Pensa Labs Inc Terms and Conditions of Sale

1. Acceptance of Terms: By placing an order for the D.I.Wire Pro, C64, or other Pensa Labs’ hardware products and WireWare software and its derivatives (“Products”) from Pensa Labs Inc (“we” or “us”), you, the Customer, agree to these Terms and Conditions of Sale. These Terms represent the entire understanding between us and the Customer regarding the Products.

 

2. Order Acceptance: Your order is an offer to purchase from us, Pensa Labs Inc. We accept this offer only when we dispatch the Products to you, the Customer. Acceptance is subject to these Terms.

 

3. Changes to Products: Pensa Labs Inc expressly reserves the right to change product specifications or discontinue products at any time and without notice.

 

4. Pricing and Payment: Prices are subject to change without notice. The price charged will be our current price at the time of dispatch. All prices exclude taxes and shipping costs, which are the Customer's responsibility.  For clarity, Customer shall also pay and be exclusively liable for all costs of shipping, delivery, insurance, and the like after Pensa Labs Inc has effected delivery of the Products to the carrier. All Orders must be paid in full, including shipping, prior to delivery by Pensa Labs Inc to the carrier, in USD cash.

 

5. Title and Risk of Loss: Title to the Products passes to the Customer upon delivery to the carrier, and the Customer bears all risks of loss or damage from that point.  

 

6. Delivery: We aim to deliver in line with your order but are not liable for any delays. We may deliver in separate shipments.

 

7. Inspection and Claims: Customers must examine deliveries promptly and report any discrepancies within five (5) days of receipt. Claims for transit damage are between you (Customer) and the carrier.

 

8. Returns: Returns for refund of purchase price, less the original shipping and handling costs,  are accepted within thirty (30) days of Customer’s receipt of merchandise, and are subject to a 15% restocking fee. The returned product must be in original condition, in its original packaging. There are no refunds for customized tooling, or for materials and/or accessories.  

In order to make a return, Customer must contact Pensa Labs Inc to receive a written return authorization. Any return made by Customer without a written return authorization from Pensa Labs Inc will be considered an unauthorized return (“Unauthorized Return”). Unauthorized Returns will not be granted for a refund or credit by Pensa Labs Inc. Customer has the sole responsibility to arrange shipment of the Unauthorized Return from Pensa Labs Inc back to Customer. Customer assumes all shipping and handling charges for any Unauthorized Return.

 

9. Software Terms: Any software included with the Product is subject to separate license terms. That is to say if a Product includes any Pensa Labs or non-Pensa Labs software, (collectively “Software”), Customer acknowledges that the Software is subject to additional terms and conditions as set forth in executable or electronic license agreements (“Other Agreements”). The Other Agreements, if any, shall control and govern all such licensed Software use to the extent necessary to resolve any conflict with these Terms. Subject to the terms of such license agreements, all rights not expressly granted herein are reserved, and all other uses of the Software are subject to these Terms as well as the payment of any applicable Software license fees, including fees for specific Software functionalities.

 

10. Restrictions on Use: The Customer agrees not to misuse the Products or violate any applicable laws.  Customer agrees that it shall not directly or indirectly: (i) modify, enhance, adapt, translate, make improvements to, create derivative works based upon, disassemble, decompile, reverse engineer, reduce to any human or machine readable form, or circumvent any technological measure that controls access to or permits derivation of the source code of, the Software or any part thereof; (ii) reverse engineer the Products, any part thereof, or any composition made using the Products; (iii) rent, lease, sell, transfer, assign, or sublicense the rights granted hereunder, except in connection with the rental, lease, sale or transfer of the entire Product; (iv) copy any part of the Software except for one (1) complete copy thereof for archival and/or back-up purposes, or as otherwise expressly authorized by Pensa Labs Inc in writing; (v) change, distort, or delete any patent, copyright or other proprietary notices which appear in writing on or in a Product (or in any copies of Software); (vi) operate or make use of the Products in any way violative of applicable laws and regulations; and/or (vii) take or permit any other action which could impair Pensa Labs’ rights, or damage the image or reputation of quality inherent in the Products, Pensa Labs’ business, reputation, intellectual property or other valuable assets or rights. In the event Customer rents, leases, sells, or otherwise transfers the Products to a third party, Customer agrees that it will require such third party to be bound by Sections 9 (Software), 10 (Restrictions on Use), and 13 (Intellectual Property) hereof as a condition of such rental, lease, sale, or other transfer.

 

11. Support: Customer support is available as described on our website.

 

12. Limited Warranty: Hardware Products include a 1-year limited warranty. Details are provided with quotation and order.

 

13. Intellectual Property: Pensa Labs Inc retains all intellectual property rights in and to the Products. Customer shall have no right to any technical data, Intellectual Property Rights, and/or computer software associated with the Products.

 

14. Indemnification:  Pensa labs Inc shall have no liability or obligation under this Section 14 for any infringement or claim thereof to the extent it is based upon: (a) production, sale or use of prototypes, outputs, or other results of the Products; (b) any method of using a Product other than methods inherent in, and necessary for, the operation of, the Product as supplied; (c) the use of any Product with any consumables, supplies, equipment, device or software not manufactured or supplied and certified by Pensa Labs Inc; (d) the use of any Product which has been modified by Customer or any third party without obtaining Pensa Labs’ prior written authorization; (e) the result of Pensa Labs Inc’s compliance with any of Customer’s requested designs or specifications; and/or (f) Customer’s continued use of any Product after receipt of notice of infringement (collectively, “Exclusions”).

Customer shall defend, indemnify, and hold harmless Pensa Labs Inc and its affiliates, and their employees, officers, and directors, against any claim, suit or proceeding arising out of or relating to any Exclusions; provided that Customer shall not settle any claim or enter into any agreement that affects Pensa Labs’ rights or interests without Pensa Labs’ prior written consent; and that if Customer does not diligently defend against such claim, suit, or proceeding, Pensa Labs Inc shall be entitled to obtain its own legal counsel to direct the defense thereof at Customer’s sole cost and expense.

 

15. Exoneration: If Product is being used in an application that is directly associated with the human body, the related liability to human life is the full responsibility of the Customer.  The Customer agrees to design their application and use of Product(s) in such a way where damage or failure of Customer’s goods or output will not result in effect to human life.  The Customer hereby exonerates Pensa Labs Inc (and its officers, directors, employees and affiliated companies, to be referred to collectively as “Pensa Labs”) from and against any and all claims, lawsuits, liabilities, damages, losses, costs and expenses (including but not limited to Pensa Labs’ attorney’s fees) arising from or in connection with any third party claim(s) against Pensa Labs arising from Customer’s use or resale of Product or the use or resale of the Product by any third party.  By way of example only, and not by way of limitation, Customer shall exonerate Pensa Labs for any claims arising from the use of the Product in applications such as ventilators, medical products, personal mobility, vehicular and amusement equipment.

 

16. Limitations of Liability: IN NO EVENT SHALL PENSA LABS INC OR ITS AFFILIATES, MANUFACTURERS, SUPPLIERS OR LICENSORS (AS THIRD PARTY BENEFICIARIES) BE LIABLE FOR DIRECT DAMAGES OR OTHER LOSSES OR LIABILITIES DIRECTLY RELATING TO THE PRODUCTS OR OTHERWISE ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THE USE OF PRODUCTS, IF AND TO THE EXTENT SUCH DIRECT DAMAGES OR LOSSES EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT(S) THAT DIRECTLY GAVE RISE TO THE DAMAGES OR OTHER LOSSES OR LIABILITIES CLAIMED, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, EXPRESS OR IMPLIED WARRANTY, TORT, PRODUCT OR OTHER STRICT LIABILITY, TRADE PRACTICES, OR OTHERWISE, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL PENSA LABS INC OR ANY OF ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION OR PRODUCTION OF THE PRODUCTS BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE PRODUCTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW; CUSTOMER SHALL REFER TO LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

 

17. Modification and Cancellation: These Terms can only be modified in writing by an authorized officer of Pensa Labs Inc.

 

18. Export Compliance: The Customer agrees to comply with all export laws regarding the purchase and use of our Products.

 

19. Waiver: Any waiver by Pensa Labs Inc of the performance or breach of any provision hereof shall be in writing and executed by an authorized officer of Pensa Labs Inc, and no such waiver shall constitute a waiver of the subsequent performance or breach of the same or any other provision. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.

 

20. Severability: The invalidity or unenforceability, in whole or in part, of any provision hereof shall not affect in any way the validity and enforceability of the remainder of such or any other provision.

21. Governing Law: These Terms are governed by the laws of New York State, without regard to conflict of law principles.