1. License Grant and Restrictions
1.1 License Grant to the Part Search. SiliconExpert hereby grants to You, during the Term, a license to access SiliconExpert’s Part Search tool via a secure website. You will be given a unique URL link with a specific username and password to access the Part Search tool, which will enable licensed users to obtain part information based on those parameters described in the Quotation Form.
1.2 License Grant to the BOM Manager. SiliconExpert hereby grants to You, if indicated on the attached quotation form, during the Term, a license to access SiliconExpert’s BOM Manager via a secure website. You will be given a unique URL link with a specific username and password to access the BOM Manager tool
1.3 Limits. The Parties agree that both the Part Search and BOM Manager (each a “Tool”, collectively the “Tools”) will be used solely for Your internal use. You shall not (i) allow any third party to use either tool; (ii) provide any reports, printouts or information generated by either the Part Search, or the BOM Manager tools to any third party. You are permitted to provide enough information to Your customers to address a reasonable number of business-related issues. For clarity, You shall not be permitted to repackage, resell or otherwise redistribute reports, printouts or information generated by the Tools to any third party.
2. Payment Terms
Invoices will be paid in accordance with the associated quote form. Prices do not include any taxes, freight, handling, duty or other similar charges, payment of which will be Your sole responsibility. Any invoice dispute must be received by SiliconExpert within 15 days of Your receipt of the invoice. SiliconExpert shall determine within 30 days of receipt of the dispute notice if the dispute is valid and if applicable, will send a revised corrected invoice of the disputed portion only. Notwithstanding the foregoing, You shall be responsible for paying any portion of the invoice not in dispute within the agreed upon payment term set forth above. Late paid invoices will be subject to a late payment fee of the greater of 1.5% per month or the highest amount allowed under applicable law. No penalties will be assessed against You for non-payment of any disputed portion of the invoice that proves to valid.
4. Term and Termination
This Agreement will become effective as of the Effective Date on the Quotation Form for a 12 month period. In the event that there is a pricing change upon renewal, SE will provide 60 days’ advance written notice of such change. Your license may be terminated at any time by either Party, effective immediately upon receipt of written notice, if the other Party: (a) becomes insolvent, (b) files a petition in bankruptcy, (c) makes an assignment for the benefit of its creditors, or (d) breaches any material provision of the Agreement which is not remedied within ten (10) days from receipt of written notice of such breach. No refunds shall be issued to You if Your license is terminated hereunder.
5. Acceptance of Terms
This document, and not any purchase order or other document (which, if construed to be an offer is hereby rejected), will be deemed an offer and is a rejection of any other terms or conditions. You, by using the Tools, indicating your acceptance by clicking the “Accept” button, at account activation, by making any payments or ordering the Tools having previously received these terms and conditions, will be deemed to have assented to these terms and conditions, notwithstanding any terms contained in any prior or later communication from You and whether or not SiliconExpert will specifically or expressly object to any of Your terms. SiliconExpert’s failure to object to any document, communication or act of Yours will not be deemed a waiver of any of these terms and conditions. Any addition or change to these terms and conditions must be specifically agreed to in writing by a duly authorized officer of SiliconExpert before becoming binding on SiliconExpert.
6. No Warranty
Tools are licensed “AS IS”. THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, IN ADVERTISING MATERIALS, BROCHURES, OR OTHER DESCRIPTIVE LITERATURE) BY SILICONEXPERT OR ANY OTHER PERSON, EXPRESS OR IMPLIED, AS TO THE CONDITION OR PERFORMANCE OF ANY TOOLS, THEIR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF THE DATA OR OTHERWISE.
7. Government Contracts
If Your order is placed under a contract with the United States Government, SiliconExpert agrees to comply only with those contract provisions and regulations with which, pursuant to law, it must comply and of which You have, at the time of order placement, placed SiliconExpert on written notice. In no event will United States Government Cost Accounting Standards apply. All rights in technical data and software owned or licensed by SiliconExpert or the manufacturer are hereby reserved and deemed restricted or limited.
To the extent not exempt, You shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
9. Business Partner Code of Conduct
The parties warrant and represent that they have implemented and abide by a code of conduct that is commercially reasonable in light of the standards in the community and the industry in which the parties each operate and that each party shall provide a copy of such code of conduct to the other party for review upon such party’s request. See http://www.arrow.com/about_arrow/BusinessPartnerCodeofConduct.pdf
10. Export Compliance
The Tools or their output may be subject to export or resale restriction or regulation, and You acknowledge that You will comply with such restrictions and regulations. Each of us certify that we comply with all applicable laws, including the labor laws and regulations (including fair labor standard laws) and anti-bribery regulations (including the FCPA and UK Bribery Act) in the jurisdictions where it operates.
11. Limitation of Liability
EXCEPT WITH RESPECT TO THE PARTIES’ OBLIGATIONS AND COVENANTS UNDER SECTION 1.3 - LIMITS AND 13 – CONFIDENTIALITY, NEITHER SILICONEXPERT NOR ITS SUPPLIERS WILL HAVE ANY LIABILITY OR OBLIGATION TO YOU OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE CAUSED IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, BY THE INADEQUACY OF ANY TOOL OR ITS OUTPUTS FOR ANY PURPOSE, BY ANY DEFICIENCY OR DEFECT IN ANY TOOL (WHETHER OR NOT COVERED BY ANY WARRANTY), BY THE USE OR PERFORMANCE OF ANY TOOL OR BY ANY FAILURE OR DELAY IN SILICONEXPERT'S PERFORMANCE HEREUNDER, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, COST OR REPLACEMENT GOODS OR SERVICES (COVER), CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR LOSS OF BUSINESS OR PROFIT, WHETHER OR NOT YOU WILL HAVE INFORMED SILICONEXPERT OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH DAMAGES. IN NO EVENT WILL SILICONEXPERT’S LIABILITY, REGARDLESS OF BASIS (INCLUDING TORT, CONTRACT, INDEMNIFICATION OR OTHERWISE), EXCEED THE PRICE PAID IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
No order or obligation may be cancelled, rescheduled, reconfigured, or assigned without SiliconExpert's prior written authorization and, in such event, You will be liable to SiliconExpert for any additional costs and expenses incurred by SiliconExpert. Prices are subject to change by SiliconExpert upon Your rescheduling or reconfiguration of orders. In no event will You be refunded any prepaid amounts. SiliconExpert may assign accounts receivable to a SiliconExpert affiliate or representative. In order to defray the cost of Your account administration, any credit balance or other sum owed to You which remains unclaimed by You for a period of twelve months will become the property of SiliconExpert.
Confidential Information means: (i) the Tools, SiliconExpert’s Parts Database, and prices, the terms in any quotation form; and (ii) any non-public information, data or know-how that has been disclosed by a Party to these terms and conditions to the other Party in writing, orally or by access to the disclosing Party’s premises and identified by the disclosing Party as confidential or proprietary. With respect to Confidential Information, the receiving Party shall: (i) use it solely for the purposes specifically provided in these terms and conditions; and (ii) not disclose it to a third party, other than its employees on a need to know basis or consultants, affiliates, agents or subcontractors (Third Parties) under nondisclosure agreements at least as strict as these terms and conditions, provided that such Third Parties are not competitors of the disclosing Party (in which case, there shall be no disclosure for the longest period allowed by law), for a period of five (5) years from the date of disclosure or in perpetuity if the Confidential Information constitutes a trade secret under applicable law. The receiving Party is liable for any misuse of Confidential Information by Third Parties who obtain the Confidential Information from such receiving Party. The foregoing obligations do not apply to information that: (a) was rightfully in the possession of, or was known by, the receiving Party prior to its receipt from the disclosing Party, free of any obligation of confidence; (b) is or becomes generally known to the public without violation of these terms and conditions; (c) is obtained by the receiving Party from a third party, without an obligation to keep such information confidential; or (d) is independently developed by the receiving Party without use of the Confidential Information. In the event the receiving Party is required to disclose Confidential Information pursuant to a judicial or governmental order, or valid subpoena, such Party will promptly notify the other Party to allow intervention in response to such order.
14. Infringement Indemnification
Subject to Section 11 above, SiliconExpert will defend and hold harmless You, Your officers, directors, and employees (the “Indemnified Parties”) for costs and damages finally awarded, including reasonable attorney’s fees and expenses, arising from a claim by a third party (who is not a party to this Agreement) that the Tools furnished and used within the scope of this Agreement infringes a copyright, patent right, trademark or other proprietary right, or misappropriation of a trade secret of a third party provided that: (i) You notify SiliconExpert promptly in writing of the claim; (ii) SiliconExpert has sole control of the defense and all related settlement negotiations, and (iii) You provide SiliconExpert with assistance, information and authority necessary to perform the above. SiliconExpert shall have no liability for any claim of infringement based on alterations or modifications of the Tools, unless authorized and under the direction of SiliconExpert, or the combination, operation, or use of any Tools or software furnished under this Agreement with programs or data or hardware not furnished or authorized in writing by SiliconExpert, if such infringement would have been avoided by the use of the Tools without such programs or data or hardware (“Excluded Uses”). In the event the Tools are held to infringe or Your use of them is enjoined, SiliconExpert shall have at its option and expense the right to: (a) modify the Tools to be non-infringing while retaining all original features, functions and quality; (b) obtain for the Indemnified Parties a license to continue using the Tools; (c) substitute the Tools with non-infringing software which is equivalent in features, functions, and quality suitable to You; or (d) if none of the foregoing remedies are commercially feasible, terminate the license for the infringing Tools, refund a pro-rata portion of all amounts paid by You for the infringing Tools over a five (5) year period from the Effective Date of the applicable license purchased hereunder. The foregoing sets forth SiliconExpert’s entire liability for the subject matter hereof.
You will defend and hold harmless SiliconExpert, its officers, directors, and employees for all costs and damages finally awarded, including reasonable attorney’s fees and expenses, arising from a claim by a third party (who is not a party to this Agreement) that arise out of the Excluded Uses or Your breach of this Agreement provided that: (i) SiliconExpert notifies You promptly in writing of the claim; (ii) You have sole control of the defense and all related settlement negotiations provided that such settlement shall not limit interfere with or otherwise adversely affect SiliconExpert’s rights or Your obligations under this Agreement or impose any liability on SiliconExpert or adversely affect SiliconExpert’s business, and (iii) SiliconExpert provides You with assistance, information and authority necessary to perform the above.