TERMS AND CONDITIONS OF SALE
These terms and conditions (“Terms”) shall be deemed an exclusive and binding agreement with respect to all sales by Aura Smart Air Ltd. (the “Seller”) to you (“Buyer”) of the products listed in the purchase order to which these Terms are attached (the “Product”). By using the Product, you (either individually or on behalf of the entity or company that you represent) are accepting and agreeing to be unconditionally bound by these Terms.
1. ORDERS AND CONFIRMATION: Unless otherwise stated in a written agreement duly signed by Seller, the Terms and Conditions shall apply to all sales of technological devices that enable users to manage the quality of the air in their homes and/or office spaces (“Products”) by Seller. Notwithstanding the terms and conditions set forth in any document from Buyer, Buyer agrees that Seller's acceptance and confirmation (“Order Confirmation”) of Buyer’s order, either in writing or, when agreed by Seller for the purposes hereof, by electronic mail, constitutes (i) Buyer's acceptance of the Terms and Conditions and (ii) Buyer’s agreement that none of the terms and conditions contained in any document from Buyer shall apply, unless such term or condition has been expressly and duly accepted in writing by Seller.
2. DELIVERY, TRANSFER OF TITLE, PRICES: Transfer of title shall take place upon delivery Ex-Works (Incoterms 2010) Sellers facility. Price of Products (i) exclude any applicable tax, customs duty and/or levy imposed by any public authority, all of which shall, where Seller is required by law to pay or collect them, be added to the price by Seller and paid by Buyer, and (ii) are based on economic and financial conditions at the date of Seller’s Order Confirmation. For Products not yet shipped, Seller may adjust prices prior to delivery, to take into account any significant increase in the cost of raw materials, metals, fuels or other production related costs. Carriage of Products shall be at Buyer's own risk. Reasonable care is exercised in packaging goods for shipment and no responsibility is assumed by Seller for delay, breakage or damage after delivery. Buyer will file any claims for breakage or damage with the carrier, and Seller will render reasonable assistance in securing satisfactory adjustment of such claims.
3. SHIPMENTS, SCHEDULING, CONTINGENCY: Delivery dates quoted in Seller’s Order Confirmations are estimates only. Orders confirmed by Seller are firm and may neither be rescheduled by Buyer nor cancelled. Buyer agrees that failure to deliver by an estimated delivery date shall not give the Buyer any right to claim compensation, nor impose any responsibility or liability on Seller without prior written consent duly given by Seller. In the event of any default by Buyer, Seller may decline to make further shipments notwithstanding any other remedy available to Seller. In the event of delivery by installments, default in any shipment or delivery shall not invalidate the Terms and Conditions as they pertain to any other shipments or deliveries. Any claim regarding non-conformity of Products with Order Confirmation will be accepted by Seller only if each of the following three conditions have been met: (i) Buyer's claim is submitted in writing to Seller within one month after the delivery date and, after agreement with Seller, Buyer returns the whole batch of non-accepted Products; (ii) The return is made at the Buyer's cost, and is accompanied by proof of purchase and the indication of the precise reason for rejection by Buyer; and (iii) Products have not been modified or damaged or manipulated for any reason whatsoever. Seller reserves the right to allocate production and deliveries among its various customers at Seller's sole discretion and under any circumstances.
4. PRODUCT SPECIFICATIONS: Except as otherwise specifically agreed in writing by Seller, Seller reserves the right to change at any time the specifications of any Products without notice. Except if particular specifications are given by Buyer and duly accepted in writing by Seller, specifications for Products shall be Seller's specifications as existing in Seller’s published data sheet at the time of the Order Confirmation.
5. PAYMENTS: Payment for Products shall be made by Buyer in cash upon receipt of invoice unless otherwise agreed by Seller and specified in Seller’s invoice or in the applicable purchase order. All deliveries and performance of work agreed to by Seller shall at all times be subject to Seller’s prior credit approval of Buyer which may be granted or denied in Seller’s sole discretion. Where Seller has extended credit to Buyer, the amount of credit may be changed, or credit withdrawn, by Seller at any time without prior notice. If, in Seller's sole judgment, Buyer's financial condition at any time does not justify the above payment terms, or if Buyer should be in default of its obligations relating to payment of any fees or charges, or any other obligation, Seller may without prior notice (i) require full or partial payment in advance or other payment terms as a condition for delivery, (ii) cancel any discount or credit which may have been granted to Buyer, (iii) suspend, delay or cancel any delivery or any other performance by Seller, and/or (iv) charge interests equal to the maximum allowed by applicable laws for the full duration of the payment delay. Buyer is in no event entitled to make reductions on the invoice unit prices or quantities without prior written approval of Seller’s authorized representative.
7. SELLER'S WARRANTY: Subject to the terms hereof, Seller warrants to Buyer that its Products shall conform to the applicable specifications referred to in Clause 4 for a period of 12 twelve months from delivery date.This warranty shall not apply: (i) if Products have been damaged by neglect or for reasons not attributable to Seller; or (ii) if Products have been submitted to abnormal conditions (mechanical, electrical or thermal) during storage, installation or use; or (iii) if Products are used in a non-standard environment requiring a robustness not documented in the applicable specification; or (iv) to Products (risk Products) supplied at request of Buyer which Seller has indicated may not conform to applicable technical specifications or constitute experimental, developmental or, subgrade, sample, beta testing, prototype, non-qualified Products; or (v) if the non-conformance of Products results from excess usage of the maximum values (temperature limit, maximum voltage, ect.) defined by Seller, or from an incorrect choice of application by Buyer, or from use other than in accordance with the relevant specification or (vi) if a defect results from Buyer’s design, specifications or instructions for such Products. If any Product fails to conform to the warranty stated above, Seller’s sole liability shall be at Seller's option, to repair or replace such Product, or issue a credit or rebate of the purchase price. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR TERMS EXPRESS OR IMPLIED BY STATUTE OR COMMON LAW (INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABLE QUALITY OR SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR USAGE). Seller's Products are not designed for use in environments that the product is unable to operate according to the user manual. Where Seller’s Products are not designed for such use, Buyer shall use Products at Buyer's sole risk, even if Seller has been informed in writing of such usage. In addition Buyer acknowledges and agrees that it is solely responsible for all regulatory, safety and security related requirements concerning its own products and any use of Seller Products in Buyer products and related applications. Furthermore, Buyer shall indemnify Seller, its officers, and employees and affiliates against all claims arising directly or indirectly from Buyer's incorporation of the Products in any application or system where failure could lead to death or personal injury. Seller's warranties as herein above set forth shall not be enlarged, diminished, or otherwise affected by, nor shall any obligation or liability of Seller arise out of, Seller's rendering of technical advice or service in connection with Products supplied hereunder.
8. INTELLECTUAL PROPERTY INDEMNIFICATION: In the event that a third party makes a claim alleging that Products, as delivered by Seller to Buyer, infringe a third party's intellectual property rights, Seller undertakes at its option and cost to defend the claim or seek a compromise; if an unfavorable and final judgment is rendered against Seller, it shall at its option take out a license from the above mentioned third party or shall modify the Products, in such a way as to avoid infringement. If such a solution shall be impracticable for economic and/or technical reasons, Seller shall accept the return of the Product supplied and shall reimburse the Buyer up to a maximum equal to the amount paid by the Buyer for the Products deemed to infringe. Such indemnification shall only be due by the Seller provided that Buyer (i) promptly notifies Seller in writing of the claim of infringement and (ii) allows Seller to control, and co-operates with Seller, in the defense and any related settlement action. Furthermore, such indemnification shall not apply to any claims of infringement (i) involving Products made, provided or modified by Seller in compliance with the requirements or specifications of Buyer or of a third party beneficiary with the consent of Buyer, (ii) deriving from the combination or use of a Product by Buyer with any other product, software, service, or technology, even if such Product has no substantial use other than as part of such combination or use, (iii) deriving from the programming of Products, except if made by Seller, (iv) deriving from Seller’s compliance with any industry or proprietary standard or Buyer’s use of the Product to enable the implementation of any such industry or proprietary standard. Buyer agrees to indemnify Seller and hold Seller harmless from any damages and costs arising out of or in connection with claims of infringement made against Seller pursuant to (i), (ii), (iii) or (iv) above.
9. LIMITATION OF LIABILITY: ANY CLAIM FOR ALLEGED BREACH OR DEFAULT ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT, MASK WORK RIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHT BY SELLER PRODUCTS SHALL BE LIMITED TO THE PROVISIONS SET FORTH ABOVE IN ARTICLE 8. IN ADDITION SELLER SHALL HAVE NO LIABILITY UNDER THESE TERMS AND CONDITIONS FOR ANY LOSS ARISING FROM ANY CLAIM MADE AGAINST BUYER, OR FOR ANY INDIRECT, SPECIAL OR INCIDENTAL, CONSEQUENTIAL OR FOR PUNITIVE DAMAGES INCURRED BY BUYER, INCLUDING WITHOUT LIMITATION COST OF REMOVAL OR REINSTALLATION, ANCILLARY COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, RETESTING, LABOUR COST, LOSS OF PROFITS OR LOSS OF USE, BASED ON ANY BREACH OR DEFAULT OF SELLER. BUYER'S SOLE REMEDY AND SELLER'S SOLE AND TOTAL LIABILITY FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT (INCLUDING BREACH OF WARRANTY) OR TORT (INCLUDING NEGLIGENCE OR MISREPRESENTATION) OR UNDER STATUTE OR OTHERWISE SHALL BE LIMITED TO AND SHALL NOT EXCEED THE PRICE ALLOCABLE TO THE PRODUCTS WHICH GIVE RISE TO THE CLAIMS. BUYER SHALL ALWAYS INFORM SELLER OF ANY BREACH AND ALLOW SELLER REASONABLE OPPORTUNITY TO CORRECT THE BREACH.
10. FORCE MAJEURE: Neither party shall be responsible or liable for any delay or failure in performance, other than payment obligations, arising as a result of any occurrence or contingency beyond its reasonable control, including but not limited to, capacity constraints, accident, act of God, acts of the public enemy, earthquake, fire, flood, labour disputes, strikes, riots, civil commotion, war (declared or not), unanticipated manufacturing problems, shortage of energy, water, raw materials or other supplies, power failure, novelty of Products, requirements or acts of any government or agency thereof, judicial action, inability to secure materials on a timely basis (except if such inability results from negligence of Seller) and failure or delays in transportation. The delayed party shall send written notice of the delay and the reason therefor to the other party as soon as possible after the party delayed knew of the cause of delay in question.
11. EXPORT CONTROLS: Buyer agrees that it will only export, re-export, transfer or import the Products, directly or indirectly, in compliance with applicable laws and regulations. If there are any delays in obtaining any required import/export licenses and/or permits required to ship the Products, Seller shall be entitled to postpone shipment of the Products by a period equivalent to such delay. Buyer shall provide Seller with complete and accurate information and documentation as may be necessary to ensure compliance with applicable laws and regulations, including without limitations identification of the intended end-user, end-use and country of destination of the Products procured from Seller, within the time limit required by Seller and in the format advised by Seller. If there is any delay in providing the end-user statement or related information, Seller shall be entitled to postpone shipment of the concerned Products by a period equivalent to such delay.
12. SEVERABILITY OF PROVISIONS: In the event any one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and the Terms and Conditions will be construed as if such invalid, illegal or unenforceable provision had never been contained herein. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in the Terms and Conditions (as the case may be), such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable.
13. ASSIGNMENT: Order Confirmations and Products deliveries cannot be assigned from Buyer to any third party, provided however that any such assignment can be allowed among Buyer’s affiliates subject to Seller prior written consent.
14. GOVERNING LAWS, JURISDICTION AND VENUE: The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the sale of any Products. All disputes arising out of or in connection with these Terms and Conditions shall be subject to the laws of the State of Israel excluding the rules applicable to conflict of laws. Buyer agrees that the exclusive jurisdiction for any dispute arising out of or in connection with these Terms and Conditions lies with the courts of the State of Israel and consents to such venue. Notwithstanding the foregoing Seller shall always be permitted to bring any action or proceeding against Buyer in any other court of competent jurisdiction, and/or seek injunctive or equitable relief.