Terms and Conditions of Sale for Hardware Products

Unless Customer has another valid agreement with Continuous Computing which terms apply to the specific Product(s) referenced in the attached quotation, the following terms and conditions ("Terms") will be the only terms that apply to and govern any purchase order accepted by Continuous Computing, despite any terms or conditions to the contrary incorporated on Customer's purchase order form and/or otherwise specified by Customer for Customer's purchase of Continuous Computing Products. By issuing a purchase order, Customer agrees to the Terms below.

1. Definitions

1. "Bundled Software" means machine-readable instructions and data (and copies thereof) including middleware and firmware that is included with Hardware, and related updates and upgrades, licensed materials, user documentation, user manuals, and operating procedures.
2. "Hardware" means communications and related devices and equipment, related documentation, accessories, parts and upgrades, as configured with Continuous Computing components.
3. "Product" means the Hardware listed in the attached quotation along with Bundled Software, if any.
4. "Specifications" means technical information about Products published in Continuous Computing Product manuals, user documentation and technical data sheets in effect on the date Continuous Computing delivers Product to Customer.

2. Prices

1. Continuous Computing's quotation constitutes an offer to sell Product upon these Terms. Prices are specified in the attached quotation and are valid for the period set forth therein. Any change to an accepted order that extends the delivery date beyond ninety (90) days from the order date shall be considered a new order subject to prices in effect when Continuous Computing receives the changed order.
2. Prices are exclusive of, and Customer will pay, all taxes, duties, levies or fees, or other similar charges imposed on Continuous Computing or on the Customer by any taxing authority (other than taxes based on Continuous Computing's income) related to Customer's order, unless Customer has provided Continuous Computing with an appropriate resale or exemption certificate in a form satisfactory to Continuous Computing.

3. Orders

Orders will be governed by these Terms and are subject to acceptance by Continuous Computing. Orders must be in writing, stating the quantities and descriptions of Product required, applicable purchase prices, requested delivery date and billing/shipping instructions. If the requested delivery date is different than the date specified in the quote, such date is subject to Continuous Computing's express written approval.

4. Delivery

Continuous Computing will make reasonable efforts to meet the delivery date specified in the quote or in the Order, as set forth in Section 3 above. If Continuous Computing is unable to meet the delivery date, alternative arrangements may be agreed. In the absence of such agreement, Customer's sole remedy is to cancel the order.

5. Shipment, risk of loss or damage, and title

1. Continuous Computing will pack all Products for shipping in accordance with standard commercial practices.
2. All Products shall be shipped to Customer F.O.B. origin. Unless Customer has specified a carrier in its purchase order, Continuous Computing will select the carrier with the express understanding that the carrier is not the agent of Continuous Computing. Risk of loss and/or damage and title to Product (except for Bundled Software) will pass to Customer upon delivery to the carrier or to Customer's designate for pick-up at Continuous Computing's facility, as applicable. Title to Bundled Software shall remain with Continuous Computing at all times.
3. Shipping and handling charges will be listed separately on Continuous Computing's invoice when not included in the Product's purchase price. Charges for any special packing or shipping instructions will be listed separately.
4. Continuous Computing may ship Customer's order in more than one installment which Customer shall accept and pay for unless Customer has given Continuous Computing prior written notice that it will not accept partial shipments.

6. Acceptance

All Products sold by Continuous Computing shall be deemed accepted by Customer at the time of delivery. Notwithstanding the foregoing, if Customer notifies Continuous Computing in writing within five (5) days of receipt of a Product that such Product is damaged, defective or cannot be made operational, and if Customer complies with the procedures governing the return of the goods set forth in these Terms, Continuous Computing shall either repair or replace such nonconforming Product, at its election, within a reasonable period of time after return of the Product to Continuous Computing. If Continuous Computing determines, after using reasonable efforts, that the Product is irreparable or irreplaceable, then Continuous Computing shall credit Customer's account for the purchase price of the Product. Any claims for shortage or incorrect Products must be made to Continuous Computing in writing within five (5) days of receipt of Products.

7. Payment

1. Subject to credit approval, Continuous Computing will grant net thirty (30) day payment terms, which shall require Customer to pay, without offset, all invoiced amounts within thirty (30) days of Continuous Computing's invoice date. Invoices not paid within such thirty (30) day period shall be considered overdue and will be subject to a late charge assessed at a rate equal to the lower of 1.5% of the unpaid balance per month or the maximum rate allowed by applicable law.
2. Continuous Computing may discontinue performance if Customer fails to pay any sum due, or fails to perform under this or any other Continuous Computing agreement if, after ten (10) days written notice, the failure has not been cured.

8. Limited warranty; Disclaimer

1. Limited Warranty. Continuous Computing warrants to Customer, as the original owner, for a period of twelve (12) months from the date of the original shipment (the "Warranty Period") that Hardware will be free from defects in materials and workmanship under normal use during the Warranty Period and that it will materially conform to its Specifications. If Customer discovers a defect in the Hardware during the Warranty Period, as Customer's sole and exclusive remedy for breach of warranty, Continuous Computing will repair or, at Continuous Computing's option, replace the defective Hardware with new or like-new Hardware at no charge, provided Customer follows the procedures outlined in the RMA Policy and Process available at the company's website at www.continuouscomputing.com.
2. Any Product repaired or replaced pursuant to the above limited warranty shall be warranted for the remaining Warranty Period for the Product that was repaired or replaced.
3. After the Warranty Period, Customer may send Product to Continuous Computing for analysis, replacement or repair; provided, however, that any and all costs for shipping, inspection, and repair shall be paid by Customer at Continuous Computing's then applicable standard rates and according to the procedures outlined in the RMA Policy unless Customer has purchased extended warranty coverage.
4. Continuous Computing reserves the right to change the foregoing warranty. Such changes will affect only new orders.
5. Continuous Computing may, at no additional charge, modify Products to improve operation, supportability and reliability, or to meet legal requirements.
6. Customer will pay shipping costs for return of allegedly defective Products to Continuous Computing. Continuous Computing will pay expenses for shipment of repaired or replacement Products. If the Product is found not to be defective, Customer shall pay shipping costs to and from Continuous Computing.
7. Exclusions. This limited warranty does not apply to any claims resulting from:1) improper or inadequate maintenance; 2) Customer or third-party supplied software, supplies or other products; 3) unauthorized modification; 4) improper use or operation outside of the Specifications for the Product; 5) abuse, negligence, accident, loss or damage in transit; or 6) improper site preparation, or environmental conditions that do not conform to site specifications.
8. THE FOREGOING WARRANTY IS IN LIEU OF, AND CONTINUOUS COMPUTING DISCLAIMS, ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CONTINUOUS COMPUTING OR ITS AUTHORIZED RESELLERS WILL CREATE A WARRANTY OR INCREASE THE SCOPE OF THIS WARRANTY. CONTINUOUS COMPUTING DOES NOT WARRANT THE OPERATION OF PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE.

9. Confidentiality

Each party acknowledges that during the course of the sale and purchase of the Products, either party may have or may be provided to access to the other's Confidential Information (as defined below). Confidential Information may be disclosed to a party in writing, in other tangible form, orally or visually. When disclosed in writing or other tangible form, the Confidential Information will be identified and labeled as confidential and belonging to the disclosing party. When disclosed orally or visually, such Confidential Information will be identified as confidential at the time of the oral or visual disclosure, with subsequent confirmation in writing within thirty (30) days of disclosure. Customer understands and agrees that the Product contains proprietary and confidential information belonging exclusively to Continuous Computing including, without limitation, technology, inventions, knowhow, documentation, processes, ideas, concepts, data and trade secrets ("Confidential Information"). Confidential Information does not include (i) information already known or independently developed by the receiving party; (ii) information in the public domain through no wrongful act of the receiving party; or (iii) information received from a third party having no obligation of confidentiality with respect thereto. With respect to the Confidential Information, each party hereby agrees that the receiving party shall at no time misappropriate such Confidential Information or disclose it to any person or entity, and shall use at least the same degree of care in safeguarding the Confidential Information as the party uses in safeguarding its own confidential information but in no event less than a reasonable standard of care. Each party acknowledges that violations of the provisions of this Section shall cause irreparable harm to the other party not adequately compensable by monetary damages. In addition to other relief, each party agrees that injunctive relief shall be available to prevent any actual or threatened violation of such provisions.

10. Indemnification

1. Continuous Computing will defend or settle any claim against Customer alleging that Product delivered under these Terms infringes any U.S. patent, trademark, copyright or trade secret of any third party, provided Customer: 1) promptly notifies Continuous Computing of the claim in writing; and 2) cooperates with Continuous Computing in, and grants Continuous Computing sole control of, the defense or settlement of any such claim. Continuous Computing will pay infringement claim defense costs, settlement amounts and courtawarded damages.
2. If Continuous Computing determines in its sole discretion that a claim is likely, Continuous Computing may modify the Product, procure any necessary license, or replace the affected Product with one that is at least functionally equivalent. If Continuous Computing does not elect one of the foregoing options, Continuous Computing will refund Customer's purchase price upon return of the Product if within one year of delivery, or the Product's net book value thereafter.
3. Continuous Computing has no obligation for any claim of infringement arising from: 1) Continuous Computing's compliance with Customer's designs, specifications or instructions; 2) Continuous Computing's use of technical information or technology provided by Customer; 3) Product modifications made by Customer or a third party; 4) Product use in a manner prohibited by the Specifications or these Terms, or related application notes; or 5) use of Products in combination with products that are not Continuous Computing branded.
4. Continuous Computing's liability with respect to portions of Products provided by or licensed from third parties will be limited to the extent Continuous Computing is indemnified by such third parties.
5. This Section 10 states Continuous Computing's entire liability for claims of intellectual property infringement.

11. Limitation of liability and remedies

1. IN NO EVENT WILL CONTINUOUS COMPUTING'S LIABILITY IN CONNECTION WITH THE PRODUCTS OR OTHERWISE WITH RESPECT TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID TO CONTINUOUS COMPUTING UNDER THIS AGREEMENT FOR THE PRODUCTS GIVING RISE TO SUCH LIABILITY, PROVIDED THAT SUCH LIMITATION SHALL NOT APPLY TO CLAIMS COVERED UNDER SECTION 10 ("INDEMNIFICATION"). THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE.
2. EXCEPT FOR ANY DAMAGES RESULTING UNDER ANY BREACH OF SECTION 9 ("CONFIDENTIALITY"), CONTINUOUS COMPUTING SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND ARISING IN ANY WAY OUT OF THIS AGREEMENT OR CUSTOMER'S DISTRIBUTION OF THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT, REVENUE, SAVINGS, GOODWILL, USE, OR DATA, OR COSTS OF REPLACEMENT GOODS, EVEN IF CONTINUOUS COMPUTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY OF ITS ESSENTIAL PURPOSE.
3. Products are not specifically designed, manufactured or intended for use in connection with the construction, maintenance or operation of a nuclear facility, aircraft communication or ground support system, or life support system. Continuous Computing shall not be liable for any claims or damages arising from any use or resale by Customer to a third party for these applications. Customer will indemnify, defend and hold Continuous Computing harmless from all loss, damage, expense or liability in connection with such use or resale.
4. Customer is responsible for maintaining a procedure external to the Products to reconstruct lost or altered Customer files, data or programs.
5. THE REMEDIES IN THESE TERMS ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES.

12. General

1. Neither party shall be liable for delays or failure to meet its obligations pursuant to this Agreement due to causes beyond the party's reasonable control and not caused by the negligence of such party.
2. If either party becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, the other party may cancel any unfulfilled obligations.
   c) Customer may not assign any rights or obligations hereunder without prior written consent from Continuous Computing, and any such assignment shall be null and void.
3. Bundled Software provided to Customer may only be used when operating the associated Product in configurations as sold or subsequently upgraded by Continuous Computing. Customer may transfer Bundled Software only upon transfer of the associated Product. In all cases, title to Bundled Software shall remain with Continuous Computing and its licensors, if any.
4. Customer who exports, re-exports or imports Products, technology or technical data purchased hereunder, assumes responsibility for complying with applicable laws and regulations, and for obtaining required export and import authorizations. Continuous Computing may suspend performance if Customer is in violation of any applicable law or regulation.
5. The rights and obligations of the parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods; rather such rights and obligations shall be governed by and construed in accordance with the laws of the United States and the State of California as applied to agreements made, entered into and to be performed entirely within California between California residents. In the event that any dispute or controversy between the parties arises out of or is related to these Terms, whether in contract or tort, such controversy shall be subject to the exclusive jurisdiction in any state or federal court located in the County of San Diego, California.
6. Provisions herein which by their nature extend beyond the termination of any sale of Products will remain in effect until fulfilled. Without limiting the generality of the foregoing, Sections 8(h), 9, 10 and 11 shall survive the expiration or termination of these Terms.
7. If any term or provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the terms or provisions herein will remain in full force and effect.
8. These Terms and any related quotation constitute the entire agreement between Continuous Computing and Customer, and supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Customer's additional or different terms and conditions will not apply, including any terms set forth on Customer's purchase order whether or not Continuous Computing objects to any such terms. Customer's issuance of a purchase order will constitute Customer's acceptance of these Terms, which may not be changed except by an amendment signed by an authorized representative of each party.