SALES ORDER FORM TERMS AND CONDITIONS SE1020
These terms and conditions (the “Agreement”) that follow shall govern any Sales Order Form (“Sales Order Form”) executed by Seguro, LLC, a California limited
liability company (“Seguro”) and the purchaser (“Purchaser”) which incorporates by reference these Sales Order Form Terms and Conditions SE1020.
In consideration of the mutual covenants and agreements herein and in any Sales Order Form associated herewith, Seguro and Purchaser hereby acknowledge
and agree as follows:
1. CONTROLLING TERMS. By executing the Sales Order Form which references these Sales Order Form Terms and Conditions SE1020 (Terms and Conditions), Purchaser
has accepted the terms and conditions hereof, which shall control except to the extent the Sales Order Form expressly amends these terms and conditions. In order to expressly
amend these terms, the Sales Order Form must indicate the paragraph and term which is amended. The Sales Order Form does not create a binding agreement unless signed
by both Purchaser and Seguro.
2. TERMS APPLY TO PRODUCTS AND PORTAL. These Terms and Conditions apply to both devices purchased under the Sales Order Form (“Products”) and services to be
provided under the Sales Order Form (“Services”), including Services related to the storing of data created by the Products and provision of an internet portal to access data
created by the Products (“Portal”).
3. CANCELLATION CHARGES. Any order pursuant to a Sales Order Form executed by both Seguro and Purchaser, and later cancelled or changed by Purchaser, will be
subject to a cancellation charge regardless of the order status. The cancellation charge will be based on the work completed, including office and engineering time incurred prior
to the cancellation or change notice, and the raw materials used and/or purchased for the cancelled or changed order, plus a reasonable allowance for overhead and profit. To
the extent that a cancellation charge does not exceed any amount paid by Purchaser, Seguro shall refund the balance of the amount paid. To the extent that the cancellation
charge exceeds any amount paid, Purchaser shall pay the balance due within ten (10) days of invoicing.
4. TERMS OF PAYMENT. Payment is on the terms set forth in the Sales Order Form. If not otherwise provided in the Sales Order Form, 50% of the purchase price set forth in
the Sales Order Form (“Purchase Price”) is due upon execution of the Sales Order Form, and the remainder of the Purchase Price is due upon delivery. Purchaser understands
and acknowledges that Seguro shall not commence production of any products purchased under the Sales Order Form unless and until 50% of the Purchase Price has been
paid, unless the Sales Order Form expressly provides otherwise.
5. PAYMENT ASSURANCE. Seguro is not obligated to delivery product or commence services if payment has not been made as provided in the Sales Order Form and under
this Agreement, and shall be entitled to withhold delivery so long as Purchaser is in breach. Even if Seguro has withheld delivery due to a breach by Purchaser of payment
obligations, Seguro shall be entitled to full recovery of its damages. If product has been delivered and/or services commenced, and Purchaser has failed to comply with the
terms of payment, Seguro shall be entitled to withhold services so long as Purchaser is in breach.
6. INTEREST, ATTORNEY’S FEES, COSTS OF COLLECTION. Interest will be charged at the rate of 1.5% per month (18% per annum) or the maximum rate allowed by law,
whichever is lower, on past-due accounts. Purchaser shall pay all costs incidental to the preparation, filing and prosecution of liens, notices of claims, and similar costs of
collection. In any dispute arising out of this Agreement, the prevailing party shall be entitled to recover all costs and attorney’s fees, including fees and costs in both trial and
appellate courts, and including any expenses incurred without suit, including, without limitation, all costs of a collection agency.
7. CREDIT APPROVAL. All orders are subject to approval of credit by Seguro.
8. SHIPPING. Shipping charges shall be as specified in the Sales Order Form. If not specified in the Sales Order Form, Purchaser shall be responsible for payment of actual
shipping charges incurred by Seguro.
9. DELIVERY DATES. Shipment or delivery dates of products are the best estimates of Seguro’s production departments and are computed from the time of receipt of order by
Seguro’s production facilities. Seguro shall not be liable to Purchaser or any employee, agent, or customer of Purchaser for any injuries or damages resulting from failure or
delay of delivery of any order. Seguro will make reasonable efforts to deliver in accordance with orders it accepts, but delivery dates requested by Purchaser and/or confirmed
by Seguro shall be considered to be estimates only.
10. FORCE MAJEURE. Seguro shall arrange reasonably prompt delivery of products, in accordance with the Sales Order Form and Section 9 of these Purchaser Order Terms
and Conditions. Once Seguro has delivered products to its shipping provider, Seguro shall not responsible for delays in deliveries for any reason.
11. NATURE OF GOODS AND SERVICES.
(I) Services Provided Through Third Parties. Purchaser understands and acknowledges that the Portal is hosted by Amazon Web Services (AWS) on a secure
portal, and that the data of Purchaser shall be separate from that of other customers of Seguro. Purchaser understands and acknowledges that, if Purchaser has acquired the
Smartspace Mobile Solution, the data collected by the Products will be transferred to the Portal via a mobile phone app which must be downloaded through the Google Store
(for an Android phone) or the Apple Store (for an iPhone). Purchaser understands that, if Purchaser has acquired the Smartspace Mobile Solution, data will not be stored on the
user’s phone, but will be transferred through the App, and while the Product will collect data even if the user’s phone is not present, data will not be transferred until user’s phone
is present with the Product with Seguro’s App running.
(II) Limitations on Capability of Products. Purchaser understands and acknowledges that the Products are not medical devices. Purchaser understands and
acknowledges that while the device is intended to assist in social distancing and in providing data for purposes of contact tracing, that the Product alone cannot increase safety,
and it is intended to be used in connection with other protective measures. Purchaser understands and acknowledges that no measures can completely prevent contracting of
virus or provide certainty in contact tracing.
(III) Management of Data. The data provided by the Products will be accessible to Purchaser through the Portal. It is the responsibility of Purchaser to manage the
data, and use it in a manner to protect Purchaser and any parties to whom Purchaser has provided Products, including determining whether to give any alerts to parties based
on the data, and the nature of such alerts. The utility of the Products will also be based on part on users of the Products providing Purchaser with relevant information, such as
the existence of any positive tests for a virus. Purchaser alone is responsible for determining who will have access to data, who will manage data, and how data will be managed.
(IV) Ownership of Data, Privacy, and Use of Portal. Purchaser shall own all data sent from the Products to the Portal Purchaser represents that it shall responsible
to obtain the rights to use data provided by the Products from any users of the Products. The Products and Services are designed so that only name and company email
address are provided by users of the Products, as a means of identifying the parties whose data is provided by the Products, and to maximize privacy of users. Data will be
stored on a secure AWS Portal, but Purchaser is responsible for determining who will have access to the Portal and for ensuring that the privacy of data is protected by those
accessing the data. Purchaser shall have the right to access the data on the Portal for so long as it has the right to Services. Purchaser acknowledges that it shall have access
to the Portal and the data theron only so long as provided in a Sales Order Form, or any other written agreement between Purchaser and Seguro, after which the right of
Purchaser to use the Portal shall terminate. If the Sales Order Form provides no duration, Purchaser shall have the right to use the Portal and access the data for a period of
twelve (12) months from delivery of the Products, or as may be extended by an additional Sales Order Form or other written agreement signed by both Purchaser and Seguro.
12. RETURNS. Seguro is not obligated to accept return of any products except as provided in Section 13 below regarding warranty. Barring unusual circumstances, it is
understood that Seguro will not agree to return of products except for failure to perform as warranted below. No materials or products may be returned without the written
approval of Seguro, including any returns for failure to perform as warranted. All material returned with such approval must be shipped in a manner directed by Seguro, with
returned freight pre-paid by Purchaser, or in the event of failure to perform as warranted, at the sole discretion of Seguro, freight either paid by Seguro or freight pre-paid by
Purchaser to be reimbursed to Purchaser by Seguro upon determination that the Products failed to perform as warranted. Except for Products that failure to perform as warranted
below, any return is at the sole discretion of Seguro, and Seguro shall not approve return without agreement between Seguro and Purchaser regarding refund, if any, due
Purchaser, or additional amount due Seguro, if any.
13. LIMITED AND CONDITIONAL WARRANTY, DISCLAIMER OF WARRANTIES AND LIMITATION OF REMEDIES AND LIABILITY.
(I) LIMITED AND CONDITIONAL WARRANTY. Seguro warrants to the original Purchaser that the Products and Portal will be available to be operated in a
fully functional and operational manner, defined as being free from material nonconformity, and in all material respects from substantial defective design,
material and faulty workmanship, and will operate in substantial compliance with the specifications set forth in the Sales Order Form (“Specifications”)
when properly used. Products supplied hereunder shall be free from defects in material and workmanship, and shall operate to the specifications
provided in the Sales Proposal provided to Purchaser, and that the Services shall operate to provide Purchaser with the social distancing data set forth
in the specifications provided in the Sales Order Form. Seguro shall remedy any defects in material or workmanship, repair or replace, any part or parts
of Products defective in workmanship or material, freight prepaid, within two (2) weeks from the date of delivery to Seguro; provided, however, that in
no event shall the duration of this warranty with respect to Products extend beyond twelve months following the date of Seguro’s first delivery of
Products to the original Purchaser, and provided that, in the event that Seguro, in its reasonable opinion, determines that the product cannot be repaired
or replaced, Seguro shall have the option to refund the Purchase Price. Seguro shall remedy any defects in operation of its Portal and collection and
provision of data within twenty-four (24) hours (weekends and federal holidays excluded) of Seguro being notified of any such defects, with its liability
limited as set forth below, and with respect to Smartspace Mobile Solutions, Seguro shall remedy any defects in operation of its App for either Android
or iPhone by releasing a version correcting any such defects within one week of being notified of any such defects; provided, however, that in no event
shall the duration of this warranty with respect to Services extend beyond the period for which Services are to be provided under the Sales Order Form,
or, in the event that the Sales Order Form does not specify a duration for Services, twelve months from delivery of the Products, unless the period for
provision of Services is extended pursuant to an additional written agreement or Sales Order Form between Seguro and Purchase. Seguro shall not be
responsible for any failure of AWS beyond its control, but shall work with AWS to remedy any failure as promptly as possible. In the event that either
Google or Apple cease providing Seguro’s App, Seguro shall have no liability to provide a replacement mobile solution, but shall promptly offer to sell
Purchaser equipment for the Smartspace Gateway Solution, which does not require the use of an App to transfer data.
(II) CONDITIONS OF WARRANTY.
(a) Repair or replacement will be at the option of Seguro.
(c) Seguro must be notified promptly of any failure of Products or Services to conform to the warranty in the following manners:
Via email at: firstname.lastname@example.org
Via telephone at: 925.338.0311
Seguro will not accept shipments of any Products unless it has provided prior written authorization.
(d) This Limited and Conditional Warranty is conditioned upon operation of Products in accordance with generally approved industry practice,
and in accordance with conditions of service and operating instructions specified by Seguro, including proper use, maintenance, and protection of
Products, and prompt notice of non-conformity of Products.
(e) Excluded from Seguro’s obligations for repair or replacement hereunder are repairs or replacements required as a result of wear and
tear or abuse of Products, abrasion, erosion, corrosion, effects of heat, external forces, or other conditions of service beyond the control of Seguro.
(III) DISCLAIMER OF WARRANTIES. THE LIMITED AND CONDITIONAL WARRANTY AND REMEDIES SET FORTH ABOVE ARE EXCLUSIVE AND IN
LIEU OF ANY AND ALL REPRESENTATIONS, SPECIFICATIONS, WARRANTIES AND REMEDIES, EITHER EXPRESS OR IMPLIED, HEREIN OR
ELSEWHERE, OR WHICH MIGHT ARISE UNDER LAW OR EQUITY, OR PURSUANT TO ANY COURSE OF DEALING OR CUSTOM OR USAGE OF TRADE,
INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR ANY SPECIFIED OR INTENDED PURPOSE.
(IV)LIMITATION OF REMEDIES AND LIABILITY. PURCHASER’S SOLE AND EXCLUSIVE REMEDY AGAINST SEGURO SHALL BE THE REPAIR OR
REPLACEMENT OF PRODUCTS WITHIN THE TIME PERIOD SPECIFIED IN SEGURO’S LIMITED AND CONDITIONAL WARRANTY SET FORTH ABOVE,
AND THE CORRECTION OF ANY DEFECTS IN THE OPERATION OF ITS PORTAL OR THE PROVISION OR COLLECTION OF DATA WTIHIN THE TIME
SPECIFIED IN SEGURO’S LIMITED AND CONDITIONAL WARRANTY, OR IF IN THE REASONABLE OPINION OF SEGURO DEFECTIVE CANNOT BE
REPAIRED OR REPLACED, A REFUND OF THE PURCHASE PRICE, OR IF SEGURO IS UNABLE TO CORRECT DEFECTS IN THE OPERATION OF ITS
PORTAL OR THE PROVISION OR COLLECTION OF DATA WITHIN THE TIME SPECIFIED IN SEGURO’S LIMITED AND CONTDITIONAL WARRANTY, A
REFUND OF THE PORTION OF THE PURCHASE PRICE REFLECTING THE SERVICE PERIOD FOR WHICH THE SERVICES ARE NOT PROVIDED IN
CONFORMITY WITH SEGURO’S LIMITED AND CONDITIONAL WARRANTY. SEGURO’S LIMITED AND CONTITIONAL WARRANTY CONSTITUTES THE
SOLE REMEDY OF PURCHASER WITH RESPECT TO OR ARISING OUT OF THE PRODUCTS OR SERVICES OF SEGURO, WHETHER BASED ON
CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE. NOTWITHSTANDING ANY OTHER PROVISIONS HEREOF, IN
NO EVENT SHALL SEGURO, OR ITS SUBCONTRACTORS OR SUPPLIERS, BE LIABLE, WHETHER ARISING UNDER PERFORMANCE OF THE CONTRACT
(“CONTRACT”) OF WHICH THIS LIMITED AND CONDITIONAL WARRANTY, DISCLAIMER OF WARRANTIES AND LIMITATION OF REMEDIES AND
LIABILITY IS A PART, OR BREACH OF SUCH CONTRACT, OR TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR OTHERWISE, FOR LOSS OF
ANTICIPATED PROFITS, LOST SALES, INJURY TO PERSONS OR PROPERTY, LOSS BY REASON OF CUSTOMER’S SHUTDOWN, NON-OPERATION OR
INCREASED EXPENSE OF OPERATION, SERVICE INTERRUPTIONS, CLAIMS OF CUSTOMERS OF PURCHASER, COST OF MONEY, LOSS OF USE OF
CAPITAL OR REVENUE, OR FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE ANY KIND WHATSOEVER. SEGURO’S
LIABILITY, FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTING FROM SUCH THE SALES ORDER FORM OR THE PURCHASE OF PRODUCTS
OR SERVICES THEREUNDER, OR FROM ITS PERFORMANCE OR BREACH, SHALL IN NO CASE EXCEED THE CONTRACT PRICE AS SET FORTH IN THE
SALES ORDER FORM. SPECIFICALLY, AND CONSISTENT WITH THE ACKNOWLEDGEMENTS OF SECTION 11 ABOVE, SEGURO SHALL HAVE NO
LIABILITY FOR INJURY TO POERSONS OR PROPERTY OR OTHER LOSSES RESULTING FROM PARTIES BECOMING INFECTED WITH A VIRUS OR
RESULTING FROM INABILITY TO PERFORM CONTACT TRACING.
14. INDEMNITY. Except to the extent prohibited under applicable law, Purchaser agrees to defend, indemnify and hold harmless Seguro and any affiliated entities from and
against all claims, losses, costs and expenses (including attorneys’ fees) arising out of your use of, or activities in connection with, the Products or Services, except to the extent
such claim arises from Seguro’s gross negligence, willful misconduct, or breach of these Terms and Conditions; and (b) any violation or alleged violation of this Agreement by
15. GOVERNING LAW. These Term and Conditions shall be governed by and interpreted in accordance with the laws of the State of California, United States of America.
Purchaser hereby consents to settle any disputes with respect or relating to the Sales Order Form and/or these Terms and Conditions exclusively in state courts located within
the County of Alameda, State of California, or the federal courts in the Northern District of California.