Standard Terms and Conditions of Sale
Definitions: The following terms shall have the meanings set out below unless the context requires otherwise:
Access Devices means Sera4 padlocks and Sera4 Controllers.
Access Point means an Access Device that when used in conjunction with the Software (and in the case of the Sera4 Controller with a Third-Party Electrical Lock) enables End Users to gain entry and access to critical infrastructure, equipment and other assets and locations.
Administrators mean the individuals directly or indirectly authorized by Customer to issue, manage and log the use of encrypted digital keys and permissions for Access Devices. Third-Party Administrators are Administrators that are not directly employed by Customer.
Authorized Users means Administrators and End Users. Third-Party Authorized Users means Authorized Users that are not directly employed by Customer.
Customer means the person or other entity that has title, or is acquiring title, to Access Devices for the purposes of controlling access to assets and locations, and not for resale.
Documentation means documentation for the applicable Sera4 Product or Teleporte Service made available on the support portal at https://support.sera4.com from time to time and any other Sera4 approved documentation shipped or otherwise made available with that Product or Teleporte Service.
End User means an individual who has digital key(s) issued to their Mobile Device by an Administrator, for the purpose of enabling that individual to access specific Access Point(s) at specific times. Third-Party End Users are End Users that are not directly employed by Customer.
Entry Point is a location (e.g. gate, cabinet, metal tower, etc) at which an Access Point is installed.
Fees means the fees paid or required to be paid for the Products and Services including without limitation, the purchase fees for Hardware and the fees for the Services.
Hardware means hardware products designed and or sold by Sera4 and currently includes Access Devices and Sera4 access pads (marketed as “AccessPad”) or other accessories to Access Devices.
Mobile Device(s) means an Android or iOS mobile device compatible with Teleporte that is used by an End User to access one or more Access Points, or hardware installed at a Customer site to enable End Users to access one or more Access Points.
Products means Hardware and Software.
Seller means Sera4 or the entity that Sera4 has authorized directly or indirectly through other distributors, to resell Products and Services to Customer.
Services means the level of the Teleporte Service offering, which may include maintenance and support services, purchased by Customer as indicated in the quote or proforma Invoice issued by Seller.
Software means Sera4 proprietary software including without limitation: i) cloud-based server software that provides the Teleporte Service; ii) APIs that enable integration of third-party software with the Teleporte Service; iii) the Teleporte Mobile App for use on Mobile Devices; and iv) the Sera4 software embedded and/or provisioned in the Hardware or used as a Sera4 Controller.
Sera4 Controllers means either standalone hardware units, or hardware or software components, in each case designed by Sera4 to enable Third-Party Electrical Locks to be used as part of Access Points.
Teleporte Service means the Sera4 cloud-based server software, including without limitation the web portal and dashboard software, and APIs that enable Administrators to remotely issue, manage, and log the use of encrypted digital keys and permissions for Access Points.
Teleporte has the meaning set out in Section 1.
Territory is the country(ies) set out in the quote or proforma invoice.
Third-Party Electrical Locks means third-party electrical locks used in conjunction with Sera4 Controllers and Software to create an Access Point.
Teleporte is a digital system that, among other things, enables Customer to facilitate, control and log the access by End Users through Access Points. It requires: a) Access Points; b) the Teleporte Service; and c) the Teleporte Mobile App that when installed on Mobile Devices allows digital keys to authenticate and enable proximity-based communication with Access Points; (collectively “Teleporte”). Access Devices purchased under these Terms and Conditions of Sale (the “Agreement”) may only be used in the Territory.
2. Terms and Conditions
Customer may purchase Hardware and Services and use Software (including any Software embedded on the Hardware or that forms part of a Sera4 Controller) only on the terms and subject to the conditions set out in this Agreement. Notwithstanding the acceptance of a Customer purchase order, the standard printed terms and condition on Customer’s purchase order or any terms included in correspondence or elsewhere or implied by trade custom, shall be of no force or effect. Customer may request special terms and conditions for a particular order by clearly indicating a request for same on the face of the purchase order. These special terms shall not be binding on Seller unless Seller specifically accepts these terms and conditions by including them in its quote and/or proforma invoice.
3. Teleporte Service Access and Software Use
All Software supplied hereunder, and access to the Teleporte Service, is subject to the current Sera4 Teleporte Service Access and Software Use Agreement (“License”), a copy of which is located at http://www.sera4.com/terms-of-use. For avoidance of doubt, as a condition of entering into this Agreement, Customer is agreeing to the terms and conditions of the License with Sera4. Customer further agrees to have each Authorized User agree to the terms and conditions of the License, that Sera4 shall have no liability whatsoever for the acts of Customer’s Authorized Users, and hereby agrees to indemnify Sera4 for any damages or losses suffered by Sera4 as a result of a breach of the License by any Authorized User.
4. Ownership and No Implied License
Except for title to Hardware purchased by Customer from Seller, no ownership right, title, or interest, in or to Teleporte or any part thereof or to the extent permitted by applicable law, to any data created by the use thereof, or to any associated intellectual property rights is transferred to Customer under this Agreement. For clarity, the sale of Hardware and license of Software does not convey any patent license whatsoever, under any legal theory to combinations of the Products and Teleporte Service with any hardware, software or system for which Sera4 has not authorized it, or for any modifications to the Products or Teleporte Service.
5. No Resale or Sublicense Rights
Customer acknowledges and agrees that except for the right of Customer to include Third-Party Authorized Users as part of their Authorized Users, these terms and conditions do not in any manner whatsoever permit the resale or sub-licensing of any portion of Teleporte or any data generated by the use thereby. Customer further acknowledges and agrees that to do so may cause Seller or Sera4 serious loss and damage and that Customer shall indemnify Seller and Sera4 for all such loss and damage, including any legal fees and costs.
6. Payment Terms
Customer shall pay to Seller the fees specified in the quote or proforma invoice issued for the Products and Services by Seller in accordance with the payment terms set out therein. If there are no such terms, Customer shall pay for the Products in full prior to delivery, Ex Works, (Incoterms 2020) and shall pay the applicable Fees for the Services on an annual basis prior to the start of each year commencing on the date of delivery of the Access Device for which the Services are purchased (the “Delivery Date”). The Services for the Access Devices purchased hereunder shall automatically renew on the anniversary of the Delivery Date until either Seller or Customer provides the other at least thirty days written notice of its decision not to renew the Services. Seller shall deliver an invoice to Customer for the Services prior to the renewal date setting out the then current Fees for the Services including any updated terms or conditions if applicable.
Without limiting its other rights hereunder, Seller may charge the lesser of: i) 5% above the published Bank of Canada interest rate in effect on the date that payment becomes due; and ii) the maximum amount permitted by applicable law; for late payment of any amount owing under this Agreement.
8. Shipping Terms
Unless otherwise specified in a quote or proforma invoice by Seller, Customer shall be responsible for all shipping, insurance and other costs, including, but not limited to, any import duties or other taxes (except for taxes on the income of Seller) associated with the supply of Products and Services under this Agreement. Delivery of Products and risk of loss and damage to those Products, shall pass to Customer, Ex Works, Seller’s shipping location, Incoterms 2020 apply. Customer acknowledges and agrees that Products may include a non-rechargeable lithium metal battery and that they are required to comply with all applicable laws regarding the transport, handling, and disposal of same. Title to Hardware shall pass upon Seller receiving payment in full for those Products unless otherwise specified in a quote or proforma invoice by Sera4.
Customer acknowledges that the Software includes cryptographic technology that may be subject to export, import, and/or use controls by government authorities. Customer agrees that the Software will not be exported, imported, used, transferred, or re-exported except in compliance with the laws and regulations of the national and/or other (sub-national and/or supranational) government authorities with authority over the country(ies) and/or territory(ies) from which the Software is being exported or to which the Software is being imported. Without limiting the foregoing, unless agreed to in writing by Sera4, Customer agrees the Software will not be exported: (i) to any country on Canada’s Area Control List; (ii) to any country subject to UN Security Council embargo or action; (iii) contrary to Canada’s Export Control List Item 5505; (iv) to countries subject to U.S. economic sanctions and embargoes; and (v) to persons or entities prohibited from receiving U.S. exports or U.S.-origin items.
10. Warranty on Hardware
Sera4 warrants that the Hardware including any Software embedded therein, will be substantially free from defects in material and workmanship and shall operate substantially in accordance with its Documentation for a period ending the earliest of: a) 15 months following the date of delivery; b) one year from the initial date that the Hardware is activated with Teleporte Service; and c) one year from the date of installation of such Hardware. There is no warranty on consumables such as batteries. This warranty and return of defective Hardware is subject to the warranty terms and procedures set out at https://www.sera4.com/hardware-warranty/. Software maintenance and support for Software not embedded in Hardware is supplied as part of the Fees for the Services in accordance with the Teleporte Service Access and Software Use Agreement.
11. Limitations on Seller’s Responsibility
Unless Seller expressly agrees otherwise, its sole responsibility is the provision of Teleporte as ordered by Customer. Customer shall be responsible to obtain and to pay for all other aspects of its system, including any network access and Third-Party Electrical Locks. Customer shall also be responsible to ensure that its use of Teleporte and that of its Authorized Users complies with all applicable laws, including without limitation, any restrictions on the transfer of data between countries. In no event shall Seller or Sera4 be responsible for the functioning or functionality of: i) any portion of Customer’s system not supplied by Seller or Sera4; ii) Mobile Devices; and Seller and Sera4 shall have no responsibility for the security associated with the transmission of information or data transmitted to or from Customer or Authorized Users using Teleporte other than for the encrypted keys. Notwithstanding any other provision in this Agreement, Seller shall have no responsibility or liability whatsoever for the performance or failure to perform of any beta, trial or proof of concept product or service (including Services) supplied to Customer.
The terms and conditions set out in any quote or proforma invoice provided to Customer by Seller, including any such pricing information, constitute the confidential information of Seller and unless otherwise agreed in writing by Seller, may not be disclosed by Customer to any third person. Customer acknowledges and agrees that disclosure of such information could cause Seller significant and irreparable harm and that Seller would be unable to provide Customer with this pricing if Customer discloses such information.
13. Mission-Critical Applications. TELEPORTE AND ANY PORTION THEREOF, IS NOT SUITABLE FOR USE IN MISSION-CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS OR ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING, WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS AND SHOULD NOT BE PURCHASED FOR SUCH USE.
14. Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT IN A TOTAL AGGREGATE AMOUNT, HOWEVER ARISING, EXCEEDING THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE PRODUCT OR THE PARTICULAR YEAR OF SERVICES GIVING RISE TO THE LIABILITY.
15. No Implied Warranties
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ALL CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, OR TITLE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE, AND ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, ENDORSEMENTS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED.
16. Third-Party Products
IF SELLER AGREES TO PROVIDE TO, OR INSTALL ANY THIRD-PARTY PRODUCT INCLUDING BUT NOT LIMITED TO ANY THIRD-PARTY ELECTRICAL LOCK, ON BEHALF OF CUSTOMER, SELLER DOES SO AS A SERVICE TO CUSTOMER, AND CUSTOMER ACKNOWLEDGES AND AGREES, THAT SELLER HAS NO ABILITY TO CONTROL THE DESIGN OR PERFORMANCE OF SUCH THIRD-PARTY PRODUCT, THAT SELLER PROVIDES THE THIRD-PARTY PRODUCT ON AN “AS IS” BASIS AND THAT NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SELLER OR SERA4 SHALL HAVE NO LIABILITY FOR THE DESIGN OR PERFORMANCE OF THAT THIRD-PARTY PRODUCT WHATSOEVER, AND THAT SELLER’S SOLE RESPONSIBILITY WITH RESPECT TO THE THIRD-PARTY PRODUCT, INCLUDING WITHOUT LIMITATION, ITS DESIGN OR PERFORMANCE, SHALL BE TO PASS THROUGH THE BENEFIT OF ANY WARRANTY PROVIDED BY THE SUPPLIER OF THE THIRD-PARTY PRODUCT TO CUSTOMER.
17. Exclusion of Liability for Specified Persons
IN NO EVENT WILL SELLER OR ITS SUPPLIER’S OFFICERS, DIRECTORS OR EMPLOYEES HAVE ANY PERSONAL LIABILITY UNDER OR IN RELATION TO THIS AGREEMENT. THE PERSONS MENTIONED IN THIS PROVISION SHALL BE DEEMED TO BE THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT SOLELY FOR THE PURPOSES OF OBTAINING THE BENEFIT OF THIS PROVISION.
IF SERA4 IS NOT SELLER UNDER THIS AGREEMENT, IT SHALL BE DEEMED TO BE A THIRD-PARTY BENEFICIARY OF THE PROVISIONS HEREIN THAT SPECIFICALLY REFERENCE SERA4, AND FOR ALL LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS OF LIABILITY AND EXCLUSIONS OF IMPLIED TERMS AND CONDITIONS, HEREUNDER SOLELY FOR THE PURPOSE OF OBTAINING THE BENEFIT OF SUCH PROVISIONS.
19. Application of Limitations, Exclusions and Disclaimers
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT IN THIS AGREEMENT SHALL APPLY: (A) WHETHER AN ACTION, CLAIM OR DEMAND ARISES FROM A BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER KIND OF CIVIL OR STATUTORY LIABILITY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, THEY SHALL NOT APPLY TO ANY BREACH OF THE CONFIDENTIALITY OBLIGATIONS OR A BREACH OF SECTION 5(NO RESALE OR SUBLICENSE RIGHTS).
20.1. Entire Agreement
This Agreement including any related quote and/or proforma invoice, the License and any non-disclosure agreement between the parties for the Products and Services supplied hereunder, constitutes the entire agreement of the parties with respect to the subject matter thereof. It supersedes all terms and conditions contained in any requests for quotes, discussions, correspondence or communication of any nature relating to the subject of this Agreement, all of which shall no longer be of any force or effect. If there is any conflict between these documents the quote and proforma invoice shall take priority over all other documents, followed by these Terms and Conditions of Sale, the License and the non-disclosure agreement in that order. This Agreement may only be modified in writing signed by the party against whom enforcement of the modification is being sought.
20.2. Press Releases
Sera4 reserves the right to make announcements, press releases, publications, presentations and other public statements that reference Customer as a customer using Sera4 Products and Services, without Customer’s prior written approval, provided that Sera4 does not disclose Customer’s confidential information in the course of such publicity or misrepresent Customer’s relationship with Sera4. Customer agrees that, upon request by Sera4, it will provide Sera4 with a testimonial that Sera4 may use for the purposes of marketing its Products and Services.
20.3. Governing Law
The Agreement shall be governed and construed in accordance with the laws of the Province of Ontario, Canada along with any federal laws applicable therein, excluding rules of private international law that lead to the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the Sale of goods (1980) does not apply. The Dispute Resolution Process set out in the License shall apply. Notwithstanding the foregoing, either party may apply for injunctive relief from the courts of the Province of Ontario.
If any court finds any part of this Agreement to be invalid or unenforceable that part shall be severed from this Agreement and its invalidity or unenforceability shall not in any way affect the remaining provisions of this Agreement, which shall continue in full force and effect.
20.5. No Authority
No party shall have authority to or shall hold itself out as having any authority to incur, assume or create, orally or in writing, any liability, obligation or undertaking of any kind in the name of or on behalf of or in any way binding upon the other party.
Customer may not assign or transfer all or any of its rights, benefits and obligations under this Agreement without the prior written consent of Sera4 and any purported assignment without such consent shall be null and void and of no effect. Sera4 may freely transfer and assign this Agreement or any of its rights or obligations hereunder to any person to whom it sells all or substantially all of its assets.
20.7. Language of Agreement
This Agreement may be translated into other languages but the governing version shall be the English version.