All sales made by MSI are subject to these terms and conditions. Customer’s unequivocal acceptance of these terms and conditions shall be deemed upon: i) Customer’s signing or agreeing to these Terms; or ii) Customer providing a purchase order to MSI; or iii) Customer’s acceptance of any Product or Service from MSI; whichever occurs first.
1. Definitions
1.1. “Confidential Information” means: all MSI information provided, whether tangible or intangible, of all forms and types, where reasonable measures are taken to keep such information secret. Confidential includes, without limitation, any MSI documentation, supplier information, information relating to the products, their marketing, use, technical specifications, etc. Confidential Information excludes any information that: i) was rightfully in the recipient’s possession before receipt; ii) is rightfully received by recipient from a third party without a duty of confidentiality; iii) is disclosed by MSI to a third party without a duty of confidentiality on the third party; iv) is independently developed by the recipient; v) is disclosed under operation of law; or vi) is disclosed by the recipient with MSI’s prior written approval.
1.2. “Customer” means: the person, business, or company that is a purchaser of the Products and/or Services(s) from MSI.
1.3. “DOA” means: Dead on arrival, whereby the Product(s) delivered exhibits hardware failure symptoms preventing basic product operability. DOA non-conformity must be replicable for diagnosis purposes, and excludes the following: i) any visual damage (eg. scratches, dents); ii) damage caused by the Customer or end customer; iii) third party hardware or software issue(s) (eg. Customer or end customer installed software and/or hardware not originally incorporated or bundled with the good).
1.4. Incoterm: Unless otherwise agreed in writing, any reference made in the purchase order, invoice, and/or in these Terms to an Incoterm is deemed to be made to the version of Incoterms issued by the I.C.C. (International Chamber of Commerce) current at the date of conclusion of the purchase order.
1.5. “Intellectual Property Rights” or “IPR” means: all copyright, patents, utility innovations, trademarks, service marks, geographical indications, domain names, layout design rights, registered designs, design rights, database rights, trade or business names, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar or corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief or other remedies for any past, current or future infringement, misappropriation or violation of any of the foregoing rights.
1.6. “MSI” means: MSI Computer Europe B.V. If Customer is purchasing or transacting on a website or online store directly managed by MSI’s affiliated company, then “MSI” shall mean the relevant MSI affiliated company which the Customer is transacting with as stated in the applicable quotation, purchase order, or invoice.
1.7. “Product(s)” means: any product(s), including all included or incorporated software supplied to the Customer by MSI and as described in MSI’s invoice.
1.8. “Service(s)” means: any service supplied by MSI to Customer as described in the applicable purchase order or invoice.
1.9. “Terms: means the terms and conditions as set forth in this terms and conditions, and as may be updated by MSI at its sole discretion from time to time, effective immediately upon posting to the applicable website(s) or upon notice. Customer shall be deemed to have accepted these Terms and any updates thereof if it does not expressly reject such updated Terms within five (5) working days of said update.
2. Applicability of the Terms and Orders.
2.1. These Terms shall apply to and will form an integral part of all offers, acceptance of orders, and agreements under which MSI sells and supplies to Customer Product(s) and/or Services of whatever nature. No deviations from these Terms shall be valid unless expressly agreed in writing by MSI.
2.2. Any separate terms and conditions of purchase or otherwise provided or offered by the Customer are explicitly rejected and will not be applicable to any agreement under which MSI sells and supplies to Customer Product(s) and/or Services and will not be binding on MSI in any way.
2.3. All orders for Products placed by Customer: i) must be made in accordance with MSI’s instructions as notified from time to time; and ii) are subject to acceptance by MSI, and no orders will be deemed to have been accepted unless confirmed in writing by an authorized MSI representative, or Product(s) and/or Service(s) is supplied by MSI.
2.4. MSI may, at its sole discretion, reject any order placed by Purchaser without any liability if there is insufficient supply of Product(s) or materials that prevents MSI from fulfilling such order.
2.5. If an Incoterm is agreed in the purchase order, the version of Incoterms issued by the I.C.C. (International Chamber of Commerce) current at the date of conclusion of the order will apply, unless otherwise agreed in writing.
2.6. Unless otherwise agreed in writing by an authorized officer of MSI, Customer may not cancel, by part or in whole, an order which has been accepted by MSI. If cancellation right has been granted by MSI’s authorized officer, such right must be exercised no later than seven (7) days before the estimated date of delivery. Unless otherwise agreed by MSI, any deposit paid by Customer for an order shall forfeited upon cancellation of an order.
3. Price and Payment
3.1. Unless otherwise agreed in writing, all prices are based on delivery ex works MSI’s warehouse or ex works another place indicated by MSI.
3.2. In any case (including where the parties agree the Incoterm DDP or another Incoterm), prices shall be exclusive of sales tax (VAT) and any other taxes/levies imposed by the authorities. These taxes shall be for the account of Customer.
3.3. Product and Service prices are as quoted by MSI and are subject to change without prior notice.
3.4. Unless agreed otherwise between MSI and Customer in writing, MSI is entitled to invoice Customer for the price of the Product(s) upon shipping out of the goods from MSI’s warehouse. All invoices shall be paid by Customer in accordance with the terms of payment set forth on the invoice. If any specific terms are not stated in the purchase order or invoice, Customer shall pay within thirty days from the invoice date.
3.5. All amounts due pursuant to the order or invoice must be paid by the Customer to MSI in full, without any deduction under whatever title, and within the prescribed time. Customer shall not be entitled to set off any counterclaim against MSI in order to justify withholding payment of any such amount in whole or by part.
3.6. In the event that Customer fails to pay the amounts due within the agreed period: i) all amounts owing by Customer to MSI on any account will immediately become due and payable together with any and all legal costs of enforcement; ii) MSI may, in its sole discretion, suspend any credit awarded to Customer until all amounts owing are paid in full; and iii) MSI may, in its sole discretion or revoke any credit, privilege, or bargained for benefit it makes available to Customer from time to time.
3.7. Interest shall be due by Customer on the outstanding amount without any notice of default being required. The rate of this late payment interest shall be at a rate of 2% per month or the maximum amount permitted by law, charged on all balance starting from the date payment is due, whichever is higher. Interest will continue to accrue until all due payment has been received, together with any interest accrued.
3.8. All costs, both extrajudicial and judicial (including the costs of legal assistance), incurred by MSI in the process of the collection of the amounts due by Customer pursuant to an order and to be paid by the Customer, shall be for the account of Customer and shall be reimbursed by Customer to MSI.
3.9. All deliveries of goods and/or services agreed to by MSI shall at all times be subject to credit approval of MSI. If, in MSI’s judgment, there are reasonable grounds to doubt whether Customer is able or willing to fully and timely fulfill its payment obligations, MSI will be entitled to require full or partial payment in advance or other payment terms as a condition to delivery. In addition, MSI will be entitled to suspend, delay or cancel any credit, delivery or any other performance by MSI.
3.10. In the event of any default by Customer in the payment of any fees or charges due under an order or any agreement or due on whatever ground, or any other default by Customer, MSI shall have the sole, discretionary right to refuse performance and/or delivery of any Product(s) and/or Service(s) until payments are brought current. In addition, MSI will be entitled to suspend, delay or cancel any credit, delivery or any other performance by MSI. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under contract or by law.
3.11. MSI shall, in the event of any overdue payment, have the discretionary right to deliver the Product(s) intended for Customer to another customer without Customer being released from the obligation to pay pursuant to the order as a result thereof. As soon as MSI receives the arrears, a new delivery period shall apply commensurate with and no shorter in time than delivery times for new orders.
3.12. Any amounts which the Customer owes MSI under the Contract shall become immediately due and payable in full if:
the Customer has failed to make a timely payment to MSI;
b. the Customer has applied for or has been granted suspension of payments, enters receivership, or has a trustee or receiver appointed, goes bankrupt (including reorganization), enters liquidation or winding up (voluntarily or involuntarily instituted by Customer), or when a similar situation occurs under the laws of the country in which the Customer is established;
c. the Customer has ceased to exist, or the control or ownership of Customer changes due to transfer its enterprise or part(s) thereof to a third party, or for the benefit of creditors.
3.13. If applicable, Customer shall furnish to MSI all financial information reasonably requested by MSI from time to time for the purpose of establishing or continuing Customer’s credit limit. Customer agrees that MSI may disclose any such information to its advisors or insurers for the purposes of, including but not limited to, evaluation of credit to be extended to Customer.
4. Delivery
4.1. Except when otherwise agreed in writing, deliverance will take place ex works MSI warehouse.
4.2. The risk of loss of or damage to the Product(s) pursuant to an order shall pass to Customer at the moment when those goods are delivered to Customer according to specified Incoterms.
4.3. Delivery times provided to Customer are estimates only and MSI will not be liable for any loss, damage, or delay suffered or incurred by Customer or its customer(s) arising from late or non-delivery of the Product(s). If Customer decides to collect the Product(s), and fails to do so on the agreed date, Customer shall indemnify and hold MSI harmless from any and all costs or damages MSI may incur in relation to the uncollected Product(s), including without limitation, storage and/or disposal fees
4.4. Customer will give MSI written notice of failure to deliver and will give at the same time a reasonable grace period of no longer than three (3) weeks for MSI to cure. MSI will only be deemed not to have fulfilled its delivery obligations pursuant to an order if MSI has failed to as yet deliver the Product(s) to Customer within a reasonable grace period after receipt of Customer’s notification. This period will in no event be shorter than 30 (thirty) days.
4.5. If MSI does not deliver within the reasonable grace period and if Customer cannot reasonably be expected to accept any further delay in delivery, Customer’s sole and exclusive remedy is to cancel the affected and undelivered portions of the related order, provided that Customer has given written notice to inform MSI of its intention to cancel the affected and undelivered portions of the related the order, and the Product(s) have not been delivered to Customer within 5 days of receipt of such notice by MSI.
4.6. Articles 4.4. and 4.5. of these Terms also apply to a failure to deliver the Goods at an agreed firm date of delivery or within an agreed firm period of delivery.
4.7. The remedies under this article shall be Customer’s sole remedy for delay in delivery or for non-delivery. MSI will not be liable for any direct or indirect damages that Customer may suffer because of delay in delivery or non-delivery.
4.8. In the event the production of the Product(s), which are subject of an order, is curtailed for any reason, MSI will be entitled to allocate its available stock of goods, in its sole discretion, among its various customers. Furthermore, MSI will be entitled to sell and deliver to Customer fewer Product(s) than specified in an order, as the case may be, without being responsible or liable to Customer for any damage resulting therefrom.
5. Retention of Title
5.1. Notwithstanding the delivery Incoterms of an order, title to all Product(s) supplied to Customer by MSI shall pass to Customer only after complete payment by Customer in full of: i) any amounts due in relation to an order; ii) any late payment interests if applicable; iii) and any cost, expense, or damage incurred by MSI due to Customer’s breach of these Terms, the terms of an order, or as awarded by a competent court for cost of enforcement. Title to any software incorporated in or with any Product(s) shall remain with MSI or its licensor(s) at all times.
5.2. In case the law in the country in which the Product(s) is/are located does not permit the enforcement of a reservation of ownership or retention of title by MSI as stipulated in these Terms, MSI will still have the rights of a similar purport as the agreed retention of ownership to the fullest extent possible under the applicable law.
5.3. Product(s) as well as replacement items subject to retention of title under these Terms are hereinafter referred to as Retained Goods. The Customer shall store the Retained Goods at no cost to MSI and shall, to the satisfaction of MSI, insure the Retained Goods against loss, theft and damage. In the event Customer does not fulfil its payment obligations towards MSI, or gives MSI reason to believe that Customer will not fulfil any or part of its payment obligations, MSI will have the right to assert the retention of title and retake/repossess the Retained Goods. In the event that MSI asserts retention of title, the Customer’s right to further use of the Retained Goods is immediately cancelled. Any retake/repossession of the Retained Goods by MSI is conducted as a precautionary measure. By no means does the exercise of the right of retention of title constitute a withdrawal from the Contract (notwithstanding the right of MSI to dissolve the Contract). MSI is entitled to inspect, reclaim, sell, or auction the Retained Goods without any restriction. Customer shall not assign and/or transfer any right it may have on the Retained Goods and shall not pledge or let the Retained Goods be subject to any claims, lease, let, security right, or liens.
5.4. In the event of resale of the Retained Goods, the Customer agrees to deposit all proceeds of any such sale (including proceeds received from any insurance claims, if applicable) on trust for MSI, and shall immediately, upon MSI’s request, account for or transfer such proceeds to MSI. Purchaser shall, upon MSI’s request provide full details of any Product(s) sold or otherwise disposed of to MSI. Furthermore, Purchaser hereby assigns to MSI all claims which Customer will have against third parties arising from the resale. In case this assignment will not be valid according applicable law, Customer in the event of resale of the Retained Goods will assign to MSI on her first demand in writing all claims which Customer will have against third parties arising from the resale. This also applies to other claims of Customer, which replace the Retained Goods or otherwise arise related to the Retained Goods, such as insurance claims or claims resulting from an unlawful act regarding loss or destruction. Should third parties gain access to the Retained Goods, particularly by means of seizure, the Customer is obliged to inform the third party of MSI’s ownership and to immediately inform MSI so that MSI may enforce its ownership rights. Customer shall be jointly liable for all damages incurred by MSI caused by third party’s infringement misappropriation or conversion of MSI property or MSI’s rights.
5.5. Purchaser agrees that the provisions of this Article shall continue to apply despite any arrangement where MSI grants credit to Purchaser.
6. Product Non-conformity and Warranty
6.1. All damages, non-conformity issues or deficiencies regarding the Product(s) must be reported by Customer to MSI in writing with a detailed description of the nature of the damage, lack of conformity, or deficiencies: i) within fourteen (14) working days from the date of delivery according to the Incoterms for non-DOA damage or non-DOA non-conformity, or ii) within eight (8) calendar days from receipt of MSI delivery for DOA damage or DOA non-conformity. Failure to notify MSI within the prescribed timeframe shall be deemed as Customer’s acceptance of the Product(s) with all faults. The reporting of damages, non-conformities, or deficiencies will not relieve Customer from its obligation to timely pay the price for the relevant goods.
6.2. Product(s) shall be deemed to conform to the order despite minor discrepancies that do not essentially affect the normal use of the good.
6.3. Customer acknowledges and agrees that Customer’s sole and exclusive remedy in the event of any non-conformities, design, or manufacturing issues, will be as set forth in MSI’s standard ex-factory warranty terms and conditions specified in the applicable product documentation. MSI’s ex-factory warranty documentation shall be forwarded to the Customer free of charge at Customer’s first request. Customer’s ex-factory warranty shall not apply in respect of defects caused by: i) normal wear and tear; ii) Customer’s improper storage, warehousing transport, or neglect, abuse, or improper use; iii) installation, maintenance, or unauthorized repair of the Product(s); iv) that is not covered by MSI’s standard ex-factory warranty terms; v) Product(s) that have been altered, added to, varied, or otherwise modified by any party or person other than MSI or its authorized third party; or vi) damage caused in transit where proof of delivery does not identify or indicate damage to be incurred in transit.
6.4. Where the products are non-conforming to the Contract and article 6.3. does not apply, MSI will (provided the Customer having given notice of the lack of conformity in compliance with article 6.1.) at its option:
a. Deliver the missing quantities of the Product(s), or
b. Remedy the non-conformity by repair, without any additional expense to Customer, or
c. Replace the Product(s) with substitute products without additional expense to Customer, or
d. Reimburse to Customer the price paid for the non-conforming products and thereby terminating the contract as regards those products.
The above remedies shall be Customer’s sole remedies.
6.5. If MSI has failed to perform its obligations pursuant to article 6.4 by the date referred to in art 4.5. of these Terms, the Customer will be entitled to give notice in writing to terminate the order as regards the non-conforming Product(s) if the supply of missing quantities, replacement, products or the repair is not effected within thirty (30) days of receipt of such notice by MSI.
6.6. In no event shall receipt of any return of goods imply acceptance by MSI of the ground for the return as stated by Customer nor of the return unless expressly agreed in writing by MSI.
6.7. Certain statutory provisions may imply warranties or conditions, or impose obligations o MSI which cannot be excluded, restricted, or modified, whether in part or at all. This article 6 must be read subject to those applicable statutory provisions.
6.8. To the extent permitted by law:
a. Product(s) are covered by MSI’s commercial warranties as expressed in these Terms;
b. MSI’s entire responsibilities with respect to any express warranties for Product(s) and/or Service(s) is to provide the remedies under article 6, or, where applicable, to pass on the benefit of any express warranties of its suppliers to the Customer to the extent possible;
c. If MSI passes on any express warranties of its suppliers to the Customer, then such supplier warranties are in substitution for all other terms, guarantees, conditions and warranties, whether implied or otherwise (including implied warranties of merchantability and fitness for purpose), and MSI expressly excludes all other such guarantees, conditions, warranties, and terms.
6.9. Unless otherwise stated by MSI, Software as provided by MSI or included in Product(s) are not warranted by MSI under these Terms, and are governed by each applicable software license agreement.
6.10. To the extent permitted by law or otherwise agreed to by MSI in writing, MSI does not warrant repair facilities or parts will be available in respect of any Product(s) and/or Service(s).
7. Intellectual Property Rights
7.1. Subject to the provisions set forth herein, MSI grants a non-exclusive, non-transferable, and limited license to Customer under any of MSI’s Intellectual Property Rights used in the Product(s) solely to use and resell the goods as sold by MSI to Customer. To the extent that software and/or documentation is embedded in or delivered with any Product(s) sold by MSI to Customer, the sale of such goods shall not constitute the transfer of ownership rights or title in such software and/or documentation to Customer, but, subject to the provisions set forth herein, shall only imply a non-exclusive and non-transferable license to Customer under MSI’s Intellectual Property Rights to use such software and/or documentation in conjunction with and as embedded in or delivered with the goods as supplied by MSI to Customer.
7.2. Notwithstanding anything to the contrary herein, these terms and conditions shall not be construed as conferring any right license or immunity, either directly, indirectly, or by implication, forfeiture or waiver of rights or otherwise to Customer or any third party under any MSI’s IPR or intellectual property rights of any third party other than explicitly granted under these Terms. Accordingly, Customer acknowledges and agrees that: i) Intellectual Property Rights embodied or vested in the Product(s) and any related documentation, parts, or software are and remain the sole property of MSI or its licensor/supplier, as applicable; ii) MSI’s Intellectual Property Rights or its suppliers may only be used by Customer with the express written consent of MSI or its suppliers, whereby such consent extends only to use essential for the purpose stated herein; and iii) if consent is granted by MSI or its supplier, then Customer shall comply with any and all intellectual property use requirements or guidelines prescribed by MSI or its supplier.
7.3. Customer shall not: i) modify, adapt, alter and/or translate any software residing in Product(s) supplied by MSI or software provided by MSI in conjunction with any Product(s); ii) create derivative works from such software; iii) assign, sublicense, lease, rent, loan, transfer, disclose, or otherwise make available such software; iv) merge or incorporate such software with or into any other software; or v) reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code for such software without written authorization from MSI except as explicitly allowed under applicable law. Customer shall reproduce, without any amendments or changes thereto, any proprietary rights legends of MSI or its third party in any software or documentation provided by MSI. If and to the extent copyright in the software is owned by third parties, the license terms of these third parties shall apply instead of the present terms and conditions to such third party software.
7.4. Customer shall not register any trademarks, domain name, trade name, trade dress, or commercial designation or design used by MSI in connection with the Product(s) and/or Service(s).
8. Force Majeure
8.1. In the event of force majeure on MSI’s side, all obligations towards Customer to perform shall be suspended by operation of law for as long as the situation of force majeure lasts, without MSI being responsible or liable to Customer for any damage resulting therefrom. If the situation of force majeure has lasted for more than three (3) consecutive months, counting from the moment the situation has come into existence, both MSI and Customer shall be entitled to terminate all or any part of the order without judicial intervention. MSI will not be liable for any costs or damages incurred by Customer arising from force majeure on experienced by MSI. If MSI is forced by the situation of force majeure to make extra costs in connection with the delayed execution of the contract, MSI may charge these extra costs to Customer.
8.2. With regard to MSI, a force majeure shall be and/or include any circumstance or occurrence beyond MSI's reasonable control, whether or not foreseeable at the time of order acceptance, as a result of which MSI cannot reasonably be required to execute its obligations including force majeure and/or default by one of MSI’s suppliers. Force majeure includes, without limitation:
a. war, whether declared or not, civil war, acts of terrorism or sabotage, riots and revolutions, civil commotion;
b. natural disasters (acts of God) such as violent storms, cyclones, earth quakes, tidal waves, floods, destruction by lightning, thunderbolts, nuclear, chemical or biological contamination or sonic boom, exceptionally bad weather conditions; c. explosions, fires, water damage, destruction of machines, of factories and any kind of installations;
d. boycotts, strikes, lock-outs of all kinds and industrial disputes, go-slows, occupation of factories and premises and work stoppages involving the workforce of the party seeking relief or of any other party;
e. breach of contract by suppliers and/or carriers (in particular late or inadequate delivery);
f. shortages on the market of required materials or labor;
g. abnormal sick-leave of personnel
h. interruptions in the manufacturing process of the goods which are subject of the Contract.
i. power failure ,computer virus, defective machinery
j. transport difficulties
k. theft from warehouses of MSI or its suppliers ;
l. failure of a utility service or transport network;
m. acts of authority, whether lawful or unlawful, lack of authorizations, of licenses of entry or residence permit, or of approvals necessary for the performance of the Contract and to be issued by a public authority of any kind whatsoever in the country of the party seeking relief or in a country relevant to the execution of the Contract;
n. measures of government or prevailing authorities (including those of foreign governments or foreign prevailing authorities) such as inhibitions and/or bans on transports, imports, exports, production or sale, non-compliance with any law or governmental order, rule, regulation or direction, or similar situations.
In the event one of the above listed impediments will occur with one of MSI’s suppliers or sub- contractors, and this is the reason why MSI cannot perform its obligations under the contract with Customer, this will be deemed to be a circumstance or occurrence beyond MSI’s reasonable control as referred to in this article 8.2.
9. Exclusion of Liability
9.1. To the extent permitted by law, MSI shall not be liable to Customer, Customer´s personnel or any other persons used by it, or any other third party under any circumstances for any loss of use, profit, revenue, interest, goodwill, data, direct, indirect, lost profits, lost savings, loss of reputation, loss of goodwill, incidental, punitive, or consequential damages sustained or incurred by such party/ies, whether such liability arises directly or indirectly under any legal theory - even if MSI has been advised, or is aware, of the possibility of such damages - due to: i) negligent act, omission, or willful misconduct of MSI or its employees or agents; ii) the supply, performance, or use of Product(s) and/or Service(s) from MSI; iii) the supply or performance of any services provided by a third party who is not contracted by MSI, or MSI’s agent; iii) the failure to deliver Product(s) within estimated timeframe, discontinuation of Product(s) or product lines, or cancellation of any order(s) by Customer; or iv) any breach by MSI of any obligation(s) under these Terms.
9.2. Without prejudice to article 9.1.:
a. MSI’s aggregate and cumulative liability, as determined by a competent court on a final, non-appealable basis that MSI is legally liable, notwithstanding article 9.1., however arising, shall at all times expressly be limited to the price of the Product(s) or Service(s) in respect to which the liability arose, or any defective portion thereof, whichever is the lesser amount.
b. In the event that Customer is of the opinion that it has to be judicially judged that MSI is legally liable notwithstanding article 9.1., Customer’s claim for damages must be brought by Customer within ninety (90) days of the date of the event giving rise to any such claim, and any lawsuit relative to any such claim must be filed within one (1) year of the date of the claim. Any claims that have been brought or filed not in accordance with the preceding sentence are null and void.
9.3. The obligations of MSI and any affiliated company/ies hereof, if any, are the several obligations of each such entity. Nothing in these Terms will be deemed to create any joint and several liability between or among MSI and/or any of its affiliated company/ies.
10. General Indemnity
10.1. Customer shall be liable for all orders placed with MSI through Customer’s account, regardless of whether such orders were placed in accordance with Customer’s authorizations or instructions. Customer is solely responsible and liable for ensuring that its account is only accessed and used by authorized personnel pursuant to any limits on their authority, and safeguarded from misuse by authorized or unauthorized individuals.
10.2. Customer shall defend, indemnify, and hold MSI and its affiliated company/ies and each of their respective officers, directors, employees, and agents from and against any and all claims, demands, proceedings, actions, liabilities, losses, damages, costs, or expenses of any kind (including reasonable attorney’s fees) incurred or sustained as a result of, arising from, or relating to Customer’s breach of these Terms, any act or omissions of Customer, or its affiliated company/ies, or their respective officers, directors, employees, or agents arising from the manner in which Customer markets and sells the Products, supply of any goods or services for use in conjunction with the Products, or breach or alleged breach of applicable laws or regulations, or any action taken by MSI according to Customer’s request or instructions.
10.3. MSI’s sole liability with respect to:
a. any damaged or on-conforming Product(s) will be remedied pursuant to article 6.4.;
b. any defective Service(s) not meeting the agreed service level will be the re-performance of such services.
11. Intellectual Property Rights Indemnity
11.1. MSI, at its expense, shall: i) defend against a claim in a legal proceeding brought by a third party against Customer to the extent that the proceeding includes a claim that any good supplied to Customer by MSI under the order directly infringes the claimant's patent, copyright, trademark or trade secret; and (ii) hold Customer harmless against damages and costs awarded by final, non-appealable judgment in such proceeding (or agreed upon in a settlement to which MSI consents) to the extent directly and solely attributable to such infringement.
11.2. MSI shall have no obligation or liability to Customer under Section 11.1: i) if MSI is not: (a) promptly notified in writing of the claim, (b) given the sole right to control the defense and settlement of such claim, including the selection of counsel, and (c) given full reasonable assistance and cooperation by Customer in such defense and settlement; ii) if the claim is made more than three (3) years after the date of delivery of the Product(s); iii) to the extent that any such claim arises from: (a) alteration or modification of the Product(s), (b) design, specifications or instructions furnished by Customer, or (c) the combination or use of the Product(s) with any third party product, software, service or technology; iv) for unauthorized use or distribution of the Product(s) or use beyond the specifications of the Product(s); v) to the extent that any such claim arises from Customer's use, sale, offer for sale or importation of the Product(s) after MSI’s notice to Customer that Customer should cease any such activity because the Product(s) is (are), or is (are) reasonably likely to become, the subject of a claim of infringement; vi) for any costs or expenses incurred by Customer without MSI’s prior written consent; vii) to the extent that any such claim arises from any infringement or alleged infringement of third party's intellectual property rights covering an industry standard set by a standard setting body; or viii) for infringement of any third party's intellectual property rights with respect to which MSI has informed Customer or has published a statement that a separate license has to be obtained or that no license is granted or implied.
If any claim of infringement referred to in this Section 11.2. is brought against MSI as a result of act(s) or omission(s) of Customer, Customer shall indemnify MSI against and hold MSI harmless from any damages or costs arising from or connected with such claim of infringement and shall reimburse all costs incurred by MSI in defending any claim, demand, suit or proceeding for such infringement, provided MSI gives Customer prompt notice in writing of any such suit or proceeding for infringement.
11.3. If any Product(s) is (are), or in MSI’s opinion is (are) likely to become, the subject of a claim of infringement, MSI shall have the right, without obligation or liability and at its sole option, to: i) procure for Customer the right to continue to use or sell such Product(s), ii) replace or modify such Product(s) in such a way as to make the modified Product(s) non-infringing, or iii) terminate the order to the extent related to such Product(s). In the event of any such termination, Customer may return to MSI all such Product(s) in Customer’s possession at the time of such termination, which are then subject to the claimant’s continuing claim of infringement; and upon such return MSI shall credit Customer the sum paid to MSI by Customer for such Product(s), less appropriate depreciation.
11.4. The foregoing indemnity is personal to Customer and is not assignable, transferable or subject to pass-through to any third party including Customer’s affiliated company/ies or its/their respective customers.
11.5. MSI’s liability for damages under this Section 11 will not exceed the cost of Product(s) that is (are) the subject of the indemnified claim.
11.6. Subject to the exclusions and limitations set forth in article 9.2 of these Terms, the foregoing states MSI´s entire liability and obligation to Customer and Customer´s sole remedy with respect to any actual or alleged infringement of any intellectual property rights of any kind.
12. Assignment and setoff
Customer shall not assign any rights or obligations under these Terms or any order without the prior written consent of MSI. MSI may assign any order to a designated third party by providing written notice to Customer; Customer’s consent shall be deemed granted upon receipt of MSI’s notice. Customer shall have no right to withhold or reduce any payments or to offset existing and future claims against any payments due for goods sold or services rendered under any order or under any other agreement that Customer may have with MSI or any of its affiliated company/ies may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Customer or on its behalf.
13. Breach and termination
Without prejudice to any rights or remedies MSI may have under the contract or at law, MSI may, by written notice to Customer, terminate with immediate effect an order or any part thereof without any liability whatsoever, if:
a. Customer violates or breaches any of the provisions of these Terms or an order; b. any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Customer (also when filed or instituted by Customer, voluntary or involuntary), a trustee or receiver is appointed over Customer, or any assignment is made for the benefit of creditors of Customer; or c. the control or ownership of Customer changes.
Upon occurrence of any of the events referred to above, all payments to be made by Customer under these Terms or an order shall become immediately due and payable. In the event of cancellation, termination or expiration of these Terms or an order, the terms and conditions destined to survive such cancellation, termination or expiration shall so survive.
14. Governing law and Forum
All offers, confirmations, the order(s), and all agreements between MSI and Customer are governed by and construed in accordance with the laws of Taiwan (R.O.C). All disputes arising out of or in connection with an order or any other agreement between MSI and Customer shall be submitted to the exclusive jurisdiction of the Taipei District Court in Taipei, Taiwan, as the court of first instance, provided that MSI shall always be permitted to bring any action or proceedings against Customer in any other court of competent jurisdiction. Nothing in this article 14 shall be construed or interpreted as a limitation on either MSI’s or Customer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party. MSI and Customer further acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods (CISG) will not apply to these Terms or any order.
15. Confidentiality
15.1. MSI may from time to time disclose Confidential Information to Customer. Accordingly, Customer must: i) only use the Confidential Information solely for the purposes relating to its order; and ii) not disclose (directly or indirectly) to any third party the Confidential Information other than what is required to carry out the purposes of the order.
15.2. If Customer needs to disclose Confidential Information, it shall obtain: i) express written approval from MSI; and ii) binding agreements to maintain confidentiality over Confidential Information on terms no less secure than these Terms.
15.3. Upon termination of the parties’ relationship, Customer must cease to use and return or destroy (as specified by MSI) all Confidential Information in its control.
15.4. If Customer must disclose any Confidential Information to a government authority by law, it shall provide MSI with reasonable prior notice of such disclosure and shall use best efforts to limit disclose and to obtain confidential treatment or protective order over such Confidential Information. Customer shall, where indicated by MSI, obtain permission for MSI to participate in any proceeding that requires the disclosure.
16. Export Control and Compliance
16.1. Customer acknowledges and agrees that some Product(s) may be controlled by or be subject to export control laws, including but not limited to the applicable export controls from the United States. Customer shall not export, re-export, or distribute Product(s) in violation of any such applicable export control laws or regulations.
16.2. Customer acknowledges that the Product(s) and/or Service(s) supplied hereunder may be subject to the controls of the United States Department of Commerce, or other relevant export control laws, and that the Product(s) and/or Deliverable(s) may require authorization prior to export, re-export or transfer in-country. Accordingly, Customer agrees that it will not directly or indirectly export, re-export, transfer in-country or otherwise distribute Product(s) and/or Service(s) in violation of any export control laws or regulations of the United States. Customer represents and warrants that it will not export, reexport or transfer in-country any Product(s) and/or Service(s) with knowledge that they will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons, or in a facility engaged in such activities, unless Customer has obtained prior approval from the Department of Commerce or other relevant authorities. Customer further warrants that it will not export, re-export or transfer in-country directly or indirectly, any Product(s) and/or Service(s) to embargoed countries or sell deliverables to companies or individuals listed on the Denied Order issued by the United States. Purchaser represents and warrants that it is not a military end-user and it will not directly or indirectly sell, transfer, supply or distribute the Product(s) and/or Service(s) to a military end-user, or directly or indirectly allow the Product(s) and/or Service(s) to be used for military purpose. “Military end-user” means the national armed services (such as but not limited to army, navy, marine, air force, or coast guard), as well as the national guard and national police, government intelligence or reconnaissance organizations. The foregoing definition also includes any person, company or any other entity that will incorporate the Product(s) and/or Service(s) into or with products, equipment or items for military use. If Customer is unable to comply with any of the foregoing restrictions at any time, Customer must immediately inform MSI in writing. MSI places a high priority on compliance with laws regulating exports, imports and supply chain security, and may, at its reasonable discretion conduct screening and prescribe contractual and security requirements that agents, distributors, suppliers and other parties doing business with MSI must. Customers are required to comply with the letter and spirit of all applicable laws regulating exports, imports, and supply chain security.
16.3. Customer represents and warrants that it complies, and shall continue to comply, in all business dealings with applicable laws against bribery, corruption, and money-laundering, including without limitation the U.S. Foreign Corrupt Practices Act. Customer, its owner, partner, shareholder, directors, employees, or any representatives has not and shall not make any direct or indirect payment, offer to pay, or authorization to pay any money, gift, promise to give, anything of value to any government official, a political party or a party official, or any candidate for political office, or the immediate family of any such official or candidate, for the purpose of influencing an act or decision of the government or such individual in order to assist, directly or indirectly, Customer or MSI in obtaining or retaining business, or securing an improper advantage. Customer will indemnify and hold MSI harmless from and against any claims of any nature arising out of or relating to a violation of any of the stipulations of this article 16.
17. Privacy and Personal Data
17.1. MSI's Privacy Policy applies to and is hereby incorporated by reference into these Terms with full force and effect. MSI may collect, process, use, and disclose personal data of or relating to the Customer (including its director, officer, or employees) and/or Customer’s customer(s) from third party sources, from resellers or partners in the distribution chain, from vendors and service providers, from Customer’s affiliates, or through MSI’s website(s). MSI may transfer such information and/or personal data within the MSI group, and to third party suppliers who help us provide the services to you for the purpose set forth in these Terms. Further details of how personal data information may be collected, used, and processed are detailed in MSI's privacy policy, available at https://www.msi.com/page/privacy-policy.
17.2. Subject to the MSI Privacy Policy, MSI may disclose any Customer’s information if such disclosure is necessary in connection with any investigation or complaint regarding Customer’s order, use of Product(s) and/or Service(s), or to identify, contact or bring legal action against a third party who may be causing injury to or interference with (either intentionally or unintentionally) MSI's rights or property. MSI reserves the right at all times to disclose any information that MSI deems necessary to comply with any applicable law, regulation, legal process or governmental request.
17.3. MSI also may disclose Customer’s information and/or personal data if and when MSI determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes. Customer hereby acknowledges and agrees that MSI may, subject to the MSI Privacy Policy: i) preserve any transmittal or communication with MSI through the course of dealing with Customer, including without limitation Customer’s use of MSI’s website(s), or availing of or purchase of MSI Product(s) and/or Service(s); ii) disclose such data if required to do so by law or MSI determines that such preservation or disclosure is reasonably necessary to (a) comply with legal process, (b) enforce these Terms, (c) respond to claims that any such data violates the rights of others, or (d) protect the rights, property or personal safety of MSI, its affiliated company/ies, and their respective officer, director, and employees.
18. Miscellaneous
18.1. The parties agree that each time Customer makes a purchase from MSI, the most current version of the Terms applies. By placing an order for Product(s) and/or Service(s) from MSI, or by accepting such MSI Product(s) and/or Service(s), Customer agrees that the current version of the Terms as shown on the MSI website used by Customer for the transaction shall apply to that order; all other terms and conditions (whether contained the order or otherwise) shall be excluded.
18.2. All notices, requests, and communication between the parties must be in writing, and may be provided by: i) personal delivery to an officer of that party; ii) by mail to the registered address or mail of that party through a recognized courier service with return receipt requested; iii) by e-mail if agreed to by the parties.
18.3. These Terms cannot be modified or altered unless agreed to by MSI in writing and signed by a duly authorized officer of both parties.
18.4. In the event that any provision(s) of these Terms shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such provision will be deemed deleted from these Terms and the remaining provisions thereof will continue to be in full force and effect. In such a case in substitution for any such provision held unlawful or unenforceable, there shall be substituted a provision of similar import reflecting the original intent of the clause to the extent permissible under applicable law.
18.5. These Terms shall be binding upon and inure to the benefit of the successor and permitted assigns of the parties.
18.6. MSI may audit Customer’s premise, facilitates, employees, books, and records at any time once per calendar year, upon reasonable prior written notice to the Customer to ensure compliance with these Terms. Accordingly, Customer agrees to keep complete, correct, and detailed records for each order or transaction with MSI for a period of at least five (5) years from the date of completing such transaction. Customer agrees and shall permit MSI or its designated representative to inspect and audit all such records to determine compliance with these Terms, particularly relating to compliance to applicable anti-bribery regulations and export control laws. Customer shall fully cooperate with such audit. Purchaser shall defend, indemnify, and hold MSI, its affiliated company/ies, and their respective officers, directors, and employees free and harmless from any loss, cost (including the cost of such audit), harm, or damage incurred as a result of any discrepancy discovered through the audit.
18.7. Failure or delay of MSI to exercise a right or power under these Terms shall not operate as a waiver thereof. No single or partial exercise of a right or power precludes any other future exercise thereof.
18.8. Captions used herein are for reference purposes only, and shall not affect the construction or interpretation of any provision under these Terms.
18.9. Except where MSI passes through terms offered by its suppliers for Product(s) and/or Service(s), these Terms constitute the entire agreement relating to MSI’s sale of Product(s) and/or Service(s) to Customer, and supersedes all prior understandings, arrangements, and agreements.