GENERAL TERMS AND CONDITIONS FOR THE SALE OF PRODUCTS 1. Applicability.
(a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale by 4i Platform, Inc., a Delaware corporation (“Seller”) of Seller-branded hardware products (“Products”) to the buyer identified in the Sales Quotation and/or Acknowledgment (as each defined below) to which these Terms are attached or incorporated by reference (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by authorized representatives of both parties is in existence covering the sale of the Products covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
(b) The accompanying quotation of sale (the “Sales Quotation”) provided to Buyer, and/or sales order acknowledgement (“Acknowledgement”), and/or other written or electronic confirmation of sale, and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. For e-commerce sales through Seller’s website, the Sales Quotation and Acknowledgement shall be provided through electronic means via the website, in which case you accept and agree to be bound by these Terms by ordering Products through Seller’s website. For clarification, after the Acknowledgement is received by Buyer, the order for Products is binding and cannot be cancelled by Buyer for any reason and the full purchase price amount set forth in the Acknowledgement shall be due and payable by Buyer to Seller pursuant to the payment schedule set forth in the Acknowledgement unless otherwise agreed to in writing by Seller. All terms and conditions contained in any prior or contemporaneous oral or written communication which are different from, or in addition to, the terms and conditions in this Agreement are hereby rejected and shall not be binding on Seller, whether or not they would materially alter this Agreement. These Terms prevail over any of Buyer’s terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Notwithstanding anything herein to the contrary, all orders for Products must be for a minimum purchase price of $100 or such orders will be rejected by Seller.
2. Delivery.
(a) The Products will be delivered within a reasonable time after Seller provides Buyer the Acknowledgment, subject to availability of finished Products. Seller will endeavor to meet delivery schedules requested by Buyer, but in no event shall Seller incur any liability, consequential or otherwise, for any delays or failure to deliver as a result of ceasing to manufacture any product or any Force Majeure Event. Delivery schedules set forth in the Acknowledgment are Seller’s good faith estimate on the basis of current schedules. In no event shall Seller be liable for special or consequential damages resulting from failure to meet requested delivery schedules.
(b) Unless otherwise agreed in writing by the parties in the Acknowledgement, Seller shall make the Products available for Buyer’s carrier to pick up using Seller’s standard methods for packaging such Products. Buyer shall take delivery of the Products
within three (3) days of Seller’s written notice that the Products are available for pick up at Seller’s plant in Bridgeville, Pennsylvania, USA (the “Shipping Point”). Buyer shall be responsible for all loading, freight and insurance costs, and shall provide the equipment and labor reasonably suited for receipt of the Products at the Shipping Point. Seller shall not be liable for any delays, loss or damage in transit.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer, if applicable. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
(d) If for any reason Buyer fails to accept delivery of any of the Products on the date fixed pursuant to Seller’s notice that the Products have been delivered at the Shipping Point, or if Seller is unable to deliver the Products at the Shipping Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Products until Buyer picks
them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). 3. Non-delivery.
(a) The quantity of any installment of Products as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
(b) Seller shall not be liable for any non-delivery of Products (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within three (3) days of the date when the Products would in the ordinary course of events have been received.
(c) Any liability of Seller for non-delivery of the Products shall be limited to (in Seller’s sole discretion) replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
4. Shipping Terms. Unless indicated otherwise in the Acknowledgment, delivery shall be made EXW (Incoterms 2020), the Shipping Point. If no delivery terms are specified on the Acknowledgement, the method of shipping will be in the sole discretion of Seller. Unless directed in writing otherwise by Buyer, full invoice value will be declared for all shipments.
5. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Products at the Shipping Point. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.
6. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
7. Inspection and Rejection of Nonconforming Products. (a) Buyer shall inspect the Products within two business (2) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Products” means only the following: (i) product shipped is different than identified in Buyer’s Acknowledgement; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) Seller will only accept Nonconforming Products that are returned under Seller’s Return Material Authorization procedures then in effect (“RMA”). Buyer shall obtain a RMA number from Seller prior to returning any Nonconforming Products and return the Nonconforming Products prepaid and insured to Seller at Shipping Point or to such other location as designated in writing by Seller for the examination to take place there. If Seller reasonably verifies Buyer’s claim that the Products are Nonconforming Products and that the nonconformance did not develop from use from Buyer, Seller shall, in its sole discretion replace such Nonconforming Products with conforming Products. No returns for Nonconforming Products are allowed after thirty (30) days from the original shipping date.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 7(a) are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section 7(a) and Section 14, all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products
purchased under this Agreement to Seller.
8. Price.
(a) Buyer shall purchase the Products from Seller at the prices (the “Prices”) set forth in Seller’s published catalogue literature in force as of the date of the Sales Quotation. However, the Prices shown in such catalogue literature or any other publication are subject to change without notice. Unless specifically stated to the contrary in the Sales Quotation, quoted Prices and discounts are firm for thirty (30) days from the date of the Sales Quotation. Unless otherwise stated, prices are quoted EXW (Incoterms 2020), Shipping Point. Unless otherwise stated in the Acknowledgement, if the Prices should be increased by Seller before delivery of the Products to a carrier for shipment to Buyer, then these Terms shall be construed as
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if the increased prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices. (b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes (present or future); provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
9. Payment Terms.
(a) Unless otherwise provided in the Acknowledgement, if Buyer has approved credit with Seller, Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller’s invoice. If Seller does not have Buyer’s financial information and has not provided pre-approved credit terms for Buyer, the payment must be made in cash with order or C.O.D. in US dollars. If Buyer has approved credit terms, the payment may be made by cash with order, wire transfer of immediately available funds, or check in US dollars. Certain products require a down payment. Any payment terms other than set forth above will be identified in the Acknowledgement. Notwithstanding anything herein to the contrary, all prepaid deposits and down payments are non-refundable. If a deposit is not received when due, Seller reserves the right to postpone manufacturing of Products until payment is received. Seller will not be responsible for shipment delays due to deposit payment delays.
(b) In Seller’s sole discretion, Seller may assess Buyer interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise. 10. Trial Period
(a) Seller, in its sole discretion, may provide
hardware Products on a trial basis for Buyer to use for a limited period as specified in the Sales Quotation ( “Trial Period”). Buyer must either purchase the Products at the quoted Price in accordance with Section 9 upon expiration of the Trial Period or return the Products by the end of the Trial if Buyer does not want to purchase the Products. Buyer shall notify Seller of its decision to return or purchase the Product before the end of the Trial Period. If Buyer obtains the Products on a trial basis, but does not return the Products at the end of the Trial Period, Buyer will be deemed to have elected to purchase the Products at the quote Price and shall be obligated to pay Seller in accordance with Section 9. Any Product being used on a trial basis shall be returned prepaid and insured to Seller at Shipping Point or to such other location as designated in writing by Seller, in accordance with Seller’s packaging and shipping instructions.
(b) During the Trial Period, all Products remain the property of Seller at all times. Buyer shall not make any alterations, additions, or modifications to the Products. Title to the hardware Products shall not pass to Buyer under any circumstances and shall remain with Seller. Buyer hereby grants to Seller, and Seller shall retain, a first priority purchase money security interest in the Products and their proceeds (including accounts receivable), which security interest shall be superior to any other security interest granted or created by Buyer and shall be a first lien on the Products. This security interest shall continue until Seller receives full payment of the purchase price of the Products . Buyer agrees to execute any document appropriate or necessary to perfect the security interest of Seller, or in the alternative, Seller may file a UCC financing statement.
(c) Should Buyer be in default or should there be a good reason to suspect that Buyer may default on any of its obligations, Seller shall be entitled to immediately remove the Products belonging to it from Buyer’s possession. Seller shall have the right to enter Buyer’s premises to repossess the Products if such are not returned to Seller immediately upon termination of the Trial Period, or if Buyer has not made full payment to Seller.
(d) Buyer undertakes to insure and keep insured against loss, damage, and theft all the Products delivered under retention of title.
(e) Upon termination of the Trial Period, Buyer shall return the Products to Seller in good working order, excluding normal wear and tear. Buyer must purchase the Products, even during the Trial Period, if Seller finds that Buyer either: (i) improperly, negligently, or injudiciously used or damaged the products, or (ii) makes modifications or allows modifications to be made to the Products without Seller’s consent.
(f) Product provided to Buyer on a trial basis is provided free of charge during the Trial Period and is provided “As Is” without warranty of any kind.
11. Intellectual Property; Software License.
(a) To the extent that any Products provided under this Agreement contain software, whether pre-installed, embedded, in read only memory, or found on any other media or other form (“Software”), such Software and accompanying documentation are licensed to Buyer, not sold and shall remain the sole and exclusive property of Seller or third party licensors of Seller. Seller grants Buyer a non-exclusive license to use the Software solely as provided in and in connection with the use of the Products in which such Software is contained and in accordance with any applicable user documentation provided with such Products and subject to the provisions of this Agreement. Certain of Seller’s Products may include third party software such as computer operating systems. Licenses to such third party software are subject to the terms and conditions of any applicable third party software license agreements. Unless identified in the Acknowledgement, no license is granted by Seller with respect to such third party software products that may be provided with the Products (if any). Seller makes no warranties regarding any third party software that may accompany the Products or otherwise and such software is explicitly included in the definition of Third Party Products below.
(b) Buyer shall not copy, modify, or disassemble, or permit others to copy, modify, or disassemble, the Software, nor may Buyer modify, adapt, translate, reverse assemble, decompile, or otherwise attempt to derive source code from the Software. Buyer shall not transfer possession of the Software except as part of, or with, the Products, and each such transfer shall be subject to the restrictions contained herein. Buyer may not sublicense, rent, loan, assign or otherwise transfer the Software or documentation, and Buyer shall retain on all copies of the Software and documentation all copyright and other proprietary notices or legends appearing therein or thereon. Seller may terminate this license upon written notice for any violation of any of the terms of this license or any material breach of any provision of this Agreement. Buyer shall immediately discontinue use of the Software upon any termination of this license or Agreement. This license shall terminate upon any termination of the Agreement.
(c) All patents, trademarks, copyrights or other intellectual property rights embodied in the Products, including without limitation the Software, are owned by Seller and its licensors. Seller and its licensors retain all right, title and interest in such intellectual property rights. Except as expressly set forth herein, no license rights or ownership in or to any of the foregoing is granted or transferred hereunder, either directly or by implication. ALL RIGHTS RESERVED.
(d) If Buyer is the United States Government or any agency thereof, each of the components of the Software and user documentation are a “commercial item,” and “computer software” as those terms are defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all United States government Buyers acquire only those rights in the Software and user documentation that are specified in this Agreement.
12. Limited Warranty.
(a) All Products sold to Buyer are subject to Seller’s limited warranty set forth at https://4iplatform.com (the “Warranty”).
13. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, LOSS OF INFORMATION OR DATA, OR PERSONAL INJURY OR DEATH ARISING IN ANY WAY OUT OF THE
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MANUFACTURE, SALE, USE, OR INABILITY TO USE ANY PRODUCTS, SOFTWARE OR SERVICE, OR ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER.
14. [Return Products Policy. Seller’s products may be returned to Seller for credit within sixty (60) days of shipment subject to the following conditions.
(a) In order to return products for credit, Buyer must obtain a RMA number from Seller. Upon receipt, it must be executed by an authorized person and then returned with the Products. Products returned to Seller without a RMA will be returned at Buyer’s expense.
(b) Products are to be returned to Seller at Shipping Port with Freight Prepaid. Seller will not accept collect shipments. (c) Restocking fees will be assessed in accordance with the following schedules: (i) Products returned within the first thirty (30) days from shipment date will be restocked less twenty percent (20%) of the amount billed on the original invoice. (ii) Productsreturned over thirty (30) days of shipment but less than sixty (60) days will be restocked less thirty percent (30%) of the amount billed on the original invoice. (iii) No returns are allowed after sixty (60) days from the original shipping date.
(d) The restocking fees set forth above are the minimum fees. If a returned Good requires rework to restore it to a saleable condition, further charges will be assessed. Seller’s quality assurance department will document the condition of the Products
when received by Seller and report their findings to Buyer. (e) Notwithstanding the foregoing provisions of this Section 14, Products that have been used cannot be returned, are not eligible for any credit and cannot be restocked. 15. Compliance with Law and Indemnification. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer. Products, services and technical data delivered by Seller shall be subject to U.S. export controls. Buyer shall, and shall cause its customers to, obtain all licenses, permits and approvals required by any government and shall comply with all applicable laws, rules, policies and procedures of the applicable government and other competent authorities. Buyer will indemnify and hold Seller harmless for any violation or alleged violation by Buyer of such laws, rules, policies or procedures. Buyer shall not transmit, export or re-export, directly or indirectly, separately or as part of any system, the Products or any technical data (including processes and services) received from Seller, without first obtaining any license required by the applicable government, including without limitation, the U.S. government. Buyer also certifies that none of the Products or technical data supplied by Seller under this Agreement will be sold or otherwise transferred to, or made available for use by or for, any entity that is engaged in the design, development, production or use of nuclear, biological or chemical weapons or missile technology. No Buyer information will be deemed “technical data” unless Buyer specifically identifies it to Seller as such. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products. For all international shipments, Seller requires that all required Export Control documentations, including Form BIS-711 Statement by Ultimate Consignee and Purchases, are submitted by Buyer along with the purchase order. Seller reserves the right to postpone shipment until all documentations are completed and submitted to Seller. Seller will not be responsible for shipment
delays due to non-compliance by Buyer of the foregoing two sentences.
16. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
17. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Confidential Information. All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section 18. This Section 18 does not apply to information that is: (a) in the public domain through no fault of Buyer; (b) known to Buyer at the time of disclosure without restriction as evidenced by its records; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
19. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage (each a “Force Majeure Event”), provided that, if the event in question continues for a continuous period in excess of thirty (30) days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
20. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section 20 is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
21. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
22. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
23. Governing Law and Dispute Resolution. This Agreement, and performance or breach hereunder, shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to choice or conflicts of law rules. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration conducted in or around
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Pittsburgh, Pennsylvania in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered may be entered in any court having jurisdiction. The arbitrator may award costs and reasonable attorneys' fees to the prevailing party. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Products, the application of which is hereby expressly excluded..
24. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Acknowledgement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, upon confirmation of delivery by nationally recognized overnight courier or upon forty-eight (48) hours after being sent by certified or registered mail (as applicable), and (b) if the party giving the Notice has complied with the requirements of this Section 24.
25. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
26. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Compliance with Laws, Confidentiality, Governing Law, Dispute Resolution, Survival, and the restrictions on Software in Sections 11(b), (c) and (d).
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