1. The terms and conditions contained herein (“Terms and Conditions of Sale”) constitute the entire agreement between you (“Buyer”) and Simformotion™ LLC (“Simformotion”) with respect to the transaction(s) covered by our quote, our sales order acknowledgement or your purchase order(s) accepted by Simformotion. Your purchase order(s), if accepted, will be subject to these Terms and Conditions of Sale.
    2. No modification or waiver of any of the terms and conditions contained herein and no additional or different terms or conditions shall be effective unless (i) modified by Simformotion’s quotation or sales order acknowledgement, or (ii) agreed to in a single writing signed by both parties. No oral agreement, course of performance or other means other than such written agreement signed by both parties expressly providing for such waiver shall be deemed to waive the terms of this document.
    3. The Terms and Conditions of Sale shall become binding on the parties upon:
      1. Buyer’s tender of payment pursuant to Simformotion’s quote or sales order acknowledgement;
      2. Simformotion’s written acknowledgement or issuance of an invoice pursuant to Buyer’s purchase order(s);
      3. Simformotion’s delivery of the products, in whole or part; or,
      4. Signature of Buyer and Simformotion on an agreement for the purchase and sale of products incorporating the Terms and Conditions of Sale.
    1. All prices are based upon the material cost and labor rates in effect on the date of the quote or sales order acknowledgement, unless an earlier date is indicated thereon, are for your guidance in submitting purchase orders, and are subject to change upon notice. Buyer agrees that the quantities committed affect the price of such products or parts, and that if Buyer hereafter makes any change in the quantities committed from those shown on the front of the quote, sales order acknowledgement or purchase order, the price of such products or parts shall be adjusted to meet Simformotion’s price applicable to the quantities committed as changed. Each quantity committed must be scheduled by Buyer for shipment within
      [30] days following the initial shipment.
    2. The prices do not include any applicable federal, state or local sales, use, excise, value-added or similar-type tax or assessments applicable to the price, sale, use or delivery of the products ordered by Buyer. Such taxes and assessments will be included in Simformotion’s invoice and paid by Buyer unless Buyer’s purchase order plainly states on its face the existence of an exemption from any such tax or assessment and Buyer provides Simformotion with evidence of such exemption from the applicable taxing authority.
    1. Delivery dates are approximate and are based upon prompt receipt of all necessary information from Buyer. All shipments shall be made at Simformotion plants/warehouses (Incoterms 2020). After the products are delivered to a carrier for shipment, all risk of loss, damage, theft, or destruction will be the responsibility of Buyer. Subject to the provisions of Section 10.3, title to the will pass to you upon delivery to the carrier for shipment to you. Shipments will only be insured at Buyer’s request and expense.
    2. In the event Buyer requests changes in specifications after the Terms and Conditions of Sale have become binding, such changes shall become part of the purchase order only upon acceptance by Simformotion in its sole discretion, whereupon delivery dates will be reasonably extended, Simformotion shall be compensated for all costs incurred in connection with such change and the price shall be adjusted to maintain Simformotion’s anticipated profit margin.
    3. No claims for errors in shipment will be considered unless made within 10 days after receipt of materials nor unless accompanied by necessary papers or documents to substantiate the claim. Claims for loss or damage in transit must be entered and prosecuted by Buyer.
    1. The products shall be installed by and at the expense of the Buyer. Upon request, Simformotion will provide a competent superintendent to supervise the initial set up and/or operation of the products. The Buyer shall pay Simformotion for the service of said superintendent at the rate stipulated plus reasonable travel and other expenses. The superintendent shall be considered an employee of Simformotion, but Simformotion shall not be liable for injury to persons or damage to property occurring in the course of, or as a result of, the superintendent’s presence on the premises of Buyer.
    2. Simformotion shall not be liable for Buyer’s systems and equipment, the acts of Buyer’s employees, agents or contractors, or the performance of products not initially set up or operated under the supervision of its superintendent unless deficient performance is caused by defects independent of the installation and within the scope of the warranty set forth in Section 5.
    3. Simformotion assumes no responsibility for damages due to deterioration during periods of storage by the Buyer prior to installation and operation. If provided for in the proposal or for an extra charge, Simformotion may apply preservations to minimize the deterioration.
    4. Simformotion reserves the right to make changes in design or additions to or improvements in its products without liability to install such changes, additions or improvements in any product manufactured prior thereto.
  1. LIMITED WARRANTY POLICY. Simformotion’s Limited Warranty Policy, as may be amended from time to time, as published and made available at and applies to all products manufactured and/or developed by Simformotion.
    1. Any and all information concerning the products or the transaction covered hereunder which Simformotion discloses to Buyer, or which Buyer otherwise obtains knowledge of hereunder, remains the exclusive property of Simformotion and shall not be made available to third parties without Simformotion’s express written consent. Buyer shall have no right whatsoever to such information other than to use it for evaluation for the purpose of the transaction covered hereunder.
    2. Any information, suggestions or ideas transmitted by Buyer to Simformotion in connection with performance hereunder are not to be regarded as proprietary or confidential unless expressly provided in a writing signed by Simformotion.
  1. FORCE MAJEURE. Simformotion shall not be liable for delays or failures in delivery, damage to products, or performance due to acts of God, governmental authority or public enemy, fire, flood, strike, labor disturbance, epidemic, war, riot, civil disturbance, acts of terror or crime, power failure, embargoes, shortages in materials, components or service, boycotts, transportation delays or any other cause beyond Simformotion’s control. In the event of such delay or failure, Buyer’s order shall not terminate, but the date of delivery or performance shall be extended for a period equal to the time lost by reason of the delay.
  1. INTELLECTUAL PROPERTY. All intellectual property embodied in the products and information protected under Section 6 hereof are owned by Simformotion and/or its suppliers and are protected by United States laws and international treaty provisions. Simformotion and/or its suppliers retain all right, title and interest in and to patents, trademarks, copyrights, trade secrets and other intellectual property rights embodied or contained therein. In the event the products covered by Buyer’s order include or incorporate any software or licensed program (as defined in Simformotion’s software license) then Buyer’s rights with respect to such software and licensed program shall be governed by the terms of such software license(s). Buyer may not use, copy or distribute the any intellectual property embodied in the products, in whole or in part, without the prior written consent of Simformotion and except as set forth in any such software license(s). Buyer may not copy, modify, create any derivative work of, or include any software or portion thereof in any other software, or reverse assemble, decompile, reverse engineer or otherwise attempt to derive source code (or the underlying ideas, algorithms, structure or organization) from any software.
    1. Simformotion may cancel Buyer’s order without liability effective upon written notice to Buyer, upon occurrence of any of the following Events of Default: (i) Buyer’s failure to make timely payment of any sum owing to Simformotion for the orders accepted and shipped by Simformotion or otherwise; (ii) Buyer’s failure to conduct its operation in the normal course of business (including the inability to meet obligations as they accrue); (iii) institution of any proceedings by or against Buyer under any bankruptcy, insolvency or similar law; (iv) appointment or application for a receiver for Buyer; (v) an assignment by Buyer for the benefit of creditors; (vi) failure of Buyer to furnish Simformotion with a written representation reaffirming Buyer’s solvency (it being understood that Buyer’s order hereunder constitute a representation by Buyer that it is solvent); (vii) failure of Buyer to maintain any insurance required as herein provided; or (viii) failure of Buyer to maintain the products free and clear of any and all liens of third parties prior to Buyer’s payment of the full purchase price.
    2. Upon cancellation, at Simformotion’s option:
      1. Buyer shall pay for all products delivered and for all products completed or in process pursuant to purchase orders accepted by Simformotion;
      2. With respect to all products for which Simformotion has not received full payment, Simformotion may stop delivery, retake (or retain) possession of the products wherever located (all without notice, demand or legal process) and retain, lease or resell (at public or private auction or otherwise) without accounting to Buyer, and any payments received by Simformotion from Buyer or otherwise may be retained as liquidated damages;
      3. Simformotion may declare any outstanding balance immediately due and owing and collect same from Buyer without further notice or demand, together with interest at the maximum rate permitted by law; or
      4. Refuse to deliver except for cash payment for all products.
    3. The rights of cancellation and remedies provided in this Section are cumulative and are in addition to any other rights and remedies of Simformotion in law or equity.
    1. Except as otherwise specified by Simformotion in writing, payments are immediately due upon Simformotion’s issuance of a sales order acknowledgement, with no right of set-off for amounts due or allegedly due from Simformotion to Buyer. Simformotion reserves the right to grant longer credit terms, or alter or suspend the same by requiring C.O.D. or advance payment, whenever Simformotion has reasonable doubt as to Buyer’s credit worthiness. If Buyer becomes delinquent in payment or refuses to accept C.O.D. shipments, Simformotion shall have the right, in addition to any other right it may have, to cancel any order of Buyer’s, withhold further deliveries, and declare all unpaid amounts for products or products previously delivered immediately due and payable.
    2. Each shipment shall be considered a separate and independent transaction and payment therefor shall be made accordingly. Amounts past due are subject to an interest charge of 1.5% per month or the highest amount permitted by law, whichever is higher. All costs and expenses incurred by Simformotion as a result for non-payment or delinquent payment by Buyer, including collection costs, interest, and reasonable attorneys’ fees, shall be paid by Buyer. All invoices are due and payable in cash in United States funds.
    3. In the event Simformotion consents to delay shipments after completion of the products or any portion thereof, payment shall become due upon notice to Buyer that such products are ready for shipment and such products shall thereafter be held at Buyer’s risk and expense.
    4. Buyer grants to Simformotion a purchase money security interest in the products, products and/or equipment supplied hereunder. Failure of Buyer to make any payment when due shall entitle Simformotion, in its sole discretion, to declare all obligations of Buyer immediately due and payable. In such event, Simformotion shall have all the rights and remedies of a secured party under applicable law. Buyer agrees to execute upon request such documents which may be deemed necessary or appropriate by Simformotion to create, perfect and maintain the perfection of its security interest under applicable law. Buyer hereby appoints Simformotion as its attorney-in-fact to sign and file a financing statement and such other documents as Simformotion deems necessary to create, file, perfect and maintain the perfection of its security interest.
    5. In the event Buyer fails to fulfill the terms of payment of any invoice, or if the financial responsibility of the Buyer shall become impaired or unsatisfactory to the Simformotion, or if necessitated by any acts of any governmental authority, including financial disclosures mandated by Section 409 of Sarbanes Oxley Act, Simformotion reserves the right to change terms of payment and/or deter or discontinue further shipments without prejudice to any other lawful remedy, until past due payments are made and satisfactory assurances of Buyer’s credit standing are received by Simformotion or until such acts or requirements of such governmental authority shall have been complied with.
    6. Simformotion also reserves the right to cancel the contract in the case of any of the events described in Section 10(a), in which event Buyer shall compensate Simformotion for any commitments, obligations, expenditures, expenses, and costs including attorney fees, Simformotion may have incurred in connection with the contract. Each shipment by Simformotion shall be considered a separate transaction and if payment is not received therefore within the periods specified herein, Simformotion at its option may bring a separate suit to recover the contract price of each such shipment.
    7. If any of the following events occur, Simformotion shall have the right to demand assurance from Buyer that payment in full will be made: (i) Buyer is delinquent in making payment hereunder for a period of 45 days after payment was due; (ii) Buyer fails to meet his obligations with one or more other suppliers as the obligations occur; or, (iii) a writ of attachment or judgment is entered in any court of competent jurisdiction. On written demand for assurance by Simformotion, Buyer shall, within five (5) days after receipt thereof, furnish, in amount sufficient to secure the full payment of the balance of any monies due hereunder on account of the purchase price, either a penalty bond issued by a competent surety company, or financial security, bank irrevocable letter of credit, or other liquid collateral to be held in escrow by an attorney at law as designated by Simformotion, to secure the payment of the purchase price aforesaid.
    8. All funds received by or owed to Buyer from a third party, to the extent that such funds relate to products furnished by Simformotion pursuant to this Agreement shall be held in trust for the benefit of Simformotion (“Trust Funds”). Until such time as Simformotion has been paid in full for the Items supplied hereunder, Buyer shall account to Simformotion, and within seven (7) days from Buyer’s receipt of such Trust Funds from a third party, pay over to Simformotion all such Trust Funds received by Buyer. Buyer further agrees to direct any third party holding any such Trust Funds to pay over such funds to Simformotion upon Simformotion’s request. Buyer shall retain no greater percentage or amount from the Simformotion than that retained from Buyer by any third party to the extent that such funds relate to Items furnished by Simformotion pursuant to this Agreement.
    9. All waivers executed by Simformotion shall be effective only to the total dollar amount of payments actually received without any bankruptcy filing ninety days thereafter. Buyer agrees that Simformotion retains its mechanic’s lien, payment bond or other legal rights for unpaid deliveries, regardless of what other documents have been presented to Simformotion for signature that may imply otherwise. Buyer further agrees that Simformotion has the right to determine, in its sole discretion, how to apply payments, and which invoices to pay with all payments, received on account, despite any advice to the contrary.
    2. Buyer agrees that if it transfers title to or leases the products to any third party, Buyer shall obtain such party’s agreement to the limitations of Sections 6, 9 and 11.
    3. Simformotion shall have no liability with respect to or arising out of information or advice furnished by Simformotion which is not contractually required by the Terms and Conditions of Sale or other written agreement signed by both parties.
    1. If the products are purchased under a government contract or sub-contract, Buyer shall promptly notify Simformotion of the provisions of any government procurement laws and regulations which are required to be included in the contract covering the products or products ordered. If compliance with such provisions increases Simformotion’s costs or liability, Simformotion shall be entitled, at its option, to adjust the prices accordingly, request separate payment of the additional costs, or terminate this agreement with Buyer being responsible for all costs incurred by Simformotion.
    2. Subject to the provisions of Section 12(a) above, Simformotion represents that its performance hereunder is in compliance with all applicable provisions as may be amended from time to time (and same are incorporated herein by reference) including, but not necessarily limited to: the Fair Labor Standards Act, Executive Order 11246, including section 202, the Vietnam Era Veterans Readjustment Assistance Act of 1974, Worker’s Compensation, and the Rehabilitation Act of 1973.
  1. EXPORT CONTROLS. Simformotion and Buyer acknowledge and agree that the products covered by Buyer’s order are subject to export controls imposed by the United States Government under various federal laws including but not limited to the Export Administration Act of 1979, as amended (the Act), or any successor legislation, and the regulations promulgated thereunder. Buyer agrees not to export or re-export any products without complying with the Act. Buyer further certifies that the products: (a) are not intended to be used for any purpose prohibited by the Act or regulations including, without limitation, nuclear related activities or chemical/biological weapons or missiles; (b) are not intended to be released, shipped or re-exported, either directly or indirectly, to Cuba, Iran, North Korea, Sudan or Syria, or to any other destination to which the United States has prohibited shipment; and (c) are not intended to be released, shipped or re-exported, either directly or indirectly, to any persons identified on the Denied Persons List published by the U.S. Department of Commerce Bureau of Industry and Security. This Section shall survive any termination or expiration of Buyer’s order.
  1. CANCELLATION AND CHANGES BY BUYER. Buyer’s orders may NOT be canceled or changed by Buyer without the prior written consent of Simformotion, which consent may be granted or withheld in Simformotion’s sole discretion. In the event of such cancellation, Buyer shall be liable for Simformotion’s anticipated profit and for all costs incurred prior to cancellation.
  1. DATA COLLECTION. Simformotion may collect behavioral data relating to the products for purposes of refining the user interface, improving overall user experience, and guiding the development of new products.  Data collected from the Buyer may include:  user feedback/surveys, performance metrics, feature usage/UX analysis, session replays, heatmaps, user personas and segmentation, accessibility compliance, eye tracking, and inactivity time, but shall not include personal data.  Simformotion may share anonymized data with third-party service providers to facilitate the secure storage, processing, and analysis of the data, enabling the generation of heatmaps, derivation of insightful analytics, and creation of comprehensive data visualizations and implementation of feature testing.
    1. NOTICE. All notices in connection with Buyer’s order shall be in writing and shall be given by Federal Express or other reputable next day courier service or U.S. mail, postage prepaid, certified or registered, return receipt requested. Each notice shall be addressed to the party at the address set forth on the face of this Agreement or at such other address as a party shall provide by notice to the other party. Notice shall be deemed effective upon delivery.
    2. WAIVERS. No waiver shall be effective unless it is in writing. The failure of either party to require performance under any provision of this Agreement shall in no way affect the right of such party to require full performance at any subsequent time, nor shall the waiver by either party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision.
    3. SEVERABILITY. The Terms and Conditions of Sale shall be deemed severable and if any portion hereof shall be held to be invalid for any reason, the remainder shall not be deemed invalid but shall remain in full force and effect.
    4. GOVERNING LAW/ARBITRATION. The Terms and Conditions of Sale shall be governed and construed in accordance with the laws of the State of Illinois except for its choice of law provisions. The United Nations Convention of the International Sale of products shall not apply. The parties agree to submit all such disputes to binding arbitration which shall be held in Peoria, Illinois, in accordance with the rules of the American Arbitration Association (“AAA”) pertaining to commercial arbitration. Within 30 days after either party has notified the other in writing that it is submitting a dispute to arbitration, three arbitrators shall be appointed in accordance with said rules. Neither party shall be allowed to object to an arbitrator appointed by the other party. The arbitrators shall have no authority to award punitive damages or any other damages excluded herein. The arbitration award shall be by a written decision containing findings of fact and conclusions of law and shall be final and binding. It may be entered in and enforced by any court of competent jurisdiction. The party prevailing in the arbitration or any other legal proceedings shall be entitled to recover its costs including reasonable attorney’s fees incurred due to the arbitration or other legal proceedings.
    5. MODIFICATION. The Terms and Conditions of Sale may not be amended, modified or supplemented at any time except by a written document signed by the parties.
    6. ENTIRE AGREEMENT. This is the complete and final agreement between the parties related to the subject matter of the Terms and Conditions of Sale and supersedes all prior writings, conversations, understandings or agreements.
    7. PARTIES IN INTEREST. The Terms and Conditions of Sale shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.
    8. ASSIGNMENT. Buyer shall not assign Buyer’s order without the prior written consent of Simformotion, which consent may be granted or withheld in the sole discretion of Simformotion.
    9. ENFORCEMENT. Buyer shall indemnify Simformotion against all costs and expenses (including attorney fees) reasonably incurred in the enforcement of Buyer’s order and the Terms and Conditions of Sale.