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Terms and Conditions

Keynote Photonics - Terms of Use

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ALL TERMS AND CONDITIONS STATED HEREIN. IF YOU DO
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KEYNOTE PHOTONICS

STANDARD TERMS AND CONDITIONS OF SALE for
EVALUATION BOARDS or

PRELIMINARY TRIAL KIT/SUBASSEMBLY/MODULE TOOLS

That are

Neither Intended nor Marketed for Consumer or Residential Use

1. Offer and Acceptance: Keynote Photonics (KP) offers to sell and deliver the evaluation board or preliminary trial kit, subassembly or tool (the “Kit”) in accordance with the terms and conditions set forth herein. Acceptance of this offer is expressly limited to such terms. KP hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer's purchase order. The Kit is intended to help KP’s customers (and potential customers) evaluate the suitability of certain KP products for use in their more complete system designs and is not to be incorporated into final products for sale. For clarification, any software or software tools provided with the Kit (“Software”) shall not be subject to the terms and conditions set forth herein but rather shall be subject to the applicable terms and conditions (the “Software Agreement”) that accompany such Software.

2. Kit Use Restrictions and Notices:

2.1 Buyer acknowledges and agrees to all the terms of the additional information and warnings from KP included in the package containing the Kit received by Buyer and labels posted on the equipment in such package.

2.2 Special terms applicable to Kits designated as NOT FCC approved / FCC NOTICE: This Kit has NOT been authorized under the rules of the Federal Communications Commission, and may not be offered for further sale or lease, or sold or leased, until authorization is obtained. FCC experimental licensing requirements may apply to Buyer's use of this Kit; see https://fjallfoss.fcc.gov/oetcf/els/index.cfm. This Kit is made available solely to allow product developers to evaluate electronic components, circuitry, and/or software associated with the kit to determine whether to incorporate such items in a finished product. This is not a finished product and when assembled may not be resold or otherwise marketed unless all required FCC equipment authorizations are first obtained. Operation is subject to the conditions that this Kit not cause harmful interference to licensed radio stations and that this Kit accept harmful interference. Unless the assembled kit is designed to operate under Part 15 or Part 95 of the FCC Rules, the operator of the kit must operate under the authority of an FCC license holder or must secure an experimental authorization under Part 5 of the FCC Rules. This Kit is not an end product or finished appliance; and is not intended or authorized to be integrated into end products as is. Buyer may use the Kit to create prototypes for its own internal experimental use, and may add components, features, software and/or functionality, in the process of designing its own final products. Buyer shall only assign technically qualified electronics experts who are familiar with the dangers and application risks associated with handling electrical mechanical components, subsystems and systems to use the Kit, and that such use takes place solely in laboratory/development environments (and not in residential environments). Non-FCC approved Kits are FOR ENGINEERING DEVELOPMENT, DEMONSTRATION, AND/OR EVALUATION PURPOSES ONLY.

2.4 Safety-Related Warnings and Restrictions. Buyer assumes all responsibility and liability for proper and safe handling of this Kit. Before handling or using this Kit, Buyer shall read the applicable User's Guide and observe the Warnings

and Restrictions included in such User's Guide. The User's Guide contains important safety information about temperatures and voltages. If operating ranges are provided in the User's Guide, then it is important that Buyer operate the Kit within such ranges. For additional safety information, please contact a KP application engineer. Among other things, Buyer will be responsible to take whatever measures may be required to correct any interference with radio communications, at its own expense, if such measures are necessary. Also, this Kit is not to be used for medical treatment or diagnosis. Further, Buyer is responsible for ensuring that any contacts or interfaces between the Kit and any human body are designed to be safe and to avoid the risk of electrical shock. Failure to operate this Kit within KP's recommended specifications and environmental considerations per the instructions in the Kit User's Guide may present risk of personal injury, property damage and/or unexpected operation of the Kit. During normal operation within the Kit's recommended ratings, some circuit components, including but not limited to linear regulators, switching transistors, pass transistors, current sense resistors and heat sinks may have elevated case temperatures or contain voltages exceeding safe touch levels. The Kit User's Guide includes a schematic drawing which identifies such components. When placing measurement probes near or on these Kits during operation for evaluation purposes, precautions should be taken against inadvertent contact with surfaces of elevated temperatures and/or voltages exceeding safe touch levels.

2.5 Warnings and Restrictions Related to Buyer's End Products. If Buyer designs and/or produces end products or subassemblies for incorporation into end products, then Buyer acknowledges, represents and agrees that it has unique knowledge concerning the Federal, State and local regulatory requirements (including but not limited to Food and Drug Administration regulations, if applicable) which relate to its products and which relate to its use (and/or that of its employees, affiliates, contractors or designees) of the Kit for evaluation, testing and other purposes. Notwithstanding any design support or recommendations that KP may provide, Buyer is solely responsible for its end product or subassembly, and for providing "fail-safe" mechanisms and/or other safety measures as may be necessary or appropriate in any potentially hazardous applications, in light of the possibility of failure of semiconductor components.

3. Purchase Order, Prices, Taxes and Releases: Fulfillment of the order hereunder is subject to stock availability and acceptance of Buyer's order by KP. KP will use commercially reasonable efforts to fill each Kit order submitted by Buyer and accepted by KP; however, KP is under no obligation to fulfill Buyer's order and will incur no liability to Buyer for failure to accept Buyer's purchase order. Product information, price and availability of Kits offered through KP eStore are subject to change at any time without prior notice. KP reserves the right at any time after receipt of Buyer's purchase order to accept, decline or limit Buyer's order for any reason. Buyer's receipt of an electronic or other form of order confirmation does not constitute KP's acceptance of Buyer's order for the Kits offered through eStore, nor does it constitute confirmation of KP's offer to sell Buyer a particular Kit. KP may require additional information or verifications before accepting any purchase order. Any change to a purchase order must be in the form of a written or electronic communication acceptable to KP. All prices quoted on KP's website are in U.S. Dollars (USD) and payments must be made in U.S. Dollars. Prices include shipping charges and only those applicable taxes that KP is required to pay by U.S. law. KP will add sales taxes to the sales price where required by applicable law, and Buyer will pay such taxes unless Buyer provides KP with a duly executed sales tax exemption certificate. If Buyer is required by law to withhold any amount of tax from its payment to KP, Buyer shall promptly pay such amount to the appropriate tax au- thority and take all reasonable steps to minimize such withholding tax. Additional value-added taxes and custom fees may be incurred on Buyer's KP eStore purchase if it is being shipped to a location outside the United States and Buyer is responsible for those taxes. These fees will be charged directly to Buyer as the buyer and are not included in the total purchase price of Buyer's order. KP's price in effect at the time KP receives Buyer's purchase order shall continue to apply if the quantity ordered is released by KP within four months and shipments are scheduled within six months. Otherwise, KP's price in effect on the actual release date for the quantity actually shipped shall apply. If the price of fuels, metals, raw materials, equipment or other production costs increases significantly, KP shall have the right and Buyer shall have the obligation to renegotiate the price of all Kits not yet shipped, and if an agreement is not reached, KP shall have the right to terminate this contract without liability.

4. Title and Delivery: Shipments inside the U.S. shall be delivered F.O.B. KP's shipping dock. Shipments outside the U.S. shall be delivered FCA (Incoterms 2000) Buyer's designated carrier. Title and liability for loss or damage shall pass to Buyer upon KP's delivery to Buyer's designated carrier. Any subsequent loss or damage shall not relieve Buyer from its obligations. Buyer shall reimburse KP for insurance and transportation costs on international shipments and shall be responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required. KP may deliver these Kits in installments. Delivery dates are estimates. KP shall not be liable for any damage, losses or expenses incurred by Buyer if KP fails to meet the estimated delivery dates. The Kits are shipped exclusively to shipping addresses in the countries pre-approved by KP. In the event that KP is un- able to ship the Kits due to shipping restrictions, KP will inform Buyer. Based on inventory availability, shipping method and export control clearance, orders received before 2PM US CST (21:00 GMT) will usually be shipped the next business day. Transit times for international orders vary depending on the country and customs clearing time. For more information regarding the status of Buyer's shipment and the transit time, Buyer should contact its shipping carrier.

5. Payment Terms: All payments must be made at the time of purchase and are made subject to Buyer's acceptance of these terms and conditions. Payment must be received prior to KP's delivery of the Kits unless another agreement has been made between Buyer and KP. If Buyer is in default of payment, KP is entitled to withhold shipment, cease future shipments and demand late fees. If KP extends credit to Buyer, payment terms shall be net thirty days after KP's invoice. KP may change or withdraw credit amounts or payment terms at any time for any reason. If the Kits are delivered in installments, Buyer shall pay for each installment. Termination in accordance with this clause shall not affect KP's right to pursue any other available remedies.

6. Contingencies: KP shall not be in breach of this contract and shall not be liable for any non-performance or delay in performance if such non-performance or delay is due to a force majeure event or other circumstances beyond KP's reasonable control, including but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, fire, flood, earthquake, explosion, terrorist act or Act of God. In the event of a shortage of Kits, KP may allocate, at its sole discretion, Kit production and deliveries.

7. Limited Warranty and Related Remedies/Disclaimers:
7.1 This Agreement does not apply to software. The warranty, if any, for Software is covered in the applicable Software License Agreement.

7.2 KP warrants that the KP Kit will conform to KP's published specifications for ninety days after the date KP ships such Kit to Buyer. Notwithstanding the foregoing, KP shall not be liable for any defects that are caused by neglect, misuse or mistreatment by an entity other than KP, including improper installation or testing, or for any Kits that have been altered or modified in any way by an entity other than KP. Moreover, KP shall not be liable for any defects that result from Buyer's design, specifications or instructions for such Kits. Testing and other quality control techniques are used to the extent KP deems necessary or as mandated by government requirements. KP does not test all parameters of each Kit.

7.3 If any Kit fails to conform to the warranty set forth above, KP's sole liability shall be at its option to repair or replace such Kit, or credit Buyer's account for such Kit. KP's liability under this warranty shall be limited to Kits that are returned during the warranty period to the address designated by KP and that are determined by KP not to conform to such warranty. If KP elects to repair or replace such Kit, KP shall have a reasonable time to repair such Kit or provide replacements. Repaired Kits shall be warranted for the remainder of the original warranty period. Replaced Kits shall be warranted for a new full warranty period.

7.4 Accuracy of Information: To the extent KP provides information on the availability and function of Kits, KP attempts to be as accurate as possible. However, KP does not warrant the accuracy of Kit descriptions, Kit availability or other information on its websites as accurate, complete, reliable, current, or error-free. Furthermore, in the event that an Kit is mistakenly listed at an incorrect price, KP re- serves the right to refuse or cancel any orders placed for such Kit, regardless of whether the order has been confirmed or Buyer's credit card charged. If Buyer's credit card has already been charged for the purchase and Buyer's order is can- celled, arrangements will be made to issue a credit to Buyer's credit card account in the amount of the incorrect price.

7.5 Accuracy of Information: EXCEPT AS SET FORTH ABOVE, EVAL KITS AND ANY WRITTEN DESIGN MATERIALS PROVIDED WITH THE EVAL KIT (AND THE DESIGN OF THE EVAL KIT ITSELF) ARE PROVIDED "AS IS" AND "WITH ALL FAULTS." KP DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH ITEMS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER INTELLECTUAL PROPERTY RIGHTS.

7.6 Accuracy of Information: EXCEPT FOR THE LIMITED RIGHT TO USE THE EVAL KIT SET FORTH HEREIN, NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS GRANTING OR CONFERRING ANY RIGHTS BY LICENSE, PATENT, OR ANY OTHER INDUSTRIAL OR INTELLECTUAL PROPERTY RIGHT OF KP, ITS SUPPLIERS/LICENSORS OR ANY OTHER THIRD PARTY, TO USE THE EVAL KIT IN ANY FINISHED END-USER OR READY-TO-USE FINAL PRODUCT, OR FOR ANY INVENTION, DISCOVERY OR IMPROVEMENT MADE, CONCEIVED OR ACQUIRED PRIOR TO OR AFTER THE DATE OF THIS AGREEMENT.

8. Buyer's Indemnity Obligations and Representations. Buyer will defend, indemnify and hold KP, its licensors and their representatives harmless from and against any and all claims, damages, losses, expenses, costs and liabilities (collectively, "Claims") arising out of or in connection with any handling or use of the Kit that is not in accordance with the terms of this agreement. This obligation shall apply whether Claims arise under the law of tort or contract or any other legal theory, and even if the Kit fails to perform as described or expected.

9. Limitations and Damages Disclaimer:

9.1 General Limitations. IN NO EVENT SHALL KP BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS CONTRACT OR THE USE OF THE EVAL KITS PROVIDED HEREUN-

DER, REGARDLESS OF WHETHER KP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, ANCILLARY COSTS TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, RETESTING, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE, LOSS OF DATA, OR BUSINESS INTERRUPTION. NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST KP MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED.

9.2 Specific Limitations. IN NO EVENT SHALL KP'S AGGREGATE LIABILITY FROM ANY WARRANTYOR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT, OR ANY USE OF ANY KP EVAL KIT PROVIDED HEREUNDER, EXCEED THE TOTAL AMOUNT PAID TO KP FOR THE PARTICULAR UNITS SOLD UNDER THIS CONTRACT WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. THE EXISTENCE OF MORE THAN ONE CLAIM AGAINST THE PARTICULAR UNITS SOLD TO BUYER UNDER THIS CONTRACT SHALL NOT ENLARGE OR EXTEND THIS LIMIT.

9.3 BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILI- TY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS CONTRACT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS CONTRACT WOULD BE SUBSTANTIALLY DIFFERENT.

10. Cancellations; Return Policy. KP may cancel Buyer's order if the Kit is not available. Should this occur, Buyer will be informed of the same and any payments Buyer made with respect to such Kit will be refunded to Buyer. Unless otherwise agreed by KP in a separate written agreement, Buyer may not cancel orders placed by Buyer. Except as otherwise provided in this agreement, KP does not offer any refunds, returns or exchanges. Furthermore, no return of Kit(s) will be accepted if the package has been opened and no return of the Kit(s) will be accepted if they are damaged or otherwise not in a resalable condition. If Buyer feels it has been incorrectly charged for the Kit(s) it ordered or that delivery violates the applicable purchase order, Buyer should contact KP . All refunds will be made in full within thirty working days from the return of the Kit(s) excluding any postage or packaging costs. 

Shipping and any applicable duty costs of any returned product shall be borne by the Buyer. If KP determines that the returned product is covered under the warrantee, KP will provide a refund for the shipping costs incurred, up to the amount KP invoices for the original shipping. If a returned product is not found to be defective under the terms of the warranty, product will be returned to Buyer after Buyer provides funds for return shipment cost and any applicable duty. 

12. Trademarks; Copyright: All trademarks, service marks and trade names of KP on KP's website are trademarks or registered trademarks of KP. The entire content included in KP's website is copyright-protected and is the property of KP and its supplier/licensors. Permission is granted to electronically copy and print hard copy portions of KP's website for the sole purpose of placing a purchase order with KP via eStore. Buyer agrees not to change or delete any proprietary notices from the Software and design materials downloaded from the website or otherwise provided to Buyer in connection with its purchase hereunder.

13. Personal Data: Buyer hereby agrees that KP may use and/or disclose to third parties the personal data provided by Buyer in order to process Buyer's order(s), including shipment of the Kit(s), processing of payment transaction(s) and/or the performance of a credit check. KP's Website Privacy Policy applies.

14. Export Control:

14.1 Buyer agrees that unless prior authorization is obtained from the U.S. Department of Commerce, neither Buyer nor its subsidiaries shall export, re-export, or re- lease, directly or indirectly, any technology, software, or software source code (as defined in Part 772 of the Export Administration Regulations of the U.S. Depart-

ment of Commerce ("EAR")), received from KP, or export, re-export, or release, directly or indirectly, any direct product of such technology, software, or software source code (as defined in Part 734 of the EAR), to any destination or country to which the export, re-export or release of the technology, software, software source code, or direct product is prohibited by the EAR. Buyer furnishes the assurances provided herein to KP in compliance with Part 740 (Technology and Software Under Restriction) of the EAR.

14.2 Buyer further agrees to obtain any necessary export license or other documentation prior to the exportation or re-exportation of any product, technical data, software or software source code acquired from KP under this contract or any direct product of such technical data, software or software source code. Accordingly, Buyer shall not sell, export, re-export, transfer, divert or otherwise dispose of any such product, technical data, software or software source code directly or indirectly to any person, firm, entity, country or countries prohibited by US or applicable non-US laws. Further, Buyer shall give notice of the need to comply with such laws and regulations to any person, firm or entity which it has reason to believe is obtaining any such product, technical data, software or software source code from Buyer with the intention of exportation. Each party shall secure, at its own expense, such licenses and export and import documents as are necessary for each respective party to fulfill its obligations under this contract. If government approvals can- not be obtained, KP may terminate, cancel or otherwise be excused from performing any obligations it may have under this contract.

14.3 Any product export classification made by KP shall be for KP's internal use only and shall not be construed as a representation or warranty regarding the proper export classification for such product or whether an export license or other documentation is required for the exportation of such product. This Section 14 shall survive termination of this contract.

15. U.S. Government Contracts: If Kits are to be used in connection with a U.S. Government contract or subcontract, those mandatory clauses, except as noted below, of the applicable U.S. Government procurement regulations shall be incorporated by reference. Unless otherwise agreed upon in writing, certified cost or pricing data will not be provided and Cost Accounting Standards, Defective Pricing, and Audit requirements will not apply.

16. Assignment: This contract shall not be assignable by Buyer without KP's prior written consent. Any unauthorized assignment shall be null and void. KP may assign its rights and duties under this Agreement to any party at any time without notice to Buyer.

17. Governing Law: This contract shall be governed by and interpreted in accordance with the laws of the State of Texas, without reference to conflict-of-laws principles. If for any reason a court of competent jurisdiction finds any provision of this con- tract to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of this contract will continue in full force and effect. This contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, or by the Uniform Computer Information Transactions Act (UCITA). Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to this contract lies within courts located in the State of Texas and consents to venue in Dallas County, Texas. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and KP may seek injunctive relief in any United States or foreign court.

18. Order of Precedence. In the event of any conflict between this agreement and the Software License Agreement, with respect to Software, the applicable Software License Agreement shall prevail.

19. Entire Agreement: This contract and other information and warnings included in the package containing the Kit received by Buyer, and labels posted on the equipment in such package, constitutes the entire agreement between the parties relating to the sale of the Kits and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No prior representations or statements relating to the sale of the Kits made by any KP representative, which are not stated herein, shall be binding on KP. No addition to or modification of any provision of this contract shall be binding upon KP unless made in writing and signed by a duly authorized KP representative. No course of dealing or trade usage or course of performance shall be relevant to explain or supplement any term in this contract. These terms and conditions of this agreement shall prevail notwithstanding any different, conflicting or additional terms and conditions that may appear on any purchase order or other writing not expressly incorporated herein, including but not limited to data sheets, application notes and purchase order acknowledgements. The section headings contained in this contract are for reference purposes only and shall not affect in any way the meaning or interpretation of this agreement.

Last updated March 18, 2017