THESE SALES TERMS AND CONDITIONS (the “Terms”) apply to all sales of products (“Products”) by PONE Biometrics AS, a company duly organized and existing under the laws of the country of Norway, and maintaining its principal place of business at Universitetsgata 2, 0164 Oslo, Norway ( “PONE”) to the entity purchasing Products (“Buyer”), unless authorized representatives of both PONE and Buyer have executed and delivered to each other a separate written agreement governing the sale of Products by PONE to Buyer.
1. APPLICABILITY AND SCOPE
The Terms shall apply to any written quotation of PONE which is accepted by Buyer, or any written order of Buyer which is accepted by PONE, in each case to the extent signed by both parties (each an “Order”). These Terms are subject to the Order and any special conditions set out therein, which may deviate from or supplement these Terms explicitly.
PONE objects to any additional or different terms proposed by Buyer, and such terms will not apply unless accepted and signed in writing by PONE’s authorized representative.
2. SALE AND DELIVERY
Deliveries shall take place according to the delivery schedule agreed in an Order. All Products shall be delivered EX WORKS point of manufacture according to the current applicable Incoterms, if not otherwise is agreed in the Order, at the address as agreed in the Order. Buyer shall provide PONE with all information necessary for PONE to ship the Products. In the absence of specific written instructions from Buyer, PONE will select the carrier, but such carrier will not be the agent of PONE. PONE will pack all Products shipped in accordance with standard commercial practices.
If PONE becomes aware of a delay or possible delay, Buyer shall be notified promptly. The delivery schedule shall be revised accordingly.
Buyer shall notify PONE within 14 days after delivery of any visible defects, quantity shortages or incorrect product shipments. Failure to notify PONE within 14 days will be deemed a waiver of the right to return Products based on visible defects, quantity shortages or incorrect product shipments. Title and risk of loss shall pass to Buyer at the time of delivery in accordance with the applicable delivery terms.
PONE reserves the right to cancel any placed Orders or to refuse or delay shipment thereof, if (a) Buyer fails to make any payment agreed to by PONE and Buyer; (b) Buyer fails to meet reasonable credit or financial requirements established by PONE, including any limitations on allowable credit; or (c) Buyer fails to comply with the terms and conditions of these Terms. No such cancellation, refusal or delay will be deemed a termination (unless PONE so advises Buyer) or breach of these Terms by PONE.
PONE reserves the right to discontinue the manufacture,Stan sale, or supply of Products at any time. If, however, at any time during the term of these Terms, Buyer purchases certain Products from PONE on a regular basis, and such Products are to be discontinued (“Discontinued Products”), PONE shall give Buyer prior written notice of such discontinuance and accept last-time-buy orders for such Discontinued Products in accordance with PONE’s last-time-buy procedure in place at the time of such notice.
4. PRICING AND PAYMENT TERMS
The prices are stated in the relevant Order.
Prices are subject to change on 30 (thirty) days’ notice to Buyer. All prices are exclusive of any sales tax, excise tax, value added tax, import duty or other tax applicable to the sale of any product. Such taxes, when applicable, shall be paid by Buyer unless Buyer provides a proper tax exemption certificate.
Buyer shall not set off against PONE’s invoices any amounts that Buyer claims are due to it. Buyer will bring any claims or causes of action it may have in a separate action and waives all rights it may have to set off or withhold payment for Products delivered by PONE.
PONE shall issue invoices for supply of Products on delivery. All invoices shall be payable within 30 (thirty) days of issue. Buyer pays the banking fees to its bank and intermediary banks, while PONE pays the banking fees to its bank. If payments by Buyer are more than 30 (thirty) days overdue, PONE is entitled to interest at a rate according to the Norwegian Act on Interest on Overdue Payments dated 17 December 1970 no. 100 (Norwegian: Lov om renter ved forsinket betaling), on the overdue balance, by issue from time to time of a separate invoice.
In the event of the bankruptcy or insolvency of Buyer, or in the event any proceeding is brought by or against Buyer under bankruptcy or insolvency laws, PONE shall be entitled to cancel any Order then outstanding, and Buyer shall reimburse PONE for any associated cancellation charges and damages.
5. PROPRIETARY RIGHTS
Nothing in these Terms will alter or transfer either party’s ownership of any intellectual property. Buyer has full right of disposal of the single Products delivered. PONE (or its licensors) shall retain all rights, title and interest in and to all intellectual property rights, such as, but not limited to patents, copyrights and design rights, embedded in the Products.
Any and all software provided by PONE hereunder will be subject to the terms of the applicable license agreement, which will accompany the software.
Unless otherwise agreed between the parties and subject to any valid patents or copyrights of Buyer, PONE shall have a royalty-free, worldwide, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Products any suggestions, enhancements, recommendations and other feedback provided by Buyer related to the operation of Products.
Buyer shall not modify, copy, emulate or attempt to create derivative works of the Products, or any element thereof.
Buyer shall not modify, translate, reverse engineer, decompile or disassemble any software delivered with the Product or any part thereof, or otherwise attempt to derive source code or create derivative works from such software.
Buyer is not allowed to remove, alter or destroy any proprietary, trademark or copyright markings or notices placed upon or contained with the Products.
Subject to the terms and conditions of these Terms, PONE hereby grants to Buyer a non-exclusive, world-wide, royalty-free, revocable license to use PONE trademarks, in accordance with any guidelines or directions issued by PONE from time to time, solely in connection with the distribution of the Product. The use of the trademarks hereunder will not create in Buyer any right, title, or interest in or to the trademarks. All goodwill arising from such use of the trademarks will inure to the benefit of PONE and its suppliers.
Buyer accepts full responsibility for compliance with all applicable laws relating to export controls. It shall be the obligation of Buyer to obtain any required export license for the Product. PONE shall offer reasonable assistance in obtaining any such required license.
7. US GOVERNMENT
If the Products are purchased by Buyer pursuant to or in connection with a U.S. Government contract or subcontract, Buyer shall promptly notify PONE in writing of any required provisions of applicable U.S. Government acquisition regulations. Such notified pertinent provisions will be applicable hereto and will be incorporated herein by reference from and after the date of such notification is received by PONE.
Buyer shall keep confidential all information, pricing, instructions, and advice relating to the Products furnished by PONE which is not available to the general public, and shall not disclose any such information, or information relating to the business and operations of PONE or its affiliates, to any other party.
9. DISCLOSURE REQUIREMENTS
The parties may disclose the existence and contents of these Terms to the extent dictated by statutory disclosure requirements.
10. PRODUCT QUALITY AND LIMITED WARRANTY
PONE reserves the right to make modifications to the Products at any time. If, however, at any time during the term of these Terms, Buyer purchases certain Products from PONE on a regular basis, and PONE is going to change the form, fit or function of such Products, PONE shall give Buyer prior written notice of such changes, and Buyer shall have the right to cancel the Order by providing a written cancellation notice to PONE within 14 (fourteen) days of receiving the written notice from PONE.
The Products shall be materially in accordance with its specifications in the Order for a period of 12 (twelve) months from the date of delivery to Buyer. If Products do not comply with its specifications, PONE will, at its election, repair or replace Products within a reasonable time, or if not possible to repair or replace within reasonable time, credit or refund Buyer the price paid for the Products, provided that (a) Buyer promptly notifies PONE in writing, during the warranty period, that such Product failed to conform and furnishes a detailed explanation of any alleged deficiency; (b) Buyer promptly obtains an RMA (return merchandise authorization) number and promptly returns the Product to the location designated by PONE at Buyer’s expense; and (c) PONE is reasonably satisfied that claimed deficiencies actually exist, and the claim otherwise complies with the terms of the warranty.. PONE shall have a reasonable time period in which to replace or repair the Products or to credit or refund Buyer.
Products are otherwise delivered on a strictly «as is» basis. To the extent permitted by law, PONE and its suppliers disclaim all warranties regarding the Products, either expressed or implied, statutory or otherwise, including without limitation warranties of compatibility with another product, warranties of merchantability, functionality or fitness for a particular purpose. PONE’s warranties are for the benefit of Buyer and not for any third party.
Buyer acknowledges that the Products are not designed or intended for use in or in connection with products and/or applications which typically have a potential for severe physical damage or damage to persons. PONE and its suppliers disclaim any expressed or implied warranty of fitness for such uses.
The warranty does not cover, and PONE expressly excludes from this warranty, problems caused by accident, misuse, neglect, alteration, improper installation, or improper testing. PONE provides no warranty under these Terms or otherwise on product units purchased from sources other than PONE. The warranty does not cover, and PONE expressly excludes from this warranty, non-production versions, engineering samples, test and development systems containing the Products and any Product version for which PONE has not published a data sheet.
PONE will settle and/or defend at its own expense and indemnify Buyer against any cost, loss or damage arising out of any claim, demand, suit or action brought against Buyer to the extent that such claim, demand, suit or action is based on a third party claim that a Product constitutes a direct infringement upon any intellectual property rights of any such third party, provided that (l) Buyer promptly informs PONE in writing of any such claim, demand, action or suit, (2) PONE is given control over the defense or settlement thereof and that Buyer co-operates in the defense or settlement and provides information and assistance in the defense and/or settlement of any such claim or action. PONE agrees that in negotiating any settlement pursuant to this clause, it shall act reasonably and shall consult with Buyer before agreeing any settlement. If a claim, demand, suit or action alleging infringement is brought or PONE believes one may be brought, PONE shall have the option at its expense to (1) modify the Product to avoid the allegation of infringement or (2) obtain for Buyer at no cost to Buyer a license to continue to use the Product in accordance with these Terms free of any liability or restrictions or (3) terminate the Order.
PONE shall have no responsibility for claims arising from (i) modifications of the Product by Buyer or any third party; (ii) combination or use of the Product with Buyer or third party hardware or software or any other third party product not supplied by PONE, or any other unauthorized use, if such claim would not have arisen but for such combinations or use; (iii) PONE’s modification of the Product in compliance with written specifications provided by Buyer; or (iv) use of other than the latest version of the Product provided to Buyer by PONE if the use of the latest version would have avoided the infringement.
The foregoing states the sole liability of PONE and the exclusive remedy of Buyer in connection with infringement of intellectual property rights.
Buyer will settle and/or defend at its own expense and indemnify PONE against any cost, loss or damage arising out of any claim, demand, suit or action brought against PONE to the extent that such claim arises from (i) modifications of the Product by Buyer or any third party on its behalf; (ii) a breach of these Terms by Buyer; (iii) unauthorized representations or warranties to customers or end users regarding the Product; (iv) a combination of Product with other products or components resulting in an alleged infringement of the intellectual property rights of any third party.
12. LIMITATION OF LIABILITY
PONE shall not be liable in contract, tort or otherwise, whatever the cause thereof, for any loss of profit, business or goodwill or any indirect, consequential, incidental, punitive or special cost, damages or expense of any kind, howsoever arising under or in connection with these Terms, even if PONE has been advised of the possibility of such damages, except for injury to persons or attributable to intentional misconduct or gross negligence.
The total and maximum liability of PONE under any provision of these Terms, or any transaction or acts contemplated by these Terms shall in no event exceed the lower amount of (i) the accumulated fees and payments received by PONE from Buyer in relation to the Products as of the date of any claim, (ii) the actual direct damages sustained by Buyer by reason of PONE’s breach hereunder and, (iii) the sum of NOK 10,000,000 (ten million). Buyer may not bring an action in connection with these Terms unless such action is commenced within one (1) year after the event giving rise to the liability. Notwithstanding the above, this limitation of liability shall not apply to damages attributable to material breaches of Section 8 (Confidentiality) or to damages attributable to gross negligence or intentional misconduct.
13. FORCE MAJEURE
PONE shall not be responsible for any failure to perform due to causes beyond its control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, pandemics, actual or prospective terrorist acts, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor, or materials. In the event of any such circumstances, PONE shall be relieved from its contractual obligations, and, in the case of delay, excused for a period equal to the time of the delay caused thereby.
No purported variation of the Terms shall be effective unless made in writing and signed by PONE.
15. GOVERNING LAW AND DISPUTE RESOLUTION
The Terms, and the validity, effect, and interpretation thereof, are governed by the laws of Norway without reference to conflict of laws principles. All disputes arising out of the Terms shall be subject to the exclusive jurisdiction of the Norwegian courts located in Oslo, Norway, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.