Commercial Terms of Sale

PLEASE READ THESE TERMS CAREFULLY. By submitting your order or accepting or using products or services, you acknowledge that you agree to these terms in their entirety.
 
1. Scope
 
1.1. Overview

These Commercial Terms of Sale (“Terms of Sale“) govern Customer’s procurement of Supplier Offerings or Third Party Offerings (collectively “Offerings“) from Supplier, for Customer’s own internal use for its business purposes or in its capacity as a public sector entity. “Customer” refers to the entity ordering the Offerings and “Supplier” refers to Semifly Inc. with which Customer contracts for the procurement of the Offering. Customer and Supplier are each referred to as “Party” and collectively as “Parties.” If Customer wishes to resell Offerings or procure for personal use as a consumer, alternative terms and conditions apply. To the extent there is a written framework agreement in place between the Parties that applies to the Offerings, those terms shall apply instead of these Terms of Sale.
 
1.2. Supplier Offerings

• Products: Semifly-branded:
  • (a) hardware (“Equipment”); or
  • (b) generally available standard software, whether microcode, firmware, operating systems, or applications (“Software”).

  Software includes “Subscription Software” licensed by Supplier as a stand-alone product on a subscription basis.

• Services:
  • (a) service offerings for maintenance and support of Products or Subscriptions (“Support Services”); or
  • (b) consulting and any other services that are not Support Services (“Professional Services”).
• Subscriptions: Semifly-branded offerings provided to Customer for a defined time period (“Subscription Term”) and priced based on the Subscription Term or other applicable metrics, consisting of:
  • (a) cloud offerings; or
  • (b) Products or Services offered as a subscription, on an “as-a-service” basis or on a flexible consumption basis.

  Subscriptions do not include Subscription Software.

1.3. Third Party Offerings

“Third Party Offerings” means hardware, software, products, services, subscriptions, solutions or any other offerings that are not Supplier-branded.
 
1.4. Offering Specific Terms

These Terms of Sale contain the terms and conditions applicable to all Offerings, as may be supplemented by specific terms for certain Offerings available at www.semifly.com/offeringspecificterms, in a Service Specification, a Subscription Specification or in a “Schedule” to these Terms of Sale (collectively “Offering Specific Terms”), which are all considered part of these Terms of Sale by reference.

 

2. Quote and Ordering; Affiliates; Order of Precedence
 
2.1. Quote Validity and Order Acceptance

Unless otherwise agreed, prices stated on a quote from Supplier (“Quote“) are effective until the expiration date of the Quote and may change due to shortages in materials or resources, increase in the cost of manufacturing or other factors beyond Supplier’s reasonable control. To procure Offerings stated on a Quote, Customer may place orders which are subject to availability and acceptance by Supplier. An accepted order is referred to as an “Order.” Supplier may cancel Orders due to pricing, typographical or other errors in the Quote.
 
2.2. Offering Revisions

Supplier may revise its Offerings, including after Customer places an Order but prior to Supplier’s shipment or performance. As a result, Offerings Customer receives may differ from those ordered, as long as they still substantially meet or exceed the specifications as per the documentation of the originally ordered Offerings.
 
2.3. Affiliates

Transactions under these Terms of Sale may involve Affiliates. “Affiliate” means any other entity that controls, is owned by, controlled by or under common ownership or control with the respective Party. “Control” means more than 50% of the voting power or ownership interests.
 
2.4. Order of Precedence

In case of any conflict, the following order of precedence will apply:

1. The Order, where the Parties explicitly agree to deviate from these Terms of Sale for the respective Order;
2. Any Offering Specific Terms; and
3. These Terms of Sale.

 

3. Delivery; Transfer of Risk and Title; Costs; Acceptance; Returns
 
3.1. Shipment and Delivery

Unless otherwise agreed, Supplier will arrange for shipment of the ordered Offerings to the ship-to address indicated in the Order, through a carrier that Supplier designates. Delivery dates are estimated. Software may be provided by delivery of physical media or through electronic means. Customer will notify Supplier within 21 days after the invoice date if Customer believes any Offering included in its Order is missing, wrong, or damaged, and will ensure that the intended installation site meets the specifications as per the applicable documentation.
 
3.2. Risk and Title Transfer

Risk of loss transfers to Customer upon Delivery. Title to sold hardware passes to Customer upon Delivery. “Delivery” for hardware occurs when Supplier provides it to the carrier at Supplier’s designated point of shipment; “Delivery” for software occurs when Supplier provides physical media (or the hardware on which it is installed) to the carrier at Supplier’s designated point of shipment, or the date the software is made available for electronic download.
 
3.3. Insurance

Unless otherwise agreed, the cost of transit insurance will be included in the total price stated on the Quote.
 
3.4. Acceptance

Offerings are deemed accepted upon Delivery. Notwithstanding such acceptance, Customer retains all rights and remedies under the “Warranty” section.
 
3.5. Returns

Customer may only return Products to Supplier that are permitted to be returned pursuant to the return policy at www.semifly.com/returnspolicy.
 
4. Software Licenses

Customer’s rights to use the Software are governed by the applicable end-user license agreement (“EULA“). Unless otherwise agreed, the EULA on www.semifly.com/eula applies.
 
5. Services; Subscriptions
 
5.1. Support Services

• A. Availability of Support Services is governed by Supplier’s applicable “End-of-Service-Life” and release support policies available at Support Services or as otherwise communicated by Supplier (“Support Policies”). Unless otherwise agreed, Support Services will terminate at the earlier of:
  • (a) the expiration of the term for Support Services purchased by Customer; or
  • (b) the applicable End-of-Service-Life date.
• B. Support Services do not cover:
  • (a) problems excluded from warranty coverage;
  • (b) problems that cannot be reproduced at Supplier’s facility or via remote access to Customer’s facility;
  • (c) onsite activities for Products located outside the applicable service area; or
  • (d) damage or defects that do not affect device functionality.
• C. Supplier may store tools and spare parts for diagnostic or remedial activities at Customer’s site or on Customer’s systems for use by Supplier’s authorized personnel.
• D. Replaced Equipment or components will be returned to Supplier and become Supplier’s property upon receipt unless agreed otherwise in an Order. If Customer does not return a replaced component or Equipment within 15 days after receiving Supplier’s request, Supplier reserves the right to charge Customer for the replaced Equipment or component.
• E. Customer is responsible for removing all information and data stored on replaced parts, Products, or any other items before they are returned to Supplier, unless a data deletion service is expressly ordered.

5.2. Grant of License Rights in Deliverables

• A. “Deliverables” means reports, analyses, scripts, code, or other work results that Supplier delivers to Customer to fulfill obligations under a Service Specification.
• B. “Proprietary Rights” refer to all patents, copyrights, trademarks, trade secrets, or other intellectual property rights of a Party.
• C. Subject to Customer’s compliance with these Terms of Sale and any applicable Service Specification, Customer’s payment of applicable amounts due, and Supplier’s Proprietary Rights in any underlying intellectual property, Supplier grants Customer a non-exclusive, non-transferable, revocable license to use the Deliverables for Customer’s internal business purposes.

6. Payment Terms; Taxes
 
6.1. Invoice Payment and Order Processing

Unless Customer has established credit terms, net terms, or special payment terms in writing with Supplier, all invoice payments must be made in full before any Order will be processed. For Customers with approved credit terms, payment is due within the agreed-upon period. In the absence of approved credit terms, prepayment of the full invoice amount is required to initiate Order processing.
 
6.2. Credit Terms

Credit terms may be granted at Supplier’s sole discretion based on Customer’s credit application and approval process. Any credit terms, net terms, or special payment arrangements must be explicitly agreed to in writing by Supplier. Supplier reserves the right to modify or withdraw credit terms at any time.
 
6.3. Late Payments

Any amounts not paid when due will bear interest from the due date until paid at the lesser of 1.5% per month or the highest lawful rate. In case of Customer’s default in payment, Supplier may take the following actions until payment arrangements are made:

• a. Cancel or suspend its performance of any Order;
• b. Require prepayment for any subsequent Orders;
• c. Demand immediate payment of all outstanding invoices; and/or
• d. Withhold performance under these Terms of Sale.

6.4. Taxes and Fees

The charges are exclusive of, and Customer will pay for, all value added tax (VAT), sales tax, excise, withholding, and other governmental fees and levies. If Customer qualifies for tax exemption, they must provide Supplier with a valid certificate of exemption or other appropriate proof of exemption.
 
6.5. Usage Fees

Customer must pay all fees for use of the Offerings, including fees for add-on features and fees based on usage. Supplier may invoice Customer directly for metered or overage fees, even if the Offerings were originally purchased through a Supplier reseller.
 
7. Warranty
 
7.1. Product Warranty

• A. Equipment: Supplier warrants that the Equipment will:
  • (a) be free from material defects in materials and workmanship; and
  • (b) perform substantially in accordance with Supplier’s documentation for such Equipment.

  Supplier will, at its option and cost:

  • (1) repair or replace the affected Equipment; or
  • (2) if unable to do so within a reasonable time, refund the amount Customer paid for the affected Equipment, depreciated on a straight-line basis over a five-year period, upon return of the Equipment.
• B. Software: Supplier warrants that the Software will substantially conform in all material respects to Supplier’s documentation for such Software for a period of 90 days from delivery.

7.2. Services Warranty

Supplier will perform Services in a workmanlike manner in accordance with generally accepted industry standards. Customer must notify Supplier of any failure to perform within 10 days after the performance of the applicable portion of Services.
 
7.3. Warranty Limitations

Warranty does not cover problems arising from:

• A. Accident or neglect by Customer or any third party;
• B. Any third party items or services with which the Supplier Offering is used;
• C. Installation, operation, or use not in accordance with Supplier’s instructions or applicable documentation;
• D. Use in an environment, manner, or purpose for which the Supplier Offering was not designed;
• E. Modification, alteration, or repair by anyone other than Supplier personnel;
• F. Normal wear and tear.

7.4. Disclaimer

EXCEPT AS EXPRESSLY STATED IN THIS WARRANTY SECTION, SUPPLIER PROVIDES ALL OFFERINGS “AS IS” AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY.

 
8. Limitation of Liability
 
8.1. Direct Damages

Each Party’s entire liability for any claim, loss, damage, or expense from any cause whatsoever will be limited to direct damages and will be capped at the amount paid by Customer to Supplier during the 12 months prior to when the damaging event occurred for the specific Offering giving rise to such liability, or fifty thousand United States Dollars ($50,000), whichever is greater.
 
8.2. Exclusions

Neither Party will be liable for:

• A. Special, consequential, exemplary, punitive, incidental, or indirect damages;
• B. Lost profits, loss of revenue, loss or corruption of data, or loss of use;
• C. Procurement of substitute products, services, or technology.

 
8.3. Applicability

These limitations apply regardless of the theory of liability or whether the Party has been advised of the possibility of such damages.

 
9. Confidentiality
 
9.1. Definition of Confidential Information

“Confidential Information” means any information disclosed between the Parties that is marked confidential or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure.
 
9.2. Obligations of the Parties

• A. Each Party will protect the other’s Confidential Information with the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care.
• B. Each Party will not use the other’s Confidential Information except for purposes of fulfilling its obligations under these Terms of Sale.
• C. Each Party will not disclose the other’s Confidential Information except to employees and agents who have a need to know and who are bound by confidentiality obligations at least as restrictive as those herein.

9.3. Survival of Confidentiality Obligations

Confidentiality obligations survive the termination or expiration of these Terms of Sale for a period of three (3) years.
 
10. Data Privacy and Security

• 10.1. Each Party will comply with all applicable data protection and privacy laws and regulations.
• 10.2. Customer is responsible for:
  • A. Obtaining all necessary rights, permissions, and consents associated with its data;
  • B. Providing any required notifications to data subjects;
  • C. Having a legal basis for Supplier’s processing of data on Customer’s behalf.
• 10.3. Supplier will maintain appropriate technical and organizational measures to protect Customer data in Supplier’s possession or control.

 

11. General
 
11.1. Governing Law

These Terms of Sale are governed by the laws of the State of Texas, excluding conflicts of law rules. The state and federal courts of Texas will have exclusive jurisdiction.
 
11.2. Trade Compliance

Customer will comply with all applicable export control and economic sanctions laws.
 
11.3. Assignment

Neither Party may assign these Terms without the other Party’s prior written consent, except Supplier may assign to its affiliates.
 
11.4. Force Majeure

Neither Party will be liable for delays or failures due to circumstances beyond its reasonable control.
 
11.5. Entire Agreement

These Terms of Sale constitute the entire agreement between the Parties with respect to its subject matter and supersede all prior agreements, proposals, or representations, written or oral.
 
11.6. Severability

If any provision of these Terms of Sale is held to be invalid or unenforceable, the remaining provisions will remain in effect.
 
11.7. No Waiver

Failure to enforce any provision of these Terms of Sale will not constitute a waiver.
 
11.8. Notices

All notices must be in writing and sent to the address specified in the Order or such other address as either Party may specify in writing.
 
11.9. Independent Contractors

The Parties are independent contractors. Neither Party has the authority to bind the other.
 
11.10. Survival

Provisions relating to payment, confidentiality, liability, data privacy, and any other provisions that by their nature should survive, will survive termination of these Terms of Sale.
 
Last Updated: December 31, 2025