DEVELOPMENT PLATFORM HARDWARE - TERMS & CONDITIONS OF SALE
  1. Controlling Document. The acceptance of the order from the purchaser (the "Purchaser") is expressly made conditional on Purchaser's agreement to the terms and conditions of this document, and Canesta, Inc. ("Canesta") agrees to furnish its development platform hardware (the "Product") only upon these terms and conditions. This document constitutes the entire agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements. No term or condition of any purchase order or other document submitted by Purchaser that is inconsistent with these terms and conditions, or that imposes additional obligations on Canesta, will be binding on Canesta. No waiver, alteration, or modification of any of the provisions hereof will be binding on Canesta unless made in writing signed by an authorized officer of Canesta.

  2. Prices and Taxes. The Product price quoted by Canesta is for supply of the Product F.O.B. Canesta's facility and excludes sales, use, excise or other taxes, customs duties, insurance, and any other fees or charges imposed by any governmental authority, all of which will be paid by Purchaser in addition to the price quoted. If Canesta is required to pay any such tax, fee, or charge, Canesta may invoice Purchaser for the amount paid. Purchaser shall pay any required withholdings on the purchase price, so that the net amount received by Canesta is the full purchase price quoted.

  3. Terms and Method of Payment. Purchaser shall pay the full purchase price of the Product at the time Purchaser places the order, unless Canesta agrees to extend credit to Purchaser. If Canesta extends credit to Purchaser, the terms of payment will be net thirty (30) days from date of invoice. Delinquent payment of any invoice will be subject to a finance charge of one and one-half percent (11/2%) per month or, if less, the maximum amount permitted by law. Once Purchaser places an order, Purchaser may not cancel the order or defer shipment. All payments to Canesta shall be in United Stated Dollars.

  4. Security Interest. Canesta is hereby granted a security interest in the Product, and the proceeds thereof, to secure payment of the purchase price and any other amounts that become due. Canesta shall be entitled to execute and file a UCC-1 or similar financing statement, under the Uniform Commercial Code or other applicable law, to perfect such security interest.

  5. Delivery and Delay.All risks of loss or damage in transit are borne by Purchaser. Delay in delivery will not relieve Purchaser of its obligation to accept delivery. Canesta will not be liable for any loss or damage resulting from any delay due to any cause beyond Canesta's direct reasonable control such as acts of God, fire, accidents, strikes, acts of third parties, or inability to obtain labor or materials. In case of any such delay, the delivery date will be extended by the amount of the delay.

  6. Inspection. Purchaser will examine the Product promptly upon receipt and notify Canesta in writing within fourteen (14) days of such receipt if any items or components were not included in the shipment. Failure to give such notice will constitute a waiver of any claims of shortages.

  7. Limited Warranty. Canesta warrants that the Product will be free from defects in materials or workmanship for a period of ninety (90) days from date of shipment from Canesta's facility. The liability of Canesta under the foregoing warranty is limited, at Canesta's option, solely to repair or replacement of the Product, or a refund of the purchase price of the Product, provided that (a) Canesta is notified in writing by Purchaser, within the warranty period, promptly upon discovery of defects, with a detailed description of such defects, (b) Purchaser has obtained a Return Materials Authorization ("RMA") number from Canesta, (c) the defective Product is returned to Canesta, shipping charges prepaid by Purchaser, and (d) Canesta's examination of such Product discloses to its reasonable satisfaction that defects were not caused by negligence, misuse, accident or unauthorized repair or modification or any other cause outside the scope of Canesta's warranty. The original warranty period for any Product which has been repaired or replaced by Canesta will not thereby be extended. THE FOREGOING WARRANTY IS PROVIDED EXPRESSLY IN LIEU OF, AND CANESTA HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.

  8. Limitations of Liability. IN NO EVENT, INCLUDING WITHOUT LIMITATION IF THE PRODUCT IS NONCONFORMING, DEFECTIVE, INFRINGING, DELAYED, OR NOT DELIVERED, WILL CANESTA BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (SUCH AS LOST PROFITS), EVEN IF CANESTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER A CONTRACT, TORT, WARRANTY, OR OTHER LEGAL THEORY. IN NO EVENT WILL CANESTA'S TOTAL LIABILITY TO PURCHASER RELATING TO THE PRODUCT OR ITS USE EXCEED THE AMOUNT PURCHASER PAYS CANESTA FOR THE PRODUCT.

  9. Proprietary Rights.Canesta retains all proprietary rights in and to the Product, and in any modifications or improvements to the Product that may result from suggestions or input from Purchaser, including but not limited to rights under patent, copyright, trademark, mask work, and trade secret laws, in all jurisdictions.

  10. Infringement Claims.Canesta will indemnify and hold Purchaser harmless from any third party claim made against Purchaser alleging that the Product, or Purchaser's use thereof, infringes a United States patent, copyright, mask work or other United States proprietary rights. Canesta's obligations under this Section 10 will not apply, however, to claims of infringement based on (i) modifications to the Product not made or authorized by Canesta, or (ii) use of the Product in combination with any other products that are neither furnished by Canesta nor specified by Canesta for use with the Product. Canesta's obligations under this Section 10 are further expressly conditioned on Purchaser's notifying Canesta in writing of any claim of infringement within ten (10) days after Purchaser's notice thereof, and giving Canesta full and complete authority, information, and assistance necessary for the settlement and defense of any such claim. In no event will Canesta's liability to Purchaser for infringing Product sold hereunder exceed the amounts actually paid by Purchaser for such Product. Purchaser will indemnify Canesta for the costs of defending any suit or proceeding (including expenses, costs, attorneys' fees, and payment of judgment or settlement) brought against Canesta for infringement if the claimed infringement has resulted from (i) modifications to the Product not made or authorized by Canesta, or (ii) use of the Product in combination with any other products that are neither furnished by Canesta nor specified by Canesta for use with the Product.

  11. Government Contracts. If any purchase order indicates that the purchase is being made for use under a U.S. Government Contract, only those terms and conditions which are made mandatory by federal statute or regulation for inclusion in fixed price supply subcontracts covering standard commercial proprietary items sold to the public will be deemed incorporated herein. Any other (nonmandatory) terms and conditions of the prime Government contract which are intended to be included herein must be set forth in a separate written document signed by an authorized officer of Canesta in order to be binding on Canesta.

  12. No Application to Licensed Products. These Standard Terms and Conditions only apply to the sale of the Product to Purchaser, and not to the software development kit (SDK) or any other software that is provided to Purchaser with the Product. All such software is licensed to Purchaser pursuant to the terms and conditions of the license agreements separately provided to Purchaser.

  13. Technical Support. For a period of ninety (90) days after delivery of the Product, Canesta will provide Purchaser with a reasonable level of technical support relating to the Product, via e-mail. Any additional technical support or consulting services, if provided by Canesta, will be billed at Canesta's then-current standard rates.

  14. Confidentiality. If any Confidential Information of Canesta is disclosed to Purchaser in the course of Canesta's rendering of technical support or otherwise, Purchaser agrees that it will (i) use the Confidential Information only in connection with its internal use of the Product, and (ii) hold the Confidential Information in confidence and not disclose it to any third party. As used above, the term "Confidential Information" means information that is designated by Canesta as confidential, or that should otherwise be understood to be confidential due to its nature. Confidential Information does not, however, include information that (i) is or becomes public knowledge without the fault of Purchaser, (ii) Purchaser rightfully obtains from a third party without restriction on use or disclosure, (iii) Purchaser can document was independently developed by it without use or access to Canesta's Confidential Information, or (iv) Purchaser can document was previously known to it prior to receipt of Canesta's Confidential Information.

  15. General. These Standard Terms and Conditions will be governed by, and construed in accordance with, the laws of the State of California applied to agreements between California residents entered into and to be performed entirely in California. Any lawsuit relating to the Product or this document will be brought only in a court located in Santa Clara County, California, and Purchaser hereby consents to such venue and jurisdiction. The prevailing party in any suit or proceeding relating to this document shall be awarded its costs and reasonable attorneys' fees. If the application of any provision of this document shall be held to be invalid or unenforceable by any court of competent jurisdiction, then (i) to the extent feasible, such provision shall be reformed in a manner that makes it enforceable and which accomplishes the intention of this document as nearly as possible, and (ii) the validity and enforceability of other provisions of this document shall not in any way be affected or impaired thereby. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to the sale of the Product pursuant to this document.