TERMS AND CONDITIONS OF SALE
THESE TERMS AND CONDITIONS OF SALE (the “Terms and Conditions”) set forth the terms and conditions governing the use of the products or services purchased by you (“Customer”) from LitePoint Corporation (“LitePoint”), including any software provided with, or for use with, such products or services (collectively, the “Product(s)”), provided however that if LitePoint and Customer enter into or have entered into another agreement signed on behalf of both parties regarding the purchase and license of the specific LitePoint Products being purchased and such agreement is in effect at the time the applicable Customer purchase order is accepted by LitePoint (“Existing Agreement”), the terms and conditions of such Existing Agreement shall govern the purchase and license of those Products.
1. CONTROLLING TERMS.
1.1. Governing Terms. Subject to any Existing Agreement, all sales and all purchase orders shall be governed exclusively by these Terms and Conditions, and nothing contained in any such purchase order will in any way modify or supplement these Terms and Conditions. Acceptance of Customer’s order by LitePoint is expressly conditional on the assent of Customer to these Terms and Conditions which assent will be conclusively presumed from Customer’s acceptance of the Products. Any terms or conditions in Customer’s purchase order or otherwise proposed by Customer, whether written or oral, that add to, vary from, or conflict with these terms and conditions are objected to by LitePoint and shall be deemed null and void.
1.2. Use of Products. These Terms and Conditions set forth the terms and conditions for Customer’s purchase of Products, which Products are solely for (i) Customer’s internal business use, or (ii) resale, only if and where Customer has been granted distribution rights by LitePoint for the specific Products to be resold/distributed.
2. PRICE AND PAYMENT.
2.1. Quoted Prices. The total price for the Products is the amount indicated on the LitePoint quotation or sales order acknowledgements. Prices are valid for the period indicated on the quotation. Prices are per shipment terms specified in Section 3.4, Shipment.
2.2. Prices Exclusive of Taxes. Except as explicitly provided in our quotations or sales order acknowledgments, prices quoted do not include any taxes (including any excise, sales, use, value added, withholding, and similar taxes), customs duties, tariffs or license fees. To the extent such taxes or duties are required to be collected by LitePoint, they will be added to the related invoice and are payable in full without reduction or setoff. If exemption from taxes or duties is claimed, Customer will provide a certificate of exemption.
2.3. Currency. Unless otherwise indicated in the quotation, sales order acknowledgement or separate written agreement between Customer and LitePoint signed on behalf of both parties, payment for Products shall be made in U.S. Dollars to our accounts in the United States of America, or such other place as LitePoint may designate, by check, wire transfer, or, if required by LitePoint, letter of credit in full in advance of shipment.
2.4. Extension of Credit. LitePoint may, at its sole discretion, extend credit and payment terms to Customer, and reserves the right to change those terms at any time, in its sole discretion, as facts and circumstances may warrant.
2.5. Non-Payment. If payment is not received in accordance with the payment terms set forth in this Section 2, then LitePoint may, at its sole discretion, assess a late payment fee from the due date until paid at a rate of 1.5% per month, compounded monthly, or the maximum rate permitted by law, if less. Future shipments and delivery of services may be delayed or terminated until all outstanding payment issues have been resolved. Customer grants LitePoint a security interest in Products purchased under these Terms and Conditions to secure payment for such Products. If requested by LitePoint, Customer agrees to execute financing statements to perfect this security interest.
3. ORDERS AND DELIVERY.
3.1. Purchase Orders. All orders for Products submitted by Customer shall be initiated by written, faxed, or electronically transmitted purchase order. Customer shall submit purchase orders to LitePoint at least sixty (60) days prior to the requested delivery date, but no more than one hundred eighty (180) days before the requested delivery date. No order shall be binding upon LitePoint until accepted by LitePoint in writing, and LitePoint shall have no liability to Customer with respect to purchase orders that are not accepted or with respect to the delivery of items not specified on Customer’s purchase order. LitePoint shall use its reasonable commercial efforts to notify Customer of the acceptance or rejection of an order and of the anticipated delivery date for accepted orders within thirty (30) days after receipt of the purchase order. Any purchase order placed with less than the required lead time may result in additional charges should LitePoint accept the requested delivery schedule.
3.2. Cancellations and Rescheduling.
a) Customer may cancel a purchase order without penalty by giving written notice of the cancellation to LitePoint within forty eight (48) hours of the initial placement of the order. After such time, Customer may not cancel, modify, or reschedule orders for Products within 30 days of original requested delivery date. Customer may modify or cancel orders more than 30 days before original requested delivery date, subject to a ten percent (10%) cancellation fee on the entire order if cancelled, or in the case of a modification, a ten percent (10%) cancellation fee on the positive difference, if any, in price of the order prior to the modification and the price of the order subsequent to the modification.
b) Customer may delay shipment only once, and for no more than 30 days from original requested delivery date, by giving written notice and receiving written approval from LitePoint at least 30 days prior to original requested delivery date, and subject to a five percent (5%) rescheduling fee.
c) Any changes to delivery dates or modifications to the order after the initial order date may require a revised quotation and/or price change.
d) Rescheduling of existing purchase orders, if accepted by LitePoint, to an earlier shipping date may require an expedited charge or commission adjustment.
e) Cancellation of custom Products and any items requiring special modifications to standard Products are subject to a one hundred percent (100%) cancellation charge less any credits LitePoint may receive from returning materials to LitePoint’s suppliers.
3.3. Delivery. LitePoint shall use commercially reasonable efforts to supply the Product ordered by Customer in accordance with accepted orders.
a) All Products delivered to Customer shall be suitably packaged, according to LitePoint’s sole judgment, for surface or air shipment in LitePoint’s standard shipping cartons. Unless otherwise agreed by the parties, LitePoint shall select the carrier.
b) All shipping terms shall be with reference to Incoterms 2010 definitions.
c) Unless otherwise indicated on the LitePoint quotation or sales order acknowledgement, each shipment will be delivered Ex Works LitePoint’s facilities (the “Shipping Point”) for delivery to the designated carrier.
d) If Incoterm FCA, CPT or CIP selected: LitePoint is authorized to act as Customer’s true and lawful agent for purposes of preparing and filing the Electronic Export Information in accordance with the laws and regulations of the United States.
e) Title to, and risk of loss or damage to such delivered Products shall pass to Customer per the shipping terms in the quotation or sales order acknowledgement, subject to Incoterms 2010 definitions, and where such quotation, sales order acknowledgement, or definitions are not specific as to the point of transfer of title and risk of loss, Customer shall assume title to and risk of loss as if the shipping terms were Ex Works Shipping Point. All freight, insurance, duty, and other shipping expenses, as well as any special packing expenses, shall be paid by LitePoint or Customer per the shipping terms in the quotation or sales order acknowledgement, subject to Incoterms 2010 definitions, and where such quotation, sales order acknowledgement, or definitions are not specific as to these charges, they shall be paid by Customer.
f) Customer shall also bear all applicable taxes, tariffs, duties, and similar charges that may be assessed against the Product after delivery to Customer or to the carrier at the Shipping Point.
g) If Customer does not take delivery 7 days after shipment date, LitePoint may cancel this order without notice and charge a ten percent (10%) cancellation fee.
h) If Customer requests delivery of Products to Customer’s forwarding agent or another representative in the country of shipment, Customer shall assume responsibility for compliance with applicable export laws and regulations, including the preparation and filing of shipping documentation necessary for export clearance.
i) LITEPOINT SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR PENALTY FOR DELAY IN DELIVERY OR FOR FAILURE TO GIVE NOTICE OF ANY DELAY. EXCEPT IN ACCORDANCE WITH THE APPLICABLE SHIPPING TERMS SET FORTH IN THESE TERMS OF SALE, LITEPOINT SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH SHIPMENT, NOR SHALL THE CARRIER BE DEEMED TO BE AN AGENT OF LITEPOINT.
3.5. Shipment Acceptance.
a) Products are considered accepted by Customer upon transfer of title of the Product. Any other acceptance procedures must be agreed to by LitePoint’s authorized representative in writing prior to shipment and may be subject to additional charges.
b) All sales are final. Except as provided in LitePoint’s warranty statements, LitePoint does not accept returns unless (i) LitePoint shipped a product other than as specified in the Purchase Order, and (ii) such Product is unused and still in its original packaging, and (iii) the Product is returned in accordance with LitePoint’s then current RMA policy and procedures.
4. SOFTWARE LICENSE.
Software accompanying or for use with hardware Products is provided under a written Software End User License Agreement which includes restrictions on use, disclosure and copying, and which is incorporated herein by reference. Customers may obtain a copy of LitePoint’s Software End User License Agreement here, accompanying the associated Software and/or hardware Product, or from a LitePoint representative.
5. WARRANTY AND DISCLAIMER.
5.1. Limited Product Warranty. LitePoint warrants, only to Customer that, for a period of one (1) year after delivery of the LitePoint hardware Product (including system software incorporated therein and required to operate the hardware Product, but specifically excluding any application or other software which is covered in 5.5 below), or for a period of ninety (90) from delivery with respect to replacement parts, that the Product or replacement parts will operate in substantial compliance with the specifications in the associated LitePoint data sheet. LitePoint does not warrant that the Product will operate without interruption or will be error free, or that all errors will be corrected.
5.2. Exclusive Remedy. LITEPOINT’S SOLE LIABILITY AND OBLIGATION, AND CUSTOMER’S SOLE REMEDY, FOR BREACH OF THE FOREGOING WARRANTY SHALL BE REPAIR OR REPLACEMENT OF THE PRODUCT (or, at the sole option of LitePoint, a refund of the purchase price). This warranty and remedy is conditioned on Customer’s prompt written notice to LitePoint, within the warranty period, of the nonconformity, and Customer’s following LitePoint’s Product return procedures.
5.3. Services. Services provided hereunder shall be performed in a workmanlike manner consistent with industry standards. Customer must notify LitePoint promptly, but in no event more than thirty (30) days after completion of the services, of any claimed breach of this services warranty. Customer’s sole and exclusive remedy for breach of this services warranty shall be, at LitePoint’s option, (i) re-performance of the services, or (ii) return of the portion of the service fees paid to LitePoint by Customer for such non-conforming services, termination of any remaining related services to be performed by LitePoint, and termination of all other LitePoint obligations with respect to those services under these Terms and Conditions. Other than with respect to replacement parts warranties in Section 5.1, the provision of services under these Terms and Conditions shall not extend the warranties provided with any hardware purchased or software licensed by Customer.
5.4. Limitations. LitePoint’s warranty shall not extend to problems in the Product that result from (i) Customer’s failure to implement all error corrections to the Product which are made available by LitePoint, (ii) changes to the Product or system software or interacting Product made by parties other than LitePoint, (iii) any use of the Product in a manner for which it was not designed or as not authorized under associated documentation or end user software licenses, (iv) negligence on the part of Customer, its employees, consultants, or agents, (v) any use of the Product with other products, hardware, software, or items not supplied by or inconsistent with the documentation provided by LitePoint, (vi) misuse, abuse, accident, power surge, or operating conditions outside of the Product’s operating specifications or, (vii) Customer use for beta, evaluation, testing, or demonstration purposes, or other circumstances for which LitePoint does not receive a payment of a purchase price or license fee.
5.5. Software. Except as set forth hereinabove with respect to the system software, application software and all other software provided by LitePoint is provided under the LitePoint Software End User License Agreement.
5.6. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH ABOVE, LITEPOINT AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, OR BY COURSE OF DEALING OR TRADE USAGE, AND LITEPOINT AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON–INFRINGEMENT AND SATISFACTORY QUALITY. EXCEPT AS EXPRESSLY STATED HEREIN, ALL PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY. CUSTOMER ASSUMES THE ENTIRE COST OF ANY DAMAGE RESULTING FROM THE INFORMATION PRODUCED BY THE PRODUCT OR ANY CHANGES MADE BY THE PRODUCT TO ANY THIRD PARTY OR CUSTOMER HARDWARE, SOFTWARE, OR INVENTORY. CUSTOMER ASSUMES ALL RESPONSIBILITIES FOR SELECTION OF THE PRODUCT TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT.
6. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT ALLOWED UNDER LAW, IN NO EVENT WILL LITEPOINT OR ITS SUPPLIERS BE LIABLE FOR ANY LOST PROFITS OR INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR INDIRECT DAMAGES, AND INCLUDING BUT NOT LIMITED TO, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, THE COST OF PROCURING SUBSTITUTE OR ALTERNATIVE GOODS AND SERVICES, OR OTHER SIMILAR LOSS ARISING FROM THE USE OF (OR INABILITY TO USE) THE PRODUCT OR DOCUMENTATION, THE DATA COLLECTED OR CREATED IN THE USE OF THE PRODUCT, OR THE ACCOMPANYING DOCUMENTATION, NO MATTER HOW CAUSED AND ON ANY THEORY OF LIABILITY. IN NO EVENT SHALL LITEPOINT’S TOTAL LIABILITY TO CUSTOMER FOR ALL DAMAGES, IN ANY ONE OR MORE CAUSES OF ACTION, ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE OR USE OF A PRODUCT UNIT (INCLUDING WITHOUT LIMITATION PURSUANT TO SECTION 7) EXCEED THE AMOUNT PAID BY CUSTOMER FOR THOSE PRODUCT UNIT(S) THAT ARE STILL WITHIN THEIR WARRANTY PERIOD. These limitations will apply notwithstanding the failure of essential purpose of any limited remedy and even if LitePoint, its suppliers or dealers have been advised of the possibility of such damage or of any type of use intended by Customer. Customer acknowledges that these limitations are integral to the amount of consideration levied under these Terms and Conditions and that the consideration reflects this allocation of risk.
7. INFRINGEMENT INDEMNITY.
7.1. LitePoint’s Indemnity. LitePoint shall defend or settle any claim, demand, suit or proceeding against Customer to the extent that such claim, demand, suit or proceeding is based on an allegation that any portion of the Product owned by LitePoint, as furnished to Customer under these Terms and Conditions and used as authorized in these Terms and Conditions, infringes any third party’s copyright or misappropriates such third party’s trade secrets (an “Action”), provided that Customer (i) gives prompt written notice of the Action to LitePoint, (ii) gives LitePoint the exclusive authority to control and direct the defense or settlement of such Action, and (iii) gives LitePoint, at Customer’s own expense, all reasonably necessary information and assistance needed for the defense or settlement of such action. LitePoint shall pay all amounts paid in settlement and all damages and costs awarded with respect to such Action defended by LitePoint. Customer may participate in the defense of an Action after LitePoint assumes the defense or settlement of the Action, provided that Customer shall pay any legal fees and expenses and other costs of defense it incurs in so participating. LitePoint will not be liable for any costs or expenses incurred without its prior written authorization.
7.2. Replacement Product. If any portion of the Product is held, or in LitePoint’s opinion is likely to be held, to infringe or misappropriate a third party’s intellectual property rights, then LitePoint may at its sole option and expense: (i) procure for Customer the right to continue using the Product, (ii) replace the Product with non-infringing Product, or (iii) in the event that neither of the foregoing is reasonably practicable, terminate these Terms and Conditions and refund to Customer the amounts paid for the Product returned to LitePoint, less a reasonable sum for prior use based on the price originally paid by Customer to LitePoint for the Product, and reduced by an equal monthly amount on a straight line basis over three years from date of original shipment.
7.3. Limit on Indemnity. The foregoing notwithstanding, LitePoint shall have no liability for a claim of infringement to the extent the claim is based on: (i) the use by Customer of any Product more than thirty (30) days after LitePoint notifies Customer in writing that continued use of the Product may subject Customer to such claim of infringement, provided that such claim of infringement would have been avoided by the use of a replacement release made available by LitePoint; (ii) the combination of any Product with other products not provided by LitePoint, which claim would have been avoided if Product had not been so combined; or, (iii) the modification of any of the Product by anyone other than LitePoint or its suppliers (iv) LitePoint’s compliance with Customer’s designs, specifications, or instructions.
7.4. Entire Liability. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF LITEPOINT, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT BY THE PRODUCT AND ITS DOCUMENTATION.
8. TERM AND TERMINATION.
8.1. Term. These Terms and Conditions shall remain in full force and effect until otherwise terminated below.
a) This Agreement will automatically and immediately terminate if Customer breaches any provision of the Software End User License Agreement.
b) LitePoint may elect to terminate these Terms and Conditions if Customer is late in its payment for Product.
c) Either party may terminate these Terms and Conditions if the other party breaches a material term and such breach is not cured within thirty (30) days of written notice of the breach as given by the non-breaching party.
d) Either party may immediately terminate these Terms and Conditions by delivering written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for the other party or its property; (ii) the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within ninety (90) days; or (iii) the other party is liquidated or dissolved.
8.3. Effect of Termination.
a) Upon termination of these Terms and Conditions, all rights and licenses granted hereunder shall terminate, except as expressly provided in Section 8.3 (c) below.
b) Upon termination of these Terms and Conditions, Customer shall immediately discontinue use of the Product and documentation for which full payment has not been made and return it to LitePoint.
c) The provisions of 1, 2.5, 4 – 7, 8.3, and 9 – 18 of these Terms and Conditions shall survive any termination or expiration of these Terms and Conditions.
8.4. Other Remedies. Except as specifically provided otherwise, and subject to the limitations on liability set forth above, any and all rights and remedies of a party upon another party’s breach of or default under these Terms and Conditions (whether expressly conferred by these Terms and Conditions or otherwise) shall be deemed cumulative with, and not exclusive of, any other right or remedy conferred by these Terms and Conditions or by law or equity on such party, and the exercise of any one remedy shall not preclude the exercise of any other. The waiver by either party of any right provided under these Terms and Conditions shall not constitute a subsequent or continuing waiver of such right or of any other right under these Terms and Conditions.
9. DISPUTE RESOLUTION.
Except for actions by a party for infringement of its patent or other intellectual property rights, any dispute or claim arising out of or relating to this these Terms and Conditions or breach thereof shall be finally resolved by arbitration in the City of San Jose, California before, and in accordance with the rules of, the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Either party, however, shall be entitled to apply to any court of competent jurisdiction for injunctive or equitable relief. In any suit or proceeding, including arbitration or mediation, relating to these Terms and Conditions the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of these Terms and Conditions, and shall survive expiration or termination and shall not be merged into any such judgment.
10. FORCE MAJEURE.
LitePoint shall not be liable for nonperformance or delays, not otherwise excused, which occur due to causes beyond its reasonable control. These causes shall include, but shall not be limited to, acts of God, wars, riots, strikes, fires, storms, flood, earthquake, shortages of labor or material, labor disputes, vendor failures, transportation embargoes, acts of any government or agency thereof, judicial action or any or all other causes beyond its reasonable control. In the event of any such excused delay or failure of performance, the date of delivery shall, at the request of LitePoint, be deferred for a period equal to the time lost by the delay. LitePoint shall notify Customer in writing of any such event or circumstances within a reasonable time after it learns of same.
11. PROPRIETARY RIGHTS.
LitePoint retains all proprietary rights in and to all designs, engineering details and other data pertaining to the Products specified in the order and to all discoveries, inventions, copyrights, patents and trade secrets which may be found or developed as a result of the efforts and work done by LitePoint in connection with the order and to any and all Products developed by LitePoint, including the sole right to manufacture or copy any and all such Products. Except as expressly set forth in Section 4 with respect to software, no license, express, implied, or otherwise, is granted by LitePoint. LitePoint may require Customer to execute a separate confidential disclosure agreement.
12. MODIFICATION AND SUBSTITUTIONS.
LitePoint reserves the right to make substitutions and modifications in the specifications of Products manufactured by LitePoint providing that such substitution or modification will not materially adversely affect the form, fit or function of the Product. Products may contain reconditioned parts.
Customer may not assign these Terms and Conditions, whether by operation of law, merger or reorganization, without the prior written consent of LitePoint; any attempted assignment in violation of the foregoing will be void. Notwithstanding any assignment by Customer, Customer shall remain liable for the payment of all amounts due under these Terms of Conditions. LitePoint may assign, without notice, its rights and interests under these Terms and Conditions, including but not limited to its rights to payment and remedies for non-payment, but will remain responsible for all of LitePoint’s obligations hereunder. LitePoint’s assignees will have LitePoint’s rights and remedies, but will not be subject to Customer’s defenses against LitePoint.
14. GOVERNMENT REGULATIONS.
14.1. Customer understands that LitePoint is subject to regulation by agencies of the U.S. Government, including, but not limited to the U.S. Department of Commerce, which prohibit export or diversion of certain technical products to certain countries and prohibits corrupt payments to foreign officials for the purposes of obtaining or keeping business. Customer warrants that it will comply in all respects with (i) the Export Administration Regulations and all other export and re-export restrictions as may be applicable to the Product, and (ii) the United States Foreign Corrupt Practices Act of 1977.
14.2. To the maximum extent permitted by law, Customer shall be solely responsible for complying with, and shall otherwise assume all liabilities that may be imposed in connection with, any legal requirements adopted by any governmental authority related to Directive 2012/19/EU of the European Parliament and of the Council on Waste Electrical and Electronic Equipment (WEEE) (recast), dated 4 July 2012, or otherwise mandating waste collection, treatment, recovery, disposal, financing or related obligations in connection with the Products. Customer shall defend, indemnify and hold LitePoint harmless from any damage, claim or liability relating thereto. At the time Customer desires to dispose of the Products, Customer is responsible for ensuring that products are handled appropriately and in accordance with all applicable laws. Customer shall contact LitePoint directly, if necessary, to confirm the waste management options.
15. NO AGENCY.
These Terms and Conditions do not create any agency, partnership, joint venture, or franchise relationship. No employee of either party shall be or become, or shall be deemed to be or become, an employee of the other party by virtue of the existence or implementation of these Terms and Conditions. Each party hereto is an independent contractor. Neither party shall assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
Notices required under these Terms and Conditions shall be given in writing and directed to the address set forth below for LitePoint, or for Customer, to either of the last address a) to which an invoice was sent by LitePoint, or b) from which a purchase order was received by LitePoint. LitePoint’s address for notices is: LitePoint Corporation, Attn: Contracts, 965 West Maude Avenue, Sunnyvale, CA 94085 USA, or alternately, email@example.com. Acceptable methods for sending notice are overnight courier, certified mail, or electronic mail. Notices given by overnight courier or certified mail are deemed delivered two (2) days after posting and notices given by email are deemed to be delivered when sent. Notwithstanding the foregoing, notices regarding changes in software license terms, policies, or programs may be delivered by posting on LitePoint.com or by email.
17. ENTIRE AGREEMENT.
This Agreement constitutes the final, complete and exclusive agreement between the parties with respect to Customer’s use of the Products and supersedes any prior or contemporaneous representations or agreements, whether written or oral.
These Terms and Conditions are governed by the laws of the State of California, excluding conflicts of laws principles. Customer consents to the exclusive jurisdiction and venue of the state and federal courts located in San Jose, California for all claims, actions and disputes (if any) not subject to arbitration. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms and Conditions shall remain in full force and effect. The headings in these Terms and Conditions are inserted for convenience only and do not affect its interpretation.
1. Personal data and data subject
means any information relating to an identified or an identifiable natural person (a “data subject”
). An identifiable natural person is one who can be identified, directly or indirectly, e.g. by reference to a name, an identification number or online identifiers.
Personal Data is generally categorized as either “ordinary personal data” or “sensitive personal data”. Sensitive personal data is always confidential and includes racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic and biometric data, health, and sexual orientation. Ordinary personal data is partly confidential, includes information related to criminal offences and national identification numbers, information regarding a person’s salary, pension, debt, application material, etc., and all other types of ordinary personal data, including name, customer number, (business) contact information such as email and telephone number, photos, IP-address, and other usage information collected via cookies.
2. Principles of personal data protection
LitePoint complies with the following principles in order to ensure the protection of personal data in accordance with GDPR:
Purpose limitation LitePoint may only collect and process personal data, including sensitive data (if any) for specified, explicit and legitimate purposes relevant for the business of LitePoint.
Lawfulness, fairness, and transparency personal data must be processed lawfully, fairly, and in a transparent manner in relation to the data subject. Where legally required, LitePoint will inform the individual about the purpose for processing their personal data, their rights to have their personal data rectified, deleted or blocked, and the identity of the company responsible for the collection and processing of their personal data.
Data minimization LitePoint may only collect and process personal data adequate, relevant and limited to what is necessary in relation to purposes for which they are processed.
Accuracy to ensure that personal data processes are accurate, LitePoint must make sure that personal data is reviewed and updated in regular intervals, where appropriate.
Storage limitation personal data must only be stored for the length of time required to fulfil the purpose, or as prescribed by the law.
Integrity and confidentiality when processing personal data, it is important that such personal data is safeguarded by adequate security measures to minimize risks, such as loss of data, unauthorized access, destruction, and accidental disclosure.
Cross border transfer of data specific rules apply when LitePoint transfers personal data from the EU/EEA to third countries or international organizations as discussed further in the data transfer section below.
Accountability to ensure that personal data processing is performed in accordance with GDPR, LitePoint has implemented appropriate technical and organizational measures which are reviewed and updated as necessary.
3. Owner and Data Controller
LitePoint is the owner (“Owner”
) and data controller (“Data Controller”
The Corporation Trust Company
1209 Orange Street
Wilmington, DE 19801
180 Rose Orchard Way
San Jose, CA 95134
LitePoint has offices worldwide. Location and contact details of worldwide offices can be located on the LitePoint’ website on the contact page.
LitePoint’ parent company is Teradyne Inc., located at Riverpark Drive, North Reading, Massachusetts 01864, USA.
4. The types of and purpose for the collection of personal data
Employment. LitePoint collects and processes personal data, including sensitive data (if any) of applicants, candidates and employees for employment purposes and in accordance with legal requirements.
Visitors. LitePoint collects and processes personal data of visitors including name, title (if applicable) and contact details for security reasons and registers such information in the visitor log prior to granting visitors access to the LitePoint premises.
LitePoint’ website users. LitePoint collects by itself or through third parties personal data of website users, which may include: cookies, usage data, name, contact details, and company information, if applicable. The data is collected and processed for marketing, advertising, and analytics purposes, and also for contacting the website users, any App users, managing contacts and sending messages, remarketing and behavioral targeting.
For operation and maintenance purposes, LitePoint and any third-party service providers may collect files that record a user’s interaction with the website (“System logs”). Such personal data is obtained through consent by the website users in case of usage data and collected automatically on the LitePoint´ website.
The website does not support “Do Not Track” requests. To determine whether any of the third-party services it uses honour the “Do Not Track” requests, please read their privacy policies.
Users are responsible for any third-party personal data obtained, published or shared through the website and confirm that they have the third party’s consent to provide such personal data to LitePoint. Users who are uncertain about which personal data is mandatory are welcome to contact the Data Protection Team.
Marketing. LitePoint collects and processes personal data (including name and contact details) about current and new customers, business partners, suppliers, including third-party service providers, distributors, leads and individuals, website users and on individuals who have signed up for LitePoint’ newsletters or other electronical marketing materials, as well as in some cases for the following purposes: analytics, contacting, managing contacts and sending messages, remarketing and behavioral targeting, advertising, and exhibitions.
Such personal data is collected and processed under the marketing consent. LitePoint obtains valid consent through an online form. The marketing department and other involved departments must ensure that marketing consent is obtained before collecting and processing such personal data.
LitePoint may use third parties as a service provider to send out marketing information on its behalf but only in accordance with applicable legal requirements.
For any further questions related to marketing information, please contact the marketing department.
Contracts, purchase orders, and other transactional agreements. In connection with its sales and purchase transactions, LitePoint collects and processes personal data, including the name, contact details, delivery details, correspondence, and payment details necessary for conducting business and to comply with export compliance regulations and other legal due diligence obligations.
Accounting and Finance. LitePoint collects personal data for accounting and financial purposes in accordance with applicable requirements. This information is provided to accounting by other internal departments or received directly from the individuals/companies, employees, and includes information such as name, address, company name, registration number, payment details and bank details, delivery address and other mandatory information.
Legal action. In case of a dispute, LitePoint may retain personal information necessary for its legitimate interest to ensure that LitePoint can properly bring or defend legal claims in court or during the stages leading to possible legal action. LitePoint may need to share this information with third parties such as insurance and/or legal advisers and LitePoint may also be required to reveal personal data upon request of public authorities.
Consent & withdrawal of consent. To the extent that our processing activities is based on your consent, you will have the right to withdraw your consent at any time. If you withdraw your consent, we will cease to process your personal data, unless and to the extent that continued processing is permitted or required according to the applicable personal data legislation or other applicable law. If you withdraw your consent, it will not affect the lawfulness of processing conducted prior to the withdrawal.
Where personal data is processed for a public interest, in the exercise of an official authority vested in LitePoint or for the purpose of the legitimate interests pursued by LitePoint, an individual may object to such processing by providing a ground related to the individual’s particular situation to justify the objection. However, if personal data is processed for direct marketing purposes, an individual can object to such processing at any time without providing any justification by contacting the Data Protection Team.
5. Legal grounds for processing of personal data
LitePoint may process personal data if one of the following options applies:
- Individual/company has given prior consent to processing of his/her/its personal data for one or more specific purposes. Note: Under some legislations LitePoint may be allowed to process personal data until individual object to such processing (“opt-out”), without having to rely on consent or any other of the following legal bases. This, however, does not apply, whenever the processing of personal data is subject to European Data Protection law;
- processing of data is necessary for the performance of a contract and/or for any pre-contractual obligations thereof;
- processing is necessary for compliance with any legal obligations;
- processing of your personal data is necessary to establish, exercise or defend any legal claims;
- processing is related to a task that is carried out in the public interest or in the exercise of official authority vested in LitePoint;
- processing is necessary for the purposes of the legitimate interests pursued by LitePoint or by a third party, if such interests are not considered to override individual/company interests or fundamental rights. Such legitimate interests may be LitePoint’ interests in developing, marketing and selling the products and providing services, pursuing and maintaining business relationship with customers, suppliers, distributors, partners and other business relations.
Upon request, LitePoint will provide information to clarify the specific legal basis that applies to the processing, and in particular whether the provision of personal data is a statutory or contractual requirement, or a requirement necessary to enter into a contract.
6. Place and data transfer
The personal data is processed at the LitePoint’ operating offices and in any other places where the parties involved in the processing are located. Specific rules apply when LitePoint transfer personal data from the EU/EEA to third countries or international organizations. When transferring personal data to third countries or international organizations, LitePoint is obligated to establish appropriate safeguards prior to the transfer, which in practice are established by entering the European Commission’s standard contractual clauses.
In accordance with the GDPR, LitePoint has concluded Data Processing Agreement (DPA) and/or Joint Data Controller Agreement (JDCA) and/or agreements with Standard Contractual Clauses (SCCs) with external parties and affiliated companies, as applicable.\
7. Retention period
Personal data collected by LitePoint shall be processed and stored for as long as required by the purpose for which the personal data has been collected. LitePoint may be allowed to retain personal data for a longer period if LitePoint has obtained valid consent to the processing activity as long as such consent is not withdrawn. Furthermore, LitePoint may be obliged to retain the personal data for a longer period, whenever required to do so for the performance of a legal obligation or to establish, exercise or defend a legal claim.
Once the retention period expires, personal data shall be deleted. Therefore, the right to access, the right to erasure, the right to rectification and the right to data portability cannot be accommodated after expiration of the retention period.
8. Data security and data breach
LitePoint takes appropriate security measures to prevent unauthorized access, disclosure, modification, or unauthorized destruction of personal data. The data processing is carried out using computers and/or IT enabled tools, following organizational procedures and modes strictly related to the purposes indicated. In order to protect your personal data, we continuously assess the risks that may be associated with our processing of your personal data. In particular, we pay attention to protecting your personal data against discrimination, identity theft, financial loss, loss of reputation and data confidentiality. To avoid loss of personal data, we continuously backup our systems, and we make use of encryption or other security measures where necessary. Finally, we train our employees in handling personal data.
In the event of a data breach that involves high risk to your rights, we will notify you of the breach as soon as possible under the given circumstances. “A personal data breach” means a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data. In short, there will be a personal data breach whenever any personal data is lost, destroyed, corrupted, disclosed without proper authorization, or if the data is made unavailable.
If you experience or suspect a personal data breach, please report to Data Protection Team immediately.
9. Individuals’ rights
Where legally required, LitePoint shall inform individuals of the purpose of processing their personal data, rights to have their personal data rectified, deleted or blocked, and the identity of the company responsible for the collection and process their personal data. In all other cases, users may inquire with Data Protection Team to find out which rights apply to them.
Individuals have the following rights:
- Withdrawal of consent – the right at any time to withdraw previously given consent to the processing of his/her/its personal data.
- Access to personal data – the right to learn if personal data is being processed by LitePoint, obtain disclosure regarding certain aspects of the processing and obtain a copy of the data undergoing processing.
- Verify and seek rectification – the right to verify the accuracy of his/her/its personal data and ask for it to be updated or corrected.
- Restrict the processing of personal data – the right, under certain circumstances, to restrict the processing of his/her/its personal data. In this case, LitePoint will not process mentioned personal data for any purpose other than storing it.
- Deleted personal data or otherwise removed – the right, under certain circumstances, to obtain the erasure of his/her/its personal data from LitePoint.
- Have personal data transferred to another data controller – the right, under certain circumstances, to have personal data transmitted to another controller without any hindrance.
- Lodge a complaint – the right to bring a claim before his/her/its competent data protection authority.
To prevent any violation of applicable law, regulations and corporate standards, LitePoint organizes formalized GDPR training for its employees in accordance with a corporate training plan. Training on personal data protection may be conducted via electronic communication, webinars, or in-person training. All employees are trained on basic GDPR requirements and certain groups have more advanced training on personal data processing based on business needs.
11. Ongoing Audit & Monitoring
12. Reporting system and contact details
Any request can be exercised free of charge and will be addressed as expeditiously as possible and always within one (1) month or sooner, if required by applicable law.