SWIFT SENSORS GENERAL TERMS AND CONDITIONS
General Terms And Conditions For Swift Sensors, Inc. (FOR PURCHASERS)
These general terms and conditions (“General Terms and Conditions”) govern all persons (“Purchasers”) that purchase or license, directly or indirectly, equipment, software, firmware, and/or services (collectively “Deliverables”) from Swift Sensors, Inc. (“SWIFT SENSORS”).
Limited Software Use License. All software and firmware (collectively “Software”) is licensed (the “License”) for use only by Purchaser and other expressly authorized or permitted users, including customers of Purchasers. Neither the Software, nor any interest therein, is intended to be sold or conveyed by this License.
Application Programming Interface (API). In addition or incident to the sale or license of certain Deliverables, SWIFT SENSORS may license Purchasers to access or use SWIFT SENSORS’ APIs. All APIs and the routines, protocols and tools comprising the APIs are the exclusive property and right of SWIFT SENSORS. Only expressly authorized licensees of a SWIFT SENSORS API may access or use such API. Use and other rights concerning APIs are subject to these General Terms and Conditions and such other specific terms and conditions as SWIFT SENSORS may implement on a case by case basis. For purposes of these General Terms and Conditions, APIs are included in the definition of “Software” hereunder and a license to use an API is included in the definition of “License” hereunder.
Usage Restriction. Wireless sensor technology and other technology built into the Deliverables may at times not work due to interference with signal transmission beyond SWIFT SENSORS’ control. Purchaser therefore agrees not to use any Deliverable for an application in which a signal or connection failure might cause harm to a person or injury to a property.
Data Collection. In connection with the Deliverables, data provided by Purchaser and its customers may be collected in connection with surveys, consultations, and uses of the Deliverables, including sensor data, locations of Deliverables (which may utilize geo-location technology), devices used, and configuration preferences,. In order to provide SWIFT SENSORS’s customers with enhanced comparative benchmarking services with respect to customer industries, among other services, Purchaser hereby grants to SWIFT SENSORS a royalty-free, perpetual, irrevocable license to use and distribute this data and results obtained through Purchaser’s use of the Deliverables for any and all purposes; provided that SWIFT SENSORS shall not identify any Purchaser, or distribute to third parties any billing or financial payment data of any customer or consumer of Purchaser, without the express prior consent of such Purchaser
(a) Swift Sensors, Inc. warrants that Swift Sensors, Inc.-branded products will be free from defects in materials and workmanship for a period of one (1) year from the date of delivery with respect to hardware and will materially conform to their published specifications for a period of one (1) year with respect to software. Swift Sensors, Inc. may resell sensors manufactured by other entities and are subject to their individual warranties; Swift Sensors, Inc. will not enhance or extend those warranties. Swift Sensors, Inc. does not warrant that the software or any portion thereof is error free. Swift Sensors, Inc. will have no warranty obligation with respect to Products subjected to abuse, misuse, negligence or accident. If any software or firmware incorporated in any Product fails to conform to the warranty set forth in this Section, Swift Sensors, Inc. shall provide a bug fix or software patch correcting such non-conformance within a reasonable period after Swift Sensors, Inc. receives from Customer (i) notice of such non-conformance, and (ii) sufficient information regarding such non-conformance so as to permit Swift Sensors, Inc. to create such bug fix or software patch. If any hardware component of any Product fails to conform to the warranty in this Section, Swift Sensors, Inc. shall, at its option, refund the purchase price less any discounts, or repair or replace non-conforming Products with conforming Products or Products having substantially identical form, fit, and function and deliver the repaired or replacement Product to a carrier for land shipment to customer within a reasonable period after Swift Sensors, Inc. receives from Customer (i) notice of such non-conformance, and (ii) the non-conforming Product provided; however, if, in its opinion, Swift Sensors, Inc. cannot repair or replace on commercially reasonable terms it may choose to refund the purchase price. Repair parts and replacement products may be reconditioned or new. All replacement products and parts become the property of Swift Sensors, Inc. Repaired or replacement products shall be subject to the warranty, if any remains, originally applicable to the product repaired or replaced. Customer must obtain from Swift Sensors, Inc. a Return Material Authorization Number (RMA) prior to returning any Products to Swift Sensors, Inc. Products returned under this Warranty must be unmodified.
Customer may return all Products for repair or replacement due to defects in original materials and workmanship if Swift Sensors, Inc. is notified within ninety (90) days of customer’s receipt of the product. Swift Sensors, Inc. reserves the right to repair or replace products at its own and complete discretion. Customer must obtain from Swift Sensors, Inc. a Return Material Authorization Number (RMA) prior to returning any products to Swift Sensors, Inc. Products returned under this Warranty must be unmodified and in original packaging. Swift Sensors, Inc. reserves the right to refuse warranty repairs or replacements for any products that are damaged or not in original form. For products outside the ninety-day warranty period repair services are available at Swift Sensors, Inc. at standard labor rates for a period of one year from the Customer’s original date of receipt.
(b) As a condition to Swift Sensors, Inc. obligations under the immediately preceding paragraphs, Customer shall return Products to be examined and replaced to Swift Sensors, Inc.’s facilities, in shipping cartons which clearly display a valid RMA number provided by Swift Sensors, Inc. Customer acknowledges that replacement products may be repaired, refurbished or tested and found to be complying. Customer shall bear the risk of loss for such return shipment and shall bear all shipping costs. Swift Sensors, Inc. shall deliver replacements for Products determined by Swift Sensors, Inc. to be properly returned, shall bear the risk of loss and such costs of shipment of repaired products or replacements, and shall credit Customer’s reasonable costs of shipping such returned Products against future purchases.
(c) Swift Sensors, Inc. sole obligation under the warranty described or set forth here shall be to repair or replace non-conforming products as set forth in the immediately preceding paragraph, or to refund the documented purchase price for non-conforming Products to Customer. Swift Sensors, Inc. warranty obligations shall run solely to Customer, and Swift Sensors, Inc. shall have no obligation to customers of Customer or other users of the Products.
THE WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY APPLICABLE TO PRODUCTS PURCHASED BY CUSTOMER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED. SWIFT SENSORS, INC.’S LIABILITY WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT. UNDER NO CIRCUMSTANCES SHALL SWIFT SENSORS, INC. BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES. THE PRICE STATED FOR THE PRODUCTS IS A CONSIDERATION IN LIMITING SWIFT SENSORS, INC.’S LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
IN ADDITION TO THE WARRANTIES DISCLAIMED ABOVE, SWIFT SENSORS, INC. SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY AND WARRANTIES, IMPLIED OR EXPRESSED, FOR USES REQUIRING FAIL-SAFE PERFORMANCE IN WHICH FAILURE OF A PRODUCT COULD LEAD TO DEATH, SERIOUS PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE SUCH AS, BUT NOT LIMITED TO, LIFE SUPPORT OR MEDICAL DEVICES OR NUCLEAR APPLICATIONS. PRODUCTS ARE NOT DESIGNED FOR AND SHOULD NOT BE USED IN ANY OF THESE APPLICATIONS.
Return Policy. Customer must obtain from Swift Sensors, Inc. a Return Material Authorization Number (RMA) prior to returning any Products to Swift Sensors, Inc. Products returned under this Warranty must be unmodified. The RMA number must be written on the outside of returned package.
Customer may return all Products for repair or replacement due to defects in original materials and workmanship if Swift Sensors, Inc. is notified within ninety (90) days of customer’s receipt of the product. Swift Sensors, Inc. reserves the right to repair or replace products at its own and complete discretion. Customer must obtain from Swift Sensors, Inc. a Return Material Authorization Number (RMA) prior to returning any products to Swift Sensors, Inc. The RMA number must be written on the outside of returned package.
Please send all returns to:
Swift Sensors, Inc.
4611 Bee Caves Road, Suite 100
Austin, TX 78746.
Please use a trackable and insured delivery service. Please return items in their original packaging.
Confidentiality. The Deliverables and all computer systems that deliver any portion of them contain confidential trade secret information. Purchaser shall not attempt to reverse engineer any portion of the Deliverables or such computer systems, such as to disassemble any portion of hardware or decompile any portion of the Software, nor aid or permit anyone else in doing so.
Intellectual Property. Except for the License, no portion of any intellectual property right in the Deliverables is being granted, conveyed or transferred to the Purchaser or to Purchasers customers or permitted users. Neither Purchaser, nor Purchaser’s customers or permitted users, may copy or modify any portion of the Deliverables, and may not permit or aid anyone else in doing so. Notwithstanding, Purchaser may use the Deliverables as they are intended to be used, as expressed in written materials published by SWIFT SENSORS from time to time.
Governing Law and Venue. These General Terms and Conditions and any agreement relating to them shall be construed in accordance with and governed by the laws of the State of Nevada (without regard to its conflicts of laws). Any dispute relating to these General Terms and Conditions and any agreement relating to them may only be heard and resolved by a court in in the State of Nevada. Purchaser consents to the personal jurisdiction of such courts over it. If any action at law or in equity is necessary to enforce or interpret any of the rights or obligations of the parties to these General Terms and Conditions, the prevailing party shall be entitled to reasonable attorneys’ fees, costs, and necessary disbursements, in addition to any other relief to which it may be entitled.
No Assignment or Transfer. The rights and benefits provided under these General Terms and Conditions, as well as under any agreement that incorporates them, shall not be assigned without the express written permission of SWIFT SENSORS. Similarly, the Deliverables may not be transferred to any other person, without the express written permission of SWIFT SENSORS. Notwithstanding, Purchaser may temporarily loan its customers paging receivers. Purchaser may also transfer the Deliverables, as well as the rights and benefits under these General Terms and Conditions and any agreement that incorporates them, as an ancillary part of a sale of its business or substantially all of its assets. Following any assignment or transfer, Purchaser shall remain bound by all of the duties and obligations that are set forth in these General Terms and Conditions and any agreement that incorporates them.
No Third Party Beneficiary. Except as otherwise expressly provided in this Agreement, these General Terms and Conditions, as well as any agreement that incorporates them, are solely for the benefit of Purchaser. Neither the customers of Purchaser, nor any other person is an intended beneficiary of these General Terms and Conditions or any agreement that incorporates them, nor shall any such person have the right to any benefit that is provided under these General Terms and Conditions or any agreement that incorporates them.
Merger. Except as otherwise specifically set forth herein, these General Terms and Conditions, and any agreement that incorporates them, supersede any oral or other representation that may have been made about these General Terms and Conditions, any agreement that incorporates them, or any of the Deliverables. These General Terms and Conditions, and any agreement that incorporates them, may not be modified or superseded, except by a written agreement or a written amendment that is signed by SWIFT SENSORS. In the event of any inconsistency between these General Terms and Conditions or any agreement that incorporates them and any form or other document supplied by Purchaser, such as a purchase order, the terms of these General Terms and Conditions or any agreement that incorporates will prevail.
Severability. In the event that any portion of these General Terms and Conditions or any agreement that incorporates them is found to be invalid or unenforceable for any reason, the remaining portions shall continue to be in full force and effect.
Fees & Payment. Purchaser agrees to pay all Service and Deliverable fees in US Dollars, and you assume all risks associated with any changing value in the currency compared with other currencies, plus Purchaser agrees to pay any applicable taxes, in accordance with the terms and payment method set forth in this agreement. Purchaser is responsible for providing accurate billing and contact information to SWIFT SENSORS. SWIFT SENSORS retains the right to suspend or terminate services if fees become past due. SWIFT SENSORS reserves the right to change Service rates by providing Customer at least 30 days’ notice prior to billing.
Term & Termination. Purchaser has the option of purchasing Monthly or Annual service plans, which are non-refundable and not available for proration except as required by law. Monthly agreements will auto-renew on a month-to-month basis until such time that a formal termination notice has been received by SWIFT SENSORS. Prepaid Annual agreements will automatically renew at the end of each annual term unless Purchaser has given cancellation notice 30 days in advance of renewal term. Monthly-billed Annual agreements will auto-renew on a perpetual month-to-month basis upon completion of the initial annual term until cancellation notice is received by SWIFT SENSORS. In the event that any agreement incorporating these General Terms and Conditions is terminated for any reason, all of the duties and obligations that the agreement and these General Terms and Conditions impose upon Purchaser shall continue in full force and effect, except any obligation to make payment for a Deliverable prior to its delivery.