Trident IOT, LLC Terms & Conditions
These Terms and Conditions are applicable to the sale of all products/services offered by Trident iOt, LLC and any of its affiliates (“Trident” or “Seller”) unless explicitly agreed otherwise in writing. Buyer agrees to waive its own general and special terms and conditions, even where it is stated therein that only those conditions may apply and even if such terms and conditions were not protested by Trident.
Buyer accepts these terms in their entirety by issuing an order to Trident.
1 – DEFINITIONS
Buyer’s Customer means a third-party bona fide purchaser of Buyer’s products from Buyer or Buyer’s designated agent.
Claim means any and all claims, demands, causes of action, damages, injuries or liabilities, whether arising, at law or in equity, including those with respect to or arising under breach of contract, tort, negligence, delay in or failure of Delivery, nonperformance, infringement, misappropriation, product or strict liability.
Confidential Information means all confidential or proprietary information or property of Seller or any of its affiliates (including samples, evaluation boards, designs, trade secrets, concepts, drawings, IP, pattern generator tapes, masks, technical information, technology, manufacturing processes, research, development, product roadmaps, costs, customer specific purchasing documents and pricing).
Custom Product means a Product as sold by Seller to Buyer that is manufactured and sold by Seller or on Seller’s behalf to Buyer and has been designed according to specifications provided by Buyer.
Customer-Specific Product means a Product as sold by Seller to Buyer that would otherwise be a Standard Product except that it has been programmed, marked or labeled according to Buyer’s specifications.
Deliver or Delivery – the placement of Products by Seller or its agent for receipt by Buyer at Seller’s Plant.
Excluded License means any license that requires, as a condition of use, modification and/or distribution of software subject to the Excluded License, that such software or other software combined and/or distributed with such software be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
Force Majeure means collectively or individually, acts of God or of public enemy; acts of war, civil or military authority; Government actions, regulations, priorities, allocations, or controls, whether or not valid, and including but not limited to exercise of sovereign or contractual power; fires, floods, weather, epidemics, strikes, lockouts, slow-downs, shortages, factory or port conditions or freight embargoes; yield problems; inability to obtain necessary labor, materials, or manufacturing facilities or services at a commercially reasonable cost; pandemics; epidemics; civil or other disobedience, insurrection, rebellion, acts of a terrorist or other enemy, cyber-attacks, denial-of-service attacks, and any other causes beyond Seller’s reasonable control.
Government means any governmental entity, authority, agency, official, or department at the national, state, county or local level.
Intellectual Property or IP means all intellectual property including, without limitation, patents, patent applications, copyrights, mask works, designs, utility models, moral rights, licenses, confidential or proprietary information, trade secrets, trade indicia (including trademarks, trade names, logos, product names and slogans), and all legal rights to inventions, know-how, methods, processes, Software, protocols, schematics, specifications, web sites, works of authorship, and databases.
Nonstandard Product means a Product that (i) is an unpackaged Product sold in die or wafer form, (ii) is classified as other than a commercial production unit (e.g. evaluation boards, design verification units, samples, preproduction units, developmental units, or units provided pursuant to a waiver), (iii) has been packaged with other components or integrated circuit devices not produced by Seller.
Order means an order from Buyer for the purchase of Products that has been accepted by Seller in accordance with Section 6 herein.
Order Documents means this Agreement, and any and all of the following, if applicable: a) Seller’s (i) written price quote to Buyer, (ii) written acceptance of an Order from Buyer, (iii) invoice for Products sold to Buyer, or b) a written sales agreement signed by Seller and Buyer for the purchase by and sale to Buyer of Products.
Personal Information means data concerning the user of a Product, including activities of the user related to a Product, location, IP addresses, mobile device ID, biometric data.
Product means an integrated circuit, or a module manufactured by Seller and sold to Buyer by Seller or one of its authorized distributors, excluding any Software.
Seller’s Plant means the location specified by Seller where Products are held for Delivery. Services means the services that, if Seller has agreed to provide to Buyer, are set forth on Exhibit __ attached hereto.
Specifications means Seller’s electrical and physical specifications for a Product in the applicable Seller’s data sheet. Seller may modify the Specifications over time. Specifications do not include any advertisements or marketing or sales materials.
Software means all programs, algorithms, source, object, machine-readable or executable code, and all operating, processing, or other instructions, for computers, devices or Products, provided, stored, used or delivered in any medium and all related documentation.
Standard Product means a product as sold by Seller to Buyer that (i) has not been modified especially for Buyer, (ii) is available to the general public for purchase from Seller, (iii) has been packaged and tested before Delivery and (iv) is not a Custom Product. An otherwise Standard Product becomes a Customer Specific Product when it has been programmed, marked or labeled according to Buyer’s specifications.
Terms means the terms and conditions of this Agreement.
Warranty Period means one year after Delivery of the Product to Buyer.
2 – GENERAL TERMS
The Terms herein govern all Orders placed by Buyer to Seller for the purchase of Products and/or Services. Each Order is an offer by Buyer to purchase Products and/or Services from Seller. All previous offers from Buyer are hereby rejected. These Terms supersede all prior written or oral statements between Buyer and Seller and constitute the entire and only agreement between them relating to the Products. Products supplied prior to an Order being placed or acknowledged by Seller are subject to these Terms.
3 – ORDER PLACEMENT
All Orders and requested changes to Orders are subject to acceptance by Seller, which acceptance will be (i) through Seller’s written order acceptance sent to Buyer, (ii) by Delivery, or (iii) through electronic acceptance by Seller by mutually agreed-upon methods. Seller reserves the right in its sole discretion to reject any Order given by Buyer regardless of whether Seller gave Buyer a price quote. The minimum Order amount will be in Seller’s suggested tube, tray, or tape and reel quantities for each separate Product ordered. As to each Order, Seller may deliver 5% more or less (+/-5%) than the quantity ordered, and such quantity will be accepted in compliance with and in full satisfaction of the Order, and Buyer will pay for the actual quantity Delivered.
4 – PAYMENT; SECURITY
Prices are quoted in U.S. Dollars and all invoices are due and payable in full by Buyer in U.S. Dollars the earlier of (i) net 30 days after the date of invoice or (ii) the due date in an Order Document. Seller’s pricing and cost structure are confidential and not subject to audit. Unless otherwise noted, quotes expire one month from their date of issuance. In the case of unforeseen increases in Seller’s costs, Seller may require renegotiation of pricing for Products not yet Delivered by giving notice to Buyer of such price renegotiation and Seller’s proposed new pricing. Interest will accrue on all past due amounts at the lesser of 1.5% per month or the maximum rate allowable by applicable law. Buyer will pay for all Products Delivered. For Products Delivered in installments, Buyer will pay separately for each installment. Seller may, without incurring any Seller liability, suspend or cease any Delivery and/or cancel any Orders if Buyer is in breach of this Agreement or an Order, or if Seller determines, in its sole judgment, that there is a risk that Buyer will not fulfil its obligations. Seller may require that Buyer make full or partial payment in advance, provide certain security or satisfy other conditions. Seller may enforce its rights under this Section without prior notice or demand and without proceeding under Section 24.
5 – DELIVERY
Delivery of Products will be EX WORKS (EXW) Seller’s Plant (INCOTERMS 2020). Expected Ship Dates are estimates and subject to change. Seller will have no liability to Buyer or any third party with regard to any delay in Delivery, regardless of the reason.
6 – ACCEPTANCE; REJECTION
Conditioned upon providing prompt notice within 10 days after Delivery, Buyer may reject any Products that do not conform to the applicable Order Documents with respect to identity or marking (but not amount). Any Product that is not properly rejected by Buyer in accordance with this Section is deemed irrevocably accepted. A Product may not be rejected and shall be deemed accepted: (i) if it is not in its original condition; or (ii) if Seller determines it has been subjected to operating or environmental conditions in excess of limits established in the applicable specifications or has been subjected to static, failure to ground properly, accident, mishandling, damage, misuse, abuse, neglect, alteration, improper or unauthorized testing, installation or repair.
7 – CANCELLATION; RESCHEDULING
Buyer may only cancel an Order for Standard Products, in whole or in part, by delivery of written notice to Seller at least 60 days before the then-current Expected Ship Date. For a partial cancellation of an Order that satisfies the notice requirements, the price will be adjusted based on the remaining quantities. Seller has the right to cancel an Order at any time if Buyer becomes insolvent or if voluntary or involuntary proceedings are commenced as to Buyer under any bankruptcy or insolvency law, or upon default or breach by Buyer of the Agreement or applicable law. After receipt of a Claim relating to the Products, Seller may terminate without liability to Seller any Order as to any or all Products not Delivered. Buyer may request a one-time reschedule for up to 30 days after the Expected Ship Date, by a written notice received at least 30 days before the then-current Expected Ship Date. If Products are ordered under non cancelable, non-returnable (“NCNR”) terms, as specified in the Order Documents, then no Orders may be canceled by Buyer for any reason, no delivery dates may be rescheduled, and non-defective Products may not be returned for any reason.
8 – TAXES
All sales, use, value added, property, transfer, excise or other taxes, assessments, fees, and charges applied by any Government to the Products or their sale, delivery, shipment or use will be added to the purchase price of the Products and will be paid by Buyer, except to the extent that Buyer provides Seller with an acceptable tax exemption certificate. Where applicable, Buyer will provide Seller with an exemption certificate in accordance with applicable laws and regulations and in form and substance satisfactory to Seller. If there are withholding taxes payable with respect to the Buyer’s payments to Seller, Buyer shall nevertheless pay Seller the full amount due on the invoice, and also pay the amount of the withholding tax due to the proper taxing authority, providing to Seller evidence of any such payment upon request.
9 – CUSTOM AND CUSTOMER-SPECIFIC PRODUCTS
9.1. – All drawings design or specifications for Custom Products must be mutually agreed upon in a written document signed by both parties and will be made a part of the Order Documents as a condition to any obligation of Seller. Orders for Custom Products are non-cancellable. Other than for Products rejected and returned under Section 6, if Buyer cancels, reschedules or rejects any Delivery of Custom Products, in whole or in part, Buyer will pay the full purchase price for the quantity of Custom Products stated in the Order.
9.2. – At the point at which a Standard Product has been programmed, marked or labeled to Buyer’s specifications and can no longer be sold to a different customer, it becomes a Customer-Specific Product. Orders for Customer Specific Products may be marked as NCNR in the Order Document, in which case Orders are non-cancellable. Other than for Products rejected and returned under Section 6, if Buyer cancels, reschedules or rejects any Delivery of Customer-Specific Products, in whole or in part, Buyer will pay the full purchase price for the quantity of Custom Products stated in the Order.
10 – INTELLECTUAL PROPERTY RIGHTS IN SOFTWARE
Unless provided otherwise in a separate written license agreement between Seller and Buyer (including a license agreement executed by Buyer by clicking “Accept” on a click-through or other online license), the following terms apply to Software (including firmware in all references to “software”, unless stated otherwise) and documentation provided or made available to Buyer in connection with Products:
10.1. – To the extent Software is installed or embedded in or furnished with Products, Seller grants Buyer a nonexclusive, non-assignable sublicense to use and distribute Software in machine-readable form, only in combination with or as part of the Product for which the Software has been provided and solely to the extent necessary for the normal and intended uses of such Products. No rights or licenses with respect to any software source code are granted to Buyer. Seller grants Buyer a nonexclusive sublicense to use and distribute non-confidential documentation with the Product for which the documentation has been provided and only one copy for each such Product. Buyer will reproduce all of Seller’s (or its licensor’s) copyright notices and other proprietary legends in the software and on copies thereof.
10.2. – With respect to Products, Software, documentation, and portions thereof, Buyer is not authorized to and agrees that it will not: (i) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code, ideas, technology or algorithms, except to the extent expressly authorized by statutory law; (ii) modify or create derivative works; (iii) remove or alter any proprietary markings or notices; or (iv) merge, link or incorporate Software into any other software. Should Buyer create any modifications or derivative works of Products, Software, documentation or a portion thereof, Buyer irrevocably assigns and agrees to assign all right, title and interest in any such modifications or derivative works to Seller. Buyer’s rights under this Agreement are conditional upon Buyer not performing any actions that may require any Software, Products and/or any derivative work thereof, to be licensed under open source software license terms that may, for example, require disclosing source code, granting a license under intellectual property rights, such as granting a permission to develop derivative works, or granting other rights or assuming responsibilities commonly associated with open source software.
10.3. – If Buyer is in default of any of the terms herein, Buyer’s sublicense to Software and documentation will automatically terminate. Buyer shall indemnify Seller against and hold Seller harmless from any damage or costs arising from or in connection with any violation or breach of the provisions of this Section 10 and Buyer shall reimburse all costs and expenses incurred by Seller in defending any claim, demand, suit or proceeding arising from or in connection with such violation or breach.
10.4. – To the extent that Software and/or documentation is embedded in a Product, the sale of such Product shall not constitute the transfer of ownership rights or title in such Software and/or documentation, and all references to “sale” or “sold” of any Software or documentation shall be deemed to mean a license. Except for those rights specifically granted in this Section 10 in connection with Software and documentation: (i) Trident IoT (and its Licensors, if any) reserve all right, title and interest, together with all intellectual property rights thereto, in all Software and documentation provided or made available to Buyer, and (ii) no other express or implied license, right or interest in or to any patent, patent application, copyright, trade secret, trademark, trade name, service mark or any other intellectual property right is granted hereunder.
10.5. – Any open-source software included in the Software is not licensed or warranted under the terms of this Agreement but is instead licensed under the terms of applicable open source license(s), such as the BSD License, Apache License or the Lesser GNU General Public License. In no event will Buyer cause the Software to become subject to the terms of an Excluded License. Buyer is solely responsible for obtaining any necessary third-party approvals and any licenses for any necessary essential patents for their use in connection with Products or Software that Buyer incorporates into Buyer’s system or software (whether as part of the Software or not).
10.6. – Neither the sale of any of the Products, nor any terms of this Agreement, shall be construed as conferring any right, license or immunity: (i) under any intellectual property rights to any combination, machine, or process in which Products might be used, or to any modifications of Products, Software, or documentation; (ii) with respect to any trademark, trade or brand name, corporate name, or any other name or mark, or contraction, abbreviation or simulation thereof; (iii) under any intellectual property rights covering an industry standard set by a standard setting body or agreed to between at least two companies; or (iv) under any intellectual property rights with respect to which Seller has informed Buyer or has published a statement that a separate license has to be obtained or that no license is granted or implied.
10.7. – With respect to any Software licensed to Buyer pursuant to the terms of a separate license executed or accepted by Buyer when Buyer downloaded the Software, including but not limited to a, Zigbee, Z-Wave development kit license or such other Software, Buyer’s use of such Software is subject to the terms and conditions of such license, and the terms of such license shall supersede any conflicting terms in this Agreement.
11 – RETURNS
For Products returned under Sections 6 and 12, Buyer shall afford Seller a reasonable opportunity to inspect the Products and any return shall comply with Seller’s Return Materials Authorization (“RMA”) procedures. Remedies are conditioned upon Buyer giving prompt written notice to Seller within the applicable period, specifying the affected Product and the defect or nonconformance and returning all affected Products to Seller DAP (INCOTERMS 2010) to the location specified by Seller promptly after such notice. Seller will reimburse Buyer for the reasonable transportation charges of such returns if parts are deemed nonconforming.
12 – LIMITED WARRANTIES; EXCLUSIVE REMEDIES
Seller warrants to Buyer that, during the Warranty Period, Standard Products and Customer-Specific Products (i) are free from material defects in materials and workmanship and (ii) materially conform to the Specifications. This warranty does not apply to Custom Products, Nonstandard Products or Software, or to Products that Seller determines: (i) have been modified or damaged in any way by Buyer or a third party (ii) have been packaged, stored or shipped contrary to Seller’s Specifications, (iii) have been subjected to Unauthorized Uses under Section 16, or (iv) Products for which an “end of life” notice has been given and which are purchased by Buyer in a “last time buy” opportunity, all of which Products are provided “AS IS”, without warranty of any kind, and cannot be returned to Seller for any reason. Seller does not warrant against interference with Buyer’s use of the Products, that the operation of the Products will be uninterrupted or error-free, or that defects in the Products will be corrected. Seller’s sole and exclusive liability and Buyer’s sole and exclusive remedy will be for Seller (at Seller’s option and conditioned upon Buyer’s compliance with the requirements of this Section) as to the affected Products: (i) to refund the purchase price paid; (ii) to deliver to Buyer a replacement; or (iii) to repair such Product. This warranty and any remedy extend to Buyer only and Seller has no liability to any of Buyer’s Customers, users or any other third party. Except for this limited warranty, to the fullest extent permitted by law, Seller makes no other warranty and disclaims all other warranties or liabilities as to any Product, Software, or IP, whether express, implied, statutory, or otherwise, including all warranties of merchantability, fitness for a particular purpose, title, ownership, non-infringement, and non-misappropriation. Custom Products, Nonstandard Products labeling on Products and packaging that are intended solely for compliance with applicable law, and all Software are provided “AS IS” and without any warranty of any kind. Seller does not warrant and disclaims that Products or Software are free from defects that could cause vulnerability to cyber-attack, data breach, loss of data, or privacy violations. The warranty obligations of Seller and the remedies of Buyer set out in this Section 12 are the sole and exclusive obligations of Seller and the sole and exclusive remedies of Buyer for all Claims and other liabilities arising out of or in connection with any warranty, nonconformance, failure, defect or breach of warranty. No obligation or liability will arise out of Seller’s rendering of advice or service in connection with Buyer’s purchase of the Products or any repair or replacement of a Product. Seller does not warrant that Product security measures are incapable of being compromised or circumvented. Product performance and security measures may be affected by use with third- party products or services that are beyond Seller’s control. Seller is not responsible for damages and losses due to the operation of third-party products and services. Buyer accepts full responsibility for all risks that Buyer or Buyer’s property may be harmed by third-party products and services. No warranties will apply after the expiration of the Warranty Period. Seller does not offer any warranties of any kind, and expressly disclaims all implied warranties, on services provided by Seller which are ancillary to the purchase of Products by Buyer including, but not limited to, Software modifications, board-level designs, and reviews of Buyer’s products or designs. Buyer is solely responsible for complete and thorough testing of Buyer’s hardware and software and their interaction with the Products even if Seller has advised or assisted Buyer with such or testing. Seller is not liable for any defect in Buyer’s product, including but not limited to those that would have been detected if Buyer had adequately tested its product. All of the preceding exclusions from Seller’s liability and limitations on Seller’s warranties are applicable even if Seller was aware, or should have been aware, of foreseeable damages or particular risks to Buyer.
13 – DATA COLLECTION
When Buyer purchases Products from Seller, Buyer consents to receive information from Seller concerning Seller’s products and services, including marketing materials, invitations to participate in online and in-person technical discussions and forums, and new product releases. This information may come in the form of email, social media, or direct mail. Seller will only use contact information provided directly from Buyer’s employees to Seller in accordance with its Privacy Notice and will not share this information with any third party. Any employee of Buyer may opt-out of receiving further communication from Seller by following the instructions included within the communication.
14 – CONFIDENTIALITY
Absent written permission from Seller, Buyer will keep in confidence, will not disclose to any person, and will not use (other than for purposes of performance under the Order) the Confidential Information. Buyer will not be liable for the unauthorized disclosure of Confidential Information if it: (i) is or becomes generally available to the public, except as the result of unauthorized disclosure by Buyer; (ii) was known, without confidentiality restriction, to Buyer and such knowledge has been documented in writing prior to its receipt; (iii) is independently developed by Buyer without use of Seller’s data; or (iv) is disclosed as required by law or a governmental or judicial order (provided that Buyer has given prompt written notice to Seller prior to disclosure and an opportunity to object). Immediately upon request by Seller, Buyer will return or destroy the Confidential Information and all copies, records, and documents incorporating or derived from such information. The terms of any applicable non-disclosure agreement are cumulative of the confidentiality provisions herein.
15 – LIMITATION OF LIABILITY
THE AGGREGATE CUMULATIVE LIABILITY OF SELLER, ITS AFFILIATES, AND THEIR EMPLOYEES, DIRECTORS, OR AGENTS (“SELLER PARTIES”) FOR ALL CLAIMS EVER MADE BY BUYER AGAINST SELLER (INCLUSIVE) ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL ORDERS, ORDER DOCUMENTS, PRODUCTS, SOFTWARE OR CLAIMS SHALL NOT EXCEED, INDIVIDUALLY OR COLLECTIVELY, AND BUYER RELEASES ALL SUCH CLAIMS AGAINST (AND LIABILITY OF) SELLER PARTIES IN EXCESS OF THE NET PROCEEDS RECEIVED BY SELLER FOR THE AFFECTED PRODUCTS OR SOFTWARE DURING THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO FIRST CLAIM, OR $100,000, WHICHEVER IS LESS. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE OR EXTEND THIS LIMIT. THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY. IN NO EVENT WILL SELLER PARTIES BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY SPECIAL, COLLATERAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES (“EXCLUDED DAMAGES”). EXCLUDED DAMAGES INCLUDE COSTS OF INSPECTION, REMOVAL, AND REINSTALLATION OF PRODUCTS, DATA OR OTHER ITEMS, REWORK, RE-PROCUREMENT OR RECALL COSTS (INCLUDING ADMINISTRATIVE AND PERSONNEL COSTS) OF REPLACING OR SUBSTITUTING ITEMS OR DATA, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF REVENUE OR PROFITS, AND LOSS OF USE, WITHOUT REGARD TO WHETHER SELLER HAS BEEN NOTIFIED IN ADVANCE OF THE POSSIBILITY OF ANY SUCH CLAIM OR DAMAGE. EXCLUDED DAMAGES ALSO INCLUDES DAMAGES CAUSED SOLELY OR PARTIALLY BY ACTIONS OF THIRD PARTIES INCLUDING MALICIOUS HACKING, DATA BREACH, UNAUTHORIZED ACCESS, ALTERATION OF ELECTRONIC DATA, PRIVACY VIOLATIONS, AND DENIAL OF SERVICE ATTACKS. EXCEPT TO THE EXTENT LIABILITY IS NOT EXCLUDABLE BY APPLICABLE LAW, THESE LIMITATIONS APPLY TO PERSONAL INJURIES (INCLUDING DEATH) CAUSED BY SELLER’S NEGLIGENCE. THE ALLOCATION OF RISK CONTAINED IN THIS AGREEMENT IS REFLECTED IN THE PRICE OF THE PRODUCTS AND IS REASONABLE IN ALL CIRCUMSTANCES HAVING REGARD TO ALL RELEVANT FACTORS, INCLUDING THE PARTIES’ RELATIVE BARGAINING POSITIONS.
16 – UNAUTHORIZED USES
The Products are not designed, intended, authorized, or warranted for use or inclusion in life support, financial institution, aeronautical, aerospace, military, or nuclear applications, or FDA Class III or other devices for which FDA premarket approval is required, implantable devices or in life support or life endangering applications where failure or inaccuracy might cause death or personal injury. Products shall not be used for automotive or transportation applications or environments unless the specific Product has been designated by Seller as compliant with IATF 16949:2016 requirements. Products shall not be used if they have been subjected to operating or environmental conditions in excess of limits established in the Specifications or otherwise has been subjected to static, failure to ground properly, accident, mishandling, damage, misuse, abuse, neglect, alteration, or improper or unauthorized testing, installation or repair. Any unauthorized sale, use or inclusion by Buyer or any of its direct or indirect Customers is fully at Buyer’s risk and voids any and all of Seller’s obligations and warranties.
17 – GOVERNMENT CONTRACTS
All Products of Seller are commercial items as defined in FAR 2.101. If Buyer sells Products to any Government, or to a Government prime contractor or subcontractor, Buyer shall be solely and exclusively liable for compliance with all Government acquisition statutes and regulations. Seller makes no representations, certifications, or warranties whatsoever about compliance with Government acquisition statutes and regulations, including, without limitation, those that may relate to pricing, quality, origin, or content, and specifically rejects the flow down of all FAR clauses not required to be included in a subcontract for commercial items. All rights in technical data, intellectual property and Products or Software owned or licensed by Seller are hereby reserved and deemed restricted or limited. Under no circumstances shall Buyer or Buyer’s Customers receive rights or documentation greater than that which is generally made available by Seller to its other commercial customers.
18 – LEGAL COMPLIANCE
Buyer will comply with all applicable laws and regulations. The Products, Software or related technologies may be subject to export license or other international trade controls. Buyer represents, warrants and certifies that Buyer will comply with applicable laws and regulations relating to export or re-export, including the Export Administration Act of 1979, as amended, the U.S. Export Administration Regulations (“EAR”), International Traffic in Arms Regulations (“ITAR”) and U.S. Foreign Assets Control Regulations (“OFAC”), 31 C.F.R., Chapter V. Buyer shall not export, or transfer for the purpose of re-export, any Products or Software to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as mentioned in any U.S. or foreign law or regulation. Buyer represents, warrants, and certifies that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List, is not located in a country subject to embargo under EAR, ITAR or OFAC regulations and is not otherwise prohibited by U.S. or foreign law from purchasing the Products hereunder.
19 – BUYER CERTIFICATION
Buyer represents that it complies with all applicable laws and regulations, including eradication of forced, indentured, involuntary or compulsory labor in its facilities, and requires its suppliers, including labor brokers and agencies, to do the same. Buyer further represents that its supply chain and materials incorporated into its products comply with national and international laws prohibiting slavery and human trafficking. Buyer represents that Buyer provides its employees with a safe work environment, conducts business in compliance with applicable environmental, labor and employment laws, and refrains from corrupt practices and engaging in human rights violations.
20 – BUYER’S DUTY TO DEFEND
Buyer will defend Seller and reimburse Seller for all Claims, taxes, penalties, interest, costs, assessments, and expenses (including court and attorneys’ fees) that arise as a result of or in connection with any inadequacy or invalidity of any tax exemption certificate submitted by Buyer or any act, omission or misrepresentation of Buyer or any of its affiliates, employees, agents, contractors, customers, users or representatives.
21 – DISPUTES, APPLICABLE LAW AND FORUM
All disputes relating to this Agreement, or any other Claims arising out of or related to the relationship of the parties (“Disputes”) shall be resolved exclusively as set forth below, except that Seller may take immediate legal action to prevent immediate or irreparable harm to it or for Buyer’s failure to make payments under Section 3. Upon written notice by one party to the other of a Dispute, the parties will first attempt to promptly resolve the Dispute by negotiation for a 30-day period. If not so resolved, all Disputes shall be finally settled via binding arbitration pursuant to the rules of the American Arbitration Association in San Diego, California. If a party unreasonably delays in submitting to binding arbitration, then the other party may commence litigation in a court of competent jurisdiction specified in this Section. Each of the parties waives its right to a jury trial. Each party will bear its own costs in dispute resolution including attorney fees, except to the extent that a court or arbitrator awards costs to one party. All Dispute negotiations will be confidential settlement negotiations that are inadmissible as provided by applicable rules of evidence in litigation. The English version of any documents shall control, and all proceedings will be in English. The Parties consent to the sole, exclusive personal jurisdiction, choice of law (without regard to conflicts of law principles) and venue for all meetings, hearings, or proceedings shall be the City of San Diego, San Diego County, State of California. The United Nations Convention on Contracts Buyer. Discovery will be reasonably limited according to the amount in dispute.
22 – FORCE MAJEURE
If a delay or failure of performance is due to Force Majeure, then a party’s performance will be excused for the period of delay caused by the Force Majeure. If non-Delivery or impracticability of Delivery of any or all of the Product’s results, in whole or in part, from any Force Majeure, Seller’s failure to Deliver will not be a breach, and Seller may elect to terminate the Order with respect to the affected Products without any liability.
23 – MISCELLANEOUS
This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns. There are no third-party beneficiaries to this Agreement. Buyer may not assign this Agreement in any respect without the prior written consent of Seller. Seller may assign this Agreement, in whole or in part, or any of its rights or obligations hereunder without notice to or consent by Buyer. Seller may subcontract manufacturing or other work as to any or all Products without notice to or consent of Buyer. The failure of a party to enforce any right hereunder shall not waive that or any other right. If any provision of this Agreement or any Order Document is held to be illegal, invalid or unenforceable, then (i) such provision will be reformed to cure or remove such defect and if not reformed will be severed, (ii) the legality, validity and enforceability of the remaining provisions will not be affected or impaired, and (iii) the parties will endeavor in good faith to replace the severed provisions with valid provisions of the same or similar economic effect. The invalidity of a provision in a particular jurisdiction will not render unenforceable such provision in any other jurisdiction. No amendment or modification to the Order Documents will be effective unless specifically agreed in a writing signed by Seller. Notices to Seller should be in writing sent by tracked next-day delivery service to: Trident IOT, LLC, 1903 Wright Place Suite 360, Carlsbad, CA 92008, Attn. Legal Counsel. All rights, remedies and powers of Seller are cumulative and may be pursued or enforced in any manner or order. Section headings are included for convenience of reference only. The word “including” will be interpreted to mean “including but not limited to”.