TERMS AND CONDITIONS OF SALE
THESE TERMS AND CONDITIONS OF SALE (the “Terms and Conditions”) set forth the terms and conditions governing the use of the products you (“Customer”) have purchased from LitePoint Corporation (“LitePoint”), including any software provided with, or for use with, such products (collectively, the “Product(s)”).
1. CONTROLLING TERMS. All sales and all purchase orders shall be governed exclusively by these Terms and Conditions, and nothing contained in any such purchase order will in any way modify or supplement these Terms and Conditions. Acceptance of Customer’s order by LitePoint is expressly conditional on the assent of Customer to these Terms and Conditions. Any terms or conditions in Customer’s purchase order or otherwise proposed by Customer, whether written or oral, that add to, vary from, or conflict with these terms and conditions are objected to by LitePoint and shall be deemed null and void.
2.1. The total price for the Products is the amount indicated on the LitePoint quotation. Prices are valid for the period indicated on the quotation. Prices are per shipment terms specified in section 3.4 Shipment.
2.2. Unless otherwise indicated in the quotation or separate written agreement between the Customer and LitePoint, payment for Products shall be made in U.S. Dollars in the Unites States, or such other place as LitePoint may designate, by check, wire transfer, or, if required by LitePoint, letter of credit in full in advance of shipment.
2.3. For LitePoint approved payment terms, which is subject to LitePoint credit approval, Litepoint may change credit or payment terms at any time should Customer’s financial condition or actual payment history so warrant.
2.4. If payment is not received in accordance with the payment terms set forth in Section 2.2 and 2.3 above, then LitePoint, at its sole option, may assess a late payment fee from the date of tender on a month-to-month basis at a rate of 1.5% per month, compounded monthly, or the maximum rate permitted by law, if less. Future shipment may be delayed or terminated until all outstanding payment has been cleared.
2.5. All prices do not include any taxes (including any excise, sales, use, value added, withholding, and similar taxes), customs duties, tariffs or license fees, and payments to LitePoint are payable in full without reduction for any such taxes, duties, tariffs or fees. If exemption from taxes is claimed, Customer must provide a certificate of exemption.
3. ORDERS AND DELIVERY.
3.1. Purchase Orders. All orders for Products submitted by Customer shall be initiated by written or faxed purchase order. Customer shall submit purchase orders to LitePoint at least sixty (60) days prior to the requested delivery date, but no more than one hundred eighty (180) days before the requested delivery date. No order shall be binding upon LitePoint until accepted by LitePoint in writing, and LitePoint shall have no liability to Customer with respect to purchase orders that are not accepted or with respect to the delivery of items not specified on the Customer’s purchase order. LitePoint shall use its reasonable commercial efforts to notify Customer of the acceptance or rejection of an order and of the anticipated delivery date for accepted orders within thirty (30) days after receipt of the purchase order. Any purchase order less than the required lead time may result in additional charges if LitePoint is able to accept the requested delivery schedule.
3.2. Cancellations and Rescheduling.
a) Customer may cancel a purchase order without penalty by giving written notice of the cancellation to LitePoint within forty eight (48) hours of the initial placement of the order. After such time, Customer may not cancel or reschedule orders for Products within 30 days of original shipment date. Customer may cancel orders more than 30 days before original shipment date, subject to a ten percent (10%) cancellation fee.
b) Customer may delay shipment, only once and no more than 30 days from original shipment date, with written notice at least 30 days prior to original shipment date with LitePoint’s prior written approval, and subject to a five percent (5%) rescheduling fee.
c) Any changes to delivery dates or order information after the initial order date may require a revised quotation and/or price change.
d) Reschedule existing purchase orders, if accepted by LitePoint, to an earlier shipping date may require an expedited charge or commission adjustment.
e) Cancellation of any items requiring special modifications to standard Products and of custom Products are subject to a hundred percent (100%) cancellation charge less any credits LitePoint may receive from returning materials to LitePoint’s suppliers.
3.3. Delivery. LitePoint shall use commercially reasonable efforts to supply the Product ordered by Customer in accordance with accepted orders.
a) All Products delivered to Customer pursuant to these Terms and Conditions shall be suitably packaged for surface or air shipment, in LitePoint’s sole discretion, in LitePoint’s standard shipping cartons. Unless otherwise indicated on the LitePoint quotation, each shipment will be delivered Ex Works (Incoterms 2010) the shipping point at LitePoint’s facilities for delivery to the designated carrier (the “Shipping Point”).
b) Title to, and risk of loss or damage to, such delivered Products shall pass to Customer upon delivery to the carrier at the Shipping Point. Unless otherwise agreed by the parties, LitePoint shall select the carrier. All freight, insurance, duty, and other shipping expenses, as well as any special packing expenses, shall be paid by Customer.
c) If Customer does not take delivery 7 days after shipment date, LitePoint may cancel this order without notice and charge a ten percent (10%) cancellation fee.
d) Customer shall also bear all applicable taxes, tariffs, duties, and similar charges that may be assessed against the Product after delivery to Customer or to the carrier at the Shipping Point.
3.5. Shipment acceptance
a) Product shipment is considered accepted by Customer upon delivery to Customer’s designated carrier. Any special acceptance procedures must be agreed to by LitePoint’s authorized representative in writing and may be subject to additional charges.
b) Customer shall notify LitePoint in writing or by facsimile of any Product nonconformity. Upon notice of nonconformity, LitePoint will issue a Return Material Authorization (“RMA”) number. Within ten (10) working days of receipt of the RMA number, Customer shall return the non¬conforming Product to LitePoint’s designated return facility, freight prepaid and properly insured, in its original shipping carton with the RMA number displayed on the outside of the carton. If LitePoint confirms a material nonconformity, LitePoint shall, at LitePoint’s option and expense, either repair or replace the Product. LitePoint shall pay the shipping charges for the delivery of such repaired or replacement. For defects which LitePoint is unable to confirm, Customer shall be responsible for all shipping charges. If LitePoint is unable to repair or replace a non¬conforming Product, LitePoint’s sole liability and Customer’s exclusive remedy shall be to cancel the sale and for LitePoint to credit Customer’s account for the Product price actually paid by Customer for such Product.
4. SOFTWARE LICENSE
Software accompanying or for use with hardware Products is provided under a written Software End User License Agreement which includes restrictions on use, disclosure and copying, and which is incorporated herein by reference. Customer may obtain a copy of Seller’s Software End User License Agreement at www.litepoint.com, accompanying the associated Software and/or hardware Product, or from a Seller representative.
5. WARRANTY AND DISCLAIMER
5.1. Limited Product Warranty. LitePoint warrants, only to Customer that, for a period of one (1) year after delivery of the LitePoint hardware Product (including system software incorporated therein and required to operate the hardware Product, but specifically excluding any application or other software), the Product will operate in substantial compliance with the specifications in the associated LitePoint data sheet. LitePoint does not warrant that the Product will operate without interruption or will be error free, or that all errors may be corrected.
5.2. Exclusive Remedy. LITEPOINT’S SOLE LIABILITY AND OBLIGATION, AND CUSTOMER’S SOLE REMEDY, FOR BREACH OF THE FOREGOING WARRANTY SHALL BE REPAIR OR REPLACEMENT OF THE PRODUCT (or, at the sole option of LitePoint, a refund of the purchase price). This warranty and remedy is conditioned on Customer’s prompt written notice to LitePoint, within the warranty period, of the nonconformity, and Customer’s following LitePoint’s Product return procedures.
5.3. Limitations. LitePoint’s warranty shall not extend to problems in the Product that result from (i) Customer’s failure to implement all error corrections to the Product which are provided by LitePoint, (ii) changes to the Product or system software or interacting Product made by parties other than LitePoint, (iii) any use of the Product in a manner for which it was not designed or as not authorized under associated documentation or end user software licenses, (iv) negligence on the part of Customer, its employees, consultants, or agents, or (v) any use of the Product with other products, hardware, software, or items not supplied by, and inconsistent with the documentation provided by LitePoint. This warranty shall not apply to Products that have been subject to abuse, accident, power surge, or severe operating conditions outside of the Product’s operating specifications.
5.4. Software. Except as set forth hereinabove with respect to the system software, the system software and all other software provided by LitePoint is provided under the LitePoint End User License Agreement.
5.5. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH ABOVE, LITEPOINT AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, OR BY COURSE OF DEALING OR TRADE USAGE, AND LITEPOINT AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON¬INFRINGEMENT AND SATISFACTORY QUALITY. EXCEPT AS EXPRESSLY STATED HEREIN, ALL PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY. CUSTOMER ASSUMES THE ENTIRE COST OF ANY DAMAGE RESULTING FROM THE INFORMATION COMPILED BY THE PRODUCT. CUSTOMER ASSUMES ALL RESPONSIBILITIES FOR SELECTION OF THE PRODUCT TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT.
6. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT ALLOWED UNDER LAW, IN NO EVENT WILL LITEPOINT OR ITS SUPPLIERS BE LIABLE FOR ANY LOST PROFITS OR INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR INDIRECT DAMAGES, AND INCLUDING BUT NOT LIMITED TO, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER SIMILAR LOSS ARISING FROM THE USE OF (OR INABILITY TO USE) THE PRODUCT OR DOCUMENTATION, THE DATA COLLECTED OR CREATED IN THE USE OF THE PRODUCT, OR THE ACCOMPANYING DOCUMENTATION, NO MATTER HOW CAUSED AND ON ANY THEORY OF LIABILITY. IN NO EVENT SHALL LITEPOINT'S TOTAL LIABILITY TO CUSTOMER FOR ALL DAMAGES, IN ANY ONE OR MORE CAUSES OF ACTION, ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE OR USE OF A PRODUCT UNIT (INCLUDING WITHOUT LIMITATION PURSUANT TO SECTION 7) EXCEED THE AMOUNT PAID BY CUSTOMER FOR THAT PRODUCT UNIT. IN NO EVENT SHALL LITEPOINT BE LIABLE FOR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. These limitations will apply notwithstanding the failure of essential purpose of any limited remedy and even if LitePoint, its suppliers or dealers have been advised of the possibility of such damage or of any type of use intended by Customer. Customer acknowledges that these limitations are integral to the amount of consideration levied under these Terms and Conditions and that the consideration reflects this allocation of risk.
7. INFRINGEMENT INDEMNITY
7.1. LitePoint's Indemnity. LitePoint shall defend or settle any claim, demand, suit or proceeding against Customer to the extent that such claim, demand, suit or proceeding is based on an allegation that any portion of the Product owned by LitePoint, as furnished to Customer under these Terms and Conditions and used as authorized in these Terms and Conditions, infringes any third party's copyright or misappropriates such third party’s trade secrets (an “Action”), provided that Customer (i) gives prompt written notice of the Action to LitePoint, (ii) gives LitePoint the exclusive authority to control and direct the defense or settlement of such Action, and (iii) gives LitePoint, at Customer’s own expense, all necessary information and assistance. LitePoint shall pay all amounts paid in settlement and all damages and costs awarded with respect to such Action defended by LitePoint. Customer may participate in the defense of an Action after LitePoint has assumed the defense or settlement of the Action, provided that Customer shall pay any legal fees and expenses and other costs of defense it incurs in so participating. LitePoint will not be liable for any costs or expenses incurred without its prior written authorization.
7.2. Replacement Product. If any portion of the Product is held, or in LitePoint’s opinion is likely to be held, to infringe or misappropriate a third party's intellectual property rights, then LitePoint may at its sole option and expense: (i) procure for Customer the right to continue using the Product, (ii) replace the Product with non¬infringing Product, or (iii) in the event that neither of the foregoing is reasonably practicable, terminate these Terms and Conditions and refund to Customer the amounts paid for the Product returned to LitePoint, less a reasonable sum for prior use.
7.3. Limit on Indemnity. The foregoing notwithstanding, LitePoint shall have no liability for a claim of infringement to the extent the claim is based on: (i) the use by Customer of any Product more than thirty (30) days after LitePoint notifies Customer in writing that continued use of the Product may subject Customer to such claim of infringement, provided that such claim of infringement would have been avoided by the use of a replacement release made available by LitePoint; (ii) the combination of any Product with other products not provided by LitePoint, which claim would have been avoided if Product had not been so combined; or, (iii) the modification of any of the Product by anyone other than LitePoint or its suppliers.
7.4. Entire Liability. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF LITEPOINT, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT BY THE PRODUCT AND DOCUMENTATION.
8. TERM AND TERMINATION.
8.1. Term. These Terms and Conditions shall remain in full force and effect until otherwise terminated below.
a) This Agreement will automatically and immediately terminate if Customer breaches any provision of Section 4.
b) LitePoint may elect to terminate these Terms and Conditions if Customer is late in its payment of fees hereunder.
c) Either party may terminate these Terms and Conditions if the other party breaches a material term and such breach is not cured within thirty (30) days of written notice of the breach by the non¬breaching party.
d) Either party may terminate these Terms and Conditions by delivering written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for the other party or its property; (ii) the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor's relief law, which proceedings are not dismissed within ninety (90) days; or (iii) the other party is liquidated or dissolved.
1.1. Term This Agreement will automatically and immediately terminate if Customer breaches any provision of Section 4.
a) This Agreement will automatically and immediately terminate if Customer breaches any provision of Section 4.
8.3. Effect of Termination
a) Upon termination of these Terms and Conditions, all rights and licenses granted hereunder shall terminate, except as expressly provided in Section 8.3 (c) below.
b) Upon termination of these Terms and Conditions, Customer shall immediately discontinue use of the Product and documentation for which full payment has not been made and return it to LitePoint.
c) The provisions of Sections 1, 4, 5.5, 6, 8.3 and 9-13 of these Terms and Conditions shall survive any termination or expiration of these Terms and Conditions.
8.4. Other Remedies. Except as specifically provided otherwise, and subject to the limitations on liability set forth above, any and all rights and remedies of a party upon another party's breach of or default under these Terms and Conditions (whether expressly conferred by these Terms and Conditions or otherwise) shall be deemed cumulative with, and not exclusive of, any other right or remedy conferred by these Terms and Conditions or by law or equity on such party, and the exercise of any one remedy shall not preclude the exercise of any other.
9. DISPUTE RESOLUTION. Except for actions by a party for infringement of its patent or other intellectual property rights, any dispute or claim arising out of or relating to this these Terms and Conditions or breach thereof shall be finally resolved by arbitration in the City of San Jose, California before, and in accordance with the rules of, the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Either party, however, shall be entitled to apply to any court of competent jurisdiction for injunctive or equitable relief.
10. FORCE MAJEURE. LitePoint shall not be liable for nonperformance or delays, not otherwise excused, which occur due to causes beyond its reasonable control. These causes shall include, but shall not be limited to, acts of God, wars, riots, strikes, fires, storms, flood, earthquake, shortages of labor or material, labor disputes, vendor failures, transportation embargoes, acts of any government or agency thereof, judicial action or any or all other causes beyond its reasonable control. In the event of any such excused delay or failure of performance, the date of delivery shall, at the request of LitePoint, be deferred for a period equal to the time lost by the delay. LitePoint shall notify Customer in writing of any such event or circumstances within a reasonable time after it learns of same.
11. PROPRIETARY RIGHTS. LitePoint retains all proprietary rights in and to all designs, engineering details and other data pertaining to the Products specified in the order and to all discoveries, inventions, copyrights, patents and trade secrets which may be found or developed as a result of the efforts and work done by LitePoint in connection with the order and to any and all Products developed by LitePoint, including the sole right to manufacture or copy any and all such Products. Except as expressly set forth in Section 4 with respect to software, no license, express, implied, or otherwise, is granted by LitePoint. LitePoint may require Customer to execute a separate confidential disclosure agreement.
12. MODIFICATION AND SUBSTITUTIONS. LitePoint reserves the right to make substitutions and modifications in the specifications of Products manufactured by LitePoint providing that such substitution or modification will not materially adversely affect the form, fit or function of the Product. Products may contain reconditioned parts.
13. MISCELLANEOUS. These Terms and Conditions are governed by the laws of the State of California, excluding conflicts of laws principles. Customer consents to the exclusive jurisdiction and venue of the state and federal courts located in San Jose, California for all claims, actions and disputes (if any) not subject to arbitration. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms and Conditions shall remain in full force and effect. The headings in these Terms and Conditions are inserted for convenience only and do not affect its interpretation. Customer may not assign this agreement, whether by operation of law, merger or reorganization, without the prior written consent of LitePoint; any attempted assignment in violation of the foregoing will be void. Customer understands that LitePoint is subject to regulation by agencies of the U.S. Government, including, but not limited to the U.S. Department of Commerce, which prohibit export or diversion of certain technical products to certain countries. Customer warrants that it will comply in all respects with the Export Administration Regulations and all other export and re¬export restrictions as may be applicable to the Product. This Agreement constitutes the final, complete and exclusive agreement between the parties with respect to Customer’s use of the Products and supersedes any prior or contemporaneous representations or agreements, whether written or oral.
Restricted Rights Legend
No part of this document may be reproduced, transmitted, transcribed, stored in a retrieval system, or translated into any language or computer language, in any form or by any means, electronic, mechanical, magnetic, optical, chemical, manual, or otherwise, without the prior written permission of LitePoint Corporation.
LitePoint Corporation makes no representations or warranties with respect to the contents of this manual or of the associated LitePoint Corporation products, and specifically disclaims any implied warranties of merchantability or fitness for any particular purpose. LitePoint Corporation shall under no circumstances be liable for incidental or consequential damages or related expenses resulting from the use of this product, even if it has been notified of the possibility of such damages.
LitePoint and the LitePoint logo, IQxstream, IQview, IQflex, IQnxn, and IQmax are registered trademarks and IQnxnplus, IQsignal, IQwave, IQfact, IQcheck, IQdebug, IQmeasure, IQtest, IQexpress, IQturbo, IQultra, IQ201X, IQ2011, IQ2010, TrueChannel, and TrueCable are trademarks of LitePoint Corporation. All trademarks or registered trademarks are owned by their respective owners.
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THESE TERMS AND CONDITIONS OF SALE (the “Terms and Conditions”) set forth the terms and conditions governing the use of the products you (“Customer”) have purchased from LitePoint Corporation (“LitePoint”), including any software provided with, or for use with, such
THIS SOFTWARE END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN CUSTOMER (EITHER AN INDIVIDUAL OR, AS SET FORTH BELOW, AN ENTITY) AND LITEPOINT CORPORATION (“LITEPOINT”) REGARDING THE USE OF LITEPOINT’S SOFTWARE (AND RELATED DOCUMENTATION) ACCOMPANYING THIS AGREEMENT AND PROVIDED BY LITEPOINT IN CONNECTION WITH THE LITEPOINT TESTING SYSTEM (“LITEPOINT SYSTEM”), WHETHER SUCH SOFTWARE IS PRE-INSTALLED ON THE HARDWARE COMPRISING THE LITEPOINT SYSTEM; SUPPLIED ON A SEPARATE MEDIUM SUCH AS A CD OR MADE AVAILABLE FOR DOWNLOAD BY LITEPOINT THROUGH ITS WEBSITE AND ANY UPDATES TO ANY OF THE FOLLOWING MADE AVAILABLE BY LITEPOINT (COLLECTIVELY “SOFTWARE”). IF YOU ARE AN EMPLOYEE OR AGENT OF ANOTHER NATURAL PERSON OR A LEGAL ENTITY WHICH IS THE ACTUAL PURCHASER OF THE LITEPOINT SYSTEM AND SOFTWARE LICENSE (“CUSTOMER”), OR THE EMPLOYEE OR AGENT OF A CUSTOMER AFFILIATE, YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO ACCEPT AND TO BIND CUSTOMER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. “AFFILIATE” MEANS ALL CURRENT AND FUTURE BUSINESS ENTITIES OF WHICH CUSTOMER OWNS, DIRECTLY OR INDIRECTLY, MORE THAN FIFTY PERCENT (50%) OF THE VOTING SECURITIES. ANY SUCH ENTITY SHALL BE CONSIDERED AN AFFILIATE FOR ONLY SUCH TIME AS CUSTOMER CONTINUES TO OWN SUCH EQUITY INTEREST. BEFORE CLICKING ON THE “I ACCEPT AND AGREE” BUTTON AT THE END OF THIS DOCUMENT, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE “I ACCEPT AND AGREE” BUTTON, CUSTOMER IS AGREEING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “I DECLINE” BUTTON AND THE SOFTWARE WILL NOT BE AVAILABLE FOR INSTALLATION. IF CUSTOMER IS DECLINING TO ENTER THIS AGREEMENT IN CONNECTION WITH THE INITIAL PURCHASE OF THE LITEPOINT SYSTEM, CUSTOMER MAY RETURN THE UNUSED LITEPOINT SYSTEM AND ALL ACCOMPANYING MATERIALS (INCLUDING ALL SOFTWARE AND DOCUMENTATION) TO LITEPOINT FOR A FULL REFUND OF THE PURCHASE PRICE THEREFOR. CUSTOMER UNDERSTANDS AND AGREES THAT ANY USE OF THE SOFTWARE BY CUSTOMER SHALL CONSTITUTE ITS ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. GRANT OF RIGHTS & CONFIDENTIAL INFORMATION.
A. System Software. Subject to the terms and conditions of this Agreement, LitePoint grants Customer a personal, non-exclusive, non-sublicensable and non-transferable (except as set forth under Section 8 below) right and license to use the object code version of any software either pre-installed on the LitePoint System or intended for use on the LitePoint System (“System Software”) for Customer’s internal business purposes solely as installed on and in conjunction with Customer’s use of the relevant LitePoint System. Customer agrees that this Agreement will apply to any permitted use of System Software with other LitePoint System units acquired by Customer.
B. Application Software. “Application Software” means LitePoint Software intended for use on peripheral computer hardware (i.e. non-LitePoint System hardware). The Application Software is “in use” on a computer when it is loaded into the temporary memory (i.e., RAM) or installed into the permanent memory (e.g., hard disk, CD-ROM, or other storage device of any type) of that computer hardware. Subject to the terms and conditions of this Agreement, if Customer has purchased one (1) Application Software license, LitePoint grants Customer a personal, non-exclusive, non-sublicensable and non-transferable (except as set forth under Section 8 below) right and license to install and use one (1) copy of the relevant Application Software in object code format, for internal purposes only, on only one computer, owned or controlled by Customer, at Customer’s site and solely in connection with Customer’s use of one or more LitePoint Systems. Subject to the terms and conditions of this Agreement, if Customer has purchased multiple Application Software licenses, LitePoint grants Customer a personal, non-exclusive, non-sublicensable and non-transferable (except as set forth under Section 8 below) right and license to install and use as many copies of the relevant Application Software as Customer has licenses in object code format, for internal purposes only, on computers owned or controlled by Customer at Customer’s site(s) and solely in connection with Customer’s use of one or more LitePoint Systems. Subject to the terms and conditions of this Agreement, if Customer has purchased an Application Software site license, LitePoint grants Customer a personal, non-exclusive, non-sublicensable and non-transferable (except as set forth under Section 8 below) right and license to install and use the relevant Application Software in object code format, for internal purposes only, on computers owned or controlled by Customer and Customer Affiliates at Customer and Customer Affiliates’ sites and solely in connection with Customer’s use of one or more LitePoint Systems. Customer shall make reasonable efforts to notify and inform its employees, agents and Affiliates having access to the Application Software of Customer’s limitations, duties and obligations regarding use of the Application Software. Customer may make one (1) copy the relevant Application Software for back-up or archival purposes.
C. Documentation. Subject to the terms and conditions of this Agreement, LitePoint grants Customer a personal, non-exclusive, non-sublicensable and non-transferable (except as set forth under Section 8 below) right and license to use any user manuals, written instructions, how-to-guides and any other documentation provided by LitePoint with the Software (“Documentation”) in connection with Customer’s exercise of its rights and licenses to the System Software and Application Software set forth under Sections A and B above and Customer shall be entitled to make a reasonable number of copies of the Documentation in connection therewith.
D. Updates. To the extent LitePoint makes available to Customer any bug fixes, workarounds, updates, upgrades or other modified versions of any System Software, Application Software or Documentation (“Updates”), any and all such Updates shall be subject to the terms and conditions of this Agreement, including the relevant limited licenses applicable to such Updates set forth under paragraphs A, B and C above. For avoidance of doubt, except as may otherwise be agreed to between Customer and LitePoint pursuant to a separate written agreement, LitePoint has no obligation whatsoever to provide any Updates to Customer by virtue of this Agreement.
E. Restrictions. Customer shall not, and shall not authorize any third party to, attempt to (i) modify, translate, create derivative works of, rent, lease, loan, distribute or sublicense the Software or Documentation, in whole or in part; (ii) copy or otherwise reproduce the Software or Documentation except as expressly set forth herein; (iii) decompile, disassemble or otherwise attempt to reverse engineer, the Software, in whole or in part, provided that to the extent a total prohibition on reverse engineering is void as a matter of applicable law and such invalidity is not cured by virtue of this Agreement being governed by the laws of the State of California and the United States, Customer shall be entitled to do so solely to the minimum extent required under applicable law to permit the Software to interoperate with Customer’s other software; (iv) bypass or delete any copy protection methods that are for preventing unauthorized copying or use of the Software; (v) benchmark performance of the Software or LitePoint System; or (vi) use the Software to provide processing services to third parties or otherwise use the Software on a “service bureau,” “cloud computing,” or similar basis.
F. No Other Rights. Except for the limited grant of rights hereunder, LitePoint and its licensors retain all of their respective rights, title and interest in and to the Software and Documentation, including any and all copyright, patent, trade secret, trademark and other intellectual property rights embodied therein (“Intellectual Property Rights”) and nothing in this Agreement shall be construed, whether by implication, estoppel or otherwise to grant Customer (or any third party) any rights under such Intellectual Property Rights, which shall at all times remain with LitePoint or its licensors.
G. Confidentiality. Both the Software and Documentation hereunder contain the valuable trade secrets of LitePoint and its licensors and Customer shall use no less than reasonable care to maintain the secrecy of the Software and Documentation and in no event use the same except in the exercise of its rights in accordance with the terms of this Agreement. Customer shall not disclose the Software or Documentation to any third party other than subject to reasonable non-use and non-disclosure obligations and solely in connection with Customer’s exercise of its rights in accordance with the terms and conditions of this Agreement.
2. NO WARRANTY, DISCLAIMERS, LIMITATION OF LIABILITY, & AUDIT.
A. No Warranty & Disclaimer. Except to the extent that LitePoint may expressly warrant System Software as part of a LitePoint System warranty, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS AND LITEPOINT AND ITS LICENSORS MAKE NO WARRANTY OF ANY KIND WITH RESPECT TO THE DOCUMENTATION AND SOFTWARE AND LITEPOINT AND ITS LICENSORS HEREBY EXPRESSLY EXCLUDE ANY WARRANTIES WITH RESPECT THERETO, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, ACCURACY OR ANY OTHER WARRANTIES OR GUARANTEES THAT MAY ARISE FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEITHER LITEPOINT NOR ITS SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY, OR OTHER COMMITMENT REGARDING (I) THE USE OR INABILITY TO USE THE SOFTWARE OR (II) ANY RESULTS OF SUCH USE IN TERMS OF CORRECTNESS, ACCURACY, OR RELIABILITY. CUSTOMER UNDERSTANDS AND AGREES THAT IT ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE. SOME JURISDICTIONS DO NO PERMIT THE EXCLUSION AND/OR WAIVER OF CERTAIN WARRANTIES. TO THE EXTENT CUSTOMER’S USE OF THE SOFTWARE IS GOVERNED BY THE LAWS OF SUCH JURISDICTION AND SUCH EXCLUSIONS AND/OR WAIVERS ARE NOT ENFORCEABLE BY VIRTUE OF THIS AGREEMENT BEING GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA AND THE UNITED STATES, THE FOREGOING EXCLUSIONS SHALL BE ENFORCED SOLELY TO THE MAXIMUM EXTENT PERMITTED UNDER THE APPLICABLE LAWS OF SUCH JURISDICTION.
B. Limitation of Liability. IN NO EVENT WILL LITEPOINT OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR LOST DATA, OR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF LITEPOINT OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY TO CUSTOMER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO AND WILL NOT EXCEED THE PURCHASE PRICE OF THE SOFTWARE PAID BY CUSTOMER OR ONE HUNDRED DOLLARS (US$100), WHICHEVER IS GREATER. SOME JURISDICTIONS DO NOT PERMIT THE LIMITATION, EXCLUSION AND/OR WAIVER OF CERTAIN KINDS OF DAMAGES. TO THE EXTENT CUSTOMER’S USE OF THE SOFTWARE IS GOVERNED BY THE LAWS OF SUCH JURISDICTION AND SUCH LIMITATIONS, EXCLUSIONS AND/OR WAIVER OF DAMAGES ARE NOT ENFORCEABLE BY VIRTUE OF THIS AGREEMENT BEING GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA AND THE UNITED STATES, THE FOREGOING LIMITATIONS, EXCLUSIONS AND WAIVERS SHALL BE ENFORCED SOLELY TO THE MAXIMUM EXTENT PERMITTED UNDER THE APPLICABLE LAWS OF SUCH JURISDICTION.
C. Audit. Customer must keep current, complete, and accurate records regarding Customer‘s reproduction, installation, and use of the Software and the LitePoint System. Customer will provide such information to LitePoint, so long as LitePoint does not make more than four requests during any 12-month period. Customer will, after reasonable prior notice from LitePoint, provide LitePoint or its agents with reasonable access to Customer premises, records, and personnel so that LitePoint may audit and confirm that Customer complies with this Agreement. If an audit reveals any reproduction, installation, or use of the Software that is not compliant with this Agreement, Customer will promptly comply with this Agreement and pay the additional fees (at LitePoint’s then-current rates) due plus interest at the rate of 1.5% per month or the highest rate allowed by law, whichever is lower. Customer will also promptly reimburse LitePoint for its reasonable costs of conducting the audit if the audit reveals any noncompliance.
D. Indemnification. Customer will indemnify, hold harmless, and defend LitePoint (including all of its officers, employees, directors, subsidiaries, representatives, affiliates, and agents) and LitePoint’s suppliers from and against any damages (including attorney’s fees and expenses), claims, and lawsuits that arise or result from Customer’s use of the Software and the LitePoint System.
3. TERM AND TERMINATION.
The term of this Agreement shall continue unless terminated in accordance with this Section. LitePoint may terminate this Agreement at any time upon (i) bankruptcy, insolvency or receivership of Customer, or (ii) any material default by Customer of this Agreement not cured within thirty (30) days after notice of such material default. Except for paragraphs A, B, C and D of Section 1, all the remaining provisions of this Agreement shall survive any termination of this Agreement. Customer may terminate this Agreement at any time by ceasing to use the Software and Documentation.
4. AUTOMATIC FEATURES OF THE SOFTWARE.
The Software may contain a feature that is used to automatically enable or disable the Software to ensure that Customer does not use the Software longer than the term of, or beyond the scope of, Customer’s license to use the Software. Customer acknowledges that upon the termination of Customer’s license to use the Software, or if LitePoint has determined in its sole discretion that Customer’s use of the Software exceeds the scope of Customer’s license, the Software may cease to function in some or all respects, and Customer may lose access to data made with or stored using the Software. Customer acknowledges that the disabling of the Software is a key feature of the license rights and responsibilities conveyed under this Agreement.
5. SPECIAL PROVISIONS REGARDING THIRD PARTY SOFTWARE.
The Software may contain or be distributed with third party software that is covered by a different license terms (“Third Party Software”). Information concerning the inclusion of Third Party Software, if any, and the notices, license terms, and disclaimers applicable to that Third Party Software is contained in the Readme.txt file provided with the Software or if there is a separate installation procedure for the Third Part Software, the notices, license terms, and disclaimers applicable to that Third Party Software may be part of the installation of the Third Party Software. This Agreement does not apply to any Third Party Software identified in the Readme.txt file provided with the Software or when a separate Third Party Software license is included with the Third Party Software installation procedure.
6. HIGH RISK ACTIVITIES AND EXPORT CONTROLS.
A. High Risk Activities. The Software is not designed or intended for use, and Customer shall not use the LitePoint System, including but not limited to the Software, in environments that are hazardous or which require fail safe performance, including, but not limited to, nuclear facilities, weapons systems, air traffic control or life support systems, where a failure of the Software could result in death, personal injury or sever physical or property damage (“High Risk Activities”). LitePoint and its licensors hereby expressly waive any liability in connection with Customer’s use of the Software in any High Risk Activities in breach of this Section 6 and Customer agrees to defend, indemnify and hold LitePoint harmless against any alleged claim, demand or judgment made against LitePoint or its licensors based on Customer’s breach of the foregoing restrictions or any use in High Risk Activities.
B. Export Controls. In exercising its rights under this Agreement, Customer agrees to comply fully with all export controls and regulations imposed on the Software and Documentation by the U.S. and any other country, organization or nations within whose jurisdiction Customer does business and neither LitePoint nor its licensors shall have any responsibility under controls and regulations beyond the original country of sale of the LitePoint System in connection with which the Software was provided. Customer represents and warrants that it will not use or transfer the LitePoint System, including but not limited to the Software or Documentation, for any use relating to nuclear, chemical or biological weapons, or missile technology unless authorized to do so by the United State’s Government. Customer agrees to defend, indemnify and hold LitePoint and its licensors harmless in connection with any claim, demand or judgment applicable against LitePoint or its Licensor’s based on Customer’s breach of the foregoing restrictions.
7. GOVERNMENTAL RIGHTS.
The Software and Documentation is deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR 12.212(b), as applicable and any technical data provided that is not covered by the above provisions is deemed to be “technical data-commercial items” pursuant to DFAR Section 227.7015(a) with use governed by the terms of DFAR Section 227.7015(b). Any and all use by the U.S. Government of the Software or Documentation or any of its agencies shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
8. GENERAL PROVISIONS.
Customer shall not assign this Agreement or transfer any of the rights or obligations under this Agreement without the prior written consent of LitePoint and any attempted assignment in violation of the foregoing shall be null and void and of no effect. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. This Agreement will be governed by the laws of the State of California and the United States, without regard to that body of law controlling conflicts of law. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived by the parties. In the event of any claim arising out of this Agreement, to the maximum extent permitted under applicable law, the parties hereby irrevocably submit to the exclusive jurisdiction of the federal and state courts located in San Jose, California. This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights nor effective unless in writing signed on behalf of the party against whom the waiver is asserted. To the extent any provision of this Agreement is found to be invalid, the rest of this Agreement shall continue in full force and effect except to the extent such invalidity would jeopardized LitePoint’s or its licensors’ rights, title and interest in and to their respective portions of the Software or Documentation, including any Intellectual Property Rights, in which case LitePoint shall be entitled to terminate this Agreement upon thirty (30) days prior written notice to Customer. This Agreement represents the entire understanding of the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous agreement or understanding, whether oral or written, with respect to the subject matter hereof. Unless expressly agreed to by the parties pursuant to a separate writing, no additional, supplemental or pre-printed terms in any purchase order, acknowledgement or similar document of Customer shall be deemed a part of this Agreement and are hereby expressly objected to by LitePoint.
Should you have any questions concerning this Agreement, or if you desire to contact LitePoint for any reason, please contact firstname.lastname@example.org