Inertial Sense Terms and Conditions of Sale
Inertial Sense Inc.: Terms and Conditions of Sale
These Terms and Conditions of Sale (the “Terms and Conditions”) constitute an agreement between you (jointly and severally, the purchaser and any person or legal entity on whose behalf or at whose direction such purchaser is acting (the “Customer”)) and Inertial Sense Inc. (hereinafter “Inertial Sense”). Customer and Inertial Sense agree that the purchase, sale, and use of Inertial Sense hardware and software products (the “Products”) and any related services and support (the “Services”) provided hereunder are subject to these Terms and Conditions. Inertial Sense shall not be bound by Customer’s additional or different terms, including the terms of any purchase order or similar document provided by Customer.
Customer agrees that these Terms and Conditions shall become a legally binding contract upon the occurrence of any of the following acts: (a) Customer ordering or purchasing any Product or Service, (b) Customer providing to Inertial Sense a specification of assortments, delivery dates, shipping instructions, or instructions to bill and hold as to all or any parts of the Products, (c) Customer taking delivery of the whole or any part of such parts or Products, (d) Customer assenting to these Terms and Conditions in writing, orally, or by conduct, or (e) Customer consenting to these Terms and Conditions by means of an electronic signature or by affirmatively checking the box indicating Customer’s acceptance to these Terms and Conditions on the Inertial Sense website.
PRICING AND PAYMENT – All quoted prices are in US dollars, unless otherwise explicitly stated, and are valid for thirty (30) days. Product prices are exclusive of, and Customer shall be responsible for the payment of, all shipping charges, costs of freight, taxes, import fees, insurance, duties, value-added taxes, and the like.
Payment is due 30 days from the date of invoice unless otherwise negotiated in the purchase agreement. If the Customer delays payment, he shall be liable, without further notice for default interest at the rate of 6% per annum above the actual discount rate of the U.S. Federal Reserve Bank effective from the date on which payment was due. Checks and wire transfers do not constitute payment until they have cleared. All bank charges for wire transfer must be borne by the Customer. Inertial Sense Inc may at any time prior to shipment demand advance payment, satisfactory security, such as a confirmed and irrevocable letter of credit or a bank guarantee to ensure payment.
If at any time, Customer (i) is liquidated, dissolved, ceases to do business or otherwise terminates its business operations; (ii) becomes insolvent; (iii) makes a general assignment for the benefit of creditors; (iv) institutes or has instituted against it any proceeding under any Law relating to bankruptcy or insolvency or a receiver or trustee is appointed for all or a substantial part of its assets; or (v) fails to make a payment when due or defaults in any way, Inertial Sense may, at its option, alter terms of payment, declare all amounts owed by Customer past due, suspend credit and delay shipment, terminate any licenses granted here under, and pursue any other remedies available to Inertial Sense at law or under these Terms and Conditions. In such event, Customer agrees to indemnify and reimburse Inertial Sense for its reasonable expenses, including, but not limited to, collection fees, court costs and attorney fees associated with the collection of past-due balances.
ORDER ACCEPTANCE – Written purchase orders are required for all purchases greater than 25 units. Each purchase order shall constitute a firm offer and shall indicate specific products, quantity, price, shipping instructions, requested delivery dates, bill-to and ship-to addresses, and any other special instructions. Any contingencies contained in such order are not binding upon Inertial Sense. All orders are subject to acceptance by Inertial Sense, who will accept or reject orders according to Inertial Sense’s then current practices. If the order is a “Blanket or Call Off Order”, the initial release may be scheduled according to current lead times and the balance must be scheduled for delivery within 365 days from the date on the PO. At the end of 1 year, unshipped items will be shipped without additional notice to the customer.
ORDER CHANGES AND CANCELLATION – Purchase order changes affecting product configuration/options must be authorized by Inertial Sense in advance and may be subject to additional charges and/or price adjustments. Maximum period a blanket purchase order is valid is twelve (12) months. Additions to blanket purchase orders may be made within first thirty (30) days after the order is received. Due to purchasing commitments made by Inertial Sense in response to blanket orders, no reductions in initial blanket order quantities can be accepted. Changes to scheduled ship dates for blanket purchase orders must be made at least four (4) weeks in advance. All shipments due within four weeks are considered firm and cannot be changed. In the event that the Customer cancels all or parts of an order or fails to meet all obligations resulting from an order, causing the cancellation of an order or portion thereof, the Customer agrees to pay a cancellation fee of 50% of the product price as stipulated in the order confirmation. Recognizing that the damages to Inertial Sense arising from any cancellation or rescheduling of any order will be difficult to estimate, the parties agree that the aforementioned cancellation fee covers Inertial Sense expenses and is not intended as a penalty.
DELIVERY – Upon receipt of purchase order, Inertial Sense will provide an estimate of lead-time until delivery. While this is not a binding commitment, Inertial Sense will make every effort to make delivery based on this lead-time estimate. Each shipment released from a blanket must be at least equal to $500 or 8% of the order total whichever is larger. Accelerated deliveries may be available with an expedite fee. Late delivery does not entitle the customer to cancel the order or to claim damages. Inertial Sense is not obligated to pay any contractual penalty should it delay in delivering product.
LIMITED WARRANTY – Inertial Sense warrants that the Products will be free from defects in material and workmanship and materially conform to their applicable specifications for a period of one (1) year from the date of shipment by Inertial Sense (the “Warranty Period”), provided that such Products are operated under normal conditions and in accordance with their applicable specifications during such Warranty Period. This warranty does not apply to any Products that have been (i) subject to misuse, neglect, or abuse, (ii) improperly installed or maintained, (iii) repaired or altered by any party other than Inertial Sense; or (iv) acquired or used in violation of these Terms and Conditions. The warranty period for Products repaired or replaced will be the balance of the Warranty Period.
CUSTOMER REMEDIES – Inertial Sense sole obligation with respect to the foregoing Limited Warranty shall be to, at Inertial Sense option, repair or replace any defective Product. In the event Customer suspects that a Product is defective, Customer may return such Product to Inertial Sense together with a statement indicating Customer’s basis for suspecting that the Product is defective. Inertial Sense may examine the Product and determine whether the Product is defective. If Inertial Sense determines that the Product is defective and covered by the Limited Warranty, Inertial Sense will repair or replace the Product.
PRODUCT RETURNS – Customer may return any Product(s) within thirty (30) days of the day of receipt of such Product(s) for a full refund excluding costs for shipping and handling (customer assumes shipping risks). Returned Products will be accepted as long as the Products are unaltered, and undamaged, and all original package contents are returned. Customer shall contact Inertial Sense in writing to acquire a Return Merchandise Authorization (“RMA”) and RMA reference number. After an RMA reference number is issued to Customer by Inertial Sense, the Product must be packaged securely to ensure that it will not be damaged in transit. The RMA reference number must be prominently marked on the outside of the shipping package. Inertial Sense Inc – “Inertial Sense Technology” means any proprietary rights of Inertial Sense in the Products, Inertial Sense software (“Software”), which shall include all software provided by Inertial Sense, and any and all software embedded in the Products (“Embedded Software”), including (i) all inventions, techniques, know-how, drawings, designs, processes, machines, compositions of matter, articles of manufacture, data structures, functionality, formulas and algorithms, and related underlying intellectual property rights therein, and (ii) all proprietary rights in tooling, material or equipment Inertial Sense uses in the manufacture, testing or assembly of Products, in each case (i) or (ii) whether or not evidenced by registered copyrights, trademarks, or patents. As between Customer and Inertial Sense, Inertial Sense is the sole and exclusive owner of all Inertial Sense Technology. Customer’s only rights under the Inertial Sense Technology shall be to use the Products and Software for their intended commercial purpose and in accordance with user documentation, which may be provided from time to time by Inertial Sense (the “Intended Purpose”). Customer shall not directly or indirectly challenge the validity or Inertial Sense ownership of the Inertial Sense Technology. Customer agrees and acknowledges that Customer’s use of the Inertial Sense Technology shall be subject to the terms of the limited license granted herein. Except as expressly set forth in this Agreement, no rights under any intellectual property or other proprietary rights of Inertial Sense are implied or granted hereunder. All rights to Inertial Sense Technology not expressly granted to the Customer under these Terms and Conditions are reserved to Inertial Sense.
LICENSE – Inertial Sense hereby grants to Customer a non-exclusive, non-transferable, non- sublicensable, paid-up license (the “License”) under the Inertial Sense Technology to use the Products and the Software solely for their Intended Purpose. Customer may (a) use one (1) copy of the Software on one (1) computer or (b) use the Software on a multi-user or network system only if (i) the Software is expressly labeled for use on a multiuser or network system, or (ii) one (1) copy of the Software is obtained for each node or terminal on which the Software is to be used simultaneously. Customer shall not use, make, manufacture, or reproduce copies of Software or Embedded Software, except that Customer may make additional copies of the Software solely to the extent necessary for backup or archival purposes. Customer shall retain all copyright notices on all authorized copies of the Software and Embedded Software.
NO REVERSE ENGINEERING – Customer agrees that it shall not (nor shall it permit any third party under its direct or indirect control) attempt to reverse engineer, decrypt, disassemble, decompile, decipher, reconstruct or re-orient the source code, algorithms, logic or program code in any of Inertial Sense Products, including hardware, Software, Embedded Software, models or prototypes which are provided pursuant to these Terms and Conditions, including, without limitation, for purposes of designing, developing, manufacturing, or marketing a product that includes similar functionality to that of the Products or that otherwise competes with the product.
CONFIDENTIALITY – “Confidential Information” means any non-public information disclosed by Inertial Sense to Customer, either directly or indirectly, in writing, orally or by inspection of Products, Software or Embedded Software, which is confidential, trade secret or proprietary to Inertial Sense or any third party that has furnished it to Inertial Sense. Confidential Information shall specifically include: (a) all Inertial Sense Technology; (b) Inertial Sense non-public information, in whatever form, of a technical nature, including ideas, concepts, creations, technology, inventions, discoveries, developments, techniques, processes, know-how, drawings, designs, specifications, data, formulas and algorithms included in the Products, Software, and Embedded Software; and (c) Inertial Sense non-public information, in whatever form, of a business nature. Customer agrees: (i) to hold the Confidential Information in trust and strictest confidence; (ii) to use the Confidential Information only as necessary to implement and use the Products for their Intended Purpose; (iii) to not reproduce the Confidential Information; (iv) to keep the Confidential Information locked in a secure facility when not in use; and (v) to not to disclose, deliver, provide, disseminate or otherwise make available, directly or indirectly, any Confidential Information to any third party without first obtaining Inertial Sense express written consent. Customer shall take at least the same degree of care that it uses to protect its own most highly confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Confidential Information. The foregoing obligations shall not apply to any Confidential Information that: (I) was publicly known and generally available in the public domain prior to the time of disclosure by Inertial Sense; (II) was rightfully known by Customer, without restriction, prior to the time of first disclosure by the Disclosing Party; (III) was independently developed by Customer without the use of the Confidential Information; or (IV) was rightfully obtained by Customer, without restriction, from a third party who has the right to make such disclosure and without breach of any duty of confidentiality to the Disclosing Party. Customer may disclose Confidential Information to the extent required by law, provided that Customer shall first give reasonable advance notice of such compelled disclosure to Customer, and shall cooperate with the Inertial Sense in connection with any efforts to prevent or limit the scope of such disclosure and/or use of the Confidential Information.
REMEDIES – Customer agrees that, due to the unique nature of the Confidential Information, its unauthorized disclosure or use will cause irreparable harm and significant injury to Inertial Sense, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Customer agrees that Inertial Sense, in addition to any other available remedies, shall have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of Customer’s obligations with regard to Confidential Information under these Terms and Conditions without the necessity of posting any bond or other security. Customer shall notify Inertial Sense in writing immediately upon becoming aware of any such breach or threatened breach.
LIMITATION OF LIABILITIES – THE PRODUCTS ARE PROVIDED “AS IS” AND IN NO EVENT SHALL INERTIAL SENSE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS OR OPPORTUNITY, PERSONAL INJURY, LOSS OF LIFE, OR SIMILAR DAMAGES WHICH MAY ARISE IN CONNECTION WITH ANY INERTIAL SENSE PRODUCTS) ARISING FROM OR RELATING TO THE SALE, DELIVERY OR USE OF THE PRODUCTS. INERTIAL SENSE TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT TO CUSTOMER OR ANY THIRD PARTY (INCLUDING INDEMNITY OBLIGATIONS), WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO INERTIAL SENSE DURING THE PRIOR 12-MONTH PERIOD FOR THE PRODUCT GIVING RISE TO SUCH LIABILITY.
SHIPMENT – Title to all purchased material and risk of loss therefore is passed from Inertial Sense to Customer at the time of shipment from Inertial Sense facility. Unless otherwise agreed upon in writing, all purchased material will be shipped uninsured. Inertial Sense may request partial shipment and invoice accordingly.
ASSIGNMENT – Customer may not assign any rights or delegate any duties hereunder without the prior written approval of Inertial Sense and any attempt to assign any rights, duties or obligations hereunder without Inertial Sense written consent will be void. Inertial Sense may assign all or any part of its rights to payment without Customer’s consent and may assign all its rights and delegate all its duties in connection with these Terms and Conditions.
CUSTOMER’S REPRESENTATIONS AND WARRANTIES – Customer represents,warrants, and covenants that: (1) Customer will use the Inertial Sense Products solely for their Intended Purposes, in accordance with applicable law and these Terms and Conditions; (2) in accordance with Section 7 of these Terms and Conditions, Customer will not reverse engineer the Products for the purposes of developing a product that is substantially similar to or in competition with the Products; and (3) all information provided by Customer, including, without limitation, Customer’s identification information and information relating to entities with which Customer is associated is true and correct.
INDEMNIFICATION BY CUSTOMER –Customer shall defend, indemnify and hold harmless Inertial Sense and its and their respective directors, employees, officers, agents, successors and assigns (each, an “Indemnitee”) from and against any and all damages, losses, liabilities, costs, expenses, penalties, judgments, settlements, claims, or causes of action including reasonable attorneys’ fees and disbursements, professional fees, and court costs actually incurred by an Indemnitee as a result of, arising out of, or in connection with: (i) any breach by Customer of any representation, warranty, or other obligation of Customer under these Terms and Conditions; (ii) death or bodily injury to any person or destruction or damage to property arising out of any Customer product; (iii) any gross negligence or willful misconduct by Customer or its affiliates, or their respective directors, officers, employees, or agents.
FORCE MAJEURE – Inertial Sense will not be liable for any failure to perform due to unforeseen circumstances or causes beyond Inertial Sense reasonable control, including, but not limited to, natural disasters, war, terrorism, riot, embargoes, government acts, delay in delivery or inability to deliver by Inertial Sense vendors due to vendor force majeure, fire, flood, accident, strikes, or inability to secure transportation, fuel, or energy. In the event of force majeure, Inertial Sense time for delivery or other performance will be extended for a period equal to the duration of the delay caused thereby.
EXPORT LAWS – The Products are subject to control under the U.S. Export Administration Regulations and other applicable U.S. export control laws and regulations. Customer agrees that it will not export, reexport or transfer the Products via any means to any prohibited destination, entity or individual without the required export license(s) or authorization(s) from the U.S. Government. Inertial Sense reserves the right not to ship the Products ordered if, at any time, Inertial Sense believes that such shipment may violate U.S. export control laws.
CHOICE OF LAW – This document and any purchases of Inertial Sense Products covered by it shall be governed by the laws of the state of Utah, U.S.A., without regard to conflicts of laws rules. Any legal action related to these Terms and Conditions and any purchases of Inertial Sense Products covered by it shall be brought in the courts of the state of Utah or in the U.S. District Courts situated there. The parties hereby (i) consent to the exclusive jurisdiction of such courts in any such legal action, (ii) agree that service of process in any such action shall be effected in accordance with the statutes of the state of Utah, as appropriate, and (iii) waive any objections either party may now or hereafter have to the venue of any such legal actions in such courts.
OTHER – These Terms and Conditions may not be superseded, cancelled, modified, or amended except in a writing signed by an officer of each party. No other act, document, usage, or custom will be deemed to supersede, cancel, modify or amend these Terms and Conditions. If any provision of these Terms and Conditions are determined to be invalid, illegal, or unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties and the remaining provisions will remain in full force and effect.
Latest revision: January 2018
