TERMS AND CONDITIONS OF SALE REFERENCED BY THE SIELO QUOTE
1. DEFINITIONS. “Seller” means Sielo Inc.; “Buyer” means the purchaser of the Products as identified on the Sielo Quote referencing these Terms and Conditions; “Products” means the products identified on the Sielo Quote referencing these Terms and Conditions; and “Terms and Conditions” means these Terms and Conditions of Sale and those Terms and Conditions contained in the Sielo Quote referencing these Terms and Conditions.
2. BINDING TERMS. All sales are subject and limited to, and conditioned upon, these Terms and Conditions. No variations to these Terms and Conditions shall be binding on Seller unless contained in a writing signed by an officer of Seller. This Agreement and the Sielo Quote constitute the complete and final agreement between the parties with respect to the sale of Products hereunder, and supersede any and all prior and contemporaneous oral or written communications relating thereto.
3. CHANGES. Acceptance of the Sielo Quote may be changed or amended only pursuant to a writing signed by both Buyer and Seller setting forth the changes to be made. Buyer may not cancel the accepted Quote unless Seller agrees to such cancellation in writing. In such event, Buyer shall pay all storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on Seller by its suppliers, and any other costs resulting from such cancellation, all as may be invoiced to Buyer by Seller.
4. DELIVERY. Seller shall deliver Products, and title to and risk of loss of each quantity of Products so delivered shall pass, to Buyer when the Products are delivered to the carrier either at Seller’s manufacturing or storage facility with ultimate delivery Buyer’s facility. Such delivery shall constitute a shipment under this Agreement. In addition to the prices quoted for Products hereunder, Buyer shall pay all packaging, storage, shipping, customs, duties, taxes, freight, insurance, and other charges associated with shipments of the Products. Seller reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for individually, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries.
5. FORCE MAJEURE. Seller shall not be liable for any delays or other failure to perform hereunder due to any cause beyond Seller’s reasonable control, including, without limitation, acts of Buyer, governmental actions, laws or regulation, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, tornado, windstorm or other acts of God, transportation delays, or inability to obtain necessary, fuel, materials, supplies or power at current prices.
6. ALLOCATION OF PRODUCTS. If Seller is unable for any reason to supply the total quantity of Products specified in Buyer’s order, Seller may allocate its available supply among any or all buyers on such basis as Seller may deem fair and practical, without liability for any failure of performance which may result therefrom.
7. PAYMENT. If insecure as to the collection of amounts due, Seller may delay or postpone delivery of Products and change the payment terms to payment in full or in part in advance of shipment of the undelivered Products. If Buyer defaults in the payment of the purchase price or other terms of an order, Seller may defer delivery, cancel such order, or sell the Products on hand for the Buyer’s account and apply the proceeds against the contract price. Buyer shall pay any balance to Seller on demand. Buyer shall pay all costs, including, without limitation, reasonable attorney and accounting fees and other expenses of collection resulting from any default by Buyer in any of the terms hereof. A late payment penalty of 1.5% per month shall accrue on delinquent amounts until paid in full.
8. TAXES. Exclusive of and in addition to the prices quoted for Products hereunder, Buyer shall pay any tax, duty, custom, fee, assessment, or charge imposed by any governmental authority on or measured by the sales or other transactions covered herein, and Buyer shall reimburse Seller for any payment by Seller thereof upon demand.
9. PRICING. Prices shown are in U.S. dollars. Buyer shall remit payment in United States currency.
10. Confidential Information.
(a) Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information (defined below) or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and shall remain the sole property of the disclosing Party or such third party. For the purposes of this Agreement, “Confidential Information” shall mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential. The pricing information in this Agreement and any and all product materials disclosed by Seller to Buyer shall be considered the Confidential Information of Seller.
(b) Mutual Confidentiality Obligations. Each Party agrees that the Party receiving the Confidential Information will: (i) use the Confidential Information only for the purposes described in this Agreement; (ii) not reproduce the other Party’s Confidential Information and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) except as otherwise expressly permitted hereunder, will not create any derivative work from the other Party’s Confidential Information; (iv) restrict access to the other Party’s Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) return or destroy, pursuant at the disclosing Party’s request, all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.
(c) Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 13(a) and 13(b) shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction. Each Party may disclose Confidential Information (1) in response to an order of a court or other governmental body, provided that the Party making the disclosure pursuant to the order shall first have given notice to the other Party and made a reasonable effort to obtain a protective order, (2) as required by law or regulation to be disclosed, or (3) in order to establish a Party’s rights under this Agreement, including to make such court filings as may be required, provided that in each case, the Party required to disclose minimizes such disclosure to the extent legally permissible.
11. PERMITTED USE OF PRODUCT. Buyer agrees and acknowledges that the purchase of the Products shall be subject to the following restrictions and limitations on use set forth in these Terms and Conditions. Buyer agrees and acknowledges that it may use Products only for lighting purposes in accordance with the installation instructions provided with the Products by Seller. Without limiting anything to the contrary in these Terms and Conditions, Buyer covenants to Seller that Buyer shall conduct all necessary tests, comply with all applicable legal and regulatory requirements, and issue all appropriate warnings and information to users of Products. Buyer also shall comply with any instructions furnished by Seller relating to use of the Products and not misuse the Products in any manner. Seller otherwise reserves all of its rights under any patents or other intellectual property rights covering the use or modifications of its Products or the combination of Products with other materials. Buyer may not copy, distribute, reverse engineer, sell, lease, license or otherwise transfer, modify, adapt, or create derivatives of any Product. Buyer shall train all users of the Products to handle and use the Products in compliance with all applicable laws, rules and regulations. Buyer covenants to Seller that Buyer will properly test, use and dispose of any Products purchased from Seller in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations now and hereafter enacted.
12. Patent Disclaimer. Seller does not warrant that the use or sale of the Products delivered hereunder will not infringe the claims of any United States or other patents covering the Product itself or the manufacture or use thereof or in combination with other Products or in the operation of any process.
13. BUYER’S REPRESENTATIONS AND INDEMNITY. Buyer represents and warrants that it shall use all Products ordered herein in accordance with “Permitted Use of Product” as described in the user installation instructions provided with the Product, and that any such use of Products will not violate any law or regulation. Buyer shall defend, indemnify and hold harmless Seller and its affiliates and their respective directors, employees, agents, successors, officers, and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including without limitation attorney and accounting fees) that Seller may sustain or incur as a result of any claim against Seller based upon negligence, breach of warranty, strict liability in tort, contract, or any other theory of law, or otherwise arising out of, directly or indirectly, the use of Products, or by reason of Buyers failure to perform its obligations contained herein. Buyer shall notify Seller in writing within fifteen (15) days of Buyers receipt of knowledge of any accident, or incident involving Products which results in claimed personal injury or damage to property, and Buyer shall fully cooperate with Seller in the investigation and determination of the cause of such accident or incident and shall make available to Seller all statements, reports and tests made by Buyer or made available to Buyer by others. The furnishing of such information to Seller and any investigation by Seller of such information or incident report shall not in any way constitute any assumption of any liability for such accident or incident by Seller.
14. TECHNICAL ASSISTANCE. At Buyers request, Seller may, at Seller’s discretion, furnish technical assistance and information with respect to Products and any such assistance and information shall be deemed to be Confidential Information. ANY AND ALL SUCH TECHNICAL ASSISTANCE AND INFORMATION SHALL BE FURNISHED “AS-IS”, AND SELLER MAKES NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY SELLER OR SELLER’S PERSONNEL. ANY SUGGESTIONS BY SELLER REGARDING USE, OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS OR IMPLIED WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN OFFICER OF SELLER.
15. Adverse Events Reporting. Buyer shall notify Seller in writing of all information that comes to its attention concerning adverse events relating to any Products. Such reports shall be provided within forty-eight (48) hours after receipt of the information in the case of any experience coincident with the use of such Product, that suggests a significant hazard, side effect or precaution or results in death, a life-threatening experience, inpatient hospitalization, prolongation of an existing hospitalization, a persistent or significant disability or incapacity. Information concerning other adverse events not covered by the preceding sentence shall be provided on a monthly basis by Buyer to Seller. Seller shall have the right to use and disclose such reports and all data associated with any such reported event for any lawful purpose. Buyer and Seller agree that any public disclosure by Buyer or Seller regarding a adverse event related to a Product shall be prepared jointly by the parties and shall be reasonably acceptable to both parties.
16. MISCELLANEOUS. Seller’s waiver of any default by Buyer, or any failure by Seller to strictly enforce any term or condition herein or to exercise any right arising hereunder, shall not constitute a waiver (a) of any subsequent default, or (b) Seller’s right to strictly enforce such terms or conditions or exercise such right thereafter. Buyer’s waiver of any default by Seller, or any failure by Buyer to strictly enforce any term or condition herein or to exercise any right arising hereunder, shall not constitute a waiver (a) of any subsequent default, or (b) Buyer’s right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies hereunder are cumulative and are in addition to any other rights and remedies Seller may have at law or in equity. If any provision of these Terms and Conditions shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The paragraph headings herein are for convenience only; they form no part of the terms and conditions and shall not affect their interpretation. Buyer may not assign any of its rights or delegate any of its duties under these Terms and Conditions without the prior written consent of Seller. These Terms and Conditions shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and permitted assigns. Any notices required to be given hereunder shall be sent in writing to the address of each party as set forth on the Quote and shall be deemed given when faxed or mailed , properly addressed. The Quote may be executed in more than one counterpart, each of which constitutes an original and all of which together shall constitute one enforceable agreement. All disputes as to the legality, interpretation, application, or performance of this order or any of its terms and conditions shall be governed by the laws of Colorado regardless of its or any other jurisdiction’s choice of law principles. Buyer submits to the personal jurisdiction of such courts for any such action, agree that such courts provide a convenient forum for any such action, and waive any objections or challenges to venue with respect to such courts. Buyer acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin. Buyer agrees that it will not export or re-export the Products in any form without the appropriate United States and/or foreign government licenses.