GENERAL TERMS AND CONDITIONS OF SALE OF PRODUCTS AND SERVICES
1. Sales Agreement. The sale of products and services by Sensornet Limited (“Sensornet”) is governed by these terms and conditions (“Terms and Conditions”). Sensornet’s offer to sell products and services to the buyer (“Buyer”) is expressly limited by Buyer’s acceptance of these Terms and Conditions, as evidenced by Buyer’s issuance of an Order (as defined below) for product(s) and/or services, or Buyer’s acceptance of any product and/or services under an Order, or Buyer’s payment for any product and/or services under an Order. These Terms and Conditions apply to the exclusion of any other terms that the Buyer seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing. Terms, if any, included on any Order, acknowledgment forms or other documents issued by or on behalf of Buyer shall not apply and are hereby voided, except to the extent that any such terms are expressly agreed to in writing by Sensornet.
Any offers to sell products and services by Sensornet must be in writing to be valid, and all such offers shall be valid for thirty (30) days from its date of issuance, unless otherwise set forth in such offer. Such offers shall be deemed accepted only upon Sensornet’s receipt of Buyer’s written acceptance of such offer (“Order”), provided that such Order is on terms acceptable to Sensornet and provided that Sensornet receives such Order within one (1) week of the date of expiration of an offer. Orders shall be in accordance with Sensornet’s offer and these Terms and Conditions unless otherwise accepted by Sensornet in writing.
Sensornet shall not be liable for any errors or miscalculations in Buyer’s Orders.
Buyer may not cancel any Order without Sensornet’s prior written approval, such approval at Sensornet’s sole discretion. In the event Sensornet expressly agrees in writing to permit Buyer to cancel an Order, Buyer will compensate Sensornet for all costs and losses attributable to the cancellation. Subject to the warranty set forth in Section 8, products purchased under these Terms and Conditions are not returnable or refundable.
2. Prices. The fees to be paid by Buyer to Sensornet for the products and services shall be as set forth in the applicable Order. Unless otherwise agreed, all prices for products include air freight packing, but exclude (and Buyer shall be solely responsible for) costs of loading, shipping, delivery, insurance, installation and commissioning. Prices do not include any fees, taxes or duties relating to the shipment and delivery of any of the products, including without limitations value-added tax (VAT), duty, import and export tariffs and other forms of taxes and excise duties in the United Kingdom and/or the recipient country.
If the currency fixed in an Order is devalued, such that the rate of exchange between the currency chosen and Pounds Sterling varies by more than two percent (2%) as from the date of Sensornet’s offer, Sensornet may, at its sole discretion, suspend all performance under the Order and notify Buyer of any price adjustment resulting from the devaluation. Buyer must then notify Sensornet in writing within eight (8) days of the date of Sensornet’s notification whether Buyer wishes to purchase the products and services at the adjusted price. If Buyer fails to notify Sensornet during such eight (8) day period, then Buyer’s order will be automatically cancelled. Sensornet shall not be liable for any costs or losses of Buyer attributable to such cancellation.
3. Delivery. The estimated date of delivery of products and rental equipment, if applicable, shall be stated in Sensornet’s initial offer to sell products to Buyer and Sensornet will use commercially reasonable efforts to deliver the products within the estimated time to the extent possible. Delivery dates are estimates only and the time of delivery is not of the essence. Sensornet does not guarantee delivery of products or rental equipment, if applicable, on or by any estimated delivery date. In no event shall Sensornet be liable to Buyer for any costs, fees, penalties or price reductions as a result of any failure to deliver products or rental equipment, if applicable, in accordance with any estimated delivery dates.
Partial deliveries by Sensornet are permitted unless otherwise agreed upon in writing by the parties.
Delivery shall be made Ex Works (EXW Incoterms 2010), Sensornet’s shipping point. Unless otherwise agreed upon by the parties in writing, Buyer shall arrange for transportation and transport insurance. If Buyer fails to arrange for transportation, Sensornet will choose a method of transportation that it deems
appropriate. In all cases Buyer is responsible for all expenses involved in the shipment and delivery of products or rental equipment, if applicable, (including without limitation loading, freight, shipping, insurance, forwarding and handling charges).
4. Rental Equipment. Sensornet shall provide any rental equipment in accordance with the applicable Order and these Terms and Conditions.
Sensornet hereby warrants that for the term of the rental, the rental equipment will be free of material defects in materials and workmanship. Buyer’s sole remedy with respect to any non- conformance with the warranty for rental equipment is that Sensornet shall at its option and expense repair and replace any defective item of rental equipment within ninety (90) days of receipt of the defective rental equipment at Sensornet’s nominated service centre, subject to the same requirements set forth in Section 8.
Risk in the rental equipment shall pass to Buyer as soon as the rental equipment has been placed with a transport agent. Notwithstanding the foregoing, title in the rental equipment will not pass to Buyer at any time.
Buyer agrees to:
- (i) hold the rental equipment as bailee for
Sensornet and take proper care of it;
- (ii) store or keep the rental equipment so as to show clearly that such rental equipment belongs to Sensornet;
- (iii) not sell or part with possession of the rental equipment;
- (iv) comply fully with all storage, safety and/or environmental requirements applicable to or marked on the rental equipment, specified by Sensornet and/or required by law;
- (v) keep the rental equipment free from any mortgage, charge, lien or other encumbrance; and
- (vi) not remove, alter, obscure, or otherwise interfere with any identifying marks, labels or storage instructions placed on the rental equipment or its packaging by Sensornet or the manufacturer; and
- (vii) keep the rental equipment insured at Buyer’s expense with an insurer of good repute against all insurable risks including (but not limited to) loss or damage by fire or theft for an amount not less than the fees for such rental equipment.
Without prejudice to any of Sensornet’s other rights, in the event that any breach of this Section 4 occurs or Sensornet reasonably believes that a breach of this Section 4 may occur, Sensornet may repossess and/or sell some or all of the rental equipment at any time and Sensornet’s employees or agents may enter upon any or all of Buyer’s premises or vehicles for that purpose, with or without vehicles. This right and licence shall continue after and despite the termination for any reason of these Terms and Conditions.
For the avoidance of doubt the provisions of this Section 4 shall permit Sensornet to repossess any rental equipment up to the total quantity of rental equipment set out in the applicable Order, regardless of whether certain individual rental equipment may have been delivered under a separate Order.
Buyer also agrees to:
- (a) permit Sensornet or its nominated subcontractor to enter into Buyer’s premises at any reasonable time during business hours to inspect, repair or maintain the rental equipment;
- (b) return the rental equipment to Sensornet at the end of the rental period as set forth in the applicable Order, or upon earlier termination of these Terms and Conditions, in as good a condition as when such rental equipment was delivered to Buyer, reasonable wear and tear from ordinary use excepted; and
- (c) reimburse Sensornet’s reasonable costs incurred in making any necessary repairs to rental equipment that is not returned to Sensornet in accordance with (b) above.
5. Title Transfer. Title to products shall pass to Buyer as soon as the products have been placed with a transport agent.
6. Use of Sensornet’s Products. Buyer acknowledges and agrees that the products must be used and maintained in accordance with all instructions provided by Sensornet and, where stated, products must be operated only by personnel who have received the appropriate training. Any Sensornet products that are to be connected to an electricity supply must be operated only by appropriately trained and qualified personnel, and must not be made available to any personnel without the proper training and qualifications.
7. Rights and Software. Buyer shall not copy Sensornet’s software or any related Documentation, other than as is necessary for back-up copies. Buyer shall not licence or assign any rights in Sensornet’s software. Sensornet grants to Buyer a limited, non-exclusive license to use the software provided with the products solely for the purpose of operating the products in accordance with Sensornet’s written Documentation.
Notwithstanding that title to the products may pass to Buyer, Sensornet shall remain the exclusive owner of all intellectual property rights of whatever nature including, without limitation, copyrights, patents and patentable inventions, know-how, trade secrets, trademarks and design rights (whether registered, registrable or otherwise) embodied in or otherwise relating to the products (including any software contained therein). Other than as permitted by applicable law, Buyer shall not reverse engineer the products or any part thereof. Buyer shall not remove any proprietary notices and/or branding contained in or otherwise affixed to the products.
8. Warranty, Remedying Defects and Shortcomings, Complaints. For a period of one (1) year following the date of delivery, and subject to the other provisions of this Section 8, Sensornet warrants that all new products that are both (a) manufactured by Sensornet and (b) purchased directly from Sensornet (or an authorized distributor of Sensornet) shall be free of material defects in materials and workmanship. Buyer’s sole and exclusive remedy, and Sensornet’s sole and exclusive obligation, in the event of any failure of products to comply with this warranty shall be for Sensornet to, at its option, repair or replace such products free of charge. In no event shall Sensornet be liable for ordinary wear and tear.
Sensornet does not provide any warranty for third party parts, components or products that are not manufactured by Sensornet. Such parts, components or products may be warranted by third parties on a “pass through” basis.
The foregoing remedies shall not apply to any product failure caused in whole or in part by (i) Buyer’s failure to operate, maintain or service the products in accordance with Sensornet’s Documentation or (if there is none) good trade practice regarding the same, (ii) any alteration, modification or repair made to the products other than by Sensornet, (iii) use of the products for a purpose other than that for which it is intended, (iv) Sensornet following any drawing, design or specification supplied by Buyer, (v) fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions, or (vi) the products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
Sensornet shall not be liable for products’ failure to comply with the warranty set out in this Section 8 if Buyer makes any further use of such products after giving notice in accordance with this Section 8.
In order to get the benefit of the foregoing warranty, Buyer must immediately inspect the products upon receipt and notify Sensornet in writing immediately after discovering any defect or shortcoming. Buyer shall not ship products back to Sensornet for any reason without Sensornet’ prior written consent, evidenced by a valid return material authorization (“RMA”). No returns will be permitted without a valid RMA. Any products returned to Sensornet must be received by Sensornet within 10 days of Buyer’s receipt of an RMA. Notwithstanding the issuance of an RMA, Sensornet reserves the right to inspect the products at its facility and to refuse, at its sole discretion, to accept the return of any item if Sensornet determines that the products’ warranty is not applicable for the reasons set forth above. Any defective products or parts forwarded by Buyer to Sensornet for repairs or replacement, shall be carriage paid and at Buyer’s risk. Buyer must clearly indicate the nature of the defect or shortcoming.
The remedy obligations of this Section 8 shall apply to any replacement products or parts only for the same duration of time as for the replaced products or parts.
THE FOREGOING EXPRESS WARRANTIES ARE THE EXCLUSIVE TERMS AVAILABLE TO BUYER AND EXTEND ONLY TO THE ORIGINAL CUSTOMER OF SENSORNET OR SENSORNET’ AUTHORIZED DISTRIBUTOR, AS THE CASE MAY BE. THE CORRECTION OF ANY DEFECT IN OR FAILURE OF PRODUCTS BY REPAIR OR REPLACEMENT IN ACCORDANCE WITH SENSORNET’S POLICIES AS DESCRIBED HEREIN SHALL BE SENSORNET’S SOLE AND EXCLUSIVE OBLIGATION AND THE SOLE AND EXCLUSIVE REMEDY OF BUYER FOR ANY AND ALL LOSSES, DELAYS OR DAMAGES RESULTING FROM THE PURCHASE OR USE OF SENSORNET’S PRODUCTS. OTHER THAN THE LIMITED WARRANTY SPECIFICALLY STATED HEREIN, SENSORNET, TO THE EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES WITH RESPECT TO SENSORNET’S PRODUCTS, INCLUDING THE PERFORMANCE THEREOF AND ANY SERVICES PROVIDED TO BUYER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
9. Limitation of Liability. To the extent permitted by law, Sensornet shall not be liable whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any special, incidental, consequential or indirect damages or for loss of goodwill or business profits, lost revenue, work stoppage, computer failure or malfunction, or for any and all other exemplary or punitive damages arising hereunder or from the use of products, including, without limitation, any such loss or damage relating to personal injury or property damage, even if Sensornet has been advised or was aware of the possibility of such loss or damages. Except in the case of death or personal injury caused by Sensornet’s gross negligence or for any matter in respect of which it would be unlawful for Sensornet to exclude or restrict its liability, Sensornet’s total aggregate liability to Buyer for any and all other damages, losses or liabilities arising hereunder or from the products, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the amounts actually received by Sensornet from Buyer with respect to the product giving rise to the liability. Buyer shall indemnify Sensornet for any liability arising from Buyer’s (including its employees’ and agents’) use of the products sold (directly or indirectly) by Sensornet.
10. Payment. Unless otherwise agreed to in writing, a 30% pre-payment is required upon acceptance of an Order. The remaining Payment obligations shall be due on the date indicated in Sensornet’s invoice.
For late payments, Sensornet may, at its sole discretion, charge interest on the overdue amount at the rate of 4% per annum above Barclays Bank’s base rate from time to time the market rate in force in the United Kingdom accruing from the date the payment was due until payment thereof in full together with such interest. Buyer may not withhold or set off any payment as a consequence of any counterclaims of Buyer.
If payment for the undisputed fees under any applicable Order is overdue, Sensornet may at its sole option:
- (i) suspend all work in progress in respect to the provision of services until such payment is made in which case any expenses to Sensornet occasioned by such suspension and subsequent resumption shall be added to the consideration and any project time-scales shall be delayed accordingly; or
- (ii) treat such as a material breach and terminate the applicable Order and these Terms and Conditions.
11. Confidentiality. Confidential Information means any and all information disclosed by Sensornet to the Buyer or its representatives (“Receiving Party”), including information relating to the matters which are the subject of these Terms and Conditions, the existence and nature of these Terms and Conditions, and all other information regarding Sensornet’s past, present or future research, technology, know-how, ideas, concepts, designs, products, markets, computer programs, prototypes, processes, machines, manufacture, compositions of matter, business plans and operations, technical information, drawings, specifications, and the like, except information which is:
(a) at the time of disclosure, or thereafter becomes, a part of the public domain through no act or omission by Receiving Party or its representatives;
(b) lawfully in the possession of Receiving Party prior to disclosure by or on behalf of Sensornet as shown by Receiving Party’s written records;
(c) lawfully disclosed to Receiving Party by a third party which did not acquire the same under an obligation of confidentiality from or through Sensornet as shown by written records; or
(d) independently developed by Receiving Party without use of Sensornet’s Confidential Information as shown by Receiving Party’s written records. Receiving Party shall not, without the prior consent of Sensornet, disclose any of Sensornet’s Confidential Information to anyone for any reason at any time or use any of Sensornet’s Confidential Information for any purpose except as requested by Sensornet. If Receiving Party believes in good faith that it is required by the law of any relevant jurisdiction or pursuant to an order of a court of competent jurisdiction or that of a competent regulatory authority to disclose any of Sensornet’s
Confidential Information, it shall provide notice to Sensornet prior to making such disclosure so as to allow Sensornet time to undertake legal or other action to prevent such disclosure or otherwise obtain confidential treatment of such disclosure. In no event will Receiving Party disclose any of Sensornet’s Confidential Information that Receiving Party is not compelled to disclose by law, and Receiving Party will exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to any of Sensornet’s Confidential Information so disclosed.
Receiving Party shall limit dissemination of Sensornet’s Confidential Information to only those of Receiving Party having a “need to know”, and advise each such person who receives Sensornet’s Confidential Information that such information is confidential and require each such person (other than attorneys and other agents who are already under a professional duty of confidentiality) to sign and comply with a written agreement obligating it/he/she to observe all of Receiving Party’s obligations hereunder relating to confidentiality, non-disclosure and restrictions on use.
12. Force Majeure. Sensornet shall not be liable for failure to perform or for delay in performance due to fire, flood, strike, or other labor difficulty, act of God, act of any governmental authority, riot, embargo, fuel or energy shortage, wrecks or delays in transportation, inability to obtain necessary labor, materials, or manufacturing facilities from usual sources, or due to any cause beyond Sensornet’s reasonable control. In the event of a delay in performance due to any such cause, the estimated date of delivery or time for completion of performance will be extended by a period of time reasonably necessary to overcome the effect of such delay. If Sensornet reasonably determines that any such delay in performance is likely to extend for a period of ninety (90) days or more, Sensornet shall have the right to cancel the applicable order upon notice to Buyer with no liability or further obligation to Buyer with respect to such order.
13. Venue. These Terms and Conditions and any dispute or claim arising hereunder shall be governed by laws of the England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
14. Other Agreements. These Terms and Conditions shall apply to all sales by Sensornet and may only be modified or amended in writing and executed by an authorized officer of Sensornet.
15. Assignment and Subcontracting. Sensornet may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions. Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions without the prior written consent of Sensornet.
16. Severance. If any court or competent authority finds that any provision of these Terms and Conditions (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of these Terms and Conditions shall not be affected.
17. Waiver. A waiver of any right or remedy under these Terms and Conditions is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
18. Entire Agreement. These Terms and Conditions, Sensornet’s offer and the Order (excluding any terms submitted by Buyer with the Order) constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous representations, agreements and other communications between the parties, both oral and written.