CompanyVirtium: Latin for Integrity and Excellence
Two decades ago, Phu Hoang and Chinh Nguyen started a journey on their dream to design and build the best industrial embedded solid state storage and memory and available. They called their company Virtium – Latin for “integrity and excellence”.
Along their journey, their dedication and ability to surround themselves with top industry talent has paid off. Today they share their dream with 100+ employees worldwide and enjoy year-over-year double-digit growth.
Virtium manufactures solid state storage and memory solutions for the world’s top industrial embedded OEM customers. We design, build and support our products in the USA, and provide a dedicated software team for custom storage solutions – all fortified by a network of global locations.
As a Samsung-preferred partner, we give unparalleled access to specialty memory modules. Our quality products, long industry presence and knowledgeable, tenured experts have earned us the lasting trust of a deep customer base, including: IBM, GE, Alcatel, Nokia, Juniper and many others.
Our world-class technology and support provide a superior customer experience that continuously results in better industrial embedded products.
Today, Virtium continues to focus tightly on being the leading solid state storage and memory solutions provider in the industrial embedded space. While competing companies can provide products in this market, Virtium maintains its competitive edge by understanding key design concerns and tailoring its products to enable embedded designers to make the best possible solutions for our interconnected world.
Virtium has in-depth knowledge of embedded system OEMs’ needs for product consistency, high reliability, long-term supply and product innovation. Offering a complete line of storage and memory products, Virtium is among the first to deliver leading edge solutions, while supporting some of the longest product life cycles in the industry.
Using a collaborative sales support and design process, Virtium becomes a true partner with its customers by meeting special requirements such as extended temperature or special testing that manufacturers not focused on the embedded market cannot provide.
Headquartered in Southern California, Virtium is a privately held, financially stable technology company with demonstrated profitability in every quarter for the past six years and was ranked by Inc. Magazine as one of the top 500 fastest growing private companies.
Virtium’s worldwide facilities are certified to quality standards (see Compliance section for more details). The company has operations throughout North America, Europe and Asia. Most important, the company’s infrastructure is optimized to provide customers the industry’s highest-value solutions that insulate OEMs from the product consistency and qualification challenges of using consumer grade products.
In a world filled with commodity suppliers, Virtium stands out by delivering a combination of high quality, embedded-focused products, technical support and the industry’s longest product life cycles.
Virtium is committed to conducting its business ethically, with respect for laws, communities and human rights. This is a commitment that applies to all officers and employees, subcontractors, suppliers, competitors and all governments foreign and domestic.
Virtium engages only in good faith and fair dealing; avoids conflicts of interest and encourages group-level problem solving when or if conflicts arise; does not misuse confidential or proprietary information and follows careful procedures for the protection of such information; forbids the use of company assets—financial, physical or otherwise—in a manner that inures to the personal benefit of any officer or employee; does not engage in bribery, solicitation, collusion or other improper negotiations with any agency, regulatory or governing body, or other branch of any domestic or foreign government, including any bureaucrat, agent, or individual a part thereof.
Human Rights and Labor Standards
It is never acceptable to engage or assist in behavior that is degrading to basic human rights, or any rights secured by law. Virtium does not condone, aid or participate in the use of illegal child labor; child abuse—physical, mental, sexual or otherwise; forced labor; harassment; or discrimination of any kind and in any form, and Virtium will not do business with any entity or individual engaging or complicit in the same. Not only are such practices against the law, but they circumvent Virtium’s commitment to conducting business ethically.
Virtium utilizes proactive procedures for insuring that each employee understands his or her rights and obligations attendant with employment; for monitoring changes in the labor law and standards; and for verifying that partners and suppliers meet and adhere to Virtium’s Partner Code of Conduct.
Customers, partners and suppliers can be confident that Virtium exceeds the international standards of conduct, including those in the U.N. Guiding Principles on Business and Human Rights, Universal Declaration of Human Rights and the International Labor Organization’s Declaration of Fundamental Principles and Rights at Work, and complies with applicable U.S. Federal and California State laws including but not limited to the California Occupational Safety and Health Act1, the Fair Labor Standards Act2, and the Family and Medical Leave Act3.
Both domestic and abroad, Virtium adheres to all laws, rules and regulations wherever its products are shipped or sold. As well, any supplier and any other entity with which Virtium conducts business, is required to be compliant with domestic and international laws, rules and regulations wherever products are sold or shipped.
Virtium’s worldwide facilities are certified to the latest ISO-9001 / AS9100 Rev C and ISO-14001 quality standards.
Virtium also meets ISO-26000 Guidelines:
RoHS, WEEE and REACH Compliance
Virtium manufactures halogen-free and lead-free memory module and solid state storage products in compliance with the European Union’s Restriction of Hazardous Substances in Electrical and Electronic Equipment (RoHS) directive, which bans the use of cadmium, mercury, hexavalent chromium, polybrominated biphenyl (PBB) and polybrominated diphenyl ether (PBDE) flame retardants. Virtium also meets all WEEE (Waste Electrical and Electronic Equipment) directive requirements as well as the new European REACH (Registration, Evaluation, Authorization and Restriction of Chemical substances) regulatory requirements.
Virtium’s company-wide initiatives enable the development of energy-efficient product solutions. and the innovative, power-optimized technologies (up to 60% reduction from previous designs) Virtium has developed not only help preserve the environment, they also provide our customers with measureable cost savings. We believe we have a responsibility to minimize our environmental impact – and that of our customers – to benefit current and future generations.
Virtium is committed to providing an environmentally responsible culture and product portfolio that exceeds industry legal and ethical requirements to protect the environment. Virtium’s management team demonstrates environmental leadership through consideration and commitment to the following:
- Conduct business in a responsible manner, designed to protect the environment and protect the health and safety of our employees, our customers, and the public.
- Assess, plan, construct, and operate facilities in compliance with all applicable legislation, regulations, and to all industrial codes of practice or programs to which the company subscribes.
- Set environmental objectives and targets to continually improve environmental performance and provide the management commitment and resources necessary to achieve the stated objectives.
- Encourage and support research and development to improve the ability to protect the environment and maintain public health and safety.
- Strive for the virtual elimination of any persistent toxic emissions from our operations.
- Manage and protect natural resources to ensure sustained yield in a manner consistent with all applicable regulations.
- Beyond, or in the absence or regulatory requirements, maintain and protect wildlife habitat and eco-systems.
- Promote new technologies aimed at conserving, recycling, and renewing the resources that we utilize.
- Work and consult with private and public sectors to develop regulations and policies based on sound, economically achievable technologies, and how they impact health and environment.
- Implement programs and procedures to minimize the consequences of emergency events by ensuring prompt and effective response.
- Report regularly to our management team on our environmental status and perform audits to ensure conformance with our policies and guidelines.
Conflict Minerals Sourcing Policy
“Conflict minerals” originating from Democratic Republic of the Congo (DRC) are sometimes mined and sold by armed groups to “finance conflict characterized by extreme levels of violence”. Some of these minerals and the metals created from them (such as tantalum, tin, tungsten and gold) can make their way into the supply chains of the products used around the
world, including those in the electronics industry.
Virtium is committed to sourcing components and materials from companies that share our values around human rights, ethics and environmental responsibility.
Virtium expects its suppliers to commit to the EICC Code of Conduct which includes a provision
related to the responsible sourcing of minerals. Pursuant to that Code of Conduct, suppliers
must have a policy to reasonably assure that the tantalum, tin, tungsten and gold in the
products they manufacture are DRC conflict free.
Virtium expects suppliers to establish their own due diligence program to ensure conflict-free
supply chains. Suppliers must ensure that all parts used to manufacture products supplied to
Virtium originated from certified conflict-free smelters validated as compliant to the EICC
Conflict Free Smelter (CFS) protocol, using the CFS Compliant Smelter List.
Intellectual property is often a corporation’s most valuable asset. Virtium respects innovation and acknowledges property rights wherever granted.
Virtium conducts periodic intellectual property audits to both protect its own proprietary technology and interests, but also to ensure that suppliers with which Virtium conducts business do not unlawfully use proprietary technology.
Virtium’s leadership position in the embedded memory market is supported by the long list of industry-first products and is enhanced by our enduring commitment to be last out with legacy products.
By opening advanced design centers in the US and Asia, Virtium has taken a strong step in bringing new technology to the embedded SSD storage market as well. Our teams of SSD firmware engineers is developing feature sets specifically targeted at embedded systems and our test engineering team is characterizing our SSD and memory products over varying workloads and temperatures.
Virtium understands that OEMs require multiple sources for their SSD and memory products, so our engineering management team is actively involved in driving standards through the CompactFlash Association, JEDEC, PICMG and the SFF-SIG. Virtium has been instrumental in ground-breaking product development that have driven such standards as Mini DIMM, SODIMM, VLP and ULP memory and mSATA, Slim SATA and CFast SSD storage technologies. Our design engineers can then enhance these standards with conformal coating, component stacking, enhanced production test and qualification and Virtium’s technical support team that is there for you from qualification through end of life.
Qualification and Design-in Support
We believe in helping our customers through the design process. Virtium offers an assigned team of dedicated engineers, FAEs and program managers that work collaboratively to provide real-time review of industry trends and “best choice” designs for specific projects. Our team adds value and streamlines the design process through:
- Comprehensive pre-design simulation, thermal analysis, system design timing analysis with the use of Cadence and SiSoft tool sets
- Fast response to special feature and custom design requests
- Custom testing capabilities that meet unique requirements
- Convergence design between memory and SSD storage
- Our assurance to be “First In” and “Last Out” with solutions for the duration of a customer’s project
- The ability to help focus on future designs by offering excellent technical support to customer’s design and business development teams
- Superior “Quick turn” response to design layout and prototype support through provision of: Concept specifications, mechanical drawings, product specs. and evaluation units.
In addition, Virtium maintains strong partnerships with leading chip set manufacturers that allow us early access to validate and design with next-generation form factors. This enables us to deliver design options based on multiple suppliers for increased design flexibility that also protects customers from supply chain shortages. We understand our customers’ cost constraints, and source whenever possible the most reasonably-priced, but highest-quality components when creating our SSD storage and memory solutions.
Advanced Testing Capabilities
Virtium provides in-depth test capacity and a broad array of standard and enhanced test capabilities. Our extensive testing experience allows us to prevent manufacturing and component defects to ensure the highest level of product quality. In addition to our extensive standard processes outlined below, Virtium has the capability to customize test flows to meet specific application requirements.
Test Flow Processes:
- Functional Test: 100% of our products are functionally tested after manufacturing.
- System-level Test: 100% of our SSDs and memory modules are tested on actual customers’ motherboards or on customer-approved motherboards with identical chipsets and setup, and are performed using diagnostic programs at true speeds. System testing is critical to catch defects such as ECC errors that cannot be discovered using standard test systems.
- Burn-in Test
Depending on application or customer requirements, products during the system-level test noted above are also tested under Temptronic Thermalstream Units for temperatures as low as -45 degrees C, or are tested using an under-temperature oven for a duration of up to 12 hours at 85C ambient.
Virtium’s complete suite of testing also includes:
- Temperature up-screening – helps lower customer costs and shortens lead times by allowing Virtium to replace limited supply or higher cost industrial components with more widely available standard components
- Four corner test and other qualification level tests including: solder quality, shock and vibration, thermal cycling and HALT/HASS
- Parametric specification
- Test During Burn-In (TDBI) – enables Virtium to identify infant mortality by capturing transitory anomalies while operating at elevated temperatures
Virtium’s engineering and quality teams have analyzed the failure modes of DRAM modules and determined that DRAM components with sub-optimal reliability used in memory modules tend to fail during early stages of operation. If a semiconductor fails, it is usually in it first three months of use. As newer DRAMs advance into smaller process geometries, there can be a greater risk for chips that contain “weak” bits (a microscopic defect in an individual cell). This is not enough to cause a DRAM failure outright, but may exhibit a single bit error within weeks after initial field operation begins.
To further eliminate any potential early failures due to “marginal” DRAM devices and to improve overall reliability of memory product before field operation, Virtium can implement TDB. Although most DRAM chips undergo a static burn-in at the chip level, TDBI offers a very unique and far more comprehensive testing capability because it provides a 24 hour burn-in test at the module level while dynamically running and checking test patterns as the module is performing under stress conditions. Studies done by various memory manufacturers suggest that using TDBI chambers can reduce early failures up to 90%.
Terms and Conditions
VIRTIUM LLC, TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale (collectively referred to as this “Agreement”) govern all sales of goods by VIRTIUM LLC (herein referred to as VIRTIUM) to BUYER. Any offer to sell Products to BUYER, whether or not in response to a purchase order from BUYER, is expressly conditioned on BUYER’S acceptance of this Agreement and BUYER’S placing an order, accepting an offer for sale or taking of delivery of any part of a shipment of Products is evidence of such acceptance. If this Agreement is construed to be an offer, this offer expressly limits acceptance by VIRTIUM to the terms of this offer and notice of objection to any different or additional terms is hereby given. If this Agreement is construed to be an acceptance of an offer, this acceptance is expressly conditioned upon VIRTIUM’S assent to any different or additional terms contained in this Agreement. If VIRTIUM already has an executed purchase agreement currently in effect with BUYER or enters into the same in the future, then the terms of such signed purchase agreement (as the same may be amended from time to time) shall prevail in the event of any conflict between this Agreement and such purchase agreement. If VIRTIUM does not already have or enter into an executed purchase agreement with BUYER, then this Agreement shall constitute the complete agreement with respect to the products. Without limitation of the foregoing, by purchasing any products on VIRTIUM’S website or through other electronic means offered by VIRTIUM (collectively the “Site”), BUYER accepts, without limitation or qualification, this Agreement governing such purchase. If BUYER does not agree and accept, without limitation or qualification, this Agreement, BUYER may not purchase from the Site.
1. AGREEMENT TO PURCHASE AND SELL. A quotation by VIRTIUM is an estimate only and is subject to modification by either VIRTIUM or BUYER. The transmission of a written confirmation (“Order Confirmation”) by VIRTIUM signifies VIRTIUM’S acceptance to sell only the Products that are the subject of the Order Confirmation and only pursuant to specified conditions inclusive of description, unit quantities, applicable prices, and delivery dates, and thereafter each party shall be deemed to have agreed to the terms and conditions herein.
2. PRICE AND PAYMENTS.
(a) Prices are reflected in U.S. Dollars and are exclusive of any and all federal, state, and local sales, use, excise, and similar taxes and charges which shall be the responsibility of BUYER in addition to the purchase of Products. Prices are firm for the quantities specified in an applicable Order Confirmation. Notwithstanding the foregoing, VIRTIUM reserves the right to revise prices to reflect any or all of the following: (i) any variation in market price of components, parts, raw materials; or (ii) any changes to the specifications or volume previously agreed upon, including changes that increase the cost of testing. VIRTIUM shall provide reasonable prior notice before invoking any of these rights with respect to revised prices.
(b) Payment is due to VIRTIUM 30 days after date of invoice, unless such payment terms are modified and signed by both parties in a separate writing.
3. DELIVERY. VIRTIUM shall schedule delivery and undertake all reasonable efforts to meet BUYER’S requested delivery date. However, VIRTIUM reserves the right to adjust the delivery dates for the entire or parts of any order. If VIRTIUM cannot observe an agreed time for the delivery of the Products, or if delay by VIRTIUM appears probable, VIRTIUM shall give notice to BUYER listing the time when VIRTIUM expects to deliver. A reasonable delay by VIRTIUM shall not be grounds for BUYER to terminate the order as to the delayed Products, unless otherwise agreed to by VIRTIUM and BUYER. Unless otherwise expressly agreed upon in a separate writing signed by both parties, all product shipments shall be made F.O.B. ORIGIN FREIGHT COLLECT, title to and risk of loss or damage to Products shall pass to BUYER upon VIRTIUM’S tender of Products to carrier. Unless otherwise agreed upon in a separate writing signed by both parties, the Products will be shipped in standard commercial packaging and by a method determined by VIRTIUM in its sole discretion.
4. INSPECTION AND CURE. BUYER shall inform VIRTIUM of the lack of conformity of any Products with the Order Confirmation, specifying the nature of the lack of conformity within a reasonable time after BUYER discovers or should have discovered the non-conformity, but not more than 30 days after BUYER receives shipment of the Product. VIRTIUM shall have the right to cure any non-conformity upon notice from BUYER notwithstanding any expiration of the original time for performance.
5. QUALIFICATION SAMPLES. Any sample(s) provided to BUYER is provided on a rent-free, loan basis for periods of 30, 60 or 90 days, in each case as determined by VIRTIUM in its sole discretion. Title to any such sample(s) shall remain with VIRTIUM and BUYER shall be responsible for any loss or damage to the sample(s).
6. CHANGES. BUYER has the option to request, in writing, changes to any order, including changes to the specifications, up to 60 days prior to the previously agreed upon delivery date for the order. BUYER may reschedule a standard, non-custom order only once and only up to 30 days prior to the previously agreed upon delivery date, provided that, in any event the rescheduled delivery date must be within the same fiscal quarter as when the notice is received by VIRTIUM. VIRTIUM shall notify BUYER, in writing, as to the impact of each such change to price, delivery schedule and any other terms within five (5) business days after receipt of the notice from BUYER. Any such requested changes shall become effective only upon the signing by both parties of a separate writing that incorporates the agreed upon changes. If any such change causes either an increase or decrease in VIRTIUM’S costs or time required for performance, the prices and/or delivery schedules shall be adjusted in a manner that adequately compensates VIRTIUM for any such changes and BUYER shall bear any increased costs. In no event may changes to either specifications or delivery of Products be made less than 30 days before the originally scheduled delivery date for the Products.
7. CANCELLATION. BUYER shall have the right to cancel any standard, non-custom order without cause, provided BUYER provides VIRTIUM written notice of cancellation 60 or more days prior to the scheduled delivery date for the Products. All orders for custom products are non-cancelable by BUYER for any reason.
8. LIMITED WARRANTY. VIRTIUM warrants, for the applicable warranty period set forth in Section 9 of this Agreement (the “Warranty Period”), that the Products, when used and installed in conformity with VIRTIUM’S Published Specifications, will perform substantially in accordance with VIRTIUM’S Published Specifications. This limited warranty is non-transferrable. VIRTIUM does not guarantee that the Product will operate in an error-free or uninterrupted manner.
9. WARRANTY PERIODS.
|Memory Modules||Five (5) years|
|StorFly® PE Class SATA SSDs based on SLC NAND Flash (25PE, 18PE, 200PE, 300PE, CFast PE, M.2 PE)||(i) Five (5) years; or (ii) date when TBW limit reached (e.g. when SMART attribute A1/F9 or A8/F8 reaches 0%), whichever occurs first|
|StorFly® CE Class SATA SSDs based on MLC NAND Flash (25CE, 18CE, 200CE, 300CE, CFast CE, M.2 CE)||(i) Three (3) years; or (ii) date when TBW limit reached (e.g. when SMART attribute A1/F9 or A8/F8 reaches 0%), whichever occurs first|
|TuffDrive® storage modules based on SLC NAND flash (CF, SD, eUSB, eUSB Key)||Five (5) years|
|TuffDrive® storage modules based on MLC NAND flash (CF, SD, eUSB, eUSB Key)||One (1) year|
10. WARRANTY SERVICE INSTRUCTIONS. For Original Purchasers to request warranty service under this limited warranty, the Original Purchaser must first contact its VIRTIUM representative to obtain a RMA prior to and as a condition of return of any Product. For End Users to request warranty service under this limited warranty, the End User must contact the manufacturer from which the system incorporating the Product was purchased prior to and as a condition of the return of any Product.
11. REMEDIES. In the event of a breach of the limited warranty set forth in Section 8 of this Agreement, VIRTIUM, at its discretion, may (a) repair the non-conforming Product; (b) replace the non-conforming Product with a similar product; or (c) Credit BUYER for the value of the non-conforming Product determined by VIRTIUM at the time that the claim is made. The remedies set forth in this section are the sole and exclusive remedies available to BUYER and are not cumulative. VIRTIUM retains the right to replace a non-conforming Product with a reconditioned Product. Any repaired or replaced Product will be shipped at VIRTIUM’S expense within a reasonable time following receipt of the non-conforming Product by VIRTIUM. Upon receipt of the non-conforming Product by VIRTIUM, title in the Product shall vest in VIRTIUM and will no longer remain the property of BUYER. The replacement Product continues to be subject to the limited warranty set forth in Section 8 of this Agreement and is subject to the same terms and limitations as the original Product for a period of 90 days or the remainder of the original Warranty Period, whichever is longer.
12. PRODUCT RISKS.
(a) Solid state disks and memory products are subject to risks inherent in power failures and degradation over time which can result in bit and meta data corruption or loss and total device failure (“Data Loss”). Therefore, the user of the Products assumes all responsibility and risk for back-up, damage, loss, storage and use of all data on the Products and VIRTIUM and, where applicable, VIRTIUM’S third party licensors specifically disclaim any responsibility for any Data Loss associated with the Products.
(b) The Products are not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, life support systems or any other application where product failure could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Accordingly VIRTIUM and, where applicable, VIRTIUM’S third party licensors specifically disclaim any express or implied warranty of fitness for High Risk Activities.
(c) BUYER will indemnify, defend and hold VIRTIUM harmless from any loss, cost or damage resulting from Data Loss and High Risk Activities associated with the Products, including without limitation attorneys’ fees and costs relating to any lawsuit or threatened lawsuit, arising out of such use, sale or export.
13. DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH IN SECTION 8, VIRTIUM MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS AND HEREBY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
14. LIMITATION OF LIABILITY. BUYER HEREBY EXPRESSLY AGREES THAT NEITHER VIRTIUM NOR ITS SUPPLIERS WILL IN ANY EVENT UNDER ANY CIRCUMSTANCES BE LIABLE UNDER ANY THEORY OF RECOVERY, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), UNDER WARRANTY OR OTHERWISE IN LAW OR EQUITY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, FUTURE OR PUNITIVE DAMAGES WHATSOEVER; DAMAGE TO OR LOSS OF DATA OF ANY KIND; LOSS OF PROFITS OR REVENUE; LOSS OF USE OF BUYER’S DATA, PROPERTY, PLANT, EQUIPMENT OR SYSTEM; INCREASED COSTS OF ANY KIND; OR CLAIMS OF CUSTOMERS OF BUYER. BUYER HEREBY EXPRESSLY AGREES THAT THE REMEDIES PROVIDED HEREIN ARE EXCLUSIVE AND THAT UNDER NO CIRCUMSTANCE SHALL THE TOTAL AGGREGATE LIABILITY OF VIRTIUM AND ITS SUPPLIERS UNDER ANY THEORY OF RECOVERY, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), UNDER WARRANTY OR OTHERWISE IN LAW OR EQUITY, EXCEED THE PURCHASE PRICE BUYER ACTUALLY PAID TO VIRTIUM FOR PRODUCTS UNDER THIS AGREEMENT.
15. INDEMNIFICATION. BUYER shall indemnify and hold harmless VIRTIUM and its affiliates and their respective officers, directors and employees for all costs and expenses arising out of: (a) any breach of any agreement made by BUYER in this Agreement; (b) any negligence or willful misconduct of BUYER in connection with its performance under this Agreement; and (c) any personal injury (including death) or any damage to or loss or destruction of data or property attributable to BUYER’S handling, storage, transportation, placement, or use of the Products or otherwise arising from BUYER’S performance under this Agreement.
16. FORCE MAJEURE. VIRTIUM shall be excused from fulfilling its obligations contained herein or from delays in delivery and shall not be liable for failure to fulfill its obligations contained herein or for delays in delivery due to causes beyond its reasonable control, including but not limited to, acts of God; acts or omissions of the other party; acts or omissions of civil or military authority; government priorities; shortages in materials, energy, labor or equipment; fire; strikes; floods; earthquakes; epidemics; quarantine restrictions; riots; war; labor difficulties; delay in delivery from VIRTIUM’S suppliers; commercial impracticability and delays in transportation. The time for performance of any such obligation shall be extended for the time period lost by reason of the delay; provided that if such delay exceeds 90 days BUYER may cancel the applicable order for Products upon written notice to VIRTIUM.
17. CONFIDENTIALITY. If either party hereto receives from the other party written information which is marked “Confidential” and or “Proprietary,” or other confidential or proprietary information transmitted orally or visually, the receiving party agrees not to use such information except in the performance hereof, nor disclose such information to any third party, excluding VIRTIUM’S employees, agents, subcontractors and OEMs, without mutual consent, and to treat such information in the same manner as it treats its own confidential information, but no less than reasonable care under the circumstances. VIRTIUM has a proprietary interest in the quotations it issues, and accordingly, quotations will not be disclosed in whole or in part to third parties without the prior written consent of VIRTIUM. The obligation to keep information confidential shall not apply to any such information that (a) is received from a third party without violation of a duty of confidentiality; (b) is or becomes generally available in publicly available sources; (c) at the time of entering into this Agreement, is already in the rightful possession of the party receiving the confidential information without an obligation of confidentiality; or (d) is required to be disclosed by operation of law, but only to the extent and for purposes of such required disclosure. Except as otherwise provided herein, or as otherwise mutually agreed by the parties in a separate writing, the obligation not to disclose or use confidential information shall survive for a period of three (3) years after the termination hereof.
18. LEGAL. In the purchase and use of the Products, BUYER shall comply with all applicable laws, rules and regulations, including without limitation all applicable export laws and regulations. BUYER shall not be considered an agent or representative of VIRTIUM and BUYER shall not be granted any rights in VIRTIUM’S trademarks or other intellectual property rights.
19. ADVICE AND TECHNICAL DOCUMENTS. If technical advice is offered or given in connection with the use of any Product it will be as an accommodation to BUYER and without charge and VIRTIUM shall have no responsibilities or liabilities whatsoever for the content or use of such advice. All drawings and technical documents delivered by either of the parties to the other party remain the property of the delivering party, and the receiving party may not improperly use, reproduce, or otherwise disclose such materials to third parties.
20. ASSIGNMENT. No rights, duties, agreements or obligations hereunder may be assigned or transferred by BUYER without the prior written consent of VIRTIUM. The obligations, rights, terms and conditions hereof shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.
21. WAIVER. The waiver of any breach of any term, condition or covenant hereof or default under any provision hereof shall not be deemed to constitute a waiver of any other term, condition, or covenant contained herein or of any subsequent breach of default of any kind or nature.
22. SEVERABILITY. This Agreement is intended for use by VIRTIUM wherever its products may be sold, and therefore, if any of the provisions of this Agreement contravene or are invalid under the laws of a particular state, country or jurisdiction where used, the contravention or invalidity shall not invalidate the whole Agreement, but it shall be construed as if not containing that particular provision or provisions held to be invalid in the particular state, country or jurisdiction, and the rights and obligations of the parties shall be construed and enforced accordingly.
23. ELECTRONIC COMMUNICATIONS. The parties agree that electronic communication is a practicable method of communication and where written communication is required by this Agreement, electronic means will be sufficient including with respect to orders, acknowledgements, and order confirmations or otherwise, unless either party expressly objects to the use of electronic communication.
24. APPLICABLE AGREEMENT. The most current version of this Agreement can be found at http://www.virtium.com/company/terms-conditions/ which contains the complete expression and entire understanding of the parties with respect to the purchase of Products from VIRTIUM, superseding all previous agreements covering such purchases. The parties agree that such Agreement shall control, notwithstanding conflicting or additional terms on any purchase order, sales acknowledgement, confirmation or other document issued by either party. No terms of such Agreement may be amended, changed or modified except by a separate written document provided or signed by VIRTIUM modifying such specific terms.
25. GOVERNING LAW AND FORUM SELECTION. In the event that parties cannot resolve a dispute, the parties acknowledge and agree that the state courts of Orange County, California and the federal courts located in the Central District of the State of California shall have exclusive jurisdiction and venue to adjudicate any and all disputes arising out of or in connection with any part of this Agreement. Further, the parties consent to the exercise of personal jurisdiction over them by such courts, and each party waives any objection to venue, personal jurisdiction, forum non conveniens, and any similar or related doctrine. The parties agree that the substantive laws of the State of California, without regard to its provisions concerning conflicts or choice of law, shall apply to all questions, disputes or actions arising out of or in connection with any part of this Agreement. Except as expressly set forth in this Agreement, each party shall bear the cost of its own attorneys with respect to any dispute arising out of or in connection with this Agreement.
26. DEFINITIONS. In addition to the other defined terms set forth in this Agreement, the following terms will have the meanings set forth in this section as they are used and applied within this Agreement:
(a) “BUYER” refers to an individual or entity, inclusive of all officers, employees, subcontractors, agents and other representatives, which purchases one or more products directly from VIRTIUM (an “Original Purchaser”), or which purchases a system or device that incorporates one or more of VIRTIUM’S products (an “End User”).
(b) “Credit” means credit to purchase another VIRTIUM Product, but does not mean a full cash refund.
(c) “Product” refers only to the products sold by VIRTIUM at the time this Agreement is entered into.
(d) “Published Specifications” means the current product specification information VIRTIUM makes publicly available through its website, as such information may be amended from time to time by VIRTIUM in its sole discretion.
(e) “Return Merchandise Authorization Number” also referred to as “RMA”, means a number generated by VIRTIUM at the time a warranty service claim is made.
(f) “TBW” and “Terabyte Written Limit” is consistent with the industry-wide measurement (JEDEC standard definition) and means generally, the possible terabytes written over the life of the drive. The TBW for each Product is set forth in the applicable Published Specifications.
(g) “VIRTIUM” refers to Virtium LLC, located at 30052 Tomas, Rancho Santa Margarita, California 92688.
(h) “Warranty Period” means (a) in the case of an Original Purchaser, the period beginning on the date the Product was purchased in its original and sealed packaging and continuing for the term of years listed in the schedule in Section 9; or (b) in the case of an End User, the period beginning on the date of purchase of an applicable device or system under the terms of this Agreement and continuing for the term of years listed in Section 9.