Terms & Conditions of Sale
THESE TERMS AND CONDITIONS GOVERN THE SALE OF ALL SIGMASENSEPRODUCTS AND SERVICES BY SIGMASENSE, LLC (“SIGMASENSE”) AND APPLY NOTWITHSTANDING ANY CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS IN ANY PURCHASE ORDER OR OTHER DOCUMENTS OR COMMUNICATIONS FROM BUYER. THESE TERMS AND CONDITIONS MAY ONLY BE WAIVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SIGMASENSE.
- Price And Taxes. Unless otherwise noted in writing by SigmaSense, all prices quoted shall be exclusive of all use, sales, excise, property and similar taxes or duties. Any such applicable tax, fee, or charge shall be paid by the Buyer, in addition to the prices quoted or invoiced.
- Payment Terms. Buyer shall make pre-payment by T/T prior to shipment date unless otherwise agreed in writing by SigmaSense. If in SigmaSense’s opinion Buyer’s financial condition is or becomes impaired or unsatisfactory or inadequate to meet Buyer’s obligations under these Terms and Conditions, SigmaSense may require advance cash payment or an irrevocable letter of credit from a U.S. Bank (in form and substance reasonably satisfactory to SigmaSense).
- Orders And Delivery Dates. All orders must be in writing and will be binding on SigmaSense only when accepted by SigmaSense in its sole discretion. All orders must include SigmaSense’s Product or part number, Buyer cost, quantity, ship to address, bill to address, shipping instructions, and net terms. SigmaSense may in its sole discretion, if Buyer requests delivery dates not in compliance with SigmaSense’s quoted lead times, specify an alternative delivery schedule. SigmaSense will use commercially reasonable efforts to comply with Buyer’s requested delivery dates and to deliver in accordance with such SigmaSense-specified delivery schedule; provided that SigmaSense shall not be liable for any losses arising from any delivery delays.
- Packing And Shipment. All SigmaSense Products shall be packed, if appropriate, for shipment and storage in accordance with standard commercial practices. All shipments shall be Ex Works (Incoterms 2010) Austin, Texas, USA, or an authorized SigmaSense facility. Buyer shall pay all customs charges, duties, transportation, freight and similar charges and special packing expenses. Title to the SigmaSense Products and risk of loss shall pass to Buyer at the Ex Works location. Delivery of a quantity that varies from the quantity ordered shall not relieve Buyer of the obligation to accept delivery and to pay for the SigmaSense Products delivered.
- Acceptance of Products and Product Returns. Inspection and acceptance of the SigmaSenseProducts shall be Buyer’s responsibility.Products rejected by Buyer on the basis of incoming inspection can be returned only upon SigmaSense’s written authorization in accordance with SigmaSense’s then current Return Material Authorization (RMA) process. If Buyer fails to notify SigmaSense in writing of its rejection, Buyer will be deemed to have accepted such Products subject to SigmaSense’s posted limited product warranty (as modified from time to time, the “Limited Warranty”). Any Product returned to SigmaSense without prior authorization for its return or proper packaging will be refused. All returns shall be in the original packaging or equivalent.
- Ownership of Intellectual Property. Although Buyer will own the SigmaSense Products that it purchases from SigmaSense in accordance with these Terms and Conditions, SigmaSense shall continue to own all right, title and interest in the intellectual property incorporated into, or associated with, the SigmaSense Products, including patents, copyrights and all other related intellectual property rights. Buyer shall not reverse engineer, de-compile or disassemble the SigmaSense Products.
- Changes And Cancellations. Buyer may cancel or reschedule current purchase orders provided that SigmaSense receives written notification at least ten (10) days prior to the scheduled ship date. Should Buyer fail to provide at least ten (10) days prior notice, SigmaSense may assess a fee equal to 15% (fifteen percent) of the net invoice price.
- Patent and Copyright Indemnification. SigmaSense shall, except as otherwise provided below, defend or settle at its own expense any claim made or any suit brought against Buyer so far as it is based on an allegation that any Product (other than certain third party products sold separately by SigmaSense) furnished hereunder infringes a U.S. patent or copyright, if notified promptly in writing and given the information and assistance reasonably requested by SigmaSense and the sole authority to defend or settle same. Subject to Section 10, if Buyer complies with these provisions, SigmaSense shall pay all damages and costs finally awarded to third parties against Buyer. SigmaSense shall not be liable for any settlement agreed to by Buyer without SigmaSense’s written consent.
In case a Product is or, in SigmaSense’s opinion, might be held to infringe, SigmaSense shall have the option, at its own expense, to procure for Buyer the right to continue using such Product, or replace or modify such Product to avoid infringement. If no other alternative is commercially reasonable, Buyer may return the affected Products in its inventory to SigmaSense and SigmaSense’s sole liability, in addition to its indemnification obligation, shall be to refund the amount paid for such returned Products.
Notwithstanding the foregoing, SigmaSense shall have no liability to Buyer for claims of patent or copyright infringement based upon or arising out of: (1) the inclusion of any Product into an allegedly infringing system or process where the SigmaSense Product alone would not be infringing; (2) modifications of the SigmaSense Products without SigmaSense’s consent; (3) the use of any Product other than in accordance with the specifications or documentation for such Product where the SigmaSense Product when used in accordance with the specifications or documentation would not be infringing; (4) compliance with designs, plans or specifications furnished by or on behalf of Buyer (or its customers) as to the SigmaSense Products or services, (5) failure of Buyer (or its customers) to use updated Products or services, including error corrections and updates, provided by SigmaSense for avoiding infringement, (6) a patent or copyright in which Buyer (or its customers) or affiliate or subsidiary of the Buyer (or its customers) has any direct or indirect interest by license or otherwise or (7) any other claim of infringement where the SigmaSense Products, standing alone and as delivered by SigmaSense, would not have given rise to such claim. Buyer shall hold SigmaSense harmless against any expense or loss resulting from infringement of patents or trademarks from compliance with Buyer’s designs, specifications or instructions.
The foregoing states the entire liability of SigmaSense to Buyer or any of Buyer’s customers or transferees for patent, copyright or other intellectual property infringement, or claims thereof, by Products furnished hereunder.
- Software. Buyer acknowledges and agrees that all software products obtained by Buyer from SigmaSense are proprietary to SigmaSense and its licensors and are subject to copyrights owned by SigmaSense and its licensors. Any references to “purchases” of software products signify only the purchase of a license to use the software product in question pursuant to the terms of SigmaSense’s End-User Product and License Agreement (as amended from time to time), a copy of which is available to Buyer and which is incorporated herein in its entirety by this reference. Buyer agrees to be bound by all of the terms of such End-User Product and License Agreement (as amended from time to time) and agrees that it will not acquire any rights with respect to a software product other than the right to use it pursuant to the terms of such End-User Product and License Agreement.
- Limited Warranty. All SigmaSense Products (other than certain third party products and software incorporated in the SigmaSense Products) are provided subject to the provisions of the SigmaSense Limited Warranty (as amended from time to time), a copy of which is available to Buyer and which is incorporated herein in its entirety by this reference. This limited warranty is exclusive and in lieu of all other warranties, and SIGMASENSEIS MAKING NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SIGMASENSE PRODUCTS AND SOFTWARE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FORA PARTICULAR PURPOSE,NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. The foregoing limitations shall apply even if the above-stated warranty fails of its essential purpose.
- Limitation Of Liability. IN NO EVENT SHALL SIGMASENSE BE LIABLE TO BUYER OR ANY OTHER ENTITY FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, REPUDIATION OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT SIGMASENSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SIGMASENSE’S LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS, OR OTHERWISE, EXCEED THE MONEY PAID TO SIGMASENSE FOR THE SIGMASENSE PRODUCTS OR SOFTWARE GIVING RISE TO THE LIABILITY UNDER THESE TERMS AND CONDITIONS OR ANY OTHER AGREEMENT DURING THE ONE (1) YEAR PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. The essential purpose of this provision is to limit the potential liability of SigmaSense arising out of the sale of Products to Buyer whether for breach of contract, negligence, or otherwise. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
- Indemnification. Buyer agrees to indemnify and hold SigmaSense and its officers, directors, employees and agents harmless from and against all third-party suits, actions, claims, losses, judgments, damages, costs and expenses (including reasonable attorneys’ fees) arising in connection with (a) Buyer’s actual or alleged breach of these Terms, Buyer’s use of any Product or software, except for those matters as to which SigmaSense bears sole responsibility as specifically provided herein and (c) Buyer’s negligence or willful misconduct.
- Import And Export Requirements. The SigmaSense Products, including technical data, may be subject to U.S. export control laws and regulations, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import laws and regulations in the Territory and other countries. Buyer shall, at its own expense, procure all licenses and other permits, pay all tariffs, customs charges, duties and similar fees, and take all other actions and strictly comply with all applicable laws and regulations required to accomplish the export, re-export and import of the SigmaSense Products. Buyer shall hold harmless and indemnify SigmaSense for any damages resulting from a breach of this paragraph by Buyer (or any of its customers).
- Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act and with SigmaSense’s established corporate policies regarding foreign business practices, Buyer and its employees and agents shall not directly or indirectly make an offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government within the Territory or the United States Government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Buyer or SigmaSense in obtaining, retaining or directing any such business.
- Customer Support Services. All SigmaSense Products (other than certain third-party products or chipsets sold separately by SigmaSense) are provided with customer support services in accordance with SigmaSense’s support terms (as modified from time to time, the “Support Terms”) . Buyer acknowledges and agrees that customer support services provided by SigmaSense are subject to and being provided in accordance with the Support Terms and which are incorporated herein in its entirety by this reference. Buyer agrees to be bound by the Support Terms.
(a) Failure by SigmaSense to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.
(b) No U.S. Government Procurement Regulations required to be included hereunder shall be binding on either party unless specifically agreed to in writing prior to incorporation herein.
(c) SigmaSense shall have the right to make substitutions and modifications in the specifications of Products provided that overall SigmaSense Product performance is not materially affected in form, fit or function.
(d) Nonperformance of either party, except for the obligation to make any payments of money, shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the nonperforming party.
(e) The agreement between Buyer and SigmaSense with respect to the matters described herein and all matters related to the sale and/or license of Products and/or services by SigmaSense to Buyer shall be in all respects governed by the laws of the State of Texas without regard to the conflicts of laws provisions thereof. The parties hereby agree that any dispute relating to the SigmaSense Products sold hereunder shall be subject to the exclusive jurisdiction of the federal and state courts in Travis County, Texas, and the parties agree to the personal and exclusive jurisdiction of these courts. The parties disclaim the United Nations Convention on Contracts for the International Sale of Goods, which shall not apply to this agreement or the parties’ performance hereunder. In the event that either party institutes any legal suit, action or proceeding against the other party arising out of or relating to these Terms and Conditions or the SigmaSense Products, the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.
(f) The terms and conditions set forth herein, including the order form, the Limited Warranty, the Support Terms and the End-User Product and License Agreement, shall constitute the entire agreement between SigmaSense and Buyer with respect to the matters described herein and all related matters with respect to the sale and/or license of Products, software and/or services by SigmaSense to Buyer and shall not be qualified or interpreted by any trade usage or prior course of dealing unless expressly authorized in writing by SigmaSense.
End-User Product and License Agreement
PLEASE READ CAREFULLY: THIS END-USER PRODUCT AND LICENSE AGREEMENT (“AGREEMENT”) AND THE TERMS AND CONDITIONS (OR OTHER APPLICABLE AGREEMENT) UNDER WHICH THE SIGMASENSE PRODUCT (ON WHICH THE SIGMASENSE SOFTWARE IS BEING PROVIDED OR IS EMBEDDED) WAS SOLD, LEASED OR OTHERWISE PROVIDED IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND/OR YOUR ORGANIZATION (“LICENSEE”), AND SIGMASENSE LLC (“SIGMASENSE”). USE OF THE SIGMASENSE PRODUCTS AND THE SIGMASENSE SOFTWARE ARE SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY APPLICABLE THIRD PARTY LICENSES.
BY CLICKING “I AGREE”, PURCHASING OR USING ANY OF THE SIGMASENSE PRODUCTS, USING THE SIGMASENSE SOFTWARE, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THIS AGREEMENT AND THE APPLICABLE THIRD PARTY LICENSES FOR AND ON BEHALF OF YOUR ORGANIZATION, AND ARE DOING SO, (B) YOU AND YOUR ORGANIZATION CAN LEGALLY ENTER INTO THIS AGREEMENT AND THE APPLICABLE THIRD PARTY LICENSES AND SATISFY ALL OF THEIR REQUIREMENTS AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU AND THE ORGANIZATION SHALL BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL MODIFICATIONS AND ADDITIONS PROVIDED FOR. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU SHALL BE PROHIBITED FROM USING THE SIGMASENSE SOFTWARE.
SigmaSense reserves the right to update and change, at any time and without notice, this End-User Product and License Agreement and all documents incorporated by reference. You can find the most recent version of this End-User Product and License Agreement at https://sigmasense.com/business-terms/. Your continued use of the SigmaSense Product and/or the SigmaSense Software after any such changes constitutes your acceptance of the new End-User Product and License Agreement.
IF YOU HAVE ANY QUESTIONS ABOUT THIS AGREEMENT, PLEASE CONTACT US AT:
SigmaSense LLC 3939 Bee Cave Road, Bldg A6 West Lake Hills, Austin, TX 78746 email@example.com
This Agreement shall be effective as of the Effective Date (as defined below). SigmaSense and Licensee agree that the following terms and conditions shall apply to all SigmaSense Products and SigmaSense Software. In consideration of the covenants and agreements contained herein, and other valuable consideration, the receipt and sufficiency of which are acknowledged, the parties hereby agree as follows:
- “Applicable Terms and Conditions” means SigmaSense’s Standard Terms and Conditions for Sale (or other applicable agreement) pursuant to which the SigmaSense Product was sold or otherwise provided to Licensee.
- “Data” means the files and data generated by use of the SigmaSense Products and/or SigmaSense Software.
- “Documentation” means the documentation provided by SigmaSense with the SigmaSense Products and/or Product Software.
- “Effective Date” means the earliest of (i) the date of shipment or other delivery of the SigmaSense Products, (ii) your agreement to this Agreement by clicking the “I AGREE” box or (iii) other indication of your acceptance of the terms of this Agreement.
- “Open Source Software” means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) the Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the Netscape Public License; (v) the Sun Community Source License (SCSL); (vi) the Sun Industry Standards License (SISL); (vii) the BSD License; and (viii) the Apache License.
- “Product Software” means, collectively, (i) the SigmaSense Software, (b) any Third Party Software and/or Open Source Software included with the SigmaSense Product and (c) any updates and upgrades provided from time to time by SigmaSense.
- “SigmaSense Product” means the board system solution or any chips developed by or on behalf of SigmaSense.
- “SigmaSense Software” means the software and other intellectual property developed or created by or on behalf of SigmaSense and included with the SigmaSense Product and the Documentation, for which the Licensee has acquired the right to use under this Agreement and any updates and upgrades provided from time to time by SigmaSense.
- “Third Party License” means any of the Third Party Software Licenses (as defined in Section 3(a)) or Open Source Licenses (as defined in Section 3(b)).
- “Third Party Licensor” means the licensor of any Third Party Software or Open Source Software.
- “Third Party Software” means any software or software component, module or package (other than Open Source Software) that contains, or is derived in any manner (in whole or in part) from, any software that is licensed or distributed by a Third-Party Licensor.
- Software Licensea. Licenses. Subject to the terms and conditions of this Agreement, SigmaSense grants to Licensee a non-exclusive, non-transferable, license (the “License”) to use (i) the Product Software on the SigmaSense Product to be incorporated into Licensee’s products or devices and not as a standalone product or technology, (ii) Data (including without limitation with the SigmaSense Product) solely for internal business purposes, and (c) the Documentation solely in connection with the use of the SigmaSense Product.b. Proprietary Rights Protection. This License confers no ownership rights to Licensee and is not a sale of any rights in the Product Software, the media on which the Product Software is recorded or printed, or the Data. Licensee does not acquire any rights, express or implied, in the Software, or the Data, other than those rights specified in this Agreement. SigmaSense or its Third Party Licensors shall own and retain ownership of all right, title, and interest in and to (i) the Product Software and any copies, modifications, enhancements, and derivative works thereof; (ii) the Data and any copies, modifications, enhancements, and derivative works thereof; (iii) any ideas, suggestions, or feedback relating to the Product Software, the SigmaSense Product and/or the Data provided by Licensee (“Feedback”); and (iv) all intellectual property rights embodied within the foregoing subparagraphs(i), (ii) and(iii). Licensee hereby irrevocably assigns and agrees to assign all of its right, title, and interest in and to any Feedback to SigmaSense. Licensee shall not copy, modify, adapt or merge copies of the Product Software or the Data except as provided in this Agreement. Licensee shall not translate, reverse engineer, de-compile or disassemble the Product Software (except to the extent that law explicitly prohibits this contractual restriction), use the Product Software in a service bureau or for the benefit of third parties, or use the Data directly or indirectly with a product that is competitive with SigmaSense’s proprietary products. Licensee will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices of SigmaSense and/or its Third Party Licensors appearing on the Product Software or other SigmaSense products. Licensee will reproduce such notices on all copies it makes of the Product Software. SigmaSense and its Third Party Licensors reserve all other rights and licenses in and to the Product Software not expressly granted to Licensee under this Agreement.c. High-Risk Activities. The SigmaSense Product and Product Software are not intended for use in connection with any high-risk activity, including, without limitation, air travel, space travel, fire fighting, police operations, power plant operation, military operations, rescue operations, hospital or medical operations, nuclear facilities or equipment, or the like. Licensee agrees not to use or allow the use of the SigmaSense Product or Product Software for or in connection with any such high-risk activity.d. Government Sales. If Licensee is a branch or agency of the United States Government or a contractor thereto, the following provision applies. The Product Software is comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and is provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policies set forth in 48 C.F.R. 12.212; or (ii) for acquisition on behalf of the department of defense consistent with the policies set for the in 48 C.F.R. 227.7202-1 and 227.7202-3 (in each case as amended or supplemented from time to time).e. Audit Rights. Licensee shall at all times keep reasonable records relating to its use of the Product Software and its compliance with the License granted herein and the applicable Third Party Licenses. Upon at least five (5) days’ prior written notice, a chartered or certified public accountant selected by SigmaSense may, during normal business hours, but no more often than once per year (unless a previous audit discovered a material breach of the terms of this Agreement), inspect Licensee’s records to confirm compliance with this Agreement (and the applicable Third Party Licenses).
- Third Party and Open Source Softwarea. Licensee hereby acknowledges that the Product Software may utilize or include Third Party Software that must be licensed under the specific license terms applicable to such Third Party Software. Acknowledgements, licensing terms, copyright notices, disclaimers and other terms applicable to such Third Party Software (the “Third Party Software Licenses”) are available at https://sigmasense.com/business-terms/. Licensee (a) acknowledges that any such Third Party Software License is solely between Licensee and the applicable Third Party Licensor of the Third Party Software and (b) shall comply with the terms of any such applicable Third Party License.b. Licensee hereby acknowledges that the Product Software may also utilize or include Open Source Software that must be licensed under the specific license terms applicable to such Open Source Software. Acknowledgements, licensing terms, copyright notices and disclaimers for such Open Source Software (the “Open Source Licenses”) are available at https://sigmasense.com/business-terms/. Licensee agrees to review any such Open Source Licenses and other related documentation in order to determine which portions of the Product Software are Open Source Software and are licensed under an Open Source License. To the extent any such Open Source License requires that SigmaSense provide Licensee the rights to copy, modify, distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to Licensee in this Agreement, then such rights in the applicable Open Source License shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such Open Source Software. Licensee (a) acknowledges that any such Open Source License is solely between Licensee and the applicable Third Party Licensor of the Open Source Software and (b) shall comply with the terms of any such applicable Open Source License. Open Source Software is distributed WITHOUT ANY WARRANTY, without even the implied warranty of MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Where the terms of an Open Source License entitles Licensee to the source code of any such Open Source Software, such source code is available under the terms of the applicable Open Source License by contacting SigmaSense at the address above and identifying the specific Open Source Software for which Licensee wants the source code.
- Installation, Training, Support and Other Services. SigmaSense shall be under no obligation to provide any services, whether relating to installation, training, support or otherwise, as a result of this Agreement (or any Third Party License).
- Warranty Customer Support Services.Licensee shall receive all SigmaSense Products and SigmaSense Software (other than certain third party products sold separately by SigmaSense) subject to SigmaSense’s Limited Warranty from date of shipment (as modified from time to time, the “SigmaSense Limited Warranty”) and customer support services in accordance with SigmaSence’s support terms (as modified from time to time, the “Support Terms”). Copies of the current SigmaSense Limited Warranty and Support Terms are located at [https://sigmasense.com/].
- Patent and Copyright Indemnification.SigmaSense shall indemnify, defend and hold harmless Licensee and Licensee’s officers, directors, employees, agents, permitted successors and permitted assigns (each, including Licensee, a “Licensee Indemnitee”) from and against any and all liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs as a result of any claim by a third party that the SigmaSense Software, when used in compliance with the terms of this Agreement and the Applicable Terms and Conditions, infringes any U.S. patent, copyright, trademark, trade secret, or other U.S. intellectual property right of any third party (IP Claim); provided that Licensee provides reasonable notice to SigmaSense, in writing, of any such IP Claim and promptly tenders the control of the defense and settlement of any such claim to SigmaSense at SigmaSense’s expense and with SigmaSense’s choice of counsel. Licensee shall cooperate with SigmaSense, at SigmaSense’ expense, in defending or settling such claim(s). The foregoing obligations do not apply to any IP Claim to the extent that it arises from any allegation of or relates to:(a) the inclusion of any SigmaSense Product and/or SigmaSense Software into an allegedly infringing system or process where the SigmaSense Product and/or SigmaSense Software alone would not be infringing;
(b) modifications of the SigmaSense Product and/or SigmaSense Software without SigmaSense’s consent;
(c) the use of any SigmaSense Product and/or SigmaSense Software other than in accordance with the Specifications or documentation for such SigmaSense Product and/or SigmaSense Software where the SigmaSense Product and/or SigmaSense Software when used in accordance with the Specifications or documentation would not be infringing;
(d) compliance with designs, plans or specifications furnished by or on behalf of Licensee (or its customers) as to the SigmaSense Product and/or SigmaSense Software or services;
(e) failure of Licensee (or its customers) to use updated SigmaSense Products and/or SigmaSense Software or services, including error corrections and updates, provided by SigmaSense for avoiding infringement;
(f) a patent or copyright in which Licensee (or its customers) or affiliate or subsidiary of the Licensee (or its customers) has any direct or indirect interest by license or otherwise; or
(g) any other claim of infringement where the SigmaSense Product and/or SigmaSense Software, standing alone and as delivered by SigmaSense, would not have given rise to such claim.Licensee shall hold SigmaSense harmless against any expense or loss resulting from infringement of patents or trademarks in compliance with Licensee’s designs, specifications or instructions.In case a SigmaSense Product or SigmaSense Software is or, in SigmaSense’s opinion, might be held to infringe, SigmaSense shall have the option, at its own expense, to procure for Licensee the right to continue using such SigmaSense Product and/or SigmaSense Software, or replace or modify such SigmaSense Product and/or SigmaSense Software to avoid infringement. If no other alternative is commercially reasonable, Licensee may return the affected SigmaSense Products and/or SigmaSense Software to SigmaSense and SigmaSense’s sole liability, in addition to its indemnification obligations set forth above, shall be to refund a prorata amount paid for such returned SigmaSense Products and/or SigmaSense Software.
- Warranty Disclaimer.EXCEPT FOR THE SIGMASENSE LIMITED WARRANTY, THE SIGMASENSE PRODUCTS, THE PRODUCT SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY SIGMASENSE ARE PROVIDED “AS IS.” SIGMASENSE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SIGMASENSE MAKES NO WARRANTY OF ANY KIND THAT THE SIGMASENSE PRODUCTS, THE PRODUCT SOFTWARE OR DOCUMENTATION, OR ANY OTHER SIGMASENSE OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET LICENSEE’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK) EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY SOFTWARE IS PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH THIRD-PARTY SOFTWARE. The foregoing limitations shall apply even if the above-stated warranty fails of its essential purpose.
- Limitation of Liability.a. SigmaSense’s liability under or for breach of the SigmaSense Limited Warranty shall be limited to the replacement or refund of the purchase price actually paid by the Licensee to SigmaSense for the SigmaSense Product and/or SigmaSense Software. IN NO EVENT SHALL SIGMASENSE BE LIABLE FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, REPUDIATION OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT SIGMASENSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SIGMASENSE’S LIABILITY ARISING OUT OF THIS AGREEMENT, THE APPLICABLE TERMS AND CONDITIONS, THE SIGMASENSE PRODUCTS, THE PRODUCT SOFTWARE, OR OTHERWISE EXCEED THE MONEY PAID TO SIGMASENSE FOR THE SIGMASENSE PRODUCTS GIVING RISE TO THE LIABILITY UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT DURING THE ONE (1) YEAR PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. THE FOREGOING CAP SHALL BE CUMULATIVE WITH, NOT IN ADDITION TO, ANY CAP PROVIDED IN THE APPLICABLE TERMS AND CONDITIONS. The essential purpose of this provision is to limit the potential liability of SigmaSense arising out of the sale and licensing of products and software to Licensee whether for breach of contract, negligence, or otherwise. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.b. THE PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES, AND, ABSENT SUCH ALLOCATION, SIGMASENSE WOULD NOT BE ABLE TO SUPPLY THE SIGMASENSE PRODUCTS OR THE PRODUCT SOFTWARE ON THE TERMS SET FORTH HEREIN. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
- Confidentiality.Licensee agrees, both during the term of this Agreement and for a period of five (5) years thereafter, to hold all information given to it by SigmaSense that is identified as confidential, and all information concerning the SigmaSense Products and/or Product Software that is not customarily and publicly available to an end user through use of the SigmaSense Products or Product Software (collectively, the “Confidential Information”), in confidence, and not to make the Confidential Information available in any form to any third party or to use the Confidential Information for any purpose other than the purposes described in this Agreement. Licensee agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement, including limiting disclosure to employees or other persons who have a need to know and who are subject to confidentiality agreements with terms no less restrictive than those set forth in this Section 9.This restriction on disclosure shall not apply to the extent that any Confidential Information (a) is or becomes a part of the public domain through no act or omission of Licensee; (b) was in Licensee’s lawful possession prior to the disclosure and had not been obtained by Licensee from SigmaSense; (c) is lawfully disclosed to Licensee by a third party without restriction on disclosure; or (d) is independently developed by Licensee by personnel not having access to the Confidential Information.In addition, Licensee may disclose Confidential Information as required by law or court order; provided that (a) Licensee provides SigmaSense with prior written notice of such obligation and the opportunity to oppose such disclosure or obtain a protective order; (b) Licensee only discloses such Confidential Information as is required to comply with such order or law and (c) no such disclosure shall otherwise exempt such Confidential Information from being treated as confidential under this Agreement.
- Term and Termination.
- a. Term. This Agreement shall commence on the Effective Date and shall continue in effect unless terminated in accordance with this Section 10.
- b. Termination for Breach. SigmaSense may terminate this Agreement in the event Licensee breaches the terms of this Agreement and such breach continues for thirty (30) days after receipt of notice from SigmaSense.
- c. Effects of Termination. In the event of immediate termination of the License, Licensee shall destroy or return immediately the SigmaSense Software and the Data and all copies thereof to SigmaSense as certified in writing by an officer of Licensee. Licensee shall also immediately cease all use of all SigmaSense Products.
- d. Survival. Upon termination of this Agreement, all of the parties’ respective rights and obligations hereunder shall cease, except that Sections 1, 2(b), 2(e), 3, 6, 7, 8, 9, 10(c), 10(d) and 11 shall survive any such termination.
- a. Export Restrictions. The SigmaSense Products, Product SigmaSense Software, the Data, and related information are subject to U.S. export control laws and regulations, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import laws and regulations in other countries. Licensee shall, at its own expense, procure all licenses and other permits, pay all tariffs, customs charges, duties and similar fees, and take all other actions and strictly comply with all applicable laws and regulations required to accomplish the export, re-export and import of the SigmaSense Products and/or Product Software. Licensee shall hold harmless and indemnify SigmaSense for any damages resulting from a breach of this Section 11(a).
- b. Notice. Any notice to be given hereunder shall be given in accordance with the Applicable Terms and Conditions.
- c. Force Majeure. Neither party will be responsible for delays and defaults due to war, strikes, fire, acts of God, labor or transportation difficulties, or any other cause beyond that party’s reasonable control.
- d. Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term.
- e. Assignment. Licensee shall not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of SigmaSense, and any such prohibited assignment shall be null and void. SigmaSense may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Licensee.
- f. Severability. In the event that any provision of this Agreement is found to be invalid, void or unenforceable, the parties agree that unless such provision materially affects the intent and purpose of this Agreement, such invalidity, voidability or unenforceability shall not affect the validity of this Agreement nor the remaining provisions hereof.
- g. Third-Party Beneficiaries. Licensee hereby acknowledges that there may be third-party beneficiaries to this Agreement. To the extent that this Agreement contains provisions that relate to the SigmaSense Products and/or the Product Software in which such third parties have an interest, such provisions are made expressly for the benefit of such third-party beneficiaries and are enforceable by such third-party beneficiaries in addition to being enforceable by SigmaSense.
- h. Governing Law. This Agreement shall be governed by the laws of the State of Texas, without regard to its conflict of law principles. The jurisdiction for any legal action shall be exclusively the state and federal courts in Travis County, Texas and each party consents to the exclusive jurisdiction and venue of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. In the event that either party institutes any legal suit, action or proceeding against the other party arising out of or relating to these Terms and Conditions, the SigmaSense Products or the Product Software, the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.
- i. Entire Agreement. This Agreement, the Applicable Terms and Conditions, the Limited Warranty and the Support Terms together constitute the entire agreement between the parties on the subject matter hereof and supersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. This Agreement may not be modified or waived orally and may be modified only in writing signed by duly authorized representatives of each party. In the event of a conflict between this Agreement and the Applicable Terms and Conditions, this Agreement shall control.
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