The following terms and conditions are an integral part of the purchase order. By shipping the goods ordered or by performing the work requested, seller agrees to the specifications, terms and conditions of purchase as set forth on the purchase order and on any sheets of additional specifications, terms and conditions attached to and referenced on the purchase order. Any difference in seller’s terms and conditions in acceptance of this offer are denied unless agreed upon in writing prior to acceptance of the purchase order.
Unless otherwise specified in the P.O, the following general requirements shall apply:
INVOICES. Seller will submit invoices in duplicate showing the following information: P.O. number; item number; description of item; size of item; quantity of item; unit prices; each applicable tax; extended totals; and any other information specified elsewhere herein. A Bill of Lading or express receipt must accompany each invoice. Payment of invoice will not constitute acceptance of goods and will be subject to adjustment for errors, shortages, and defects in the goods or other failure of Seller to meet the requirements of this P.O. Buyer may at any time set off any amount owed by Buyer to Seller against any amount owed by Seller or any of its affiliated companies to Buyer.
PRICES AND TAXES. The acceptance of this P.O. constitutes a warranty that the prices to be charged for articles or services ordered do not exceed the lowest price charged to any other customer for similar quantities and delivery requirements. Unless otherwise specified, the prices set forth in this P.O. include all applicable federal, state, and local taxes.
DISCOUNTS. Time in connection with any discount offered by Seller will be computed from the latest of (i) the scheduled delivery date, (ii) the date of actual delivery, or (iii) the date an acceptable invoice is received. For the purpose of earning the discount, payment will be deemed to have been made on the date of mailing of Buyer's check.
INCOTerms. Unless otherwise specifically provided on the face of this order, the products ordered hereunder will be delivered on a delivery duty unpaid - destination basis.
Change in Approved Processes, Materials or Procedures: Supplier shall not change any process, material or procedure without prior written approval by Kontron America, Inc., Supplier shall not change any process, material or procedure from that used to qualify material without prior notification to Kontron America, Inc. and approval by Kontron America, Inc.
Facility Change: Suppliers and subtier suppliers are prohibited from relocating any production, manufacturing, and/or processing facilities during performance of a Kontron America, Inc. P.O. without prior notification to Kontron America, Inc. This affords Kontron America, Inc. an opportunity to examine such facilities for compliance with Quality Assurance requirements, including any necessary approvals.
In the event of a conflict in requirements between technical documents, the following order of precedence shall prevail:
3rd Specifications cited on the drawings
Note: Contact Kontron America, Inc. buyer regarding any questions regarding the order. The Configuration Requirements specified in the P.O. will contain applicable drawing, associated revision levels and supplemental drawing data as applicable.
Supplier agrees pursuant to receipt of a written request, to provide access to their facilities on a noninterference basis to Kontron America, Inc., Kontron’s customers, regulatory authorities and the US Government for review and source inspection purposes. The supplier further agrees to flow this clause down to their sub-tier suppliers.
The Supplier shall flow down all relevant P.O. and quality requirements imposed by Kontron America, Inc. to any sub-tier supplier in performance of the order.
If this P.O. is issued for any purpose that is either directly or indirectly connected with the performance of a prime contract with the government or a subcontract thereunder, the terms that the Federal Acquisition Regulations or DFARs or other appropriate regulations required to be inserted in contracts or subcontracts will be deemed to apply to this P.O.
Supplier shall meet all scheduled delivery dates as specified on Kontron America, Inc. P.O. If the Supplier becomes aware of any circumstances that delay confirmed delivery dates, the Supplier shall immediately notify the Buyer in writing including all relevant details for the delay. Receipt by buyer of such notice will not constitute a waiver of the due dates herein The Supplier shall seek authorization from Kontron America, Inc. if they wish to deliver any material more than five days earlier than the confirmed delivery date. Shipments received earlier than five working days (unless authorized on the P.O.) or more than two days after the confirmed delivery date may have a negative effect on the Supplier’s performance rating. In case of delay in delivery without proper notification, Kontron America, Inc. reserves the right to cancel the P.O. without liability to Kontron America, Inc. or any other third party. Unauthorized over shipments and early shipments may be returned at Supplier’s expense. Supplier shall be liable for all storage/handling charges incurred as a result of over shipments and early shipments.
Notwithstanding any prior inspection or payments, all goods will be subject to final inspection and acceptance at Kontron America, Inc. If any item is defective in material or workmanship, or otherwise nonconforming with the requirements of this order, Buyer reserves the right to reject, and require repair, replacement or potentially accept under concession with an adjustment in price.
Kontron America, Inc. reserves the right to use the latest ANSI/ASQ Z1.4 or other appropriate sampling plan based on c=0 for the acceptance or rejection of product. If the Supplier uses the latest ANSI/ASQ Z1.4 or other appropriate sampling plan and the sample contains rejected items, the Supplier shall perform 100% inspection for the rejected feature or parameter to ensure that zero defects are present. Rejection of a lot shall constitute 100% inspection of product for any non-conformances.
The Supplier must be able to maintain a Quality System that meets industry standards and ensures adequate product conformance and appropriate objective evidence to meet usual business responsibilities. Suppliers shall maintain a Quality System that meets ISO 9001 (current revision) or AS9100 (current revision). The Supplier shall notify Buyer within two working days if any ISO, AS, or NADCAP certifications are revoked or suspended. Notification of change of certification status (such as an upgrade) is required. New or updated certifications are to be sent to Purchasing2@us.kontron.com.
The Supplier and subtier suppliers shall provide prompt written notification to Kontron America, Inc. when nonconforming material, products or processes are discovered. The following email address shall be used for submittal Purchasing2@us.kontron.com. The Supplier shall not ship nonconforming material or product without a written waiver from Kontron America, Inc. Upon authorization to ship, the nonconforming product must be identified as nonconforming by the Supplier before shipment and all documentation related to the nonconforming product shall accompany the product.
Material rejected by Kontron America, Inc. and subsequently returned to Kontron America, Inc. shall be clearly and properly identified as returned / reworked articles. Supplier’s shipping document shall contain a statement that articles are replacement or reworked articles.
Seller warrants that all goods delivered (i) will be free from defects in workmanship, material, and manufacture, (ii) will comply with the requirements of this P.O., including any drawings or specifications incorporated herein or samples furnished by Seller, and (iii) where design is Seller's responsibility, will be free from defects in design. Seller further warrants that all goods purchased hereunder will be of merchantable quality and will be fit for the purposes intended by Buyer. The foregoing warranties constitute conditions to this P.O. They are in addition to all other warranties, whether express or implied, and will survive any delivery, inspection, acceptance or payment by Buyer. All warranties run to the benefit of Buyer and its customers. Buyer's approval of Seller's materials or design will not relieve Seller of any warranties. If any goods delivered do not meet the warranties specified herein or otherwise applicable, Buyer may, at its option, (i) require Seller to correct any defective or nonconforming goods by repair or replacement at no cost to Buyer, or (ii) return such defective or nonconforming goods to Seller at Seller's expense and recover from Seller the order price thereof, or (iii) correct the defective or nonconforming goods itself and charge Seller with the cost of such correction. The warranty shall cover a minimum period of 24 months following final acceptance.
CHANGE ORDERS. The Buyer may at any time, by a written order, suspend performance hereunder, increase or decrease the ordered quantities, change the due date or make changes in any one or more of the following: applicable drawings, designs or specifications; method of shipment or packing; and/or place of delivery.
CANCELLATION FOR DEFAULT. It is understood and agreed that time is of the essence for this order because the goods or services ordered herein are needed for products of Buyer that have a very short, carefully timed market life; failure of Seller to deliver on the due date could cause Buyer's products to be unmarketable. Buyer may, by written notice, cancel this order in whole or in part if, in Buyer's good faith opinion, Seller (i) has failed to make delivery of the items or to perform the services within the time specified herein, or any extension thereof by written change order or amendment; or (i) has failed to replace or correct defective items in accordance with the provisions of Items 7 or 8 above; or (iii) has failed to perform any of the other provisions of this P.O.; or (iv) has so failed to made progress under this P.O. as to endanger performance in accordance with its terms. If this P.O. is cancelled for Seller's default, Buyer may procure, upon such terms and in such manner as Buyer may deem appropriate, goods or services similar or substantially similar to those cancelled. Seller will then be liable to Buyer for any excess costs occasioned thereby. Nothing in this Item 13 (B) is intended to excuse Seller from proceeding with any uncancelled portion of this P.O.
TERMINATION FOR CONVENIENCE. At any time for convenience, Buyer may terminate work under this P.O., in whole or in part, by written or telegraphic notice. Upon such termination, Seller will, to the extent and at the times specified by Buyer, stop all work under this P.O., place no further orders for materials to complete the work, assign to Buyer all Seller's interest under terminated subcontracts and orders, settle all claims thereunder after obtaining Buyer's approval, protect all property in which Buyer has or may acquire an interest, and transfer title and make delivery to Buyer of all articles, materials, work in process, and other things held or acquired by Seller in connection with the terminated portion of this P.O..
The failure of Buyer to enforce at any time any of the provisions of this P.O., to exercise any election or option provided herein, or to require at any time the performance by Seller of any of the provisions herein will not in any way be construed to be a waiver of such provisions.
Kontron America, Inc. may refuse items delivered under the P.O. if the Supplier fails to submit the required documentation, e.g. test data or reports, as specified in the P.O. A copy of documentation shall be available upon Kontron America, Inc. request.
Neither surveillance, inspection and/or tests made by Kontron America, Inc. or their representatives at either the Supplier’s facility or Kontron America, Inc. facility shall relieve the Supplier of the responsibility to furnish items which conform to the requirements of the P.O.
Materials supplied must be identifiable by lot number, material type, specification and applicable revision, etc., and traceable to records of acceptance. Material fabricated by the Seller shall be identified to the lot of materials used. When two or more parts are joined in an assembly, Seller shall prepare an assembly parts list identifying each part in the assembly by part number and serial number, and the lot number of material from which manufactured if fabricated by the Seller, or lot control number when the part is a purchased item. For raw materials, this clause applies to identification and traceability of materials to lot number, manufacturing and inspection processes, test results, and records of acceptance. Conformance by Seller's suppliers to traceability requirements of the P.O., drawing, and/or specifications, shall be the responsibility of the Seller.
All items delivered on this order must be adequately preserved, packaged, handled, and contained to prevent deterioration and damage during shipment. The shipping method should ensure safe arrival at the intended destination in accordance with best commercial practices unless special packaging and shipping instructions are specified by the P.O., drawing, or specification. Special packaging/handling instructions may include, but are not limited to, unique marking requirements, special material traceability, or use of custom or reusable containers. If the shipment contains multiple processed lots/batches/date codes, then each processed lot/batch/date code must be segregated and clearly identified to maintain complete traceability in each shipment.
When a quality problem exists, Kontron America, Inc. may request corrective action from the Supplier (Supplier Corrective/Preventive Action Request). Such request shall be responded to in the specified time listed on the SCAR as due date and shall include the following information:
When a formal Supplier Corrective Action Request (SCAR) is submitted to the Supplier, the Supplier shall use Kontron America, Inc.’s form. Supporting objective evidence is required to be part of the SCAR’s response.
When items delivered under the P.O. are Electrostatic Discharge Sensitive (ESDS), the Supplier shall have an ESD control program in place which prevents ESD damage during all phases of fabrication, testing, handling, storage, and packaging for delivery. Nonmanufacturing Distributors shall handle, store, package and identify such items under an ESD control program which ensures continuation of the manufacturer’s ESD control program. Shipping containers shall have prominent marking/identification which identifies contents as ESD sensitive.
Supplier shall maintain a FOD prevention program to ensure products or deliverables are manufactured in accordance with drawings or specifications and free from foreign object damage or debris. National Aerospace Standard NAS-412 shall be used as a guideline to comply with this requirement. The supplier shall inspect deliverables for foreign objects/debris and shall certify that such items are free from any foreign materials that could result in FOD. The sellers FOD Control Program shall be documented and effective. This requirement shall be flown down to sub-tier suppliers wherever applicable to prevent entry of FOD into the deliverable product.
The Supplier’s personnel performing work on Kontron America, Inc. products and services shall be adequately trained to assure that their skills and competency levels will result in products that meet all contract requirements.
In addition, supplier shall ensure that employees are aware of:
Counterfeit parts are of special concern to Kontron America. A counterfeit prevention system shall meet the requirements of AS6081, AS5553 and shall be in accordance with DFARS 252.246. If suspect/counterfeit parts are furnished under this P.O. or are found in any of the goods delivered to KAI they will be impounded by the Buyer. The Seller shall be liable for all costs, including but not limited to Buyer's internal and external costs, relating to the removal and replacement of said parts. To avoid or lesson the possibility of the inadvertent use of counterfeit parts, the Seller shall only purchase components and parts procured directly from the Original Equipment Manufacturer (OEMs), through the OEM's authorized distributor chain, or if through an independent Distributor, Seller must make available to Buyer (if Buyer requests) OEM documentation that authenticates traceability of the components to the applicable OEM.
Supplier shall maintain and make available to Kontron America, Inc. all records for, or related to, Kontron America, Inc. products. Records must be retained at least ten (10) years following Kontron America, Inc.’s final payment under its prime contract unless otherwise specified. Accordingly, the Supplier shall receive written approval from a Kontron America, Inc. Authorized Representative prior to destroying any of these records.
Contractors must provide adequate security for covered contractor information systems," to include implementing the security controls of National Institute of Standards and Technology (NIST) SP 800-171, as soon as practical but no later than Dec 31, 2017. A "covered contractor information system" is defined as an unclassified system that is owned, or operated by or for, a contractor and that processes, stores, or transmits covered defense information. Please refer to DFAR 252.204-7012 Safeguarding Covered Defense Information and Cyber Incident Reporting
Supplier agrees to comply with all US Laws and Kontron America, Inc.’s policy relevant to usage, restrictions of conflict materials sourced from the Democratic Republic of the Congo (DRC) or adjoining countries. For more detailed information, please refer to our website at: https://www.kontron.com/about-kontron/corporate-responsibility/material-declaration/conflict-minerals-faq
Suppliers are expected to establish a comprehensive crisis management/business continuity approach to address potential disruptions and disasters. The approach should include plan of action, checklist of activities, communication plans, escalation procedures, and organization with teams, roles, and responsibilities.
Suppliers must plan for the following (as applicable) disruptions:
Business Continuity to deal with event-based risks such as environmental disasters, human disruption and /or technical disasters.
Supply Chain Continuity to check and prepare the “Supplier’s” sub-tier suppliers to deal with potential disruptions (proactive) and disaster situations (reactive)
IT Disaster Recovery and IT Security for “Supplier” telecommunications, data, systems and infrastructure
Eliminate potential disruptions due to financial and regulatory noncompliance
Kontron America, Inc. expects our suppliers to comply with our code of conduct or have a code of conduct which includes the elements of the Kontron Code of Conduct. A full listing of our code of conduct can be found at: https://www.kontron.com/about-kontron/sustainability/code-of-conduct-english-1.1.pdf
This P.O. will be governed by the laws of the State of California, USA.
Seller agrees to indemnify Buyer, its agents, customers, successors, and assigns against any loss, damage, and liability (including costs and expenses) for actual or alleged infringement of any patent, copyright or trademark arising out of the use or sale of the goods by Buyer, its agents or customers provided, however, that Buyer must notify Seller of any suit, claim or demand involving such infringement and permit Seller to defend against or settle the same. If any injunction is issued as the result of any such infringement, Seller agrees, at Buyer's option, to (i) refund to Buyer the amounts paid to Seller for the goods covered by the injunction, or (ii) furnish Buyer with acceptable and no infringing goods. Seller agrees to indemnify Buyer against any and all liability and expense resulting from any alleged defect in the goods, whether latent or patent, including allegedly improper construction and design, or from the failure of the goods to comply with specifications. Seller warrants that there are no liabilities for royalties, mechanics liens or other encumbrances on the goods supplied and agrees to indemnify Buyer against any such liabilities. The above indemnifications are in addition to all other rights of indemnification of Buyer against Seller.
Seller will not quote for sale to others, without Buyer's written authorization, any goods purchased under Buyer's specifications or drawings. All specifications, drawings, samples, and other data furnished by Buyer will be treated by Seller as confidential information, will remain Buyer's property, and will be returned to Buyer on request.
No right or obligation under this P.O. (including the right to receive monies due) may be assigned by Seller without the prior written consent of Buyer, and any purported assignment without such consent will be void. Buyer may assign this P.O. at any time if such assignment is considered necessary by Buyer in connection with a sale of Buyer's assets or a transfer of its obligations.
Seller, as part consideration for this P.O. and without further cost to Buyer, hereby grants to Buyer (and, to the extent requested by Buyer, to the government) an irrevocable, non-exclusive, royalty free license to use, sell, manufacture, and cause to be manufactured products embodying any inventions and discoveries made, conceived or actually reduced to practice in connection with the performance of this P.O..
The remedies stated herein are in addition to all other remedies at law or in equity.
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1. Scope. The following terms and conditions (“Agreement”) apply to the sale of all products and/or services (the “Products”) delivered or provided by Kontron America, Incorporated, a Delaware corporation, including its affiliates (“Kontron”), pursuant to (a) any quotation, purchase order acceptance or other writing attaching or incorporating by reference this Agreement or (b) any other purchase order accepted by Kontron.
2. Purchase Orders. Buyer shall issue to Kontron firm purchase orders for each purchase required. All purchase orders are subject to credit approval and confirmation of delivery schedule by Kontron prior to acceptance by Kontron and may require credit enhancement, such as advanced payment, letter of credit or other guarantee, prior to acceptance. Kontron’s acceptance of a purchase order shall only occur upon delivery to Buyer of a written acceptance executed by Kontron’s duly authorized representative. In the event of any conflict between this Agreement and any purchase order or other document, the terms of this Agreement shall prevail.
3. Prices. The prices for Products are set forth in Kontron’s quotation which can be changed at any time upon prior written notice to Buyer. The quoted prices are exclusive of all taxes, freight, duties, and other applicable charges which shall be paid by Buyer. Any taxes, duties, fees, charges or assessments of any nature levied by any governmental authority in connection with any transaction under this Agreement, whether levied against Buyer, against Kontron or its employees, or against any of Kontron’s subcontractors or their employees, shall be the responsibility of Buyer and shall be paid directly by Buyer to the governmental authority concerned. If Kontron or its subcontractors, or the employees of either, are required to pay any such levies, fines, penalties, or assessments, then Buyer shall reimburse such payor promptly upon submission of the applicable document.
4. Changes. Within thirty (30) days of receipt from Buyer of a request for changes within the general scope of work under an accepted purchase order, Kontron shall respond in writing stating the consequences of such requested change. If such requested change causes an increase or decrease in the cost of the Products and/or the time required for performance, an equitable adjustment reasonably determined by Kontron shall be made in the price and/or the time required for performance. Such price adjustment may include but not be limited to any rework charges associated with the requested change. Kontron shall have the right in its sole discretion to accept or reject any such requested changes and shall not be required to proceed with the change unless the parties have mutually agreed in writing. All approved change orders shall be considered amendments to the applicable purchase order. If a requested change is not accepted by Kontron, the original purchase order shall remain in effect.
(a) Domestic. Upon Kontron’s approval of Buyer’s credit, if no credit enhancement is required; all payments shall be made in United States Dollars, net thirty (30) days from date of invoice. All payments received after thirty (30) days shall accrue interest at the rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum legally permissible rate.
(b) International. Open account terms will be considered by Kontron, in Kontron’s sole discretion, if Buyer possesses a first-class standing in the operating country and can demonstrate favorable trade arrangements with other U.S. suppliers. Buyer agrees, upon request, to provide Kontron with financial information acceptable to Kontron to assist Kontron in determining from time to time the credit terms, if any, that Kontron may extend to Buyer. Kontron reserves the right to revoke open account terms at any time based on unsatisfactory payment performance or credit risk in Kontron’s sole discretion, in which event Buyer agrees to provide a Letter of Credit or such other credit enhancement, at Buyers sole expense, as may be required by Kontron. All payments shall be made in United States Dollars, net thirty (30) days from date of invoice. All payments received after thirty (30) days shall accrue interest at the rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum legally permissible rate.
6. Transportation. All sales and deliveries of Products shall be “FCA Kontron’s authorized shipping point” as defined in Incoterms 2000, as amended. Buyer is responsible for all transportation, insurance, duties, taxes and other applicable expenses. These expenses shall be paid by Buyer and shall be added to Kontron’s invoice to Buyer if prepaid by Kontron.
7. Title and Risk of Loss. Title to the Products shall pass to Buyer upon Kontron’s delivery of the Products to a common carrier or to the Buyer’s designated location. Buyer hereby grants Kontron a security interest in the Products until the invoice covering the Products has been paid in full. Buyer also irrevocably appoints Kontron as its lawful attorney-in-fact coupled with an interest with full authority to execute and file UCC-1’s and any other necessary documents to perfect and enforce its security interest. Kontron shall bear the risk of loss or damage until the Products are delivered to a common carrier or to Buyer’s designated location. Upon Kontron’s delivery to a common carrier or to Buyer’s designated location, Buyer shall bear the entire risk of loss and shall be liable for all loss or damage to the Products.
8. Inspection. Unless Buyer notifies Kontron in writing within thirty (30) days from date of shipment of any Products that said Products are rejected, they will be deemed to have been accepted by Buyer. In order for the notice of rejection to be effective, Buyer must also specify in detail the reason(s) why the Products are being rejected. Buyer shall only have the right to reject Product for “defects,” as defined in Section 10 below.
9. Force Majeure. Kontron shall not be liable for any failure to perform or other loss due to unforeseen circumstances or causes beyond its control, including without limitation acts of God, strikes, material and/or transportation shortages, natural casualties, governmental regulations, war, fire, flood, disasters and civil unrest.
10. Warranty. Kontron agrees to repair or replace Products that fail due to a defect during the established Warranty Period of each Product unit to Buyer for (a) Standard Products - within twenty-four (24) months after the shipment date, (b) Computer Rack Mount Server Products - within thirty-six (36) months after the shipment date, (c) Conduction and/or Convection Cooled Systems and Chassis - within twelve (12) months after the shipment date and (d) Custom and Non-standard Products will be negotiated on a case by case basis. For purposes of this Agreement the term “defect” shall mean the Product fails to operate or fails to conform to its specifications agreed to in writing by Kontron. Any claim made pursuant to this Agreement shall be asserted or made in writing only by Buyer, not any of Buyer’s customers or end users. Buyer shall comply with Kontron’s Standard Return Materials Authorization (“RMA”) procedure for all warranty claims as set forth in Kontron’s operation manual. This limited warranty only covers repairs at Kontron’s facilities, it does not include labor, transportation or other expenses to repair or reinstall warranted Products on site or at Buyer’s premises.
Kontron reserves the right to investigate any warranty claims to quickly resolve the problem or to determine whether such claims are proper. In the event that after repeated efforts Kontron is unable to repair or replace a defective Product, then Buyer’s exclusive remedy and Kontron’s entire liability in contract, tort or otherwise shall be the payment by Kontron of Buyer’s actual damages after mitigation, but shall not exceed the purchase price, tax, freight and insurance actually paid by Buyer for the defective Product.
This limited warranty shall not apply to any Product, or parts thereof, that (a) has had the Serial Number, Model Number, or other identification markings altered, removed or rendered illegible; (b) has been damaged by or subject to improper installation or operation, misuse, accident, neglect and/or has been used in any way other than in strict compliance with Kontron’s operation and installation manual; (c) has become defective or inoperative due to its integration or assembly with any equipment or products not supplied by Kontron; (d) has been repaired, modified or otherwise altered by anyone other than Kontron, and/or has been subject to the opening of any sealed cabinet boxes or covers without Kontron’s prior written consent. If any warranty claim by Buyer falls within any of the foregoing exceptions, Buyer shall pay Kontron its then current rates and charges for such services.
THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. PLEASE REFER TO THE WARRANTY POLICY AND PROCEDURES CONTAINED IN KONTRON’S OPERATION AND INSTALLATION MANUAL.
11. Confidentiality. Many aspects of the design, production and operation of the Products, in any form, are proprietary information and trade secrets of Kontron (“Proprietary Rights”), and such Proprietary Rights shall not be disclosed or otherwise transferred by Buyer or Buyer’s employees to any other person or entity at any time. Buyer shall not modify, reverse engineer, improve or otherwise change any Product or parts thereof, or any of Kontron’s Proprietary Rights related thereto, and shall not use, appropriate or copy any of Kontron’s Proprietary Rights, either for itself or for others. Buyer also agrees not to incorporate or in any way use any of Kontron’s Proprietary Rights or confidential information (disclosed separately or embodied in any of the Products) in its or any other party’s products or businesses.
12. Property Rights. Kontron shall solely own and have exclusive worldwide right, title and interest in and to all United States and foreign patents, trademarks, service marks, copyrights, mask works, trade secrets, and all other intellectual and industrial property rights in any way related to the Products, to Kontron’s Proprietary Rights, and to all modifications, improvements and derivative works related thereto. Title to all of Kontron’s Proprietary Rights embodied in the Products shall always remain with Kontron, and Buyer’s use thereof shall be restricted under a non-exclusive license granted by Kontron. Subject to Buyer’s performance of all obligations hereunder, Kontron hereby grants to Buyer a personal, non-exclusive, non-transferable and indivisible license to use Kontron’s Proprietary Rights only as they are embodied in the Products and for no other purpose. Buyer shall not remove Kontron trademark notices, copyright notices, patent markings or mask work notices on or in the Products or on any other materials supplied by Kontron. Paragraphs 11 and 12 shall survive the termination of this Agreement, and shall be specifically enforceable by injunctive and other relief against Buyer in the event of Buyer’s breach since both parties agree that Kontron will be irreparably harmed and money damages would be inadequate compensation to Kontron for Buyer’s breach. In the event of such breach, Kontron shall be entitled to injunctive relief against Buyer in addition to any other remedies to which it is entitled.
13. Limitation of Liability. KONTRON SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES SUFFERED BY BUYER AND/OR ANY END USER RELATED TO OR ARISING OUT OF THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE USE OR INABILITY TO USE THE PRODUCTS, INTEGRATION OF THE PRODUCTS WITH EQUIPMENT NOT PROVIDED BY KONTRON, LOSS OF GOODWILL OR PROFITS AND/OR FROM ANY OTHER CAUSE WHATSOEVER, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL KONTRON’S LIABILITY FOR ANY CAUSE OF ACTION RELATING TO THIS AGREEMENT EXCEED AMOUNTS RECEIVED BY KONTRON FROM BUYER FOR THE PRODUCT OR SERVICE THAT IS THE SUBJECT OF SUCH CLAIM OR DISPUTE. KONTRON AND BUYER FURTHER AGREE THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS EXPRESSLY INTENDED TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION SINCE THOSE PROVISIONS REPRESENT SEPARATE ELEMENTS OF RISK ALLOCATION BETWEEN THE PARTIES, AND SHALL BE SEPARATELY ENFORCED. BOTH PARTIES ALSO AGREE THAT THE PRICE OF THE PRODUCTS REFLECTS THE ALLOCATION OF RISK, WARRANTY AND LIMITATION OF LIABILITY PROVISIONS HEREIN.
UNLESS OTHERWISE AGREED IN WRITING BY KONTRON, THE KONTRON PRODUCTS SOLD HEREUNDER ARE NOT DESIGNED NOR INTENDED FOR ANY USE IN MEDICAL, LIFE SAVING OR LIFE SUSTAINING APPLICATIONS WHICH THE FAILURE OF THE KONTRON PRODUCT COULD CREATE A SITUATION WHERE PERSONAL INJURY OR DEATH MAY OCCUR. Should Buyer purchase or use Kontron’s Products for any such unintended use, Buyer shall indemnify and hold Kontron and its directors, officers, subsidiaries, subcontractors and affiliates harmless against all claims, costs, damages, and expenses, and reasonable attorney fees arising out of, directly or indirectly, any claim of product liability, personal injury or death associated with such unintended use, even if such claim alleges that Kontron or its sub-contractor was negligent regarding the design or manufacture of the Kontron Product or any of its parts.
14. Waiver. Kontron shall not be deemed to waive any default of any provision of this Agreement unless Kontron signs a written waiver.
15. Indemnity. Buyer shall indemnify, defend and hold Kontron harmless from all claims, damages, expenses, liabilities and losses, including without limitation attorney’s fees and costs incurred that in any way arise out of or relate to (a) the manner in which Buyer and/or any of its customers or end users use or operate the Products; (b) any personal injuries, property damages or other losses resulting or occurring from the willful or negligent acts or omissions of Buyer, its customers or end users; (c) defects or other problems with other component parts, equipment or materials produced or supplied by anyone other than Kontron and that may be used with the Products; and/or (d) Buyer’s transactions with its customers, end users or other parties regarding the Products.
16. Termination. Buyer shall not terminate or cancel any order, or portion thereof, after it is given to Kontron without Kontron’s prior written consent in its sole discretion and subject to the condition that Buyer pays to Kontron the sum of (1) the price of all Products previously delivered to Buyer, (2) Kontron’s actual costs incurred as a result of such termination (e.g., purchase of raw materials and other obligations), which Kontron will attempt to keep as low as possible, and (3) a cancellation fee of twenty percent (20%) of such actual costs.
17. Attorney’s Fees. In the event a dispute arises regarding this Agreement or the Products, the prevailing party shall be entitled to recover from the unsuccessful party actual attorney’s fees and costs incurred.
18. Entire Agreement. Buyer agrees to all of the provisions of this Agreement by submitting its purchase order for the Products. This Agreement is the sole and entire agreement between the parties (except for the price or the shipment schedule for the Products contained in Kontron’s quotation or Buyer’s purchase order accepted by Kontron which shall be incorporated herein subject to the terms hereof) and shall supersede all prior or contemporaneous written or oral understandings, representations or communications and/or other terms in any purchase order or other document, now or hereafter delivered. The provisions of this Agreement shall apply to any and all purchase orders or requests for Products submitted by Buyer to Kontron at any time in the future, without the need for either party to execute this Agreement. No modification of this Agreement shall be valid unless in writing and signed by an authorized representative of Kontron.
19. Governing Law. This Agreement shall be construed and enforced according to the laws of the State of California.
20. Arbitration. Any dispute, controversy or claim (“Claim”) arising out of or relating to this Agreement, any Kontron quotation or any purchase order incorporating this Agreement by reference or to which this Agreement is attached, and any other purchase order issued by Buyer and accepted by Kontron, or the breach, enforcement, interpretation, validity or termination thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by binding arbitration by JAMS/Endispute (“JAMS”) in accordance with JAMS Comprehensive Arbitration Rules and Procedures (the “Rules”). The arbitration shall be heard by the arbitrator selected in accordance with the Rules in San Diego County, California. Judgment upon any award rendered may be entered in any state or federal court in San Diego County having jurisdiction thereof. Within seven (7) calendar days after appointment the arbitrator shall set the hearing date, which shall be within ninety (90) days after the filing date of the demand for arbitration unless a later date is required for good cause shown, and shall order a mutual exchange of what he/she determines to be relevant documents and the dates thereafter for the taking of up to a maximum of five (5) depositions by each party to last no more than two (2) days in aggregate for each party. Both parties waive the right, if any, to obtain any award for exemplary or punitive damages or any other amount for the purpose of imposing a penalty from the other in any arbitration or judicial proceeding or other adjudication arising out of or with respect to this Agreement, or any breach hereof, including any claim that this Agreement, or any part hereof, is invalid, illegal or otherwise voidable or void. The arbitrator shall make his or her award no later than seven (7) calendar days after the close of evidence or the submission of final briefs, whichever occurs later.
21. Export. Buyer shall not directly or indirectly export, transfer or in any way distribute any of the Products, or parts thereof, or any of Kontron’s Proprietary Rights or technical data to any country or territory that is prohibited from receiving such materials under any applicable law of the United States. Buyer shall comply with all applicable laws and regulations, including, without limitation, all of the laws and regulations of any applicable agency of the United States government responsible for the administration of the United States export control laws and regulations and the United States Foreign Corrupt Practices Act of 1977, as amended. Buyer shall also be responsible for obtaining all export licenses or other approvals required to export or re-export the Products outside the United States. Buyer further indemnifies, defends and holds Kontron harmless from all damages, claims, expenses, liabilities and losses including without limitation attorney’s fees and costs that in any way arise out of or relate to Buyer’s breach of this warranty and/or failure to comply with the provisions of this Section 21. Kontron shall not be liable in the event any authorization of any governmental authority is delayed, denied, revoked, restricted and not renewed, and Buyer shall not be relieved thereby of its obligations to pay Kontron for its Products or any other charges which are the obligations of Buyer under this Agreement.
22. Integration of Equipment. Kontron shall not be liable for any problems, damages or costs associated with the integration, installation or incorporation of the Products with equipment or materials not provided by Kontron.
23. Authority. The persons executing purchase order(s) on behalf of Kontron and Buyer warrant and represent that they have been authorized by their respective board of directors or other governing bodies to bind their respective companies to all of the provisions of the purchase order(s) and this Agreement.
24. Survival. All of the provisions of Section 11, 12, 13, 15, 20 and 21 of this Agreement shall survive the termination or expiration of this Agreement.
25. Assignment. Buyer shall not assign, transfer or otherwise encumber this Agreement or any part thereof without Kontron’s prior written consent.
26. Severability. If any provision of this Agreement is held by an arbitrator or a court of competent jurisdiction to be void, invalid or unenforceable, the remaining provisions shall remain in full force and effect.