UMBRA SPACE SYSTEMS
TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale, inclusive of all attachments, exhibits, and schedules as may be identified by Umbra from time to time, (“Terms”) govern your (“Customer” or “you”) procurement of products and services (“Goods”) from Umbra Lab, Inc. (“Umbra”). Purchase of Umbra Goods are for Customer’s own internal business purposes or in its capacity as a public sector entity and may only be resold as an integrated component of a higher-level assembly. “Customer” refers to the entity ordering the Goods from Umbra as identified in an associated Quote or Order. Umbra and Customer are each referred to as “Party” and collectively as “Parties”. If Customer wishes to resell Goods then alternative terms and conditions apply.
1. ORDERING PROCESS
1.1 Unless otherwise agreed, prices stated on a quote or proposal from Umbra (“Proposal”) are effective until the expiration date of the Proposal and may change, due to shortages in materials or resources or increases in the cost of components, manufacturing or other factors beyond Umbra’s reasonable control up to the earlier of the expiration date of the Proposal or Customer issuance of an Order based on such Proposal. To procure Goods listed on a Proposal, Customer must issue a corresponding Order to Umbra. Orders are subject to Umbra acceptance. Umbra may cancel Orders due to pricing, typographical, or other errors in the Proposal.
1.2 Umbra may revise its Goods, including referenced part numbers or designations, including after Customer places an Order but prior to Umbra’s shipment or performance. As a result, Goods Customer receives may differ from those ordered, provided the Goods meet or exceed the specifications as per the documentation of the originally ordered Goods.
1.3 Transactions under these Terms may involve Affiliates. With respect to Customer, “Affiliate” means any other entity that controls, is owned by, controlled by or under common ownership or control with Customer. “Control” means more than 50% of the voting power or ownership interests.
1.4 Each Order is subject to, and is incorporated into, these Terms. Except as agreed to by Umbra in writing, Umbra expressly rejects any additional terms and conditions that may be included in an Order provided by Customer and Customer agrees that any additional or pre-printed terms in Customer’s Order are not applicable to any Order placed with Umbra.
1.5 In case of any conflict, the following order of precedence will apply: (a) the Order, where the Parties explicitly agree to deviate from these Terms for the respective Order; (b) any additional terms, such as product documentation, specific to Goods and as may be provided by Umbra; and (c) these Terms.
2. DELIVERY
2.1 For delivery destinations within the United States of America, unless otherwise set forth in an accepted Order, Umbra will arrange for shipment of Goods to Customer’s designated ship-to address indicated in an Order using a carrier selected by Umbra. Quotes will include details on shipping costs. Risk of loss in Goods transfers to Customer upon delivery. Unless otherwise indicated, Umbra will arrange, at its discretion, for provision of transit insurance and include costs of such insurance in its Quote. Subject to any retained security interest of Umbra, title to Goods passes to Customer upon Customer payment to Umbra for such Goods.
2.2 For delivery to destinations outside of the United States of America, unless otherwise specified in an accepted Order, delivery shall be EXW Umbra’s place of manufacture, as described in INCOTERMS 2020. Risk of loss in Goods transfers to Customer upon Umbra making the Goods available at
Umbra’s site for collection by Customer’s selected shipping provider. Subject to any retained security interest of Umbra, title to Goods passes to Customer upon Customer payment to Umbra for such Goods.
2.3 Umbra will make reasonable efforts to meet delivery dates specified in an Order; however, any such dates are estimates only. Umbra may make partial deliveries and will provide reasonable notice to Customer of changes in estimated delivery dates. Customer must notify Umbra within thirty (30) days if any Goods included in an Order are missing, incorrect, or damaged. Goods are deemed accepted upon delivery. Damage or malfunction following delivery is subject to the Umbra warranties described in Section 11.
2.4 If Umbra’s performance or delivery is prevented or delayed by any act or omission of Customer, Umbra is not deemed to be in breach of any provision of this Agreement. Customer is responsible for any expenses, loss, or damage incurred by Umbra as a result and will reimburse Umbra any additional costs incurred by Umbra due to delays in delivery caused by Customer, including costs of storage and insurance.
2.5 If applicable, Umbra shall apply to the U.S. Government for authority to export the Goods. Customer shall be responsible for obtaining from any other government any required permission to import the Goods. Customer shall, upon Umbra request, use its best efforts to assist Umbra in obtaining U.S. Government export licenses. Customer assumes the risk that such export licenses and permission shall be obtained and shall remain in effect. If any required export license or permission is not obtained or is withdrawn or not extended, Umbra may terminate the order or affected portion of such order without further obligation or liability.
3. INVOICE AND PAYMENT
3.1 Umbra may issue an invoice for any initial payment on the date an Order is accepted, and an invoice for the balance of the Order price on the date of delivery of Goods. If an Order sets forth alternative payment terms, such as milestone or interim payments, Umbra will invoice as described in the Order. If Customer causes a delay in delivery, Umbra, at its option, may issue its invoice at any time on or after the scheduled delivery date.
3.2 Payments of sums due to Umbra under an Order must be made in U.S. dollars by ACH or wire transfer of immediately available funds to an account designated by Umbra on NET 30-day terms from the date of Umbra’s invoice. All payments are non-refundable and Customer may not set off, discount, or otherwise reduce or refuse to pay any amounts due to Umbra under an Order. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law until all payments are made in full. Customer will reimburse Umbra for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
3.3 If Umbra believes Customer’s financial condition does not justify delivery on the terms of payment above, Umbra may require full or partial payment in advance, require provision by Customer of letters of credit or similar security, stop delivery of Goods in transit, reclaim Goods upon demand or terminate any order or any portion thereof.
3.4 Umbra retains a purchase money security interest in the Goods and in any sums due or paid to Customer by any third party associated with the Goods, until Customer has paid the purchase price to Umbra in full. Customer shall cooperate with Umbra in taking whatever actions are reasonably necessary to perfect and maintain Umbra’s security interest. If Umbra requests, Customer shall insure the Goods in the full amount of the security interest against all loss, damage or destruction until the security interest is removed.
3.5 The amounts due under each Order are exclusive of, and Customer will pay for all value added tax (VAT), excise, gross receipts taxes, sales taxes, and similar withholding or governmental fees and levies resulting from Customer’s purchase. If Customer qualifies for a tax exemption, Customer must notify Umbra of such exemption at the time of Order placement and provide Umbra with a valid certificate of exemption or other appropriate proof of exemption within 1 week of Customer’s Order. Customer shall indemnify, hold harmless and, at Umbra’s option, defend Umbra at Customer’s expense against all liability for any taxes or assessments, plus any interest, fines and penalties, assessed by any governmental entity, which are not paid in reliance upon an exemption certificate or a representation by Customer that they are not applicable to the sale.
4. CUSTOMER OBLIGATIONS
4.1 Customer agrees that it will obtain all necessary rights, permissions, and consents associated with (a) technology or data of any kind that Customer may provide to Umbra or otherwise use in conjunction with the Goods; and (b) non-Umbra software or other components that Customer directs or requests that Umbra use with, install or integrate as part of the Goods. Customer will defend and indemnify Umbra against any third-party claim resulting from a breach of the foregoing.
4.2 No transfer of ownership of any intellectual property rights will occur under these Terms. Customer receives a non-exclusive, irrevocable, fully paid-up license to use Umbra’s intellectual property solely as embedded or incorporated into the Goods. In addition to the remaining obligations of Customer under these Terms, Customer agrees not to: Violate reasonable terms of use as may be provided by Umbra or otherwise use the Goods in violation of law; Copy, modify, disassemble, decompile, reverse engineer, or otherwise attempt to derive the design, structure, composition, software, algorithms, or any underlying technology of the Goods, in whole or in part, or authorize a third party to do so; Sell, resell, license, sublicense, rent, or lease the Goods to third parties; Analyze, test, or inspect the Goods for the purpose of creating or building a similar or competing product or derivative work, or authorize a third party to do so; Transfer or assign any of Customer’s rights hereunder; or Publicly reference the use of, or its business relationship with, Umbra without express written consent of Umbra.
4.3 Customer shall promptly notify Umbra in writing upon becoming subject to any governmental or criminal investigation or proceeding alleging fraud, corruption, or other serious misconduct, and shall notify Umbra of any resulting conviction or deferred prosecution agreement.
4.4 Customer shall comply with all applicable environmental, health, and safety requirements when using the Goods or accessing Umbra sites or systems, including by providing certifications, or other compliance information reasonably requested by Umbra.
5. SOFTWARE
Notwithstanding any other provisions herein, any third party software, to include without limitation, firmware, object code, source code, machine code, operating systems, BIOS’, microcode, and similar forms of code or applications (“Software”) contained within or accompanying Goods acquired by Customer are subject to the standard terms and license, services, warranty, indemnity, and support terms of the third-party manufacturer/supplier of such Software, or an applicable agreement between Customer and such manufacturer/supplier. Customer agrees to adhere to such terms and that it shall contact such third party directly for support or other Software-related issues. Umbra is not responsible for Software and disclaims all warranties and liability whether express, implied, statutory, or otherwise, including any warranties of merchantability, fitness for a particular purpose, title, or non-infringement related to Software to the fullest extent allowable under applicable law.
6. TERMINATION
6.1 Unless otherwise set forth in an Order, if Customer cancels an Order, Umbra reserves the right to charge the full Order price as liquidated damages without having to prove further loss. The parties agree that such amount constitutes a reasonable estimate of the damages likely to be incurred by Umbra as a result of such cancellation and is not intended as, and shall not be construed as, a penalty. Umbra may cancel an Order in respect of all or any part of the Goods by giving Customer at least sixty (60) days’ notice at any time prior to the estimated delivery date, in which event Umbra’s sole liability will be to repay Customer any part of the price which Customer paid in advance for the Goods for which Umbra has exercised its right of cancellation.
6.2 Without limiting any other remedy, Umbra may terminate or cancel an Order without liability by giving Customer notice at any time if (i) Customer makes a voluntary arrangement with its creditors, becomes bankrupt or becomes insolvent or is subject to an administration order or goes into liquidation; (ii) a creditor takes possession of, or a receiver or judicial factor is appointed over, any of Customer’s property or assets; (iii) Customer ceases, or threatens to cease, to carry on business; or (iv) Customer is in breach of any of the conditions of an Order and fails to remedy such breach within 30 days following the receipt of written notice of such from Umbra.
Termination of the Terms will not affect the accrued rights of Umbra nor Umbra’s other rights and remedies available in law or equity.
7. INDEMNIFICATION
7.1 Indemnification by Umbra. Subject to the remainder of this provision, Umbra agrees to defend Customer from and against any third-party claim to the extent that such claim alleges that the Goods, as delivered by Umbra, or Customer’s use of the Goods, as intended by Umbra pursuant to Umbra’s published documentation and written instruction, infringe or misappropriate that third party’s intellectual property rights under validly existing and registered United States patents or copyrights (“IP Claim”) and will indemnify Customer from and against damages, attorney fees and costs finally awarded against Customer under an IP Claim. In the event of an IP Claim or where Umbra otherwise becomes aware of an actual or potential infringement or misappropriation of a US patent or copyright by the Goods Umbra may, at its sole discretion: (i) procure the rights to allow for Customer’s continued use of the Goods; (ii) modify the Goods to be non-infringing; or (iii) refund the price for the Goods and Umbra shall have no obligation to indemnity Customer if Customer elects not to allow Umbra to take the foregoing remedial actions. Notwithstanding the foregoing, Umbra shall have no obligation under this paragraph for any infringement claim based on (w) Umbra’s compliance with Customer’s specifications or designs, (x) the use or sale of the Goods for other than their intended purpose as described in Umbra documentation, (y) modification of the Goods by you or a third party; or (z) the use of the Goods in combination with other items, materials, hardware, software, or data when the infringement would not have occurred absent the use of the Goods in such combination.
7.2 Indemnification by Customer. Customer agrees to indemnify and hold harmless Umbra and its employees, owners, officers, affiliates and subcontractors from and against any loss, claim, suit, damage, liability or expense (including attorneys’ fees and other expenses of investigating or defending claims) resulting from (i) any representation made by Customer to any third party relating to the Goods; (ii) any claim of any third party, whether or not such third party deals with or through Customer (including customers or insurers) or any agency or other governmental authority of Customer’s country related to use of the Goods; (iii) improper or unauthorized use of the Goods by Customer or any third party; (iv) any claim for personal injury or death occasioned by Customer’s default, use, or mis-use of the Goods; (v) third party claims arising under sections (x), (y), or (z) in the preceding paragraph; or (vi) any other claims relating to the Goods arising after the integration or attachment of the Goods to any other products or components.
7.3 The indemnified party shall give the indemnifying party prompt written notice of any claim, cooperate with the indemnifying party in defending the claim, and grant the indemnifying party sole control of the defense and settlement of the claim; however, Umbra may elect to control defense and settlement of any claims directly against Umbra. The indemnifying party shall not, without the indemnified party’s prior written consent, settle any claim or consent to the entry of any judgment unless it (i) includes an unconditional release of the indemnified party from all liability arising out of the claim; (ii) does not contain any admission of wrongdoing on behalf of the indemnified party; and (iii) does not contain any order (other than the fact or amount of payment) that restrains the business of the indemnified party. The remedies in this section are the exclusive remedies for any third-party claim of infringement of intellectual property rights.
8. LIMITATION OF LIABILITY
THE WEBSITE, INCLUDING THE CONTENT, UGC, AND UMBRA INFORMATION FOUND THEREON ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY CONCERNING THE INFORMATION, SERVICES, OR PRODUCTS OFFERED OR PROVIDED THROUGH OR IN CONNECTION WITH THE SITE AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. IN NO EVENT WILL UMBRA, ITS SERVICE PROVIDERS OR ITS PREFERRED PARTNERS BE LIBLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE USE OF THE SITE OR WITH THE DELAY OR INABILITY TO USE WEBTHE SITE, FOR ANY INFORMATION (INCLUDING UMBRA INFORMATION), SOFTWARE PRODUCTS, AND SERVICES OBTAINED THROUGH THE WEBSITE, OR OTHERWISE ARISING OUT OF THE USE OF THE WEBSITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF UMBRA, ITS SERVICE PROVIDERS, OR PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS UMBRA, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM AND AGAINST ANY AND ALL THIRD-PARTY LIABILITIES, LOSSES, DAMAGES, CLAIMS, DEMANDS, COSTS, OR EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) RESULTING FROM YOUR USE OF THE WEBSITE OR YOUR VIOLATION OF THESE TERMS.
9. WARRANTIES
9.1 Umbra warrants that on the date of delivery, the Goods meet applicable specifications and are free from material defects in materials and manufacture. Unless otherwise terminated as set forth herein, this warranty shall apply to defects that appear within 90 days from the date Goods are delivered. Replaced Goods are warranted as new. Warranty repairs performed by Umbra are warranted hereunder for the remainder of the original warranty period applicable to the repaired Goods. The sole and exclusive remedy for defective Goods shall be repair or, at Umbra’s reasonable determination, replacement, credit, or refund as provided in this warranty. To the extent Goods include quality assessment reports or testing reports such reports are specific to the purchased Goods and do not provide Customer the right to request broader review of product testing history.
9.2 Goods are fragile, easily damaged and must be handled with extreme care. Therefore, this warranty does not cover damage occurring during shipment, storage, handling, installation, or testing. Additionally, this warranty does not cover damage caused by your modification, alteration, disassembly, abuse, accident, application or operation other than for the Goods’ intended purpose, failure to perform maintenance or repairs, extreme environmental condition, the malfunction of another component or part of any device in which the Goods are installed or with which the Goods interface, or to Goods which have been modified or repaired other than by Umbra. Warranty obligations terminate upon attachment or integration of Goods into a launch vehicle or similar assembly or upon launch or placement of the Goods into space and Umbra shall have no further obligation with respect to such Goods.
9.3 Warranty Claim Procedure
A. Customer shall give Umbra written notice of a warranty claim within ten (10) business days of its discovery of the claimed defect. Customer shall allow Umbra or Umbra’s representatives to examine the Goods claimed to be defective and shall furnish all reasonably available information concerning the circumstances under which the defect became apparent.
B. If Umbra determines that it is practical and preferable for Goods to be returned to Umbra for examination or warranty adjustment, Umbra will issue Customer a return authorization number and prepaid return shipping label. The return authorization number shall be placed conspicuously on the outer package shipping label. Returned Goods shall be accompanied by a written description of the reasons for return, the circumstances under which the defect became apparent and the date the defect occurred. Customer shall reimburse Umbra for costs of testing and if the returned Goods are found to not be defective or defects are not covered by this warranty. Customer must remove all Customer proprietary, sensitive, export controlled, personal, or other restricted information from Goods prior to returning to Umbra. Umbra is not responsible for any such data on returned Goods.
C. If Goods are found not to be defective, no warranty adjustment shall be made. If the Goods have been returned to Umbra, Umbra shall ship them back to Customer and invoice Customer for the costs of testing and return shipment. The risk of loss, damage and destruction of such Goods shall remain with Customer except while such Goods are at Umbra’s facility and under Umbra’s control.
D. If Goods are found to contain a defect which is not covered by this warranty, Umbra shall notify Customer of the estimated cost of repair or the price of a replacement. If the Goods have been returned to Umbra and Customer does not provide instructions as to disposition within thirty (30) days from its receipt of the estimated repair costs, Umbra shall ship the Goods back to Customer and invoice Customer for the costs of testing and return shipment. The risk of loss, damage and destruction of such Goods shall remain with Customer except while such Goods are at Umbra’s facility and under Umbra’s control.
E. If Goods are found to be defective and the defect is covered by this warranty, Umbra shall, at its option and at no charge to Customer, repair or replace the Goods or offer the Customer the choice of a refund or credit in the amount of the purchase price paid for the defective Goods. If the Goods have been returned to Umbra, following the repair or replacement, Umbra shall ship the Goods back to Customer at Umbra’s expense. The risk of loss, damage and destruction of such Goods shall remain with Umbra until the Goods or a warranty replacement is received by Customer.
9.4 Warranty Disclaimer
THIS WARRANTY IS THE EXCLUSIVE WARRANTY GIVEN BY UMBRA ON THE GOODS AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS, CONTRARY OR ADDITIONAL REPRESENTATIONS, WHETHER ORAL OR WRITTEN. UMBRA HEREBY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE; ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE; ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF UMBRA; ANY LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY PROPERTY OF CUSTOMER OR A THIRD PARTY; AND OF PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT. THE TERM OF ANY IMPLIED WARRANTY WHICH APPLICABLE LAW DOES NOT PERMIT UMBRA TO DISCLAIM IS LIMITED TO THE TERM OF THE EXPRESS WARRANTY GIVEN HEREIN. CUSTOMER IS RESPONSIBLE FOR DETERMINING SUITABILITY OF GOODS FOR CUSTOMER’S PURPOSES AND DETERMINING WHETHER OR NOT SUCH GOODS MEET REGULATORY OR OTHER STANDARDS OF USE OR OPERATION IN CUSTOMER’S LOCATION AND PLANNED LOCATION OF USE OF THE GOODS.
10. FORCE MAJEURE
Neither Party will be liable for performance delays nor for non-performance caused by a Force Majeure event, except for payment obligations. If such delay or failure lasts longer than ninety (90) days, either Party may immediately terminate without liability to the other for such termination, in whole or in part, the relevant Order by giving written notice to the other Party. “Force Majeure Event” refers to circumstances beyond a Party’s reasonable control including, without limitation, act of God, war, riot, civil commotion, terrorist acts, malicious damage, governmental or regulatory actions, accident, breakdown of plant or machinery, local or national emergency, explosions, fire, natural disasters, severe weather or other catastrophes, epidemics/pandemics, import/export/customs process problems affecting supplies ordered by Umbra, shortages in materials, failure of a utility service or transport network, embargo, strike, lock out or other industrial dispute (whether involving Umbra’s workforce or any other party), or any act or omission of Umbra’s suppliers or subcontractors.
11. PROPRIETARY INFORMATION
Customer shall keep in confidence and shall take reasonable and appropriate measures to safeguard any data, such as specifications, drawings, software and information (including, without limitation, designs, reports, software documentation, manuals, models, process information and the like), revealed by Umbra and containing proprietary information marked or identified as proprietary. Such data shall not be duplicated, disclosed to others or used other than with respect to a purchase from Umbra without Umbra’s written permission. This obligation shall survive the expiration, cancellation or termination of any Order subject to these Terms. Any other provision of these Terms notwithstanding, Umbra may obtain injunctive relief to prevent Customer’s breach of these Terms. If a separate non-disclosure agreement (NDA) is in effect between the parties, such NDA shall apply to the disclosure and handling of Umbra’s confidential or proprietary information; however, to the extent there is a conflict between the NDA and these Terms, the terms of the NDA shall govern.
12. EXPORT RESTRICTIONS AND COMPLIANCE WITH LAW
This Agreement and the relationship between you and Umbra are governed by the laws of the State of California without regard to any conflict of law provisions. You agree to the personal and exclusive jurisdiction and venue of the state and federal courts located in Santa Barbara, California in all disputes arising out of or relating to these Terms of Use, Website, and Website Content.
12.1 Customer agrees to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to Customer or Customer’s use of the Goods, including without limitation, the Global ABAC Regulations and the Sanctions and Export Control Laws. For purposes of this Agreement, the “Global ABAC Regulations” means the Foreign Corrupt Practices Act (FCPA), as amended, the UK Bribery Act 2010, or any comparable law in any country applicable to the Goods or to the Customer or Umbra; and the “Sanctions and Export Control Laws” means any law, regulation, statute, prohibition, or similar measure applicable to the Goods and/or to Customer or Umbra relating to the adoption, application, implementation and enforcement of economic sanctions, export controls, trade embargoes or any other restrictive measures, including without limitation, (i) the International Traffic in Arms Regulations (“ITAR”) administered by the U.S. Department of State and the Export Administration Regulations (“EAR”) administered by the U.S. Department of Commerce (including the antiboycott regulations administered by the Office of Antiboycott Compliance); (ii) United States customs regulations administered by the U.S. Customs and Border Protection; (iii) the International Emergency Economic Powers Act, as amended; the Trading With the Enemy Act, as amended; and the statutes, Executive Orders, and regulations administered by U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”); and (iv) the EU Dual-Use Regulation, Council Regulation (EC) No 428/2009.
12.2 Customer’s use of the Goods may also be subject to other laws. Customer may not use the Goods or otherwise export, re-export, transfer or release the Goods except as authorized by the Sanctions and Export Control Laws and any other applicable United States law and the laws of the jurisdiction in which Goods were obtained, received or used. In particular, but without limitation, Customer agrees that it will not export, re-export, transfer, release or otherwise make available the Goods, directly or indirectly, to or from any country, region, individual or entity in violation of, or for purposes prohibited by Sanction and Export Control Laws, including for prohibited end users or end uses including without limitation proliferation-related and certain military-intelligence end users and end-uses.
12.3 By purchasing the Goods, Customer represents and warrants that neither it nor any of its employees, agents, officer, owners, or directors are or are engaged in any transaction or other business (i) in violation of Sanctions and Export Control Laws; (ii) with any entity (A) appearing on the List of Specially Designated Nationals and Blocked Persons, the Foreign Sanctions Evaders list, or the Sectoral Sanctions Identifications List maintained by OFAC, or owned or controlled by such an entity or individual or group of entities or individuals, (B) appearing on the Denied Persons List, Entity List, or Unverified List maintained by the U.S. Department of Commerce Bureau of Industry and Security (“BIS”), (C) appearing on the Debarred List of the U.S. Department of State Directorate of Defense Trade Controls (“DDTC”), or (D) persons identified by any other list of sanctioned or restricted parties for export, import, sanction, government contracting, or related reasons administered by the U.S. government or any other government in which the Customer conducts business; (iii) in violation of the antiboycott prohibitions, or failed to comply with the reporting requirements, of the Antiboycott Regulations (15 C.F.R. Part 760) and the Tax Reform Act of 1976 (26 U.S.C. § 999); or (iv) with any entity organized, incorporated, established, located, resident in, or a citizen, national, or the government, including any political subdivision, agency or instrumentality thereof, of Cuba, Iran, North Korea, Syria, Donetsk People’s Republic (“DNR”), Luhansk People’s Republic (“LNR”) or the Crimea regions of Ukraine, or any other country or region embargoed or subject to substantial trade restrictions by a governmental authority in any jurisdiction in which the Customer is organized, located, or operates.
12.4 Customer agrees that it will not use the Goods for any purposes prohibited by United States or other applicable law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons. Customer agrees to comply with all applicable laws in connection with its use of the Goods, including data privacy laws. Customer agrees to provide Umbra with the assurances and official documents that Umbra may request periodically to verify Customer’s compliance with these Terms including, without limitation, an end use certificate or such other information as Umbra may request to determine eligibility for and compliance with Sanctions and Export Control Laws. Customer agrees that Umbra shall have no obligation to provide any Goods where Umbra believes the provision of such Goods could violate Sanctions and Export Control Laws.
13. UNITED STATES GOVERNMENT PURCHASES
The Goods are “commercial products” as that term is defined by FAR 2.101. If Customer is a U.S. Federal Government Agency (“Government Customer”), Umbra provides the Goods, including any related technical data, in accordance with the following: The Government Customer acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and the software customarily provided to the public as defined in these Terms. In addition, DFARS 252.227-7015 (Technical Data –Commercial Items) applies to technical data acquired by DoD agencies, except under GSA schedule contracts. If the Government Customer has a need for rights not conveyed under the terms described in these Terms or the Goods are otherwise deemed not to be commercial products, it must separately negotiate with Umbra for such rights.
14. GENERAL
14.1 Waiver. Umbra’s election not to enforce any provision hereof or of any order issued hereunder shall not be construed to be a continuing waiver and Umbra reserves the right subsequently to enforce such provision unless it agrees otherwise in writing.
14.2 Modification. Any modification or departure from these Terms, including an agreement to accept Customer’s terms and conditions of purchase, shall be valid only if in writing and signed by an authorized representative of each Party expressly stating that such terms take precedence over or otherwise modify these Terms.
14.3 Choice of Law. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this agreement. Except as otherwise expressly set forth in Section 13.4 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that Customer and Umbra are not required to arbitrate will be the state and federal courts located in Los Angeles, California and you and Umbra each waive any objection to jurisdiction and venue in such courts.
14.4 Dispute Resolution. Any dispute arising out of, relating to, or concerning these Terms (or any document comprising these Terms) shall, as a condition precedent to any arbitration or court proceeding, be mediated by the parties. The parties shall mutually agree upon a mediator and shall schedule and conduct mediation at a mutually convenient time and place. Each party shall bear its own costs, fees and expenses associated with such mediation, except that the parties agree to split equally the costs and expenses of the mediator and the conduct of the mediation itself. Any dispute which is not resolved by mediation and which arises out of, relates to or concerns these Terms, may be resolved by arbitration administered by the American Arbitration Association under its commercial arbitration rules (except that discovery shall be permitted in accordance with the Federal Rules of Civil Procedure), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. All arbitration hearings shall be conducted in Los Angeles, California. Each party will bear its own costs, fees, and expenses associated with any arbitration, except that the parties agree to split equally the costs and expenses of the arbitrator or panel and the conduct of the arbitration itself. If for any reason the dispute is not resolved by arbitration, the parties agree that any civil action to decide such dispute shall be brought in the state and federal courts located in Los Angeles, California. Notwithstanding any provision to the contrary, Customer agrees to bring any claim or dispute against Umbra (including payment disputes) within one year after the occurrence of the event giving rise to such dispute. CUSTOMER AND UMBRA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate any third-party claims with either party’s claims and may not otherwise preside over any form of a representative or class proceeding.
14.5 Assignment. Customer may not assign, transfer, or novate any of its rights or obligations under an Order or these Terms without Umbra’s prior written consent, which shall not be unreasonably withheld.
14.6 Notices. All notices must be in writing transmitted to the addresses identified in an Order or a Quote, respectively, either by overnight delivery courier with evidence of receipt or email with confirmed receipt.
14.7 Relationship of the Parties. The Parties are independent contractors for all purposes of these Terms and neither these Terms nor any Order or Quote creates any agency, partnership, or joint venture. There are no third-party beneficiaries of these Terms or any Order.
14.8 Entire Agreement. These Terms constitute the entire agreement between Customer and Umbra and govern Customer’s purchase and use of the Goods, superseding any prior agreements with respect to the same subject matter between Customer and Umbra. If any part of these Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The following sections of these Terms survive termination or expiration: 1; 3; 4; 5; 7.2; 7.3; 8; 11; 12; 14.3; 14.4.