TERMS AND CONDITIONS OF SALE
ALL TRANSACTIONS BETWEEN SECURITY PEOPLE, INC., DBA DIGILOCK (“DIGILOCK”) AND BUYER ARE GOVERNED BY THESE TERMS AND CONDITIONS OF SALE. ANY PROPOSAL THAT INCLUDES DIFFERENT OR ADDITIONAL TERMS THAT CONFLICT WITH OR VARY THESE TERMS ARE OBJECTED TO AND DISALLOWED. NOTWITHSTANDING THE FOREGOING, IN ANY SUCH COUNTERPROPOSALS BY BUYER, THESE TERMS SHALL NOT OPERATE AS A REJECTION OF THE CONTRACT OF SALE, BUT AS A REJECTION OF THE ADDITIONAL OR DIFFERENT TERM(S).
- Coverage. These Terms and Conditions of Sale are directed to and cover sales of physical goods (“Products”), including without limitation electronic locking devices, lockers, keys, and tablets, by Digilock to the purchaser of the Products (“Buyer”).
- Acceptance of Orders. An Order form submitted by Buyer is deemed by Digilock to be an offer to purchase (“Order”), which Digilock may accept or reject in its sole discretion. Orders that do not conform to current Digilock volume or pricing policies or contain terms which conflict with these Terms and Conditions shall be considered rejected without further notice. In the event of a shortage of Products, Digilock reserves the right to allocate available Products among customers in its own discretion. Any automatic or computer-generated response to an Order shall not be deemed acceptance of an order. Digilock’s acceptance is subject to the Terms and Conditions of Sale stated herein.
- Credit. Digilock may, but shall not be obligated to, grant credit terms to Buyer in which case acceptance of any Order is subject to final credit approval by Digilock. Digilock reserves the right to cancel any sale if Digilock deems Buyer unable to pay for any products. Digilock reserves the right, in its sole discretion and without prior notice, to deny, change or limit the amount or duration of credit to be allowed Buyer, either generally or with respect to a particular purchase order, and may require cash payments in advance or security satisfactory to Digilock.
- Shipment, Cost of Delivery, Taxes and Other Charges. Unless otherwise specifically agreed in writing, all Products are shipped from Digilock’s facilities in either Petaluma, California; Houston, Texas; Amsterdam, Netherlands; Istanbul, Türkiye; or Dongguan, Guangdong Province, China, and the title and risk of loss and damage of such Product passes to Buyer upon delivery by Digilock to carrier at Digilock’s facility. Buyer shall pay the costs of shipping and insurance of the Products. Unless expressly provided on any Quote, any estimated arrival or delivery date is not a guaranteed delivery date. Digilock is not responsible for penalties or damages of any kind, direct or indirect, incidental or consequential, that may result from Digilock’s delays in meeting the estimated delivery dates, including but not limited to liquidated damages or penalty provisions of contracts entered into by Buyer and/or Buyer’s customers. Buyer shall pay all sales, use, excise, customs, duties, or similar taxes, or other charges, which Digilock is required to pay, or to collect and remit, to any Government (national, state or local) and which are imposed on or measured by the sale. All transactions pursuant to this Agreement shall be considered taxable unless Buyer provides Digilock appropriate verification of exemption.
- Payments. Unless credit terms are agreed to as described in paragraph 3 above, payment shall be made prior to shipment. Buyer agrees to pay a delinquency charge of 1.5% per month, but not to exceed the maximum rate allowed by applicable law. Until the purchase price and all other sums due to pursuant hereto are paid in full, Company retains a security interest in Product. Buyer shall execute financing statement(s) on request and irrevocably authorizes Company to execute and file same. Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Digilock shall be made without Digilock’s prior, express written approval.
- Inspection; Non-conforming Goods. Buyer shall inspect the Products promptly upon receipt for non-conformity (including but not limited to non-conformity for quantity, quality, and/or defects) (“Claim”). Failure by Buyer to provide Digilock with written notice of a Claim within twenty-one (21) days from the date of delivery or, in the case of non-delivery, from the date fixed for delivery, shall constitute a waiver by Buyer of all Claims with respect to such Products, provided, however, that Digilock shall not be liable for Claims in a Product once such Product has been incorporated in or mounted to a structure. Any non-conformity not discernible upon reasonable inspection shall be addressed under the Warranty provisions below.
- Returns. Returns require obtaining a Return Merchandise Authorization number from Digilock and are subject to a minimum re-stocking charge of 25% for unopened cases of product and must be received in original and unused condition. To the maximum extent permitted under applicable law, Buyer is responsible for all shipping charges on returned items and Buyer bears the risk of loss during shipment. IMPORTANT: SOME PRODUCTS, INCLUDING NON-STOCK ITEMS, ARE DESIGNATED AS NON-RETURNABLE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DIGILOCK DOES NOT OFFER REFUNDS ON ANY PRODUCTS DESIGNATED AS NON-RETURNABLE.
- Order Changes; Cancellations. Changes or cancellations to an order must be in writing and may result in additional charges for labor and/or materials. Changes may result in a delay in the scheduled ship date. Additions to orders will be entered as separate stand-alone orders and must qualify for all terms of sale, including discounts, on an individual basis. Orders for special or non-standard items may not be canceled. Orders may not be changed within 30 days of the scheduled ship date. Canceling an order before it has been shipped will incur a 10% cancellation fee before credit is issued. Canceling an order after it has been shipped will follow Company’s return policy, and such cancellation will be treated as a Return with all applicable fees. Orders which are refused at delivery will result in assessment on Buyer of all of the related costs – including but not limited to return freight, duties, restocking fees, and other miscellaneous costs.
- Limited Warranty; Disclaimer of Warranties. Digilock warrants that the Products shall be free of defects in material and workmanship under normal use in accordance with Digilock’s published documentation for two years from Digilock’s original shipment date (“Limited Warranty”). If a defect covered by this Limited Warranty arises and Buyer returns the Product in original packaging as directed by Digilock during the Limited Warranty period, Digilock will elect in its sole discretion and to the extent permitted by law to repair the Product, using new or refurbished parts, or replace the Product with a new or refurbished Product with at least equivalent functionality. If Digilock repairs or replaces the Product, the repaired or replaced Product will continue to be warranted for the remaining time of the original warranty period. Nothing in this Limited Warranty will reduce or otherwise affect Buyer’s statutory rights in relation to the Digilock Product. All returned parts will become the property of Digilock. Repair or replacement may result in loss of data.
This Limited Warranty only covers failures occurring due to a defect in materials or workmanship. This Limited Warranty does not apply to cosmetic damage or any consumable parts, such as batteries or protective coatings, that due to their nature diminish over time. This Limited Warranty does not apply to damage caused by: (1) normal wear and tear; (2) accidents; (3) misuse (including failure to follow product documentation); (4) neglect; (5) disassembly; (6) alterations; (7) servicing other than by Digilock-authorized technicians; (8) improper assembly or installation; and (9) external causes such as, but not limited to: damage caused by liquid, moisture, and/or chemicals, exposure to sharp objects, exposure to excessive force, anomalies in the electrical current supplied to the Digilock product, and other thermal or environmental conditions. Unless otherwise agreed in writing, Product is not designed or intended for exterior use or where exposed to moisture. Any use where Product is exposed to moisture is not covered by any warranties, and any resulting damages caused by direct exterior exposure or moisture is at Buyer’s own risk.
The liability of Digilock under this Limited Warranty does not extend to dismantling, installing, or re-installing, but instead is limited to repairing or replacing said items, at Digilock’s option, within a reasonable time after receipt of written notice from Buyer, within the period of time stipulated herein, of any such non-conforming Products, provided that (i) such notice is given immediately upon the detection of such non-conformance and (ii) such notice is received within the Limited Warranty period. BUYER AND DIGILOCK EXPRESSLY AGREE THAT THE BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST COMPANY SHALL BE FOR THE REPAIR OR REPLACEMENT (AT DIGILOCK’S OPTION) OF NON-CONFORMING PRODUCT.
THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE BY DIGILOCK IN CONNECTION WITH THE PRODUCTS AND IS BUYER’S EXCLUSIVE REMEDY. DIGILOCK MAKES NO OTHER WARRANTIES OR REPRESENTATIONS TO BUYER OR ANY OTHER PERSON OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DIGILOCK EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER STAUTORY OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT THAT CANNOT BE DISCLAIMED ARE LIMITED IN DURATION TO THE PERIOD OF THE EXPRESS LIMITED WARRANTY ABOVE. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.
- Limitation of Liability. BUYER EXPRESSLY UNDERSTANDS AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DIGILOCK BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS OF BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF THE PRODUCTS SOLD HEREUNDER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. To the maximum extent permitted by applicable law, no claim by Buyer of any kind shall be greater in amount than the amount actually paid by Buyer in the preceding year for the Products in respect of which damages are claimed. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
- Indemnity. Buyer shall indemnify, hold harmless, and defend Digilock, its shareholders, directors, officers, and employees from and against all claims and suits by third parties for damages, injuries to persons (including death), property damages, losses, and expenses including court costs and reasonable attorney’s fees, arising out of, or resulting from (a) Buyer’s performance under this Agreement, and (b) allegations of negligent or intentional acts on the part of the Buyer, its officers, employees, agents, subcontractors, licensees, or invitees.
- Excuses for Non-Performance. If the manufacture, transfer or receipt by either party of any products covered hereby is prevented, restricted or interfered with by reason of any event beyond the reasonable control of the party so affected, such party shall be excused from making or taking deliveries hereunder to the extent of such prevention, restriction or interference, and neither party shall be liable to the other for default or delay in performing, except with respect to Buyer’s payment obligations.
- Patents. Digilock reserves the right to discontinue deliveries of any products, the manufacture, sale or use of which would, in Digilock’s opinion, infringe upon any U.S. patent, trademark, design, or other intellectual property right now or hereinafter issued, registered, or existing and under which Digilock is not licensed.
- Seller’s Rights. If Buyer should fail in any manner to fulfill the terms and conditions hereof, Digilock may defer further shipments until such default is cured. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to Digilock. If for any reason, the quantities of the products covered hereby or of any materials used in the production of the products reasonably available to Digilock shall be less than Digilock total needs for its own use and for sale, Digilock may allocate its available supply of products among its existing or prospective purchasers and/or its own departments, divisions and affiliates in such manner Digilock deems proper in Digilock’s sole discretion, without thereby incurring liability on account of the method of allocation determined or its implementation or for failure to perform this Agreement.
- Compliance. Buyer will comply with all applicable anti-bribery and anti-corruption laws, regulations, rules and requirements including the United States Foreign Corrupt Practices Act (“FCPA”), the laws, regulations, rules and requirements of Buyer’s country, and any other applicable laws, regulations, rules and requirements.
- Governing Law. This Agreement shall be construed, and the respective rights and duties of Buyer and Digilock shall be determined, according to the laws of the State of California, without giving effect to its principles of conflicts of laws. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
- Dispute Resolution. The parties shall attempt to resolve any disputes though good faith negotiations. If the Parties are unable to resolve their disputes within sixty (60) days after a notice of disputed is first received, any claims or legal actions by one party against the other arising under these Terms and Conditions of Sale Agreement and/or any sale and purchase of Products hereunder or any transaction contemplated hereby or concerning any rights under this Agreement shall be resolved by arbitration administered by the American Arbitration Association (“AAA”) under the Code of Procedure for Resolving Business-to-Business Disputes in effect when the claim is filed. Any arbitration shall take place in San Francisco County, California and shall be heard and decided by a single arbitrator. Any party may seek provisional injunctive relief in aid of arbitration from a court of appropriate jurisdiction.
- No Assignment. These Terms and Conditions of Sale are not transferable by either party without the prior written consent of the other party, except that Digilock may assign these Terms without Buyer’s consent if the assignment is to an affiliate or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of Digilock’s assets.
- Compliance with Laws; Export Laws. Buyer and Digilock shall comply with all applicable international, national, state, regional and local laws and regulations with respect to their performance of this Agreement. Buyer agrees to adhere to all applicable US Export laws and regulations with respect to the products.
- Publicity. Digilock shall be entitled to identify Buyer as a customer of the Products on its website, on social media postings, and through press releases issued by Digilock and in other promotional materials.
- Miscellaneous. These Terms and Conditions of Sale are the sole and exclusive statement of the parties’ understanding and agreement with respect to the transactions contemplated by this sale, notwithstanding any other terms that might be contained in any purchase order or other document received from Buyer or submitted to Digilock. These Terms and Conditions of Sale constitute the entire agreement between the parties regarding the subject matter hereof and can only be modified or changed in writing and signed by authorized representatives of both parties. No waiver by Digilock of any of these Terms and Conditions of Sale or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case. No waiver shall be deemed to occur as a result of the failure to enforce any term or condition of these Terms and Conditions of Sale. If any clause or portion hereof shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining clauses or portions shall remain in full force and effect. The paragraph headings are for convenience only and shall not be used in interpreting or construing these Terms and Conditions of Sale.