Effective: August 25, 2015
DEVICE SUPPLY AGREEMENT
DEVICE SUPPLY AGREEMENT
THIS DEVICE SUPPLY AGREEMENT (THIS “SUPPLY AGREEMENT” or THIS “Supply Agreement”) IS A LEGALLY BINDING AGREEMENT BETWEEN GIMBAL, INC. ("GIMBAL") AND THE LEGAL ENTITY YOU REPRESENT (“YOU”).
IF YOU USE OR ARE ENGAGING IN ACTIVITIES UNDER THIS SUPPLY AGREEMENT FOR A BUSINESS, COMPANY OR CORPORATE ENTITY (“COMPANY”), WHETHER AS AN EMPLOYEE OR CONTRACTOR, THE TERM “YOU” INCLUDES, AND THE TERMS AND CONDITIONS HEREIN ARE BINDING ON, BOTH YOU AS AN INDIVIDUAL AS WELL AS SUCH COMPANY. IN ADDITION, YOU REPRESENT AND WARRANT TAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY, AND THAT SUCH COMPANY HAS AUTHORIZED YOU TO ACCEPT THE TERMS OF THIS SUPPLY AGREEMENT ON ITS BEHALF.
GIMBAL IS WILLING TO PROVIDE CERTAIN HARDWARE DESIGNED TO BE USED IN DETECTING LOCATION (EACH A “DEVICE”) TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT, AGREE TO AND COMPLY WITH ALL OF THE TERMS AND CONDITIONS IN THIS SUPPLY AGREEMENT. BY CLICKING THAT YOU ACCEPT THESE TERMS OR THE TERMS IN THE GIMBAL DEVELOPER AGREEMENT CURRENTLY POSTED AT https://manager.gimbal.com/sdk-license.(AS MAY BE UPDATED OR MODIFIED FROM TIME TO TIME, THE “DEVELOPER AGREEMENT”), YOU ACKNOWLEDGE AND AGREE, THAT YOU HAVE READ THIS SUPPLY AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, GIMBAL IS UNWILLING TO AND DOES NOT AND WILL NOT MAKE ANY DEVICES AVAILABLE TO YOU. ANY USE, POSSESSION OF, OR ACCESS TO DEVICES BY YOU IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SUPPLY AGREEMENT.
1. Agreement; Delivery.
a. This Supply Agreement applies to each and every supply order of Devices issued to Gimbal by or on behalf of You (each an “S.O.”). An S.O. is generated by placing an order at https://store.gimbal.com (the “Site”) for Devices or such other method as provided by Gimbal. The request for Devices shall include Device type, quantity and shipping address. Gimbal is not obligated to accept any S.O. from You relating to the Devices. Any terms or conditions stated by You in any S.O. or otherwise that are different from, or in addition to, the terms and conditions in this Supply Agreement shall be of no force and effect, and no course of dealing, usage of trade, or course of performance shall be relevant to explain or modify any term expressed in this Supply Agreement. Gimbal expressly rejects additional or different terms. An S.O. becomes a part of this Supply Agreement and forms a binding contract between the parties only after it is accepted in writing by Gimbal, and once this contract is formed, it cannot be canceled by either party without the written consent of the other party. Notwithstanding the foregoing, Gimbal shall have the right to cancel and/or hold any and/or all orders placed by You and any and/or all shipments of Devices, regardless of any prior confirmation or acceptance by Gimbal, if: (a) You are or become insolvent; (b) You make an assignment for the benefit of creditors, or a receiver is appointed to take charge of all or any part of Your assets or business; (c) You are the subject of a bankruptcy or reorganization proceeding, whether voluntary or involuntary; or (d) You fail to timely perform any of Your obligations under this Supply Agreement and such failure is not cured within ten (10) days after Gimbal gives written notice to You of such failure.
b. You hereby represent and warrant to Gimbal that any Device being supplied to You hereunder will be used by You solely for Your own use in Your facilities and You will pay the applicable Service Fees (each as defined in the Developer Agreement) in accordance with the terms of this Supply Agreement and in compliance with applicable law. You agree that on reasonable advance notice from Gimbal, You will provide an independent third party auditor, selected by Gimbal, with access to all information, processes, procedures and protocol related to Your compliance with this Agreement. If You use a Device without the Gimbal Software, Gimbal may use data transmitted by the Device for its business purposes. You are permitted to use and display the Device provided that You reference them as “Gimbal Beacons” and use the Device in accordance with the remainder of the Gimbal branding guideline document https://manager.gimbal.com/brand-guidelines. The foregoing restrictions shall not prohibit You from distributing Devices to Your Contractor(s) (as defined in the Developer Agreement), provided that such Contractor shall only use the Device as permitted herein. You acknowledge that the Devices are currently only authorized for distribution to the countries in which Devices are certified for distribution. Gimbal provides notice at https://manager.gimbal.com/supported-countries for which countries the Devices are authorized to be distributed.
c. For international shipments, all deliveries of Devices shall be made FCA (as defined in INCOTERMS 2010) at a Gimbal facility (for the purposes of international shipments, the “Delivery Point”) by a carrier selected by Gimbal. For domestic shipments, all deliveries of Devices shall be made by a carrier selected by Gimbal at the delivery address provided by You (in such case, for the purposes of domestic shipments, the “Delivery Point”). Title to, and risk of loss of or damage to, the Devices shall pass to You upon Gimbal's delivery of the Devices to the Delivery Point. You shall inspect and either accept or reject all Devices within one (1) business day after delivery of the Devices to the Delivery Point. If You fail to effectively reject any Devices in a written document delivered to Gimbal within such 1-day period, You shall be deemed conclusively to have accepted such Devices.
2. Price; Payment Terms. The cost to purchase each Device shall be as reflected under the Device Fees section of the Fee Schedule located at https://manager.gimbal.com/fee-schedule or as other mutually agreed upon by the parties in writing (the “Price”). All amounts are stated in, and shall be paid in, U.S. dollars. The Prices do not include any applicable sales, use, excise and/or withholding taxes; customs duties; fees; freight, insurance and delivery charges; or any other taxes, fees, or charges. All taxes, fees and other charges imposed in connection with the use and delivery of Devices shall be paid directly by You. In the event Gimbal pays any such fees, taxes, or charges, You shall promptly reimburse Gimbal therefor. You are responsible for obtaining at Your own risk and expense any import license or other official authorization for the importation of Devices at Your destination. You are responsible for customs clearance at Your destination, and You shall bear all duties, taxes and other official charges payable upon importation of the goods as well as any and all costs and risks of carrying out customs formalities. Unless other payment and credit terms are specifically agreed in advance in writing with Gimbal, with respect to each S.O. accepted by Gimbal, You shall render payment in full to Gimbal via card payment on the Site or via check or wire transfer in accordance with the instructions below within five (5) days of Gimbal's acceptance in writing of the S.O. Gimbal will provide notice on the Site when any different payment options are made available (e.g., credit card). If for any reason whatsoever a payment is not timely made, Gimbal reserves the right to discontinue all support until such past due amounts are paid in full by You. Regardless of what payment terms apply to any S.O., You shall pay to Gimbal a late charge on any past due amounts at the rate of one and one-half percent (1.5%) per month or part thereof or the maximum amount permitted by law, whichever is less. You hereby agree to make all payments when due for the purchase of any and all S.O.’s accepted by Gimbal regardless of any offset or claim which You might otherwise be entitled to assert. Such agreement shall be without prejudice to Your right to pursue any claim or remedy except as an offset against any payment owed by You under this Supply Agreement.
For payments by Check, please remit to: Gimbal, Inc. Attn: Accounts Receivable 11010 Roselle St, Ste 150 San Diego, CA 92121
Below are the instructions for payments by Wire: Account # 3301199929 Ref: Gimbal, Inc. Silicon Valley Bank Santa Clara, CA ABA #1211-4039-9 SWIFT: SVBKUS6S
3. Device Software.
a. Devices sold to You hereunder may contain software or firmware (“Firmware”). In addition, Gimbal hereby reserves the right to provide or otherwise make available, at its discretion, additional software to You from time to time related to the Device. Except as otherwise expressly provided herein, any additional software that Gimbal provides to You by express reference to this Supply Agreement (collectively, “Additional Software”) and any Firmware (Additional Software and Firmware, collectively, “Device Software”) will be considered to be part of the Device and subject to all terms and conditions of this Supply Agreement; provided that nothing herein shall be construed as the sale of any Device Software to You. For the avoidance of doubt, Device Software does not include any Software (as defined in the Developer Agreement). Subject to and conditioned upon Your compliance with the terms and conditions set forth in this Supply Agreement, Gimbal hereby grants to You a personal, non-exclusive, non-sublicenseable, non-transferable, revocable, limited license under Gimbal's copyrights, during the Term, to perform the Device Software solely in conjunction with the Devices sold by Gimbal for which Gimbal intends it to be used, for the duration of the useful life of such Devices. You shall not, without the prior written consent of Gimbal: (i) alter, modify, translate, reverse engineer, or adapt any Device Software or create any derivative works based thereon; (ii) copy any Device Software; (iii) assign, sublicense or otherwise transfer the Device Software in whole or in part; (iv) use the Device Software except as specifically contemplated in this Supply Agreement, or (iv) disclose the Device Software to any third party. The entire right, title and interest in the Device Software shall remain with Gimbal and its affiliates, and You shall not remove any copyright notices or other legends from the Device Software or accompanying documentation. For the avoidance of doubt, nothing in this Section 3 shall be deemed to grant any rights to You under any of Gimbal Inc.'s or any of its affiliates’ patents.
b. Open Source. You shall not incorporate, link, distribute or use any third party software or code in conjunction with (i) the Device Software (ii) any Device Software, products, documentation, content or other materials developed using the Device Software, nor (iii) any derivative works that You makes using the source code portions of the Device Software (if any), in such a way that: (a) creates, purports to create or has the potential to create, obligations with respect to the Device Software or other Gimbal software, including without limitation the distribution or disclosure of any source code; or (b) grants, purports to grant, or has the potential to grant to any third party any rights to or immunities under any Intellectual Property Rights (as defined below) of Gimbal or its affiliates, including without limitation as such rights exist in or relate to the Device Software. Without limiting the generality of the foregoing, You shall not incorporate, link, distribute or use (1) the Device Software or any other software provided by Gimbal, (2) any software, products, documentation, content or other materials developed using the Device Software, nor (3) any derivative works that You makes using the source code portions of the Device Software (if any), with any code or software licensed under any version of the GNU General Public License (“GPL“), Affero General Public License (“AGPL“), Lesser General Public License (“LGPL“), European Union Public License (“EUPL“), Apple Public Source License (“APSL“), Common Development and Distribution License (“CDDL“), IBM Public License (“IPL“), Eclipse Public License (“EPL“), Mozilla Public License (“MPL“), or any other open source license, in any manner that could cause or could be interpreted or asserted to cause the Device Software or other Gimbal software (or any modifications thereto) to become subject to the terms of the GPL, AGPL, LGPL, EUPL, APSL, CDDL, IPL, EPL, MPL, or such other open source license. You, and each party receiving Device Software or any copies thereof from You, shall not receive any rights to use such Device Software or copies thereof in a manner that will cause any patents, copyrights or other Intellectual Property Rights which are owned or controlled by Gimbal or any of its affiliates (or for which Gimbal or any of its affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any third party or open source license (including, without limitation, any open source license listed on http://www.opensource.org/licenses/alphabetical) (each an “Open Source License”). “Intellectual Property Rights” means copyright rights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, right of privacy, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, worldwide. These restrictions, limitations, exclusions and conditions shall apply even if Gimbal or any of its affiliates becomes aware of or fails to act in a manner to address any violation or failure to comply therewith. Also, no act by Gimbal or any of its affiliates that is undertaken under this Supply Agreement as to any software or technology shall be construed as being inconsistent with the intent not to cause any patents, copyrights or other Intellectual Property Rights which are owned or controlled by Gimbal or any of its affiliates (or for which Gimbal or any of its affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any Open Source License.
4. Export Compliance & Regulatory. You acknowledge that all hardware, software, source code and technology (collectively, "Products") obtained from Gimbal are subject to the US government export control and economic sanctions laws. You assure that You, Your subsidiaries and Your affiliates will not directly or indirectly export, re-export, transfer or release (collectively, "Export") any Products or direct product thereof to any destination, person, entity or end use prohibited or restricted under US laws without prior US government authorization to the extent required by applicable regulation. The US government maintains embargoes and sanctions against certain countries, currently Cuba, Iran, North Korea, Sudan (N) and Syria, but any amendments to the countries under a US embargo or sanction shall apply. You acknowledge that other countries may have trade laws pertaining to import, use, Export or distribution of Products, and that compliance with the same is Your responsibility. You shall not Export or transfer Products listed in Supplement 2 to part 744 of the EAR for military end-uses, as defined in part 744.21, to the People’s Republic of China.
5. WEEE Registration and Compliance. If You are distributing or transferring any Devices to any member countries of the European Union, You have responsibility as “Producer” and “Distributor” to ensure recycling of products subject to take-back requirements as described in the WEEE Directive 2012/19/EU. You, acting as the Producer and/or Distributor, must adhere to product registration and reporting requirements, when required, and ensure that proper registration as the Producer in each Member State, where applicable. You, acting as the Producer and/or Distributor, are responsible for ensuring that all technical dismantling instructions are provided to the recycling entities and financial obligations associated are fulfilled. Gimbal shall include a physical label on applicable Devices depicting a crossed-out trash can as described in Annex IX of 2012/19/EU.
6. Confidentiality. You acknowledge that the Device Software, all technical documentation delivered to You by Gimbal hereunder, and all other information relating to the design, development, configuration, use, installation, operation and maintenance of Devices (unless disclosed publically by Gimbal) constitute confidential and proprietary information of Gimbal (referred to as “Confidential Information ”). Other than as specified herein, You shall not duplicate, use other than in accordance with this Supply Agreement, or disclose to any third person any Confidential Information without the prior written consent of Gimbal. You shall have no right to sublicense, transfer or sell Gimbal Confidential Information to any third party other than in accordance with this Supply Agreement. Moreover, such Confidential Information shall be used by You only for the purpose of performing under this Supply Agreement. Information delivered to You orally or in tangible form and without regard to whether it has been identified or marked as confidential or otherwise, shall be subject to this Section 6. After delivery of the Devices, Gimbal may disclose to its current and prospective customers and strategic relationships that You have acquired the Devices and how You are using or plan to use the Devices in Your business.
7. Limited Warranties. Gimbal warrants only to You only that the Devices will conform to Gimbal specifications and the hardware will be free from defects in material and workmanship for ninety (90) days from date of delivery to the Delivery Point (the “Limited Warranty”). There is no warranty for any Additional Software, which may or may not be compatible with Your Device(s). In addition, there is no warranty with regard to the battery life of any Device, regardless if battery life is mentioned in any specifications. Your sole remedy for breach of the Limited Warranty shall be the return of the allegedly defective Devices to Gimbal at Your sole expense in accordance with instructions provided by Gimbal. You shall obtain from Gimbal a written authorization (RMA) before returning any allegedly defective Devices. If such Devices are defective, Gimbal, at Gimbal's sole option, shall repair or replace such Devices with functionally similar Devices within thirty (30) business days of Gimbal's receipt thereof or, if Gimbal determines that it is unable to repair or replace such Devices, Gimbal shall refund You the Price paid for such defective Devices. Notwithstanding the foregoing, no warranty, expressed or implied, shall extend to any Device (i) where the Price was waived, (ii) that has been subjected to misuse, neglect, accident, or improper storage or installation, or (iii) that has been repaired, modified, or altered by anyone other than Gimbal. You hereby acknowledge and agree that You have not relied on any representations or warranties other than those expressly set forth herein. GIMBAL MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO DEVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, OR ANY EXPRESS OR IMPLIED WARRANTY ARISING OUT OF TRADE USAGE OR OUT OF A COURSE OF DEALING OR COURSE OF PERFORMANCE.
8. Restrictions & Intellectual Property.
Except for the express copyright licenses granted to You in Section 3 (Device Software), no other intellectual property rights are granted by Gimbal under or as a result of this Supply Agreement (whether expressly, impliedly, by virtue of estoppel or exhaustion, or otherwise). You acknowledge and agree, on behalf of Yourself, Your affiliates, Your agents and Your contractors, that neither the delivery of any part or all of the Devices nor any provision of this Supply Agreement (including, without limitation, any provision in any exhibit, S.O., addendum, etc. forming a part hereof) will be deemed or construed to grant (whether expressly, by implication or by way of estoppel or otherwise) any right, license, authority to infringe, or immunity from infringement liability under or to: (i) any patents of Gimbal Inc., or any of its affiliates, (ii) any other intellectual property rights of (a) any affiliate of Gimbal Inc., or (b) Gimbal Inc., or (iii) any intellectual property rights of Gimbal covering or relating to any technology (including, without limitation, any product or invention) not embodied solely in the Devices.
9. Indemnification. You shall indemnify, defend, and hold harmless Gimbal and its affiliates against any and all losses, claims, damages and expenses (including attorneys’ fees) arising out of or related to Your (including Your employees, affiliates and independent contractors), misuse and/or modification of Devices, or Your or any of Your affiliates use of any Device in combination with any other items, whether or not furnished by Gimbal or any of its affiliates, unless such use is the necessary, inherent and/or intended use of the Device.
10. Limitation of Liability TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION NEGLIGENCE, SHALL GIMBAL, ITS AFFILIATES, MANUFACTURERS, DISTRIBUTORS, SERVICE PROVIDERS, LICENSORS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH OR RELATED TO THIS SUPPLY AGREEMENT OR ANY DOWNLOAD, INSTALLATION OR USE OF, OR INABILITY TO USE, THE SOLUTION, EVEN IF GIMBAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL REMAIN IN FULL FORCE AND EFFECT REGARDLESS OF WHETHER YOUR REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. GIMBAL'S CUMULATIVE LIABILITY ARISING FROM THE SERVICES, PRODUCTS AND SOFTWARE PROVIDED HEREUNDER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT, INDEMNIFICATION, CONTRIBUTION, OR OTHERWISE, SHALL BE LIMITED TO THE DIRECT DAMAGES RECOVERABLE UNDER LAW, BUT NOT TO EXCEED AN AMOUNT EQUAL TO THE PRICE PAID FOR THE DEVICE WHICH IS THE SUBJECT OF SUCH CLAIM OR CAUSE OF ACTION. YOU HEREBY RELEASE GIMBAL, IT'S MANUFACTURERS, DISTRIBUTORS, SERVICE PROVIDERS, LICENSORS AND EACH OF THEIR RESPECTIVE AFFILIATES, FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THIS LIMITATION. ALL CLAIMS BY YOU, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, MUST BE BROUGHT WITHIN TWO YEARS FROM THE DATE THE CAUSE OF ACTION ACCRUES. THIS LIMITATION OF LIABILITY CONSTITUTES AN ESSENTIAL PART OF THIS SUPPLY AGREEMENT. This provision applies notwithstanding any contrary provision in this Supply Agreement.
11. Termination & Survival.
a. Termination. The licenses granted to You by Gimbal hereunder terminate immediately and automatically, with or without notice, if You or Your Contractor fail to comply with any provision hereof and you shall no longer be permitted to use the Device Software and may no longer be able to use the Device.
b. Survival. The parties’ rights and obligations which by their sense and context are intended to survive any termination or expiration of this Supply Agreement shall so survive.
12. GOVERNING LAW; VENUE. This Supply Agreement is governed and interpreted in accordance with the laws of the state of California, United States of America, without giving effect to its conflict of laws provisions that would result in the application of the laws of a different state or country. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and shall not apply. Except as set forth in Section 13 (Dispute Resolution), any claim, lawsuit or proceeding arising out of or related to this Supply Agreement must be brought exclusively in the courts of San Diego, California and You hereby consent to the exclusive jurisdiction and venue of such courts, provided that either party may seek injunctive or other equitable relief in any court with jurisdiction. If any provision (or portion of a provision) of this Supply Agreement shall be held to be illegal, invalid, or unenforceable, the legality, enforceability or validity of the remaining provisions (or portion of the applicable provision) of this Supply Agreement shall not be affected.
13. DISPUTE RESOLUTION. If You are an individual or entity whose official place of residency or formation is outside of the United States, all disputes, controversies, or claims arising out of, relating to or in connection with this Supply Agreement including the determination of the scope of the agreement to arbitrate, shall be finally settled by arbitration in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law (“UNCITRAL”), applicable at the time of submission of the dispute to arbitration, and the following shall apply:
a. The American Arbitration Association, ("AAA") shall be the Appointing Authority and shall appoint a single arbitrator. The arbitration case shall be administered by the AAA in accordance with its "Procedures for Cases Under the UNCITRAL Arbitration Rules" ("Rules"). The place of arbitration shall be San Diego, California, and the exclusive language to be used for the arbitral proceedings shall be English.
b. Nothing herein will prevent Gimbal, prior to appointment of the arbitrator, from making application to any court of competent jurisdiction, for any provisional remedy available at law or in equity. Such application for relief shall not constitute a waiver of this Supply Agreement to arbitrate. Upon appointment, the arbitrator shall have exclusive authority to order provisional or interim relief, except that any relief ordered by the arbitrator may be immediately and specifically enforced by a court otherwise having jurisdiction. You waive objection to venue and consent to the personal jurisdiction of the federal courts of San Diego, California, U.S.A. in any action to enforce this Supply Agreement to arbitrate or any order or award of the arbitrator, or for the provisional or interim remedies provided for herein.
c. Discovery shall be limited to written requests for the production of specific documents. The period for requesting documents shall be sixty (60) days commencing upon the day that the answer is due under the Rules. The responding party shall have thirty (30) days to produce the requested documents by sending copies to the requesting party or its representative via a recognized international courier service. Each party will also voluntarily produce all documents that they intend to use at the arbitration hearing and a list of intended witnesses before the close of discovery subject to supplementation for purposes of rebuttal or good cause shown. Each party hereby waives any right to seek any discovery not provided for in this Supply Agreement irrespective of whether the laws of any country provide for different or additional discovery in international arbitration. The arbitrator will hold a pre-hearing conference within three days of the close of discovery and will schedule and hold the final hearing within thirty (30) days of the close of discovery. YOU HEREBY AGREE THAT THE ARBITRATION PROCEDURE PROVIDED HEREIN WILL BE THE SOLE AND EXCLUSIVE METHOD OF RESOLVING ANY OF THE AFORESAID DISPUTES, CONTROVERSIES OR CLAIMS.
14. EXPORT COMPLIANCE ASSURANCES. You acknowledge that all hardware, software, documentation, technology and technical data and information (collectively, "Products") obtained from Gimbal and the Applications are subject to the US government export control and economic sanctions laws , including without limitation the Export Administration Regulations ("EAR", 15 CFR 730 et seq., https://www.bis.doc.gov/) administered by the Department of Commerce, Bureau of Industry and Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq., https://www.treas.gov/offices/enforcement/ofac/) administered by the Department of Treasury, Office of Foreign Assets Control ("OFAC"). You represent and warrant that You, Your Contractors and Your Affiliates will not directly or indirectly export, re-export, transfer or release (collectively, "export") any Products or direct product thereof to any destination, person, Entity or end use prohibited or restricted under US laws without respective prior US government authorization to the extent required by applicable regulation. The US government maintains embargoes and sanctions against certain countries listed in Country Groups E:1/2 of the EAR (Supplement 1 to part 740), currently Cuba, Iran, North Korea, Sudan (N) and Syria, but any amendments to the countries under a US embargo or sanction shall apply. You agree not to directly or indirectly employ any Product received from Gimbal in missile technology, sensitive nuclear or chemical biological weapons activities, or in any manner export any Product to any party for any such end use. You shall not, and You shall ensure that Your Contractors do not, export any Product to any party listed on any of the denied parties lists or specially designated nationals lists maintained under said regulations without appropriate US government authorization to the extent required by regulation. You acknowledge that other countries may have trade laws pertaining to import, use, export or distribution of Products, and that compliance with the same is Your responsibility. You represent and warrant that You are not a person or Entity that is listed on any United States Government list of prohibited or restricted parties. This Section shall survive the expiration or termination of this Supply Agreement.
15. COMPLIANCE LAWS.
a. You shall, and shall ensure that Your Contractors shall, abide by all applicable local, state, national, and foreign laws, treaties and regulations in connection with Your use of Devices, including, without limitation, those related to privacy and data collection, international communications, and the transmission of technical or personal data.
b. Not in limitation of the foregoing, You represent and warrant to Gimbal that, in connection with the transactions contemplated by this Supply Agreement or in connection with any other business transactions involving Gimbal, You, and everyone acting on Your behalf, will comply with and will not violate any anti-corruption law or international anti-corruption standards, including but not limited to the U.S. Foreign Corrupt Practices Act. You represent and warrant to Gimbal that You have not, and covenant and agree that You will not, and shall ensure that Your Contractors do not, in connection with the transactions contemplated by this Supply Agreement or in connection with any other business transactions involving Gimbal, make, promise, or offer to make any payment or transfer anything of value, directly or indirectly, to any individual to secure an improper advantage. It is the intent of the Parties that no payments or transfer of value shall be made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining or retaining business.
16. GOVERNMENT END USERS. If You are acting on behalf of an agency or instrumentality of the U.S. government, the Device Software and related documentation, as applicable, are "commercial computer software" and "commercial computer software documentation" developed exclusively at private expense by Gimbal. Pursuant to FAR 12.212 or DFARS 227 7202 and their successors, as applicable, use, reproduction and disclosure of the Device Software is governed by the terms of this Supply Agreement.
17. NO THIRD PARTY RIGHTS. Excepting the terms and rights applicable to Gimbal's affiliates as expressly stated herein (which terms and rights such Gimbal affiliates shall be entitled to enforce as third party beneficiaries), the parties agree and confirm their mutual intention that neither this Supply Agreement nor any of the terms of this Supply Agreement will be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999, or otherwise, by any person/entity not a direct party to it. Notwithstanding that any term of this Supply Agreement may be or may become enforceable by a person who is not a party to this Supply Agreement, the terms and conditions of this Supply Agreement may be modified or amended, or this Supply Agreement may be suspended, cancelled, rescinded or terminated by the parties as provided in Section 18(a) (Amendment) without the consent of any such third party.
18. General Terms.
a. Amendment. This Supply Agreement amends and restates the prior Device Supply Agreement that was Effective November 12, 2013 and shall apply to any S.O. or other order or sale of Devices to You. You will be responsible for reviewing and becoming familiar with any and all changes. If You or Your Contractors continue to use any portion of the Devices or the Device Software after notice of the updated Supply Agreement has been provided or posted, You shall be deemed to have accepted any and all such changes. Except for orders made prior to December 12, 2013, the Device Supply Agreement current at the time of placement of an S.O. shall govern the purchase of Devices under such S.O. unless otherwise mutually agreed upon by You and Gimbal.
b. Language. This Supply Agreement is entered into solely in the English language, and if for any reason any other language version is prepared by any party, it shall be solely for convenience and the English version shall govern and control in all respects. If You are located in the province of Quebec, Canada, the following applies: The parties hereby confirm they have requested this Supply Agreement and all related documents be prepared in English. Les parties ont exigé que le présent contrat et tous les documents connexes soient rédigés en anglais.
c. Notice. All notices and approvals submitted hereunder shall be in writing, and be delivered by hand, overnight delivery or e-mail to the addresses set forth below:
Gimbal:Legal Department Gimbal, Inc. 11010 Roselle St, Ste 150 San Diego, CA 92121 legal [at] gimbal [dot] com
You: Notices and approvals for You will be sent to the email address You provided when placing the order or such other email address provided if You have established a developer account under the Developer Agreement.
Notices will be effective upon receipt or when delivery is refused. Each party may change its address by giving notice to the other party of the new address in accordance with this Section.
d. Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Supply Agreement will be valid and enforceable to the fullest extent permitted by applicable law.
e. Force Majeure. Neither party shall be liable for any delay or failure to meet its obligations under this Supply Agreement due to circumstances beyond its reasonable control, including but not limited to war, riot, insurrection, civil commotion, labor strikes or lockouts, shortages, factory or other labor conditions, fire, flood, earthquake or storm. Notwithstanding, this provision shall not be construed to relieve You of Your obligations to make payments to Gimbal pursuant to this Supply Agreement.
f. Headings and Construction. The section headings in this Supply Agreement are for convenience of reference only and are not to be considered as parts, provisions or interpretations of this Supply Agreement. The use of the term "including" or words of similar meaning in this Supply Agreement will be deemed to include the phrase "without limitation" or similar words that show the intent of the parties to identify, by way of a non-exhaustive list, certain examples of the subject being addressed. This Supply Agreement is not to be presumptively interpreted for or against any party by reason of that party having drafted or negotiated, or failed to draft or negotiate, all or any portion of any provision of this Supply Agreement.
g. No Waivers. No delay or failure in exercising any right hereunder and no partial or single exercise thereof will be deemed a waiver of such right or any other rights hereunder. No consent to a breach of any term of this Supply Agreement will constitute a consent to any prior, subsequent or other breach.
h. No Assignment. You shall not, and shall ensure that Your Contractors do not, assign this Supply Agreement or any right hereunder or delegate or transfer any duties or obligations hereunder (whether voluntarily, by operation of law, or otherwise) without Gimbal's prior written consent. Any attempted assignment, transfer or other delegation, without such consent will be null and void and will constitute a material breach. This Supply Agreement will be binding upon and inure to the benefit of the parties and their permitted successors, transferees, and assignees.
i. Entire Agreement. Except with respect to the foregoing, this Supply Agreement supersedes all prior oral and written negotiations and agreements and representations of, between or on behalf of the parties with respect to the subject matter hereof. This Supply Agreement contains all of Gimbal's and Your agreements, warranties, understandings, conditions, covenants, and representations with respect to the subject matter hereof. Neither Gimbal nor You will be liable for any agreements, warranties, understandings, conditions, covenants, or representations not expressly set forth or referenced in this Supply Agreement. To the extent that You place orders using supply or purchase orders, electronic data interchange, or other communications that purport to impose different or additional terms, those communications shall be deemed only to be order placements under this Supply Agreement and shall not constitute modification of this Supply Agreement. To the extent that Gimbal accepts orders You place using such communications, Gimbal shall not be deemed as a result also to have accepted any different or additional terms set out in such communications and such refused provisions will be unenforceable. This Supply Agreement shall not modify or abrogate Your obligations under any other agreement with Gimbal or its affiliates. The rights and remedies expressly provided to Gimbal herein are not exclusive, but are cumulative and in addition to any other rights and remedies available at law or in equity.