Terms and Conditions of Product Sales
These terms and conditions of Product Sales (“Terms and Conditions”), together with the attached or corresponding Erdos Miller, Inc. (“Erdos Miller”) product proposal (the “Product Proposal”) (collectively the “Agreement”), constitute the entire integrated agreement between Erdos Miller and the customer identified in the Agreement (the “Customer”) for the purchase and sale of the products identified in the Agreement (the “Products”) and all services (if any) associated therewith to be provided or performed by Erdos Miller for Customer (the “Services”). This Agreement supersedes 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 thereto.
The products shall be delivered Ex Works (INCOTERMS® 2020) Erdos Miller’s Houston, Texas, USA facility, unless otherwise provided in the Product Proposal. If applicable, Erdos Miller will use commercially reasonable efforts to complete any Services related to the Products described in the Agreement 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. Subject to the restrictions in this Agreement, title to the Products shall pass to Customer after Customer’s full payment of all amounts due to Erdos Miller under this Agreement.
Notwithstanding Customer’s physical possession of, and right to use the Products for the purposes contemplated by the Product Proposal, 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 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 the 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 customer in the ordinary course of business) nor may Customer copy, modify, distribute, extract, reverse engineer, otherwise derive the source code of, or (unless otherwise provided in the Product Proposal) make derivative works from such Erdos Miller intellectual property incorporated in or related to the Products, including the firmware and software contained therein. Further, Customer shall not (and shall not attempt to) dismantle, reverse engineer, analyze, X-ray, or disassemble the Products, including any hardware component or the hardware as a whole, or otherwise attempt to discover any information regarding the design, component parts, assembly, or any other underlying proprietary information of or relating to the Products, in each case in whole or in part.
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) (a “Force Majeure Event”). In the event of a Force Majeure Event, Erdos Miller will promptly notify Customer of such circumstances in writing and Erdos Miller will be granted an equitable extension of the time to meet its obligations under this Agreement and, where needed to make Erdos Miller whole, a compensation adjustment. This provision shall not be construed as relieving Customer from its obligation to pay any sums due to Erdos Miller.5. Termination.
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). IN NO EVENT WILL ERDOS MILLER’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES RELATED TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO ERDOS MILLER UNDER THIS AGREEMENT FOR THE APPLICABLE PRODUCTS.
8. Confidential Information.
8.1 “Confidential Information” means all information provided by a party (“Disclosing Party”) to the other party (“Receiving Party”) relating to the Products or Services (if any) 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.
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, equipment, fixtures, or practices and procedures; (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; (c) Customer’s obligations to maintain the health and safety of its premises, facility, equipment, fixtures, practices and procedures, employees, agents, and independent contractors, or (d) Customer’s or its employee’s, agent’s or anyone directly or indirectly employed by Customer, or by anyone for whose acts Customer may be liable, negligent acts or omissions or willful misconduct.12. Cybersecurity.
Erdos Miller’s Services (if any) does not include creating, modifying or ensuring compliance with Customer’s cybersecurity policies. Although Erdos Miller will not intentionally violate Customer’s cybersecurity policies or intentionally cause a security breach of Customer’s systems, Customer acknowledges that Customer is responsible for the creation, implementation, enforcement and adequacy of its cybersecurity policies and that Customer retains the risk of data theft or destruction and the impacts of malware and ransomware, whether arising from Erdos Miller’s work or access to Customer’s systems or otherwise. In accordance with the foregoing, to the fullest extent permitted by law, Customer shall defend, indemnify and hold harmless Erdos Miller and its subcontractors, agents and employees from and against all claims, losses, and expenses of any nature, including but not limited to reasonable attorneys' fees, arising out of or related to any actual or alleged improper access to or use of Customer’s systems, except to the extent the relevant security breach was determined to be caused solely by Erdos Miller’s intentional improper access or use of Customer’s systems.
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.
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.”