IMPORTANT-READ CAREFULLY: THIS DOCUMENT ("AGREEMENT") STATES THE TERMS AND CONDITIONS UPON WHICH GEMALTO ("SELLER") OFFERS TO YOU ITEMS FROM THE GEMALTO WEBSTORE ("WEBSTORE"). THIS IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND THE SUBSIDIARY OR AFFILIATE OF GEMALTO NV THAT DISTRIBUTES THE ITEMS GOVERNED BY THIS AGREEMENT ("GEMALTO").
"Carriage " means transport by rail, road, air, sea, inland waterway or by combination of such modes.
"Confirmation of sale " means an acknowledgement of your order.
"Consumer " means any natural person buying items for private use.
"Hardware " means all mechanical, magnetic, electronic, and/or electrical components of a computer system including, but not limited to, smart cards and smart card readers/writers offered for sale by Gemalto via its Webstore.
“Non-Personally Identifiable Information” means information that cannot be traced back to you individually.
“Personally Identifiable Information” means information that can be traced back to you individually, for example your name, telephone number, or email address.
"Software " means all written programs or procedures or rules and associated documentation pertaining to the operation of a computer system, any associated media, any printed materials and any accompanying "online" or electronically presented information.
"You " are a person or legal entity wishing to order the items from the Webstore in accordance with this Agreement. This Agreement governs Your use of all computer Hardware and Software.
1. Prices All prices are exclusive of freight, shipping and handling. Such charges are separately stated at the end of the ordering process, and You are responsible for paying the entire amount. All prices are exclusive of any present or future sales, revenue, excise taxes, or other tax(es) applicable to the products covered by this Agreement. Such taxes, when applicable, shall be added to the Invoice and shall be paid by You. All other duties required by the relevant authorities shall be paid separately by You.
2. Orders An order will be considered as complete by Gemalto upon full confirmed payment. GEMALTO reserves the right to cancel any order prior to shipment.
3. Delivery terms and Cancellation Unless otherwise expressly specified by GEMALTO, all sales are made “ExWorks” (per Incoterms 2000, published by the International Chamber of Commerce) from GEMALTO’s shipping point in the United States. Risk of Loss shall pass to You at point of shipment. Gemalto’s liability for shipment and delivery of Hardware ceases upon delivery of the Hardware to the common carrier designated and paid by You. Hardware shall therefore be deemed accepted upon GEMALTO’s delivery to Your common carrier. All applicable fees are immediately due and payable by You when Hardware is ordered through the Gemalto Webstore. Any stipulated delivery or shipment dates are estimates only. Gemalto reserves the right to make deliveries of Hardware in installments, and any delay in delivery, or other default of any installment of any one or more items of Hardware shall not relieve You of your obligation to accept and pay for the remaining deliveries. Orders that have been routed through the shipping process are not cancelable and cannot be modified. Further information on cancellation and order modification policies is available here.
4. Software, Software Ownership The Software is owned and copyrighted by GEMALTO or its third party suppliers and is licensed and not sold to You. GEMALTO' third party suppliers or distributors may assert and protect any of their rights (and with GEMALTO' permission, GEMALTO' rights) in the event of any violation of this Agreement. Your order and use of any Software acquired from the Webstore is subject to a separate end-user license agreement for GEMALTO Software ("EULA"). The EULA governs all Your rights and obligations therein.
5. Intellectual Property Rights Except as provided in the EULA, GEMALTO and its suppliers do not grant any express or implied right to You under any patents, copyrights, trademarks, or trade secret information of GEMALTO or its suppliers. You shall have no right to use any name, trademark, brand, logo, design or other designation of GEMALTO or used by GEMALTO in connection with the Gemalto products, including any contraction, abbreviation, or simulation of any of the foregoing, in advertising, publicity or marketing activities.
6. Hardware Limited Warranty, Disclaimer of Implied Warranties & Duties, Limited Warranty Remedy (a) Limited Warranty. GEMALTO warrants for Your sole benefit that the Hardware will perform substantially in accordance with the specifications provided and labeled as such in GEMALTO-provided documentation accompanying the Hardware for a period of one year from the date of delivery to You. Hardware is under warranty only if it has been used under normal use conditions and in accordance with applicable international ISO standards and GEMALTO documentation. Any claim concerning defective Hardware shall only be accepted by GEMALTO if each of the following three conditions is met: (i) for each item of Hardware considered as defective, the reason for its rejection must be given together with the results of any relevant tests; (ii) the Hardware has not been altered or modified; (iii) any defective Hardware shall be returned during the warranty period to GEMALTO in accordance with the GEMALTO return policy available on the Webstore web site. This warranty does not cover: (i) Hardware which have been damaged by You or which have been stored under conditions which do not comply with GEMALTO specifications or normal usage; (ii) Hardware subjected to abnormal conditions (including, but not limited to, mechanical, electrical, thermal), or (iii) Hardware that is defective as a result of improper operating conditions; or (iv) Hardware not operated in accordance with the applicable documentation.
(b) Disclaimer of Implied Warranties and Duties. THE WARRANTIES OF GEMALTO SET FORTH IN SECTION 6(a) ABOVE CONSTITUTE THE ONLY WARRANTIES MADE BY GEMALTO. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
(c) No Liability for Hacking or other Security Breach. GEMALTO disclaims all warranties described in Section 6(b) above which means that GEMALTO does not warrant that the Hardware will be resistant to all possible efforts to defeat or disable its functions, including its security mechanisms, and GEMALTO shall not incur, and disclaims, any liability in this respect. Security mechanism resistance and strength necessarily evolve according to the applicable state of the art in security and with reference to the emergence of new technologies and methods developed in efforts to defeat or disable such mechanisms. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, GEMALTO IS NOT LIABLE FOR ANY THIRD PARTY ACTIONS, INCLUDING ANY SOFTWARE OR APPLICATIONS PROVIDED BY ANY THIRD PARTY, AND IN PARTICULAR FOR ANY SUCCESSFUL EFFORT TO DEFEAT OR DISABLE SECURITY FUNCTIONS OF THE HARDWARE, OR COMPUTING DEVICES AND EQUIPMENT USING, ACCESSING OR INCORPORATING THE HARDWARE.
(d) EXCEPT AS SET FORTH IN SECTION 6(a) ABOVE, NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GEMALTO, ITS SUPPLIERS, DISTRIBUTORS, AGENTS OR EMPLOYEES CREATES ANY WARRANTY AND YOU AGREE NOT TO RELY ON ANY SUCH INFORMATION OR ADVICE. IN NO EVENT WILL GEMALTO OR ITS SUPPLIERS BE LIABLE FOR THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY OF THE INFORMATION CONTAINED ON THE GEMALTO WEB SITES.
7. Exclusion of Incidental, Consequential and Certain Other Damages TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GEMALTO OR ITS SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUES OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, OR FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE HARDWARE OR ANY MATERIALS PROVIDED PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF GEMALTO OR ANY SUPPLIER, AND EVEN IF GEMALTO OR ANY SUPPLIER OR DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Limitation of Liability and Remedies NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF GEMALTO AND ANY OF ITS SUPPLIERS OR DISTRIBUTORS UNDER THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL DAMAGES IS LIMITED TO THE LESSER OF THE AGGREGATE AMOUNT ACTUALLY PAID BY YOU FOR THE HARDWARE OR ONE HUNDRED THOUSAND UNITED STATES DOLLARS ($100,000). THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. YOU HEREBY WAIVE AND FOREVER RELEASE GEMALTO FROM ANY AND ALL CLAIMS IN EXCESS OF THAT AMOUNT.
9. Force majeure GEMALTO shall not be liable for any delay or other failure of performance due to causes beyond its reasonable control including without limitation: acts of God; Your acts; acts of military or civil authorities; government regulations, orders, directives and/or restrictions; fire or other casualties; strikes; lockouts; weather; epidemic; war; riots; delays in labor, materials, components, equipment, services, energy or utilities through GEMALTO' usual and regular sources at usual and regular prices. In any such event, GEMALTO may at any time and from time to time without further liability to You, (i) postpone its performance under this contract, (ii) make partial performance or cancel all or any portion of this contract, or (iii) allocate available quantities among its customers in any manner which GEMALTO deems reasonable. Cancellation of any part of this contract shall not affect Your duty to pay for performance of any other part hereof.
10. Waiver The failure of GEMALTO to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
11. Compliance with Laws Should You desire to import, export, or re-export the items into any country, You shall comply with all applicable laws, rules, regulations, orders, and other requirements of any governmental authority having jurisdiction. You acknowledge that the items licensed or sold hereunder may be subject to, among others, the export control laws and regulations of the United States and the European Union. You shall not import, export or re-export, or authorize the import, export or re-export of any such items in violation of any such requirement.
12. Government's Restricted Rights If a user of the Software is an agency, department, or other entity of any Public Authority or a government ("Government"), the use, duplication, reproduction, release, modification, disclosure, or transfer of such Software, or of any related documentation of any kind, including technical data, is restricted in accordance with applicable acquisition regulations. Any products provided under this Agreement shall be strictly treated as commercial goods. The use of Software by a Government is further restricted in accordance with the terms of this Agreement and any applicable EULA.
13. Consumer Law This Agreement does not prevent the application of any applicable national Consumer Law in case You are a Consumer.
15. Entire Agreement, Governing Law, and Jury Trial Waiver This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior or contemporaneous agreements or understandings (oral or written). To the full extent permitted by the law, this Agreement is governed by and shall be interpreted in accordance with the laws of the State of Texas. The Parties voluntarily waive their respective rights to trial by jury.
This Agreement is not governed by the United Nations Convention for the International Sales of Goods, the application of which is expressly excluded. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of GEMALTO. No provision of this Agreement can be waived unless such waiver is in writing and signed by a duly authorized representative of GEMALTO.