Terms & Conditions
Adesto Technologies Corporation Seller Terms and Conditions
1. Purchase of the Products. ADESTO agrees to sell to CUSTOMER the hardware products (“Hardware Products”) and license to CUSTOMER the software products (“Software Products”) (collectively the “Products”), and provide the Services, listed in ADESTO’s Sales Acknowledgment pursuant to these Seller Terms and Conditions (“Agreement”) in effect as of the date of sale. Any Software Products in the Sales Acknowledgment are licensed subject to the applicable software license agreement governing such Products, as provided via shrinkwrap, break the seal, click through, mutually signed agreement, or as noticed on ADESTO’s corporate website, as the case may be for each such Product. 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 CUSTOMER’s documents (including purchase orders) that add to, vary from or are inconsistent with the terms of this Agreement, 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 CUSTOMER’s documents will not be deemed ADESTO’s acceptance of the additional or different terms or waiver of any terms and conditions of this Agreement. Acceptance of or payment for any Products by CUSTOMER will constitute CUSTOMER’s acceptance of this Agreement.
2. Support Services. ADESTO agrees to use commercially reasonable efforts to provide to CUSTOMER the support, design review, training and other services listed in ADESTO’s Sales Acknowledgment (“Services”), all under the terms and conditions governing such Services and in accordance with the specifications therefor. Except as provided in Section 7, Services are provided only for the then current-version of a Software Product.
3. Prices, License Fees, Service Fees and Taxes.
a. The prices for Hardware Products, the license fees for Software Products, and the service fees for Services are exclusive of all taxes, including foreign, federal, state, municipal, or other government taxes (except taxes paid on ADESTO’s net income) and do not include any duties, licenses, or levies imposed on the production, storage, sale, transfer (including VAT) and delivery. Any such amount referenced in this Section 3(a) shall be paid by CUSTOMER. All prices are quoted and to be paid in United States Dollars.
b. All payments by CUSTOMER shall be made free and clear of, and without reduction for, any withholding taxes. Any such taxes which are otherwise imposed on payments to ADESTO shall be the sole responsibility of CUSTOMER. CUSTOMER shall provide ADESTO with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by ADESTO to establish that such taxes have been paid.
c. The price for the Products and Services are those prices on ADESTO’s applicable price list or schedule, or if CUSTOMER has been provided a written quote, then the ADESTO written quote will be the price for the Products and Services; provided, however, if ADESTO’s quoted price is based on the purchase of a particular quantity of Products within a specified period and CUSTOMER fails to purchase such quantity during the specified period, ADESTO (in addition to any other remedies available at law) may collect from CUSTOMER the difference between the price CUSTOMER paid for the Products purchased and the price that ADESTO would otherwise charge for the quantity of such Products actually purchased. 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.
d. CUSTOMER will make payments at the address or to the bank account specified in ADESTO’s invoice or other documentation provided to CUSTOMER in immediately available funds. If Products covered by this Agreement are not delivered or performed at one time, CUSTOMER 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.
4. Terms of Payment. CUSTOMER agrees to pay ADESTO’s invoices in full, without right of offset, within thirty (30) days of the shipment of Products or within thirty (30) days of the invoice date for Services; provided, however, that ADESTO reserves the right to require payment in advance or by letter of credit. If payment of any amount due to ADESTO becomes overdue, ADESTO may, without prejudice to any other right or remedy (i) charge interest on a day to day basis from the invoice date until payment in full on the outstanding amount at the rate of one and one-half percent (1.5%) per month or, if less, such other rate as my be the maximum permitted by law, (ii) require payment in advance of delivery of undelivered Products or (iii) suspend delivery of any orders. All payments are to be made in United States Dollars. ADESTO may, at any time and at its sole discretion, change or withdraw such credit, for any reason or no reason.
a. Unless otherwise expressly agreed in writing and signed by ADESTO, all products are sold ExWorks ADESTO’s facility, or, if applicable, ADESTO’s designated shipping facility). Freight and duty, as applicable, will be charged from this shipping point and shall be paid by CUSTOMER. Title, and risk of loss of or damage to the Products is transferred from ADESTO to CUSTOMER when ADESTO delivers the Products to the carrier. Insurance charges (if insurance is requested by CUSTOMER in writing) will be collect or, if prepaid, will be invoiced to and paid by CUSTOMER. Scheduled shipment dates for delivery to carrier are estimates only. All shipment terms hereunder are Incoterms 2010. In the absence of mutually agreed instructions, ADESTO will ship the Products by the method it deems most advantageous, in its sole discretion.
b. ADESTO will make commercially reasonable efforts to meet requested delivery and performance dates; provided, however, that CUSTOMER 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.
c. Unless otherwise agreed to in writing and signed by ADESTO, ADESTO shall use standard commercial packaging. When special packaging is requested or in the opinion of ADESTO, required, the costs of the same, if not set forth on the invoice, will be separately in voiced to and paid by CUSTOMER. Products held or stored for CUSTOMER after an agreed upon carrier delivery date shall be held or stored at CUSTOMER’s sole expense and risk.
d. 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 CUSTOMER 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”). CUSTOMER 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.
e. Product(s) will be deemed accepted by CUSTOMER upon delivery in accordance with Section 5(a).
6. Cancellation or Delay of Orders.
a. For Hardware Products that are integrated circuits furnished in die, packaged die or wafer form (“IC Products”), CUSTOMER may cancel any order (or part thereof) or postpone delivery dates for certain IC Products by giving ADESTO written notice specifying the requested change (“Change Notice”). CUSTOMER must provide the Change Notice in time for ADESTO to receive it in advance of the specified shipment date (either Scheduled Ship Date or Original Ship Date, both defined below) by the number of days shown in the table below. No other cancellation or rescheduling shall be permitted without ADESTO’s prior express written consent. Change Notices shall not be effective without ADESTO’s written confirmation of receipt of such Change Notice. “Original Ship Date” means the shipment date specified by ADESTO when CUSTOMER first placed the purchase order. “Scheduled Ship Date” means the currently scheduled shipment date.
|Cancellation Terms||Reschedule Terms|
|Standard Products||No Cancellation within 30 days of Scheduled Ship Date||No reschedules within 30 Days of Scheduled Ship Date; three (3) reschedules maximum allowed 30 days outside of Scheduled Ship Date for no more than 90 days from Original Ship Date.|
|Custom Products||No Cancellation||No reschedules within 120 Days of Scheduled Ship Date; three (3) reschedules max allowed 120 days outside of Scheduled Ship Date for no more than 90 days from Original Ship Date.|
|NCNR Products||No Cancellation||No reschedules allowed later than the original requested or scheduled ship date. Product cannot be returned for any reason except in accordance with applicable limited warranty herein.|
“Custom Product” means IC Product that contains customer-specific programming, marking, labeling, or other specifications unique to CUSTOMER and IC Products not generally available through ADESTO’s standard price list. “Standard Product” means a Product that is not defined as Custom Product. “NCNR” means an order that is identified as not cancelable or not returnable or both, whether designated as a “final” sale or “NCNR” or otherwise.
b. For other Hardware Products, CUSTOMER may cancel any order (or part thereof) or postpone delivery dates for any Hardware Products without charge by giving ADESTO written notice not less than ninety (90) days (“Freeze Date”) prior to ADESTO’s scheduled carrier delivery date for those Hardware Products. If CUSTOMER requests a postponement of over six (6) months, the order for such Hardware Products shall be considered canceled. Additionally, for such other Hardware Products:
(i) If CUSTOMER cancels any order (or part thereof) or requests delay in delivery after the Freeze Date of Hardware Products with an aggregate sales price greater than $2,500, CUSTOMER will pay a fifteen percent (15%) restocking charge. Cancellation or delay of orders with an aggregate sales price equal to or Jess than $2,500 is not subject to the restocking charge. CUSTOMER will have no rights in partially completed goods from canceled orders.
(ii) If CUSTOMER requests and is granted a delay in delivery, and if ADESTO has, prior to such request, notified CUSTOMER of price changes that are effective at the time of the new scheduled carrier delivery date, then ADESTO’s price to CUSTOMER on Hardware Products for which delivery was delayed and any penalties due to ADESTO hereunder shall be based upon ADESTO’s new list prices.
7. Substitutions and Modifications; Discontinuances. ADESTO reserves the right to make substitutions or modifications to the specifications or implementations of the Products, at ADESTO’s sole discretion. ADESTO may from time to time discontinue Products or versions thereof, and stop supporting these Products and versions thereof within a reasonable time after discontinuance, or discontinue offering any or all Services.
8. Security Interest. To the extent per mitted by applicable law, (i) ADESTO hereby reserves a purchase money security interest in all Products sold or licensed hereunder and the proceeds thereof in the amount of their purchase price until all such Products have been paid for in full. CUSTOMER hereby agrees to perform all acts necessary or appropriate to assist ADESTO in perfecting and maintaining such security interest. In the event of a default by CUSTOMER of any of its obligations to ADESTO, ADESTO will have the right, without liability to CUSTOMER, to repossess the Products sold or licensed hereunder, or (ii) ownership, legal or beneficial, of the Products will not pass to the CUSTOMER until ADESTO has received full payment in cleared funds for all sums owing to ADESTO on any account. Until ownership passes to the CUSTOMER, the Products shall be held by the CUSTOMER as ADESTO’s fiduciary agent and bailee, the CUSTOMER shall keep the Products identified as ADESTO’s property, and at the CUSTOMER’s expense, on request by ADESTO, immediately return the Products or permit ADESTO’s representatives to enter the CUSTOMER’s premises and repossess such Products.
9. Installation. For applicable Products, CUSTOMER will be provided with telephone support for Product installation in accordance with ADESTO’s standard practices.
10. Limited Warranty. Unless otherwise expressly agreed to in a writing signed by ADESTO, for a period of one (1) year after shipment to CUSTOMER, ADESTO warrants (i) the Hardware Products only against defects in materials and workmanship under proper use, service and conditions for such Hardware Products, and (ii) for IC Products that are Standard Product, those IC Products will comply substantially with the data sheet applicable to those IC Products as published by ADESTO and in effect as of the date of sale. ADESTO’s sole and exclusive liability and CUSTOMER’s sole remedy under this warranty shall be, at ADESTO’s option, to (i) provide repaired or replacement Hardware Products for such defective Hardware Products or (ii) provide CUSTOMER with a credit equal to the applicable purchase price. The Products which CUSTOMER considers defective shall be returned per ADESTO’s standard Return Material Authorization procedures, with the return to ADESTO DDP ADESTO’s designated facility. This warranty shall be void if, in ADESTO’s reasonable opinion, such defective condition was caused in whole or in part by CUSTOMER’s misuse, neglect, improper installation or testing, combination, alteration, modification, attempts to repair, use in applications not authorized by ADESTO or for which the Product is not designed, or ADESTO’s compliance with any designs, specifications or instructions provided by or for CUSTOMER or any industry or proprietary standard, or any other cause beyond normal usage in accordance with ADESTO’s written specifications, or by accident, fire, or other hazard. Repair or replacement does not extend the warranty period for such Product. The limited warranty, if any, for Software Products will be as set forth in the software license agreement accompanying the Products. ADESTO makes no warranty for Services. The warranty contained herein applies only to commercial production units of Product, and not to sample, preproduction or developmental versions. The warranty contained herein is made and valid to the original CUSTOMER only, and not to any subsequent purchaser. ADESTO’s published data sheets are controlled specifications applicable to Products at the time of sale, do not include any advertisements or marketing or sales materials, do not make representations or warranties regarding third party products or applications, and are subject to change by ADESTO at any time.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING WARRANTY REMEDY CONSTITUTES ADESTO’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF ANY WARRANTY OR OTHER DEFECT, FAILURE OR NONCONFORMITY OF THE PRODUCTS. THE WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, INTELLECTUAL PROPERTY OWNERSHIP, SATISFACTORY QUALITY OR THAT MAY ARISE IN THE COURSE OF DEALING OR CONDUCT. ADESTO DOES NOT EXTEND THE WARRANTIES HEREIN, AND CUSTOMER MAY NOT TRANSFER OR ASSIGN IT, IN WHOLE OR IN PART, TO CUSTOMER’S AFFILIATES, CUSTOMER’S CUSTOMERS OR DISTRIBUTORS, END USERS OF PRODUCTS OR ANY OTHER THIRD PARTIES. WITH RESPECT TO SERVICES, ADESTO SPECIFICALLY DOES NOT GUARANTEE THAT ALL PROBLEMS WILL BE SOLVED OR THAT ANY RESPONSE WILL BE ERROR-FREE. OTHER THAN AS PROVIDED WITH RESPECT TO ADESTO’S EXPRESS WARRANTY OBLIGATIONS IN THIS AGREEMENT, 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 CUSTOMER, INCLUDING LABOR, INSTALLATION, OR OTHER COSTS THAT MAY BE INCURRED BY CUSTOMER.
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 THIRTY (30) DAYS. CUSTOMER MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION, BUT AGREES AND ACKNOWLEDGES THAT THIS AGREEMENT SHALL CONTROL.
11. Limitation of Liability. IN NO EVENT SHALL ADESTO BE LIABLE FOR LOSS OF OR CORRUPTION TO DATA, LOST PROFITS OR LOSS OF CONTRACTS, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR OTHER SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF PRODUCTS BY CUSTOMER OR ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INTELLECTUAL PROPERTY, INDEMNITY, PRODUCT LIABILITY OR OTHERWISE. THIS LIMITATION WILL APPLY EVEN IF ADESTO OR AN AUTHORIZED DISTRIBUTOR HAS BEEN ADVISED OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EXCLUDING CASES WHERE LIABILITY CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, ADESTO’S TOTAL LIABILITY UNDER OR ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO LIABILITY UNDER SECTION 13, SHALL NOT EXCEED IN AGGREGATE THE TOTAL AMOUNT CUSTOMER 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 CUSTOMER WAS FIRST PLACED ON NOTICE OF THE CLAIM GIVING RISE TO THE LIABILITY). THIS LIMITATION IS CUMULATIVE WITH ALL PAYMENTS MADE TO CUSTOMER 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.
12. Intellectual Property. CUSTOMER 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 this Agreement. Neither CUSTOMER 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 this Agreement. ADESTO may utilize all suggestions, feedback, improvements, or the like that CUSTOMER provides ADESTO or otherwise makes with respect to the Products or the Services without any obligation to CUSTOMER. Unless otherwise set forth in a separate confidentiality agreement between the parties, ADESTO has the right to use and treat as non-confidential any information provided by CUSTOMER hereunder.
13. Indemnification. Subject to CUSTOMER’s compliance with the terms of this Agreement, ADESTO agrees to defend CUSTOMER in any action for infringement of any third party United States or European Union patent by Hardware Products, and to pay any liabilities, damages and costs awarded against CUSTOMER to such third party in any such action by a court of competent jurisdiction or agreed by ADESTO in settlement of any such action, provided that CUSTOMER notifies ADESTO promptly in writing of such suit or proceeding, does not make any prejudicial admission or statement, gives ADESTO all reasonable assistance at CUSTOMER’s expense and gives ADESTO sole control of the defense and all negotiations for the settlement or compromise thereof. This indemnity shall not apply if normally non-infringing Hardware Products are rendered infringing by reason of (i) CUSTOMER’s particular use of such unmodified Hardware Products, (ii) the combination of the Hardware Products with other non-ADESTO devices, products, parts, processes, methods, software or services, (iii) the modification of the Hardware Products by anyone other than ADESTO, or (iv) ADESTO’s compliance with any designs, specifications, or instructions provided by or for CUSTOMER. At its option, in full satisfaction of its obligations under this Section 13, ADESTO may at any time replace, modify, or procure for the CUSTOMER the right to continue using any Hardware Products to avoid any infringement, or accept the return of allegedly infringing Hardware Products and refund the amount paid by the CUSTOMER for such returned Hardware Products. The indemnification for Software Products, if any, is as set forth in the Software License Agreement accompanying the Products.
14. Safe Operation. CUSTOMER ASSUMES RESPONSILITY FOR, AND HEREBY AGREES TO USE CUSTOMER’S BEST EFFORTS IN, DESIGNING, MANUFACTURING, COMMISSIONING AND MONITORING DEVICES AND SYSTEMS THAT INCORPORATE THE PRODUCTS SOLD HEREUNDER TO PROVIDE FOR SAFE OPERATION THEREOF, INCLUDING, BUT NOT LIMITED TO, COMPLIANCE OR QUALIFICATION WITH RESPECT TO ALL SAFETY LAWS, REGULATIONS AND AGENCY APPROVALS, AS APPLICABLE. CUSTOMER ACKNOWLEDGES THAT THE HARDWARE AND LICENSED SOFTWARE PRODUCTS ARE NOT DESIGNED OR INTENDED FOR USE AS COMPONENTS IN EQUIPMENT INTENDED FOR SURGICAL IMPLANT INTO THE BODY, OR OTHER APPLICATIONS INTENDED TO SUPPORT OR SUSTAIN LIFE, FOR USE IN FLIGHT CONTROL OR ENGINE CONTROL EQUIPMENT WITHIN AN AIRCRAFT, FOR USE IN WEAPONS, MILITARY USE, AVIONICS, SATELLITES, NUCLEAR APPLICATIONS OR FOR ANY OTHER APPLICATION IN WHICH THE FAILURE THEREOF COULD CREATE A SITUATION IN WHICH PERSONAL INJURY OR DEATH MAY OCCUR, AND CUSTOMER SHALL HAVE NO RIGHTS HEREUNDER FOR ANY SUCH APPLICATIONS. CUSTOMER SHALL INDEMNIFY AND HOLD ADESTO FULLY HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND DAMAGES RESULTING FROM USE OF PRODUCTS IN CONTRAVENTION OF THIS SECTION 14.
15. Export Controls. All Products, Services, technology and technical data delivered under this Agreement are subject to U.S. and local export control laws and may be subject to export or import regulations of other countries. CUSTOMER agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export or import as may be required after delivery to CUSTOMER. CUSTOMER SHALL INDEMNIFY AND HOLD ADESTO FULLY HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND DAMAGES RESULTING FROM CUSTOMER’S FAILURE TO COMPLY WITH ANY LAWS, RULES AND REGULATIONS IN CONTRAVENTION OF THIS SECTION.
16. Affiliates. 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. Limitations and exclusions in Sections 11 and 17 shall apply to ADESTO and its Affiliates.
17. Exclusive Remedies. NOTWITHSTANDING ANY STATUTES OF LIMITATIONS APPLICABLE TO CUSTOMER, CUSTOMER 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. CUSTOMER ACKNOWLEDGES THAT ADESTO HAS SET ITS PRICES AND FEES AND AGREED TO SELL PRODUCTS AND SERVICES TO CUSTOMER 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 CUSTOMER. SUCH PROVISIONS WILL SURVIVE AND APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
18. Termination. In the event that (i) CUSTOMER defaults in the performance of any provision of this Agreement, including CUSTOMER’s failure to make payment for any Products or Services in full when due, (ii) any proceeding, voluntary or involuntary, in bankruptcy, insolvency or any other analogous event in any jurisdiction is initiated by or against CUSTOMER, or (iii) any assignment of CUSTOMER’s assets for the benefit of creditors is made, this Agreement shall, if such condition is not corrected within thirty (30) days after written notice thereof from ADESTO, at ADESTO’s option, terminate, and ADESTO may elect to cancel any unfilled orders hereunder. Within two (2) weeks after any such termination, CUSTOMER shall return to ADESTO the original and all copies, in whole or in part, including partial copies and modifications, of the Software Products, or, if permitted by ADESTO, destroy such items and deliver certification thereof to ADESTO. Notwithstanding the foregoing, the provisions of Sections 4, 8, and 10 through 19, inclusive, hereof shall survive any termination of this Agreement.
19. General Provisions. If any provision in this Agreement shall be held to be in valid or unenforceable, the remainder of this Agreement shall remain valid and enforceable. Except as provided in Section 16, 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. 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. ADESTO and CUSTOMER agree that (i) this Agreement shall be governed by the Laws of the State of California, U.S.A. including its Uniform Commercial Code, but excluding the body of California law concerning conflicts of law and excluding the U.N. Convention on the International Sale of Goods, (ii) CUSTOMER consents to jurisdiction of and venue in the State and federal courts located in Santa Clara County, California, USA, (iii) CUSTOMER shall not assign this Agreement without the prior written consent of ADESTO, but ADESTO may assign this Agreement to an entity that succeeds to all or substantially all of the business assets of ADESTO, (iv) no modification to this Agreement, or any waiver of any rights, shall be effective unless assented to in writing and the waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default, (v) the prevailing party in any legal action hereunder shall be entitled to reimbursement of its expenses including without limitation reasonable attorneys’ fees, (vi) any required notices hereunder shall be given in writing at the address of each party set forth on the reverse side of this page, and shall be deemed served when delivered or, if delivery is not accomplished by reason or some fault of the addressee, when tendered, and (vii) this Agreement and any software license agreement accompanying the Products constitute the entire and exclusive agreement between the parties hereto with respect to the subject matter hereof.
Effective July 25, 2019