TERMS AND CONDITIONS OF SALE
The following terms and conditions, along with the Sentek Systems Purchase Agreement (defined below), make up the agreement between Sentek Systems, LLC and the Customer named on the Sentek Systems Purchase Agreement the (“Agreement”).
Subject to the terms and conditions of this Agreement, the parties desire that Sentek shall sell, and Customer shall purchase, certain goods and services.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties agrees as follows:
Scope of Agreement
- This Agreement governs:
- the supply of Equipment and/or Services (“Equipment” and “Services”) from Sentek, as described in a purchase agreement (“Sentek Systems Purchase Agreement” or “Purchase Agreement”); and
- the supply of Software (“Software”) from Sentek, as described in the Purchase Agreement.
- Sentek, upon acceptance of the Purchase Agreement from a Customer, will supply the Equipment, Services, and Software specified in the Purchase Agreement (“Work”) to Customer, pursuant to the terms and conditions of this Agreement. Sentek’s acceptance of such Purchase Agreement is expressly limited to the terms and conditions of this Agreement notwithstanding any contrary provision contained in Customer’s purchase orders, invoices, acknowledgements or other documents. No terms or conditions in any acceptance, acknowledgement, invoice or other document submitted by Customer which are in conflict with, different from, or in addition to this Agreement shall be binding upon Sentek unless expressly agreed to in writing by a duly officer of Sentek.
- The details of the Work (e.g. quantity, price, and product specifications) shall be set forth in the Purchase Agreement.
Terms and Conditions of Sale
- Definitions. As used in this Agreement, the following terms are defined as follows except where the context requires otherwise:
- “Affiliate” means, in relation to any person, any person directly or indirectly controlling, controlled by or under direct or indirect common control with such person and, for the purpose of this definition, a person shall be deemed to control another person if such person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other person, whether through the ownership of voting securities, by contract or otherwise.
- “End User License Agreement” means the end user license agreement incorporated within the Software. Users of the Software shall be required to affirmatively accept the End User License Agreement prior to using the Software.
- “Specifications” means the specifications set forth in the applicable Purchase Agreement.
- Price and Terms.
- The prices payable by Customer for the Work to be supplied by Sentek under this Agreement will be specified in the applicable Purchase Agreement. All prices are expressed in U.S. Dollars. Unless otherwise expressly stated in the Purchase Agreement, all prices exclude shipping and taxes. Customer shall pay all taxes, tariffs and shipping charges.
- Payment terms are specified in the Purchase Agreement.
- Unless otherwise specified in the Purchase Agreement, Work will be delivered FOB Sentek’s manufacturing facility and will be shipped to Customer via carriers selected by Sentek.
- Term and Termination.
- The term of this Agreement shall begin upon mutual execution of the Purchase Agreement by the parties (“Effective Date”) and shall continue until termination by mutual agreement of the parties or as otherwise permitted under this Section 6.
- Sentek shall have the right to terminate this Agreement in the event Customer defaults in the performance of any of its obligations under this Agreement, and such default is not cured within ten (10) days after written notice from Sentek. Sentek may also terminate this Agreement and all Work at any time without cause upon thirty (30) days written notice to Customer.
- Customer shall have the right to terminate this Agreement in the event Sentek defaults in the performance of any of its obligations under this Agreement, and such default is not cured within thirty (30) days after written notice from Customer. Except as stated in the Agreement, Customer may also terminate this Agreement and all Work at any time with or without cause upon thirty (30) days written notice to Sentek, provided that this Agreement shall continue in force during the performance of any Work that has not been completed prior to termination.
- Licensing of Software.
- Grant of License. By accepting the terms and conditions of this Agreement, Customer is granted a non-exclusive, non-transferable (subject to the transfer rights herein), non-assignable, perpetual (subject to the termination rights herein) license to use the Software pursuant to the terms of this Agreement and to the extent as described in any Purchase Agreement.
- Use. The Customer may only use the Software in accordance with the End User License Agreement. Except to the extent permissible by law the following rights cannot be restricted, Customer may not:
- Make any copies of the Software or its contents;
- Sublicense, reproduce, distribute, market, sell, transfer, or disclose the Equipment or Software to any other party;
iii. Translate, modify, disassemble, or reverse engineer the hardware or Software;
- Create derivative works based on any portion of the hardware or Software;
- Obtain possession of any source code or other technical material;
- Directly or indirectly commercially exploit the Software; or
vii. Remove, alter, or obscure any copyright notice(s) or proprietary legend(s) contained on the hardware or included in the Software.
- Payment obligations. A Customer’s right to use the Software is subject to Customer’s fulfilment of all payment obligations for the Software, and Customer’s continued compliance with the terms and conditions of this Agreement.
- Backup Copies. Customer may create a reasonable number of archival and backup copies of the Software, provided all proprietary rights notices, names and logos are duplicated on such copies.
- Resale to End Users. If permitted in the Purchase Agreement, and so long as Customer is not in breach hereunder, Customer may sublicense use of the Software to an end user, so long as such sublicense is in compliance with this Agreement and so long as such end user executes or electronically signifies acceptance of the End User License Agreement.
- Termination of License. Sentek may, with immediate effect, terminate the software licenses granted herein and exercise all available rights and remedies if, within thirty (30) business days of Customer’s receipt of a reasonably detailed written notice, Customer has not cured all breaches of license limitations or restrictions. Sentek may terminate the software licenses immediately, without right to cure, in the event Customer or any end user violates Section 7(b) or the End User License Agreement.
- Intellectual Property. Any and all copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Customer as of the date of the Agreement or made or conceived by employees of Customer during the term of this Agreement shall be and remain the exclusive property of Customer. Any and all copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Sentek as of the date of the Agreement or made or conceived by employees of Sentek during the term of this Agreement shall be and remain the exclusive property of Sentek. Without limiting the generality of the foregoing, other than the right to use the Work in accordance with this Agreement, the sale of Work hereunder to Customer shall in no way be deemed to confer upon Customer any right, interest or license in any patents, patent applications, design copyrights, trademarks, trade secrets or any other intellectual property contained in or supplied by Sentek for use with the Work. Sentek shall at all times have and retain sole title and full ownership of all such proprietary rights, including rights in and to all designs, engineering details, data and materials pertaining to any Work supplied by Sentek and to all discoveries, inventions, patents and other proprietary rights arising out of the Work done by Sentek or with any and all Products developed by Seller as a result thereof, including the sole right to manufacture and any and all such Products. Without limiting the generality of the foregoing, Customer acknowledges and agrees that Sentek is in the business of designing, developing, and implementing guidance, navigation, and control solutions and that Sentek shall have the right to provide to third parties services which are the same or similar to the Work and to use or otherwise exploit any Sentek materials in providing such services.
- Confidential Information.
- In the event the parties have executed a nondisclosure agreement (“NDA”), this Agreement is subject to the terms of the NDA executed by the parties which is incorporated into this Agreement by reference. If there is any conflict between the terms of this Agreement or any Purchase Agreement and the terms of the NDA, the terms of the NDA shall prevail. In the event the term of the NDA shall by its terms terminate during the term of this Agreement, the term of the NDA shall be deemed to extend until termination of this Agreement.
- b. In the event the parties have not executed an NDA or such NDA is no longer in effect, the following terms shall apply:
- The parties agree to hold each other’s Confidential Information in strict confidence. “Confidential Information” means any information that parties receive or otherwise have access to incidental to or in connection with this Agreement: (i) whose confidential nature has been made known by the disclosing party, orally or in writing, to the receiving party; or (ii) which a reasonable person under like circumstances would treat as confidential due to its character and nature.
- The parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than as specified in this Agreement. Each party’s Confidential Information shall remain the exclusive property of that party. Notwithstanding termination or expiration of this Agreement, the parties agree that the obligations of confidentiality with respect to Confidential Information shall continue in effect for a period of two (2) years from the date of termination.
- Each party agrees that its obligations herein apply also to, and shall be binding upon, all of its Affiliates.
- Each party shall, upon request by the other, promptly return or destroy all documentation and other materials containing any Confidential Information of the other party without retaining any copies thereof (except a single copy retained by counsel solely for documentary purposes). Each party shall thereafter, upon request by the other party, provide a certification signed by an officer of such that all such materials have been returned to the other party or have been destroyed.
- Breach. In addition to all other rights to which a party is entitled under this Agreement, if either party breaches any term of the Purchase Agreement or the Agreement, the non-breaching party shall have the right to: (a) terminate the Purchase Agreement immediately upon written notice to the other party; and (b) seek to obtain injunctive relief to prevent such breach or to otherwise enforce the terms of this Agreement. Failure to properly demand compliance or performance of any term of the Purchase Agreement or this Agreement shall not constitute a waiver of Sentek’s rights hereunder and prior to any claim for damages being made for non-conformance or breach, Customer shall provide Sentek with reasonable notice of any alleged deficiencies in the Work or performance under the Purchase Agreement or this Agreement and Sentek shall have a reasonable opportunity to cure any such alleged non-conformance or breach.
- Warranty. Sentek warrants that the Work shall reasonably conform to the Specifications. With the exception of such warranty, Sentek makes no warranty of any kind, expressed or implied or otherwise whatsoever, that the Work will be merchantable or fit for any particular purpose or use. In the event of any breach of any warranty specified in this provision, Customer’s exclusive remedy shall be that Sentek shall, at its option, repair or substitute Work at no cost to Customer or refund any purchase price paid for such Work. Sentek shall have no liability under this Agreement in the event a breach of the warranties contained herein is: (i) a result of circumstances beyond Sentek’s control; or (ii) due to third party errors or omissions.
- Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11, WORK IS PROVIDED ON AN “AS-IS” BASIS. SENTEK DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES WHATSOEVER CONCERNING THE PERFORMANCE OF THE WORK AND ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, FREEDOM FROM INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. SENTEK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. SENTEK DOES NOT ASSUME ANY RESPONSIBILITY FOR THE PRODUCTS, SERVICES, OR ACTIONS OF ANY THIRD PARTIES. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY PRODUCTS AND SERVICES ARE AGAINST THE THIRD PARTY AND NOT AGAINST SENTEK.
- Indemnification. Customer shall indemnify, defend, and hold harmless Sentek (and its Affiliates, officers, agents, owners, and employees) from and against any and all claims, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees and all related costs and expenses) incurred by Sentek as a result of any claim, judgment, or adjudication related to or arising from any third-party claim based on Customer’s breach of any representation, warranty, covenant, agreement, or obligation under this Agreement. Sentek shall indemnify, defend, and hold harmless Customer (and its affiliates, officers, agents, owners, and employees) from and against any and all claims, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees and all related costs and expenses) incurred by Customer as a result of any claim, judgment, or adjudication related to or arising from any third-party claim based on Sentek’s breach of any representation, warranty, covenant, agreement, or obligation under this Agreement. Neither party will be responsible for indemnifying another party hereto where the basis of the indemnity claim arises out of such other party’s own negligence or willful misconduct. To qualify for such defense and payment, Customer must (i) give Sentek prompt written notice of a claim; (ii) allow Sentek to control the defense and all related negotiations; and (iii) fully cooperate with Sentek in the defense and all related negotiations.
- Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY FOR SUCH DAMAGES AND SENTEK’S TOTAL LIABILITY FOR DAMAGES UNDER THE AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES DUE HEREUNDER FOR THE INVOICE UPON WHICH A CLAIM IS BASED.
- Assignment. This Agreement shall not be assignable by either party without the prior written consent of the other party. Notwithstanding the foregoing, either party may, upon written notice to the non-assigning party, (i) assign this Agreement to a successor in interest to all or substantially all of its assets, whether by sale, merger, or otherwise; (ii) assign this Agreement to a parent company; or (iii) assign this Agreement to a wholly-owned subsidiary. Except as otherwise provided, this Agreement shall be binding upon and inure to the benefit of the parties’ successors and lawful assigns.
- Compliance with Law.
- Agreement to Comply. Each party shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.
- Export. Customer acknowledges that the Products and Software and related technical data and services (collectively “Controlled Technology”) may be subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. Customer agrees to comply with all relevant laws and will not export or re-export any Controlled Technology in contravention to U.S. law, nor to any prohibited country, entity, or person for which an export license or other governmental approval is required.
- Foreign Corrupt Practices Act. Customer acknowledges that Sentek’s business and the sale of its Products and Software are in the United States, and agrees to comply with the United States Foreign Corrupt Practices Act and any other applicable bribery laws.
- Governing Law. This Agreement shall be governed by the laws of the State of Minnesota, without reference to conflicts of law principles. The parties agree that the United Nations Convention on the International Sale of Goods shall not govern or apply to the interpretation of this Agreement.
- Dispute Resolution. This section shall govern the resolution of disputes between the parties.
- Disputes in the United States. For disputes in the United States, any legal suit, action or proceeding arising out of or relating to the services or this Agreement shall be commenced in a federal or state court in Ramsey County, Minnesota, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. The parties expressly waive any right they may have to a jury trial and agree that any such litigation shall be tried by a judge without a jury and the prevailing party shall be entitled to recover its expenses, including reasonable attorneys’ fees, from the other party.
- International Disputes. International disputes or disputes occurring outside of the United States must be submitted to arbitration under the Rules of the International Chamber of Commerce (the “ICC”). A single arbitrator shall be selected in accordance with the rules of the ICC (the “Rules”). The arbitration will take place in Minneapolis, Minnesota and will be conducted in English. The parties agree to facilitate the arbitration by: (i) making available to each other and to the arbitrator for inspection and extraction all documents, books, records and personnel under their control as the arbitrator may determine to be relevant to the dispute; (ii) conducting arbitration hearings to the greatest extent possible on successive, contiguous days; and (iii) observing strictly the time periods established by the Rules or by the arbitrator for the submission of evidence and briefs. But, the prevailing party, as determined by the arbitrator, shall be reimbursed its costs, including reasonable attorneys’ fees and arbitration expenses, from the other party. Any arbitral award under this Section 18(b) is enforceable in any court of competent jurisdiction and pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958.
- Notices. Any notice sent pursuant to the Purchase Agreement or this Agreement shall be sent by certified mail, return receipt requested, or by overnight mail to the addresses on the Purchase Agreement or to such address as either party may in the future designate.
- Force Majeure. Neither party shall be liable for any failure to perform or delay in performance of this Agreement to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, cyber or hostile network attacks, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond such party’s commercially reasonable control.
- Severability. If any term provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement shall remain in full force and effect and will in no way be affected, impaired or invalidated. Any provision of this Agreement that expressly, by implication, or by necessity, contemplates performance or observance subsequent to the termination or expiration of this Agreement will survive termination or expiration of this Agreement, and continue in full force and effect.
- Entire Agreement. This Agreement (including the Purchase Agreement and the NDA (if any), and any attached exhibits and schedules) supersedes all prior agreements and constitutes a complete and exclusive statement of the terms of the agreement among the parties with respect to its subject matter. There have been and are no representations, warranties or covenants between the parties other than those set forth in this Agreement. No supplement, modification or amendment of this Agreement will be binding unless executed in writing by all of the parties. No waiver of any provisions of this Agreement will be deemed a waiver of any other provisions, nor will any waiver constitute a continuing waiver. No waiver will be binding unless executed in writing by the party making the waiver.
- Counterparts. The Purchase Agreement may be executed in counterparts. Signature by facsimile or PDF shall be deemed an original signature for purposes of this Agreement.