Terms & Conditions

THE FOLLOWING TERMS AND CONDITIONS CONSTITUTE THE ENTIRE AND SOLE BASIS UPON WHICH EMBEDDED WORKS CORPORATION ("Embedded Works") AGREES TO SELL THE PRODUCT(S) IDENTIFIED ("Product(s)") ON THE ACCOMPANYING SALES ORDER CONFIRMATION ("Confirmation") AND SHALL BECOME THE EXCLUSIVE AGREEMENT (THE "Agreement") BETWEEN EMBEDDED WORKS AND THE PARTY NAMED ON THE ACCOMPANYING CONFIRMATION ("Customer") COVERING SUCH PRODUCTS. ADDITIONAL OR DIFFERENT TERMS PROPOSED BY CUSTOMER BY ACKNOWLEDGEMENT HEREOF OR BY PURCHASE ORDER WILL NOT BE APPLICABLE UNLESS SPECIFICALLY ACCEPTED IN WRITING BY EMBEDDED WORKS. NEITHER EMBEDDED WORKS' COMMENCEMENT OF PERFORMANCE NOR DELIVERY OF PRODUCTS SHALL CONSTITUTE ACCEPTANCE OF ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY CUSTOMER.

1. ORDERS . If Customer wishes to purchase a product from Embedded Works, Customer shall issue a written purchase order ("Order") to Embedded Works signed by an authorized representative of Customer, detailing the Embedded Works Product and quantity, the purchase price for Products ordered, requested delivery dates and shipping instructions. Each Order shall be an offer by Customer to purchase, and is subject to acceptance by Embedded Works. Upon acceptance, Embedded Works shall issue an executed Confirmation to Customer that shall reflect such quantity and price of Embedded Works Product. Such issuance shall form the Agreement for sale and purchase of such quantity of Products incorporating only these terms and conditions and any additional written terms in the Confirmation.

2. SALE OF PRODUCT . Embedded Works agrees to sell to Customer, and Customer agrees to purchase from Embedded Works, the Product as set forth on the Confirmation. Embedded Works may modify Product specifications or quantities or substitute Products to be supplied hereunder, provided that such substitutions or modifications do not materially adversely affect the overall Product performance. Embedded Works reserves the right to use refurbished or remanufactured Product in place of new. All such refurbished and remanufactured Product shipped in place of new Product is warranted as new Product in accordance with Section 10 (Limited Warranty).

3. SHIPPING DATES . Embedded Works will establish shipping dates in the Confirmation. Embedded Works will use its best efforts to meet the requested and scheduled shipping date(s) but will not be liable for any delay or for failure to give notice of such delay. Embedded Works may make partial deliveries of the quantity of Products specified in a Confirmation and invoice for them separately, which shall not relieve Customer of its obligation to subsequently accept the remainder of the Products specified in the Confirmation. Customer may defer shipment of Product to a date that is no more than thirty (30) days after the scheduled shipping date; provided that Embedded Works receives written notice from Customer of such deferral no later than fifteen (15) days before the originally scheduled shipping date. In the event that: (a) within fifteen (15) days of the scheduled shipping date for a Product, (i) Customer reschedules the shipping date for the Product, or (ii) Customer requests Product configuration changes or other changes to the terms of the Confirmation for the Product; or (b) Customer cancels the Product Order at any time after Embedded Works has issued a Confirmation but before shipment; Customer shall pay Embedded Works: (c) a cancellation/rescheduling charge equal to the reconfiguration cost Embedded Works incurs to un-bundle any affected Product so that such affected Product may be sold to other customers; and (d) a restocking fee equal to fifteen percent (15%) of the total invoice amount for any affected Product. Embedded Works may reschedule shipping dates if it agrees to Customer's configuration changes made within fifteen (15) days of the scheduled shipping date.

4. DELIVERY TERMS . All Product will be delivered F.O.B. Embedded Works' shipping point. Customer will assume title and risk of loss upon delivery of the Product to the common carrier or to Customer's representative at Embedded Works' shipping point. Customer shall pay all transportation, shipping and insurance charges. Unless Customer provides written instructions regarding a carrier, Embedded Works will select the carrier. In no event will Embedded Works have any liability in connection with shipment, nor will the carrier be deemed an agent of Embedded Works.

5. RETURNS . All sales are final and no returns are allowed, except for returns made for claims pursuant to Embedded Works' "Standard Limited Warranty," provided with these terms and conditions or with the Product and hereby incorporated into this Agreement. Customer must conduct any return in accordance with the rules and procedures set out in the Standard Limited Warranty.

6. PAYMENT . The price for each Product shall be set forth in the Confirmation. All prices are exclusive of all taxes, tariffs, duties or charges ("Taxes") of any nature whatsoever now in force or enacted in the future. Customer shall pay and agrees to hold Embedded Works harmless with respect to all Taxes arising from the sale, use, import or export of the Product, except for Taxes on Embedded Works' net income. Embedded Works may invoice Customer for the Product price plus related Taxes and charges upon delivery of the Product to a common carrier at Embedded Works' shipping location. Customer shall pay Embedded Works each invoiced amount within thirty (30) days after the date of invoice. All payments must be made in United States dollars. Customer grants to Embedded Works a purchase money security interest in the Products sold and the proceeds thereof, until Customer has paid in full the purchase price for the Products and all related Taxes and charges. Customer agrees to execute any financing statements, continuation statements or order documents as Embedded Works requests to protect Embedded Works' security interest. Embedded Works may charge Customer interest on accounts more than thirty (30) days past due at the lower of one and one-half percent (1.5%) per month or the maximum rate permitted by law. If Customer is delinquent in any payment, Embedded Works may, without prejudice to its other rights, withhold shipment of any Order and/or require Customer to pre-pay for further shipment.

7. INTELLECTUAL PROPERTY INFRINGEMENT . (a) Embedded Works will defend and/or settle, at its expense, any action brought against Customer to the extent based on a claim that the use of Product, within the scope of this Agreement, infringes any United States patent issued as of the date of this Agreement, trade secret or copyright, and Embedded Works will indemnify Customer against any damages finally awarded against Customer, or agreed in settlement entered into by Embedded Works, in such action which are attributable to such claim; provided that Customer notifies Embedded Works promptly in writing of the claim, permits Embedded Works to defend and/or settle the claim and provides all available information, assistance and authority to enable Embedded Works to do so. Customer shall have no authority to settle any claim on behalf of Embedded Works. (b) If Product becomes, or in Embedded Works' opinion be likely to become, the subject of a claim of infringement of a patent, trade secret or copyright, Embedded Works may, at its sole option and expense: (i) procure for Customer the right to continue to use the Product; (ii) replace or modify the Product to make it non-infringing, provided that the same function is performed by the replacement or modified Product; or (iii) if options (i) and (ii) cannot be accomplished despite the reasonable efforts of Embedded Works, Embedded Works may terminate Customer's right to use such Product, remove the Product and grant Customer credit for the price of the Product as depreciated on a straight-line five (5) year basis. (c) Embedded Works shall have no liability for any claim of patent, trade secret or copyright infringement based on the (i) use of other than the then-latest version of the Product from Embedded Works, if such infringement could have been avoided by the use of the latest version made available to Customer, and Customer, with knowledge of actual or possible infringement, chose to retain the prior version; (ii) use or combination of the Product with software, hardware or other materials not provided by Embedded Works; or (iii) design specifications provided by Customer. (d) THIS ARTICLE 7 STATES EMBEDDED WORKS' SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.

8. EXPORT . Customer shall comply with all applicable laws and regulations in connection with the Product and its use, export or import, including without limitation the U.S. Export Administration Act and regulations thereunder.

9. GOVERNMENT CONTRACTS . If Customer's Order is placed pursuant to a United States government contract, the clauses required by the government to be passed on by Customer to Embedded Works are subject to review by Embedded Works before acceptance and are not binding unless accepted by Embedded Works in writing. Further limits on the United States ' and other Customers' rights are found in Embedded Works' Standard Software License, provided with these terms and conditions or with the Product and hereby incorporated into this Agreement by reference.

10. LIMITED WARRANTY . Embedded Works warrants all hardware Products for a period of one (1) year, solely to the extent set forth in the Standard Limited Warranty provided with these terms and conditions or the Product and hereby incorporated into this Agreement by reference. CUSTOMER: THE STANDARD LIMITED WARRANTY CONTAINS IMPORTANT LIMITS ON YOUR RIGHTS. If Customer is a distributor or reseller of Product, Customer shall not make any warranty commitment or give any representations on Embedded Works' behalf, nor modify the terms, warranties and conditions herein or in the Standard Limited Warranty.

11. DISCLAIMER OF WARRANTIES . THE WARRANTIES AND LIABILITIES SET IN THE STANDARD LIMITED WARRANTY ARE EXCLUSIVE AND ESTABLISH EMBEDDED WORKS' ONLY OBLIGATIONS AND CUSTOMER'S SOLE RIGHTS WITH RESPECT TO THE PRODUCT AND THIS AGREEMENT. ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. Embedded Works does not warrant that any Product is error free or that Customer will be able to operate any Product without problems or interruptions.

12. NO THIRD PARTY CLAIMS . EXCEPT AS EXPRESSLY PROVIDED IN ARTICLE 7, AND EXCEPT FOR CLAIMS UNDER THE STANDARD LIMITED WARRANTY BY END-USERS RELATING TO PRODUCTS SUCH END-USERS HAVE PURCHASED FROM A CUSTOMER WHO IS AN AUTHORIZED EMBEDDED WORKS DISTRIBUTOR OR RESELLER, NEITHER EMBEDDED WORKS NOR ITS AFFILIATES OR SUPPLIERS SHALL HAVE ANY LIABILITY TO ANY PERSON FOR ANY THIRD PARTY'S CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCT.

13. LIMITATION OF LIABILITY . IN NO EVENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EMBEDDED WORKS OR ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS OR LOST DATA, OR ANY INDIRECT, SPECIAL, 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 EMBEDDED WORKS OR ITS AFFILIATE OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND WHETHER OR NOT ANY REMEDY PROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSE. THE TOTAL CUMULATIVE LIABILITY TO CUSTOMER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCT PAID BY CUSTOMER.

14. INDEMNIFICATION . Except as expressly provided in these terms and conditions, Customer shall indemnify Embedded Works against, and hold Embedded Works harmless from, any and all damage, loss, liability and third party claims (including without limitation reasonable attorney's fees) arising out of or relating to Customer's possession, use or resale of the Product, provided that the same was not caused solely by the fault of Embedded Works. This obligation shall survive the expiration or termination of this Agreement.

15. MISCELLANEOUS . The Agreement, including these terms and conditions, the Standard Limited Warranty, the Standard Software License and each Confirmation, constitutes the complete and exclusive statement of the agreement between Embedded Works and Customer with respect to its subject matter, and supersedes all prior and contemporaneous oral or written promises, representations, agreements and other communications concerning such subject matter, including any terms contained in Customer's Orders or other documents. No representation or promise and no amendment or agreement relating to this Agreement shall be binding unless in writing signed by the parties. Neither party shall be liable to the other for delays or failures in performance of its obligations (except any obligation to pay money) resulting from causes beyond its reasonable control. Customer shall not assign its rights or subcontract its obligations under this Agreement, in whole or in part, without Embedded Works' prior written consent. The Agreement shall be governed by the laws of the State of California , without reference to conflicts of law principles. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods. The parties irrevocably consent to the exclusive, personal jurisdiction and venue of the state and federal courts in Santa Clara County , California over any dispute arising out of or relating to these terms and conditions, this Agreement or any Product. The titles and headings herein are for reference purposes only and will not in any manner limit the construction of these terms and conditions or this Agreement, which will be considered as a whole. The invalidity in whole or in part of any provision of this Agreement, including without limitation these terms and conditions, shall not affect the enforceability of the remainder of its provisions or this Agreement. Any notice or other communication hereunder shall be in writing. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented.