General Terms and Conditions of Sale

Revised December 2019

Except as otherwise accepted and confirmed by ProSoft Technology in an order confirmation, these general terms and conditions of sale only apply to purchases of ProSoft Technology products and related services made from ProSoft Technology Inc., a California corporation. ProSoft Technology S.A.S., ProSoft Technology (Asia Pacific) S.B., and ProLinx Comunicacao Industrial LTDA are wholly-owned subsidiaries of ProSoft Technology Inc., all are herein referred to as “ProSoft”. Purchases made from appointed distributors or other independent resellers will be subject to terms and conditions of sale as may be separately established by each such distributor or reseller, which will in no event be binding upon ProSoft unless otherwise expressly agreed to. However, ProSoft extends its standard Manufacturer’s Warranty and Software License to Buyers purchasing ProSoft products and related services from their local authorized ProSoft Technology distributor or reseller. Such Manufacturer’s Warranty is in lieu of all other warranties, which are expressly disclaimed. Sales and services outside of the United States of America may be subject to separate or supplemental terms and conditions of sale. For further information, please consult your nearest ProSoft Technology sales office.

General

These terms and conditions of sale (along with any associated written specification, quotation and/or supplemental terms and conditions provided by ProSoft) will exclusively govern the sale or licensing by ProSoft of all goods and services (including without limitation, hardware, firmware and software products, training, programming, maintenance, engineering, site services, parts, repair and remanufacturing services – hereinafter, "Products") furnished to Buyer hereunder, whether such sale or licensing is affected by paper-based transactions or via facsimile or other forms of electronic data interchange (“EDI”) or electronic commerce, and represents the entire Contract between Buyer and ProSoft with respect thereto. Buyer's receipt or acceptance of delivery of any of the Products ordered or purchased hereunder will constitute its acceptance of these terms and conditions as amended hereto. No alteration or variation to these terms and conditions shall apply unless specifically agreed to in writing by both parties. However, ProSoft reserves the right to affect minor modifications and/or improvements to the Goods before delivery provided that the performance of the Goods is not adversely affected and that neither the Contract Price nor the delivery date is affected. ProSoft objects to and rejects other terms and conditions that may be proposed by Buyer or that appear on or are referenced in Buyer's purchase order or requisition that are in addition to or otherwise not consistent with the terms and conditions set forth or referenced herein. This Contract gives the Buyer specific legal rights. The Buyer may also have other rights which vary from jurisdiction to jurisdiction. If any provision of the Contract is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Contract.

Payment Terms

Prices are firm for delivery within the period stated in ProSoft's quotation and unless otherwise stated in the Contract, are exclusive of Value Added Tax, any similar and other taxes, duties, levies or other like charges arising in connection with the performance of the Contract. Unless otherwise agreed to in writing, payment shall be made in the currency of ProSoft’s quotation within thirty (30) days from date of invoice with ongoing approved credit as determined by ProSoft. ProSoft reserves the right to render invoices electronically and to receive payment by way of electronic funds transfer. Payment by credit card, when permitted, is subject to credit card validation and authorization both at time of Contract and immediately prior to shipment. ProSoft reserves the right to suspend any further performance hereunder or otherwise in the event payment is not made when due. Interest charges may be added to overdue invoices at the rate applicable by law. Without prejudice to ProSoft's other rights, ProSoft reserves the right to suspend performance of the Contract (including withholding shipment) in the event that Buyer fails or in ProSoft’s reasonable opinion it appears that Buyer is likely to fail to make payment when due under the Contract or any other Contract; and under the same conditions require reasonable security for payment. 

Delivery Terms

Unless otherwise expressly stated in writing, the Goods will be shipped CIP ProSoft’s U.S. location, Incoterms® 2010, final destination named by the Buyer. "CIP", "FCA", “CPT” are the preferred Incoterms that may be used when placing an order and shall be defined in accordance with Incoterms® 2010. Freight, packing and handling will be charged at ProSoft’s standard rates. Risk of loss shall pass to Buyer upon delivery to the first carrier even though ProSoft has booked and paid for the main carriage and insurance.  Title transfers upon delivery to the first carrier, except all title to all intellectual property rights associated with the Products remains with ProSoft or its suppliers and licensors.  Acknowledged shipping dates are approximate only and based on prompt receipt of all necessary information from Buyer. If the carrier delivers all material shown on the freight bill, but Buyer subsequently discovers shorted material, any claim must be filed directly with Company within ten (10) days after delivery.  Claims filed later than ten (10) days after delivery will not be honored.  When such shortage is verified by Company, credit will be issued to Buyer’s account within ninety (90) days of such verification. If Buyer requires special production service for unusual shipments, an additional charge (expedite fee) shall be imposed by ProSoft as deemed necessary to cover any costs of such service. Where applicable, prepaid shipping will be billed as a separate invoice item. If delivery is delayed due to any act or omission of Buyer, ProSoft shall be entitled to place the Goods into a suitable storage at Buyer's expense. Upon placing the Goods into the storage, delivery shall be deemed to be complete and Buyer shall pay ProSoft accordingly. If a delivery is not expected to be made on-time, ProSoft will notify Buyer and will take all reasonable steps at ProSoft’s own cost to expedite delivery; provided, however, when not prohibited at the time the order is placed, Buyer reserves the right, without liability, in addition to its other rights and remedies, to cancel the order if necessary by written notice to ProSoft and arrange for completion and/or purchase of substitute items elsewhere and to charge ProSoft with  additional costs incurred as a result of delivery deviation. Any products returned for repair, whether in or out of warranty, must be shipped in accordance with the terms of ProSoft’s Return Material Authorization Policy.

Warranty

New Products: ProSoft warrants that new ProSoft branded hardware Products furnished hereunder will be free from defects in material, workmanship and design for a period of three (3) years from the date of invoice from ProSoft. Goods repaired and parts replaced by ProSoft during the warranty period shall be in warranty for the remainder of the original warranty period or six (6) months, whichever is longer.

Software and Firmware: Unless otherwise provided in a ProSoft or third party license, ProSoft warrants that standard ProSoft branded software or firmware Products furnished hereunder, when used with ProSoft-specified hardware, will perform in accordance with published specifications prepared, approved, and issued by ProSoft for a period of three (3) years from the date of invoice from ProSoft. Except for the foregoing warranty, software and firmware Products are provided AS IS. ProSoft makes no representation or warranty, expressed or implied, that the operation of the software or firmware Products will be uninterrupted or error free, that the functions contained therein will meet or satisfy Buyer's intended use or requirements, that the software or firmware products will be free from other defects or failures. ProSoft warrants that (i) it owns or has the right to license the software and materials furnished hereunder; and (ii) it has the right to grant Buyer the right and license to use the software and materials furnished hereunder, and to sublicense and resell the software and materials furnished hereunder free and clear of all liens, claims, encumbrances and other restrictions. 

Partner Products: ProSoft and its appointed distributors sell partner products. All partner products are subject to the original manufacturer’s warranty. 

Repair and Upgrade Services: Materials and labor performed by ProSoft to upgrade previously purchased firmware, repair a verified malfunction or defect are warranted in the terms specified above for a new Product, provided said warranty will be for the period remaining on the original new equipment warranty or, if the original warranty is no longer in effect, for a period of ninety (90) days from the date of shipment.

Consulting and Site Services: ProSoft warrants that it and any Third Party Provider it engages will perform Site Services in a professional manner in accordance with generally accepted industry standards applicable to the Services. This Site Services warranty shall be effective for ninety (90) days following completion of the Services. Upon breach of this warranty, ProSoft’s sole obligation is to correct the Services so that the Services comply with this warranty. If ProSoft is unable to correct the Services within a reasonable period, Buyer’s sole remedy is to terminate the relevant Service Order and obtain a refund of the amount Buyer paid to ProSoft for the Services that ProSoft is unable to correct. Buyer will reimburse ProSoft for its reasonable time and expense for any Services provided at Buyer’s request to remedy problems that are outside the scope of this warranty.

"Remanufactured" and End of Production Products: ProSoft warrants that hardware Products sold as “Remanufactured” (e.g., Buyer and distributor returns, factory repaired or reconditioned, etc.) or End of Production Products will be free from defects in material and workmanship for a period of six (6) months from the date of invoice from ProSoft.  Repaired or replacement Products provided as a result of this warranty subparagraph are similarly warranted for a period of ninety (90) days from the date of shipment to Buyer or the remainder of the original  warranty term for that particular Product, whichever is longer.

Cellular Data Service Plans: ProSoft sells 3rd party broadband data service plans to its United States and Canadian Buyers for use with the ProSoft cellular radios and gateways. For data service plan purchases through ProSoft, a 2-year data plan purchase is required with renewal due every 2 years. Use of the data service for remote medical monitoring is prohibited.  Data service plans are non-cancelable. If a 2-year service plan is not purchased through ProSoft, the Buyer will be responsible for obtaining a data service plan from their local service provider. 

Buyer Specifications/Compatibility: ProSoft does not warrant and will not be liable for any design, materials, construction criteria or goods furnished or specified by Buyer (including that sourced from other manufacturers or vendors ). Any warranty applicable to such Buyer-specified items will be limited solely to the warranty, if any, extended by the original manufacturer or vendor directly or indirectly to Buyer. ProSoft does not warrant the compatibility of its Products with the goods of other manufacturers or Buyer's application except to the extent expressly represented in ProSoft's published specifications or written quotation.

Recyclable Materials: In keeping with environmental policies and practices, ProSoft reserves the right to utilize in its product manufacturing, repair and remanufacturing processes certain recyclable materials (e.g., fasteners, plastics and the like) or remanufactured parts equivalent to new in performance or parts which may have been subject to incidental use. However, such utilization will not affect any provided Product warranty or published reliability statistics.

Remedies: Remedies under the above warranties will be limited, at ProSoft's option, to the replacement, repair, re-performance or modification of, or issuance of a credit for the purchase price, of the Products or Services involved, and only after the return of such Products pursuant to ProSoft's Return Material Authorization instructions and prompt notification of any claimed breach of warranty of Services. Replacement Products may be new, remanufactured or reconditioned at ProSoft's discretion. Costs in connection with or as a result of such defective or nonconforming Products, including, cost to transport the Products from Buyer to ProSoft and return shipment to Buyer, will be borne by ProSoft. The foregoing will be the exclusive remedies for any breach of warranty or breach of the Contract arising there from.

General: Warranty satisfaction is available only if (a) ProSoft is provided prompt notice of the warranty claim and (b) ProSoft's examination discloses that any alleged defect has not been caused by misuse; neglect; improper installation, operation, maintenance, repair, alteration or modification by another party other than ProSoft; accident; or unusual deterioration or degradation of the Products or parts thereof due to physical environment or electrical or electromagnetic noise environment. These warranties do not apply to products acquired by Buyer for beta, evaluation, testing, demonstration purposes or other circumstances for which ProSoft does not receive a payment of a purchase price.

THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR PERFORMANCE OR APPLICATION, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT,TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND SHALL SURVIVE THE TERMINATION OF THE CONTRACT. TO THE EXTENT AN IMPLIED WARRANTY OR CONDITION CANNOT BE DISCLAIMED, SUCH WARRANTY OR CONDITION IS LIMITED IN DURATION TO THE APPLICABLE WARRANTY PERIOD.  Rights under the above warranties (subject to noted limitations) extend to Buyer's Buyers if Buyer is a ProSoft-appointed distributor or reseller for the Products.

Limitation and Exclusion of Liability

NOTHING IN THESE TERMS OF SALE LIMITS OR EXCLUDES THE LIABILITY OF EITHER PARTY TO THE OTHER FOR: (i) WILLFUL INJURY TO PERSONS OR PROPERTY; (ii) FRAUD OR FRAUDULENT MISREPRESENTATION; (iii) WILLFUL OR NEGLIGENT VIOLATION OF LAW; OR (iv) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.  NOTHING IN THESE TERMS OF SALE LIMITS OR EXCLUDES THE LIABILITY OF THE BUYER TO PROSOFT ARISING OUT OF (I) BUYER’S BREACH OF SOFTWARE LICENSING; OR (ii) ANY AMOUNTS DUE TO PROSOFT UNDER THESE TERMS OF SALE.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PROSOFT WILL NOT BE LIABLE FOR ANY BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL OR THE LIKE (WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. FURTHER, EXCEPT FOR PROSOFT’S INTELLCTUAL PROPERTY INDEMNITY BELOW, IN NO EVENT SHALL PROSOFT’S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS AND LIABILITIES, INCLUDING OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED, WILL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO SUCH CLAIMS OR DAMAGES.  PROSOFT DISCLAIMS ALL LIABILITY RELATIVE TO GRATUITOUS INFORMATION OR ASSISTANCE PROVIDED BY, BUT NOT REQUIRED OF PROSOFT HEREUNDER. ANY ACTION AGAINST PROSOFT MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE EXCLUSIONS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION HEREOF AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, EACH PROVISION HEREOF WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.

Intellectual Property Indemnity

Except as excluded herein, ProSoft will defend any suit or proceeding brought against Buyer arising out of a claim that the design or construction of ProSoft branded Products sold or licensed hereunder by ProSoft infringes any patent, copyright or trademark granted or registered in any country, provided (a) Buyer promptly notifies ProSoft in writing of any such claim and any suit or proceeding, (b) at ProSoft's expense, Buyer gives ProSoft the sole right to defend, settle and control the defense of the suit or proceeding, (c) Buyer provides all necessary information and assistance for such defense or settlement, and (d) Buyer takes no position adverse to ProSoft in connection with such claim. In the event ProSoft is obligated to defend such suit or proceeding, ProSoft will pay all costs and damages finally awarded or agreed upon by ProSoft that are directly related thereto. ProSoft's obligations under this paragraph will be fulfilled if ProSoft, at its option and expense: (i) procures for Buyer the right to continue using such Products, (ii) replaces the same with non-infringing equipment/software having functionality similar to that of the Products, (iii) modifies the Products to make them non-infringing while retaining similar functionality, or (iv) if (i)-(iii) are not commercially practical, refunds to Buyer the purchase price of the affected Products in exchange for their return. ProSoft will have no obligation to defend or for any other liability with respect to: [a] any suit or proceeding to the extent based on or arising out of a configuration or modification made, specified or requested by Buyer and which is incorporated into or constitutes the Products, [b] the use of the Products in a process or application specified, requested or controlled by Buyer or any third parties. As used in this paragraph, the term “Products” shall mean only ProSoft's standard hardware, firmware and software that are generally commercially available, and expressly excludes third-party-branded equipment/software. THIS PARAGRAPH IS IN LIEU OF ALL WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, THAT THE PRODUCTS WILL BE FREE OF THE RIGHTFUL CLAIM OF ANY THIRD PARTY BY WAY OF INFRINGEMENT OR THE LIKE.

Resale of Third-Party Branded Products and Services

NOTWITHSTANDING ANY OTHER PROVISION HEREIN, PROSOFT MAKES NO REPRESENTATIONS, PROVIDES NO INDEMNITIES (INTELLECTUAL PROPERTY OR OTHERWISE), AND DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED RELATIVE TO ANY THIRD-PARTY BRANDED PRODUCT OR SERVICE (INCLUDING TRAINING) WHICH MAY BE RESOLD OR SUBLICENSED BY PROSOFT AS A DISCRETE ITEM HEREUNDER.

Licensed Software and Firmware

Use of Products comprised of software or firmware may be subject to Buyer's acceptance of additional terms and conditions set forth in separate ProSoft or third-party license Contracts that will control to the extent necessary to resolve any conflict with the terms and conditions stated or otherwise referenced herein. In the absence of a separate ProSoft's license Contract, Buyer is granted a non-exclusive, non-transferable license to use provided ProSoft's software or firmware only in object code form and solely in conjunction with ProSoft-provided Products, with no rights to sublicense, disclose, disassemble, decompile, reverse engineer, or otherwise modify the software or firmware. This software license applies only to ProSoft products which have been purchased from an Authorized ProSoft Technology Distributor or reseller.

Packing and Marking

Buyer-specified packing or marking may be subject to additional charges not otherwise included in the price of the Products.

Weights and Dimensions

Published or advertised weights and dimensions are estimates or approximations only and are not warranted.

Prices

ProSoft may modify the Product Price List with written notice provided to the Buyer thirty (30) days prior to implementation of such modifications. Products quoted will be acknowledged to be valid through date of ProSoft’s quotation.  Prices do not include sales, use, excise, customs, value-added or similar taxes. Buyer will pay or reimburse ProSoft for all such taxes as may be applicable. Time and material services will be provided in accordance with ProSoft's published service rates (including applicable overtime and travel expenses) in effect as of the date such services are provided, unless otherwise confirmed by ProSoft's written quotation or order acknowledgment. Billable service time includes travel time to and from the job site and all time ProSoft's representatives are available for work and waiting (whether on or off the job site) to perform the services.

Changes and Substitutions

Buyer-requested order changes, including those affecting the identity, scope and delivery of the Products, must be documented in writing and are subject to ProSoft's prior approval and adjustments in price, scheduling and other affected terms and conditions. In any event, ProSoft reserves the right to reject any change that it deems unsafe, technically unadvisable or inconsistent with established engineering or quality guidelines and standards, or incompatible with ProSoft's design or manufacturing capabilities. ProSoft further reserves the right to substitute using the latest superseding revision or series, or equivalent Product having comparable form, fit and function.

Changes in Products

ProSoft shall have the right in its discretion, without incurring any liability, to discontinue or limit its production or deliveries of any Product and alter the design, materials or construction of any Product.

Returns

All returns of Products will be pursuant to ProSoft's instructions. Warranty returns of unused and resalable Products for credit will be subject to ProSoft's return policies in affect at the time, including applicable restocking charges and other conditions of return. Products returned under warranty must be properly packed and include all accessory items included in the original shipment.  ProSoft reserves the right to adjust the credit amount due to Buyer should these items not be returned. Returned products should be shipped to ProSoft-specified locations. Shipping containers must be clearly marked per ProSoft's instruction and shipped freight prepaid by Buyer. More detailed information on returns is available http://www.prosoft-technology.com/Services-Support

Order Cancellation

Cancellation by Buyer prior to shipment is permitted only by written notice and is subject to ProSoft's prior approval and upon payment to ProSoft of reasonable cancellation and restocking charges, including reimbursement for direct costs. Due to contractual obligations, cancellation of cellular service plans provided by 3rd party providers are not eligible for early termination. Cancellation charges associated with orders for custom Products, large quantity orders or Products specifically manufactured to Buyer's specification may equal the actual selling price of the Products. ProSoft has the right to cancel an order for cause at any time by written notice, and ProSoft will be entitled to cancellation and restocking charges as identified above. No cancellation by Buyer for cause will be effective unless and until ProSoft has failed to correct such alleged cause within forty-five (45) days after receipt of Buyer's written notice specifying such cause.

Non-cancelable/Non-returnable (NCNR) Products

Orders for Product considered NCNR may not be cancelled and may not be returned for credit. Buyer agrees to purchase the quantities ordered. Buyer also agrees that all purchases of items designated as NCNR are final, and ProSoft has no obligation to accept the return of any NCNR items for any reason unless the Product is found to be damaged or defective when received by the Buyer, as long as the Buyer notifies ProSoft within 10 days of receipt of any defective or damaged product.

Force Majeure

The Contract (other than Buyer's obligation to pay all sums due to ProSoft in accordance with the Contract) shall be suspended, without liability, in the event and to the extent that its performance is prevented or delayed due to any circumstance beyond the reasonable control of the party affected, including but not limited to: Act of God, war, armed conflict or terrorist attack, riot, fire, explosion, accident, flood, sabotage; governmental decisions or actions (including but not limited to prohibition of exports, re-exports or the failure to grant or the revocation of applicable export licenses), or labor trouble, strike, lockout or injunction. For purposes of this paragraph, a “cause beyond its reasonable control” will not include international currency fluctuations or revaluations. ProSoft shall have no obligation to supply hardware, software or technology or to provide services in the absence of government permits or fulfillment of statutory conditions of exemption from such permits within the framework of import and export control (in particular, according to the regulations applicable in the United States, the European Union and the jurisdiction in which ProSoft has its registered office or from which components of the Goods are supplied) and the underlying circumstances could not be foreseen by ProSoft and are outside of ProSoft’s sphere of influence. In the event of revocation of issued government permits or in the event of a change in the applicable statutory import and export control regulations such that ProSoft is prevented from fulfilling the Contract, ProSoft is discharged from the contractual obligation without any liability of ProSoft. If the delay is caused by the delay of a subcontractor of ProSoft and if the delay arises out of causes beyond the reasonable control of both ProSoft and the subcontractor, and without the fault or negligence of either of them, ProSoft will not be liable to the Buyer for damages unless the articles or services to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit ProSoft to meet the required delivery schedule.  If either party is delayed or prevented from performance of its obligations by reason of this Clause for more than 180 consecutive calendar days, either party may terminate the then unperformed portion of the Contract by notice in writing given to the other party, without liability provided that Buyer shall be obliged to pay the reasonable cost and expense of any work in progress and to pay for all Goods delivered and Services performed as accrued at the date of termination.

Compliance with Laws

Products and associated materials supplied or licensed hereunder may be subject to various export laws and regulations. Both ProSoft and Buyer shall strictly comply with, and adhere to, all applicable U.S. and non-U.S. laws and regulations pertaining to environment, health and safety, economic sanction laws, trade, import and export control. Specifically, both Parties covenant that it shall not - directly or indirectly - sell, provide, export, re-export, transfer, divert, loan, lease, consign, or otherwise release or dispose of any equipment, product, commodities, services, software, source code, or technology received under this Contract to or via any individual, entity, or destination, or for any use prohibited by the laws or regulations of the United States or any other applicable jurisdiction without having obtained prior authorization from the competent governmental authorities as required by all such laws and regulations. In the event that any required export authorization is denied, ProSoft will be relieved of any further obligation relative to the sale and/or license and delivery of the Product(s) subject to such denial without liability of any kind relative to Buyer or any other party.

 In addition, these regulations prohibit any person, whether U.S. on non-U.S., from exporting or selling, directly or indirectly to or for any proliferation related end use (nuclear weapons, missile technology or chemical/biological weapons applications). ProSoft will not comply with boycott related requests except to the extent permitted by U.S. or international laws and then only at ProSoft's discretion. By placing an order with ProSoft, Buyer represents, warrants and covenants that Buyer has not paid, offered to pay, agreed to pay, or authorized or caused to be paid, directly or indirectly, any money or anything of value to any foreign official (as defined in the FCPA) to induce such official to use their influence to obtain an improper business advantage in connection with the purchase and resale of the Products, nor will Buyer do so at any time in the future. The export obligations under this clause shall survive the expiration or termination of this Contract.

ProSoft provides in-country certifications for many of our devices. Buyer is responsible for identifying what standards are required for the installation of the device as is mandatory in the country of their installation. Certification documents are available for download on the product pages.

Indemnity

Buyer shall defend, indemnify and hold harmless ProSoft and its affiliates from and against any and all claims and demands, and related liabilities, damages and expenses (including reasonable attorneys’ fees), for or in connection with any property damage or any injury to or illness or death of any person (including loss of  income, profits, sales or “down time”) arising from or related to the Products, including such claims and demands brought by any employee, agent or subcontractor of Buyer for Buyer’s failure to comply with ProSoft’s published instructions and specifications concerning the operation, use and maintenance of the Products, except any claim, demand, liability, damage or expense proven to be the result of the negligence of ProSoft and not contributed to by the negligence of Buyer, its agents, employees, officers or directors or other third parties.

Disputes

The parties will attempt in good faith to promptly resolve any dispute arising hereunder by negotiations between representatives of the parties who have authority to settle the dispute. If unsuccessful, the parties further will attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses apportioned equally to each side. Any dispute not so resolved by negotiation or mediation may then be submitted to a court of competent jurisdiction in accordance with the terms hereof. These procedures are the exclusive procedures for the resolution of all such disputes between the parties.

Governing Law and Forum

 This Contract shall in all respects be governed and construed in accordance with the laws of the State of California, with the provisions of the 1980 United Nations Convention of Contracts for the International Sale of Goods being excluded, and to the fullest extent permitted by law, shall be without regard to any conflict of laws or rules which might apply the laws of any other jurisdiction. Any suit, action, or proceeding against ProSoft concerning this Contract shall be brought in the courts of the jurisdiction of the State of California and Buyer hereby irrevocably submits to the exclusive jurisdiction of such state. Should any term or provision hereof be held wholly or partly invalid or unenforceable under applicable law, the remainder of the Contract evidenced hereby will not be affected thereby.

Assignment

The Contract evidenced hereby may not be assigned by either party without the written consent of the other (which consent will not be unreasonably withheld). However, consent will not be required for internal transfers and assignments as between ProSoft and its parent company, subsidiaries or affiliates as part of a consolidation, merger or any other form of corporate reorganization.

Language

The parties acknowledge that they have required that the Contract evidenced hereby be drawn up in English. In the event of a conflict between the English and other language versions, the English version will prevail.

Confidential Information

The Buyer shall not disclose to ProSoft any confidential information which Buyer possesses unless ProSoft has, prior to such disclosure, agreed in writing to accept such information as confidential under clearly defined obligations of confidence. Buyer represents and agrees that all information disclosed to ProSoft by Buyer (except such information as is specifically subject to a confidentiality Contract signed by ProSoft prior to disclosure) is non-confidential, and that ProSoft is free to use and disclose any or all such information without accounting to Buyer therefore, notices on Buyer’s drawings, proposals, specification and other documents to the contrary notwithstanding.

Entire Contract

This Contract contains the entire Contract between the parties with respect to its subject matter and supersedes any terms and conditions contained in any pre-printed forms of Buyer and ProSoft, including acknowledgments, invoices, purchase orders, schedule agreements, and all prior and contemporaneous Contracts, understandings, negotiations, and discussions of the parties, whether oral or in writing. It will be binding upon and inure to the benefit of the parties and their respective successors and assigns. No supplement, modification, waiver or extension of this Contract will be binding unless executed in writing with a specific reference to this Contract by the party to be bound.