Terms & Conditions
Effective Date:
These Terms and Conditions (the “Terms”) apply to all sales of products, which may include but are not limited to Original Equipment Manufacturer (OEM) modules, inline process monitoring solutions, associated software or firmware, and other goods or services offered by Si-Ware (collectively, “Products”), furnished by Si-Ware Systems, Inc. (“Si-Ware,” “we,” “us,” or “our”) to the party purchasing Products from Si-Ware (“Buyer” or “you”).
1. ACCEPTANCE OF TERMS All sales of Products by Si-Ware to Buyer are made pursuant to these Terms. For purposes of these Terms, “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”) or other purchasing agreement mutually agreed upon in writing by Buyer and Si-Ware) shall be incorporated into or form any part of these Terms, and all such other or different terms and conditions are hereby rejected by Si-Ware and shall be null and void. Buyer’s acceptance of Products shall constitute Buyer’s acceptance of these Terms.
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 PRODUCTS Buyer may integrate the Products into Buyer’s own products or systems (“Buyer’s Integrated Products”) and sell such Buyer’s Integrated Products to third parties. Buyer shall not, however, resell Products in their original, standalone form as purchased from Si-Ware without Si-Ware’s prior written consent, nor represent themselves as an authorized distributor of standalone Si-Ware Products unless explicitly authorized by Si-Ware in a separate written agreement. For purposes of these Terms, “reselling” will be defined as purchasing or intending to purchase any Products for the purpose of engaging in a commercial sale of the same Products in their original, standalone form to a third party.
Any software, firmware, or other code incorporated into or provided by Si-Ware for use with the Products (“Software”) is licensed, not sold, and is provided for use solely in conjunction with the specific Product with which it is associated or for which it is designated, subject to the terms of Section 7 hereof.
Si-Ware may, from time to time, offer optional software applications, cloud services, or other digital services (collectively, "Optional Services") for use with certain Products. The use of any such Optional Services by Buyer will be subject to separate terms and conditions or a license agreement presented by Si-Ware at the time of access or purchase of such Optional Services, which terms shall prevail in case of any conflict with these Terms with respect to such Optional Services. Si-Ware has no obligation to offer or maintain any Optional Services.
WE RESERVE THE RIGHT TO DISABLE OR RESTRICT ACCESS TO ANY SOFTWARE, FIRMWARE, OR FUNCTIONALITY ASSOCIATED WITH THE PRODUCTS IF YOU VIOLATE THESE TERMS or any applicable separate license agreement for such Software or Optional Services.
3. ORDERS You may place orders for Products through the Si-Ware website (if applicable for the specific Product) or via an Order Form or other purchasing agreement mutually agreed upon by Buyer and Si-Ware. When placing an order, we may ask you for your name, e-mail address, shipping information, and other information so that we can fulfill your order.
When you place an order, payment shall be made in accordance with the payment terms set forth on the Si-Ware website (for online orders) or as specified in the applicable Order Form, invoice, or other purchasing agreement. For orders placed on Si-Ware’s website, Si-Ware’s third-party payment service provider will collect your credit card details and Si-Ware does not view or store your credit card information. Payments for website orders 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. You agree to make all applicable payments in connection with any order placed by you.
Your order for Products 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 or in any quotation 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 Products 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 Product(s) is subject to availability of the Products. 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.
Products shall be deemed accepted by Buyer upon delivery, unless otherwise specified in an applicable Order Form or separate written agreement between Si-Ware and Buyer which may define specific acceptance criteria and procedures. Title to the physical Product(s) and risk of loss shall pass to Buyer upon shipment of the Product(s) from Si-Ware’s facility (Ex Works, INCOTERMS 2020). Si-Ware reserves the right to make partial deliveries, and any order shall be severable as to such installments.
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, or pay such fees directly as required).
5. PRICES; PAYMENT The prices for Products are listed on the Si-Ware website (if applicable for the specific Product) or on the Order Form, quotation, or other purchasing agreement provided by Si-Ware, 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 Products and all sales, use, excise or other similar taxes levied on the purchase of Products. 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, attorneys’ 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.
Except as expressly set forth in Section 8 (Limited Warranty) or as otherwise agreed in a specific Order Form or other written agreement signed by Si-Ware, all charges for Products are non-refundable.
6. ORDER CHANGES AND CANCELLATIONS No order may be canceled, rescheduled or reconfigured without Si-Ware’s prior written authorization 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, including but not limited to costs of materials, labor, and restocking fees.
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 Products and any Software. Any Software incorporated in or provided with the Product is licensed, not sold. Subject to these Terms and full payment for the applicable Products, 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 and use the Software only as incorporated in or intended for use with the Product(s) you purchased, and solely for Buyer’s internal business purposes in connection with such Product(s) and, if applicable, in Buyer’s Integrated Products. Except for the foregoing license, all rights in and to the Products and Software are reserved by Si-Ware and its licensors. 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 design, use, and service of the Products and Software (“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 Confidential Information for purposes of evaluating, purchasing, integrating, and operating the Products as permitted under these Terms. You may not reproduce or distribute such materials except to distribute the materials to your employees who need to know such information for such purposes and who are bound by confidentiality obligations no less restrictive than those herein. Buyer shall exercise reasonable care to hold such information in confidence and in no event less care than Buyer exercises to protect Buyer’s own confidential information of a similar nature.
Buyer will not remove, alter, or obscure any proprietary notices (including copyright notices) of Si-Ware or its suppliers on the Product or Software. 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 Product or Software for any purpose whatsoever, including to cause the Product or its Software to function in a manner not intended by Si-Ware or to bypass any licensing or usage restrictions; (ii) reverse-engineer, decompile, disassemble, or otherwise attempt to extract any internal functionality, source code, or trade secrets from any Product or Software; or (iii) modify the Product or Software in any way not expressly authorized by Si-Ware in writing. 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 detailing the proposed activity and the legal justification, and Si-Ware will have the option, in its discretion, to provide the necessary information or functionality or otherwise 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 Products and 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 one (1) year from the date of shipment from Si-Ware’s facility, or such other period as may be expressly set forth in the applicable Order Form or Product documentation (the “Warranty Period”), Si-Ware warrants to the original Buyer that (i) such Product will be free from material defects in workmanship and materials, (ii) such Product will materially comply with the official specifications furnished by Si-Ware for that Product (“Specifications”), and (iii) title to the physical embodiment of such Product 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 Product other than by Si-Ware or with Si-Ware’s express written authorization; (b) any use or integration of a Product with other products, software, services or systems not provided or expressly approved in writing by Si-Ware for such integration or use; (c) any use of a Product in a manner inconsistent with the Specifications or other documentation furnished by Si-Ware; (d) defects or non-conformities resulting from improper installation, integration, or testing by Buyer or any third party; (e) use of the Product outside of specified operating conditions or for applications for which it was not designed or specified by Si-Ware; (f) damage caused by accident, abuse, misuse, neglect, improper handling or storage, electrical power issues (including surges, sags, or incorrect voltage), or environmental factors not conforming to Product Specifications; or (g) normal wear and tear.
For any material breach of the foregoing warranty, Si-Ware shall, at its sole option and expense, repair or replace the nonconforming Product, or refund the purchase price paid by Buyer to Si-Ware for such nonconforming Product, provided that you provide written notice of non-conformance with reasonable detail to Si-Ware within the Warranty Period and provide reasonable cooperation to Si-Ware as necessary for Si-Ware to diagnose and correct the nonconformity. Nonconforming Products shall be, with Si-Ware’s prior written authorization and in accordance with Si-Ware’s return material authorization (RMA) procedures, returned to Si-Ware (or its designated facility) within the Warranty Period.
Buyer shall bear all risk of loss or damage to returned Products 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 Product does not conform to this warranty, Si-Ware will reimburse Buyer for the reasonable, standard costs of transporting the Product 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 a returned Product, the Product will be returned to Buyer at Buyer’s expense and Buyer will reimburse Si-Ware for the transportation charges (if paid by Si-Ware), labor and associated charges incurred in testing the allegedly defective Product. Any repair or replacement Product provided to Buyer will be warranted for the remainder of the original Warranty Period or for thirty (30) days, whichever is longer.
The warranty under this Section 8 shall only be applicable to the original Buyer of a Product from Si-Ware or its authorized distributor (if applicable). Any additional support or consulting services provided by Si-Ware shall be pursuant to a separate written 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 WITH RESPECT TO THE PRODUCTS AND ANY SOFTWARE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 8, SI-WARE DOES NOT WARRANT THAT THE OPERATION OF ANY PRODUCT OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE IS FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. YOU UNDERSTAND AND AGREE THAT ANY DATA TRANSMITTED OR RECEIVED THROUGH THE USE OF THE PRODUCTS IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO SUCH DATA OR DAMAGE TO YOUR COMPUTER SYSTEMS, NETWORKS, OR OTHER EQUIPMENT, OR LOSS OF DATA THAT MAY RESULT. YOU ARE SOLELY RESPONSIBLE FOR CREATING AND MAINTAINING ADEQUATE BACKUPS OF ANY DATA YOU GENERATE, RECEIVE, OR TRANSMIT VIA THE PRODUCT OR ANY ASSOCIATED SOFTWARE OR OPTIONAL SERVICES.
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 or use of Products. Some jurisdictions do not permit the disclaimer of certain warranties, so this warranty disclaimer may not apply to you to the extent prohibited by applicable law.
9. INDEMNIFICATION You agree to indemnify, defend, and hold Si-Ware, its affiliates, officers, directors, employees, agents, and licensors harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (a) your use, integration, or distribution of any Products (including Buyer’s Integrated Products); (b) your breach or alleged breach of these Terms; or (c) your violation of any applicable law or regulation or the rights of any third party. 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. You shall not settle any such claim without Si-Ware's prior written consent.
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, LOSS OF DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, ARISING OUT OF OR RELATED TO THE SALE OF PRODUCTS TO BUYER OR THE USE OR INABILITY TO USE ANY PRODUCTS BY BUYER OR ANY THIRD PARTY, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE), EVEN IF SI-WARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SI-WARE’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS OR THESE TERMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, IS LIMITED TO THE AMOUNTS PAID BY BUYER TO SI-WARE UNDER THE SPECIFIC ORDER FOR THE PRODUCTS GIVING RISE TO THE LIABILITY. NO ACTION, REGARDLESS OF FORM, SHALL BE BROUGHT MORE THAN ONE (1) 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 Products and the terms and conditions in these Terms would be substantially different. Some jurisdictions do not permit limitations of liability for certain damages, so the limitations in this Section 10 may not apply to you to the extent prohibited by applicable law.
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. In no event shall the U.S. Government acquire greater than "Restricted Rights" (as defined in FAR 52.227-19 or DFARS 252.227-7014 or successor regulations) in any Software or technical data provided by Si-Ware. All rights in Software 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 an authorized officer of Si-Ware, Buyer acknowledges that the Products are not designed, manufactured, tested, or intended for use in, and will not be used in, life support systems, human implantation, nuclear facilities or systems, aerospace applications, automotive safety or control systems, or any other application where product failure could lead to loss of life, personal injury, or catastrophic property or environmental damage (“High-Risk Applications”). Buyer will indemnify, defend, and hold Si-Ware harmless from any loss, cost, liability, or damage (including attorneys' fees and costs) resulting from Buyer’s breach of the provisions of this paragraph, including any use of Products in High-Risk Applications.
13. EXPORT POLICY You acknowledge that the Products, including any Software and related technology, 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. You agree to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, and trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”).
You agree, represent, and warrant that no Products, including no Software or related technology, 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 Products could not be transferred directly from the United States or by a U.S. person without a license or other governmental authorization, including without limitation, to any person or entity on the U.S. Treasury Department's List of Specially Designated Nationals and Blocked Persons or the U.S.
Department of Commerce's Denied Persons List, Entity List, or Unverified List. You further agree not to use any Product for any purposes prohibited by U.S. law, including, without limitation, the development, design, manufacture, or production of nuclear, chemical, or biological weapons.
14. RELATIONSHIP OF THE PARTIES These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Neither party is an agent or representative of the other or has any authority to bind the other party in any respect whatsoever. 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 or any other 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.
16. ASSIGNMENT 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 inure to the benefit of the parties, their respective successors and permitted assigns.
17. GOVERNING LAW; VENUE These Terms and any dispute arising out of or relating to these Terms or the Products shall be governed by and construed in accordance with the laws of the State of California, without regard to its principles of conflict of laws. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. The state and federal courts located in San Francisco, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms or its formation, interpretation or enforcement. Each party hereby consents to the exclusive jurisdiction of such courts and waives any objection to venue, provided that nothing in this Section 17 prohibits either party from seeking or obtaining in any jurisdiction injunctive or similar equitable relief in connection with the enforcement of these Terms, particularly with respect to intellectual property rights or confidentiality obligations.
18. ENTIRE AGREEMENT These Terms, together with any applicable Order Form, invoice, sales acknowledgement form, or other written purchasing agreement, in each case supplied or expressly agreed to in writing by Si-Ware, to which these Terms are attached or incorporated by reference, constitute the entire agreement between the parties regarding the subject matter hereof and supersede all prior or contemporaneous agreements, understandings, and communications, whether written or oral, relating to such subject matter. These Terms may be amended only by a written document signed by authorized representatives of both parties that specifically references these Terms. In the event of any conflict or inconsistency between these Terms and the terms of an Order Form or other written purchasing agreement signed by Si-Ware, the terms of such Order Form or written purchasing agreement shall prevail solely with respect to the subject matter of that Order Form or agreement.