Legal
Signetik, LLC
TERMS OF SALE
For All Products
1. Warranties and Related Remedies.
1.1 Subject to Sections 8.1 through 1.4, 9 and 4 below, Signetik warrants to Buyer that each Product conforms to Signetik's published Specifications for such Product. This warranty lasts for twelve (12) months after the date Signetik or a Signetik-authorized distributor delivers the Product. Notwithstanding the foregoing, Signetik will not be liable for a nonconforming Product if:
(a) the nonconformity was caused by neglect, misuse, or mistreatment by an entity other than Signetik, including improper installation or testing, or for any Products that were altered or modified in any way by an entity other than Signetik;
(b) the nonconformity resulted from Buyer's design, specifications, or instructions for such Products or improper system design; or
(c) Buyer has not paid on time.
Testing and other quality control techniques are used to the extent Signetik deems necessary. Signetik does not necessarily test all parameters of each Product. Buyer's claims against Signetik under this Section 8 are void if Buyer fails to notify Signetik of any apparent defects in the Product within ten (10) business days after delivery, or of any hidden defects within ten (10) business days after the defect has been detected.
1.2 Signetik's sole liability will be at its option to repair or replace Products that fail to conform to the warranty set forth above, or credit Buyer's account for such Products. Signetik's liability under this warranty will be limited to Products that are returned during the warranty period to the address designated by Signetik and that are determined by Signetik not to conform to such warranty. If Signetik elects to repair or replace such Products, Signetik will have a reasonable time to complete such actions. Repaired Products will be warranted for the remainder of the original warranty period. Replaced Products will be warranted for a new full warranty period.
1.3 EXCEPT AS SET FORTH ABOVE, PRODUCTS (AS DEFINED IN THIS CONTRACT) ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” SIGNETIK DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY EPIDEMIC FAILURE WARRANTY OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
1.4 Signetik may provide Buyer technical, applications, or design advice (including reference designs), quality characterization, reliability data, or other services. Buyer agrees that providing these services does not expand or otherwise alter Signeitk's warranties as set forth above and no additional obligations or liabilities arise from Signetik providing such services or items. SIGNETIK PROVIDES ALL SERVICES AND ITEMS TO BUYER (OTHER THAN “PRODUCTS” DEFINED IN THIS CONTRACT) “AS IS” AND “WITH ALL FAULTS.” SIGNETIK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH SERVICES AND ITEMS, INCLUDING, BUT NOT LIMITED TO, ANY EPIDEMIC FAILURE WARRANTY OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
2. Buyer's Applications and Compliance.
2.1 General. Buyer is solely responsible for the design, validation, and testing of its applications as well as for compliance with all legal, regulatory, and safety-related requirements concerning its applications. Industry best practices generally require that Buyer conducts qualification tests on actual applications taking into account possible environmental and other conditions that Buyer's application may encounter. Buyer represents that, with respect to its applications, it has all the necessary expertise to create and implement safeguards that (1) anticipate dangerous consequences of failures, (2) monitor failures and their consequences, and (3) lessen the likelihood of failures that might cause harm, and to take appropriate remedial actions. Buyer agrees that prior to using or distributing any systems that include Products, Buyer will thoroughly test such systems and the functionality of such Products as used in such systems.
2.2 Industry Standards. Unless Signetik has explicitly designated an individual Product as meeting the requirements of a particular industry standard, Signetik is not responsible for any failure to meet such industry standard requirements.
2.3 Safety Requirements. Where Signetik specifically promotes Products as facilitating functional safety or as compliant with industry functional safety standards, such Products are intended to help enable customers to design and create their own applications that meet applicable functional safety standards and requirements. Using Products in an application does not by itself establish any safety features in the application. Buyer must ensure compliance with safety-related requirements and standards applicable to its applications.
2.4 Specifically Designated Qualification. Signetik may expressly designate certain Products as completing a particular qualification. Buyer agrees that it has the necessary expertise to select the Product with the appropriate qualification designation for its applications and that proper Product selection is at Buyer's own risk. Buyer is solely responsible for compliance with all legal and regulatory requirements in connection with such selection.
2.5 Life-Critical Medical. Buyer may not use any Products in life-critical medical equipment unless authorized officers of the parties have executed a special contract specifically governing such use. Life-critical medical equipment is medical equipment where failure of such equipment would cause serious bodily injury or death (e.g., life support, pacemakers, defibrillators, heart pumps, neurostimulators, and implantables). Such equipment includes, without limitation, all medical devices identified by the U.S. Food and Drug Administration as Class III devices and equivalent classifications outside the U.S.
2.6 Indemnification by Buyer. Buyer will fully indemnify Signetik and its representatives against any damages, costs, losses, and/or liabilities arising out of Buyer's non-compliance with Section 2.
3. Intellectual Property Indemnification.
3.1 Subject to Sections 1, 2, 3.2 through 3.5, and 4, Signetik will defend Buyer against any claim, suit, or proceeding brought against Buyer, insofar as such claim, suit, or proceeding is based on an allegation that Products manufactured and supplied by Signetik to Buyer directly infringe any United States, Canadian, Japanese, or European Union member country patent (excluding utility models), copyright, or trade secret (“Covered Claim”), and Signetik will pay any damages, losses, or costs (excluding consequential and exemplary damages) finally awarded against Buyer for a Covered Claim, or agreed to by Signetik as settlement or compromise of a Covered Claim.
Signetik has no obligation to defend or indemnify Buyer unless Buyer:
(a) promptly informs Signetik of the Covered Claim and furnishes Signetik a copy of the claim, suit, or proceeding,
(b) gives all evidence in Buyer's possession, custody, or control to Signetik, and
(c) gives Signetik reasonable assistance in and sole control of the defense thereof and all negotiations for its settlement or compromise. Buyer agrees to make available to Signetik the benefit of any defense available to Buyer to any Covered Claim hereunder, including, but not limited to, any license or option to license or sub-license any intellectual property right that is the subject of such Covered Claim. Buyer will be entitled to participate in its defense at its own expense with counsel of its own choosing.
3.2 If Signetik is obligated to defend Buyer pursuant to Section 7, Signetik may, but has no obligation to:
(a) obtain a license that allows Buyer to continue the use of the Products,
(b) if Buyer is enjoined from using the Products, replace or modify the Products so as to be non-infringing, but in a manner that does not materially affect the functionality of the Products, or
(c) if neither (a) nor (b) is available to Signetik at a commercially reasonable expense, then Signetik may stop selling the Products to Buyer without being in breach of this contract.
If Signetik elects to provide either of the options set forth in clauses (a) and (b) above, Signetik's obligation pursuant to Section 3.1 will be entirely fulfilled as to that Covered Claim, except for any damages, losses, or costs (excluding consequential and exemplary damages) incurred by Buyer prior to Signetik taking such action. If Signetik elects the option set forth in clause (c) above, Signetik's indemnity obligation under this contract will be entirely fulfilled, regardless of any additional claims, and Buyer will return to Signetik any and all Products remaining in Buyer's possession, custody, or control.
3.3 Signetik will have no liability or obligation under Sections 3.1 or 3.2:
(a) if Buyer has not purchased the Products subject to the Covered Claim within the thirty-six (36) months preceding the date Buyer informed Signetik of the Covered Claim,
(b) if Buyer has not fully and promptly paid in full for the Products subject to the Covered Claim,
(c) if the Covered Claim arose because Buyer or Buyer's customer brought a claim, suit, or proceeding against a third party,
(d) for any costs, losses, or damages resulting from Buyer's willful acts, or any settlement or compromise incurred or made by Buyer without Signetik's prior written consent, and
(e) to the extent that a Covered Claim is based upon:
i. Buyer's use of the Products in combination with any other Product, device, software, or equipment,
ii. Buyer's use of the Products in a process, including a manufacturing process
iii. Buyer's modifications to the Products,
iv. Signetik's compliance with Buyer's particular design, instructions, or specifications, or
v. Signetik's compliance with any industry or proprietary standard or Buyer's use of the Products to enable implementation of any industry or proprietary standard (such claims - i.e., those set forth in (i) through (v) above - are individually and collectively referred to herein as “Other Claims”).
3.4 Buyer will defend Signetik against any claim, suit, or proceeding brought against Signetik insofar as such claim, suit, or proceeding is based on Other Claims and Buyer will pay any damages, losses, or costs (excluding consequential and exemplary damages) finally awarded against Signetik for any Other Claims or agreed to by Buyer as settlement or compromise of any Other Claims. Signetik will be entitled to participate in its defense at its own expense with counsel of its own choosing.
3.5 THE FOREGOING STATES THE SOLE LIABILITY OF THE PARTIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, IN REGARD THERETO. BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING INTELLECTUAL PROPERTY INDEMNIFICATION TERMS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT, AND THAT IN THE ABSENCE OF SUCH TERMS, THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
4. Limitations and Damages Disclaimer.
4.1 General Limitations. IN NO EVENT WILL SIGNETIK BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS CONTRACT OR THE USE OF THE PRODUCTS, REGARDLESS OF WHETHER SIGNETIK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL, REWORK OR REINSTALLATION, ANCILLARY COSTS TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, RETESTING, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE, LOSS OF DATA, OR BUSINESS INTERRUPTION. NO CLAIM, SUIT, OR ACTION WILL BE BROUGHT AGAINST SIGNETIK MORE THAN TWELVE (12) MONTHS AFTER THE EVENT THAT GAVE RISE TO THE CAUSE OF ACTION HAS OCCURRED.
4.2 Specific Limitations. IN NO EVENT WILL SIGNETIK'S AGGREGATE LIABILITY FROM ANY USE OF A PRODUCT PROVIDED HEREUNDER, INCLUDING FROM ANY WARRANTY, INDEMNITY, OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT EXCEED THE TOTAL AMOUNT PAID TO SIGNETIK FOR THE PARTICULAR PRODUCTS AT ISSUE DURING THE PRIOR TWELVE (12) MONTHS WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THIS LIMIT.
4.3 BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
5. Non-Waiver of Default.
In the event of any default by Buyer, Signetik may decline to make further shipments. If Signetik elects to continue to make shipments, Signetik's action will not be a waiver of any such default or affect Signetik's legal remedies for any such default. Each shipment made under any order will be treated as a separate sale and transaction.
6. Governing Law and Venue.
This contract is governed by and interpreted in accordance with the laws of the State of Nebraska, without reference to conflict-of-laws principles. If for any reason a court of competent jurisdiction finds any provision of this contract to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties and the remainder of this contract will continue in full force and effect. This contract is not governed by the United Nations Convention on Contracts for the International Sale of Goods. Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to this contract lies within courts located in the State of Nebraska and consents to venue in Lancaster County, Nebraska. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court and Signetik may seek injunctive relief in any United States or foreign court.
7. Export Control.
7.1 Exports, re-exports, and transfers of Products are subject to U.S. export controls and sanctions, the most important of which are administered by the Commerce Department's Bureau of Industry and Security (“BIS”) under its Export Administration Regulations (“EAR”) (15 Code of Federal Regulations Parts 730-774) and the Treasury Department's Office of Foreign Assets Control (“OFAC”) under its Foreign Assets Control Regulations (31 Code of Federal Regulations Part 500). Buyer acknowledges and agrees that it will comply, and will ensure that its subsidiaries comply, with all applicable laws and regulations whenever it exports, re-exports, or transfers Products.
7.2 Buyer acknowledges and agrees that Products may not be sold, exported, re-exported, transferred, or resold to any U.S. embargoed, sanctioned, or restricted destinations as defined in EAR Supplement No. 1 to Part 740, Country Group E, or to any entities or enterprises listed in EAR Supplement No. 4 to Part 744, without prior authorization from BIS, OFAC, or any other responsible U.S. Government agency and in compliance with the EAR and any other applicable U.S. Government regulation. Buyer further acknowledges and agrees that Products may not be exported, re-exported, transferred, or resold to a person or entity barred by the U.S. Government (collectively, “Denied Persons”) from participating in export activities. Denied Persons include, but are not limited to, those individuals or entities listed on the Commerce Department's Denied Persons List, the Commerce Department's Entity List, the Directorate of Defense Trade Controls' List of Statutorily Debarred Parties, and the Treasury Department's List of Specially Designated Nationals. Buyer further agrees that it will not export, re-export, or transfer to the United States on Signetik's behalf or for Signetik's benefit any goods, services, or technology from any embargoed/sanctioned country or from any Denied Person that will be imported into the United States, directly or indirectly, without a required authorization from OFAC. The above lists of U.S. embargoed/sanctioned or restricted destinations, entities, or Denied Persons are subject to change.
Buyer also acknowledges and agrees to observe all other applicable restrictions concerning other end-uses/end-users according to other laws and regulations (e.g., European Commission regulations or any other national regulations). To the extent applicable, Buyer undertakes to refrain from the following transactions under all circumstances: (a) transactions involving persons, organizations, or institutions listed in any applicable sanctions list, (b) prohibited transactions involving embargoed countries, and (c) transactions subject to any license requirement for which the necessary export license has not been granted. 7.3 Buyer further agrees to obtain any necessary export authorization prior to the exportation, re-exportation, or transfer of any Product acquired from Signetik under this contract. Each party will secure, at its own expense, such authorization and export and import documents as are necessary for each respective party to fulfill its obligations under this contract. Further, Buyer will give notice of the need to comply with such laws and regulations to any person, firm, or entity which it has reason to believe is obtaining any such Product from Buyer with the intention of exportation. If government approvals cannot be obtained by Signetik, Signetik may terminate, cancel, or otherwise be excused from performing any obligations it may have under these terms.
7.4 Without limiting the generality of the foregoing, Buyer further agrees that Products may not be exported, re-exported, transferred, purchased, or resold for a military end-use or to a military end-user in a country listed in EAR Supplement No. 1 to Part 740, Country Group D1, without prior authorization from BIS, OFAC, or any other responsible U.S. Government agency and in compliance with the EAR and any other applicable U.S. Government regulation. The term “military end-use” means incorporation into a military item described on the U.S. Munitions List (“USML”) (22 Code of Federal Regulations Part 121, International Traffic in Arms Regulations) or the International Munitions List (“IML”) (as set out on the Wassenaar Arrangement website at www.wassenaar.org); or commodities classified under Export Control Classification Numbers (“ECCNs”) ending in “A018” or under “600 series” ECCNs. The term “military end-user” means the national armed services (e.g., army, navy, marine, air force, or coast guard), as well as the national guard and national police, government intelligence or reconnaissance organizations, or any person or entity whose actions or functions are intended to support a military end-use. Buyer further acknowledges and agrees that Products may not be exported, re-exported, transferred, or resold, directly or indirectly, for the design, development, fabrication, or use of nuclear, chemical, or biological weapons or missile technology without U.S. Government authorization.
7.5 Requests by Buyer for Signetik to provide assistance or services in connection with the integration of Products into any military end-use item must be approved in advance by Signetik in writing for export control purposes and Signetik's ability to provide any such assistance to Buyer is conditioned upon obtaining any U.S. government export authorization that may be required. Signetik is not obligated to provide such assistance or services.
7.6 Any Product export classification made by Signetik shall be for Signetik's internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such Product or whether an export authorization is required for the exportation of such Product.
7.7 If Buyer violates any of its obligations and commitments under Section 14, Signetik may terminate, cancel, or otherwise be excused from performing any obligations it may have under this contract. Buyer will fully indemnify Signetik and its representatives against any damages, costs, losses, and/or liabilities arising out of Buyer's non-compliance with Section 14. Section 14 will survive termination of this contract.
8. U.S. Government Contracts.
If Buyer intends to use Products in the performance of a U.S. Government contract or subcontract where Federal Acquisition Regulations, Defense Federal Acquisition Regulations Supplements, or other applicable government procurement rules or regulations (collectively, “Government Procurement Regulations”) will apply, Buyer will inform Signetik in writing of each applicable Government Procurement Regulation before Buyer submits an applicable purchase order for the Product. Unless otherwise agreed upon in writing and signed by Signetik, (i) no Government Procurement Regulations will apply, (ii) Signetik will not provide certified cost or pricing data, and (iii) Cost Accounting Standards, Defective Pricing, and Audit requirements will not apply.
9. Assignment and Third Party Beneficiaries.
This contract is not assignable by Buyer without Signetik's prior written consent. Any unauthorized assignment is null and void. No provision in this contract confers any benefits, rights, or remedies to any person other than Buyer or Signetik. Signetik's affiliates and subsidiaries may perform all or any part of Signetik's obligations under this contract.
10. Miscellaneous.
This contract constitutes the entire agreement between the parties relating to the sale of Products and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No addition to or modification or waiver of any provision of this contract will be binding upon Signetik unless made in writing and signed by a duly authorized Signetik representative. Electronic communications, including emails and/or social media communications, are not signed writings for purpose of this section. No course of dealing or trade usage or course of performance will be relevant to explain or supplement any term in this contract. These terms will prevail notwithstanding any different, conflicting, or additional terms that may appear on any purchase order or other writing not expressly incorporated herein, including, but not limited to, data sheets, application notes, purchase order acknowledgements, and online communications. The section headings contained in this contract are for reference purposes only and will not affect in any way the meaning or interpretation of this contract.
Purchases from Unauthorized Sources
For full warranty and support, customers must purchase Signetik products through Signetik's authorized sources. Signetik does not provide device authentication or support for products purchased outside of Signetik's authorized sources due to uncertainty regarding authenticity, storage and handling.
TERMS OF SALE
For All Products
1. Warranties and Related Remedies.
1.1 Subject to Sections 8.1 through 1.4, 9 and 4 below, Signetik warrants to Buyer that each Product conforms to Signetik's published Specifications for such Product. This warranty lasts for twelve (12) months after the date Signetik or a Signetik-authorized distributor delivers the Product. Notwithstanding the foregoing, Signetik will not be liable for a nonconforming Product if:
(a) the nonconformity was caused by neglect, misuse, or mistreatment by an entity other than Signetik, including improper installation or testing, or for any Products that were altered or modified in any way by an entity other than Signetik;
(b) the nonconformity resulted from Buyer's design, specifications, or instructions for such Products or improper system design; or
(c) Buyer has not paid on time.
Testing and other quality control techniques are used to the extent Signetik deems necessary. Signetik does not necessarily test all parameters of each Product. Buyer's claims against Signetik under this Section 8 are void if Buyer fails to notify Signetik of any apparent defects in the Product within ten (10) business days after delivery, or of any hidden defects within ten (10) business days after the defect has been detected.
1.2 Signetik's sole liability will be at its option to repair or replace Products that fail to conform to the warranty set forth above, or credit Buyer's account for such Products. Signetik's liability under this warranty will be limited to Products that are returned during the warranty period to the address designated by Signetik and that are determined by Signetik not to conform to such warranty. If Signetik elects to repair or replace such Products, Signetik will have a reasonable time to complete such actions. Repaired Products will be warranted for the remainder of the original warranty period. Replaced Products will be warranted for a new full warranty period.
1.3 EXCEPT AS SET FORTH ABOVE, PRODUCTS (AS DEFINED IN THIS CONTRACT) ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” SIGNETIK DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY EPIDEMIC FAILURE WARRANTY OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
1.4 Signetik may provide Buyer technical, applications, or design advice (including reference designs), quality characterization, reliability data, or other services. Buyer agrees that providing these services does not expand or otherwise alter Signeitk's warranties as set forth above and no additional obligations or liabilities arise from Signetik providing such services or items. SIGNETIK PROVIDES ALL SERVICES AND ITEMS TO BUYER (OTHER THAN “PRODUCTS” DEFINED IN THIS CONTRACT) “AS IS” AND “WITH ALL FAULTS.” SIGNETIK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH SERVICES AND ITEMS, INCLUDING, BUT NOT LIMITED TO, ANY EPIDEMIC FAILURE WARRANTY OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
2. Buyer's Applications and Compliance.
2.1 General. Buyer is solely responsible for the design, validation, and testing of its applications as well as for compliance with all legal, regulatory, and safety-related requirements concerning its applications. Industry best practices generally require that Buyer conducts qualification tests on actual applications taking into account possible environmental and other conditions that Buyer's application may encounter. Buyer represents that, with respect to its applications, it has all the necessary expertise to create and implement safeguards that (1) anticipate dangerous consequences of failures, (2) monitor failures and their consequences, and (3) lessen the likelihood of failures that might cause harm, and to take appropriate remedial actions. Buyer agrees that prior to using or distributing any systems that include Products, Buyer will thoroughly test such systems and the functionality of such Products as used in such systems.
2.2 Industry Standards. Unless Signetik has explicitly designated an individual Product as meeting the requirements of a particular industry standard, Signetik is not responsible for any failure to meet such industry standard requirements.
2.3 Safety Requirements. Where Signetik specifically promotes Products as facilitating functional safety or as compliant with industry functional safety standards, such Products are intended to help enable customers to design and create their own applications that meet applicable functional safety standards and requirements. Using Products in an application does not by itself establish any safety features in the application. Buyer must ensure compliance with safety-related requirements and standards applicable to its applications.
2.4 Specifically Designated Qualification. Signetik may expressly designate certain Products as completing a particular qualification. Buyer agrees that it has the necessary expertise to select the Product with the appropriate qualification designation for its applications and that proper Product selection is at Buyer's own risk. Buyer is solely responsible for compliance with all legal and regulatory requirements in connection with such selection.
2.5 Life-Critical Medical. Buyer may not use any Products in life-critical medical equipment unless authorized officers of the parties have executed a special contract specifically governing such use. Life-critical medical equipment is medical equipment where failure of such equipment would cause serious bodily injury or death (e.g., life support, pacemakers, defibrillators, heart pumps, neurostimulators, and implantables). Such equipment includes, without limitation, all medical devices identified by the U.S. Food and Drug Administration as Class III devices and equivalent classifications outside the U.S.
2.6 Indemnification by Buyer. Buyer will fully indemnify Signetik and its representatives against any damages, costs, losses, and/or liabilities arising out of Buyer's non-compliance with Section 2.
3. Intellectual Property Indemnification.
3.1 Subject to Sections 1, 2, 3.2 through 3.5, and 4, Signetik will defend Buyer against any claim, suit, or proceeding brought against Buyer, insofar as such claim, suit, or proceeding is based on an allegation that Products manufactured and supplied by Signetik to Buyer directly infringe any United States, Canadian, Japanese, or European Union member country patent (excluding utility models), copyright, or trade secret (“Covered Claim”), and Signetik will pay any damages, losses, or costs (excluding consequential and exemplary damages) finally awarded against Buyer for a Covered Claim, or agreed to by Signetik as settlement or compromise of a Covered Claim.
Signetik has no obligation to defend or indemnify Buyer unless Buyer:
(a) promptly informs Signetik of the Covered Claim and furnishes Signetik a copy of the claim, suit, or proceeding,
(b) gives all evidence in Buyer's possession, custody, or control to Signetik, and
(c) gives Signetik reasonable assistance in and sole control of the defense thereof and all negotiations for its settlement or compromise. Buyer agrees to make available to Signetik the benefit of any defense available to Buyer to any Covered Claim hereunder, including, but not limited to, any license or option to license or sub-license any intellectual property right that is the subject of such Covered Claim. Buyer will be entitled to participate in its defense at its own expense with counsel of its own choosing.
3.2 If Signetik is obligated to defend Buyer pursuant to Section 7, Signetik may, but has no obligation to:
(a) obtain a license that allows Buyer to continue the use of the Products,
(b) if Buyer is enjoined from using the Products, replace or modify the Products so as to be non-infringing, but in a manner that does not materially affect the functionality of the Products, or
(c) if neither (a) nor (b) is available to Signetik at a commercially reasonable expense, then Signetik may stop selling the Products to Buyer without being in breach of this contract.
If Signetik elects to provide either of the options set forth in clauses (a) and (b) above, Signetik's obligation pursuant to Section 3.1 will be entirely fulfilled as to that Covered Claim, except for any damages, losses, or costs (excluding consequential and exemplary damages) incurred by Buyer prior to Signetik taking such action. If Signetik elects the option set forth in clause (c) above, Signetik's indemnity obligation under this contract will be entirely fulfilled, regardless of any additional claims, and Buyer will return to Signetik any and all Products remaining in Buyer's possession, custody, or control.
3.3 Signetik will have no liability or obligation under Sections 3.1 or 3.2:
(a) if Buyer has not purchased the Products subject to the Covered Claim within the thirty-six (36) months preceding the date Buyer informed Signetik of the Covered Claim,
(b) if Buyer has not fully and promptly paid in full for the Products subject to the Covered Claim,
(c) if the Covered Claim arose because Buyer or Buyer's customer brought a claim, suit, or proceeding against a third party,
(d) for any costs, losses, or damages resulting from Buyer's willful acts, or any settlement or compromise incurred or made by Buyer without Signetik's prior written consent, and
(e) to the extent that a Covered Claim is based upon:
i. Buyer's use of the Products in combination with any other Product, device, software, or equipment,
ii. Buyer's use of the Products in a process, including a manufacturing process
iii. Buyer's modifications to the Products,
iv. Signetik's compliance with Buyer's particular design, instructions, or specifications, or
v. Signetik's compliance with any industry or proprietary standard or Buyer's use of the Products to enable implementation of any industry or proprietary standard (such claims - i.e., those set forth in (i) through (v) above - are individually and collectively referred to herein as “Other Claims”).
3.4 Buyer will defend Signetik against any claim, suit, or proceeding brought against Signetik insofar as such claim, suit, or proceeding is based on Other Claims and Buyer will pay any damages, losses, or costs (excluding consequential and exemplary damages) finally awarded against Signetik for any Other Claims or agreed to by Buyer as settlement or compromise of any Other Claims. Signetik will be entitled to participate in its defense at its own expense with counsel of its own choosing.
3.5 THE FOREGOING STATES THE SOLE LIABILITY OF THE PARTIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, IN REGARD THERETO. BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING INTELLECTUAL PROPERTY INDEMNIFICATION TERMS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT, AND THAT IN THE ABSENCE OF SUCH TERMS, THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
4. Limitations and Damages Disclaimer.
4.1 General Limitations. IN NO EVENT WILL SIGNETIK BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS CONTRACT OR THE USE OF THE PRODUCTS, REGARDLESS OF WHETHER SIGNETIK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL, REWORK OR REINSTALLATION, ANCILLARY COSTS TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, RETESTING, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE, LOSS OF DATA, OR BUSINESS INTERRUPTION. NO CLAIM, SUIT, OR ACTION WILL BE BROUGHT AGAINST SIGNETIK MORE THAN TWELVE (12) MONTHS AFTER THE EVENT THAT GAVE RISE TO THE CAUSE OF ACTION HAS OCCURRED.
4.2 Specific Limitations. IN NO EVENT WILL SIGNETIK'S AGGREGATE LIABILITY FROM ANY USE OF A PRODUCT PROVIDED HEREUNDER, INCLUDING FROM ANY WARRANTY, INDEMNITY, OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT EXCEED THE TOTAL AMOUNT PAID TO SIGNETIK FOR THE PARTICULAR PRODUCTS AT ISSUE DURING THE PRIOR TWELVE (12) MONTHS WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THIS LIMIT.
4.3 BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.
5. Non-Waiver of Default.
In the event of any default by Buyer, Signetik may decline to make further shipments. If Signetik elects to continue to make shipments, Signetik's action will not be a waiver of any such default or affect Signetik's legal remedies for any such default. Each shipment made under any order will be treated as a separate sale and transaction.
6. Governing Law and Venue.
This contract is governed by and interpreted in accordance with the laws of the State of Nebraska, without reference to conflict-of-laws principles. If for any reason a court of competent jurisdiction finds any provision of this contract to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties and the remainder of this contract will continue in full force and effect. This contract is not governed by the United Nations Convention on Contracts for the International Sale of Goods. Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to this contract lies within courts located in the State of Nebraska and consents to venue in Lancaster County, Nebraska. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court and Signetik may seek injunctive relief in any United States or foreign court.
7. Export Control.
7.1 Exports, re-exports, and transfers of Products are subject to U.S. export controls and sanctions, the most important of which are administered by the Commerce Department's Bureau of Industry and Security (“BIS”) under its Export Administration Regulations (“EAR”) (15 Code of Federal Regulations Parts 730-774) and the Treasury Department's Office of Foreign Assets Control (“OFAC”) under its Foreign Assets Control Regulations (31 Code of Federal Regulations Part 500). Buyer acknowledges and agrees that it will comply, and will ensure that its subsidiaries comply, with all applicable laws and regulations whenever it exports, re-exports, or transfers Products.
7.2 Buyer acknowledges and agrees that Products may not be sold, exported, re-exported, transferred, or resold to any U.S. embargoed, sanctioned, or restricted destinations as defined in EAR Supplement No. 1 to Part 740, Country Group E, or to any entities or enterprises listed in EAR Supplement No. 4 to Part 744, without prior authorization from BIS, OFAC, or any other responsible U.S. Government agency and in compliance with the EAR and any other applicable U.S. Government regulation. Buyer further acknowledges and agrees that Products may not be exported, re-exported, transferred, or resold to a person or entity barred by the U.S. Government (collectively, “Denied Persons”) from participating in export activities. Denied Persons include, but are not limited to, those individuals or entities listed on the Commerce Department's Denied Persons List, the Commerce Department's Entity List, the Directorate of Defense Trade Controls' List of Statutorily Debarred Parties, and the Treasury Department's List of Specially Designated Nationals. Buyer further agrees that it will not export, re-export, or transfer to the United States on Signetik's behalf or for Signetik's benefit any goods, services, or technology from any embargoed/sanctioned country or from any Denied Person that will be imported into the United States, directly or indirectly, without a required authorization from OFAC. The above lists of U.S. embargoed/sanctioned or restricted destinations, entities, or Denied Persons are subject to change.
Buyer also acknowledges and agrees to observe all other applicable restrictions concerning other end-uses/end-users according to other laws and regulations (e.g., European Commission regulations or any other national regulations). To the extent applicable, Buyer undertakes to refrain from the following transactions under all circumstances: (a) transactions involving persons, organizations, or institutions listed in any applicable sanctions list, (b) prohibited transactions involving embargoed countries, and (c) transactions subject to any license requirement for which the necessary export license has not been granted. 7.3 Buyer further agrees to obtain any necessary export authorization prior to the exportation, re-exportation, or transfer of any Product acquired from Signetik under this contract. Each party will secure, at its own expense, such authorization and export and import documents as are necessary for each respective party to fulfill its obligations under this contract. Further, Buyer will give notice of the need to comply with such laws and regulations to any person, firm, or entity which it has reason to believe is obtaining any such Product from Buyer with the intention of exportation. If government approvals cannot be obtained by Signetik, Signetik may terminate, cancel, or otherwise be excused from performing any obligations it may have under these terms.
7.4 Without limiting the generality of the foregoing, Buyer further agrees that Products may not be exported, re-exported, transferred, purchased, or resold for a military end-use or to a military end-user in a country listed in EAR Supplement No. 1 to Part 740, Country Group D1, without prior authorization from BIS, OFAC, or any other responsible U.S. Government agency and in compliance with the EAR and any other applicable U.S. Government regulation. The term “military end-use” means incorporation into a military item described on the U.S. Munitions List (“USML”) (22 Code of Federal Regulations Part 121, International Traffic in Arms Regulations) or the International Munitions List (“IML”) (as set out on the Wassenaar Arrangement website at www.wassenaar.org); or commodities classified under Export Control Classification Numbers (“ECCNs”) ending in “A018” or under “600 series” ECCNs. The term “military end-user” means the national armed services (e.g., army, navy, marine, air force, or coast guard), as well as the national guard and national police, government intelligence or reconnaissance organizations, or any person or entity whose actions or functions are intended to support a military end-use. Buyer further acknowledges and agrees that Products may not be exported, re-exported, transferred, or resold, directly or indirectly, for the design, development, fabrication, or use of nuclear, chemical, or biological weapons or missile technology without U.S. Government authorization.
7.5 Requests by Buyer for Signetik to provide assistance or services in connection with the integration of Products into any military end-use item must be approved in advance by Signetik in writing for export control purposes and Signetik's ability to provide any such assistance to Buyer is conditioned upon obtaining any U.S. government export authorization that may be required. Signetik is not obligated to provide such assistance or services.
7.6 Any Product export classification made by Signetik shall be for Signetik's internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such Product or whether an export authorization is required for the exportation of such Product.
7.7 If Buyer violates any of its obligations and commitments under Section 14, Signetik may terminate, cancel, or otherwise be excused from performing any obligations it may have under this contract. Buyer will fully indemnify Signetik and its representatives against any damages, costs, losses, and/or liabilities arising out of Buyer's non-compliance with Section 14. Section 14 will survive termination of this contract.
8. U.S. Government Contracts.
If Buyer intends to use Products in the performance of a U.S. Government contract or subcontract where Federal Acquisition Regulations, Defense Federal Acquisition Regulations Supplements, or other applicable government procurement rules or regulations (collectively, “Government Procurement Regulations”) will apply, Buyer will inform Signetik in writing of each applicable Government Procurement Regulation before Buyer submits an applicable purchase order for the Product. Unless otherwise agreed upon in writing and signed by Signetik, (i) no Government Procurement Regulations will apply, (ii) Signetik will not provide certified cost or pricing data, and (iii) Cost Accounting Standards, Defective Pricing, and Audit requirements will not apply.
9. Assignment and Third Party Beneficiaries.
This contract is not assignable by Buyer without Signetik's prior written consent. Any unauthorized assignment is null and void. No provision in this contract confers any benefits, rights, or remedies to any person other than Buyer or Signetik. Signetik's affiliates and subsidiaries may perform all or any part of Signetik's obligations under this contract.
10. Miscellaneous.
This contract constitutes the entire agreement between the parties relating to the sale of Products and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No addition to or modification or waiver of any provision of this contract will be binding upon Signetik unless made in writing and signed by a duly authorized Signetik representative. Electronic communications, including emails and/or social media communications, are not signed writings for purpose of this section. No course of dealing or trade usage or course of performance will be relevant to explain or supplement any term in this contract. These terms will prevail notwithstanding any different, conflicting, or additional terms that may appear on any purchase order or other writing not expressly incorporated herein, including, but not limited to, data sheets, application notes, purchase order acknowledgements, and online communications. The section headings contained in this contract are for reference purposes only and will not affect in any way the meaning or interpretation of this contract.
Purchases from Unauthorized Sources
For full warranty and support, customers must purchase Signetik products through Signetik's authorized sources. Signetik does not provide device authentication or support for products purchased outside of Signetik's authorized sources due to uncertainty regarding authenticity, storage and handling.