Sample Kits Policy
Sensitile Systems®, LLC (“Sensitile®”) designs and manufactures proprietary products that manipulate light to respond to movement, shadow and color (“Products”). Under the terms of the Sample Transfer Agreement, Sensitile® will produce and ship to the individual or entity identified on Appendix
A (the “Customer”) samples of its proprietary Products (“Samples”) for evaluation purposes. Customer agrees to provide specific information on how the Samples will be evaluated, tested or treated before Sensitile® will accept any order.
Contract for the Sale of Goods and Services
These Terms and Conditions, combined with a completed order for Samples (attached hereto as Appendix A) (together, the “Sample Transfer Agreement”), establish the entire contract between Sensitile® and the Customer. This Sample Transfer Agreement supersedes all prior or contemporaneous writings, promises or understandings.
Prohibition Against Counterfeiting
Samples are protected by patent, trademark, and trade secret. Samples are provided solely for use by Sensitile® Customers. Customers (whether a fabricator of technology, end user, architect, designer, manufacturer, or other person/company requesting the Samples) may not use Samples other than for their intended purpose, which is validation of the Products’ fit for its use by the Customer and to determine whether to place an order for Products.
Customer will not attempt to use the Samples to reverse engineer, duplicate, deconstruct, test, examine by machine, or use to design or create material similar to any Products. Samples remain the property of Sensitile®. Sensitile® may request the return of Samples at any time. If the Customer no longer has a need for the Samples, they must be shipped back to Sensitile®. Samples may not be integrated into public displays without Sensitile’s® prior written consent.
Samples may not be left with third parties, including the Customer’s contractors or clients unless such third party placed an order for Products with Sensitile® within 30 days of presentation to them of Sensitile’s® Samples.
Neither Customer or the end user will use the trademarks “Sensitile®,” Sensitile Systems®, “Jali®,” “Volatile®,” “Scintilla®,” “Slant®,” the Sensitile® Logo, or any other Sensitile® trademark to identify any Samples other than the authentic Products manufactured by Sensitile®. No Customer will use any variation of Sensitile® trademarks or trade dress.
Intellectual Property Rights
Sensitile® retains all intellectual property rights in and to all designs, engineering details, specifications, trademarks, knowhow, trade secrets, and data and materials pertaining to all Samples supplied under any order. All copies of any materials supplied by Sensitile® shall remain the property of Sensitile® and shall be used by Customer solely in connection with the specific project to which this order applies and for no other purpose whatsoever without the written permission of an authorized officer of Sensitile®; provided, however that if Samples form a part of a Customer’s non-public presentation, library or finish boards, the Samples will be used solely for project specification. No license is granted to Customer pursuant to the terms of the Sample Transfer Agreement.
Sensitile’s® Samples are unique, and require specialized knowledge for the proper shipping, handling, installation, use, repair, and care. Customer agrees to read and abide by the terms of the materials sent with any Samples, including Samples information and evaluation instructions (“Product Materials”).
Placement of Order; Payment and Late Fees
The Customer accepts the terms of the Sample Transfer Agreement by taking any of the following actions: (a) signing the Sample Transfer Agreement and sending a copy to Sensitile®, (b) issuing a purchase order to Sensitile® in response to an Sample Transfer Agreement, (c) paying against a Sensitile® invoice or in accordance with the Sample Transfer Agreement, (d) accepting Sensitile® Samples, or (e) confirming in writing, by email or otherwise, acceptance of the Sample Transfer Agreement. Prices quoted to Customer are subject to change if a Sample Transfer Agreement is not accepted within thirty (30) days of the date on the Sample Transfer Agreement.
Any Sample Transfer Agreement can be modified only in writing signed by an officer of Sensitile® and Customer. Any terms contained in any other document, such as a Customer purchase order or written communication, are expressly rejected by Sensitile® and are not part of the Contract.
By accepting a Sample Transfer Agreement, Customer agrees to purchase, and Sensitile® agrees to provide, the Samples specified on the Sample Transfer Agreement. The Sample Transfer Agreement will contain a breakdown of the relevant information regarding the Samples delivered.
Unless otherwise agreed in writing, Customer shall pay in full for all Samples prior to shipment. For any Sample order cancelled by Customer, in whole or in part, Customer shall pay Sensitile® for all costs and fees incurred by Sensitile® in connection with starting production of the Samples. Such costs and fees will be directly proportionate to the duration of production time that has elapsed since the order was placed.
Shipping and Delivery; Risk of Loss
The method of shipment and delivery for Customer’s Samples is identified in Appendix A to the Sample Transfer Agreement. When Sensitile® makes shipping arrangements, the price for the shipment of the Samples is included in Appendix A. Sensitile® bears the risk of loss or damage during transit and title transfer occurs at the delivery location. Sales tax will be assessed on the order if a resale certificate is not provided by the Customer or if Customer picks up the Samples from Sensitile’s® facility. Any shipping fees or sales tax is payable in full before the order will be released. The amount of the sales tax assessed will be as per the State of Michigan’s schedule. Sensitile® shall not be in breach of this Contract for delay in delivery resulting from the conduct of a third party, including its suppliers, shippers, and exporters.
Sample Acceptance; Remedy
For shipments received damaged or non-confirming: The Customer is responsible for maintaining documentation of delivery of Samples. Customer shall have three (3) business days from the date of delivery to inspect all Samples received for damage or non-conformance to specifications. If Customer determines that the Samples are damaged or non-conforming, it must document such damage with photographs and narrative detail, and send to firstname.lastname@example.org and retain the crate, packaging and damaged or non-conforming material until further notice. Any damage claims made after three (3) business days of delivery are null and void.
All notices should include the Customer’s name and contact information, the order number, the specific Samples that the Customer believes are damaged or non-conforming, and proof of the same (photograph and narrative).
Sensitile® may, in its sole discretion: (i) replace any damaged Samples, (ii) reach an agreement with Customer as to a price adjustment, or (iii) terminate the order and refund a portion or all of the purchase price paid by Customer for the Samples. These remedies are Customer’s sole and exclusive remedies in the event of the delivery of damaged Samples.
Warranty Limitations and Exclusive Remedy
Sensitile® does not provide any warranty of any kind on any of the Samples. If Products are subsequently shipped, they may be covered by a separate warranty that shall apply only to purchased Products. SENSITILE® EXPRESSLY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, ARISING BY LAW OR CUSTOM, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH IMPLIED WARRANTIES ARE EXPRESSLY DISCLAIMED BY SENSITILE® AND WAIVED BY CUSTOMER.
##Time For Bringing Claim Neither party may bring any action, regardless of form, in connection with the Samples more than three (3) months from the date of the applicable Sample Transfer Agreement.
Limitation of Liability for Damages
NOTWITHSTANDING ANYTHING IN THIS CONTRACT TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THE OBLIGATIONS UNDER THIS CONTRACT. THE TERM “CONSEQUENTIAL DAMAGES” SHALL INCLUDE, BUT NOT BE LIMITED TO, LOST PROFITS, LOSS OF USE, LOST REVENUE, AND COST OF CAPITAL. THE PARTIES AGREE THAT THE TOTAL DAMAGES THAT CAN BE AWARDED IN ANY CLAIM BY CUSTOMER RELATING TO SENSITILE’S® OBLIGATIONS UNDER THIS CONTRACT (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE TOTAL OF AMOUNTS PAID BY CUSTOMER TO SENSITILE® UNDER THE CONTRACT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE ABOVE LIMITATIONS ON LIABILITY IS A MATERIAL PROVISION OF THE CONTRACT. Customer hereby indemnifies, holds harmless, and agrees to compensate Sensitile® for all costs, expenses, losses, lost sales, lost profits, damages, and attorneys’ fees arising out of any conduct inconsistent with the terms of any order.
Neither party shall be liable if its performance is delayed or made impossible or commercially impracticable due to acts of God, war, riot, fire, labor trouble, unavailability of materials or components, explosion, breakdown or accident, delay in transportation, plant shutdown, compliance with governmental requests, laws, regulations, order or actions, unforeseen circumstances, or causes beyond such party’s reasonable control.
Governing Law, Jurisdiction and Venue
The terms of the Sample Transfer Agreement shall be governed by and construed in accordance with the laws of the State of Michigan without reference to the choice of law principles thereof. Both the Convention on Contracts for the International Sale of Goods and the terms of the Uniform Commercial Code, as adopted in any jurisdiction, are expressly excluded. Each party irrevocably submits to the jurisdiction of the Courts of the State of Michigan and the United States District Court for the Eastern District of Michigan and hereby waives, to the fullest extent it may effectively do so, trial by jury and the defense of an inconvenient forum to the maintenance of such action or proceeding.