These terms and conditions govern the sale of Products (“Product or Products”) and provisions of services (“Services”) by SkyRFID Inc. (Sky) and its affiliates (“Seller”) as well as by third party vendors and/or service providers of Seller.These terms and conditions (“Agreement”) take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given.Neither Seller’s commencement of performance or delivery shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. Sky’s failure to object to conflicting or additional terms will not change or add to the terms of this agreement.Buyer’s acceptance of the Products and/or Services from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein.
Orders: All orders placed by Buyer are subject to acceptance by Seller.Orders may not be cancelled or rescheduled without Seller’s written consent.All orders must identify the products, unit quantities, part numbers, applicable prices and requested delivery dates of the Products being purchased. Seller many in its sole discretion allocate Product among its Customers. Seller may designate certain Products and Services as non-cancellable, non-returnable (“NCNR”) and the sale of such Products shall be subject to special terms and conditions contained in Seller’s Customer Acknowledgement or NCNR Product Forms, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere.
Prices: The prices of the Products are those specified on the front of the invoice.Pricing for undelivered Products may be increased in the event of an increase in Seller’s cost, change in market conditions or any other causes beyond the Seller’s reasonable control.Price quotations shall automatically expire in thirty (30) days from the date issued, or as otherwise stated in the quotation.
Taxes:Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including federal, provincial, state and local sales, excise and value added, goods and services taxes and any other taxes. Buyers agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon.When applicable, transportation and taxes shall appear as separate items on Seller’s invoice.
Payment: Payment may be made by
Delivery and Title:All deliveries will be made “EXWORKS” place of shipment.Title and risk of loss pass to the Buyer upon delivery of the product to the carrier.Seller’s delivery dates are estimates only and Seller is not liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of the Seller, nor shall the carrier be deemed an agent of the Seller.A delayed delivery of any part of an Order does not entitle the Buyer to cancel other deliveries.
Over and Under Runs: In the event that production of the products ordered by Buyer exceed or falls short of the number of products ordered by a figure not exceeding 5% of such number, Buyer shall nevertheless accept the products produced at the prices quoted on the order attached hereto
Prototypes: When prototypes are necessary or requested by Buyer, samples shall be submitted to Buyer for approval before production begins. Tooling and production of units prior to sample approval shall be done at Buyer’s expense and risk.
Patents:Buyer shall defend, indemnify and hold SkyRFID Inc. harmless, including its payment of all costs, expenses and attorneys fees, from and against any and all claims of patent infringement brought against, or involving, SkyRFID Inc. which arise from its production and/or sales of goods produced in accordance with designs or specifications provided by Buyer, or utilizing parts or components designed or provided by Buyer.
Engineering or design changes suggested by SkyRFID Inc. are made in the best interest of the parties hereto. However, SkyRFID Inc. shall not be liable for any loss or damage arising out of or by reason of or resulting from any such changes, it being understood and agreed that Customer shall assume full responsibility for the failure or success of such changes. Notwithstanding the above, unless specifically agreed to in writing by the parties hereto, all engineering and/or process design work contracted for by the Customer shall remain the sole property of SkyRFID Inc., including but not limited to all design documentation, layouts, art work and process information. All such work product shall be deemed SkyRFID Inc. Confidential Information.
Acceptance / Returns: Shipments will be deemed to have been accepted by Buyer upon delivery of the said shipment to Buyer unless rejected upon receipt. Buyer shall perform all inspections and tests Buyer deems necessary as promptly as possible but in no event later than 7 days after delivery of product, at which time Buyer will be deemed to have irrevocably accepted the Products.Any discrepancy in shipment quantity must be reported within 7 days after delivery.Buyer may not return products without a return material authorization (“RMA”) number.RMA valid for 30 days from date issued.Buyer may not return NCNR Products.Any product returned by Buyer due to Buyer’s error may be subjected to a restocking change equivalent to 100% of the value of such Product as specified in the Seller’s invoice to Buyer.
In the event the Buyer delays production or delivery of the goods, the Buyer shall pay to SkyRFID Inc. the carrying costs incurred by SkyRFID Inc. for the period of the delay. Such carrying costs will include, but not be limited to, material handling costs, re-tooling charges, additional production set-up costs and interest carrying costs.
In the event this Agreement is cancelled or if less than the total order quantity is shipped within the lesser of a twelve month period or the term of the order, the Buyer shall pay, and SkyRFID Inc. will bill the Buyer for the quantity actually shipped, not at the unit price stated in the sales order, but at the appropriate price for the quantity actually shipped.
In the event this Agreement is cancelled the Buyer shall pay a unique materials charge. This charge will include the price of all materials in stock and on order for the sales order. SkyRFID Inc. will make reasonable efforts to return and cancel all material for the sales order and reduce the unique materials charge accordingly.
SAVE AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS (EITHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.IN PARTICULAR, SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.
Limitation of Liabilities:BUYER SHALL NOT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, LOSS OF PROFITS, OR REVENUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, BUSINESS INTERUPTION COST, LOSS OF DATA, REMOVAL OR REINSTALLATIONS COSTS, INJURY TO REPUTATION OR LOSS OF BUYERS, PUNITIVE DAMAGES, INTELLECTUAL PROPERTY INFRINGEMENT, LOSS OF CONTRACTS OR ORDERS OR ANY INDIRECT, SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE.BUYER’S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE AFFECTED PRODUCTS IRRESPECTIVE OF THE NATURE OF THE CLAIM WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE.BUYER WILL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON (a) SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (b) MODIFICATION OR ANY PRODUCTS BY ANYONE OTHER THAN SELLER, or (c) USE IN COMBINATION WITH OTHER PRODUCTS.
Export Control: Buyer certifies that it will be the recipient of the Products to be delivered by Seller.Buyer acknowledges that the Products are subject to the export/import control laws and regulations of various countries, including the Canada’s ACL controls. Products sold by the Seller cannot be transferred, sold or re-exported to any part on the “Listed Countries” of Canada ’s ACL controls Myanmar.In addition, all origin goods are controlled and can not be exported by the Buyer or resold to any party that may export the goods to US embargoed destinations. The U.S. embargoed countries include Cuba, Iran, North Korea, Libya, Sudan & Syria.
Force Majeure:Seller is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labour, materials or Products through its regular sources, which shall be considered as an event of force Majeure excusing Seller from performance and barring remedies for non-performance. In an event of force Majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force Majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the buyer.
Technical Assistance or Advice: If technical assistance or advice is offered or given to buyer, such assistance or advice is given free of charge and only as an accommodation to Buyer.Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.Consulting or Training: If consulting or training is provided on a contractual basis, such consulting or training represents the current view of SkyRFID Inc. on the issues discussed or documented as of the date of publication. Because Sky must respond to changes in market conditions, it should not be interpreted to be a commitment on the part of Sky and Sky cannot guarantee the accuracy of any information presented after the date of publication.
.Consulting or Training: If consulting or training is provided on a contractual basis, such consulting or training represents the current view of SkyRFID Inc. on the issues discussed or documented as of the date of publication. Because Sky must respond to changes in market conditions, it should not be interpreted to be a commitment on the part of Sky and Sky cannot guarantee the accuracy of any information presented after the date of publication.
INFORMATION PROVIDED IN THESE CONSULTING OR TRAINING ENGAGEMENTS IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND FREEDOM FROM INFRINGEMENT.