CUSTOMER TERMS & CONDITIONS
UPDATED: June 23, 2023
TERMS AND CONDITIONS OF SALE
All quotations, products, and services provided by Black Diamond Advanced Technology, LLC
("BDATECH") or its representatives to any customer, distributor, reseller, original equipment
manufacturer, end-user or other purchaser (“Buyer”) are furnished only on the terms and
conditions stated herein. By ordering, paying for, and accepting delivery of products and/or
services (“Products”) from BDATECH, Buyer agrees to and accepts these terms and conditions and
agrees that, unless modified by separate negotiated agreement as provided below, these terms and
conditions (“Terms”) together with the item, quantity, price, and similar terms as set out in
BDATECH’s quotation, order acknowledgement and/or invoice, constitute the entire agreement of
the parties (“Agreement”), superseding all other communications and documentation. BDATECH
hereby expressly rejects any different or additional terms, preprinted or otherwise, contained or
referenced in any purchase order or other documentation furnished by Buyer, whether before or
after delivery of Products, even if receipt thereof is acknowledged by signature or otherwise. No
waiver or modification of these Terms shall be binding on BDATECH unless set out in a
separate negotiated agreement signed by an authorized officer of BDATECH
1. QUOTATIONS & PRICES.
(a) All prices are based on the delivery terms herein and, unless otherwise specified by
BDATECH in a separate written agreement or quotation, are subject to change without notice.
(b) Quotations are valid for 30 days, unless otherwise specified therein, and may be changed or
withdrawn at any time prior to acceptance. Quotations to non-U.S. Buyers are solicitations for offers
to purchase. Clerical or typographical errors are subject to correction. Quoted prices and estimated
lead-times are valid only for the quantities, terms, and payment schedule specified.
(c) Prices stated do not include applicable local, state, federal sales, use, value added, goods and
services, excise, property, customs, stamp, documentary, import/export, or other taxes, tariffs, fees,
duties, withholdings or like charges, domestic or foreign. The amount of any sales, use or similar tax
applicable to the sale of the items herein or to the use of such goods by the Buyer (except taxes
based on BDATECH’s income) shall be paid by the Buyer, or in lieu thereof the Buyer will provide
BDATECH with a tax exemption certificate acceptable to the taxing authorities or a representation
by the appropriate, duly authorized officer of the Buyer that Buyer shall self-assess such taxes and
be solely responsible for payment of such taxes.
(d) MINIMUM ORDER: BDATECH will not accept orders which do not comply with these
minimum order limits:
(i) Limit 1: Orders less than $3,000.00 (USD) require advance payment in the form of credit
card, certified check, money order, ACH or wire transfer.
(ii) Limit 2: Absolute minimum for any single order is $1,000.00 (USD) before any applicable
shipping and handling expenses and/or taxes.
2. ORDERS & ACCEPTANCE.
(a) To receive quoted pricing, Buyer’s purchase order must refer the applicable BDATECH
quotation by Quote Number and accept and agree to all Terms without modification. Orders must
be presented in writing and in machine readable format via email to Orders@bdatech.com and will
be considered accepted only when BDATECH expresses its acceptance in writing or ships the
(b) BDATECH reserves the right, without liability, to refuse any order, in whole or in part, or to
specify an alternate delivery schedule if orders from all sources exceed BDATECH's inventory or
ability to deliver. Where orders are placed, acknowledged, and/or invoiced by electronic
transmission, the data transmitted will be deemed “in writing” and “signed”; and any printout of
electronic transmissions maintained in the ordinary course of business will be considered an
“original” to the same extent and under the same conditions as other business records maintained
in documentary form. BDATECH shall be entitled to assume that persons placing orders on behalf of
Buyer (electronically or otherwise) are authorized to do so and to accept the terms and conditions
(c) Unless expressly agreed to by BDATECH and Buyer, partial shipments and partial invoicing
of such shipments to Buyer shall be allowed without liability or penalty.
3. CHANGE & CANCELLATION.
(a) Except where BDATECH has expressly agreed otherwise in writing, all orders are NON-CANCELLABLE and NON-RETURNABLE, and any cancellation will be subject to payment of
cancellation charges as determined by BDATECH, which may include, but are not limited to, charges
for raw material, work in process and finished goods applicable to the order, together with
applicable overhead and allowance for profit.
(b) Any changes requested by Buyer must be submitted in writing to BDATECH at least ninety
(90) days in advance of the scheduled delivery date and are subject to written acceptance by the
Chief Financial Officer of BDATECH. Costs and/or delays resulting from such changes will be solely
determined by BDATECH and shall be binding upon Buyer.
(c) BDATECH may immediately cancel or suspend performance of any order if Buyer fails to
meet any of its obligations herein.
(a) For customers with approved credit, terms are NET 30 days from date of invoice by
BDATECH. For customers without approved credit, terms are cash in advance or provision of a
letter of credit acceptable to BDATECH in its sole discretion in advance of order acceptance.
(b) Credit terms, including the acceptance of letters of credit, if applicable, require the written
approval of BDATECH’s Director of Finance and are subject to an annual renewal of such approval.
Notwithstanding credit approval, BDATECH reserves the right to modify payment terms or require
prior payment, letter of credit, or COD when, in the opinion of BDATECH, Buyer’s financial
condition or previous payment record so warrants.
(c) Deposits or similar advance payments, if any, are non-refundable and no discount for early
payment is authorized.
(d) Visa, MasterCard, Discover and American Express are accepted subject to a service charge of
4.0% above the invoice amount.
(e) Payment terms will not be affected by any delay in delivery, installation or acceptance;
provided, however, that if shipment is delayed due to Buyer’s acts or omissions, payment will be
due on the scheduled shipment date, and Products will be stored at Buyer’s expense and risk for the
duration of such delay. Partial shipments are billed as made and payable on the terms above.
(f) If Buyer is delinquent in any payment due, BDATECH may exercise any and all available
remedies, including set off, and may suspend production and/or institute credit hold procedures for
all pending orders. A service charge (not to exceed 1.5% per month) may be charged on all past due
(g) If BDATECH deems it necessary to refer an account to an agent or attorney for collection, all
costs and expenses of collection (including, without limitation, reasonable attorneys’ fees) will be
charged to Buyer’s account, up to the maximum allowed by law.
(h) In the event of any voluntary or involuntary bankruptcy or insolvency proceeding involving
Buyer, BDATECH shall be entitled to cancel any order(s) then outstanding and receive
reimbursement for cancellation charges as provided above.
5. PACKAGING & MARKING.
BDATECH will provide packaging and marking in accordance with
commercial practices at the quoted prices. BDATECH reserves the right to adjust the quoted price
for any unique or special requirements requested by Buyer.
6. DELIVERY & INSPECTION.
(a) For domestic shipments, all deliveries are ExWorks (Incoterms 2020). Buyer shall bear all
risk and expense for delivery of Products and, at its option may select the carrier, insurance and
method of shipment. BDATECH will make such selections if Buyer fails to do so at least five (5) days
prior to shipment, and any shipping contracts made by BDATECH will be for Buyer’s account and
invoiced to Buyer in addition to the product price.
(b) For international shipments, delivery shall be either ExWorks or FCA-Chandler (Incoterms
2020), as specified in BDATECH’s order acknowledgment. BDATECH will use its forwarder to clear
the shipment for export under its own license then turn the shipment over to Buyer’s forwarder for
shipment onward at Buyer’s expense and risk.
(c) Title to the material shipped and all risks of loss pass to Buyer upon delivery to carrier or
forwarder as described above. If not previously accepted, receipt of delivery by or on behalf of
Buyer will constitute acceptance of these Terms.
(d) BDATECH will endeavor to deliver accepted orders promptly; it is understood, however,
that dates indicated for delivery or performance are approximate only, and BDATECH shall have no
liability for any failure to perform within such dates.
(e) Buyer must inspect all items upon arrival and provide written notice to BDATECH, within
thirty (30) days of any claim for shortage or other nonconformance. If Buyer fails to give timely
notice, all items will be deemed accepted and any right of rejection will be waived. Use or resale of
products in any manner following delivery will also constitute acceptance by Buyer. Any claim for
loss or damage in transit should be made directly to the delivering carrier.
7. LIMITED WARRANTY.
BDATECH’s LIMITED WARRANTY is attached hereto and incorporated herein by reference, and may also be found here.
TO THE FULL EXTENT ALLOWED BY LAW, THE WARRANTY AND REMEDIES IN BDATECH’S
LIMITED WARRANTY ARE EXCLUSIVE AND EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES
AND REMEDIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
8. RETURN AUTHORIZATION.
(a) All returns (including returns for examination or repair under Warranty) require prior
authorization from BDATECH in the form of a Returned Material Authorization (“RMA”), which may
be obtained from BDATECH customer service at www.bdatech.com/suppport, or by calling 1-855-
855-BDAT . The RMA number is valid for seven (7) days from issuance and should be clearly
marked on the exterior of the shipping container and all enclosed shipping documents. Products
returned without an RMA number may be returned to Buyer freight collect.
(b) Unless agreed by BDATECH in writing, all sales are final. For non-Warranty repairs,
issuance of an RMA requires a Buyer purchase order (“PO”) upfront covering all charges associated
with the required repairs or service. A PO is also required for items under Warranty where Buyer
requests an expedited exchange; BDATECH will issue a credit against the PO upon receipt of
returned items per the RMA instructions. Returned items should be shipped by Buyer freight
prepaid and properly boxed to prevent damage in transit. BDATECH WILL NOT ACCEPT ANY C.O.D.
PARCELS. For Products covered by Warranty, return transportation will be prepaid by BDATECH.
For Products not under Warranty or returned with no fault found, return transportation will be
charged to Buyer.
9. PRODUCT SPECIFICATIONS & VALIDATION.
(a) All Products, when delivered by BDATECH, will substantially conform to BDATECH’s
published specifications; any other description of the Products is for the sole purpose of
identification and does not constitute a warranty of any sort. Any sample or model provided or used
in connection with any order is for illustrative purposes only and is not to be construed as a
warranty that the Products will conform to the sample or model.
(b) Buyer is responsible for validation of each specific Product application, as well as any use of
Products as a component of, physically installed on, or in conjunction with other products or
attachments not supplied or specified by BDATECH for such purpose, including all necessary testing
and qualification. Buyer shall put in place all necessary systems and protections to ensure that any
failure or defect relating to the Products will not result in any other or further liability, damage, or
(c) BDATECH’s responsibility shall in all events be limited to repair or replacement of any
defective Product(s) as provided in these Terms and shall not include any further liability for or
arising out of third party products with which the Products may be installed, combined, or used.
(d) BDATECH reserves the right to discontinue or change the design or specifications of any
product or component at any time and will use commercially reasonable efforts to notify Buyer of
any decision to discontinue products or any material change in specifications affecting form, fit or
(e) Unless expressly agreed and confirmed on the BDATECH quote and order
acknowledgement, all Products are commercial products as defined in 48 C.F.R. Section 2.101.
10. SOFTWARE & FIRMWARE.
(a) Any software provided by BDATECH including without limitation internal system code,
firmware, and/or operating system software (”Software”) is licensed, not sold, and is provided
upon the terms and subject to the conditions set forth in the applicable license agreement, the
terms of which will prevail over any contrary terms and conditions herein.
(b) Software produced entirely or in part by a third party and sold or provided by BDATECH
may also be subject to a third party license agreement and documentation provided by such third
(c) To the full extent allowed under applicable law, Buyer will be deemed to have agreed to the
terms of any applicable licenses by opening the media envelope or by installing or using the
Software or the Product in which it is installed.
(d) BDATECH or its suppliers or licensors own all such Software and, unless otherwise
provided in the applicable license agreement, BDATECH grants Buyer, only for so long as Buyer
owns the Product, a limited, personal, non-exclusive, non-transferable, license to use such Software
only in machine readable form and only as part of the normal operation and maintenance of the
Product with which it is provided.
(e) All rights, title and interest in and to the Software, any copies thereof, and all intellectual
property embodied therein, are and shall at all times remain the sole and exclusive property of
BDATECH or its licensors, as the case may be. No right to use, print, copy, display, transfer,
sublicense, distribute, sell, lease, rent or otherwise provide or disclose the Software, in whole or in
part, is granted hereby, except as expressly granted to Buyer herein or in any of the applicable
(f) Buyer may not copy or duplicate the Software, in whole or in part (other than one back- up
copy, bearing all original copyright notices, for solely for archival purposes) or transfer, sublicense,
distribute, sell, lease, rent, or otherwise provide or disclose any such Software, or any portion
thereof, to any third party, including without limitation any use over the internet or through an
application service provider model.
(g) Buyer shall not (i) circumvent any usage or other restrictions imposed by any license
manager, or modify, adapt, copy, recast, alter, compile, decompile, translate, or create derivative
works based on such Software or any portion thereof, or use the same for application development
purposes, or (ii) install such Software on any operating system other than the operating system
specified by BDATECH, for example, without limitation, through donation, leasing, or loan for use or
testing except as expressly provided in this Agreement, or in an applicable license agreement.
(h) Buyer’s license will terminate when Buyer discontinues use of the Product with which such
Software is provided unless Buyer has violated this Agreement or any applicable license agreement,
in which case Buyer’s license shall terminate immediately.
(i) BDATECH may install copy protection mechanisms (registration numbers and product
authorization keys), hardware keys (“blocks” and “dongles”), Local Area Network (“LAN”) metering
or policing systems, or other software or hardware items designed to prevent unauthorized
copying and use of the Software.
(j) Without limiting any express warranty obligations or other express obligations of BDATECH
to patch or repair Software as set forth in this Agreement, Buyer understands and acknowledges
that BDATECH is not required to maintain or upgrade the Software and Buyer is not entitled to any
maintenance or upgrades BDATECH creates or makes available in the future.
11. USE RESTRICTIONS & REQUIREMENTS.
(a) Certain BDATECH Products are Defense Articles as defined by the USML per 22 CFR 121
and are therefore Export Controlled under the International Traffic in Arms Regulations (“ITAR”).
All orders are subject to all applicable US Laws and regulations relating to the export of the
Products. Buyer shall not ship, transfer, export, or use the Products or any technical data or
technology relating thereto in violation of applicable export laws, regulations or restrictions, and
Buyer is responsible for compliance with all applicable state, local, foreign, and other laws,
regulations, codes, ordinances, recommendations and requirements of government authorities
pertaining to the purchase, license, installation, operation, maintenance, use, resale, or transfer of
Products supplied hereunder, including without limitation obtaining all required licenses, permits,
and registrations, it being understood that BDATECH shall have no obligation or responsibility and
makes no warranty of any kind regarding compliance with such requirements.
(b) Upon request from BDATECH, Buyer shall complete, sign, and submit an End User
Statement (“EUS”) on Buyer’s Company Letterhead as well as any other appropriate documents as
BDATECH may request to support export. Delay in providing a signed EUS or other documents for
each Order may result in delay of acceptance by BDATECH.
(c) BDATECH shall not be liable if any license, permit, or registration is delayed, denied,
revoked, restricted, or not renewed, and Buyer shall not thereby be relieved of any obligation to pay
BDATECH for the Products.
(d) Buyer may not:
(i) modify, alter, disassemble, or make any changes to any Products, or permit any third party
to do so, without BDATECH’s prior written consent;
(ii) import, export, sell, transfer, service, store, or otherwise handle, distribute or use any
Products supplied hereunder in any manner prohibited by applicable laws and regulations,
including all applicable export control laws, restrictions and regulations, or contrary to any written
warning or instruction given by BDATECH herein, in the product documentation, on its website, or
(iii) trans-ship, divert, re-export or otherwise dispose of any U.S.-origin goods or technology
obtained from BDATECH except as expressly permitted by applicable export control laws,
restrictions and regulations; or
(iv) make any representations or warranties on behalf of BDATECH as to the quality,
merchantability, fitness for a particular use, or other features of the Products.
(e) Buyer shall indemnify and hold harmless BDATECH from all liabilities, claims, losses,
damages, and expenses (including without limitation reasonable attorneys’ fees and expenses)
arising out of any breach of these terms and conditions, except as expressly limited herein.
12. INTELLECTUAL PROPERTY.
(a) Buyer acknowledges BDATECH’s products are based upon and embody various confidential
and/or proprietary technology, patents, copyrights, information, know-how, trade secrets, and
other intellectual property of BDATECH and its suppliers and licensors.
(b) BDATECH and its suppliers or licensors (as applicable) shall exclusively own all inventions,
information, technical data or drawings, copyrights, patents, trademarks, technology, processes,
methods, know-how, trade secrets, and other proprietary information of any kind used or
embodied in the Products and any documentation, drawings, designs, specifications, software, and
other items furnished by BDATECH, all intellectual property rights with respect thereto, and all
reproductions or derivatives thereof in any form (“Intellectual Property”).
(c) Buyer shall neither acquire nor claim any right, title, or interest in, and shall exercise
reasonable care to maintain the confidentiality of, BDATECH’s Intellectual Property, and shall use
the same solely as required for its authorized use of the Products supplied hereunder.
(d) Buyer may not directly or indirectly:
(i) copy, adapt, develop, reverse engineer, recast, compile, decompile, translate, or create
derivative works from any products or items provided by BDATECH, or permit any third party to do
(ii) remove, alter, or obscure any copyright, trademark, patent, logo, government restricted
rights, or other notices or legends from items provided by BDATECH; or
(iii) disclose or use BDATECH’s Intellectual Property for commercial purposes or in a manner
detrimental to BDATECH.
(e) Disclosures of BDATECH’s Intellectual Property may be made only to Buyer’s personnel
having a specific need to know and a written obligation to protect such information no less
restrictive than the restrictions herein, and Buyer will be responsible for any breach by its
(f) It is agreed that any breach of this Section may cause irreparable harm for which recovery
of damages would be inadequate, and that immediate injunctive or other equitable relief is
appropriate and available to prevent any violation, threatened or actual, of this Section, in addition
to any other remedies and without proof of actual damage.
(g) Buyer understands and agrees that BDATECH shall solely and exclusively own and have all
right, title and interest in and to all technical data, software, both object and source code, trade
secrets, mask works, processes, ideas, know-how, documentation, concepts, inventions,
improvements, discoveries and any other tangible or intangible property developed or prepared by
BDATECH pursuant to, or in anticipation of, a Buyer purchase order and all related copyrights,
patents, trade secret rights, mask work rights and other intellectual property rights.
(h) Without limiting the generality of the foregoing, Buyer agrees that all records papers,
reports, descriptive and pictorial material, printed or written technical information, drawings,
reproductions thereof, samples, models, and tools supplied or produced by BDATECH during
performance of the work under this Agreement with Buyer shall be considered BDATECH’s
property, the nature and contents of which shall not be disclosed to others without written
permission from BDATECH, and shall be surrendered by Buyer to BDATECH upon completion of the
related portions of such work, as may be requested.
13. EXCUSABLE DELAY.
BDATECH shall not be liable for any failure or delay in performing its
obligations hereunder as a result of (1) causes or factors beyond its reasonable control; (2) acts of
God or the public enemy, acts of any government agency or authority, fire, floods, unusually severe
weather, epidemics, quarantine restrictions, war, riot, strike, labor disturbance, freight embargo,
public disorder, delays in transportation, or car shortages; (3) inability to obtain necessary labor,
materials, components, or manufacturing facilities; (4) subcontractor or supplier delays which are
beyond the control of the subcontractor or supplier; or (4) acts of Buyer, its employees, contractors,
or agents. For delays resulting from such causes, performance will be correspondingly extended.
14. LIMITATION OF LIABILITY.
(a) BDATECH shall have no liability for any loss, claim or liability (including without limitation
any claim of infringement) to the extent such claim arises out of:
(i) Products manufactured or modified based on Buyer’s designs or specifications;
(ii) misuse, misapplication, improper or faulty installation, or use of Products in any manner or
for any purpose other than as specified by BDATECH;
(iii) modification, repair, or disassembly of Products other than by or as authorized by
(iv) use of Products in combination or conjunction with, physically installed on, or as a
component of non-BDATECH equipment, software, services, accessories, attachments, interfaces, or
consumables, unless supplied or approved by BDATECH.
(b) Any claim against BDATECH, regardless of form, arising out of the Products or transactions
to which these Terms apply must be brought within two (2) years after the cause of action arises or
performance hereunder is completed or terminated, whichever first occurs.
(c) IN NO EVENT WILL BDATECH BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER INDIRECT LOSSES, COSTS, OR DAMAGES,
HOWEVER CAUSED, WHETHER OR NOT FORESEEABLE, AND EVEN IF ADVISED OF THE
POSSIBILITY THEREOF (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING
RENDERED INACCURATE OR UNUSUABLE, OR LOSSES SUSTAINED BY BUYER OR ANY THIRD
PARTY FOR A FAILURE OF THE PRODUCTS TO OPERATE WITH ANY OTHER PRODUCTS OR
SOFTWARE PROGRAMS). BDATECH’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE FOR
ANY AND ALL CAUSES SHALL BE LIMITED TO THE PURCHASE PRICE PAID OR PAYABLE FOR THE
APPLICABLE PURCHASE ORDER. THESE LIMITATIONS WILL APPLY REGARDLESS OF THE FORM
OF ACTION, WHETHER CONTRACT, TORT, STRICT LIABILITY, INDEMNIFICATION, OR
OTHERWISE, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY
(d) FOR EUROPEAN CUSTOMERS, THE FOREGOING SHALL BE MODIFIED SOLELY AS
REQUIRED UNDER THE PRODUCT LIABILITY ACT, IT BEING AGREED THAT CLAIMS OVER AND
ABOVE THOSE UNDER THE PRODUCT LIABILITY ACT WILL NOT BE MADE BY BUYER AGAINST
BDATECH, AS MANUFACTURER, UNDER ANY THEORY OF LIABILITY, INCLUDING BY MEANS OF
(e) Buyer acknowledges that these limitations of liability are a material part of the bargain
between the parties and are reflected in product pricing, which would be higher without these
Buyer shall defend, indemnify, and hold harmless BDATECH, its parents,
subsidiaries and affiliates, and their respective directors, officers and employees and
representatives, from and against any and all claims, suits, losses, obligations, causes of action,
damages, and expenses (including attorney’s fees) relating to or arising out of any use of the
Products by Buyer, its customers, or any third parties to whom Buyer transfers the Products or
otherwise makes them available.
16. BUYER PROPERTY.
BDATECH shall not be liable for loss or destruction to Buyer property,
including property which is the subject of this order, whether owned by Buyer, the U.S.
Government, or others, except to the extent that BDATECH is reimbursed or compensated for any
loss of or destruction of or damage to such Buyer property or which results from willful misconduct
or lack of good faith on the part of BDATECH’s managerial personnel.
Either party may terminate this Agreement upon written notice to the other
if the other party becomes insolvent, files a petition in bankruptcy, or fails to perform a material
term or obligation of this Agreement and such failure to perform continues for a period of thirty
(30) days after receipt of written notice of such breach. Failure to pay any monies due under this
Agreement is considered a material breach. Termination shall not exclude other remedies each
party may have for failure to perform its obligations hereunder.
18. UNITED STATES AS END USER.
If the Products sold hereunder are pursuant to a contract or
subcontract issued by an agency or department of the United States government, BDATECH agrees
that the Terms (other the those with respect to price and payment) shall be deemed modified to the
extent reasonably necessary for Buyer to comply with mandatory statutory procurement
requirements imposed on Buyer by virtue of the fact that the Products procured hereunder are
intended to be acquired, used, or consumed by an agency or a department of the United States;
provided, however, that these Terms shall not be deemed so modified unless and until Buyer notifies
BDATECH of such intent and identifies with specificity the modifications Buyer deems necessary for
compliance. Further, unless expressly agreed and confirmed on the BDATECH quote and order
acknowledgement, all Products shall be commercial products as defined in 48 C.F.R. Section 2.101.
All notices relating to this Agreement must be sent by either certified or registered
mail, postage prepaid or electronic mail, by Buyer’s duly authorized representative. Each of the
parties may communicate with the other by electronic means and such communication shall be
deemed acceptable as a signed writing.
20. RETENTION OF RECORDS.
Unless a longer period is specified in this Agreement or by law or
regulation, Buyer shall retain all records related to this Agreement for four (4) years from the date
of final payment received by BDATECH. Records related to this Agreement include, but are not
limited to, financial, proposal, procurement, specifications, production, inspection, test, quality,
shipping and export, and certification records.
If a dispute or controversy arises regarding this Agreement or a purchase order,
the parties will attempt in good faith to settle it amicably or through Alternative Dispute Resolution
(“ADR”) mediation rather than litigation or arbitration. The parties will mutually select the location
and ADR entity to mediate the controversy, and both agree to cooperate in reaching a settlement.
Each party will be responsible for their own expenses but will equally share the costs and expenses
of the mediation.
22. GOVERNING LAW.
This Agreement and any disputes arising out of Products provided
hereunder, shall be governed by and construed in accordance with the laws of the State of Delaware
and the United States of America, without giving effect to any conflict of law provisions thereof, and
(failing resolution pursuant to the Disputes section of these Terms) all related controversies or
disputes shall be heard in a federal or state court of appropriate jurisdiction located in New Castle
County, Delaware. The Parties specifically disclaim application to this Agreement of the United
Nations Convention on Contracts for The International Sale of Goods, the Uniform Law on the
Formation of Contracts for the International Sale of Goods, and any international discovery and
service of process conventions.
Buyer may not assign, novate, or transfer, by operation of law or otherwise,
this Agreement, in whole or in part, without the prior written approval of BDATECH. In all events,
this Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
The headings in these Terms are inserted for convenience only and shall
not be used in the interpretation hereof.
No waiver of any provision of this Agreement, or of a breach hereof, whether
express or implied, shall be effective unless in writing and signed by Buyer. No waiver of a breach
of this Agreement, whether express or implied, shall constitute a waiver of a subsequent breach.
All provisions of this Agreement are severable, and the unenforceability or
invalidity of any provision shall not affect the validity or enforceability of the remaining provisions
of this Agreement.
All rights, obligations, and duties hereunder, which by their nature of by
their express terms extend beyond expiration or termination of this Agreement, including but not
limited to warranties, indemnifications, intellectual property (including rights to and protection of
intellectual property and proprietary information), and product support obligations shall survive
the expiration or termination of this Agreement.