Last updated: March 25, 2019
1. ENTIRE AGREEMENT. These Terms and Conditions of Sale (“Agreement”) shall constitute the complete and exclusive statement of all the terms of the agreement between you and Spoondrift Technologies, Inc., doing business as Sofar Ocean Technologies (“Sofar”) regarding the purchase of products or services offered by us and purchased by you (collectively referred to as the “Product” or “Products”). Sofar’s performance hereunder is expressly conditioned on your assent to this Agreement.
2. ELIGIBILITY. You represent and warrant that your purchase and use of the Product(s) is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual making this purchase on your behalf represents and warrants that they have the authority to bind you to these terms, and you agree to be bound by this Agreement.
3. PRODUCTS. Sofar reserves the right to modify or change at any time, and, at its discretion, to inform you of any modifications or changes to Products ordered under this Agreement that affect form, fit, function, or performance prior to shipment. Sofar will be free to substitute components or modify manufacturing processes and make other changes in the Product(s) and/or Product specifications at any time and without any prior notice.
4. REMOTE ACCESS PACKAGES. Sofar may include with your purchase of Product or Products (including, but not necessarily limited to the Sofar Spotter ocean weather platform), the packaged option to communicate with, and receive alerts and observations from, the Product(s) through a remote access satellite telemetry service (“Remote Access Package”). Remote Access Package offerings are based on data transmission sizes and transmission frequencies which are determined by Sofar in its sole discretion. Sofar reserves the right to modify or change a Remote Access Package at any time, including by reducing the amount of data being transmitted or the frequency of data transmissions, or limiting the length of the subscription, with or without notice to you. Your Remote Access Package shall begin on the day you register the product(s) to your online user account, or three months following Sofar’s shipment of the product(s) to you, whichever is sooner. The Remote Access Package shall terminate one year after it begins, or earlier depending on your use.
6. ORDER ACCEPTANCE; ALLOCATION. Orders are subject to acceptance by Sofar. Orders are accepted only when shipped by Sofar to you. Shipment schedules are established in accordance with Product availability and when your payment has been received by Sofar; however, Sofar shall not have any liability for failure to meet a delivery date. Sofar reserves the right to allocate inventories and current production in its sole discretion.
7. PRICE; PAYMENT TERMS. The price paid by you shall be that stated on Sofar’s sales order acknowledgment, which will be emailed to you. Prices are subject to change without notice, and the price stated on Sofar’s website (www.sofarocean.com) shall reflect the current and most up-to-date prices. All prices are in U.S. dollars, and all payments are to be made in U.S. dollars, free of any restrictions. Payment is due in advance and no product will be shipped unless Sofar has received payment in full. Payment is not conditioned upon the Product(s) meeting any acceptance testing procedures. When you make a payment by credit card, Sofar’s third-party payment service provider will collect your credit card details and charge your credit card in connection with the order, and you agree to make all applicable payments in connection with any order placed by you.
8. TAXES. You are responsible for paying or reimbursing Sofar for all taxes, or for providing Sofar with a tax exemption certificate acceptable to the taxing authorities.
9. SHIPMENT. Sofar will charge you for shipping and handling charges in accordance with Sofar’s policies at the time of purchase. Products shall be shipped DAP (Incoterms 2010), with shipping and handling costs pre-paid and added to the purchase price. Title to hardware and all risk of loss passes to you upon delivery at the agreed upon destination point. Title to software remains with Sofar all times.
10. IMPORTER OF RECORD. You shall be the importer of record and are responsible for fulfilling quota terms, obtaining import licenses, paying import license or permit fees, duties and customs fees, and any other governmental or import taxes or fees, and preparing and submitting all required documentation in connection with importing the Product(s).
11. USE OF PRODUCT. You shall ensure that your use of the Product(s) is in compliance with all local, state, national and international laws, and shall secure all necessary permits or permissions required for your use of the Product(s), such as for deploying or operating the Product(s) in the marine environment and complying with relevant environmental regulations.
12. CHANGES TO ORDER; CANCELLATION. Any cancellation of a purchase is subject to Sofar’s refund policy.
Sofar warrants that any hardware Product(s) purchased by you will substantially conform to Sofar’s published specifications for such Product for six (6) months from the date of shipment. The software warranty (if any) is as set forth in Sofar’s Terms of Service. Superficial or cosmetic damages which do not affect Product performance or operation, or any Product that is damaged, abused, modified, altered, not used or maintained in accordance with Sofar’s Standards of Use, or is missing its serial code, or returned in any manner that is not in compliance with Sofar’s then-current Return Policy, is not covered by this warranty. Sofar’s sole obligation under this express warranty shall be, at Sofar’s option and expense, to repair or replace the Product. To make a warranty claim, you may contact Sofar at email@example.com within the applicable warranty period. This warranty gives you specific legal rights, and you may also have other rights which vary from state to state or country to country.
EXCEPT AS EXPRESSLY PROVIDED IN HEREIN, ALL PRODUCTS AND SERVICES ARE ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER, AND SOFAR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND FITNESS FOR A PARTICULAR PURPOSE. SOFAR ALSO MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE OR FREEDOM FROM BUGS.
14. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER SOFAR NOR ITS SUPPLIERS OR LICENSORS WILL BE LIABLE WITH RESPECT TO ANY PRODUCT OR OTHER SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS PAID TO SOFAR BY YOU DURING THE TWELVE MONTH PERIOD PRIOR TO DATE THE CAUSE OF ACTION FIRST AROSE, OR (II) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES. NEITHER SOFAR NOR ITS SUPPLIERS OR LICENSORS WILL HAVE ANY LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL OR FOR ANY ALLOCATION OF PRODUCTS BETWEEN ITS CUSTOMERS IN THE EVENT OF A SHORTAGE.
THIS SECTION 14 SHALL NOT BE DEEMED TO PRECLUDE ANY LIABILITY WHICH, UNDER APPLICABLE PRODUCTS LIABILITY LAW, CANNOT BE PRECLUDED BY CONTRACT.
15. EXPORT COMPLIANCE. You agree not to export, either directly or indirectly, any Product purchased or licensed hereunder without first obtaining any required license or other approval from the U.S. Department of Commerce or any other agency or department of the United States Government. If you export any such Product from the United States or re-export it from a foreign destination, you shall ensure that the export/re-export or import of the Product is in compliance with all laws, regulations, orders or other restrictions of the United States and the appropriate foreign government.
16. FORCE MAJEURE. Sofar shall not be liable to you for any alleged loss or damages resulting from delays in performance (including loss or damages resulting from delivery of the Product(s) being delayed) caused by your acts, acts of civil or military authority, governmental priorities, earthquake, fire, flood, epidemic, quarantine, energy crisis, strike, labor trouble, component shortage, war, riot, accident, shortage, delays in transportation, or any other causes beyond Sofar’s reasonable control.
17. WAIVER; SEVERABILITY. A waiver of any default hereunder or of any provision of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other provision, but shall apply solely to the instance to which such waiver is directed. In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, a modified provision shall be substituted which carries out as nearly as possible the original intent of the Parties, and the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby.
18. GOVERNING LAW AND VENUE. This Agreement is governed by the laws of the State of California without regard to conflict of law principles. You and Sofar submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco, California for resolution of any lawsuit or court proceeding permitted under these Terms. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this Agreement.
19. SURVIVAL. The following provisions shall survive the termination of this Agreement: Entire Agreement; Remote Access Packages; Software License; Price; Payment Terms; Shipment; Taxes; Exporter and Importer of Record; Use of Product; Limited Warranties; Warranties Exclusive; Limitation of Liability; Export Compliance; Force Majeure; Waiver; Severability; and Governing Law and Venue.