Terms and Conditions
These Terms and Conditions (also referred to as “Agreement”) are the terms and conditions upon which Occam Robotics, Inc. DBA Occam Vision Group, its affiliates and representatives (“OVG”) make all sales of hardware and software (“Product” or “Products”) with purchaser of Products (“Customer”, “You”, “Your” or “Purchaser”). These Terms and Conditions are subject to change at any time. Customer agrees to any changes by continuing to use support services, using OVG products and/or services, and/or as subject to Section 1 below. Please read the following terms and conditions carefully as they contain the legal terms and conditions regarding our Customer’s rights and obligations, as well as any legal exclusions.
1. ACCEPTANCE OF AGREEMENT
Customer has accepted and agreed to be bound by these Terms and Conditions by, but are not limited to, any one of the following:
- a) Customer placing an order for Products;
- b) Customer’s acceptance of any shipment or any part of the items specified for delivery;
- c) Customer’s acceptance of an OVG sales quote;
- d) Customer’s written acknowledgement hereof;
- e) Payment by Customer of any amount of Product price, invoice or pro-forma invoice; or
- f) Any other offer or expression of acceptance by Customer.
All orders are subject to acceptance by OVG. Notwithstanding any contractual terms accompanying the Customer’s order or otherwise provided by the Customer, the Terms and Conditions herein shall be the only terms and conditions applicable to this Agreement.
2. PRICING AND SALES QUOTATIONS
Prices do not include applicable sales, use, excise, or similar taxes. Prices on sales or discounted quotations are valid for for only 14 days, or for the period stated on the quotation. Prices, including but not limited to those on invoices, quotations, marketing materials, or elsewhere, are subject to change at any time.
Payment terms are at OVG’s sole discretion. All payments must be made in U.S. funds. Customer must pay an OVG invoice no later than thirty (30) days (unless otherwise specified in writing by OVG) from the date of invoice. OVG will require full payment in advance of any shipment, and payment may be made by credit card at the sole discretion of OVG.
Customer shall pay all applicable sales, use, excise, or similar taxes where and when applicable unless Customer provides OVG with an exemption certificate acceptable to the relevant taxing authority.
5. TITLE AND DELIVERY
Title to a Product passes from OVG to Customer upon pickup by the shipping carrier. Title to all software shall remain with the licensor. Delivery dates are approximate. OVG shall use reasonable efforts to fill all orders according to a shipment schedule that may be provided by OVG at the time of the acceptance of the order. In no event shall OVG guarantee shipment according to such delivery schedule or be liable for damages due to delays in delivery, including but not limited to delays arising from export restrictions or out of stock items. Customer shall bear the cost of obtaining all necessary export permits or licenses. OVG may make partial shipments and the terms and conditions herein shall apply separately for each shipment.
All prices quoted, including but not limited to repairs, part and goods, are C.P.T (Carriage Paid To) from OVG’s facilities. Customer will bear cost of shipment. All prices quoted, including but not limited to repairs, part and goods, are F.C.A. (Free Carrier) from OVG’s facilities. All responsibility for risk of loss or damage shall pass to Customer upon delivery of Product to carrier. Shipments from OVG are not insured.
7. ASSIGNMENT AND RESALE
Customer shall not assign an order, or any interest therein, or any rights hereunder without the prior written consent of OVG. Customer agrees that all Products are for its own use and not for commercial resale unless with the express written consent of OVG.
8. RETURNS AND EXCHANGES
Product returns require a Return Merchandise Authorization (“RMA”) number issued by OVG. To receive an RMA number, please contact OVG at firstname.lastname@example.org. Returned Product shipments without an RMA number will be refused by OVG and a refund will not be issued. Returns and exchanges are subject to the following:
- a) Products must be returned within 14 days of purchase.
- b) Only products purchased at regular list price may be returned.
- c) Only orders of 4 items or less may be returned.
- d) Customer will be charged a restocking fee for any return.
- e) The following Products may not be returned or exchanged:
- i. Custom Products;
- ii. Board level cameras; and
- iii. Omni Products.
- f) All returned Products are subject to inspection by OVG. OVG will only accept Products returned in original condition. OVG will return to Customer any Products displaying any misuse or damage or otherwise not in original condition. If applicable, Products must be returned in original manufacturer’s packaging. Products should be packaged for shipping in a separate shipping container with the RMA number clearly marked on the shipping container.
- g) Customer is responsible for all shipping costs on returns for any reason; original shipping charges will not be refunded.
- h) OVG may in its sole discretion issue refunds in either: (1) the same form as Customer’s original payment for the Products, or (2) may offer Customer OVG in-store credit which may be used to purchase other Products and will expire within a period of one (1) year or as written upon the in-store credit issurance document.
OVG has sole discretion for returns, credit, replacement, exchange, repair or remedy of deficiencies.
9. GOVERNING LAW
All sales shall be governed by and construed in accordance with the laws of the State of Colorado, including the applicable federal laws of the United States, but excluding that body of law applicable to choice of law. The United Nations Convention on Contracts for the International Sale of Goods and any legislation implementing such convention, if otherwise applicable, shall not apply to any order or sale. Customer hereby consents, attorns and submits to the exclusive jurisdiction of the courts of the State of Colorado, in the forum of Boulder, Colorado, for any suit, action or proceeding arising out of the Terms and Conditions.
All Products, unless specifically stated within the Product page, marketing materials or invoice, include a two (2) year limited warranty for parts and labour on material and manufacturing defects, and a corresponding period of e-mail technical support. Warranty only applies to original Purchaser of OVG Products (“Customer”). OVG will at its option either repair or replace the damaged unit. OVG does not warrant compatibility of Products with non-OVG products, including but not limited to integrations that may be advertised with the Product. Warranty is void if any proprietary labeling is removed. Repaired or replaced Products are covered for the remainder of the original Product warranty period or 90 Days whichever period is longer. OVG shall not be responsible for any defect in the Products due to physical damage to the Products as a result of improper handling during or after shipment, misuse, neglect, improper installation or operation (including but not limited to radioactive or other dangerous environments, mishandling electrical equipment with static shocks, etc.), repair, alteration, accident or for any other cause not attributable to defective workmanship on the part of OVG. OVG EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. REPAIR SERVICES
Repair services may be requested in writing via email@example.com. Customer will pay to any repair fees assessed by OVG for Products that are not covered by the Warranty described in Section 10 above. Repaired Products will have a Hardware Warranty period of 90 days from the date of shipment. OVG may, at its discretion, exclude from this repair policy any Products that: a) have been, or show any signs of being, misused, damaged or modified by Customer; or b) are beyond reasonable reparability.
12. LIMITATION OF LIABILITY
CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT OVG AND ITS REPRESENTATIVES SHALL IN NO EVENT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR INFORMATION, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES IN ANY WAY RELATING TO OR ARISING FROM THIS AGREEMENT, RESULTING FROM PERFORMANCE OR FAILURE TO PERFORM UNDER THESE TERMS AND CONDITIONS, OR FROM THE FURNISHING, PERFORMANCE OR USE OF ANY PRODUCT OR SERVICE SOLD PURSUANT HERETO, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OVG’S LIABILITY WILL NEVER EXCEED THE TOTAL PRICE PAID BY CUSTOMER HEREUNDER. OVG SHALL HAVE NO LIABILITY FOR ANY INDIRECT OR PUNITIVE DAMAGES OR FOR ANY CLAIM BY A THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN.
Failure of OVG to insist upon strict performance of any provisions hereof shall not be deemed a waiver of its rights and remedies.
To the extent that any provision, portion or extent of this Agreement is deemed to be invalid, illegal or unenforceable, such provision, portion or extent shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and the remainder of this Agreement, as the case may be, shall remain binding upon the parties.
15. FORCE MAJEURE
OVG shall not be liable for any delay or failure in performance, including but not limited to delay or non-shipment caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, delayed issuance of export licenses, embargoes, strikes, labour difficulties, equipment failures, or any other causes beyond the control of OVG.
The section headings used herein are for convenience of reference only and shall not affect the construction or interpretation of these Terms and Conditions.
17. ENTIRE AGREEMENT
No amendments, modifications or substitutions to this Agreement, including by the use of additional documentation, is valid or binding on any party unless it is in writing and signed by all parties hereto. These Terms and Conditions constitute the entire agreement between OVG and Customer with respect to the purchase of Products. THESE TERMS AND CONDITIONS ARE INTENDED TO SUPPLEMENT, BUT ARE EXPRESSLY SUBORDINATE AND SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN ALL APPLICABLE SOFTWARE LICENSE AGREEMENTS AS WELL AS TO ANY LICENSE, DEVELOPMENT, SUPPORT, BETA TEST, EVALUATION AND DISTRIBUTION AGREEMENT, OR ANY OTHER WRITTEN SALES AGREEMENT (“THE AGREEMENTS”) PREVIOUSLY OR SUBSEQUENTLY ENTERED INTO IN WRITING BETWEEN THE CUSTOMER AND OVG AND AS SIGNED BY ALL PARTIES HERETO. THE AGREEMENTS SHALL SUPERCEDE ANY INCONSISTENT PROVISIONS IN THESE TERMS AND CONDITIONS IN RESPECT OF THE SPECIFIC PRODUCTS TO WHICH THEY RELATE WHILE THE AGREEMENTS ARE SUBSISTING. Any terms and conditions contained in or attached to purchase orders submitted by Customer do not form part of The Agreements, and any such terms and conditions are hereby expressly rejected by OVG.
18. CUSTOM CAMERAS AND PROFESSIONAL SERVICES TERMS & CONDITIONS
Unless otherwise agreed to expressly in a writing as agreed to with written signatures on behalf of OVG and Customer which shall refer explicitly to this Agreement and is in respect to customized cameras and/or professional services (hereinafter referred to each as “Custom Camera” and “Professional Services”) purchased hereunder, the following terms shall apply.
- a) Acceptance. By ordering or accepting professional services and/or a customized or custom camera from OVG, Customer agrees that Customer has read and understood this Agreement and this Section 18 (Custom Cameras and Professional Services Terms & Conditions).
- b) Term. The term of Professional Services shall be as set forth in a separate statement or scope of work (“SOW”) that is mutually agreed to by the parties and referred to within the paid invoice or paid quote.
- c) Scope of Services. The project scope will consist of Professional Services and/or Custom Camera identified on your paid invoice or paid quote.
- d) Out of Scope Services. OVG shall not be responsible for Service outside the scope of the Professional Services described on the paid invoice or paid quote. Any additional services discussed or implied that are not defined explicitly and expressly by the paid quote or paid invoice shall be considered out of scope.
- e) Changes to Services. Changes to the scope of Services must be documented and agreed upon by the parties in a change order. If the changes cause an increase or decrease in any charges or cause a scheduling change from that originally agreed upon, an equitable adjustment in the charges or schedule will be agreed upon by the parties and included in the change order, signed by both parties.
- f) Delays. If any delays are caused by Customer, Customer will be responsible for any costs incurred by OVG in preparing for the performance of the Professional Services, and OVG will be entitled to recover these costs from Customer, including but not limited to travel related costs, additional hardware costs, development costs, software costs, and all other costs not stated here, etc. Non-performance or delay by OVG of OVG obligations under this Agreement or any separate SOW or paid invoice or paid quote will be excused if and to the extent the non-performance or delay results directly from the failure by Customer to perform Customer responsibilities. If any failure or delay by Customer to perform any of Customer responsibilities prevents or delays our performance of OVG obligations under this Agreement, we will be entitled to a reasonable extension of time to the applicable performance dates to reflect the extent of the impact of the failure or delay by Customer.
- g) Customer Responsibilities. OVG’s successful performance of the Professional Services depends upon Customer:
- i. Making available Customer relevant systems for assessment by OVG prior;
- ii. Ensuring that prior to OVG assessment of relevant systems that Customer relevant systems meet any and all requirements as set forth in separate SOW and/or paid invoice and/or paid quote. This shall include making any required modifications, upgrades or alterations to Customer hardware, facilities, systems and networks related to OVG performance of the Professional Services prior to Professional Service;
- iii. Providing access to any relevant systems including providing any and all documentation, material, and/or hardware and/or software relevant and/or necessary to OVG performing the Professional Services;
- iv. Timely implementation of operating procedures, audit controls, and other procedures necessary for your intended use of the Professional Services and/or Custom or Customized Cameras or related products, hardware, or software;
- v. Providing all necessary infrastructure information necessary or relevant for OVG to provide the Professional Services;
- vi. Promptly installing and implementing any and all software updates provided by OVG;
- vii. Providing to OVG the assistance, participation, review and approvals and participating in testing of any products, hardware and/or software setup, or any other assistance and/or participation as requested by OVG;
- viii. Designating a Customer point of contact who will be the main point of contact for all communication with OVG and who has the authority to act on your behalf in matters regarding the performance of the Services;
- ix. Ensuring the reasonable availability by phone or immediate email of knowledgeable staff and personnel, system administrators and operators to provide timely, accurate, complete and up-to-date documentation and information for the duration of the Professional Services (these contacts are to provide background information and clarification of information required to perform the Professional Services);
- x. Instructing Customer personnel so that they are, at all times, educated and trained in the proper use and operation of the OVG products or Professional Services and that the OVG products are used in accordance with applicable OVG documentation; and
- xi. Identifying in advance any holidays, non-work days, or major events that may impact the project.
- h) Access to Systems to Perform and Test Services. Customer authorizes OVG, OVG independent contractors, or consultants to access Customer relevant systems solely for the purpose of performing the Professional Services. Customer is responsible for, and assumes the risk of any problems, delays, losses, claims, or expenses resulting from the content, accuracy, completeness, and consistency of all data, materials, and information supplied by Customer or third party that Customer has involved.
- i) Installation. A separate SOW or paid invoice or paid quote may include all environmental specifications that must be met in order for use of the Professional Services and related OVG products, including but not limited to Custom or Customized Cameras. Prior to delivery of all OVG products in relation to the Professional Services, Customer must prepare installation of all relevant software and/or systems in accordance with the environmental specifications as set forth in the separate SOW or paid invoice or paid quote (“Installation Site”). Following the installation of the OVG products, Customer is solely responsible for maintaining the Installation Site where the OVG products have been installed in accordance with the environmental specifications set forth in the separate SOW or paid invoice or paid quote, including but not limited to any and all relevant systems. In the event that there are any updates or modifications to the OVG products, including the environmental specifications for the OVG products, OVG will provide the updates or modifications when they are generally released by OVG to our customers as set forth in our support pages.
- j) Acceptance of OVG Delivery. If, after delivery of OVG products related to Professional Services, Customer reasonably believes that OVG did not complete the Professional Services in substantial conformance with these terms as set forth in this Section 18, Customer must notify OVG in writing of Customer’s specific reasons for rejection of the Professional Services within 7 calendar days from delivery of OVG products related to Professional Services and/or Professional Services as set forth in a specified delivery date in a separate SOW or paid invoice or paid quote. If we do not receive a written notification of the reasons for the rejection of the performance of the Professional Services from you within 7 calendar days of delivery of the OVG products and/or Professional Services to you, the absence of your response will constitute your affirmative acceptance of the Services, and a waiver of any right of rejection.
- k) OVG Ownership. Customer acknowledges and agrees that OVG shall retain and own all right, title and interest and all intellectual property rights (including copyrights, trade secrets, trade-marks and patent rights) in and to any and all Professional Services, software, hardware, firmware, etc. and all other materials or intellectual property not herein referenced used by OVG to provide the Professional Services except as previously owned by Customer as evidenced with Customer’s documentation and records (collectively, the “OVG Materials”) and all copies thereof and customizations and modifications thereto, and that nothing herein transfers or conveys to Customer any ownership right, title or interest in or to the OVG Materials or to any copy thereof or any license right with respect to same not expressly granted herein. Customer agrees that it will not, either during or after the termination of this Agreement, contest or challenge the ownership of the intellectual property rights in the OVG Materials by OVG. Customer understands and agrees that Professional Services work may be incorporated into OVG work as provided to other Customers, as well as other software or hardware sold to public.
- l) Limitation of Liability. LIMITATION OF LIABILITY SHALL BE SUBJECT TO TERMS AS SET FORTH IN SECTION 12 OF THIS AGREEMENT, EXCEPT THAT FOR PROFESSIONAL SERVICES OVG’S LIABILITY TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID TO OVG UNDER THIS SECTION FOR THE PROFESSIONAL SERVICES IN THE ONE (1) MONTH PRECEDING THE CLAIM. CUSTOM OR CUSTOMIZED CAMERAS ARE NON-REFUNDABLE PER SECTION 8 OF THIS AGREEMENT.
- m) Confidential Information.
- i. Each party (“Recipient”) acknowledges that confidential information (including trade secrets and confidential technical, financial and business information of the other party (“Discloser”) may be exchanged between the parties pursuant to provision of Professional Services as set forth in this Section 18 (collectively, “Confidential Information”). Recipient shall use no less than the same means it uses to protect its similar confidential and proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of the Confidential Information of Discloser. Recipient agrees that it will not disclose or use the Confidential Information of Discloser except for the purposes of this Agreement and as authorized herein. Recipient will promptly report to Discloser any unauthorized use or disclosure of Discloser’s Confidential Information that Recipient becomes aware of and provide reasonable assistance to Discloser (or its licensors) in the investigation and prosecution of any such unauthorized use or disclosure.
- ii. Notwithstanding Section 18(m)(i) above, Recipient may use or disclose the Confidential Information to the extent that such Confidential Information is: (a) already known by Recipient without an obligation of confidentiality, (b) publicly known or becomes publicly known through no unauthorized act of Recipient, (c) rightfully received from a third party without any obligation of confidentiality, (d) independently developed by Recipient without use of the Confidential Information of the Discloser, (e) approved by Discloser for disclosure, or (f) required to be disclosed pursuant to a requirement of a governmental agency or law so long as Recipient provides Discloser with notice of such requirement prior to any such disclosure and takes steps reasonably necessary to maintain the information in confidence.
- iii. Recipient shall, and shall cause all of its employees, contractors and consultants who have access to Confidential Information of Discloser to, safeguard and maintain the Confidential Information of Discloser in strict confidence and shall not, and shall cause its employees, contractors and consultants not to, disclose, provide, or make such Confidential Information or any part thereof available in any form or medium to any third party person except to Recipient’s employees, contractors and consultants who have a need to access such Confidential Information in order to enable Recipient to exercise its rights under this Agreement. Customer agrees not to: (a) disclose to third parties (whether in writing or orally) any data related to the OVG Services, and (b) use OVG’s Confidential Information to create any computer software or documentation that is substantially similar to the OVG software or OVG hardware.
- n) Right to Perform Services For Others. Customer recognizes that OVG is in the business of providing computer, software, and hardware services and may perform services for other persons similar to Customer. Subject to OVG confidentiality obligations pursuant to Section 18(m), OVG retains the right and nothing shall prevent OVG from using any ideas, concepts, methods, processes, know-how, organization, techniques, hardware or any software, including OVG Materials, in providing any services to any third party.
- o) Disclaimer of Warranty. CUSTOM AND CUSTOMIZED CAMERAS AND PROFESSIONAL SERVICES ARE EXCLUDED FROM ALL WARRANTIES AS SET FORTH IN SECTION 10 (WARRANTIES). OVG DOES NOT MAKE AND HEREBY DISCLAIM, AND CUSTOMER EXPRESSLY WAIVES ALL WARRANTIES WITH REGARDS TO OVG PRODUCTS PROVIDED WITH PROFESSIONAL SERVICES AND ALL WARRANTIES REGARDING PROFESSIONAL SERVICES, EXPRESSED OR IMPLIED. EXPRESSLY EXCLUDED ARE ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY OTHER STATUTORY OR COMMON LAW WARRANTY. OVG EXPRESSLY DISCLAIMS ALL WARRANTY AND GUARANTEES OF TECHNICAL SPECIFICATIONS OR ANY OTHER GUARANTEES, REQUIREMENTS, ETC. FOR: (i) THIRD PARTY PRODUCTS OR SERVICES, (ii) OVG PRODUCTS PROVIDED THROUGH PROFESSIONAL SERVICES THAT RELY ON THIRD PARTY SERVICES OR PRODUCTS, AND/OR (iii) PROFESSIONAL SERVICES THAT INTEGRATE OR RELY UPON THIRD PARTY SERVICES OR PRODUCTS.
- p) Term. The term of Professional Services will commence on dates as agreed to by Customer in separate SOW or as set forth on paid invoice or paid quote.
19. ADDITIONAL RESTRICTIONS
- a) Customer will not reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from OVG products, including but not limited to the binary code of OVG Products (collectively, “Reverse Engineering”) or permit or induce the foregoing.
- b) Any information supplied to or obtained by Customer regarding OVG Products may only be used by Customer will not be disclosed to any third party or used to create any software or technology which is substantially similar to OVG products.
- c) Survival. The parties hereto agree that the provisions hereof requiring performance or fulfillment after the expiry or earlier termination of this Agreement shall survive such expiry or earlier termination. The provisions of this Agreement relating to ownership, confidential information, warranty disclaimer, indemnification and limits of liability shall survive the expiration or termination of this Agreement.