Sencore, Inc. Terms Of Sale

IN THE ABSENCE OF A WRITTEN AGREEMENT SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF BOTH YOU, THE BUYER (“BUYER”) AND SENCORE, INC. (“SENCORE”) YOUR PURCHASE FROM SENCORE IS GOVERNED BY THESE TERMS OF SALE. BY PLACING AN ORDER WITH SENCORE THROUGH PURCHASE ORDER OR OTHERWISE, YOU AGREE THAT YOU ACCEPT AND ARE BOUND BY THESE TERMS OF SALE.

These Terms of Sale are in lieu of and replace any and all terms and conditions set forth in Buyer’s purchase order, specification or other documents. Any additional, different or conflicting terms or conditions in any such document issued by Buyer are hereby objected to by Sencore and any such terms or conditions shall be wholly inapplicable to any sale made to Buyer by Sencore.

Orders.

Buyer will order products from Sencore by written purchase order (an "Order"). Orders are binding commitments of Buyer and must state the: (i) identity of goods; (ii) quantity of goods; and (iii) purchase price of goods. Any additional terms or conditions stated in, referenced in or included with an Order shall not be binding upon Sencore. Sencore may accept or reject any Order for any reason in its sole discretion. Failure to respond or to send a rejection shall not be interpreted to mean that an Order has been accepted. In the event of any conflict between the terms of an Order and the terms of this Agreement, the terms of this Agreement shall prevail. Buyer may not cancel or modify any Order which has been received by Sencore unless Sencore agrees to the cancellation or modification in writing.

Price and Payment.

Prices will be as quoted in writing by Sencore and unless quoted otherwise are exclusive of taxes, duties and shipping, handling and insurance fees. Buyer is responsible for all applicable taxes. Buyer shall pay all freight, handling and shipping costs.

All payments shall be made in U.S. dollars, free of any deduction, set-off or withholding, prior to shipment unless Sencore agrees in writing to accept other currencies or credit. If payment is not in U.S. dollars, Buyer is responsible for all exchange rate and other bank fees charged for converting the funds to U.S. dollars. If Sencore has approved in writing credit terms for the Buyer, all sales to Buyer must be paid for by Buyer according to the terms and conditions of such credit terms. Sencore shall not be obligated to deliver any equipment to Buyer if Buyer is in default in the payment for any products previously ordered or if the order is in excess of the Buyer’s credit limit. Nothing herein shall obligate Sencore to extend Buyer any credit, and any credit which has been authorized may be modified or cancelled at any time in the sole discretion of Sencore.

All overdue amounts shall accrue interest at the default interest rate of twenty one percent (21%) per annum or the highest rate permitted by law, whichever is less, compounded monthly, from the date of default until paid.

Delivery and Risk of Loss.

Sencore will use commercially reasonable efforts to deliver products in a timely manner. All Products are delivered Ex Works Sencore’s facilities located in Sioux Falls, South Dakota, USA as that term is defined in the INCOTERMS 2010. Risk of loss shall pass to Buyer at the time the products are made available to the carrier for transport. Buyer may request Sencore insure a delivery, but such insurance shall be at Buyer's sole cost and expense. Accordingly, Buyer shall have the sole responsibility to file any claims with the carrier for damage, missing items or otherwise, and Sencore shall have no liability or responsibility if Buyer is unable to obtain full compensation for any loss from the claim.

Acceptance of delivery.

All products shall be subject to final inspection by Buyer within ten (10) days after delivery by Sencore and if during that ten (10) day inspection period, Buyer determines that any product is defective in material or workmanship, Buyer may at its discretion, (i) accept such product with an adjustment in price that is agreed upon by Sencore, or (ii) reject and return such product to Sencore FCA Buyer’s location, at Sencore’s expense for credit. Any Products that are not rejected within the ten (10) day inspection period shall be deemed accepted.

Returns.

Buyer may only return products with the prior written consent of Sencore which Sencore may withhold in its sole discretion.

Limited Warranty.

Sencore warrants that each product will be free from defects in materials and workmanship (the “Limited Warranty”) for a period of twelve (12) months from the date of delivery of the product. This Limited Warranty shall not apply to any product which the Sencore determines: (i) has been abused, damaged by external causes, or altered or misused; (ii) has been damaged due to improper installation or use; or (iii) an unauthorized repair has been attempted by anyone other than Sencore.

ALL CLAIMS FOR BREACH OF WARRANTY MUST BE RECEIVED BY THE COMPANY NO LATER THAN THIRTY (30) DAYS AFTER THE EXPIRATION OF THE LIMITED WARRANTY PERIOD FOR THE PRODUCT. THIS LIMITED WARRANTY IS THE ONLY WARRANTY GIVEN BY THE COMPANY. THE COMPANY MAKES, AND RESELLER RECEIVES, NO OTHER WARRANTY EITHER EXPRESS OR IMPLIED. ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, ARE EXPRESSLY DISCLAIMED AND EXCLUDED HEREFROM.

Buyer’s exclusive remedy for any failure of a product covered by the Limited Warranty shall be, at Sencore’s sole option, repair by Sencore at a Sencore or third party facility of Sencore’s choice, replacement of the defective product, or return of the purchase price, within thirty (30) days of receipt of the product by Sencore. Buyer shall be responsible for all costs associated with the delivery of the product for warranty repair to Sencore or Sencore’s designated agent for such purpose. Sencore shall be responsible for all costs associated with the delivery of the repaired or replacement product to Buyer.

For goods or parts of goods which Sencore procures from third parties, the warranty obligations of Sencore toward Buyer are never greater or of longer duration than the warranty obligations of those third parties toward Sencore. Sencore will be discharged with respect thereto when it transfers its claim on the third party to the Buyer.

Intellectual Property and Proprietary Rights.

Buyer acknowledges that no transfer of ownership of any Intellectual Property Rights will occur under this agreement and that Sencore will retain all right, title, and interest in all Intellectual Property Rights embodied in or related to the products and any modifications, improvements or derivatives thereof. The term Intellectual Property Rights includes any and all tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighbouring rights, moral rights, and mask works, and all derivative works thereof (ii) trademark and trade name rights and similar rights throughout the world, (iii) trade secret rights throughout the world, (iv) patents, designs, inventions, algorithms and other industrial property rights throughout the world, (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force anywhere in the world (including any rights in any of the foregoing).

Buyer agrees not to directly or indirectly modify or create derivative products from the products, or reverse assemble, decompile, reverse engineer, or otherwise attempt to derive source code from (or the underlying ideas, algorithms, structure or organization of) the products. Nor will Buyer facilitate or authorize others to directly or indirectly modify or create derivative products from the products, or reverse assemble, decompile, reverse engineer, or otherwise attempt to derive source code from (or the underlying ideas, algorithms, structure or organization of) the products.

Software.

All software is subject to a license agreement and Buyer agrees that it will be bound by such license agreement in addition to these Terms of Sale.

Export Laws.

Buyer shall have sole responsibility for ensuring compliance with all import and export laws that are applicable to its purchase of products.

Limitation of Liability.

EXCEPT FOR PROPRIETARY RIGHTS OBLIGATIONS, EACH PARTY’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT WILL BE LIMITED TO THE AGGREGATE PURCHASE PRICE PAID BY BUYER DURING THE TERM OF THIS AGREEMENT. FURTHERMORE, EXCEPT FOR PROPRIETARY RIGHTS OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF REVENUES, PROFITS OR DATA, LOSS OF USE OF PRODUCT OR ANY ASSOCIATED EQUIPMENT OR DATA), WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE.

Choice of Law and Jurisdiction.

This Agreement and the relationship between the parties, including, without limitation, any and all disputes and claims whether arising in law, equity or under statute, shall be governed by, interpreted under and enforced in accordance with the laws of the State of South Dakota, United States of America, without giving any effect to its conflict of law provisions. The applicability of the United Nations Convention on Contracts for the International Sale of Goods, and any other laws that direct the application of the laws of any other jurisdiction, are expressly excluded.

Any and all disputes arising out of, or in connection with this Agreement or with transactions in any way related to this Agreement and/or the relationship between the parties shall be litigated solely and exclusively before the United States District Court for the District of South Dakota, Southern Division. The parties waive, fully and completely, any right to dismiss and/or transfer any action pursuant to 28 U.S.C.S. 1404 or 1406 (or any successor statute). In the event the United States District Court for the District of South Dakota does not have subject matter jurisdiction of said matter, then such matter shall be litigated solely and exclusively before the appropriate state court of competent jurisdiction located in Sioux Falls, South Dakota, USA. The parties consent to the in personam jurisdiction of said federal and state courts for the purposes of any such litigation.

Change to the Terms of Sale.

Sencore reserves the right to change these Terms of Sale at any time without notice.

Relationship of Parties.

The parties acknowledge that they are independent contractors and no other relationship, including partnership, joint venture, employment, franchise, master/servant or principal/agent, is intended by this Agreement. Neither party shall have the right to bind or obligate the other.

Force Majeure.

Neither party shall be liable to the other party for any delay or non-performance by reason of act of God, fire, explosion, flood, windstorm, earthquake, trade embargoes, governmental regulations, war, civil unrest, or any other cause beyond such party's reasonable control, except for payment obligations.

General.

In the event of any suit or action to enforce or interpret this Agreement or any provision thereof, the prevailing party shall be entitled to recover its costs, expenses and reasonable attorney fees, both at trial and on appeal, in addition to all other sums allowed by law. The failure of either party to insist upon strict performance of any provision of the Order shall not be construed as a waiver of any subsequent breach of the same or similar nature. This Agreement is executed in the English language and interpretation or construction of this Agreement shall be based solely on the English language. This Agreement sets forth the entire, final and complete understanding between the parties, or their predecessors, successors or assigns hereto relevant to the subject matter of this Agreement, and it supersedes, cancels, and replaces all previous understandings or agreements, written, oral, or implied, relevant to the distribution of the Company’s products made or existing before the date of this Agreement. No change, modification, or revision of this Agreement shall be effective unless agreed to in writing and signed by both parties. If for any reason any provision of this Agreement is adjudicated to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.