Terms and Conditions
General Ownership Conditions and System Use
- LIMITS OF AGREEMENT. Acclaro Corporation, a Delaware corporation (“Acclaro Corporation” or “Seller”), hereby offers to sell to the buyer identified on the face of the quote (“Buyer”), or accepts the Buyer’s offer to purchase, any of the products (“Products”) or services (“Services”) set forth on the face of the applicable quote solely in accordance with both
(a) the terms and conditions contained in these Acclaro Corporation Terms and Conditions of Sale – North America (the “North America Terms”); and
(b) the terms and conditions set forth on the face of the quote provided by Seller to Buyer (the “Quote Terms,” together with the North America Terms, the “Terms”).
Unless otherwise expressly stated in writing, with respect to any conflicts between the North America Terms and the Quote Terms, the Quote Terms will control. All offers by Seller to sell the Products or provide Services are expressly limited to the Terms, and the Terms shall take precedence over and void any additional, different, or conflicting terms or conditions presented to and/or accepted by Acclaro Corporation in any electronic portal utilized by Buyer in connection with this transaction or Buyer’s general vendor registration process. If Buyer has ordered Products or Services from Acclaro Corporation and such order is deemed by Acclaro Corporation to be an offer by Buyer, Acclaro Corporation’s acceptance of such offer is expressly conditioned on Buyer’s agreement to the Terms, to the exclusion of all other terms and conditions. Any additional, different, or conflicting terms or conditions proposed by Buyer in any offer, acceptance, or confirmation, including those set forth on any Buyer purchase order, specifications, or other documents issued by Buyer are considered by Acclaro Corporation to be requests for material alterations of the Terms, are hereby rejected, and will not be binding in any way on Acclaro Corporation. Buyer is hereby notified of Acclaro Corporation’s objection to all such additional, different, or conflicting terms and conditions. No waiver or amendment of any of the Terms will be binding on Acclaro Corporation unless made in a writing expressly stating that it is such a waiver or amendment and signed by an officer of Acclaro Corporation.
Buyer will have accepted (and will be deemed to have accepted) these Terms if Buyer does any of the following:
(a) accepts the Terms in writing,
(b) pays (in part or whole) for any Products or Services, or
(c) accepts delivery of any Products or Services. All Acclaro Corporation offers are open for acceptance for no longer than the period stated on the face of the quote issued by Acclaro Corporation, or, when no period is stated, thirty (30) days from the date of the offer, but any offer may be withdrawn or revoked by Acclaro Corporation at any time prior to the receipt by Acclaro Corporation of Buyer’s acceptance of such offer. No person, including any sales representative, order gatherer, or liaison officer for Acclaro Corporation, is an agent for Acclaro Corporation or has authority to extend or accept an offer on Acclaro Corporation’s behalf.
- PRODUCTS AND SERVICES PROVIDED AND PRICE.
(a) Unless otherwise specified on the quote provided by Seller, Products pursuant to the Terms shall be newly manufactured products but may contain components which have been previously used in other product units that meet or exceed the Seller’s specifications for newly manufactured components.
(b) The prices for Products and Services are those set forth on the face of the quote provided by Seller. The cost of packaging for normal domestic shipment is included in the invoiced price for Products.
(c) Prices and orders do not include federal, state, municipal or local excise, sales, use or other taxes or customs duties, if applicable (excluding only taxes based on Seller’s income), which are applicable to the Products and Services. Such tax and duties will be added by Seller to the sales price when Seller has the legal obligation to collect the same and Buyer will pay such taxes and duties unless Buyer provides Seller with a proper tax exemption certificate for each jurisdiction in which taxes otherwise would be due. In the event Seller is required to pay any such tax or duty at the time of sale or thereafter, Buyer will promptly reimburse Seller for the total amount of any such tax or duties.
(d) Unless expressly agreed to in writing by Seller, prices quoted are for the Products and Services described on the face of the quote by Seller only and do not include any technical data, proprietary rights of any kind, or patent rights.
(e) These Terms govern the purchase and sale of the Products or Services set forth on the face of the quote and are exhaustive as to the rights and benefits of both parties hereto. Products or Services which are not set forth on the face of the quote are outside of the scope of this transaction but may be purchased from Acclaro Corporation under a separate negotiated instrument.
- PAYMENT TERMS. (a) Subject to credit approval by Seller and unless otherwise specified by Seller on the face of the quote provided by Seller, all payments are due and payable in full thirty (30) days from the date of invoice. Seller reserves the right to require alternative payment terms, including, without limitation, sight draft, letter of credit or payment in advance. Acclaro Corporation may require the disclosure and evaluation of Buyer’s financials to extend credit to Buyer. Acclaro Corporation, at any time and its sole discretion, may change or withdraw Buyer’s credit. All payments shall be made to Seller at its principal office in Smithfield, RI, or such other office as designated on the face of the invoice provided by Seller. Interest will accrue on overdue invoices on the unpaid balance from the original due date of the invoice at the rate of one and one-half percent (1½ %) per month, or the highest rate permitted by law, whichever is less. Buyer is not entitled to any refund for payments made under progressive payment terms and may not withhold payment for any delay in installation due to a Buyer request or issue, or any delay in delivery of required documentation. If the face of the quote provided by Seller specifies full or partial payment due upon installation, and such installation is delayed for ninety (90) or more days after delivery through no fault of Acclaro Corporation, such payment shall become immediately due and payable on day ninety-one (91), regardless of whether installation is complete.
(b) Notwithstanding the foregoing, all orders are subject to, and the obligation of Seller to make deliveries is subject to, the right of Seller, in its sole discretion, to either (a) require of the Buyer payment for all or any part of the purchase price in advance of delivery; or (b) to make shipment C.O.D. If the Buyer fails to make advance payment when requested by Seller, or if the Buyer is or becomes delinquent in the payment of any sum due Seller (whether or not arising out of the same order) or refuses to accept C.O.D. shipment, then Seller shall have the right, in addition to any other remedy to which it may be entitled in law or equity, to cancel the sales order, refuse to make further deliveries, or declare immediately due and payable all unpaid amounts for Products or Services previously delivered to the Buyer.
(c) If Products or Services covered by these Terms are not delivered or performed at one time, Buyer will pay for the quantity of Products delivered or Services performed. Partial shipments made under any order will be treated as separate and independent transactions. However, in the event of any default by Buyer, Acclaro Corporation may decline to make further shipments without in any way affecting its rights under such order.
(d) To secure any or all of its obligations under these Terms and the applicable quote, Buyer hereby grants and pledges to Acclaro Corporation a first priority security interest in all of such Buyer’s right, title, and interest in and to any and all Products or proceeds of the foregoing, whether presently existing or hereinafter acquired. If Buyer defaults under any obligation under these Terms or the applicable quote, Acclaro Corporation may pursue all remedies of a secured creditor provided under the applicable Uniform Commercial Code or other applicable law. Buyer agrees that Acclaro Corporation may file such financing statements and amendments thereto as Acclaro Corporation deems necessary to protect its interest in the Products or proceeds thereof and to effectuate the purposes of this section. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement. Upon Acclaro Corporation’s request, Buyer will execute and file any documents to perfect Acclaro Corporation’s security interest and/or mortgage in any Products.
- TRANSPORTATION; INSURANCE, TITLE, AND RISK OF LOSS.
(a) Unless otherwise agreed to in writing by Acclaro Corporation, all transportation will be at the expense of Buyer. Acclaro Corporation reserves the right to ship Products freight collect and to select the means of transportation and routing. Unless otherwise advised, Acclaro Corporation may insure to the full value of the Products or declare full value thereof to the transportation company at the time of delivery and all such freight and insurance costs will be for Buyer’s account. All prices are exclusive of insurance cost. Title and risk of loss or damage to Products will pass to Buyer EXW (Incoterms 2020) upon delivery to the carrier at Seller’s place of manufacture or warehouse location.
(b) Seller may at its option obtain insurance for the Products covering their delivery to Buyer, and Buyer agrees to reimburse Seller for the cost of providing such insurance. If Buyer has not been notified of the existence of insurance coverage and provides its own insurance for such shipment Seller will waive its insurance charge.
(c) Confiscation or destruction of, or damage to Products shall not release, reduce or in any way affect the liability of Buyer for such Products. Notwithstanding any defect or nonconformity, or any other matter, risk of loss will remain with Buyer until the Products are returned at Buyer’s expense to such place (or places) as Seller may designate in writing. Buyer, at its expense, shall fully insure Products against all loss or damage until Seller has been paid in full therefore, or the Products have been returned, for whatever reason, to Seller.
- SHIPMENT. Acclaro Corporation will use commercially reasonable efforts to meet shipment schedules. However, any shipment quote or forecast on an order acknowledgment is Acclaro Corporation’s best estimate of the time required to make shipment and Acclaro Corporation will not assume liability, consequential or otherwise, because of any delay or failure to deliver all any part of any order for any reason, including its negligence of any kind.
Acclaro Corporation reserves the right to allocate inventories and current production, reduce quantities to be delivered or Services to be performed, delay shipments, or allocate such Products or Services among customers in Acclaro Corporation’s sole discretion in any way it deems necessary. Should Acclaro Corporationbe unable to deliver Products or perform Services when estimated, Acclaro Corporation will not be liable for failure to deliver or perform by such estimated dates unless expressly agreed to by Acclaro Corporation in writing. Buyer may not cancel, pushout, or reschedule any purchase order placed with Acclaro Corporation, except with Acclaro Corporation’s written consent.
- INSPECTION AND ACCEPTANCE. The Buyer will have the right to inspect Products upon tender of delivery, however, such right to inspect does not impair or impact the transfer of title as set forth in Section 4. Products will be deemed accepted upon tender of delivery as set forth in Section 4. Any errors, alleged defect or nonconformity discovered by Buyer in its inspection of Products shall be resolved in accordance with Section 8. Services will be deemed accepted by Buyer upon being rendered.
- TERMINATIONS. Unless otherwise agreed by Seller or as set forth in the quote provided by Seller, any order for a Product that has been accepted by Seller and terminated by Buyer at least sixty (60) days prior to the scheduled shipment date, shall be subject to a termination charge of not less than ten percent (10%) plus any additional costs of processing and order handling not covered by the termination charge; provided, however that, if Buyer terminates any order without the prior written agreement, Seller may require Buyer to pay a termination charge determined by Seller in its sole discretion of not more than twenty-five percent (25%) of the order value. No order may be terminated within sixty (60) days of the scheduled shipment date except by prior written agreement by Seller. Terminations by mutual agreement for Products or Services are subject to the following conditions: (i) Buyer will pay, at applicable contract prices, for all Products which are completely manufactured and allocable to Buyer at the time of Seller’s receipt of notice of termination; (ii) Buyer will pay all costs, direct and indirect, which have been incurred by Seller with regard to Products which have not been completely manufactured at the time of Seller’s receipt of notice of termination, plus a pro rata portion of the normal profit on the contract; (iii) Buyer will pay a termination charge on all other Products affected by the termination. Seller’s normal accounting practices shall be used to determine costs and other charges. To reduce termination charges, Seller will use commercially reasonable efforts to divert completed parts, material, or work-in-progress from terminated contracts to other customers whenever, in the Seller’s sole discretion, it is practicable to do so. In the event of a termination, Buyer will have no rights in partially completed Product. Buyer may not reschedule the delivery date for any Products or Services without the prior written agreement of Seller. All payments made pursuant to progressive payment terms are nonrefundable. Notwithstanding anything to the contrary in this section and regardless of mutual agreement or timing of termination, Buyer is not entitled to any refund or credit for payments made prior to termination pursuant to progressive payment terms.
- LIMITED WARRANTY—LIMITATION OF REMEDIES. (a) Seller warrants to Buyer that the Products delivered under the Terms will (1) comply with either the applicable Seller published specifications for the Products, or the specifications mutually agreed and confirmed in writing between Seller and Buyer for 12 months from the date of shipment or as otherwise mutually agreed and confirmed on Seller’s quotation and (2) will be free from defects in material and workmanship under proper use, service and condition during the defined warranty period. If the Products include any service parts provided by Seller pursuant to a service event, the warranty period for such service parts shall be ninety (90) days from the date of shipment or the remainder of the initial warranty period, whichever is shorter, unless otherwise expressly specified by Seller on the face of Seller’s quote. Unless otherwise expressly specified by Seller on the face of the quote, the warranty for any depot repairs of Products is ninety (90) days from the date of return shipment by Seller or the remainder of the initial warranty period, whichever is shorter. Products or parts which are replaced or repaired under this warranty are warranted only for the remaining unexpired portion of the original warranty period applicable to the specific Product. Seller warrants to Buyer that it will provide any Services consistent with general industry standards. To the maximum extent permitted by and subject to applicable law, but notwithstanding anything to the contrary in the Terms, all (i) Services performed under these Terms, (ii) Products, delivered as “samples”, “design verification units”, and/or “prototypes”, and (iii) Licensed Software (as defined below) are provided or sold “AS IS,” “WITH ALL FAULTS,” and with no warranty whatsoever. (b) This warranty is the only warranty made by Seller with respect to the Products and Services. No representative or person is authorized to bind Seller for any warranty, obligation, or liability, express or implied. This warranty provided in this Section 8 is made to the original purchaser only at the original location and is nontransferable and may only be modified or amended by a written instrument signed by a duly authorized officer of Seller. (c) No Product may be returned to Acclaro Corporation without first obtaining Acclaro Corporation prior written consent and issuance of a Returned Material Authorization form. If, and subject to the limitations of this Section 8 during an applicable warranty period, defective Products are returned to Acclaro Corporation, DDP (Acclaro Corporation’s dock at either (a) the location where manufactured or (b) the Acclaro Corporation designated repair location (Incoterms 2020), transportation costs prepaid and borne by Buyer accompanied by Acclaro Corporation’s Returned Material Authorization form, Acclaro Corporation will, at its sole option, either repair or replace such products. Buyer will return products in a clean, well- packaged condition. No credit allowance on Products will be made and no replacement for Products will be shipped, unless the Products are established to Acclaro Corporation’s satisfaction, after suitable testing and inspection by Acclaro Corporation, to be defective. Prior to any return of Products by Buyer pursuant to these Terms, Buyer will afford Acclaro Corporation the opportunity to inspect such Products at Buyer’s location. The risk of loss of the goods shipped or delivered to Seller’s plant or repair location for repair or replacement will be borne by Buyer. (d) The remedies in this Section 8 are available only if Acclaro Corporation is notified in writing by Buyer promptly upon discovery that a Product does not conform to this warranty, including a detailed description of such nonconformance and Buyer provides Acclaro Corporation the purchase order number(s), approximate date shipped, and any and all other identifying numbers (such as invoice number, date of invoice, etc.) within the warranty period for the individual Product, and Acclaro Corporation’s examination of such Products discloses to Acclaro Corporation’s satisfaction that such Products do not conform to this warranty and the Products have not been (i) repaired, worked on, or altered by persons not authorized by Acclaro Corporation so as, in Acclaro Corporation’s sole judgment, to injure the stability, reliability, or proper operation of such Products; (ii) subject to misuse, negligence or accident; or (iii) connected, installed, used or adjusted otherwise than in accordance with the instructions furnished by Acclaro Corporation. (e) If it is found that any Product has been returned without cause and is still serviceable, Buyer will be notified, and the Product returned at Buyer’s expense. In addition, a charge for testing and examination may, in Seller’s sole discretion, be made on Products so returned. (f) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY REMEDY IN SECTION 8 CONSTITUTES ACCLARO CORPORATION EXCLUSIVE LIABILITY AND OBLIGATION, AND BUYER’S EXCLUSIVE REMEDY FOR ANY PRODUCTS OR SERVICES COVERED BY THESE TERMS, INCLUDING ANY BREACH OF ANY WARRANTY OR OTHER DEFECT OR NONCONFORMITY OF THE PRODUCTS OR SERVICES COVERED BY THESE TERMS. THIS WARRANTY IS EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES. ACCLARO CORPORATION MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, LIMITATION INCLUDING ANY WITHOUT WARRANTIES MERCHANTABILITY, PARTICULAR FITNESS PURPOSE, FOR OR OF A NON- INFRINGEMENT, OR THAT MAY ARISE FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE TRADE.
(g) OTHER THAN AS PROVIDED WITH RESPECT TO ACCLARO CORPORATION’S EXPRESS WARRANTY OBLIGATIONS IN THESE TERMS, ACCLARO CORPORATION IS NOT LIABLE FOR ANY COSTS ASSOCIATED WITH THE REPLACEMENT OR REPAIR OF ANY PRODUCT, INCLUDING LABOR, INSTALLATION, OR OTHER COSTS INCURRED BY BUYER AND, IN PARTICULAR, ANY COSTS RELATING TO THE REMOVAL OR REPLACEMENT OF ANY PRODUCT. UNDER NO CIRCUMSTANCES SHALL ACCLARO CORPORATION HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR OTHER DAMAGES.
- BANKRUPTCY OR INSOLVENCY OF BUYER. If the financial condition of the Buyer at any time is such as to give Acclaro Corporation, in its judgment, reasonable grounds for insecurity concerning Buyer’s ability to perform its obligations under these Terms, Acclaro Corporation may: (i) by notice in writing to Buyer, terminate or cancel these Terms, without any requirement of judicial intervention or declaration of default of Buyer and without prejudice to any right or remedy which may have accrued or may accrue thereafter to Acclaro Corporation; and (ii) require full or partial payment in advance and suspend any further deliveries for continuance of the work to be performed by Acclaro Corporation until such payment has been received.
- INDEMNITY. (a) Acclaro Corporation will, at its own expense, defend or settle any suit that may be instituted by a third party against Buyer to the extent based on a claim that the Product in the form provided by Acclaro Corporation to Buyer under these Terms, infringes such third party’s United States patent (excluding processes or methods claimed by such patent), trademark, or copyright if: (i) such alleged infringement is not based on an Excluded Claim (as defined in Section 10(b))); (ii) Buyer gives Acclaro Corporation immediate notice in writing of any such suit; (iii) Buyer gives Acclaro Corporation sole control over the defense and settlement of such suit; and (iv) Buyer gives Acclaro Corporation all needed information, assistance and authority, at Acclaro Corporation’s expense, to enable Acclaro Corporation to defend or settle such suit. In the case of a final award of damages in any such suit, Acclaro Corporation will pay such award, but will not be liable for any settlement made without its prior written consent or legal fees incurred by Buyer in connection with any such settlement. In satisfaction of this Section 10(a), Acclaro Corporation, at its sole discretion, may (i) replace or modify the allegedly infringing products with non-infringing products that are functionally equivalent; (ii) obtain a license for Buyer to continue to use or sell the allegedly infringing Products; or (iii) accept the return of allegedly infringing products and refund the amount paid by the Buyer for such returned Products. (b) Acclaro Corporation will have no liability for, and the obligations of Acclaro Corporation under Section 10(a) will not apply to any claim arising from or related to (i) the use of Products as a part of or in combination with any other devices, parts, processes or methods; (ii) Acclaro Corporation’s compliance with any designs, specifications, or instructions provided by or for Buyer; (iii) the use of Products contrary to any instructions issued by Acclaro Corporation or in breach of these Terms; (iv) modifications or alterations to the Products; (v) the practice of any process or method relating to Buyer’s or its customers’ use of the Products; or (vi) use of the Products after receiving notice of such third party claim or by Acclaro Corporation (collectively, “Excluded Claims”). (c) THIS SECTION 10 STATES ACCLARO CORPORATION’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT BY ANY PRODUCTS OR SERVICES DELIVERED UNDER THESE TERMS, OR ANY PART THEREOF. THIS SECTION 10 IS IN LIEU OF AND REPLACES ANY OTHER EXPRESSED, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT. IN NO EVENT WILL ACCLARO CORPORATION BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR OTHER DAMAGES RESULTING FROM ANY SUCH INFRINGEMENT. (d) Buyer will, at its own expense, indemnify and hold Acclaro Corporation harmless from and against any liabilities, costs, damages, or losses resulting from any Excluded Claim, and will defend or settle at its own expense, including attorney’s fees and costs, any suit brought against Acclaro Corporation based on allegation arising from any Excluded Claim, provided that Acclaro Corporation, (i) gives Buyer immediate notice in writing of any such suit, (ii) gives Buyer sole control over the defense or settlement of such suit so long as such settlement does not contain an admission or wrongdoing or impose any obligation on Acclaro Corporation other than the payment of amounts which shall be paid by Buyer; and (iii) gives Buyer all needed information, assistance and authority, at Buyer’s expense, necessary for Buyer to defend or settle such suit.
- NO PROPRIETARY RIGHTS. (a) Acclaro Corporation retains all rights in and to specifications, designs, engineering details, discoveries, inventions, patents, copyrights, trademarks, trade secrets and other intellectual and proprietary rights relating to the Products and Services. Sale of any Products by Acclaro Corporation does not confer upon Buyer a license under any patents, trade secrets, trademarks, or copyrights to combine any product furnished under these Terms with any other product or to modify any Product furnished under these Terms. (b) Buyer shall not, and shall not permit other to, reverse engineer any Product furnished under these Terms. (c) The design, development or production of Products and provision of Services under these Terms will not be deemed to be a “work made for hire” or “commissioned work” and Acclaro Corporation retains for itself all intellectual property and proprietary rights in and to all designs, engineering details, and other data and materials pertaining to any Products or Services supplied by Acclaro Corporation and to all discoveries, inventions, patents and other proprietary rights arising out of the work done by Acclaro Corporation in connection with the Products or Services or with any and all products developed by Acclaro Corporation as a result thereof, including the sole right to manufacture any and all such products and Buyer covenants and warrants it will not manufacture or engage to have manufactured such products. All mask sets, design tapes, documentation, and other data generated by Acclaro Corporation in the performance hereunder will remain the sole and exclusive property of Acclaro Corporation. Any designs, cells, circuits, devices, processes, or methods that are developed by Acclaro Corporation concurrently with the work performed under these Terms will be the sole and exclusive property of Acclaro Corporation, and Acclaro Corporation reserves the right to use such designs, cells, circuits, devices, processes, or methods for other customers, or license their use to others. Acclaro Corporation will retain title to, and possession of all tooling, material or equipment of any kind used in the manufacture, testing, or assembly of products furnished under these Terms. (d) Acclaro Corporation may, from time to time, solicit or accept suggestions, comments, or feedback (collectively “Feedback”) from Buyer regarding the Products or Services sold hereunder. Buyer hereby acknowledges and agrees that Acclaro Corporation may use any such Feedback for any purpose without owing compensation or any other obligation to Buyer. Acclaro Corporation shall be (and Buyer hereby acknowledges and agrees that Acclaro Corporation is) the sole and exclusive owner of any and all changes, improvements, or enhancements to (or relating to) the Products and Services, and any new or alternative products, services, designs, specifications, engineering details, discoveries, inventions, patents, copyrights, trademarks, trade secrets, and other related intellectual and proprietary rights, regardless of whether or to what extent any such Feedback contributed to the creation thereof.
- CONFIDENTIAL INFORMATION. All information provided by Acclaro Corporation to Buyer shall be deemed confidential information. All such confidential information of Acclaro Corporation will be treated as confidential pursuant to the terms of the applicable nondisclosure agreement, if any, between Acclaro Corporation and Buyer. If there is no nondisclosure agreement in place, all information that Buyer knows, or should know, is confidential to Acclaro Corporation, including, but not limited to, pricing and lead-time information, will remain the property of Acclaro Corporation and may be used, reproduced and disclosed by Buyer only to the extent necessary to use the applicable Products and Services purchased under and in accordance with these Terms and not used, reproduced, or disclosed for any other purpose. Any use or disclosure of confidential information of Acclaro Corporation by employees, agents, directors, officers, members or stockholders of Buyer will be attributed to Buyer for purposes hereof.
- SOFTWARE. Unless otherwise agreed to in a separate signed software license agreement between Acclaro Corporation and Buyer, the following terms and conditions will apply to software and firmware in all forms, including any documentation provided by Acclaro Corporation under these Terms (“Licensed Software”): (i) Acclaro Corporation retains full rights, title, and ownership including all patents, copyrights, trade secrets, trade names, trademarks, and other intellectual property rights in and to the Licensed Software; (ii) For standalone Licensed Software, subject to and conditioned on these Terms, Acclaro Corporation grants to Buyer a non-exclusive, nontransferable, non-sublicensable, limited license to internally use the Licensed Software as a development platform solely in connection with Acclaro Corporation products; (iii) For Licensed Software embedded in Acclaro Corporation products, subject to and conditioned on these Terms, Acclaro Corporation grants to Buyer a nonexclusive, limited license to use and distribute the Licensed Software (in machine code only) solely as incorporated in Acclaro Corporation products; (iv) Subject to mandatory applicable law, Buyer agrees not to engage in, and to take all reasonable steps to prevent, unauthorized use and disclosure of, including without limitation any effort to reverse engineer, disassemble, de-compile, modify, or otherwise attempt to derive the source code of any Licensed Software or any portion thereof; and (v) Buyer will not remove or destroy any trademark, copyright markings, legends, or notices placed upon or contained within the Licensed Software.
- LIMITATION OF LIABILITY. Acclaro Corporation will not be liable for any loss, damages or penalty resulting from delay in delivery of the products or performance of services when such delay is due to causes beyond the reasonable control of Acclaro Corporation, including without limitation, supplier delay, force majeure, act of God, labor unrest, fire, explosion, earthquake, acts of civil or military authority, pandemics, epidemics, floods, riots, wars, terrorism, sabotage, labor disputes, yield problems, governmental actions, or inability to obtain materials, components, energy, manufacturing services or facilities, or transportation on commercially reasonable terms. In any such event, the delivery date or date of performance will be deemed extended for a period equal to the delay or other longer reasonable time. (a) ACCLARO CORPORATION’S LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF THE TERMS AND/OR SALE WILL BE LIMITED TO REPAIR OR REPLACEMENT OF ANY DEFECTIVE PRODUCTS (OR REPERFORMANCE OF THE SERVICES) OR A REFUND OF THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES, AT ACCLARO CORPORATION’S SOLE OPTION, AS SET FORTH IN SECTION 8 ABOVE. (b) TO THE EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, IN NO EVENT WILL ACCLARO CORPORATION BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTED PRODUCTS OR SERVICES, NOR WILL ACCLARO CORPORATION BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR SPECIAL DAMAGES OR FOR LOST PROFITS OR LOSS OF BUSINESS WHETHER OR NOT ACCLARO CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS HOWEVER CAUSED, UNDER ANY LEGAL THEORY WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF ACCLARO CORPORATION ARISING OUT OF OR RELATED TO THE TERMS AND/OR SALE, EVEN IF ACCLARO CORPORATION IS APPRISED OF OR SHOULD HAVE KNOWN THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. (c) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, IN NO EVENT WILL ACCLARO CORPORATION’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR INDEMNITY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY BUYER TO ACCLARO CORPORATION HEREUNDER FOR THE PRODUCTS OR SERVICES ACTUALLY GIVING RISE TO SUCH LIABILITY (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN SUCH ACTION). THIS LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS TO BUYER FOR CLAIMS OR DAMAGES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. NO CLAIM, SUIT OR ACTION WILL BE BROUGHT AGAINST ACCLARO CORPORATION MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS TRANSPIRED. (d) BUYER ACKNOWLEDGES THAT ACCLARO CORPORATION HAS SET ITS PRICES AND FEES AND AGREED TO SELL PRODUCTS AND SERVICES TO BUYER IN RELIANCE UPON THE LIMITATIONS OF LIABILITY, DISCLAIMER OF WARRANTIES, EXCLUSION OF DAMAGES AND EXCLUSIVE REMEDIES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH ACCLARO CORPORATION WOULD NOT HAVE AGREED TO SELL PRODUCTS AND SERVICES TO BUYER. BUYER AGREES THAT SUCH PROVISIONS WILL SURVIVE AND APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. (e) NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, ACCLARO CORPORATION WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR EXCESS COSTS OF REPROCUREMENT.
- BREACH. Any one of the following acts by Buyer will constitute a material breach of Buyer’s obligations under these Terms: (a) Buyer fails to make payment for any Products or Services in full when due; (b) Buyer fails to accept conforming Products or Services supplied under these Terms; or (c) the filing of either a voluntary or involuntary petition in bankruptcy with respect to Buyer, Buyer’s insolvency or inability, or admission in writing of its inability, to pay its debts generally as they become due, Buyer’s application for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of a substantial part of its property, Buyer’s initiation of an out of court restructuring or wind down, or Buyer’s dissolution or liquidation in full or in part or an assignment for the benefit of creditors of Buyer. In the event of Buyer’s material breach, Acclaro Corporation may (in addition to any other rights or remedies provided herein or at law or in equity), by written notice to Buyer, terminate its obligations or any part thereof, without incurring any liability; provided, however, that with respect to a material breach due to subsection (c) above, such termination shall be automatic and effective without notice to Buyer. Buyer will pay all costs, including reasonable attorney’s fees, incurred by Acclaro Corporation in any action brought by Acclaro Corporation to collect payments owing or otherwise enforce its rights.
- EXTENDED SERVICE CONTRACTS. In the event that Buyer is purchasing an extended service contract from Seller, such as Ultraclear Advantage Program, then in addition to the provisions of Sections 1-16 hereof, the following terms shall also apply: (a) Acclaro Corporation’s service contract will not cover (in addition to the exclusions set forth above under Section 8) any defect or damage resulting from (i) unauthorized components and accessories manufactured or provided by anyone other than Acclaro Corporation,(ii) improper or inadequate maintenance, (iii) Buyer-supplied interfacing, (iv) operation outside the environmental specifications for the product, (v) improper site preparation and maintenance, unauthorized modification or misuse and (vii) damage as a result of external causes, such as force majeure type factors; (b) Replacement parts may be new or refurbished at Acclaro Corporation’s sole discretion; (c) Coverage shall only apply to the original purchaser of the Product at the physical location provided by the purchaser at the time such extended service contract is purchased; (d) Ultraclear Advantage Program contracts may only be purchased in 12 month increments, up to a maximum of 24 months; (e) such extended service contract does not include any warranty and Services provided under such contract are provided “AS IS,” “WITH ALL FAULTS,” and with no warranty whatsoever; and (f) Extended service contracts are non-refundable to the maximum amount allowed by law.
- TRAINING SERVICES In addition to all other terms and conditions set forth herein, this Section applies to paid training Services provided for any Products purchased under this Agreement: (a) Timing. Paid training must be taken within one (1) year of the purchase of the laser system and training service. Discounted training must be taken within six (6) months of the purchase of the applicable laser system and training service. (b) Payment. Payment is due in full at the time of registration. (c) Cancellation by Buyer. There is no cancellation or rescheduling fee where Buyer cancels or reschedules a training session more than twenty (20) business days prior to the scheduled training date. Amounts paid will be refunded to Buyer or credited toward the rescheduled session. Buyer will be charged a 25% fee for training services canceled or rescheduled between ten (10) and twenty (20) business days from the scheduled training date. In the event of cancellation, the remaining 75% will be refunded to Buyer. In the event of rescheduling, Seller will retain all funds and Buyer shall pay an additional 25% rescheduling fee in full prior to rescheduling. Buyer will not receive any credit or refund in any amount in the event of cancellation or rescheduling with fewer than ten (10) business days prior to the scheduled training date. (d) Cancellation by Acclaro Corporation. There is a minimum required number of trainees per course. Courses not meeting the attendance requirement are subject to cancellation. Acclaro Corporation will notify trainees of a course cancellation no fewer than fifteen (15) business days prior to course start date. At that time, alternative course dates or a priority position on the laser training course waiting list will be provided to the trainee. In general, Acclaro Corporation cannot guarantee that a course will proceed as scheduled. Plan travel accommodations accordingly. Acclaro Corporation accepts no financial responsibility in the event that a training course is canceled. (e) Certification. Certifications awarded for course completion are valid until trainee’s employment with Buyer terminates.