ANAREN, INC.’S ATMOSPHERE SOFTWARE DEVELOPMENT KIT (“ATMOSPHERE SDK”) END USER LICENSE AGREEMENT AND TERMS OF SERVICE
 
IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS ATMOSPHERE SOFTWARE DEVELOPMENT KIT (“ATMOSPHERE SDK”) END USER LICENSE AGREEMENT AND TERMS OF SERVICE (“AGREEMENT”) CAREFULLY BEFORE CLICKING THE “ACCEPT” BUTTON, AND/OR DOWNLOADING OR USING ANY PORTION OF THE ATMOSPHERE SDK. BY CLICKING THE “ACCEPT” BUTTON AND/OR DOWNLOADING OR USING ANY PORTION OF THE ATMOSPHERE SDK, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT (1) YOU HAVE CAREFULLY READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, (2) YOU ARE 18 YEARS OF AGE OR OLDER OR OTHERWISE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (3) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE ATMOSPHERE SDK TO YOU AND YOU MUST NOT DOWNLOAD, INSTALL, NOR USE THE ATMOSPHERE SDK. “YOU” MEANS (1) THE NATURAL PERSON OR THE ENTITY THAT IS AGREEING TO BE BOUND BY THIS AGREEMENT; (2) YOUR EMPLOYEES AND THIRD PARTY CONTRACTORS THAT PROVIDE SERVICES TO YOU; AND (3) ANY OF YOUR CUSTOMERS USING THE ATMOSPHERE SDK OR ANY SERVICE BASED UPON THE ATMOSPHERE SDK, AS MAY BE PERMITTED IN THIS AGREEMENT. YOU SHALL BE LIABLE FOR ANY FAILURE BY YOU TO COMPLY WITH THE TERMS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT DOWNLOADS, INSTALLS, COPIES, ACCESSES OR USES THE ATMOSPHERE SDK AND ANY PERSON OR ENTITY THAT DOWNLOADS, INSTALLS, COPIES, ACCESSES OR USES THE ATMOSPHERE SDK ON ANOTHER PERSON’S OR ENTITY’S BEHALF.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING THE ATMOSPHERE SDK THAT YOU DID NOT LAWFULLY ACQUIRE THE RIGHT TO ACCESS OR USE, OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF THE ATMOSPHERE SDK.
 
This Agreement is a binding agreement between you ("End User," “Licensee,” "You" or “Your”) and Anaren, Inc., with an address of 6635 Kirkville Rd., East Syracuse, NY 13057 (“Anaren” or "Company"). This Agreement governs your download and use of Company’s programmer utility (Anaren’s “Atmosphere Programmer Utility”), and access to and use of Company’s development tool (Anaren’s “Atmosphere Development Tool”) (collectively “Anaren’s Atmosphere Software Development Kit” (“Atmosphere SDK”), which also includes “Anaren’s Atmosphere Mobile Application,” the downloading and use of which is not covered by this Agreement but is covered by a separate Mobile Application End User License Agreement) on any computing device owned or otherwise controlled by You (including a desktop, laptop, or tablet device – hereinafter “Computing Device”). Unless otherwise noted, reference to the “Atmosphere SDK” means the Atmosphere Development Tool and Atmosphere Programmer Utility collectively or individually.
 
1. License Grant. Subject to the terms of this Agreement and Your strict compliance thereof, Company grants You a limited, non-exclusive, non-sublicensable, nontransferable, revocable license during the Term to:
 
(a) access and use the Atmosphere Development Tool at Company’s Website (as defined in Section 5), and download (from Company’s Website), install, and use a single copy of the Atmosphere Programmer Utility on a single Computing Device, to create applications and embedded firmware (“Your Applications”) solely for use in conjunction with, or interface with, any proprietary products sold by Anaren with which the Atmosphere SDK was designed to be used, or their successors (which may be updated from time to time), solely for Your personal, non-commercial, internal testing and evaluation purposes, and strictly in accordance with the Atmosphere SDK’s documentation (including user manuals, technical manuals and any other materials provided by Licensor, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Atmosphere SDK (“Documentation”)), Company’s Website Terms of Use, any applicable Third Party Licenses set forth in Schedule A, and this Agreement, and for so long as this Agreement is in effect; and
 
(b) access, stream, download and/or use on such Computing Device the Content and Services (as defined in Section 6) made available in or otherwise accessible through the Company’s Website per your access to, download of, and/or use of the Atmosphere SDK, strictly in accordance with this Agreement and the Terms of Use applicable to such Content and Services as set forth in Section 6, and any applicable Third Party Licenses set forth in Schedule A.
Notwithstanding the foregoing, You may also create Your Applications as detailed in Section 1(a) above, for use in conjunction with, or interface with, any products sold exclusively and directly by Cypress Semiconductors ("Cypress") or by any authorized Cypress distributor only, at no additional charge.
 
2. Third Party Materials. The Atmosphere SDK may include software, content, data or other materials, including related documentation, that are owned by Persons other than Company and that are provided to You on terms/obligations that are in addition to and/or different from those contained in this Agreement ("Third-Party Licenses"). A list of all materials, if any, included in the Atmosphere SDK and provided under Third-Party Licenses is set forth on Schedule A to this Agreement, and the applicable Third-Party Licenses are accessible via links therefrom. You shall, and hereby agree to, comply with all Third-Party Licenses listed in Schedule A. Any breach by You of any Third-Party License is also a breach of this Agreement.
 
3. License Restrictions. Except to the extent that any enumerated restriction is prohibited by applicable law, Licensee shall not:
(a) use (including make any copies of) the Atmosphere SDK or Documentation beyond the scope of the license granted under Section 1;
(b) provide any other person, including any subcontractor, independent contractor, affiliate or service provider of You, with access to or use of the Atmosphere SDK or Documentation;
(c) copy the Atmosphere SDK or Documentation, in whole or in part, except as expressly permitted by this license or to make a single back-up archival copy for Your internal purposes;
(d) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Atmosphere SDK;
(e) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Atmosphere SDK or any part thereof;
(f) remove, delete, alter or obscure any titles, trademarks, service marks, trade names, legends, watermarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Atmosphere SDK, including any copy thereof;
(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Atmosphere SDK, any features or functionality of the Atmosphere SDK, to any third party for any reason, whether or not over a network or on a hosted basis, including in
connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service;
(h) unbundle, break apart, or repackage the Atmosphere SDK or any of its component parts for any reason whatsoever;
(i) provide use of the Atmosphere SDK to a third party, including but not limited to providing an evaluation license to the Atmosphere SDK to any other person or entity, or otherwise permitting any other person or entity to evaluate the Atmosphere SDK;
(j) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Atmosphere SDK;
(k) use the Atmosphere SDK or Documentation, the development of a competing software product or service or any other purpose that is to the Licensor's commercial disadvantage.
(l) engage in activities when using the Atmosphere SDK that:
(i) violate the law, regulation, rule, court verdicts, resolutions or orders, or administrative measures that are legally binding;
(ii) may hinder public order or customs;
(iii) infringe intellectual property rights, such as copyrights, trademarks and patents, fame, privacy, and all other rights of the Company and/or a third party granted by the law or contract;
(iv) post or transmit any objectionable content including, but not limited to, violent or sexual expressions, expressions that lead to discrimination by race, national origin, creed, sex, social status, family origin, etc.;
(v) lead to the misrepresentation of the Company and/or a third party, or intentionally spread false information;
(vi) interfere with the servers and/or network systems related to the Atmosphere SDK, such activities that abuse the Atmosphere SDK and/or servers and/or network systems related to the Atmosphere SDK by means of BOTs, cheat tools, or other technical measures;
(vii) exchange the right to use the Atmosphere SDK into cash, property or other economic benefits without Company’s authorization;
(viii) use the Atmosphere SDK for sales, marketing, advertisement, soliciting or other commercial purposes (except for those approved by the Company); or
(ix) other activities that may be deemed by the Company to be inappropriate.
(m) use the Atmosphere SDK in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including, but not limited to, any power generation systems; aircraft navigation or communication systems, air traffic control systems or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and military or aerospace applications, weapons systems or environments.
 
Company shall have the sole and exclusive right to determine whether You have engaged in any of these restricted activities and to determine whether this Agreement with You should be terminated. Violations of this Agreement will not be tolerated by Company.
 
4. Proprietary Rights and Reservation of Rights. You hereby acknowledge and agree that:
(a) the Atmosphere SDK, Documentation, and copies thereof are the exclusive proprietary technology and materials of Company (and/or Company’s third party licensors, as may be appropriate) and are protected by copyright laws and international treaties as well as other intellectual property laws;
(b) Company (and/or Company’s third party licensors, as may be appropriate) shall retain all ownership rights in and to the Atmosphere SDK and the Documentation and any and all patents, copyrights, trade secrets and other proprietary rights relating thereto;
(c) the Atmosphere SDK and Documentation are provided under license, and not sold, to You;
(d) You have no right, title, or interest in the Atmosphere SDK or the Documentation under this Agreement, or any other rights thereto other than to download, access, and use the Atmosphere SDK in accordance with the license granted in Section 1 above, and subject to all terms, conditions and restrictions, under this Agreement;
(e) Company (and/or Company’s third party licensors, as may be appropriate) reserves and shall retain all rights not expressly granted to You including Company’s entire right, title, and interest in and to the Atmosphere SDK, copies of the Atmosphere SDK, and in all related copyrights, trade secrets, patents, trademarks, service marks, domain names and any other intellectual property and proprietary rights therein or relating thereto, including but not limited to any registrations, applications, renewals, and extensions of such rights, except as expressly granted to You in this Agreement;
(f) any unauthorized copies, modifications, translations, adaptations, derivative works, or improvements of the Atmosphere SDK or components thereof shall be exclusively owned by Company, and You hereby (i) assign and shall assign any and all rights, title, and interests in the foregoing to Company, (ii) will promptly sign any other documents necessary to perfect Company’s rights in and to the foregoing, and (iii) expressly waive any rights You may obtain inconsistent with the foregoing through application of law or otherwise;
(g) You shall safeguard the Atmosphere SDK (including all copies thereof) from misappropriation, theft, misuse, unauthorized access and unauthorized use. You shall promptly notify Licensor if You become aware of any such misappropriation, theft, misuse, unauthorized access or unauthorized use and fully cooperate with Company, at Company’s sole expense, in any legal action taken by Licensor to enforce its rights in and to the Atmosphere SDK.
(h) You will own all rights, title, and interest in and to Your Applications you may develop or create, except for any libraries, data or code included in Your Applications that are also included in the Atmosphere SDK, and subject to the Third-Party Licenses as set forth in Schedule A; and
(i) You hereby covenant that you will not assert any claim that the Atmosphere SDK, components thereof, modifications or derivative works thereof created by or for Company infringe any intellectual property right owned or controlled by You.
 
5. Confidentiality You hereby acknowledge and agree:
(a) that the Atmosphere SDK and Documentation contain proprietary and confidential information of Company, including the code of the Atmosphere SDK, and that any disclosure by You of Company’s confidential information will cause immediate, irreparable harm to Company for which no adequate remedy at law exists, and for which equitable remedies, as well as any other available legal remedies, may be awarded by a court of competent jurisdiction;
(b) to maintain the confidentiality of the Atmosphere SDK and Documentation, and other confidential information of Company using at least as great a degree of care as You use to maintain the confidentiality of Your own confidential information and in no case less than reasonably prudent care; and
(c) to limit access to the Atmosphere SDK and Documentation to those persons employed by You and/or who are under Your direction who need to use the Atmosphere SDK and be exposed to the Documentation for purposes permitted hereunder and who have been clearly informed of their obligation and agree to maintain the confidentiality of the Atmosphere SDK and Documentation, and to use reasonable best efforts to ensure their compliance with such terms and conditions, including, without limitation, not knowingly permitting such persons to use any portion of the Atmosphere SDK for the purpose of deriving or obtaining the source code of the Atmosphere SDK by any means including, but not limited to, reverse engineering or disassembly.
 
6. Content and Services. Pursuant to your access to, downloading of, and/or use of the Atmosphere SDK, You may have access to Company's website located at http://www.anaren.com and any subdomains of http://www.anaren.com (collectively the "Website") and products and services accessible thereon, and certain features, functionality and content accessible on or through the Atmosphere SDK may be hosted on the Website, all of which are related to Your testing and evaluation of Your Applications created by You through Your use of the Atmosphere SDK (collectively, "Content and Services"). Your access to and use of such Content and Services are also governed by Website's Terms of Use and Privacy Policy, which are incorporated herein by this reference. Your access to and use of such Content and Services may require You to acknowledge Your acceptance of such Terms of Use and Privacy Policy and/or to register with the Website and Your failure to do so may restrict You from accessing or using certain of the Atmosphere SDK’s features and functionality. Any violation of such Terms of Use will also be deemed a violation of this Agreement.
 
7. Export Regulation and Geographic Restrictions. The Atmosphere SDK may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Atmosphere SDK to, or make the Atmosphere SDK accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Atmosphere SDK available outside the US. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
 
8. No Obligation of Support or Updates. You agree that Company has no obligation to provide Atmosphere SDK support or updates, which may include upgrades, bug fixes, patches, enhancements and other error corrections and/or new features, maintenance, technical (including, but not limited to fielding and answering questions regarding use of the Atmosphere SDK) or other support for the Atmosphere SDK (collectively, including related documentation, "Support/Updates"), or to continue to provide or enable any particular features or functionality. Company may from time to time, however, in its sole discretion develop and provide Atmosphere SDK Support/Updates without any notice to You. Support/Updates may also modify or delete in their entirety certain features and functionality. Based on Your Computing Device settings, when Your Computing Device is connected to the Internet either:
the Atmosphere Programmer Utility may automatically download and install all available Support/Updates; or
You may receive notice of or be prompted to download and install available Support/Updates to the Atmosphere Programmer Utility.
You shall promptly download and install all Support/Updates, and acknowledge and hereby agree that the Atmosphere SDK or portions thereof may not properly operate should You fail to do so.
With respect to the Atmosphere Development Tool, Support/Updates may be made automatically without any need for your Computing Device to be connected to the Internet.
You further agree that all Support/Updates will be deemed part of the Atmosphere SDK and be subject to all terms and conditions of this Agreement.
 
9. Third Party Materials. The Atmosphere SDK may display, include or make available third-party content (including data, information, applications and other products, services and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third Party Materials"). You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Company does not assume and will not have any liability or responsibility to You or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to You and You access and use them entirely at Your own risk and subject to such third parties' terms and conditions.
 
10. Collection and Use of Your Information. You acknowledge that when You download, install, access or use the Atmosphere SDK, Company may use automatic means (including, for example, cookies and web beacons) to collect information about Your Computing Device and about Your use of the Atmosphere SDK. You also may be asked to provide certain information about Yourself upon downloading, installing, accessing or using the Atmosphere SDK or certain of its features or functionality, and the Atmosphere SDK may provide You with opportunities to share information about Yourself with others. All information we collect through or in connection with the Atmosphere SDK is subject to our Privacy Policy (available at https://www.anaren.com/node/6037, which may change from time to time). By downloading, installing, using and providing information to or through the Atmosphere SDK, You consent to all actions taken by us with respect to Your information in compliance with the Privacy Policy. The Atmosphere SDK may also contact and connect with the Computing Device as necessary to assist Company in validating this Agreement with You, and You hereby agree to permit the Atmosphere SDK to do so.
 
11. Term and Termination.
(a) The term of Agreement commences when You download/install, access and/or use the Atmosphere SDK and will continue in effect until terminated by You or Company as set forth in this Section 11 (the “Term”).
(b) You may terminate this Agreement by ceasing to access and use the Atmosphere SDK and Documentation, and deleting all copies of the Atmosphere Programmer Utility and Documentation.
(c) Company may terminate this Agreement at any time and for any reason in its sole discretion without notice to You. In addition, this Agreement will terminate immediately and automatically without any notice if You violate any of the terms and conditions of this Agreement.
(d) Upon termination:
(i) all rights granted to You under this Agreement will also terminate; and
(ii) You must cease all use of the Atmosphere SDK and Documentation and delete all copies of the Atmosphere Programmer Utility and Documentation.
(e) Termination will not limit any of Company's rights or remedies at law or in equity.
 
12. Disclaimer of Warranties. THE ATMOSPHERE SDK AND YOUR APPLICATION(S) ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE ATMOSPHERE SDK AND YOUR APPLICATION(S), INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE ATMOSPHERE SDK OR YOUR APPLICATION(S) WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
 
13. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE ATMOSPHERE SDK, YOUR APPLICATION(S) OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE ATMOSPHERE SDK.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
 
14. Indemnification. You agree to defend (at Company request), indemnify, and hold Company harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with any of the following (including as a result of Your direct activities or those conducted on Your behalf): (i) Your download, access to, or use of the Atmosphere SDK; (ii) Your breach or alleged breach of this Agreement; (iii) Your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) Your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (v) any misrepresentation made by You; or (vi) your creation, use, distribution, sale, offer for sale, of Your Application(s). You will cooperate as fully required by Company in the defense of any claim. Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by You, and You will not in any event settle any claim without the prior written consent of Company. You agree that Company assumes no responsibility for the content You submit or make available through or per the use of the Atmosphere SDK.
 
15. Entire Agreement. This Agreement and Schedule A constitute the entire agreement between the parties with respect to the Atmosphere SDK (as defined herein), sets forth Company’s entire liability and Your exclusive remedy with respect to the Atmosphere SDK, and supersedes the terms of any purchase orders and any other communications or advertising with respect to the Atmosphere SDK. You acknowledge that this Agreement is a complete statement of the agreement between You and Company with respect to the Atmosphere SDK and, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Atmosphere SDK.
 
16. Headings. Headings under this Agreement are intended only for convenience and shall not affect the interpretation of this Agreement.
 
17. Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of those rights. This Agreement may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.
 
18. Assignment. You may not assign this Agreement or any interest in this Agreement without the prior written approval of Company.
 
19. Severability. If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.
 
20. Independent Contractors. This Agreement shall not be construed to create any employment, partnership, joint venture, franchise or agency relationship between You and Company or to authorize either party to enter into any commitment or agreement binding on the other party.
 
21. Representations. You represent and warrant that You are authorized to enter into this Agreement and comply with its terms. Furthermore, You represent and warrant that You will at any and all times meet Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the download, access to, and use of the Atmosphere SDK.
 
22. Force Majeure. Company will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of Nature, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond Company’s reasonable control.
 
23. Governing Law. This Agreement will be governed by New York law, without regard to its choice of law principles, and You and Company hereby agree to submit to the exclusive jurisdiction of the Supreme Court of the State of New York, with venue in Onondaga County, New York, or of the United States District Court for the Northern District of New York with venue in Onondaga County, New York.
 
24. All notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, if sent by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to Company at the address set forth above and to You at the address provided at the time of registration to download, acquire access to and/or use of the Atmosphere SDK (or to such other address as may be designated by a party from time to time in accordance with this Section 24).
 
25. US Government Rights. The Atmosphere SDK is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Atmosphere SDK and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
 
26. Survival of Terms. The following Sections shall survive termination of this Agreement: Sections 2-25.
 
 
SCHEDULE A – THIRD PARTY LICENSES
 
I. Third Party Software that is supplied as a service (not downloaded by You) as part of the Atmosphere Development Tool:
 
Third Party Component
Additional Terms and Obligations
Cypress WICED SDK
 
II. Third Party Software that is supplied and downloaded by You as part of the
Atmosphere Programmer Utility:
 
Third Party Component
Additional Terms and Obligations
Cypress WICED SDK
  • Chiploader
 
  • Binary UART Driver HEX for CYW920737
 
Pyside
PySide is licensed under the LGPL version 2.1 license, allowing both Free/Open source software and proprietary software development.
PycURL
Copyright (C) 2001-2008 Kjetil Jacobsen Copyright (C) 2001-2008 Markus F.X.J. Oberhumer Copyright (C) 2013-2014 Oleg Pudeyev PycURL is dual licensed under the LGPL and an MIT/X derivative license based on the cURL license. You can redistribute and/or modify PycURL according to the terms of either license.
Python
https://docs.python.org/3/license.html (see BEOPEN.COM LICENSE AGREEMENT FOR PYTHON 2.0”)
QT
http://qt-project.org/doc/qt-5/licensing.html (a combination of GPL, LGPL, MIT, and FreeBSD)
 
III. The Atmosphere SDK may also include a Third Party Cypress WICED-BT-SMART Software Component (“WICED-BT-SMART Software”), in conjunction with the following additional terms and obligations:
 
The WICED-BT-SMART SOFTWARE, and any documentation provided by Cypress related to the WICED-BT-SMART SOFTWARE is licensed, and not sold, and title to and ownership of the WICED-BT-SMART SOFTWARE and any portion thereof remain with Cypress or its licensors.
 
THE WICED-BT-SMART SOFTWARE IS PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. CYPRESS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE WICED-BT-SMART SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, CYPRESS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE WICED-BT-SMART SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
 
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CYPRESS OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE WICED-BT-SMART SOFTWARE FOR PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES.
 
Except to the extent that any of the following enumerated restrictions are prohibited by applicable law, Licensee shall not: copy the WICED-BT-SMART SOFTWARE, except as reasonably for internal back-up purposes, use and/or transfer the WICED-BT-SMART SOFTWARE to any third party apart from an Authorized Licensee Product (any system level product sold by Anaren that incorporates proprietary integrated circuit product(s) sold by Cypress with which the WICED-BT-SMART SOFTWARE was designed to be used, or their successors, and the WICED-BT-SMART SOFTWARE, and includes other hardware and software provided by Anaren), modifying the WICED-BT-SMART SOFTWARE, attempting to reverse engineer, decompile or disassemble any portion of the WICED-BT-SMART SOFTWARE, or exporting the WICED-BT-SMART SOFTWARE or any underlying technology in contravention of any applicable U.S. or foreign export laws and regulations.
 
Cypress shall have no obligation with respect to providing any support or updates with respect to the WICED-BT-SMART SOFTWARE or the Atmosphere SDK. Cypress shall have no obligation to honor, any warranties that Anaren may provide to its customers or to end users with respect to the WICED-BT-SMART SOFTWARE or any derivative works of the WICED-BT-SMART SOFTWARE.
 

CELLULAR MACHINES PRODUCTS AND SERVICES -- TERMS AND CONDITIONS OF SALE

THESE CELLULAR MACHINES PRODUCTS AND SERVICES TERMS AND CONDITIONS OF SALE, AS MAY BE AMENDED FROM TIME TO TIME BY SELLER (THESE “CONDITIONS”), APPLY TO ALL QUOTATIONS FOR, AND SALES OF, CELLULAR MACHINES PRODUCTS AND SERVICES BY ANAREN MICROWAVE, INC. AND ALL OTHER SUBSIDIARIES OF ANAREN, INC. (COLLECTIVELY, “SELLER”).

All sales to you (“Buyer”) by Seller are expressly limited to the Conditions contained herein and any additional, different or conflicting terms or conditions contained in Buyer’s standard terms and conditions of purchase, procurement documents, purchase orders, or other instruments or instructions requesting quotes or to order products, or other responses hereto (each, a “Purchase Order”) shall be deemed objected to by Seller without need of further notice of objection and shall be of no effect and not binding on Seller in any circumstances unless accepted by Seller. Buyer will be deemed to have assented to all conditions contained herein by requesting a quote, placing an order for or otherwise agreeing to purchase products or services, unless otherwise agreed in writing by the parties. These Conditions constitute the entire and only agreement between the parties hereto; and any representation (oral or in writing), affirmation of fact, course of prior dealings or performance, promise or condition in connection therewith or usage of the trade not expressly incorporated herein shall not be binding on either party.

1. PRICE
A. Price and payment terms for products and services are established by Seller on a per order or per engagement basis, and shall be based upon Seller’s prices in effect on the shipment date for the sale of products and the date the services are performed for the provision of services, except as otherwise agreed by the parties in writing. All prices are subject to change without notice.
B. Unless otherwise agreed in writing, the price does not include, and Buyer shall be responsible for paying all, insurance costs, shipping costs, handling fees, and taxes, duties and charges which Seller may be required to pay or collect, as well as the costs of special packing or any compliance testing, including, but not limited to, special environmental, vibration, life cycle, and extreme temperature tests. The price does not include inspection charges relating to inspection by outside individuals, or agents performed at the request of the Buyer. The price does not include any expenses incurred by Seller in connection with the performance of any services, including, but not limited to, travel, meals and lodging.  Buyer shall be responsible for and will be invoiced for all expenses and charges. Such invoices are due and payable 30 days from issuance.
C. All quotations are valid for 30 days from the date of issuance. Quotations may, in Seller’s discretion, be re-issued upon request.

2. ORDERS
A. Each Purchase Order shall reflect the current price for the products or services, determined in accordance with these Conditions. If the price reflected in the Purchase Order is not the current price at the time of shipment for products or the date the services are performed for the provision of services, Buyer agrees without further notice that the Purchase Order shall be deemed to be amended to reflect the current price of the products and/or services.  All Purchase Orders are subject to acceptance by Seller, and Seller shall not be required to accept any Purchase Order from Buyer. In the event of any inconsistency between the terms of a Purchase Order and the Conditions as provided herein, these Conditions will control. Each Purchase Order for the purchase of products shall specify in reasonable detail the quantity of products requested, the part numbers (if applicable), the requested delivery date, shipping instructions, and packaging instructions (if applicable). If shipping and packaging instructions are not specified, Seller will determine the carrier, mode of shipment and packaging.  Each Purchase Order for the purchase of services shall specify in reasonable detail the specific services requested and the requested date of performance of such services.
B. Purchase Orders may be placed orally or in writing, including by written purchase order or other written request, electronic or otherwise, by facsimile, or through the use of Seller’s website.
C. Purchase Orders received orally will be processed pending receipt of a confirming Purchase Order in writing. The confirming Purchase Order must be received within 30 days of the initial orally placed order, and prior to shipment of the products or performance of services.  If the confirming Purchase Order is not received within this time period, Seller may cease processing the orally placed order and, to the extent Seller is deemed to have accepted such order, Seller’s acceptance is hereby revoked without further notice to Buyer.

3. PAYMENT; INVOICING; CREDIT
A. All payments shall be made in United States dollars and shall be made in full without setoff or deduction.
B. For products and services where payment is due directly to Seller, Seller will invoice Buyer upon shipment of products or upon completion of performance in the case of services, unless otherwise agreed in writing by the parties. Payment terms are net 30 days, unless otherwise agreed in writing by the parties. Any invoices not paid within 30 days shall accrue interest at a rate of the lesser of 18% per annum (1½ % per month) or the highest amount permitted by applicable law. A fee in an amount equal to the lesser of $20.00 or the maximum amount allowable under applicable law shall be assessed with respect to all dishonored checks. Accrued collection costs, including, but not limited to, legal fees and expenses shall be payable by Buyer on demand as accrued.
C. For products and services where payment is made in a manner in which the use of a third party payment processor is required (e.g., credit card payments), Buyer acknowledges and agrees that: (i) Seller shall have the sole discretion to designate from time to time the third party payment processor; (ii) Buyer is responsible for the accuracy, quality, integrity and legality of all data and information provided by Buyer in connection with use of the services of the third party payment processor; (iii) Buyer assumes, as between Buyer and Seller, all risk of loss with respect to the sending, transmission and storage of credit card and other personally identifiable information involving the third party payment processor; (iv) Seller has and assumes no liability or responsibility whatsoever for any claims, losses or damages, including, but not limited to, those arising out of any errors, loss of data, delays, interruption or unavailability of the services, viruses, hackers or Internet failures, or otherwise in any way relating to or arising out of the use of or services provided by or through the third party payment processor; and (v) Seller makes no representations, warranties, guarantees or promises with respect to the third party payment processor or the services provided by or through the third party payment processor.
D. Terms of payment shall be subject to approval and modification by Seller’s Credit (Accounting) Department and in case of doubt arising at any time as to the Buyer’s financial responsibility, solvency, or ability to otherwise pay or perform under these Conditions, production may be stopped, shipments suspended, products shipped but not yet paid for may be reclaimed by Seller, and the suspension or cessation of services until such time as assurances satisfactory to Seller are provided by Buyer. Unless credit has already been established, shipment will be made or services provided C.O.D. or upon Seller’s receipt of payment in advance. Upon request of Seller, Buyer shall provide copies of its most recent audited financial statements or other reasonable evidence of its financial capacity and such other information as Seller may request to determine Buyer’s credit status or credits limits.

4. SHIPPING AND DELIVERY OF PRODUCTS
A. All prices and terms of sale are EXW (Incoterms 2010) Seller’s point of manufacture. Title and risk of loss and damage shall pass to the Buyer upon Seller making the products available to the Buyer’s designated carrier at Seller’s point of manufacture.
B. Seller shall notify the Buyer of the approximate shipment date, which may differ from Buyer’s requested shipment date. The approximate shipment date given by Seller in advance of actual shipment is only an estimate and is not binding on Seller unless a guaranteed shipment date has been agreed to in writing and signed by an authorized representative of Seller.
C. Buyer will deal directly with the carrier regarding any damage to products resulting from shipment and Seller shall have no liability for any such damages.  Buyer shall remain responsible for payment in full for the products notwithstanding any loss or damage to the products once risk of loss or damage has transferred.  
D. Seller shall be under no obligation to make any shipment when the Buyer is in default hereunder or under any other agreement between Seller and the Buyer.
E. Seller shall not be liable for any delays in shipment or early shipment, however caused, it being understood that Buyer’s sole remedy in the event of a delayed shipment is to cancel the order if and when permitted under these Conditions.
F. Seller reserves the right to make deliveries in installments and to modify orders based on product availability or to discontinue any product.

5. PRODUCT RETURNS
A. Written authorization must be obtained from Seller before any products are returned. Returned products will not be accepted unless returned shipments bear Seller’s return authorization number and the specific RMA number which has been approved/accepted by Seller’s customer service group. Absent a breach of Seller’s limited warranty as set forth in these Conditions, the Buyer is only entitled to return the product and be issued a credit to its account for any products that Seller authorizes Buyer to return. Refunds will not be made for returned products unless agreed to by Seller in its sole discretion.
B. Products returned for reasons other than a breach of Seller’s limited warranty as set forth in these Conditions must not be used, damaged or out-of-date. If any such products are received, the price of such products shall not be included in the resultant credit, if any. Goods must be securely and carefully packaged so as to reach Seller in good condition.

6. INSPECTION
Buyer shall notify Seller in writing of any visible defects, quantity shortages or incorrect product shipments within 5 days of receipt of shipment.  After such 5-day period, Buyer shall have no right to reject the products for any reason or to revoke acceptance, and will be deemed to have conclusively accepted the products, and Buyer’s sole remedy with respect to the accepted products will be under the limited warranty set forth in these Conditions.

7. CHANGE ORDERS
Buyer may reschedule shipment dates for any products ordered or performance dates for any services ordered, provided that the Buyer notifies Seller of such change, in writing, at least thirty (30) days prior to Seller’s estimated shipment date or date of commencement of performing services. Any rescheduled shipment or performance date requested by Buyer which is later than ninety (90) days after Seller’s original estimated shipment or performance date may be deemed by Seller to be a cancellation by Buyer, and such cancellation shall subject Buyer to applicable cancellation charges identified below.

8. CANCELLATIONS
A. The Buyer may cancel an order, subject to the terms provided herein, no less than 30 days prior to Seller’s estimated shipment date for standard catalog items or for standard services. All cancellations are subject to a reasonable cancellation charge to be determined by Seller, which will be based on, among other factors, completed goods, restocking of standard parts and/or materials purchased for the express purpose of fulfilling Buyer’s order, and other orders or opportunities which Seller declined, in whole or in part, based on the planned, committed or actual use of Seller’s resources or materials in connection with the canceled order. All products, parts or materials ordered or held by Seller at Buyer’s request shall be at the risk and expense of Buyer upon cancellation. Seller will invoice Buyer for any applicable cancellation charge.
B. Notwithstanding anything to the contrary in these Conditions, all nonstandard customer-specific items and services are non-cancelable and non-returnable.

9. LIMITED WARRANTY FOR PRODUCTS
A. Seller warrants products of its manufacture to be free from material defects in material and workmanship under conditions of normal use for one (1) year from the date of shipment.  THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES.  SELLER MAKES NO, AND EXPRESSLY DISCLAIMS ALL, OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER INTELLECTUAL PROPERTY RIGHTS.  Buyer agrees to use its own independent judgment in making, using, selling or distributing Buyer’s products, and agrees to assume the entire risk arising out of the use or performance of Seller’s products, and any products the Buyer designs, develops, markets, uses or sells using Seller’s products.
B. In the event Buyer claims that the products are in breach of the limited warranty set forth in this Section 9, Buyer shall promptly notify Seller in writing and provide a written explanation of how the products are allegedly defective and how they were stored, maintained, installed and/or operated by Buyer or other third party.  Such explanation shall also detail any special or noteworthy circumstances.
C. Seller, at its option and expense, will replace or repair any materially defective or faulty product which results directly from defects in material or workmanship provided (i) that Seller first be given and receive from Buyer written notice of such alleged defects within the warranty period, and (ii) Seller shall have authorized the return of the allegedly defective products as provided herein. The existence of a defect or fault shall be determined by Seller in its sole discretion. Such determination shall be conclusive and not subject to reconsideration. In lieu of replacing or repairing a product determined by Seller to be defective, Seller may elect, in its sole discretion, to credit Buyer for the purchase price of a defective product.  Seller’s sole obligation for any products which are determined by Seller to be other than as expressly warranted in this Section 9 are those expressly provided for under this Section 9, and the remedies available to Buyer in this Section 9 shall be Buyer’s sole and exclusive remedies for Seller’s breach of this limited warranty.
D. Any claim for breach of the limited warranty under this Section 9 or otherwise shall conclusively be deemed to be waived by the Buyer unless written notice of the claimed defect is submitted to Seller within thirty (30) days after the date on which the alleged defect is discovered or should have been discovered using reasonable diligence.
E. This limited warranty shall be void and shall not apply if the original Buyer transfers ownership of warranted products, unless Seller is notified in writing of the name and address of the transferee within fifteen (15) days after the date on which the transfer was made. In such case, the warranty period shall not be restarted, extended or otherwise changed. This restriction on transfer of a product warranty is not applicable if the original Buyer is an authorized distributor of Seller.
F. This limited warranty shall be void and shall not apply (i) to any product which has been subjected to any misuse, neglect, accidental damage or that contains defects which are in any way attributed to improper storage, improper installation, wiring or voltage, or to additions, alterations or repairs made by anyone other than Seller or who is authorized by Seller, (ii) to any product which has been disassembled, modified, physically or electrically damaged, or subjected to conditions exceeding the applicable specifications or rating, or (iii) where unapproved and unauthorized accessories are used with or in connection with the product.
G. All freight and shipping charges incurred to repair or replace products in breach of this limited warranty are the sole responsibility of the Buyer.
H. If Seller determines that a returned product is not defective, Seller may impose a reasonable service charge and/or restocking fee not to exceed 20% of the product purchase price.

10. LIMITED WARRANTY FOR SERVICES
A. Seller warrants services it performs will be performed in a professional and workmanlike manner.  THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES.  SELLER MAKES NO, AND EXPRESSLY DISCLAIMS ALL, OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER INTELLECTUAL PROPERTY RIGHTS, AND THAT THE SERVICES WILL MEET BUYER’S NEEDS.  Buyer agrees to use its own independent judgment in receiving any services from Seller, and agrees to assume the entire risk arising out of the use or performance of Seller’s services, and any products or services the Buyer designs, develops, markets, offers, uses, performs or sells using or resulting from services performed by Seller.
B. In the event Buyer claims that the services are in breach of the limited warranty set forth in this Section 10, Buyer shall promptly notify Seller in writing and provide a written explanation of how the services are in breach of such warranty.
C. Seller, at its option and expense, will re-perform the services or issue a service credit to Buyer if Seller determines in its sole discretion that any services were in breach of the warranty provided in this Section 10. Such determination shall be conclusive and not subject to reconsideration.  Seller’s sole obligation for any services which are determined by Seller to be other than as expressly warranted in this Section 10 are those expressly provided for under this Section 10, and the remedies available to Buyer in this Section 10 shall be Buyer’s sole and exclusive remedies for Seller’s breach of this limited warranty.
D. Any claim for breach of the limited warranty under this Section 10 or otherwise shall conclusively be deemed to be waived by the Buyer unless written notice of the claimed breach is submitted to Seller within thirty (30) days after the date on which the alleged breach is discovered or should have been discovered using reasonable diligence.

11. WIRELESS SERVICES AGREEMENT
Buyer acknowledges and agrees that the use and continued use of the cellular machines products and services require Buyer to enter into a separate Wireless Services Agreement with Seller pursuant to which Seller will arrange for wireless connectivity for Buyer through a third party provider. The terms of the Wireless Services Agreement shall govern and control with respect to the wireless services.
 
12. BUYER’S DEFAULT
Upon any breach of these Conditions by Buyer or default by Buyer, Seller shall be entitled to exercise any or all remedies available to it under these Conditions, any other agreement between the parties, including, but not limited to, the Wireless Services Agreement, and/or those under applicable law, including, but not limited to: (a) suspending performance of the subject order and/or any other order for products or services by Buyer or its related or affiliated parties; (b) canceling pending orders and refusing to accept future orders; (c) acceleration of any amounts due by Buyer to Seller; (d) recovering damages, including, but not limited to, consequential and incidental damages; (e) exercising all remedies available to it under the Uniform Commercial Code and other applicable law; and (f) being entitled to indemnification from Buyer as set forth in these Conditions.

13. PRODUCT DESIGN; NO REVERSE ENGINEERING
A. Seller reserves the right to make changes to the designs and specifications of its products or discontinue products at any time without notice.  Upon making any such changes, Buyer agrees that Seller shall be entitled to substitute such changed products for products previously sold by Seller.  Any changes or recommendations made by Buyer with respect to the products shall be the sole property of Seller.  Seller and its licensees shall be entitled to use and incorporate any such changes or recommendations into the products and/or develop new products, and Seller shall have the right to seek intellectual property protection with respect to any such changes or recommendations and/or new products and commercialize the same without making payment, or providing other consideration, to Buyer.
B. Buyer shall not reverse engineer, decompile, disassemble, create derivative works from, or emulate the functionality of the products or Seller's confidential and/or proprietary information.

14. INTELLECTUAL PROPERTY
The sale of the products to or performance by Seller of services for Buyer shall not be construed as granting Buyer any license or other rights in, to or under any patent, trademark, copyright, or other intellectual property right of Seller or in or to the products or services.

15. TOOLING
Charges made to Buyer for tools, dies, gauges, jigs, fixtures or equipment (collectively, “Tools”) made or acquired by Seller in connection with any products ordered by Buyer do not convey title to or any proprietary or other interest in such Tools.  All such Tools will remain the exclusive property of Seller.

16. NONDISCLOSURE / NONUSE
The Buyer agrees that it will not disclose or make available to any third party, or directly or indirectly use for its own benefit, any confidential or proprietary information belonging to Seller, whether or not marked as such, including, but not limited to, drawings, data, or other information pertaining to Seller’s products without obtaining Seller’s prior written authorization in each instance for such disclosure. The Buyer shall cause its employees, agents and others having access to such information to be aware of, and to agree in writing to abide by, the terms of this Section 16. Buyer shall be responsible for any breach of this Section by any of its employees, agents and others having access to such information.

17. BUYER’S INDEMNIFICATION
Buyer shall, to the fullest extent permitted by law, indemnify, defend and hold harmless Seller and their respective officers, directors, employees, agents, contractors, representatives, successors and assigns from and against any and all claims, demands, actions, suits and proceedings (whether civil, criminal or administrative), and all liability, loss, expense (including reasonable attorneys' fees), costs, fines, penalties, interest or damages, which in any way arise out of, relate to, or are in connection with any of the following: (i) the breach by Buyer or its principals, officers, directors, employees, agents, contractors and/or representatives of any obligations, representations, warranties or covenants made under these Conditions, (ii) the intentional or negligent act or omission of Buyer or its principals, officers, directors, employees, agents, contractors and/or representatives, (iii) products being repaired or altered by persons other than Seller (unless expressly authorized in writing by Seller), (iv) Buyer’s infringement or alleged infringement of any of Seller’s intellectual property rights, (v) Buyer’s modification of any product or combination of any product with any non-Seller products, systems, software, devices or components and such modification or combination results in the actual or alleged infringement of any intellectual property rights of any third party, (vi) the improper use or installation of products, (vii) from products produced or services performed by Seller according to Buyer’s specifications, or (viii) the operation of Buyer’s business.

18. LIMITATION OF LIABILITY
SELLER SHALL IN NO EVENT BE LIABLE TO BUYER OR TO ANY THIRD PARTY FOR ANY PUNITIVE, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF GOODWILL, LOSS OF OPPORTUNITY, LOSS OF USE, OR OTHERWISE IN ANY WAY ARISING OUT OF OR RELATING TO THESE CONDITIONS OR THE PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO, THE PURCHASE, USE, INABILITY TO USE, MARKETING, SALE AND DISTRIBUTION OF THE PRODUCTS OR SERVICES, EVEN IF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES WAS MADE KNOWN TO SELLER.  UNDER NO CIRCUMSTANCES SHALL SELLER’S TOTAL LIABILITY TO BUYER OR ANY THIRD PARTY ARISING OUT OF OR RELATING TO THESE CONDITIONS OR THE PRODUCTS OR SERVICES, WHETHER GROUNDED IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, CLAIMS BASED UPON BREACH OF WARRANTY AND CLAIMS FOR LOSS OF LIFE OR PERSONAL OR BODILY INJURY), EXCEED THE TOTAL AMOUNT PAID BY BUYER AND ACTUALLY RECEIVED BY SELLER FOR THE PRODUCTS OR SERVICES OUT OF WHICH THE CLAIM AROSE.

19. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL
These Conditions, and the underlying obligations of the parties relating to the sale of products and/or services by Seller to Buyer, shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any sale or products sold under these Conditions.  The venue for any dispute or litigation involving the interpretation or application of these Conditions or otherwise for any claims relating to the subject matter of any transaction or products or services governed by these Conditions shall be in the U.S. District Court for the Northern District of New York located in Onondaga County, State of New York or New York State Supreme Court, Onondaga County, State of New York. Each party hereby consents and submits to the exclusive jurisdiction of such courts.  THE PARTIES AGREE TO WAIVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A JURY TRIAL WITH RESPECT TO ANY LEGAL DISPUTE RELATING TO THESE CONDITIONS OR OTHERWISE RELATING TO THE SUBJECT MATTER OF ANY TRANSACTION OR PRODUCTS OR SERVICES GOVERNED BY THE CONDITIONS.

20. FORCE MAJEURE
Seller shall not be liable for any failure or delay in the performance of any of its obligations under these Conditions or otherwise, including, but not limited to, delay in shipment, or any damages resulting therefrom, if such delay or failure is caused in whole or in part by act of God, embargo, governmental regulation, fire, strike or other labor strife, war, riot, terrorism (or threat thereof), equipment failure, delay in transportation, shortage and/or unexpected or unreasonable increase in prices of raw materials or supplies, changes in laws, or any other cause beyond the reasonable control of Seller.

21. LIMITATION ON ACTIONS
Buyer agrees, to the maximum extent permitted by applicable law, that any claim Buyer may have against Seller must be filed within one (1) year of the date on which the claim arose.  If Buyer fails to file a claim within this time period Buyer shall be deemed to have waived its right to file a claim or to otherwise seek recourse against any Seller.

22. RIGHT TO OFFSET
Seller shall be entitled to offset any amounts owed by it to Buyer against any payment or compensation that is owing and unpaid by Buyer to Seller under any order by Buyer under these Conditions, under any other contract or agreement between Seller and Buyer, or otherwise.

23. INJUNCTIVE RELIEF
In addition to all other remedies available to Seller under these Conditions, at law or in equity, Seller shall be entitled to seek injunctive relief without the posting of any bond or security to obtain the entry of temporary and permanent injunctions and orders of specific performance enforcing the provisions of these Conditions.  Buyer agrees and acknowledges that failure to comply with the provisions of these Conditions will result in irreparable harm to Seller.

24. RELATIONSHIP OF THE PARTIES
The relationship of Seller and Buyer as created by these Conditions is that of independent contractors, and nothing herein shall be construed to create or imply the creation of a relationship between the parties as principal and agent, employer and employee, partners and/or joint venturers.  Neither party shall have, or hold itself out as having, the power or authority to bind or create liability for the other party by its negligent or intentional acts or omissions.

25. WAIVER
No waiver, alteration, or modification of any of the provisions of these Conditions shall be binding unless in writing and signed by an authorized representative of Seller.  No delay or failure on Seller’s part in exercising any right, privilege, remedy or option hereunder shall operate as a waiver of such right, privilege, remedy or option.

26. SEVERABILITY
If any provision of these Conditions shall be determined to be invalid or unenforceable, such provision shall be invalid or unenforceable only to the minimum extent required, and all other provisions shall remain in full force and effect.

27. NOTICES
All notices or other communications required to be given under these Conditions shall be in writing and shall be deemed to have been given upon personal delivery, certified or registered mail, return receipt requested, or by overnight courier with proof of delivery to the parties at the addresses set forth in an accepted order, unless a different address is designated in writing.

28. NO THIRD PARTY BENEFICIARIES
These Conditions are not intended to benefit any third party.    

29. ASSIGNMENT
Buyer shall not delegate any duties or assign (by operation of law, through change in control transaction or otherwise), these Conditions or any rights or claims under these Conditions or any order without Seller’s prior written consent.  Any attempted or purported delegation or assignment by Buyer in violation of the foregoing shall be void.

30. MODIFICATION
Seller reserves the right to change these Conditions from time to time and at any time by publishing revised Conditions on Seller’s website at www.anaren.com. Buyer is advised to review the website and these Conditions regularly.  The revised Conditions shall immediately become effective for all quotes issued and sales made after publication.

31. SURVIVAL
All provisions set forth in these Conditions regarding warranty, confidential information, indemnification, limitation on liability, and any other provisions that survive by their terms, will survive any expiration or termination of any quote, or any termination, cancelation or completion of any order.

Last Revised: April 22, 2015