terms
RPX TECHNOLOGIES INC. TERMS & CONDITIONS OF SALE
These terms and conditions of sale, together with any purchase order, scope of work, plans, specifications or other documents listed therein or herein and any other attachments, exhibits and/or documents attached hereto or thereto (collectively, the “Agreement”) shall govern any purchase of products by any person or entity (“Customer”) from RPX Technologies, Inc.
1. AGREEMENT. During the term of this Agreement, RPX will sell and deliver certain products and license certain software embedded in the products (collectively, “Products”) and Customer will purchase (to include any acquisition or use under a pilot test program) Products from time to time hereunder, and pay the applicable prices specified in the price quote issued to Customer by RPX (“Price Quote”). Customer represents that it is purchasing Products solely for its own use and not for the purpose of resale.
2. PRICE, ORDERING, SHIPPING AND PAYMENT TERMS. (a) RPX shall issue to Customer a Price Quote, including a description of the applicable Products. Each Price Quote shall be deemed incorporated herein. Unless otherwise specifically set forth in the Price Quote, all prices are FOB Origin at RPX’s offices in Stillwater, Oklahoma and prices do not include shipping, insurance, duties, taxes and other similar charges. (b) All purchases of Products by Customer hereunder shall be made by means of purchase orders (“P.O.”) issued from time to time by Customer. All P.O.’s issued by Customer shall be signed by an authorized agent of Customer and shall be deemed to incorporate the terms and conditions set out in this Agreement. Each P.O. shall reference this Agreement, the Price Quote and shall specify a place of delivery. (c) Title and risk of loss shall pass from RPX to Customer upon delivery to the common carrier at the FOB point. Delivery shall be deemed made upon transfer of possession to the carrier. Customer shall be responsible for all freight, handling and insurance charges. In no event shall RPX have any liability in connection with shipment or delivery, nor shall the carrier be deemed to be an agent of RPX. RPX shall not be liable for damage or penalty for delay in delivery or for failure to give notice of any delay. (d) Customer will pay to RPX at its offices all amounts due within 30 days of date of invoice. Invoices will include all applicable sales or use taxes. All accounts will be subject to a late payment service charge of 11⁄2% per month, or as limited by applicable law, if payment in full is not made within 30 days of invoice date. Customer will provide evidence before shipment of its sales tax exempt status if it claims such status.
3. LIMITATION OF LIABILITY. (a) IN NO EVENT SHALL RPX AND ITS SUPPLIERS OR SUBCONTRACTORS BE LIABLE TO OR THROUGH CUSTOMER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, WHETHER SUCH CLAIM IS BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF WHETHER RPX OR ITS SUPPLIERS OR CONTRACTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. (b) EXCEPT FOR RPX’S OBLIGATION PURSUANT TO SECTION 5, THE LIABILITY OF RPX UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNTS PAID TO RPX BY CUSTOMER PURSUANT TO THIS AGREEMENT.
4. LIMITED WARRANTY AND MAINTENANCE. (a) FOR A PERIOD OF ONE YEAR FROM THE DELIVERY DATE (THE “WARRANTY PERIOD”), RPX WARRANTS THAT PRODUCTS WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP AND WILL OPERATE IN ACCORDANCE WITH THE SPECIFICATIONS PROVIDED BY RPX WITH THE PRODUCT. IF WARRANTY WORK FOR PRODUCTS IS NECESSARY, RPX WILL ACCEPT RETURN OF PRODUCTS, SHIPPING PREPAID BY CUSTOMER, FOR REPAIR OR REPLACEMENT. SUCH REPAIR OR REPLACEMENT, INCLUDING PARTS, LABOR AND RETURN SHIPPING, WILL BE AT RPX’S EXPENSE.(b) THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO PROMISE OR AFFIRMATION OF FACT MADE BY ANY EMPLOYEE, AGENT OR REPRESENTATIVE OF RPX, NOR ANY SAMPLE PROVIDED TO CUSTOMER, SHALL CONSTITUTE A WARRANTY OR GIVE RISE TO ANY LIABILITY OR OBLIGATION, UNLESS SUCH PROMISE OR AFFIRMATION IS IN WRITING AND SIGNED BY AN OFFICER OF RPX. (c) Customer's sole and exclusive remedy for breach of warranty is limited to RPX's performance as set forth above and RPX's liability will cease at the end of the Warranty Period. Repair and replacement parts may be new or like new.(d) The warranty above excludes repairs or replacements, whether occasioned by Customer or a third party, made necessary by improper installation, misuse, negligence, accident, theft or unexplained loss, abuse, fire, water, flood, wind, storms, lightning, any act of God or public enemy. RPX may perform repairs necessitated by any excluded cause at Customer's request at RPX’s then prevailing rates.
5. INFRINGEMENT INDEMNIFICATION. RPX shall indemnify, defend and hold Customer harmless from and against any claims or suits brought against Customer based upon a claim of infringement of any United States patent arising out of the use of Products. A condition precedent to RPX’s obligation stated above shall be that Customer shall have fully complied with the requirements of this Agreement and shall have given RPX prompt notice of any such claim or suit. Customer gives RPX or its equipment supplier the sole right to defend and settle any claim or suit, and Customer, at RPX’s request, agrees to cooperate and assist in the defense. This indemnity does not extend to and Customer hereby agrees to indemnify, defend and hold RPX harmless from and against any claim, suit or proceeding which is based upon a patent claim covering any combination of equipment and/or software in which the Product is solely an element and such element does not form a basis for the claim or any item furnished by Customer or an item altered in installation, whether by RPX, customer or any third party. Should any Product become subject to a claim of infringement of a United States patent, RPX may, at its expense and option: (i) procure for Customer the right to continue use of the affected product; (ii) replace or modify the same so that it becomes noninfringing; or (iii) refund to Customer the depreciated value of the affected item(s) as carried on the books of Customer for tax purposes, in which case Customer shall return the affected items to RPX. In no event shall RPX’s liability hereunder exceed an amount equal to the cash price of the Products. This indemnity shall not apply to any claims arising out of the affected items manufactured at Customer's request to Customer's production specifications or out of use of the affected items in a manner or for a purpose not contemplated by this Agreement.
6. INDEMNIFICATION. Customer agrees to indemnify, defend and hold Seller and its suppliers and subcontractors, and their respective officers, directors, owners and agents (collectively, the “Seller Parties”) harmless from any and all demands, claims, actions or judgments of a third party against any Seller Party, directly or indirectly, relating to injury and/or death of any and all persons and for loss of and/or damage to property arising out of Customer’s use, misuse or operation of Products and/or Customer’s negligence or willful misconduct. This indemnification obligation shall apply even in the event of the fault, negligence or strict liability of any Seller Party.
7. DEFAULT. If Customer fails to pay any amounts invoiced when due or otherwise fails to perform any obligation when required, RPX, in addition to all other remedies available to it at law or in equity, may: (i) until payment of the full amount owed, suspend its warranty obligations; (ii) refuse to fill any current or subsequent P.O.; (iii) terminate this Agreement retaining all sums paid; and (iv) pursue any other remedy available in law or equity.
8. SOFTWARE LICENSE. (a) Subject to the terms hereinafter set forth, RPX grants to Customer and/or its representatives with a “need to know,” a non-exclusive, non-transferable, perpetual license to use the software embedded in the Products (the “Software”) and the associated documentation. Such license is granted to Customer provided Customer does not allow any aspect of the Software to be disclosed to a third party without RPX’s prior written consent and makes reasonable efforts to ensure that its employees are aware of the obligations set forth in this Agreement. (b) Customer is granted no title or ownership rights in or to the licensed Software, in whole or in part, and Customer acknowledges that ownership of all copyrights, patents, trade secrets and/or any other intellectual property rights in and to Products and licensed Software and associated documentation is and shall remain in RPX and/or RPX’s suppliers. (c) Customer shall not: (i) use the Software for any purpose other than Customer’s own internal business purposes and other than as provided by this License; (ii) allow anyone other than Customer’s employees, agents, and/or representatives with a “need to know” to have physical access to the Software; (iii) make any copies of the Software without the prior written consent of RPX, except such limited number of object code copies in machine readable form only as may be reasonably necessary for execution or archival purposes only; (iv) make any modifications, enhancements, adaptations or translations to or of the Software, except as may result from those Customer interactions with the Software associated with normal use and explained in the associated documentation; (v) attempt to reverse engineer, disassemble, reverse translate, decompile or in any other manner decode licensed Software, in order to derive the source code from or for any other reason; or (vi) make full or partial copies of any documentation or other similar printed or machine-readable matter provided with licensed Software unless the same has been supplied in a form by RPX intended for periodic reproduction of partial copies.
9. FORCE MAJEURE. RPX shall have no liability to Customer for any loss or damage suffered by Customer, resulting directly or indirectly from, or through, or arising out of any delay in filling an order or in shipment or delivery of any Products, to the extent RPX’s performance is prevented or delayed due to causes beyond its reasonable control including, but not limited to, the following: strikes, work stoppages, fire, water, flood, lightning, governmental action, acts of God or public enemy, delays of suppliers, subcontractors, power company, local exchange company, or other carrier.
10. CUSTOMER’S USE OF PRODUCTS. Customer agrees and acknowledges that the proper use of Products by Customer and application of the Product and Software, along with application of any data reported by the Product and/or the Software are the sole responsibility of Customer. Any protocols or procedures suggested, conveyed or provided by RPX are for demonstration purposes only, and Customer agrees that it shall be responsible for testing and verifying any such information prior to its use of Products and Software.
11. MISCELLANEOUS. (a) Customer agrees that only the terms and conditions of this Agreement and any attachments hereto apply to any transaction between Customer and RPX. (b) Customer represents and warrants: (1) that in connection with its purchase, receipt, acquisition and/or utilization of all technical data and Products pursuant to or for purposes of complying with this Agreement, it has fully complied with and will fully comply with all applicable laws and regulations of the United States of America and each other country where such data and Products have been or are obtained, used, consumed, supplied, delivered or received, including specifically all applicable laws and regulations related to the export or import of data and Products ("Applicable Law"); (2) that in connection with its sale, delivery, provision or supply of Products or technical data pursuant to or for purposes of complying with the Agreement, it has fully complied with and will fully comply with all Applicable Law; (3) that it is fully authorized under all Applicable Law to receive all relevant data and Products in accordance with the terms of the Agreement; (4) that it is not listed on the Denied Persons List maintained by the U.S. Commerce Department's Bureau of Industry and Security; (5) that it is not listed on the Specially Designated Nationals and Blocked Persons List maintained by the U.S. Treasury Department's Office of Foreign Assets Control; (6) that it is not listed on the Debarred Persons List maintained by the U.S. State Department's Office of Defense Trade Control; (7) that it is not otherwise designated by any U.S. Government body as an ineligible recipient of exported U.S. goods, services or data; (8) that it will not, without RPX’s advance written authorization, re-export, retransmit or otherwise transfer to any other person or entity, or to any country other than the jurisdiction of original receipt, any data or Products received from RPX pursuant to or for purposes of complying with the Agreement; and (9) that it will be fully responsible for and indemnify and hold RPX harmless from all fines, penalties and damages resulting from any breach of the foregoing representations and warranties by Customer. (c) This Agreement is not assignable by Customer without the prior written consent of RPX. Any attempt to assign any of Customer’s rights, duties or obligations under this Agreement without such consent will, at RPX’s option, be deemed void or a material default hereunder, or accepted in RPX’s sole discretion. RPX reserves the right to subcontract any or all of the work to be performed by it under this Agreement. (d) The waiver by either party of any default will not operate as a waiver of any subsequent default. (e) Customer will pay all of RPX’s costs and expenses, including, but not limited to, reasonable attorneys’ and collection fees, incurred in enforcing this Agreement. (f) This Agreement supersedes all prior or contemporaneous proposals, communications and negotiations, both oral and written, and constitutes the entire Agreement between RPX and Customer with respect to the purchase of Products. Any representations, warranties or statements made by any employee, sales person or agent of RPX not expressed in this Agreement shall not be binding on RPX. (g) Any modifications to this Agreement must be in writing and executed by an authorized representative of the party against whom enforcement is sought. In the case of RPX, only an officer of RPX shall be an authorized representative. If a P.O. or other document or communication from Customer includes any term or condition contrary to, or in addition to, the terms and conditions stated herein, Customer’s acceptance of the Products which are the subject hereof, after receipt of these terms and conditions, shall constitute Customer’s complete and unconditional assent to the terms hereof, notwithstanding anything to the contrary in any such earlier P.O., document or communication, unless Customer clearly instructs RPX in writing, prior to acceptance, to cancel the P.O. Customer’s communication of contrary or additional terms and conditions following acceptance of Products shall be construed as an offer to supplement and/or amend this Agreement and such offer shall be deemed rejected unless accepted by RPX in the manner set forth in the first sentence of this paragraph. (h) No action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has accrued. (i) This Agreement is deemed made and shall be construed and enforced by the laws of the State of Oklahoma without regard to the choice of law principles thereof. Customer hereby consents to the exclusive jurisdiction and venue of the federal or state courts located in Tulsa, Tulsa County, Oklahoma, with respect to any matter pertaining to this Agreement and hereby waives any defenses it may have with respect to the jurisdiction and venue of such courts. RPX and Customer specifically disclaim the UN Convention on Contracts for the International Sale of Goods. (j) This Agreement shall benefit and be binding upon the parties hereto and their respective affiliates, successors and permitted assigns. (k) In the event any one or more of the provisions contained in this Agreement, or any other instrument or document referred to herein or executed in connection with this Agreement, shall, for any reason, be held to be invalid, illegal or unenforceable, such provision(s) shall not affect any other provision of this Agreement or any other instrument or document referred to herein or executed in connection with this Agreement, and this Agreement shall be deemed amended in conformance with the intent of the parties hereto. (l) Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any person or entity other than the parties hereto any rights or remedies under or by reason of this Agreement, except as expressly set forth herein. (m) All notices, requests and other communications given under or in accordance herewith shall be in writing and delivered personally, or by United States mail, to the addresses set forth below. Communications delivered personally shall be deemed effective upon receipt. Those delivered by mail shall be deemed delivered three days after deposit in the United States mail, certified or registered, with postage prepaid, addressed to the principal place of business of both parties. Addresses and facsimile numbers for such communications may be changed from time to time by notice as provided herein.
These terms and conditions of sale, together with any purchase order, scope of work, plans, specifications or other documents listed therein or herein and any other attachments, exhibits and/or documents attached hereto or thereto (collectively, the “Agreement”) shall govern any purchase of products by any person or entity (“Customer”) from RPX Technologies, Inc.
1. AGREEMENT. During the term of this Agreement, RPX will sell and deliver certain products and license certain software embedded in the products (collectively, “Products”) and Customer will purchase (to include any acquisition or use under a pilot test program) Products from time to time hereunder, and pay the applicable prices specified in the price quote issued to Customer by RPX (“Price Quote”). Customer represents that it is purchasing Products solely for its own use and not for the purpose of resale.
2. PRICE, ORDERING, SHIPPING AND PAYMENT TERMS. (a) RPX shall issue to Customer a Price Quote, including a description of the applicable Products. Each Price Quote shall be deemed incorporated herein. Unless otherwise specifically set forth in the Price Quote, all prices are FOB Origin at RPX’s offices in Stillwater, Oklahoma and prices do not include shipping, insurance, duties, taxes and other similar charges. (b) All purchases of Products by Customer hereunder shall be made by means of purchase orders (“P.O.”) issued from time to time by Customer. All P.O.’s issued by Customer shall be signed by an authorized agent of Customer and shall be deemed to incorporate the terms and conditions set out in this Agreement. Each P.O. shall reference this Agreement, the Price Quote and shall specify a place of delivery. (c) Title and risk of loss shall pass from RPX to Customer upon delivery to the common carrier at the FOB point. Delivery shall be deemed made upon transfer of possession to the carrier. Customer shall be responsible for all freight, handling and insurance charges. In no event shall RPX have any liability in connection with shipment or delivery, nor shall the carrier be deemed to be an agent of RPX. RPX shall not be liable for damage or penalty for delay in delivery or for failure to give notice of any delay. (d) Customer will pay to RPX at its offices all amounts due within 30 days of date of invoice. Invoices will include all applicable sales or use taxes. All accounts will be subject to a late payment service charge of 11⁄2% per month, or as limited by applicable law, if payment in full is not made within 30 days of invoice date. Customer will provide evidence before shipment of its sales tax exempt status if it claims such status.
3. LIMITATION OF LIABILITY. (a) IN NO EVENT SHALL RPX AND ITS SUPPLIERS OR SUBCONTRACTORS BE LIABLE TO OR THROUGH CUSTOMER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, WHETHER SUCH CLAIM IS BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF WHETHER RPX OR ITS SUPPLIERS OR CONTRACTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. (b) EXCEPT FOR RPX’S OBLIGATION PURSUANT TO SECTION 5, THE LIABILITY OF RPX UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNTS PAID TO RPX BY CUSTOMER PURSUANT TO THIS AGREEMENT.
4. LIMITED WARRANTY AND MAINTENANCE. (a) FOR A PERIOD OF ONE YEAR FROM THE DELIVERY DATE (THE “WARRANTY PERIOD”), RPX WARRANTS THAT PRODUCTS WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP AND WILL OPERATE IN ACCORDANCE WITH THE SPECIFICATIONS PROVIDED BY RPX WITH THE PRODUCT. IF WARRANTY WORK FOR PRODUCTS IS NECESSARY, RPX WILL ACCEPT RETURN OF PRODUCTS, SHIPPING PREPAID BY CUSTOMER, FOR REPAIR OR REPLACEMENT. SUCH REPAIR OR REPLACEMENT, INCLUDING PARTS, LABOR AND RETURN SHIPPING, WILL BE AT RPX’S EXPENSE.(b) THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO PROMISE OR AFFIRMATION OF FACT MADE BY ANY EMPLOYEE, AGENT OR REPRESENTATIVE OF RPX, NOR ANY SAMPLE PROVIDED TO CUSTOMER, SHALL CONSTITUTE A WARRANTY OR GIVE RISE TO ANY LIABILITY OR OBLIGATION, UNLESS SUCH PROMISE OR AFFIRMATION IS IN WRITING AND SIGNED BY AN OFFICER OF RPX. (c) Customer's sole and exclusive remedy for breach of warranty is limited to RPX's performance as set forth above and RPX's liability will cease at the end of the Warranty Period. Repair and replacement parts may be new or like new.(d) The warranty above excludes repairs or replacements, whether occasioned by Customer or a third party, made necessary by improper installation, misuse, negligence, accident, theft or unexplained loss, abuse, fire, water, flood, wind, storms, lightning, any act of God or public enemy. RPX may perform repairs necessitated by any excluded cause at Customer's request at RPX’s then prevailing rates.
5. INFRINGEMENT INDEMNIFICATION. RPX shall indemnify, defend and hold Customer harmless from and against any claims or suits brought against Customer based upon a claim of infringement of any United States patent arising out of the use of Products. A condition precedent to RPX’s obligation stated above shall be that Customer shall have fully complied with the requirements of this Agreement and shall have given RPX prompt notice of any such claim or suit. Customer gives RPX or its equipment supplier the sole right to defend and settle any claim or suit, and Customer, at RPX’s request, agrees to cooperate and assist in the defense. This indemnity does not extend to and Customer hereby agrees to indemnify, defend and hold RPX harmless from and against any claim, suit or proceeding which is based upon a patent claim covering any combination of equipment and/or software in which the Product is solely an element and such element does not form a basis for the claim or any item furnished by Customer or an item altered in installation, whether by RPX, customer or any third party. Should any Product become subject to a claim of infringement of a United States patent, RPX may, at its expense and option: (i) procure for Customer the right to continue use of the affected product; (ii) replace or modify the same so that it becomes noninfringing; or (iii) refund to Customer the depreciated value of the affected item(s) as carried on the books of Customer for tax purposes, in which case Customer shall return the affected items to RPX. In no event shall RPX’s liability hereunder exceed an amount equal to the cash price of the Products. This indemnity shall not apply to any claims arising out of the affected items manufactured at Customer's request to Customer's production specifications or out of use of the affected items in a manner or for a purpose not contemplated by this Agreement.
6. INDEMNIFICATION. Customer agrees to indemnify, defend and hold Seller and its suppliers and subcontractors, and their respective officers, directors, owners and agents (collectively, the “Seller Parties”) harmless from any and all demands, claims, actions or judgments of a third party against any Seller Party, directly or indirectly, relating to injury and/or death of any and all persons and for loss of and/or damage to property arising out of Customer’s use, misuse or operation of Products and/or Customer’s negligence or willful misconduct. This indemnification obligation shall apply even in the event of the fault, negligence or strict liability of any Seller Party.
7. DEFAULT. If Customer fails to pay any amounts invoiced when due or otherwise fails to perform any obligation when required, RPX, in addition to all other remedies available to it at law or in equity, may: (i) until payment of the full amount owed, suspend its warranty obligations; (ii) refuse to fill any current or subsequent P.O.; (iii) terminate this Agreement retaining all sums paid; and (iv) pursue any other remedy available in law or equity.
8. SOFTWARE LICENSE. (a) Subject to the terms hereinafter set forth, RPX grants to Customer and/or its representatives with a “need to know,” a non-exclusive, non-transferable, perpetual license to use the software embedded in the Products (the “Software”) and the associated documentation. Such license is granted to Customer provided Customer does not allow any aspect of the Software to be disclosed to a third party without RPX’s prior written consent and makes reasonable efforts to ensure that its employees are aware of the obligations set forth in this Agreement. (b) Customer is granted no title or ownership rights in or to the licensed Software, in whole or in part, and Customer acknowledges that ownership of all copyrights, patents, trade secrets and/or any other intellectual property rights in and to Products and licensed Software and associated documentation is and shall remain in RPX and/or RPX’s suppliers. (c) Customer shall not: (i) use the Software for any purpose other than Customer’s own internal business purposes and other than as provided by this License; (ii) allow anyone other than Customer’s employees, agents, and/or representatives with a “need to know” to have physical access to the Software; (iii) make any copies of the Software without the prior written consent of RPX, except such limited number of object code copies in machine readable form only as may be reasonably necessary for execution or archival purposes only; (iv) make any modifications, enhancements, adaptations or translations to or of the Software, except as may result from those Customer interactions with the Software associated with normal use and explained in the associated documentation; (v) attempt to reverse engineer, disassemble, reverse translate, decompile or in any other manner decode licensed Software, in order to derive the source code from or for any other reason; or (vi) make full or partial copies of any documentation or other similar printed or machine-readable matter provided with licensed Software unless the same has been supplied in a form by RPX intended for periodic reproduction of partial copies.
9. FORCE MAJEURE. RPX shall have no liability to Customer for any loss or damage suffered by Customer, resulting directly or indirectly from, or through, or arising out of any delay in filling an order or in shipment or delivery of any Products, to the extent RPX’s performance is prevented or delayed due to causes beyond its reasonable control including, but not limited to, the following: strikes, work stoppages, fire, water, flood, lightning, governmental action, acts of God or public enemy, delays of suppliers, subcontractors, power company, local exchange company, or other carrier.
10. CUSTOMER’S USE OF PRODUCTS. Customer agrees and acknowledges that the proper use of Products by Customer and application of the Product and Software, along with application of any data reported by the Product and/or the Software are the sole responsibility of Customer. Any protocols or procedures suggested, conveyed or provided by RPX are for demonstration purposes only, and Customer agrees that it shall be responsible for testing and verifying any such information prior to its use of Products and Software.
11. MISCELLANEOUS. (a) Customer agrees that only the terms and conditions of this Agreement and any attachments hereto apply to any transaction between Customer and RPX. (b) Customer represents and warrants: (1) that in connection with its purchase, receipt, acquisition and/or utilization of all technical data and Products pursuant to or for purposes of complying with this Agreement, it has fully complied with and will fully comply with all applicable laws and regulations of the United States of America and each other country where such data and Products have been or are obtained, used, consumed, supplied, delivered or received, including specifically all applicable laws and regulations related to the export or import of data and Products ("Applicable Law"); (2) that in connection with its sale, delivery, provision or supply of Products or technical data pursuant to or for purposes of complying with the Agreement, it has fully complied with and will fully comply with all Applicable Law; (3) that it is fully authorized under all Applicable Law to receive all relevant data and Products in accordance with the terms of the Agreement; (4) that it is not listed on the Denied Persons List maintained by the U.S. Commerce Department's Bureau of Industry and Security; (5) that it is not listed on the Specially Designated Nationals and Blocked Persons List maintained by the U.S. Treasury Department's Office of Foreign Assets Control; (6) that it is not listed on the Debarred Persons List maintained by the U.S. State Department's Office of Defense Trade Control; (7) that it is not otherwise designated by any U.S. Government body as an ineligible recipient of exported U.S. goods, services or data; (8) that it will not, without RPX’s advance written authorization, re-export, retransmit or otherwise transfer to any other person or entity, or to any country other than the jurisdiction of original receipt, any data or Products received from RPX pursuant to or for purposes of complying with the Agreement; and (9) that it will be fully responsible for and indemnify and hold RPX harmless from all fines, penalties and damages resulting from any breach of the foregoing representations and warranties by Customer. (c) This Agreement is not assignable by Customer without the prior written consent of RPX. Any attempt to assign any of Customer’s rights, duties or obligations under this Agreement without such consent will, at RPX’s option, be deemed void or a material default hereunder, or accepted in RPX’s sole discretion. RPX reserves the right to subcontract any or all of the work to be performed by it under this Agreement. (d) The waiver by either party of any default will not operate as a waiver of any subsequent default. (e) Customer will pay all of RPX’s costs and expenses, including, but not limited to, reasonable attorneys’ and collection fees, incurred in enforcing this Agreement. (f) This Agreement supersedes all prior or contemporaneous proposals, communications and negotiations, both oral and written, and constitutes the entire Agreement between RPX and Customer with respect to the purchase of Products. Any representations, warranties or statements made by any employee, sales person or agent of RPX not expressed in this Agreement shall not be binding on RPX. (g) Any modifications to this Agreement must be in writing and executed by an authorized representative of the party against whom enforcement is sought. In the case of RPX, only an officer of RPX shall be an authorized representative. If a P.O. or other document or communication from Customer includes any term or condition contrary to, or in addition to, the terms and conditions stated herein, Customer’s acceptance of the Products which are the subject hereof, after receipt of these terms and conditions, shall constitute Customer’s complete and unconditional assent to the terms hereof, notwithstanding anything to the contrary in any such earlier P.O., document or communication, unless Customer clearly instructs RPX in writing, prior to acceptance, to cancel the P.O. Customer’s communication of contrary or additional terms and conditions following acceptance of Products shall be construed as an offer to supplement and/or amend this Agreement and such offer shall be deemed rejected unless accepted by RPX in the manner set forth in the first sentence of this paragraph. (h) No action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has accrued. (i) This Agreement is deemed made and shall be construed and enforced by the laws of the State of Oklahoma without regard to the choice of law principles thereof. Customer hereby consents to the exclusive jurisdiction and venue of the federal or state courts located in Tulsa, Tulsa County, Oklahoma, with respect to any matter pertaining to this Agreement and hereby waives any defenses it may have with respect to the jurisdiction and venue of such courts. RPX and Customer specifically disclaim the UN Convention on Contracts for the International Sale of Goods. (j) This Agreement shall benefit and be binding upon the parties hereto and their respective affiliates, successors and permitted assigns. (k) In the event any one or more of the provisions contained in this Agreement, or any other instrument or document referred to herein or executed in connection with this Agreement, shall, for any reason, be held to be invalid, illegal or unenforceable, such provision(s) shall not affect any other provision of this Agreement or any other instrument or document referred to herein or executed in connection with this Agreement, and this Agreement shall be deemed amended in conformance with the intent of the parties hereto. (l) Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any person or entity other than the parties hereto any rights or remedies under or by reason of this Agreement, except as expressly set forth herein. (m) All notices, requests and other communications given under or in accordance herewith shall be in writing and delivered personally, or by United States mail, to the addresses set forth below. Communications delivered personally shall be deemed effective upon receipt. Those delivered by mail shall be deemed delivered three days after deposit in the United States mail, certified or registered, with postage prepaid, addressed to the principal place of business of both parties. Addresses and facsimile numbers for such communications may be changed from time to time by notice as provided herein.
