Terms and Conditions of Sale

THESE TERMS AND CONDITIONS OF SALE (“Terms and Conditions”) CONSTITUTE A BINDING AGREEMENT BETWEEN Sense Photonics, Inc. (“Seller”) AND THE INDIVIDUAL OR ENTITY (“Buyer”) EXECUTING THE ORDER (“Order”) FOR THE PURCHASE OF THE EQUIPMENT (the “Products”).  IF YOU ARE ORDERING ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS.

  1. 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.  Therefore, any terms proposed by Buyer that add to, vary from or conflict with these Terms and Conditions, including without limitation, any preprinted terms and conditions provided by Buyer, are hereby expressly rejected and shall not apply unless agreed to in a writing signed by an officer of Seller.  This Agreement (including the Order and these Terms and Conditions) constitutes the complete and final agreement between the parties with respect to the sale of Products hereunder, and supersedes any and all prior and contemporaneous oral or written communications relating thereto. To the extent that any Order terms conflict with any provision of these Terms and Conditions, the latter shall prevail (unless the Order specifically refers to such provision).
  2. Purchase; Supply.  From time to time, Buyer may place Orders. If Seller expressly accepts the Order in writing (including via electronic communication), Seller may provide Products in accordance with these Terms and Conditions and such Order.  For the avoidance of doubt, Seller shall be under no obligation to supply any Products under an Order until accepted by Seller and payment has been received. Notwithstanding the foregoing, and anything to the contrary set forth herein, Seller may refuse any Order, or cancel any accepted Order at any time by providing written notice to Buyer.
  3. Changes.  Except as set forth herein, Orders 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 an order 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 invoiced to Buyer by Seller.
  4. Delivery.  Seller shall use commercially reasonable efforts to meet the delivery dates for the Products in the Order; provided, however, late delivery shall not be deemed a breach of these Terms and Conditions and Seller shall have no liability for the delay.  Title to and risk of loss of each quantity of Products delivered shall pass to Buyer Ex Works (Incoterms 2010) Seller’s manufacturing facility.  Such delivery shall constitute a shipment under this Agreement.  In addition to the prices quoted for Products hereunder, Buyer shall pay all storage, shipping, customs, duties, taxes, freight, insurance, and other charges associated with shipments of the Products. All shipments shall be addressed to the destination selected by Buyer and set forth in the relevant Order. 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 Order or installment shall not relieve Buyer of its obligation to accept it or any remaining deliveries.
  5. Inspection.  Within seven (7) days after receipt of a shipment of Products, Buyer shall inspect for shortages, defects and damage, and shall notify Seller in writing of any claims.  In the event of a claim, Buyer shall hold the Products pending Seller’s written instructions concerning disposition. If Buyer fails to notify Seller of such a claim in writing within such seven (7) day period, the Products shall conclusively be deemed to conform to the Terms and Conditions hereof and to have been irrevocably accepted by the Buyer in their condition.
  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.  Payments are due in advance of scheduled shipment and shall be made in the manner set forth on the Order.  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 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 U.S. currency.
  10. Embedded Software. The Products may include software or firmware incorporated into or provided in connection with such Products (“Embedded Software”).  Seller hereby grants Buyer a limited, non-exclusive license to use the Embedded Software solely as embedded in the Product, solely in object code form and solely in accordance with any instructions from Seller regarding the use of such Product, and subject to these Terms and Conditions.  The Embedded Software is licensed not sold. Such software license is personal to Buyer, is non-assignable and terminates in the event that Buyer returns or otherwise disposes of the Product.
  11. Intellectual Property Rights; Confidential Information.  Seller retains all intellectual property rights covering or embodied in the Products.  All intellectual property rights not expressly granted to Buyer are expressly reserved by Seller.  Buyer receives no right or license, by implication, estoppel or otherwise, to any software, technology or intellectual property rights not embodied in the Products.  Buyer shall (i) treat as “Confidential Information” of Seller any non-public information received or learned by Buyer hereunder or otherwise received or learned from Seller, including information regarding the non-public aspects of the Products and Embedded Software and Seller’s business plans and technology, (ii) reasonably protect such information from disclosure and (iii) not use or disclose such information other than as expressly authorized by Seller in writing.
  12. Restrictions.  Buyer agrees not to, nor permit any third party to: (i) reverse-engineer any Product; (ii) disassemble any Product; (iii) decompile, disassemble or otherwise attempt to derive the source code or logic underlying any Product; (iv) copy or make any reproduction of any Product in whole or in part through mechanical or other means; (v) alter any software in any Product; or (vi) use any Product in any manner other than for personal use (if Buyer is an individual) or for internal business purposes (if Buyer is an entity or organization), which may include use by Buyer’s employees and agents in connection with Buyer’s services for Buyer’s customers.
  13. Limited Warranty.  Seller warrants to Buyer that the Products will conform to Seller’s specifications for the Products in all material respects for twelve (12) months from delivery.  Seller retains the right to change the dimensions, composition, design, performance color and appearance of the Products without liability if, in its judgment, the change is non-material. Products may include new parts or serviceable used parts that are functionally equivalent to new parts.  Seller’s warranties are conditioned upon: (i) Buyer’s compliance with these Terms and Conditions; (ii) installation, maintenance and normal use in conformity with specifications and other instructions furnished by Seller, (iii) no use of the Product in a manner or purpose for which it was not designed or intended by Seller; (iv) no labels or tamper mechanism having been removed; and (v) the Products not having been subjected to misuse, neglect or accident, or to alteration, improper installation, repair, improper testing, corrosion, ordinary wear and tear or items not supplied by Seller in any respect which, in the judgment of Seller, adversely affects the condition or operation of the Products.  The Products have not been fully tested in the field or approved for use in connection with a vehicle having the ability or being developed to have the ability to operate autonomously at least in part without operation by a person (“Autonomous Usage”).  Any Autonomous Usage is at Buyer’s sole risk and liability.  Seller’s responsibility, and the sole and exclusive remedy of Buyer under the limited warranty is, at Seller’s option and subject to the terms hereof, to repair, replace (without any additional charge and shipped to Buyer FOB Seller’s facility), or to keep the Products and refund or credit Buyer in the amount of the purchase price of any defective or nonconforming Products that are returned or offered to be returned by Buyer to Seller (with transportation charges prepaid by Buyer, to be credited or refunded after verification of defectiveness or nonconformity of returned Products) during the warranty period, provided that (i) Seller is promptly notified in writing with a detailed explanation of any alleged deficiencies upon discovery by Buyer that the Products fail to conform to the applicable specifications; and (ii) Seller’s examination of the Products that shall disclose to Seller’s satisfaction that such Products are defective or nonconforming with respect to the applicable specifications.  THE FOREGOING CONSTITUTES SELLER’S SOLE LIABILITY AND BUYER’S SOLE RECOURSE. EXCEPT AS SET FORTH ABOVE, THE PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS AND SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND LIABILITY WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, NON-INFRINGEMENT, COMPLIANCE WITH GOOD MANUFACTURING PRACTICES, AND/OR FITNESS FOR A PARTICULAR PURPOSE.  BUYER BEARS ALL RISK RESULTING FROM THE USE OF PRODUCTS. Some jurisdictions’ Laws do not allow the disclaimer of certain implied warranties or conditions, and to the extent applicable to Buyer, then, at Seller’s option, such disclaimers shall either not apply, or Seller limits the duration of such warranties and conditions to the shortest duration (from date of delivery of the Product) permitted by such jurisdictions’ Laws.
  14. Indemnification.  Buyer shall: (a) defend Seller against any third party demand or claim made against Seller resulting from Buyer’s use of the Product other than in accordance with these Terms and Conditions, or Buyer’s breach of these Terms and Conditions, including without limitation any breach of license or under Section 12 (Restrictions); and (b) indemnify and hold harmless Seller for any amounts finally awarded against or imposed upon Seller by the court (or otherwise agreed in settlement) under such claim, as well as for any out-of-pocket legal expenses (including reasonable attorney’s fees) reasonably incurred by Seller.
  15. Limitations of Liability.  SELLER SHALL NOT IN ANY EVENT BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM THE SALE, DELIVERY, USE OR DEFECT OF THE PRODUCTS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  SELLER’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE PARTICULAR PRODUCTS INVOLVED. All claims must be brought within one (1) year of shipment, regardless of their nature.
  16. Returns.  Products may only be returned with Seller’s written permission, and then only in strict compliance with Seller’s Return Material Authorization (RMA) instructions.
  17. Technical Assistance.  In Seller’s sole discretion, Seller may furnish technical assistance and information with respect to Products; any such assistance and information shall be deemed to be Seller’s 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.
  18. 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.
  19. Reference.  Seller may use Buyer’s name and logo on Seller’s website and in its promotional materials to indicate that Buyer is a customer of Seller.
  20. Waiver.  No failure or delay on the part of any party in exercising any right or remedy under these Terms and Conditions shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.  Any waiver granted hereunder must be in writing, and shall be valid only in the specific instance in which given.
  21. Rights Cumulative.  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.
  22. Validity.  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.
  23. Assignment.  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 and any unauthorized assignment shall be null and void.  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.
  24. Notice.  Any notices required to be given hereunder shall be sent in writing to the address of each party as set forth on the applicable Order and shall be deemed given when faxed or mailed, properly addressed.
  25. Counterparts.  The Order may be executed in more than one counterpart, each of which constitutes an original and all of which together shall constitute one enforceable agreement.
  26. Governing Law; Jurisdiction.  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 North Carolina, 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.

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