Legal FOC Agreement

LEGAL FOC AGREEMENT

This Legal FOC Agreement ("Agreement") is made and entered into as of Effective Date: by and between Provider Name: , with a principal place of business at (hereinafter "Provider"), and Recipient Name: , with a principal place of business at (hereinafter "Recipient").

RECITALS

WHEREAS, Provider manufactures or supplies certain goods, samples, components or services identified herein for evaluation, testing, demonstration and limited use; and

WHEREAS, Recipient desires to receive such goods, samples, components or services free of charge for the limited purposes set forth in this Agreement and Provider is willing to provide the same on the terms and conditions contained herein; and

WHEREAS, the parties intend that the supply of such items shall not constitute a sale for value and shall be governed by the terms of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:

1. DEFINITIONS

1.1 "FOC Items" means the goods, samples, components and/or services described in Section 2 and in Schedule A provided by Provider to Recipient free of charge under this Agreement.

1.2 "Confidential Information" means non-public technical, commercial or business information disclosed in connection with the FOC Items that is designated as confidential or that a reasonable person would understand to be confidential.

2. DESCRIPTION, QUANTITY AND DELIVERY

2.1 Provider shall supply the FOC Items described as follows:

3. TITLE; RISK OF LOSS; INSURANCE

3.1 Title to the FOC Items shall remain with Provider at all times unless the parties expressly agree in writing that title is transferred. Recipient accepts the FOC Items as bailee and shall have no right to sell or encumber the FOC Items absent a written assignment from Provider.

3.2 Risk of loss or damage to the FOC Items shall transfer to Recipient upon receipt at Recipient's facility. Recipient shall maintain insurance covering loss, damage and liability for the FOC Items at levels commercially reasonable for comparable property and shall, upon request, provide proof of such insurance to Provider.

4. PERMITTED USE; RESTRICTIONS

4.1 Recipient shall use the FOC Items solely for evaluation, testing, demonstration and internal development unless otherwise agreed in writing. Recipient shall not market, lease, sell or otherwise transfer the FOC Items to third parties without Provider's prior written consent.

5. INSPECTION AND ACCEPTANCE

Recipient shall inspect the FOC Items upon receipt and shall notify Provider in writing of any non-conformity within days. Failure to provide timely notice shall constitute acceptance of the FOC Items.

6. TAXES, DUTIES AND COSTS

Except as expressly provided in this Agreement, Recipient shall be responsible for all taxes, duties, import fees, freight and handling charges associated with the FOC Items and their return, if any. If Provider is required to pay any such amounts, Recipient shall promptly reimburse Provider.

7. CONFIDENTIALITY

Each party shall maintain Confidential Information in strict confidence and shall not disclose such information to third parties except as necessary to perform obligations under this Agreement or as required by law. Confidentiality obligations shall continue for a period of years from the date of disclosure.

8. INDEMNIFICATION

Recipient shall indemnify, defend and hold harmless Provider and its officers, directors, employees and agents from and against any losses, liabilities, damages, costs and expenses (including reasonable attorneys' fees) arising out of Recipient's use, modification, resale or disposal of the FOC Items, except to the extent such claims result directly from Provider's gross negligence or willful misconduct.

9. LIMITATION OF LIABILITY

EXCEPT FOR LIABILITY ARISING FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES. PROVIDER'S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE REPLACEMENT VALUE OF THE SPECIFIC FOC ITEM DIRECTLY AT ISSUE.

10. TERM AND TERMINATION

10.1 This Agreement shall commence on the Effective Date and continue for a term of months unless earlier terminated in accordance with this Agreement.

10.2 Either party may terminate this Agreement upon written notice if the other party materially breaches any obligation and fails to cure within thirty (30) days after receipt of written notice specifying the breach.

11. RETURN OR DISPOSITION

Upon expiration or termination, Recipient shall, at Provider's option and expense, return the FOC Items to Provider or dispose of them in accordance with Provider's written instructions within days. Recipient shall certify in writing disposal where applicable.

12. NOTICES

All notices and other communications required or permitted under this Agreement shall be in writing and delivered to the addresses set forth below or to such other address as a party may designate in writing.

13. AMENDMENT; WAIVER; COUNTERPARTS

This Agreement may be amended only by a writing signed by authorized representatives of both parties. No failure or delay by either party in exercising any right shall operate as a waiver. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

14. GOVERNING LAW; ENTIRE AGREEMENT; SEVERABILITY

This Agreement shall be governed by and construed in accordance with the laws of the state specified by the parties: without regard to principles of conflicts of law. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall continue in full force and effect.

15. MISCELLANEOUS

The parties acknowledge that Provider is providing FOC Items for the limited purposes set forth herein and that no transfer of intellectual property rights is intended unless expressly set forth in a separate written agreement. Recipient shall not reverse engineer or otherwise seek to derive Provider's proprietary designs, specifications or software embedded in the FOC Items.

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