Terms and Conditions of Product Sales
These Terms and Conditions of Product Sales, together with the attached or corresponding Erdos Miller, Inc. (“Erdos Miller”) Product Proposal (collectively, the “Agreement”), constitute the entire integrated agreement between Erdos Miller and the “Customer” identified in the Agreement for the purchase and sale of the “Products” identified in the Agreement and all services (if any) associated therewith to be provided or performed by Erdos Miller for Customer. This Agreement supersede all previous and contemporaneous agreements, proposals and representations, written or oral, concerning such matters, and any additional, conflicting or inconsistent Customer terms (whether set forth in a request for proposals, purchase order or acknowledgement or in any other document) are expressly rejected by Erdos Miller and are not a part of the parties’ agreement related to the Products or the services related there to.
Erdos Miller agrees to provide and deliver (INCOTERMS® 2010 EXW Erdos Miller’s Houston, Texas, USA facility, unless otherwise provided in Erdos Miller’s Product Proposal) the Products to Customer and, if applicable, agrees to use commercially reasonable efforts to complete any services related to the Products described in the Agreement as being performed by Erdos Miller in accordance with the schedule set forth therein. Erdos Miller agrees to notify Customer if, at any time, it becomes apparent that the parties need to revise the delivery or service schedule. Risk of loss and damage to the Products passes to Customer at the time the Products are ready for shipment, and (subject to the restrictions in this Agreement) title to the Products passes to Customer after Customer’s full payment to Erdos Miller under this Agreement.
2. Price and Payment.
In full consideration for the Products provided hereunder, the services related to the Products described in the Agreement as being performed by Erdos Miller (if any), and (except as otherwise provided in Erdos Miller’s Product Proposal) for any licenses granted under this Agreement, Customer agrees to pay Erdos Miller the amount(s) set forth in the Agreement. Unless otherwise provided in Erdos Miller’s Product Proposal, deposits are due immediately following the date of this Agreement; all other payments are within thirty (30) days of the date of invoice by Erdos Miller. Late payments shall entitle Erdos Miller to suspend its performance under this Agreement immediately until such payment is received and shall bear interest at the rate of 1.5% per month (or such lesser amount required by law), and Erdos Miller shall be entitled to recover from Customer all costs of collection (including reasonable attorneys’ fees) incurred with respect to any late payments or other breaches of this Agreement by Customer. In the event there are any adverse changes in applicable tariffs, import/export charges or other laws, rules or regulations after the date Erdos Miller’s Product Proposal, the parties shall negotiate an equitable increase in the price(s) set forth in the Agreement to account for such changes.
2.1 Customer agrees that any license of software or other technology provided as or for the Products shall be provided exclusively under terms of a separate Software License Agreement as referenced in the Erdos Miller’s Product Proposal. Any license fees relating thereto set forth this Agreement shall be payable to Erdos Miller under such software license agreement without further performance by Erdos Miller and regardless of the disposition of any of the Products by Customer.
2.2 Customer shall be responsible for all travel and living expenses incurred by Erdos Miller's staff in connection with the services related to the Products described in this Agreement as being performed by Erdos Miller (if any).
2.3 All payment shall be made in U.S. dollars. All amounts payable to Erdos Miller shall be exclusive of any sales, use, value-added or similar taxes, duties, imposts, customs, levies or other withholding (“Tax”). Any such Tax shall be paid by Customer in addition to prices listed in the Agreement for the Products and any related services or licenses. In the event of any Tax withholding on Customer payments to Erdos Miller, such payments shall be grossed-up to provide Erdos Miller the same amount after such withholding as it would have received without the imposition of such withholding, together with tax receipts or similar evidence of any withholding made by Customer.
3. Intellectual Property.
Notwithstanding Customer’s physical possession of, and right to use for the purposes contemplated by Erdos Miller’s Product Proposal, the Products, Erdos Miller shall retain all rights, title and interest in the intellectual property and proprietary designs and data, including patents, trademarks, and copyrights, contained therein or otherwise related to the Products and any related services provided under this Agreement (including without limitation any improvements thereto occurring during or arising from the performance of this Agreement by either of the parties); provided, however, that unless otherwise provided by an applicable Software License Agreement referenced in Erdos Miller’s Product Proposal, upon payment of the agreed compensation to Erdos Miller, Customer will be deemed to have been granted a non-exclusive, non-transferable, royalty-free license solely to use such Erdos Miller intellectual property incorporated in the Products for the proper and intended use of the Products. Customer may not sell, sublicense, assign or transfer such license without the prior written consent of Erdos Miller (which shall not be unreasonably withheld in the event of a sale of the Products to a third party) nor may Customer copy, modify, distribute, extract, reverse engineer, otherwise derive the source code of, or (unless otherwise provided in Erdos Miller’s Product Proposal) make derivative works from such Erdos Miller intellectual property incorporated in or related to the Products.
4. Force Majeure.
Erdos Miller shall not be liable for failure to perform any of its obligations hereunder where such performance is prevented or interfered with by any cause beyond the reasonable control of Erdos Miller (including without limitation delays by Customer in providing information or making payments, fire, natural disasters, civil disturbances, acts of governmental authorities, labor disputes, unavailability of materials or shipping delays). This provision shall not be construed as relieving Customer from its obligation to pay any sums due to Erdos Miller.
Either party may terminate this Agreement if the other party fails to perform any of its material obligations hereunder and such failure to perform has not been cured within a reasonable period of time after the receipt of written notice of such material breach by the defaulting party. Upon such termination, Customer shall promptly pay Erdos Miller for all Products delivered (in whole or in part) to Customer up to or promptly after the date of termination. In addition to any other term whose context may so require, the parties' obligations under Sections 3, 7, 8, 10 and 11-15 hereof shall survive expiration or termination of this Agreement regardless of the manner of termination.
6.1 For a period of one year from delivery to Customer (unless such shorter period of time is set forth in Erdos Miller’s Product Proposal), Erdos Miller warrants solely to Customer that the Products will comply in all material respects with the description thereof in Erdos Miller’s Product Proposal. Erdos Miller also warrants solely to Customer that any services performed by Erdos Miller related to the Products will be performed in a workmanlike manner with the care and skill ordinarily used by other members of Erdos Miller’s profession practicing under similar conditions at the same time and in the same locality.
6.2 ERDOS MILLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND ANY OTHER WARRANTIES (INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE/AGAINST INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE) ARE EXPRESSLY DISCLAIMED BY CUSTOMER TO THE FULLEST EXTENT PERMITTED BY LAW.
6.3 Customer Responsibilities. Customer is solely responsible for the use to which it puts any Products or related maintenance, support or service and any decisions it makes in using such Products. In no event will Erdos Miller be responsible for (a) any modifications to the Products made by anyone other than Erdos Miller; (b) damages caused by misuse, improper operation or improper or insufficient maintenance of any Products; (c) normal wear and tear; (d) any data loss or corruption or personal information data breach; or (e) any alleged defects in any Products that arise from Erdos Miller’s compliance with designs, specifications or other criteria or requirements provided by or through Customer. Unless otherwise provided in Erdos Miller’s Product Proposal, Products not created by Erdos Miller, but only procured from third parties by Erdos Miller and delivered to Customer under this Agreement, are warranted only by and to the extent of the express written warranties of the manufacturer(s) of such items.
6.4 Limitation/Remedies. In the event Customer believes Erdos Miller owes a warranty obligation applicable to the Products or has failed to comply with any other obligation under this Agreement, Customer must notify Erdos Miller in writing within 30 days of its discovery of such obligation or non-compliance and in no event later than 1 year after the delivery to Customer of the Products. If Erdos Miller owes a warranty obligation, it will promptly commence to correct, repair or replace the applicable portion of the Products upon receipt of such notice from Customer at Erdos Miller’s own expense or, at Erdos Miller’s option, will refund to Customer the portion of the compensation paid by Customer under this Agreement for the non-conforming Products. Such performance or refund by Erdos Miller is Customer’s sole and exclusive remedy in the event of a warranty obligation of Erdos Miller or any other failure of Erdos Miller to comply with its obligations under this Agreement related to the Products.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ERDOS MILLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, SUCH AS, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR OTHER ECONOMIC LOSS IN CONNECTION WITH OR ARISING OUT OF THE PRODUCTS, OR ANY LOSS OF PRODUCTIVITY, REPUTATION, FINANCING OR BUSINESS OPPORTUNITIES. MOREOVER, TO THE FULLEST EXTENT PERMITTED BY LAW, REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR STRICT LIABILITY), ERDOS MILLER’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES RELATED TO THIS AGREEMENT OR THE PRODUCTS SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO ERDOS MILLER UNDER THIS AGREEMENT FOR THE APPLICABLE PRODUCTS.
8.1 Confidential Information.
"Confidential Information" means all information provided by a party (“Disclosing Party”) to the other party (“Receiving Party”) relating to the Products which the Disclosing Party has identified as being proprietary or confidential, except information which (i) is public knowledge at the time of disclosure; (ii) becomes public knowledge through no act or omission of the Receiving Party; (iii) has been furnished to the Receiving Party by a third party whom the Receiving Party believes may legitimately provide the information without restriction on disclosure; or (iv) was in the Receiving Party’s possession, as evidenced by written or computerized records, prior to the date of this Agreement and which was not acquired under obligations of confidentiality from the Disclosing Party.
The Receiving Party shall protect as proprietary and confidential all Confidential Information disclosed to the Receiving Party under this Agreement using at least as great a degree of care as used to maintain the confidentiality of its own most Confidential Information, but in no event less than a reasonable degree of care. Except with specific prior written authorization, the Receiving Party shall not use, either directly or indirectly, any of Disclosing Party’s Confidential Information other than for the purpose for which it has been disclosed in connection with the development, procurement or proper and intended use of the Products. The Receiving Party agrees that it will disclose the Disclosing Party’s Confidential Information only to its employees who need to know such information, provided that such employees are bound by terms and conditions protecting such Confidential Information substantially similar to those of this Agreement. This Section 8 shall survive the expiration or termination of this Agreement for a period of three (3) years from the final delivery of the Products to Customer.
8.3 The Receiving Party acknowledges that a breach or threatened breach of the terms of this Agreement related to Confidential Information may give rise to immediate, irreparable injury the Disclosing Party and that money damages may not be adequate relief for such injury. Accordingly, the Receiving Party agrees that in the event of any such breach or threatened breach, the Disclosing Party shall be entitled to obtain, to the fullest extent permitted by law and in addition to any other legal or equitable remedies and monetary damages which may be available, injunctive relief, including, but not limited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without having to post any bond or other security, to restrain or prohibit such breach or threatened breach.
9. No Assignment.
Neither party shall assign this Agreement without the prior written consent of the other party, which will not be unreasonably withheld. Any transfer by merger, consolidation or liquidation shall constitute an assignment or purposes of this Agreement. Such restriction shall not be construed as prohibiting Erdos Miller from procuring goods and services for its performance of this Agreement from subcontractors, suppliers or other vendors. Both Customer and Erdos Miller agree that there are no third-party beneficiaries to this Agreement.
10. Export Assurance.
Any and all Products, reports, computer software or technologies to be delivered under this Agreement and any technical data incorporated therein (“Deliverables”) shall be exported outside the United States only in compliance with all applicable United States export control laws. Customer will not directly or indirectly use or re-export such Deliverables in any manner contrary to U.S. export laws and regulations, including but not limited to use in nuclear, chemical/biological warfare and/or missile activities. Customer also agrees that it will not, without first procuring a BXA license or License Exception, (a) re-export or release any Deliverable to a national of a country in Country Code D:1 or E:2; nor (b) export to Country Groups D:1 or E:2 the direct product of a Deliverable, if such foreign produced product is subject to national security controls as identified on the Commerce Control List (See General Prohibition Three Sec. 736.2(b)(3) of the Export Administration Regulations). Customer shall comply with all applicable laws, rules and regulations with respect to its possession and use of the Products and its performance of this Agreement.
To the fullest extent permitted by law, Customer shall indemnify, defend (at Customer’s sole expense) and hold harmless Erdos Miller and its subcontractors, suppliers and consultants, and any of their partners, joint ventures, representatives, members, designees, officers, directors, shareholders, employees, agents, successors and assigns ("Indemnified Parties") from and against any and all claims, demands, damages, actions, causes of action, suits, losses, judgments, obligations and any liabilities, costs and expenses (including but not limited to reasonable attorneys' fees) ("Claims") to the extent arising from or related to (a) Customer’s possession or use of the Products, including any claims for bodily injury (including to Customer’s employees) or property damage arising from the use, misuse or modification of the Products, or utilization of the Products in connection with, or incorporation of the Products into, Customer’s products or the conditions of Customer’s facilities or equipment; (b) Customer’s breach of any provision of this Agreement, including without limitation its violation of any license to the Products or its violation of any export or use restriction applicable to the Products or its failure to pay any Tax; or (c) Customer’s or its employee’s or agent’s negligent acts or omissions or willful misconduct.
12. Amendment; Waiver.
Neither this Agreement nor any term, covenant, condition or other provision hereof may be changed, waived, discharged or terminated orally but only by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought. Except as otherwise provided, failure or delay of either party to exercise any right or remedy hereunder shall not constitute a waiver of rights or remedies under this Agreement.
13. Governing Law; Dispute Resolution.
This Agreement shall be governed, construed and enforced according to the laws of the State of Texas, USA and the United States of America, without regard to its choice of laws or conflicts of laws provisions. The parties agree that the United Nations Convention on Contractors for the International Sale of Goods will not apply to this Agreement. In the event Erdos Miller and Customer cannot resolve any claim or dispute between them arising out of or related to the Products or this Agreement through direct negotiations, such claim or dispute shall be resolved exclusively by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Such arbitration proceedings will be held in Houston, Texas, USA and conducted in the English language. The prevailing party will be entitled to recover from the other party all costs incurred in resolving the dispute, including reasonable attorneys’ and expert fees and the costs of arbitration. The arbitration award shall be final, binding and non-appealable and may be entered as a judgment in any court with jurisdiction.
If any provision of this Agreement is held unenforceable or inoperative by any court of competent jurisdiction, either in whole or in part, the remaining provisions shall be given full force and effect to the extent not inconsistent with the original terms of this Agreement.
Notices and communications required by this Agreement shall be in writing and may be delivered in person or by a reputable commercial courier (UPS, FedEx, DHL, etc.) to the respective parties at their address listed in Erdos Miller’s Product Proposal or such other address most recently designated in writing. Notices directed to Erdos Miller shall be sent "Attention: Legal Department."