APPLICABILITY. Unless otherwise agreed to by Serious Integrated, Inc. (“SERIOUS”) in writing, these Terms & Conditions of Sale apply to any sale, or offer for sale, of Products, Software and Services between you (“You” or “Customer”) and SERIOUS, and govern the performance of Services and your use of Software in conjunction with any applicable order acknowledgment (“Acknowledgment”) or applicable invoice, which are incorporated into these Terms & Conditions of Sale as if fully set forth herein (collectively the “Agreement”). “Order” means Customer’s written, electronic, or verbal purchase order for SERIOUS hardware products (“Goods”), license of SERIOUS software products (“Software”) and any fee-bases services (“Services”) as described below. By placing your Order, You agree to be bound by the terms of the Agreement. SERIOUS’ acceptance of the Order is conditioned upon Customer’s assent to the terms of the Agreement. For the avoidance of doubt, Customer’s receipt of Goods, Software or Services constitutes Customer’s assent. Unless Customer and SERIOUS have a current, mutually signed agreement for the purchase of products from SERIOUS, only the terms and conditions of this Agreement apply to the Order and all other terms and conditions proposed by Customer at any time, whether as part of an Order or otherwise, are expressly rejected and not part of the Agreement. SERIOUS’ delay or failure to object to any terms or conditions received from Customer, including the original Order, will not be a waiver of any term of this Agreement. Under no circumstances will the Order or Agreement be construed or implied to create an obligation: (a) on Customer to issue additional orders or purchase additional goods or services or (b) on SERIOUS to accept any additional purchase orders.
PRICE. The prices of Goods and Services are as stated in the Acknowledgement or invoice and, unless otherwise stated, are subject to adjustment for currency fluctuations (where the price of Goods of Services is stated in a currency other than US Dollars and there is a fluctuation of at least +/- 5% in the exchange rate between that currency and the US Dollar averaged over a 30-day period from the date of the Acknowledgment until the date payment is due in accordance with Section 3), and any changed quantity of Goods (Section 7), and Customer shall pay the adjusted price. Taxes, duties, shipping & handling and any government assessments are Customer’s responsibility and will be added to the price of the Goods or Services in the invoice. Customer may not offset any amounts owed to it by SERIOUS against any amount Customer owes to SERIOUS under this Agreement.
PAYMENT. All shipments are subject to credit approval by SERIOUS. Full payment is due within thirty (30) calendar days after receipt of the shipment, whether total or partial, unless credit terms are extended to Customer by an authorized representative of SERIOUS or credit card or cash in advance, C.O.D., or other terms are indicated on an invoice or in the ordering process. SERIOUS reserves the right to: (a) charge interest up to the maximum amount permitted by law, on any overdue amounts; (b) withdraw credit; (c) impose other payment terms or late charges; (d) cease further shipments; or (e) impose any combination of these actions if Customer fails to pay any amount to SERIOUS in accordance with Customer’s obligations under the Agreement or otherwise. Payment is due regardless of performance or outcome of testing, but payment will not affect Customer’s right to perform testing in accordance with Section 6.
TITLE, RISK, AND DELIVERY. Title to Goods passes to Customer upon shipment from SERIOUS’ facility. Unless otherwise specified on the Acknowledgment, delivery is EXW SERIOUS’ shipping dock (Incoterms 2010, as amended). Customer bears the risk of loss or damage to the Goods once they are provided to the carrier. All delivery times or shipment dates are approximate and may be changed by SERIOUS. SERIOUS will use commercially reasonable efforts to notify Customer of such change. Time for delivery of Goods is not of the essence and SERIOUS will not be liable for any loss or damage Customer may suffer due to changed or missed delivery times or shipment dates.
EXPORT CONTROL. Customer will comply with all applicable export control laws and regulations and will indemnify SERIOUS for all damages, including reasonable attorneys fees, resulting from Customer’s failure to do so.
INSPECTION AND ACCEPTANCE. Goods are deemed to be accepted by Customer unless Customer provides SERIOUS with written notice to the contrary, specifying the non-conformance within 21 days of Customer’s receipt of Goods. SERIOUS reserves the right to examine on Customer’s premises any Goods Customer claims are nonconforming. SERIOUS may impose charges to reimburse it for its costs if it finds Customer’s claim is unsupported or for rescreening conforming Goods. No Goods will be returnable to SERIOUS unless Customer has first received and complied with SERIOUS’ return material authorization (“RMA”) process and instructions, which will not be unreasonably withheld.
QUANTITIES. SERIOUS will use commercially reasonable efforts to comply with delivery of the quantities specified in the Order, but SERIOUS will be deemed to be in compliance if the actual quantities shipped are within +/- 10% of the specified quantities. The extended price in all cases will be the unit price multiplied by the quantity actually delivered (before taxes, duties, and other governmental assessments).
MODIFICATION AND SUBSTITUTION. SERIOUS reserves the right to modify its process, materials, or performance specifications for Goods and to substitute goods substantially equivalent to those ordered or manufactured to the modified specifications. Customer agrees it is its responsibility to test all shipments of Goods to determine suitability for its needs.
LIMITED PRODUCT AND SERVICES WARRANTY.
Goods. Subject to the terms set forth in Section 13, SERIOUS warrants that Goods of SERIOUS’ manufacture, excluding customized software/firmware, will substantially conform to the functional specifications set forth in the applicable user manual or product specification for a period of one (1) year from the date of sale to Customer. Goods found not conforming to this limited warranty and returned to SERIOUS within the applicable warranty period will be eligible for replacement, repair, or REFUND as set forth below. To obtain a remedy for failing to meet the foregoing warranty, the following conditions must be met: (1) Customer notifies SERIOUS in writing promptly on discovery of the deficiency with reasonable detail within the warranty period; (2) Customer returns Goods to SERIOUS promptly on receipt of a Return Material Authorization (“RMA”), at Customer’s risk and expense; and (3) SERIOUS confirms the claimed deficiency is present and finds it is not attributable to any Exclusions (as set forth in Section 9.5 below). If all of these conditions are met, SERIOUS, at its sole option, will either replace or repair the deficient Goods or credit Customer’s account for the amount Customer paid SERIOUS for them and reimburse Customer’s reasonable shipping costs for return of the Goods. This constitutes Customer’s sole and exclusive remedy for breach of the foregoing warranties.
Third Party Goods. Goods supplied by third parties and sold through SERIOUS are covered under the supplier’s warranty provided with those Goods. Customer should contact the third party supplier directly for all support after the sale, including technical support and warranty issues. If Customer does not receive information with the Goods to enable it to contact the third party provider, Customer may contact SERIOUS and SERIOUS will provide Customer with the third party supplier’s contact information.
Software. SERIOUS Software products (“Software”) are licensed pursuant to the terms of the applicable SERIOUS Software license agreement. Unless otherwise stated in a separate, signed agreement between Customer and SERIOUS, any Software is provided “AS IS” and without any warranty of any kind and SERIOUS and its suppliers or licensors do not warrant the performance or results Customer may obtain by using such Software. Customer is responsible for determining the suitability of Software for Customer’s purposes.
Services. Any fee-based services provided by SERIOUS and paid for by Customer (“Services”), are provided “AS IS” without any warranty of any kind, except as may be otherwise provided herein or in an applicable Services agreement executed separately by Customer and SERIOUS.
Exclusions The foregoing warranties do not apply: (1) in cases where Goods/Software have suffered misuse, abuse, neglect, alteration, accident, mishandling, repair, operation outside the associated environmental specifications, improper installation, improper testing, or the like after shipment; (2) where Goods/Software are designated as experimental or to be used for evaluation purposes; (3) to Goods not manufactured by SERIOUS; (4) to Goods/Software for which claims are being made by anyone other than Customer; (5) to Goods used, sold, or distributed by Customer despite failing Customer’s tests; (6) to any product or equipment within which Goods/Software are contained or integrated; (7) to any product obtained from an unauthorized third party; (8) to any samples, which are provided AS IS and WITH ALL FAULTS.
Exclusive Warranties. THE FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE (TO THE FULLEST EXTENT PERMITTED BY LAW) ANY OTHER WARRANTY, CONDITION, STIPULATION, STATEMENT, TERM, OR UNDERTAKING OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO CONDITION, QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR PARTICULAR PURPOSE. UPON THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD, ALL WARRANTY LIABILITY TERMINATES. CUSTOMER HAS RELIED ON ITS SKILL, JUDGMENT, AND NEEDS TO SELECT GOODS. THIS SECTION 9 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THE FOREGOING WARRANTIES. SERIOUS WILL HAVE A REASONABLE TIME TO PROVIDE EACH REMEDY. THESE WARRANTIES CANNOT BE EXPANDED EXCEPT IN A WRITING EXECUTED BY AN AUTHORIZED REPRESENTATIVE OF SERIOUS. VERBAL REPRESENTATIONS AND TECHNICAL ASSISTANCE WILL NOT EXPAND THESE WARRANTIES. The above limitations or exclusions may not apply to you. This limited warranty gives you specific legal rights. You may also have other rights that may vary from jurisdiction to jurisdiction.
PATENT AND COPYRIGHT INFRINGEMENT.
Defense and Indemnity. Subject to the exclusions and conditions below and the terms set forth in Section 13, SERIOUS will at its sole option, defend or settle any suit or proceeding brought against Customer to the extent it is based upon a claim that Goods manufactured and supplied by SERIOUS to Customer directly infringe a valid United States patent or copyright (“Claim”). Notwithstanding the foregoing, SERIOUS will have no liability or obligation under this Section 10 regardless of the theory of the Claim where the Claim arises out of or is connected with: (a) SERIOUS’ compliance with Customer’s designs or specifications; (b) Customer’s use of the Goods in combination with any other product or process, including integrating Goods into a system, (c) modification of the Goods after SERIOUS delivered them, or (d) use of the Goods in a manner for which they were not designed. If a suit or claim is brought against SERIOUS based upon an allegation that Goods it manufactured and supplied to Customer violate a patent, copyright, trademark, or other intellectual property right involving any of the circumstances described in (a) – (d) in this paragraph, Customer will defend that suit or claim and indemnify SERIOUS from all damages and costs awarded against SERIOUS, including reasonable attorneys’ fees and costs.
Conditions. As conditions to receiving any benefit under this Section 10, Customer must: (a) provide prompt written notice, including copies of all materials, communications, notices, or other actions relating to the alleged infringement, to SERIOUS; (b) give SERIOUS all information, assistance (for which SERIOUS will bear the reasonable expense), and authority SERIOUS deems necessary to defend or settle the Claim; (c) not make any admission, compromise, representation with respect to the merits or defense of the Claim, or accept or settle any Claim; and (d) give SERIOUS exclusive control of the defense of the Claim, including the right to select counsel and to settle the Claim without Customer’s consent. If these conditions are faithfully complied with, and subject to the limitation of liability (Section 13) in the Agreement, SERIOUS will bear the cost of the defense and will pay all final damages and costs awarded against Customer. In no event will SERIOUS be liable for Customer’s attorneys’ fees or costs.
Remedies. If Customer’s use of the Goods, which are the subject of a Claim is enjoined, SERIOUS will, in its sole discretion: (a) procure for Customer the right to continue using the Goods; (b) replace the Goods with non-infringing Goods; (c) modify the Goods to make them non-infringing; or (d) if none of those options is reasonably available to SERIOUS, refund Customer’s purchase price less depreciation, in accordance with SERIOUS’ internal accounting policies, upon Customer’s return of the Goods to SERIOUS. THIS SECTION 10 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SERIOUS’S SOLE AND EXCLUSIVE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT.
FORCE MAJEURE. SERIOUS will not be liable for any delay in performance or failure to perform an obligation under the Agreement attributable to an unforeseen circumstance or a cause beyond SERIOUS’ reasonable control (“Force Majeure Event”). During the Force Majeure Event, SERIOUS may suspend or cancel the delivery of Goods or Services.
Customer Default. If Customer defaults in its performance of any material obligation (including but not limited to payment), SERIOUS may cancel or suspend further deliveries or terminate the Order and Agreement without affecting any contractual, legal, or equitable rights or remedies that SERIOUS may have. Without limiting its remedies, SERIOUS will be entitled to cancellation charges for finished Goods, and work in process for Goods or Services, which it commenced to reasonably meet the delivery schedule, as well as to quantity price adjustments reflecting volume pricing quoted based on quantities ordered but cancelled due to Customer’s default, and all costs, direct and indirect, incurred or committed, plus prorated anticipated profits. Continued shipment of Goods after Customer’s default will not constitute a waiver of SERIOUS’ rights or remedies for the default.
Customer Cancellation. Customer may not cancel the Order, Agreement, or any part of them without SERIOUS’ prior written consent, which will be granted if the terms of this Section 12.2 are met. Customer must pay SERIOUS the total liability owed under subparagraph (1) or (2) below, whichever is applicable, before the cancellation will be effective. Failure to comply will be a default.
(1) Goods modified specifically for the Customer shall be considered custom product and
(a) If Goods cannot readily be modified for diversion to another customer or returned to the standard product configuration, then Customer is liable for 100% of the purchase price of all finished Goods inventory allocated to the Order required to meet and not unreasonably exceed the delivery schedule and for a pro rata portion of the purchase price of all work in process (according to state of completion at the time of cancellation), which cannot readily be diverted to other orders plus the cost of any parts and materials committed and required for completion of the Order, but in no event will the price Customer is obligated to pay exceed the purchase price of the Goods had they been completed and delivered per the scheduled delivery date; or
(b) If Goods can be modified for diversion to another customer or returned to the standard product configuration with some potential loss of parts or their value, then Customer will be liable for 100% of the total loss and loss in value, plus SERIOUS’ cost for modifying the product, plus a 25% restocking charge; or
(2) If the Goods are standard product, the Customer shall pay for any cancellation of the Goods as follows: (i) one hundred percent (100%) of the purchase price of the Goods for any cancellation within ninety (90) days of the scheduled delivery date.
LIMITATION OF LIABILITY.
In General. IN NO EVENT, WILL SERIOUS OR ITS SUPPLIERS OR LICENSORS BE LIABLE, WHETHER IN CONTRACT, WARRANTY, REPRESENTATION, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, INDEMNITY, CONTRIBUTION OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL LOSS, DAMAGE, COST OR EXPENSE OF ANY KIND WHATSOEVER, HOWSOEVER CAUSED, OR ANY LOSS OF PRODUCTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF CAPITAL, LOSS OF SOFTWARE, LOSS OF DATA, LOSS OF PROFIT, LOSS OF REVENUES, CONTRACTS, BUSINESS, COST OF REWORK, LOSS OF GOODWILL OR ANTICIPATED SAVINGS, OR WASTED MANAGEMENT TIME, EVEN IF SERIOUS HAS BEEN ADVISED OF THEIR POSSIBILITY OR THEY ARE FORESEEABLE. SERIOUS’ TOTAL LIABILITY ON ALL CLAIMS, WHETHER INDIVIDUALLY OR IN THE AGGREGATE, WHETHER IN CONTRACT, WARRANTY, REPRESENTATION, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, INDEMNITY, CONTRIBUTION, OR OTHERWISE, WILL NOT EXCEED THE PURCHASE PRICE OF THE GOODS THAT GIVE RISE TO THE CLAIM. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW IN CUSTOMER’S JURISDICTION.
Safety. GOODS AND SERVICES ARE NOT SPECIFICALLY MANUFACTURED OR DESIGNED FOR USE IN LIFE SUPPORT, NUCLEAR, OR SAFETY EQUIPMENT OR HIGH-RISK APPLICATIONS WHERE A MALFUNCTION CAN RESULT IN PERSONAL INJURY OR DEATH. CUSTOMER’S USE OR SALE OF GOODS FOR SUCH APPLICATIONS IS AT ITS OWN RISK. CUSTOMER WILL DEFEND ALL SUITS AND CLAIMS AND INDEMNIFY SERIOUS AND ITS SUPPLIERS AND LICENSORS FROM ALL RESULTING CLAIM, LOSS, DAMAGE, AWARD, AND COST (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES) ARISING OUT OF USE OF GOODS OR SERVICES IN HIGH-RISK EQUIPMENT OR APPLICATIONS.
Customer Responsibility. Without affecting SERIOUS’ obligations under this Agreement, and to the fullest extent permitted by law, Customer is solely responsible for: (1) any product or process using or incorporating the Goods; (2) testing the Goods and determining their suitability for Customer’s purposes; and (3) determining whether products or systems using the Goods infringe third party intellectual property rights.
Allocation of Risk. The allocation of risk contained in this Agreement is reflected in the price of the Goods and Services and is reasonable in all the circumstances having regard to all relevant factors, including the parties’ bargaining positions.
Confidential Information and Intellectual Property. Customer must maintain the secrecy of and not disclose, without SERIOUS’ express written consent, all trade secrets, proprietary information, or confidential information, which Customer receives from SERIOUS. All intellectual property rights in the Goods, Software and Services remain vested in SERIOUS or its licensors and no rights are transferred or licensed to Customer as a result of the sale of Goods, license of Software of performance of Services, except as expressly provided in an applicable Software license agreement or applicable Services agreement executed separately by Customer and SERIOUS. Title to all Software provided by SERIOUS remains vested in SERIOUS or its licensors. Software is licensed to Customer in conjunction with and for use with the Goods and is provided “AS IS” except as may be otherwise provided in an applicable Software license agreement.
Except where prohibited by law, the Goods/Software are offered for sale/license and are sold/licensed subject to the following conditions:
(1) Customer must not, nor permit others to, manufacture, reverse engineer, translate, decompile, create derivative works based on the whole or any part of the Goods/Software, disassemble, adapt, modify, duplicate, or otherwise copy or reproduce any of the Goods/Software, except as may be otherwise provided in an applicable Software license agreement.
(2) Customer shall not remove any product identification, copyright, trademark, or other proprietary notice attached to or provided with the Goods or Software.
(3) Customer may not resell Goods without SERIOUS’ prior written consent unless the Goods are sold as incorporated or embedded within Customer’s products.
Government Contracts. If the Goods are to be used in the performance of a U.S. Government contract or subcontract for which mandatory, flow-through or pass-down clauses are applicable to SERIOUS, its performance, or the Goods, Customer must inform SERIOUS and provide it with an opportunity to review such clauses before SERIOUS begins performance. If SERIOUS is notified of such flow-through or pass-down clauses after it begins performance, and SERIOUS subsequently determines it is unable or unwilling to proceed, SERIOUS may rescind and shall have no liability for such rescission.
Assignment. SERIOUS may assign, transfer, or subcontract its rights and obligations under the Agreement. Customer may not assign, transfer, or subcontract its rights or obligations, except to a successor in interest to all or substantially all of the assets of Customer, without SERIOUS’ prior written consent. However, any assignment to a successor in interest to all or substantially all of the assets of Customer will not relieve Customer from its obligation to perform. Except as indicated in this Section 14.3, the rights and obligations of this Agreement will inure to the benefit of the respective parties, their successors, and assigns.
Notices. Notices required or permitted by the Agreement must be in writing and signed on behalf of an authorized representative of the party providing notice, addressed to the receiving party as specified in writing, and sent by courier, certified mail, facsimile, personal delivery, or email. If notice is sent via facsimile, in person delivery, or email, then notice will be deemed received and effective upon the earlier of actual receipt or one business day after delivery. If notice is sent via other delivery methods, then notice will be deemed received and effective upon the earlier of actual receipt or five business days after delivery.
Entire Agreement. The Agreement constitutes the entire agreement and understanding of SERIOUS and Customer with respect to the subject matter and supersedes all prior written or verbal communications, representations, agreements, understandings, proposals, negotiations and promises relating to the subject matter.
Modification and Waiver. Except as expressly set forth in the Agreement, no modification or waiver of the Agreement is effective unless it is in writing and signed by an authorized representative of: (1) the party charged with having given the waiver; or (2) both parties in the event of a modification. No failure or delay by SERIOUS to assert any rights or remedies arising from a breach will be construed as a waiver or a continuing waiver of its rights and remedies, nor will a failure or delay to assert a breach be deemed to waive that or any other breach.
Survival. If any part of the Agreement is found by a court of competent jurisdiction to be invalid, unlawful, or unenforceable, then that part will be severed from the remainder of the Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law. Sections 3, 5, 9, 10, 11, 12, 13 and 14 will survive any cancellation or termination of the Order or Agreement.
Dispute Resolution. Except for any dispute arising out of or related to intellectual property, debt actions, specific performance, or injunctive relief—for which a party may seek immediate relief in an appropriate court as stated below—before any litigation can be initiated the senior management of both parties shall meet in a timely manner and attempt to resolve the dispute. If the dispute cannot be resolved by senior management within sixty (60) days, the dispute will be will be submitted to nonbinding mediation before a mediator with at least 10 years experience as an attorney representing technology product manufacturers. Mediation will take place in a location mutually acceptable to both parties. Each party is responsible for its own costs and expenses (including attorneys’ fees, if applicable) for the mediation. The parties will share the cost of the mediator equally. If the mediation is unsuccessful, either party may initiate litigation as stated below.
Governing Law and Venue. The Agreement will be governed, construed, and enforced according to the laws of the State of Arizona, excluding its conflicts of law principles, the Uniform Commercial Code as adopted in the State of Arizona, USA. The federal and state courts of the State of Arizona have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement. Customer consents to: (1) the personal jurisdiction of the courts of Arizona; and (2) service of process being effected upon Customer by registered mail sent to Customer’s address specified on an invoice. The parties irrevocably and unconditionally waive the right to trial by jury in any proceeding. In addition to any other rights and remedies it may have, the prevailing party in any litigation proceeding will be entitled to reimbursement from the other party for its expenses incurred in the proceeding, including court costs and reasonable attorneys’ fees. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.