(Version June 2022)
THESE TSL® TERMS AND CONDITIONS OF SALE (“TERMS”) APPLY TO HARDWARE AND RELATED PRODUCT OFFERINGS (REFERRED TO HEREIN AS “TSL OFFERINGS”).
TSL’S OFFER IS CONDITIONED UPON ACCEPTANCE BY PURCHASER OF THESE TERMS, INCLUDING ANY ADDITIONAL TERMS REFERENCED HEREIN. TSL REJECTS ANY PURCHASER TERMS THAT ADD TO, VARY FROM, OR CONFLICT WITH THESE TERMS. TSL’S FAILURE TO OBJECT TO PURCHASER TERMS CONTAINED IN ANY COMMUNICATION FROM PURCHASER (INCLUDING, BUT NOT LIMITED TO, AN ORDER) IS NOT A WAIVER OF THIS PARAGRAPH.
PURCHASER ACKNOWLEDGES AND AGREES PURCHASER HAS NOT RELIED ON ANY PROMISE, STATEMENT OR REPRESENTATION MADE OR GIVEN BY OR ON BEHALF OF TSL, OR ANY OF ITS AFFILIATES, WHICH IS NOT SET OUT IN THESE TERMS. TSL RESERVES THE RIGHT TO AMEND THESE TERMS FROM TIME TO TIME AND SHALL THEREAFTER APPLY TO ALL SUBSEQUENT ORDERS.
“Affiliate” or “Affiliates” means entities which are controlled by a party, which controls a party or which is under common control with a party, where “control” means the direct or indirect ownership of at least fifty percent (50%) of the shares or interests entitled to vote for the directors thereof or the equivalent, so long as such control exists.
“Channel Partner” means an entity that TSL has authorized as a “reseller” of the TSL Offerings.
“Custom TSL Offering” means any TSL Offering that is modified or customized for by TSL prior to delivery. By way of example, custom-engineering, modification or configuration may include, but is not limited to, custom firmware, packaging, configuration, TSL Offering housings that are not TSL’s published standard color, form, fit or function, or non-standard item quantities, as well as changes made to the TSL Offering by Purchaser, End Customer, or any other Downstream Party (as herein defined), including changes to housing, programming and operation.
“End Customer” means Purchaser or, if Purchaser is a Channel Partner, the ultimate end customer to which the Channel Partner, or its downstream reseller, sells the TSL Offerings, as applicable, for internal use by such party, and not for further resale.
“Documentation” means the guides and manuals customarily supplied by TSL for use with the TSL Offerings, if any.
“Intellectual Property Rights” means worldwide common law and statutory rights associated with (a) patents and patent applications; (b) works of authorship, including mask work rights, copyrights, copyright applications, copyright registrations and “moral” rights; (c) the protection of trade and industrial secrets and confidential information; (d) all rights to registered and common law trademarks, trade names, trade dress, and service marks; and (e) other proprietary rights relating to intangible intellectual property (including but not limited to designs, design rights, source codes, proprietary material, know-how, ideas, concepts, methods, techniques, rights in databases and all other intellectual property rights and rights of a similar character whether registered or capable of registration).
“Order” means the purchase order(s) or other written document provided by Purchaser setting forth the TSL Offerings to be purchased. The Order shall contain, at a minimum: Purchaser’s registered and billing address(es); the End Customer (if different from Purchaser); part number, description and quantity ordered.
“Order Acknowledgement” means a written confirmation notice (electronic or otherwise) that TSL issues to Purchaser confirming acceptance of the Order and purchase of the TSL Offerings.
“Personal Data” means any information relating to an identified or identifiable natural person (“data subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Purchaser” means the entity which has issued an Order for the TSL Offerings.
“TSL” means Technology Solutions (UK) Ltd.
“Quote” means the TSL-issued written quotation or proposal for the TSL Offerings, if any. As used herein “Pricing Exception Quote” shall mean any Quote that contains pricing that deviates from TSL’s standard list price.
2. Order Process and Order Changes.
- Orders placed by Purchaser are firm and binding on Purchaser once accepted in writing by TSL. If TSL has issued a Pricing Exception Quote, to receive the pricing set forth therein, Purchaser must reference such Quote, including any accompanying numerical identification.
- An Order is not valid and binding upon TSL unless and until all the information required by TSL has been provided and accepted. Orders may not be cancelled, suspended, or changed by Purchaser without the prior written consent of TSL.
- No Order shall be deemed to be accepted by TSL until an Order Acknowledgement is provided by TSL. TSL reserves the right to accept or reject any Purchaser Order or Quote signed by Purchaser at any time, without liability of any kind.
- End Customer may not resell any TSL Offerings. The term “resell” or “resale” shall include any resale, lease, license, sublicense or other transfer or delivery of the TSL Offerings.
- All sales are final; no refunds, credits or exchanges apply.
3. Pricing and Payment Terms.
- Unless otherwise indicated, and subject to Sections 3(f) and 3(g), quoted prices for TSL Offerings are firm fixed price (FFP). Subject to Sections 3(f) and 3(g), Pricing remains valid for ninety (90) calendar days from the date of Quote, unless otherwise specified in the Quote.
- Subject to Section 3(g), the prices for TSL Offerings sold hereunder will be the prices as shown on the Order Acknowledgment provided to Purchaser and in effect at the time of Order Acknowledgment, or as otherwise agreed upon in writing between Purchaser and TSL. Provided, however, if such prices are based on the purchase of a particular volume and Purchaser fails to purchase such volume, TSL shall have the right (in addition to any other remedies available at law) to collect from Purchaser the difference between the price paid by Purchaser and the price for such items commensurate with the quantity actually purchased by Purchaser.
- Invoices are payable within thirty (30) days from the date of invoice in the method and currency identified by TSL in the invoice. All payments shall be invoiced and paid in full and are nonrefundable and non-creditable. No discount for early payment is authorized. Purchaser may not offset, defer or deduct any invoiced amounts that TSL determined are not erroneous following such period. Invoices shall be deemed accepted by Purchaser upon receipt, unless Purchaser advises TSL in writing of a material error within ten (10) days after receipt. Notwithstanding anything to the contrary, Purchaser may be required to complete a credit application. TSL reserves the right to extend credit to the Purchaser based upon credit determination. Specific financing arrangements will be considered on a case by case basis and the terms and conditions for such will be defined by TSL and binding upon the Purchaser.
- Prices do not include, and Purchaser shall pay, any national, state, local, or international property, license, privilege, sales, use, excise, gross receipts, VAT, duty or other like taxes relating to the sale, delivery, receipt, payment for or use of the TSL Offerings including any interest, penalty and additional tax or other charge related to delay or failure to pay such amount (“Taxes”). If TSL is required to collect any Taxes for those payments made directly to TSL such Taxes will be itemized separately on the invoice and paid by Purchaser. TSL will accept a valid Tax exemption certificate from Purchaser, if applicable. If an exemption certificate previously accepted by TSL is not recognized by the relevant governmental taxing authority, Purchaser agrees to promptly reimburse TSL for any Taxes covered by such exemption certificate which TSL is required to pay.
- If Purchaser fails to pay the price or any other amount due and payable hereunder, no right to use the TSL Offerings shall pass from TSL to End Customer. Any amount due by Purchaser hereunder which remains unpaid after the due date shall be subject to a late charge equal to 1.5% per month or the maximum permitted by applicable law, which interest will be immediately due and payable from the payment due date until the date of actual receipt in cleared funds by TSL. TSL, without waiving other rights or remedies and without liability to Purchaser, may suspend or terminate and refuse additional Orders until overdue amounts are fully paid by Purchaser.
- TSL reserves the right to change its prices at any time and without notice. The terms for price changes for Orders previously accepted by TSL are subject to Price Modification in accordance with Section 3(g) below.
- TSL may modify pricing (“Price Modification”) with respect to Orders that have been previously accepted by TSL, to the extent TSL deems necessary, for reasons including but not limited to: (i) price increases imposed by TSL’s suppliers; (ii) Purchaser’s required procurement timelines; (iii) supply chain constraints or material shortages; or (iv) other events outside of TSL’s control impacting the relevant industry. Purchasers may reject the Price Modification by cancelling the applicable lines of the Order subject to the Price Modification within 14 calendar days of the Price Modification notification. If requested by TSL, Purchaser agrees to issue, or otherwise agree to, a revised or supplemental Order pursuant to this Section. If Purchaser fails or refuses to issue or agree to a revised or supplemental Order reflecting a Price Modification, TSL may in its sole discretion, in addition to any other remedy it may have, cancel the Order or hold such Order until such revised or supplemental order has been issued or provided. Notwithstanding the foregoing, unless the Purchaser cancels the Order within 14 days of the Price Modification notification, such Price Modification shall be binding regardless of Purchaser’s failure or refusal to issue or provide a revised or supplemental Order.
- Upon acceptance of an Order by TSL and the satisfaction of all TSL prerequisites prior to delivery, TSL shall ship the TSL Offerings and any associated Documentation to Purchaser or End Customer, as applicable, by full or partial shipment, in accordance with the Order Acknowledgement. Unless otherwise mutually agreed by the parties, all TSL Offerings and Documentation delivered in a tangible form shall be supplied EXWorks (INCOTERMS 2020) and shall be deemed shipped upon being made available to the first carrier at TSL’s site. Title shall pass from TSL to Purchaser upon tender to first carrier. TSL’s acceptance of an Order issued by Purchaser does not constitute acceptance of the INCOTERMS set forth in the Order. Notwithstanding, all fees associated with customs formalities, including import and export, are Purchaser’s sole responsibility. If requested by Purchaser, TSL will arrange transport and add freight and handling charges to the Purchaser’s invoice.
- TSL will assign estimated shipment dates on Orders based on the availability of the TSL Offerings and TSL’s acceptance of Purchaser’s Order. TSL will make commercially reasonable efforts to meet its assigned shipment dates. However, TSL will not be liable for its failure to meet such dates. If Purchaser or End Customer requests or otherwise causes TSL to store TSL Offerings beyond the assigned shipment date, Purchaser will be invoiced a commercially reasonable service and handling fee. TSL shall have no liability to Purchaser for delayed or cancelled shipments due to TSL’s compliance with applicable trade or export regulations or sanctions.
5. Embeddable Hardware.
To the extent the TSL Offerings purchased constitute embeddable hardware, the terms attached hereto as Addendum 2 shall apply.
6. TSL Offering Changes.
TSL reserves the right to discontinue the manufacture of any of the TSL Offerings, to make changes in any TSL Offering design, or to make modifications to the TSL Offerings at any time that do not affect the form, fit or function of the TSL Offering without prior notice to Purchaser. In no event, will TSL be required to change TSL Offering previously sold to Purchaser. This Section will not affect any Orders that have been previously accepted by TSL.
7. Intellectual Property and Proprietary Rights.
These Terms does not constitute a sale of any Intellectual Property Rights or other proprietary interests embodied in the TSL Offerings, the Documentation or any component thereof (or any copy, derivative work, upgrade, update, improvement or modification thereof), and nothing herein shall be deemed to establish or imply that any rights and/or license granted constitutes a conveyance of any underlying Intellectual Property Rights. TSL, its suppliers and service providers retain all right, title and interest in the TSL Offerings and associated Documentation, and all Intellectual Property Rights embodied therein or relating thereto. Purchaser agrees to maintain the copyright, patent, trademark and other notices appearing on the Documentation. All rights not expressly granted under these Terms are reserved by TSL. There are no implied rights. For clarity, no customization or alteration to the TSL Offerings, or any specifications, shall constitute a transfer of Intellectual Property Rights in the TSL Offerings and TSL, its suppliers and service providers shall retail all right, title and interest in any Custom TSL Offerings.
TSL and Purchaser acknowledge that each party may have access to certain of the other party’s confidential and proprietary information in connection with the performance of these Terms (the “Confidential Information”). Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party’s Confidential Information, including those taken by such party to protect its own Confidential Information of a similar nature. Each party will use the other party’s Confidential Information solely to fulfill the purposes of these Terms. Neither party will have any confidentiality obligation with respect to any portion of the other party’s information that (i) it independently develops without reference to the Confidential Information, (ii) it lawfully obtains from a third party under no obligation of confidentiality, or (iii) becomes available to the public other than as a result of its act or omission. Because of the unique nature of the Confidential Information, each party agrees that the disclosing party may suffer irreparable harm in the event the recipient fails to comply with its confidentiality obligations under these Terms, and that monetary damages may be inadequate to compensate the disclosing party for such breach. Accordingly, the recipient agrees that the disclosing party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce such confidentiality obligations.
9. Limited Warranty and Disclaimers.
- The terms of the General Warranty Policy attached hereto as Addendum 1 contains the warranty terms that apply to the TSL Offerings and are hereby incorporated into these Terms by reference. All warranties are solely for the benefit of the End Customer. Provided, however, TSL does not accept warranty claims directly from End Customers that purchase TSL Offerings from a Channel Partner. Channel Partners are expected to manage warranty claims escalated by End Customers.
- TSL represents and warrants to Purchaser that TSL has the authority to enter into these Terms and grant the rights set forth herein.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TSL OFFERINGS ARE SOLD “AS IS”. TSL, ITS AFFILIATES AND ITS THIRD-PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND THOSE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR FROM USAGE OF TRADE. TSL DOES NOT WARRANT THAT THE TSL OFFERINGS MEET PURCHASER OR END CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF ANY SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, WITHOUT DOWNTIME, WITHOUT DATA LOSS, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. FURTHERMORE, NEITHER TSL NOR ITS THIRD-PARTY SERVICE PROVIDERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE PERFORMANCE OR THE RESULTS OF THE USE OF THE TSL OFFERINGS OR DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TSL OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
- The foregoing limitations and exclusions apply to the extent permitted by applicable law in End Customer’s jurisdiction. If applicable law limits the application of the provisions of this Section, TSL’s liability will be limited to the maximum extent permissible.
- Each party shall defend and indemnify the other party, at its expense, from and against any losses, costs or damages arising from any claims filed by third parties relating to, arising out of or resulting from gross negligence, fraud, or willful misconduct in connection with these Terms.
- Purchaser shall defend, indemnify, and hold TSL, its Affiliates, officers, directors, third-party service providers and employees, harmless from and against any and all claims, damages, losses, costs or other expenses (including reasonable attorneys’ fees) that arise directly or indirectly out of breach of Section 12.
- If Purchaser is a Channel Partner, Purchaser shall further defend, indemnify, and hold TSL, its Affiliates, officers, directors, third-party service providers, and employees, harmless from and against any and all claims, damages, losses, costs or other expenses (including reasonable attorneys’ fees) that arise directly or indirectly out of: (i) sale of the TSL Offerings pursuant to no terms and/or conditions or terms and/or conditions less protective of TSL, the TSL Offerings, and the Intellectual Property Rights than those set forth in these Terms; or (ii) TSL’s suspension, cancellation, or termination of End Customer(s) right to use the TSL Offerings at Purchaser’s request or due to non-payment or insolvency by Purchaser.
- TSL shall defend, hold harmless and indemnify Purchaser from a claim against Purchaser by a third party that the TSL Offerings, used within the scope of and in compliance with these Terms, infringe a third-party copyright or patent (a “Covered Claim”) and will pay for all costs, damages, and expenses finally awarded by a court of competent jurisdiction or agreed to by TSL in a settlement of such Covered Claim. In the event that TSL anticipates that the TSL Offerings may or do become subject to Covered Claim, TSL shall have, at its sole option, the right to (i) obtain for Purchaser the right to continue using the TSL Offerings; (ii) substitute the TSL Offerings with another substantially similar offering; or (iii) without being in breach of these Terms: (a) revoke any right Purchaser has to purchase, use, resell, or otherwise exercise or grant any additional rights, as applicable, with respect to the infringing portion of the TSL Offerings; and (b) require Purchaser to revoke any such rights it has directly or indirectly granted others (“Downstream parties”). Revocation by TSL shall be effective upon Purchaser’s receipt of written notice from TSL and Purchaser shall be solely responsible and liable for ensuring that Downstream parties promptly comply with such revocation.
- TSL will have no liability or obligation under Section 10(d): (i) if Purchaser or any Downstream parties, as applicable, fail to take any corrective action directed by TSL (including, but not limited to, implementation of any update, upgrade, or patch); (ii) if Purchaser has not paid in full for the TSL Offerings subject to the Covered Claim; (iii) for any costs, losses, or damages resulting from willful acts of Purchaser or any Downstream parties, or any settlement or compromise agreed by Purchaser or Downstream parties without TSL’s prior written consent; and (iv) to the extent that a Covered Claim is based upon: (a) use of the TSL Offerings in combination with any other product, device, materials, services, software, or equipment; (b) alterations or modifications to the TSL Offerings; (c) use of the TSL Offerings other than in accordance with the Documentation; (d) TSL’s compliance with Purchaser or any Downstream parties’ designs, instructions, or specifications (whether or not included in a Custom Offering); or (e) TSL’s, Purchaser’s or any Downstream parties’ compliance with any industry or proprietary standard or use of the TSL Offerings to enable implementation of any industry or proprietary standard (such claims – i.e., those set forth in (i) through (iv) above – are individually and collectively referred to herein as “Excluded Claims”).
- Purchaser shall defend, hold harmless, and indemnify TSL, its Affiliates, officers, directors, third-party service providers, and employees from and against any and all claims, damages, losses, costs or other expenses (including reasonable attorneys’ fees) that arise directly or indirectly out of (i) Excluded Claims; or (ii) Purchaser’s unauthorized use of the TSL Offerings. TSL will be entitled to participate in its defense at its own expense with counsel of its own choosing.
- The indemnitee agrees to promptly notify the indemnitor, in writing, of any claim pursuant to this Section 10. The indemnitor shall have sole control of the defense of any such action (and all negotiations for its settlement or compromise). The indemnitee agrees to provide the indemnitor with all information and assistance reasonably required for the defense of the claim. No costs or any expense shall be incurred on the indemnitor’s account without indemnitor’s prior written consent.
- THE FOREGOING STATES THE SOLE LIABILITY OF TSL AND EXCLUSIVE REMEDY OF PURCHASER FOR INTELLECTUAL PROPERTY INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, IN REGARD THERETO. PURCHASER UNDERSTANDS AND AGREES THAT THE FOREGOING INTELLECTUAL PROPERTY INDEMNIFICATION TERMS ARE ESSENTIAL ELEMENTS OF THESE TERMS, AND THAT IN THE ABSENCE OF SUCH TERMS, THE MATERIAL AND ECONOMIC TERMS OF THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
11. Limitation of Liability.
IN NO EVENT SHALL TSL, ITS AFFILIATES OR THIRD-PARTY SERVICE PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO PURCHASER OR END CUSTOMER FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE TSL OFFERINGS PROVIDED HEREUNDER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, BUSINESS, LOSS OF DATA OR DATA BREACH, GOODWILL, ANTICIPATED SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY AND THE LIKE), EVEN IF TSL OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL TSL’S AGGREGATE LIABILITY FOR DAMAGES UNDER THESE TERMS EXCEED THE AMOUNT PAID BY PURCHASER FOR THE TSL OFFERINGS AT ISSUE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM. The foregoing limitations and exclusions apply even if a limited or exclusive remedy fails of its essential purpose and will apply to the extent permitted by applicable law in Purchaser’s jurisdiction. If applicable law limits the application of the provisions of this Section, TSL’s liability will be limited to the maximum extent permissible.
12. Compliance with Laws.
- If Purchaser is a Channel Partner, Purchaser shall obtain any and all permits, licenses, authorizations and/or certificates that may be required in any jurisdiction or by any regulatory agency in connection with the conduct of its business and the distribution or sale of the TSL Offerings, if so authorized.
- Each party shall comply with all applicable laws, ordinances, rules and regulations, and shall obtain any and all permits, licenses, authorizations, and/or certificates that may be required in any jurisdiction or any regulatory or administrative agency in connection with the sale, use and/or operations of TSL Offerings or other technology TSL makes available. In particular, the parties will comply fully with all applicable laws and regulations governing or in any way relating to: (i) the import and export of the TSL Offerings, (ii) economic sanctions and embargoes, (iii) anti-boycott controls, including those maintained by the U.S. Departments of Commerce and Treasury, (iv) the U.S. Foreign Corrupt Practices Act, the UK Bribery Act or any other laws or regulations regarding corruption or bribery; or (v) the use of deceptive or misleading practices. Without limiting the generality of the foregoing, Purchaser shall comply with all laws and regulations on data privacy, international communications, and the exportation of technical or personal data.
- The TSL Offerings or other technology TSL makes available may be subject to export laws and regulations of the United States and other jurisdictions. Purchaser agrees to comply strictly with all export laws and regulations. Purchaser shall not permit access or use of any TSL Offerings, or other technology TSL makes available, to any person or entity that is the target of sanctions or in an embargoed country that would prohibit such access or in violation of any export law or regulation. Embargoed countries and sanctions lists are subject to change without notice, and Purchaser must comply with the lists as they exist in fact. Purchaser certifies that neither Purchaser nor any End Customers or other Downstream parties are listed on any blocked, denied, sanctioned or debarred persons or entity list, including, without limitation, the: (i) Consolidated Screening List maintained by the U.S. Department of Commerce’s International Trade Administration (available at https://www.trade.gov/consolidated-screening-list); (ii) Consolidated Sanctions List maintained by the U.S. Department of the Treasury Office of Foreign Assets Control (available at https://sanctionssearch.ofac.treas.gov/); (iii) Consolidated List of Financial Sanctions Targets maintained by the Office of Financial Sanctions Implementation of Her Majesty’s Treasury of the United Kingdom (available at https://sanctionssearch.ofsi.hmtreasury.gov.uk/); (iv) UK Sanctions List maintained by the Foreign and Commonwealth Office of the United Kingdom (available at https://www.gov.uk/government/publications/the-uk-sanctions-list); or (v) any similar list maintained by any government authority. For more information on export restrictions for TSL Offerings, Documentation and technical data, please contact the TSL Legal Department at firstname.lastname@example.org.
- Whenever reasonably requested by TSL, Purchaser will provide TSL with a written certificate, in a form acceptable to TSL, of continuing compliance with this Section. In addition, TSL maintains the right to request and review records or other documents from Purchaser, or, with reasonable advance notice, to conduct an audit at the site of Purchaser operations, to confirm Purchaser’s compliance with the terms of this Section and the Terms.
13. Term, Suspension, Termination, and Renewal.
- Unless sooner terminated in accordance with other provisions of these Terms, these Terms will continue in full force and effect until all rights and duties set forth herein have been completed, expired or terminated.
- If any amount owing by Purchaser is thirty (30) or more days overdue to TSL, TSL may in its sole discretion and without limiting TSL’s other rights and remedies, suspend Purchaser’s use of the TSL Offerings and stop fulfillment on any other Orders placed by Purchaser. TSL will give Purchaser at least 10 days’ prior notice prior to suspension. If Purchaser disputes the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute, the exercise of the rights within this Section shall be at TSL’s sole discretion.
- Either party may terminate these Terms if: (i) the other party files or has filed against it a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law or is adjudicated bankrupt; or (ii) makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
- Upon the termination of these Terms Purchaser shall immediately pay all outstanding sums due to TSL. Following termination, these Terms will continue to apply to all past use of the TSL Offerings by Purchaser.
- The Sections of these Terms which contemplate performance or observance subsequent to termination or expiration of these Terms, or which by their nature are intended to survive termination or expiration of these Terms shall so survive termination or expiration and continue in full force and effect.
- For clarity, Purchaser is responsible for all fees associated with any delivered TSL Offerings, and TSL is permitted to invoice as set forth in these Terms. If the Order is terminated for any reason, TSL is permitted to immediately invoice Purchaser for delivered TSL Offerings.
14. Information Security and Data Privacy.
- TSL will implement and maintain, and will require its subcontractors to implement and maintain, commercially reasonable security measures designed to meet the following objectives: (i) reasonably protect the security and confidentiality of End Customer data in the custody and under the control of TSL; (ii) protect against known threats or hazards to the security or integrity of such data; (iii) protect against unauthorized access to or use of such data; and (iv) return or disposal of such data is performed in a manner consistent with TSL’s obligations under items (i)-(iii) above.
- Notwithstanding anything to the contrary, End Customer is solely responsible for: (i) use of the hardware, including without limitation, installation, deployment, and management; (ii) use of the TSL Offerings in compliance with all applicable laws; (iii) ensuring the security of all data collected, processed, stored, and maintained using the TSL Offerings; and (iv) providing adequate notice and obtaining and maintaining valid consents from all of End Customer’s end users, as may be necessary under applicable law (including applicable data protection laws), to process Personal Data using the TSL Offerings for End Customer’s intended purposes.
- Nothing in these Terms is intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor. Except as otherwise set forth herein, each party shall bear its own costs and expenses in performing these Terms.
- If Purchaser is a Channel Partner, Purchaser shall not do anything to bring TSL or the TSL Offerings into disrepute. Purchaser will immediately notify TSL of all adverse incidents, events, reports or complaints relating to the TSL Offerings. Purchaser will promptly comply with all reasonable directions of TSL, whether regarding the investigation and handling of such matters, or regarding the continued supply of the TSL Offerings in the light of any other incident, event, complaint or information known to TSL. If Purchaser makes any claims or statements in respect of the TSL Offerings in its own catalogues, promotional literature, advertisements, or the like it shall first obtain TSL’s written approval of the substance of such claims or statements. Purchaser shall provide all information reasonably requested by TSL in respect thereof. Additionally, if Purchase is a Channel Partner, Purchaser must comply with the Code of Conduct – Business Partners of TSL’s ultimate parent company, ASSA ABLOY AB, located at: https://www.assaabloy.com/group/en/sustainability/code-of-conduct/code-of-conduct-business-partners.
- TSL shall not be considered in default of performance of its obligations under these Terms if performance of such obligations is prevented or delayed by any circumstances not within TSL’s control including, but without limitation: pandemics, epidemics, and any associated travel restrictions or advisories of relevant governmental and global authorities (such as the World Health Organization) prohibiting or restricting (or recommending the prohibition or restriction of) the movement of persons or goods or the closure of or restricted operation of facilities, acts of God, fire, explosion, flood, storm, terrorist attack, civil war, commotion or riots, war (or threat of war), imposition of sanctions, embargoes or acts of government (including without limitation failure or delay to obtain export licenses), labor disputes, failure or delay of transportation, suppliers, vendors or subcontractors, TSL’s inability to enter premises to fulfill its obligations under these Terms when applicable, or any other similar cause or causes beyond the control of TSL. Time of performance of TSL’s obligations hereunder shall be extended by the time period reasonably necessary to overcome the effects of such force majeure occurrences.
- TSL Offerings are provided with “Restricted Rights.” Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable (and the successor clauses to any of the foregoing). The contractor/manufacturer is Technology Solutions (UK) Ltd. Subject to any applicable regulations set out in the FAR or DFARS (and any superseding regulations), TSL Offerings are provided with the commercial license rights and restrictions described elsewhere in these Terms. For Department of Defense agencies, the restrictions set forth in the “Technical Data – Commercial items” clause at DFARS 252.227-7015 (Nov 1995) shall also apply.
- These Terms shall be construed and interpreted in accordance with English Law and the parties submit to the exclusive jurisdiction of the English Courts. The parties hereby irrevocably waive any and all rights to trial by jury in any legal proceedings arising out of or related to these Terms or the transactions contemplated hereby. The provisions of the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement, or any order issued hereunder.
- The parties hereby irrevocably waive any and all rights to trial by jury in any legal proceedings arising out of or related to these Terms or the transactions contemplated hereby. The provisions of the United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms or any Order issued hereunder.
- These Terms will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, no right or obligation of Purchaser under these Terms shall be assigned, delegated or otherwise transferred, whether by agreement, operation of law or otherwise, without TSL’s prior express written consent, and any attempt to do so without TSL’s consent shall be void. Notwithstanding the foregoing, (i) TSL may assign these Terms to a successor in interest (or its equivalent) of all or substantially all of its relevant assets, whether by sale, merger, or otherwise; and (ii) TSL may assign these Terms to any of its Affiliates. TSL may engage subcontractors to perform any of its obligations under these Terms.
- TSL will provide Purchaser with any legal notices by certified or registered mail, express mail, or overnight delivery service or to the email address Purchaser provided on the applicable Order. Purchaser is responsible for keeping its mailing and email address current with TSL. Legal notices to TSL shall be made in writing and provided by means of certified or registered mail, express mail or other overnight delivery service, or hand delivery, proper postage or other charges paid and addressed or directed to: Technology Solutions (UK) Ltd, c/o HID Global Corporation, 611 Center Ridge Drive, Austin, TX 78753, Attention: Legal Department.
- If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law or public policy the remaining provisions shall remain in full force and effect.
- No term or provision hereof shall be deemed waived and no breach consented to or excused, unless such waiver, consent or excuse shall be in writing and signed by the party claimed to have waived or consented. Should either party consent, waive, or excuse a breach by the other party, such shall not constitute consent to, waiver of, or excuse of any other different or subsequent breach whether or not of the same kind as the original breach.
- These Terms are the entire understanding and agreement between the parties hereto with respect to the subject matter of these Terms and merges and supersedes all prior communications, understanding and agreements, written or oral, and no amendments shall become effective without written agreement signed by the parties hereto.
General Warranty Policy
EXCEPT AS OTHERWISE SET FORTH HEREIN, ALL WARRANTIES ARE SOLELY FOR THE BENEFIT OF THE END CUSTOMER. ANY PURCHASE FROM A THIRD PARTY THAT IS NOT A TSL APPROVED CHANNEL PARTNER SHALL NOT BE ELIGIBLE FOR THE WARRANTIES CONTAINED HEREIN.
TSL RESERVES THE RIGHT TO AMEND THIS WARRANTY POLICY FROM TIME TO TIME AND THEREAFTER, IT SHALL APPLY TO ALL SUBSEQUENT ORDERS. TSL RESERVES THE RIGHT TO IMPROVE/MODIFY TSL OFFERINGS AT ANY TIME, AT ITS SOLE DISCRETION, AS IT DEEMS NECESSARY.
A. GENERAL LIMITED WARRANTY
TSL warrants that the hardware will be free from material defects in materials and workmanship and will substantially conform to the applicable Documentation in effect as of the date of manufacture for a period of one (1) year from the date of shipment by TSL (“Warranty Period”). This warranty does not apply to integrated hardware components. Notwithstanding, if the TSL Offering is an integrated hardware component purchased by a Channel Partner authorized to act as an OEM, the warranty shall apply to the Purchaser instead of the End Customer.
TSL’s sole and exclusive liability and End Customer’s sole and exclusive remedy under the hardware limited warranty shall be to, at TSL’s election, either: (i) repair the hardware; (ii) replace the hardware with new or refurbished hardware (replacement hardware being of identical model or functional equivalent – replacement parts may be new or equivalent to new); or (iii) provide to End Customer a credit towards End Customer’s future purchase of hardware from TSL in the amount received by TSL for the hardware (excluding taxes and levies). Any replacement hardware will be warranted for the remainder of the original Warranty Period, or for ninety (90) days, whichever is longer. Notwithstanding, if the TSL Offering is an integrated hardware component purchased by a Channel Partner authorized to act as an OEM, the remedy shall apply to the Purchaser instead of the End Customer.
The above remedies are available only if TSL is promptly notified in writing within the Warranty Period. After the applicable Warranty Period has expired, any repair, replacement or workaround services provided by TSL will be at TSL’s current standard service rates.
C. STANDARD Return Merchandise Authorization (“RMA”) Policy
To return hardware that has failed during the applicable warranty period (“Warranty-Return Hardware”), End Customer or Channel Partner, as applicable, must: (i) complete this RMA form and provide TSL with the model number and serial number of the hardware and a description of the claimed hardware defect; (ii) inform TSL of the Warranty-Return Hardware by contacting: email@example.com
TSL will issue End Customer or Channel Partner, as applicable, an RMA number. No RMA number will be issued to End Customer or Channel Partner, as applicable, if the applicable warranty period for the hardware has expired. Except as otherwise stated herein or agreed by TSL in writing, End Customer or Channel Partner, as applicable, will need to, at End Customer or Channel Partner’s cost, as applicable: (i) including any taxes and duties; (ii) remove and return the Warranty-Return Hardware to TSL; and (iii) install and/or deploy any repaired/replacement hardware provided by TSL.
All hardware which is returned to TSL for warranty service and not returned to End Customer or Channel Partner, as applicable, will become the property and possession of TSL.
Return shipment of the Warranty-Return Hardware to TSL must be made within thirty (30) calendar days of TSL’s issuance of the applicable RMA number (“RMA Timeframe”). The hardware must be returned to TSL in a testable condition otherwise the warranty is invalidated.
Warranty-return hardware is to be shipped to the TSL location from where it was shipped originally. End Customer or Channel Partner, as applicable, must return the hardware to TSL with the RMA number clearly marked on the package.
Any package received by TSL without an RMA number or shipped outside of the applicable RMA Timeframe will be refused and shipped back to End Customer or Channel Partner, as applicable,. A new RMA number must be obtained for any hardware returned to End Customer or Channel Partner, as applicable, due to End Customer or Channel Partner, failure, as applicable, to adhere to this RMA Policy.
Upon TSL’s receipt of the Warranty-Return Hardware from End Customer or Channel Partner, as applicable, TSL will evaluate the hardware to determine whether it is covered under the applicable warranty. If TSL determines the hardware is covered under warranty, TSL will take the corrective warranty action described in the applicable warranty policy, depending on the type of hardware.
End Customer or Channel Partner, as applicable, agrees to pay TSL a minimum per unit charge £45.00 GBP for any hardware evaluated by TSL and determined not to be defective or covered by warranty. If End Customer or Channel Partner, as applicable, receives replacement hardware from TSL but fails to return the Warranty-Return Hardware within thirty (30) calendar days from TSL’s issuance of the applicable RMA number, TSL reserves the right to invoice End Customer or Channel Partner, as applicable, and End Customer or Channel Partner, as applicable, shall pay the current list price for such unreturned hardware. End Customer or Channel Partner, as applicable, agrees to promptly initiate payments owed pursuant to this Section by issuance of a purchase order or credit card payment.
Notwithstanding, End Customer or Channel Partner, as applicable, shall not be required to return the following hardware, unless requested in writing by TSL within thirty (30) calendar days of End Customer or Channel Partner’s receipt of replacement hardware, as applicable. End Customer or Channel Partner, as applicable, will thereafter cease use and securely dispose of the unreturned hardware.
Repack the device in its original packing material. If the original packing material is not available, use an alternative and secure packing method (see below). Any damage caused by inadequate packing is not covered by warranty or maintenance contract.
For clarity, postage, insurance, or shipping costs incurred in presenting hardware for warranty service is End Customer or Channel Partner’s sole responsibility, as applicable.
D. WARRANTY EXCLUSIONS
- All warranties are VOID if TSL Offerings have been: (i) improperly installed by anyone other than TSL or where the serial numbers, warranty data or quality assurance decals on the hardware are removed or altered; (ii) used in a manner other than as authorized under the Documentation applicable to the TSL Offering or designed to circumvent the security of the TSL Offering; (iii) not installed, operated or maintained in accordance with the instructions supplied by TSL, including but not limited to the installation, operation or maintenance of the TSL Offerings on any hardware, operating system or tools (including their specific configurations) that are not compatible with the TSL Offerings; (iv) modified, altered or repaired by a party other than TSL or a party authorized by TSL; (v) combined and/or connected to any hardware, operating system or tools (including their specific configurations) not provided by TSL or otherwise authorized by TSL for integration or use with the TSL Offerings; (vi) operated or maintained in unsuitable environmental conditions, or by any other cause external to the TSL Offering or otherwise beyond TSL’s reasonable control, including any extreme power surge or failure or electromagnetic field, rough handling during transportation, fire or acts of God; (vii) used with telecommunication interfaces other than those supplied or approved by TSL which do not meet or are not maintained in accordance with the Documentation, unless otherwise specifically agreed in writing within the scope of these Terms; (viii) damaged due to failure of power, air conditioning or humidity control, or failures of storage media not furnished by TSL; (ix) subjected to accident, neglect, misuse or negligence of Purchaser, End Customer, its employees, agents, contractors, visitors or any other third party, or operator error; or (x) used in criminal activity or in violation of any applicable regulations or governmental standards.
- Upgrades are not covered under any warranty and are subject to independent pricing and terms and conditions, as deemed applicable by the nature of the upgrade activity.
- TSL Offerings provided as part of an evaluation, demo, or proof of concept are not covered under any warranty and are subject to independent pricing and terms and conditions, as deemed applicable by the nature of the activity.
- Components that by their nature are subject to general wear and tear in the course of normal use are not subject to any warranty.
- For clarity, the following is a non-exhaustive listing of items excluded from warranty coverage: (i) ancillary equipment not furnished by TSL which is attached to or used in conjunction with a TSL Offering; (ii) Tags/Inserts that are embedded into other products; (iii) products manufactured by third parties and resold by TSL without re-marking under TSL’s trademarks; (iv) software products not developed by TSL; (v) operating supplies or accessories outside the parameters designated in the Documentation or elsewhere; and (vi) consumable items (e.g. batteries, paper, silicon pads, cleaning solution, towels, printer cartridges and cables).
Further, TSL warranty is null and void upon the embedding into other products unless precautions and recommendations provided in applicable product data sheets, application notes and developer guides are followed.
- This warranty is VOID if the TSL Offering is misused, altered, tampered with or is installed or used in a manner that is inconsistent with TSL’s written recommendations, specifications and/or instructions, or fails to perform due to normal wear and tear.
E. Warranty Limitations and Disclaimer
IN NO EVENT SHALL TSL, ITS AFFILIATES OR THIRD PARTY SERVICE PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE TSL OFFERINGS (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, BUSINESS, LOSS OF DATA OR DATA BREACH, GOODWILL, ANTICIPATED SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), EVEN IF TSL OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TSL OFFERINGS ARE SOLD “AS IS”. TSL, ITS AFFILIATES AND ITS THIRD-PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND THOSE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR FROM USAGE OF TRADE. TSL DOES NOT WARRANT THAT THE TSL OFFERINGS MEET END CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF ANY SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, WITHOUT DOWNTIME, WITHOUT DATA LOSS, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. FURTHERMORE, NEITHER TSL NOR ITS THIRD-PARTY SERVICE PROVIDERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE PERFORMANCE OR THE RESULTS OF THE USE OF THE TSL OFFERINGS OR DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TSL OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
The foregoing limitations and exclusions apply to the extent permitted by applicable law in End Customer’s jurisdiction. If applicable law limits the application of the provisions of this Section, TSL’s liability will be limited to the maximum extent permissible.
This Addendum applies to hardware purchased from TSL that is intended to be embedded in products of another company (“Embeddable Hardware”), whether performed by Purchaser, End Customer, or another Downstream Party (“Embedding Party”). The resulting product is referred to herein as the “Final Product.”
1. The Embedding Party is permitted to incorporate or integrate Embeddable Hardware into the Final Product in accordance with the applicable Documentation; provided however, if Purchaser is not the Embedding Party, Purchaser shall remain liable for the Embedding Party’s compliance with the terms of the TSL® Terms and Conditions of Sale and this Addendum as it pertains to the Embeddable Hardware.
2. License Grant
2.1 Subject to the terms and conditions of the TSL® Terms and Conditions of Sale and this Addendum, TSL hereby grants Embedding Party a nontransferable, nonexclusive, non-sublicensable license during the Term to: (i) modify the Embeddable Hardware solely as necessary to exercise the right granted in Section 1, and (ii) to sublicense the rights explicitly granted to Embedding Party under the TSL® Terms and Conditions of Sale for the purpose of authorizing Downstream parties to use the Final Product.
2.2 TSL may provide Purchaser or an Embedding Party a reasonable number of units of Embeddable Hardware solely for Purchaser or an Embedding Party’s demonstration purposes and for internal development purposes relating to the integration of the Embeddable Hardware with Final Product (the “Demonstration Product”). This grant does not include any right to otherwise utilize the Demonstration Product, information relating to it, nor any right to reproduce the Demonstration Product or to make and/or sell variations or derivative works of the Demonstration Product. All right, title and interest in the Demonstration Product and associated Intellectual Property Rights shall remain in TSL. All such Demonstration Product will include customary Documentation. Purchaser agrees to keep, or to ensure that the Embedding Party keeps, the Demonstration Product installed and accessible at Purchaser or Embedding Party’s location, as applicable, and to maintain it in good operating condition. Demonstration Product may not be distributed without permission from TSL.
3. Software License
3.1 TSL hereby grants to Embedding Party a limited, non-exclusive, non-transferable, non-sublicensable, and perpetual license to use the object code version of TSL software embedded in the Embeddable Hardware, including the Documentation for Embedding Party’s use of the Embeddable Hardware solely in connection with the TSL® Terms and Conditions of Sale and this Addendum. Software does not include any source code whatsoever.
3.2 Embedding Party shall not use or reproduce the software or Documentation for any purpose other than as specified in this Addendum. Embedding Party shall not provide, sublicense, assign, distribute, rent, lease, sell, transfer, transmit or otherwise make available the software, any Documentation or any parts or copies thereof in any form to any third party, except as expressly permitted by this Addendum. TSL owns and shall retain all title, copyrights, and other proprietary rights in the software, Documentation and any updates, upgrades or translations thereof.
3.3 Should Embedding Party desire to develop derivative software applications for use with the Embeddable Hardware and if Embedding Party uses TSL’s APIs for this purpose, a separate license agreement will be provided by TSL for execution by TSL and Purchaser.
4. License Limitations and Restrictions
4.1 Purchaser and Embedding Party SHALL NOT, DIRECTLY OR INDIRECTLY: (i) distribute the Embeddable Hardware as a standalone product not integrated into the Final Product; or (ii) integrate the Embeddable Hardware into any equipment that competes with the Embeddable Hardware. TSL reserves the right to immediately terminate the TSL® Terms and Conditions of Sale for violation of the restrictions herein.
4.2 Purchaser and Embedding Party shall not distribute less than all of the subcomponents of the complete Final Product. Purchaser and Embedding Party are prohibited from unbundling and distributing separately any software or hardware component or Documentation from the Embeddable Hardware. PURCHASER AND EMBEDDING PARTY SHALL NOT, DIRECTLY OR INDIRECTLY, REMOVE THE SERIAL NUMBER OR OTHER MARKINGS FROM THE EMBEDDABLE HARDWARE.
4.3 Purchaser and Embedding Party agree not to: (i) rent, lease, or loan the Embeddable Hardware or use the Embeddable Hardware or authorize use of the Embeddable Hardware in any manner to provide service bureau or commercial time-sharing services to third parties; (ii) package the Embeddable Hardware in bulk for redistribution to any third parties, remarketers or distributors; (iii) reproduce, modify and/or create derivative works of any portion of the Embeddable Hardware except as necessary to exercise the right granted in Section 1; or (iv) distribute the Embeddable Hardware to any third party if it knows (or has reason to know) that the Embeddable Hardware may be use or transported (including any export or import) in violation of the TSL® Terms and Conditions of Sale.
4.4 Purchaser and Embedding Party shall not make copies, modifications, or translations of the Documentation or any software embedded in the Embeddable Hardware without TSL’s prior written authorization.
5.1 Purchaser and Embedding Party shall not brand the Final Product with any names, logos, or trademarks (collectively, “Marks”) other than: (a) the Marks of Purchaser or Embedding Party; or (b) the Marks of a Downstream Party (as authorized by such Downstream Party).
5.2 Purchaser and Embedding Party shall: (a) not make any representations, warranties, or guarantees concerning the Embeddable Hardware that are inconsistent with or in addition to those made in the TSL® Terms and Conditions of Sale, this Addendum, the Documentation or written marketing materials provided to Purchaser and/or Embedding Party by TSL; and (b) comply with all applicable federal, state, and local laws and regulations with respect to the Embeddable Hardware and its performance of all rights and obligations under the TSL® Terms and Conditions of Sale and this Addendum.
6. Additional indemnification.
In addition to the indemnification obligations set forth in the TSL® Terms and Conditions of Sale, Purchaser shall defend, hold harmless and indemnify TSL, its Affiliates, officers, directors, third-party service providers and employees against any and all claims, damages, liabilities and expenses based on or resulting from any claims: (i) alleging patent, copyright, trade secret or trademark infringement resulting from or in connection with the use, manufacture, assembly or distribution of any Final Product or use, creation or distribution of any Embeddable Hardware that constitutes a Custom TSL Offering; (ii) alleging actual or suspected defect or flaw in any TSL Offering modified by Purchaser or modified by TSL based on Purchaser’s instructions or specifications; and (iii) that the Final Product fails to meet any applicable technical requirements and/or certifications.