Terms & Conditions. for the FINNEY TM pre-order program

Transcription

1 Terms & Conditions for the FINNEY TM pre-order program

2 CONTENT 1. General 2. Intellectual Property and License 3. Ordering and Delivery. Price and Payment 5. Taxes. Risk and Title 7. Restrictions 8. Cancellations, Returns and Refunds 9. Limitation of Remedies and Damages 10. Export Compliance 11. Force Majeure 12. General

3 TERMS AND CONDITIONS FOR SALE 1. General 1.1. In these Terms and Conditions ( Terms ): Available Product means the Pre-order Product once it is made available by Seller for shipment to Buyer; Buyer means the person, firm, company or other organization who or which has ordered Products from the Seller; Pre-order Product means the Seller s mobile phone known as Finney which is in development and available for pre-order purchase by Buyer; Product means, unless expressly stated otherwise in the Terms, both Available Product and Pre- Order Product; Seller means Sirin Labs AG or any of its affiliate referred to in the final written offer, quotation or order acknowledgement or, if none, the company making the supply; and Software any firmware, software or data compilations provided to the Buyer by the Seller in connection with the set-up and operation of the Seller s Product. For the avoidance of doubt, Software shall not include any "open source" firmware, software or data compilations, as any such "open source" firmware, software or data compilations will be subject to the terms and conditions set out in the relevant "open source" license. Transaction Processing Services means billing, collection and payment services performed in connection with the purchase of the Product Acceptance of all purchase orders is expressly made conditional upon these Terms, without modification or addition. Seller expressly disclaims any other terms and conditions of sale and unless agreed otherwise in writing by both parties, these Terms shall constitute the final, complete and exclusive agreement of the parties with respect to all sales of the Product by Seller to Buyer. Notwithstanding anything herein to the contrary, any purchase, use or download by Buyer of any Product and/or Software shall constitute an irrevocable acceptance of these Terms. A Buyer that does not agree to be bound by these Terms shall return the Product and uninstall the Software. 2. Intellectual Property and License: As between the parties, all right, title and interest to any intellectual property rights embodied in the Product (including the Software) and all inventions, works of authorship, derivative works, developments or improvements thereof shall remain with Seller. Subject to the terms and conditions of these Terms, Seller grants Buyer a limited, non exclusive, non transferable license, without the right to sublicense, to internally use the Software and related documentation solely to support Buyer s use of the Product. SIRIN LABS TERMS & CONDITIONS FOR FINNEY TM PRE-ORDER V1.2 3

4 3. Ordering and Delivery: Buyer shall order the Product by submitting the purchase order, as provided by Seller in Seller s website. This purchase order may not be cancelled or rescheduled by Buyer once Seller has shipped the Available Product. Each purchase order shall include a description of the ordered Product, including: (i) quantity, (ii) total cost in accordance with Seller s applicable quotation, (iii) shipping location (solely within the territories in which such sale is lawful, or in which Seller is licensed and certified to sell, as may be amended from time to time), (iv) if the order is for an Available Product, requested shipping date (in accordance with the standard lead time of 21 days from Seller s acceptance of full payment from Buyer, at Seller s account and subject to availability), (v) method of delivery, and (vi) requested packaging if any. Seller s acceptance of purchase orders and shipments are subject to availability and US export regulations. No order shall bind Seller until accepted and confirmed by Seller via confirmation. Seller may accept or reject any order submitted by Buyer. Seller shall have no liability to Buyer as a result of such refusal of any such orders submitted. Seller reserves the right, subject to prior written notice, to make any change in the specification of the Products, which does not materially affect the installation, performance or price thereof. Seller will use reasonable commercial efforts to approve or reject purchase orders within 3 business days from issuance date. Seller shall deliver the Available Product by CPT (as defined in INCOTERMS 2010 Edition) to the shipment address provided by Buyer in the applicable purchase order. Seller shall make commercially reasonable efforts to meet the date quoted or acknowledged with respect to the Available Product; however, Buyer understands that delivery is dependent on third parties who are outside Seller s control and thus, in no event will Seller be liable for any delays. In the event of any such delay, the date of delivery shall automatically be extended for a period equal to the time lost by reason of the delay. Seller reserves the right to cancel a purchase order if there is a material breach by Buyer of the provisions of these Terms with respect to the applicable purchase order.. Price and Payment: Prices for the Product and payment terms are set forth in the applicable purchase order. Seller and/or its payment processing partners may collect a transaction processing fee for Transaction Processing Services. Even after Seller s acceptance of an order, shipments or deliveries will, at all times, be subject to Seller s approval and Seller may at any time decline to make any shipments or deliveries until receipt of payment or upon additional terms and conditions or security satisfactory to Seller. Payments due hereunder shall not be subject to any set-off for claims by Buyer. 5. Taxes: Buyer shall pay any present or future excise, sales, use or similar tax and charges, including duty fees and taxes and Buyer agrees to indemnify Seller against liability for payment of such taxes. Such taxes, when applicable, will appear as separate additional items on the invoice. 5. Taxes: Buyer shall pay any present or future excise, sales, use or similar tax and charges, including duty fees and taxes and Buyer agrees to indemnify Seller against liability for payment of such taxes. Such taxes, when applicable, will appear as separate additional items on the invoice.. Risk and Title: The risks of loss of and damage to the Available Products shall transfer to Buyer in accordance with agreed delivery term. Full title to the Products shall pass to the Buyer on full payment. SIRIN LABS TERMS & CONDITIONS FOR FINNEY TM PRE-ORDER V1.2

5 7. Restrictions: Except as explicitly provided in these Terms or expressly permitted by applicable law, Buyer will not, and will not permit or authorize any other third party to: (a) disassemble or reverse engineer the Product, including the Software; (b) copy, modify, enhance or otherwise create derivative works of the Product; (c) tamper with any security features of the Product; or (d) remove any notices (including copyright or patent notices) from the Product. Buyer represents and warrants that the Product will not be used, made available for use, or diverted to use in any activities relating to the construction, design, development, fabrication, maintenance, operation, stockpiling, testing or use of: (i) nuclear weapons or nuclear explosive devices, or facilities or components of facilities for chemical processing of irradiated special nuclear or source material, heavy water production, separation of isotopes of source and special nuclear material, or fabrication of nuclear reactor fuel containing plutonium, or safeguarded or unsafeguarded nuclear facilities; (ii) maritime nuclear propulsion projects including any machinery, devices, components or equipment specifically developed or designed for use in such plants or facilities; (iii) chemical or biological weapons, or their precursors, or any other weapons of mass destruction; (iv) rocket systems or ballistic missile systems or any other weapon whatsoever; or (v) medical or pharmaceutical treatment, devices, equipment or technology. 8. Cancellations, Returns and Refunds: Buyer may cancel a confirmed purchase pre-order by either replying to the confirmation sent by Seller, or by sending an to preorder@sirinlabs.com from the address used to place the pre-order. Seller will promptly refund Buyer of the pre-order down-payment provided the purchase has not been completed. All refunds will be made to the wallet used in the pre-order submission, and will exclude any and all fees incurred by Seller in connection with the execution of the purchase order, and the Transaction Processing Services provided by Seller which Seller is or will be eligible to deduct in accordance with these Terms. Buyer will receive an or other communication from Seller confirming the cancellation and refund arrangements with other pertinent information. Any incorrect payment information or insufficient funds are at Buyer s own risk and account. 9. Limitation of Remedies and Damages: IN NO EVENT SHALL SELLER OR ANY OF ITS LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES, BE LIABLE TO BUYER FOR: (I) ANY LOSS OF DATA OR DAMAGE THERETO; (II) LOSS OR DAMAGE CAUSED BY THE COMBINATION OR INCORPORATION OF THE PRODUCT WITH OTHER PRODUCTS OR SYSTEMS NOT SUPPLIED BY SELLER; (III) LOSS OR DAMAGE CAUSED BY THE MODIFICATION BY BUYER OF THE PRODUCT; OR (IV) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR SIMILAR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF SELLER OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SELLER S LIABILITY TO BUYER FOR DIRECT DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE BASIS OF THE FORM OF ACTION, WILL BE LIMITED TO THE AMOUNT PAID TO SELLER FOR THE APPLICABLE PURCHASE ORDER THAT GAVE RISE TO THE CLAIM OR ACTION, AND IF NO SUCH SINGLE PURCHASE ORDER IS SO APPLICABLE, THEN SELLER S LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY BUYER TO SELLER HEREUNDER FOR THE APPLICABLE PRODUCT (EXCLUDING ANY TRANSPORTATION, INSURANCE, TAXES, DUTIES AND OTHER CHARGES). THE EXCLUSIONS OF LIABILITY UNDER THESE TERMS SHALL ONLY APPLY TO THE EXTENT ALLOWED ACCORDING TO APPLICABLE LAW. SIRIN LABS TERMS & CONDITIONS FOR FINNEY TM PRE-ORDER V1.2 5

6 10. Export Compliance: Buyer shall fully comply with all applicable export laws and regulations to ensure that neither the Available Product nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. 11. Force Majeure: A party shall not be liable in respect of the non-performance of any of its obligations to the extent such performance is prevented by any circumstances beyond its reasonable control including but not limited to, strikes, lock outs or labour disputes of any kind (whether relating to its own employees or others), fire, flood, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war, acts or threats of terrorism, plant breakdown, computer or other equipment failure and inability to obtain equipment. If an event of force majeure exceeds 1 month a party may cancel the applicable purchase order and terminate these Terms without liability. 12. General: These Terms shall constitute the final, complete and exclusive agreement of the parties with respect to all sales of Product by Seller to Buyer and shall supersede all prior offers, negotiations, understandings and agreements. No additional or different terms or conditions, whether material or immaterial, shall become a part of any agreement unless expressly accepted in writing by an authorized officer of Seller. These Terms are not assignable by Buyer. These Terms are binding on the parties and their respective successors and permitted assigns. Any waiver by Seller of one or more of these terms and conditions or any defaults hereunder shall not constitute a waiver of the remaining terms and conditions or of any future defaults hereunder. No failure or delay on the part of Seller in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of rights hereunder. Any provision of these Terms that is prohibited or unenforceable under applicable law shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these terms and conditions. These Terms and all performance and disputes arising out of or related to goods in question, shall be governed by the laws of Switzerland, without reference to conflict of laws principles. The parties hereby irrevocably agree to submit any claim arising out of or related to these terms and conditions to the competent courts of Zurich, Switzerland. SIRIN LABS TERMS & CONDITIONS FOR FINNEY TM PRE-ORDER V1.2