Terms and Conditions of Sale – August 2022
THESE GENERAL TERMS AND CONDITIONS OF SALE (THESE “TERMS”) APPLY TO ALL TRANSACTIONS WHICH ARE (A) NOT STATED IN ANY SEPARATE WRITTEN AGREEMENT BETWEEN THE CUSTOMER (“BUYER” OR “YOU”) AND HAILO TECHNOLOGIES LTD. (“SELLER”) SIGNED BY BOTH PARTIES. NO OTHER TERMS WILL BE VALID UNLESS SPECIFICALLY AGREED TO IN WRITING BY SELLER AND UNLESS INDIVIDUALLY AGREED TO IN A WRITING BY SELLER, SELLER EXPRESSLY, AND AUTOMATICALLY REJECTS ANY AND ALL TERMS CONTAINED IN BUYER’S REQUEST FOR QUOTATION, PURCHASE ORDER, BUYER’S TERMS AND CONDITIONS OF PURCHASE, AND BUYER’S WEBSITE, THAT ARE IN ADDITION TO OR INCONSISTENT WITH THESE TERMS, OR WITH SELLER’S QUOTATION AND/OR THE APPLICABLE DOCUMENTATION (IF ANY). SELLER’S WILLINGNESS TO SELL PRODUCTS AND SERVICES TO BUYER AT QUOTED PRICES AND QUANTITIES IS CONDITIONED ON BUYER’S ACCEPTANCE OF THESE TERMS. ANY SAID TRANSACTION SHALL BE ACCOMPANIED WITH A SELLER’S QUOTE ACCEPTED BY BUYER, PURCHASE ORDER ACCEPTED BY SELLER OR OTHER ORDERING DOCUMENT ACCEPTED BY SELLER (“ORDER”). BY EXECUTING AN ORDER, INSTALLING, HAVING INSTALLED, CONTROLLING, ACCESSING OR OTHERWISE USING THE PRODUCTS AND/OR SERVICES STATES IN SUCH APPLICABLE ORDER (“PRODUCT(S)), YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY ALL THE TERMS AND CONDITIONS HEREOF AND REPRESENTING THAT YOU HAVE FULL RIGHT, POWER, AND AUTHORITY TO ENTER INTO AND PERFORM HEREUNDER.
1. FEES; PAYMENT TERMS; CANCELLATIONS
a. Billings for Products and related services will be in writing and at the prices stated in the applicable Order plus any freight or handling charges (“Fees”). The Fees do not include any taxes, including VAT, sales taxes, and withholding taxes, now or hereafter applicable on the Products or services associated with the transaction, which (if applicable) will be added by Seller to the Fees where Seller is required by law to withhold or collect the same.
b. Unless otherwise provided between the Parties in an Order all Fees are in U.S dollars (USD$) and shall be payable within net+ thirty (30) days upon Seller’s issuance of an invoice (“Payment Date”). All Fees not paid within such period will be subject to monthly interest equal to the lower of (i) three percent (3%), or (ii) the maximum interest rate permitted by law.
c. Each shipment will be a separate and independent transaction and will be invoiced separately. Buyer will pay for each shipment separately and as invoiced.
d. The acceptance of any Order does not constitute a waiver of Seller’s right to collect the balance or an accord and satisfaction of the debt or debt(s) due and owing. If, at Seller’s sole discretion, the Buyer’s financial condition at any time does not justify continuance of production or shipment on the original terms of payment or upon default or breach of these Terms by Buyer, Seller may stop production or halt a shipment and charge Buyer a cancellation fee and require full or partial payment in advance. If bankruptcy, insolvency, or any proceeding is brought by or against Buyer under bankruptcy and insolvency laws, Seller may cancel any outstanding Order without waiving its claim for damages or any other remedies. If shipments are delayed by Buyer without Seller’s prior express written consent, payments will be due on the Payment Date with no change. Products held by Seller for Buyer will be at Buyer’s risk and expense. Seller shall not be limited to its rights and remedies against Buyer set forth in these Terms but shall be entitled to pursue all other rights and remedies as may be available to it under law or otherwise.
e. Orders are binding and may not be canceled, changed, rescheduled, nor returned (other than in accordance with these Terms) without Seller’s written approval. Seller, at its option, may accept or reject any Buyer request for cancellation, change, reschedule or return, and Seller reserves the right to impose change/cancellation fees and related charges on Buyer in connection therewith.
f. Seller reserves the right to discontinue production of any Product at any time. Seller shall provide industry-standard notice or discontinuation as set forth in the joint JEDEC/ECIA/IPC standard J-STD-048 (Notification Standard for Product Discontinuance). Seller will not discontinue production until Seller has produced the total quantity of Product(a) which are subject to an outstanding valid and duly executed Order and shall implement discontinuation no earlier than the longer of (i) six months after the date
of Buyer’s last Order or (ii) twelve (12) months after last Product(s) shipment date to Buyer. Seller notice of discontinuation as posted on Seller’s website at Product discontinuation policies and notices shall suffice and it is Buyer’s responsibility to periodically check such publication.
2. DELIVERY; RETURNS AND EXPORT.
a. “Shipment Date” or “Delivery Date” as used in these Terms means the date Seller tenders delivery of the Product(s) to a carrier for shipment to Buyer. Shipment dates given by Seller shall be considered Seller’s best estimates only (based inter-alia on anticipated production yields, process times, and other manufacturing and market variables). Seller will use commercially reasonable efforts to fill all Order(s) provided by Buyer according to the schedule and quantity set forth in such applicable Order. Buyer shall have no remedy for late delivery unless Buyer and Seller agree in writing to specific “shipment date” or “delivery date” and to specific remedies in the event of late performance, in an applicable Order. Seller may not have sufficient supplies of one or more Products from its then-contemplated sources of supply to meet the full requirements of its customers. Whenever that situation exists, Seller may, at its option, allocate shipments of such Product(s) among Seller’s customers on any basis which in Seller’s sole opinion is equitable. However, Seller may agree with Buyer on a schedule for completing the Order. If such reduction occurs and exceeds 10% of the Order, Buyer shall have the option to accept such reduction, and if Seller did not offer to complete the Order, Seller will reimburse the Buyer for the value of the reduction on a pro-rated basis.
b. Subject to applicable Fees plus any freight or handling charges (as agreed under an applicable Order), Seller shall arrange for shipment and deliver the Product EXW (Incoterms 2010) Seller’s facilities (including Seller’s third-party manufacturing or other distribution sites). All risk of loss passes to the Buyer upon delivery to the carrier and any loss or damage during shipment or thereafter shall not relieve Buyer from any obligations hereunder. The Product is non-returnable except as provided herein.
c. Buyer acknowledges that the Product(s) may be subject to United States’ export laws and to any other applicable laws and regulations concerning the transfer of the Product(s) or any part thereof across international borders. You will comply with all applicable national and international laws that apply to your use of the Product(s), including United States Export Administration Regulations, as well as end-user, end-use, and destination restrictions which may be issued by the United States and other governments from time to time.
Before accepting receipt of each shipment of Product(s) at its own facility, Buyer shall visually inspect the packaging for correct Product part number, packaging, and quantity. If upon receipt, Buyer discovers any discrepancy visible upon such inspection, Buyer may refuse acceptance of the Product(s) within five (5) days following of receipt of each shipment of Product(s) (“Inspection Period”). Within said Inspection Period, Buyer may also inspect the Product for defects and conformity to specification or documentation provided by Seller. If Buyer discovers any defect in a Product or contends that a Product does not meet the applicable specification indicated in the documentation provided by Seller, Buyer shall immediately notify Seller in writing describing such defect or shortcoming (“Notice of Non Compliance”) and arrange for return and evaluation of the Product by Seller in accordance with Seller’s then-current Return Material Authorization (“RMA”) process for handling in accordance with the warranty provisions of these Terms. If no Notice of Non-Compliance was received by Seller within the Inspection Period the Products are deemed accepted.
4. PROPRIETARY RIGHTS
a. Seller will retain title and ownership to intellectual property rights in and to the Product(s), including without limitations, any copyright, trademark, patent, trade secret, or other intellectual property rights in and to the Product’s models, drawings, composites, patterns, dies, models, masks, working plates, schematics, bread boards, jigs, fixtures and tools made for or incorporated in the Product(s), or any interest in any other hardware and software incorporated into the Product(s). All such rights will remain the sole property of Seller and its licensors and no license of any type, express or implied, is granted to Buyer under these Terms or otherwise with respect to such rights or with respect to any trademark of Seller or its affiliated companies, even if Seller provides Product exclusively to Buyer.
b. Buyer may provide Seller with feedback regarding the use, operation, performance, and functionality of the Product(s), including identifying potential errors and improvements (“Feedback”), in
which case Seller is hereby granted
a perpetual, irrevocable, worldwide, unlimited, sublicensable, fully paid-up and royalty-free right to use the Feedback in any manner.
a. Buyer agrees it is solely responsible for reviewing, testing, and evaluating whether Seller’s Product(s) are suitable for use in Buyer’s applications, systems, design, goods, or products. Unless explicitly designated by Seller and stated otherwise in an Order, Seller’s Products are neither intended nor authorized for use in life support systems, human implantation, nuclear facilities, or any other safety-critical applications or systems where Product failure could lead to bodily injury, loss of life or severe property damage (including automotive applications). You must check the quality grade of each Product(s) before using it in an application and/or device. Your use of any of Product(s) for any applications for which the Products are not intended, is at your own sole risk. Seller shall not be in any way liable for any damages or losses incurred by you or third parties arising from the use of any Product(s) for which the Product(s) is not intended by Seller, or in any safety-critical applications or systems, and Buyer agrees to defend, indemnify and hold Seller harmless from any and all damages, claims, suits or expenses resulting from such use, and Seller disclaims all liability arising from the use of undesignated Product(s) in any safety-critical applications or systems including automotive applications.
b. Buyer agrees to use, access, and operate the Product as provided, solely for Buyer’s internal use to be incorporated into Buyer’s or Buyer customers’ products or applications (solely as expressly permitted in writing by Seller (including through any Product’s documentation)) and not for any further commercialization or provision of the Product to any third party on a stand-alone basis (“Purpose”) unless otherwise approved by Seller in writing. Buyer will not, nor allow any third party on Buyer’s behalf to: (a) modify, alter, copy, repair, transfer, emulate or create any derivative works of the Product or of any part thereof; (b) reverse engineer, decompile, decode, decrypt, disassemble, or in any way attempt to derive source code, underlying technology, or designs from the Product or any part thereof; (c) remove, alter or obscure any copyright, trademark or other proprietary rights notice, on or in, the Product(s); (d) bundle, integrate, or attempt to integrate with the Product, any third-party software technology other than as expressly permitted in writing by Seller (including through any Product’s documentation); (e) use the Product for any benchmarking or for competing development activities, or (f) publish or disclose to any third party any technical features, quality, performance or benchmark test, or comparative analyses relating to the Products (as defined below) including documentation, except for your internal use or as expressly permitted by Seller in writing. All strictly in accordance with the technical instructions set forth in the applicable Product(s) documentation (“Technical Data”).
c. Without derogating from the foregoing, Buyer must take commercially reasonable precautions to prevent any unauthorized access and/or unauthorized usage of the Product(s) and is responsible and liable for any act or omission by any of Buyer’s affiliates, your personnel, or your affiliates’ personnel, as if performed by Buyer.
6. LIMITED WARRANTY AND SUPPORT; DISCLAIMERS
a. Unless otherwise required by applicable law, Seller warrants, for the sole benefit of Buyer (not be extended or passed-through to any other person or entity including Buyer’s customers) that the Product(s) will be free from defects in material and workmanship, will materially conform to Seller’s documentations, and will be free from liens and encumbrances, for a period of one (1) year from Seller’s shipment date, provided that all of the following conditions have been satisfied: (a) Seller is promptly notified upon discovery of any defect (but in no event later than ten (10) days following the end of the warranty period) of any warranty claim; (b) Seller approves the request. (c) Buyer returns the Product(s) to Seller by Seller’s designated carrier, within seven (7) days after Buyer has received an RMA number from Seller. Seller will accept Products for warranty claim verification only when returned by Buyer in a condition that allows for suitable testing by Seller. If Seller determines that any returned Products are not covered by Seller’s warranty, Seller will invoice Buyer, and Buyer will pay, the handling costs for such Products both to Seller and back to Buyer; and (d) Seller determines that any claimed defects in the Products were not caused by unauthorized and/or irregular use of the Product(s), and the defect Products are not: (i) modified or adjusted in any manner by any party other than Seller or without Seller’s written approval, (ii) used in conjunction with your or any third party’s products, which resulted in the defect, other than as specified in the applicable documentation or approved in writing by Seller, (iii) abused, mishandled, misused or
otherwise used not in accordance with the applicable documentation and these Terms, (iv) was not fully paid, (v) misused, abused, vandalismed, improper handle, installed or shiped, purchased from an unauthorized source,
used in a manner unauthorized under this Agreement or in non-conformity with Seller’s documentation alteration or accident or damage due to the elements or similar causes not within the control of Seller or its authorized supplier. Additionally, unless explicitly stated otherwise in an Order or separate evaluation agreement, Seller makes no warranty of any kind and accepts no liability for evaluation boards and engineering samples which are supplied “AS-IS”.
b. Upon determination by Seller that any Product is defective and covered by this warranty provision, Seller shall at its option acting in its sole discretion, either repair the Product(s), replace the Product(s) or issue Buyer a credit for the amount paid by Buyer for the Product(s) under warranty. Seller shall have no other liability to Buyer for Products covered by the warranty provided herein.
c. THIS WARRANTY IS EXTENDED TO BUYER ONLY AND IS NOT TRANSFERABLE TO SUBSEQUENT PURCHASERS OR USERS OF THE PRODUCTS. SELLER HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AGAINST INFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE, WITH RESPECT TO SERVICES PROVIDED UNDER THESE TERMS OR TO THE PRODUCT, MATERIAL OR DOCUMENTATION OR ANY USE THEREOF BY BUYER. THIS SECTION 6 (LIMITED WARRANTY; DISCLAIMERS) STATES BUYER’S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF WARRANTY. SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES FOR ANY SERVICES PERFORMED BY OR ON BEHALF OF SELLER. NO SALESPERSON, REPRESENTATIVE, OR AGENT OF SELLER IS AUTHORIZED TO GIVE ANY GUARANTY OR WARRANTY OR MAKE ANY REPRESENTATION CONTRARY TO THOSE CONTAINED IN THESE TERMS.
d. If indicated in the applicable Order and subject to payment of the Fees, Seller shall make reasonable commercial efforts to provide standard support and maintenance services in Seller’s normal business hours. Seller may offer at its discretion additional premium support services subject to additional fees.
a. Seller shall indemnify and hold you and your respective officers, directors, employees, and successors and permitted assigns (“Indemnified Parties”) harmless from and against any costs and damages actually awarded against the Indemnified Parties by a competent court in a final judgment, as a result of, and defend the Indemnified Parties against, any third party claim that the Product(s), or any portion thereof, directly infringes such third party’s Intellectual Property rights. Such obligation is subject to (i) the Indemnified Parties promptly notifying Seller in writing of any such claim; (ii) Seller having the ability to assume sole control of the defense and/or settlement of such claim; (iii) the Indemnified Parties furnishing to Seller, on request, all reasonable information available to the Indemnified Parties for such defense; and (iv) the Indemnified Parties not admitting fault with respect to any such claim and/or making any payments or concessions with respect to such claim without the prior written consent of Seller. Seller shall (i) keep the Indemnified Parties duly informed in connection with the litigation and/or settlement negotiations, and (ii) not execute any settlement covenant that imposes any liability or obligations on the Indemnified Parties without the prior written consent from the relevant Indemnified Parties.
b. Should the Product(s), or any part thereof, become, or in Seller’s opinion be likely to become, the subject of any infringement claim as specified above, then Seller will, at its own option and expense either: (i) procure the right to continue using the Product(s) without infringement; (ii) replace or modify the Product(s) without non-negligibly reducing its functionality, so that it becomes non-infringing; or (iii) if (i) or (ii) cannot be achieved with by using reasonable commercial efforts, Seller shall be entitled to accept the return of the Products and reimburse Buyer for the sales amount thereof.
c. Notwithstanding the foregoing, Seller shall have no liability for any claim of infringement which results from (a) the use of the Product(s) in violation of any provision of these Terms or Seller’s documentation or specifications, (b) your failure to install changes, revisions or new releases as instructed or provided by Seller at no cost, (c) use of a combination of the Product(s) or any part thereof with other products, equipment, or software; (d) customizations, configurations or design carried out at the request of
Buyer or in order to comply with any industry-standard required by Buyer;
or (e) modifications of the Product(s) not made by Seller or without Seller’s prior written consent.
d. This Section 7 (Indemnification) states the exclusive remedy of the Indemnified Parties and the entire liability of Seller with respect to infringement claims involving the Product(s) or any part or use thereof, and Seller shall have no additional liability with respect to any alleged or proven infringement.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL SELLER, NOR ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDER, AND EMPLOYEES’ (“SELLER’S PARTIES”) AGGREGATE LIABILITY TO YOU, EXCEED THE AMOUNTS PAID BY YOU TO SELLER IN RESPECT OF THE PRODUCT(S) UNDER THE ORDER WHICH THE APPLICABLE CLAIM ASSOCIATED WITH. IN NO EVENT WILL SELLER OR SELLER PARTIES, HAVE ANY LIABILITY TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR BUSINESS INFORMATION ARISING FROM THE INSTALLATION, OPERATION, USE OF OR INABILITY TO USE THE PRODUCT(S), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THESE TERMS MAY BE BROUGHT AGAINST SELLER MORE THAN TWELVE (12) MONTHS AFTER THE TERMINATION OR EXPIRATION OF THESE TERMS.
- Obligations. Each party (“Receiving Party”) agrees that all Confidential Information (whether oral, written, or digital) it obtains from the other party (“Disclosing Party”) in connection with these Terms (whether before or after the Effective Date), is the Confidential Information of the Disclosing Party. The Receiving Party agrees to (a) keep the Disclosing Party’s Confidential Information confidential and not disclose the Disclosing Party’s Confidential Information to any third party without the prior written consent of the Disclosing Party; (b) use the Disclosing Party’s Confidential Information only as necessary to perform its obligations under these Terms; (c) use at least the same degree of care in keeping the Disclosing Party’s Confidential Information confidential as it uses for its own Confidential Information of a similar nature, but will in no event use less than reasonable care; and (d) limit access to the Disclosing Party’s Confidential Information to its employees and contractors who have a need to know for the purposes of these Terms, subject to such employees being bound in writing by confidentiality obligations that are at least as protective of Discloser’s rights as specified in these Terms. The Receiving Party agrees to notify the Disclosing Party in writing of any misuse, unauthorized disclosure, or misappropriation of the Disclosing Party’s Confidential Information immediately after the Receiving Party becomes aware of any such misuse, unauthorized disclosure, or misappropriation. Nothing in these Terms will affect any obligation of either party to maintain the confidentiality of a third party’s confidential information. Technical Data shall be deemed as Seller’s Confidential Information.
b. Exceptions. The Receiving Party will not be obligated under this Section 9 (Confidentiality) with respect to any information the Receiving Party can document (a) now or later becomes generally available to the public without fault of the Receiving Party; (b) is rightfully in Receiving Party’s possession without obligation of confidentiality prior to its disclosure by the Disclosing Party; (c) is independently developed by Receiving Party without the use of any Confidential Information of Disclosing Party; (d) is obtained by Receiving Party without obligation of confidentiality or restrictions on use from a third party who has the right to so disclose it. The Receiving Party may use or disclose the Disclosing Party’s Confidential Information to the extent such use or disclosure is reasonably necessary to comply with a judicial body or applicable governmental regulations or authority or court order; provided that the Receiving Party provides reasonable advance written notice to the Disclosing Party of any such disclosure and uses its reasonable efforts to cooperate with the Disclosing Party to secure confidential treatment or obtain a protective order in connection with the Disclosing Party’s Confidential Information prior to its disclosure (whether through protective orders or otherwise) and discloses only the minimum amount of information necessary to comply with such requirements.
10. SUPPLEMENTAL TERMS FOR SAMPLE PRODUCTS, FREE OF CHARGE PRODUCTS, PRE-RELEASE PRODUCT VERSIONS.
Hailo may make available, at its sole discretion, certain sample products, free of charge products, pre-release product versions free of charge, raffle prizes, or portions of such (“Sample(s)”), and this Section shall apply and govern such Sample. The right to access and use Sample is not guaranteed for any period of time and Hailo reserves the right, in its sole discretion, to: (i) limit or terminate the use of or access to Sample or any part thereof; or (ii) reduce, change or deprecate the functionality of the Sample. Without derogating from other restrictions set forth under these Terms, and unless otherwise expressly permitted by Hailo with respect to a specific Sample(s), the access and use of the Samples is permitted solely for your internal, non-commercial, non-production environment purposes and may not be used for any other purposes.
SAMPLES ARE PROVIDED “AS IS” WITHOUT ANY SERVICE, SUPPORT, INDEMNITY, LIABILITY OR REMEDY OF ANY KIND (NOTWITHSTANDING ANYTHING TO THE CONTRARY). TO THE EXTENT ALLOWED BY APPLICABLE LAW, HAILO EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY, CONDITION, OR OTHER IMPLIED TERM AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF SAMPLES. You acknowledge that the Sample may contain defects, bugs, errors, and other complications that could cause system or other failures and loss (including, but not limited to, data loss). You acknowledge that any use or access that you perform using Sample or any product associated with Samples is done entirely at your own risk. Notwithstanding anything to the contrary, no rights are granted by Hailo nor obligations undertaken with respect to returns or refunds in connection with any Sample(s).
The terms of this Section apply, and prevail over any conflicting terms in these Terms, with respect to all access to and use of Sample. To the extent that any provision in this Section is in conflict with any other term or condition in these Terms, this Section shall supersede such other term(s) and condition(s) with respect to the Sample(s), but only to the extent necessary to resolve the conflict.
a. In the event any provision or part of these Terms is held to be invalid or unenforceable by any court of competent jurisdiction, it shall be amended to the extent required to render it valid, legal, and enforceable, or deleted if no such amendment is feasible, and such amendment or deletion shall not affect the enforceability of the other provisions hereof.
b. No waiver of any breach of these Terms will be a waiver of any other breach, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
c. These Terms supersede all previous agreements or representations, written or oral, with respect to the subject matter hereof between you and Seller. These Terms may not be modified or amended except in writing signed by a duly authorized representative of each party.
d. The validity, interpretation, and performance of these Terms shall be controlled by and construed under the laws of the State of Israel as if performed wholly within Israel and without giving effect to the principles of conflicts of laws. The Parties hereby consent to the exclusive jurisdiction of the applicable courts of Tel-Aviv, Israel.