General Terms and Conditions
These General Terms and Conditions (“GTC”) apply to all legal relationships (including offers, contract negotiations, contracts) between Sevensense Robotics Ltd. having its principal place of business at Hardturmstrasse 123, 8005 Zurich, Switzerland (“Sevensense”) and the respective customer (“Customer”) regarding the sale and delivery of products or works (“Products”), leasing of Products (“Leasing”) and provision of services (“Services”) by Sevensense (Products, Leasing and Services together the “Deliverables”).
2. Conclusion of Individual Contracts
All offers, price lists, product descriptions, brochures, etc. of Sevensense are non-binding and can be changed or revoked at any time.
As far as the offers of Sevensense are non-binding, a contract with Sevensense shall only come into effect on the date of approval by Sevensense and consist of the terms of the respective offer together with these terms and conditions (the “Agreement”). Approval is given by written declaration of acceptance or by execution of the order by Sevensense.
This Agreement shall prevail over any conflicting or additional terms or conditions of any purchase order or other document provided by Customer. Any conflicting or additional terms in any such documents of Customer are hereby deemed to be material alterations and notice of objection to and rejection of them is hereby given.
3. Prices and Payment
Customer shall pay the prices as agreed upon in the order and order confirmation. Prices are understood as Ex Works (EXW) Incoterms 2020, at the seat of Sevensense.
Unless agreed upon otherwise, terms of payment are net thirty (30) days from the day of Customer’s receipt of the invoice and all payments shall be made in Swiss Francs by bank wire transfer in immediately available funds to a bank account designated by Sevensense. Deductions from invoice amounts may not be made unless otherwise expressly agreed. Unless agreed upon otherwise, Sevensense will Deliver the Deliverables only upon arrival of the full amount on the Sevensense bank account.
Prices are exclusive of any sales tax, value-added tax, fee, duty or other governmental charge, however designated. All such taxes or duties shall be paid by Customer and any such taxes or duties required to be paid or collected by Sevensense shall be paid by Customer to Sevensense unless Customer provides Sevensense with a valid certificate of exemption.
Unless explicitly agreed upon otherwise, delivery dates shall be understood as mere estimates. Sevensense shall use commercially reasonable efforts to provide/deliver the Deliverables (the “Delivery”) in accordance with the estimated Delivery date. However, Sevensense’s failure to Deliver on the estimated Delivery date shall not be deemed a breach of this Agreement and Sevensense shall have no liability for the delay.
5. Obligations of the Customer
The Customer shall carry out all necessary tasks in preparation and support of the Delivery of the Deliverables, ensure that all necessary requirements and prerequisites are met in time and make all necessary documentation and information available to Sevensense. For example, for the provision of Services, (i) all mechanical, electrical and data communication interfaces which are required for the integration of Sevensense Products in customer machinery and robots shall be prepared prior to the execution of the Agreement and, (ii) all testing space, if necessary, should be made available.
In case the Customer made modifications to the Deliverables or the end product, the Customer shall be responsible that the Deliverables and the end product still work as intended after any updates provided by Sevensense, including the responsibility to manually tweak/update the configuration of the newer versions.
The Customer shall follow all instructions, assembly and processing instructions of Sevensense and/or auxiliary personnel of Sevensense and/or according to packaging, brochures and technical instructions concerning the Deliverables.
6.1. Delivery and Acceptance
Unless agreed upon otherwise, Sevensense will Deliver Products Free Carrier (FCA) Incoterms 2020, at the location agreed upon in the order and order confirmation.
Products shall be deemed accepted if Customer does not object within 5 calendar days after Delivery, but shall be subject to the warranty set forth in section 6.2 (Limited Warranty).
6.2. Limited Warranty
At Sevensense’s option Sevensense repairs, replaces, or keeps and refunds or credits Customer in the amount of the purchase price of any defective or nonconforming Product or component thereof up until 1 month after Delivery provided that Sevensense is promptly notified in writing with a detailed explanation of any alleged deficiencies upon discovery by Customer, Customer ships the Product or component thereof on its own costs to Sevensense and if Sevensense’s examination of the Product shall disclose to Sevensense’s satisfaction that such Product is defective or nonconform to applicable specifications unless the Product is damaged because of incorrect use.
Any other material warranty and any warranty of title (“Rechtsgewährleistung”) are hereby explicitly excluded.
6.3. Title and Risk of Loss
Title to the Products sold hereunder passes to Customer when such Products are when such Products are presented to Customer for shipment, from which point Customer is responsible for all risk of loss or damage.
6.3. Resale requirements
Customer agrees not to, nor permit any third party to, sell, provide, or otherwise dispose of any Product to any third party without Sevensense’s written approval. If Sevensense provides such approval, then unless otherwise expressly permitted in Sevensense’s approval, Customer may provide the Product only as an Integrated Product (as defined below) and in each case only to its purchasers who acquire such Integrated Products from Customer for their own internal use and are contractually obliged (by an agreement between Customer and the end user) (i) not to resale, transfer or distribute the Integrated Products to third parties, and (ii) not to reverse engineer the Integrated Products or its software. “Integrated Product” means a product that contains substantial material and technology in addition to the Product, in which the Product is physically and permanently integrated only as a subcomponent and not the primary aspect or functionality of such product.
The object and scope of the Services are listed in the respective contract.
Sevensense may, in its own choice, provide part of or all of the Services through its own employees and/or through subcontractors.
Unless explicitly provided otherwise in the offer, Sevensense shall only be liable to the Customer for careful performance of the Services, i.e. does not guarantee a specific result. If a specific work result has been promised, section 6.2 (Limited Warranty) shall apply analogously.
Sevensense and the Customer may agree on a leasing (loan for use) of certain Products, as specified in the respective contract (the “Leasing Objects”). If no duration of the lease is specified in the leasing contract, Sevensense may revoke the leasing contract upon giving 30 days' written notice. Unless agreed upon otherwise, Sevensense will make the Leasing Objects available at the seat of Sevensense and Customer shall return the Leasing Objects at the same location.
The ownership of Leasing Objects remains at all times with Sevensense.
The Customer is responsible to return the Leasing Objects in the same condition as they were received, save for normal wear and tear. Leasing Objects shall be handled with due care. In particular, the Customer undertakes to only use and handle the Leasing Objects in accordance with all instructions provided by Sevensense in any form, be it oral or written, and not make any modification or alteration to the Leasing Objects.
The Customer is not entitled to grant any right in connection with the Leasing Objects (including any right to use with or without remuneration) to other parties.
Upon receipt of the Leasing Objects, the Customer shall check the Leasing Objects for any damages and notify Sevensense in writing within 10 calendar days of any defects. Hidden defects that were already present in the moment of the handover but that are only discovered later, must be notified to Sevensense in writing within 5 calendar days after their discovery. Any defects that are not notified in accordance with the foregoing are deemed to have been caused by fault of the Customer, unless proven otherwise by the Customer.
The Customer shall inform Sevensense immediately in writing of the occurrence of any defects, software errors or other significant events in connection with the Leasing Objects.
The Customer is not entitled to pledge the Leasing Objects or to use them as security. In the event of seizure or other enforcement measures by third parties, the Customer shall be obliged to immediately inform the enforcement authority of Sevensense’s ownership and to immediately inform Sevensense of the seizure.
9. Embedded Software
The Deliverables may include software or firmware incorporated into or provided in connection with such Deliverables (“Embedded Software”). Subject to and during the term of the Agreement, Sevensense hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use the Embedded Software solely as embedded in the Deliverables, solely in object code form and solely in accordance with any instructions from Sevensense regarding the use of such Deliverables. Any Embedded Software is subject to copyright laws and international copyright treaties and is part of the Intellectual Property of Sevensense or its licensors. The Limited Warranty in Section 6.2 shall apply to Embedded Software accordingly. Any other material warranty and any warranty of title (“Rechtsgewährleistung”) are hereby explicitly excluded.
10. Open source Software
The Embedded Software may include open source software that is subject to the applicable open source license. If so, Sevensense informs Customer by (1) identifying the open source software components embedded and (2) including links to the applicable open source license terms.
Nothing in the Agreement limits any rights under or grants any rights superseding the applicable open source license terms. The Parties agree to comply with these terms.
11. Intellectual Property Rights
Sevensense shall retain all intellectual property rights including Know-how covering or embodied in the Deliverables and any improvements thereto (altogether “Intellectual Property”). In the event that Customer acquires any rights in or to any Intellectual Property, or any improvements thereto, covering the Deliverables or improvements thereto, Customer shall assign and hereby assigns all right, title and interest in such improvements and Intellectual Property rights to Sevensense at no cost. Sevensense shall have the right to integrate and use all improvements and associated Intellectual Property rights in the Deliverables without restriction. All Intellectual Property rights not expressly granted to Customer are expressly reserved by Sevensense. Customer receives no right or license, by implication, estoppel or otherwise, to any software, technology or Intellectual Property rights not embodied in the Deliverables, even if such other software, technology or Intellectual Property rights are useful or necessary in connection with the Deliverables.
Sevensense has the right to use all ideas, Sevensense Data (as defined below), methods, concepts and procedures solely or jointly conceived, made, developed or acquired by Sevensense in the course of the performance of this Agreement (“Know-how”), for the provision of similar Deliverables or services to other customers.
13. Sevensense Data
Sevensense is owner of all data related to the Deliverables including but not limited to debug information such as version numbers of the software, hardware serial numbers and information about the system (network connection configuration, models and firmware versions of third-party sensors connected to the system etc.), diagnostic and statistical data such as usage statistics, system statistics and performance and issues statistics, data related to support and further development such as sensor data streams, location data of the robot, sensor data, imagery (“Sevensense Data”). In case any such Sevensense Data includes information relating to an identified or identifiable natural person (“Personal Data”), such Personal Data shall also be considered as Sevensense Data and Customer hereby accepts their use in anonymized form, including use for product improvement and development of new products and services, improving support, training and developing machine learning algorithms, improving product performance and the like.
14. Confidential Information
Customer shall (i) treat as confidential information of Sevensense any non-public information received or learned by Customer hereunder or otherwise received or learned from Sevensense, including information regarding the non-public aspects of the Deliverables and Embedded Software, Sevensense’s business plans and technology, Sevensense Data and the terms of this Agreement, (ii) reasonably protect such information from disclosure and (iii) not use or disclose such information other than as permitted under this Agreement or expressly authorized by Sevensense in writing. This obligation shall survive the termination of the Agreement for an unlimited time.
15. No Reverse Engineering; Internal Use Only
Customer agrees not to, nor permit any third party to: (i) reverse engineer any Deliverable (including any software in any Deliverable); (ii) disassemble any Deliverable , including by removing any software, components or parts of components from such Deliverable or its respective housings other than for maintenance or repositioning of the sensors in accordance with Sevensense’s instructions unless Sevensense’s written approval was given; (iii) decompile, disassemble or otherwise attempt to derive the source code or logic underlying any Product including any software therein; (iv) copy or make any reproduction of any Deliverable in whole or in part through mechanical or other means; (v) alter or copy any software in any Deliverable; (vi) inspect or analyze any Deliverable other than for use in accordance with its documentation; (vii) use any Deliverable in any manner other than for personal use (if Customer is an individual) or for internal business purposes (if Customer is an entity or organization) (which may include use by Customer’s employees and agents in connection with Customer’s services for Customer’s customers) or (viii) permit any third party access to any Deliverable or facilitate or permit any third party to do any of the foregoing without Sevensense’s prior written approval. Customer shall ensure that none of its employees, officers, directors, consultants, subcontractors or other third parties will perform any of the above mentioned.
However, Customer may request the information available and necessary for the interoperability of software licensed by Sevensense with other software which was not developed by Sevensense.
16. Proprietary notices
Customer shall not remove any copyright, patent, trademark or other proprietary notices, markings or legends from the Deliverables (including any software in any Deliverable).
Customer acknowledges that the Products are not certified and can show unanticipated or erroneous behaviour. Using the Products on a vehicle without any additional security system responsible for stopping the vehicle in case of an obstacle or drop-off is not permitted and can lead to crash, injury or death. The Customer is responsible for correct usage and for safe operations of the Product. If the Products are not used in a correct and safe way, in accordance with the instructions or manuals (including maintenance in the required service intervals and regular checks of the functionality of the Products by the Customer) of Sevensense, Sevensense shall not be liable.
If the damage sustained by the Customer is directly attributable to a fault of Sevensense, Sevensense shall be liable, but only to the amount of the compensation received under the respective Agreement. However, in no case shall Sevensense be liable for any consequential or indirect damage, loss of profits, interruption or loss of business, lost goodwill and lost opportunity, or for any damage caused by its auxiliary persons (“Hilfspersonen”).
The above liability limitations shall not apply in cases of gross negligence or willful intent of Sevensense or in cases of bodily injury, death or where liability limitations are otherwise not permitted by the applicable law, in which cases the liability shall be limited to the maximum extent permitted by the applicable law.
18. Customer’s Indemnification Obligations
Customer shall indemnify, defend and hold harmless Sevensense, and Sevensense’s parent, subsidiary and affiliate companies, and their respective shareholders, officers, directors, employees, representatives and agents, from and against any and all third party claims, damages, and expenses (including reasonable attorney fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, contract, statute or otherwise arising out of the use, storage, sale, processing or other disposition of the Deliverables, supplies or materials used in connection with the Deliverables, or parts manufactured with the Deliverables, (i) if the action or inaction of Customer or its employees, customers or agents, or Customer’s design specifications, were a material or proximate cause of injuries or damages giving rise to claims against Sevensense, (ii) claims, damages and expenses relating in any way to autonomous usage (meaning that the Deliverables or Customer’s end product are used by Customer autonomously, i.e. if the end product is not remotely controlled and/or supervised by a person), or (iii) if the claim asserted is inconsistent with the limitation of warranties, limitation of liability and/or limitation of remedies set forth in this Agreement.
19. Force Majeure
A force majeure event is an event, circumstance or cause beyond the reasonable control of either of the Parties (the “Force Majeure Event”). The affected Party shall not be responsible for any failure or delay in performance of its respective obligations or for any loss, cost, damage, expense and penalty whatsoever to the extent due to a Force Majeure Event. Notwithstanding the foregoing, a Party's inability to make payment due to lack of funds shall not be considered a Force Majeure Event.
On the occurrence of a Force Majeure Event, the affected Party shall promptly give written notice to the other, and shall be excused from performance of the affected obligations for so long as the Force Majeure Event and the effects thereof continue. The Party affected shall make reasonable efforts to remove the Force Majeure Event as promptly as reasonably practicable and shall resume performance of its obligations hereunder forthwith upon the cessation of such Force Majeure Event and the effects thereof.
If performance is still delayed or prevented by a Force Majeure Event after the expiry of six (6) months from the date of first delay or prevention, either Party may terminate the Agreement for convenience by written notice to the other Party and without any obligation to pay damages to the other Party as a consequence of such termination.
20. Export Laws and Government Approval
Customer agrees to comply fully with all laws and regulations of Switzerland and other countries on export control (“Export Laws”) and shall assure that the Deliverables are not either: (i) exported, directly or indirectly, in violation of Export Laws, either to any countries that are subject to Swiss export restrictions or to any end user who has been prohibited from participating in Swiss export transactions by any federal agency of the Swiss government; or (ii) intended to be used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Notwithstanding anything to the contrary contained herein, all obligations of Sevensense and Customer are subject to obtaining all necessary approvals required by the applicable agencies of the governments of Switzerland and foreign jurisdictions. Sevensense and Customer shall cooperate with each other and shall provide assistance to the other as reasonably necessary to obtain any required approvals.
21. Restriction of Use
The Customer is not allowed to use the Deliverables for any kind of military applications.
22. Modification; Waivers; Severability
No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing signed by all parties hereto. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement, course of dealing or performance, or any other matter not set forth in an agreement in writing and signed by the parties. If any part or provision of this Agreement is held to be invalid or unenforceable by any competent arbitral tribunal, court, governmental or administrative authority having jurisdiction, the other provisions of this Agreement shall nonetheless remain valid. In this case, the invalid or unenforceable provision shall be substituted by a valid or enforceable provision that best reflects the economic intentions of the parties.
23. Applicable Law and Place of Jurisdiction
This Agreement and any dispute arising from the performance or breach hereof shall be governed by, construed and enforced in accordance with, the laws of Switzerland, without regard to conflicts of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.
Any dispute, controversy or claim arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of the courts of the city of Zurich, Switzerland.