Terms and Condition of Sale
Sera4 Standard Terms and Conditions of Sale
1. PRODUCT AND SALE TERMS.
The buyer (“Buyer”) agrees to purchase, and Sera4 Ltd. (“Sera4” and “Seller”) agrees to sell, products (“Product(s)”) under the terms and conditions contained in this document. All purchase orders issued to Sera4 by Buyer shall be governed only by these terms and conditions notwithstanding any preprinted terms and conditions on Buyer’s purchase order. Any additional or different terms in Buyer’s documents are hereby deemed to be material alterations and notice of objection to and rejection of them is hereby given. Buyer accepts these terms and conditions by accepting delivery of the Product(s) whether or not these terms and conditions are provided with each sales transaction.
Buyer acknowledges to have read and understood the terms and conditions herein which shall prevail over and apply to the exclusion of any terms and conditions contained or referred to in Buyer’s order or in correspondence or elsewhere or implied by trade custom, practice or course of dealing. Buyer further acknowledges that these terms and conditions supersede all representations, communications and proposals, oral or written, between the parties relating to the subject matter hereof.
2. DELIVERY, TITLE AND RISK OF LOSS.
Unless otherwise agreed to in writing or under any alternate local terms agreed to by Sera4, Product(s) shall be delivered EXW (Seller’s Shipping Location), in accordance with INCOTERMS 2010. Title to and risk of loss of the Product(s) shall pass to Buyer upon delivery of such Product(s)to Buyer. Sera4 will use all reasonable efforts to deliver Product(s) to a mutually agreeable schedule. However, delivery dates are approximate only and Sera4 is not liable for delays in delivery for any reason. Deliveries may be made in installments, and a delay or default in delivery ofany installment shall not relieve Buyer of the obligation to accept and pay for other deliveries. Claims for shipment shortage shall be deemed waived unless presented to Sera4 in writing within forty-five (45) days of delivery.
3. PRICES, QUOTATIONS AND TAXES.
Except as may otherwise be agreed to by the parties in a pricing agreement, the applicable prices shall be those prices quoted by Sera4 and contained in Buyer’s purchase order accepted by Sera4. Buyer agrees to pay all applicable taxes and duties.
4. PAYMENT TERMS AND TITLE.
Except as otherwise agreed to between the parties in writing, payment will be due thirty (30) days from the date of invoice. All payments shall be without retention or set-off by Buyer. If Buyer does not make payment on time, Sera4 shall be entitled to charge Buyer interest on the unpaid price at the rate of five percent (5%) above the published Bank of Canada Prime Rate in effect from the date on which payment becomes due until payment is made whether or not after judgment. Sera4 reserves the right at any time to revoke any credit extended to Buyer because of Buyer’s failure to pay an invoice when due or for any other similar reason and to suspend any subsequent shipments until Buyer’s account is current.
Sera4 warrants that its Product(s) will, for a period of 99 days from the date of delivery, be freefrom defects in material and workmanship and will conform to Sera4’s approved specifications. Prototypes, non-production Product(s) or samples of Product(s) are not warranted and are provided on an AS IS basis only.
Buyer must advise Sera4 in writing of any claims within the warranty period, obtain Sera4’s return authorization, and return the Product(s) to a facility or location directed by Sera4. If theProduct(s) are not as warranted, Sera4 shall, at Sera4’s option, either refund the purchase price of the Product(s) or provide the same or equivalent replacement Product(s), and shall reimburse Buyer for any commercially reasonable cost of transporting the non-conforming Product(s). In no event, however, shall Sera4 be responsible for any non-conformance or other defects in the Product(s) resulting from improper handling during or after shipment, misuse, neglect, improper installation or operation, repair, alteration, accident or for any other cause not attributable to defective workmanship or failure to meet specifications on the part of Sera4. This warranty shall not be expanded, and no obligation or liability will arise, due to technical advice or assistance, computerized data, facilities or services Sera4 may provide in connection with Buyer’s purchase. Sera4 provides no warranty for Sera4 Product(s) purchased through unauthorized sales channels. Sera4 warrants replacement Product(s) for the remaining term of the warranty on the originally delivered Product.
This warranty extends to the Buyer only and may be invoked only by the buyer for its customers. Sera4 will not accept warranty returns from Buyer’s customers or users of Buyer’s Products(s). This warranty does not apply to defects arising as a result of Buyer’s design or formula. The remedies set forth above are Sera4’s exclusive liability and Buyer’s exclusive remedies for any breach of warranty or non-conformity of the Product(s). The warranty set forth above is exclusive and in lieu of all other warranties, express, implied or statutory, including but not limited to the warranties for merchantability and fitness for a particular purpose, which are hereby expressly disclaimed.
6. CONFIDENTIAL INFORMATION.
All materials and Product(s) furnished by Sera4 and identified as containing confidential information must be held in confidence by the recipient using at least the degree of care the recipient uses for its own confidential information, but no less than reasonable care. Except as required by law, the recipient may not disclose such materials or confidential information except to its own employees who require use of the materials in the performance of their duties and who are bound by a duty of confidentiality under terms no less restrictive than contained herein concerning the use of confidential information. All confidential information shall be held in confidence by the recipient for five (5) years after receipt.
7. PATENT AND COPYRIGHT INDEMNIFICATION.
The design, development or manufacture by Sera4 of Product(s) and/or services shall not be deemed to produce a work made for hire. Except as expressly set forth herein, all intellectual property rights arising out of Product(s) or services sold pursuant to this document shall belong to Sera4. Except for Buyer’s implied license to use and sell a Product(s) incident to its purchase and the implied license of Buyer to sell or otherwise dispose of possession of a copy of a copyrighted work from Sera4, the sale of Product(s) or services does not convey any license by implication, estoppel, or otherwise in respect of Product(s) alone or in combination with other products.
Sera4 agrees to defend any claim, suit, or proceeding asserted against Buyer based upon a claim that any Product(s) purchased hereunder directly infringes any patent or copyright, effective in the United States of America and to pay costs and damages finally awarded in any such suit provided that Sera4 is promptly notified in writing of the claim and given, at Sera4’s request and expense, sole control of the defense or response to such claim and all requested reasonable assistance by Buyer for defense of the same. If such a claim has occurred or in Sera4’s sole and reasonable judgment is likely to occur Buyer agrees to allow Sera4 to
- obtain for Buyer the right to use and sell the Product, or
- replace or modify the Product(s) with non-infringing Product(s), or
- accept the return of the Product(s) and refund the purchase price less reasonable wear and tear.
Further, Sera4 may cease shipping infringing Product(s) without being in breach of this document. This indemnity does not extend to any claims based upon any infringement or alleged infringement of any patent, or copyright arising from;
- the combination of any Product(s) with other elements if such infringement would be avoided by the use of the Product(s) alone,
- the use of the Product(s) in a manner or for an application other than that for which such Product(s) was designed or intended, regardless of whether Sera4 was aware of such use,
- any addition to or modification of the Product(s),
- by any Product(s) made compliant to Buyer’s design, instruction or specification (such claims, i.e. those set forth in (i) through (iv) above, are referred to herein as “Other Claims”).
The foregoing states Sera4’s ENTIRE LIABILITY for patent or copyright infringement and is in lieu of all representations, warranties or conditions expressed or implied, in regard thereto.
Buyer agrees to defend any claim, suit, or proceeding asserted against Sera4 based upon Other Claims and to pay costs and damages finally awarded from such suit provided that Buyer is promptly notified in writing of the claim and given, at Buyer’s request and expense, sole control of the defense or response to such claim and all requested reasonable assistance by Sera4 for defense of the same.
Sera4 does not warrant that Product(s) and/or services are free of infringement of any patents, copyrights, or other proprietary rights of third parties. In no event shall Sera4 be liable for anyspecial, incidental or consequential damages arising from infringement or alleged infringement of patents, copyrights, or other intellectual property rights.
Buyer, without the express prior written consent of Sera4, has no right to use Sera4’s trademarks, trade names, corporate slogans, corporate logos, or corporate designations in the sale, lease or advertising of any Product(s), or any product containers, component parts, business forms, sales, advertising or promotional materials, or other business supplies or materials, whether in writing, orally or otherwise.
The sale of Product(s) furnished hereunder does not convey any license by implication, estoppel, or otherwise, under any proprietary or patent rights of Sera4 covering modifications of Product(s) furnished hereunder, or combinations of Product(s) furnished hereunder with other elements. For the avoidance of doubt, the parties agree that the results of the efforts regarding the sale of the Product(s) furnished hereunder by either party shall not be considered “work for hire,” and that neither party acquires any rights to, or licenses to use, any such results except as expressly set forth herein.
Buyer may cancel standard product at no charge with thirty (30) days written notice prior to Sera4’s shipment date. Buyer may cancel non-standard product unique to the customer (“Custom Product”) with ninety (90) days written notice prior to Sera4’s shipment date. Upon cancellation of Custom Product, Buyer shall remain liable for all non-transferable and non-cancellable raw materials and work in process at a price equal to the completed percentage of the Product(s) multiplied by the price of the finished Product(s) as of the date that Sera4 receives the notice. Buyer may not cancel Product(s) designated as Non-cancellable. Sera4 reserves the right to cancel all or any part of an order without any liability to Buyer if inaccurate information is supplied by Buyer or if Buyer is in default under any of the terms and conditions of this document.
Buyer may reschedule orders placed in accordance with the provisions of this document subject to the following restrictions: for each shipment, only one (1) reschedule is allowed; the rescheduled ship date must fall within the same quarter as the original ship date; written notice shall be provided to Sera4 thirty (30) days or more prior to the scheduled ship date.
10. RESALE PROHIBITED.
Unless expressly authorized in writing by Sera4, Buyer shall not resell Product(s). If Buyer breaches the terms of this paragraph, in addition to Sera4’s cancellation rights, Buyer agrees to fully indemnify Sera4, its officers, employees and distributors from any and all resulting liability, including attorneys’ fees and costs.
11. LIMITATION OF LIABILITY.
In no event shall Sera4’s aggregate liability for any breach, warranty, indemnity or other obligation or liability arising out of or in connection with the sale of Product(s) or services hereunder or the use of any of Sera4’s Product provided hereunder, exceed the purchase price of the particular Product(s) or services with respect to which losses or damages are claimed. In no event shall Sera4 be liable for special, incidental or consequential damages of any nature whatsoever (including, but not limited to, loss of profits, loss of use and loss of goodwill), regardless of whether Sera4 has been given notice of any such alleged damages, and regardless of whether such alleged damages are sought under contract, tort or other theories of law.
12. EXCUSABLE DELAY.
Sera4 shall not be liable for any delay or failure to perform due to any cause beyond its control or the control of its suppliers or subcontractors such as, for example, strikes, acts of God, acts of Buyer, interruption of transportation or inability to obtain the necessary labor, materials or facilities. Delivery schedules shall be considered extended by a period of time equal to the time lost because of any excusable delay. In the event Sera4 is unable wholly or partially to perform because of any such cause it may cancel its acceptance of Buyer’s order without liability to Buyer.
13. GOVERNING LAW.
The terms of this document shall be interpreted, construed and governed in all respects in accordance with the laws of the province of Ontario, Canada.
14. DISPUTE RESOLUTION.
Sera4 and Buyer will attempt to settle all claims (other than claims relating to intellectual property issues) through negotiation or non-binding mediation prior to commencement of court proceedings.
15. OTHER MISCELLANEOUS TERMS.
ENTIRE AGREEMENT. This document constitutes the entire and final agreement between Sera4 and Buyer with regard to the subject matter herein and supersedes all other communications.
WAIVER. Failure by Sera4 to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
NOTICES. Any notice hereunder shall be deemed to have been duly given if sent by pre-paid first class post to the party concerned at its last known address.
AMENDMENTS. No modifications to this document shall be binding unless expressly agreed to in writing by Sera4.
SEVERABILITY. If any provision of this document is held invalid, all other provisions shall remain valid.
NO ASSIGNMENT. Neither party may assign its rights and obligations hereunder without the prior written consent of the other, though Sera4 is permitted to subcontract all or part of its obligations hereunder as it deems necessary. Any unauthorized assignment shall be null and void.