SentryCard Technologies, Inc., d/b/a Sentry Enterprises
Standard Product Terms and Conditions
1. Binding Agreement.
These standard terms and conditions of sale (“Agreement”) apply to any sale or transfer of Product(s) by SentryCard Technologies, Inc., d/b/a Sentry Enterprises, a Delaware corporation (“Seller”) to reseller or buyer (referred to herein as “Buyer”). Buyer accepts and agrees to be bound by this Agreement by: a) ordering based on a Seller’s price quote; or b) accepting or paying for Products. Seller objects to and rejects any additional or different terms or conditions in any form tendered by Buyer, including expressly rejecting any provisions that dictate that Buyer’s terms control or any additional or different provisions in a Buyer’s electronic business portal. Seller’s failure to object to any provision or terms from Buyer will not be a waiver or amendment of any of the provisions of this Agreement. Notwithstanding the foregoing, except to the extent that the terms and conditions in an accepted purchase order expressly state that they prevail over conflicting terms or conditions in this Agreement, this Agreement shall supersede any terms and conditions contained on any sales order acknowledgement, Sales Agreement (as defined herein), or other writing Buyer may give or receive, and the rights of the parties shall be governed first by the terms and conditions hereof.
2. Definitions.
a) “Buyer” – the buying entity named on the respective Order Document as well as any affiliates of Buyer. b) “Buyer’s Customer” – a third-party bona fide purchaser from Buyer of Products as well as any third-party affiliates of purchaser. c) “Claim” – any and all claims, demands, causes of action, damages, injuries or liabilities, whether arising, at law or in equity, including those with respect to or arising under breach of contract, tort, negligence, delay in or failure of delivery, nonperformance, infringement, misappropriation, product or strict liability. d) “Government” – any governmental entity, authority, agency, official, or department at the national, state, county or local level.Intellectual Property or IP – all intellectual property, including without limitation patents, patent applications, copyrights, mask works, designs, utility models, moral rights, licenses, confidential or proprietary information, trade secrets, trade indicia (including trademarks, trade names, logos, product names and slogans), and all legal rights to inventions, know-how, methods, processes, Software, protocols, schematics, specifications, web sites, works of authorship, and databases. e) “Order Documents” – this Agreement, and any and all of the following: a) Seller’s (i) written price quote to Buyer, (ii) written acceptance of an order from Buyer, (iii) invoice for Products sold to Buyer, or b) a written reseller or sales agreement signed by Seller and Buyer for the purchase by and sale to Buyer of Products (“Sales Agreement”). f) “Product” – a Standard Product or a Special Product. g) “Purchase Order” – an order from Buyer for the purchase of Products that has been accepted by Seller in accordance with Section 3. h) “Specifications” – Seller’s electrical or physical specifications for a Product as provided by Seller. Seller may modify the Specifications at any time. Specifications do not include any advertisements or marketing or sales materials. i) “Software” – all programs, algorithms, source, object, machine readable or executable code, and all operating, processing, or other instructions, for computers, devices or products, provided, stored, or used by Buyer in connection with the Products in any medium and all related documentation. j) “Special Product” – a product as sold by Seller to Buyer that (i) is not a Standard Product, (ii) is a custom product or a modification of a Standard Product done at the request of or especially for Buyer, (iii) has been programmed, marked or labeled according to Buyer’s specifications, or (iv) is classified as other than a commercial production unit (e.g. prototype, design verification units, samples, preproduction units, developmental units, or units provided pursuant to a waiver). k) “Standard Product” – a product as sold by Seller to Buyer that has not been modified especially for Buyer.
3. Order Placement.
All Purchase Orders and requested changes to Purchase Orders are subject to acceptance by Seller, which acceptance shall be either (i) through Seller’s written order acceptance sent to Buyer, (ii) by delivery, or (iii) through electronic acceptance by Seller by mutually agreed upon methods. Seller reserves the right in its sole discretion to reject any Purchase Order or order given by Buyer regardless of whether Seller gave Buyer a price quote. Orders placed with certain delivery specifications are subject to expedite fees.
4. Title and Delivery.
Delivery dates are approximate and Seller will not be responsible for any claimed damages resulting from late deliveries. Subject to Article VI in the Sales Agreement, Buyer’s sole remedy for Seller’s delay in delivery or failure to deliver for any reason whatsoever is to cancel the order, and Seller will work to refund to Buyer any portion of the purchase price prepaid by Buyer for the product. IN NO EVENT WILL SELLER BE LIABLE FOR INCREASED MANUFACTURING COSTS, DOWNTIME COSTS, DAMAGES RELATING TO BUYER’S PROCUREMENT OF SUBSTITUTE PRODUCT (i.e., “COST OF COVER”), LOSS OF PROFITS, REVENUES, OR GOODWILL, OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES.
5. Payment Terms.
Seller may provide quotes to Buyer. Unless otherwise noted, quotes expire 60 days from the date of issuance. In the case of unforeseen increases in Seller’s costs, Seller may require renegotiation of pricing for Products not yet delivered by giving notice to Buyer of such price renegotiation and Seller’s proposed new pricing. All invoices are due and payable in full by Buyer in U.S. Dollars. Unless otherwise stated in the Sales Agreement or as specified in a certain Purchase Order, payment is due 30 days after the date of invoice. Buyer will pay for all Products delivered. Seller may, without incurring any Seller liability, suspend or cease any delivery and/or cancel any Purchase Orders if Buyer is in breach of this Agreement, the Sales Agreement, or a Purchase Order, or if Seller determines, in its sole judgment, that there is a risk that Buyer will not fulfill its obligations. Seller may require that Buyer make full or partial payment in advance, provide certain security or to satisfy other conditions. Seller may provide a copy of Seller’s Minimum Resale Price Policy to all Buyers. Notwithstanding anything herein to the contrary, Seller may enforce its rights under this Section without prior notice or demand and without proceeding under any other provision herein.
6. Taxes.
All taxes, assessments, fees, and charges applied by any Government to the Products or their sale, delivery, shipment or use (collectively, “Taxes”) will be added to the purchase price of the Products and will be paid by Buyer, except to the extent that Buyer provides Seller with an acceptable tax exemption certificate. If Buyer is required by law to withhold any amount of tax from its payment to Seller, Buyer shall promptly pay such amount to the appropriate tax authority and take all reasonable steps to minimize such withholding tax.
7 . Special Products.
All drawings, designs, or specifications for Special Products must be mutually agreed upon in a written document signed by both parties and will be made a part of the Order Documents as a condition to any obligation of Seller. Unless a Purchase Order for Special Products is cancelled within 10 days of acceptance by the Company, all Purchase Orders for Special Products are non-cancellable, non-returnable. If Buyer cancels, reschedules or rejects any delivery of Special Products, in whole or in part, Buyer will pay the full purchase price for the quantity of Special Products stated in the Purchase Order.
8. Confidentiality.
Buyer acknowledges that by reason of its relationship to Seller hereunder it will have access to certain information and materials concerning business, plans, customers, technology, and products of Seller and its affiliates that are confidential and of substantial value to Seller, which value would be impaired if such information were disclosed to third parties. If any confidential disclosure agreements or Sales Agreements have been executed, such Agreements are incorporated herein by reference.
9. Limited Warranties Exclusive Remedies.
Seller warrants to Buyer that Standard Products (i) are, at the time of delivery, free from material defects in materials and workmanship and (ii) will, for a period of one year following delivery, materially conform to the Specifications. This warranty does not apply to Special Products or to Products that Seller determines: (i) is in other than its original condition or (ii) has been subjected to Unauthorized Uses (as described in under Section 11). Seller’s sole and exclusive liability and Buyer’s sole and exclusive remedy will be for Seller (at Seller’s option and conditioned upon Buyer’s compliance with the requirements of this Section) as to the affected Products: (i) to refund the purchase price paid; or (ii) to deliver to Buyer a replacement. This warranty and any remedy extend to Buyer only and Seller has no liability to any of Buyer’s Customers, users or any other third party. Except for this limited warranty, Seller makes no other warranty and disclaims all other warranties or liabilities as to any Product, whether express, implied, statutory, or otherwise, including all warranties of merchantability, fitness for a particular purpose, title, ownership, non-infringement, and non-misappropriation. Special Products, labeling on Products and packaging that are intended solely for compliance with applicable law, and all related or ancillary items are provided “as is” and without any warranty of any kind. The warranty obligations of Seller and the remedies of Buyer set out in this Section 9 are the sole and exclusive obligations of Seller and the sole and exclusive remedies of Buyer for all Claims and other liabilities arising out of or in connection with any warranty, nonconformance, failure, defect or breach of warranty. No obligation or liability will arise out of Seller’s rendering of advice or service in connection with Buyer’s purchase of the Products or any repair or replacement of a Product. Seller does not offer any warranties of any kind, and expressly disclaims all implied warranties, on services provided by Seller which are ancillary to the purchase of Products by Buyer including, but not limited to, software modifications, designs, and reviews of Buyer’s systems, products, or designs. Buyer is solely responsible for complete and thorough testing of Buyer’s hardware and software and their interaction with the Products even if Seller has advised or assisted Buyer with such or testing. Seller is not liable for any defect in Buyer’s products or systems, including, but not limited to, those that would have been detected if Buyer had adequately tested its product and systems.
10. Limitations of Liability.
The aggregate cumulative liability of Seller, its affiliates, and their employees, directors, or agents (“Seller Parties”) for all Claims ever made by Buyer against Seller (inclusive) arising out of or in connection with any and all Purchase Orders, Order Documents, Products, or Claims shall not exceed, individually or collectively, and Buyer releases all such Claims against (and liability of) Seller Parties in excess of the net proceeds received by Seller for the Purchase Order preceding the event giving rise to first claim, or $500,000, whichever is less. The existence of one or more Claims will not enlarge or extend this limit. These limitations apply notwithstanding any failure of essential purpose of any limited or exclusive remedy. In no event will Seller Parties be liable to Buyer or any third party for any special, collateral, indirect, incidental, consequential, exemplary, punitive, or enhanced damages (“Excluded Damages”). Excluded Damages include costs of inspection, removal, and reinstallation of products or other items, rework, re-procurement or recall costs (including administrative and personnel costs) of replacing or substituting items, loss of goodwill, loss of revenue or profits, and loss of use, without regard to whether Seller has been notified in advance of the possibility of any such Claim or damage. Except to the extent liability is not excludable by applicable law, these limitations apply to personal injuries (including death) caused by Seller’s negligence. The allocation of risk contained in this Agreement is reflected in the price of the Products and is reasonable in all circumstances having regard to all relevant factors, including the parties’ relative bargaining positions.
11. Unauthorized Uses.
Products shall not be used if they have been subjected to operating or environmental conditions in excess of limits established in the Specifications or otherwise has been subjected to accident, mishandling, damage, misuse, abuse, neglect, alteration, or improper or unauthorized testing, installation or repair. Any unauthorized sale, use or inclusion by Buyer or any of its direct or indirect customers is fully at Buyer’s risk and voids any and all of Seller’s obligations and warranties.
12. Government Contracts.
All Products of Seller are commercial items as defined in FAR 2.101 (“FAR”). If Buyer sells Products to any Government, or to a Government prime contractor or subcontractor, Buyer shall be solely and exclusively liable for compliance with all Government acquisition statutes and regulations. Seller makes no representations, certifications, or warranties whatsoever about compliance with Government acquisition statutes and regulations, including, without limitation, those that may relate to pricing, quality, origin or content, and specifically rejects the flow down of all FAR clauses not required to be included in a subcontract for commercial items. All rights in technical data, intellectual property and software owned or licensed by Seller are hereby reserved and deemed restricted or limited. Under no circumstances shall Buyer or Buyer’s Customers receive rights or documentation greater than that which is generally made available by Seller to its other commercial customers.
13. Legal Compliance.
Buyer will comply with all applicable laws and regulations. The Products or related technologies may be subject to export license or other international trade controls. Buyer represents, warrants and certifies that Buyer will comply with applicable laws and regulations relating to export or re-export, including the Export Administration Act of 1979, as amended, the U.S. Export Administration Regulations and U.S. Foreign Assets Control Regulations, 31 C.F.R., Chapter V.
14. Buyer’s Duty to Defend.
Buyer will defend Seller Parties and reimburse Seller Parties for all Claims, taxes, penalties, interest, costs, assessments and expenses (including court and attorney’s fees) that arise as a result of or in connection with any inadequacy or invalidity of any tax exemption certificate submitted by Buyer or any act, omission or misrepresentation of Buyer or any of its affiliates, employees, agents, contractors, customers, users or representatives.
15. Disputes, Applicable Law and Forum.
All disputes relating to this Agreement or any other Claims arising out of or related to the relationship of the parties (“Disputes”) shall be resolved exclusively by the following sequential methods, except that Seller may take immediate legal action to prevent immediate or irreparable harm to it or for Buyer’s failure to make payments for Products as provided for herein or in any Order Document. Each of the parties waives its right to a jury trial. Each party will bear its own costs in dispute resolution including attorney fees, except to the extent that a court awards costs to one party. All Dispute negotiations will be confidential settlement negotiations that are inadmissible as provided by applicable rules of evidence in litigation. The parties consent to the sole, exclusive personal jurisdiction, choice of law (without regard to conflicts of law principles) and venue for all meetings, hearings, or proceedings in the City of Chicago, Cook County, State of Illinois, USA. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any Purchase Order, Order Document, or any sale of Products to Buyer.
16. Force Majeure.
Seller shall not be in breach of this Agreement and shall not be liable for any non-performance or delay in performance if such non-performance or delay is due to a force majeure event or other circumstances beyond Seller’s reasonable control, including, but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, government action or decree, war, civil unrest, epidemic, pandemic, COVID-19 pandemic, or any natural disaster, fire, flood, earthquake, explosion, terrorist acts or act of god. In the event of a shortage of components, Seller may, at its sole discretion, allocate component production and deliveries.
17. Miscellaneous.
This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns. There are no third party beneficiaries to this Agreement. Buyer may not assign this Agreement in any respect without the prior written consent of Seller. Seller may assign this Agreement, in whole or in part, or any of its rights or obligations hereunder without notice to or consent by Buyer. Seller may subcontract manufacturing or other work as to any or all Products without notice to or consent of Buyer. The failure of a party to enforce any right hereunder shall not waive that or any other right. If any provision of this Agreement or any Order Document is held to be illegal, invalid or unenforceable, then (i) such provision will be reformed to cure or remove such defect and if not reformed will be severed, (ii) the legality, validity and enforceability of the remaining provisions will not be affected or impaired, and (iii) the parties will endeavor in good faith to replace the severed provisions with valid provisions of the same or similar economic effect. The invalidity of a provision in a particular jurisdiction will not render unenforceable such provision in any other jurisdiction. No amendment or modification to the Order Documents will be effective unless specifically agreed in a writing signed by Seller. Notices to Seller should be in writing sent by tracked next-day delivery service to: SentryCard Technologies, Inc., 965 West Chicago Avenue, Chicago, Illinois 60654, Attn. Chief Revenue Officer. All rights, remedies and powers of Seller are cumulative and may be pursued or enforced in any manner or order. Section headings are included for convenience of reference only. The word “including” will be interpreted to mean “including but not limited to”. Sections 2, 8 – 17 survive any termination of this Agreement.