SafeShoot Terms and Conditions of Pre-SaleSafeShoot Terms and Conditions of Pre-Sale
Last Updated: 24 09, 2017
THESE TERMS AND CONDITIONS (“Terms”) CONSTITUTE A BINDING TERMS BETWEEN SAFESHOOT LTD. (“SafeShoot”, “we” or “us”) AND THE ENTITY EXECUTING THE CORRESPONDING PURCHASE ORDER (“Customer”, or “you”), WHICH PURCHASE ORDER IS HEREBY INCORPORATED INTO THESE TERMS BY REFERENCE (“Purchase Order”). SafeShoot and Customer may be collectively referred to herein as the “Parties”, and each individually as a “Party”.
These Terms represent the entire understanding between SafeShoot and Customer with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written terms, understandings and statements between SafeShoot and Customer with respect to such subject matter. Customer acknowledges and agrees that in entering into these Terms it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in these Terms; for example, statements and explanations in any FAQs or other marketing material on the SafeShoot website are for convenience only, and are not binding or a part of these Terms. The language of these Terms is expressly agreed to be the English language. By entering into these Terms, Customer hereby irrevocably waives, to the maximum extent legally permitted, any law or regulation (defined below) applicable to Customer requiring that the Terms be localized to meet Customer language, as well as any other localization requirements.
1. DEFINITIONS AND INTERPRETATION
These Terms contain a range of capitalized terms defined in this Section and elsewhere. The Section and sub-Section headings in these Terms are for convenience of reading only and shall not be used or relied upon for interpretive purposes.
“Documentation” means SafeShoot’s user manuals, safety instructions and similar materials that are delivered with the Product. “Export Control Laws” means all export and re-export control Laws that apply to SafeShoot (and/or its Affiliates) and/or to Customer, including without limitation Israeli export control Laws, the Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
“Intellectual Property Rights” means any and all rights, titles, and interests in and to technology or other intellectual property, including without limitation patents, copyright and similar authorship rights, personal rights, mask work rights, trade secret and similar confidentiality rights, design rights, trademark, trade name, trade dress and similar branding rights, as well as: (a) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing; (b) all goodwill associated with the foregoing; and (c) all past, present and future claims and causes of action arising out of or related to infringement, misappropriation or violations of any of the foregoing.
“Laws” means any federal, state and local laws, statutes, ordinances, rules and regulations of any jurisdiction.
“Product(s)” means SafeShoot’s proprietary automatic system that provides warnings to hunters if they accidentally endanger a member of their hunting party which also carries a SafeShoot device. The “Shooter” device is intended to be used on the firearm and the “Dog Defender” device is intended to be fitted on the designated SafeShoot’s dog harness. The Product provides a warning when a Shooter device is pointing either at a Dog Defender device or at another Shooter device.
“Site” means SafeShoot’s website http://www.safe-shoot.com/.
2. PURCHASE ORDERS; DELIVERY
2.1. Ordering; Eligibility; Conditions. These Terms shall apply to all orders for Products placed by you. To place a Purchase Order, you must be at all times in compliance with any and all compliance and eligibility requirements which apply in your jurisdiction, including without limitation minimum age. By placing a Purchase Order, you undertake that you are eligible and allowed to purchase the Products, pay for them and comply with all obligations, representations, warranties and undertakings set out in these Terms. All Purchase Orders are subject to acceptance by SafeShoot, and any rejection of a Purchase Order shall be made in SafeShoot’s sole discretion, regardless of whether the Purchase Order was confirmed through the Site.
2.2. Purchase Orders. SafeShoot is currently running a pre-order for the Products (the “SafeShoot Pre-order”). The Product is currently planned to be delivered within 6 months as of the applicable ordering date (the “Target Delivery Date”). You acknowledge that this is a pre-order of the Product and that the Target Delivery Date may be updated by SafeShoot. SafeShoot shall deliver the Products ordered by Customer under the Purchase Order, and in the quantities specified therein. Notwithstanding anything in these Terms to the contrary, the terms of the Purchase Order shall be deemed confidential to SafeShoot, and Customer shall not disclose such terms (in whole or in part) to any third party, except to its directors, officers and employees who have need to know such terms in order to perform under these Terms. To the extent that any Purchase Order terms conflict with any provision of these Terms, the latter shall prevail (unless the Purchase Order specifically states otherwise). Furthermore, any pre-printed terms appearing on the Purchase Order which purport to be in addition to or in conflict with these Terms, shall be void and of no force or effect whatsoever.
2.3. Delivery; Title and Security Interest. Unless specified otherwise in the Purchase Order, delivery of the Products shall be made CIF (Incoterms 2010) to the initial port of destination within the United States. Risk of loss of, and damage to, the Products shall pass to Customer upon delivery to the initial port of destination within the United States. SafeShoot shall retain title to the Products until all payments due to SafeShoot under the corresponding Purchase Order have been made by Customer. Pending such payment, SafeShoot hereby reserves and maintains, and Customer hereby grants to SafeShoot, a first priority purchase money security interest in the Products, wherever located, including all replacements and proceeds related thereto or derived therefrom, and Customer agrees to promptly execute any documents requested by SafeShoot to confirm, perfect and protect such security interest, and hereby irrevocably authorizes SafeShoot to execute and file any one or more financing statements covering all property and proceeds subject to such security interest. SafeShoot shall make commercially reasonable efforts to meet the delivery date(s) stated in the Purchase Order; however, Customer acknowledges that delivery is dependent on third parties outside SafeShoot’s control, and in no event shall SafeShoot be liable for any delays due to such third parties. Unless specified otherwise in the Purchase Order, the prices therein are exclusive of freight, insurance, all applicable taxes, customs, duties and other shipping expenses and charges (except for taxes based on SafeShoot’s net income), and all the foregoing shall be solely borne by Customer and will be invoiced unless a valid tax-exempt certificate is supplied by Customer prior to delivery.
2.4. Cancellation; Binding Transaction. Your account will be charged at the time your order is placed. You may cancel your SafeShoot Pre-order within 30 days from the date you placed the Purchase Order, provided that the Product has not yet been shipped, and in such case you will be credited in full. Afterwards, your purchase shall be deemed final, non-cancelable and nonrefundable, except if and to the extent otherwise stated in these Terms. Any permitted cancellation must be done by sending an email message to SafeShoot at [email protected] SafeShoot will process the cancellation and refund the payment made by you within 30 days from receipt of the cancellation notice. To the extent possible, the refund shall be made by the same method in which you paid. SafeShoot may, at times and at its sole and absolute discretion, accept a cancellation not complying with the above provisions of this Section, and in such case the refund shall be less a cancellation fee in the amount of 5% of the purchase price of the Products ordered. SafeShoot itself may, at all times, at its sole and absolute discretion, cancel your pre-order, in which case SafeShoot will refund in full the payment made by you, with no cancellation fee.
3. ADDITIONAL TERMS
The purchase of the Products is subject to additional terms and conditions provided by SafeShoot, including a limited warranty, and further including license terms and restrictions on use in respect of any software included in the Products or Intellectual Property Rights embodied in the Products. Your purchase of the Products will be subject to all such terms and conditions which are available at the Documentation provided to you with the Product.
4. INTELLECTUAL PROPERTY
As between the Parties, SafeShoot is, and shall remain, the sole and exclusive owner of all Intellectual Property Rights in and to the Products and Documentation, and any rights not expressly granted in these Terms are hereby reserved by SafeShoot. For the avoidance of doubt, Customer acknowledges that it is granted no right or license (whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise), under any of SafeShoot’s Intellectual Property Rights, to integrate, embed or otherwise incorporate any Product (in whole or in part) into or with any other product or service.
5. PAYMENT TERMS
Unless otherwise specified in a Purchase Order, payment shall be made upon completion of the purchase according to the Purchase Order, and payment shall be made in United Stated dollars (US$). Payments are non-refundable. SafeShoot reserves the right to change credit terms upon written notice at any time at its sole discretion.
6. DISCLAIMER OF WARRANTIES
6.1. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PRODUCTS AND DOCUMENTATION ARE DELIVERED TO CUSTOMER “AS IS”, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET POSSESSION, NON-INFRINGEMENT, TITLE, QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY SAFESHOOT AND ITS LICENSORS AND SUPPLIERS.
6.2. IN ADDITION, NEITHER SAFESHOOT NOR ITS LICENSORS OR SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION:
(A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS OF THE PRODUCTS OR DOCUMENTATION; (B) THAT CUSTOMERS USE OF, OR RELIANCE UPON, THE PRODUCTS OR DOCUMENTATION WILL MEET CUSTOMER’S REQUIRMENTS OR EXPECTATIONS;(C) THAT THE PRODUCTS OR DOCUMENTATION WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE; OR(D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, OR OTHER GOVERNMENT OR INDUSTRY REGULATIONS OR STANDARDS.
6.3. Some jurisdictions’ Laws do not allow the disclaimer of certain implied warranties or conditions, and to the extent applicable to Customer, then, at SafeShoot’s option, such disclaimers shall either not apply, or SafeShoot limits the duration of such warranties and conditions to the duration of 90 days from date of delivery of the Products.
7. LIMITATION OF LIABILITY
7.1. IN NO EVENT WILL SAFESHOOT BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS; (C) ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
7.2. THE AGGREGATE LIABILITY OF SAFESHOOT UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SAFESHOOT UNDER THE PURCHASE ORDER IN WHICH THE LIABILITY AROSE.
7.3. THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF SAFESHOOT HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THESE TERMS FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION FUNDAMENTAL BREACH, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY OR OTHER CONTRACT OR TORT LIABILITY.
7.4. Some jurisdictions’ Laws do not allow the exclusion or limitation of incidental or consequential damages, or of other damages, and to the extent applicable to Customer, such exclusions and limitations shall not apply. Furthermore, nothing in these Terms shall be deemed to exclude or limit liability resulting from fraud or fraudulent misrepresentation.
7.5. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION (LIMITATION OF LIABILITY) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN CUSTOMER AND SAFESHOOT.
8. GOVERNING LAW AND DISPUTE RESOLUTION
These Terms (including its validity) shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and is hereby disclaimed. Any claim, dispute or controversy under, or otherwise in connection with, these Terms shall be subject to the exclusive jurisdiction and venue of the courts located in New York County, New York, and Customer hereby irrevocably and unconditionally submits to the personal jurisdiction of such courts and waives any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue. Notwithstanding the foregoing, SafeShoot reserves the right to seek equitable relief in any court worldwide of competent jurisdiction.
9.1. Assignment. SafeShoot may assign these Terms (or any of its rights and obligations hereunder), as well as any Purchase Order, without restriction or further obligation. These Terms are personal to Customer, and Customer shall not assign (or in any other way transfer) these Terms or any Purchase Order (or any of its obligations or rights thereunder) without SafeShoot’s express prior written consent. Any prohibited assignment shall be null and void. 9.2. Severability. If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of these Terms shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
9.3. Remedies. Except as stated otherwise in these Terms, no right or remedy conferred upon or reserved by any party under these Terms is intended to be, or shall be deemed, exclusive of any other right or remedy under these Terms, at law or in equity, but shall be cumulative of such other rights and remedies.
9.4. Reference Customer. SafeShoot may use Customer’s name and logo on SafeShoot’s website and in its promotional materials to indicate that Customer is a customer of SafeShoot.
9.5. Waiver. No failure or delay on the part of any Party in exercising any right or remedy under these Terms shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by you, emails will be acceptable; for waivers by SafeShoot, the writing must be duly signed by an authorized representative of SafeShoot), and shall be valid only in the specific instance in which given.
9.6. Relationship. The relationship of the parties is solely that of independent contractors. Nothing in these Terms shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the Parties.
9.7. Notices. All notices or other communications provided for in these Terms shall be in writing and shall be given in person, by courier, by facsimile, electronic mail or by registered or certified mail, postage prepaid, addressed as set forth in the Purchase Order. All notices and other communications delivered in person or by courier service shall be deemed to have been given as of one business day after sending thereof, those given by facsimile transmission with confirmation or receipt shall be deemed to have been given as of the date of transmission thereof (provided that such date is a business day in the country of receipt and if not, the next business day) and all notices and other communications sent by registered mail shall be deemed given 3 days after posting. Notices sent by electronic mail shall be deemed received upon receipt of such electronic mail message.
9.8. No Third Party Beneficiaries. There shall be no third-party beneficiaries of or under these Terms.
9.9. Export Compliance. Customer shall not transfer, export, re-export, import, re-import or divert the Products or Documentation in violation of any Export Control Laws, as well as any applicable import and use restrictions, all as then in effect, and shall not transfer, export, re-export, import, re-import or divert the Products or Documentation to Lebanon, Syria, Iran or North Korea (or other countries specifically designated in the Purchase Order). In the event Customer breaches the foregoing sentence (in whole or in part), it shall indemnify and hold harmless SafeShoot for any fine or penalty imposed upon SafeShoot and/or personnel as a result of such breach.
9.10. Force Majeure. SafeShoot shall not be responsible for any failure to perform any obligation hereunder because of any act of God, war, riot or civil commotion, governmental acts or directives, strikes, work stoppage or equipment or facilities shortages, and/or other similar cause beyond SafeShoot’s reasonable control.
9.11. Counterparts. These Terms may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.