Terms & Conditions
Adesto Terms and Conditions of Sale
1. OFFER AND ACCEPTANCE
These terms and conditions of sale are the exclusive binding agreement (“Agreement”) between the purchaser of Adesto’s products (the “Buyer”) and Adesto Technologies (“Adesto”) for the sale by Adesto and purchase by Buyer of Adesto products ordered by Buyer (“Products”) unless otherwise agreed in a separate written agreement signed by both Adesto and Buyer. Adesto offers to sell products solely on these terms and conditions and this order can only be accepted on this terms and conditions contained in this Agreement. Any additional or different terms and/or conditions contained in Buyer’s documents (including purchase orders) that add to, vary from or are inconsistent with the terms of these Terms and Conditions (the “Terms”), are hereby deemed to be material alterations and Adesto hereby objects and gives notice of objection to, and hereby rejects such additional or different terms and/or conditions. Adesto’s performance under any terms and conditions in Buyer’s documents will not be deemed Adesto’s acceptance of the additional or different terms or waiver of any of these Terms. Acceptance of or payment for any Products by Buyer will constitute Buyer’s assent to and acceptance of these Terms.
All prices are based on, and payment will be due in, US Dollars. The price for the Products under this Agreement are those prices on Adesto’s applicable price list or schedule, or if Buyer has been provided a written quote, then the Adesto written quote will be the price for the Products; provided, however, if Adesto’s quoted price is based on the purchase of a particular quantity of Products within a specified period and Buyer fails to purchase such quantity during the specified period, Adesto (in addition to any other remedies available at law) may collect from Buyer the difference between the price Buyer paid for the Products purchased and the price that Adesto would otherwise charge for the quantity of such Products actually purchased. Price for the Product is for the Product only and does not include, any duties, licenses, or levies imposed on the production, storage, sale, transfer (including VAT), return or delivery of the Product (“Taxes”) or shipping, freight, handling, insurance, loading or other charges and fees applicable to the sale of Products or performance of any services related to such Products (“Services”). Buyer may provide Adesto with the appropriate documentation, in Adesto’s sole opinion, to support any tax exemption for the Products. If the price of fuel, metals, spare parts, consumables, chemicals or other raw materials or other production costs increases significantly, Adesto may impose a reasonable surcharge for all affected Products.
3. TERMS OF PAYMENT
(a) All payments are due and payable in full, without right of offset, thirty (30) days from the date of Adesto’s invoice which may be provided at any time on or after the shipping of the Products. Buyer will make payments at the address or to the bank account specified in Adesto’s invoice or other documentation provided to Buyer in immediately available funds. If Products covered by these Terms are not delivered or performed at one time, Buyer will pay for the aggregate quantity of Products. Each shipment will be considered a separate and independent transaction, and may be charged under one or more invoices or in the aggregate. All amounts past due are subject to a late payment charge at the rate of 1.5% per month or the highest rate permitted by law, whichever is less, to accrue on the unpaid balance on a monthly basis.
(b) Adesto requires the disclosure and approval of Buyer’s financials prior to extending any credit to Buyer for purchase of Products. Adesto may, at any time and at its sole discretion, change or withdraw such credit, for any reason or no reason. If Adesto accordingly changes or withdraws credit, Adesto may require other terms and/or conditions or security arrangements from Buyer or its Affiliates as Adesto, in its sole discretion, deems necessary or appropriate. Adesto will be excused from performance under this Agreement without any liability to Adesto if Adesto changes or withdraws credit hereunder or Buyer does not agree to other payment terms and conditions as Adesto deems appropriate. For the purposes of these Terms, the term “Affiliate” of either party means any person or entity that controls, is controlled by, or is under common control with such party. As used herein, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the party, whether through ownership of voting securities or other interests, by contract or otherwise.
4. ADESTO SECURITY INTEREST.
This Agreement is intended to be a security agreement pursuant to the Uniform Commercial Code (the “UCC”), as amended from time to time. Buyer hereby grants, and will perfect such grant, to Adesto a first priority security interest (which will be considered a fixed charge), mortgage and lien in and to any Products sold for the period commencing on the date the Products are duly delivered by Adesto to Buyer or its designees hereunder until the date that payment of the invoiced amount has been made by Buyer and received in full by Adesto. Upon Buyer’s breach of any term in these Terms, Adesto will have the rights and remedies of a senior secured creditor under the UCC or any other applicable law, including foreign equivalents thereof. Buyer will not, without Adesto’s prior written consent, relocate, encumber, pledge, transfer, sell, distribute, lease or grant a lien or mortgage or grant or create any additional security interest, in the Products until invoiced amounts are paid and received in full. Upon default of Buyer under any term hereunder, Adesto may pursue all rights and remedies of a senior secured creditor available under the UCC or other applicable law, including foreign equivalents thereof. Buyer will make Products available so that Adesto can repossess and reclaim the Products without breach of peace and otherwise foreclose, enforce and execute its security interest, mortgage or lien, as applicable under relevant law. Buyer agrees Adesto may file any financing statements and amendments thereto (including any UCC filings) as Adesto deems necessary or appropriate to protect its rights and interest in the Products and to effectuate the purposes of this Section 4. Adesto may file a copy of the invoice or any other documents with appropriate authorities at any time as a financing statement or any other filing as contemplated herein. Upon Adesto’s request, Buyer will execute any documents and extend full cooperation and assistance to perfect Adesto’s security interest in any Products.
5. TITLE, ACCEPTANCE AND DELIVERY
(a) Unless otherwise provided in Adesto’s quote or invoice to Buyer, all delivery and shipments by Adesto are EXW Adesto’s facility, or, if applicable, the facility of Adesto’s subcontractor (Incoterms 2010). Upon delivery to the facility of Adesto or Adesto’s subcontractor, title and risk of loss or damage to Products (excluding Licensed Software (defined in Section 8 below)) will pass to Buyer.
(b) Adesto will make commercially reasonable efforts to meet requested delivery and performance dates; provided, however, that Buyer acknowledges and agrees (i) delivery and performance dates are estimates only, (ii) Adesto may change delivery and performance dates, or quantities of Products to be delivered and/or Services to be performed, and (iii) Adesto may allocate Products among Adesto’s customers as Adesto deems necessary or appropriate. Adesto will not be liable for failure to deliver or perform, or delays in delivering or performing, on or by the estimated dates. Buyer may reduce, reschedule or cancel a purchase order placed with Adesto, for which delivery remains outstanding, only with Adesto’s prior written consent. No changes to Buyer’s purchases will be accepted once Product has been prepared for delivery to Buyer or the manufacturing process for such Product has started at the wafer stage.
(c) Any and all Product(s) Adesto sells, makes available or provides will be deemed accepted by Buyer upon delivery in accordance with Section 5(a).
(a) For a period of one (1) year from the date of Adesto’s invoice (“Warranty Period”), Adesto hereby warrants to Buyer that Products purchased and delivered under such invoice and these Terms, (i) will comply substantially with the Adesto data sheets applicable to the particular Products and published by Adesto or the specifications mutually agreed upon in writing between Adesto and Buyer, in either case that are in effect at the time such Products were purchased by and delivered to Buyer, and (ii) will be free from defects in material and workmanship under proper use, service and conditions for Products purchased by Buyer;
(b) Adesto will have no liability or obligation, and the foregoing warranty will be null and void, for any failure of any Product to conform with the foregoing warranty if Product failure is caused by accident, abuse, misuse, use in applications not authorized by Adesto or for which the Product is not designed, neglect, alteration, modification, derivative, combination, improper storage, improper installation, repair, improper testing, servicing not done by Adesto, practice of any process or method relating to the use of the Products by Buyer or any other third party or relating to the manufacture, assembly, testing, finishing, packaging or other processing of or for the Products, Buyer’s intentional misconduct or negligence, use contrary to any specifications for such Product or data sheets or instructions issued or agreed by Adesto, or Adesto’s compliance with any designs, specifications or instructions provided by or for Buyer or any industry or proprietary standard or the design, production, use, offer or sale of the Products to enable implementation of any such industry or proprietary standard.
(c) If, during the Warranty Period a Product does not conform to the warranty set forth herein, (i) Buyer will notify Adesto promptly in writing upon discovery, (ii) Buyer will provide Adesto a detailed description of such nonconformance, (iii) Buyer will obtain a Returned Material Authorization number (“RMA”) from Adesto, (iv) Buyer will return such Product to Adesto, CIP Adesto’s facility (Incoterms 2010), and (v) if Adesto confirms to Adesto’s satisfaction that such Product does not conform to the warranty in Section 6(a) and that the failure of such Product to conform to such warranty is not a result of any cause stated in in this Section 6(b), Adesto will, at its sole option, either replace or credit Buyer the purchase price of such nonconforming Product. The warranty in Section 6(a) will apply to replacement Products for the remainder of the original Product’s Warranty Period.
(d) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING WARRANTY REMEDY CONSTITUTES ADESTO’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION, AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF ANY WARRANTY OR OTHER DEFECT, FAILURE OR NONCONFORMITY OF THE PRODUCTS. THIS WARRANTY IS EXCLUSIVE, AND IN LIEU OF ANY AND ALL OTHER WARRANTIES. ADESTO MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THAT MAY ARISE FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, COURSE OF CONDUCT OR USAGE OR CUSTOM IN THE TRADE. ADESTO DOES NOT EXTEND THE WARRANTY IN THIS SECTION 6, AND BUYER MAY NOT TRANSFER OR ASSIGN IT, IN WHOLE OR IN PART, TO BUYER’S AFFILIATES, BUYER’S CUSTOMERS OR DISTRIBUTORS, END USERS OF PRODUCTS OR ANY OTHER THIRD PARTIES.
(e) OTHER THAN AS PROVIDED WITH RESPECT TO ADESTO’S EXPRESS WARRANTY OBLIGATIONS IN THESE TERMS, ADESTO IS NOT LIABLE FOR ANY COSTS ASSOCIATED WITH THE REMOVAL, REPLACEMENT, OR REPAIR OF ANY PRODUCT OR AVAILABILITY OR DELIVERY OF ANY REPLACEMENT PRODUCT, OR ANY OTHER REMEDY THAT MAY BE AVAILABLE TO BUYER, INCLUDING LABOR, INSTALLATION, OR OTHER COSTS THAT MAY BE INCURRED BY BUYER.
(g) SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THEY MAY IMPOSE LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SUCH THAT THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY. TO THE EXTENT REQUIRED BY LAW, ANY IMPLIED WARRANTIES THAT APPLY TO THE PRODUCTS SHALL BE LIMITED TO 30 DAYS. BUYER MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION, BUT AGREES AND ACKNOWLEDGES THAT THE TERMS HEREIN SHALL CONTROL.
(h) THE RIGHTS AND REMEDIES SET FORTH IN THIS SECTION 6 ARE ADESTO’S SOLE AND EXCLUSIVE LIABILITY, AND BUYER’S AND ITS ASSIGNS’ OR BENEFICIARIES’ SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY OR ANY OTHER CLAIM FOR BREACH OF WARRANTY OR CONTRACT.
7. CONFIDENTIAL INFORMATION.
Adesto will use Buyer-related data, including but not limited to Buyer’s address and contact person information during the term of the parties’ business relationship. Unless otherwise agreed in writing, Buyer acknowledges and agrees that such data may be used and distributed within Adesto and to certain third parties, such as contractors, subcontractors, service providers and representatives of Adesto. All data and information Buyer obtains from Adesto that Buyer knows, or should know, are confidential to Adesto or other third parties, including, but not limited to, pricing and lead-time information, will remain Adesto’s confidential information and Buyer shall not disclose, or provide access to, such information to any third party or otherwise misuse or misappropriate such information.
Unless otherwise agreed in a separate End User License Agreement between Adesto and Buyer (“EULA”), the following terms and conditions will apply to software and firmware that Adesto develops for or offers to Buyer, including, without limitation, any software or firmware customized by Adesto for Buyer (“Licensed Software”), and to documentation, manuals or other technical information for such Licensed Software that is provided by Adesto (“Software Documentation”): (a) Adesto or Adesto’s licensor retains full rights, title, and ownership including all patents, copyrights, trade secrets, trade names, trademarks, and other intellectual property or other rights in and to the Licensed Software and Software Documentation; (b) With respect to any Licensed Software (including without limitation, any software contained in or offered as a part of a development kit), subject to these terms, Adesto grants to Buyer a non-exclusive, non-transferable, non-sublicensable, limited license to (i) use internally such Licensed Software solely in connection with an Adesto Product purchased by Buyer hereunder, (ii) distribute any Licensed Software that is embedded or incorporated into Adesto Product by Adesto in machine code only as programmed into such Adesto Product and sold or provided as part of such Product purchased by Buyer (“Licensed Firmware”), and (iii) use internally any Software Documentation for such Licensed Software solely in connection with internal use of the Licensed Software under clause (i) above; (c) Buyer shall not, and shall cause its Affiliates, its and their customers, distributors, employees, directors, officers, representatives and agents not to (w) engage in (and will take all reasonable steps to prevent), unauthorized use and disclosure of, including without limitation, any effort to reverse engineer, disassemble, de-compile, or otherwise attempt to derive the source code of, or any other misuse or misappropriation of, or infringement of any rights in, any Licensed Software or any portion thereof, (x) copy, reproduce, modify, create derivative works of, develop, sell, distribute, disclose or otherwise exploit any Licensed Software or any portion thereof (including filing for, registering, prosecuting, asserting or enforcing any patents, copyrights or any other rights thereof), except as expressly permitted in this Section 8, (y) otherwise make any Licensed Firmware available for execution on, or other use with, any products, including semiconductor devices or any other hardware or software, except for or with the Products with which such Licensed Firmware was developed or provided by Adesto, or (z) program or incorporate into, combine or integrate with, any Products or any part thereof any Licensed Firmware updates, bug fixes, improvements or upgrades (whether Buyer obtained them from Adesto or otherwise), except as expressly permitted in any EULA; and (d) Buyer will not remove or destroy any trademark, copyright markings, legends or any other marks or notices placed upon, provided with or contained within the Licensed Software, Licensed Firmware or Software Documentation. For avoidance of doubt, (i) the term “Product,” as used in this Section 8, includes Licensed Software, Licensed Firmware and Software Documentation, but excludes any software, firmware or any other code or programs provided to Adesto by or for Buyer (“Buyer Code”), and (ii) the term “Service,” as used in these Terms, includes any programming, development or integration of Buyer Code into any Products by Adesto if such programming, development or integration services are offered by Adesto and requested by Buyer pursuant to a purchase order or EULA.
(a) Subject to Buyer’s compliance with the terms of this Agreement, Adesto agrees to defend Buyer from and against, or settle at its election, any actual or alleged claims, demands, liability, charges, suits, damages, losses or other action or proceeding solely to the extent the same arise out of third party claims (collectively, “Claims”), that the Product as delivered by Adesto to Buyer, infringes or misappropriates such third party’s US, Japanese, or EU member country registered patent(s) (excluding processes or methods claimed by such patent(s)), registered trademark(s) or copyright(s) (“Third Party IP Rights”); provided, that Buyer gives Adesto sole control over the defense or settlement thereof with counsel selected by the Adesto and prompt written notice of an such Claim within five (5) business days of receiving or having knowledge of such Claim. Any Claim arising from or related to the use of (i) Products as a part of, incorporated in, or integrated or in combination with any other devices, products, parts, processes, methods, or software or firmware including, without limitation any intellectual property or other rights of Buyer or any third party, whether or not modified, offered or sold by Adesto, (ii) Adesto’s compliance with any designs, specifications, or instructions provided by or for Buyer, (iii) the use of Products contrary to any Adesto instructions, data sheets, specifications or in breach of these Terms, (iv) modifications or alterations to, or updates, revisions, improvements or other derivatives of or to, the Products, in whole or in part, (v) the practice of any process or method relating to Buyer’s or its Buyers’ use of the Products or relating to the manufacture, production, assembly, testing, finishing, packaging or other processing of or for the Products, (vii) use or purchase of the Products after receiving notice of such claim, (viii) Adesto’s compliance with any industry or proprietary standard or Buyer’s use of the Products to enable implementation of any industry or proprietary standard, (ix) any trademark or copyright infringement involving any marking or branding not applied by Adesto or involving any marking or branding applied at the request of Distributor, or (x) Buyer’s intentional, knowing, or willful infringement or misappropriation of the third party intellectual property rights are specifically excluded (items (i) through and including (x) collectively referred as “Excluded Claims”). Buyer will have the right to retain its own counsel to participate in the defense, subject to Adesto’s right to control the defense. The obligations of Adesto under this Section 9(a) will not apply to amounts paid in settlement of any Claim, demand, action or other proceeding, including arbitration, mediation or other alternative dispute resolution procedure, if such settlement is effected without the prior express written consent of Adesto, which consent will not be unreasonably withheld. The failure to deliver written notice to Adesto within the required time after notice of any Claim, or the commencement of any such Claim, will not relieve such Adesto of its obligations to Buyer under this Section 9(a) with respect thereto, but if such failure is prejudicial to the Adesto’s ability to defend or settle such Claim, demand, action or other proceeding, and if such prejudice results in liabilities, losses, costs and expenses that would likely have been avoided, reduced or minimized if timely notice had been given, then Adesto will be relieved of its obligations to Buyer hereunder. The Buyer, its employees, representatives and agents, will fully cooperate with and provide assistance to Adesto and its legal representatives in the investigation, defense or settlement of any Claim, demand, action or other proceeding. Adesto will pay when due any final judgment not subject to further appeal awarding damages to the extent such award is based upon a ruling that the Product in the form purchased by Buyer and delivered by Adesto to Buyer hereunder infringes such Third Party IP Rights, but will not be liable or responsible for any settlement or compromise made without Adesto’s prior written consent or legal fees (including any court or related costs) incurred by Buyer or any of its Affiliates, or their respective employees, representatives and agents, in connection with any such settlement or compromise.
(b) In full satisfaction of all of its obligations under Section 9(a), Adesto, at its sole discretion, may (i) replace or modify the allegedly infringing Products with non-infringing products that are functionally equivalent, (ii) obtain a release of claims against Buyer or covering those Products sold to Buyer, (iii) obtain a license or any other right for Buyer to continue to use or sell the allegedly infringing Products, or (iv) accept the return of allegedly infringing Products and refund the amount paid by the Buyer for such returned Products.
(c) THIS SECTION 9 STATES ADESTO’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT BY ANY PRODUCTS OR SERVICES DELIVERED HEREUNDER, OR ANY PART THEREOF. THIS SECTION 9 IS IN LIEU OF AND REPLACES ANY OTHER EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTY RELATING TO ANY SUCH INFRINGEMENT OR MISAPPROPRIATION. IN NO EVENT WILL ADESTO BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR OTHER DAMAGES RESULTING FROM ANY SUCH INFRINGEMENT OR MISAPPROPRIATION.
(e) Buyer, at its own expense, will indemnify and hold Adesto and its Affiliates harmless from and against any liabilities, costs, damages, claims, charges or losses (including attorneys’ fees and court costs) resulting from or related to any Excluded Claim, and will defend or settle at Buyer’s own expense, including attorneys’ fees and court costs, any suit against Adesto based on any allegation or Claim arising from any Excluded Claim, provided that (i) Adesto gives Buyer prompt notice in writing of any such Claim, and (ii) Adesto and Buyer give each other all needed information, cooperation and assistance, at their own respective expense, necessary to defend or settle such Claim.
10. INTELLECTUAL PROPERTY
Buyer acknowledges and agrees (i) all intellectual property and other rights provided hereunder are licensed or offered for limited use only and not sold, conveyed, transferred or assigned, or otherwise offered for such sale or transfer, (ii) Adesto or its licensors will retain (a) all patents, copyrights, trade secret rights, interests and title, and any other intellectual property or other rights it possesses with regard to any and all design, process, manufacturing and other technologies used in or resulting from the development, processing, manufacture, production, sale or delivery of Products, and (b) rights or title to and possession of all tooling, material or equipment Adesto or its suppliers and subcontractors use in the manufacture, testing, assembly, packaging or other processing of Products furnished under these Terms. Neither Buyer nor any third party (whether by implication, operation of law, estoppel or otherwise) will have any right or license in or to any patent, copyright, trade secret right, mask work right, or any other intellectual property or other rights not expressly granted by Adesto in these Terms.
11. RESTRICTED USE FOR MEDICAL, MILITARY AND AUTOMOTIVE APPLICATIONS
(a) Products are not approved, designed for and shall not be used in medical applications (including, but not limited to, life support systems and other medical equipment), weapons, military use, avionics, satellites, nuclear applications, or other high risk applications (e.g., applications that, if they fail, can be reasonably expected to result in personal injury or death) or automotive applications without the prior written consent of Adesto.
(b) Buyer will fully defend (at Adesto’s option), indemnify and hold Adesto and its Affiliates harmless from and against any cost, loss, liability, or expense arising out of or related to use of Products in Section 11(a) above.
12. COMPLIANCE WITH LAWS.
Buyer will comply with all applicable laws, regulations, and administrative rules and without limiting the generality of the foregoing, Buyer represents and warrants that it is knowledgeable as to United States and other relevant laws, regulations and requirements regarding the environment, substances and materials, and the export (including deemed exports), transfer, import or re-export of Products. Buyer will not export, re-export, resell, ship or divert or cause to be exported, re-exported, resold, shipped or diverted, Adesto’s products, software, confidential information or technology to any country, destination, person, entity, end-use or end-user that requires an export license or other authorization or approval without first obtaining such license, authorization or approval. Buyer will conduct its activities in accordance with all applicable environmental and material regulations, including, without limitation, WEEE, RoHS and any similar or other rules. Adesto may suspend performance, sale or delivery if Buyer violates any applicable laws, regulations or rules.
(a) Adesto may terminate (in addition to any other rights or remedies provided herein or at law or in equity) any agreement or relationship with Buyer, including any purchase orders, EULA or any other agreement or obligation, in whole or in part, by written notice to Buyer, without incurring any liability, losses, costs or expenses for, (i) Buyer’s failure to comply with these Terms, (ii) Buyers failure to make payment for any Products or Services in full when due; (iii) Buyer failure to accept conforming Products or Services supplied under these Terms, (iv) the filing of a voluntary or involuntary petition in bankruptcy by or against Buyer, the institution of any proceeding in insolvency or bankruptcy (including reorganization) against Buyer, Buyer’s insolvency, or an assignment for the benefit of creditors of Buyer or any other similar proceeding; (v) at Adesto’s convenience with prior thirty (3) day written notice to Buyer. Buyer will pay all costs, including reasonable attorney’s fees, Adesto incurs in any action or proceeding Adesto brings to collect payments owing or otherwise enforce its rights under these Terms or any other agreement.
(b) Upon termination of this Agreement, Sections 3, 4, 5, 6, 7, 9, 12, 13, 14, 15 and 16 shall survive.
14. FORCE MAJEURE
Adesto will not be liable for any failure or delay in its performance or in the delivery or shipment of Product or Services, or for any damages suffered by Buyer by reason of such failure or delay, when such failure or delay is caused by, or arises in connection with, any fire, flood, accident, riot, earthquake, severe weather, war, governmental interference or embargo, strike, labor disputes, shortage of labor, fuel, power, materials or supplies, delay in delivery by Adesto’s suppliers, failure of suppliers, political, social or economic conditions or any other cause or causes beyond Adesto’s reasonable control (“Force Majeure”). Buyer reserves the right to cancel without liability any Purchase Order, the shipment of which is or may be delayed for more than 45 days by reason of any such case of Force Majeure. Adesto reserves the right, in its sole discretion, to allocate among any potential purchasers, or defer or delay the shipment of, any Product which is in short supply due to any case of Force Majeure.
15. LIMITATION OF LIABILITY
(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ADESTO NOR ANY OF ITS AFFILIATES WILL IN NO EVENT BE LIABLE TO BUYER, ITS AFFILIATES OR ANY THIRD PARTIES FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OR FOR LOST PROFITS OR LOSS OF BUSINESS, WHETHER IN AN ACTION BASED ON CONTRACT, TORT, (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, ARISING FROM OR RELATED TO THE TRANSACTIONS OR ACTIVITIES CONTEMPLATED HEREUNDER, EVEN IF ADESTO IS APPRISED OF OR SHOULD HAVE KNOWN THE LIKELIHOOD OF SUCH DAMAGES OR ANY OTHER LIABILITIES OCCURRING.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, IN NO EVENT WILL ADESTO’S TOTAL LIABILITY, INCLUDING ANY ATTORNEYS’ FEES AND COSTS INCURRED, ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED HEREUNDER (INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR INDEMNITY CLAIMS) OR ANY OF THE TERMS HEREIN, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT BUYER PAID TO ADESTO DURING THE PRIOR TWELVE MONTHS FOR THE PRODUCTS OR SERVICES ACTUALLY GIVING RISE TO SUCH LIABILITY (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT WITHOUT ANY POSSIBILITY OF APPEAL IN OR FINAL, UNCONDITIONAL AND BINDING SETTLEMENT OF SUCH ACTION OR IF THERE IS NO ACTION THE DATE THE BUYER WAS FIRST PLACED ON NOTICE OF THE CLAIM GIVING RISE TO THE LIABILITY). THIS LIMITATION IS CUMULATIVE WITH ALL PAYMENTS MADE TO BUYER FOR ANY CLAIMS OR DAMAGES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT.
(c) NOTWITHSTANDING ANY STATUTES OF LIMITATIONS APPLICABLE TO BUYER, BUYER AGREES THAT IT MAY NOT BRING ANY CLAIM, SUIT OR ACTION AGAINST ADESTO MORE THAN ONE YEAR AFTER THE EVENTS AND FACTS GIVING RISE TO THE CAUSE OF ACTION OCCUR.
(d) BUYER ACKNOWLEDGES THAT ADESTO HAS SET ITS PRICES AND FEES AND AGREED TO SELL PRODUCTS AND SERVICES TO BUYER IN RELIANCE UPON THE LIMITATIONS OF LIABILITY, DISCLAIMER OF WARRANTIES, EXCLUSION OF DAMAGES AND EXCLUSIVE REMEDIES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH ADESTO WOULD NOT HAVE AGREED TO SELL PRODUCTS AND SERVICES TO BUYER. SUCH PROVISIONS WILL SURVIVE AND APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
(e) NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, ADESTO WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY EXCESS COSTS OF REPROCUREMENT.
(a) Entire Agreement, Modification. This Agreement, together with the exhibits hereto constitutes the entire agreement between the Parties, and will bind each of the Parties, their agents, employees and affiliated companies, and their successors and permitted assigns. No agreement or understanding in any way modifying this Agreement, either before or after the execution hereof, will be binding upon either Party unless in writing and signed by both Parties. This Agreement will be binding upon and will inure to the benefit of the Parties.
(b) Governing Law, Jurisdiction and Interpretation. This Agreement shall be governed by, subject to, and construed in accordance with the internal laws of the State of California, excluding the conflict of law rules. The parties hereby agree that any disputes arising from this Agreement will be subject to the exclusive jurisdiction of the state or federal courts located in Santa Clara County, California. The parties hereby irrevocably submit to the personal jurisdiction of such courts and irrevocably waive all objections to such venue. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods. This Agreement will be interpreted without regard to which Party is deemed to have drafted the Agreement. If any one or more of the provisions contained in this Agreement will, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision hereof, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
(c) Applicable Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof and any other language shall not be binding on the parties hereto. All communications and notices to be made or given pursuant to this Agreement and any dispute resolution (including, but not limited to, any court proceeding) shall be in the English language only.
(d) Headings. The headings of the Sections in this Agreement are for convenience only and will not be deemed to affect, qualify, simplify, add to or subtract from the contents of the clauses that they reference.
(e) Severability. If any one or more of the provisions contained in this Agreement will, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision hereof, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
(f) Export. Each Party acknowledges that the Product may be subject to U.S. or foreign export control laws. The Parties will cooperate to ensure that the exports from the United States are in compliance with, and each Party shall comply with, such export control laws.
(g) Non-Waiver. Failure by either Party to insist upon strict performance of any of the terms and conditions hereof, or delay in exercising any rights or remedies provided herein, will not release the other Party from any of the obligations of this Agreement and will not be deemed a waiver of any rights of such other Party to insist upon strict performance thereof.
(h) Assignment. Buyer may not assign, sell, transfer, delegate, subcontract or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, any rights or obligations under this Agreement without the prior written consent of the other Party; provided, however, that either Party, without the consent of the other, may assign this Agreement to any Affiliate or successor entity or assigns into which such Party will have been merged or consolidated or to which such Party will have sold or transferred its equity or all or substantially all of its assets and that has agreed in writing to be bound by all of the obligations of such Party hereunder. Except as provided herein, any purported assignment, transfer or delegation will be null and void.
(i) No Third Party Beneficiaries. This Agreement is intended to benefit only for the Parties and no person or entity is a party to this Agreement, and no other person or entity will have any rights hereunder, including, without limitation, any rights as a third party beneficiary.
(j) Adesto and Contractor Facilities. Adesto Product (all or part) may be developed, manufactured, tested, assembled or otherwise worked on, or delivered from any of Adesto’s or its contractors’ facilities, domestic and foreign.