General Terms & Conditions
1. SCOPE
The terms and conditions of sale contained herein together with the terms and conditions stated on the face of this quotation / order confirmation, as applicable, issued by Asio Technologies Ltd. (the “Quotation” and “Order Confirmation”, respectively) to an entity which desires to purchase Products (as defined below) (the “Buyer”), constitutes the entire agreement between the parties in relation to the sale and purchase of Products and shall apply to all quotations and sales made by Asio Technologies Ltd. and/or any affiliates thereof (“Asio”). It is hereby clarified that the issuance of a Quotation shall not bind Asio and shall not be deemed as acceptance by Asio for purchase orders (“POs”), but as an offer for bidding by the Buyer for the manufacture, sale and supply of Asio’ products (“Products”). Only upon the issuance of an Order Confirmation in accordance with Asio’s policies then in effect, shall Asio be deemed to have accepted the Buyer’s offer for the manufacture, sale and supply of Products by Asio (as applicable). These terms and conditions may in some instances conflict with the terms and conditions affixed to the POs or other procurement documents issued by Buyer and/or oral and written exchanges between the parties. In all such cases, except if included in a signed express agreement to the contrary, the terms and conditions herein shall govern and prevail to the exclusion of all other terms whether oral or written. Acceptance of Buyer’s order is conditioned upon Buyer’s acceptance of the terms and conditions contained herein irrespective of whether Buyer accepts these conditions by a written acknowledgment, course of dealings, by implication, or acceptance of and/or payment for Products ordered hereunder. These terms and conditions are additional to the terms and conditions stated on the face of this document. Asio’ failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of the provisions stated herein or on the face of this document. Any changes in these terms and conditions of sale contained herein, or on the face of this document must specifically be agreed to in writing signed by a corporate officer of Asio before becoming binding on either party.
2. PAYMENT TERMS
All prices quoted shall be net to Asio, EXW (INCOTERMS 2010). Prices do not include any custom duties or any other taxes. Terms of payment for Products shall be as detailed in the applicable Order Confirmation or in the applicable Quotation if such payment terms are not stated in the Confirmation Order. In the event that Asio is required to bring legal action to collect delinquent accounts, Buyer agrees to pay reasonable attorney’s fees and cost of suit and collection. Late payments shall be charged interest at 1.5% per one-month rates, or the maximum rate permitted by law, if lower. Unless otherwise agreed in writing by Asio, Buyer shall pay all invoices within thirty (30) days from the date of invoice. Asio shall have the right to cancel any previously accepted Order Confirmation placed by Buyer, change the credit terms (if applicable), or refuse or delay shipment if Buyer fails to meet any payment schedules or other credit or financial requirements established by Asio (or fail to submit necessary financial materials under such requirements), or if in Asio’s opinion the credit or financial ability of Buyer shall become impaired. The cancellation of such Order Confirmations or the withholding of shipment by Asio under the provisions set forth above shall not be construed as a termination or breach of this Agreement by Asio.
3. TAXES
All prices are exclusive of any present or future sales, revenue, withholding, value added, or tax, import duty, custom duties (including brokerage fees, handling and other charges) or other taxes applicable to the manufacture or sale of any Products. Such taxes when applicable shall be borne by Buyer unless Buyer provides a proper tax exemption certificate.
4. TITLE, DELIVERY AND RISK OF LOSS
Subject to the applicable Incoterm set under Section 2 above, Asio will use reasonably commercial efforts to ship in accordance with Buyer’s requisite delivery schedule. On-time delivery of Products and/or projects shall be deemed to be delivered pursuant to the estimated delivery period as detailed in the applicable confirmed order. In any case of delays in lead times resulting from Asio’s failure to secure all requisite export and/or import license, then such lead times will be extended respectively, such that they shall be deemed to have commenced at the date of receipt of all such requisite licenses. Delivery delay or default of any installment shall not relieve Buyer of its obligation to accept and pay for remaining deliveries. Buyer shall bear all risk of loss, damage, or destruction to the Products called for hereunder, and through the final acceptance by Buyer at destination. Buyer shall also bear the same risks with respect to any Products rejected by Buyer, provided, however, that in either case Asio shall be responsible for any loss occasioned by the gross negligence of its employees acting within the scope of their employment. All delivered Products remain the sole property of Asio until a full payment is received from the Buyer. Any replacement or returning of damaged Products shall be performed in accordance with Asio’ standard warranty.
5. SOFTWARE AND FIRMWARE
All Products that include software or firmware are provided subject to the terms of Asio’s software license provisions described below, the terms of which are hereby incorporated byreference. Without derogating from the foregoing, Buyer understands that if any software, code, algorithm, syntax are incorporated into the Products, then (I) the use of such materials shall be subject to the license under which such materials were developed (be it a license by Asio, or a third party license, as applicable), and (ii) unless otherwise specifically stated by Asio, such applicable license shall govern the ownership and use of such materials. Buyer further acknowledges that Asio may incorporate open source code in the software incorporated into the Products, and in such case, upon Buyer’s request, Asio shall provide the Buyer with a list of such open source code(s). Unless otherwise specifically agreed upon by the parties, Asio is not required to provide any software / firmware updates, “patches” and/or any other support in relation thereto. Nothing herein shall derogate from the provisions of Section 8 herein.
6. GENERAL WARRANTY
Asio warrants that the hardware portion(s) of the Products shall substantially conform to Asio’s published specifications and shall be free from material defects in workmanship for a period of
one (1) year from the date of shipment. Other than the aforesaid, the Products are sold on an “AS-IS” and “AS AVAILABLE” basis. The foregoing warranty does not apply to any Products which have been subject to misuse, neglect, accident, or modification or which have been altered and are not capable of being tested by Asio under its normal test conditions. Asio’s sole obligation to Buyer hereunder for Products failing to meet the aforesaid warranty shall be, at Asio’s discretion, to repair or replace the non-conforming Products or issue Buyer credit for the purchase price of the non-conforming Products, where within the warranty period: (a) Asio has received written notice of any nonconformity; and (ii) after Asio’s written authorization to do so Buyer has returned the nonconforming Products to Asio, freight prepaid; and (iii) Asio has determined that the Products are non-conforming and that such nonconformity is not a result of Buyer’s conduct. All requests for warranty repairs shall be made in accordance with Asio’s policy regarding such repairs, which is hereby incorporated by reference. Asio warrants that Products sold hereunder shall at the time of shipment be free and clear of liens and encumbrances. THIS WARRANTY EXTENDS TO BUYER ONLY AND MAY BE INVOKED BY BUYER FOR ITS CUSTOMERS. ASIO SHALL NOT ACCEPT WARRANTY RETURNS DIRECTLY FROM BUYER’S CUSTOMERS OR USERS OF BUYER’S PRODUCTS OR DEVICES. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. ASIO SHALL NOT BE LIABLE FOR DAMAGES (NOR SUBJECT TO ANY PENALTIES) DUE TO DELAYS IN DELIVERIES OR USE. IN NO EVENT SHALL ASIO BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES DUE TO BREACH OF THIS WARRANTY OR FOR ANY INFRINGEMENT ACTION INITIATED BY A THIRD PARTY. BUYER’S SOLE REMEDY FOR ANY BREACH SHALL BE LIMITED TO THE REMEDIES SET FORTH HEREIN AND SHALL NOT EXCEED THE SALE PRICE FOR THE PRODUCTS ACTUALLY PAID BY BUYER WITH RESPECT TO THE ACTUAL PRODUCT(S) REGARDING WHICH AN ALLEGED LIABILITY OF ASIO HAS RISEN.
7. SUPPORT AND MAINTENANCE
Asio may agree to provide support and maintenance to Buyer subject to the parties agreeing on and entering into an appropriate service agreement, for which an additional fee shall be charged.
8. THIRD PARTIES PROPRIETARY RIGHTS
Buyer acknowledges that the Products may contain third-party modules and third-party software, which are an integral part of the Products and may not be removed, extracted, copied, or used separately from the Products. The terms of this Sale T&C applicable to the Products shall equally apply to such third-party components (with such third parties maintaining third proprietary rights related therewith).
9. VOLUME COMMITMENT
In the event that Buyer quoted prices subject to quantity/volume purchase over a specified period of time, and such quantity/ volume is not met, Buyer shall be charged for the difference in price between Asio’s recommended sale price (or price quoted to Buyer for lower volume/quantity) and price actually paid by Buyer, at the conclusion of the specified period of time.
10. CONFIGURATION CHANGES/SOFTWARE UPGRADES
Buyer acknowledges that it is purchasing from Asio the Product with a particular configuration and/or features. In the event that Buyer wishes to activateadditional and/or different configuration or features it is obliged to report such issue to Asio and be liable to pay any difference in price. Without derogating from the foregoing limitation.
11. RESCHEDULING OF PRODUCTS
Buyer may defer delivery (reschedule) of up to 10% of any Products ordered for a period of up to sixty (60) days beyond the original scheduled delivery date, provided notice of such deferral is given to Asio at least thirty (30) days prior to the scheduled delivery date. Rescheduling shall only be permitted once per purchase order and shall be subject to Asio approval. If a purchase order for Products rescheduled under this section is subsequently canceled, the agreed cancellation charge shall be 100% of the Product price.
12. USE OF PRODUCT; PROPRIETARY RIGHTS
Buyer acknowledges that the Product(s) sold hereunder are sold as a complete and full product, such that Buyer shall not be entitled to (and further prevent Buyer’s end clients if applicable) from disassembling, decompiling, reverse engineering, or otherwise conveying, selling or transferring the Product(s) components (whether software and/or hardware) separately of the Product(s), such that the Product shall only be used or otherwise sold as a complete product, and solely for the purposes designated hereto. Other than as specifically agreed upon by the parties (and in such case, solely with respect to unique workproducts specifically commissioned by the Buyer and approved by Asio in writing), nothing herein shall be construed as granting the Buyer (or anyone on its behalf) with any rights of Asio with respect to the Products (or any component thereof), whether or not patentable, including without limitations, with respect to designs, algorithms, specifications, know-how, schematics, formulas, designs, sketches, trade-secrets and/or any other proprietary materials, which ownership shall vest solely with Asio.
13. FORCE MAJEURE
In case of delays in delivery dates, owing directly or indirectly to any cause beyond Asio’s control, the anticipated delivery dates shall be deemed extended for a period of time equal to the time lost
due to any delay excusable under this provision. Asio shall be entitled to an extension of time for commercially reasonable delays.
14. EXPORT
Buyer shall comply with all applicable provisions of the Israeli Export Administration Regulations and other laws and regulations regarding export. Buyer shall not export or re-export technical data or products supplied by Asio, directly or through others, or the direct product of such data, to any country for which the Israel Government or any agency thereof at the time of the export requires an export license or other governmental approval, without first obtaining the written consent to do so from the Israel’s Defense Export Controls Agency (DECA) or other agency of Israel Government when required by an applicable statute or regulation. In addition, if applicable, Buyer shall comply with all export and re-export control laws of the United States and shall refrain from sales to countries proscribed by US Regulations or sales without a permit, if such permit is required.
15. APPLICABLE LAW
The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded in its entirety from these terms of sale. The terms and conditions contained
herein shall be governed by and construed under the laws of the State of Israel without regard to its conflicts of laws rules, and the competent courts of Tel Aviv, Israel, shall have sole and exclusive jurisdiction over any matter arising thereof.
16. INDEMNIFICATION
As an express condition for the sale contemplated hereto, the Buyer hereby agrees to hold Asio, its employees and affiliates (as applicable) harmless from any damage or injury of any kind resulting from or in any way related to: (i) any fault or negligent behavior of third parties; (ii) any fault or negligent behavior of the Buyer, its employees, affiliates, and/or its licensees; and (iii) any breach of an obligation under these General Terms And Conditions.
17. CANCELLATION AND TERMINATION
No cancellation for default shall be effective unless Asio shall have failed to remedy such alleged default within thirty (30) days following the receipt of a written notice of default.
Buyer may terminate a PO, only upon full payment of any outstanding amounts payable to Asio and all of Asio’s costs incurred in connection with these terms and conditions (including, but not limited to any sum outstanding from the sum payable to Asio with respect to any applicable terminated portion of the terms hereto). In any case that such payment shall reflect an amount which is less than twenty percent (20%) of the total value of each PO, Buyer shall further make an additional payment such that the aggregate payment due to Asio pursuant to such terminated PO shall be no less than twenty percent (20%) of the value of such PO.
18. CONDITION PRECEDENT
Buyer acknowledges that the POs and Asio’s fulfillment of its obligations under each applicable PO is contingent upon and further subject to receipt of certain governmental consents and/or
licenses. Buyer acknowledges that Asio does not make any commitment or warranties that it will actually be able to secure such permits / licenses, and while failure to do so may prevent Asio from fulfilling its obligations thereunder, shall not be deemed as any breach or default by Asio. In such event, Asio and/or Buyer may terminate the applicable PO.
19. SOFTWARE LICENSE
With respect to any software / firmware bundled with the Product sold to the Buyer by Asio (the “Software”), and solely to the extent required for the Buyer to use the Product in the manner designed and instructed by Asio, Asio hereby grants the Buyer a non-exclusive, non-transferrable, non-assignable license to use the Software solely in connection with the authorized use of the Product (and solely with the Product), without any right to amend, enhance, copy, distribute, decompile, reverse engineer, nor creating any derivative works thereof (including without limitations, by embedding the Software into any other system, extracting the source code out of the object, nor inserting any source code or any other code or algorithm into the Software). Asio warrants that the Software (when provided) and subject to the applicable system requirements for running the Software and further subject to the compliance of all other Asio instructions (including the terms of this license), that the Software shall be free of any materials errors for a period of twelve (12) months from the shipment of the Product bundled with such Software. No additional warranty or representations is provided with respect to the software.
