Purchase Terms & Conditions
SALE AND PURCHASE; LICENSE.
1.1. Products. Onulis agrees to sell to Customer, and Customer agrees to purchase, the system(s) ("System"), System parts ("Parts"), and/or other consumables (collectively, "Consumables"), and/or other ancillary products (collectively, the "Products") and/or Services (as defined in Section 1.3 (Services) below) that are set forth in any purchase order or any other Onulis-approved written purchase agreement tendered to Onulis (each a "Purchase Order"), any and all of which shall be governed by these Terms, notwithstanding any conflicting or additional provisions in any such Purchase Order or other Customer communication. No purported waiver or other modification of these Terms will be effective unless, and only to the extent, specified by an express waiver or modification signed by an executive officer of Onulis. All other proposed modifications or waivers (whether whole or partial) of these Terms are hereby objected to and rejected in all respects.
1.2. Software and Documentation. If a Product includes the licensure of any Onulis-provided software, which term shall include program code together with applicable technical documentation, containing specifications, instructions, and/or other information accompanying such software or made available by Onulis from time to time (collectively "Software"), Onulis hereby grants to the Customer a non-exclusive, nontransferable, revocable, and limited license to use the Software for its internal purposes and solely in conjunction with the use of Product to which it relates. Customer acknowledges that the Software may also be subject to additional terms and conditions set forth in executable or electronic license agreements, which shall control and govern all such licensed Software use to the extent necessary to resolve any conflict with these Terms. Subject to the terms of such license agreements, all rights not expressly granted herein are reserved, and all other uses of the Software are subject to these Terms as well as the payment of any applicable Software license fees, including fees for specific Software functionalities, as identified by Onulis in writing.
1.3. Services. From time to time, Onulis agrees to offer and provide services related to the Products ("Services") that are identified in a Purchase Order, and Customer agrees that such services are offered and provided at all times subject to, and in accordance with, these Terms. Notwithstanding the foregoing, certain Services, including support and maintenance services, may be offered under, and made subject to, additional terms or conditions in a separate agreement (the "Services Agreement"), which, on full execution, shall control and govern to the extent necessary to resolve any conflict with these Terms.
1.4. Restrictions on Use. Customer agrees that it shall not directly or indirectly: modify, enhance, adapt, translate, make improvements to, create derivative works based upon, disassemble, decompile, reverse engineer, reduce to any human or machine perceivable form, or circumvent any technological measure that controls access to or permits derivation of the source code of, the Software or any part thereof; reverse engineer the Products, any part thereof, or any composition made using the Products; rent, lease, sell, transfer, assign, or sublicense the rights granted hereunder, except in connection with the rental, lease, sale or transfer of the entire System; copy any part of the Software except for one (1) complete copy thereof for archival and/or back-up purposes, or as otherwise expressly authorized by Onulis in writing; change, distort, or delete any patent, copyright or other proprietary notices which appear in writing on or in a Product (or in any copies of Software); make or permit use of any trademark, trade name, service mark or other commercial symbol of Onulis without its prior written consent; operate or make use of the Products in any way violative of applicable laws and regulations; and/or take or permit any other action which could impair Onulis' rights, or damage the image or reputation of quality inherent in the Products, Onulis' business, reputation, Intellectual Property or other valuable assets or rights. In the event Customer rents, leases, sells or otherwise transfers the Products to a third party, Customer agrees that it will require such third party to be bound by Sections 1.2 (Software and Documentation), 1.4 (Restrictions on Use), and 8 (Proprietary Rights) hereof as a condition of such rental, lease, sale or other transfer.
PAYMENT AND TAXES.
2.1. Cancellation Rights and Procedures. Customer may cancel or modify a pending Purchase Order only by giving written notice thereof to Onulis within three (3) business days after submission of the Purchase Order to Onulis. Thereafter, Customer may not cancel or change any Purchase Order without Onulis' prior written consent.
2.2. Payments and Credit. Customer shall pay for the Products, Software and/or Services as and within the time frames or on or before the date(s) specified in the Purchase Order, and is not entitled to and shall not suspend payments, set off or otherwise deduct from any amounts invoiced by Onulis. No rights to purchase Products on credit are conferred herein, and any extension, modification or withdrawal of credit and credit terms are reserved solely to Onulis in its discretion. Except as otherwise agreed in the Purchase order, all payments are due in U.S. dollars.
2.3. Remedies. In the event Customer is in default in the payment of any sum invoiced by Onulis, then, without prejudice to Onulis' other rights and remedies: all outstanding sums shall immediately become due and payable to Onulis, notwithstanding any credit terms previously granted by Onulis to the Customer; Onulis may delay or suspend delivery of Products, Software and/or Services hereunder, or cancel any existing, pending or new orders and/or agreements with the Customer; Onulis may retain any amount already paid to it by Customer; and Onulis may recover its reasonable attorney's fees and other expenses incurred in enforcing its rights and remedies hereunder. Any amounts not paid by Customer when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the highest legal rate of interest (whichever is lower).
2.4. Taxes. All prices are exclusive of, and Customer shall pay, all applicable sales, use and other taxes or duties imposed, or otherwise due, on the sale, purchase or license of the Products, Software and/or Services, except for those taxes imposed upon Onulis' net income.
TITLE, DELIVERY AND RISK OF LOSS.
3.1. Transfer Terms. Delivery is made available Ex Works (Incoterms 2010) at Onulis' designated facility, unless agreed otherwise by the parties in the respective order, with respect to shipping costs, risk of loss and title transfer, except that regardless of the delivery method title transfer shall ever occur for any licensed Software associated with any Product sale. Notwithstanding delivery and the passage of risk and whether or not credit is extended for any Product purchase, the following shall apply:
3.1.1. If the applicable law (as determined according to Section 16 (Jurisdiction) below) so permits, property in and title to Products shall remain with Onulis, and shall not pass to Customer, until Onulis has received payment of the full price and license fees (if applicable) for (a) all Products, Software and/or Services that are the subject of these Terms, and (b) all other goods and/or services supplied by Onulis to Customer under any contract whatsoever. Payment of the full price and license fees shall include without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between Onulis and Customer. Moreover, Customer shall keep the Products identified as retained until such retention lapses.
3.1.2. If the applicable law does not permit the arrangement described in Section 3.1.1 above, Onulis hereby reserves in the Products (as well as all proceeds resulting from any sale thereof), and Customer grants and agrees that the Products shall remain fully subject to, a first priority purchase money security interest, until Onulis has received payment of the full price and license fees (if applicable) for all the items listed in paragraphs (a) and (b) of Section 3.1.1. Payment of the full price and license fees shall include without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between Onulis and Customer. Moreover, Customer hereby covenants that no hindrance to its granting of the above security interest exists in any of its third party contracts; or in the event such a hindrance does exist, Customer shall assist Onulis in exercising, and shall take all actions necessary to protect and maintain such security interest.
3.2. Delivery. Onulis will attempt to cooperate with Customer's requested delivery dates or other related delivery requests, but cannot and does not warrant quoted shipment or delivery dates or time frames, and may fulfill ordered items by partial and incremental shipments, in its sole discretion. Customer acknowledges and agrees that all costs and obligations associated with shipment and delivery of Products shall be borne solely by Customer; that any insurance desired therefore shall be Customer's sole obligation and expense; and that in no event shall Onulis be liable for any direct or indirect damage or loss that the Customer may incur resulting from any delivery failure or delay. Customer will notify Onulis in writing within ten (10) calendar days following the date of delivery of any alleged Product defect or other Purchase Order discrepancies, and the Products and licensed Software shall be deemed to be accepted in the quantity specified on the bill of lading or commercial invoice and in good condition, and such acceptance will operate as a bar to claims against Onulis, if no such notice is received.
3.3 Transfer of Risk and Title. Shipments made by Onulis are made as FOB Origin and title, ownership, and risk of loss passes to Customer upon time Product is shipped.
INSTALLATION.
4.1. Products that do not require installation by Onulis may be installed by Customer and used at any time following delivery. Onulis (or its authorized technical representative) will install those Products (including Software) or Parts designated as requiring installation by Onulis or its authorized technical representative (such Products or Parts, "Onulis Installed Products/Parts"), at Customer's designated facility following receipt of all applicable payments related thereto. Prior to such installation, Customer, at its expense, shall complete all applicable Product site preparations for installation, as specified by applicable Product documentation and as required by applicable law, including, without limitation, all health and safety laws, and shall thereafter provide such other assistance, services and facilities as may be requested by Onulis (or its authorized technical representative) to complete such installation. Onulis Installed Products/Parts shall not be handled, operated, opened, dismantled or used at any time prior to completion of required installation thereof, and then, initially in the presence and under the supervision of authorized Onulis technical personnel. Where applicable and required by Onulis, Onulis (or its authorized technical representative) will perform a standard test of the Products and present a certificate of installation ("COI") upon completion of the required installation.
TRAINING.
5.1. During any Product installation required to be performed by Onulis (or its authorized technical representative), and in consideration for Customer's payment of charges due (unless otherwise specified in the Purchase Order acceptance), Onulis shall make available to qualified personnel of Customer basic training in the use and operation of the Products according to the applicable Product documentation. Subsequent to any such required Product installation, Onulis may offer and provide such training services from time to time, in its sole discretion.
PRODUCT WARRANTY.
6.1. Limited Warranty and Warranty Period. Solely during the then-current standard limited Onulis warranty period applicable to the System, Software, Parts, Consumables, and Services, which periods (if any) are expressly identified in Exhibit A hereto, the Product literature, the Purchase Order, the Services Agreement and/or, in the case of Consumables, on the label attached thereto (each such period, as applicable, the "Warranty Period") (In the event there is any discrepancy between Warranty Period stated on Exhibit A hereto and on any other document, Exhibit A shall prevail over any other document, unless expressly otherwise agreed by Onulis in writing)., Onulis warrants as follows: the System (excluding the Software), Parts and/or Consumable shall be free from defects in materials and workmanship; and the Software shall perform substantially in accordance with its published documentation.
6.2. Limited Warranty Remedies. In respect of a valid warranty claim under Section 6.1 (Limited Warranty and Warranty Period) above, Onulis, as its sole obligation and as Customer's sole remedy hereunder shall in the case of the System (excluding Software), a Part, or Consumable, either repair or replace, at Onulis' sole option, any such System, Part or Consumable with a new or refurbished conforming System, Part or Consumable, as determined by Onulis in its sole discretion, provided that Onulis, in its discretion, shall be entitled to re-acquire (at no cost to Onulis except as expressly provided in clause below) the ownership of any such defective System, Part or Consumable that has been replaced; at Onulis' request and cost and expense, Customer shall return to Onulis any such replaced System, Part and/or Consumable within thirty (30) days; and Onulis will be entitled to invoice the Customer for any such items not returned within this time period; in the case of the Software, make commercially reasonable efforts to resolve inconsistencies between the functionality of such software and its published specifications; and in the case of Services, as (and if) expressly set out in the applicable Services Agreement.
6.3. Exclusion of Warranties. Onulis' limited warranty obligations hereunder shall terminate and shall not apply in any case where any alleged Product failure or other breach of warranty was necessitated or caused in whole or in part by: catastrophe, fault or negligence of the Customer; operation or use of the Products in violation of applicable laws or regulations; improper or unauthorized use including, without limitation, use prior to receipt of a COI (where applicable); modification or repair other than by Onulis or its authorized technical representatives; unusual stress; power failure;deviation from Onulis' recommended User Guide or maintenance procedures; or failure to maintain the prescribed environmental or other conditions at the installation site or any other failure to comply with applicable Product instructions and/or documentation.
6.4. WARRANTY DISCLAIMER. THE WARRANTIES SET FORTH IN THIS SECTION 6 (PRODUCT WARRANTY) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT). ONULIS DISCLAIMS THAT THE OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE FUNCTIONS THEREIN WILL MEET OR SATISFY THE CUSTOMER (OR USER'S) REQUIREMENTS OR INTENDED USE. THE REMEDIES PROVIDED IN SECTION 6.2 (LIMITED WARRANTY REMEDIES) SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF ONULIS TO CONFORM WITH SUCH LIMITED WARRANTY, AND CUSTOMER SHALL HAVE NO CLAIM, EXCEPT AS AFORESAID, AGAINST ONULIS OR ANY OTHER MANUFACTURER, SUPPLIER OR LICENSOR OF THE PRODUCTS, SOFTWARE OR RELATED SERVICES, WHETHER BASED IN CONTRACT, TORT, PRODUCT OR OTHER STRICT LIABILITY, TRADE PRACTICES, OR OTHERWISE. REPAIR OR REPLACEMENT OR REFUND (AS ELECTED BY ONULIS) IN THE MANNER PROVIDED ABOVE SHALL CONSTITUTE FULFILLMENT OF ALL LIABILITIES OF ONULIS WITH RESPECT TO ITS LIMITED WARRANTY, AS WELL AS FOR ANY CLAIMS BASED ON OR RELATING TO THE QUALITY AND PERFORMANCE OF THE PRODUCTS. CUSTOMER IS SOLELY RESPONSIBLE IN ALL CASES FOR SELECTION OF THE PRODUCT(S), SOFTWARE AND SERVICES TO ACHIEVE CUSTOMER'S INTENDED RESULTS OR FOR CUSTOMER'S PARTICULAR APPLICATIONS.
6.5. Use of Non-Certified Parts and Consumables. Customer acknowledges that use of parts and/or consumables not manufactured or certified by Onulis may result in damage to Products. In the event Onulis reasonably determines that damage to a Product has been caused by the use of non-Onulis-manufactured or non-Onulis-certified parts and/or consumables, Onulis reserves the right to: void Customer's warranty rights, terminate Customer's post-warranty support and maintenance contract; and/or offer to diagnose and repair the Product or its components at Onulis' then current maintenance restoration rates. Use of non-Onulis-manufactured or non-Onulis-certified parts and/or consumables may also disqualify Customer from receiving discounts on Onulis support and maintenance services, Parts and Consumables.
6.6. Product Discontinuation. Onulis shall provide: reasonable inventories of Parts for broken or defective Systems for the greater of a six (6) month period after the date Onulis discontinues the sale and supply of such Systems ("Discontinuance Date(s)"); or such period as is otherwise required by applicable laws and regulations; and support and maintenance services for discontinued Systems and Software.
LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW.
7.1. LIMITATION OF DIRECT DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, INCLUDING WITHOUT LIMITATION ONULIS' INDEMNIFICATION LIABILITY UNDER SECTION 10 (INDEMNITY), IN NO EVENT SHALL ONULIS, OR ITS AFFILIATES, MANUFACTURERS, SUPPLIERS OR LICENSORS (AS THIRD PARTY BENEFICIARIES) BE LIABLE FOR DIRECT DAMAGES OR OTHER LOSSES OR LIABILITIES DIRECTLY RELATING TO THE PRODUCTS, SOFTWARE OR SERVICES OR OTHERWISE ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THE SAME INSTALLATION OR OTHER USE OF PRODUCTS OR THE PROVISION OF SERVICES, IF AND TO THE EXTENT SUCH DIRECT DAMAGES OR LOSSES EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT(S) OR RELATED SERVICES THAT DIRECTLY GAVE RISE TO THE DAMAGES OR OTHER LOSSES OR LIABILITIES CLAIMED (PROVIDED THAT FOR ANY SERVICES, THE AMOUNT SHALL BE LIMITED TO THE AMOUNT PAID FOR SAID SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO BRINGING THE CLAIM), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, EXPRESS OR IMPLIED WARRANTY, TORT, PRODUCT OR OTHER STRICT LIABILITY, TRADE PRACTICES, OR OTHERWISE, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
7.2. EXCLUSION OF CERTAIN DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL ONULIS OR ITS AFFILIATES, MANUFACTURERS, SUPPLIERS OR LICENSORS (AS THIRD PARTY BENEFICIARIES) BE LIABLE FOR ANY LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF CONTRACTS, LOSS OF THE USE OF MONEY, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF GOOD WILL, LOSS OF REPUTATION, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA; OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, RELIANCE, EXEMPLARY, PUNITIVE, OR OTHER SIMILAR DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF IT IS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER BASED IN CONTRACT, EXPRESS OR IMPLIED WARRANTY, TORT, PRODUCT OR OTHER STRICT LIABILITY, TRADE PRACTICES, OR OTHERWISE, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
7.3. Limitation of Actions. Any action against Onulis relating to any alleged breach of warranty or any other alleged Product failure, must be brought within twelve (12) months after the cause(s) of action accrue(s).
7.4 EXCLUSION OF LIABILITY FOR THIRD PARTIES PRODUCTS. ONULIS IS ONLY LIABLE FOR THE PRODUCTS MANUFACTURED BY ITSELF AND ONLY TO THE EXTENT PURSUANT TO THESE TERMS. FOR AVOIDANCE OF DOUBT, TO THE EXTENT PERMITTED BY LAW, ANY NON-ONULIS MANUFACTURED PRODUCTS (“THIRD-PARTY PRODUCTS”) EVEN IF SUCH THIRD PARTY PRODUCTS ARE SOLD BY ONULIS TO CUSTOMER, ARE PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER, OTHER THAN THOSE WARRANTIES EXPRESSLY PROVIDED TO ONULIS BY THE PROVIDER OF THE APPLICABLE THIRD PARTY PRODUCT, TO THE EXTENT THAT THESE CAN BE PROVIDED BY ONULIS. IN NO EVENT SHALL ONULIS BE LIABLE FOR ANY DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGE OR LOSS THAT THE CUSTOMER MAY INCUR RESULTING FROM PURCHASING, INSTALLATION AND/OR USE OF THIRD-PARTY PRODUCTS.
7.5 EXCLUSION OF LIABILITY FOR RECOMMENDATIONS OF THIRD PARTIES' PRODUCTS. AS FAR AS ONULIS MENTIONS OR RECOMMENDS ANY THIRD PARTY PRODUCT, SUCH MENTIONING OR RECOMMENDATION SHALL BE UNDERSTOOD AS THE MENTIONING OR RECOMMENDATION OF AN EXAMPLE OF A GROUP OF PRODUCTS; IT DOES NOT AND SHALL NOT CONSTITUTE AN ADVERTISEMENT IN FAVOR OF SUCH PRODUCT, NOR DOES ONULIS ACT AS THE DISTRIBUTOR OF SUCH PRODUCT. CUSTOMER SHALL REMAIN FULLY RESPONSIBLE WHETHER OR NOT AND TO WHAT EXTENT IT WANTS TO ACQUIRE AND USE SUCH PRODUCT. IN CASE CUSTOMER ACQUIRES ANY SUCH THIRD PARTY PRODUCT, CUSTOMER SHALL ENTER INTO ALL NECESSARY AGREEMENTS AND USE THE THIRD PARTY PRODUCT IN COMPLIANCE WITH ALL APPLICABLE TERMS. ONULIS SHALL NOT BE LIABLE FOR ANY DAMAGE CAUSED BY ANY SUCH THIRD PARTY PRODUCT OR BY THE USE OF SUCH THIRD PARTY PRODUCT.
PROPRIETARY RIGHTS.
8.1. Customer acknowledges that Onulis is the sole owner of all Intellectual Property and trade secrets that relate to the Products and the use thereof. No right or license in Intellectual Property is granted to Customer by implication, estoppel or otherwise, unless, and only to the extent, expressly set forth herein or in other written documentation provided by Onulis. Except as required by law or as expressly set forth in other written documentation provided by Onulis, Intellectual Property directed to all or part of a Product is licensed only upon purchase of the Product from Onulis or its approved reseller and only for use of the specific Product so purchased; Intellectual Property directed to a combination of Products (such as a System and Consumables) is licensed only upon purchase of the entire combination from Onulis or its approved reseller and only for use of the combination of specific Products so purchased; Intellectual Property directed to a method of using a Product is licensed only upon purchase of the Product from Onulis or its approved reseller that necessarily performs the method and only for use in connection with the specific Product so purchased; and Intellectual Property directed to a method of using a combination of Products (such as a System with Consumables or combinations of Consumables) is licensed only upon purchase of the entire combination from Onulis or its approved reseller that collectively necessarily perform the method and only for use in connection with the combination of specific Products so purchased. As used herein, "Intellectual Property" shall mean any and all Onulis copyrights, patents, trademarks, trade names, logos, Software, documentation, technical and manufacturing techniques, concepts, methods, designs, specifications and other proprietary information relating to the Products. Notwithstanding any other provision of these Terms, any use herein of the terms "sale" or "purchase" or a similar term in connection with the Software shall only mean a license of such Software in accordance with these Terms.
CONFIDENTIALITY.
9.1. Customer agrees to hold all confidential or proprietary information (including, without limitation, technology, software, ideas, know-how, processes, specifications, technical data, configurations, algorithms and trade secrets) which is disclosed by Onulis (collectively, "Confidential Information") in strictest confidence, and agrees not to use any Confidential Information for any purpose outside the purchase, sale and use of Products, and not to disclose the Confidential Information to any third party, except to those employees of Customer who are bound by written restrictions at least as protective of Onulis' Confidential Information as those provided herein, and who must be given access to the Confidential Information solely to use the Products in accordance with these Terms. Upon execution of a non-disclosure agreement satisfactory to Onulis, its Confidential Information may also be disclosed to Customer's consultants who have been retained to perform services in connection with the Products, provided that Customer shall remain liable for any breach of such agreement, or damage or loss incurred as a result of such breach, by any such consultants.
INDEMNITY.
10.1. Subject to the restrictions identified below, Onulis shall assume responsibility for any suit or proceeding brought against Customer which is based on a third party claim that an unaltered Product (including its Software) or any Part thereof, furnished pursuant to these Terms infringes upon the third party's registered copyright, trademark or patent; provided, however, that Onulis shall: be given immediate notice in writing of the assertion of any such claim and of the threat or institution of any such suit or proceeding; have sole authority to investigate, defend and/or settle the claim, suit or proceeding; and be given any such assistance as required for the investigation, preparation, defense and settlement of the claim, suit or proceeding, subject to reimbursement by Onulis of Customer's reasonable out-of-pocket expenses.
Without derogating from the foregoing obligation, if Onulis believes that any Product (including its Software) may infringe, then Onulis, at its election, may: substitute or modify such Product which is alleged or determined to infringe so that it becomes non-infringing, while providing substantially similar performance; obtain license rights for the continued use of the Product by Customer (at no additional cost to Customer); and/or refund to Customer the purchase price paid for the infringing Product, less a depreciation allowance of twenty percent (20%) per year from the date of delivery. This Section 10.1, states Customer's entire remedy, and Onulis' entire liability subject to the limitations on liability set out in Section 7.1 (Limitation of Direct Damages), for any such infringement or claim thereof, and shall control over any other conflicting or inconsistent provision in these Terms. Without the prior written consent of Onulis, Customer shall not incur any cost or expense in connection with such claim, suit or proceeding or make any admission, or enter into any agreement, in connection therewith.
Onulis shall have no liability or obligation under this Section 10.1 for any infringement or claim thereof to the extent it is based upon: production, sale or use of prototypes, outputs, or other results of the Products; any method of using a Product, other than methods inherent in, and necessary for, the operation of, the Product as supplied; the use of any Product with any consumables, supplies, equipment, device or software not manufactured or supplied and certified by Onulis; the use of any Product which has been modified by Customer or any third party without obtaining Onulis' prior written authorization; the result of Onulis' compliance with any of Customer's requested designs or specifications; circumstances giving rise to one or more warranty exclusions under Section 6.3 (Exclusion of Warranties) above; and/or Customer's continued use of any Product after receipt of notice of infringement (collectively, "Exclusions").
10.2. Customer shall defend, indemnify, and hold harmless Onulis and its affiliates, and their employees, officers, and directors, against any claim, suit or proceeding arising out of or relating to any Exclusions; provided that Customer shall not settle any claim or enter into any agreement that affects Onulis' rights or interests without Onulis' prior written consent; and that if Customer does not diligently defend against such claim, suit, or proceeding, Onulis shall be entitled to obtain its own legal counsel to direct the defense thereof at Customer's sole cost and expense.
INSURANCE.
11.1. Customer will obtain and maintain adequate liability insurance on the Products against loss or damage from any external causes, with Onulis named as an additional insured under all such policies.
EXPORT COMPLIANCE.
12.1. Customer shall comply with all applicable laws, rules, and regulations with respect to, but not limited to, the use of the Product. In addition, Customer expressly agrees to abide by all applicable foreign trade/export restrictions or similar rules as stated herein or referred to herein. Customer shall not transfer, export or re-export any Product (including any Software, Part, or consumable) or any related technology except in full compliance with all applicable export controls administered by the United States of America and other countries, as well as any applicable import and use restrictions, which laws, regulations, controls and restrictions may change from time to time. Without limiting the generality of the foregoing, Customer shall not transfer, export or re-export such items to anyone on the U.S. Treasury Department's list of Specially Designated Nationals; the U.S. Commerce Department's Denied Persons List or Entity List; or any lists maintained by the U.S. Office of Foreign Assets Control and the U.S. Department of Homeland Security, which lists may be revised from time to time, or for any use in chemical or biological weapons, sensitive nuclear end uses, missiles, etc. Customer represents it is not located in, under control of, or a national or resident of any country on any such list. Customer shall be solely responsible for determining compliance and obtaining all required approvals to facilitate the export of any products or technologies, including outside of the U.S., and Onulis shall be under no obligation to notify Customer of any changes or updates to any laws, regulations, controls, restrictions or lists contemplated hereby. Customer shall immediately inform Onulis of any trade/export restrictions, whether they are of E.U., U.S. or other origin, which may impact Onulis' compliance with internationally respected legislation, rules, protocols, advice or recommendations relating to trade/export restrictions. For clarity, in the event of any conflict between legislation of local origin and of U.S. origin, legislation of U.S. origin will prevail unless prohibited by mandatory legislation of local origin.
US GOVERNMENT USE.
13.1. If Customer is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Product or Software is further restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies, and the Defense Federal Acquisition Regulation Supplement as applied to defense and military agencies, for "commercial items," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use thereof by the Government shall be governed solely by these Terms.
NOTICES.
14.1. All notices and communications between the parties shall be in writing and addressed and sent by: email where delivery is verifiable by automated receipt; facsimile, where delivery is verifiable by automated delivery receipt; or by national or international overnight courier service where delivery receipt is provided to the addresses set forth in the Purchase Order, or to such other replacement addresses as may be provided from time to time by each party by written notice given in accordance with this Section 14. Any notice to Onulis shall be to the attention of CEO or other authorized contact identified in the applicable Purchase Order acknowledgment. Notice shall be deemed to have been duly received by a party as of the date such notice was delivered in accordance with any of the methods prescribed herein.
ENTIRE AGREEMENT.
15.1. These Terms: constitute the entire agreement and understanding between the parties regarding the terms of each Product sale, and supersede all prior and contemporaneous representations, promises, statements, agreements and understandings, written or oral, regarding the subject matter hereof; and may only be modified and/or waived by a written agreement executed by both parties. Notwithstanding the foregoing, these Terms may be modified by Onulis from time to time and in its discretion, by delivery of replacement Terms to Customer, and by posting such then-current Terms at https://www.onulis.com/terms-and-conditions-of-sale.
JURISDICTION.
16.1. These Terms shall be governed by and construed under the internal laws of the State of California, USA, without reference to its choice of law rules; and Customer irrevocably consents to the exclusive jurisdiction and venue of the applicable federal or state courts located in Orange County, California, and agrees to file any action brought by it hereunder only in the competent federal and/or state courts located there.
Customer irrevocably consents to the exclusive jurisdiction and venue of, and agrees that any action brought by it under these Terms or otherwise shall be brought only in Orange County, California, before an arbitrator appointed by the appropriate California state body and in accordance with its rules. With respect to the above jurisdiction rules, Customer hereby agrees to the exclusivity of such applicable jurisdictions and irrevocably waives any personal, subject matter, inconvenient forum or other objections thereto. Notwithstanding the foregoing, Customer also hereby consents to the jurisdiction of any court(s) of competent jurisdiction in which Onulis seeks equitable or injunctive relief for the breach of any of these Terms and in all cases waives any applicable right to a jury trial. Customer shall be liable for all costs incurred by Onulis (including attorneys' fees or other costs) in connection with the collection of any past due amounts owed by Customer. The United Nations Convention for the Sale of Goods shall not apply to any transaction hereunder.
GENERAL.
17.1. The parties hereto are independent contractors and nothing herein shall be construed as creating a partnership or granting the right to bind the other. Customer may not assign or transfer these Terms or the rights granted hereunder, except with Onulis' prior written consent. Subject to the foregoing, Customer's rights or obligations under these Terms shall be binding upon and inure to the benefit of each party's respective permitted successors and assigns. Designated third-party beneficiaries may also enforce the Terms relating to their rights. Onulis reserves the rights to terminate and revoke these Terms and terminate its relationship with Customer at any time following Customer's breach of any of these Terms, and such termination shall be effective immediately upon written notice thereof to Customer. Upon termination for any reason, Customer shall immediately cease use of any Software not embedded within the Systems, delete or destroy all copies in its possession, including that which may have been provided to contractors or consultants, and execute and deliver to Onulis a certification evidencing same. The unenforceability of any provision of these Terms adjudged by any court of competent jurisdiction shall in no way affect the enforceability of any other provision hereof, which shall remain in full force and effect. Any failure by either party to exercise any right or remedy under the Terms does not constitute a waiver, or signify acceptance, of the event giving rise to such right or remedy. Any waiver or other alleged modification or amendment by Onulis of any provision of these Terms must be in writing and signed by an authorized officer of Onulis to be valid. Provisions which by their nature should survive termination of the parties' business relationship and any agreements between or among them, including, but not limited to, Sections 1.4 (Restrictions on Use), 2 (Payment and Taxes), 3.1 (Transfer Terms), 6.3 (Exclusion of Warranties), 6.4 (Warranty Disclaimer), 7 (Limitation of Liability), 8 (Proprietary Rights), 9 (Confidentiality), and 12 (Export Compliance) through 17 (General) shall so survive indefinitely. To the extent that these Terms are accepted electronically, Customer hereby waives any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. Additionally, Onulis may request modifications to Customer’s purchase orders as it relates to shipping terms, risk of loss and/or payment terms without affecting or negating the enforceability of the remaining provisions set forth herein.