Pocket Business Sales Terms
Open Vision Engineering Inc.
2530 Sacramento St, San Francisco, CA 94115
1. Application and acceptance
1.1 These terms govern every sale of Pocket devices, subscriptions and related services by Open Vision Engineering Inc., a Delaware corporation ("Seller"), to a business customer ("Buyer") under an invoice that references these terms.
1.2 Payment of the invoice, in whole or in part, constitutes Buyer's acceptance of these terms. No signature is required.
1.3 Any terms on a Buyer purchase order, acknowledgement or other document are rejected and do not apply, unless Seller has agreed to them in writing.
1.4 Where Seller and Buyer have executed a separate written Sale of Goods Agreement covering the same order, that agreement prevails over these terms to the extent of any conflict.
1.5 These terms apply to orders placed through Seller's sales team and invoiced by Seller. Purchases made directly through heypocket.com are governed by the Pocket Terms of Sale and Terms of Use, not by these terms.
2. The Order
2.1 The invoice issued by Seller (the "Invoice") sets out the devices, quantities, unit prices, any subscriptions, any engraving or additional services, the delivery location and the total price for the order (the "Order"). The Invoice forms part of these terms.
2.2 Seller sells and Buyer purchases the devices described on the Invoice (the "Devices") in the quantities and at the prices stated there.
3. Price and payment
3.1 Prices are stated in United States dollars.
3.2 Seller ships only once the Invoice is paid in full. Seller has no obligation to ship, engrave or activate subscriptions until payment has been received.
3.3 Buyer shall pay by card or bank transfer using the payment method on the Invoice.
3.4 Buyer shall pay without setoff, deduction, recoupment or withholding of any kind.
3.5 Shipping is included in the price and paid by Seller.
4. Taxes and duties
4.1 Prices are exclusive of sales, use, excise and similar taxes imposed by any government authority on amounts payable by Buyer. Where such taxes apply, they will be shown on the Invoice and are payable by Buyer. Buyer is not responsible for taxes on Seller's income, revenues, personnel or property.
4.2 Buyer shall provide any tax exemption certificate before the Invoice is issued. Seller will not charge sales tax against a valid certificate.
4.3 Import duties, customs charges and any import taxes are payable by Buyer.
5. Delivery
5.1 Seller will deliver the Devices to the delivery location stated on the Invoice (the "Delivery Location"), selecting the carrier, packaging and method of shipment at its discretion.
5.2 Lead times are estimates only. Devices without engraving are estimated to be delivered within two weeks of payment. Engraved Devices are estimated to be delivered within eight to ten weeks of payment. Lead times run from receipt of payment in full, or for engraved Devices from the later of payment and artwork approval under clause 8.3. Seller is not liable for any delay in delivery.
5.3 Seller may deliver in installments. Buyer shall pay for Devices tendered, whether in whole or partial fulfillment of the Order.
5.4 If Buyer fails to accept delivery when tendered at the Delivery Location, or Seller is unable to deliver because of any act or omission of Buyer (including failure to provide instructions, documents, licenses or authorizations): (i) risk of loss passes to Buyer; (ii) the Devices are deemed delivered; and (iii) Seller may store the Devices at Buyer's cost, including storage and insurance, until Buyer collects them.
5.5 The quantity recorded by Seller on tender of delivery is conclusive evidence of the quantity received unless Buyer provides documentary evidence to the contrary. Seller is not liable for non-delivery unless Buyer gives written notice within five days of the estimated delivery date. Buyer's exclusive remedy for non-delivery is, at Seller's option, delivery of the undelivered Devices or a pro rata adjustment of the Invoice.
6. Title and risk of loss
Title and risk of loss pass to Buyer on tender of delivery at the Delivery Location.
7. Inspection, non-conforming Devices and returns
7.1 Buyer shall inspect the Devices within five days of delivery, including deemed delivery under clause 5.4 (the "Inspection Period"). Buyer is deemed to have accepted the Devices unless it notifies Seller in writing of Non-Conforming Devices during the Inspection Period and provides the evidence Seller reasonably requires.
7.2 "Non-Conforming Devices" means only: (i) Devices different from those identified on the Invoice; or (ii) Devices whose label or packaging incorrectly identifies the contents.
7.3 If Buyer gives timely notice, Seller will at its option either replace the Non-Conforming Devices or credit or refund their price. If Seller requests, Buyer shall ship the Non-Conforming Devices to the facility Seller indicates, at Seller's expense and risk, within five days of the request. Replacement Devices are delivered at Seller's expense and risk to the Delivery Location.
7.4 The remedies in clause 7.3 are Buyer's exclusive remedies for Non-Conforming Devices. Except under clause 7.3 and clause 10, Buyer has no right to return Devices. The consumer returns policy published on heypocket.com does not apply to Orders under these terms.
8. Engraved Devices
8.1 Where the Invoice includes engraving, Seller will laser-engrave Buyer's artwork on the back of each Device. Laser engraving is the only decoration method offered.
8.2 Buyer shall supply artwork as an SVG file with a transparent background and no irregular shapes, and warrants that it owns or is licensed to use the artwork and that its use will not infringe any third party's rights. Buyer indemnifies Seller against any claim arising from the artwork.
8.3 Seller will provide a proof for Buyer's written approval before engraving. Engraving proceeds only on approval, and the lead time in clause 5.2 runs from the later of payment and approval.
8.4 Engraved Devices are non-returnable and non-refundable, except as Non-Conforming Devices under clause 7 or under the warranty in clause 10. Engraving performed by a third party voids any return right and any warranty claim relating to the engraved surface.
8.5 Engraving fees are as stated on the Invoice and are non-refundable once engraving has begun.
9. Subscriptions
9.1 Where the Invoice includes Pocket Pro subscriptions, each subscription is for one year, prepaid, beginning on activation.
9.2 Buyer shall supply the email address of each user to whom a subscription is to be assigned. Seller will activate the subscriptions against those addresses. Buyer is responsible for having the right to supply those addresses.
9.3 Subscriptions do not auto-renew. At the end of the year each subscription ends unless the individual user chooses to continue it directly with Seller at Seller's then-current consumer pricing. No renewal charge is made to Buyer.
9.4 Subscription fees are non-refundable once activated. Subscriptions are not transferable between users except as Seller may permit through the product.
9.5 Subscription discounts stated on the Invoice apply only where the subscriptions are purchased and paid together with the Devices.
9.6 These terms govern the sale of Devices and subscriptions. Use of the Pocket software and services by each individual user remains governed by the Pocket Terms of Use and Privacy Policy, which each user accepts on sign-in.
10. Warranty
10.1 Seller warrants that for twelve months from tender of delivery (the "Warranty Period") the Devices will materially conform to Seller's published specifications in effect on the Invoice date and be free from material defects in materials and workmanship. This warranty applies only to the Devices and not to any subscription, software service or additional service.
10.2 EXCEPT FOR THE WARRANTY IN CLAUSE 10.1, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE DEVICES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
10.3 Any product manufactured by a third party that is contained in, incorporated into, attached to or packaged with the Devices is not covered by clause 10.1, and SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO ANY SUCH THIRD-PARTY PRODUCT.
10.4 Seller is not liable under clause 10.1 unless: (i) Buyer gives written notice of the claimed defect, reasonably described, within the Warranty Period; (ii) Seller is given a reasonable opportunity to examine the Devices and, if Seller requests, Buyer returns them to Seller at Seller's cost; and (iii) Seller reasonably verifies the defect.
10.5 Seller is not liable under clause 10.1 if: (i) Buyer continues to use the affected Devices after giving notice of a defect; (ii) the defect arises from Buyer's failure to follow Seller's instructions on storage, installation, use or maintenance; or (iii) Buyer alters or repairs the Devices without Seller's prior written consent. Engraving performed by a third party is an alteration for this purpose to the extent the defect relates to the engraved surface or arises from the engraving process; it does not void the warranty on unrelated defects.
10.6 For Devices affected by a defect during the Warranty Period, Seller will at its option either repair or replace the Devices (or the defective part) or credit or refund the price of the Devices at the pro rata contract rate, and Buyer shall if requested return the Devices at Seller's expense.
10.7 THE REMEDIES IN CLAUSE 10.6 ARE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF CLAUSE 10.1.
11. Limitation of liability
11.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THESE TERMS OR ANY ORDER, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER THE PARTY WAS ADVISED OF THEIR POSSIBILITY, THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM IS BASED, OR THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.2 IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS OR ANY ORDER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TWICE THE AMOUNTS PAID OR PAYABLE TO SELLER UNDER THE RELEVANT INVOICE.
12. Confidential information
12.1 Each party shall keep confidential all non-public information of the other party disclosed in connection with an Order, including pricing, discounts, specifications, business operations and customer information, whether or not marked confidential, and use it only for the purposes of the Order.
12.2 This clause does not apply to information that is in the public domain, already known to the receiving party, or rightfully obtained from a third party on a non-confidential basis. These terms themselves are public and are not confidential.
12.3 On request, the receiving party shall return or destroy the disclosing party's confidential information. Each party is entitled to injunctive relief for any breach of this clause.
13. Compliance with law
Buyer shall comply with all applicable laws, regulations and ordinances in connection with the Order and the use of the Devices, and shall maintain all licenses, permissions and consents required for it to perform its obligations. Buyer is solely responsible for compliance with any laws governing the recording of conversations in the jurisdictions in which the Devices are used.
14. Termination
Seller may cancel an Order with immediate effect by written notice if Buyer: (a) fails to pay any amount when due and does not cure within fourteen days of written notice; (b) fails to perform or comply with any of these terms; or (c) becomes insolvent, is generally unable to pay its debts as they become due, files for bankruptcy, or has proceedings commenced against it relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
15. Force majeure
15.1 Neither party is liable for any failure or delay in performing (other than Buyer's payment obligations) to the extent caused by events beyond its reasonable control, including acts of God; flood, fire, earthquake, epidemic or explosion; war, invasion, hostilities, terrorism, riot or civil unrest; government order, law or action; embargoes or blockades; national or regional emergency; strikes or labor disturbances; and telecommunication breakdowns, power outages, lack of warehouse space, inadequate transportation, or inability to obtain adequate materials.
15.2 The affected party shall notify the other within ten days, stating the expected duration, use diligent efforts to end the failure or delay, and resume performance as soon as reasonably practicable. If the failure or delay continues for ten consecutive days after notice, the other party may cancel the affected Order on five days' written notice.
16. Notices
Notices under these terms must be in writing and sent by email: to Seller at the address stated on the Invoice, and to Buyer at the email address to which the Invoice was sent. A notice is effective when sent, unless the sender receives a delivery failure message.
17. General
17.1 Entire agreement. These terms and the Invoice are the entire agreement between the parties for the Order and supersede all prior understandings, representations and warranties, written or oral, regarding it, subject to clause 1.4.
17.2 Severability. If any provision is invalid, illegal or unenforceable in any jurisdiction, that does not affect any other provision or the same provision in any other jurisdiction, and a court may modify the provision to give effect to the parties' original intent as closely as possible.
17.3 Waiver. No waiver is effective unless in writing and signed by the waiving party. No failure or delay in exercising any right operates as a waiver of it.
17.4 Cumulative remedies. Rights and remedies are cumulative, except that Buyer's rights under clauses 5.5, 7 and 10 are its exclusive remedies for the matters they cover.
17.5 Assignment. Buyer may not assign, transfer or delegate any rights or obligations without Seller's prior written consent; any attempt to do so is void. Seller may assign, transfer or delegate without Buyer's consent.
17.6 Successors. These terms bind and benefit the parties and their permitted successors and assigns.
17.7 No third-party beneficiaries. Nothing in these terms confers any right or remedy on any person other than the parties and their permitted successors and assigns.
17.8 Relationship. The parties are independent contractors. Nothing creates an agency, partnership, joint venture, franchise, employment or fiduciary relationship, and neither party may bind the other.
17.9 Survival. Clauses 4, 9.3, 10 through 12 and 18, and any other provision that by its nature should survive, survive completion or cancellation of the Order.
18. Governing law and disputes
18.1 These terms, the Invoice and all matters arising out of or relating to them, whether in contract, tort or statute, are governed by the laws of the State of Delaware, United States of America, without regard to its conflict of laws rules.
18.2 Before commencing any formal proceeding, the parties shall make a good-faith effort to resolve the dispute informally. Either party may start that process by written notice to the other; if the dispute is not resolved within 30 days of that notice, either party may commence arbitration.
18.3 Any dispute, claim or controversy arising out of or relating to these terms or an Order, including the scope or applicability of this clause, shall be determined by final and binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, before one arbitrator, held in Delaware or another location agreed by the parties. Judgment on the award may be entered in any court of competent jurisdiction.
18.4 Nothing in this clause prevents either party from seeking injunctive or other provisional relief from a court of competent jurisdiction in aid of arbitration, or from bringing a claim for infringement of intellectual property rights in court.
18.5 EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR ANY ORDER.
19. Changes to these terms
19.1 Seller may revise these terms from time to time. Each version shows its last-modified date, and superseded versions remain available at this address.
19.2 An Order is governed by the version of these terms in force on the date of the Invoice. Later changes do not apply to an existing Order.
Open Vision Engineering Inc. · 2530 Sacramento St, San Francisco, CA 94115 · hey@heypocket.com
