General terms and conditions of sale of goods and services
- In these conditions:
- Buyer: Means the person who accepts a quotation of Sensofar for the sale and/or installation of the Goods or whose order for the Goods is accepted by Sensofar.
- Goods: Means the goods (including any installment of the goods or any parts for them) which Sensofar is to supply and/or install in accordance with these Conditions.
- Sensofar: Means SENSOFAR MEDICAL S.L.
- Conditions: Means the standard terms and conditions of sale set out in this document and (unless the context otherwise required) includes any special terms and conditions agreed in writing between the Buyer and Sensofar.
- Contract: Means the contract for the purchase and sale of the Goods.
- Writing: Includes telex, cable, facsimile transmission electronic data interface and comparable means of communication.
- Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
- The headings in these Conditions are for convenience only and shall not affect their interpretation.
- The terms and conditions of sale hereinafter set forth are expressly made part of the quotation and/or acknowledgement of Sensofar. No purchase order shall be binding until it is acknowledged and accepted by an authorized employee of Sensofar. Any terms and conditions contained in Buyer’s purchase order which are in addition to or inconsistent with the terms and conditions contained herein shall not be binding upon Sensofar unless they are expressly agreed to by Sensofar in writing.
- Unit prices quoted for goods shall be valid for thirty (30) days unless specified. Orders received after expiration of that thirty-day period shall be priced as indicated in Sensofar’s acknowledgement of Buyer’s order, and those prices shall apply only to the specific quantities and delivery schedule shown in the acknowledgement.
- Sensofar reserves the right to invoice items included in blanket orders that have been rescheduled to be shipped more than twelve (12) months from the date of acceptance at the prices prevailing at the time of shipment. Unit prices do not include national, local, excise, privilege, use, occupation or sales taxes whether domestic or foreign.
- Prices quoted are exclusive of, and Buyer agrees to pay, shipping and related fees, foreign, federal, state, local excise, sales, use, personal property and any other taxes or duties, except only taxes based on Sensofar’s income. Any certificates or other evidence of applicable exemptions to such taxes or duties must be provided to Sensofar prior to invoicing or such taxes or duties will be charged to Buyer; provided, however, if Sensofar does not collect such items from Buyer and is later requested or required to pay the same to any taxing authority, Buyer shall promptly make payment to Sensofar or directly to such taxing authority if requested by Sensofar.
- Sensofar does not guarantee its prices are equal to or lower than those charged to other customers or comparable to prices offered by a third party.
- Except as otherwise specified, all payments are due and payable in EURO within thirty (30) days from the Buyer’s receipt of invoice date. Payments not made by the due date may incur, at the sole discretion of Sensofar, a late payment service charge of the lesser of 1.5% per month or the maximum rate permitted by law, computed from the date payment was due. All payments, including deposits, shall be non-refundable.
- Sensofar reserves the right to require alternative payment terms, including, without limitation, a letter of credit or payment in advance.
- If Buyer fails to make any payment when due, Sensofar may immediately repossess all goods not paid in full and may suspend provision of goods and services. Sensofar will also be entitled to reimbursement of any reasonable out- of-pocket expenses incurred in collecting payments due, including without limitation attorneys’ and collections fees.
- Cancellation; Suspension.
- Buyer may not cancel, reduce in quantity or reschedule Orders for custom goods or goods that have left Sensofar’s dock. All other Orders for goods are subject to 10% cancellation fee and cannot be cancelled nor modified without the express written consent of Sensofar. Sensofar reserves the right to incur additional cancelation charges including, but not limited to, charges for work in process, purchase commitments, amortized costs, tooling and production interruption.
- If Buyer fails to make timely payments or breaches any other material obligation under these Terms and such failure continues for thirty (30) days after receipt of written notice thereof from Sensofar, or has a receiving order in bankruptcy made against it, makes any arrangement with its creditors, or has a receiver appointed, Sensofar may without prejudice to its other rights: (i) demand immediate payment of all unpaid accounts; (ii) suspend further deliveries and/or services; (iii) repossess all unpaid goods delivered under this agreement and collect reasonable costs in recovering said goods; (iv) uninstall all software; and/or (v) cancel this agreement.
- Purchase Money Security Interest. Until Buyer has paid the entire purchase
price, Buyer grants and conveys to Sensofar and Sensofar retains, a purchase money security interest in the goods. Upon request by Sensofar, Buyer will execute any document necessary for Sensofar to perfect the security interest, and Buyer authorizes Sensofar to file this Agreement and any appropriate financing statement for purposes of such perfection.
- Delivery terms for all sales are Ex-Works (EXW). Title and risk of loss or damage to the goods belong to the Buyer. Sensofar will arrange for an appropriate means of transportation of goods. Buyer agrees to pay all transportation charges incurred unless Sensofar otherwise agrees in writing. Buyer shall bear any special expenses, including special handling, packaging and additional freight charges, if Buyer furnishes special transportation instructions. When “export packing” is required, Buyer shall be responsible for any extra charges such as export duties, licenses, fees and the like.
- Orders for goods to be exported are subject to Sensofar’s ability to obtain export licenses and other necessary papers within a reasonable period. Buyer will furnish all Consular and Customs declarations and will accept and bear all responsibility for penalties resulting from errors or omissions therefrom. Buyer will not re-export goods or any products or items which incorporate goods if such re-export violates local export laws.
- Delivery dates are approximate and not guaranteed. Sensofar will not be liable for any damages or costs resulting from delays in performance.
- Acceptance of the goods and services will occur the earliest of: (i) Buyer’s written acknowledgement of acceptance; (ii) successful completion of any testing agreed upon by the parties in writing; (iii) if the foregoing is inapplicable, upon delivery unless Buyer provides Sensofar with written notice of rejection within 2 days after delivery or another period agreed to in a signed writing by the parties. Buyer may reject goods and/or services only if they do not meet Sensofar’s published specifications or are otherwise defective, Buyer provides a detailed writing as to how goods and/or services do not meet specifications or are defective, and Buyer provides Sensofar thirty (30) days to correct the same.
- Installation; Maintenance. Buyer also assumes responsibility for ensuring its site meets all specifications and other criteria identified by Sensofar as necessary in order to support the goods and services. Sensofar will make installation, support and maintenance services available at Sensofar’s then-prevailing rates. Sensofar has no obligation to install, support or maintain goods not sold or manufactured by Sensofar or its Affiliates.
- Rights and Use. Buyer represents it is buying goods for its own internal use only and not for resale or export. The foregoing does not apply to Sensofar’s authorized distributors.
- Sensofar warrants the goods and services in accordance with its standard warranty policy available at next section. THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. No employee or agent of Sensofar, other than an officer of Sensofar by way of a signed writing, is authorized to make any warranty in addition to the foregoing.
- Sensofar reserves the right to make changes in the design of its products at any time without incurring any obligation to make those changes on products it has previously sold.
- Proprietary Rights.
- Sensofar and its licensors will retain all intellectual property rights to its goods and services, including without limitation, designs, drawings, patterns, plans, specifications, technology, technical data, software and information, technical processes and business methods, whether patentable or not, arising from the sale or other provision of goods and/or services to Buyer. Buyer agrees not to enforce against Sensofar or Sensofar’s customers any patent rights that include any system, process or business method utilizing or otherwise relating to goods and/or services delivered pursuant to an Order. Sensofar will not furnish any data, other than installation and specification data, unless it is specifically requested in an Order. The parties will separately negotiate rights and price for such data.
- Buyer shall indemnify and hold Sensofar harmless against any expenses, damages, costs or losses (including, but not limited to, attorney fees and court costs) resulting from any suit or proceeding brought for infringement of patents or trademark or for unfair competition arising from compliance with Buyer’s designs, specifications or instructions.
- Buyer shall not receive any rights to Sensofar’s patents, trademarks, trade names, service marks, logos or copyright through the purchase of products from Sensofar.
- Sensofar grants Buyer a non-transferable, non-sublicenseable and non-exclusive license to use software contained, delivered separately, pre-loaded, installed or embedded in the goods (“Firmware”) as necessary to operate the goods in compliance with accompanying documentation. All free standing software is licensed, not sold, to Buyer and subject to Sensofar’s licensing agreement accompanying the software (“License”). All rights, title and interest in Firmware and software not expressly granted to Buyer herein or in the License remain the exclusive property of Sensofar or its licensors. Buyer and any third party acting through Buyer may not (i) use Firmware or software for any purpose not expressly permitted by these Terms or the License, (ii) reproduce Firmware or software or any component thereof or any documentation related thereto, (iii) modify or create derivative works of Firmware or software, (iv) decompile, disassemble, compile or reverse engineer Firmware or software or otherwise attempt to gain access to the source code, or (v) not use, duplicate or disclose any technical data or any information regarding the Firmware or software for any purpose. These rights are subject to any third party license underlying any component or application of the software. Sensofar is not responsible and bears no liability for malfunction or inoperability of goods, software or Firmware, resulting from (i) Buyer directly or indirectly engaging in any of the foregoing items (i) through (v) above, (ii) changes to or de-commitment of operating systems or other applications by any original equipment manufacturer, (iii) introduction of a virus or other malware caused directly or indirectly by Buyer, or (iv) inoperability or incompatibility with any Buyer network. Any such actions will render any remaining warranty immediately void and of no further force or effect. For avoidance of doubt, Buyer may not transfer or install software or Firmware on any goods not acquired from Sensofar and software and Firmware will only be installed and used on the specific, single workstation for which it is licensed, excluding only updates (published by Sensofar for general customer distribution at no charge, i.e., error correction or patch).
- Limitations of Liability. EXCEPT AS OTHERWISE REQUIRED BY LAW, IN NO EVENT WILL SENSOFAR BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES BASED UPON BREACH OF ANY WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGALL THEORY, EVEN IF SENSOFAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT OF LIABILITY, SENSOFAR’S MAXIMUM LIABILITY HEREUNDER WILL NOT EXCEED THE PRICE OF THE GOODS OR SERVICES FURNISHED BY SENSOFAR GIVING RISE TO THE CLAIM. Sensofar’s rights and remedies in these Terms are in addition to, and not in lieu of, any other rights or remedies Sensofar may have at law or in equity.
- “Confidential Information” means any confidential or proprietary information that a party (“Discloser”) discloses to the other party (“Recipient”) under this Agreement. Confidential information does not include any information that (i) is already in Recipient’s possession without obligation of confidence; (ii) is independently developed by Recipient as shown by Recipient’s records; (iii) becomes publicly available without breach of this Agreement; (iv) Recipient otherwise received legally from a third party without obligation of confidence; (v) Discloser authorizes in writing to be disclosed; or (vi) must be disclosed pursuant to a court or government agency order or rule, provided that before disclosing any Confidential Information, Recipient, to the extent permissible by law, provides reasonable notice of such order or rule giving Discloser opportunity to object to or limit such disclosure. Recipient agrees to exercise reasonable care to protect Confidential Information from unauthorized disclosure, which care shall not be less than Recipient exercises to protect its own confidential information. Recipient will use the Confidential Information solely for purposes of this Agreement and will disclose the Confidential Information only to its employees or agents who need to know such information and are contractually required to comply with these obligations of confidentiality. Notwithstanding any other provision in this Agreement, Discloser may seek provisional remedies in a court of competent jurisdiction, with or without notice, to enforce these obligations. Recipient’s duty to hold Confidential Information in confidence expires five (5) years from receipt of such Confidential Information.
- Force Majeure. Except for Buyer’s payment obligations, neither party shall be liable for delays in performance, in whole or in part, or any loss, damage, cost or expense, resulting from causes beyond its reasonable control, such as acts of God, fire, strikes, epidemics, embargos, acts of government or other civil or military authority, war, riots, delays in transportation, difficulties in obtaining labor, materials, manufacturing facilities or transportation, or other similar causes (“Force Majeure Event”). In such event, the party delayed shall promptly give notice to the other party. The party affected by the delay may: (i) extend the time for performance for the duration of the Force Majeure Event, or (ii) cancel all or any part of the unperformed part of this agreement if such Force Majeure Event lasts longer than sixty (60) days. If a Force Majeure Event affects Sensofar’s ability to meet its obligations at the agreed upon pricing, or Sensofar’s costs are otherwise increased as a result of such Force Majeure Event, Sensofar may increase pricing upon written notice to Buyer.
- Governing Law; Venue. This Agreement is governed by and construed in accordance with the laws of the location of Sensofar office or Spain, at Sensofar’s option, without regard to conflicts of law’s provisions. Any action by Buyer for loss or damage arising from or related to the goods and/or services must be commenced within the earlier of one (1) year from the date of delivery or occurrence of the event, or such claim will be forever barred. If Sensofar substantially prevails in any legal dispute, Buyer shall pay all reasonable costs incurred by Sensofar, including but not limited to collection costs, attorneys’ fees and costs of legal action.
- Neither party may assign this agreement or any rights or obligations under this agreement without the prior written consent of the other party, provided Sensofar may assign this agreement to an Affiliate. Any attempted assignment of this agreement or rights or obligations hereunder in violation of the foregoing will be null and void.
- All notices must be sent to the attention of the General Counsel at the address in Sensofar’s quotation and delivered via certified mail, return receipt requested, or a nationally recognized overnight delivery service with signature of the recipient required. Notices shall be deemed effective upon receipt.
- Entire Agreement; Modification; Waiver; Survival. These Terms are the entire agreement between the parties, there being no other promises, terms, conditions, or obligations, referring to the subject matter not contained or referred to herein. If any provision of these Terms to any extent is declared invalid or unenforceable, the remainder of these Terms will not be affected thereby and will continue to be valid and enforceable to the fullest extent permitted by law. Any modifications hereto must be in writing and signed by both parties. Sensofar’s failure to strictly enforce any of these terms shall not be considered a waiver of any of its rights hereunder. The termination or expiration of this agreement will not affect the survival and continuing validity of any provision which expressly or by implication is intended to continue in force after such termination or expiration.
This Warranty Policy applies to goods and/or services sold by Sensofar Medical S.L. or its corporate affiliates (“Affiliate”). The selling entity hereinafter referred to as “Sensofar”.
- Equipment Warranty. Unless otherwise provided by Sensofar in writing, Sensofar warrants for the earlier of 12 months from delivery, or 12 months from date of completion of assembly and installation by Sensofar (if applicable), all new equipment and other hardware will conform to Sensofar’s published specifications and be free from manufacturing defects in material and workmanship. Sensofar will pass through transferable manufacturer’s warranties for any equipment not manufactured by Sensofar. Used or refurbished equipment is provided AS-IS unless otherwise provided by Sensofar in writing.
- Equipment Parts Warranty. Sensofar warrants for 12 months from delivery, that equipment parts will conform to Sensofar’s published specifications and be free from defects in workmanship and materials. Any product or part furnished without charge to Buyer during the warranty period to correct a warranty failure is warranted until the unexpired term of the warranty applicable to the repaired or replaced equipment. Sensofar may use refurbished material for all repairs of goods.
- Equipment Accessories Warranty. Sensofar warrants that its equipment accessories, which includes custom size mandrel and used with the equipment, will conform to Sensofar’s published specifications and will be free from defects in workmanship and materials at the time of shipment.
- Software Warranty. Sensofar warrants for 12 months from delivery, that its software will perform substantially in accordance with Sensofar’s published specifications and any accompanying user documentation when used under normal operation and maintenance conditions. ANY THIRD-PARTY SOFTWARE, PROVIDED WITH THE SOFTWARE, AND DATA AND PRE-RELEASE VERSIONS OF THE SOFTWARE, ARE SUPPLIED ON AN “AS IS” BASIS WITHOUT CONDITION OR WARRANTY OF ANY KIND, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, EITHER EXPRESS OR IMPLIED. Any software warranty in any software license agreement between the parties will take precedence over this software warranty.
- Services Warranty. Sensofar warrants for a period of ninety (90) days after performance that its services will be performed in a workmanlike manner.
- Third Party Goods. Sensofar will flow down any transferable manufacturer’s warranties for any third party manufactured goods sold by Sensofar.
- Warranty Exclusions. Warranty coverage does not include any defect or performance deficiency (including failure to conform to product descriptions or specifications) which results, in whole or in part, from (i) negligent storage or handling of the good by Buyer, its employees, agents, or contractors, or use that is inconsistent with normal operation and maintenance conditions, (ii) Buyer’s failure to prepare or maintain the site or provide power requirements or operating environmental conditions in compliance with any applicable instructions or recommendations of Sensofar, (iii) adverse power or environmental conditions such as erratic power, voltage spikes, RF or magnetic interference, HVAC failure or other causes beyond the reasonable control of the Sensofar, (iv) absence of any product, component, or accessory recommended by Sensofar but omitted or removed at Buyer’s direction, (v) any misuse, alteration or damage to the good by persons other than Sensofar, (vi) combining Sensofar’s goods with any product furnished by others, or incompatible with Sensofar goods, where such combination causes failure of or degradation to performance of Sensofar’s goods (including the substitution of any reagent not authorized by Sensofar), (vii) improper or extraordinary use, improper maintenance, failure to comply with any applicable instructions or user manuals; or (viii) if servicing, repair or movement/re-location of equipment was attempted by anyone other than Sensofar authorized providers. Sensofar is not responsible for and bears no liability for malfunction or inoperability of equipment, software, firmware, accessories or other hardware resulting from (i) changes to or de-commitment of operating systems or other applications by any original equipment manufacturer, (ii) introduction of a virus or other malware caused directly or indirectly by Buyer, or (iii) inoperability or incompatibility with any Buyer network or any attempted use of software or firmware on a workstation for which same is not expressly licensed or permitted, whether or not acquired from Sensofar.
- Warranty Services. Should any failure to conform to the warranty appear within the applicable warranty period (or 30 days after shipment for equipment accessories), Buyer must promptly notify Sensofar in writing. Within a reasonable time thereafter and subject to the other provisions herein, Sensofar will make the necessary repairs at its expense after confirmation that the non-conforming goods were stored, installed, maintained and used in accordance with its recommendations, accompanying documentation, published specifications and standard industry practice. Warranty services will be performed at the location of the goods if services cannot be provided remotely or equipment is not a depot repair product which must be shipped to Sensofar for repair. Buyer will ship the goods at Sensofar’s expense to Sensofar for repair and/or replacement after obtaining a valid Return Material Authorization number (RMA). Warranty services will be performed during Sensofar’s local business hours. After-hours service may be available upon request at an additional charge. While commercially reasonable efforts will be made to render services promptly, Sensofar makes no guarantees for response times or uptime.
- The foregoing warranties are exclusively given to the Buyer and are in lieu of all other warranties, whether written, oral, express, implied, or statutory. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY. NO EMPLOYEE OR AGENT OF SENSOFAR, IS AUTHORIZED TO MAKE ANY WARRANTY IN ADDITION TO THE FOREGOING.
- Buyer’s Remedies. If Sensofar is unable to repair warranted goods after a reasonable number of attempts, Sensofar will provide, at its option, (i) new or used replacement goods provided Buyer returns the non-conforming goods; or (ii) a refund of the purchase price depreciated in accordance with standard accounting principles. These remedies are conditioned upon Buyer promptly notifying Sensofar as required in these Terms of any defect or nonconformance and making the good available for correction at a mutually agreed-upon time. THIS SECTION 10 CONTAINS BUYER’S EXCLUSIVE REMEDIES AND SENSOFAR’S SOLE OBLIGATIONS FOR BREACH OF WARRANTY. NO OTHER REMEDIES, OBLIGATIONS, LIABILITIES, RIGHTS, OR CLAIMS, WHETHER ARISING IN TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, ARE AVAILABLE.
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Sensofar Medical, S.L.
Fiscal Identification Number: ESB65811432. Company Register of Barcelona, Volume 43238, Folio 0053,General Section,
Sheet/Dup. 227504 B428412Province B. Entry 1.
Parc Audiovisual de Catalunya
Crta. BV-1274 KM 1
08225 Terrassa, Spain