Terms of Sale
These Terms of Sale (“Agreement”) are entered between Sevensense Robotics Ltd. having its principal place of business at Hardturmstrasse 123, Zurich, 8005, Switzerland (“Sevensense”) and the purchasing entity (“Buyer”).
1. Effect of Purchase Order and Other Documents
Sevensense’s quotations are expressly made conditional on Buyer’s assent to this agreement which represents the sole and exclusive terms and conditions upon which Sevensense offers to sell products to Buyer. This Agreement shall prevail over any conflicting or additional terms or conditions of any purchase order or other document provided by Buyer in connection with the ordering of any products from Sevensense (“Products”). Notwithstanding Sevensense’s acceptance of any orders from Buyer, any conflicting or additional terms in any such documents of Buyer are hereby deemed to be material alterations and notice of objection to and rejection of them is hereby given.
2. Shipment and Acceptance
Sevensense will ship the Products sold hereunder Ex-Works (EXW) - Incoterms 2020. Sevensense. Buyer is responsible for all freight, handling, loading, insurance and other transportation charges. Sevensense may select which carrier Buyer will use to ship the Products, and such carrier shall be deemed to act as Buyer’s agent, and the cost of such carrier shall remain Buyer’s responsibility. Products shall be deemed accepted upon delivery, but shall be subject to the warranty set forth in Section 13 (Limited Warranty). Sevensense shall use commercially reasonable efforts to ship the Products in accordance with the estimated shipment date provided in Sevensense’s acknowledgement. However, Sevensense’s failure to ship on the estimated shipment date shall not be deemed a breach of this Agreement and Sevensense shall have no liability for the delay.
3. Title and Risk of Loss
Title to the Products sold hereunder passes to Buyer when such Products are presented to Buyer for shipment, from which point Buyer is responsible for all risk of loss or damage.
4. Prices and Payment
Sevensense may change prices for the respective Products by informing Buyer in writing, provided that the new prices shall apply only to purchase orders submitted after Buyer’s receipt of the new pricing.
Terms of payment are net thirty (30) days from the day of Buyer’s receipt of the invoice. All payments shall be made in Swiss Francs by bank wire transfer in immediately available funds to a bank account designated by Sevensense. Only upon arrival of the full amount on the Sevensense bank account, Sevensense will ship the products.
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 Buyer and any such taxes or duties required to be paid or collected by Sevensense shall be paid by Buyer to Sevensense unless Buyer provides Sevensense with a valid certificate of exemption.
7. Embedded Software
The Products may include software or firmware incorporated into or provided in connection with such Products (“Embedded Software”). Sevensense hereby grants Buyer a limited, non-exclusive license to use the Embedded Software solely as embedded in the Product, solely in object code form and solely in accordance with any instructions from Sevensense regarding the use of such Product, and subject to this Agreement. Any Embedded Software is subject to copyright laws and international copyright treaties and is the intellectual property of Sevensense or its licensors. The Embedded Software is licensed, not sold, and the license to the Embedded Software is only the express, written license agreement for such software provided by Sevensense. Such software license is personal to Buyer, is non-assignable and terminates in the event that Buyer returns or otherwise disposes of the Product.
8. Intellectual Property Rights
Sevensense shall retain all intellectual property rights covering or embodied in the Products and any improvements thereto. In the event that Buyer acquires any rights in or to any intellectual property, or any improvements thereto, covering the Products or improvements to the Products, Buyer shall assign and hereby assigns all right, title and interest in such improvements and intellectual property rights to Sevensense. Sevensense shall have the right to integrate and use all improvements and associated intellectual property rights in the Products without restriction. All intellectual property rights not expressly granted to Buyer are expressly reserved by Sevensense. Buyer receives no right or license, by implication, estoppel or otherwise, to any software, technology or intellectual property rights not embodied in the Products, even if such other software, technology or intellectual property rights are useful or necessary in connection with the Products.
9. Confidential Information
Buyer shall (i) treat as confidential information of Sevensense any non-public information received or learned by Buyer hereunder or otherwise received or learned from Sevensense, including information regarding the non-public aspects of the Products and Embedded Software and Sevensense’s business plans and technology, (ii) reasonably protect such information from disclosure and (iii) not use or disclose such information other than as expressly authorized by Sevensense in writing.
10. No reverse engineering; internal use only
Buyer agrees not to, nor permit any third party to: (i) reverse engineer any Product (including any software in any Product); (ii) disassemble any Product, including by removing any software, components or parts of components from such Product 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 Product in whole or in part through mechanical or other means; (v) alter or copy any software in any Product; (vi) inspect or analyze any Product other than for use in accordance with its documentation; (vii) use any Product in any manner other than for personal use (if Buyer is an individual) or for internal business purposes (if Buyer is an entity or organization) (which may include use by Buyer’s employees and agents in connection with Buyer’s services for Buyer’s customers) or (viii) permit any third party access to any Product or facilitate or permit any third party to do any of the foregoing without Sevensense’s prior written approval.
11. Resale requirements
Buyer 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, Buyer may provide the Product only as an Integrated Product (as defined below) and in each case only to its purchasers who acquire such Products from Buyer for their own internal use and not for resale, transfer or distribution to third parties (“End User(s)”). “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.
12. Proprietary Notices
Buyer shall not remove any copyright, patent, trademark or other proprietary notices, markings or legends from the Products.
13. Limited Warranty and Liability
Buyer acknowledges that the Products are not certified and can show unanticipated or erroneous behavior. 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 buyer is responsible for correct usage and for safe operations of the Product. At Sevensense’s option Sevensense repairs, replaces, or keeps and refunds or credits Buyer in the amount of the purchase price of any defective or nonconforming Product or component thereof up until 1 month after receipt of the Buyer provided that Sevensense is promptly notified in writing with a detailed explanation of any alleged deficiencies upon discovery by Buyer, Buyer ships the Product or component thereof on its (Buyer’s) own costs to Sevensense and if Sevensense’s examination of the Product shall disclose to Sevensense satisfaction that such Product is defective or nonconform to applicable specifications unless the Product is damaged because of incorrect use.
Sevensense does not offer any additional warranty which is hereby explicitly excluded.
Sevensense’ liability is excluded to the maximum extent permitted per law. Sevensense shall in particular not be liable for any loss or damage caused by its associates or any loss or damage arising out of or connection with the use of the Product.
14. Buyer’s Indemnification Obligations
Buyer 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 Products, supplies or materials used in connection with the Products, or parts manufactured with the Products, (i) if the action or inaction of Buyer or its employees, customers or agents, or Buyer’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, and/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.
15. Applicable Law and Place of Jurisdiction
The warranty disclaimers and limitations of liability set forth in this Agreement shall not apply to the extent prohibited by applicable law, in which case Sevensense’ warranty and liability shall be limited to the maximum extent permitted by applicable law. Without limiting the foregoing, to the extent required by applicable law, the foregoing limitations shall not apply to claims due to fraud, bodily injury, or death. 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.
16. Export Laws and Government Approval
Buyer agrees to comply fully with all laws and regulations of Switzerland and other countries (“Export Laws”) and shall assure that the Products 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 the 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 Buyer are subject to obtaining all necessary approvals required by the applicable agencies of the governments of Switzerland and foreign jurisdictions. Sevensense and Buyer shall cooperate with each other and shall provide assistance to the other as reasonably necessary to obtain any required approvals.
17. Restriction of use
The Buyer is not allowed to use the Product for any kind of military applications.
18. 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.
19. Entire Agreement
This Agreement between the parties constitutes the entire agreement, with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings or agreements, whether written or oral, between Sevensense and Buyer with respect to such subject matter.