GENERAL TERMS AND CONDITIONS OF SALE

All orders received by Valens® Semiconductor Ltd. (“Valens” or the “Company”), of 8 Hanagar St., Hod Hasharon, Israel 4501309, are subject to these General Supply Terms and Conditions (“T&C“), the terms and conditions on any order acknowledgement form, and any special terms and conditions specified on Valens product price quotation. Unless explicitly otherwise agreed to in writing, these T&C (i) apply to all products and services supplied or provided by Valens and (ii) apply notwithstanding any terms, conditions and/or provisions or referenced in or accompanying Customer’s purchase order or any other communication from Customer which are in any way inconsistent with, or contain any additions, limitations, or other modifications to, these T&C and any such different terms are hereby objected to and rejected by Valens and shall not be otherwise binding upon Valens.

No purchase order and/or special terms and conditions take precedence over these T&C unless specific reference is made to any conflict, waiving the requirements of these T&C. Valens failure to insist upon strict performance of any term or condition shall not constitute a waiver of any subsequent breach by Customer (“Customer”). Customer’s receipt of Valens products as detailed in the order (the “Products”) will manifest Customer’s agreement to these T&C.

Valens reserves the right to change or modify these T&C at any time, at its sole discretion and without prior notice. Any such changes and/or modifications shall become effective immediately upon posting a revised version on https://www.valens.com/legal.

Each of Valens and Customer shall hereinafter be referred to as a “Party” and collectively, the “Parties”.

I.           Prices & Payment

A.           PRICES. Customer shall pay the prices quoted or acknowledged by Valens and all applicable costs, taxes, duties, and charges, including, without limitation, transportation, shipping, insurance, domestic or foreign duties, or any other charges required in the transferring of the Products from Valens’ facility designated by Valens and/or charges for special-requested packaging, design and specifications. 

B.           PAYMENT.  Payment terms shall be prepaid, in cash in USD, unless otherwise approved by Valens. If Customer fails to make any payment when due, Valens reserves the right to suspend or cancel performance under any or all purchase orders with Customer. In addition, Customer will pay Valens interest on any payments not received by Valens when due at the rate of 1.5% per month or the maximum rate allowed by law, whichever is less.

C.           FORECASTS. On or before the fifteenth (15th) day of each calendar quarter, Customer shall provide Valens with a twelve (12) month, non-binding rolling forecast of its anticipated requirements for purchases of Products (“Forecast“). Such forecasts shall be good faith estimates and shall be used only for purposes of preliminary planning and shall not represent either Party’s commitment to purchase/sell any or all of such quantities.

D.           DELIVERY. Valens shall make reasonable commercial efforts to deliver the ordered Products as long as Valens has acknowledged such orders in writing. Valens may accept or reject any offer to purchase its products. Delivery terms shall be on an Ex-Works facility designated by Valens (Incoterms 2010). For clarification purposes, risk of loss with respect to the Products shall pass to Customer at Valens’ said facility; any loss or damage thereafter shall not relieve Customer from any payment obligation. Delivery dates specified on the order confirmation are approximate only, and any reasonable variation there from shall constitute adequate performance on the part of Valens. Valens shall not be liable for failure to meet delivery terms if such failure is a result of accidents, machinery or equipment breakdown, strikes or labour troubles, material shortages, fires, floods, war, public disturbances or riots, government allocations, acts of God, pandemics or other force majeure events, together or separately (“Force Majeure”) events, or other circumstances beyond Valens control. Unless otherwise agreed between Valens and Customer in writing, the Customer shall be the importer of record and is responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required. Production and deliveries may be allocated by Valens in its sole and reasonable discretion in the event of a shortage of goods. In the event that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by Valens to extend for a period of three (3) consecutive months), Valens shall be entitled to cancel all or any part of these T&C and any affected purchase orders without any liability of Valens towards Customer.

II.          Cancellation & Rescheduling

A.           CANCELLATION. Purchase orders acknowledged by Valens are non-cancellable/non-refundable.

B.           RESCHEDULE. No order, agreement or any part thereof may be rescheduled by Customer without prior written consent of Valens. Subject to Valens’ consent, Customer may only reschedule a delivery date under an outstanding purchase order one (1) time. Customer may only reschedule a delivery date of a purchase order six (6) weeks prior to the delivery due date; provided, however, that Customer may not reschedule a delivery due date that results in a due date more than ninety (90) days after the originally scheduled due date. Any acceleration of the original delivery due date is pending Valens’ written approval.

III.         Warranty 

A.           WARRANTY. Valens warrants to Customer alone that the Products supplied to Customer under these T&C, other than evaluation kits (see below) shall be free from material defects in material and workmanship for a period of 12 months after the date of shipment of the Products to Customer (the “Warranty Period”).

B.           In the event of malfunction during the Warranty Period, attributable directly and exclusively to faulty workmanship and/or materials, Valens may, in its sole discretion and as sole liability and Customer’s sole remedy,  repair or replace said Product(s) or components, to whatever extent it shall deem necessary to restore said Product to proper operating condition, provided that it is returned within the Warranty Period, with proof of purchase and description of malfunction, to a point designated by Valens.

C.           The foregoing Limited Warranty is the sole and exclusive warranty made or deemed made by or on behalf of Valens, and Valens makes no other warranties, in fact or by operation of law, statutory, express or implied.

D.           During the Warranty Period, Customer will promptly notify Valens in writing of any Products that do not comply with the warranty above-described. Such notification shall describe the problem with the product. If required, Valens will issue a Return Material Authorization (RMA) number to the Customer to be used for the return of the defective Product. Customer shall then return to Valens such defective Products to a receiving point designated by Valens. The returned Product must be sent out within seven (7) days after you get the RMA number or Valens reserves the right to refuse the return.  Valens shall bear the shipping charges for the return of defected products. When returning or replacing damaged items, customers shall follow the shipping instructions provided by Valens. Returns or replacements with no tracking information will not be processed.

E.           WARRANTY EXCLUSIONS. Valens’ limited warranty of the Products excludes the following (a) normal wear and tear; (b) accident, disaster or event of force majeure; (c) Customer’s misuse, fault or negligence; (d) causes external to the Products such as, but not limited to, power failure or electrical power surges; (e) any Products not sold to Customer directly by Valens or any used Products; (f) installation, removal, use, maintenance, storage, or handling in an improper, inadequate, or unapproved manner by Customer or any third party (excluding the carrier from Valens to you), such as, but not limited to, failure to follow Valens’ instructions or operating guidelines, or protocols, operation outside of stated environmental or use specifications, or operation or contact with unapproved software, materials, chemicals or other products; or (g) any Products or any parts manufactured in accordance with Customer’s specifications provided to Valens. If Valens determines that products for which Customer requested warranty services are not covered by the limited warranty, or if Valens provides repair services or replacement parts that are not covered by this limited warranty, Customer will pay or reimburse Valens for all costs of investigating and responding to such request at Valens’ then prevailing time and materials rates.

F.             THE FOREGOING WARRANTIES, TERMS OR CONDITIONS ARE THE SOLE EXCLUSIVE WARRANTIES MADE OR DEEMED MADE BY OR ON BEHALF OF VALENS, AND VALENS MAKES NO WARRANTIES, IN FACT OR BY OPERATION OF LAW, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE WHICH WOULD EXTEND BEYOND THE WARRANTIES CONTAINED HEREIN. VALENS WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR EXCESS COSTS OF REPROCUREMENT OF SUBSTITUTE GOODS.

IV.         Indemnification

A.           Valens agrees, at its own expense, to defend Customer against any costs and damages awarded against Customer by a court of competent jurisdiction in a final judgment, as a result of third party claims, suits, or proceedings (collectively “Claims”) based on a claim that Products procured by Customer from Valens hereunder directly infringe upon any U.S. patent or copyright of such third party , and to pay money damages awarded against Customer by a court in a final judgment of the Claim and to the extent directly and solely attributable to such infringement, up to the price paid for the affected Products solely for such infringement; provided that Customer (i) gives Valens immediate notice in writing of the Claim; (ii) permits Valens to have sole control over the defence or settlement of the same; (iii) gives Valens all necessary information, assistance and authority required; (iv) cooperates with Valens, at Valens’ expense in the defence or settlement of the Claim thereof; (v) Does not negotiate any settlement with such third party, and (vi) makes no admission of liability and/or payments or concessions with respect to such Claim without the prior written permission of Valens.

B.           If, as a result of a Claim, Customer is enjoined from using Products purchased from Valens, Valens shall, at its sole discretion, (a) secure for Customer the right to use Products, (b) replace or modify the Products in such a way as to make the modified products non-infringing , or (c) if Valens cannot secure such rights or provide such replacement Products on commercially reasonable terms, refund to Customer the price actually paid for the Products. If the infringement is alleged prior to completion of delivery of the Products under these T&C, Valens may decline to make further shipments without being in breach of these T&C and cancel any related purchase orders, or Valens may agree to make such shipments if Customer agrees in writing to defend, indemnify and hold Valens harmless against any claims, liability, losses, damages and costs in connection with the infringement relating to such shipments.

C.           THE FOREGOING STATES THE ENTIRE LIABILITY OF VALENS AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO CLAIMS RELATING TO THE PRODUCTS AND VALENS SHALL HAVE NO ADDITIONAL LAIBILITY FOR ANY ALLEGED OR PROVEN CLAIM. EXCEPT AS EXPRESSLY STATED HEREIN, ALL WARRANTIES AND/OR CONDITIONS AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS, OR IMPLIED ARE HEREBY DISCLAIMED.

D.           Notwithstanding the above, Valens shall not be liable for any costs or expenses incurred without its prior written authorization, and shall have no obligation or liability for any Claim arising out of: (i) use of the Products in violation of any provision of these T&C, (ii) modifications to Products made by any party other than Valens or modifications made by Valens at the request of Customer; (iii) the use or incorporation in Products of any design, instructions or specifications on behalf of Customer; (iv) the combination or incorporation of Products, or of cores or elements of Products, with any circuitry, software, device, subassembly, system, or materials; (v) any infringement based on protocols established by standards bodies; or (vi) a counterclaim against Customer for claims initiated by Customer against a third party.

V.          Limitation of Liability 

A.           EXCEPT FOR A BREACH OF SECTION CONFIDENTIAL  INFORMATION, IN NO EVENT SHALL VALENS BE LIABLE TO CUSTOMER FOR (i) ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE ARISING OUT OF OR IN ANY WAY RELATED TO THESE T&C OR THE SALE OF PRODUCTS INCLUDING WITHOUT LIMITATION THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, REVENUE OR GOODWILL, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING THE POSSIBILITY OF NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, AND EVEN IF VALENS HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. IN ANY EVENT, THE MAXIMUM LIABILITY OF VALENS UNDER THESE T&C SHALL NOT EXCEED, IN THE AGGARAGATE, THE ACTUAL PAYMENTS RECEIVED BY VALENS FROM THE CUSTOMER, FOR SAME PRODUCT UNITS CAUSING SUCH LIABILITY THAT WERE SOLD DURING THE YEAR IMMEDIATELY PRECEDING THE EVENT ENTITLING CUSTOMER TO ANY COMPENSATION. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.

B.           ANY CLAIM BY CUSTOMER RELATING TO THE PRODUCTS GOODS OR ARISING IN CONNECTION WITH THESE T&C MUST BE BROUGHT BY CUSTOMER WITHIN NINETY (90) DAYS OF THE DATE OF THE EVENT GIVING RISE TO ANY SUCH CLAIM, AND ANY LAWSUIT RELATIVE TO ANY SUCH CLAIM MUST BE FILED WITHIN ONE (1) YEAR OF THE DATE OF THE DATE SUCH CLAIM WAS BROUGHT IN ACCORDANCE WITH THE FOREGOING. TO THE EXTENT PERMITTED BY LAW, ANY CLAIMS THAT HAVE BEEN BROUGHT OR FILED IN CONFLICT WITH THE PRECEDING SENTENCE ARE NULL AND VOID AND SHALL BE DEEMED WAIVED BY CUSTOMER.

C.           CRITICAL COMPONENTS. VALENS’ PRODUCTS ARE NOT AUTHORIZED FOR USE AS CRITICAL COMPONENTS IN LIFE SUPPORT DEVICES OR SYSTEMS. Life support devices or systems are those which are intended to support or sustain life and whose failure to perform can be reasonably expected to result in a significant injury to the user. Critical components are those whose failure to perform can be reasonably expected to cause failure of a life support device or system or affect its safety or effectiveness.

VI.         Integration

A.           INTEGRATION. Customer shall be solely responsible for the integration, installation and operation of the Products, including without limitation the obtaining of all permits, licenses, or certificates required for the installation or use of such Products.

B.           TECHNICAL ADVICE AND DATA. Any technical advice offered or given in connection with the use of any Products is an accommodation to Customer and Valens shall have no responsibility or liability whatsoever for the content or use of such advice. Without Valens’ prior written consent, Customer shall not use, duplicate or disclose any technical data delivered or disclosed by Valens to Customer for any purposes other than for installation, operation or maintenance of Products purchased by Customer.

VII.       Intellectual Property Rights & Confidential Information

A.           INTELLECTUAL PROPERTY RIGHTS. All intellectual property rights evidenced by or embodied in and/or attached/connected/related to the Products or any part thereof (including the documentation, any and all enhancements and/or modifications thereof) and the Confidential Information are and shall be owned solely by Valens, excluding open-source components that may be integrated into Code Samples (as defined below). If such Code Sample contains any open-source components, such open source components are subject to the terms of each applicable license and the Customer, by using such Software, agrees to the applicable terms and conditions thereof. Without derogating from the foregoing, the design, development or manufacture by Valens of any Products for Customer shall not be deemed to produce a work made for hire and shall not give to Customer any copyright or other intellectual property right or interest in the Product. Customer may not modify, reverse engineer, reverse-compile, reverse assemble, synthesize or in any way use any Product(s) or Confidential Information to facilitate or aid in the design of a component, chip, chip set, semiconductor device, or integrated circuit whether for internal consumption or open market sale, or for any other purpose inconsistent with these T&C.Nothing in these T&C, nor the sale by Valens of the Products shall be construed to grant to, or convey or confer upon Customer, or upon any third party, any right or license, whether express, by implication, estoppel, by reason of exhaustion, or otherwise, under any patent rights of Valens claiming, covering or relating to any combination of such Products with other elements or components, or any system, machine, or process using such Products.

B. CONFIDENTIAL INFORMATION. THE INFORMATION CONTAINED HEREIN, INFORMATION REGARDING VALENS AND/OR ITS PRODUCTS, TECHNOLOGY & DOCUMENTATION, AND ANY OTHER RELATED TECHNICAL/BUSINESS INFORMATION (“CONFIDENTIAL INFORMATION“) IS CONFIDENTIAL AND MAY ALSO BE COVERED UNDER A SEPARATE NON-DISCLOSURE AGREEMENT BETWEEN CUSTOMER AND VALENS. NOTWITHSTANDING THE FOREGOING, CUSTOMER SHALL NOT USE THE CONFIDENTIAL INFORMATION IN ANY WAY, FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANY OTHER PARTY, NOR DISCLOSE TO ANY THIRD PARTY ANY CONFIDENTIAL INFORMATION EXCEPT AS EXPRESSLY PERMITTED IN WRITING BY VALENS. CUSTOMER SHALL RESTRICT DISCLOSURE AND USE OF THE CONFIDENTIAL INFORMATION TO ITS EMPLOYEES ON NEED TO KNOW BASIS ONLY. WITHOUT LIMITING THE FOREGOING, CUSTOMER SHALL USE AT LEAST THE SAME DEGREE OF CARE WHICH IT USES TO PREVENT DISCLOSURE OF ITS OWN CONFIDENTIAL INFORMATION OF LIKE IMPORTANCE, BUT IN NO EVENT WITH LESS THAN A HIGH DEGREE OF CARE, TO PREVENT THE DISCLOSURE OF THE CONFIDENTIAL INFORMATION. Valens shall have no obligation to hold any information received from Customer hereunder in confidence unless such information is covered by a separately negotiated non-disclosure agreement, which is reduced to writing and signed by both Parties.

VIII.      Software Licenses

A.           All software included in the Products (“Software”) delivered to Customer hereunder is protected by copyright. Valens hereby grants to Customer a non-exclusive, non-transferable, revocable, license to use such Software and related documentation only in conjunction with Products purchased from Valens. Customer shall reproduce and include all copyright notices and proprietary rights legends, as they appear in the Software, on any copy of the Software.  Customer shall take all steps necessary to protect Valens and its licensors’ proprietary rights in the Software and shall not use it in a way that creates obligations for Valens to disclose or distribute to any third party, the source code form of Valens’ intellectual property or that Valens’ intellectual property be redistributable at no charge.

B.           Customer acknowledges and agrees that Customer is solely responsible and liable for any addition or modification that Customer (or any party on its behalf) makes to the Software (“Modified Software”), including any usage and/or distribution of any Modified Software. Customer hereby agrees to indemnify, defend, and hold Valens harmless for any liability incurred by, or claims asserted against, Valens in connection with or resulting from such Modified Software. Furthermore, Valens will have no obligation or liability to Customers for: (i) the combination of the Software and/or the Modified Software with any third-party products, software, services or any other material (collectively “Third–Party Material”); and/or (ii) Valens’ compliance with any Customer requirements or specifications. Customer is fully responsible for obtaining any required consents in order to use any Third-Party Material separately and/or together with the Software and/or Modified Software.

C.           IF VALENS NOTIFIES THE CUSTOMER THAT A SPECIFIC SOFTWARE IS PROVIDED NOT FOR MASS PRODUCTION BUT RATHER AS “CODE SAMPLE” (E.G. AS A REFERENCE CODE OR FOR EVALUATION), THEN THE FOLLOWING WILL APPLY, IN ADDITION:

THE VALENS CODE SAMPLE IS NOT PART OF VALENS PRODUCT OFFERING AND IS PROVIDED ON A “AS IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND AND SOLELY FOR CUSTOMER’S INTERNAL EVALUATION PURPOSES. THE VALENS CODE SAMPLE AND/OR ANY COPIES THEREOF, INCLUDING WITHOUT LIMITATION ANY DERIVATIVE WORKS MADE, AS WELL AS ANY ENHANCEMENTS, IMPROVEMENTS, CORRECTIONS, MODIFICATIONS, ALTERATIONS, REVISIONS, EXTENSIONS AND UPDATES THERETO, SHALL REMAIN VALENS’ SOLE AND EXCLUSIVE PROPERTY. CUSTOMER MAY NOT, DIRECTLY OR INDIRECTLY (I) COPY, DISTRIBUTE, MODIFY, TRANSFER, SELL, LICENSE (OR SUBLICENSE), LEASE, ASSIGN OR OTHERWISE TRANSFER THE VALENS CODE SAMPLE TO  ANY THIRD PARTY; (II) REVERSE ENGINEER, DECOMPILE, DISASSEMBLE, REVISE, ENHANCE OR CREATE DERIVATIVE WORKS OF THE VALENS CODE SAMPLE OR ATTEMPT TO DISCOVER THE VALENS CODE SAMPLE’S SOURCE CODE; (III) DEVELOP ANY CONCEPT, MATERIAL OR PRODUCT CONTAINING ANY OF THE CONCEPTS AND IDEAS CONTAINED IN THE VALENS CODE SAMPLE; AND/OR (IV) PUBLISH OR MAKE AVAILABLE IN ANY MANNER, OTHER THAN TO VALENS, ANY REVIEWS, OPINIONS OR IMPRESSIONS ABOUT, OR EXPERIENCES WITH, THE VALENS CODE SAMPLE, THE RESULTS OF ANY TESTING OR BENCHMARKING OF THE VALENS CODE SAMPLE, OR ANY FEATURES OF THE VALENS CODE SAMPLE.

D.           VALENS DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WITH RESPECT TO THE CODE SAMPLE AND ANY RELATED DOCUMENTATION. SAMPLE CODE MAY CONTAIN THIRD PARTY FILES AND/OR SOFTWARE CODE THAT MAY REQUIRE ATTRIBUTIONS, NOTICES AND/OR ADDITIONAL TERMS AND CONDITIONS. SUCH REQUIRED THIRD PARTY SOFTWARE ATTRIBUTIONS, NOTICES AND/OR ADDITIONAL TERMS AND CONDITIONS CAN BE FOUND IN A TEXT FILE INCLUDED IN THE SOFTWARE AND ARE MADE PART OF AND INCORPORATED BY REFERENCE INTO THESE T&C AND THE USE THEREOF WILL BE UNDER THE SOLE RESPONSEBILITY OF THE CUSTOMER.

E.           TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VALENS, ITS OFFICERS, DIRECTORS AND/OR EMPLOYEES, BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS OR GOODWILL, LOST OR DAMAGED DATA OR DOCUMENTATION, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY CLAIM BY ANY OTHER PARTY, HOWEVER CAUSED, BASED ON ANY THEORY OF LIABILITY AND WHETHER OR NOT VALENS OR ANY RELATED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING IN ANY WAY OUT OF THE VALENS CODE SAMPLE, OR CUSTOMER USE OF THE VALENS CODE SAMPLE.

F.            VALENS MAY AT ANY TIME AT ITS SOLE DISCRETION INSTRUCT CUSTOMER TO: (I) IMMEDIATELY CEASE USE OF THE VALENS CODE SAMPLE; (II) RETURN THE VALENS CODE SAMPLE AND ALL COPIES THEREOF, AS WELL AS ITS RELATED DOCUMENTATION TO VALENS; (III) ERASE OR OTHERWISE DESTROY ALL COPIES OF THE VALENS CODE SAMPLE IN YOUR POSSESSION, WHICH ARE FIXED OR RESIDENT IN THE MEMORY OR HARD DISKS OF ITS DEVICES.

IX.         Evaluation Kits (“EVK”) and Engineering Samples 

A.           Valens offers evaluation kits and engineering Samples for sale, in accordance with the terms and conditions set forth herein. EVKs and engineering samples are solely intended to help Customers evaluate the suitability of Valens’ solutions for use in their more complete system designs and are not to be incorporated into any finished products or to be used for any other purpose than for the internal evaluation thereof by the Customer. EVKs and engineering Samples are provided on an “as is” and “with all faults” basis, without any warranty of any kind (despite the aforementioned in section Warranty above).

B.           Valens reserves the right to make corrections, modifications, enhancements, improvements, and other changes to the EVKs and engineering samples at any time and to discontinue any EVKs and engineering samples product without notice.

C.           Valens disclaims all warranties, either express or implied, regarding such EVKs and engineering Samples, including but not limited to, any failure warranty or implied warranties of merchantability or fitness for a particular purpose or non-infringement of any third-party patents, copyrights, trade secrets or other intellectual property rights. EVKs and engineering Samples may not, directly or indirectly, be transferred to a third party, sold, sublicensed, leased, rented, loaned, assigned, or otherwise distributed for commercial or non-commercial purposes, in whole or in part, without the expressed written consent of Valens or used in any finished product or production system. The use of the EVK and /or engineering Samples is entirely at Customer’s risk. In no event shall Valens be liable for any special, collateral, indirect, punitive, incidental, consequential, or exemplary damages in connection with or arising out of these terms or the use of the EVKs and/or engineering Samples, regardless of whether Valens has been advised of the possibility of such damages. Software components that are included in EVKs and/or engineering Samples (other than firmware components) are considered “Code Sample” and are licensed under the applicable terms in section Software License above.

X.          Compliance & Export Control

(applicable to all products that support HDCP, according to their specification).

A.           The HDCP specification is a proprietary High-bandwidth Digital Content Protection specification (“HDCP”), that requires Customers to comply with the appropriate HDCP license terms and conditions of use, and are obligated to, (as a condition precedent, and prior to the shipment of any products under any order submitted), independently obtain the relevant reseller license. Failure to comply and obtain the required HDCP license shall be considered a material breach of these T&C and Customer shall be liable to indemnify Valens for any damages, claims, or losses as a result of non-compliance, in accordance with Section Warranty & Indemnification of these T&C.

B.           HDBaseT® (applicable to all products that support HDBaseT, according to their specification). The HDBaseT specification is proprietary and implementation of the HDBaseT specification and requires a license. As a member of the HDBaseT Alliance and in order to comply with its obligations to the Alliance and its members, Valens requires each of its business partners and Customers, prior to shipment of any products under any order submitted, to independently obtain the appropriate license. In order to obtain the license required for implementation of the HDBaseT specification each Customer needs to contact the HDBaseT Alliance at HDBaseT Administration 3855 SW 153rd Drive, Beaverton, Oregon  97006, or by following this link http://hdbaset.org/.

C.           HDMI™ (applicable to products supporting HDMI). Customers purchasing HDMI-technology supporting products are obligated to, (as a condition precedent, and prior to the shipment of any products under any order submitted), independently engage in a participation agreement with HDMI® Forum Inc. In order to engage in such license please visit https://hdmiforum.org/join-us/. Failure to comply and engage in a participation agreement shall be considered a material breach of these T&C and Customer shall be liable to indemnify Valens for any damages, claims, or losses as a result of non-compliance, in accordance with the Indemnification Section of these T&C.

D.           Customer shall at all times comply with all applicable federal, state and local laws and regulations, specifically with any applicable export or import control laws and regulations regarding the Products and any software and/or documentation related thereto. Customer alone shall be responsible, and shall take all appropriate measures, to comply with all applicable import and/or export control regulations, and will hold Valens harmless from all damages arising out of or in connection with any violation thereof.  Customer agrees to provide all information necessary to determine all relevant export authorizations and to export and import the Products, including as applicable the Export Classification Control Number (ECCN) and subheadings, or munitions list category number, and agrees to obtain any licenses and authorizations required under applicable laws and to make any required filings. Valens’ obligation to fulfill this agreement is subject to the proviso that the fulfillment is not prevented by any impediments arising out of national and international foreign trade and customs requirements or any embargos [or other sanctions]. Valens may suspend and/or terminate its obligations to deliver Products to Customer without incurring any liability towards Customer, if not all applicable governmental export or import requirements are satisfied and/or licenses and authorizations have been obtained.

XI.         Product Modifications

A.           Valens may, at any time, modify the specifications or production process of any Product, provided that such Product’s functionality continues to conform in all material respects to the functionality of the original Product.

B.            Valens reserves the right, at any time, to discontinue production of any of its products. In the event of a permanent discontinuation at any time of Products regularly sold by Valens to Customer, Valens will make reasonably commercial efforts, subject to Valens’ then-current product discontinuation procedures and these T&C to give Customer prior written notice of such discontinuance and accept, subject to availability, last-time-buy orders from Customer for such Products, provided that the delivery dates in such orders are prior to the discontinuance date set forth in the notice, and which shall in no event exceed 12 (twelve) month from the notice date.

XII.        General

A.           REMEDIES. Valens may, by written notice to Customer, terminate with immediate effect these T&C, or any part thereof and any quote, purchase order, or confirmation hereunder, without any liability whatsoever, if: (i) Customer fails to pay any sum when due, (ii) fails to accept any delivery of conforming Products, (iii) returns Products without advance authorization of Valens, (iv) any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Customer, whether filed or instituted by Customer, voluntary or involuntary, a trustee or receiver is appointed over Customer, or any assignment is made for the benefit of creditors of Customer, or (v) otherwise fails to abide by these T&C. Upon occurrence of any of the events referred to hereinabove, in addition to any other remedies allowed under applicable law, Valens may suspend deliveries while Customer is in breach, or cancel all further future deliveries and all payments to be made by Customer under these T&C shall become immediately due and payable.

B.           ENTIRE AGREEMENT AND ASSIGNMENT. These T&C and any non-disclosure agreement executed between the Parties, if any, set forth the entire agreement between the Parties with regard to the subject matter hereof and supersede any and all prior or contemporaneous oral or written negotiations, communications and agreements with respect thereto. No subsequent modification of these T&C shall be binding upon Valens unless reduced to writing and signed by both Valens and Customer. No agent, employee, or representative of Valens has any authority to bind Valens to any affirmation, representation or warranty covering the Products sold under these T&C. Valens may assign these T&C at its discretion. Any assignment of these T&C or any rights hereunder, wholly or in part, by Customer shall be void without Valens’ prior written consent.

C.           In case of any inconsistency between any of these T&C and an existing agreement between the Parties, the terms of the existing agreement shall prevail, unless specifically agreed to by the Parties within the agreement.

D.           These T&C and performance by the Parties hereunder shall be governed and construed in accordance with the laws of the State of New York and federal laws of the United States, without regard to its choice of law principles. For any litigation that may arise under this T&C or to enforce an award in accordance with these T&C, the Parties irrevocably and unconditionally submit to the non-exclusive jurisdiction and venue (and waive any claim of forum non convenient) of the United States District Court of New York. The Parties expressly exclude the applicability of the United Nations Convention on International Sale of Goods. All agreements, covenants, conditions and provisions contained herein shall apply to and bind the assignees and successors in interest of Customer. Neither party will have the right to offset any amounts payable by such Party under these T&C against any amounts payable to such Party by the other Party (whether under these T&C or otherwise).  If any provision or part of these T&C is held to be invalid, illegal, unconscionable or unenforceable, the other provisions and portions hereof shall not be affected. Sections Limitation of liability, Intellectual Property Rights & Confidential Information, and General shall survive the termination or expiration hereof.