Blocklet Foundation Kit Terms & Conditions
The invoice (“Invoice”) of SWFL, Inc., d/b/a Filament (“Filament”), and these terms and conditions (collectively, this “Agreement”) govern the evaluation of the Filament Blocklet Foundation Kit (“Product”) and provision of Filament’s services (“Services”), if any, to the customer identified on the Invoice (the “Customer”). This Agreement takes precedence over Customer’s supplemental or conflicting terms and conditions, including, without limitation,terms and conditions in Customer’s orders, to which notice of objection is hereby given.Acceptance by Customer is limited to and conditioned upon Customer’s assent to these terms and conditions. Neither Filament’s commencement of performance or delivery shall be deemed or constituted as acceptance of Customer’s supplemental or conflicting terms and conditions.Customer’s acceptance of the Product and/or Services from Filament shall be deemed to constitute acceptance of the terms and conditions contained herein. THESE TERMS AND CONDITIONS MAY ONLY BE WAIVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF FILAMENT.
All orders placed by Customer are subject to acceptance by Filament. Orders may not be cancelled or rescheduled without Filament’s written consent. All orders must include a purchase order number, shipping & billing addresses, delivery dates, quantities and complete description of Product being leased. Filament may in its sole discretion allocate Product among its customers.
(a) The prices of the Product and Services are those specified on the Invoice. Price quotations,unless otherwise stated, shall automatically expire thirty (30) calendar days from the date issued and may be cancelled or amended within that period upon notice to Customer.
(b) Unless provided otherwise in an Invoice, all prices quoted are exclusive of (as applicable)transportation and insurance costs, duties, and all taxes including, but not limited to, federal,state, provincial and local sales, excise, value added, goods and services taxes and any other taxes. Customer agrees to pay these taxes unless Customer has provided Filament with an exemption resale certificate in the appropriate form for the jurisdiction of Customer’s place of business and any jurisdiction to which Product and Services are to be directly shipped or provided hereunder, or unless the transaction is otherwise exempt from these taxes. Customer agrees to indemnify and hold Filament harmless for any liability for tax in connection with the transaction, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Filament’s invoice.
(a) Full payment is due promptly upon placing an order. For all other orders, upon approval of credit, corporate standard terms of payment are net thirty (30) days from the date of invoice unless otherwise specified in writing by Filament. In addition, Customer will be deemed to have accepted the Invoice upon the fifteenth (15th) day from the date of the Invoice and no further objections to the Invoice will be permitted or accepted. If Filament otherwise specifies in writing payment terms longer than thirty (30) days from the date of the Invoice, then: (i) the Invoice will be deemed accepted upon the thirtieth (30th) day from the date of the Invoice and no further objections will be permitted or accepted; and (ii) Customer must certify within thirty (30) days from the date of the Invoice that payment has been submitted for processing. Filament may invoice each shipment separately and each shipment shall be considered a separate and individual contract. Customer agrees to pay such invoice pursuant to its terms without the benefit of set off or deduction.
(b) All late payments shall be charged interest computed on a daily basis from the due date until paid in full. A late charge of one and one-half percent (1 1/2%) per month or the maximum rate permitted by applicable law, whichever is less, will be imposed on all past due accounts.Customer shall be liable for costs of collection, including reasonable attorneys’ fees and court costs, in any action to collect past due amounts.
(c) Transportation charges from Filament’s facility to Customer’s facility shall be paid by Customer to Filament, in addition to the prices in the Invoices, unless provided otherwise in the Invoice. Filament will select the carrier in the absence of specific, written instructions by Customer to use one of the following national carriers: FedEx, UPS, USPS or DHL.
(d) Filament reserves the right to establish and/or change credit and payment terms extended to Customer when, in Filament’s sole opinion, Customer’s financial condition or previous payment record warrants such action. Further, on delinquent accounts, Filament shall not be obligated to continue performance under any agreement with Customer.
(e) If Filament believes in good faith that Customer’s ability to make payments may be impaired or if Customer shall fail to pay any invoice when due, Filament may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Customer shall remain liable to pay for any Product already shipped.
(f) Customer’s failure to pay all amounts hereunder in full when and as due shall constitute a default hereof and shall give Filament all rights and remedies of a lessor. If Customer fails to pay any amount when due, Filament shall have the right to terminate the Services, if any, and repossess and remove all or any Product from Customer. Any termination of Services and/or repossession or removal shall be without prejudice to any other remedy of Filament hereunder,at law or in equity.
(g) Any payment received from Customer may be applied by Filament against any obligation owing from Customer to Filament, regardless of any statement appearing on or referring to such payment, without discharging Customer’s liability for any additional amounts owing from Customer to Filament, and the acceptance by Filament of such payment shall not constitute a waiver of Filament’s right to pursue the collection of any remaining balance.
All 2-day deliveries will be made FOB Destination. All overnight deliveries will be made FOB Shipping Point. Subject to Filament’s right of stoppage in transit, delivery of the Product to the carrier shall constitute delivery to Customer and risk of loss (but not title) shall thereupon pass to Customer. Selection of the carrier and delivery route shall be made by Filament unless specified by Customer as provided in this Agreement. Customer acknowledges that delivery dates provided by Filament are estimates only and Filament shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Filament nor shall the carrier be deemed an agent of Filament. In the event of delay caused by such event,the date of delivery shall be extended for a period equal to the time lost as a consequence of the delay in delivery without subjecting Filament to any liability or penalty. If the Product suffers damage or destruction while in the custody of the carrier, Filament shall be deemed to have performed its obligations in full. Delivery of a quantity, which varies from the quantity specified,shall not relieve Customer of the obligation to accept delivery and pay for the Product delivered.Delay in delivery of one installment shall not entitle Customer to cancel other installments.
(a) Shipments will be deemed to have been accepted by Customer upon delivery of the said shipments to Customer unless rejected upon receipt. Customer shall perform whatever inspection or tests Customer deems necessary as promptly as possible but in no event later than fifteen (15) days after delivery (the “Acceptance Period”), after which time Customer will be deemed to have irrevocably accepted the Product. Any discrepancy in shipment quantity must be reported prior to the end of the Acceptance Period. In the event of an over shipment,Customer shall have the option to return the Product to Filament at Filament’s expense or alternatively, Customer may elect to retain the Product (subject to adjustment of the invoice or the issuance of another invoice to account for such additional items). Any Product returns shall be subject to compliance with Filament’s Return Policy, attached, and processed according to Filament’s Return Merchandise Authorization (“RMA”) policies and procedures, as well as are stocking charge equivalent to 50% of the value of such Product as specified in Filament’s invoice to Customer. Returned Product must be in the original manufacturer’s sealed packaging and conform to minimum package quantity (“MPQ”) requirements.
(b) After the Acceptance Period, Filament warrants the Product as free from defects in material and workmanship under normal use as may be specified in the Documentation (as defined in Section 7 below) for one (1) year after the date of shipment. Filament makes no warranty,however, (i) concerning the compliance of the Product with any local, state, or federal laws or regulations, including without limitation electrical, building, or other codes or requirements, and Customer agrees to accept full responsibility for complying with such laws, regulations, codes,and requirements; (ii) against any defect or damage incurred in transit; and (iii) as to Product which have been misused or used in a manner not intended or permitted by the Documentation or not in a usual and customary manner. If Customer notifies Filament within thirty (30) days after Customer’s discovery of any claimed defect in a Product and, after appropriate tests and inspection by Filament, such Product is found not to be in conformity with the warranty in this Section, Filament shall at its sole option and expense, and as Customer’s sole remedy, either replace the defective Product or refund the price paid for the Product. Any Product returns shall be subject to compliance with Filament’s RMA policies and procedures, which are available upon request.
(c) Any Product returns shall be subject to compliance with Filament’s RMA policies and procedures, which are available upon request.
All right, title, and interest in the Product and any Services, including, without limitation, all patents, copyrights, trade secrets, and other proprietary rights associated with the Product and any Services, shall at all times remain solely and exclusively the property of Filament, whether or not specifically recognized or perfected under the laws of the jurisdictions in which the Product and any Services are used, leased, or licensed (as the case may be). Filament shall further own all right, title, and interest in any copy, translation, modification, adaptation,enhancements or derivation of the Product and any Services, even if developed for or recommended by Customer. Customer shall have no right, title or interest in the Product except the quiet enjoyment and use thereof subject to the terms and conditions of this Agreement.Customer shall not take any action that jeopardizes Filament’s rights, including intellectual property rights, or acquire any right in the Product or any Services. Except as may be specifically provided in Sections 7, 8, 9 and 10 below, no license under any patents, copyrights,trademarks, trade secrets, or any other intellectual property rights are granted by Filament to Customer.
7) Services License
During the Service term, if any, (as provided in the Invoice), Filament grants Customer, and Customer accepts, a limited, personal, non-exclusive, non-transferable, non-assignable,terminable, license to access and use the Service, subject to the terms and conditions of this Agreement. Customer’s use of the Product and any Services shall further be subject to Filament’s instructions, policies, and reference materials provided to Customer, as may be amended by Filament from time to time (the “Documentation”). The foregoing license granted under this Agreement is not a sale of the Service, and Filament or its third party licensors retain all right, title, and interest in such Service. The Service, if any, may not be resold by Customer for any purpose. Any attempt by Customer to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Filament reserves all rights not expressly granted under this Agreement. Upon the expiration of the Service term, if any, as provided in the Invoice, Customer’s use of the Service shall terminate.
(a) Customer shall not: (i) modify, disassemble, decompile or reverse engineer the Product or any Services or any part thereof, except as expressly provided for in this Agreement and except to the extent that such restriction is expressly prohibited by law; (ii) share, rent, lease, loan,resell, sublicense, distribute or otherwise transfer the Product or any Services to any third party or use the Product or any Services to provide time sharing or similar services for any third party;(iii) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Product or any Services, or features that enforce limitations on use of the Product or any Services; (v) delete the copyright and other proprietary rights notices on the Product or any Services; (vi) integrate the Product or any Services with any other hardware or software, except as expressly provided for in this Agreement or the Documentation (or as may be requested by Customer and agreed to by Filament in writing); or (vii) engage in any fraudulent or illegal activity, violate any laws or third party rights, or violate the policies and instructions contained in the Documentation.
(b) The Product and Services may not be licensed, meet the requirements of 47 C.F.R. 15, or otherwise exempted by the Federal Communication Commission (FCC). The Product is intended for use solely for the purpose of evaluating the feasibility of the Product. The Product are experimental devices, and Filament makes no representation with respect to the adequacy of the Product.
9) Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FILAMENT (AND ITS SUPPLIERS AND LICENSORS) SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE USE OF THE PRODUCT OR SERVICES, HOWEVER SUCH DAMAGES ARISE AND/OR WHETHER SUCH DAMAGES ARE CLAIMED IN TORT, CONTRACT OR OTHER ACTION, EVEN IF FILAMENT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL FILAMENT BE LIABLE FOR (A) ANY DAMAGES THAT EXCEED THE AMOUNT PAID BY CUSTOMER FOR PRODUCT OR SERVICES WITHIN THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE ACTION WHICH GAVE RISE TO THE CLAIM FOR SUCH DAMAGES, (B) CLAIMS MADE THE SUBJECT OF A LEGAL PROCEEDING AGAINST FILAMENT MORE THAN ONE (1) YEAR AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE. Some jurisdictions do not allow for the exclusion or limitation of incidental or consequential damages, so the limitations above may not apply to you.
10) No Warranties
EXCEPT AS PROVIDED IN SECTION 5(b), PRODUCT ARE DISTRIBUTED “AS IS” WITHOUT ANY WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FILAMENT SPECIFICALLY DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. This waiver of warranty affects specific legal rights; Customer may have rights which may vary depending upon where Customer is located. Some jurisdictions do not allow limitations on implied warranties, so the limitations above may not apply.
11) Export Control/Use of Product
Customer certifies that it will be the recipient of Product to be delivered by Filament. Customer acknowledges that the Product is subject to the export and/or import control laws and regulations of various countries including the Export Administration Laws and Regulations of the United States. Customer agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required and acknowledges that it shall not directly or indirectly export any Product to any country to which such export or transmission is restricted or prohibited. Product sold by Filament cannot be transferred, sold or re-exported to any party on the Entity List or Restricted Person List of the U.S. Department of Commerce, Bureau of Industry and Security (BIS), any party designated by the U.S. Treasury Department’s Office of Foreign Assets Control, and any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department. Product sold by Filament are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Product could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Customer uses or leases the Product for use in any such applications: (1) Customer acknowledges that such use or lease is atCustomer’s sole risk; (2) Customer agrees that Filament and the manufacturer of the Product are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Customer agrees to indemnify, defend and hold Filament and the manufacturer of the Product harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or lease.
12) Governing Law
This Agreement and any claim, controversy, right, obligation, or dispute arising under or related to this Agreement, the relationship of the parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the parties shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to conflicts of laws principles.The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts for Reno, Nevada. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
13) Force Majeure
Neither party to this Agreement shall be liable to the other for any failure or delay in performance (except for failure to meet payment obligations) by circumstances beyond its control, including without limitation, acts of God, fire, labor difficulties, governmental action,failure or diminishment of telecommunications or data networks, internet bandwidth and/or connectivity constraints, terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances. A force majeure event does not include economic hardship.
No course of dealing or failure of either party to strictly enforce any term, right or condition of this Agreement shall be construed as a waiver of that term, right or condition nor shall Filament’s acceptance of a purchase order be deemed as an acceptance of any terms and conditions therein.
15) Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter and there are no representations, understandings or agreements that are not fully expressed. This Agreement supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement. The terms of this Agreement shall control over any different or additional terms of a purchase order or any other of Customer’s ordering documents, and no terms included in any purchase order or any other Customer ordering documents shall apply to the Product and Services or Customer’s use of the same. Headings contained in this Agreement are inserted for convenience of reference only and shall not in any way define or affect the meaning or interpretation of any provision of this Agreement. This Agreement shall be binding on and inure to the benefit of each party and its successors and permitted assigns.
16) General Terms
16.1 Independent Contractors. The relationship between the parties is that of independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
16.2 Employee Solicitation. While this Agreement is in effect and for one (1) year thereafter, you shall not, directly or indirectly, solicit for employment or engage (whether as an employee,independent contractor, or consultant) any of our employees or subcontractors with whom you had contact during the Term. An employee’s response to a general, non-targeted advertisement for employment shall not be deemed solicitation for the purposes of this Agreement.
16.3 Modifications and Waiver. No modification of, or amendment or addition to, this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
16.4 Assignment. This Agreement and any rights or obligations hereunder, shall not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party except that either party may assign or transfer this Agreement upon a change of control of a party, a sale of all or substantially all of its assets, or by operation of law by providing the non-assigning party with prior written notice thereof provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement.
16.5 Survival. All provisions of the Agreement relating to representations, warranties,confidentiality, ownership, indemnification, limitations of liability and any other subject that would, by its nature, be deemed to survive termination of this Agreement (whether or not so expressly stated), will survive the termination or expiration of this Agreement.
16.6 Interpretation of Agreement; English Language. This Agreement will be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there will be no presumption or inference against the party drafting this Agreement in construing or interpreting any of the provisions. English shall be the governing language of this Agreement and any translation of this Agreement into any other language shall be secondary to the original English version and the form and substance of any such translation will be determined at the sole discretion us.
Unless otherwise provided in this Agreement, all notices (except for routine business communications, e.g., renewal notices and information) shall be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to either party shall be to the address set forth in the Invoice.
18) Personal Data and Privacy