Elo Legal

These terms and conditions of sale (“Terms”) apply to all orders accepted and all sales made by Elo Touch Solutions, Inc. (including its subsidiaries, “Elo”), directly or indirectly, including, without limitation the sale of the Products (as defined below) listed in a product quotation, order acceptance, or invoice issued by Elo to which these Terms are appended or which reference these Terms or any other orders of Elo Products (“Order”), unless otherwise approved by Elo in writing. “Customer” means an Elo authorized distributor or reseller and/or an entity ordering the Products from Elo or an Elo authorized distributor or reseller, as applicable. Customer and Elo shall be referred to collectively as the “parties” and each individually as a “party.”

General

(a) The Terms constitute the sole and entire agreement between Elo and Customer with respect to the sale of the Products and the subject matter hereof. Any term or condition in any order, purchase order, confirmation, or other document furnished by Customer which is in any way inconsistent with, or in addition to, the Terms is hereby expressly rejected, and shall be superseded by these Terms, unless signed by both parties. Any Terms different than, or in addition to, these Terms which may be implied by trade, custom, practice, or course of dealing, are objected to and shall have no force and effect. Customer undertakes to purchase all Products listed in the Order by any deadline set forth therein and subject to monthly minimum order quantities set forth therein, if any. The parties acknowledge that the governing language of a purchase of Products shall be English, unless otherwise agreed to by Elo. Elo may condition the acceptance of a blanket Order upon the commitment by Customer to a delivery schedule.

(b) Definitions. “Product(s)” means computer hardware, Component (as defined below), Software (as defined below), replacement parts, and any other products provided hereunder. “Component” means a touch screen, touch controller, or touch driver that cannot be used stand-alone and must be embedded in a Product or similar product to function. “Service(s)” means any and all services provided by Elo as set forth in one or more written services agreements agreed to by the parties. “Software” means collectively, any machine readable instructions used by a processor to perform specific operations other than machine readable instructions used for the sole purpose of booting computer hardware during startup including without limitation any software, library, utility, tool, or other computer or program code provided by Elo to Customer, whether installed locally on the Product hardware or otherwise accessed by Customer through the internet or other remote means (such as websites, portals and cloud-based solutions), including any related documentation. “Materials” means all content and other items included with or as part of the Products, Software or related deliverables, tangible or intangible, including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations prepared by Elo or its suppliers, licensors, or subcontractors in the course of performing any Services or otherwise, text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, music, sounds, and software. “Third-Party Products” means any non-Elo-branded products, Software, or services sold by Elo to Customer or made available to Customer in conjunction with any Product.

Prices and Payment Terms

The sale price(s) of the Products are as set forth in the invoice or in the applicable Elo price list or Elo quote and are subject to change. Payment terms shall be net thirty (30) days from date of invoice and shall be in U.S. Dollars, unless otherwise set forth in the invoice or agreed to by Elo in writing. If Customer purchases a multi-year Software license and related support and/or maintenance, and Elo and Customer (or if applicable, the third-party licensor if a Third-Party Product) agree to annualize Customer’s purchase over the term of the license, Customer shall make all annual payment in full and such purchase is noncancellable over the term of such license. Any invoiced amount which is not paid when due shall bear interest at the rate of one and one-half percent (1½%) per month or the highest rate then permitted by law, whichever is less, until paid in full. If any amount owed by Customer for Software or Services is thirty (30) or more days overdue, in addition to any other rights or remedies it may have, Elo may suspend or terminate the use of or access to the Software or Services by Customer until such amounts are paid in full. All quotations made by Elo are subject to change at any time prior to acceptance (and delivery) of an order and expire forty-five (45) days from the date given (unless otherwise specified in the quotation). Unless agreed by Elo in writing, any service calls or other service work performed by Elo shall be at Customer’s expense in accordance with Elo’s rates. The Product prices are not subject to trade or other discounts and do not include federal, state, or local taxes applicable thereto. All such taxes shall be paid by Customer unless Customer provides Elo with evidence satisfactory to Elo of exemption from such taxes. If Elo is required by applicable law to collect such taxes, Elo will state such taxes on the invoice. In addition to any rights hereunder, Elo reserves the right to put shipments on hold, suspend or terminate any Services, or refuse to license Software, if payment is not received by the due date of any invoice and until Elo receives such outstanding amounts. Customer acknowledges that all invoices shall be deemed accurate unless Customer notifies Elo of a bona fide error within thirty (30) days of the date of such invoice. In no event shall Customer be entitled or permitted to offset, defer, or deduct any amounts from the invoiced amounts unless Elo determines they are erroneous following the notification process set forth above.

Delivery and Title Passage

Taxes, shipping and handling, and insurance charges are not included in the Product price, unless expressly set forth in a written Order confirmation from Elo. Title and risk of loss to the Product(s) (except title to Software) passes to Customer from Elo upon shipment to Customer. Shipping and delivery dates provided by Elo are provided as estimates only. If shipment of any Product is delayed at Customer’s request, Elo may invoice Customer for such Products, and Customer shall reimburse Elo for any and all costs of storage incurred by Elo after the date that Elo is prepared to make shipment. Elo retains a security interest in all Products and all proceeds and products thereof until all amounts due or to become due hereunder have been paid. Any repossession and removal of Products shall be without limiting any of Elo’s other remedies at law or in equity. Customer must notify Elo in writing within fourteen (14) days from a scheduled delivery date if Customer believes that any part of the order is missing, erroneous, or damaged. Customer is responsible for loss or damage that occurs during shipping by a carrier selected by Customer. Neither (i) the time, method, place, or medium of payment provided for herein or any combination of the foregoing, nor (ii) the manner of consignment provided for, whether for or to the order of Customer or its agent, will in any way limit or modify the rights of Elo, as the owner of the Products, to have control over and the right to possession of the Products until the title thereto passes to Customer as provided for above. In the event that a bank has, by reason of credit extended to Customer or for any other reason, an interest in the shipment, Elo may consign the Products to such bank through the usual channels; in each such case, the full right of ownership of and control over the shipment will remain in Elo until title passes to Customer as provided herein. The terms “ownership” and “title” as used in these Terms mean full beneficial ownership of the Products, except the Software.

Contingencies

Elo shall not be liable for delay in performance or nonperformance of any of its obligations hereunder, in whole or in part, if such performance is rendered impracticable or unreasonable by the occurrence of any contingency or condition beyond the control of either Elo or Elo’s suppliers, including without limitation war, embargo, riot or other civil commotion, failure or delay in transportation, epidemic or pandemic, sabotage, act of any government or any court or administrative agency thereof (whether or not such action proves to be invalid), labor dispute, accident, fire, explosion, flood or other casualty, shortage of labor, fuel, energy, raw materials or machinery, or technical failure. If any such condition occurs, Elo may allocate production and deliveries in any reasonable manner at its discretion. Elo may revise or discontinue a Product, Software, or Service offerings at any time without prior notice to Customer.

Limited Warranty; Suitability

(a) Elo warrants to Customer that the Products shall be free of defects in materials and workmanship (the “Warranty”) from the date of Elo’s invoice (or upon request, Customer’s proof of purchase date) for the period of time identified by Product on Elo’s website at www.elotouch.com or in the Materials included with such Products (each a “Warranty Period”).

(b) Within a reasonable time after receipt of a defective Product and verification by Elo that the Product fails to meet the Warranty, Elo shall correct such failure by, at Elo’s option, either (i) modifying or repairing the Product, (ii) replacing the Product with a substantially similar product, or (iii) failing those remedies, providing a credit or refund for such Product. Replacement equipment that Elo provides as part of the repair or replacement service may contain new or previously used genuine Elo parts that meet Elo functional requirements. Elo warrants that (y) the service will be performed in a competent and workmanlike manner and (z) all parts used to service Customer’s Product will be free from defects in materials and workmanship, unless otherwise specified by Elo. Any repaired Products shall conform in all material respects to the applicable Elo published specification for a period of ninety (90) days following completion of the repair or until the end of the original warranty period, whichever is longer. Such modification, repair, or replacement and the return shipment of the Product with minimum insurance to Customer shall be at Elo’s expense. Any services or repairs performed outside the scope of this limited warranty shall be subject to Elo’s standard service rates currently in effect. Elo may charge a diagnostic fee and request payment for reimbursement of costs and expenses incurred by Elo for Products found to be “not defective” or performing at the levels specified in Elo’s technical specifications.

(c) Customer shall notify Elo in writing promptly (and in no case later than thirty (30) days after discovery) of the failure of any Product to conform to the warranty set forth above, shall describe in commercially reasonable detail in such notice the symptoms associated with such failure, and shall provide to Elo the opportunity to inspect such Products as installed, upon Elo’s request. The notice must be received by Elo during the Warranty Period for such Product. Unless otherwise directed in writing by Elo, within thirty (30) days after receipt of such notice, Customer will package the allegedly defective Product in its original shipping carton(s) or a functional equivalent and shall ship it to Elo at Customer’s expense and risk.

(d) Elo’s Warranty will not apply to any Product with respect to which there has been (i) improper installation or testing, (ii) failure to provide a suitable operating environment, (iii) external causes, such as accident, abuse, misuse, fire, liquid intrusion, problems with electrical power, or similar, (iv) use of the Product for purposes other than that for which it was designed, (v) failure to monitor or operate the Product in accordance with applicable Elo specifications and good industry practice, (vi) combination or use of any Product with software drivers, touch controllers, and or sensors or Components that are not approved by Elo in writing, (vii) unauthorized attachment or removal or alteration of any part of the Product, (vii) unusual mechanical, physical, or electrical stress, (viii) modifications, services, or repairs done by anyone other than Elo or an Elo authorized service center, (ix) any other abuse, misuse, neglect, or accident, or (x) defects caused by normal wear and tear or otherwise due to the normal aging of the Product, or (x) to consumable parts, such as batteries, coatings, or backlit panels, that diminish over time, unless failure has occurred due to a defect in materials or workmanship. In no event shall Elo have any liability or obligation with respect to expenses, liabilities, or losses associated with the installation or removal of any Product or the installation or removal of any Components for inspection, testing, or redesign occasioned by any defect or by repair or replacement of a Product (including to an equivalent or upgraded product).

(e) Data loss during service is always a possibility, and in some cases, data may be unrecoverable, erased, or reformatted during service. For this reason, it is Customer’s sole responsibility to back up all existing data, software, and/or programs from Customer’s product, and to decide whether to erase any such data from Customer’s product, prior to receiving service. Elo is not responsible for loss, recovery, or compromise of data, software or programs, or loss of use of Customer’s product or other equipment arising out of the services provided by Elo. As part of the service, Elo may install system software updates which may not be compatible or work with third-party applications installed on Customer’s Product. Customer represents that Customer’s Product does not contain any illegal files or data.

(f) With respect to the Software, Elo warrants for sixty (60) days following the commencement of the Software license, that the Software will substantially conform to the published functional specifications and current documentation provided by Elo. Customer acknowledges that Software support and upgrade availability may depend upon hardware and software support from Elo’s suppliers or other third parties and may not always be available, and that the provision of Services is dependent on Customer’s use of a currently supported operating system. As Customer’s exclusive remedy and Elo’s sole liability for breach of the Software warranty herein, Elo will provide or cause others to provide technical support as provided to Elo’s other customers in connection with the Software during the term of the license. The Services will be performed by Elo in good and workmanlike manner.

(g) THESE REMEDIES SHALL BE CUSTOMER’S EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, ELO (INCLUDING ITS AFFILIATES, CONTRACTORS, AND AGENTS AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND OFFICERS) GRANTS NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, (i) REGARDING THE PRODUCTS, SOFTWARE, SERVICES, OR THEIR FITNESS FOR ANY PURPOSE, THEIR QUALITY, THEIR MERCHANTABILITY, THEIR NONINFRINGEMENT, OR THEIR PERFORMANCE RELATING TO THIRD-PARTY PRODUCTS, SOFTWARE, OR SERVICES; (ii) RELATING TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE OR ELO'S PERFORMANCE OF THE SERVICES; OR (iii) REGARDING THE RESULTS TO BE OBTAINED FROM THE PRODUCTS, SOFTWARE, SERVICES, OR THE RESULTS OF ANY RECOMMENDATION BY ELO OR OTHERWISE. NO EMPLOYEE OF ELO OR ANY OTHER PARTY IS AUTHORIZED TO MAKE ANY WARRANTY FOR THE GOODS OTHER THAN THE WARRANTY SET FORTH HEREIN. ELO’S LIABILITY UNDER THE WARRANTY SHALL BE LIMITED TO THE PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT. IN NO EVENT SHALL ELO BE LIABLE FOR THE COST OF PROCUREMENT OR INSTALLATION OF SUBSTITUTE PRODUCTS BY CUSTOMER OR FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES. NOTWITHSTANDING ANY OTHER PROVISIONS HEREOF, ELO SHALL NOT BE OBLIGATED TO PERFORM ANY OF THE WARRANTY OBLIGATIONS SET FORTH HEREIN IN THE EVENT THAT CUSTOMER IS IN DEFAULT OF ITS PAYMENT OBLIGATIONS UNDER ANY ORDER.

(h) THESE WARRANTIES DO NOT APPLY TO THIRD-PARTY PRODUCTS. ANY WARRANTY ON A THIRD-PARTY PRODUCT IS PROVIDED BY THE ORIGINAL MANUFACTURER, PROVIDER, OR PUBLISHER. ALL THIRD-PARTY PRODUCTS ARE PROVIDED “AS IS; WHERE IS.” WITH RESPECT TO THE USE OF THE SOFTWARE OR SERVICES (i) ELO MAKES NO EXPRESS OR IMPLIED WARRANTY THAT SOFTWARE IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; OR THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED; (ii) ELO DISCLAIMS AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF ANY REPORTS, DATA, RESULTS, OR OTHER INFORMATION OBTAINED OR GENERATED BY CUSTOMER RELATED TO CUSTOMER’S USE OF THE SOFTWARE; AND (iii) THE SOLE RECOURSE CUSTOMER MAY HAVE HEREUNDER FOR VIOLATION OF ANY SOFTWARE RELATED WARRANTY IS TECHNICAL SUPPORT AND BUG FIXES PROVIDED UNDER THE MAINTENANCE SERVICES OFFERED WITH THE SOFTWARE. NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT ELO'S WARRANTY OR LIABILITY FOR LOSSES THAT ARE EXPRESSLY PROHIBITED UNDER APPLICABLE LAW FROM BEING RESTRICTED OR LIMITED AS CONTEMPLATED HEREUNDER. AS SUCH, ONLY THE LIMITATIONS THAT ARE LAWFULLY APPLIED TO CUSTOMER IN ITS JURISDICTION WILL APPLY TO IT, AND ELO'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW TO BE WAIVED, LIMITED, OR RESTRICTED BY CUSTOMER AS CONTEMPLATED HEREUNDER.

Software and Services

(a) Software is subject to the separate software license agreements accompanying the Software, along with any product guides, operating manuals, information on Elo’s website, or other documentation included with the Software media packaging or presented to Customer during the installation or use of the Software, including any license terms with third parties related to Third-Party Products, such as any click-thru, EULAs, or other acceptance methods, and by accessing, downloading, or using any such Software, Customer agrees to be bound by such license agreement. To the extent that a Third-Party Product Software is offered by Elo in conjunction with the any Elo Product or Software and such Third-Party Software is subject to a Third-Party license agreement, the use and support of such Third-Party Product shall be governed by the terms of such agreement between the Third Party and Customer and Elo shall have no obligations or liabilities in connection therewith. If no license terms accompany the Software, then subject to Customer’s compliance with the terms set forth in these Terms, Elo hereby grants Customer a personal, nonexclusive license to access and use such Software only during the term of the license as identified in the Order or Materials and solely as necessary for Customer to enjoy the benefit of the Software as stated in the applicable Order or Materials.

(b) Customer may not copy, modify, or create a derivative work, collective work, or compilation of the Software, and may not reverse engineer, decompile, or otherwise attempt to extract the code of the Software or any part thereof. Customer may not (i) license, sell, assign, sublicense, or otherwise transfer or encumber the Software, (ii) use the Software in a managed-services arrangement; (iii) use the Software in excess of the authorized number of licensed seats for concurrent users, sites, or other criteria specified in the applicable Order or Materials; (iv) access the Software to monitor its availability, performance, or functionality, or for any other benchmarking or competitive purpose; (v) attempt to use or gain unauthorized access to Elo or to any third party's networks or equipment; (vi) transmit unsolicited bulk or commercial messages; (vii) attempt to probe, scan, or test the vulnerability of Software or a system, account, or network of Elo or any of its customers or suppliers; (viii) interfere or attempt to interfere with service to any user, host, or network; (ix) engage in fraudulent activity of any nature; or (x) permit or enable others to use or copy the Software or take any of the actions prohibited hereunder.

(c) Each license to Software will continue for the term stated in the Software license, unless otherwise terminated. Elo or a Third-Party Product provider may terminate any Software license immediately, including prior to the expiration of the term thereof, if (i) Customer fails to make any payment when due; (ii) Customer is acquired by or merges with a competitor of Elo; (iii) Customer declares bankruptcy or are adjudicated bankrupt; or (iv) a receiver or trustee is appointed for Customer or substantially all of its assets.

(d) Elo may suspend, terminate, withdraw, or discontinue all or part of the Services or Customer’s access to the Software (and third-party Software offered as a Third-Party Product) upon receipt of a subpoena or law enforcement request, or when Elo believes, in its sole discretion, that Customer has breached any term hereof or an applicable Software license agreement or is involved in any fraudulent, misleading, or illegal activities. With respect to Software provided or otherwise made available to Customer by Elo in connection with the Products or related Services, it may be necessary for Elo to perform scheduled or unscheduled repairs or maintenance or remotely patch or upgrade the Software, which may temporarily degrade the quality thereof or result in partial or complete outage of the Software or Product. Elo provides no assurance that Customer will receive advance notification of such activities or that the Services or Software will be uninterrupted or error-free. Unless otherwise agreed to in writing between Customer and Elo, any such interruption in the Software or delivery of Services shall not give rise to a refund or credit of any fees paid. CUSTOMER ACKNOWLEDGES THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SOFTWARE, INCLUDING TELEPHONE, COMPUTER NETWORKS, CLOUD-BASED SERVICES, PORTALS, AND THE INTERNET, OR TO TRANSMIT INFORMATION, CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF THE SOFTWARE. ELO SHALL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF CUSTOMER’S ACCESS TO OR USE OF THE SOFTWARE.

(e) Customer hereby grants Elo, or a representative designated by Elo, the right to perform an audit of its use of the Software during normal business hours and will cooperate with such audit and provide Elo with all records reasonably related to Customer’s use of the Software. The audit will be limited to verification of Customer’s compliance with these Terms.

(f) A portion of the Software may contain or consist of open-source software, which Customer may use under the terms and conditions of the specific license under which the open-source software is distributed. THIS OPEN-SOURCE SOFTWARE IS DISTRIBUTED IN THE HOPE THAT IT WILL BE USEFUL, BUT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY REGARDING TITLE OR AGAINST INFRINGEMENT. IN NO EVENT SHALL ELO, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS OPEN SOURCE-SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

(g) In connection with Elo’s performance of any Services, or Customer’s use of the Software or any related Services, Elo or a third-party provider may obtain, receive, or collect data or information, including system-specific data (collectively, the “Data”). In such cases, Customer grants Elo a nonexclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely for those purposes. In addition, Customer grants Elo a license to aggregate and use the Data in an anonymous manner in support of Elo's marketing and sales activities. Customer also grants Elo the right to copy and maintain such material and content on Elo's servers (or the servers of its suppliers) as long as such Software is used by Customer or services are provided. Customer represents and warrants that it has obtained all rights, permissions, and consents necessary to use and transfer the Data within and outside of the country in which Customer is located in conjunction with Elo's performance of the services or its use of the service-related Software (including providing adequate disclosures and obtaining legally sufficient consent from its employees, agents, and contractors).

(h) Each Service and license to Software will continue for the term stated in the related Services agreement or the Software license, unless otherwise terminated. Elo may, at its sole discretion, propose to renew the Service and the Software license by sending Customer an invoice or, subject to prior notification, continuing to perform the Service or make the Software available to Customer. Customer may (if permitted under applicable law) agree to such renewal of the Service and Software license by paying such invoice by its due date or by continuing to order Services or use the Software.

Indemnity

(a) Customer assumes the risk and will indemnify Elo against and hold Elo harmless from all liability relating to (i) assessing the suitability for Customer’s intended use of the Products and of any system design or drawing and (ii) determining the compliance of Customer’s use of the Products and Services with applicable laws, regulations, codes, and standards. Customer retains and accepts full responsibility for all warranty and other claims relating to, or arising from, Customer’s products which include or incorporate Products, Software, or Components manufactured or supplied by Elo. Customer will indemnify, defend and hold Elo harmless from any liability, claims, loss, cost, or expenses (including reasonable attorneys’ fees) attributable to Customer’s products or representations or warranties concerning same.

(b) Elo will settle or defend any suit or proceeding brought against Customer insofar as such suit or proceeding is based on a claim that any Product constitutes direct infringement of any issued United States, European Union, Chinese, Japanese, or Taiwanese patents or any valid copyright or trade secret. Elo shall pay all damages and costs finally awarded therein against Customer, provided Elo is informed by Customer in writing within ten (10) days after receipt by Customer and furnished a copy of each communication, notice, or other action relating to the alleged infringement and is given all authority (including the right to exclusive control of the defense of any suit or proceeding), information, and assistance necessary to settle or defend such suit or proceeding. In the event such Product or any part thereof is, in such suit, held to constitute infringement and the use of such Product or part thereof is enjoined, Elo shall, by its own election and at its own expense, either (i) procure for Customer the right to continue using such Product, (ii) modify it so that is becomes non-infringing, or (iii) remove such Product, or part thereof, and grant Customer a credit thereon and accept its return. Elo shall not be obligated to settle or defend any suit or proceeding, or be liable for any costs or damages, if the alleged infringement arises out of compliance with Customer’s specifications or any addition to or modification of the Product after delivery thereof or from use of the Product or any part thereof in conjunction with other goods or in the practice of a process. Elo’s obligations hereunder shall not apply to any alleged infringement occurring after Customer has received notice of such alleged infringement unless Elo thereafter gives Customer express written consent for such continuing alleged infringement. Elo shall not be bound in any manner by any settlement hereunder made without its prior written consent, which shall not be unreasonably withheld. If infringement is alleged prior to completion of delivery of a Product, Elo may decline to make further shipments without being in breach of this Agreement. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF ELO FOR PATENT INFRINGEMENT AND IS IN LIEU OF ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD THERETO.

Limitation of Liability

ELO SHALL NOT UNDER ANY CIRCUMSTANCES WHATSOEVER BE LIABLE TO ANY CUSTOMER OR ANY THIRD PARTY FOR LOSS OF PROFITS (DIRECT OR INDIRECT), ANY DESTRUCTION OR LOSS OF DATA (DIRECT OR INDIRECT), DIMINUTION OF GOOD WILL, OR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES WHATSOEVER WITH RESPECT TO ANY CLAIM IN CONNECTION WITH ANY ELO PRODUCTS OR SERVICES.

NOTWITHSTANDING ANY OTHER PROVISION HEREIN OR IN ANY OTHER COMMUNICATION, (A) ELO’S LIABILITY AND OBLIGATIONS WITH RESPECT TO ANY CLAIM(S) WHETHER IN CONTRACT, STRICT LIABILITY, TORT, OR OTHERWISE SHALL IN NO EVENT EXCEED IN THE AGGREGATE THE TOTAL PURCHASE PRICE RECEIVED BY ELO FOR THE PRODUCTS, SERVICES AND/OR SOFTWARE OR, IN THE CASE OF OBLIGATIONS RELATING TO PARTICULAR PRODUCTS OR SERVICES RENDERED IN CONNECTION HEREWITH, THE PURCHASE PRICE OF SUCH PRODUCTS AND/OR SERVICES, AND (B) ELO SHALL IN NO EVENT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY, WHETHER IN CONTRACT, STRICT LIABILITY, TORT, OR OTHERWISE, FOR SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR CLAIMS OF ANY THIRD PARTIES.

Acceptance; Returns

Customer shall inspect Products promptly upon their receipt. Nonconformities visible upon receipt have to be noted on the delivery note and/or waybill presented by the delivering carrier. Unless Customer notifies Elo in writing within two (2) business days after the receipt of Products that the Products are nonconforming, describing the nonconformity in commercially reasonable detail, Customer shall be deemed to have accepted the Products. Customer may not revoke its orders or acceptance of Products and shall be barred from any remedy not explicitly set forth herein. No Products delivered and accepted under these Terms are subject to returns except upon written approval of Elo at its sole discretion and subject to these Terms.

Property Furnished by Customer; Feedback

If Customer furnishes any components, specifications, parts, tools, dies, jigs, or other property or facilities to Elo in connection with the performance of this Agreement, Customer shall bear all risk of loss or damage with respect to such property or facilities and shall indemnify, defend, and hold Elo harmless from and against all loss, cost, expense, or liability arising in connection with its use of any such property or facilities. Elo shall not be responsible for any delay in performance or nonperformance hereunder or the failure of any Product to conform to applicable specifications resulting, in whole or in part, from Elo’s use of property or facilities furnished by Customer. Any non-recurring engineering fees paid by Customer or on its behalf to Elo or agreed to by the parties in writing are non-cancellable and nonrefundable, and, unless otherwise agreed by both parties in writing, any tooling purchases by Elo shall be the sole property of Elo. Notwithstanding the receipt by Elo of any non-recurring engineering fees paid by Customer, Customer acknowledges that, as between Elo and Customer, Elo owns all right, title, and interest, including all intellectual property rights, in and to the Products and any intellectual property rights contained in Customer’s specifications (except Customer’s trademarks). If Customer provides Elo with any comments, questions, suggestions, or the like regarding Elo’s Products, Services, or Software, including regarding new features or functionality relating thereto (collectively, “Feedback”), all such Feedback is and will be treated as non-confidential. Customer hereby assigns to Elo all right, title, and interest in, and is free to use, without any attribution or compensation to Customer or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Elo is not required to use any Feedback.

Proprietary Information and Rights

(a) As used herein, the term “Proprietary Information” includes any information of a confidential or proprietary nature obtained from Elo and any information obtained from Elo which is not readily available to others in the public domain. Elo retains all rights, title, and interest in the Products, Software, methods by which the Services are performed, the processes that make up the Services and any Materials, all other Proprietary Information and all documentation which contains Proprietary Information, including the intellectual property (including all copyrights, patents, trademarks, trade secrets, and trade dress) embodied therein and the methods and the processes incorporated therein, shall belong solely and exclusively to Elo or the applicable suppliers or licensors, and Customer shall have no rights whatsoever in any of the above, except as expressly granted in these Terms. Customer shall not disclose, duplicate, or reproduce, modify, remove, delete, augment, add to, publish, transmit, adapt, or reverse engineer, decompile, or disassemble the Products, the Software, or Materials or any portion thereof or any other Proprietary Information nor shall Customer use any Proprietary Information other than in the course of exercising its rights or performing its obligations hereunder. Customer shall take all reasonable steps to prevent the disclosure, duplication, or reproduction of any Proprietary Information.

(b) Notwithstanding the foregoing, Customer shall not be required to refrain from disclosing or using any Proprietary Information which has become known to Customer if the original source of such Proprietary Information was not Elo or any person or party affiliated with Elo or having an obligation of confidentiality to Elo. Trademark rights of Elo are not transferred with the Products. Neither these Terms nor any purchase of Products hereunder shall be construed to confer upon Customer or its customers any license under any patent or other proprietary rights of Elo, except the right to use such Products for the purposes for which they are sold.

Cancellation

Neither the Order, these Terms, or any purchase order hereunder may be cancelled by Customer. Customer is permitted one reschedule opportunity with no charge provided that Customer notifies Elo of its request to do so at least five (5) business prior to the scheduled shipment thereof. A reschedule cannot extend further than thirty (30) days from original ship date requested and must remain within the original calendar quarter requested. If approved by Elo, any additional reschedules will be subject to a minimum ten percent (10%) charge calculated on the value of the order (or the rescheduled portion of the order), in Elo’s sole discretion.

Default

The following shall constitute events of default of the Customer. If the Customer: (a) defaults on any of its payment or other monetary obligations and such default continues for a period of ten (10) days after receipt of written notice of such default; or (b) fails to perform any other material obligations of Customer hereunder and such failure continues for a period of fifteen (15) days after receipt of written notice of thereof; or (c) commences a voluntary case or other proceeding seeking liquidation, reorganization, or other relief with respect to itself or its debts under any bankruptcy, insolvency, or other similar law now or hereafter in effect or seeks the appointment of a trustee, receiver, liquidator, custodian, or other similar official over it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall take any corporate action to authorize any of the foregoing, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due; or (d) has an involuntary case or other proceeding commenced against it seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian, or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of forty-five (45) days, or an order for relief shall be entered against it, then Elo may terminate these Terms (except for terms that by their nature survive termination) or cancel any purchase order. Termination of these Terms by Elo shall not relieve Customer of any liability for damages or otherwise which may have been incurred by any breach hereunder. Elo’s remedies hereunder shall be cumulative, and in addition to any other remedies available to Elo at law, in equity or otherwise.

Resale of Component Products

Customer may not resell Component Products. Elo shall not be obligated to provide any warranty service or other technical support for any Component Products not purchased directly from Elo or its authorized distributor or reseller hereunder.

Non-Waiver of Default

No failure by Elo to insist on strict performance of any term or condition hereof shall constitute a waiver of such term or condition or any breach thereof, nor shall such failure in any way affect Elo’s legal remedies with respect to any default by Customer hereunder.

Applicable Law; Venue

This Agreement shall be governed by and construed in accordance with the laws of the state of Texas excluding laws directing the application of the laws of another jurisdiction. Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of the state courts in and for Dallas County, Texas (or, if there is federal jurisdiction, the United States District Court for the Northern District of Texas), and the parties hereby irrevocably submit to the personal and exclusive jurisdiction and venue of such courts and hereby waive, to the fullest extent permitted by law, any right to a jury trial. Where a Customer is headquartered outside the United States and its territories, any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The place of arbitration shall be New York, and the language of the arbitration shall be English. In addition to the authority conferred on the arbitrator, and without prejudice to any provisional measures that may be available from a court of competent jurisdiction, the arbitrator shall have the power to grant any provisional measure, including, but not limited to, provisional injunctive relief. Any such provisional measures ordered may be deemed to be a final award on the subject matter of the measures and shall be enforceable as such. The arbitrator shall be guided by the IBA Rules On the Taking of Evidence In International Arbitration. No information concerning an arbitration, beyond the names of the parties and the relief requested, may be unilaterally disclosed to a third party by any party unless required by law. Judgment upon any award rendered by the arbitrator may be entered in any court of competent jurisdiction The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

High Risk Applications

In connection with any anticipated use of Products or Software by Customer in hazardous environments requiring failsafe performance (including medical applications (including without limitation cardiac pacemakers, defibrillators, electrodes, leads, and programmers, and Components therefor), aircraft navigation or communication systems, air traffic control, nuclear facilities or applications, or any other application in which the failure of the products, software, or services could lead directly to death, personal injury, or severe physical or property damage (collectively, “High-Risk Application”), Customer acknowledges that Elo’s products are manufactured under normal industrial conditions, which may not satisfy the requirements applicable to products manufactured for certain High-Risk Applications. It is the sole responsibility of persons contemplating High Risk Application of Elo’s products to comply with all applicable laws, regulations, codes, and standards, including the U.S. Federal Food, Drug and Cosmetic Act and regulations of the Food and Drug Administration or other similar laws, and Elo expressly disclaims any express or implied warranty of fitness for High-Risk Application. Customer will indemnify, defend, and hold harmless Elo and its officers, directors, employees, agents, and contractors from and against any and all losses, claims, damages, liabilities, and expenses (including reasonable attorneys’ fees) based upon any bodily injury or property damage arising from Customer’s incorporation of Products or Software as part of any product made by Customer for High-Risk Applications.

Assignment

Customer may not transfer or assign this Agreement or any interest herein, by operation of law or otherwise, without the prior express written consent of Elo. Any attempted transfer or assignment without such consent shall be void.

Entire Agreement; Modification

These Terms supersede all prior written and oral agreements and understandings between Elo and Customer with respect to the Products and services specified herein. No representation or statement not contained herein shall be binding upon Elo, including any purchase order. No addition to or waiver, modification or cancellation of any provision hereof shall be binding upon Elo unless in writing and signed by a duly authorized representative of Elo.

Notices

All notices and other communications hereunder shall be in writing and shall be delivered personally, by nationally recognized overnight courier service, or be mailed by first-class, registered, or certified mail, postage prepaid, to the parties hereto at their respective designated addresses as set forth in the Order, subject to either party’s right to change such address upon ten (10) days’ prior written notice. All notices to Elo shall be sent with a copy to Elo Touch Solutions, Inc., 2600 N. Central Expy, Suite 500, Richardson, TX 75080, Attention: General Counsel.

Export Control

Customer acknowledges that the Products, Software, Services, technical information and/or other Materials are or may be subject to export/re-export laws and regulations of the United States or other countries in which Customer operates. The Products, Software and Materials are subject to AT-level export controls as defined by the Export Administration Regulations (EAR) and U.S. Government export regulations. Customer will (i) not export, re-export, divert, transfer, or disclose, directly or indirectly, any Products, Software, or Services without complying strictly with all legal requirements including obtaining prior approval of the U.S. Department of Commerce and, if necessary, other government agencies; (ii) execute and deliver such “Letters of Assurance” as may be reasonably requested by Elo; (iii) ensure that Customer, its employees, and any third parties accessing such Products, Software, or Materials fully comply with the requirements of this provision and provisions of ITAR and EAR in addition to any other applicable law requirements, and Customer will indemnify and hold Elo harmless against any losses related to a failure to conform to these requirements.

Invalidity; Severability

Should any provision of these Terms be or become invalid, such provision will be replaced by a valid provision to the maximum extent permitted by law satisfies the same legal, economic, and originally intended purpose and other terms shall remain.

Agreements; Counterparts

Any Orders, agreements, or amendments must be in writing and may be signed in counterparts, including by electronic signature, each of which shall be considered an original.

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