SoMLabs Sale Terms and Conditions

1. Definitions

Customer: a legal entity buying Products from SoMLabs.

SoMLabs: SoMLabs, ul. Lwowska 5, 05-120 Legionowo, Poland.

SoMLabs Product: a SoMLabs Product, excluded any of the following items: software, parts not installed or added by SoMLabs in its factory.

Order Confirmation: formal written acknowledgement sent by SoMLabs for Product ordered by Customer.

Price: stated in Order Confirmation.

Product: as described in Order Confirmation, may comprise SoMLabs Products and 3rd Party Products.

3rd Party Products: non SoMLabs Products.

Software: computer operating systems, applications or middleware.

2. Application

SoMLabs Sale Terms and Conditions shall govern any quote, sale, purchase order and agreement between SoMLabs and Customer. SoMLabs must confirm each modification to this Agreement in writing. Any other Terms and Conditions are excluded.

If any of the provisions of a purchase order or other writing issued by Customer are in addition to, ambiguous, or in conflict with the Sale Terms and Conditions herein, those additional, conflicting or ambiguous provisions are expressly rejected and SoMLabs Sale Terms and Conditions shall supersede them and govern.

In the event of a conflict among the Sale Terms and Conditions herein and any other writings from SoMLabs, the following documents shall govern in descending order:

1. written agreement between Customer and SoMLabs,
2. SoMLabs Quotation,
3. SoMLabs Sale Terms and Conditions.
4. If Customer does not accept SoMLabs Sale Terms and Conditions, Customer

may cancel its order within two (2) business days of the date of SoMLabs’s Order Confirmation; otherwise Customer will be deemed to have accepted SoMLabs Sale Terms and Conditions.

3. Quotations

Quotations are only legally binding during the period that they state and only if they are in writing. The period is 14 days if unstated. Quotations are not valid after that time duration. Within the validity period, the Customer has the option of placing an order within the agreed conditions with reference to the quotation.

4. Purchase Orders

Customer may place orders in writing, through the Internet or fax. The orders issued by the Customer to SoMLabs are legally binding only upon SoMLabs’s written Order Confirmation. No agreement between the Parties, including SoMLabs Sale Terms and Conditions, shall be modified except by a writing signed by both Parties.

Customer may place a volume order comprising several partial deliveries and specified call-off time frames. Volume orders are valid only during the period specified.

Customers should thoroughly verify the Order Confirmation and inform SoMLabs of any error in writing immediately. Otherwise the details stated in the Order Confirmation will apply to this Agreement.

Orders for custom configuration products are NCNRNR: non-cancelable, non-returnable and non-reschedule. Modifications of quantity, configuration or delivery date are subject to SoMLabs’s approval.

5. Products

SoMLabs reserves the right to change Products, incl. 3rd Party Products, at any time. SoMLabs guarantees Customer at least equal functionality and performance if Products are changed.

6. Software

Software not owned by SoMLabs is supplied as subject to license and warranty of the Software licensor. SoMLabs encloses the Software license that Customer requires with the Product, where necessary; Customer must comply with that license.

7. Prices

Prices for Customers are in USD and are exclusive of VAT. The Prices for Products exclude any additional costs like insurance, shipping cost, tax, etc. Prices and any additional costs are as indicated on the Quotation or as stated on the Order Confirmation.

Where SoMLabs agrees to trade in EUR, it will specify an exchange rate for each Order. Prices charged will be those prevailing when an Order is accepted.

All sums payable by the Customer in accordance with SoMLabs Terms and Conditions are exclusive of VAT.

Where any supplies are provided by the SoMLabs to the Customer that are subject to VAT, the Customer shall pay an amount equal to such VAT (in addition to any other consideration payable by the Customer) to SoMLabs and SoMLabs shall (where required by applicable laws) issue an appropriate VAT invoice to the Customer.

SoMLabs reserves the right to adjust prices of Products and Services as a result of changes to exchange rates, insurance, duties, freight and purchase costs.

SoMLabs especially reserves the right to adapt prices for Products and Services if exchange rates exceed 2% of change related to the national currency of SoMLabs’ domicile since the sales order was placed.

8. Terms of Delivery

The Order Confirmation indicates the delivery period and the place of delivery. The delivery period is approximate and partial delivery can be made.

Estimated delivery dates, as originally printed in Quotations, Sales Contracts or Purchase Order Confirmations, are subject to change due to delays in SoMLabs’s receipt of components from suppliers, production errors, strikes, Acts of God, as well as other circumstances that are beyond SoMLabs’s control. SoMLabs shall promptly inform the Customer in writing of any such delays, together with a new estimated delivery date.

SoMLabs will not be liable for any direct or indirect damages caused by any delay in the order delivery.

If Customer refuses delivery without SoMLabs’ prior written approval, Customer must pay all expenses or loss resulting from delivery refusal until Customer accepts delivery.

Customer assumes all risk and responsibility for the import clearance, duties, and delivery to final destination. SoMLabs bears the costs and risks involved in bringing the goods thereto but NOT the costs and risks of clearing customs. Customer assumes all risk and responsibility for the import clearance, duties, and delivery to final destination.

Customer shall comply with all applicable laws and regulations governing the transportation, import, export, and/or sale of goods. Neither Customer nor any of its subsidiaries shall export/re-export any technical data, process, goods or service, directly or indirectly – including the release of controlled technology to foreign nationals from controlled countries – to any country for which an export license or other government approval without first obtaining such license.

The risk of the loss of the goods passes to Customer on delivery. Any packaging that is apparently missing or damaged should be noted on the waybill prior to signing it.

9. Inspection

Customer shall inspect the Products immediately after delivery and shall inform SoMLabs of any defects in writing. If any visible defects or non-conformity appear during this inspection, Customer must notify SoMLabs in writing within 7 days. If Customer fails to notify SoMLabs as stated herein, then Customer shall be deemed to have accepted the Product. If SoMLabs agrees to the return of Product, Product must be in its original condition with packaging, including a return note and proof of purchase. Return costs will be paid by the Customer.

10. Terms of Payment

All payments are denoted and shall be made in USD. Where SoMLabs agrees to trade in EUR, it will specify an exchange rate for each Order.

Unless listed otherwise, Payment terms are 50% on Order and 50% before shipment.

All taxes, bank, discount, or withdrawal charges are at the expense of the Customer.

SoMLabs reserves the right to charge interest at the rate of 1% per month for all outstanding debts not paid according to the agreed terms.

If the Customer defaults in payment or otherwise fails to comply with any term herein, SoMLabs has the right to demand return, and take possession of all unpaid Products, cease delivery of any further product, and to be reimbursed for all the costs occurred in connection with the repossession of said Products. This includes, without limitation, transportation costs and devaluation of Products. Products shall be valued at the invoiced purchase price at the time of return.

11. Cancellation of Delivery

Customer shall pay the full purchase price for orders of Products designated by SoMLabs as NCNRNR (non-cancelable, non-returnable and non-reschedule), and orders of Products for which SoMLabs has already completed production at the time of Customer’s written notice of cancellation, unless the Parties otherwise agree.

12. Security Interest and Resale

Customer hereby grants to SoMLabs a security interest in any delivered Product until SoMLabs has received full payment from Customer. Customer shall not sell, transfer or assign any Product until Customer has paid SoMLabs in full. Customer hereby grants SoMLabs a security interest in all products of Customer in which the Product is incorporated or combined. SoMLabs’s security interest shall continue notwithstanding a transfer of ownership of the Product by Customer to a third party, and SoMLabs may exercise any and all remedies against such third party as to the Product. Customer hereby consents to SoMLabs’s filing of any documents to perfect any security interest granted herein, without further act of Customer.

13. Warranty

SoMLabs warrants to Customer that SoMLabs’s Products are free from defects in material and workmanship, under normal use and service.

Customer shall promptly notify SoMLabs in writing of any malfunctionin any Products under Warranty, which notification and return to SoMLabs of Product under Warranty shall be pursuant to SoMLabs’s prevailing Return Merchandise Authorization (RMA) procedures. SoMLabs’s obligation under this warranty shall be limited to replacement or repair of Products, free of charge, for which a defect has been substantiated by SoMLabs, for a period of twelve (12) months from date of Product shipment from SoMLabs to Customer. Any further warranty is excluded.

SoMLabs warrants no Product defect that results from improper use, negligence, modification, improper installation, improper product testing methods, repairs made by the Customer, or other factors outside of SoMLabs’s control.

Removal of the unique serial number adhesive label on hardware Products shall void any warranty.

SoMLabs makes no warranty for Products furnished, but not manufactured by SoMLabs, which Products shall be covered by the warranty of the original manufacturer.

SoMLabs does not provide any warranty for defects that have not been caused by SoMLabs, in particular not for:

• Handling errors, intervention or modification of the Products by the Customer or an unauthorized third party;
• Defects which have been caused by incorrect installation by the Customer or a third party acting on the Customer’s behalf;
• Compatibility and functioning with other products, unless expressly warranted;
• Defects which have been caused by outside influences;
• Fitness of the Products for any particular purpose;
• Third party products for which the respective manufacturer is responsible;
• Services which have been performed in accordance with the instructions.

SoMLabs and its manufacturers use components or spare parts which are new or equivalent to new and meet the industry standards and practice. SoMLabs reserves the right to use new or refurbished spare parts and/or components. Spare parts may be new or reconditioned.

14. Return Merchandise Authorization (RMA)

If SoMLabs is in error regarding fulfillment of Customer’s order, SoMLabs will issue an RMA and ship correct Product in exchange for any Product that SoMLabs has shipped in error. SoMLabs will not charge Customer for supplemental shipping charges in such instances.

SoMLabs reserves the right to refuse any RMA returns without an RMA number, with incomplete Product contents or documentation, or if the Products has been altered by the Customer.

In case of unjustified round of inspection – if fully functional products were returned for repair, the 50 USD per product testing rate is applied regardless if products were under warranty or not.

15. Acknowledgement regarding high risk activities

Customer acknowledges that the Products provided by SoMLabs are not specifically designed, manufactured or tested with the level of reliability necessary for use or resale in an environment requiring fail-safe performance, such as in the operation of aircraft navigation, nuclear facilities, life support or other medical systems or devices, or other critical applications in which failure of the services or Products could lead or reasonably be expected to lead to death, injury or severe environmental damage (high risk activities). SoMLabs specifically disclaims any express or implied warranty of fitness for high risk activities. Customer further hereby releases, waives, discharges and covenants not to sue SoMLabs, its members, directors, officers, employees, and agents from all liability to customer, customer’s agents and assigns for any loss, damage, and claims of whatsoever nature, on account of personal injury, accident, illness, death or property loss whether caused by the negligence of SoMLabs or otherwise, occurring as a result of the use or incorporation of the product in any high risk activity.

16. Limitation of Liability

SoMLabs’ liability for direct and indirect damage shall be limited to gross negligence and willful misconduct. Any other liability of SoMLabs is excluded.

The provisions of Force Majeure shall remain unaffected. Claims under the terms of the Polish product liability law will not be affected by the above limitation of liability. In case of a product liability claim against SoMLabs, Customer will assist SoMLabs to defend against such a claim.

17. Parameters of Use

Customer shall not copy, modify, reverse assemble, deconstruct, or reverse engineer any Product, without the advance written consent of SoMLabs. SoMLabs may withhold this consent, in SoMLabs’s sole and absolute discretion.

Reproduction of SoMLabs software without the express written consent of SoMLabs is allowed solely for the purposes of Customer’s internal use or for backup.

18. Ownership of Technical Information and Intellectual Property

SoMLabs retains all right, title and interest in and to all Product technical information, intellectual property and proprietary rights (including without limitation trademarks, copyrights, patent rights, trade secrets, service marks, and goodwill) designed, developed, created or derived by SoMLabs from the Product or dealings with Customer. Customer does not acquire any Product rights in regards to any tooling, set-up, drawings, design information, computer programming, or invention(s) resulting therefrom. Customer rights to software Product object and source code shall be defined in any applicable SoMLabs Software End User Licensing Agreements (“EULA”) between Customer and SoMLabs.

19. Legal construction

All Contracts and non-contractual disputes shall be governed by and interpreted in accordance with Polish law and the Customer submits to the jurisdiction of the Polish Courts.

20. Alterations

SoMLabs reserves the right to alter or update these Terms and Conditions at any time and from time-to-time, effective upon posting of an updated version to SoMLabs’ website www.somlabs.com. Customer is responsible for regularly reviewing the Terms and Conditions.