Site Use (www.Supermicro.com)
The materials on this website (the "Site") are provided by Super Micro Computer, Inc. ("Supermicro") as a service to its customers and shall be used for informational purposes only. Downloading or printing any materials from this Site means you agree to these terms. If you do not agree to Supermicro's terms, do not use the Site or download any materials from the Site. You may not modify the materials at this Site in any way or publicly display, distribute, reproduce, perform, or otherwise use them for any commercial or public purpose. Supermicro prohibits any use of these materials on any other website or networked computer environment for any purpose.
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Disclaimer and Limitation of Liability
THE MATERIALS (INCLUDING ALL SOFTWARE) AND SERVICES ON THIS SITE ARE PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.
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SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR IMPLIED WARRANTIES AND/OR CONSEQUENTIAL OR INCIDENTAL DAMAGES. THEREFORE, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOUR USE OF THE MATERIALS, INFORMATION OR SERVICES FROM THIS SITE RESULTS IN THE NEED FOR SERVICING, CORRECTION, OR REPAIR OF DATA OR EQUIPMENT, YOU ASSUME ALL COSTS THEREOF.
Information published herein may refer to products, programs or services that are not available in your country. Consult your local Supermicro business contact for information regarding the products, programs and services that may be available to you. Supermicro's obligations with respect to its products and services are governed solely by the agreements under which they are provided. Nothing herein should be construed to alter such agreements.
Supermicro and its suppliers do not warrant the completeness or accuracy of the information, links, graphics, text or other items contained within these materials. Supermicro may make changes to these materials and products at any time without notice. Supermicro makes no commitment to update the materials, products or services.
Single Copy License
The unauthorized use of any materials at this Site may violate copyright, trademark, and/or other laws. The materials herein are copyrighted. Users may download one copy of the information or software ("Materials") found on Supermicro's sites on a single computer for their personal, internal, non-commercial use only unless licensed to do otherwise by Supermicro in writing or as allowed by any license terms that accompany or are provided with individual Materials. This is a license, not a transfer of title. Licensees are subject to the following restrictions:
Licensees may not:
- modify the Materials or use them for any commercial purpose or public display, performance, sale or rental;
- decompile, reverse engineer, or disassemble software Materials except as permitted by applicable law;
- remove any copyright or other proprietary notices from the Materials;
- transfer the Materials to another person;
- remove or alter any embedded authorship and identification information.
Users agree to prevent any unauthorized copying of the Materials. Supermicro may terminate this license at any time if a user is in breach of the terms of this Agreement. Upon termination, users shall destroy the Materials immediately.
Ownership of Materials
Materials are copyrighted and protected by copyright and other laws. They may not be modified, published, copied, reproduced, uploaded, posted, distributed, or transmitted in any way without Supermicro's prior written permission. Except as expressly provided herein, Supermicro and its suppliers do not grant any express or implied right to users of any copyrights, trademarks, patents, or trade secret information. Other rights may be granted to users by Supermicro in writing or incorporated elsewhere in the materials.
Performance ratings and tests are measured using specific computer systems and/or components. They reflect the approximate performance of Supermicro products as measured by those tests. Any difference in system hardware or software design or configuration may affect actual performance. Buyers should consult other sources of information to evaluate the performance of systems or components they consider purchasing.
Supermicro is a trademark or registered trademark of Super Micro Computer, Inc. or its subsidiaries in the United States and other countries. Supermicro's trademarks may be used publicly only with Supermicro's express written permission. Fair use of Supermicro's trademarks in promotion and advertising of Supermicro's products requires proper acknowledgement. Other names and brands may be claimed as the property of others.
Use of any software downloaded from this Site shall be governed by the terms of the end user license agreement, if any, which accompanies or is included with the software. All such software is the copyrighted work of Supermicro and/or its suppliers. You may not download or install any Software that is accompanied by or includes a license agreement unless you have read and accepted the terms.
REDISTRIBUTION OR REPRODUCTION OF THE SOFTWARE IS PROHIBITED EXCEPT AS PROVIDED FOR IN THE LICENSE AGREEMENT.
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Supermicro and its designees will be free to copy, disclose, incorporate, distribute and otherwise use the Communications and all data, images, text, sound, and other things embodied therein for any and all purposes. You are prohibited from posting or transmitting to or from this Site any unlawful, defamatory, obscene, pornographic, threatening, libelous, or other material that would violate any law.
Applicable Laws for Accessing Our Website Content
This Site is controlled by Supermicro from its offices in San Jose, California. Supermicro makes no representation that materials in the Site are available or appropriate for use in other locations. Access to them from territories where their content is illegal is prohibited. Those who choose to access this Site from other locations are responsible for compliance with applicable local laws. You may not export or use the materials in violation of U.S. export laws and/or regulations. Any claim relating to the materials shall be construed under and governed by the laws of the State of California.
Links To Other Websites
If this Site links to any third party website(s), the linked site(s) are not under the control of Supermicro and Supermicro is not responsible for the contents thereof. Supermicro reserves the right to terminate any link or linking program at any time. Supermicro does not endorse products or companies to which it links. Supermicro reserves the right to note as such on its websites. If you decide to access any third party site(s) linked to this Site, you do so entirely at your own risk.
Use of Personally Identifiable Information
Offer and Acceptance
Buyer agrees that these Standard Terms and Conditions of Sale (the “Seller’s Terms”), as supplemented by any invoice of Seller (the “Invoice”) shall constitute an agreement (the “Agreement”) between the parties and shall govern all past and future purchases of goods and services from Seller. These terms shall prevail over any additional or different terms or conditions provided by Buyer, regardless of whether or when Buyer has submitted its purchase order or such terms, and any such terms or conditions provided by Buyer are deemed to be a material alteration of this Agreement and are hereby objected to by Seller and shall be deemed inapplicable to any sale of Seller’s goods or services, unless specifically agreed to in a writing signed by an authorized representative of Seller.
The Invoice shall constitute an offer to Buyer on these Seller’s Terms for the sale of Seller’s goods and services which shall be deemed accepted by Buyer upon the delivery and non-rejection of Seller's goods. Any acceptance of Seller’s offer is limited to Seller’s Terms and shall constitute Buyer's consent to Seller’s Terms as stated in this Agreement, which are in lieu of and supersede any and all terms and conditions stated on the Buyer's purchase order or other materials provided by the Buyer. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. In the event that Buyer’s purchase order or other material provided by Buyer shall be deemed to be the offer, Seller hereby rejects such offer and proposes that a contract be formed on the terms hereof.
Terms of Payment
All payments shall be made Net 30 days from the invoice date to Seller in U.S. Dollars to “Super Micro Computer, Inc., P.O. BOX 742066, Los Angeles, CA 90074-2066,” or another location if so requested by Seller. All shipments and deliveries are subject to approval of Buyer's credit standing by Seller. Seller reserves the right to decline or postpone shipments for any reason except upon receipt and acceptance of payment or upon terms and conditions acceptable to Seller.
Prices for Seller's products shall be those stated on the front side of the Invoice, which, unless otherwise stated in a writing signed by an authorized representative of Seller, do not include costs incurred for special packaging, shipping, or taxes. If prices are contingent on the purchase of a minimum quantity that is not met by the Buyer, Seller shall have the right to adjust the price accordingly. Unless otherwise specified in the Invoice, Buyer shall pay all invoiced amounts due to Seller on the terms set forth on the Invoice. Buyer shall not, and acknowledges that it shall have no right under these Seller’s Terms or otherwise to withhold, offset, recoup or debit any amounts owed or to become due and owing to Seller or any of its affiliates against any other amount owed or to become due and owing to it by Seller or its affiliates.
Ex Works (EXW) and Risk of Loss
All shipments covered by this Agreement are Ex Works (EXW) Seller’s facility (Incoterms 2010), unless otherwise specified in a Purchase Order and agreed to in writing by an authorized representative of Seller. For all deliveries EXW, Seller's liability for delivery shall terminate upon making Seller’s products available to the carrier at Seller’s facility (the “Shipment Time”), at which time title to and responsibility for damage to or loss of products shall pass to the Buyer. If for any reason, at the Shipment Time, Buyer or Buyer’s designated carrier fails to accept delivery of any of Seller’s goods, title and risk of loss to Seller’s goods shall pass to Buyer and Seller, at its option, may store the goods until Buyer retrieves them, whereupon Buyer shall be liable for all related costs and expenses (including without limitation storage and insurance).
For eStore sales only, Seller’s products in shipments covered by this Agreement will be covered by insurance, arranged and provided by Seller for Buyer, covering the period until they are delivered to Buyer.
As collateral security for the payment of the purchase price of Seller’s goods, Buyer hereby grants to Seller a lien on and purchase money security interest in and to all of the right, title and interest, whether now existing or hereafter arising, of Buyer in, to and under the Seller’s goods and all proceeds (including insurance proceeds) thereof.
Inspection and Rejection of Nonconforming Goods
Upon receipt, and no later than 14 days from Delivery Time (the “Inspection Period”), Buyer will complete inspection of Seller’s goods for conformance with the Purchase Order. Buyer will be deemed to have accepted the goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) the goods shipped are different than identified in the Invoice; (ii) the goods label or packaging incorrectly identifies its contents; or (iii) goods are DOA (“Dead on Arrival”).
If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming goods or (ii) credit or refund the price for such Nonconforming Goods. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility. Buyer acknowledges and agrees that the remedies set forth in this section are its exclusive remedies for the delivery of Nonconforming Goods.
Intellectual Property Rights
Seller agrees that it will indemnify and defend, at its own expenses, all suits against the Buyer for infringement of any patent covering product sold by the Seller. The responsibility of the Seller shall be however subject to the Buyer (i) promptly notifying the Seller in writing of a claim for infringement and in no event later than ten (10) workings days after the receipt of such claim, and (ii) allowing the Seller, except in case of conflict of interest, to have the exclusive and full control of the defense of said claim and any related settlement action, being understood that the Buyer shall provide the Seller with any reasonable assistance that may be requested therewith. The Seller shall however have no liability if the infringement results from (i) any association, combination or use of the product or any part thereof with any other item, device, equipment or product which is not customarily used in association with the product and which is not supplied by the Seller, (ii) any repair, modification, improvement or enhancement of the product or any part thereof not made by or made without the prior written consent of the Seller or (iii) any use of the product or any part thereof for a purpose not contemplated by or authorized any order. The above provisions constitute the entire liability of for any claim for infringement of intellectual property related to the product.
Limitation of Liability
NEITHER PARTY SHALL BE LIABLE FOR ANY FAILURE TO PERFORM ON ITS PART WHICH IS DUE TO CAUSES BEYOND ITS CONTROL, EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE LIABILITY OF EACH PARTY, IF ANY, ARISING OUT OF AN AGREEMENT TO PURCHASE OR OTHERWISE WITH REGARD TO ANY GOOD FOR ANY AND ALL CLAIMS, COSTS, DAMAGES, LOSSES, LIABILITIES AND EXPENSES, WHETHER ARISING FROM NEGLIGENCE OR OTHER TORT, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, OR OTHERWISE SHALL NOT EXCEED THE TOTAL PRICE FOR THE GOODS AND SERVICES PURCHASED.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OR INABILITY TO USE SELLER'S PRODUCTS OR DOCUMENTATION, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, LOST OF REVENUES OR PROFITS. SELLER SHALL NOT BE LIABLE FOR ANY HARDWARE, SOFTWARE, OR DATA STORED OR USED WITH ANY PRODUCT, INCLUDING WITHOUT LIMITATION THE COSTS OF REPAIRING, REPLACING, INTEGRATING, INSTALLING OR RECOVERING SUCH HARDWARE, SOFTWARE OR DATA.
All of Seller's Products, are subject to Seller’s Limited Warranty, available at www.supermicro.com/en/support/warranty and are incorporated herein by reference.
Compliance with Laws and Export Regulations
Each Party agrees to comply with all applicable laws, rules, regulations, orders and ordinances of the United States and in any other state or country with jurisdiction over it or its activities in performance of its obligations hereunder.
The commodities, software and services listed herein on this Agreement and elsewhere may be subject to U.S. export control laws and regulations, including without limitation the Export Administration Regulations and the sanctions programs administered by the Office of Foreign Assets Control. The Parties acknowledge that any products, software, and technical information (including, but not limited to, services and training) provided by either Party under this Contract are or may be subject to export laws and regulations of the United States and the destination country(ies) and any use or transfer of such products, software and technical information must be authorized under those Laws. The Parties agree that they will not use, distribute, transfer or transmit the products, software or technical information (even if incorporated into other products) except in compliance with export Laws. If requested by either Party, the other Party agrees to sign all necessary export-related documents as may be required to comply with export Laws. Any export, re-export, or transfer or use of these commodities must be conducted in compliance with such applicable laws and regulations. Buyer shall not intentionally do anything to cause Seller to be in violation of such export control laws and regulations.
Neither Party shall be liable for any loss, delay of failure to perform resulting from any force majeure event, including, but not limited to, acts of God, acts of terrorism, fire, natural disaster, epidemics, disease, labor stoppage, strike, shortage of parts or materials, any order, regulation, request of any national or local authority, government department or other competent authority of any country (including without limitation Seller’s inability to obtain any export license or other approval that may be required by any government of competent jurisdiction), war or military hostilities, inability of carriers to make scheduled deliveries, or any other act beyond the control of either Party. Any delivery date may be extended, at Seller's option, to the extent of any delay resulting from any force majeure event.
Jurisdiction and Venue
All sales, transactions, and/or disputes between Seller and Buyers shall be governed by and construed in accordance with the laws of the State of California, as well as applicable federal statutes of the United States of America. The State of California, County of Santa Clara shall be the exclusive venue for the resolution of any disputes between Seller and Buyer arising from any invoice, any agreement to purchase or otherwise. Buyer's acceptance shall constitute consent to the jurisdiction and venue of the courts of Santa Clara County. The prevailing party shall be entitled to a reasonable compensation of attorney's fees, legal expenses, and costs.
The terms and conditions contained herein and in Seller’s invoice together with the documents incorporated into any invoice by reference, shall constitute the complete and exclusive agreement between the Seller and Buyer which supersedes any prior or contemporaneous representations or agreements.
Any terms or conditions furnished by either Party that conflict with those stated in this Agreement shall be deemed inapplicable to any sale and shall not be binding on Seller. No modification, amendment, or waiver of the terms on this Agreement shall be binding on either Party absent a writing signed by the Parties.
This Purchase Order ("PO") is Super Micro Computer, Inc.'s ("Buyer") offer to the person, firm, or entity named on the face of this PO ("Seller") and becomes a binding agreement ("Agreement"), subject to the terms hereof, when accepted by acknowledgement or commencement of performance by Seller. No revision of this order or any of the terms and conditions hereof shall be valid unless in writing and signed by an authorized representative of Buyer. Any additional or different term or condition on Seller's quotations, acknowledgment form, invoice or otherwise communicated by Seller in accepting this order, shall be deemed to be a material alteration of this PO and is hereby objected to by Buyer. The acceptance of items delivered hereunder by Buyer shall not be acceptance of terms and conditions of Seller. While both parties are finalizing in executing the master vendor supply agreement, the terms and conditions associated with the PO for purchase of products or services shall govern.
Time is of the essence of this Purchase Order. Seller shall mark and reference Purchase Order number on the outside of the package, packing slip and its invoice upon delivery. Buyer may reject any delivery, in all or in part, if Seller fails to do so. In the event that Seller fails to deliver any goods or perform any services on the time specified on this PO, Buyer may change the routing to premium transportation and Seller shall bear the additional expense thereof and/or Buyer may purchase replacements elsewhere and Seller will be liable for actual and reasonable costs and damages Buyer incurs. Seller will promptly notify Buyer if it has the need to revise the delivery date specified in this PO.
Title, Risk of Loss
Title to the goods shipped under this PO shall pass to Buyer in accordance with the shipping terms specified on the face of the PO. In the event shipping instructions are not provided, the applicable shipping terms shall be FOB destination.
Terms of Payment
Seller's invoice will be paid within the term specified on each PO from the date of an undisputed or correct invoice is received by Buyer. If the amount charged by Seller in the invoice is disputed by Buyer, both parties will negotiate in good faith to resolve the dispute. Seller shall submit with each invoice supporting documentation in a form satisfactory to Buyer and in detail sufficient for Buyer to identify the product or service rendered. Buyer will not be obligated to make payment against any invoices submitted 180 days after shipment of the deliverable(s). Currency will be in U.S. Dollars unless specifically negotiated and reflected in this Agreement.
Buyer may at any time, with or without cause, reschedule or cancel a portion or the entire PO without any cost or liability to Buyer.
The prices charged by Seller to Buyer for any product and service shall be the prices agreed upon by the parties. Notwithstanding the foregoing, Buyer reserves the right to renegotiate the prices of any open PO if Buyer learns that the prices for any product and/or service of such open PO in the market is lower than the prices offered to Buyer.
Inspection and Acceptance
Buyer may inspect the goods upon receipt for conformity hereto, and goods received prior to inspection shall not be deemed accepted until Buyer has run an adequate test to determine whether the goods conform to the specifications. If any item is defective in material or workmanship, or otherwise not in conformity with the requirements of Buyer' purchase order, Buyer shall have the right to reject it, require its correction or accept it with an adjustment in price, all at Seller's cost.
Product Change and End-of-Life Notices
Seller shall provide Buyer immediate written notice prior to the implementation by Seller of any Engineering Change Order (ECO), Product Change Notice (PCN), product End-of-Life (EOL) or any change affecting any product or component referenced in Buyer's Purchase Orders, including but not limited to any firmware change and hardware change.
- Supplier shall immediately notify Super Micro Computer, Inc. ("Supermicro") in writing of any issues pertaining to product nonconformity, order/material discrepancies, and/or late deliveries.
- In the event of product defect or nonconformity, in addition to the remedies available to Supermicro as set forth in Supermicro's Purchase Order ("PO"), Supplier shall arrange for the defective or non-conforming products to be returned to Supplier at no cost to Supermicro or provide clear instructions for the disposition of said products at no cost to Supermicro.
- Supplier expressly warrants that all products will be free from counterfeit materials. "Counterfeit Materials" shall mean any component, part and/or material that is made in imitation of the original component, part and/or material. Any product containing counterfeit material shall be considered a defective or non-conforming product. If Supermicro identifies that Counterfeit Materials have been received from Supplier, Supplier will work with Supermicro to immediately address the non-conformance to minimize and further mitigate the impact on Supermicro's customers. Supplier will, at its sole expense, implement a corrective action plan regarding the affected products and ensure that all subsequent product shipments do not contain non-conforming products. Supermicro reserves the right to immediately disqualify Suppliers who are found to have provided Counterfeit Materials. Suppliers may only be re-qualified at Supermicro's discretion, upon demonstration that corrective actions have been implemented.
- Supplier shall provide Supermicro immediate written notice of any and all changes in ownership of Seller's products, as well as Seller's internal process and applicable definition pertaining to the transaction between Supplier and Supermicro.
- During regular business hours, and with advance written notice to Supplier, Supermicro, their customers and regulatory authorities may perform a confidential audit of Supplier's records, which includes books, documents, accounting procedures and practices, and other data, regardless of type and regardless of whether such items are in written form, in the form of computer data, or in any other form, as they pertain to the Services provided under any and all agreements entered into between Supplier and Supermicro. Supplier shall maintain all aforementioned records for no less than seven (7) years and ensure that such records remain legible and readily identifiable and retrievable.
- In addition to remedies available to Supermicro as indicated in Supermicro's PO, in the event of discrepant materials or items, Supplier shall immediately notify Supermicro and submit root cause analysis and corrective action report. The corrective action report must be submitted to Supermicro within ten (10) business days from the date that Supplier learned of said discrepancy. If Supplier is unable to meet the 10-day requirement, Supplier shall submit a request for extension to Supermicro for Supermicro's approval. In the event that Supplier fails to meet the aforementioned obligations, Supermicro shall have the right to suspend any further business with Supplier until Supplier submits an acceptable corrective action report to Supermicro.
Seller will perform its obligations under this Agreement in strict compliance with all applicable local, state, and federal laws, laws of non-U.S. jurisdiction(s), if any, in which the goods are produced, delivered and/or in which the services are performed, executive orders, rules, and regulations in the performance of its obligations under this Agreement., including but not limited to, U.S. export compliance rules and regulations, the Anti-Kickback Act of 1986 (41 U.S.C. 51-58), and the Foreign Corrupt Practices Act of 1977 (15 U.S.C. 77dd-1 et seq.). In addition, Seller agrees to comply with Buyer's internal ISO procedures.
Seller and its subcontractor(s) 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, sexual orientation, gender identity, national origin, or for inquiring about, discussing, or disclosing information about compensation. Moreover, these regulations require that covered prime Seller and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. Seller and its subcontractor(s) agrees to comply with all the provisions set forth in 29 CFR Part 471, Appendix A to Subpart A (Executive Order 13496).
Seller warrants (i) all services shall be provided with due diligence, in a workmanlike and competent manner in accordance with the highest professional standards in Seller's trade or industry, and shall meet the descriptions, specifications, and performance standards provided by Buyer; (ii) the products do not infringe the intellectual property rights of others; (iii) the products delivered will be free from defects in design, workmanship, material, and manufacture and will comply with this Agreement, including any drawings/specifications agreed upon by the parties and described in a separate written document; (iv) Seller has all necessary legal rights, title and interest to the products to grant the rights set forth herein; and (v) all products purchased hereunder will be of merchantable quality and will be fit for the purposes intended by Buyer. The foregoing warranties are in addition to all other warranties, express or implied. All warranties run to the benefit of Buyer and its customers. If products, services or deliverables provided under this Agreement do not meet the warranties specified herein, Buyer may, at its option (a) require Seller to correct any defective or nonconforming product(s) by repair or replacement and/or re-perform any services at no cost to Buyer, (b) return such defective or nonconforming product(s) to Seller at Seller's expense and recover from Seller the fees paid for such defective product or service(s), or (c) correct the defective or nonconforming product itself or by use of another vendor and charge Seller with the cost of such corrections or service performance.
Seller warrants to Buyer that the products sold under this PO are i) safe in normal use or transportation, are non-toxic, and present no hazard to persons or the environment, and may be disposed of without special precaution; and ii) manufactured, imported, packaged, collected, recovered, recycled, or disposed in full compliance with the RoHS directive, the REACH regulation, WEEE directive, Batteries directive and other legislation applicable to illegal and hazardous substances.
Seller shall indemnify and hold Buyer and its agents, consignees, employees and representatives harmless from and against all expenses, costs, charges, damages, claims, suits, losses, fines, penalties or liabilities (including lawyers' fees) of every kind whatsoever by reason of, arising out of, or in any way connected with (a) Seller's breach of any of its warranties, representations and obligations in this Agreement, (b) any negligent act or omission, willful misconduct or strict liability of Seller, (c) any infringement or misappropriation of any proprietary right by any of the goods delivered, (d) any personal or bodily injury (including, without limitation, death) or damage to tangible property caused by any of the goods delivered.
Limitation of Liability
Buyer's total liability for damages arising out of or relating to this Agreement shall not exceed the aggregate fees paid by Buyer to Seller. Under no circumstances shall Buyer be liable for any special, incidental or consequential damages arising in any way out of this Agreement, however caused, whether arising under a theory of contract, tort (including negligence or otherwise), including, without limitation, damages for lost profits, or loss of data.
Neither party shall be responsible for its failure to perform due to causes beyond its reasonable control such as acts of God, fire, theft, war, riot, embargoes or acts of civil or military authorities ("Force Majeure"). If delivery of the product or performance of the services are to be delayed by such Force Majeure, Seller shall immediately notify Buyer in writing and Buyer may either: (i) extend time of performance; or (ii) terminate this PO at no cost to Buyer.
Seller shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of Buyer. Any attempted assignment without Buyer's consent shall be void and ineffective.
Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
This Agreement shall be governed by and construed under the laws of the State of California, excluding its choice of law principles. The parties consent to the exclusive jurisdiction of the state and Federal courts in Santa Clara County, California.
Access to Facilities
Buyer shall have the right to review and audit Seller's facilities, operations, purchase orders, agreements and procedures at any reasonable time with adequate prior notice for the purposes of determining compliance with the requirements of this Agreement.
If any provision or part hereof shall be held to be invalid or unenforceable for any reason, then the meaning of such provision or part hereof shall be construed so as to render it enforceable to the extent feasible. If no feasible interpretation would save such provision or part hereof, it shall be severed, but without in any way affecting the remainder of such provision or any other provision contained herein, all of which shall continue in full force and effect unless such severance effects such a material change as to render the Agreement unreasonable.
In the event of a dispute between the parties hereunder with respect to this Agreement that must be resolved by litigation or other proceeding, the prevailing party shall be entitled to receive reimbursement for all associated attorneys fees and costs from the other party.
Except as stated to the contrary herein, all obligations herein which by their terms or nature survive termination of this Agreement will continue thereafter until fully performed.
Failure of either party to enforce any term of this Agreement will not be deemed to be a waiver of such term or condition.
This Agreement constitutes the entire agreement between the parties with respect to the transactions contemplated hereby and supersedes all prior agreements and understandings between the parties relating to such transactions. Both parties shall hold the existence and terms of this Agreement confidential, unless it obtains the other party express written consent otherwise.
©Copyright 2014. All rights reserved by Super Micro Computer, Inc.
980 Rock Avenue, San Jose, CA 95131-1615, U.S.A.