Sales Terms and Conditions
Please review these policies carefully as they are the terms of sale that govern your purchases at Sendum.
1. OBJECT. Sendum shall sell to the customer ("Customer") identified in the purchase order acknowledgement, and Customer shall purchase from Sendum, the Products only in accordance with these Terms and Conditions. These Terms and Conditions constitute a material part of the agreement between Sendum and Customer. Sendum hereby objects to and rejects any additional or different terms proposed by Customer, including those contained in Customer's purchase order, unless Sendum expressly agrees to such terms in writing. "Products" includes, without limitation: hardware (including firmware), software and user materials.
"Software" means the software elements of the Products and includes, if provided by Sendum, software updates. "User Materials" are the materials (including drawings, diagrams, specifications, datasheets, documentation, training manuals, technical bulletins and user manuals) for the use of the hardware and Software. "Sendum" means Sendum Wireless Corporation described in the header of the purchase order acknowledgement.
2. PURCHASE ORDERS. Customer shall issue purchase orders ("Purchase Orders") to Sendum by facsimile, e-mail, or mail. The form of each Purchase Order shall comply with the laws of Customer's domicile. Each Purchase Order shall include: the quantities, Sendum SKUs (part numbers), unit prices and total price (exclusive of tax) of the Products ordered; the desired shipping date; the agreed conditions of delivery; the terms of payment; and the contact information for the Customer. Only Purchase Orders which Sendum accepts by issuing a written acknowledgement (a "Purchase Order Acknowledgement") to Customer within seven (7) business days of receipt of the Purchase Order are binding on Sendum.
3. TITLE AND DELIVERY. Title. Subject to Article 12 below (Intellectual Property), title to the Products shall pass to Customer when Sendum ships the Products to Customer. Delivery. Sendum shall deliver the Products at the shipping point (being the designated depot in Vancouver, British Columbia selected by Sendum as its shipping point for Products). Delivery dates are approximate only. Sendum shall notify Customer in writing if Sendum has any knowledge of any event that is reasonably likely to delay or change any delivery date.
4. EXPORT CONTROL. Customer shall not, whether directly or indirectly (including facilitating a third party), export or re-export the Products from the country in which Customer has indicated to Sendum the Products will be sold and licensed to end-users without obtaining all applicable governmental licences.
5. LICENCE. Effective the date of delivery of the Products to Customer, Sendum grants Customer a non-exclusive, non-transferable, worldwide, fully paid-up licence ("Licence") to: (i) use the Software installed on the Product, but solely on the unit of Product where it resides when purchased; (ii) use Software not installed on the Product solely in connection with the Product; (iii) configure and set-up the Software in support of the Product. Except as otherwise provided herein, Customer shall not (nor cause or authorize any third party to do any of the foregoing): (i) use, reproduce, copy, modify, create derivative works of, or pledge as security or otherwise encumber, the Software; (ii) reverse engineer, decompile, translate, adapt or disassemble the Software in an attempt to reconstruct or discover the source code or algorithms of the Software, except as may be permitted by law; (iii) rent, lease, license, transfer or otherwise provide access or distribution rights to the Software; and (iv) remove, alter or cover trademarks proprietary notices or legends included by Sendum in or on the Licensed Software or documentation.
6. CHANGES TO THE PRODUCTS. Sendum reserves the right from time to time, in its sole discretion, to: (a) modify, change, discontinue or to limit its production of any Product; (b) allocate, terminate or limit deliveries of any Product in time of shortage; provided that with respect to paragraph (a) above, Sendum shall not exercise such right in respect of Product in any accepted Purchase Order, without written approval from Customer.
7. PRICES AND TERMS OF PAYMENT. Prices. The prices in the Sendum price list include all applicable fees for the Licences, all necessary packaging, and are based on delivering the Products per Article 3 (Delivery Terms), but do not include applicable federal, state, provincial, local or other government taxes. Invoicing. Sendum shall invoice Customer upon shipment of the Products. Payment. Customer shall pay all invoices in the currency stated in the invoice. All payments for Products are due and payable in advance of shipment or access in accordance with the applicable invoice issued by Sendum. Late Payment. If Customer fails to pay any amount not in dispute when due, Sendum may, without prejudice to any other remedy, stop or suspend its performance, alter payment terms, terminate the agreement and any other agreements with Customer, and charge interest on all overdue amounts at the rate of one percent (1.0%) per month compounded monthly (12.68% per year), or if less, the maximum rate allowed by law. Upon demand, Customer shall pay all such interest charges and all reasonable collection fees, including reasonable legal expenses. Despite the forgoing, where the laws of the Customer's jurisdiction of incorporation provide an alternative method for calculating interest on late payments, such method shall prevail.
8. LIMITED WARRANTY. Sendum warrants to the Customer that, from the date of invoicing of the Products through the Warranty Period (as defined below): (a) the Products will substantially comply with, and perform per, the datasheet specifications available at http://sendum.com; (b) the hardware, and the media on which any Software is provided, shall contain only new materials and shall be free from material defects in materials and workmanship under normal use; and (c) title to the Products shall be free of liens, security interests and other claims. The "Warranty Period" for the hardware elements of the Products is twelve (12) months, and for the Software is ninety (90) days, from the date of shipment. Not Covered. The warranty does not apply to Products that: (i) have been installed, used or operated other than per the specifications; (ii) have been maintained, altered or modified, opened or repaired, other than by Sendum or its authorized service provider; (iii) have been physically damaged, other than by Sendum or its authorized service provider; (iv) have experienced signal reception problems, unless caused by a defect in material(s) or workmanship in the Product; or (v) have had their serial numbers altered, removed or rendered illegible. Return Procedure. To return a defective Product, Customer must contact Sendum and request a Return Material Authorization ("RMA"), and follow the instructions set out in the RMA. If Sendum finds that the returned Product meets the warranty conditions set out in this section, it shall, at its expense and option: (1) repair the defective Product, apply the current Product firmware release, or replace the defective Product with a new or rebuilt unit (which may use refurbished parts of similar quality and functionality) or a substitute unit of equal or superior functionality; (2) ship the repaired or replaced Product back to Customer; and (3) warrant the repaired or replaced Product for a period of ninety (90) days or the remainder of the original Warranty Period, whichever is longer. No Fault Found. If Sendum is, despite reasonable commercial efforts, unable to find a fault with a Product returned by Customer under the warranty: (a) the returned unit shall be deemed to be No Fault Found ("NFF"), and Sendum shall ship the NFF unit back to Customer at Customer's expense, and (b) Customer may be required to pay the NFF fee of US$50 for each NFF unit.
9. EXCLUSIONS. THE WARRANTIES SET OUT IN SECTION 8 ARE SENDUM' EXCLUSIVE WARRANTIES FOR THE PRODUCTS. SENDUM SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY THAT: THE PRODUCTS WILL PROVIDE UNINTERRUPTED OR ERROR-FREE OPERATION.
10. INDEMNIFICATION. Subject to section 11, Sendum will defend, at its expense, any suits against Customer based upon a claim that any Product furnished hereunder by Sendum infringes a U.S. patent, trademark or copyright or misappropriates a trade secret and to pay any and all costs, liabilities, losses, and damages awarded based upon such claim in any suit or agreed upon in settlement. Sendum is relieved of its obligation to defend to the extent Customer fails to notify Sendum in writing as soon as reasonably practicable after Customer’s receipt of notice of the suit and such failure prejudices Sendum’s defense of the suit. If the use or sale of any Product furnished under these Terms and Conditions is enjoined as a result of such suit, Sendum at its option and at no expense to Customer, will: (i) obtain for Customer the right to use or sell such Products; or (ii) substitute an equivalent product reasonably acceptable to Customer and extend these obligations thereto. If Sendum cannot implement either of the foregoing after exhausting all commercially reasonable efforts within a reasonable period of time, Sendum shall reimburse Customer the purchase price therefore depreciated over two years, and upon receipt of such refund, shall accept the return of such Products. Sendum shall have the right to decline to make further shipments of Products which have been enjoined without being in breach of contract. Sendum shall have no obligation to defend to the extent that an infringement allegation is based upon: (i) use of the Products in an application or environment, or in combination with any other product or software, or on a platform or with devices, for which the Product was not designed or contemplated; (ii) modifications, alterations or enhancements of the Product not created or provided by Sendum; (iii) any patent, copyright or trade secret which Customer or any of its affiliates owns or to which they have exclusive interest; (iv) the use of a non-current version of the Software, provided Sendum has made a more recent or current version of the Software (with equivalent or better functionality) available to Customer at no charge; and (v) use of a third party's products or software.
11. LIMITED LIABILITY. IN NO EVENT SHALL SENDUM BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THESE TERMS AND CONDITIONS OR THE USE OF THE PRODUCTS PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR REVENUES, LOST DATA, FAILURE TO REALIZE EXPECTED SAVINGS, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSSES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING THEORIES OF NEGLIGENCE, RECKLESSNESS, STRICT LIABILITY, OR DEFECTIVE PRODUCT LIABILITY), OR ANY OTHER LEGAL THEORY, EVEN IF SENDUM WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SENDUM' TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION OR OTHERWISE ARISING IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL PRICE PAID BY CUSTOMER FOR THE PRODUCTS IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE. SENDUM AGREES TO SELL AND LICENSE THE PRODUCTS TO CUSTOMER, AND CUSTOMER AGREES TO PURCHASE AND LICENSE THE PRODUCTS FROM SENDUM, ONLY IN CONSIDERATION OF, AND IN RELIANCE UPON, THE PROVISIONS SET OUT IN THIS ARTICLE 13. THESE PROVISIONS CONSTITUTE AN ESSENTIAL PART OF THE BARGAIN BETWEEN THE PARTIES AND HAVE BEEN REFLECTED IN THE PRICE AND OTHER CONSIDERATION FLOWING BETWEEN THE PARTIES. These limitations and disclaimers are not made where prohibited by law. 12. INTELLECTUAL PROPERTY. Except for the Licence granted under Section 5, Customer acknowledges that it acquires no right, title or interest in or to the intellectual property in: (a) the Products; (b) any other product or invention of Sendum; (c) any combination of the Products with any other product of Sendum; or (d) any third party elements incorporated in the Products.
13. APPLICATION. Customer hereby represents, warrants and covenant that: (a) it will comply with all with all country, federal, state, provincial and local laws, ordinances, codes, regulations, rules, policies and procedures of any government or other competent authority where the Products are purchased by Customer or are to be sold, used or deployed ("Applicable Laws"); and (b) these Terms and Conditions and each of its terms are in full conformance and compliance with such Applicable Laws. Customer will use its best efforts to regularly inform Sendum of any requirements under any Applicable Laws that directly or indirectly affect these Terms and Conditions, the sale, use and distribution of Products or Sendum’s commercial, industrial or intellectual property rights or interests, including, but not limited to, certification or type approval of the Products from the proper authorities. Nothing in these Terms and Conditions will limit or exclude Sendum’s liability for any liability which cannot be excluded by Applicable Laws. In particular, if these Terms and Conditions are held to constitute a supply of goods or services to a “consumer” by a competent court in the jurisdiction where the Products are purchased by Customer or are to be sold, used or deployed by application of mandatory principles of consumer law in that jurisdiction, nothing contained in these Terms and Conditions will exclude or restrict Customer’s rights in relation to the Products to be supplied under these Terms and Conditions where to do so is unlawful pursuant to Applicable Laws.
14. DATA. Subject to the following sentence, Customer retains ownership of all data it submits to Sendum and hereby grants Sendum a perpetual, fully paid-up, royalty-free, worldwide, non-exclusive licence to access, use, copy, support, maintain, modify and sublicense the data for the purpose of delivering the Products to Customer. Sendum will own all aggregated, analytical, statistical and other data arising or derived from the provision of services to Customer ("Metadata"), including the number and types of transactions, interactions, configurations and events occurring or processed in connection with its Products, and nothing in this Agreement will prevent or limit Sendum in using such data, provided that the use will not reveal any personal information or Customer specific data to a third party, or breach Applicable Laws. To the extent ownership of the Metadata does not vest in Sendum, Customer hereby assigns, agrees to assign, and cause to be assigned, all right, title and interest in the Metadata, and to waive, and cause all authors to waive, in favour of Sendum all moral or similar rights in the Metadata.
15. CERTAIN RISKS. Customer acknowledges that the use of batteries in connection with the Products is not without risk, including the use of lithium-ion batteries which may pose unique safety hazards since they contain a flammable electrolyte and may be pressurized and that improper manufacture, use, handling, storage or disposal, mechanical abuse or overheating may enhance the risk of personal injury or property damage arising from that are included with Products. Customer shall at all times comply with all instructions from Sendum regarding the proper use, handling, storage and disposal of batteries that are included with Products and only use the Products for their intended use. If Customer has knowledge of any incident, problem or defect with any batteries that are included with Products, Customer shall expeditiously report such matter to Sendum, cooperate with Sendum in resolving such matter, and otherwise mitigate, to the extent practicable, any harmful effect of such matter that is known to Customer.
16. NON DISCLOSURE. This agreement shall be governed by the following: all information, including but not limited to technical, financial or commercial information, disclosed by Sendum to Customer, whether in tangible or intangible form, and whether marked as being confidential or by virtue of its nature could reasonably be expected to be confidential, shall be considered to be "Confidential Information" and shall be subject to the strictest confidentiality obligation. Customer shall not disclose any Confidential Information to third parties, and shall only disclose Confidential Information to those of its employees who have a need to know the Confidential Information to perform their work and who have signed a written agreement of confidentiality at least as stringent as set out herein. Customer may disclose Confidential Information to the extent it is required by law, regulation, court order or any governmental or regulatory body or authority to so disclose, but then only to the extent so ordered or required and exercising all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded to the Confidential Information. In such circumstances, Customer shall use its best efforts to advise Sendum at the earliest possible time of the form and content of any Confidential Information that will be disclosed in order to give Sendum sufficient time to seek a protective order or other appropriate remedy. Customer acknowledges that any use or disclosure of Confidential Information in a manner not authorized by these Terms and Conditions will cause Sendum irreparable harm that could not be fully remedied by monetary damages. Customer agrees that, in addition to any other remedies it may have at law or in equity, Sendum shall have the right to apply for such injunctive or other equitable relief from a court or arbitrator of competent jurisdiction as may be necessary to prevent the unauthorized or unlawful action.
17. FORCE MAJEURE. Sendum shall not be liable if its performance becomes commercially impracticable due to any contingency beyond its reasonable control including, but without limitation, acts of God, fires, floods, wars, sabotage, civil unrest, accidents, labour disputes (other than those with Sendum employees), labour shortages, government laws, rules and regulations, whether valid or invalid, inability to obtain material, equipment or transportation, incorrect, delayed or incomplete specifications, drawings, or data supplied by a third party, except that lack of funds or credit shall not constitute a Force Majeure.
18. GOVERNING LAW & DISPUTES. All claims or disputes arising hereunder or in connection with these Terms and Conditions shall be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
19. GENERAL TERMS. Assignment. Customer shall not assign its order, or any interest therein, or any rights hereunder without the prior written consent of Sendum. Waivers. A party's waiver of any breach by the other party or failure to enforce a remedy will not be considered a waiver of subsequent breaches of the same or a different kind. Entire Agreement. These Terms and Conditions represent the entire agreement between the parties relating to the sale of Products. No prior representations or statements relating to the sale of the Products made by any Sendum representative, which are not stated herein shall be binding on Sendum. No addition to or modification of any provision in this contract shall be binding upon Sendum unless made in writing and signed by a duly authorized Sendum representative.