the scheduled ship date, except that Buyer shall remain liable for all non-transferable and non-cancelable raw materials and work in process as of the date Optichron receives the notice. Optichron reserves the right to accept only non-cancelable purchase orders from Buyer, at Optichron’s sole discretion. Optichron reserves the right to cancel all or any part of an order, without liability to Buyer, if inaccurate information is supplied by Buyer on a Credit Application Form required by Optichron, or if Buyer is in default under these Standard Terms or another agreement with Optichron.
11. RESCHEDULE. Buyer may reschedule orders placed under this Agreement subject to the following restrictions: (a) STANDARD PRODUCT. Written notice shall be given to Optichron thirty (30) days or more prior to the scheduled ship date. Only one (1) reschedule is allowed and it may not exceed six (6) months from original scheduled ship date. (b) NON-STANDARD PRODUCT, ASIC, CUSTOM PRODUCT OR PRODUCT UNIQUE TO A SINGLE CUSTOMER. Written notice shall be given to Optichron forty-five (45) days or more prior to the scheduled ship date. Only one (1) reschedule is allowed and it may not exceed six (6) months from original scheduled ship date.
12. EXPORT CONDITIONS. If, at the time or times of Optichron's performance hereunder, an export license is required for Optichron to export Products or technical data lawfully from the point of shipment to Buyer’s specified delivery location, then the issuance of the appropriate license shall constitute a condition precedent to Optichron’s obligations hereunder. Buyer agrees to comply with all applicable export laws, regulations and orders of the United States of America. Specifically, but without limitation, Buyer agrees it will not resell, re-export or ship, directly or indirectly, any Product(s) or technical data in any form without obtaining appropriate export or re-export licenses from the Government of the United States of America. Buyer acknowledges that the applicable export laws, regulations and orders may differ from item to item and/or time to time.
13. RE-SALE PROHIBITED. Buyer shall not resell any Product(s). If Buyer breaches this paragraph, in addition to Optichron's cancellation rights, Buyer agrees to fully indemnify Optichron, its officers, directors, employees, subsidiaries, affiliates, resellers, agents and/or distributors from all liability, including attorneys' fees and costs.
14. DISCLAIMER FOR CRITICAL APPLICATIONS. The Product(s) are not designed, intended or authorized for use as critical components in life support or safety devices or systems, in military or nuclear applications or environments, or for any other application in which the failure of the Product(s) could create a situation where personal injury or death may occur. Buyer agrees to indemnify and hold Optichron, its officers, directors, employees, subsidiaries, affiliates, resellers, agents and/or distributors, harmless against all claims, costs, damages and expenses, and reasonable attorney's fees arising out of, directly or indirectly, any claims of personal injury or death associated with such unauthorized use, even if such claim alleges that Optichron was negligent regarding the design or manufacture of the Product(s).
15. LIMITATION OF LIABILITY. Optichron’s entire liability, whether alleged in contract or tort, including negligence and/or strict or product liability, and Buyer’s sole remedy in respect of any default are as set out hereafter; (a) Optichron’s total liability in respect of any default of a singular nature shall not exceed the purchase price of the Product(s) in respect of which Optichron is in default. If a number of defaults or claims give rise substantially to the same loss or are attributable to the same or similar cause then they shall be regarded as a claim of a singular nature. (b) Optichron shall not be liable for lost sales, profits, business, revenue, goodwill, anticipated savings, or prospective economic advantage, nor for any special, incidental, consequential or other indirect damages of any kind, nor for punitive or other exemplary damages of any kind, even if foreseeable by or in the contemplation of Optichron, nor for any claim made against Buyer by any other person.
16. ENTIRE AGREEMENT. This document constitutes the entire and final agreement between Optichron and the Buyer regarding its subject matter, and supersedes all other communications, whether prior or contemporaneous, and whether oral or written.
17. WAIVER. Failure by Optichron to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
18. NOTICES. Any notice hereunder shall be deemed to have been duly given if sent by pre-paid first class post to the party concerned at its last address publicly held out, with proof of mailing.
19. AMENDMENTS. No modification, amendment or restatement of these Standard Terms shall be binding unless made in a writing signed by authorized officials of both parties.
20. SEVERABILITY. If any provision of this document is held invalid, it shall be stricken and all other provisions shall remain valid, and this document shall be interpreted in light of all of its remaining terms.
21. ASSIGNMENT. Buyer may not assign its rights and obligations hereunder without the prior written consent of Optichron, and any such purported assignment shall be void. Optichron may assign its rights and obligations hereunder to any party without the prior written consent of Buyer, including the subcontract of all or part of its obligations hereunder as it deems necessary.
22. FORCE MAJEURE. Any delays in or failure of performance of Optichron or Buyer hereto shall not constitute default hereunder or give rise to any claims for damages if and to the extent that such delay is caused by occurrences beyond the control of the party affected, including, but not limited to, acts of God; expropriation or confiscation of facilities compliance with any order or request of any governmental authority; acts of war, rebellion or sabotage or damage resulting therefrom; embargoes or other import or export restrictions, shortages of raw materials; fires, floods, explosions, accidents, or breakdowns, riots, strikes, or other concerted acts of workers, whether direct or indirect; economic conditions or any other causes whether or not of the same class or kind as those specifically above named which are not within the control of the party Delivery schedules shall be considered extended by a period of time equal to the time lost because of any excusable delay. In the event Optichron is unable wholly or partially to perform because of any such cause it may cancel its acceptance of a Buyer’s order without liability to the Buyer.
23. DATA PROTECTION. Buyer accepts that Optichron retains data relating to Buyer and agrees that Optichron may process and/or circulate such data within Optichron in compliance with all legal requirements.
24. DISPUTE RESOLUTION. Optichron and Buyer will attempt to settle all claims (other than claims relating to intellectual property issues) through negotiation or non-binding mediation prior to commencement of court proceedings.
25. ATTORNEY’S FEES. In the event a legal action is initiated by one of the parties to recover damages for the other party's breach of this Agreement, the successful party shall be awarded its costs, expenses and reasonable attorney's fees.
26. GOVERNING LAW. These terms and conditions shall be governed by and construed under the laws of the State of California without regard to its rules governing choice or conflict of laws. The parties expressly stipulate that all litigation under this Agreement shall be brought in the state courts of the County of Santa Clara, California or in the U.S. District Court for the Northern District of California. Buyer hereby expressly consents to (i) the personal jurisdiction of the courts of California, and (ii) service of process being effected upon it by registered or certified mail pursuant to the notice provisions hereof. The parties agree that these Standard Terms and the course of performance and dealings between the parties shall not be subject to the United Nations Convention on Contracts for the International Sale of Goods.
OPTICHRON®, TURBOLINEAR™, and Hexagon Design™ are all trademarks of Optichron, Inc. Any product name of another company mentioned is the property or trademark of its respective owner.