For the purposes of these Terms and Conditions of Sale, the term “contract” shall mean the agreement between LMI Technologies and its Subsidiaries (“Supplier”) and Buyer arising as a result of Buyer’s submission of an order for Supplier’s products. Such contract shall be deemed to incorporate and be governed by these Terms and Conditions. THESE TERMS AND CONDITIONS SHALL TAKE PRECEDENCE OVER ANY TERMS AND CONDITIONS THAT APPEAR IN BUYER’S ORDER OR IN ANY DOCUMENTS INCORPORATED BY REFERENCE IN BUYER’S ORDER. No term or condition of Buyer’s order additional to or different from these Terms and Conditions shall become part of the contract unless explicitly agreed to in writing by Supplier. Retention by Buyer of any products delivered by Supplier, or payment by Buyer of any invoice rendered hereunder, shall be conclusively deemed acceptance of these Terms and Conditions. Supplier’s failure to object to any provision contained in any communication from Buyer shall not be construed as a waiver of these Terms and Conditions, nor as an acceptance of any such provision.

1. QUOTATIONS: Prices, specifications and dates for delivery referenced in Supplier’s quotations are for information purposes only and shall not be binding on Supplier until all technical requirements have been agreed and Supplier has accepted Buyer’s order. Quotations terminate if not accepted by Buyer within 60 days, unless a different period is specifically agreed to between Buyer and Supplier.

2. ORDERS: By submitting an order to Supplier, Buyer agrees to be subject to these Terms and Conditions of Sale in their entirety. All orders must be bona fide commitments showing definite prices and quantities and mutually agreed shipping dates. No order, whether or not submitted in response to a quotation by Supplier, shall be binding upon Supplier until accepted in writing by Supplier.

3. PRICES AND TAXES: Prices do not include federal, state or local taxes, including without limitation sales, use or excise taxes now or hereafter enacted, applicable to the products sold in this transaction, which taxes may, in Supplier’s discretion, be added by Supplier to the sales price or billed separately and which taxes shall be paid by Buyer unless Buyer provides Supplier with any necessary tax exemption certificate.

4. SHIPMENT AND DELIVERY: All products will be shipped FCA from Supplier’s premises and may be so shipped in several lots. In the absence of specific instructions, Supplier will select the carrier and ship “collect”, but shall not be deemed thereby to assume any liability in connection with the shipment nor shall the carrier be construed to be the agent of Supplier. Buyer must provide its own insurance. Title and risk of loss or damage to all products sold hereunder shall pass from Supplier to Buyer upon delivery by Supplier to the possession of the carrier, provided that Supplier reserves a purchase money security interest in the products. Any claims for loss, damage or failed delivery thereafter shall be filed with the carrier. All products shall be deemed finally inspected and accepted within ten (10) days after delivery unless notice of rejection is given in writing to Supplier within such period. Acceptance shall constitute acknowledgement of full performance by Supplier of all obligations under the contract except as stated at Section 11 (Warranties).

5. TERMS OF PAYMENT:

(A) Each shipment shall be a separate transaction and Buyer will be invoiced on date of dispatch. Unless otherwise stated on Supplier’s invoice, terms of payment shall be net thirty (30) days from date of invoice. Supplier may, in its sole discretion, determine at any time that Buyer’s financial condition requires payment in advance, and, if such requirement is not met, may cancel the order or any part thereof.

(B) Seller reserves the right to charge interest, or a fee in lieu of interest, at the highest rate allowed by the law on all overdue accounts, plus all costs associated with the collection of such overdue accounts (including, without limitation, attorneys’ fees), with each fraction of a month counted as a full month. Whenever Seller in good faith deems itself insecure, Seller may cancel any outstanding purchase order with Buyer; decline to make delivery of products to Buyer; revoke any extension of credit to buyer; reduce any unpaid debt by enforcing its security interest, created hereby, in all products (and proceeds therefrom) furnished by Seller to Buyer; and take any other steps necessary or desirable to secure Seller fully with respect to Buyer’s payment for products and services furnished or to be furnished by Seller.

6. CONTINGENCIES: Supplier shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control of Supplier, including, by way of illustration but not limitation, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, failure or delay in transportation, export embargoes, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, explosion, floods, storm or other act of God, shortage of labor, fuel, raw material or machinery or technical failure where Supplier has exercised ordinary care in the prevention thereof. If any such contingency occurs, Supplier may allocate production and deliveries among Supplier’s customers.

7. EQUIPMENT: Supplier may modify specifications provided the modifications do not adversely affect the performance of the equipment to be supplied under the contract (“the equipment”). In addition, Supplier may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by government authority, or availability of materials from suppliers, provided Supplier gives Buyer 60 days written notice of changes and acceptance is made by Buyer. In the event that the changes made by Supplier are not acceptable to the Buyer, Buyer may cancel any orders for the equipment without any further cost or obligation to purchase.

8. SOFTWARE:

(A) Supplier shall at all times have and retain title and full ownership of all (embedded) software, firmware programming routines, and documentation thereof supplied by Supplier for use with or on the equipment, and of all copies thereof made by Buyer (collectively “software”). 

(B) Supplier grants Buyer a non-exclusive and non-transferable license to use such software solely for use with the equipment. If equipment comes with packaged access rights to SaaS (Software As A Service) based software, Buyer shall receive a right to access the software for an indeterminate period following the date of purchase of the equipment. In the unlikely event that Supplier is in a position that it can no longer provide SaaS access rights, these rights can be terminated by Supplier subject to 12 months’ prior e-mail notice.   

(C) Supplier shall within a reasonable time frame after a security fix has been generally made available by the relevant software publisher, apply the fix to embedded software on the equipment. Fixes will be triggered remotely over IP using the ethernet connection of the equipment. In the unlikely event that a security risk is suspected in embedded software in specific equipment, Supplier will be entitled to temporarily quarantine the relevant equipment and disconnect it from any associated Supplier provided SaaS based software. 

(D) Buyer shall take all reasonable steps to protect Supplier’s proprietary interest in the software and shall not transfer or otherwise provide the software to any third party. 

(E) Buyer will not disassemble, decompile, reverse engineer, modify or create derivative works of software and associated documentation, nor permit any other party to do so, except to the extent such restrictions are prohibited by applicable mandatory local law. If and to the extent that applicable mandatory law provides a right to decompile software for the purpose of establishing interoperability with another computer program, Buyer shall first request the required interface information from Supplier. Only if Supplier has failed to provide the required interface information within 7 calendar days of its receipt of Buyer’s request, Buyer shall be allowed to enforce its decompilation rights.

9. LICENSE TO USE BUYER DATASETS: In all cases whereby Supplier receives an  (annotated) dataset for machine learning purposes from Buyer or is instructed by Buyer to compile a dataset with Buyer specific data, Buyer is presumed to hereby have provided a license to Supplier as further described below. Supplier may use such Buyer datasets, including any derivative works that Buyer creates from it, for the creation of contracted machine learning models and for other reasonable business purposes it may have from time to time. These reasonable business purposes include but are not limited to using the dataset to train models for other applications. Buyer accepts that a dataset does not represent Buyer confidential information. Supplier will however not share Buyer datasets with any third party without Buyer’s prior permission. The license granted above has a worldwide scope, is royalty free, not limited in time, and cannot be revoked by Buyer. 

10. BUYER USE OF AI OUTPUT DATA:

(A) Buyer accepts that data generated by products with embedded software based artificial intelligence models (output data), e.g., output data of a production line camera provided by Supplier with vision-based recognition capabilities using a Supplier trained artificial intelligence model, shall only be accessible to Buyer by means of a Supplier provided software interface.

(B) To the maximum extent allowed by applicable mandatory law, Buyer hereby accepts that the day-to-day production use by Buyer of output data, shall be for the sole risk of Buyer. Buyer shall be deemed to have sole control over and responsibility for all risks related to or associated with the use of output data, including any associated programming of Buyer site production systems. Buyer will indemnify and hold Supplier, its employees, agents, and contractors fully harmless for any adverse financial consequences connected with the materialization of such a risk. Adverse financial consequences may include but are not limited to health and safety risks, production of faulty Buyer products and required destruction of Buyer produced foodstuffs.

11. LIMITATIONS OF WARRANTIES: 

(A) Supplier warrants that all equipment (unless specifically excluded) shall be free from defects in material and workmanship under normal use for a period of one to five years (depending on the product) from date of shipment to Buyer save that Supplier does not warrant that operation of (embedded) software will be completely uninterrupted or error free or that all program errors will be corrected. Buyer shall be responsible on an ongoing basis for monitoring and/or determining that the equipment included associated (embedded) software, when in use, performs in accordance with Buyer’s intended functional performance requirements, is suitable for Buyer’s use and that such use complies with any applicable local, state or federal law. Provided that Buyer notifies Supplier in writing of any claimed defect in the equipment immediately upon discovery and any such equipment is returned to the original shipping point, transportation charges prepaid, within one year from date of shipment to Buyer and upon examination Supplier determines to its satisfaction that such equipment is defective in material or workmanship, i.e. contains a defect arising out of the manufacture of the equipment and not a defect caused by other circumstances, including, but not limited to accident, misuse, unforeseeable use, neglect, alteration, improper installation, improper adjustment, improper repair, or improper testing, Supplier shall at its option repair or replace the equipment, shipment to Buyer prepaid. Supplier shall have reasonable time to make such repairs or to replace such equipment. Any repair or replacement of equipment shall not extend the period of warranty. This warranty is limited to a period of one year, without regard to whether any claimed defects were discoverable or latent on the date of shipment.

(B) If Buyer fails to pay when due any portion of the purchase price or any other payment required from Buyer to Supplier under this contract or otherwise, all warranties and remedies granted under this Section 11 may, at Supplier’s option, be terminated.  

(C) THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT AND ANY DEFECTS THEREIN OF ANY NATURE WHATEVER, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUPPLIER SHALL NOT BE LIABLE FOR, AND BUYER ASSUMES ALL RISK OF, ANY ADVICE OR FAILURE TO PROVIDE ADVICE BY SUPPLIER TO BUYER REGARDING THE EQUIPMENT OR BUYER’S USE OF THE SAME. UNDER NO CIRCUMSTANCES SHALL SUPPLIER BE LIABLE TO BUYER UNDER ANY TORT, NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY CLAIM AND BUYER AGREES TO WAIVE SUCH CLAIMS. SUPPLIER’S SOLE AND EXCLUSIVE LIABILITY, AND BUYER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY NONCONFORMITY OR DEFECT IN THE PRODUCTS OR ANYTHING DONE IN CONNECTION WITH THIS CONTRACT, IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL BE AS SET FORTH IN SUBSECTION 11A HEREOF AS LIMITED BY SUBSECTION 11B HEREOF. THIS EXCLUSIVE REMEDY SHALL NOT HAVE FAILED OF ITS ESSENTIAL PURPOSE (AS THAT TERM IS USED IN THE UNIFORM COMMERCIAL CODE) PROVIDED THAT THE SUPPLIER REMAINS WILLING TO REPAIR OR REPLACE DEFECTIVE EQUIPMENT (AS DEFINED IN SUBSECTION 11A) WITHIN A COMMERCIALLY REASONABLE TIME AFTER RECEIVING SUCH EQUIPMENT. BUYER SPECIFICALLY ACKNOWLEDGES THAT SUPPLIER’S PRICE FOR THE EQUIPMENT IS BASED UPON THE LIMITATIONS OF SUPPLIER’S LIABILITY AS SET FORTH IN THIS CONTRACT.

12. LIMITATION OF LIABILITY AND BUYER INDEMNITY: IN NO EVENT, REGARDLESS OF THE FORM OF ACTION, SHALL SUPPLIER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF THE SALE OF ITS PRODUCTS TO BUYER OR ARISING OUT OF ANYTHING DONE IN CONNECTION WITH THE CONTRACT, INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES ARISING OUT OF CLAIMS FOR LOSS OF USE, BUSINESS, GOODWILL, OR PROFITS, AND CLAIMS ARISING OUT OF THIRD PARTY ACTIONS, REGARDLESS OF WHETHER SUCH THIRD PARTY ACTIONS, OR ANY OTHER CLAIMS, LOSSES, OR DAMAGES, WERE REASONABLY FORESEEABLE TO BUYER OR SUPPLIER. BUYER’S EXCLUSIVE REMEDY ARISING OUT OF ITS PURCHASE AND USE OF SUPPLIER’S PRODUCTS, OR ARISING OUT OF ANYTHING DONE IN CONNECTION WITH THE CONTRACT, SHALL BE FOR DAMAGES AND NO CLAIM OR CLAIMS OF ANY KIND, WHETHER BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WARRANTY AND STRICT LIABILITY), STATUTORY OR REGULATORY PROVISIONS, INDEMNITY, CONTRIBUTION, OR OTHERWISE, SHALL BE GREATER IN AMOUNT IN AGGREGATE THAN THE PURCHASE PRICE OF THE PRODUCTS IN RESPECT OF WHICH DAMAGES ARE CLAIMED. Buyer shall indemnify and hold harmless Supplier, its officers, agents, employees, subsidiaries, parents, affiliates and insurers from and against any and all liabilities, damages, losses, claims, lawsuits, including costs and expenses in connection therewith, for death or injury to any persons or loss of any property whatsoever, caused in any manner by Buyer’s possession, use or operation of equipment.

13. PROPRIETARY INFORMATION: Buyer represents that it has adopted reasonable procedures to protect Proprietary Information, as defined hereafter, including binding agreements with employees and consultants to prevent unauthorized publication, disclosure or use of such during or after the term of their employment by or services for Buyer. Buyer shall not use Proprietary Information except as required for the use of the equipment, shall not disclose Proprietary Information to any third party, and shall not transmit any documents or copies thereof containing Proprietary Information to any third party, except as may be authorized in writing by Supplier. This Section 13 shall survive termination of the contract. “Proprietary Information” shall mean information or data of Supplier, or a third person to whom Supplier owes obligations of confidentiality, and which is furnished or to be furnished to Buyer in written, graphic or machine-readable form and is marked proprietary or confidential. Where copies or alternative forms of information or data are received from Supplier, such information or data shall be considered Proprietary Information if at least one of said copies or alternative forms is marked proprietary or confidential. This Section 13 shall not apply to information which Buyer demonstrates was in Buyer’s possession prior to receipt from Supplier or information which Buyer demonstrates is or has become available to the public or general knowledge in the industry otherwise than through the fault of Buyer.

14. RESCHEDULING AND CANCELLATION: All orders are non-cancellable and non-returnable unless deemed otherwise at the discretion of the Supplier. Supplier shall have the right without penalty or payment to cancel any order accepted (i) if Buyer fails to make any payment when due to Supplier under the contract or any other contract (ii) if Buyer violates any of these Terms and Conditions, or (iii) if Buyer’s credit becomes impaired. Buyer may reschedule any order at the discretion of the Supplier.

15. NON-WAIVER REMEDIES: No waiver of any breach of these Terms and Conditions shall constitute a waiver of any prior or subsequent breach of any similar or dissimilar provision or a modification of the contract. All Supplier rights and remedies, whether evidenced hereby or by any other contract or document, shall be cumulative and nonexclusive and may be exercised singularly or concurrently.

16. APPLICABLE LAW AND ACTIONS TO RECOVER DAMAGES: These Terms and Conditions have been created with reference to the laws of the British Columbia, Canada. If any provision of these Terms and Conditions is held to be unenforceable, such holding shall not affect the enforceability of any other provision. Any legal presumption that terms in this contract shall be strictly construed against the party who drafted such terms or who benefits from such terms shall not be employed in construing and interpreting this contract. Prior to commencement of any legal proceedings, Buyer and Supplier shall meet at a senior level to attempt to resolve differences. Notwithstanding any attempts to resolve differences or negotiations regarding such differences, any action brought by Buyer against Supplier arising out of this contract or Buyer’s purchase and use of the equipment must be commenced within one year after such action accrues and in no event later than two years after date of shipment of such equipment.

17. EXPORT CONTROL: Buyer acknowledges that the equipment is subject to applicable export laws, rules and regulations (“Applicable Export Laws”), and as such the equipment may be restricted or prohibited with respect to the Buyer, or the country or nature of end-use. Buyer understands and accepts that such Applicable Export Laws shall include, but shall not be limited to, those of Canada, the United States of America (USA), and the European Union (EU) and the laws of the jurisdiction in which the equipment is utilized. Buyer understands and accepts that Supplier shall not dispatch any Equipment to the Buyer for use, diversion, export, re-export or import of equipment: (a) to or in a restricted country; (b) by any entity or person on any denial/debarment list; or (c) for any prohibited use, as designated by Applicable Export Laws. Applicable Export Laws are subject to change and the onus is upon the Buyer to ensure that it familiarises itself with Applicable Export Laws which specify: (a) restricted countries; (b) denial/debarment lists; and (c) prohibited uses. The Buyer hereby gives warranty to Supplier that the Buyer shall not utilise, divert, export, re-export or import, and shall not permit any third-party to utilise, divert, export, re-export or import, any equipment: (a) to or in a restricted destination; (b) to any entity or person listed on any denial/debarment list; or (c) for any prohibited use, as designated by Applicable Export Laws. If Supplier, in its sole discretion, should determine that the delivery of the Products in any manner would not be in full compliance with relevant national or international export controls related laws and regulations, then the Supplier shall have the right to declare that any such delivery obligation is null and void without liability whatsoever, and the Agreement shall automatically terminate. Supplier shall have the right to be compensated for any costs incurred as a consequence of non-compliance with export related laws and regulations by the Buyer. Supplier shall in such event not be responsible for price, delivery or schedule consequences resulting from the aforementioned non-compliance.

18. ASSIGNMENT: The contract shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns. The contract is personal to Buyer, and Buyer may not assign any of its rights or delegate any of its obligations thereunder, in whole or in part, without the prior written consent of Supplier which may be withheld for any reason.

19. COMPLETE AGREEMENT; MODIFICATIONS:  This contract constitutes the entire agreement between the parties relating to the sale of the equipment and no addition to or modification of any provision of said agreement shall be binding upon Supplier unless agreed in writing by Supplier.

20. NOTICES: All notices given under the contract shall be in writing, mailed by first class mail, certified or registered, e-mail or delivered by hand to the address of the other party set forth in the quotation or to such other address as such party may designate from time to time by such notice, and shall take effect when received.