Terms and Conditions for Sale
These Terms and Conditions for Sale (“Terms”) are the terms and conditions upon which CoreTigo Ltd. and its affiliates (collectively, “Seller”) makes all sales of Seller’s proprietary industrial wireless devises (“Hardware”), its related software (“Software”), all related accessories and technical documentation and any and all ancillary products (collectively, the “Product”) and constitute an agreement between Seller and the entity purchasing the Product (“Buyer”). 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 download, acceptance or use by Buyer of any Product 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.
1. 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 (all of the foregoing, “Seller IP”) 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: (a) integrate, without modification, the Product and related documentation with a Buyer Product and related documentation to create Combined Products and related documentation; (b) distribute the Product and related documentation only as part of Combined Products and related documentation; and (c) internally use the Product and related documentation solely to support Buyer’s rights and obligations under these Terms. Subject to these Terms (including Seller’s rights in the Seller IP) as between the parties, Buyer shall have all right, title and interest to the Buyer Product. “Buyer Product” means a product of Buyer with which a Product is integrated to create a Combined Product. “Combined Product” means a product which results from the integration of a Product with a Buyer Product, and which provides material functionality in addition to the Product.
2. ORDERING: Buyer shall order the Product by issuing an irrevocable purchase order in a form acceptable to Seller and such purchase order shall refer and be subject to these Terms. This purchase order may not be canceled or rescheduled by Buyer. Each purchase order shall include a description of the ordered Product, quantity, total cost in accordance with Seller’s applicable quotation, shipping location, requested shipping date based on Seller’s applicable lead times, method of payment and any other information necessary for shipment. Seller’s acceptance of purchase orders and shipments are subject to availability of supplies and shipment facilities as well as the nature of the Product ordered (depending upon, for example, whether Products ordered are readily available or require customization), and Seller shall have no liability to Buyer with respect to any purchase order which is not accepted by Seller and/or which is accepted but delivered on dates other than the dates requested by Buyer. No order shall bind Seller until accepted by its authorized representative. Seller may accept or reject any order submitted by Buyer and will use reasonable commercial efforts to approve or reject purchase orders within 7 business days of the date of receipt of the purchase order. Seller shall have no liability to Buyer as a result of such refusal of any such orders submitted. If the terms and conditions of Buyer’s purchase order conflict, in whole or in part, with the provisions of these Terms, such terms and conditions set forth in Buyer’s purchase orders shall be of no force or effect whatsoever. The parties agree that the terms and conditions contained in these Terms shall prevail over any terms and conditions of any such purchase order, acknowledgment form or other instrument, except that specific commercial terms (prices, delivery terms, etc.) set forth in a purchase order shall prevail over any conflicting commercial terms in these Terms.
3. PRICE AND PAYMENT: The current prices for Products are specified in a separate price list provided by Seller to Buyer (“Price List”) and are discounted based on applicable discount as described in the Price List. Prices and discount levels shall be valid until the specified date/period in the Price List. Seller may, by a 90-day prior written notice, change the prices set forth in the Price List and such new prices shall apply to Products which are not yet covered by an accepted order. Product prices shall exclude any transportation, insurance, taxes, import duties, sales tax or similar taxes or duties including, without limitation, withholding, customs, privilege, excise, sales, use, value-added and property taxes levied by any country upon Seller or the Products, as the result of any sale, delivery or use of any unit sold hereunder. Such charges when applicable will appear as separate additional items on the quotation and invoice. Unless otherwise specified by Seller in writing, payment terms are in United States Dollars or Euros, by wire transfer (SWIFT) to Seller’s designated account, upon the purchase of the Product. 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. All overdue amounts shall bear interest at a rate of 1.5% per month or such maximum lesser rate as is permitted by law. The amount of interest shall be calculated from the payment due date to the date of electronic transfer. Payments due hereunder shall not be subject to any set-off for claims by Buyer. Seller reserves the right to declare all sums immediately due and payable hereunder for any breach of these Terms including, without limitation, failure to comply with credit terms.
4. TAXES: Except to the extent that Buyer provides Seller with a tax-exempt certificate acceptable in the appropriate taxing jurisdiction prior to shipment of the Product, Buyer shall pay any present or future excise, sales, use or similar tax and other governmental charges except for taxes based on Seller’s income, 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. To the extent that Buyer is required under any laws to withhold amounts from fees due to Seller, Buyer shall gross up any amounts due to Seller so that the net amount paid to Seller is the amount set forth in the Price List. Seller, at its discretion, may require reasonable advance assurances of payment through irrevocable bank letters of credit or otherwise.
5. TITLE AND DELIVERY: Products shall be delivered Ex Works (Incoterms 2020), from Seller’s designated facilities in Israel or Seller’s designated logistics center, as set forth in the applicable purchase order (“Delivery Point”). The Title and the risk of loss or damage with respect to the Products shall pass to Buyer at the Delivery Point. Delivery dates shall be agreed upon by the parties on a case-by-case basis per purchase order. Seller shall make commercially reasonable efforts to deliver the full quantity of Products ordered in accordance with the delivery dates agreed upon by the parties per each purchase order; however, Buyer understands that delivery is dependent on third parties which are outside Seller’s control and thus, Seller shall have no liability for any loss or damage suffered by Buyer resulting from delay in delivery of the Products beyond Seller’s reasonable control. If delivery by Seller is not anticipated within the time frame set forth in the applicable purchase order, Seller shall notify Buyer of such delay and payments shall become due on the date when Seller is prepared to make shipment. If Seller, for any reason, has insufficient supplies of Product to meet future demand or accepted offers, Seller reserves the right in its sole discretion to make partial deliveries of Product and invoice them separately, which shall not relieve Buyer of the obligation to accept other parts of its order. Seller may withhold shipment of Products because of the balance of Buyer’s account, or if it determines that Buyer is not financially reliable.
6. RESTRICTIONS: Except as explicitly provided in these Terms or expressly permitted by applicable law, Buyer will not, and will not permit or authorize distributors, end users or 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; and/or (d) remove any notices (including copyright or patent notices) from the Product. Buyer represents and warrants that no Combined Product will 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. Buyer represents and warrants that the Product or Seller IP will not be made available: (1) to persons or entities that commit, threaten to commit or support terrorism; or (2) in the following countries: North Korea, Iran, Syria, Lebanon, Cuba, Iraq, Libya and the Palestinian Authority without the prior written consent of Seller.
7. CANCELLATION OR RESCHEDULING OF ORDER: Seller reserves the right to cancel a purchase order if Buyer files for bankruptcy or assignment for the benefit of creditors by Buyer; or if a receiver is appointed for Buyer’s assets; or if there is a material breach by Buyer of the provisions of these Terms with respect to the purchase order in question or prior purchase orders.
8. PRODUCT INSPECTION AND PRODUCT RETURN: . If a Product’s Hardware is believed to be defective, Buyer will return, within 10 days, at its cost, the allegedly defective Product to Seller accompanied by a full description of such alleged defect. If Seller determines that a returned Product is not defective, Seller will return the Product to Buyer at Buyer’s expense, freight collect, along with a written statement setting forth Seller’s conclusion that the returned Product was not defective, and Buyer agrees to pay Seller’s reasonable cost of handling and testing. Upon determining that a returned Product is defective, Seller, at its option may: (i) repair or replace the Product and ship the repaired or replaced Product to Buyer, at Seller’s expense; or (ii) refund the purchase price (if already paid). Any replacement Product will be warranted under these Terms for the remainder of the original warranty period.
9. LIMITED WARRANTY: Seller warrants, for 2 years from date of initial shipment to Buyer with respect to the Hardware and for a period of 60 days with respect to the Software, that the Product will be free from material defects in materials, workmanship and design under normal use and conditions. If during the applicable warranty period, a Product component (i.e., Hardware or Software, as the case may be) should fail to comply with the foregoing warranty, Buyer’s sole remedy and Seller’s sole liability shall be for Seller to repair or replace such component within 30 days of receipt of the defective Product without charge to Buyer. This warranty shall not apply to any Product which Seller determines has, by Buyer or otherwise, been subject to operating or environmental conditions not in accordance with the applicable specifications, or have otherwise been subject of mishandling, misuse, neglect, improper testing, repair, alteration or damage. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCT IS PROVIDED “AS IS”, AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, ARE MADE WITH RESPECT TO THE PRODUCT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING LIMITED WARRANTY WILL BE, AT SELLER’S OPTION, SENDING REPLACEMENTS OF THE PRODUCT OR REFUND THE AMOUNT PAID. SELLER DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE.
10. INDEMNITY: Seller shall defend or settle any suit or proceeding brought against Buyer based on a third party claim that a Product sold hereunder constitutes an infringement of any existing United States patent, copyright or trade secret; provided that Seller is notified promptly in writing and is given complete authority to control the defense, as well as assistance and information required for the defense. If any Product is, in the opinion of Seller likely to, or does, become the subject of a claim for patent infringement, Seller may, at its sole option, procure for Buyer the right to continue using the Product or modify it to become non-infringing. If Seller is not reasonably able to modify or otherwise secure Buyer the right to continue using the Product, Seller shall remove the Product and refund Buyer the amounts actually paid. Seller shall not be liable for any infringement or claim based upon: (i) the combination or incorporation of the Product with other products (including the Combined Product) not supplied by Seller, to the extent that the infringement results from such combination or incorporation of the Product; (ii) the modification by Buyer of the Product not contemplated by these Terms or authorized by Seller; (iii) Buyer’s negligence or willful misconduct; (iv) any use by Buyer of a Product in violation of these Terms; or (v) Buyer’s use of a Product in connection with any Combined Product where there may be reasonable risk to human life or bodily injury. In all the above cases, and for claims by third parties related to use of the Product, or the violation of law or regulation in the marketing, sale or promotion of any Buyer Product and/or Combined Product, Buyer shall defend, indemnify and hold Seller harmless from any damage, loss, liability and/or expenses (including reasonable attorneys’ fees).
11. LIMITATION OF REMEDIES AND DAMAGES: BUYER’S SOLE REMEDY AND SELLER’S ENTIRE LIABILITY ARE AS SET FORTH ABOVE. IN NO EVENT SHALL SELLER OR ANY OF ITS SUPPLIERS, 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 (INCLUDING BUYER PRODUCT); (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 OR ACCOMPANYING WRITTEN MATERIALS, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF SELLER OR ITS REPRESENTATIVE HAS 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 THE 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).
12. CONFIDENTIAL INFORMATION: During the Term and thereafter, Buyer shall not use Confidential Information received from Seller, other than in accordance with these Terms and in fulfillment of the purpose of these Terms. Buyer shall maintain Confidential Information in the strictest confidence unless or until it shall have been made public. Buyer shall not disclose Confidential Information to any third party and shall use all reasonable precautions to ensure that all such Confidential Information is properly protected and kept from unauthorized persons or disclosure. Buyer may, however, disclose Confidential Information to its own personnel on a “need to know” basis, and to the extent necessary for the purpose of these Terms, provided that it shall be responsible for compliance of its personnel with the provisions of this Section and shall remain liable for any acts and omissions by its personnel in connection with the protection and use of the Confidential Information. For the purposes of these Terms, the term “Confidential Information” shall mean all non-public information and/or data, in any form whatsoever, tangible or intangible, including information in oral, visual or computer database form, disclosed by Seller to Buyer, including, without limitation to any and all trade secrets concerning the business or affairs of Seller, its Products’ (or other software) architecture, designs or specifications, data, know-how, compositions, processes, formulas, methods, samples, inventions and ideas, past, current and planned development or experimental work, customer lists, price lists, business plans, computer software and programs (including object code and source code), financial statements, notes, analysis, studies, summaries and other material prepared by or for Seller containing or based, in whole or in part, on any information included in the foregoing.
13. EXPORT COMPLIANCE: Buyer shall not, directly or indirectly, transfer, export, re-export or transship any Product, Combined Product or part thereof, or any related technology except in full compliance with export controls administered by the U.S, Israel, European Union and any other applicable import, use restrictions and export regulations as shall, from time to time, govern the license and delivery of technology abroad, and any successor legislation. Buyer is solely responsible for determining compliance and obtaining all required approvals to facilitate the export of any Products, including outside of the U.S. and Israel. Buyer shall indemnify and hold harmless Seller from and against any and all losses, claims and expenses actually incurred by Seller as a result of the breach of Buyer’s obligations under this Section. Buyer shall not deliver Products, Combined Products or part thereof, to any person or entity who intends to use the Products for design, development, production, usage or stockpile of weapons of mass destruction, such as nuclear chemical, biological weapons or missiles.
14. PRODUCT DISCONTINUANCE AND CHANGES: Seller shall have the right, in its sole discretion, to modify, alter or improve any or all of the Products, including the specifications for any Product, and shall have the right to discontinue the manufacture of specific Products. Seller shall use commercially reasonable efforts to provide at least 90 days prior written notice to Buyer prior to modifying (in a material manner) or discontinuing a Product.
15. FORCE MAJEURE: Neither party shall be liable to the other party for failure or delay in the performance of any of its obligations under these Terms (except with respect to payment obligation) for the time and to the extent such failure or delay is caused by riots, civil commotions, wars, strikes, hostilities between nations, governmental laws, orders or regulations, embargoes, actions by a government or any agency thereof, acts of God, storms, fires, accidents, sabotages, explosions or any other conditions beyond the reasonable control of the respective parties. In such events, the performance of obligations hereunder shall be suspended during, but not longer than, the period of existence of such cause and the period reasonably required to perform the obligations in such cases.
16. 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. Seller may assign these Terms at its discretion. 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. These Terms and all performance and disputes arising out of or related to goods in question, shall be governed by the laws of the State of Israel, 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 Tel-Aviv, Israel.