1. ACCEPTANCE OF TERMS
All sales of Si-Ware Systems, Inc. (“Si-Ware”)devices and accessories (“Devices”)furnished by Si-Ware to the party purchasing Devices from Si-Ware (“Buyer”) are made pursuant to the terms and conditions set forth herein (the “Terms”).For purposes of these Terms, the terms “we,” “us” and “our” refer to Si-Ware. “You” refers to you, as a Buyer.
Notwithstanding any language to the contrary therein, no terms or conditions stated in a Buyer purchase order or in any other Buyer order documentation (excluding, for clarity, any order form provided by Si-Ware (an “Order Form”)) shall be incorporated into or form any part of these Terms and all such terms and conditions are hereby rejected and shall be null and void.
IF YOU ARE ACCEPTING THE TERMS ON BEHALF OF YOUR EMPLOYER OR OTHER ORGANIZATION, THE TERM “BUYER” SHALL BE DEEMED TO INCLUDE SUCH EMPLOYER OR ORGANIZATION. YOU REPRESENT, WARRANT AND UNDERTAKE THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH EMPLOYER OR ORGANIZATION TO THESE TERMS.
2. USE OF THE DEVICES
Only Buyer may use the Device. You are prohibited from selling Devices to dealers or resellers. For purposes of these Terms, “reselling” will be defined as purchasing or intending to purchase any Devices for the purpose of engaging in a commercial sale of the same Devices to a third party.
You acknowledge and agree that the Devices are designed only to be used in conjunction with Si-Ware’s software, services and cloud-based platform (the “Si-Ware Platform”) that enables you to obtain and use third party software applications (the “Developer Products”) made available via the Si-Ware Platform or otherwise by Si-Ware. Any use of the Si-Ware Platform and Developer Products on the Device will be subject to the terms and conditions of the End User Agreement made available by Si-Ware to you in connection with your purchase of access to any Developer Products (the “EUA”).
WE RESERVE THE RIGHT TO DISABLE THE SOFTWARE INCLUDED ON THE DEVICE IF YOU VIOLATE THESE TERMS OR THE EUA.
You may place orders for Devices through the Si-Ware website or via an Order Form. When placing an order, we may ask you for your name, e-mail address and other information so that we can fulfill your order. When you place an order, Si-Ware’s third-party payment service provider will charge your credit card account in connection with the order in accordance with the payment terms set forth on the Si-Ware website or Order Form, and you agree to make all applicable payments in connection with any order placed by you. For orders placed on Si-Ware’s website, the third-party payment processor collects your credit card details and Si-Ware does not view or store your credit card information. Payments are currently processed on behalf of Si-Ware by Stripe, Inc. or one of its affiliates or Shopify, Inc. or one of its affiliates. To learn more about our credit card processing vendors and their respective privacy and other policies which apply when you make a payment through their services, please review the policies on their site. By placing an order, you agree that: (i) any credit card information supplied by you is true and complete; and (ii) you will pay the applicable price listed.
Your order for Devices is subject to cancellation by Si-Ware, in its sole discretion, and any automatic confirmation email sent by Si-Ware in connection with your order does not constitute acceptance of the order by Si-Ware. Si-Ware is not responsible for pricing, typographical, or other errors in any offer on the Si-Ware website and reserves the right to cancel any orders resulting from such errors. Si-Ware reserves the right, including without prior notice, to limit the quantity of Devices purchased per buyer or per order for any reason. Si-Ware will attempt to notify you should such limits be applied.
4. ACCEPTANCE; SHIPPING
All scheduled shipment dates are estimates only. Delivery of each order for a Device(s) is subject to availability of the Devices. Si-Ware will use reasonable efforts to meet the scheduled shipment dates but will not be liable for any loss, damage or penalty resulting from any delay in shipment or delivery. All Devices shall be deemed irrevocably accepted upon delivery. Title and risk of loss shall pass to Buyer upon shipment of the Device(s). Si-Ware reserves the right to make partial deliveries, and any order shall be severable as to such installments. Devices may be used or refurbished (which for clarity does not affect Buyer’s rights under the warranty in Section 8).
For international shipments (a) you will be the importer of record and responsible for clearing your shipment for import and (b) you authorize Si-Ware to designate the shipment provider to act as your agent with the relevant customs and tax authorities in the destination country and to clear your shipment and pay any import fees (and you agree to reimburse the shipment provider for such fees, if applicable).
5. PRICES; PAYMENT
The prices for Devices are listed on the Si-Ware website or on the Order Form, as applicable, and do not include shipping and handling charges. Buyer shall bear, in addition to the purchase price, the amount of any freight, insurance, handling, customs duties and other duties levied on the shipment of Devices and all sales, use, excise or other similar taxes levied on the purchase of Devices. Without limiting other remedies, Si-Ware reserves the right to charge a late fee on all past due payments equivalent to the lesser of one and a half percent (1.5%) per month on the unpaid balance or the highest rate allowed by law. You will pay for all collection costs, attorney’s fees, and court costs incurred in the collection of past due amounts. Si-Ware may collect and remit taxes with respect to certain jurisdictions and you agree to pay any and all such taxes. All charges for Devices are non-refundable.
6. RETURNS AND REFUNDS
No order may be canceled, rescheduled or reconfigured without Si-Ware’s prior written authorizations and in such event, Buyer will be liable to Si-Ware for any additional costs and expenses incurred by Si-Ware as a result of such cancellation, reschedule or reconfiguration.
7. INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIAL INFORMATION
Si-Ware and its licensors and suppliers own and shall retain exclusive ownership of all intellectual property rights in and relating to the Devices. Any software or firmware incorporated in the Device (the “Device Software”) is licensed, not sold. Subject to these Terms, Si-Ware grants Buyer a limited, non-exclusive, non-transferable (except in accordance with Section 16), royalty-free license, without the right of sublicense, to execute the Device Software only as incorporated in the Device(s) you purchased. Except for the foregoing license, all rights in and to the Device and Device Software are reserved. You agree to comply with Si-Ware’s requirements with regard to proprietary and similar rights in and to any third party software incorporated in the products (including any requirement to enter into a separate license agreement and prohibitions against duplicating or disclosing the same).
All drawings, diagrams, specifications, documentation, pricing information, technical information, and other materials and information furnished by Si-Ware relating to the use and service of the Devices (“Confidential Information”) are confidential and proprietary to Si-Ware. Such materials have been developed at great expense and contain trade secrets of Si-Ware. You may only use such information for purposes of operating the Devices. You may not reproduce or distribute such materials except to distribute the materials to your employees who use the Devices as part of their duties to you as the employer. Buyer shall exercise reasonable care to hold such information in confidence and in no event less care than Buyer exercises to protect Buyer’s confidential information.
Buyer will not remove, alter, or obscure any proprietary notices (including copyright notices) of Si-Ware or its suppliers on the Device. Buyer further agrees that it shall not (and shall not authorize any third party to): (i) tamper with, circumvent, alter, modify, or otherwise manipulate any security mechanism contained within the Device for any purpose whatsoever, including to cause the Device to function independently of the Si-Ware Platform and Developer Products purchased by Buyer; (ii) reverse-engineer, disassemble, or otherwise attempt to extract any internal functionality of any Device or Device Software; or (iii) modify the Device in any way. To the extent that any applicable law in any jurisdiction requires that Buyer have the right to perform any of the acts described in the immediately preceding sentence, before Buyer undertakes any such act, Buyer shall first give written notice to Si-Ware and Si-Ware will arrange for Buyer to receive such rights to the extent required under applicable law, which arrangement may be subject to reasonable conditions permitted under law.
Si-Ware alone will own all right, title, and interest, including all related intellectual property rights, to any suggestions, ideas, feedback, recommendations, or other information provided by you relating to the Devices and Device Software and you hereby assign and agree to assign such submissions to Si-Ware free of charge. Si-Ware may use such submissions as it deems appropriate in its sole discretion.
8. LIMITED WARRANTY; DISCLAIMER
For a period of two years after purchase of each Device (the “Warranty Period”), Si-Ware warrants that (i) such Device will be free from material defects in workmanship and materials, (ii) such Device will materially comply with the specifications furnished by Si-Ware, and (iii) title to and ownership of the physical embodiment of such Device shall be delivered to Buyer free and clear of all liens, claims and encumbrances. The foregoing warranty shall not apply to any defects or nonconformities that result from (a) any modifications made to a Device other than by Si-Ware, (b) any use of a Device with products, software or services not provided by Si-Ware or its authorized developers, (c) any use of a Device in a manner inconsistent with the specifications furnished by Si-Ware, or (d) any use of a Device other than in conjunction with Buyer’s properly licensed access to Developer Products.
For any material breach of the foregoing warranty, Si-Ware shall, at its option, refund the purchase price, or repair or replace the nonconforming Devices, provided that you provide written notice of non-conformance within the Warranty Period and provide reasonable cooperation to Si-ware as necessary for Si-Ware to diagnose and correct the nonconformity. Nonconforming Devices shall be, with Si-Ware’s prior written authorization, returned to Si-Ware per provided instructions within the Warranty Period.
Buyer shall bear all risk of loss or damage to returned Devices while in transit. Si-Ware reserves the right to examine any alleged non-conformance and perform a failure analysis to determine if the alleged non-conformance is a result of breach of the foregoing warranty. Upon verification by Si-Ware that a Device does not conform to this warranty, Si-Ware will reimburse Buyer for the cost of transporting the Device to Si-Ware; such payment may be based on standard carrier tariffs and may not reflect the actual transportation costs. The foregoing states Si-Ware’s sole and exclusive obligation and Buyer’s sole and exclusive remedy for breach of the warranties in this Section 8. In the event no defect or breach of warranty is discovered by Si-Ware upon receipt of returned Device, the Device will be returned to Buyer at Buyer’s expense and Buyer will reimburse Si-Ware for the transportation charge, labor and associated charges incurred in testing the allegedly defective Device. Any repair or replacement provided to Buyer will not extend the Warranty Period for the Devices.
The warranty under this Section 8 shall only be applicable to the original purchaser of a Device. Any additional support or consulting services provided by Si-Ware shall be pursuant to a separate agreement between the parties.
EXCEPT FOR THE WARRANTY EXPRESSLY SET FORTH IN THIS SECTION 8, SI-WARE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 8, SI-WARE DOES NOT WARRANT THAT USE OF THE DEVICE SOFTWARE OR SI-WARE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE DEVICE SOFTWARE IS FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. YOU UNDERSTAND AND AGREE THAT THE SUBMISSION OF ANY DATA THROUGH THE DEVICE AND SI-WARE PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGES TO SUCH DATA OR DAMAGE TO YOUR COMPUTER SYSTEMS OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY DATA. YOU ARE SOLELY RESPONSIBLE FOR CREATING BACKUPS OF ANY DATA YOU RECEIVE OR TRANSMIT VIA THE DEVICE OR SI-WARE PLATFORM.
The warranties in this Section 8 shall not be enlarged, and no obligation or liability shall arise out of Si-Ware’s rendering of technical advice, facilities or services in connection with the delivery of Devices. Some jurisdictions do not permit the disclaimer of warranties, so this warranty disclaimer may not apply to you.
You agree to indemnify and hold Si-Ware harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with your use of any Devices or breach of these Terms. Si-Ware reserves the right, at Si-Ware’s own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Si-Ware and you agree to cooperate with Si-Ware’s defense of these claims.
10. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SI-WARE BE LIABLE TO BUYER, OR TO ANY PARTY CLAIMING THROUGH OR UNDER BUYER, FOR ANY LOST PROFITS, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, ARISING OUT OF OR RELATED TO THE SALE OF DEVICES TO BUYER OR USE OR INABILITY TO USE ANY DEVICES BY BUYER, EVEN IF SI-WARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND SI-WARE’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE DEVICES OR THESE TERMS IS LIMITED TO THE AMOUNTS PAID BY BUYER TO SI-WARE UNDER THE ORDER FOR DEVICES GIVING RISE TO THE LIABILITY. NO ACTION SHALL BE BROUGHT MORE THAN ONE YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.
Buyer acknowledges that the foregoing limitations are an essential element of the agreement between the parties pursuant to these terms and that in the absence of such limitations the pricing for Devices and the terms and conditions in these Terms would be substantially different. Some jurisdictions do not permit limitations of liability, so this Section 10 may not apply to you.
11. GOVERNMENT CONTRACTS
If your order is placed under a contract with the United States Government, Si-Ware agrees to comply with those contract provisions and regulations with which, pursuant to law, it must comply and of which you have placed Si-Ware on notice prior to order placement. All rights in Device Software, the Si-Ware Platform and any other software owned or licensed by Si-Ware are hereby reserved and deemed restricted or limited. No provision of your contract with the government will be binding on Si-Ware except as expressly set forth in this paragraph.
12. UNINTENDED APPLICATIONS
Unless specifically otherwise agreed in writing by Si-Ware, Buyer acknowledges that the Devices are not intended for and will not be used in life support systems, human implantation, nuclear facilities or systems or any other application where product failure could lead to loss of life or catastrophic property damage. Buyer will indemnify and hold Si-Ware harmless from any loss, cost or damage resulting from Buyer’s breach of the provisions of this paragraph.
13. EXPORT POLICY
You acknowledge that the Devices, including the Device Software, are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received, and you agree to comply with all applicable laws. You agree, represent, and warrant that no Devices, including no Device Software, will be accessed from, downloaded in, released in, carried to, transferred to, transshipped through, exported to, or re-exported (collectively “transferred”) to any territory (or national resident thereof), person, entity, or organization to which such Devices could not be transferred directly from the United States or by a U.S. person without a license, including without limitation, to any person on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Department of Commerce's Denied Persons List or Entity List.
14. RELATIONSHIP OF THE PARTIES
These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to these Terms.
15. WAIVER; CUMULATIVE REMEDIES;SEVERABILITY
No failure or delay by either party in exercising any right under these Terms shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign these Terms together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets that relate to these Terms. Any attempt by a party to assign its rights or obligations under these Terms in breach of this section shall be void and of no effect. Subject to the foregoing, these Terms shall bind and insure to the benefit of the parties, their respective successors and permitted assigns.
17. GOVERNING LAW; VENUE
These Terms shall be governed by the laws of California. The state and federal courts located in San Francisco, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts provided that nothing in this Section 17 prohibits either party from seeking or obtaining in any jurisdiction injunctive or similar relief in connection with the enforcement of these Terms.
18. ENTIRE AGREEMENT
These Terms, and any invoice, purchase order or sales acknowledgement form, in each case supplied by Si-Ware, to which these Terms are attached constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. These Terms may be amended only by a written document signed by both parties that specifically references these Terms.